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IP Communication Solutions, LLC v. Viber Media USA Inc.

United States District Court, D. Delaware

April 5, 2017

IP COMMUNICATION SOLUTIONS, LLC, Plaintiff,
v.
VIBER MEDIA USA INC. Defendant.

          MEMORANDUM

         I. INTRODUCTION

         Plaintiff IP Communications Solutions, LLC ("IPCS") filed a patent infringement suit against Viber Media (USA) Inc. ("Viber"), on March 4, 2016. (D.I. 1). Plaintiffs subsequently filed an Amended Complaint on May 31, 2016. (D.I. 14). The Amended Complaint accused Defendant of direct and induced infringement of U.S. Patent No. 9, 247, 071 ("the '071 patent"), directed to Methods and Systems for Providing Portable VoIP Services. Id. Presently before the court is Viber's Motion to Dismiss for Failure to State a Claim, filed June 14, 2016. (D.I. 16).

         For the reasons discussed below, the court grants Defendant's motion in-part and denies it in-part.

         II. BACKGROUND

         In the Amended Complaint, Plaintiff accuses Defendant of infringing at least claims 49, 51, 52, 54 and 56 of the '071 patent by "making, using, selling, offering to sell, and/or selling within, and/or importing into, the United States, a VoIP server system that supports its Viber Mobile VoIP application." (D.I. 14, ¶ 12). The Amended Complaint includes a claim chart comparing each element of the asserted claims and Viber's sever system that supports its VoIP application. Id. at Ex. 2. Plaintiff also includes print-outs from Defendant's webpage, as well as Defendant's privacy policy, to support their allegations about Defendant's system's functionality in the claim chart. Id. at Addendum.

         The Amended Complaint also alleges indirect infringement-specifically, induced infringement-of claims 49, 51, 52, 54 and 56 of the '071 patent. Id. ¶ 15. Plaintiff alleges that Defendant has "been on notice of the '071 patent since at least service of the original complaint in this matter." Id. ¶ 16. Plaintiffs provide exemplary evidence from Defendant's website to demonstrate that Defendant "instructs and encourage[s] users to use the Viber VoIP app, and the VoIP server system that supports the Viber VoIP app, in a manner that infringes the '071 patent." Id. ¶ 19. Such examples include: (1) a webpage that instructs and encourages users to use the VoIP application to make VoIP calls; (2) a webpage that provides support and instruction to users on how to make VoIP calls using the Viber VoIP application; and (3) a webpage detailing a "Media Kit" that further encourages users to make VoIP calls using the Viber VoIP app and the server system. Id. ¶¶ 20-22.

         Viber filed a Motion to Dismiss for Failure to State a Claim in which it argues that IPCS' Amended Complaint fails to satisfy the pleading standards for both direct and induced infringement. For the reasons that follow, the court will deny the Motion for claims of direct infringement, but grant the Motion, without prejudice, for allegations of induced infringement.

          III. LEGAL STANDARD

          Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal where the plaintiff "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the court "accept[s] all factual allegations as true, construe[s] the complaint in the light most favorable to the plaintiff, and determine[s] whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Plaintiffs must provide sufficient factual allegations "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This requirement of plausibility is satisfied when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp., 550 U.S. At 545.

          IV. DISCUSSION

         Viber contends the Amended Complaint fails to satisfy the Twombty/Iqbal pleading standard for direct infringement because it does not adequately identify the accused instrumentality. (D.I. 17 at 1). Viber also contends that the Amended Complaint fails to plead all necessary elements of a claim for induced infringement. (D.I. 17 at 7.) The court will address each in turn.

         A. Direct Infringement

         As an initial matter, Form 18 no longer provides the proper measure for the sufficiency of a complaint that alleges direct infringement. Because the Advisory Committee for the Federal Rules of Civil Procedure abrogated Rule 84 and the Appendix of Forms effective December 1, 2015, the court must apply the Twombly/Iqbal pleading standard to the plaintiffs' complaint which was filed on March 4, 2016.[1] The court finds that IPCS has met its burden under Twombly/Iqbal.

         This District's local rules provide that "[w]ithin 30 days after the Rule 16 Conference and for each defendant, the plaintiff shall specifically identify the accused products and the asserted patent(s) they allegedly infringe, and produce the file history for each asserted patent." D. Del. Default Std. §4.a. These rules were promulgated post Twombly/Iqbal and are consistent with the Federal Rules of Civil Procedure's and courts' concern that a complaint "give[s] the defendant fair notice of what ...


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