Tuesday, May 8, 2012

Indirect Infringement Pleading Need Not Identify Specific Direct Infringer

The court denied defendants' motions to dismiss plaintiff's indirect infringement claim for failure to state a claim. "Defendants argue that a specific third party must be identified. . . . [T]he Court disagrees. . . . As Plaintiff points out, exact specificity of the third party is not required at the trial level, let alone at the pleading stage. In [Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301 (Fed. Cir. 2009)], the Federal Circuit allowed a jury verdict finding inducement of infringement and contributory infringement to stand where no single third party infringer had been identified. . . . The Court notes that case involved a product that was capable of being used in a non-infringing manner, and so the inference that someone used it in an infringing manner is an even greater leap than what is alleged here, that no non-infringing use is possible. Plaintiff has alleged Defendants’ customers have downloaded the app and that they have 'operate[d]' them on their phones. That suffices."

Cascades Branding Innovation LLC v. Walgreen Co., et. al., 1-11-cv-02519 (ILND May 3, 2012, Order) (Leinenweber, J.)

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