The Software IP Report

Patent Infringement Notice Pleading Standard Not Met

If every court adopted a bar for bringing a software or Internet patent infringement action that was as high as the standard followed by the court in Pagemelding, Inc. v. ESPN, Inc., No. C-11-06263 (N.D. Cal. April 30, 2012), patent plaintiffs’ lives would certainly be more difficult.  There, the court denied the plaintiff’s motion to amend its complaint because the proposed amended complaint failed to plead adequately either direct or indirect patent infringement.  In the wake of the Federal Circuit’s decision in McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007), district courts have diverged concerning how detailed allegations of patent infringement must be to meet the federal notice pleading standard.  The court here, perhaps even more forcefully than courts in other recent notice pleading cases, came down firmly in favor of requiring the plaintiff to provide a greater level of detail.

The patent-in-suit was directed to allowing Internet content providers (such as ESPN) to collaborate with Internet service providers to provide customized webpages.  The court had already dismissed the plaintiff’s original complaint for failure to state a claim.  The plaintiff’s proposed amended complaint made more specific allegations concerning how the patent claims operates, and attempted to tie ESPN to certain elements of the patent claims, but did not explain “why or how” (emphases in original) ESPN infringed.  The court objected that

[a]ll plaintiff has done is visited defendant’s website through several different ISPs, witnessed the end product, and alleged infringement. Plaintiff must engage in a good faith investigation, consistent with Rule 11, as to how defendant accomplishes the creation of customized web pages. Merely explaining how plaintiff’s patent works and stating that defendant produces a similar end product, is not enough. There are many ways to reach a destination and not everyone necessarily traveled the same path.  . . .   Just because defendant creates an end product similar to that created by plaintiff’s patent does not give rise to a reasonable inference of infringement. Plaintiff’s pleading approach still smacks too much of “shoot first and ask questions later.”

Further, not only had the plaintiff failed to allege adequately direct infringement, the plaintiff had also failed to meet the notice pleading standard for indirect infringement.  First, there could be no indirect infringement where the plaintiff failed to plead adequately direct infringement.  Beyond that, the plaintiff had pled at most that ESPN had used the accused apparatus, but “absent an allegation that the apparatus itself is offered for sale, plaintiff fails to assert a claim for contributory infringement.”

A number of district courts have construed the notice pleading requirements for patent infringement liberally in plaintiffs’ favor.  These courts have cited the Federal Circuit’s McZeal decision, which held that, at least for a pro se plaintiff, the bare-bones form complaint for patent infringement appended to the Federal Rules of Civil Procedure was adequate to state a claim of patent infringement.  Interestingly, the court here did not mention McZeal, instead citing Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),  and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), for the proposition that a complaint must provide more than a “formulaic recitation of a cause of action’s elements.”