We've written several times about Judge Stark's practice of holding "101 days." For the uninitiated, these are day-long hearings in which the court hears argument on multiple 101 motions from unrelated cases in a single, combined hearing. He has continued this practice throughout the pandemic, holding telephonic 101 days roughly once a quarter since July 2020.
He held another one last Friday, and he issued his written rulings earlier today. This time, he addressed three 12(b)(6) motions covering a total of four patents.
F45 Training Pty Ltd. v. Body Fit Training USA Inc. (C.A. No. 20-1194-LPS)
The claims were "directed to the abstract idea of storing, sending, and retrieving information over a network." Judge Stark found that this …
The seeds of a motion to dismiss are often planted in the complaint. To some extent this is unavoidable—for instance, try asserting software patent claims without raising the specter of a § 101 motion. Sometimes, though, you can avoid a motion to dismiss by just including a little less detail in the complaint—and especially by not referring to troublesome documents.
Peloton Interactive, Inc. v. ICON Health & Fitness, Inc., C.A. No, 20-662-RGA, D.I. 103 (D. Del. May 28, 2021) is a good example (we discussed another aspect of this opinion last week). There, Icon brought counterclaims for patent infringement related to a series of patents that the parties had previously litigated, resulting in a settlement agreement and license. Peloton moved to dismiss those claims, arguing that the referenced license disposed of the infringement claims.
The interesting bit is that the license itself was not attached to Icon's counterclaims, but was only supplied to the Court with Peloton's motion to dismiss. In ruling on the motion, Judge Andrews noted that this would normally convert the 12(b)(6) motion into a summary judgment motion, unless ...
How many amended complaints does it take before your infringement claims are dismissed with prejudice? As it turns out, it might only be two.
Last July, Magistrate Judge Fallon issued an R&R recommending partial dismissal of a patentee's amended complaint under Twombly and Iqbal (the complaint was amended in response to an earlier motion to dismiss). The plaintiff sought leave to amend its complaint a second time, which the court granted.
But instead of correcting the problems with the first amended complaint, Judge Fallon found that the plaintiff simply repeated them—bringing allegations that were "conclusory" and "lack[ed] any plausible facts supporting such a conclusion."
Perhaps an even bigger issue, though, was the fact that the plaintiff …
In trade secret litigation, parties often fight bitterly over the level of particularity with which the party asserting misappropriation has described its trade secrets. That dispute frequently plays out in connection with interrogatory responses or other trade secret contentions, served after the initial pleadings are closed.
However, it can arise earlier in the case. In a recent order, Judge Andrews dismissed a federal trade secret misappropriation claim under Rule 12(b)(6) because the complaint identified "large, general areas of information that Plaintiff alleges to have shared with Defendant" but failed to "identify what the trade secrets are within those general areas."
Notably, the order, issued in Lithero, LLC v. Astrazeneca Pharms. LP, C.A. No. 19-2320-RGA (D. Del.), states …
Two opinions in the past week have come to differing conclusions as to whether the recitation of claim elements in a complaint is sufficient to state a plausible allegation of infringement.
Recitation of Claim Elements Helpful
In the first, Dynamic Data Technologies, LLC v. Brightcove Inc., No. 19-1190-CFC (D. Del. July 20, 2020), the Court denied a 12(b)(6) motion to dismiss an allegation of direct infringement, stating that it was sufficient to:
identif[y] products accused of infringing each of the asserted patents, identif[y] at least one claim of each asserted patent that the accused products infringe, and describe how those products infringe the identified claim.
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