By now the reader should be familiar with the Markman hearing (in case the reader somehow missed it, the Markman hearing is where the judge construes various words and phrases of patent claims being asserted). The reader may also be aware of the Daubert hearing, where the judge decides whether a proffered expert witness is indeed expert enough to be allowed to testify.
Well folks, we now have yet another entrant into the noble pantheon of great hearings – the Twombly hearing, where the judge decides whether the plaintiff’s complaint alleges “enough facts to state a claim to relief that is plausible on its face.” Twombly is relatively new, growing out of a 2007 court decision and, therefore, still provides surprises to some plaintiffs – and their attorneys. (Bender v. Motorola, Inc.)
Bender sued Motorola, alleging that his patent, directed to a “Buffered Transconductance Amplifier” – whatever the heck that is – was being infringed. His complaint did not identify any specific accused products. Rather, it alleged infringement of certain broad categories of products including, “without limitation … satellite communications technology, and other products where high performance, high speed analog circuits are used, and/or components thereof.”
Motorola filed a motion to dismiss on the ground that the complaint failed to identify any particular accused product. Bender responded that the complaint provided all of the information required by Form 18 – the standard complaint form included in the Federal Rules Of Civil Procedure (the F.R.C.P.).
Not so, ruled the judge. “The form contemplates that the pleader identify the accused device with some semblance of specificity to alert the alleged infringer which device is at issue. It does not contemplate that the accused device or devices be described in terms of a multiplicity of generically described product lines such as ‘satellite communications technology’ and ‘audio amplifiers’ as [Bender] has done here.”
THE LESSON TO BE LEARNED: Just as you can’t rely on advice from the I.R.S. when you file your income tax return, so too you can’t rely on the forms in the F.R.C.P. when you file your complaint.