Judge Pittman granted the plaintiff’s motion to strike the defendant’s patent misuse counterclaim for failure to state a claim since the alleged conduct – bad faith patent assertion against a competitor – isn’t patent misuse.
Judge Biery granted the motion by defendant Google to dismiss the plaintiff’s case, finding the infringement claim not plausible – and noting a recent NDCA opinion finding the same thing. The Court also denied leave to amend.
You have really got to work hard to achieve a result this bad. On the eve of trial in the WDTX, Judge Albright dismissed the plaintiff’s claims because the plaintiff had lost its patents via a turnover order after it was sanctioned in the EDTX and didn’t pay those sanctions, nor did it post a supersedeas bond while appealing them, thus making them vulnerable to the turnover order. (For clarification, the EDTX case being referenced is not the underlying sanctions order against this attorney I posted on a few weeks ago. Nor is it the one from the NDTX I also posted on recently, nor the one from D. Del. – both also against the same attorney. As I said, you have to work hard to get this result.
Judge Albright denied the defendant’s motion to dismiss the plaintiff’s direct infringement and pre-suit indirect and post-suit willful infringement claims. The court granted the motion to dismiss the pre-suit willful infringement claims, as well as the defendant’s motion challenging the sufficiency of the plaintiff’s pleadings that the defendant makes/sells/etc. the accused devices in the United States, as well as the motion directed to the plaintiff’s joint infringement and alter ego theories, but with leave to amend.
Judge Pitman granted the initial ground for the motion, finding that the allegations in the pleadings failed to sufficiently identify software or devices for each claim limitation. The court declined to consider the proffered updated charts as outside the pleadings, but granted the plaintiff 14 days to seek leave to amend so that it could.
The court affirmed the magistrate judge’s recommendation that the defendant’s motion to dismiss be granted with prejudice as to the plaintiff’s copyright infringement claims as to certain unregistered articles and certain requests for statutory damages.
The court actually granted the entire motion, but only the preempted claims – unfair competition, conversion, tortious interference, and unjust enrichment – were dismissed with prejudice. The remaining claims were dismissed for failure to state a claim and lack of personal jurisdiction, but with leave to amend.
The court recommended granting this motion as to the plaintiff’s claims against one defendant for failure to plead sufficient acts that that defendant committed to infringe the copyright or violate the DMCA, but denial of the remaining grounds.