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Google's Motion to Dismiss Paul Allen's Patent Infringement Complaint Granted
Friday, December 10 2010 @ 09:24 PM EST

Paul Allen's patent infringement complaint against the world and its dog has been dismissed.

The court agreed with Google et al that it "lacks adequate factual detail to satisfy the dictates of Twombly and Iqbal" and also "fails to provide sufficient factual detail as suggested by Form 18". The court doesn't agree with Allen's Interval Licensing that the two cases do not apply to patent complaints, but it doesn't even need to go there: "The Court does not find it necessary to determine whether Form 18 is no longer adequate under Twombly and Iqbal because Plaintiff's complaint fails to satisfy either the Supreme Court's interpretation of Rule 8 or Form 18."

Go Google. That was their argument in their motion to dismiss, along with AOL's. Google said the complaint was too vague to meet the standard under Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Then, after Interval Licensing brought up the lower patent form standard it thought should apply instead, AOL jumped in saying the complaint was too vague under even that standard, and the court agreed. I'm happily surprised.

Allen can refile an amended complaint with more details by no later than December 28th. But if it chooses to do so, it must be specific:

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because Plaintiff has failed to identify the infringing products or devices with any specificity. The Court and Defendants are left to guess what devices infringe on the four patents. ... These allegations are insufficient to put Defendants on "notice as to what [they] must defend." McZeal, 501 F.3d at 1357...
Merry Troll Christmas, legal eagles.

Here's the Order:

12/01/2010 - 146 - NOTICE of Rescheduled Hearing: Scheduling Conference set for 12/13/2010 at 01:30 PM in Courtroom 14206 before Judge Marsha J. Pechman.(RM) (Entered: 12/01/2010)

12/10/2010 - 147 - ORDER ON MOTIONS TO DISMISS RE: 62 80 92 Motion to Dismiss. The Court GRANTS the motion to dismiss and gives Plaintiff leave to file an amended complaint by no later than 12/28/2010, by Judge Marsha J. Pechman.(MD) (Entered: 12/10/2010)

As text:

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

INTERVAL LICENSING LLC,
Plaintiff,
v.
AOL, INC.; APPLE, INC.; EBAY INC.;
FACEBOOK, INC.; GOOGLE INC.;
NETFLIX, INC.; OFFICE DEPOT, INC.;
OFFICEMAX INC.; STAPLES, INC.;
YAHOO! INC.; and YOUTUBE LLC ,
Defendants.

CASE NO. C10-1385 MJP

ORDER ON MOTIONS TO DISMISS

This matter comes before the Court on Defendants Google, Inc.'s and YouTube LLC's motion to dismiss (Dkt. No. 62) in which Defendants Office Max, Inc., eBay, Inc., Netflix, Inc., Office Depot, Inc., Staples Inc., Yahoo! Inc., AOL Inc., and Facebook, Inc. join (Dkt. Nos. 74, 82, 84, 90, 92), and Defendant Apple Inc.'s motion to dismiss (Dkt. No. 80). Having reviewed the motions, Plaintiff Interval Licensing LLC's response (Dkt. No. 123), the replies (Dkt. Nos. 130, 131, 133, 135, 138, 139, 143), and all supporting papers, the Court GRANTS the motion and DISMISSES the complaint with leave to amend.

(1)

Background

Plaintiff has filed a complaint against eleven defendants, arguing that they have variously infringed on four patents Plaintiff holds: (1) United States Patent No. 6,263,507 ('507 patent); (2) United States Patent No. 6,034,652 ('652 patent); (3) United States Patent No. 6,788,314 ('314 patent); and (4) United States Patent No. 6,757,682 ('682 patent). The allegations in the complaint are spartan. They identify the patent numbers and titles, as well as the nature of the business that developed the patents. Plaintiff then serially alleges that certain defendants have infringed on the patents. Plaintiff does not indicate with any specificity which of Defendants' products or devices infringe the patents.

As to the '507 patent, Plaintiff alleges as that each Defendant except Facebook:

. . . has infringed and continues to infringe on one or more claims of the '507 patent. [Each Defendant except Facebook] is liable for infringing the '507 patent under 35 U.S.C. § 271 by making and using websites, hardware, and software to categorize, compare, and display segments of a body of information as claimed in the patent.
(Complaint ¶ 24; see id. ¶¶ 21-30.) As to the '652 patent, Plaintiff alleges that Defendants AOL, Apple, Google, and Yahoo! have "infringed and continue[] to infringe one or more claims in the '652 patent" and that they do so "by making, using, offering, providing, and encouraging customers to use products that display information in a way that occupies the peripheral attention of the user as claimed in the patent." (See id. ¶¶ 33-36.) As to the '314 patent, Plaintiff alleges that AOL, Apple, Google, and Yahoo! have infringed on the claims of the patent by "making, using, offering, providing, and encouraging customers to use products that display information in a way that occupies the peripheral attention of the user as claimed in the patent." (See id. ¶¶ 4042.) And as to the '682 patent, Plaintiff alleges that all Defendants have infringed on one or more claim of the patent "by making and using websites and associated hardware and software to

(2)

provide alerts that information is of current interest to a user as claimed in the patent." (See id. ¶¶ 45-55.)

Defendants move to dismiss the complaint on the theory that it lacks sufficient detail to satisfy Rule 8 and the Supreme Court's rulings in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

Analysis

A. Standard

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). A plaintiff must "provide the 'grounds' of his 'entitle[ment] to relief.'" Twombly, 550 U.S. at 555 (citations omitted). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).

The Federal Rules of Civil Procedure provide Form 18 as the example complaint for patent infringement. The model complaint requires Plaintiff to set forth the patent number, the date on which the patent was issued and the general nature of the patented invention (in the case of the Form, an "electric motor"). The Form further requires an allegation that "[t]he defendant has infringed and is still infringing on the Letters Patent by making selling, and using electric motors that embody the patented invention, and that defendant will continue to do so unless enjoined by this court." Fed. R. Civ. P. Form 18 (emphasis in original). The Form thus requires some specificity as to defendant's product that purportedly infringes the patent. The parties

(3)

dispute whether Twombly and Iqbal made Form 18 inadequate to satisfy Rule 8. The Court does not find it necessary to determine whether Form 18 is no longer adequate under Twombly and Iqbal because Plaintiff's complaint fails to satisfy either the Supreme Court's interpretation of Rule 8 or Form 18.

The Court disagrees with Plaintiff's argument that Twombly and Iqbal do not apply to patent suits. (See Dkt. No. 123 at 4-5.) Plaintiff cites a Federal Circuit decision to suggest that notice pleading in patent suits is unchanged by Twombly. See McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356-57 (Fed. Cir. 2008) (decided after Twombly but before Iqbal). The court in McZeal did not make such a broad holding. Rather, the divided court, which was considering a pro se complaint to which a deferential standard applies, held that the plaintiff still had to "plead facts sufficient to place the alleged infringer on notice as to what he must defend." Id. at 1357 (citing Twombly, 550 U.S. at 565 n.10). The court made no attempt to hold that Twombly does not apply to the patent context. The Supreme Court has also made clear that its interpretation in Twombly has an extremely broad reach. After Twombly, the Court applied the same rule in the context of prisoner litigation in Iqbal. If the Supreme Court believes the Twombly rule applies in the context of both antitrust and prisoner litigation, there is no little reason to believe the Court would not also apply the rule to patent suits. Plaintiff has certainly not provided a convincing reason for this outcome. Indeed, even under McZeal's rationale (on which Plaintiff relies heavily), Plaintiff must identify sufficient facts about the allegedly infringing device to put Defendants on notice of their infringing conduct, as required by Iqbal and Form 18.

Thus, the Court requires Plaintiff to assert sufficient facts as to the nature and identity of the purportedly infringing products and devices that form the basis of the complaint. These

(4)

allegations must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570).

B. Adequacy of the Pleadings

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because Plaintiff has failed to identify the infringing products or devices with any specificity. The Court and Defendants are left to guess what devices infringe on the four patents. Plaintiff only indicates that Defendants have websites, hardware, and software that infringe on the patents or that they are encouraging third parties to use products that infringe on the patents. This fails to indicate to Defendants which of their myriad products or devices may be at issue. These allegations are insufficient to put Defendants on "notice as to what [they] must defend." McZeal, 501 F.3d at 1357 (citing Twombly, 550 U.S. at 565 n.10). They are also too generic to satisfy Form 18. Plaintiff urges the Court and Defendants to have patience and simply await delivery of the infringement contentions as required by Local Rule. This ignores that Local Rules do not trump the Federal Rules of Civil Procedure or the Supreme Court's mandate in Twombly and Iqbal. Fed. R. Civ. P. 83(a)(1); Iqbal, 129 S. Ct. at 1950, 1953. Plaintiff's complaint is little more than labels and conclusions, which are inadequate under Twombly, Iqbal, and even Form 18. The Court GRANTS the motions to dismiss.

The two cases Plaintiff relies on to support a different outcome are factually distinguishable. The court in McZeal considered a pro se complaint and employed the deferential standards that apply to such pleadings. McZeal, 501 F.3d at 1356 ("Where, as here, a party appeared pro se before the trial court, the reviewing court may grant the pro se litigant leeway on procedural matters, such as pleading requirements.") Here, Plaintiff is represented by counsel and no deferential standard applies. Moreover, the pro se plaintiff in McZeal

(5)

specifically identified the purportedly infringing product, a Motorola i930 cellular telephone. Id. at 1355. Plaintiff has failed to match the specificity that the pro se plaintiff in McZeal mustered. McZeal is thus distinguishable. Ware v. Circuit City Stores, Inc., et al., 4:05-CV-0156-RLV, 2010 WL 767094 (N.D. Ga. Jan. 5, 2010)), is also factually distinguishable and actually supports Defendants' position. (See Dkt. No. 123 at 6, 9.) The court in Ware held that the plaintiffs' amended pleadings which only identified the name of the defendant and paraphrased 35 U.S.C. § 271(a) were inadequate to survive dismissal "[e]ven with the liberal notice pleading requirements of Rule 8." Ware, 2010 WL 767094, at *2. The court found plaintiffs' failed to identify the infringing device with adequate specificity, even though it used the word "apparatuses" to describe the infringing product. Id. Similar to the complaint in Ware, Plaintiff's complaint here fails to identify the purportedly infringing products with any reasonable specificity.

The Court gives Plaintiff leave to file an amended complaint within 15 days of the scheduling conference, which is set to take place on December 13, 2010. This is the same date by which Plaintiff contends it will file its purportedly curative and detailed infringement contentions. See Local Patent Rule 120 (requiring disclosure of asserted claims and infringement contentions within 15 days of a scheduling conference); (Dkt. No. 123 at 10.) Thus, the task of amending the complaint with the necessary detail should not be onerous.

In amending the complaint, Plaintiff must identify which of Defendants' products, devices, or schemes allegedly infringe on Plaintiff's patents. Plaintiff need not describe how the accused devices satisfy each limitation of each asserted claim. See McZeal, 501 F.3d at 1357. Plaintiffs should, where possible, set forth the specific websites that are at issue and identify the hardware and software with adequate detail for Defendants to know what portions of their business operations are in play in this litigation. Where possible, the Court urges Plaintiff to

(6)

identify the infringing hardware and software with any relevant product identifiers (e.g., SKUs, barcodes, or other identifiers) and descriptions. Plaintiff must also add greater factual detail as to the conduct or devices that make or encourage Defendants' customers to "use products that display information in a way that occupies the peripheral attention of the user" (See, e.g., Compl. ¶¶ 33, 39.) This is consistent with Twombly and Iqbal, which require Plaintiff to identify the factual basis for its claims. See, e.g., Bender v. L.G. Elecs. U.S.A., Inc., No. C09-02114 JF (PVT), 2010 WL 889541, at *3 (N.D. Cal. Mar. 11, 2010). This is also consistent with Form 18, which requires identification of the product or device alleged to infringe on the patent.

Conclusion

Plaintiff's complaint lacks adequate factual detail to satisfy the dictates of Twombly and Iqbal. The complaint also fails to provide sufficient factual detail as suggested by Form 18. The Court GRANTS the motion to dismiss and gives Plaintiff leave to file an amended complaint by no later than December 28, 2010.

The clerk is ordered to provide copies of this order to all counsel.

Dated this 10th day of December, 2010.

(signature)
Marsha J. Pechman
United States District Judge

(7)


  


Google's Motion to Dismiss Paul Allen's Patent Infringement Complaint Granted | 203 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: bprice on Friday, December 10 2010 @ 09:30 PM EST
If any are needed.

---
--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

  • Corrections - Authored by: Anonymous on Sunday, December 12 2010 @ 09:12 PM EST
Google's Motion to Dismiss Paul Allen's Patent Infringement Complaint Granted
Authored by: Anonymous on Friday, December 10 2010 @ 09:33 PM EST
Truly Merry Troll Christmas :-) Gooooooo Google!

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Friday, December 10 2010 @ 09:36 PM EST
Here is where you can be off the topic of the article. HTML Mode links for
clickability are handy even when the topic is off.

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Friday, December 10 2010 @ 09:38 PM EST
Here is the place to post comments about the articles in News Picks. Please
remember to put the title of the News Pick article in the Title box and include
an HTML Mode clickable link to the article to make it easier once the article
has scrolled off the sidebar.

[ Reply to This | # ]

COMES goes here - 2341 to go
Authored by: bugstomper on Friday, December 10 2010 @ 09:44 PM EST
Find a Comes v Microsoft document, transcribe it with HTML markup.
Post it here in a comment as Plain Old Text
with the HTML tags to make it easy for PJ to copy and paste.

The easy way to find a document that needs transcriptions is on the
Comes v. Microsoft Exhibits by Number pages.
Scroll down to find one without a transcription.

Shell script to display how many Comes documents have not yet had descriptions or transcripts posted

curl -s \
"http://groklaw.net/staticpages/index.php?page=ComesExhN0[1-4]" | \
grep -c '<td></td>'

Shell script to display the numbers of the next N documents whose descriptions or transcripts have not yet been posted. Change the 5 to however many of the next available document numbers you want to see.

n=5 ; \
curl -s \
"http://groklaw.net/staticpages/index.php?page=ComesExhN0[1-4]" | \
grep -m $n -B 1 '<td></td>' | \
sed -n 's/.*"E\(.*\)"><a.*$/\1/p'

[ Reply to This | # ]

Expect An Amended Complaint?
Authored by: sk43 on Friday, December 10 2010 @ 10:21 PM EST
SCO's original complaint against Novell was also dismissed. SCO's amended
complaint survived dismissal.

At the end of the order. Judge Pechman basically paints a roadmap for Interval
to follow in order to survive dismissal in a potential amended complaint. Will
Interval follow in SCO's footsteps? I will wager Yes.

[ Reply to This | # ]

Refiling....
Authored by: Anonymous on Friday, December 10 2010 @ 10:28 PM EST
"Allen can refile an amended complaint with more details by no later than
December 28th. But if it chooses to do so, it must be specific"

This confuses me.
So if Allen does not refile by the 28th......
This can't really mean that Allen cannot sue google ever again.......the last
suit being so open ended that just about everything to be covered under this 1st
suit....

If so this failed suit will pretty much give google from any past interactions
with anything Allen thinks he owns....

[ Reply to This | # ]

Google's Motion to Dismiss Paul Allen's Patent Infringement Complaint Granted
Authored by: Anonymous on Friday, December 10 2010 @ 10:40 PM EST
1 mole down :(

Tufty

[ Reply to This | # ]

Think of the costs
Authored by: The Mad Hatter r on Saturday, December 11 2010 @ 12:16 AM EST

How much has this cost the defendants so far? Can they get their legal costs
back?

This is an important issue. Trolls count on it being less expensive to license
than to fight. If the costs to litigate go up for trolls, their business model
will die.


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

The "s" word
Authored by: Anonymous on Saturday, December 11 2010 @ 02:30 AM EST
> Plaintiff has failed to identify the infringing products or
> devices with any specificity

We've heard that before somewhere recently, Utah was it?
Now when will this same implement be applied to USPTO?

[ Reply to This | # ]

I like the judge's name...
Authored by: Anonymous on Saturday, December 11 2010 @ 02:36 AM EST
... "Pechman" means a person without luck. How prophetic for the
patent trolls in this case. ;)

[ Reply to This | # ]

Well thats a nice result :-)
Authored by: SilverWave on Saturday, December 11 2010 @ 09:48 AM EST
.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

A bit of sanity to start the weekend
Authored by: dfblakle on Saturday, December 11 2010 @ 09:53 AM EST
and as always, thanks PJ.

---
Dave

[ Reply to This | # ]

Sanctions? Nah
Authored by: Anonymous on Saturday, December 11 2010 @ 01:33 PM EST
Be nice to see automatic sanctions on a summary judgment that happens even
before discovery begins. Allen should pay Google's (and everyone else's)
attorney fees.

[ Reply to This | # ]

Paul Allen wanted to lose
Authored by: KAKMAN on Sunday, December 12 2010 @ 03:01 AM EST
Somehow I feel this was all kabuki theater by Paul Allen to illustrate the
irritability of patent trolls and the need to instigate patent reform ASAP. The
costs is pocket change to him, but the time and energy wasted by the courts by
this exercise when there are other suits by real irritants, I mean blood
suckers, to vanquish, it's really annoying.

[ Reply to This | # ]

A partial victory
Authored by: Anonymous on Sunday, December 12 2010 @ 09:49 AM EST
A few things jump out at me in this decision, although I am not a lawyer.
Nonetheless, this is still at least a partial victory against a patent troll.

First, it is good to see that the district court has declined to make a new
policy on the pleading requirements for a patent infringement case. The court
could have easily opened itself (and other districts by non-binding precedent)
to a huge influx of these sorts of vague claims. (Basically, the complaint
boiled down to "I'm me, I own these patents, and I think company X
infringes my patent on their websites or products")

Second, unfortunately, the complaint can be amended with the specificity that
the judge basically spelled out. So this may not be the end of the story.

Third, and most importantly, these obvious, non-novel, abstract, software
patents are still considered "valid". While I know that fighting and
invlidating a patent is expensive, all that has been accomplished in this case
is... Nothing. The next time Interval wants to try to enforce these patents, it
may be against smaller players. Google et al. have only delayed and passed the
cost of destroying these patents to someone else. Hopefully the free software
community isn't the next target.

All in all, I can't call this a victory, only a delay in the inevitable- these
patents are still a threat to software freedom.

--Jpvlsmv, not logged in

[ Reply to This | # ]

Plaintiff is represented by counsel...
Authored by: hardmath on Sunday, December 12 2010 @ 11:52 AM EST
PJ often gives us some background about counsel in the cases she covers, so
perhaps I missed that here. But Interval seems to be represented by two firms,
SUSMAN GODFREY L.L.P. and HEIM, PAYNE & CHORUSH, L.L.P., based on the
initial complaint.

The dismissal notes that Interval's counsel should have been prepared shortly
following the scheduling conference to make complete disclosures of any factual
basis for alleged infringement, so that the requirement to file an amended
complaint is not prejudicial.

Unless Interval's counsel was unprepared for anything but capitulation by AOL,
Google, etc.

regards, hm


---
Got to pay your dues if you wanna sing the blues. And you know it don't come
easy. (Starkey/Harrison, 1970)

[ Reply to This | # ]

The problem is ...
Authored by: Anonymous on Sunday, December 12 2010 @ 07:49 PM EST
that Paul Allen and his counsel all new perfectly well that
his complaint was a joke when they submitted it. All that
has happened is that the court and defendants have spent an
absurd amount of time and money accomplishing exactly
nothing. And Allen is in now way harmed by this. He just
refiles the *real* complaint.

The fact that this sort of willful conduct on the part of
plaintiffs goes unpunished is appalling. It is contempt of
both the courts and of everyone else involved. The fact
that this kind of abuse is allowed by the courts shows just
how little this system is about justice and how much it is
about lawyers getting rich playing word games.

What should have happened is that Allen and all his counsel
should have been locked up for contempt of court as soon as
his idiotic non-complaint was filed. Until that happens, I
will remain convinced that the entire US legal system
worthless.

[ Reply to This | # ]

Google's Motion to Dismiss Paul Allen's Patent Infringement Complaint Granted
Authored by: Anonymous on Tuesday, December 14 2010 @ 03:22 PM EST
Even so, I expect Allen either to file an amended complaint or to appeal the ruling on this case. Someone like him doesn't tend to bring a suit like this unless he thinks he has a reasonable chance of winning. At the very least, he can use his billions to harass the tech companies via endless patent litigation, until the two sides work out some kind of settlement.

[ Reply to This | # ]

Google's Motion to Dismiss Paul Allen's Patent Infringement Complaint Granted
Authored by: Anonymous on Monday, December 20 2010 @ 07:38 PM EST
Even so, I expect Allen either to file an amended complaint or to appeal the ruling on this case. Someone like him doesn't tend to bring a suit like this unless he thinks he has a reasonable chance of winning. At the very least, he can use his billions to harass the tech companies via endless patent litigation, until the two sides work out some kind of settlement.

[ Reply to This | # ]

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