A recurring issue the past few years in patent litigation is the amount of detail that patent owners are required to provide when they initiate a lawsuit. The truth is, most judges will tolerate a very scant amount of information, essentially amounting to identification of the patent at issue along with a description of the products or services believed to be infringing. Exemplifying this, is a recent decision from Judge Ward, where he agreed to allow a patent infringement complaint that identified “payment services” as the accused products or services.
I’ve suggested before that filing motions to dismiss based on pleading requirements is largely a waste of time. For example, with respect to Interval Licensing, I observed that a defense “win” on the pleading issue couldn’t even be considered pyrrhic because of a prior agreement to make information available in discovery that was more detailed than Rule 8 required:
In other words, the date that Interval is required to update its complaint to include more specificity is the same date that it has already committed to provide more specificity. While some reports might try to spin this as a “win” for Google, consider this: If you punish your children by making them do something they were required to do anyway, do you consider that effective parenting?
Earlier this year, Judge Davis, in Tyler, Texas, made a similar observation in an order granting (in part) a motion to dismiss:
The Court notes that Prompt has already served its Patent Rule 3-1 disclosures. See Docket No. 184. Rule 3-1 disclosures are far more detailed than Rule 8’s pleading requirements. Thus, before the Court ruled on this motion, Defendants had already received greater specificity than what they sought in this motion, rendering this motion superfluous for all practical purposes. The Court strongly encourages the parties to try this case on the merits and not unnecessarily burden the Court with technical issues that lack practical substance.
Last year, Judge Davis also openly questioned whether lawyers always have their client’s best interests in mind when filing motions. Knowing Judge Davis’ opinions about Rule 8 motions, the briefing schedule and likely timing of any order by the court, you would expect that these motions would be significantly abated … but earlier this month, another law firm took a cavalier approach with its client’s money by seeking dismissal under Rule 8. (Kenyon & Kenyon’s motion on behalf of Volkswagen)
Some lawyers might argue that the lawyers are just preserving the client’s rights on appeal, but since complaints can be freely amended (including during and after trial), many questions of pleading sufficiency will be mooted by the time an appeal is filed. The only reason Bell Atlantic v reached the Supreme Court was that the original court granted the motion to dismiss, which allowed Twombly to challenge that dismissal up the chain. Ashcroft v Iqbal dealt with a denied motion to dismiss and an “interlocutory” appeal filed by the government.
In addition, Kenyon’s client is being accused of infringing a patent, which is a fairly straightforward legal action for which discovery and litigation procedures are highly developed. Cases like Twombly and Iqbal raised speculative, conclusory allegations of conspiracy and novel legal theories, respectively. Further, while it’s possible that Volkswagen would seek an interlocutory appeal, I highly doubt that we’ll see one filed in this case.
Thus, a motion to dismiss here serves very little real purpose, other than to increase legal fees for the parties involved.
- Patent Players In Glass Houses Shouldn’t Point Fingers At Thrown Stones (gametimeip.com)
- Patent Connections – Licensors vs Implementers: Who’s Really Promoting Innovation? (gametimeip.com)
- Federal Judicial Center Report on the Impact of Twombly/Iqbal (lawprofessors.typepad.com)