A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: Twombly

I want you to take a deep breath and imagine yourself in the heady days of 2015. Every night you enjoy the newly released Doritos' loco taco. Every morning you practice the harlem shake. Game of Thrones has so much promise. Life is good.

This was really my peak
This was really my peak AI-Generated, displayed with permission

For the patent litigator (e.g., everyone reading this), the law is in an interesting place. Form 18 is about to be abolished, and there is a great deal of of hemming and hawing about how much detail will need to be included in a complaint for patent infringement. Yours truly even jumped on the hype train and wrote an article on it for Landslide (other than the Alice Cooper reference in the title, which I think went largely unnoticed, it bears little resemblance to the current blog).

For defendants, things were trickier still. The question of what level of detail was required for pleading the usual counterclaims of noninfringement and invalidity was even more up in the air. Several Delaware decisions even held that greater particularity was required for counterclaims than infringement claims. For instance, Judge Robinson made the following statement in dismissing invalidity counterclaims in Senju Pharm. Co. v. Apotex, Inc., 921 F. Supp. 2d 297, 302 (D. Del. 2013):

the fact that Form 18 (rather than Twombly and Iqbal) remains the standard for pleading infringement claims is an insufficient justification for deviating from Twombly and Iqbal for pleading other causes of action . . . Therefore, the court concludes that the pleading standards set forth in Twombly and Iqbal apply to counterclaims of invalidity.

Thankfully these seas ...

When you think about it, pleading on the basis of "information and belief" is sort of funny. What else are you going to plead on? Hopes? Dreams? The lost souls of wayward lawyers past?

I just can't get the timing right on these Halloween posts . . .
I just can't get the timing right on these Halloween posts . . . AI-Generated, displayed with permission

In any case, its something you see all the time, and it usually goes unchallenged. Today though, Judge Bryson issued an opinion explaining the situations where such pleading is appropriate, and those where doing so is grounds for dismissal.

The test boils down to, are the facts you plead "on information and belief" uniquely within the defendant's possession, or are supported by other factual allegations (plead not on information and belief, but on immutable and unchallengeable fact known amongst the plaintiff's brood for countless generations, all hail facts, all hail allegations)?

The use of “information and belief” pleading in the complaint is consistent with the purposes previously approved by the Third Circuit and other courts. The “information and belief” allegations relate to limitations that address the process for manufacturing the accused products, information to which DSM is not privy, or details regarding the composition of Honeywell’s products that may be difficult to ascertain by testing the finished products, but which would be readily known to the manufacturer. Those allegations are therefore made in circumstances in which the factual information in question is peculiarly within the defendant’s knowledge or control. Moreover, the various other allegations that are not made on information and belief, such as the allegation that the SPECTRA Blue products exhibit characteristics substantially similar to the characteristics of the multi-filament yarns of the ’532 patent, constitute factual allegations that make DSM’s “theoretically viable claim plausible.”

DSM IP Assets, B.V. et al v. Honeywell International, Inc., C.A. No. 23-675-WCB, 10 (D. Del. Nov. 2, 2023) (Mem. Op.).

The Court also made a note that pleading willfulness on information and belief is ...

Paul Kramer, Unsplash

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 …

Mathew Schwartz, Unsplash

One of the first questions that a patent plaintiff faces in bringing suit is "what do we have to include in the complaint?"

It's common in the District of Delaware for a patent plaintiff to list only a small number of asserted claims from each asserted patent, against a small number of accused products—often just one claim against one product.

Of course, listing more asserted claims may increase the chances that a court finds that the plaintiff stated a plausible claim of infringement in the event of a motion to dismiss. But many plaintiffs are fine with that risk, knowing that they can amend to avoid any motion to dismiss (usually) .

The Court normally permits parties to later add or remove asserted claims or accused products as ...

freestocks, Unsplash

Sitting by designation in D. Del., Circuit Judge Bibas recently issued an interesting 12(b)(6) opinion on false-advertising claims in the pharma context. These opinions tend to fly under the radar, but they often contain helpful practice tips.

The parties "both sell a medical cream, each with the same active ingredients in the same strength." Although the defendant's cream "is not an FDA-approved generic and has not been tested for bioequivalence[,]" it was listed in a database of pharmaceutical products "as an 'Equivalent Drug[.]'"

Judge Bibas found that this statement was neither false nor misleading:

Yet Sebela insists that “equivalent” implies more: bioequivalence and FDA approval. . . . The FDA has not approved TruPharma’s cream. But …

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 …

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 …