Here is some colorful writing from Magistrate Judge Burke of the District of Delaware, recommending dismissal of a claim for willfulness that failed to plead knowledge, and which relied on—at most—possible knowledge for a 15-hour period between when the complaint was served on an unknown person and when the patent expired:
From the docket, it appears that someone who is in some way affiliated with [defendant] Robinhood was served with the FAC at 9:08 a.m. on July 30, 2019. . . . But, as it turns out, the '633 patent expired on July 30, 2019—that same day. The Court guesses that, in light of all of this, it might be theoretically possible for Plaintiff to pursue what would have to go down as the most de minimis claim of willful infringement in this Court’s history. But whether such a claim—revolving around whether Robinhood knew of the patent and its infringement thereof, during a roughly 15-hour time period on July 30, 2019—would even be plausible would depend on exactly who got served with the Complaint on July 30, 2019 and what their relationship with Robinhood is. Yet the record provides little information on that front. Thus, in the Court’s view, the best course is to grant Robinhood’s Motion as to willful infringement, and if Plaintiff believes it can (and should) pursue such a claim here, then in a further amended pleading, it can attempt to set out the factual basis for such a claim.
Plaintiff's Claim Construction Also Failed to Meet the Plausibility Standard
Judge Burke also found that plaintiff Sapphire Crossing failed to meet the plausibility standard for a claim construction to support its divided infringement claim (a rather low bar).
The patent at issue involves a method for scanning and processing images, which starts with "providing an image transfer device." Sapphire Crossing accused Robinhood and its customers of divided infringement based on the customers' use of Robinhood's app on their phones.
Divided infringement requires a finding that one party directed or controlled the entire process, including "providing" the customer's smart phones.
Sapphire Crossing tried to support its divided infringement claim by construing "providing" as "offering access to the device’s functionality," with the apparent theory that Robinhood's app provides access to the functionality already present in the user's smartphones.
The Court was not having it:
[T]he Court is not required to accept implausible arguments at the pleading stage—such as a plaintiff’s argument that turns on an implausible or unreasonable reading of a claim term’s meaning. . . . And here, the Court just cannot see how a person could possibly be practicing the method at issue by “providing” an image transfer device (i.e., a smartphone), without either: (1) possessing or controlling the image transfer device; or (2) supplying or making the device available to another person.
The Court also noted that plaintiff had failed to even attempt to argue the plausibility of its construction:
Notably, in its answering brief, Plaintiff provides no explanation for why its seemingly unreasonable understanding of “providing” could be correct. It made its argument in one paragraph of the brief, which contained four sentences that were devoid of any such analysis.
The Court did recommend allowing the count of single-actor infringement to stand, based on Robinhood's alleged testing of its app on its own phones.
Of course, as the Court notes, damages from internal testing are limited to the scope of that internal use, rather than to the later sales of the app.
Given that the patent is now expired, and plaintiff made no inducement allegation (likely due to lack of knowledge), I expect this case may disappear quickly.
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