A Blog About Intellectual Property Litigation and the District of Delaware


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Luke van Zyl, Unsplash

Back in March, we noted Judge Connolly's adoption of a bright-line rule regarding reliance on post-complaint knowledge for indirect and willful infringement allegations:

[I]n the absence of binding authority to the contrary from the Federal Circuit and Supreme Court, I will adopt the rule that the operative complaint in a lawsuit fails to state a claim for indirect patent infringement where the defendant's alleged knowledge of the asserted patents is based solely on the content of that complaint or a prior version of the complaint filed in the same lawsuit. And I conclude that the operative complaint in a lawsuit fails to state a claim for willfulness-based enhanced damages under § 284 where the defendant's alleged knowledge of the asserted patents is based solely on the content of that complaint or a prior version of the complaint filed in the same lawsuit.

That hasn't stopped some plaintiffs from taking a crack anyway. In one recent case before Judge Connolly and Magistrate Judge Hall, Judge Hall recommended granting a motion to dismiss indirect infringement claims that were based solely on post-complaint knowledge, relying on Judge Connolly's previous ruling from ZapFraud.

On Friday, the plaintiff filed objections to Judge Hall's R&R, arguing that Judge Connolly's previous ruling in ZapFraud was "inapplicable because it involved claims for enhanced damages based on willful infringement" and that indirect infringement allegations based on post-complaint knowledge "are sufficient and consistent with this District's recent decisions."

Yesterday, Judge Connolly overruled the objections and granted the motion to dismiss. That's right, yesterday—two business days after the objections were filed, and before the defendant filed a response. In a brief memorandum order, he restated the rule adopted in ZapFraud and concluded that the plaintiff "has not persuaded me that I should reject that rule":

WSOU admits that in each case its allegation that the Defendant had knowledge of the asserted patents is based solely on the fact that the Defendant was served with a prior version of the operative complaint. Accordingly, the Magistrate Judge correctly concluded under Zapfraud WSOU failed to state claims of indirect infringement against Defendants.

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