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Judge Robinson considers adequacy of infringement allegations post-abrogration of Form 18 and post-Halo

Judge Robinson recently considered defendant’s motion to dismiss for failure to state a claim, applying Twombly and Iqbal under the amended Federal Rules abrogating Form 18 for pleading direct infringement, and post-Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S.Ct. 1923, 1932 (2016).   Dermafocus LLC v. Ulthera, Inc., No. 15-654-SLR (D. Del. Aug. 11, 2016).  Judge Robinson analyzed plaintiff’s claims to assess “plausibility,” noting that “it is logical to presume that a defendant has greater access to and, therefore, more information about its accused method.”  Id. at 4-5.  Judge Robinson declined to require more of a plaintiff, “[a]bsent specific guidance from the Federal Circuit directing the court to front-load the litigation process by requiring a detailed complaint in every instance[.]”  Id. at 5.

Judge Robinson concluded that plaintiff’s direct infringement allegations passed muster because they alleged defendant’s accused system was used in such a manner that infringed claim 1 of the patent-in-suit.  Id. at 5-6.  Defendant complained that “plaintiff did not specify ‘which particular combinations of components … allegedly infringe when used,’ nor did plaintiff ‘allege how all of the claimed method steps are performed.'”  Id. at 6.  But, Judge Robinson noted that it was not clear whether the “information demanded by defendant” was available to the public, therefore, “[u]nder these circumstances,” the Court concluded that plaintiff provided “reasonable notice of a plausible claim for direct infringement of at least” claim 1 of the patent in suit.  Id.  Regarding indirect infringement, Judge Robinson concluded that plaintiff failed to adequately allege pre-suit knowledge of the patent-in-suit.  Plaintiff alleged that the patent-in-suit was one of seven prior art references listed in a patent application for which defendant’s founder was a named inventor and applicant.  Id. at 8.  The patent-in-suit, however, did not come up again during prosecution of that application.  Id.  Judge Robinson, therefore, concluded that [a]lthough it is certainly conceivable that [the inventor] took note of the [patent-in-suit] a decade ago and shared his knowledge thereafter with others at his company, the court concludes that the allegations are neither likely nor reasonable; i.e., no plausible inference arises from the alleged facts that defendant had knowledge of the [patent-in-suit] in 2005.”  Id. at 8-9 (emphasis in original).  Judge Robinson also concluded that plaintiff’s allegations of post-suit willful infringement passed muster under Halo, although the Court granted the motion to dismiss as to “pre-complaint willfulness” given the failure to adequately plead pre-suit knowledge.  Id. at 11.  Although prior to Halo, the Court would have dismissed “allegations of willful infringement based only on post-complaint conduct,” [u]nder the less rigid standard announced in Halo . . . the court will allow plaintiff’s general allegations of willful infringement to withstand the motion to dismiss. Id. at 12.

Dermafocus LLC v. Ulthera, Inc., No. 15-654-SLR


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