Twombly and Patent Pleadings in the Eastern District of Texas

FotoMedia Technologies, LLC v. AOL, LLC. et al, 2:07-cv-255 (E.D. Tex. Aug. 29, 2008)
Judge: Chad Everingham
Holding: Report and Recommendation that Motion to Dismiss / for More Definite Statement Be DENIED
One of the more intriguing questions in federal litigation in the past year in general (patent litigation included) has been what effect the U.S. Supreme Court's recent opinion in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007) regarding pleading standards will have.  There have been numerous motions filed in patent cases (as well other types of litigation) seeking to dismiss or for more definite statement based on the degree of factual allegations in the plaintiff's petition.  There hasn't been a great deal of published caselaw from the judges in the district on this point (although there are unreported opinions on the subject), so this opinion is of particular interest.
In his report and recommendation recommending that a Twombly motion to dismiss or for more definite statement be denied in a patent case pending in Marshall, Judge Chad Everingham addressed the issue.  Judge Everingham observed that Rule 8(a) requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). He then went on to note that the example given in Form 16 (which covers patent infringement) of the Federal Rules of Civil Procedure provides simply that "Defendant has for a long time past been and still is infringing [the patent-in-suit] by making, selling, and using electric motors embodying the patented invention, and will continue to do so unless enjoined by this court." FED. R. CIV. P. app. Form 16.
 After reciting the well-recognized law that a motion to dismiss under rule 12(b)(6) is “viewed with disfavor and is rarely granted.” Lowrey v. Texas A&M University Sys., 117 F.3d 242, 247 (5th Cir. 1997). the Court put the contention everyone's interested in on the table.

Although the defendants cite to Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007) to suggest that a plaintiff must plead specific facts to support the elements of an indirect or willful infringement charge, the Federal Circuit recently considered the issue, albeit in the context of a pro se plaintiff, and rejected the argument that Bell Atlantic changed the pleading requirements of Rule 8(a) in patent infringement cases." McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 n.4 (Fed. Cir. 2007)). "What is required is that the pleading give “the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007). In a patent infringement case, “a patentee need only plead facts sufficient to place the alleged infringer on notice as to what he must defend.” McZeal, 501 F.3d at 1357.
 Under rule 12(e), “[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.” Fed. R. Civ. P. 12(e).

After considering the plaintiff's allegations regarding willful and indirect infringement (and note that the defendants' motion was limited to those two allegations, not direct infringement, identification of infringing products, etc.) in that case, Judge Everingham concluded that "the allegations are sufficient to state a claim for indirect infringement and willful infringement, and the appropriate vehicles for clarification of the allegations are the disclosures mandated by the Local Patent Rules and discovery conducted under the Federal Rules of Civil Procedure."  Judge Everingham also recommended denial of the motion for more definite statement under Rule 12(e), noting that the pleading was not so vague that the defendants could not reasonably be required to frame a responsive pleading.
Again, this is a report and recommendation recommending denying the defendants' motions to dismiss or for more statement with regard to the plaintiff's allegations of willful and indirect infringement on the grounds that they are insufficient under Twombly. 
By the way, the artwork is Leda and the Swan by artist Cy Twombly.  No relation to the named plaintiff (that I know of).  Just thought I'd brighten everyone's afternoon with a little art that's at least marginally related to the subject matter of the post.