When you think about it, pleading on the basis of "information and belief" is sort of funny. What else are you going to plead on? Hopes? Dreams? The lost souls of wayward lawyers past?
In any case, its something you see all the time, and it usually goes unchallenged. Today though, Judge Bryson issued an opinion explaining the situations where such pleading is appropriate, and those where doing so is grounds for dismissal.
The test boils down to, are the facts you plead "on information and belief" uniquely within the defendant's possession, or are supported by other factual allegations (plead not on information and belief, but on immutable and unchallengeable fact known amongst the plaintiff's brood for countless generations, all hail facts, all hail allegations)?
The use of “information and belief” pleading in the complaint is consistent with the purposes previously approved by the Third Circuit and other courts. The “information and belief” allegations relate to limitations that address the process for manufacturing the accused products, information to which DSM is not privy, or details regarding the composition of Honeywell’s products that may be difficult to ascertain by testing the finished products, but which would be readily known to the manufacturer. Those allegations are therefore made in circumstances in which the factual information in question is peculiarly within the defendant’s knowledge or control. Moreover, the various other allegations that are not made on information and belief, such as the allegation that the SPECTRA Blue products exhibit characteristics substantially similar to the characteristics of the multi-filament yarns of the ’532 patent, constitute factual allegations that make DSM’s “theoretically viable claim plausible.”
DSM IP Assets, B.V. et al v. Honeywell International, Inc., C.A. No. 23-675-WCB, 10 (D. Del. Nov. 2, 2023) (Mem. Op.).
The Court also made a note that pleading willfulness on information and belief is normally appropriate and declined to dismiss the barebones allegations:
Paragraph 82 of the complaint that echoes the words of the Supreme Court in Halo, alleging on information and belief that Honeywell’s infringement “has been and continues to be deliberate, intentional, egregious, willful, and in reckless disregard of the valid patent claims of the ’532 patent.” The complaint does not expand upon those allegations, however, by setting forth any factual basis for its assertion that Honeywell’s conduct is egregious . . .
[T]he facts bearing on willfulness are likely to be mainly in the possession of the defendant and available to the plaintiff only through discovery. If discovery fails to produce facts that would support a finding of willfulness, the defendant can seek to have the willfulness allegations dismissed on summary judgment. For pleading purposes, however, DSM has made sufficient allegations of willfulness
Id. at 17, 19.
There's a lot more good stuff in the opinion, including Judge Bryson's take on whether the complaint can establish knowledge of infringement for the purposes of indirect and willful infringement. I will not say what his position is because I want to get another post out of it, but rest assured that it will be blog-worthy.
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