For those paying attention to the evolving law of notice pleading patent infringement, a Florida court confirmed that patent plaintiffs face a raised bar under Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). The plaintiff, who provided a claim chart alleging a theory that one patent claim was infringed, could not survive a motion to dismiss the complaint with respect to two other patent claims that were not charted, ruled the court in Werteks Closed Joint Stock Co. v. Vitacost.com, Inc., No. 16-cv-60695-GAYLES (S.D. Fla. Sept. 20, 2016).
The plaintiff alleged infringement of U.S. Patent No. 8,350,077, but conceded that the claim chart attached to the complaint charted only claim 1, and not claims 2 and 3. The plaintiff then argued that the infringement chart for claim 1 “puts the Defendants on sufficient notice ‘as to at least one claim alleged to be infringed and [to] have adequate information to respond to the Complaint.’”
The court didn’t buy it: “[t]he pleading standard set forth in Iqbal and Twombly requires more than the legal conclusion that the Defendants have infringed on claims 2 and 3 of the ’077 Patent, and much more than notice that they may possibly have done so.” Having conceded that their complaint alleged “facts only as to claim 1,” the plaintiff had not set forth facts from which the court could reasonably infer claims 2 and 3 were infringed.
While patent-eligibility under 35 U.S.C. § 101 has gotten a lot of attention, this case shows another way in which the brakes have been recently applied to patent litigation. Historically, claim charts were not required for a complaint for patent infringement to survive a Rule 12 motion to dismiss. Patent defendants will certainly take heart from decisions like this.