In a recent Order, Judge Richard G. Andrews denied defendants’ motions to dismiss in three related actions. Blackbird Tech LLC v. LEDWholesalers.com Inc. et al., C.A. Nos. 15-60, 15-61, 15-63-RGA (D. Del. Dec. 3, 2015). As Judge Andrews explained, “[t]he main thrust of the motions is to assert that the complaints do not plausibly assert infringement, because they attach a copy of the patent and web shots of the accused products (which appear to be T8 LED tube lights), and it is clear that the pictured products cannot infringe any claim of the asserted patent.” Id. at 1-2. The parties disputed the meaning of certain claim terms, but Judge Andrews found that the “the terminology of the patent claim (while perhaps clear to a POSITA) is not presently clear to me,” and observed this action “seems like a poor candidate for resolution on a motion to dismiss.” Judge Andrew thus denied the motions to dismiss. Id. at 2.
However, Judge Andrews explained that “I am nevertheless concerned about whether I am allowing what might be frivolous litigation to go forward.” Id. at 2. Judge Andrews therefore directed plaintiff “to provide detailed claim charts to each of the three Defendants charting its infringement theories for all asserted claims against at least one of each Defendant’s accused T8 LED tube lights.” Id. at 3. Judge Andrews further directed “[t]he parties . . . to meet-and-confer after the claim charts are filed,” explaining that the parties should discuss, among other things, “whether they can jointly agree upon a way to present the case to me for early resolution.” Id. Judge Andrews ordered the parties to submit a joint status report three business days before the Rule 16 scheduling conference “regarding any agreements or proposals for a means for early resolution of these cases.” Id.