A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: willfulness

Robin Hood, taking on some rogue non-practicing entities
Robin Hood, taking on some rogue non-practicing entities Reginald Heade

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 ...

Illustration of plaintiff's willfulness allegations
Illustration of plaintiff's willfulness allegations Head Of A Skeleton With A Burning Cigarette, Vincent van Gogh

Judge Andrews, in granting a motion to dismiss a patentee's willfulness allegations:

The allegations could charitably be described as bare-bones. There is nothing to suggest any pre-suit knowledge of the two asserted patents. Thus, Plaintiff’s position is that failure of the Defendant to concede after a suit is filed automatically converts a non-willfulness case into a willfulness case. I disagree. Thus, I will grant the motion as to willfulness.

In the same short order, he set out his view on the difference in pleading standards between willfulness and indirect infringement:

As to indirect infringement, I think the allegations make out a case for post-December 2014 indirect infringement. (I do not think Plaintiff is arguing that there was any pre-December 2014 indirect infringement, and, in any event, there are no allegations that would provide any basis for such a theory.). I do not think the requirements in regard to state of mind for indirect infringement are as great as they are for willfulness. Thus, I will deny the motion as to indirect infringement.

Dollar Bills
Sharon McCutcheon, Unsplash

Chief Judge Stark today released his opinion on post-trial motions in Roch Diagnostics Co. v. Meso Scale Diagnostics, LLC, C.A. No. 17-189-LPS (D. Del.), following a jury trial last year that resulted in a $137m verdict and a finding of willfulness.

Damages Award on 65% Royalty Theory Confirmed

The Court denied a post-trial motion to undo the jury's damage finding, which equated to an approximately 65% royalty rate (or more, depending on the royalty base).

Interestingly, the jury awarded damages after a one-sided royalty rate presentation by Roche, the accused infringer. The Court had previously excluded the patentee's damages expert's opinion as to the royalty rate, because it used the wrong date …

Judge Stark recently adopted Judge Burke's recommendation that the Court deny a motion for summary judgment of no willful infringement, despite the defendant's objection that the key piece of authority underlying Judge Burke's decision issued after the summary judgment motion was filed. Judge Stark also pushed the November jury trial, but possibly by just a few weeks.

Judge Burke's exacting standards regarding the sufficiency of pleadings in a patent case were on display in a recent R&R, in which he recommended dismissing indirect and willful infringement claims. This ruling demonstrates that although plaintiffs are not required to prove their case as the pleading stage, they are well advised to bolster their complaint with allegations that link the elements of their claims to specific facts.

The key passages of the 24-page R&R in Midwest Energy Emissions Corp. v. Vistra Energy Corp., C.A. No. 19-1334-RGA-CJB concern what makes an infringement claim "plausible" under the Twombly/Iqbal standard.