A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: mtd
MTD

Chief Judge Connolly issued an interesting opinion on Friday, denying a motion to dismiss a DJ complaint in favor of an earlier-filed infringement action in the Western District of Texas.

The DJ case is the second Delaware action between these parties. After Judge Connolly found the claims in the first case invalid under § 101, the patentee brought an infringement action in Texas on a "virtually identical" continuation patent.

Although the Texas case was filed first, Judge Connolly declined to apply the first-to-file rule. He based his decision not only on judicial economy (i.e., he had already devoted substantive attention to the earlier, "virtually identical" patent), but also on the patentee's "litigation gamesmanship":

Second, SmileDirectClub' …

March of the Trolls
Paulo O, CC BY 2.0

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 …

I wonder how many actual schoolbooks use the
I wonder how many actual schoolbooks use the "Century Schoolbook" font? Hope House Press - Leather Diary Studio, Unsplash

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. ...

These are not Pelotons.
These are not Pelotons. Jonathan Petit, Unsplash

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

It is not uncommon for patent infringement plaintiffs naming multiple defendants to group those defendants in the complaint and make allegations of infringement generally, rather than separately detailing what wrongful acts each defendant is alleged to have done. The group pleading approach is not "impermissible per se," as Judge Burke recognized in a recent R&R, claims based on group pleading are subject to dismissal where they do not include "'enough facts to render it plausible that each defendant has performed at least one type of U.S.-related infringing act' or if it otherwise fails to provide each defendant with sufficient notice of the basis for the claims against it."

Hammock
Mohamed Ajufaan, Unsplash

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. …

A different kind of Sherman
A different kind of Sherman Sherman Tank at Clervaux Castle, Luxembourg, R Boed, CC BY 2.0

This week, Chief Judge Stark ruled on a motion to dismiss a FRAND-related antitrust claim brought by Lenovo against InterDigital relating to 3G/4G phone standards.

According to the Court, InterDigital contracted with the European Telecommunications Standards Institute (ETSI) to license its patents at FRAND rates, and its patents were incorporated into the 3G/4G standards. The ETSI requires patentees to license their patents at FRAND rates to avoid anti-trust concerns.

Lenovo's antitrust claims allege that InterDigital, by demanding higher-than-FRAND rates, has obtained an unlawful monopoly power over the 3G/4G standards. Lenovo also alleges that InterDigital defrauded ETSI during the standards development process:

Lenovo allege[s] …

Terracotta revetment with a griffin
The Met

Yesterday, Judge Noreika denied an early Section 101 challenge to two patents-in-suit, in light of a factual dispute regarding unconventionality of certain aspects of the claimed invention.

Although plaintiff managed to survive the § 101 motion, it failed to meet the relatively un-demanding standard for pleading direct infringement – a test that would have been satisfied if the plaintiff had simply "identified the . . . accused products and alleged that the accused products met 'each and every element of at least one claim' of the asserted patents, either literally or equivalently." ...

Blackjack
Markus Spiske, Unsplash

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 …