End User Agreement Reserving Discretion to Not Provide Accused Service Negates "Direction and Control" Needed for Joint Infringement Claim

The court dismissed for failure to state a claim plaintiff's claim that defendants and end users of Google Voice (an internet telephone service) jointly infringed plaintiff's internet telephone method patent. "Plaintiff contends that the [patent-in-suit] was infringed by multiple parties acting at the direction of cell phone users. . . . Without pleading 'control or direction,' [plaintiff] has not set forth a plausible claim for joint patent infringement. . . . [Plaintiff] alleges that cell phone users enter into subscription agreements with [defendant]. The Plaintiff does not, however, allege that these agreements 'contractually obligate' [defendant] to connect [the accused system's] calls using the [a platform] interface. . . . Indeed . . . [plaintiff] specifically alleges that '[defendant] reserves the right to restrict calls or connections to any telephone in its sole discretion.' . . . Thus, viewing the allegations in the light most favorable to the Plaintiff, [it] has not alleged that cell phone users direct or control the allegedly infringing method."

Selex Communications, Inc. v. Google, Inc., 1-09-cv-02927 (GAND May 11, 2012, Order) (Thrash, J.).