United States District Court, W.D. Wisconsin
D. PETERSON District Judge
Palmer Hamilton, LLC, brings this patent suit against a
competitor, defendant AmTab Manufacturing Corporation, for
manufacturing and selling a collapsible booth that allegedly
infringes Palmer Hamilton's patent, U.S. Patent No. 9,
270, 265 (the '265 patent). AmTab has moved to dismiss
Palmer Hamilton's complaint, pursuant to Federal Rule of
Civil Procedure 12(b)(6). Dkt. 7. AmTab contends that the
complaint fails to plausibly allege that AmTab has infringed
the '265 patent, either directly or indirectly.
Hamilton's allegation of direct infringement would easily
pass muster under the pleading standard modeled in Form 18 of
the Federal Rules of Civil Procedure. But as of December 1,
2015, the forms are no longer part of the federal rules, so
the familiar Twombly/Iqbal pleading
standard now applies. Exactly how that standard applies in
patent cases is an open question in the Federal Circuit and
the regional courts of appeals. AmTab thinks that
Twombly/Iqbal should require a plaintiff to lay out
its infringement allegations element-by-element in the
complaint, which is a lot more than old Form 18 required.
court will not require plaintiffs to plead direct
infringement element-by-element for two reasons. First, the
old Form 18 approach is still generally sufficient to
articulate a plausible claim for direct infringement.
Twombly/Iqbal does not require a plaintiff
to prove its case in the complaint, or even convince anyone
that it has a good case. The allegations in the complaint
just have to get over the low hurdle of plausibility. In most
patent cases, especially those like this one involving
mechanical devices, identifying the claims asserted and the
devices accused will be enough to do the job (assuming, of
course, that the complaint includes the other necessities,
such as allegations of patent ownership and jurisdiction).
Here, the complaint identifies the patent at issue; it
alleges that the '265 patent discloses and claims a
“collapsible booth”; and it alleges that
AmTab's collapsible booths-as depicted in the marketing
flyer-infringe claims 1, 11, and 14 of the '265 patent.
Unlike most of the cases that AmTab cites in its briefing,
the patent-in-suit discloses a relatively simple, mechanical
product. The complaint plausibly alleges direct infringement.
and more important, this court requires standardized pretrial
disclosures that force both sides to lay out their core
contentions element-by-element early in the case. Given that
both sides will have to put their cards on the table
relatively early in the case, motions attacking the pleadings
are generally a waste of resources for the parties and the
mistake: a patent plaintiff has to have a good faith basis
for bringing suit in the first place, and that means the
plaintiff has to have conducted an element-by-element
analysis of the accused instrumentality before filing the
complaint. But there are too many fair reasons why a
plaintiff might be unable or justifiably reluctant to put
that level of detail in the complaint, so this court will not
require it. But the court sets a schedule by which both sides
have to make early element-by-element disclosures of their
infringement and invalidity cases. In a more complex, unusual
case, the minimal approach might not establish a plausible
allegation of direct infringement. But such cases will be
rare, and this is not one of them. AmTab complains that
Palmer Hamilton has not identified where each claim element
is present in the accused product; AmTab does not contend
that an element is conspicuously absent or that infringement
is actually implausible.
of indirect infringement require a plaintiff to do more than
identify the asserted claims and accused devices. “To
state a claim for inducement of infringement, the patentee
must establish ‘first that there has been direct
infringement, and second that the alleged infringer knowingly
induced infringement and possessed specific intent to
encourage another's infringement.'” Nalco
Co. v. Chem-Mod, LLC, No. 14-cv-2510, 2015 WL 507921, at
*3 (N.D. Ill. Feb. 4, 2015) (quoting Broadcom Corp. v.
Qualcomm, Inc., 543 F.3d 683, 697-98 (Fed. Cir. 2008)).
To state a claim for contributory infringement, “in
addition to proving an act of direct infringement, plaintiff
must show that defendant ‘knew that the combination for
which its components were especially made was both patented
and infringing' and that defendant's components have
‘no substantial non-infringing uses.'”
Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301,
1320 (Fed. Cir. 2009) (quoting Cross Med. Prods., Inc. v.
Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1312 (Fed.
Cir. 2005)). “Both induced infringement and
contributory infringement require a pleading of knowledge
and/or specific intent.” Radiation Stabilization
Sols., Inc. v. Varian Med. Sys., Inc., No. 11-cv-7701,
2012 WL 3757489, at *4 (N.D. Ill. Aug. 28, 2012).
course the factual support for the additional allegations of
indirect infringement are typically in the control of the
defendant, so these facts will often have to be alleged on
information and belief. Palmer Hamilton's complaint
includes those requisite allegations of knowledge and intent.
The allegations are sparse, but plausible. They need not be
persuasive or supported by greater factual detail at this
court's preliminary pretrial conference order requires
Palmer Hamilton to disclose soon precisely what AmTab is
looking for, without the need for motion practice over the
form of the complaint.
ORDERED that defendant AmTab Manufacturing Corporation's
motion to dismiss, Dkt. 7, is DENIED.
 The law of the regional circuit,
rather than the Federal Circuit, governs Rule 12(b)(6)
motions in patent cases. See In re Bill of Lading
Transmission & Processing Sys. Patent Litig., 681