CHARLENE EDWARDS HONEYWELL, District Judge.
This cause comes before the Court upon Defendant Casio Computer Co., Ltd.'s
Brandywine filed its Complaint in this action on February 21, 2012, alleging that Casio infringes upon U.S. Patent Numbers 5,719,922 ("`922 Patent") and 6,236,717 ("'717 Patent") in violation of 35 U.S.C. § 271(a), (b), and (c) (Doc. 1). Brandywine is a patent holding limited liability company with its principal place of business in Villanova, Pennsylvania. Id. ¶ 2. Casio is a Japanese corporation whose principal place of business is in Tokyo, Japan. Id. ¶ 3. Plaintiff alleges that Casio has at least one office within the Middle District of Florida. Id.
On February 17, 1998, the '922 Patent, entitled "Simultaneous Voice/Data Answering Machine," was legally issued by the United States Patent and Trademark Office ("USPTO") to Gordon Bremer and Richard Kent Smith (collectively "the '922 Inventors"). The '922 Patent has subsequently been assigned to Plaintiff. Id. ¶ 10. Casio has had actual knowledge of the '922 Patent, and its alleged infringement of that patent, since at least September 29, 2011, when Casio was served with Plaintiff's original complaint in Brandywine Communications Technologies, LLC v. Apple, Inc., et. al, Case 6:11-cv-1512-36DAB (M.D.Fla.2011) (the "Original Action"). Id. ¶ 11. Casio also has had knowledge since December 13, 2011, when Plaintiff sent a letter providing notice of Casio's alleged infringement of the '922 Patent. Id.
Plaintiff alleges that Casio has and continues to directly and indirectly infringe on one or more claims of the '922 Patent "by making, using, selling and offering for sale, services and products that infringe and/or perform processes that infringe one or more claims of the '922 Patent." Id. ¶ 12. The Casio products and services that Plaintiff accuses of infringing the '922 Patent include Casio G'zOne Boulder, G'zOne Type-S, G'zOne Type-V, SH-G1000, SH P3000, G'zOne Commando, G'zOne Ravine, G'zOne Brigade, and G'zOne Rock (collectively "the '922 Accused Products"). Id. ¶ 13.
Plaintiff further alleges that since at least September 29, 2011, Casio has committed and continues to commit acts of contributory infringement of at least
Additionally, Plaintiff alleges that Casio has induced and continues to induce others to infringe at least claims 1 and 7 of the '922 Patent under 35 U.S.C. § 271(b), by: "actively and knowingly aiding and abetting others to infringe, including, but not limited to consumers whose use of such services and products constitutes direct infringement of claim 1 of the '922 Patent", and "its service providers, such as [Verizon], whose use and sale of such services constitutes direct infringement of claim 7 of the '922 Patent." Id. ¶¶ 18, 19. Casio's alleged aiding and abetting includes advertising, instructing, and/or supporting the consumers' directly infringing use, and marketing and promoting the sale of Casio's Accused Services and Products by others, such as Verizon. Id.
Brandywine alleges it has and continues to suffer damages due to Casio's infringement, contributory infringement, and inducement of infringement of the '922 Patent. Id. ¶ 20.
On May 22, 2001, the '717 Patent, entitled "Simultaneous Voice/Data Answering Machine," was legally issued by the USPTO to Gordon Bremer and Richard Kent Smith (collectively "the '717 Inventors"), and has subsequently been assigned to Plaintiff. Id. ¶ 22. Casio has had actual knowledge of the '717 Patent, and its alleged infringement of that patent, since at least September 29, 2011, when Casio was served with Plaintiff's complaint in the Original Action. Id. ¶ 23. Also, Casio has had knowledge since December 13, 2011, when Plaintiff sent a letter providing notice of Casio's infringement of the '717 Patent. Id. Plaintiff alleges that Casio has and continues to directly and indirectly infringe on one or more claims of the '717 Patent by making, using, selling and offering for sale, services and products that infringe and/or perform processes that infringe one or more claims of the '717 Patent. Id. ¶ 24. Plaintiff accuses the '922 Accused Products of also infringing upon the '717 Patent. Id. ¶ 25.
Brandywine alleges that Casio has committed joint infringement of the '717 Patent, because Casio and its service providers, including Verizon, have, acting jointly, infringed and continue to infringe on at least claim 15 of the '717 Patent. Id. ¶ 26. Plaintiff alleges that Casio's continued infringement despite its knowledge of the '717 Patent and Plaintiff's accusations of infringement have been objectively reckless and willful. Id. ¶ 27.
Plaintiff further alleges that since at least September 29, 2011, Casio has committed and continues to commit acts of contributory infringement of at least claims 1 and 15 of the '717 Patent in violation of 35 U.S.C. § 271(c), because Casio has made, used, sold, offered to sell, and/or imported, or continues to make, use, sell, offer to sell services and products including the '717 Accused Products. Id. ¶¶ 28-29. Plaintiff argues that the '717 Accused Products have no substantial non-infringing
Additionally, Plaintiff alleges that Casio has induced and continues to induce others to infringe at least claims 1 and 15 of the '717 Patent under 35 U.S.C. § 271(b), by actively and knowingly aiding and abetting others to infringe, including, but not limited to consumers whose use of such services and products constitutes direct infringement of claim 1 of the '717 Patent, and its service providers, such as Verizon, whose use of such services constitutes direct infringement of claim 15 of the '717 Patent. Id. ¶¶ 30-31. Casio's alleged aiding and abetting includes advertising, instructing, and/or supporting the consumers' directly infringing use, and marketing the sale of Casio's Accused Services and Products by others, such as Verizon. Id.
Brandywine alleges it has and continues to suffer damages due to Casio's infringement, contributory infringement, and inducement of infringement of the '717 Patent. Id. ¶ 31.
On September 13, 2011, Plaintiff filed a complaint in the Original Action, asserting infringement of the '922 and '717 Patents against Casio and twenty-three other defendants. See Brandywine Communications Technologies, LLC v. Apple et. al, 6:11-cv-1512-Orl-35DAB, at Doc. 1. The Court severed the case into separate actions. Id. at Doc. 4. Consequently, Plaintiff filed its Complaint in this action on February 21, 2012 (Doc. 1). The instant Motion to Dismiss followed.
Although the substantive law of the Federal Circuit governs patent cases, courts apply the law of the regional circuit when evaluating procedural issues. See In re Bill of Lading, 681 F.3d 1323, 1331 (Fed. Cir.2012) ("Because it raises a purely procedural issue, an appeal from an order granting a motion to dismiss for failure to state a claim upon which relief can be granted is reviewed under the applicable law of the regional circuit."); In re TS Tech USA Corp., 551 F.3d 1315, 1320 (Fed. Cir.2008) ("Because this petition does not involve substantive issues of patent law, this court applies the laws of the regional circuit in which the district court sits."); McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1355-56 (Fed.Cir.2007) ("A motion to dismiss for failure to state a claim upon which relief can be granted is a purely procedural question not pertaining to patent law. Thus, on review we apply the law of the regional circuit.").
To survive a motion to dismiss, a pleading must comply with Fed.R.Civ.P. 8(a)(2) by including a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Bell Atlantic Corp., et al. v. Twombly, et al., 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere naked assertions, too, are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "A claim has facial
In its Motion to Dismiss, Casio argues that the Court should dismiss Plaintiff's claims of indirect infringement pursuant to 35 U.S.C. § 271(b), contributory infringement pursuant to 35 U.S.C. § 271(c), willful infringement, and joint infringement for failure to state a claim upon which relief may be granted. Doc. 14, pp. 10-26.
A party is liable for induced infringement if it "actively induces infringement of a patent." 35 U.S.C. § 271(b). The Eleventh Circuit has determined that to prove inducement of infringement, a patentee must demonstrate that the accused infringer had the intent to cause the acts which constitute the infringement. Mee Indus. v. Dow Chemical Co., 608 F.3d 1202, 1215 (11th Cir.2010). As a threshold matter, the parties dispute the requirements for pleading induced infringement, specifically whether compliance with Form 18 of the Federal Rules of Civil Procedure suffices at the pleading stage, and if Brandywine must demonstrate the alleged infringer had pre-suit knowledge of the patent and intent to cause others to infringe upon the patent. Doc. 14, pp. 5-6; Doc. 23, pp. 4-12.
The Federal Circuit's recent opinion in In re Bill of Lading provides persuasive authority on the pleading requirements for induced infringement. In re Bill of Lading 681 F.3d 1323, 1350-51 (Fed.Cir.2012). The Federal Circuit concluded that whereas fulfilling the requirements in Form 18 is sufficient to plead a claim of direct infringement, "Form 18 should be strictly construed as measuring only the sufficiency of allegations of direct infringement, and not indirect infringement" and a court must look to Supreme Court precedent for guidance regarding pleading requirements for claims of indirect infringement. Id. at 1336-37. Specifically, to state a claim for induced infringement, a plaintiff must affirmatively plead "facts plausibly showing that [Defendants] specifically intended their customers to infringe the [patent] and knew that the customer's acts constituted infringement." Id. at 1339. Moreover, the Supreme Court has clarified that induced infringement requires "knowledge that the induced acts constitute patent infringement." Global-Tech Appliances, Inc. v. SEB S.A., ___ U.S. ___, 131 S.Ct. 2060, 2068, 179 L.Ed.2d 1167 (2011); DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1306 (Fed.Cir. 2006) ("[I]nducement requires that the alleged infringer knowingly induced infringement and possessed specific intent to encourage another's infringement.").
Brandywine maintains that the Federal Circuit's opinion in In re Bill of Lading is merely persuasive authority, and that "[t]he law of this Circuit is clear: the sufficiency of an indirect infringement claim is judged according to the same standard as direct infringement claims, which only need to comply with the minimal
In CBT Flint, after acknowledging that the Eleventh Circuit has not decided whether Twombly has altered pleading standards in the patent context, the court finds that though Form 18 "only provides a model for pleading direct infringement, there is no principled reason, at least not one advanced by the Defendant, for requiring more factual detail when the claim is one for contributory infringement." CBT Flint Partners, 529 F.Supp.2d at 1380. However, the CBT Flint court was motivated to accept plaintiff's limited complaint in part because of the Northern District of Georgia's extensive patent rules requiring "plaintiffs to disclose a great deal of extremely detailed information" early in a case. Id. at 1380-81. The Aspex Eyewear court found that plaintiff's allegation of inducement infringement was sufficient under the pleading standards. 2010 WL 2926511, *2. Whereas the Aspex plaintiff alleged that two specific defendants were aiding and abetting infringement because the identified eyewear was being sold under their brand name, in this action Brandywine makes a more ambiguous allegation, and provides less detail. See Doc. 1, ¶¶ 18, 30.
A claim for induced infringement requires that the defendant "actively induces" infringement, which "requires knowledge of the existence of the patent that is infringed." Global-Tech, 131 S.Ct. at 2068.
The weight of authority addressing the knowledge required for indirect infringement, especially following the Supreme Court's decision in Global-Tech, requires a plaintiff to allege that defendant had presuit knowledge of the patents-in-suit. Xpoint Technologies, Inc. v. Microsoft Corp., 730 F.Supp.2d 349, 357 (D.Del.2010) (dismissing claims of indirect infringement because "knowledge after filing of the present action is not sufficient for pleading the requisite knowledge for indirect infringement"); Mallinckrodt, Inc. v. E-Z-Em Inc., 670 F.Supp.2d 349, 354 n. 1 (D.Del.2009) ("The Court is not persuaded by Plaintiffs' contention that the requisite knowledge can be established by the filing of Plaintiff's Complaint."); Aguirre v. Powerchute Sports, LLC, 2011 WL 2471299, *3 (W.D.Tex.2011) ("To the extent Aguirre relies on knowledge of Aguirre's patent after the lawsuit was filed, such knowledge is insufficient to plead the requisite knowledge for indirect infringement.").
Additionally, in Zamora Radio, LLC v. Last.FM, Ltd, the court, in granting summary judgment on the claim of induced infringement, concludes that there could be no indirect infringement because "[plaintiff] has offered no evidence that Defendants had any pre-suit knowledge of the '399 Patent." Zamora Radio, LLC v. Last.FM, Ltd., 758 F.Supp.2d 1242, 1257 (S.D.Fla.2010). Brandywine's argument that Zamora is inapplicable precedent because the court evaluates induced infringement upon a motion for summary judgment, is unpersuasive. Doc. 23, p. 6. Indeed, the Zamora court held that plaintiffs cannot establish induced infringement without demonstrating pre-suit knowledge of the patent-in-suit. Zamora, 758 F.Supp.2d at 1257. Here, Brandywine has not even alleged such knowledge, and therefore could not establish the required
In its response, Plaintiff does not cite any case within the Eleventh Circuit finding that knowledge of the patent can be acquired with the filing of a complaint.
Brandywine argues, in the alternative, that it does allege Casio's pre-suit knowledge of the patents-in-suit. Doc. 23, pp. 7-8. Brandywine's argument is that because it filed a suit against Casio and twenty-three other defendants in the Original Action on September 29, 2011, and following the Court's severance Order filed the operative Complaint against Casio, that Casio had knowledge of the patents and alleged infringement at least as of September 29, 2011. Doc. 23, p. 7; see Doc. 1, ¶¶ 11, 23. This argument is unpersuasive. Brandywine cannot avoid the pre-suit knowledge requirement by relying on either the Original Action or letters sent to Casio during the lawsuit, when the parties were already disputing Casio's alleged infringement.
Having concluded that compliance with Form 18 is insufficient to plead indirect infringement, and that a plaintiff must allege pre-suit knowledge of the patent-in-suit to establish the scienter required for indirect infringement, it is evident that Brandywine fails to adequately plead induced infringement. In re Bill of Lading, 681 F.3d at 1339; Global-Tech Appliances,
Brandywine has not alleged either knowledge of the patents-in-suit before the litigation, or facts plausibly showing that Casio specifically intended their customers to infringe the patents and knew that their customer's acts constituted infringement. See In re Bill of Lading, 681 F.3d at 1339; Global-Tech, 131 S.Ct. at 2068. The Court agrees with Casio that Brandywine's conclusory allegations that Casio "actively and knowingly" induced infringement are inadequate to support the element requiring intent and active inducement. Doc. 14, pp. 10-13; see Doc. 1, ¶¶ 18, 19, 30, 31; see also Digitech Information Sys., Inc. v. Ally Financial, Inc., 2011 WL 3875407, *4 (M.D.Fla.2011) (finding that pleading the phrase "actively induces others to infringe," alone, is conclusory when pleading induced infringement).
Contributory infringement occurs if a party sells or offers to sell a material or apparatus for use in practicing a patented process, and that "material or apparatus" is material to practicing the invention, has no substantial non-infringing uses, and is known "to be especially made or especially adapted for use in the infringement of such patent." 35 U.S.C. § 271(c); In re Bill of Lading, 681 F.3d at 1337; Lucent Techs. v. Gateway, Inc., 580 F.3d 1301, 1320 (Fed. Cir.2009). In Global-Tech, the Supreme Court clarified that "§ 271(c) requires knowledge of the existence of the patent that is infringed." Global-Tech, 131 S.Ct. at 2068. In addition to pleading requisite knowledge of the patent-in-suit at the time of infringement, a claim for contributory infringement must plead acts allowing an inference that the components sold or offered have no substantial non-infringing uses. In re Bill of Lading, 681 F.3d at 1337; Cross Med. Prods., Inc. v. Medtronic
Casio argues that Brandywine's claims of contributory infringement must be dismissed for failure to plead a claim upon which relief can be granted. Doc. 14, pp. 14-19; Fed.R.Civ.P. 12(b)(6). First, because Plaintiff failed to allege that Casio had pre-suit knowledge of the patents-in-suit, Casio states that it could not have known that its products were patented and infringing. Id. at 17 (citing Aro Mfg. Co., Inc. v. Convertible Top Replacement Co., 377 U.S. 476, 488, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964)). Second, Casio maintains that Plaintiffs have not pled that its Accused Products constitute components that are "especially adapted to work in a system or carry out a certain method." Id. at 15-17; 35 U.S.C. § 271(c). Third, Casio argues that Plaintiff has not sufficiently alleged that its Accused Products "have no substantial non-infringing uses". Id. at 18-19; Doc. 1, ¶¶ 16, 28. Brandywine maintains that its contributory infringement claims are sufficient. Doc. 23, pp. 10-12. The Court will address each contested component of Plaintiff's claim of contributory infringement.
First, the statute provides that an accused infringer must know that the product is designed to infringe a patent, which requires a defendant to have knowledge of the patent. 35 U.S.C. § 271(c); Global-Tech, 131 S.Ct. at 2067-68 (noting that "knowledge of the patent" has long been a requirement); Aro Mfg. Co., Inc., 377 U.S. at 488, 84 S.Ct. 1526 ("§ 271(c) does require a showing that the alleged contributory infringer knew that the combination for which his component is especially designed was both patented and infringing."). As discussed with respect to induced infringement, Global-Tech's holding that knowledge is required for indirect infringement is only meaningful if such knowledge is alleged prior to receipt of a complaint.
In addition to lacking the critical scienter, Casio argues that Plaintiff fails to allege that it sells anything that is "material" to a patented invention, and thus its contributory infringement claim should be dismissed. Doc. 14, p. 16; 35 U.S.C. § 271(c). Casio maintains that the formulaic recitation in the Complaint that Casio's Accused Products "have no substantial non-infringing uses and are especially adapted to work in a system or carry out a method claimed in the [patents-in-suit]" is insufficient to state a claim of contributory infringement. Id. at pp. 15-18; Doc. 1, ¶¶ 16-17, 28-29. Indeed, Brandywine does not allege that Casio sells anything that is "material" to an identified patented invention: it alleges only that "Casio has made, used, sold, offered to sell, and/or imported or continues to make, use, sell services and products including Casio Accused Services
Third, Casio maintains that simply stating that its Accused Products have no substantial non infringing uses, without more, fails to satisfy the federal pleading standards or support a claim for contributory infringement. Id. at ¶¶ 16, 17, 28, 29; Doc. 14, pp. 16-17; Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. As Casio argues, the products Brandywine identifies as infringing are mobile phones, for which it seems implausible that there exists no substantial non-infringing use. Doc. 14, p. 7; see In re Bill of Lading, 681 F.3d at 1338 ("[f]or purposes of contributory infringement, the inquiry focuses on whether the accused products can be used for purposes other than infringement") (emphasis in original). In response, Brandywine argues that its short and plain statements alleging contributory infringement are permissible under Eleventh Circuit law. Doc. 23, p. 11. However, because the cases Brandywine cites fail to discuss the adequacy of an allegation of no substantial non-infringing uses, this argument is unpersuasive. See Aspex Eyewear, 2010 WL 2926511, *2 (S.D.Fla.2010) (affirming that a plaintiff must demonstrate specific intent for induced infringement, but providing no analysis about the Circuit's standard for pleading no substantial non-infringing uses); Mesh Comm, LLC v. EKA Sys., Inc., 2010 WL 750337 (M.D.Fla.2010) (sustaining plaintiff's infringement allegations without discussion of allegation of no substantial non-infringing uses).
Given the Court determines the sufficiency of an allegation by reviewing only the Complaint, Brandywine's explanation of its vague allegations of contributory infringement in its Response will not be considered. See Speaker v. U.S. Dept. of Health and Human Servs. Centers for Disease Control, 623 F.3d 1371, 1379 (11th Cir.2010). The Court agrees that Brandywine has not identified what Casio "material or apparatus" is material to practicing an invention, has no substantial non-infringing uses, and is known "to be especially made or especially adapted for use in the infringement of such patent." 35 U.S.C. § 271(c); In re Bill of Lading, 681 F.3d 1323 at 1337. Additionally, Brandywine has not alleged Casio's pre-suit knowledge of the patents-in-suit, and has implausibly concluded that Casio's Accused Products have no substantial non-infringing uses. Therefore, Brandywine's claims of contributory infringement of the '922 and '717 Patents will be dismissed.
The Federal Circuit has clarified the standard for joint infringement, which occurs when a method claim is directly infringed by the joint actions of several parties. In BMC Resources, Inc. v. Paymentech, L.P., the Federal Circuit recognized the tension between the fact that direct infringement requires a party perform every step of a claimed method, and the rule that "a defendant cannot thus avoid liability for direct infringement by having someone else carry out one or more of the claimed steps on its behalf" 498 F.3d 1373, 1379 (Fed.Cir.2007); 35 U.S.C. § 271(a). The Federal Circuit held that where the actions of several parties combine to perform every step of a claimed method, a party is liable for joint infringement only where that party exerts control and direction over the entire process such that every step is attributable to the controlling party. Id., at 1380-81; Muniauction,
Doc. 1, ¶ 14.
In its Response, Brandywine argues that joint infringement is a form of direct infringement, and that Form 18 sets the standard for pleading direct infringement. Doc. 23, pp. 12-13. Accordingly, Brandywine contends that it need not identify a specific product in alleging joint infringement because Form 18 does not require allegation of a specific product, and identifying a category of products will suffice. Id. (citing Sikes Cookers & Grill, Inc. v. Vidalia Outdoor Prods., 2009 WL 427227 (N.D.Ga.2009); Mesh Comm., 2010 WL 750337 (M.D.Fla.2010); Xpoint Techs., Inc., 730 F.Supp.2d 349, 353 (D.Del.2010)). However, because liability for joint infringement clearly requires proof of additional elements, such as control and direction over the other party, arguing that courts permit direct infringement claims when plaintiffs specify only a category of products is not relevant to the sufficiency of a claim of joint infringement.
The Court agrees that Brandywine has simply stated, without any factual support, that the relationship between Casio and Verizon is one in which Casio exerts control and direction over the entire process such that every step is attributable to Casio. See Doc. 1, ¶¶ 14, 26. The Federal Circuit held that a party only exhibits "control or direction" "in situations where the law would traditionally hold the accused direct infringer vicariously liable for the acts committed by another party that are required to complete performance of a
In response, Brandywine argues that its allegation "clearly alleges that there is some relationship" between Casio and Verizon and that "it may be inferred from this paragraph that some form of contractual relationship exists between the two."
Brandywine has failed to sufficiently identify which of Casio's products are involved in joint infringement, or to adequately allege that Casio exerts control and direction over Verizon such that the entire patented process can be attributed to Casio. See Muniauction, 532 F.3d at 1330; BMC Resources, 498 F.3d at 1379. Accordingly, Brandywine's allegations of joint infringement fail to state a claim upon which relief can be granted and will be dismissed.
Casio moves to strike Brandywine's prayer for enhanced damages pursuant to 35 U.S.C. § 284, which authorizes a district court "to increase the damages up to three times the amount found or assessed" upon a showing of willful infringement. Doc. 14, pp. 22-24; Avocent
In order to willfully infringe a patent, the alleged infringer must know of the patent. i4i Ltd. Partnership v. Microsoft Corp., 598 F.3d 831, 860 (Fed.Cir.2010) ("Infringement is willful when the infringer was aware of the asserted patent, but nonetheless `acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.'"); Pandora Jewelry LLC v. Cappola Capital Corp., 2009 WL 2029964, *1 (M.D.Fla. 2009) (holding that knowledge of the patent is required for willful infringement). Accordingly, Casio argues that Brandywine's failure to allege pre-suit knowledge of the patents-in-suit is fatal to its willful infringement claim. Doc. 14, p. 23; see In re Seagate, 497 F.3d at 1374 ("when a complaint is filed, a patentee must have a good faith basis for alleging willful infringement. So a willfulness claim asserted in the original complaint must necessarily be grounded exclusively in the accused infringer's pre-filing conduct."). Casio cites other cases where courts have dismissed claims of willful infringement for failure to allege pre-suit knowledge of the patents. Solannex, Inc. v. MiaSole, 2011 WL 4021558, *3 (N.D.Cal.2011) (dismissing claim of willful infringement because plaintiff failed to allege defendant "had any pre-suit knowledge of the [patent] or that its conduct rises to the level of `objective recklessness' required to support an allegation of willful infringement"); IpVenture, Inc. v. Cellco Partnership, 2011 WL 207978, *2 (N.D.Cal. 2011) (dismissing willful infringement claim for failure to allege facts supporting pre-suit knowledge of patents-in-suit).
In its Response, Brandywine argues that knowledge of the patent may be gained post-filing, stating that "[m]any courts agree that the Seagate case does not create a per se bar to plead willful infringement after the filing of the suit." Doc. 23, p. 17. However, Brandywine mischaracterizes Seagate and the cases it alleges support this position. In Seagate, the Federal Circuit concluded that there is no per se rule that a patentee must prevail on its request for a preliminary injunction in order to assert a claim of willfulness based solely on post-filing conduct. In re Seagate, 497 F.3d at 1774. The Seagate court cites cases where courts permit plaintiffs to amend complaints and add claims of willfulness when they have not moved for an injunction, and cases rejecting the argument that failure to move for an injunction forfeits a claim of willfulness. Id. As Brandywine has not moved for a preliminary injunction, the issue of whether or not it can claim willful infringement without having prevailed on a request for injunctive relief is not relevant.
Here, Brandywine alleges that Casio learned of the patents-in-suit through filing the Original Action, from which this case was severed. See Doc. 1, ¶¶ 11, 23. It then alleges in a conclusory fashion that "Casio's continued infringement despite its knowledge of the '922 patent and Brandywine's accusations of infringement has been objectively reckless and willful."
Additionally, Brandywine alleges that Casio's actions were "objectively reckless and willful" but does not plead any facts allowing a plausible inference that Casio's behavior was reckless. Doc. 1, ¶¶ 15, 27. To the contrary, the patents-in-suit are each described as a "Simultaneous Voice/Data Answering Machine" and Casio's Accused Products are cell phones. Id. at ¶¶ 10, 22; see Doc. 1-Ex. 1. Thus, without any facts alleging reckless behavior, the plausible inference is that Casio's cell phones reasonably interact in some form
For the aforementioned reasons, the Court dismisses Brandywine's claims of indirect infringement, contributory infringement, joint infringement, and willful infringement for failure to state claims upon which relief can be granted. Fed. R.Civ.P. 12(b)(6).
Accordingly, it is hereby