Writing a threatening letter is one of life's greatest pleasures. There's lots of things to like about being a lawyer—the fame, the adoration of your fellows, the innumerable health benefits—but my very favorite is the writing of a good threatening letter. To curse the house of my enemies, yea unto the seventh generation, that centipedes may breed in their walls and wasps nest in their eaves.
Sometimes you have to make your own fun.
Normally a patentee has no trouble spitting just this sort of hellfire at alleged infringers, so it was interesting to see Judge Burke's order in InQuisient Inc. v. ServiceNow, Inc., C.A. No. 22-900-CHB (D. Del. Feb. 22, 2023) (Oral Order), where the plaintiff took a more reserved approach with unfortunate results.
Before filing suit, the plaintiff (according to the Complaint) sent letters to the defendant that didn't quite accuse them of infringement. Instead, the letters simply discussed the Plaintiff's IP and stated that the plaintiff lacked sufficient information to determine if defendant infringed. Plaintiff ultimately filed suit (Obvs) alleging indirect and willful infringement with the letters serving as notice of the infringement.
Judge Burke granted the defendant's motion to dismiss those claims, stating:
Only the first of the two letters (sent on June 1, 2022) speaks in any detail about Plaintiff's intellectual property, and even that letter simply states that the information Plaintiff has is "insufficient" to allow it to draw any conclusion as to whether Defendant infringes the patent. If the patentee does not have the ability to assert in a notice letter that infringement is actually (or at least likely) occurring, that renders it less plausible that the recipient of that letter would have in fact made the requisite pre-suit connection between the claims of the patents at issue and the recipient's products. Thus, the Complaint does not sufficiently allege that Defendant knew that the patent was being infringed as of its receipt of this June 1 letter.
Id. (cleaned up)
I view this as an unqualified endorsement of my strident letter-writing philosophy which I shall continue with renewed fervor. Watch out dad, your birthday card is going to be a real scorcher this year.
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