Golden v. Nadler Pritikin & Mirabelli, No. 05 C 283, Slip Op. (N.D. Ill. Dec. 21, 2010) (Gottschall, J.).
Judge Gottschall denied plaintiff Golden’s motion to dismiss or for a more definite statement pursuant to Fed. R. Civ. P. 12(b)(6) & (e) in this copyright dispute over real estate listings. Golden was not required to attach a copy of its copyright registration to its complaint. And while it was an "extraordinarily close question whether Golden’s "bare-bones" amended complaint satisfied Twombly, it did plead ownership of a registered copyright and it did plead that defendant allegedly copied the work without consent. Because Golden’s complaint was so bare-bones, defendant’s motion to dismiss was not in bad faith. The Court, therefore, denied Golden’s Fed. R. Civ. P. 11 motion regarding the motion to dismiss.
Avery Dennison Corp. v. Continental Datalabel, Inc., No. 10 C 2744, Slip Op. (N.D. Ill. Nov. 30, 2010) (Kennelly, J.).
Judge Kennelly granted plaintiff Avery Dennision’s ("ADC") Fed. R. Civ. P. 12(b)(6) motion to dismiss defendant Continental Datalabel’s ("CDI") inequitable conduct, Walker Process fraud and sham litigation counterclaims in this patent dispute regarding labels with a tear off liner to expose a portion of a label column for easy removal.
CDI alleged two bases of inequitable conduct. First, ADC allegedly intentionally failed to tell the examiner that certain limitations outlined in a series of bullet points were from a particular prior art reference. That claim filed because ADC had previously disclosed the prior art reference at issue to the examiner – once a reference is before an examiner, it cannot be found to have been withheld from the examiner. Second, ADC allegedly intentionally failed to disclose to the examiner that curling up of labels is an inherent characteristic of adhesive labels. But ADC had disclosed the inherent curling up by disclosing various prior art references regarding adhesive labels that taught the inherent curling up, combined with the examiner’s presumed experience in the art.
Walker Process Fraud Claim
Because CDI’s Walker Process claim was premised upon the alleged inequitable conduct, CDI’s Walker Process claim failed. The Court further noted that because inequitable conduct is a broader concept than Walker Process fraud, a party that fails to make its case for inequitable conduct, cannot make a Walker Process fraud claim.
CDI’s sham litigation claim was based upon allegations that ADC knew the patent was invalid based upon the Brady prior art reference, which was before the examiner, and because had ADC tested CDI’s accused labels, ADC would have realized its suit was baseless. Because the Brady reference was before the examiner, however, the Court could not find that the claim was "objectively baseless" as required for sham litigation. ADC could have reasonably believed that after the examiner considered Brady and granted ADC’s patent, ADC’s patent was in fact valid over Brady.
And ADC’s alleged failure to test the accused CDI product was not sufficient for a sham litigation claim. Sham litigation requires more than an unsuccessful suit. While CDI may eventually prove that it did not infringe, ADC’s failure to perform one test identified by CDI does "not permit the court to infer more than the mere possibility" that ADC’s suit was in bad faith.
Optics Planet, Inc. v. OpticSale, Inc., No. 09 C 7934, Slip Op. (N.D. Ill. Jul. 14, 2010) (Shadur, Sen. J.).
The Court granted in part Plaintiff Optics Planet’s Fed. R. Civ. P. 12(b)(6) motion to dismiss. Initially, the Court noted that defendants’ tortious interference with prospective business relationships and with prospective economic advantage were not separate counts, but at most separate theories of recovery for a single court, calling the claims "Tweedledum and Tweedledee."
But the claims, whether single or multiple counts did not survive the competitor’s privilege. Defendants offered no evidence showing that plaintiff was doing anything except "feathering its own competitive nest". Defendants’ attempted monopolization claims were also dismissed because there was no evidence that plaintiff did anything but compete, and there was no indication that plaintiff would or could acquire power over market pricing.
Finally, the Court dismissed defendant’s accounting counterclaim to the extent the claim was based upon the dismissed counterclaims.