The Software IP Report

Notice Pleading Patent Infringement Requires Some Specificity

By Charles Bieneman

Categories: Patent Civil Procedure, The Software IP Report

Even after bringing suit against 33 parties just before the America Invents Act’s prohibition on joining unrelated defendants took effect, the notice pleading requirements of the Federal Rules of Civil Procedure still required that a plaintiff identify specific ways in which infringement was alleged to take place.  Select Retrieval, LLC v. American Apparel, LLC, No. 11cv2158 (S.D. Cal. March 23, 2012).

On September 15, 2012, Select Retrieval, LLC brought its suit for alleged infringement of U.S. Patent No. 6,128,617 (“Data display software with actions and links integrated with information”).  The defendants moved to dismiss the plaintiff’s amended complaint for failure to state a claim on which relief could be granted.  Like the court in Gradient Enterprises, Inc. v. Skype Technologies S.A, the court here skirted the issue of whether a complaint for patent infringement is sufficient if it follows Form 18 attached to the Federal Rules of Civil Procedure; the court instead simply questioned the sufficiency of the plaintiff’s pleading.

As the court put it, McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007), “doesn’t stand for the proposition that a plaintiff may use Form 18 as a model, but then obscure the nature of the claims with other vague and possibly contradictory allegations.”  The plaintiff’s complaint “should have identified specific parts of the websites alleged to infringe on the Patent; or if the entire websites are alleged to be infringing, specific ways in which the infringement is taking place.”  Lacking “greater specificity on this point,” the complaint “would fall short of the example embodied in Form 18.”  Thus, while denying the motion to dismiss, the court ordered the plaintiff to file a second amended complaint correcting the deficiencies of its first amended complaint.

The court also denied a motion to sever the defendants based on a misjoinder argument.  This is interesting, because, as alluded to above, the plaintiff here was one of many who got in under the wire of the September 16, 2012, effective date of the anti-joinder provision of the America Invents Act.