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Judge Andrews Applies Recent Appellate Decisions to Motions to Dismiss

Judge Andrews recently considered the motions of several defendants to dismiss claims of direct infringement, indirect infringement, and willfulness in HSM Portfolio LLC v. Fujitsu Ltd., C.A. No. 11-770-RGA (D. Del. July 3, 2012). Applying the Federal Circuit’s recent decision in In re Bill of Lading Transmission and Processing System Patent Litigation, 2012 WL 2044605, *7 (Fed. Cir. June 7, 2012), Judge Andrews denied motions to dismiss claims of direct infringement, because the “minimal allegations set forth in the counts against each of the defendants . . . are all that are required to satisfy Form 18 and to state a claim of direct infringement.” HSM Portfolio, at 2.

Judge Andrews dismissed claims of indirect infringement, however, finding that the allegations were “insufficient to state a claim for indirect infringement [because] . . . [a]mong other things, there are no allegations of direct infringement accompanying the allegations of indirect infringement.” Id. at 2. Considering the Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), Judge Andrews further stated: “There is no allegation that the defendant knew about the existence of the patent-in-suit. . . . Stating that the defendant was on notice of a patent as of a certain date is insufficient to provide a factual basis for alleging knowledge” that the acts the defendant induced or contributed to constitute patent infringement. HSM Portfolio at 3.

On willfulness, Judge Andrews stated that a claim of willfulness “may be alleged generally, but that there must be facts alleged that are sufficient to show that the plaintiff has a plausible claim for relief.” Id. (internal quotations omitted). In this case, Judge Andrews found, there was no factual support for the allegations of willfulness.


HSM Portfolio LLC v. Fujitsu Ltd., C.A. No. 11-770-RGA (D. Del. July 3, 2012).

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