Pleading Theory of Vicarious Liability Not Required for Joint Infringement Claim

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.)