Judge Sue Robinson recently ruled on a motion to dismiss claims of indirect infringement, willful infringement, and joint infringement under Twombly and Iqbal, finding that the plaintiff had adequately plead indirect infringement but not willful or joint infringement. Aeritas, LLC v. Alaska Air Group, Inc., C.A. No. 11-967-SLR, at 1-2 (D. Del. Sep. 28, 2012).
Considering the defendant’s motion to dismiss the amended complaint, Judge Robinson first addressed indirect infringement. She noted that the plaintiff had alleged “induce[d] infringement, of one or more claims of the [patents-in-suit], with specific intent that [the defendant’s] software be used by . . . customers to infringe the [patents-in-suit].” The plaintiff also alleged contributory infringement by the defendant “offering its products to its customers, which constitute a material part of the invention and is not a staple article or commodity of commerce suitable for substantial non-infringing use.” Therefore, “having identified the products at issue for purposes of its direct infringement claims, the court conclude[d] that [the plaintiff had] satisfied the pleading requirements of Twombly and Iqbal with respect to the allegations of indirect infringement found in the amended complaint.” Id. at 5. In making this finding, Judge Robinson reiterated her position in Walker Digital, LLC v. Facebook, Inc., 2012 WL 1129370 (D.Del. Apr. 4, 2012) that a plaintiff meets the requirements of Twombly and Iqbal if it “identif[ies] the patent-at issue and the allegedly infringing conduct, as well as the notice afforded by service of the original complaint and the apparent decision to continue the inducement post-service.”
Turning to the question of willful infringement, Judge Robinson noted that the plaintiff’s amended complaint simply “reserve[d] the right to request [a willful infringement] finding at the time of trial” and alleged that “Defendant’s acts of infringement have been willful under 35 U.S.C. § 284 since at least the date it was served with the Complaint.” In the past, Judge Robinson has “allowed general allegations of willful infringement to withstand motions to dismiss and . . . read Seagate as not foreclosing the consideration of conduct after the complaint is filed.” Nevertheless, in this case, she found that “mere notice of the charge of infringement gleaned from service of the complaint [does not] pass muster for a willfulness claim under Rule 8 . . . [as] a patentee must not only demonstrate that the accused infringer knew about the patent (as for indirect infringement), but ‘acted despite an objectively high likelihood that its actions constituted infringement.’” Judge Robinson determined that the allegations of willful infringement did not pass muster under Rule 8 because of “the apparent recognition by [the plaintiff] that it had no good faith basis to assert willful infringement . . . [and] the fact that the burden to prove willful infringement includes more than mere knowledge of the patent.” She noted, however, that “should discovery reveal evidence of willful infringement, [the plaintiff] may approach the court for permission to amend its pleadings at that juncture.” Id. at 7-8.
Finally, Judge Robinson found that the plaintiff had failed to sufficiently plead joint infringement. She explained that “the phrase ‘[t]o the extent that Defendant is jointly infringing . . . it is the mastermind of the infringement’ simply sets forth a proposition, not facts.” She therefore refused to “characterize the speculative language used in the amended complaint as ‘enough factual matter’ that, when taken as true, ‘state[s] a claim for relief that is plausible on its face,’” as required by Twombly. Id. at 9.
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