Two-Way Media Ltd. v. Comcast Cable Communications LLC et al

Filing 31

MEMORANDUM ORDER: The Motion to Dismiss (D.I. 19 ) is Dismissed as moot. The Report and Recommendation (D.I. 27 ) has been Considered, but the issueof its Adoption is moot. The request for leave to file a Third Amended Complaint is Granted. Plaintiff should separately file the "clean copy" of the Third Amended Complaint with the Clerk. Signed by Judge Richard G. Andrews on 8/10/2015. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

TWO-WAY MEDIA LTD.,
Plaintiff,

v.

Civil Action No. 14-1006-RGA

COMCAST CABLE
COMMUNICATIONS LLC, et al.,
Defendants.

MEMORANDUM•ORDER

Defendants filed a motion to dismiss (D .I. 19) on the grounds that the amended complaint
does not state a claim for joint infringement. The motion was briefed. (D.I. 20, 21, 22). The
motion was referred to the Magistrate Judge, who issued a Report and Recommendation. (D.L
27). The Report and Recommendation recommended granting the motion.
Plaintiff filed objections, to which Defendants have responded. (D.I. 28, 30).
I review the objections de nova.
The five asserted patents are method patents. (D.1. 26 at 3-4). Infringement of a method
patent normally requires that the infringer perform all of the steps of the method itself. Joint
infringement provides an exception to the general rule. See Akamai Techs., Inc. v. Limelight
Networks, Inc., 786 F.3d 899, 909 (Fed. Cir. 2015). Joint infringement requires that the infringer

control the party performing the method steps that are not performed by the infringer. "[W]hen a
contract mandates the performance of all steps of a claimed method, each party to the contract is

responsible for the method steps for which it bargained." Id. at 911. When one party mandates
the performance of one step of a claimed method, that party is attributed with performing that
step.
The Magistrate Judge found that the amended complaint sufficiently pleaded the carrying
out of all the method steps. The Magistrate Judge concluded, however, thatthe allegations of
"control and direction" as to the third parties were insufficiently pleaded as the third parties
seemed to be "independent businesses providing statistical services to multiple clients using what
appears to be proprietary metrics:" (D.I. 27 at 12). Plaintifftakes objection to that finding.
Plaintiff alternatively requests leave to :file a third amended complaint, and provides its proposed
amended complaint. Plaintiff also points out that it also alleges direct infringement in its Second
Amended Complaint. (D.1. 26). The subliminal suggestion seems to be that the joint
infringement dispute is not very important.
The Magistrate Judge was considering the :first Amended Complaint. (D.I. 16). I am
looking at the proposed Third Amended Complaint, which contains more robust allegations than
were before the Magistrate Judge. In my opinion, the proposed Third Amended Complaint
sufficiently alleges joint infringement.
Thus, themotion to dismiss (D.I. 19) is DISMISSED as moot. The Report and
Recommendation (D.I. 27) has been CONSIDERED, but the issue of its ADOPTION is moot.
The request for leave to file a Third Amended Complaint (D.I. 28) is GRANTED. Plaintiff
should separately file the "clean copy" of the Third Amended Complaint with the Clerk.
Defendants' time to answer the Third Amended Complaint will not begin to run until the "clean

copy'' is separately filed.
IT IS SO ORDERED this

11_ day of August 2015.