Magistrate Judge Burke recommends denial of defendant’s 12(b)(6) motion as to allegations of direct infringement, grant of motion as to allegations of indirect infringement

Magistrate Judge Burke recently issued a Report, recommending that defendant’s motion to dismiss plaintiff’s complaint as to direct infringement be denied but that the motion to dismiss plaintiff’s complaint as to indirect infringement be granted. Pragmatus AV, LLC v. TangoMe, Inc., C.A. No. 11-1092-LPS-CJB (D. Del. Feb. 13, 2013). Judge Burke previously made the same recommendation, and applied substantially similar analysis, in Pragmatus AV, LLC v. Yahoo! Inc., C.A. No. 11-902-LPS-CJB (D. Del. Nov. 13, 2012) (Yahoo), discussed here. This was a related case in which the patents-in-suit included the three at issue in this decision, and the plaintiff made similar allegations in that case as well.

As in Yahoo, plaintiff did not plead joint infringement and the primary question as to direct infringement was whether plaintiff’s allegations could only implicate a theory of joint infringement, and thus should be dismissed. See id. at 8. Here Judge Burke similarly concluded that “Defendant’s arguments as to dismissal [were] premature” because “the challenged claims do not so clearly and explicitly require the work of joint infringers so as to warrant dismissal.” Id. at 19, 14.

As to induced infringement, “Plaintiff assert[ed] that [defendant] ha[d] notice and knowledge of its infringement via a notice letter sent by [Plaintiff].” Id. at 22 (internal citations and quotation marks omitted). Unlike in Yahoo, “this allegation [did] indicate when that notice was provided,” but it still “[did] not allege any facts regarding the substance of that notice.” Id. at 23. Therefore, “[t]he Court [was] left to speculate as to what it was about that notice that could have plausibly provided [defendant] with the requisite knowledge of its users’ infringement.” Id. The allegations regarding the notice also provided the Court with “no basis to infer that Defendant, after receiving the notice, could have specifically intended for its users to continue infringing the patents. The law requires more.” Id. at 24. Finally, as in Yahoo, Judge Burke found that “the mere allegation that [defendant’s products] may be used to infringe is not sufficient to allow a reasonable inference that, inter alia, these services and products have no substantial noninfringing uses.” Id. at 26-27. Judge Burke therefore recommended that plaintiff’s complaint as to both induced and contributory infringement be dismissed. Id. at 27.

Pragmatus AV, LLC v. TangoMe, Inc., C.A. No. 11-1092-LPS-CJB (D. Del. Feb. 13, 2013) by

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