An amended complaint for patent infringement has been allowed under the standard recently set forth by the Federal Circuit in In re Bill of Lading Transmission & Processing Sys. Patent Litig., No. 2010-1493 (Fed. Cir. June 7, 2012). Under the Federal Circuit's recent holding, the court had a relatively easy decision in Pagemelding, Inc. v. ESPN, Inc., No. C 11-06263 WHA (N.D. Cal. June 18, 2012). This was the plaintiff's second attempt to amend its complaint in this case, an earlier motion, prior to the Bill of Lading decision, having been denied.
Bill of Lading stated that complaints for direct patent infringement merely need hew to Form 18 of the Federal Rules of Civil Procedure. Thus, the plaintiff's detailed allegations concerning the operation of ESPN's allegedly infringing websites, including an analysis of how certain claim elements were practiced, met the standard of Form 18.
Further, the plaintiff had adequately pled induced infringement. Although induced infringement required a pleading of direct infringement, that pleading of direct infringement was sufficient if it met Form 18, and if there were facts giving rise to an inference that a direct infringer existed. Here, ESPN actively promoted its website to third-party users. It also solicited Internet service providers to participate in its website, including ISPs alleged to be direct infringers. Further, ESPN had knowledge of the patent-in-suit. Therefore, the plaintiff had “alleged facts, that if true, would lead to reasonable inferences that ESPN intended another party to infringe the patent and knew that the direct infringer's acts constituted infringement.”
Accordingly, the court granted the plaintiff's motion to amend its complaint, noting, however that “[i]f the Federal Circuit hears In re Bill of Lading en banc, then perhaps this order will eventually be re-visited as well.”