A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: mtd

The most famous use of the phrase
The most famous use of the phrase "self-evident"? Engraving by William J. Stone

In ruling on § 101 motions to dismiss, the Court typically adopts plaintiff's constructions outright, if plaintiff offers any. Those constructions may or may not be enough to avoid dismissal, but I can't recall any instance where the District of Delaware actually had to reject a construction as implausible under the FRCP 12(b)(6) standard.

Until now. In Synkloud Tech. v. HP, Inc., C.A. No. 19-1360-RGA (D. Del. Sep. 28, 2020), plaintiff tried to bake the § 101 "non-conventional" standard into the proposed claim construction. Clever! But Judge Andrews described the problems with that approach as "self-evident":

Plaintiff states that a person of ordinary skill …
MTD

Judge Connolly has previously denied a motion to dismiss direct infringement claims where the plaintiff at least recited the claim elements and accused a product of meeting them. Last week, though, he granted a motion to dismiss where the plaintiff did not even go that far.

Even though the patent included only method claims, plaintiff accused only products of infringing, without identifying any accused process or alleging how it is performed by those products.

Even as to those products, plaintiff contradicted itself, identifying smartphones as accused, but also discussing servers, software, and "other devices and technology." Judge Connolly called these allegations "confusing and contradictory."

Judge Connolly did grant leave to amend, and gave them a month to fix their …

A Crack
Crack on white concrete surface, Brina Blum, Unsplash

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.

To show …

Cell Tower
Cell Tower Ben Vaughn, Unsplash

In an R&R this week, Judge Fallon recommended granting a § 101 12(b)(6) motion to dismiss.

She rejected a proffered expert declaration regarding novelty of the invention, because "the court declines to consider matters outside the pleadings on a Rule 12 motion to dismiss."

She noted that "[t]he law is now well-established that patent eligibility is a threshold issue." So far she has recommended granting three § 101 motions to dismiss this year, out of four that she has addressed.

The § 101 issues addressed here were not unusual. The patent, originally held by LG and now by NPE Aegis 11 S.A., sets forth an algorithm for using random numbers to authenticate mobile …

In a brief § 101 opinion today, Judge Andrews denied a MTD based solely on Alice step 2. He relied primarily on allegations in the complaint that various claimed features of the invention were not routing or conventional:

Plaintiff . . . alleges in its amended complaint that the [asserted] claims incorporate “inventive concepts that were not well-understood, routine, or conventional at the time” of invention. . . . For example, the amended complaint alleges that some claims teach ways of displaying performance parameters so that users of both live and archived classes can compete with one another. . . . The amended complaint alleges that these functionalities were nonroutine and unconventional at the time of the invention and helped …