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AOL Joins in Google's Reply in Support of its Motion to Dismiss Interval Licensing's Complaint
Saturday, November 20 2010 @ 05:23 PM EST

Now AOL has joined Google's Reply in support of its motion to dismiss Interval Licensing's complaint for failure to state a claim. Even for direct infringement, where the rules are arguably looser as Interval has just argued, AOL says, Interval "fails to meet the pleading standards of Rule 8 of the Federal Rules of Civil Procedure." I'm guessing they read Interval Licensing's argument about direct infringement not needing to be as specific as Google was suggesting it should be, and decided it was worth responding. So it says, in effect, that even if Interval is deemed correct in its argument that Iqbal and Twombly don't apply to patent cases, it still is too vague. And it asks the court to dismiss Interval's Complaint against AOL "because Interval's Complaint fails to meet the pleading standards of Rule 8 of the Federal Rules of Civil Procedure."

AOL says if Interval had been specific, it would have just answered, and the case could have progressed. However, it files this reply in support of Google's motion, joining it, because it has no clear picture of what Interval is complaining about.

Here's the docket:

11/19/2010 - 141 - APPLICATION OF ATTORNEY Derrick W. Toddy FOR LEAVE TO APPEAR PRO HAC VICE for Defendants Netflix Inc, Office Depot Inc, Staples Inc, eBay Inc (Fee Paid) Receipt No. 0981-2252588. (Attachments: # 1 ECF Registration Form)(Cleveland, Kristin) (Entered: 11/19/2010)

11/19/2010 - 142 - APPLICATION OF ATTORNEY Jeffrey S. Love FOR LEAVE TO APPEAR PRO HAC VICE for Defendants Netflix Inc, Office Depot Inc, Staples Inc, eBay Inc (Fee Paid) Receipt No. 0981-2252619. (Attachments: # 1 ECF Registration Form)(Cleveland, Kristin) (Entered: 11/19/2010)

11/19/2010 - 143 - REPLY by Defendant AOL Inc to 90 Notice of Joinder in Google's Motion to Dismiss. (Jost, Shannon) (Entered: 11/19/2010)

AOL specifically points out just how vague Interval Licensing has been:
AOL, like Google, is accused of infringing each of the four patents-in-suit. Interval's Complaint fails to identify a single accused product of any defendant, relying instead on catch-all terms such as "websites and associated hardware and software" and "products that display information."
AOL has more than 100 primary websites, because its business includes content, local products and services, advertising, applications and ventures, AOL tells the court, and each primary website has multiple pages, some about technology, some about maps, some about health matters, some about movies, etc., so what does Interval have in mind? How can AOL know? This, "exemplifies the emptiness of these generic allegations," AOL writes.

Here it is as text:

******************************

HONORABLE MARSHA J. PECHMAN

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

INTERVAL LICENSING LLC,

Plaintiff,

v.

AOL INC., et al.,

Defendants.

_____________________

Case No.: 2:10-cv-01385-MJP

DEFENDANT AOL INC.'S JOINDER
IN GOOGLE'S AND YOUTUBE'S
REPLY IN SUPPORT OF THEIR
MOTION TO DISMISS

Note on Motion Calendar:
Nov. 19, 2010
Oral Argument Requested

I. INTRODUCTION

Defendant AOL Inc. ("AOL") respectfully joins in Defendants Google Inc. and YouTube, LLC's Reply in Support of their Motion to Dismiss for Failure to State a Claim Upon which Relief Can be Granted Pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. 130) ("Google's Reply"). If Plaintiff Interval Licensing LLC's ("Interval") Complaint had pled sufficient facts concerning AOL's alleged infringement, rather than generic and all-encompassing conclusions of infringement, AOL would have answered the Complaint and the case could have proceeded apace. Interval's decision to omit such facts in its pleadings necessitated this motion, which AOL joins so that it can adequately assess Interval's allegations and prepare its defenses.

-1-

II. ARGUMENT

Rather than repeat the arguments and citations to authority set forth in Google's Reply, AOL hereby joins and incorporates by reference Google's Reply. AOL, like Google, is accused of infringing each of the four patents-in-suit. Interval's Complaint fails to identify a single accused product of any defendant, relying instead on catch-all terms such as "websites and associated hardware and software" and "products that display information." See Dkt. 1, Complaint, 21, 33, 39, 45.

AOL's business exemplifies the emptiness of these generic allegations. As described on AOL's "Products and Services" webpage (http://corp.aol.com/products-services), AOL's business encompasses content, local products and services, paid services, advertising, consumer applications, and ventures. Together, these categories of products and services include more than 100 different primary websites (e.g., http://www.mapquest.com, a mapping website; http://www.engadget.com, a technology news website; http://www.aolhealth.com, a health-related website; http://www.moviefone.com, a movie show times and information website). Each primary website has numerous individual webpages within it (e.g., http://www.aolhealth.com/health-experts, a website providing health information from medical experts; http://www.aolhealth.com/news, a website providing health-related news). The references in Interval's Complaint to "websites and associated hardware and software" and "products that display information" provide no indication as to which of AOL's myriad websites are allegedly infringing. Because Interval's complaint is devoid of any specific factual allegations regarding infringement by AOL, the Complaint has failed to put AOL on notice of infringement as required by Fed. R. Civ. P. 8.

AOL further observes that Interval's Opposition to Defendants' Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted (Dkt. 123) entirely neglects to address the deficiencies in the Complaint regarding alleged indirect infringement, which AOL discussed in its Joinder in Google's Motion to Dismiss. See Dkt. 90 at 3. The Complaint fails to plead essential elements of indirect infringement, such as AOL's inducement or contribution to

-2-

direct infringement by another, or AOL's knowledge of the patents-in-suit. See id. The Complaint, therefore, fails to state a claim for indirect infringement under Fed. R. Civ. P. 8.

III. CONCLUSION

For the reasons stated above and in Google's Reply, the Court should dismiss Interval's Complaint against AOL because Interval's Complaint fails to meet the pleading standards of Rule 8 of the Federal Rules of Civil Procedure.

DATED this 19th day of November, 2010.

STOKES LAWRENCE, P.S.

By: s/ Shannon M. Jost
Shannon M. Jost (WSBA #32511)
Scott A.W. Johnson (WSBA #15543)
Aneelah Afzali (WSBA #34552)

and

Admitted Pro Hac Vice Gerald F. Ivey
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP
[address]

Admitted Pro Hac Vice
Robert L. Burns
Elliot C. Cook
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP
[address]

Admitted Pro Hac Vice
Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP
[address]

Attorneys for Defendant AOL Inc.

-3-

CERTIFICATE OF SERVICE

I hereby certify that on November 19, 2010, I caused the foregoing DEFENDANT AOL INC.'s JOINDER IN GOOGLE'S AND YOUTUBE'S REPLY IN SUPPORT OF THEIR MOTION TO DISMISS to be: electronically filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
Attorneys for Plaintiff Interval Licensing LLC
Justin A. Nelson (email)
Eric J. Enger (email)
Matthew R. Berry (email)
Max L. Tribble (email)
Michael F. Heim (email)
Nathan J. Davis (email)
Edgar G. Sargent (email)

Attorneys for OfficeMax, Inc.
Kevin C. Baumgardner (email)
Steven W. Fogg (email)
Jeffrey D. Neumeyer (email)
John S. Letchinger (email)
Douglas S. Rupert (email)

Attorneys for Yahoo!
Mark P. Walters (email)
Dario A. Machleidt (email)
Francis Ho (email)
Richard S. J. Hung (email)
Michael Jacobs (email)
Matthew I. Kreeger (email)
Eric W. Ow (email)

Attorneys for eBay Inc., NetFlix, Inc., Office Depot, Inc. and Staples, Inc.
J. Christopher Carraway (email)
John D. Vandenberg (email)
Arthur W. Harrigan, Jr. (email)
Christopher T. Wion (email)
Kristin L. Cleveland (email)
Klaus H. Hamm (email)

Attorneys for Apple Inc.
Scott T. Wilsdon (email)
Jeremy E. Roller (email)
David S. Almeling (email)
George A. Riley (email)
Brian M. Berliner (email)
Neil L. Yang (email)

-4-

Attorneys for Facebook Inc.
Christopher B. Durbin (email)
Christen M. R. Dubois (email
Heidi L. Keefe (email)
Elizabeth L. Stameshkin (email)
Mark R. Weinstein (email)
Michael G. Rhodes (email)
Attorneys for Google Inc. and YouTube, LLC
Dimitrios T. Drivas (email)
Kevin X. McGann (email)
John Handy (email)
Aaron Chase (email)
Warren S. Heit (email)
Wendi R. Schepler (email)

s/ Shannon M. Jost
Shannon M. Jost (WSBA #32511)
Attorney for Defendant AOL Inc.
Stokes Lawrence, P.S.
[address, phone, fax, email]

-5-


  


AOL Joins in Google's Reply in Support of its Motion to Dismiss Interval Licensing's Complaint | 89 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please, if needed
Authored by: tiger99 on Saturday, November 20 2010 @ 05:35 PM EST
Please indicate the nature of your proposed correction in the title of your
post.

[ Reply to This | # ]

Off topic here please
Authored by: tiger99 on Saturday, November 20 2010 @ 05:38 PM EST
Please, nothing which relates to the main article in this thread, which is intended to be the place for all kinds of other unrelated things which may be of interest to Groklaw readers.

Oh, and please do remember the clickies where possible, and PJ's posting guidelines!

[ Reply to This | # ]

Newspick discussions here please
Authored by: tiger99 on Saturday, November 20 2010 @ 05:40 PM EST
Please indicate which Groklaw newspick item you are referring to in the title of
your post. It could be useful to also make a clickie, as newspick items do tend
to scroll off the bottom of the page quite quickly sometimes.

[ Reply to This | # ]

Go on, put the Comes here!
Authored by: tiger99 on Saturday, November 20 2010 @ 05:41 PM EST
For those who are still transcribing these depositions to assist PJ.

[ Reply to This | # ]

That is a lot of lawyers!
Authored by: tiger99 on Saturday, November 20 2010 @ 05:43 PM EST
Going to cost every participant a lot, if this case turns out to drag on for as
long as SCO! I hope the courtroom is large enough.

[ Reply to This | # ]

In other words....
Authored by: Anonymous on Sunday, November 21 2010 @ 12:37 AM EST
AOL says "Me too!"

[ Reply to This | # ]

Losing Credibility
Authored by: sproggit on Sunday, November 21 2010 @ 06:08 PM EST
I found Groklaw - and started to take a much greater interest in legal matters - in the wake of The SCO Group's first salvo against IBM back in the day. I've been a regular visitor here since 2004 or so.

The one thing that has both surprised and disappointed me has been to watch the way that the law (and I suspect this is not restricted to US Law alone) will allow tremendous latitude for "gaming of the (legal) system".

Specifically with the instant case, we have a situation where claims are being made of patent infringement, and yet the plaintiff has deliberately withheld sufficient details of the alleged infringement to permit the defendants to properly assess the merits of the claims.

We can see from the latest postings that those who stand accused still do not know what they are accused of. As a result, they are now filing motions to try and get a remedy to this Neiman Marcus style of attack.

Yet this is absurd. This is a case about infringement. In order to make the initial claim, this plaintiff must have a patent that they believe is infringed, and they must have sufficient evidence to believe they can win a case. Anything short of that is not merely a nuisance lawsuit, it is a blatant attempt to "game" the US legal system so as to shift the odds in favour of the plaintiff by withholding information.

We know this, the Judge knows this, the plaintiff and the defendants know this. Yet the plaintiff still gets away with it.

I appreciate that my opinion here is both insignificant and irrelevant, but I feel that it is appropriate to speak up - well, write - to point out that by allowing conduct of this nature to continue, the US legal system - or any other where this style of conduct is permitted - needs reform.

Those idiot lawyers - and I choose my words verycarefully here - would do well to stop, think, and to realise that their petty games might impress their clients, might even give them an advantage in some instances, but at the same time is undermining the entire legal system.

A democracy is held together by the rule of law. When people come to realise that the "law" is a sham, a farce, one big confidence trick that's been sold out to the biggest corporations with the deepest pockets, or the sleaziest lawyers, then respect for that legal system will inevitably break down.

And that's a very slippery slope indeed.

[ Reply to This | # ]

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