Wednesday, February 13, 2013

Plaintiff’s Failure to Download Free Smartphone Application and Purchase Accused Service Warrants Rule 11 Sanctions

Following summary judgment of noninfringement the court granted defendant's motion for Rule 11 sanctions for failure to conduct an adequate pre-filing investigation. "Although the law does not require that every patent-holder obtain an alleged infringer’s product before bringing suit, obtaining and using the alleged infringer’s product is an effective way to assess potential infringement. . . . [Plaintiff's counsel] provides no detail . . . about what steps he took to conduct his analysis or how he compared the claims to the application. . . . '[T]he facts here were easily and cheaply accessible to [plaintiff] and its counsel. They could have downloaded the free application and purchased [defendant's service].' [Plaintiff], however, did not take this simple, inexpensive investigative step, either before filing the complaint or after receiving [defendant's] initial Rule 11 motion. . . . [Plaintiff] instead reviewed Terms of Use on [defendant's] website – not even the terms of service on the application itself – rather than using the application to purchase [defendant's service]."

Smart Options, LLC v. Jump Rope, Inc., 1-12-cv-02498 (ILND February 11, 2013, Order) (St. Eve, J.).

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