United States District Court, D. Delaware
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).
reasons discussed below, the court grants Defendant's
motion in-part and denies it in-part.
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
support their allegations about Defendant's system's
functionality in the claim chart. Id. at Addendum.
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.
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
III. LEGAL STANDARD
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.
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.
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. The court finds that IPCS has met its
burden under Twombly/Iqbal.
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 ...