Plausibility and Allegations of Infringement

The Twombly and Iqbal cases set forth the rule that to survive a motion to dismiss, a plaintiff must plead enough to state a claim to relief that is “plausible on its face.” None of this has anything to do with celebrated artist Cy Twombly, but it’s a good excuse to reference his work for those of you that enjoy that sort of thing.

Today’s EDTX Twiqbal guidance comes in the form of an order on a defendant’s renewed motion to dismiss  a patent plaintiff’s claims of willful and induced infringement as well as direct infringement

Four GD’s, two SOBs and one f-bomb comes to …

I just spent the last two days in depositions that were a model of decorum and professionalism by all involved, which reminded of one that wasn’t.

Once upon a time an EDTX judge was presented with a situation involving the use of coarse and profane language by a lawyer in a deposition.  (No, it didn’t involve Joe Jamail).

After considering all facts surrounding the deposition, arguments of counsel, and the attorney’s statement at the show cause hearing, the judge imposed a fine for the abusive behavior at his deposition.  But it’s how the fine was calculated that is of interest …

Findings and Conclusions on Section 101 Defense

A Lamkin next to a big old hairy Section 101 motion for summary judgment

Section 101 defenses of claims of lack of patentable subject matter can come up all many stages of the case – they can be the first rabbit out of the hat after a case is filed (a draft motion served before an answer is referred to as a Lamkin), during the pretrial phase of a case as a motion to dismiss, for judgment on the pleadings or for summary judgment, at trial (according to the CAFC) or even after trial.  That was how it came up in the attached case, where it was resolved by findings and conclusions after a trial on the merits of the infringement and invalidity claims.

Section 101 defense raised after trial

 

Withdrawing Deemed Admissions

Some afternoons it’s not the weather than sends chills down your spine but the thought that you could have been in a party’s position in a case you’re reading.  In the attached, Judge Mazzant denied a party’s motion to withdraw a party’s motion to withdraw and amend deemed admissions.  The order provides a useful guide on what facts are important when you find yourself in a similar situation.  Or, let’s be clear here – how not to respond to discovery requests.