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Judge Richard Andrews Applies Twombly and Iqbal to Claims of Direct and Indirect Patent Infringement

Judge Andrews has continued to issue orders regarding the sufficiency of pleadings under Twombly and Iqbal in several recent patent infringement cases. We have previously covered several Judge Andrews orders regarding pleading standards, including IPLearn, LLC v. BeeLine Acquisition Corp., HSM Portfolio LLC v. Fujitsu Ltd., Real Time Social Inventions LLC v. CMI Marketing Inc., and IPVenture Inc. v. Lenovo Group Limited, et al. Judge Andrews recently considered similar motions to dismiss or amend direct and indirect infringement claims in three new orders, Pragmatus Telecom, LLC v. Ford Motor Co., C.A. No. 12-92-RGA (D. Del. Jul. 5, 2012); Chalumeau Power Sys. LLC v. Alcatel-Lucent, C.A. No. 11-1175-RGA (D. Del. Jul. 18, 2012); and Howard Foundation Holdings Ltd. v. Int’l Vitamin Corp., C.A. No. 12-35-RGA (D. Del. Jul 11, 2012).

Judge Andrews addressed direct infringement in Pragmatus, reiterating that compliance with Form 18 is sufficient to adequately plead direct infringement under In re Bill of Lading Transmission and Processing System Patent Litigation, 681 F.3d 1323 (Fed. Cir. 2012) (write-up at Patently-O). On this basis, Judge Andrews refused to dismiss claims of direct infringement. Pragmatus at 2.

But on indirect infringement, Judge Andrew granted motions to dismiss in Pragmatus and Chalumeau. In both cases, he found that insufficient facts were alleged to allow an inference that the allegations of indirect infringement were plausible: “The allegations of both forms of indirect infringement suffer from the bare bones nature of the complaint. Some facts would put some flesh on the bones, and might, or might not, make the allegations plausible. Until such facts are pled, however, the complaint fails to state a claim for indirect infringement.” Pragmatus at 2-3. Furthermore, “[b]oth induced infringement and contributory infringement require the defendant to know of the patent, and to know that the defendant’s actions are either inducing or contributing to another’s direct infringement. . . . [T]here are only insufficient factual assertions to support the legal conclusion of actual knowledge, and no factual assertions at all to support the legal conclusion of specific intent.” Chalumeau at 1-2. On this later issue of knowledge of the patent, Judge Andrews again stated that under Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011) (write-up at Patently-O), “[s]ervice of the original complaint gives the defendants actual notice of the patent’s existence. It might also make plausible the claim that the defendant has the knowledge that third parties who are selling its product are directly infringing the [patent-in-suit].” Chalumeau at 2-3; Pragmatus at 2-3.

Finally, Judge Andrews addressed allegations of willful infringement in Chalumeau and Howard. Here too, he found that the complaints at issue had not plausibly alleged that the defendants knew or should have known that their actions constituted infringement of a valid patent. Chalumeau at 3; Howard at 1. Moreover, in Howard, which involved a complaint against a customer of allegedly-infringing technology, Judge Andrews stated: “I do not think . . . that someone telling a manufacturer that it infringes a patent supports as a plausible inference that the manufacturer broadcasts the allegation to its customers.” Howard at 1 n.1.

Although Judge Andrews dismissed claims of indirect and willful infringement in Pragmatus and Chalumeau, he either did so without prejudice to amend “before the close of fact discovery should any of [the plaintiff’s] theories gather more factual support” or indicated that he would “not foreclose” the possibility of amendment after a Rule 16 conference. Pragmatus at 3; Chalumeau at 3. In Howard, despite concluding that the plaintiff had not adequately plead willfulness, he granted the plaintiff’s motion for leave to file a first amended complaint. Howard at 1 n.1.


Pragmatus Telecom, LLC v. Ford Motor Co., C.A. No. 12-92-RGA (D. Del. Jul. 5, 2012).

Chalumeau Power Sys. LLC v. Alcatel-Lucent, C.A. No. 11-1175-RGA (D. Del. Jul. 18, 2012).

Howard Foundation Holdings Ltd. v. Int’l Vitamin Corp., C.A. No. 12-35-RGA (D. Del. Jul 11, 2012).

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