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Judge Andrews: Allegations directed at “prospective products” survive 12(b)(6) motion.

In a recent memorandum opinion, the Court held that a plaintiff’s allegations that a defendant’s “prospective products” “infringe or will infringe” and “are or will be based on [a plaintiff’s] trade secrets” stated a claim for relief. XpertUniverse, Inc. v. Cisco Systems, Inc., C.A. No. 09-157-RGA (D. Del. Jan. 20, 2012). The Court noted, however, that it was a “close[] issue,” and explained: “If the products are ones that have already been made or used as of the date the [Complaint] was filed, I think a claim upon which relief can be granted has been stated. If a product is in development but has not reached a stage where it has been made or used, there is no claim upon which relief can be granted.” Id. at 7. Accordingly, the Court explained that although the plaintiff’s claims would not be dismissed, the Court would “treat any products that have not infringed as of [the date the Complaint was filed] as not being alleged as an infringing product in the [Complaint].” Id. The Court further held that a plaintiff’s infringement allegations identifying products not yet known to the plaintiff that feature “similar functionality” to the specifically accused products sufficiently stated a claim for relief. Id.


XpertUniverse, Inc. v. Cisco Systems, Inc., C.A. No. 09-157-RGA (D. Del. Jan. 20, 2012).

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