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."
Entries for tag: MTD
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. …
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] …
Last week, Judge Stark denied a motion to dismiss and strike a counterclaim and affirmative defense of inequitable conduct in Diebold Nixdorf, Inc. v. Hyosung TNS, Inc., C.A. No. 19-1695-LPS. His ruling serves as a reminder that pleading a defense of inequitable conduct is not the same as proving that defense.
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." ...
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 …
Here is some colorful writing from Magistrate Judge Burke of the District of Delaware, recommending dismissal of a claim for willfulness that failed to plead knowledge, and which relied on—at most—possible knowledge for a 15-hour period between when the complaint was served on an unknown person and when the patent expired:
From the docket, it appears that someone who is in some way affiliated with [defendant] Robinhood was served with the FAC at 9:08 a.m. on July 30, 2019. . . . But, as it turns out, the '633 patent expired on July 30, 2019—that same day. The Court guesses that, in light of all of this, it might be theoretically possible for Plaintiff to pursue what would have to go down as the most de minimis claim of willful infringement in this Court’s history. But whether such a claim—revolving around whether Robinhood knew of the patent and its infringement thereof, during a roughly 15-hour time period on July 30, 2019—would even be plausible would depend on exactly who got served with the Complaint on July 30, 2019 and what their relationship with Robinhood is. Yet the record provides little information on that front. Thus, in the Court’s view, the best course is to grant Robinhood’s Motion as to willful infringement, and if Plaintiff believes it can (and should) pursue such a claim here, then in a further amended pleading, it can attempt to set out the factual basis for such a claim.
But that's not all ...
Judge Noreika issued an opinion today denying a § 101 motion on a patent that covers delivering GPS navigation information to a vehicle in a "short burst."
As to Alice step 1, the Court found that the claims were "do it on a computer" claims directed to the abstract idea of sending and receiving navigation data:
[A]t step 1, claim 1 seems focused on using computers to perform a human activity more efficiently.
At step 2, however, the Court found that the patent's bare-bones specification saved it from § 101—it's hard to find that any particular solution was conventional at the § 101 motion-to-dismiss stage when the specification simply does not discuss the prior …
The District of Delaware issued a copyright decision today that I found fascinating.
As the Court describes it, back in 2011 a website called Flavorwire posted an article describing (and displaying) nine images from Tom Hussey Photography, LLC, without permission from the photographer.
In 2018, the defendant in the case, BDG, bought the Flavorwire website, including that article. After BDG purchased the site, the photographer discovered the article and sued them for infringement in Delaware, where BDG is incorporated.
In response, BDG moved to dismiss, arguing that it had merely bought, operated, and maintained the website itself (the asset, not the company that created the website), and therefore that it never committed a "volitional …
Today, Judge Connolly held ineligible a patent directed to "teleorthodontics," i.e., a business method for practicing orthodontics remotely through the use of 3D scans of a patients' mouth.
The outcome is not all that unusual—Judge Connolly characterized the patents as essentially "do it with a computer" patents for orthodontics, where the patent claims performing a traditionally offline activity remotely using conventional computers and commercially available 3D scanners.
And, as the Court noted, other courts have held telehealth business method patents ineligible under § 101. Here, according to the Court, the patents at issue simply applied available commercial technology to the abstract idea of connecting patients and orthodontists …
