Judge Andrews recently issued an order addressing nine motions to dismiss pending across five cases filed by plaintiff Callwave Communications. Judge Andrews found that the complaints were sufficient under Form 18 and withstood motions to dismiss as to direct infringement claims even though they contained “a lot of surplus and in appropriate verbiage” that confused the types of claims that were asserted. Accordingly, Judge Andrews denied motions to dismiss the direct infringement claims. Callwave Comms. LLC v. AT&T Mobility LLC, et al., C.A. No. 12-1701-RGA to 12-1704-RGA, 12-1788-RGA, Order at 4-5 (D. Del. Jan. 28, 2014). Judge Andrews also considered motions to dismiss indirect infringement claims. The Court determined that the allegations of indirect infringement did not “contain sufficient factual information to be plausible” because “[i]ndirect infringement claims have to meet a more exacting standard than Form 18 . . . [and the complaints did] not allege any basis for knowledge prior to the filing of the original complaints . . . [were] quite conclusory as to whom the direct infringers are supposed to be . . . [and made it] possible, although not certain, that Plaintiff” intended to allege an intent to cause direct infringement. Thus, Judge Andrews granted the motions to dismiss indirect infringement claims but gave the plaintiff leave to file a second amended complaint including indirect infringement claims within two weeks. Id. at 5.
Turning to willful infringement, Judge Andrews’ order contains a few interesting points. Judge Andrews explained that “as early as 2008, Google had knowledge of one of the patents (the ‘970 patent) as evidenced by citation to the patent in multiple Information Disclosure Statements relating to Google patents.” His Honor found, however, that “[t]his solitary piece of information is insufficient to support an allegation of willfulness. Thus, I will grant all motions to strike willfulness claims.” Id. at 4.
Judge Andrews also explained that other than this Google-specific situation, “Plaintiff alleges willfulness on no basis other than the fact that an earlier version of the suit was served on a defendant before the present amended complaint was filed.” His full discussion of this point was as follows:
While I previously had allowed such a pleading, see Ip Venture Inc. v. Lenovo Group, Ltd, 2013 WL 126726 (D.Del. Jan. 8, 2013), I have now thought better of that decision. Other judges of this Court have split on this issue. See, e.g., Execware, LLC v. Staples, Inc., 2012 WL 6138340, at *7 (D.Del. Dec. 10, 2012) (Magistrate Judge Fallon) (dismissing willfulness allegation); Aeritas, LLC v. Alaska Air Group, Inc., 893 F.Supp.2d 680, 685 (D. Del. 2012) (Judge Robinson) (same); contra, Clouding IP, LLC v. Amazon. com, Inc., 2013 WL 2293452, at *4-5 (D.Del. May 24, 2013) (Judge Stark) (allowing willfulness allegation). Judge Stark stated that there was not much difference conceptually between sending a letter pre-suit and the filing of a complaint to put an alleged infringer on notice, and I agree with the logic of that statement. The pre-suit letter does, however, offer a benefit – the patent holder and the asserted infringer may exchange information, and the asserted infringer might then take a license, or the patent holder might learn of reasons why suit should not be filed. There is a benefit to society if the matter is resolved without a suit. Once a suit is filed, however, the only thing a willfulness allegation in an amended complaint does is allow the Plaintiff to raise the stakes. Given what the Federal Circuit has said about an injunction generally being the preferred remedy for post-filing “reckless” conduct, and recognizing that some plaintiffs- generally, non-competitors- may not be able to seek an injunction, it seems to me the better course is generally not to allow allegations of willfulness based solely on conduct post-dating the filing of the original complaint.
Id. at 3.