One of the early questions in many cases (particularly NPE cases) is whether the defendant can move to dismiss the complaint under 12(b)(6) for lacking sufficient detail under Twombly/Iqbal.
The answer is yes: You can, as long as there is insufficient detail. But what is the cutoff? How bad does it have to be?
We got an example of that on Monday, when Chief Judge Connolly dismissed a complaint for lacking detail. According to the Court, all the plaintiff did was say that the defendant's product infringes the claim:
"[A] plaintiff cannot assert a plausible claim for infringement under the Iqbal/Twombly standard by reciting the claim elements and merely concluding that the accused …
We've written a lot about how there is asplit in the District of Delaware about whether a complaint itself can establish knowledge of infringement sufficient to support a claim of post-filing willfulness or induced infringement.
Early this week, visiting Judge Kennelly weighed in, siding with the judges who say that a complaint can establish knowledge, in a short opinion:
A claim for willful infringement of a patent requires the plaintiff to establish—or at this point in the case, to plausibly allege—that the accused infringer had knowledge of or was willfully blind to the patent and that its conduct constituted, induced, or contributed to infringement. . . . Similarly, a claim of induced or contributory infringement …
We talked a couple of days ago about how, in Longbeam Technologies LLC v. Amazon.com, Inc., C.A. No. 21-1559-CFC (D. Del.), Chief Judge Connolly stayed the action after raising plaintiff's inadequate disclosures at a § 101 hearing.
But, at the same hearing, plaintiff actually prevailed on the § 101 motion—and Chief Judge Connolly made some notable comments about how the Federal Circuit has responded to his previous § 101 decisions, and what that means for cases going forward.
Case 1, Universal Secure: Affirmed
The first case, Universal Secure Registry LLC v. Apple Inc., …
That is the question Judge Andrews addressed yesterday. He found that yes, a letter listing a patent and accused product is enough to state a claim in a complaint for pre-suit willfulness—the letter need not include things like claim charts or specific descriptions of product features:
I find that the notice letter sufficiently pleads knowledge for the eight patents-in-suit listed in the letter. The letter lists many LG products and states, " These products, and others made, used, sold, offered for sale, or imported into the United States by LG, infringe many of the patents in [Bench Walk's] portfolio." (D.I. 25-1 at 1-2). The letter then enumerates eleven patents, including eight of the ten …
In a making a motion to dismiss for ineligibility under § 101, the moving party often seeks an ineligibility finding for all claims by attacking a single independent claim and arguing that it is "representative" of the others.
This can be a powerful briefing technique, as it avoids a repetitive slog through multiple asserted claims. Beyond that, it has the practical effect of shifting the burden to the patentee—to some extent—to show that the other asserted claims are different.
A short opinion yesterday by Judge Andrews, however, shows one downside of the representative-claim approach on a § 101 motion to dismiss. If you lose the argument …
Continuing our theme, another subject that often comes up in defending NPE complaints is whether the NPE's often-lackluster complaint may be vulnerable to an FRCP 12(b)(6) motion to dismiss (and whether that motion can be brought economically).
Judge Connolly today dismissed a complaint by Swirlate IP, an (alleged) IP Edge entity, because the complaint mostly parroted the language of the claims and offered an unspecific website URL.
Here is an example of a typical paragraph from the complaint, which mirrors the claim language but also offers slightly more:
21. Upon information and belief, the Accused Instrumentality performs the step of performing the second transmission by transmitting the second data symbols over a …
As we mentioned in our last post, Judge Bibas of the Third Circuit has taken two D. Del. patent cases by designation, along with a number of other cases.
I've seen a number of his opinions in other cases come through over the course of the year. They are easy to identify, as his writing style differs from any other judge we've had, in a way that is interesting to see.
One particularly notable opinion of his issued back in March, and apparently slipped our notice at the time. In it, he denies an FRCP 12(b)(6) motion, holding that a defendant's own patents can serve as circumstantial evidence that its products practice the claims, if those patents describe an infringing configuration. ...
It's fairly common for plaintiffs in Delaware to plead infringement by alleging that the defendant infringes "at least claim x," of the relevant patent—leaving the question of what other claims might be asserted until later in the case.
In line with the Federal Circuit decision in Disc Disease Sols. Inc. v. VGH Sols., Inc., 888 F.3d 1256, 1260 (Fed. Cir. 2018), many of our Delaware judges have explicitly endorsed this practice. See, e.g. Promos Techs., Inc. v. Samsung Elecs. Co., Civil Action No. 18-307-RGA, 2018 U.S. Dist. LEXIS 186276, at *6 (D. Del. Oct. 31, 2018) ("Plaintiff does provide details of at least one claim allegedly infringed under each asserted patent. Therefore, Plaintiff's identification of infringed …
In competitor cases, parties sometimes include Lanham Act claims alongside patent claims. That's what happened in Peloton Interactive, Inc. v. Icon Health & Fitness, Inc., C.A. No. 20-662-RGA (D. Del.), where both sides brought patent and Lanham Act claims or counterclaims.
Peloton moved to dismiss defendant Icon's Lanham Act counterclaims, which alleged that Peloton had made various false and misleading statements concerning things like whether the Peloton bike was the "first of its kind" and unique among its market, along with statements about Peloton music offerings.
Peloton argued that Lanham Act claims are subject to a higher pleading standard, relying on an old E.D. Pa. case from long before the Supreme Court's decisions on this issue in Twombly / Iqbal:
Peloton urges the Court to apply an “intermediate” standard that first appeared in Max Daetwyler Corp. v. Input Graphics Inc, 608 F. Supp. 1549, 1556 (E.D. Pa. 1985). The Court held, “[i]n litigation in which one party is charged with making false statements, it is important that the party charged be provided with sufficiently detailed allegations regarding the nature of the alleged falsehoods to allow him to make a proper defense.” . . . ICON argues that the standard articulated in Max Daetwyler is inappropriate because it was decided before Twombly and Iqbal. . . . Additionally, there is disagreement within district courts in the Third Circuit as to its applicability. . . .
Judge Andrews declined to apply the heightened standard, quoting
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