Judge Robinson Denies Several Motions to Dismiss but Indicates that She Might Consider Early Claim Construction
Judge Robinson recently issued a memorandum order in Cyberphone Systems, LLC v. Cellco Partnership, et al., C.A. Nos. 11-827-SLR through 11-835-SLR (D. Del. Apr. 30, 2012), denying various motions of certain defendants to dismiss the claims against them. Among these were motions based on the argument that, although CyberFone filed its complaints on the day before the America Invents Act took effect, these pre-AIA complaints violated Federal Rule of Civil Procedure 20 because they did not “allege joint infringement, or any relationships or common activities among the individual defendants.” Id. at 2. Judge Robinson initially noted that “severance, not dismissal, is the correct remedy for misjoinder.” She then refused to exercise her discretion to sever the claims. Id. at 2-3. Similarly, she refused to sever claims against cellular carriers from claims against cellular handset manufacturers based on the customer suit exception. Id. at 3-4.
Judge Robinson also denied several motions to dismiss “improper” infringement allegations, finding that they complied with Form 18, and denied several motions to dismiss that related to the adequacy of CyberFone’s direct infringement allegations. She stated: “[t]he court is not prepared to engage in the claim construction exercise at this stage of the proceedings, with no context whatsoever provided by discovery or a motion practice.” Id. at 4. “The court will discuss with the parties, however, the need for an early claim construction of dispositive limitations, once a full and fair exchange of fundamental documents has been accomplished.” Id. at 4 n.6.
Finally, Judge Robinson reaffirmed her recent decision in Walker Digital that “a defendant’s receipt of the complaint and decision to continue its conduct despite the knowledge gleaned from the complaint satisfies the requirements of Global-Tech [that the defendant have knowledge of the patent].” On this basis, she refused to dismiss various claims of indirect infringement. Id. at 6.