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Chief Magistrate Judge Thynge recommends dismissal of joint infringement claim.

Chief Magistrate Judge Mary Pat Thynge recently issued a report recommending that a motion to dismiss a claim for joint infringement be granted.  Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, et al., C.A. No. 14-1006-RGA-MPT (D. Del. May 13, 2015).  Judge Thynge explained that “to survive a motion to dismiss the claim of joint infringement, a plaintiff must plead facts sufficient to allow a reasonable inference that various parties perform all of the claimed steps; and one party exercises the requisite ‘direction or control,’ such that performance of every step is attributable to the controlling party.”  Id. at 8.  Judge Thynge found that the plaintiff’s allegations were sufficient to support an inference that all steps claimed in the patents-in-suit were carried out by defendants and various third parties.  However, “[h]ere, plaintiff sets forth an unsupported proposition that Comcast and NBCU control or direct the third parties, despite conceding the issue of control and direction turns on whether the third parties had discretion to perform the claim limitations.”  Id. at 11.  In this case, Judge Thynge found that “plaintiff cannot plausibly allege the third parties were contractually obligated to perform all of the steps enumerated in plaintiff’s patents because the terms of the contract between defendants and the third parties are unknown to plaintiff.”  Id.  “Thus, it is merely possible—rather than plausible—that defendants control and direct the third parties.”  Id. at 12.

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