Chief Magistrate Judge Thynge recently issued a report and recommendation finding that a defendant’s Rule 12(b)(6) motion to dismiss should be granted. Judge Thynge first found that she need not take judicial notice of certain exhibits supplied by the defendant. The exhibits, copies of 3G cellular specifications, were relied on by the Plaintiff’s complaint, which alleges infringement based on the defendant’s practice of the 3G standard. Thus, the specifications were integral to the complaint and the plaintiff had actual notice of them. Therefore, judicial notice was not required. Network Managing Solutions, LLC v. AT&T Mobility, LLC, C.A. No. 16-295-RGA-MPT, Report and Recommendation at 10-11 (D. Del. Nov. 9, 2017).
Turning to the sufficiency of the pleading, Judge Thynge found that the plaintiff “alleges sufficient facts to state a plausible claim because, by showing what the standards require, the standards may be compared with the patents to determine whether defendant, in following these standards, infringes.” Id. at 12. The 3G standards on which the plaintiff’s complaint relied, however, were out of date, ranging from 2009 to 2010 and post-dated by many newer releases of each standard. Accordingly, Judge Thynge found that because “there have been substantive changes to the specifications,” the plaintiff “should be granted leave to amend the complaint to indicate the specific standards defendant allegedly practices that result in infringement.” Id. at 12-13.