A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: twombly

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 …

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 …

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 …