The most interesting part of a judicial decision is often found in the footnotes.
Case in point: yesterday, Magistrate Judge Burke issued an R&R on a motion to dismiss, recommending dismissal with prejudice of the patentee's contributory infringement claims (but otherwise recommending that the motion be denied).
For the most part, the R&R presents a fairly standard analysis of induced, contributory, and willful infringement claims. But it also contains several interesting footnotes, including a stern word of caution on sloppy pleadings:
As Tonal notes, . . . ICON gets off to a poor start here, since in its counterclaims, ICON did not even bother to state whether it is alleging induced infringement, contributory infringement, or both. Instead, all ICON said therein is that it is alleging “indirect infringement[.]” . . . The Court declines to conclude (as Tonal suggests it should) . . . , that this deficiency, standing alone, is enough to warrant dismissal of the indirect infringement claims. But it certainly is a pretty lazy way to plead induced or contributory infringement. A note to patentees bringing claims in our Court: Do not do this. If you are pleading “induced infringement” or “contributory infringement” then somewhere in the counts/claims: (1) actually use those words (or variations thereof); (2) make some reference to the elements of those claims; and (3) plead facts relating to those elements.
The rest of the decision is also worth a read, and this is a good reminder not to get complacent when pleading your causes of action.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
