On Friday, October 1, 2010, Microsoft Corporation brought a patent infringement lawsuit against Motorola in the United States Federal District Court for the Western District of Washington, which is located in Microsoft’s backyard in Seattle, Washington. The complaint filed by Microsoft alleges that the smartphones made by Motorola that include the Android operating system are infringing upon nine Microsoft patents. Simultaneously with filing in the Western District of Washington, Microsoft also filed a companion lawsuit in the International Trade Commission, which will seek an order to prohibit the importation into the United States of infringing smartphones. Damages are not available at the ITC, which is why an ITC complaint filed simultaneously with a federal district court action is becoming the en vogue thing to do these days. The ITC can and does typically wrap up its cases far quicker than most federal district courts, and that proceeding can also significantly influence a federal district court judge given that validity and infringement will already have been litigated.
Infringement of the following nine patents is alleged by Microsoft: U.S. Patent No. 5,579,517, U.S. Patent No. 5,758,352, U.S. Patent No. 6,621,746, U.S. Patent No. 6,826,762, U.S. Patent No. 6,909,910, U.S. Patent No. 7,644,376, U.S. Patent No. 5,664,133, U.S. Patent No. 6,578,054, and U.S. Patent No. 6,370,566.
There are nine Counts, or causes of action, in the Microsoft lawsuit against Motorola. Each of them are pretty much completely devoid of any useful factual information and only barely provide any meaningful insight. Count I, which is made up of three paragraphs, one that incorporates by reference the previous paragraphs, substantively says:
11. Microsoft is the owner of all right, title, and interest in U.S. Patent No. 5,579,517 (“the ’517 patent”), entitled “Common Name Space for Long and Short File Names,” duly and properly issued by the U.S. Patent and Trademark Office on November 26, 1996 (a reexamination certificate for the ’517 issued on November 28, 2006). A copy of the ’517 patent is attached as Exhibit A.
12. The Defendant has been and/or is directly infringing and/or inducing infringement of and/or is contributorily infringing the ’517 patent by, among other things, making, using, offering to sell or selling in the United States, or importing into the United States, products and/or services that are covered by one or more claims of the ’517 patent, including, by way of example and not limitation, the Motorola Droid 2.
The remainder of the Counts in the complaint mirror this one, and all that can be said is that Microsoft claims they own these nine patents and they are of the belief, for unspecified reasons, that the Motorola Droid 2 is infringing one or more claims, which are not identified at this time.
I am not going to say that Microsoft is a patent troll, but this kind of ridiculous federal complaint is the type of complaint that one would normally see being filed by a patent troll that is trying to hold up one of the tech companies for ransom. Complaint by ambush has become the rule in patent infringement litigation it seems, and that is wholly unacceptable. How can any defendant begin to defend themselves when the complaint files says: “we own a patent, you make something, therefore we think you are directly infringing and/or inducing infringement and/or contributorily infringing one or more unspecified claims for one or more unspecified reasons.”
It is long past time for the federal court system to take a stand on embarrassing and inappropriate federal complaints. Plaintiffs that file complaints like this should not even be given the opportunity to file an amended complaint, but rather they should have their lawsuits dismissed with prejudice. I realize that will not happen because district court judges liberally allow for at least one amended complaint, which is probably a good rule, but when the complaint that is filed is such a joke and so obviously inadequate on its face why should the plaintiff be given even one chance to amend? In the Eastern District of Texas these types of complaints are likely to be given four, five or even six opportunities to be amended and that is a joke.
The filing of the first action in a patent infringement context is critically important, which is why these types of ridiculous complaints are so offensive. Plaintiffs have a right to pick the jurisdiction they want to litigate in, but the rule is really about who files first. The first filed action dictates where the litigation will be fought. In the patent arena that is almost always the plaintiff any more because if someone is thinking about suing you they don’t let you know for fear that you will file a Declaratory Judgment Action in a district court convenient to you, inconvenient to them and sympathetic to your cause. That, after all, is why Microsoft chose Seattle, right?
What Motorola should do is file a motion to dismiss with prejudice. These types of complaints are an embarrassment and must be stopped. They should simultaneously file a Declaratory Judgment Action seeking a determination of noninfringement and invalidity in a federal district court of their choosing, perhaps in Chicago, which is close to their headquarters. They will lose the motion to dismiss with prejudice in Seattle, and likely have the DJ action kicked out in Chicago, but they will have preserved the matter for appeal to the Federal Circuit. It is high time that the Federal Circuit weigh in on what is undoubtedly the biggest problem facing patent litigation defendants, which is bogus, crappy, non-informing complaints that clearly violated the Rules of Civil Procedure.
Defendants… stand up and fight like you mean it for crying out loud! Being a target is not a strategy!