Patent claims must be sufficient to show plausibility that the product infringes

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A recent Federal Circuit decision reaffirmed previous guidance on pleading requirements for a plaintiff alleging patent infringement. The decision was made in Bot M8 LLC v. Sony Corp. of Am., Case No. 2020-2218, July 13, 2021. In short, although a complainant does not need to prove their case at the plea stage, a complainant must plead sufficient facts to show that it is plausible that an offending product infringes the patent claim. A claimant cannot simply recite the elements of the claim and conclude that the accused product violated those elements.

In that case, the Federal Circuit heard appeals from patentees from the Northern District of California final judgment and several underlying decisions and orders. Most relevant to this article is the appeal of the order authorizing the defendants to dismiss the plaintiffs’ claims for infringement of several patents relating to gaming machines and targeting casinos, arcades and video games in general. The plaintiff had asserted that certain aspects of the Play Station 4 video game consoles and the defendants’ network infringed its patents.

The Federal Circuit upheld in part and in part reversed the decision of the district courts granting the defendants the motion to dismiss the first amended complaint. In doing so, the court considered the appropriate standard of advocacy for patent infringement, stating that, to the extent that this district court and others have adopted an item-by-item standard of general advocacy for patent infringement, this approach is unsubstantiated and goes beyond the standard that the Supreme Court formulated in IqbalandTwombly.

Rather, it is a matter of determining whether the factual allegations contained in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. When it comes to a patent infringement claim, it is not sufficient for a patentee to simply recite the elements of the claim and conclude that the accused product has those elements, but rather, [t]there must be some factual claims here which, when taken to be true, explain why it is plausible that the accused product infringes the patent claim.

Applying this standard to the present case, the Federal Circuit confirmed the rejection of two of the requests. With respect to one of the patents (the 540 patent), the court concluded that the complainants’ claims were inconsistent with its theory of infringement and in fact said that the complaint contained too much rather than too little, to the point. than [plaintiff] essentially pleaded out of court. And with respect to the 990 patent, the court also upheld the rejection when the claims supporting the claim were conclusive and only followed[ed] the language of claim.

With respect to the 988 and 670 patents, however, the Federal Circuit overturned the rejection of the claims because it disagreed with the lower courts ‘conclusion that the plaintiffs’ claims followed language too closely. of the claim to be considered plausible. The court considered various allegations made in the first amended complaint regarding the defect inspection program at issue and highlighted the allegations which gave a reasonable inference that the defect inspection program would be terminated before the start of a game. Simply put, the court concluded that these allegations were sufficient at the pleading stage and that the plaintiff did not need to prove his case at the pleading stage.

In summary, this decision provides useful advice to patent infringement plaintiffs to avoid rejection at the plea stage. As the Federal Circuit has rightly said: We explain, once again, that while a patentee invoking obligations is not insurmountable, a patentee can subject his claims to early rejection by pleading facts that are incompatible with the requirements of its claims.

Copyright 2021 Squire Patton Boggs (US) LLP National Law Review, Volume XI, Number 210

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