The number of Non-Practicing Entities (NPE) cases has increased in Delaware by almost 10% over the last year. If you or a client finds yourself the target of an NPE patent litigation suit, the next question is usually what are the chances of the United States District Court for the District of Delaware granting a motion to dismiss? Unfortunately, the majority of NPE cases are not resolved by 12(b)(6) motions to dismiss on direct infringement despite sparse pleadings. The NPEs have become adept at pleading sufficient information, cobbling together enough factual allegations to satisfy Federal Rule of Civil Procedure 8 and the facial plausibility standard in Ashcroft v. Iqbal.
The Court recently issued an opinion in Aperture Net LLC v. Cambium Networks, Inc. (21-298-RGA) denying the defendant’s motion to dismiss a NPE’s direct infringement claims. Despite the vague allegations in the seven-page complaint, the Court found that the plaintiff satisfied the facial plausibility standard and Rule 8. This outcome is in line with the general trend in Delaware where NPEs usually withstand motions to dismiss direct infringement claims without some sort of Section 101 challenge, which can be frustrating for clients who then have to decide whether to pay the price to settle at the outset or litigate.
The Court did, however, grant the defendant’s motion to dismiss pre-suit contributory infringement, finding that the plaintiff failed to plausibly plead that it had pre-suit knowledge of the accused patents. Clients and potential clients may want to consider a partial motion to dismiss as a means of pushing back and forcing the NPEs to litigate if the client does not want to resolve the case outright.
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