(Judge Phyllis Hamilton)
Before the recent amendment to the Federal Rules abolishing form complaints, it was rare to see parties file motions to dismiss in patent infringement cases, and even rarer to see them granted. But Judge Hamilton recently granted such a motion that defendant Bulbrite filed directed at allegations in a complaint that was not subject to those recent amendments. And now, plaintiff Bluestone must amend its complaint to add more specificity concerning its infringement allegations, notwithstanding its arguments that it provided the level of notice required to establish its claims of infringement that existed under applicable law prior to December 2015.
Bluestone alleged in its complaint that Bulbrite infringes at least claim 1 of the asserted patent, which is directed to the fabrication of nitride semiconductor films for use in LED devices, by "directly or through intermediaries, making, using, importing, providing, supplying, distributing, selling, and/or offering for sale LED Lightbulbs." Bluestone further alleged Bulbrite thus is "liable for infringement... pursuant to 35 U.S.C. § 271."
Bulbright moved to dismiss these allegations as insufficient to put it on notice as to the nature of the alleged infringement. For example, Bulbright argued that the complaint does not provide notice of how it has allegedly infringed, or under which subsections of § 271 Bluestone is alleging infringement. Bluestone countered that former Form 18 of the Federal Rules of Civil Procedure, which was operative at the time the complaint was filed, only requires bare-bones allegations, which it met by asserting that Bulbrite has infringed by making, selling, and using the device embodying the patent.
The Court disagreed, in part. With respect to the notice requirement, Judge Hamilton found it insufficient to allege that Bulbrite had infringed the patent. She reasoned that "if giving notice by filing the complaint were adequate, the inclusion of that requirement [in Form 18] in a list of what is necessary to state a claim in the complaint would be nonsensical." Instead, the Court interpreted this requirement as indicating what products or combinations of products are accused of infringement and Bluestone's complaint provides such notice. However, the Court also noted that Form 18 applies only to claims for direct infringement. And because Bluestone's complaint does not specify what theory of infringement it is proceeding under—and includes "supplying, "providing," and "distributing" language associated with induced or contributory infringement allegations—the Court granted Bulbrite's motion to dismiss.
The Court also granted Bluestone permission to file an amended complaint. In so doing, Judge Hamilton made clear that, to the extent Bluestone does intend to assert a claim for indirect or contributory infringement, it is required to "support each such claim with additional factual allegations beyond those required by Form 18."
As we discussed previously on this blog, the December 1, 2015 amendments to the Federal Rules of Civil Procedure call into question the bare-bones allegations that have traditionally been permitted under Form 18. The Court's decision did not address this, instead noting that "[a]t the time that Bluestone filed the complaint, Form 18 was still operative and controlling" and finding support to grant the motion to dismiss even under a Form 18 analysis.
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