The Software IP Report

Pleading Patent Infringement: Claim Chart Required (Redux)?

For a plaintiff to state a cause of action for patent infringement, some courts hold that  general allegations – without an infringement claim chart – suffice.  Here are two examples of courts joining other courts at the other end of the spectrum.  In these cases, the respective courts dismissed complaints even after the plaintiff had provided an infringement claim chart because the claims charts were insufficient to meet the requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), as applied to complaints for patent infringement.

In SIPCO, LLC v. Streetline, Inc., No. 16-830-RGA (D. Del. June 21, 2017), the plaintiff alleged patent infringement of U.S. Patent No. 8,908,842 (“Multi-functional general purpose transceivers and devices”).  The plaintiff filed a First Amended Complaint (FAC) after its first complaint was dismissed because it made “no attempt to connect anything in the patent claims to anything about any of the accused products.”  While the FAC did “describe[] the accused product in some detail” that detail was “only understandable (if at all) by a person of ordinary skill in the art.”  The court looked at the ’842 patent, and thought “it might be the case that [the defendant] sells a device that infringes this patent.”  But, not being an engineer, the court could not say that, even in a light most favorable to the plaintiff, that patent infringement had been alleged.  The plaintiff’s failing would seem fairly basic: “Plaintiffs do not actually say that the Streetline Equipment is a ‘device’ or a transceiver, which would seem to be required by Claim 16.”  The court gave the plaintiffs one more chance to amend, but warned this would be their “last chance” and “[t]hey should not throw away their shot.”

In Atlas, IP v. JEA, No. 17-20243-CIV-ALTONAGA/Goodman (S.D. Cal. June 21, 2017), the plaintiff alleged infringement of U.S. Patent No. 5,371,734 (“Medium access control protocol for wireless network”).  The defendant argued that the plaintiff’s claim chart was insufficient with respect to two specific claim limitations.  Considering how the relevant claim terms would have to be construed, the court determined that the “Frame Limitation” had not been met under a theory of direct infringement “[b]ecause Plaintiff has not alleged the frame communicates the assignment and duration of all constituent intervals of the inbound portion of the communication cycle to all remotes.”  The “Powering Off Limitation” was similarly not met because the plaintiff failed “to show the smart meters utilize the cycle establishing information to make determinations about when to power down circuitry.”  Moreover, patent infringement under the Doctrine of Equivalents was alleged in only one line.  The court granted the defendant’s motion to dismiss, but gave the plaintiff leave to file an amended complaint.