Monday, May 9, 2011

Pleading Constructive Knowledge Of Patents Is Sufficient to State a Claim for Indirect Infringement, But Plaintiff "Bears the Risk,

On Appeal, That The Federal Circuit Will Find Constructive Knowledge Is Not Enough."

Defendant's motion to dismiss plaintiff's indirect infringement claims for failure to state a claim was denied. "[Plaintiff] has only pled that [defendant] had 'constructive knowledge' - not actual knowledge -- of the patents through markings. The Federal Circuit recently suggested, in dicta, that constructive knowledge 'with persuasive evidence of disregard' for patent markings 'may perhaps' be enough to demonstrate knowledge for the purpose of inducement of infringement. In light of that indication in binding precedent just 15 months ago, the Court will not dismiss [plaintiff's] complaint against [defendant] on that basis. . . . [Plaintiff] bears the risk, on appeal, that the Federal Circuit will find constructive knowledge is not enough."

Trading Technologies International, Inc. v. BGC Partners, Inc., 1-10-cv-00715 (ILND May 5, 2011, Order) (Kendall, J.)

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