United States District Court, District of Delaware
REPORT AND RECOMMENDATION
Christopher J. Burke, United States Magistrate Judge
Presently pending before the Court in these three cases are motions to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), by Defendants Charter Communications, Inc. ("Charter") (Civil Action No. 13-1420-LPS, D.I. 10), Time Warner Cable Inc. ("Time Warner") (Civil Action No. 13-1425-LPS, D.I. 7), and Verizon Communications Inc. ("Verizon") (Civil Action No. 13-1426-LPS, D.I. 7). The motions each seek dismissal of Plaintiff Custom Media Technologies LLC's ("Plaintiff or "Custom Media") respective claims of direct patent infringement. For the reasons that follow, the Court recommends that Defendants' motions each be DENIED.
In late 2013, Plaintiff filed eight cases in this Court, including the instant three, asserting infringement of United States Patent No. 6, 269, 275 ("the '275 patent"), entitled "Method and System for Customizing and Distributing Presentations for User Sites[.]" (D.I. 6, ex. A) In the three cases at issue here, Plaintiff has filed a First Amended Complaint ("FAC") containing a single claim of direct infringement against each of the three Defendants. (D.I. 6; see also Civil Action No. 13-1420-LPS, D.I. 7; Civil Action No. 13-1425-LPS, D.I. 6) In all three cases, in lieu of filing an Answer, Defendants filed their respective motions to dismiss. On February 4, 2014, Judge Leonard P. Stark referred each of the instant motions to the Court for resolution. (D.I. 14; see also Civil Action No. 13-1420-LPS, D.I. 15; Civil Action No. 13-1425-LPS, D.I. 10)
II. LEGAL STANDARD
To properly plead a claim of direct infringement, a complaint must at least comply with Form 18 of the Federal Rules of Civil Procedure. See K-Tech Telecomms., Inc. v. Time Warner Cable, Inc., 714 F.3d 1277, 1283-84 (Fed. Cir. 2013) ("[T]o the extent that any conflict exists between Twombly (and its progeny) and the Forms regarding pleadings requirements, the Forms control."); Clouding IP, LLC v. Amazon.com, Inc., C.A. Nos. 12-641-LPS, 12-642-LPS, 12-675-LPS, 2013 WL 2293452, at *2 (D. Del. May 24, 2013). Form 18 provides the following exemplary language relating to the required allegation of a plaintiff s patent ownership (and the type of invention that patent relates to), as well as to the required allegation of infringement by defendant's product:
2. On date. United States Letters Patent No. ____ were issued to the plaintiff for an invention in an electric motor. The plaintiff owned the patent throughout the period of the defendant's infringing acts and still owns the patent.
3. The defendant has infringed and is still infringing the Letters Patent by making, selling, and using electric motors that embody the patented invention, and the defendant will continue to do so unless enjoined by this court.
Fed. R. Civ. P., App. of Forms, Form 18. Thus, as a general matter, "Form 18 does not require [plaintiff] to specify 'what functionality infringed, or any facts that show how [defendant] performs even one step of a claimed method.'" Clouding IP, 2013 WL 2293452, at *2 (citation omitted). And with regard to identification of accused products, "Form 18 requires only identification of a general category of products, for example ' electric  motors.'" Id. In the end, the touchstones of the analysis under Form 18 are notice and facial plausibility, and while "these requirements serve as a bar against frivolous pleading, it is not an extraordinarily high one." K- Tech Telecomms., 714 F.3d at 1286.
It is Plaintiffs allegations of direct infringement-specifically its allegations as to the accused products and services, and their relationship to the patented technology-that are at issue in the instant motions. The FACs state, inter alia, that the invention of the '275 patent "generally relates to customizing and distributing presentations for user sites over networks for utilization on demand; the presentations including audio, video, or textual elements" and that "[e]xamples of networks include a cable television network[.]" (D.I. 6 at ¶ 7) The FACs go on to allege:
11. Verizon has infringed the '275 patent by using a method and system of customizing and distributing presentations for user sites that directly infringes at least Claim 1 of the '275 patent either literally or under the doctrine of equivalents. Verizon's infringement includes, but is not limited to, its provision of DVR devices and DVR service to its FiOS television customers.
(Id. at ¶11 (emphasis added)) Defendants assert that Claim 1 of the patent-in-suit relates to "customizing and distributing presentations for user sites[, ]" and not to "DVR technology, which allows television viewers to watch and record television programming." (D.I. 8 at 4 (internal quotation marks and citation omitted)) Thus, they urge, the facts pled in the FACs do not "allow for an inference that the asserted patent somehow covers the 'DVR devices and DVR service' accused." (Id.) Defendants acknowledge that Form 18's requirements are minimal, but nevertheless argue that "[t]he Form would not be met, and the pleading standards of the Federal Rules would not be satisfied, if a plaintiff stated that its patent covered an electric motor and that the defendant infringed because he sells cakes." ( Id. at 3) They assert that this is a similar situation.
Plaintiff has accused a general category of products and services (here, "DVR devices and DVR service" provided to cable television customers) of infringement. No more specificity as to the accused products or service is required by Form 18. Clouding IP, 2013 WL 2293452, at *2 (plaintiff satisfied Form 18 when it "identified at least one accused product or product category for each count"); see ...