Ever since the abolition of form complaints in patent cases (see our previous reporting here, here, and here), patent defendants have been incentivized to file motions to dismiss, and many have succeeded. But as Judge Gonzalez Rogers’ recent Order in this case reminds us, even after Twombly and Iqbal, Rule 12(b)(6) still offers a relatively lenient pleading standard and, in many cases, requires development of a factual record before dismissal can be considered. READ MORE
Before the recent amendment to the Federal Rules abolishing form complaints, it was rare to see parties file motions to dismiss in patent infringement cases, and even rarer to see them granted. But Judge Hamilton recently granted such a motion that defendant Bulbrite filed directed at allegations in a complaint that was not subject to those recent amendments. And now, plaintiff Bluestone must amend its complaint to add more specificity concerning its infringement allegations, notwithstanding its arguments that it provided the level of notice required to establish its claims of infringement that existed under applicable law prior to December 2015. READ MORE
Civil litigation can sometimes be less than civil or efficient. Indeed, some parties have been found to engage in “abusive” discovery practices or dilatory tactics intended to prolong and increase the costs of litigation. This has not gone unnoticed by courts, parties, and commentators, including the Advisory Committee on Rules of Civil Procedure (the “Committee”). In August 2013, the Committee proposed amendments to the Federal Rules of Civil Procedure (“the Rules”) aimed at curbing certain abusive practices, amongst other things. The amendments include changes to Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37, and would impact numerous aspects of litigation including service of process, discovery (including electronically stored information (“ESI”)), default judgments, and possibly pleadings requirements. READ MORE
Further highlighting the inconsistent treatment of Seagate recently noted on this blog, Judge Donato granted MacAfee’s and Symantec’s motions to dismiss CAP’s willful, induced and contributory infringement allegations, holding that failure to plead pre-suit knowledge of the patents-in-suit precludes recovery. The court held, among other things, that Seagate created a per se requirement that a Patentee move for a preliminary injunction in order to collect post-filing enhanced damages. Judge Donato also held that a complaint is sufficient notice to plead induced and contributory infringement based on post-filing knowledge. READ MORE
Order Denying Motion to Dismiss. iLife Technologies Inc. v. AliphCom, Case No. 14-cv-03345-WHO
Pleading inequitable conduct—fraud on the Patent Office (PTO) by withholding or misrepresenting material information—can be a tricky exercise when defending against a claim of patent infringement. Though the Federal Circuit made clear in Therasense v. Becton Dickinson that there is a heightened standard for proving the inequitable conduct, it left open the question of whether this heightened standard also applies to pleading the defense. Accordingly, parties pleading inequitable conduct are left with uncertainty in how detailed their allegations must be, especially for issues such as the required element of specific intent to deceive the PTO. Judge William Orrick’s decision in iLife Technologies gives guidance as to this issue. READ MORE
Order Denying Motion to Dismiss, JDS Uniphase Corp., v. CoAdna Photonics, Inc., Case No. C 14-cv-01091 (Judge Jon Tigar)
Friedrich Nietzsche once observed that it was his ambition “to say in 10 sentences what others say in a whole book.” A new opinion from Judge Tigar arguably embraces Nietzsche’s philosophy in the context of patent infringement pleading requirements. Judge Tigar ruled that a plaintiff will ordinarily survive a motion to dismiss when it relies upon allegations of direct infringement in its complaint that, while skimpy, nonetheless comply with Form 18 of the Federal Rules of Civil Procedure. Nietzsche’s 10 sentences may well be enough. READ MORE
Order Granting Leave to Amend Answer, Fujifilm Corporation v. Motorola Mobility LLC, Case No. C 12-03587 (Judge William Orrick)
Fighting over the factual bases for patent-related affirmative defenses? Here are some take-home points from Judge Orrick, who allowed defendant Motorola Mobility to add allegations that plaintiff Fujifilm’s patent infringement claims are barred by inequitable conduct, and by a license arising from Fujifilm’s membership in the Bluetooth Special Interest Group (SIG):
Plausibility is the ultimate gatekeeper;
- When a defense sounds in fraud, be sure to plead with particularity;
- Otherwise, notice pleading is enough;
- Either way, there are limits to what is required at the pleading stage, versus what is left for discovery; and
- Delay, even unexplained, may not bar amendment if there is no prejudice.
Motion to Dismiss Granted in Part, XimpleWare, Inc.v. Versata Software, Inc. et al., Case No. C 13-05161 (Magistrate Judge Paul Grewal)
The GNU General Public License is the most popular free software license in the world and covers many widely-used programs, such as the Linux kernel. So IP attorneys and open-source activists alike should take note of Magistrate Grewal’s recent decision in the XimpleWare, Inc. v. Versata Software, Inc. litigation. With the exception of one defendant, XimpleWare failed to adequately plead that the moving defendants improperly “distributed” software in violation of the General Public License. The ruling requires patentees to more stringently plead when downstream customers violate the GNU General Public License. READ MORE
Motion to Dismiss Affirmative Defenses granted, Blackberry Limited v. Typo Products LLC, Case No. 3:14-cv-00023-WHO (J. Orrick).
In 2007, the Supreme Court’s Bell Atlantic v. Twombly opinion altered the Rule 8 pleading standard by tightening up the “permissive” pleading standard for complaint, requiring plaintiffs to state facts showing that its claims were not merely “conceivable,” but “plausible.” A “plausible” claim under Twombly requires stating “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence [of the alleged wrongdoing].” At first, many courts and commentators believed that the Twombly standard would not find broad application beyond the antitrust context, until Ashcroft v. Iqbal, when the Supreme Court clarified that Twombly appliedto all civil complaints. READ MORE
Motion to Dismiss Claims of Inducement, Contributory Infringement, and Willful Infringement Denied, Sykworks Solutions, Inc. v. Kinetic Technologies Inc., Case No. C 14-00010 (Judge Susan Illston)
“Ignorance is the curse of God; knowledge is the wing wherewith we fly to heaven.” William Shakespeare, Henry VI Part II.
You don’t need to be the Bard of Avon to prepare a complaint setting out allegations of patent infringement. As underscored by a recent ruling from Judge Illston denying a motion to dismiss a complaint for patent infringement, so long as a patentee can successfully plead pre-suit knowledge of the patents-in-suit, it also should be relatively straightforward for the patentee to plead theories of willful infringement, contributory infringement, and inducement. READ MORE