SoftView LLC v. Apple Inc. et al
MEMORANDUM ORDER: GRANTING 37 Plaintiff SoftView LLC's Motion to Dismiss and Strike Defendant Apple Inc.'s and Defendant AT&T Mobility LLC's Inequitable Conduct Defenses filed by SoftView LLC; GRANTING 61 MOTION to Amend/Correct 27 Amended Complaint filed by SoftView LLC. Signed by Judge Leonard P. Stark on 9/30/11. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 1O-389-LPS
APPLE INC., and AT&T MOBILITY LLC,
At Wilmington this 30th day of September 2011:
IT IS HEREBY ORDERED that:
Pending before the Court is Plaintiff Softview LLC' s ("Softview") Motion
for Leave to Amend its Complaint to Assert Claims Against Additional Infringers. (D.I. 61)
("Motion to Amend") By its Motion to Amend, Softview seeks to add to this case allegations of
infringement of the same patents-in-suit against additional defendants. Having reviewed the
parties' filings, the Motion to Amend is GRANTED. Softview's Motion to Amend is timely
under the Scheduling Order (D.I. 57 , 2), the requirements for permissive joinder are satisfied,
see Fed. R. Civ. Proc. 20 & 21, and the proposed addition of additional defendants will promote
judicial economy. Defendants' opposition largely consists of concern about jury confusion as
between Defendants' products (i.e., Apple devices using Apple's proprietary Safari web browser)
and the products of the additional defendants which Softview is adding to the case (i.e., devices
using the open-source Android platform developed by Google). Under the circumstances, it
would be premature for the Court to decide the issue of separate trials at this time. See Fed. R.
Civ. Proc. 20(b), 42(b). Any party is free to present a request for separate trials at any time up to
the date of the final pre-trial conference. The concerns raised by Defendants do not present
sufficient reason to deny Softview leave to amend its complaint as requested.
Also pending before the Court is Softview's Motion to Dismiss and Strike
Defendant Apple Inc.'s and Defendant AT&T Mobility LLC's Inequitable Conduct Defenses.
(D.I. 37) ("Motion to Strike") Defendants oppose the Motion to Strike and request that it be
denied; in the alternative, Defendants request leave to amend their pleadings, contending that
their proposed amendment eliminates any purported deficiency identified by Softview. (D.!. 45
at 1-2, 11-13 & Ex. A) Having reviewed the parties' filings, the Motion to Strike is GRANTED.
Defendants' original and proposed amended pleadings fail to adequately allege scienter. See
Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1330 (Fed. Cir. 2009) (stating
inequitable conduct pleading must allege facts "giv[ing] rise to a reasonable inference of scienter,
including both (1) knowledge of the withheld material information or of the falsity of the
material misrepresentation, and (2) specific intent to deceive the PTO"). Defendants' theory is
based on a mere disagreement with Softview's prosecution counsel as to whether certain
amendments impermissibly added "new matter" as well as the relative timing of those
amendments and Defendants' introduction of the accused Apple iPhone. (D.!. 45 at 1,4-6) This
disagreement does not give rise to a reasonable inference that prosecution counsel knew he was
amending to add new matter and intended to deceive the PTO of this fact. See generally
Astrazeneca Pharm. LP v. Teva Pharm. USA, Inc., 583 F.3d 766, 770 (Fed. Cir. 2009) ("Intent to
deceive cannot be inferred from a high degree of materiality alone, but must be separately proved
to establish unenforceability due to inequitable conduct."). Accordingly, the proposed
amendment is futile, as it fails to state an affirmative defense for invalidity of the patents-in-suit
due to inequitable conduct on which relief could be granted.
Delaware counsel are reminded of their obligations to inform out-of-state counsel
of this Order. To avoid the imposition of sanctions, counsel shall advise the Court immediately
of any problems regarding compliance with this Order.
UNITED STATES DISTRICT JUDGE