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Magistrate Judge Thynge recommends denial of motion to dismiss which effectively sought early claim construction.

Magistrate Judge Mary Pat Thynge recently issued a report recommending the denial of’s and its subsidiaries’ motions to dismiss claims relating to mobile applications used to read barcodes. Hand Held Prods., Inc. v., Inc., et al., C.A. No. 12-768-RGA-MPT (D. Del. Feb. 6, 2012). The defendants moved to dismiss the claims as falling short of the requirements imposed by Form 18, as well as the Twombly/Iqbal plausibility standard, id. at 3-4, and further argued that because their applications do not “selectively capture” barcodes, and instead only “capture and decode barcode information,” they could not be found liable for indirect infringement. Id. at 2.

After quickly disposing of the defendants’ argument that the direct infringement claims were insufficient, id. at 9-11, the Court explained that the complaint stated a plausible claim that each defendant also induced infringement based on their encouragement of customers to download and use infringing barcode-reading applications. Id. at 11-14. The Court added that the complaint stated a plausible claim of contributory infringement by alleging that each defendant “sells or offer to sell a mobile application that is a material part of the ‘088 patent[,]”which, assuming the truth of all well-pled allegations, has no substantial noninfringing use. Id. at 14-15.

Finally, the Court recommended the denial of the defendants’ motion to dismiss the plaintiff’s willfulness claim, finding that “[s]ufficient facts are alleged to infer Defendants knew there was an objectively high likelihood that their continued actions would constitute infringement.” Id. at 16.

In conclusion, the Court emphasized that the defendants’ motion to dismiss appeared, in reality, to be an attempt to “surreptitiously have the court conduct claim construction as part of its analysis under Rule 12(b)(6).” Id. at 16-17. The Court would not do this, of course, and explained that “[t]he analysis required is not to resolve disputed facts, nor decide the merits; rather, the examination is limited to testing the sufficiency of the complaint.” Id. at 17.

Hand Held Prods., Inc. v., Inc., et al., C.A. No. 12-768-RGA-MPT (D. Del. Feb. 6, 2012). by

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