Recent Decisions From The Eastern District Of Texas Reject Early Application Of Divided Infringement Defense In Patent Cases


A series of recent decisions in the Eastern District of Texas indicate that defendants seeking early dismissal of patent infringement claims based on a defense of divided infringement will have to wait until after claim construction and discovery before the issue is ripe for consideration. For the third time this year, judges from this district have declined to address divided infringement at the pleading stage. In each case, the defendants brought motions to dismiss under Rule 12(b). And, in each case, Eastern District judges denied the motions, reasoning that dismissals for infringement theory defects in the pleadings are not ripe for consideration until plaintiffs have had the benefit of discovery and claim construction to fully develop their infringement theories. These recent decisions are in tension with those of other district courts that have granted similar motions for dismissal on the pleadings over the past two years. However, these decisions confirm that this variety of early dismissal will not be available in the Eastern District of Texas.

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