Judge Andrews Denies Motion to Dismiss Under Former Fed. R. Civ. P. Form 18
January 5, 2016
Publication| Intellectual Property
On December 3, 2015, in Blackbird Tech LLC v. LEDwholesalers.com Inc., et al., C.A. No. 15-60-RGA (D. Del. Dec. 3, 2015), Judge Andrews denied defendants’ motion to dismiss that the complaints did not plausibly assert infringement since the accused products (shown by screen shots in the complaint) did not infringe the asserted patent. The Court found that the complaints, filed before the changes to the Federal Rules, complied with Form 18, stating, “My understanding is that former Form 18 continues to control the plausibility of direct infringement allegations.” However, since the Court was “nevertheless concerned about whether [it was] allowing what might be frivolous litigation to go forward,” and plaintiff claimed it was ready to provide claim charts in response to the motion to dismiss, Judge Andrews ordered plaintiff to “provide detailed claim charts” that “include pictures of the actual accused” products and to file such on the docket by January 5, 2016. Further, the Court ordered the parties to meet and confer prior to a Rule 16 scheduling conference set shortly thereafter.
Analysis: This ruling is consistent with Judge Andrews’ recent decisions pressing the expeditious litigation of claims where the merits may be determined early in a case.