Magistrate Judge Christopher J. Burke recently recommended the dismissal of a plaintiff’s induced infringement and willful infringement claims, with leave to amend. McRO, Inc. v. Rockstar Games, Inc., C.A. No. 12-1513-LPS-CJB; v. Take-Two Interactive Software, Inc., C.A. No. 12-1517-LPS-CJB; v. 2K Games, Inc., C.A. No. 12-1519-LPS-CJB (D. Del. Mar. 17, 2014). With respect to indirect infringement, the Court found that the allegations of direct infringement by unidentified “game developers” was sufficient, but that the allegation that the defendants had knowledge that these game developers were using the patented methods to create the games developed for defendants was insufficient. Judge Burke found that the indirect infringement claim really was “little more than a rephrasing of a portion of the language of Claim 1 of the ‘576 patent and ‘278 patent[.]” “It is really not much different from a bland statement that an entity has taken some unspecified action to practice a ‘method claimed’ in the patents-in-suit. Just as important, the complaints do not really contain any further more specific, concrete factual allegations as to what particular type of actions the developers have actually taken, or what kind of development they have actually engaged in, that are plausibly asserted to amount to the use of the claimed methods.” Id. at 11. As a result, the complaint failed to allege post-suit knowledge of infringing conduct by the game developers that could support an induced infringement claim.
Judge Burke recommended denial of the defendant’s motion to dismiss direct infringement claims, explaining that “Form 18 does not require a plaintiff to list specific accused products, nor to specify what functionality infringed, or any facts that show how [the defendant] performs even one step of a claimed method.” Id. at 7 (internal quotation marks omitted). However, because the allegations “do not plead sufficient specific factual matter about what Defendants or others were actually doing in order to plausibly indicate that, at any point, Defendants were or should have been aware that they were committing patent infringement[,]” Judge Burke recommended denial of the willful infringement claims.