Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 71

MOTION to Dismiss for Failure to State a Claim by AOL LLC, CME Group Inc., Yahoo! Inc., MySpace Inc., Amazon.com Inc.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Text of Proposed Order)(Whitehurst, Alan) (Additional attachment(s) added on 9/11/2009: #4 Corrected Text of Proposed Order) (mjc, ).

EXHIBIT B

Alston & Bird

MCKOOL SMITH
A PROFESSIONAL CORPORATION · ATTORNEYS

Doug Cawley Direct Dial: [phone] [e-mail]

300 Crescent Court Suite 1500 Dallas, Texas 75201

Telephone: [phone] Facsimile: [phone]

August 20, 2009

VIA E-MAIL ([e-mail]) Alan Whitehurst Alston & Bird LLP The Atlantic Building 950 F Street, NW Washington, DC 20004 RE: Dear Alan: I write in response of your letter on August 12, 2009 regarding Bedrock's Complaint. Our complaint fully comports with Iqbal and Twombly. Although Iqbal confirmed that Twombly applies to "all civil actions," the Federal Circuit found--even before Iqbal--that use of the forms in the Appendix to the Federal Rules, including Form 18, passed muster after Twombly. See McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1355-57 (Fed. Cir. 2007). That Form does not require detailed, claim-by-claim disclosure. Rather, Form 18 only requires that a patentee plead "facts sufficient to place the alleged infringer on notice as to what he must defend." Id. Bedrock's complaint tracks Form 18; thus, the complaint satisfies the Federal Rules and does not offend Twombly or Iqbal. Iqbal and Twombly have not worked a sea change in patent litigation. Compliance with Form 18 is still sufficient to withstand a motion to dismiss. See McZeal, 501 F.3d at 1355-57. In light of the plain language of Twombly, this is unsurprising: only the dissent announces the majority holding as a "significant new rule". See 550 U.S. at 595-596. Furthermore, the Federal Rules specifically hold that compliance with the forms is sufficient to withstand a motion to dismiss. See Rule 84. Twombly and Iqbal could not have amended that rule by judicial interpretation. See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (recognizing that the Federal Rules cannot be amended by judicial interpretation). In sum, because Bedrock's Complaint fully complies with Form 18, it would take Congressional action to render Bedrock's complaint insufficient. It is our desire to save the Court from wading through avoidable issues such as these. As you know, the Court's local patent rules have specific milestones for the parties' respective Bedrock Computer Tech's, LLC v. Softlayer Tech's, Inc. et al., Civil Action No. 6:09-cv-269 (E.D. Tex)

August 20, 2009 Page 2 discovery obligations, and as these milestones pass, your complaints regarding the sufficiency of Bedrock's Complain will become moot. Sincerely, /s/ Doug Cawley Doug Cawley