Richards Layton & Finger
 

Judge Sleet Grants in Part and Denies in Part Motion to Dismiss for Failure to State a Claim

May 3, 2017

In IP Communication Solutions, LLC v. Viber Media (USA) Inc., C.A. No. 16-134-GMS (D. Del. Apr. 5, 2017), Judge Sleet granted in part and denied in part the defendant’s motion to dismiss for failure to state a claim. In its amended complaint, the plaintiff, IP Communications Solutions, LLC, alleged literal and indirect (induced) infringement, and included a claim chart and exemplary evidence from the website of the defendant, Viber Media (USA) Inc. (“Viber”). Viber moved to dismiss on the basis that the amended complaint failed to satisfy the pleading standard for direct or induced infringement.

For direct infringement, the Court found the allegations sufficient under Iqbal and Twombly to state a claim because the amended complaint included specific details on how the accused application and server system infringes. Although Viber cited decisions for the proposition that patentees must identify specific products to state a claim, Judge Sleet stated that those decisions addressed apparatus claims, whereas the asserted patent was for methods and systems, and not directed to a specific product. Judge Sleet remarked that it was not clear how the plaintiff could have provided more specificity without, for example, access to source code that it likely did not have in its possession, and concluded that the amended complaint sufficiently placed Viber on notice of what it must defend.

But as to indirect infringement, Judge Sleet agreed with Viber that the amended complaint did not plausibly show that Viber specifically intended that users of its service infringe the asserted patent or knew that any such use would constitute infringement. Although the amended complaint included links to Viber’s website and other webpages, such details did not address the use of the accused server system by those who use Viber’s services.

Key Points: The abrogation of Form 18—which did not require an identification of specific products to state a claim—has resulted in some uncertainty regarding how to plausibly allege patent infringement under Iqbal and Twombly. This decision suggests that in some contexts, it still may be unnecessary to identify specific products in method and system claims.