In denying defendants' motion for judgment on the pleadings regarding claims of joint infringement, the court found that "there is little doubt that [BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373, 1380 (Fed. Cir. 2007)] and [Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1329 (Fed. Cir. 2008)] have elevated the level of proof that is necessary to succeed on a joint infringement theory. However, this Court is not willing to read these decisions as mandating a heightened pleading standard that requires a plaintiff to plead a specific theory of vicarious liability. It is true that [plaintiff] must eventually prove 'direction and control' to establish joint infringement, but the legal standard enunciated by Paymentech and reiterated by Muniauction simply does not invoke a heightened pleading standard nor does the standard necessarily require vicarious liability."
Charles E. Hill & Associates, Inc. v. Abercrombie & Fitch Co. et al, 2-07-cv-00234
(TXED July 2, 2009, Order) (Folsom, J.)