Continuing our theme, another subject that often comes up in defending NPE complaints is whether the NPE's often-lackluster complaint may be vulnerable to an FRCP 12(b)(6) motion to dismiss (and whether that motion can be brought economically).
Judge Connolly today dismissed a complaint by Swirlate IP, an (alleged) IP Edge entity, because the complaint mostly parroted the language of the claims and offered an unspecific website URL.
Here is an example of a typical paragraph from the complaint, which mirrors the claim language but also offers slightly more:
21. Upon information and belief, the Accused Instrumentality performs the step of performing the second transmission by transmitting the second data symbols over a second diversity branch to the receiver. For example, at least in its internal testing and usage, the Accused Instrumentality transmits second data symbols over a second or later diversity branch using multi-antenna processing which maps from assigned resource blocks to the later available number of antenna ports. (E.g., [links to a general product website and an European Telecommunications Standards Institute (ETSI) page]).
Note that while plaintiff repeatedly links to an ETSI standard, nothing in the complaint actually links that standard with the accused product.
The Court found this kind of pleading insufficient, and noted that the ETSI standard was irrelevant:
In support of its infringement allegations, the Complaint provides links to (1) a website maintained by Keep Truckin that describes its WiFi Hotspot product; (2) a webpage containing an LTE industry standards document published by the European Telecommunications Standards Institute (ETSI); and (3) an article about HARQ on a website entitled Techplayon. . . . But the Complaint fails to cite or identify with specificity the information on each website that explains and connects the steps that are performed using the accused product to the elements of each claim. And Swirlate argues in its briefing that the ETSI standards document is irrelevant to its infringement claims. See D.I. 17 at 9 (stating that Keep Truckin's arguments about the inadequacy of the Complaint's link to the ETSI standards document are "irrelevant because the Complaint does not allege that use of the accused instrumentality infringes because it complies with sections of the ETSI Standard.").
. . .
In short, the Complaint does not allege how Keep Truckin' s accused product performs the steps of the claim elements. Accordingly, Swirlate has failed to provide Keep Truckin with fair notice of the basis for Swirlate's direct infringement claims.
Plaintiff tried to save the complaint by citing Disc Disease Sols. Inc. v. VGH Sols, Inc., 888 F.3d 1256, 1259 n.3 (Fed. Cir. 2018), which reversed a Rule 12 dismissal based on little more than the plaintiff's flat allegation that the products meet every element, and a picture of the packaging.
Here, Judge Connolly distinguished Disc Disease as involving "simple" technology (as that case acknowledges), and dismissed the complaint, giving three weeks to amend.
No Notice of Subsequent Authority re: Bot M8?
Plaintiff missed an opportunity here to file a notice of subsequent authority regarding the Federal Circuit's opinion this month in Bot M8 LLC v. Sony Corp. of Am., C.A. No. 2020-2218, 2021 U.S. App. LEXIS 20624 (Fed. Cir. July 13, 2021).
There, the Federal Circuit reversed a district court's Rule 12(b)(6) dismissal on similar grounds, applying the Disc Disease case that plaintiff relied on here, and flatly rejecting the idea of an "element-by-element pleading standard for patent infringement" as "unsupported" by Twombly/Iqbal. Instead, the pleading requirements are "not onerous" and merely require "sufficient factual content" to show plausible infringement.
Bot M8 did not seem to involve particularly "simple" claims (and actually contained little analysis of the claims at all).
Here, the complaint here did offer some detail beyond the mere claim elements, albeit on "information and belief." For example, it identified how the example element above was accomplished: "using multi-antenna processing which maps from assigned resource blocks to the later available number of antenna ports."
Would a notice regarding Bot M8 have been enough to really make a difference? I don't know. And it's not surprising that an NPE plaintiff did not file one. But it definitely wouldn't have hurt for the plaintiff to make sure that the Court was aware of the most recent (and beneficial, for them) Fed. Cir. precedent on the issue.
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