Groupon Inc. v. MobGob LLC, No. 10 C 7456, Slip Op. (N.D. Ill. May 25, 2011) (Hibbler, Sen. J.).
Judge Hibbler granted plaintiff Groupon’s motion to strike defendant MobGob’s affirmative defenses and to dismiss MobGob’s counterclaims, and denied MobGob’s motion to dismiss Groupon’s claim in this patent dispute involving online marketing systems.
MobGob’s Motion to Dismiss
Groupon pled the intent elements of its indirect infringement claims upon information and belief. And that pleading was sufficient even though intent is governed by Fed. R. Civ. P. 9(b) because even pursuant to Rule 9(b), intent and knowledge can be pled generally. Additionally, it was reasonable to infer from Groupon’s allegations that MobGob created or had someone create the accused system and the public nature of Groupon’s patent that MobGob had actually knowledge of its accused infringement.
Groupon’s Motions to Strike and Dismiss
First, Groupon sought to strike MobGob’s affirmative defense of invalidity. The Court initially noted that motions to strike are disfavored because they are unlikely to streamline a case or make resolving the case more efficient. But the Court still struck MobGob’s invalidity defense. MobGob’s invalidity defense did nothing more than identify the relevant statutory sections, offering not a single fact, upon information and belief or otherwise. While the Court noted there were some policy reasons for not holding affirmative defenses and counterclaims to the Twombly/Iqbal standards, the Seventh Circuit required that they be met for any pleading. The Court, therefore, struck MobGob’s invalidity defense. And for the same reason, the Court dismissed MobGob’s invalidity counterclaim because it also offered no facts. The Court also noted that it would not excuse inadequate pleading because of the Local Patent Rule 2.3(b) invalidity contentions that MobGob would be required to serve shortly after answering. The LPR 2.3(b) disclosures require significantly more detail than Fed. R. Civ. P. 8 notice pleading. So, MobGob could meet its Rule 8 obligations without providing the level of detail required by LPR 2.3(b).
The Court also struck MobGob’s affirmative defense regarding ownership of Groupon’s patent because it also lacked factual support, and because it did not accept Groupon’s facts as true, as required by an affirmative defense, instead challenging Groupon’s facts.