Chief Magistrate Judge Thynge recently issued a report and recommendation addressing a patent infringement defendant’s motion to dismiss for failure to state a claim of joint infringement and recommending that the motion be granted. Two-Way Media Ltd. v. Verizon Commc’ns Inc., et al., C.A. No. 14-1212-RGA-MPT, Report and Recommendation at 1-2 (D. Del. May 18, 2015).
Judge Thynge first found that the allegations of the complaint, “viewed in the light most favorable to plaintiff, are sufficient to support the inference that defendants and the third parties carry out all steps claimed in the patents-in-suit.” Id. at 9-10. Although the defendant objected to a phrase in the allegations as “insufficiently precise” and unrelated to the claims of the patents-in-suit, Judge Thynge found that the allegation related to a specific claim of a patent-in-suit and suggested that any ambiguity should be the subject of claim construction rather than a motion to dismiss. Id.
With respect to defendant’s direction and control over the third parties, however, Judge Thynge found that the complaint did not adequately state a claim of joint infringement. “This court is required to take plaintiff’s factual allegations as true, but plaintiff cannot plausibly allege the third parties were contractually obligated to perform all of the steps enumerated in plaintiff’s patents because the terms of the contracts between defendants and the third parties are unknown to plaintiff. . . . Even if Fed. R. Civ. P. 12(b)(6) allowed this court to look outside the record at the extrinsic materials submitted by plaintiff in its response to the motion to dismiss, it would find the third parties were independent businesses providing statistical services to multiple clients using what appears to be proprietary metrics. Thus, it is merely possible—rather than plausible—that defendants control and direct the third parties.” Id. at 13-14.