Patent Infringement Notice Pleading: A Lesson from Contrasting Cases?

Two recent cases provide a contrast that may illustrate minimum notice pleading requirements for patent infringement plaintiffs.  In j2 Global Communications, Inc. v. Vitelity Communications, LLC, No. CV 11-07904 (C.D. Cal. April 12, 2012), the court held that the plaintiff had adequately described the accused products, and denied a motion to dismiss.  In contrast, the court in Avocet Sports Technology, Inc. v. Garmin International, Inc., No. C 11-04049 (N.D. Cal March 22, 2012), granted a motion to dismiss the complaint (with leave to amend) where the plaintiff failed to identify adequately the products accused of infringement.

In j2 Global, the plaintiff alleged that the defendant "provides certain Internet fax services that infringe Plaintiffs' patents."  Further, the accused fax services were identified by the brand name used by the defendant.  The court held that these "allegations are therefore sufficient to meet the pleading standard for patent infringement."

In Avocet, the plaintiff alleged that a number of defendants "infringed the '427 Patent by introducing, demonstrating, using, making, marketing, and selling altimeter devices which implemented the patented technology, as well as by actively inducing others to infringe that '427 Patent."  In response to one defendant's motion to dismiss, the plaintiff argued that allegedly infringing products could be found easily through an Internet search.  The court found "that this contention is unavailing, insofar as the Court may only look to the operative complaint in determining the plausibility of Plaintiff's allegations."  Further, in response to another defendant's motion to dismiss an allegation of wilfulness based only on an allegation that infringement was "willful, intentional and with conscious knowing disregard," the court found that mere "conclusory allegations" were insufficient to allege that the defendant "engaged in any pre-filing willful conduct."  Nor were similarly conclusory allegations, particularly without an allegation that the defendants even knew of the patent before the suit, enough to sustain a complaint for induced infringement.

With respect to indirect (i.e., induced) and willful infringement, there is no contrast between j2 Global (which did not address these theories) and Avocet; moreover, the result of Avocet is unsurprising insofar as pleading indirect infringement requires a heightened level of notice.  And with respect to direct infringement, other courts have held, even after the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, as well as the Federal Circuit’s McZeal v. Sprint Nextel Corp. decision, that under any standard that may apply the plaintiff must describe the accused products with some specificity.

Thus, the different outcomes of these two cases should be unsurprising, even if application of notice pleading standards for patent infringement remains somewhat unpredictable.  In Avocet, the plaintiff attempted to make extremely conclusory allegations that did not identify accused products or acts of infringement (against multiple defendants, to boot, which presumably is now impossible under the America Invents Act).  These allegations were insufficient.  In j2 Globlal, the complaint did barely identify a specific accused product, and therefor sufficed to meet the notice pleading standard for patent infringement under the Federal Rules of Civil Procedure.

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