Tuesday, December 29, 2009

Failure to Allege Time Period of Infringement Warrants Dismissal of Infringement Claim

The magistrate judge recommended granting defendants' motion to dismiss for failure to state a claim. "[Plaintiff] claims that defendants’ [product] infringes the patent-in-suit without alleging any facts as to when the infringement began or whether it has continued to this day. Against this, defendants show that they have not offered [the accused product] since 2002 – more than one year before the earliest filling date of the [patent-in-suit]. . . . Because proof that the [accused] product infringes the [patent-in-suit] would also prove that the product anticipates under 35 U.S.C. § 102(b), this court recommends granting defendants’ motion to dismiss."

Quantum Loyalty Systems Inc. et al. v. TPG Rewards Inc., 1-09-cv-00022 (DED December 23, 2009, Report & Recommendation) (Thynge, M.J.)

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