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.
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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
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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.
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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)
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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]
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