Chief Judge Gregory M. Sleet recently denied several motions to dismiss direct, induced, contributory, and willful infringement claims, finding that the plaintiff’s factual allegations were sufficient to survive under Rule 12(b)(6). In re: Bear Creek Techs. Inc. (‘722 Patent Litig.), MDL No. 12-2344 (GMS) (D. Del. Sept. 27, 2012). The Court explained with regard to the direct infringement claims that “the plaintiff’s complaints meet the Form 18 requirements by: invoking jurisdiction under 28 U.S.C. § 1338(a); stating its ownership of the patent-in-suit; alleging that the defendants have infringed the patent by ‘making, selling, and using [the device] embodying the patent’; putting the defendants on notice as to the general scope/nature of their infringement; and demanding an injunction and damages.” Id. at 2 n.5 (alteration in original). The Court rejected the argument that the complaints were insufficient for failure to identify which products were alleged to infringe, and explained that “[i]t is well-established that, ‘[w]hile it is not necessary to identify specific products,’ it is necessary for a complaint at least to ‘mimic Form 18 and identify a general category of products.’” Id. Here, the complaints included allegations regarding the defendants’ “VoIP products, systems[,] or services[,]” and identified certain trade names associated with the accused services. Id. at 3 n.5.
The Court also rejected the defendants’ arguments that plaintiff’s literal and doctrine of equivalents infringement claims were insufficient for failure to meet the pleading requirements of Twombly and Iqbal. Id. The Court explained, “as the Federal Circuit has made clear, direct infringement—and by extension, its doctrine of equivalents cause of action—must simply comply with the Form 18 elements to meet the Twombly pleading standard.” Id. (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed. Cir. 2007).
Next, the Court rejected the defendants’ argument that the plaintiff’s induced and contributory infringement claims were insufficient for failure to identify specific third parties. The Court explained, “identifying third parties who participated in allegedly infringing activities is a proper question for discovery[,]” and found sufficient the plaintiff’s allegations that “defendants have induced ‘one or more certain affiliates, one or more third parties, and plural subscribers . . . each regarding the VoIP Services subject to [the instant] clamis[.]” Id. (citations omitted). The Court further agreed with the plaintiff that it sufficiently plead knowledge by including in its complaints the allegation that it provided each defendant with a copy of the patent-in-suit in March 2011. Id. For the same reason, the Court found that the plaintiff’s complaints “sufficiently plead the required elements of willful infringement” since its willful infringement claims were not asserted until after March 2011.