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Judge Burke recommends partial dismissal, without prejudice.

Judge Christopher J. Burke recently issued a recommendation that a plaintiff’s complaint alleging direct and willful infringement be dismissed, without prejudice.  Mayne Pharma Int’l Pty Ltd. v. Merck & Co., Inc., et al., C.A. No. 15-438-LPS-CJB (D. Del. Dec. 3, 2015).  Reviewing the allegations against Form 18 (because defendant did not argue that Twombly/Iqbal applied under the amendments to the Federal Rules that took effect on December 1), Judge Burke found that the complaint adequately alleged infringement against the two U.S. defendants.  However, Judge Burke found that the allegation that a third (and non-U.S.) defendant manufactured and “injected” the infringing products “into the stream of commerce with knowledge that those products will be sold throughout the United States” was insufficient, since it was not clear from the allegations that the non-U.S. defendant actually imported the accused products into the U.S.  Judge Burke also “easily” found that the willfulness allegations were insufficient, because there were no facts supporting a willfulness claim.  Rather, the plaintiff simply alleged that “[u]pon information and belief, Defendants infringement has been with knowledge of the ’745 patent and has been willful.”

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