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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
CENDANT PUBLISHING, INC.
Plaintiff, v. AMAZON.COM, INC., Defendant.
1 1 1
Civil Action No.
1
1 1 1
COMPLAINT FOR PATENT INFRINGEMENT AND DEMAND FOR JURY TRIAL
Plaintiff, Cendant Publishing, Inc. ("Cendant Publishing"), by and through counsel, respectfully submit this Complaint against Amazon.com, Inc. ("Amazon"). In support thereof, Plaintiff alleges as follows: THE PARTIES 1. Plaintiff Cendant Publishing, Inc. is a Delaware corporation with its principal place of
business at 10750 West Charleston Blvd., Suite 130, Las Vegas, Nevada 89135.
2.
Upon information and belief, Defendant Amazon.com, Inc. is a Delaware corporation
with its principal executive offices at 1200 12thAvenue South, Suite 1200, Seattle, Washington 98114. Amazon operates an Internet-based marketplace selling millions of items including books as shown by its website at
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JURISDICTION AND VENUE
3. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 3 1331 and 28 U.S.C.
5 1338(a).
4. This Court has personal jurisdiction over defendant Amazon because of, inter alia, its
incorporation in Delaware and its operation of its Internet website, arnazon.com, which is accessible to and marketed to residents of Delaware.
5.
Venue is proper in this Court pursuant to 28 U.S.C. 55 1391 @) and (c) and 1400@).
NATURE OF THE ACTION
6. Cendant Publishing brings this action for infringement of United States Patent No.
6,782,370 ("'370 patent"). A copy of the '370 patent is attached as Exhibit A hereto. 7. The '370 patent, entitled "System and Method for Providing Recommendation of
Goods or Services Based on Recorded Purchasing History" was duly and properly issued by the United States Patent and Trademark Office ("PT0'3 on August 24,2004. The '370 patent is valid and enforceable.
8.
Amazon operates an on-line marketplace through its amazon.com website. Amazon's
online marketplace uses numerous features which recommend other goods to potential customers based on prior customer purchasing history. Amazon's recommendation features, including, inter alia, "Customers who bought this book also bought," infhnge one or more claims of the '370 patent. 9. Cendant Publishing was the assignee of the '370 patent at the time it was issued.
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10.
Cendant Publishing is the owner of the '370 patent and has the right to sue for
infringement of the '370 patent.
CLAIM I Infringement of the '370 Patent 11. herein. 12. Court. 13. Amazon's continuing acts of infingement after notice of the '370 patent Amazon has infringed the '370 patent and will continue to do so unless enjoined by this Cendant Publishing realleges the allegations of Paragraphs 1 to 10 above as if set forth
constitute willful infringement of the '370 patent.
14.
Amazon's infiingement of the '370 patent has damaged Cendant Publishing and will
continue to cause Cendant Publishing harm unless enjoined by this Court.
DEMAND FOR JURY TRIAL
15.
Pursuant to Fed. R. Civ. P. 38 and District of Delaware L.R. 38.1, Cendant
Publishing respectfully requests a jury trial on all issues so triable.
PRAYER FOR RELIEF
WHEREFORE, Cendant Publishing prays for judgment as follows:
,
A.
Amazon;
That this Court adjudge and decree that the '370 patent is valid and infringed by
3
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B.
That this Court adjudge and decree that Amazon" infringement of the '370 patent
has been willful; C. That this Court permanently enjoin Amazon, its agents, servants, employees, attorneys,
and all others in active concert or participation with Amazon fi-om infringing the '370 patent;
D.
That this Court award Cendant Publishing damages adequate to compensate for
Amazon's infringement of the '370 patent;
E.
That this Court award Cendant Publishing its costs, disbursements, and attorneys' fees
for this action, including those pursuant to 35 U.S.C. 5 285;
F.
appropriate.
That Cendant Publishing be awarded such M e r relief as this Cowt may deem just and
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ASHBY & GEDDES
C
Steven J. B ~ M #2403) (I.D. John G. Day (LD. #2114) 222 Delaware Avenue, 17" Floor P.O. Box 11 50 Wilmington, Delaware 19899 (302) 654-1888
Attorneys for Plaintiff Cendant Publishing, Inc. Of Counsel:
Steven Liebennan Elizabeth A. Leff Brian Rosenbloom C. Nichole Gifford Rothwell, Figg, Ernst & Manbeck, P.C. 1425 K Street, N.W. Suite 800 Washington, D.C. 20005 (202) 783-6040
Dated: June 20,2005
158689
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EXHIBIT A
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(12)
United States Patent
Stack
(10) (45)
Patent No.: US 6,782,370 B1 Date of Patent: Aug. 24,2004
(54)
SYSTEM AND METHOD FOR PROVIDING RECOMMENDATION OF GOODS OR SERVICES BASED ON RECORDED PURCHASING HISTORY
Inventor:
FOREIGN PATENT DOCUMENTS OTHER PUBLICATIONS "How ICL Is Ensuring That Your Retailer Knows More About You Than You Know Yourself," Computergram International, Jun. 14, 1996.* Wilder, Clinton, "E-Commerce Emerges," Information Week, Jun. 14, 1996.* IBM press release, M2 Presswire, "Wide variety of retailers sign up for World Avenue, IBM's online shopping service.", Nov. 12, 1996.* Tadjer, Rivka, "Giving Content a Push," Communications Week, Jun. 2, 1997.* Broadvision press release, M2 Presswire, "Virgin Net teams with Broadvision to deliver personalised services on Virgin Online", Mav 15, 1996.* Lach, ~ennifir, "Reading your mind, reaching your wallet,", Nov. 1998.* Hof et al., "Amazon.com: The Wide World of E-Commerce," Business Week, Dec. 14, 1998.* PRNewswire, "Book Stacks Unlimited Announces Poetry Month Exhibit", Apr. 18, 1997.* Business Wire, CUC International Inc. offers consumers customized book recommendations through its book stacks subsidiary, Apr. 22, 1997.* Alexandria Digital Literature, www.alexlit.com, no date known.* Amazon.com, www.amazon.com, no date known.* "Amazon.com Catapults Electronic Commerce to Next Level With Powerful New Features", Sep. 23, 1997.*
(75) (73)
Charles Stack, Cleveland, OH (US)
Assignee: Cendant Publishing, Inc., Aurora, CO (US) Notice: Subject to any disclaimer, the term of this patent is extended or adjusted under 35 U.S.C. 154(b) by 1030 days.
(*)
(21) (22) (51) (52) (58)
Appl. No.: 081923,293 Filed:
Sep. 4, 1997
Int. CL7 ................................................ G06F 17/60 U.S. C1. .............................. 705110; 705126; 705114 Field of Search .............................. 705110, 26, 27, 705128, 29, 14; 2351376; 707110, 104.1 References Cited
U.S. PATENT DOCUMENTS
Hey ............................ 705127 Hey ............................ 705127 Atcheson et al. .............. 70713 Whiteis ...................... 7071102 Herz et al. .................. 7251116 Cragun et al. ................ 705110 Robinson .................... 7021179 Payton ....................... 45515.1 O'Brien et al. ............... 705114 Lang et al. .................... 70711 Chislenko et al. ............ 705127 Sheena et al. ................ 705110 Sutcliffe et al. ............... 70511 Chislenko et al. ............ 705110 Bergh et al. .................. 705110 Linden et al. ................ 705126 Geshwind ................... 7091236 Greening et al. ............. 705110
(56)
4,870,579 4,996,642 5,583,763 5,749,081 5,754,938 5,774,868 5,790,426 5,790,935 5,832,457 5,867,799 6,041,311 6,049,777 6,058,367 6,092,049 6,112,186 6,266,649 6,507,872 200110013009
A A A A A A A A A A A A A A A Bl B1 A1
* * * * * * * * * * * * * * * * * *
911989 211991 1211996 511998 511998 611998 811998 811998 1111998 211999 312000 412000 512000 712000 812000 712001 112003 812001
* cited by examiner
Primary Examiner4icholas D. Rosen (74) Attorney, Agent, or Firm4othwel1, Figg, Ernst & Manbeck (57)
ABSTRACT
A computer-implemented method and system utilizing a distributed network for the recommendation of goods andlor services to potential costumers based on a potential customer's selection of goods andlor services and a database of previous customer purchasing history. 16 Claims, 7 Drawing Sheets
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U S . Patent
A U ~24,2004 .
Sheet 1 of 7
US 6,782,370 BI
DISTRIBUTED NETWORK (INTERNET)
(CUSTOMER HISTORY DATABASE
\
1-
COMPUTER HOST
b3
DISTRIBUTED NETWORK (INTERNET)
OPERATOR lNTERFACE
FIG. 1
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U S . Patent
A U ~24,2004 .
Sheet 2 of 7
USER LOGS
ENTER HOST-COMPUTER WEBSITE SELECT BOOK
30
42
>
/ \
ANY BOOKS \ , AVAILABLE FOR RECOMMENDATIONS / YES
USER WITH OPTION TO HAVE BOOK RECOMMENDED
1
USER REQUESTS RECOMMENDATIONS
DnERMINING ALL PRMOUS CUSTOMERS WHO ALSO PURCHASED SELECTED BOOK DETERMINE ALL BOOKS PURCHASED BY PRMOUS CUSTOMERS WHO ALSO PURCHASED SELECTED BOOK
I
DETERMINE ALL BOOKS PURCHASED IN COMMON AMONG ALL PREVIOUS CUSTOMERS WHO ALSO PURCHASED SELECTED BOOK DISPLAY ALL BOOKS PURCHASED IN COMMON
-0 8
Lg0 FIG.2
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U S . Patent
A U ~24,2004 .
Sheet 3 of 7
BROWSE
SEARCH
ORDER
ACCOUNT
HELP -
FIG. 3A
SEARCH
AUTHOR
TITLE
KEYWORD
ISBN -
Poo
FIG. 38
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CLEAR AND PRESENT DANGER Search Type: TITLE
Title
Clear and Present Danqer Clear and Present Danqer (Thorndike Larqe Print Series)
Number of Books: Author
Clancy, Tom Cloncy, Tom Clancy, Tom Clancy, Tom/ Stiers, David Ogden ( h k ) Clancy, Tom
6
Date Bind Price
08/94 10/90 08/89 07/94 07/96 PAP $5.94 TRD $20.36 TRD TRD PAP $21.21 $17.00 $6.38
a
Clear and Present Danqer Clear and Present Danqer and Present Danqer
a Clear
FIG. 3C
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CLEAR AND PRESENT DANGER
Clancy, Tom
How Many Copies ?
PUBLISHER: BRKP CATEGORY: Movies PUB DATE: 08/94 BINDING: Paperback PRICE: US $6.99
ISBN: 0425 144372 BOOKMARKS: 5 YOU SAVE$1.05(15%)
AFFlNIN sM BY SAME PEN
YOUR PRICE: $5.94
MEMBER PRICE: $4.89
FIG. 3D
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L
of fin ilty n. 1similarity 2 close relationship; connection 3 liking
or inclination toward something
'
With Affinity, our own agent-based technology, you can explore the tastes of our other customers whobe bought this same book. it's completely anonymous, and requires no effort. Finally, a helpful recornmendotion service based on real people's real interests! Based on 5 years of our customer's buying history, we think you might enjoy the book(s) listed below, purchased by customers who enjoyed Clear and Present Danger.
Title
Author
the Dead -Crichton, Michael -Crichton, Michael -Cloncy, Tom -Cloncy, Tom -Cloncy, Tom -Clancy, Tom
Confidence In This Match
100% 100% 100% 100% 100% 100%
a Eaters of
Disclosure
a Red Storm Rising
Patriot Games The Sum of All Fears Debt of Honor
I
denotes additional information.
FIG. 3E
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U S . Patent
A U ~24,2004 .
Sheet 7 of 7
US 6,782,370 BI
OPERATOR
,
INPUT
F l
BASE
CUSTOMER HISTORY
SELECTED BOOK
SELECTION RULES
1
PROCESSOR
t/.23
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SYSTEM AND METHOD FOR PROVIDING RECOMMENDATION OF GOODS OR SERVICES BASED ON RECORDED PURCHASING HISTORY
5
According to another aspect of the invention, a confidence factor indicating the level of confidence in the strength of the recommendation may be provided. BRIEF DESCRIPTION OF THE DRAWINGS FIG. 1 is a block diagram showing one preferred embodiment of the present invention. FIG. 2 is a flow diagram showing one preferred embodiment of user interaction with a customer history database. FIG. 3 A is a depiction of the home page of the website as displayed to the user which provides the search option to the user. FIG. 3B is a depiction of the search page as displayed to the user where the user can search by author, title, keyword, or ISBN. FIG. 3C is a depiction of the search results page as displayed to the user where the user can select a particular book. FIG. 3D is a depiction of the book selection page as displayed to the user where the user can select to have recommendations of potential interest returned to him. FIG. 3E is a depiction of the recommendations result page as displayed to the user. FIG. 4 is a flow diagram showing one preferred embodiment of the computer-implemented systems' structure and data flow. DETAILED DESCRIPTION OF THE PREFERRED EMBODIMENT
BACKGROUND OF THE INVENTION
1. Field Of The Invention The present invention relates to the use of computer systems to facilitate the recommendation of goods or services utilizing a distributed network such as the Internet, specifically to provide recommendations of goods or services that may be of interest to potential customers based on a potential customers' selection of goods or services and a database of previous customer history with respect to the selected goods or services. 2. Description Of The Background Art Providing recommendations of goods or services of interest to customers in a computer system environment has been based on demographic profiles and usually requires extensive customer participation and divulgence of personal information (for example, the input of: age, profession, hobbies, gender, . . . ) to create a user profile, which is then compared against other user profiles to determine possible items of interest to the user. The need for extensive customer input limits the appeal of these feedback systems because they require the user to expend substantial time and effort in addition to revealing personal details in order to obtain the requested information. The present invention allows potential customers to utilize a computer system interfaced with a distributed network to obtain recommendations of goods or services that may be of interest to them while substantially reducing the degree of customer input required in comparison to prior art systems. Instead of relying on the personal information provided by each potential customer as a basis for determining recommendations, the subject invention utilizes a customer activity history database to facilitate the determination of recommendations.
10
15
20
25
30
In the preferred embodiment, books are recommended over the Internet using World Wide Web technology although any communication medium could be used includ35 ing distributed networks such as Local Area Networks (LANs), Wide Area Networks (WANs), or Electronic Bulletin Board Systems (BBSs). For purposes of illustration, the areferred embodiment will be described in the context where the goods or services are books; however, the invention may 40 be practiced with respect to any good or service. With reference to FIG. 1 a remote user utilizing an SUMMARY OF THE INVENTION operator interface 1 accesses a distributed network commuA method for recommending goods or services is pronication medium 2, such as, for example, the Internet via the World Wide Web. The operator interface 1 may be any vided which allows the user of a computer system connected to a distributed network such as the Internet to receive 45 computer with a modem, network card or any other device including wireless devices utilized in computer systems to recommendations of goods or services of potential interest facilitate the transmission of data and may be found in based on a particular good or service selected by the user and personal computers used in households, business offices or previous customer buying history. The previous customer schools. The computer can be any device capable of probuying history is assembled by passively tracking and retaining or storing all purchasing decisions by previous so cessing data such as computers based on technology from customers. Apple Computer (e.g., The Macintosh, The Performa, the PowerMac series, etc.) or technology based on processors by The user first selects a particular good or service he may Intel, AMD, Cyrix, etc. and commonly referred to as IBM be interested in obtaining. This selection is treated as filter comaatibles. It should be noted however that a user need not data input to a host computers' data processor. The data processor then compares this input data with a customer 5s have a computer (i.e., a machine with processing power); a so-called "dummy terminal" being sufficient. Once logged activity history database to determine if there are any onto the Internet, the user accesses a host computer 3 by possible goods or services that can be recommended to the specifying a website domain address, as is well known. The user. If there are possible recommendations the user can host computer 3 contains information regarding goods or choose to have those goods or services recommended to him by the system. The data processor then utilizes the filter data 60 services (such as books) for sale and also contains a customer purchasing history database 4 which stores data input and the customer history database to determine all of describing all purchases of previous customers. the customers who have purchased the particular good or service selected by the user and all the goods or services One preferred method of retrieving recommendation those customers-have purchased. The goods or services information will be explained with reference to FIGS. 1, 2 purchased in common by this group of customers are 65 and 3A-3E, and will be described with particular reference returned as filtered output data and displayed to the user as to retrieving information regarding the purchase and recomrecommended goods or services. mendation of books.
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US 6,782,370 B1
3
4
At step 10, a user logs onto the Internet network, such as such as a mouse. The request is then transmitted to the host by obtaining access through an Internet service provider, and computer 3 via the Internet 2 and is processed at the host at step 20, the user enters the website by retrieving inforcomputer 3. To facilitate the processing and storage of data mation from host computer 3. each customer is assigned a unique customer ID and each A screen display 100 as shown in FIG. 3 A provides 5 book is identified by its unique ISBN. The host computer utilizes these elements to track and retain the identification various hypertext selections for various actions to be perof all customers and their purchases. The retained customer formed. As indicated, a user may choose to browse, search, purchasing history is stored in the customer history database order, retrieve account information, or request help. 4 and is accessed whenever a request for recommendations The user can select a book by choosing the Search function in FIG. 3A. Once the search function has been lo is submitted to the host computer. Utilizing the customer history database 4, the host comselected, the user may search for the book by either author, puter 3 searches all the books purchased by all the customers title, keyword or a International Standard Book Number who have purchased the particular book that was selected by (ISBN) as shown in FIG. 3B. the user. Titles which have been purchased in common neuser may utilize any of these to select a particular title. In FIG. 3C, a user has selected the title Clear among the are as for and present D~~~~~ by author T~~ clanCY, in l5 the user. This collaborative filter or intelligent agent is FIG, 3 ~any particular title may be available in a number of , superior to other methods because it uses actual customer different formats or editions. Once a specific title is selected purchasing history to assemble recommendations. It does from among the choices in FIG. 3C, the host computer 3 not require any customer effort nor impinge on customer determines if there are any possible recommendations availprivacy. The recommendations are then transmitted to the able for this particular book, ~f no other books are available 20 user via the Internet 2 and displayed on the user interface 1 in 3E. as recommendations, the host computer will not give the FIG. 4 illustrates one example of the system structure and user the option to request recommendations; the user can data flow. An operator enters input data 21 consisting of a still purchase the selected title or request other information concerning this book. If other books are available as rec- 25 selected book. This input data 21 is transmitted from the ommendations the option to request recommendations is operator to the processor 23 via a distributed network 22 supplied to the user in the form of a hypertext display as similar to the distributed networks described earlier with reference to block 2 in FIG. 1. The processor utilizes service. shown in FIG. 3D as the AfhityTM me system determines whether other books are available database selection rules 25 as explained above in conjuncthe customer history 30 tjon with the input data 21 to determine the recommendato be recommended by tlOnS that be accessed the database 26 which database 4. The customer history database includes three contains data On previous purchasing history. The relational database tables consisting of Customers, Orders recommendations are then transmitted from the processor 23 and I ~~h~ tables ~ related to each by keying unique ~ are ~ , to the operator as output data 24 via a distributed network as customer in the customer table to order numbers in the 2. Orders table and product identification numbers in the Items 35 previously described with reference The invention having been described, it will be apparent table. For example, books may be identified by their unique to those skilled in the art that the same may be varied in ISBN in the Items table, When a user has selected a many ways without departing from the spirit and scope of particular book, the system searches the database 4 to the invention. Any and all such modifications are intended to determine all previous customers who have purchased that book. If there exist in the database at least two other 40 be included within the scope of the following claims. I claim: customers who have purchased the user-selected book and 1. A com~uter-im~lemented method for the recornmenthose at least two customers have also purchased other dation of goods and/or services to potential customers over books (or other products) in common, then the m n i t y m a distributed network based on customer buying history hypertext link will appear in the display page for the selected book. If the search does not find at least two customers who 45 utilizing an information processing system containing Prohave purchased the selected book and who have also purcessing means having transmission means for receiving and chased another book in common, the AffinityTMhypertext transmitting data, and database storage means for storing link will not appear in the display page, Once the user information in database files, the method comprising the hypertext link, the books purchased steps of: activates the AfhityTM in common will be displayed, as shown in FIG. 3E. receiving customer commands specifying a particular good or service to be used as filter data; Another aspect of the invention is the indication of a storing information pertaining to goods andlor services "confidence match" factor as shown in FIG. 3E. The conpurchasing history of previous customers; fidence factor is calculated based on the frequency of appearance of the recommended books (or other items) in comparing said filter data with said stored information the histories of the customers who have purchased the 5s and determining whether, for said filter data, correselected book (or other item). For example, if ten customers sponding entries exist within the stored information; who purchased book A also purchased book B, the confiand dence factor in the recommendation of book B to a user who if corresponding entries exist, displaying the identity of selected book A would be 100%. If on the other hand only other goods andlor services purchased by said previous 7 of the ten customers who purchased bookA also purchased 60 customers who have purchased the good and/or service book B, the confidence factor for book B would be 70%. As used as said filter data. previously explained above, if none of the customers who 2. The method of claim 1 wherein said distributed netpurchased book A also purchased at least one other book in work is the Internet. common, the AEinityTMhypertext link would not be dis3. The method of claim 1 wherein said distributed netplayed. 65 work is-a Local Area Network. The user makes a request for recommended books by 4. The method of claim 1 wherein said distributed netselecting the M n i t y T Mhypertext using a tracking device work is a Wide Area Network.
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5
6
5. The method of claim 1 wherein said distributed net8. The system of claim 7 wherein said distributed network is the Internet. work is a Bulletin Board System. 9. The system of claim 7 wherein said distributed network 6. The method of claim 1 wherein said goods are books. is a Local Area Network. 7. A computer-implemented interactive system for assist10. The system of claim 7 wherein said distributed ing a potential customer in purchasing decisions from 5 network is a Wide Area Network. among a plurality of goods or services, the system compris11. The system of claim 7 wherein said distributed neting: work is a Bulletin Board System. an operator interface for enabling potential customers to 12. The system of claim 7 wherein said goods are books. input requests to said computer, including requests for: 13. The system of claim 7 wherein said operator interface lo the purchase of goods or services, is a personal computer. information concerning goods or services, 14. The system of claim 7 wherein said operator interface recommendations of goods or services based on operais a workstation. tor input; 15. The system of claim 7 wherein said operator interface a database maintained in said computer, containing inforis a dummy terminal. mation pertaining to goods andlor services purchasing 16. A computer program product having a computer history of previous customers; readable medium having computer readable code recorded means for processing inputted requests and for filtering thereon for the recommendation of goods or services in relevant history information regarding said inputted response to user input, comprising: requests from said database; input means for receiving user commands specifying a 20 particular good or service to be used as filter data; a distributed network for transmitting requests from said operator interface to said computer and for transmitting database storage means for the retention of data concernresponsive information from said computer to said ing goods or services purchase decisions of prior users; operator interface; and means for filtering said database storage means using said interface whereby goods andlor services identification 25 information corresponding to goods andlor services specified particular rood or service to obtain recommendations of other goods or services to a user based purchased by previous customers who have purchased on said inputted user commands. the goods andlor services requested by said potential customers are transmitted to said operator interface for use by said potential customers.
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UNITED STATES PATENT AND TRADEMARK OFFICE
CERTIFICATE OF CORRECTION
PATENT NO. : 6,782,370 B1 DATED : August 24,2004 INVENTOR(S) : Charles Stack Page 1 of 1
It is certified that error appears in the above-identified patent and that said Letters Patent is hereby corrected as shown below:
Column 6, Line 26, " rood should be -- good --.
Signed and Sealed this Sixteenth Day of November, 2004
JON W . DUDAS Director of the United States Patent and Trademark Ofice
Case 1:06-cv-00041-JJF
1s 44
(RCV.
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3/99)
CIVIL COVER SHEET
'fie JS-44 civil wvcr shcct and the information contained trercin neithcr.replace nor sup lcmcnt the filing and service of pludings or 0 t h papcrs as r uired ~~ hy law, except as rovidcd by local rules ofc?ur~.This Forn~, approved by LC lodieis1 &niacncs of the Unitcd States in Scptemba 1974, is requid% thc usc of (he Clerk o F C ~ u r for the purpose oiinlhillit~g civil dockct s h 4 . (SEE MSTRUCTIONS ON THE REVERSE OF THE FORM.) t the
I. (a) PLAlhTIPFS
I
DEFENDANTS
CENDANT PUBLISHING, I N C .
AMAZON.COM, INC.
*
@) County of Rcsidcncc of First Liaed Plaintiff (EXCEPT I U.S. PLAINTIFF CASE) N
County of Residence of Fimt Listcd (INUS. PLAlNTIFF CASES ONLY) NOTE: Ih' LAND CONDEhINAnON CASES. USE THE WCATIOE: OF TW:,
*Plaintiff is a Delaware corporation.
(c)
Attomcy's (Firm Name, Addmss, and Telcphonc Number)
m v INVOLVED.
Steven J. Balick Ashbv & Geddes 222 helaware Avenue 1 7 t h Floor ~ilmington,D E 19861 (302) 654- 1888
11. BASIS OF JURISDICTION
(~lau an
i one BOX o o t y o
I
Attorneys
(UKnown)
Unknown <
c h x fur PbiotiB and b e Box tor DcfmtLn~)
1111. CITIZENSHIP OF PRINCIPAL PARTIES(ftcc a n . . ~n h i
@nr Divmity Casa Only)
0 1 US. Government
PlaintiCT
3
Fcdcdcal Queslion (US. C;overnmnent Not a Pany)
Citkrn of This State
a
1
DEF 01
UEF
Incorporated or Principat Place of Busincss In This State
D4
04
El 2 U.S. Government
Defendant
2
02
Incorporated and Principal Place U 5 of Busincss In Anoihcr Stale
D5
IV. NATURE OF SUI r
CONTRACT
(Place an "X" in One Box Only)
TORTS
PERSONAL INJURY
1 PORFEITUREIPENALTI
1
BANKRUPTCY
1
OTHER STATUTES
3lOAirplaae 3 IS Airphnc Ralucl LLbdity 0 320 Asmilt. L ~ h B l
a
PERSONAL INJURY
362 Pcrsaual InjuryMcd. Malprrcticc fl 365 Personal Injury-
a
0 fl
0
0
Slmdcr 3 30 Fcdcnl Enrploycrs' l isbilily 340 hlarinc 345 Marine Product
Pmdwt Liability U 363 hrbcstos Pcnanal Injury Product
Liabbilig PERSONAI. PROPERTY
610 Agricultufc 620 Other Foal & Dmg 625 h g Rclatd S c k orproperty2 1 USC 630 L.huor Laws 640 K.R &Truck 650 Airline Reg.
SatctyNcalh
0 660ocfupahl 6900ibcr
875 Clv;wnurChallcnge
Lhbdlty
350 hiam Vchidc
370 0 t h Fraud 371 Tmth i L o d i e n 330 0 t h Pcmnal
LABOR
710 Pair Labor SlaadanL:
ACI
SOCIAL SECURITY
O 355 hfolur Vdl'rk Property Dannp Product Liubili~y 0 385 Propcsty Danuge 360 Otbcr Pcrsmal Injury PNduct firbit'
0
861 HIA (Il9Sn)
863 DlWC/DlWW (dOS(@) 864 SSlD Ti& XVl
u 891 Agrhltunl Acts
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0 720 LrnborMgmi. Rchtiam 730 l..abor/Mgm~Rqmtiq & Dkclosurc Act
740 b i l w a y Labor Acl
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REAL PROPERlY
El 2 10 h n d Condemntian
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230 Rent k c & Ejccbncnt
CIVIL RIGHTS
PRISONER PETITIONS
510Motiom IoVacak
Sen(Z0cc Habus Corpus: 530 Gcncnl 0 535 Dwth Pasky 0 540 h i y l & w & OUer 1 550 Civil Ri&h 7 555 Prison Condition
a
892 b w m i c StabJiuhe Act 893 Envirannmtal Maturs 894 h c r g y AlbuIion Acl 895 Frrcdnmof
0
441 Vohg
lnbrnnlion Act 0 870 Taxes (U.S. Plaintiff
or Dcfcadml)
0 240 Tortsto land 0 245 Ton Prcduct LiahiIity ff 290 M O f h r Real Pmperty
a
0 4-12Eoplo~n~nt
a
443 f lou&g/ Accomodations c7 444 Wchrc U 440 Othcr C k l Rigb~s
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state Sta010cs
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--
8W O h r S m h l r y Actions
v. ORIGIN
(PLACE AN "X" IN ONE BOX ONLY)
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1 Original 0 Proceeding
0 3 Rcmandcd h r n
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4 Reinstated or Rcopcnd
0 5 (specify)
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35 U.S. Code.
VII. REQUESTED P I COMPLAINT: VIII. RELATED CASE(S) IF ANY
DATE
DEMAND S U CIIEGK I THISIS CLASS ~ c l ' 1 0 ~ F A U N DE R F.R.C.P. 23 monetary.. and injunctive relief
(See
C t E C K YES only tfdemanded in complaint.
JURY DEMAND:
MYCS
u
NO
instructions). JUDGE
DOCKET
NUMBER
June 20, 2005
RECEIPT #
M l O W
APPLYiKG IFP
JUDGE
MAG. JUUGB
Case 1:06-cv-00041-JJF
Document 49-2
Filed 02/14/2006
Page 21 of 21
United States District Court for the District oi'Dela~\lare
Civil Action No.
05-
A 1 4
ACKNOWLEDGMENT OF RECEIPT FOR A 0 FORM 85
NOTICE OF A VAILABIZITY OF A UNITED STA TES MA GISTRATE JUDGE TO EXERCISE JURISDICTION
I HEREBY ACKNOWLEDGE RECEIPT OF
A
COPIES OF A 0 FORM 85.
J -2lj -0~5
-
(Date forms issued)
/ (~i&atureof $arty
o
a
'.
,j oS ~ . Q (printed' name of Party or their Representative)
J .Sa&,qnt
Note: Completed receipt will be filed in the Civil Action
Case 1:06-cv-00041-JJF
Document 49-3
Filed 02/14/2006
Page 1 of 7
Amazon countersues Cendant | CNET News.com
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Amazon countersues Cendant
By Paul Festa Staff Writer, CNET News.com Published: July 18, 2005, 12:18 PM PDT
TalkBack E-mail Print
Amazon.com has accused Cendant of patent infringement in what it described as a purely defensive countersuit. Amazon late last month filed the claims in the U.S. District Court for the Western District of Washington, alleging that Cendant and subsidiaries Orbitz, Avis, Budget and Trilegiant infringed four patents held by Amazon. Cendant had sued Amazon for patent infringement in November. Following unsuccessful settlement negotiations, the company refiled its suit in June. Amazon subsequently filed its countersuit. Amazon has walked a fine line between decrying the state of software and business process patent litigiousness and building its own healthy patent portfolio. Amazon CEO Jeff Bezos has advocated patent reform for years.
In other news:
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Case 1:06-cv-00041-JJF
Document 49-3
Filed 02/14/2006
Page 3 of 7
Amazon said its current patent action came only in self-defense. "The suit was filed in direct response to Cendant's refiling of their patent infringement suit," said Amazon spokeswoman Patty Smith. "This is the first time that we have asserted any of these four patents, and we would not have asserted them if Cendant had not filed against us. It's purely a defensive measure." Cendant did not immediately return calls seeking comment. The four patents in question are U.S. Patent No. 5,715,399: secure method and system for communicating a list of credit card numbers over a nonsecure network; No. 6,029,141: Internet-based customer referral system; No. 6,625,609: method and system for navigating within a body of data using one of a number of alternative browse graphs; and No. 6,629,079: method and system for electronic commerce using multiple roles.
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Case 1:06-cv-00041-JJF
Document 49-3
Filed 02/14/2006
Page 4 of 7
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Case 1:06-cv-00041-JJF
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Case 1:06-cv-00041-JJF
Document 49-3
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Case 1:06-cv-00041-JJF
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Case 1:06-cv-00041-JJF
Document 49-4
Filed 02/14/2006
Page 1 of 16
Case 1:06-cv-00041-JJF
Document 49-4
Filed 02/14/2006
Page 2 of 16
FOR THE DXSTRTCT OF DELAWAFUZ
CEM)ANT PUBLISHMG, MC,
Plaintiff,
v.
. )
1 1 1
1
)
)
Civil Action No.
0 4
-
1g 05
. ,AMAZON.COM, INC.,
I
Defendant.
1
1
C O M P L A m FOR P A m T INPRINGEMENTAND DRMAND =JURY
TWAI,
Plainti.ff, C e n h t Publishing, Iic. ("Cendant Publishing"), for is cause oraction against t
Amazon.com. Inc. ("Amazon"), states and allegesa follows: .
I
'
~PARTXIGS
1.
Pkintiff Cendant Publishing is a Delaware axporntion with its principal ptnce of
business at 10750 West CbarIeston, S$te 130, Las Vegas, Nevada 89135.
2.
Upon information and belief, Defendant Amazo&is a Delaware corporation with
its principal executive offices at 1200 12&Avenue South, Suite 1200, Seade, Washington
.-
981 14. Amaion operates anin&et-based markctplacc selling millions of ilemo including books
as shown by its website atehttp'J/www.;rma20n.com>.A key fatwe of h a o n ' s website
indudes web pages tailored to indivitlual preferences, such as recornmendationsand
Case 2:05-cv-01
Filed 0 02/14/2006 Page 2 of of 16 2005 Filed Page 3 8
JURISDICTION AND VENUE
3.
This Court has subject matterjurisdiction pursuant to 28 U.S.C. 5 1331 and 28
U.S.C.5 1338(a).
4.
This Court has personal jurisdiction o v a defendant Arnzazon because of, inter
&a, its incorporation inDelaware and its operation of its Internet website, mazoacom,
which
.
is accessible to and marketed to residents of Delaware.
-
j.
Venue i proper in this Court pursuant to 28 U.S.C. 11391@)and (c) and s
NAIXRJl OF
HE ACTION
6.
Cendant Publishing brings this action for infrjngementof United States patent NO.
6,782,370( ' 7 patent") A copy of the '370 patent is attached as Exhibit A hereto. . "30
7.
Tho '370patent, entitled "System and Method far Providing Recommendation of
Goods or Services Based on Recorded Purchasing History"was duly and properly issued by the
United States Potent and Trademark Ofc ("PTO) on August 24,2004. The '370 patent is fie
valid and enforceabIe.
8.
Amazon operates an on-line markctplacc through its ammon.com website.
..
Amazon's online marketplace uses numerous features which recommend other goods to potential customers based on prior cuslomcr purchasing history. Amazon's recommendation
ftxlures, inter dia,"Cust~rncrs bought this book also bought" idring onc or morc clsrims who
of the '370 patent
9.
~ d a n t ' ~ u b l i s hwn ~the assignee of the '370patent at the time it was issued. ia s
Case 1:06-cv-00041-JJF Document 49-4 Case 2:05-cv-01 ?SM Document 21
Filed Page 4 8 Filed 0 02/14/2006 Page 3 of of 16 2005
. ..
-
10.
Cendant Publishing is the owner of the'370 patent and has the right to sue for
.,
inii&ement of the '370patent
CLAIM I
Infringement of the '370 Patent
;
'
I 1.
Cendsnt Publishing reallege; the dlegations of ~ ~ r a g r a I~to i10 above as if set h
foTth herein.
12. by this ,Court.
Amazon has infringed the '370 patent and will continue to do so unless enjoined
13.
Amazon's infiing&nt of the '370 patent bas dam~ged Cendant Publishing and
will continue to cause Cendant Publishing hann unless enjoined by this Court.
14.
Pursuant To Fed. R Civ. P,38 md District of Delaware L.R 38.1, Ctndant
Publishing respectfully requests ajury triaI on all issues so triabIe.
PRAYER %OR*RELDEF,
WHEREFORE,Ccndant Publishing prays forjudgment as follows:
. A.
Amazon;
..
That this C u t adjudge and decree thas the '370 patent is valid and infringed by or
B.
That this Court pemently enjoin Amazon,its agents, servants, employees,
attorneys, and dl othen in active concert or participation with A m m n from infringing the '370
patent;
Case 1:06-cv-00041-JJF Document 49-4 Filed 0 02/14/2006 Page 4 of of 16 Filed Page 5 8 Case 2:05-cv-01 ?SM Document 21 2005
.
.
C.
..
hat thk Court w d ~mdDnt m Publishing damages adequate to compomte fir
Amazon's infringement of t e '370 patent; h
'
-
D. That this Couxt award enda ant Publishing h costs, disbursements, and attomy$
, . '
fees for this action, including those pursuant to 35 U.S.C. 9 285;
E.
That Cendmt Publishing be awarded such further relief as this Court may deem
just and appropriate.
.
ASHBY & GEDDES
John 0. Day (ID: 114) #2 222 Debware Avenue, 17' Floor P.O. Box I 150 Wilmington, DE I9989 (302) 654-1888
Attarneysfor PlaintzrCendant Publishing, Inc.
-
Steven Lieberman
Elizabeth A, Leff
Rothwell, Figg, Ernst & Manbeck, P.C.
1425 K Street, N.W. Suite 800 Washington, D.C. 20005
(202) 783-6040
Dated: October 29,2004
149417vl
'
2005 Case 1:06-cv-00041-JJF Document 49-4 Filed 0 02/14/2006 Page 5 of of 16 Filed Page 6 8 ?SM Document 21 Case 2:05-cv-01
--
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N! 14!I ! !I l!llmllmlll!! !I 1 1I US006782370Bl I !
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states Patent
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Patent N. O:
.' US 6,782,370 BI
Aug. 24,2004
(45)
Date of Patent:
(54)
SYSTeM AND METHOD
mR PROYIDING
WO
FORWCN PATENT DOCUMENTS
WO-9?/OtSTf A1
'
111997
OTHER PUBUC/U1ONS
oarioa~l, Jun 14,1996.* ' W i r , Cliptoo. "E-Commcrec &uugcs," lufomrvrioo Week. hul, 14,1996.' IBM p t w relerse, M2 Prawize, "Widr vuisty of relrilrra sign up Eor World A m y . IBM's online sbDpping sonice.", Nnv. 12. 1996:
"How ICL b e p r u ~ g Your ReGJcr h w r More n3at ~ b mYOU t TIUD rw KUJW Younclf,"~mpu(etlpamIpter-
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U.S. PbXNT DOCUMENTS
Case 1:06-cv-00041-JJF Case 2:05-cv-01
Document 49-4 Filed 0 02/14/2006 Page 6 of of 16 Filed Page 7 8 Document 21 2005
'
U.S. Patent -
A U ~ .2, 4,2004
Sheet 1 of 7
FIG. 1
Case 1:06-cv-00041-JJF M Document 49-4 Case 2:05-cv-01 IS Document 21
Filed Page of 8 Filed C 02/14/2006 Page 7 8 of 16 2005
US. Ptltent
' .
A U ~ 24, .
tow
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USER LOGS
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USER R E Q W REC0MMENDAfK)NS
OWNING PU. P M U R OS CUSTOMERS WHO Atso PURWED SEtECED BOOK
-60.
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WRCHASED BY PRMOOS CUSTOMERS WHO ALSO
i DETERMINE PLL BOOKS
DETERMINE AL BOOKS PUACHASEO I
CUSTOMERS WHO PLSO PURCHASED SELECTED BOOK
DISPLAY AU. BOOKS PURCHASED
IN COMMON AMONG A P M S U RW
I COMMON N
FIG. 2
Case 1:06-cv-00041-JJF Document 49-4 Case 2:05-cv-01 ?SM Document 21
Filed Page 9 8 Filed C 02/14/2006 Page 8 ofof 16 2005
-
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U.S. Patent .
Aug. 24,2004
Sheet 3 017
SEARCH - BROWSE
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HELP
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SEARCH
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Case 1:06-cv-00041-JJF
Document 49-4
Filed 02/14/2006
Page 10 of 16
CLEAR AND. PRESENT DANGER. (search Type: TITLE
Title
Cleor and .Present Donaq Clear and Present Doncjer ( h n & e L o r y Print Series] Clear and Present Donset Clear and Present Dower
EQ Clear and Present
.
Number o Books: 6 f
Author
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Date Bind Price
08/94
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Case 1:06-cv-00041-JJF Document 49-4 ;ISM Document 21 Case 2:05-cv-01
Filed Page of of Filed C02/14/2006 Page 2 11 7 16 2005
U.S. Patent
a
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s or 7
US 6,782,370 BI
Case 1:06-cv-00041-JJF
Document 49-4
Filed 02/14/2006
Page 12 of 16
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Case 1:06-cv-00041-JJF Document 49-4 ISM Document 21 Case 205-cv-01
Filed Page of of Filed 002/14/2006 Page 4 13 7 16 2005
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US. Patent
'
Aug, 24,2004
Sheet ' 01 7 I
us 6,782,370 331
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Case 1:06-cv-00041-JJF Document 49-4 Case 2:05-cv-01 ?SM Document 21
Filed 02/14/2006 Page of of Filed 0, 2005 Page 514 7 16
durbas~oC p ~ b w cusromer wilh ICS* 'sclcucd gaadr or sorvfcu 2 Dascri$ioa Of The B&grMdM Pmvidis r e c o m r n e o ~ o&of r
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Case 1:06-cv-00041-JJF Document 49-4 Case 2:05-cv-01 ?SM Document 21
Filed 02/14/2006 Page 615 of 16 Page of 7 Filed 0 2005
Case 1:06-cv-00041-JJF Document 49-4 Case 2:05-cv-01 ISM Document 21
Filed 02/14/2006 Page 716 7 16 Page of of Filed 0 2005
Case 1:06-cv-00041-JJF
Document 49-5
Filed 02/14/2006
Page 1 of 10
Case 1:06-cv-00041-JJF
Document 49-5
Filed 02/14/2006
Page 2 of 10
Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 2346152 (S.D.N.Y.) (Cite as: 2004 WL 2346152 (S.D.N.Y.))
Page 1
Motions, Pleadings and Filings Only the Westlaw citation is currently available.
United States District Court, S.D. New York. AGILENT TECHNOLOGIES, INC., Plaintiff, v. MICROMUSE, INC., Defendant. No. 04 Civ. 3090(RWS). Oct. 19, 2004. Christian & Barton, Richmond, VA, By: Michael W. Smith, Craig T. Merritt, R. Braxton Hill, for Plaintiff, of counsel. Gray Cary Ware & Freidenrich, San Diego, CA, By: Edward H. Sikorski, John Allcock, Sean C. Cunningham, Megan Whyman Olesek, for Plaintiff. Brown Raysman Millstein Felder & Steiner, New York, NY, By: Seth Ostrow, Jeffrey P. Weingart, Eric C. Osterberg, for Defendant, of counsel. Willcox & Savage, Norfolk, VA, By: Michael R. Katchmark, Gary A. Bryant, for Defendant, of counsel. OPINION SWEET, J. *1 Defendant Micromuse, Inc. ("Micromuse") has moved pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the complaint of plaintiff Agilent Technologies, Inc. ("Agilent") alleging patent infringement, and, in the alternative, for a more definite statement pursuant to Rule 12(e), and to add Hewlett Packard Company ("H-P") as a necessary party under Rules 12(b)(7) and 19(a) of those same Rules. Micromuse has also moved to disqualify Gray Cary Ware & Freidenrich, LLP ("Gray Cary") from representing Agilent in this action, Gray Cary having previously represented NetWork Harmoni, Inc. ("Network Harmoni"), an entity acquired by Micromuse prior to the filing of this action. Agilent has cross-moved for leave to file a supplemental declaration in opposition to Micromuse's motion to
disqualify Gray Cary. For the reasons set forth below, Micromuse's motion to dismiss is denied, the motion for a more definite statement is granted, the motion to add H-P as a party is denied at this time with leave granted to renew, and the motion to disqualify is denied at this time with leave granted to renew. Agilent's cross-motion for leave to file a supplemental declaration is granted. Prior Proceedings The complaint in this patent infringement action was filed in the United States District Court for the Eastern District of Virginia, Norfolk Division, on November 10, 2003. On December 17, 2003, Micromuse filed the instant motions in the Eastern District of Virginia as well as a motion to transfer the action to this district, which latter motion was granted by order of the Honorable Raymond A. Jackson filed on April 16, 2004. The action was transferred to this district on April 22, 2004. The remaining motions were argued and marked fully submitted on May 19, 2004. The Complaint The following facts are drawn from Agilent's complaint and do not constitute findings of fact by the Court. According to the complaint, Agilent is a Delaware corporation having its headquarters in Palo Alto, California, and significant operations in Fort Collins, Colorado. It is alleged that Micromuse is a Delaware Corporation with headquarters in San Francisco, California, and significant operations in Northern Virginia, Georgia, Illinois, Texas, New York, London, and other overseas destinations. Subject matter jurisdiction is alleged under 28 U.S.C. § § 1331 and 1338. With regard to the factual background of the complaint, it is alleged that: 6. Agilent is a leading provider of components, test, measurement, monitoring and management solutions for the communications industry. Agilent's broad set of solutions and services includes, among other technologies, optical,
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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 2346152 (S.D.N.Y.) (Cite as: 2004 WL 2346152 (S.D.N.Y.)) wireless, Internet and broadband technologies that span the entire communications life cycle. Having invested substantial resources in the development of these technologies, Agilent maintains a portfolio of patents covering its inventions, including the patents at issue. *2 7. On October 24, 2000, United States Patent No. 6,138,122 ("the ' 122 Patent"), entitled "Modeling of Internet Services," was duly and legally issued to Mark D. Smith, Deborah L. Caswell and Srinivas Ramanathan. All rights, title and interest in the '122 Patent were assigned to Agilent, which remains the sole owner of the '122 Patent.... 8. On January 1, 2002, United States Patent No. 6,336,138 ("the '138 Patent"), entitled "TemplateDriven Approach For Generating Models On Network Services," was duly and legally issued to Deborah L. Caswell, Srinivas Ramanathan, James D. Hunter, Scott S. Neal, Frederick A. Sicker and Mark D. Smith. All rights, title and interest in the '138 Patent were assigned to Hewlett-Packard Company. Agilent and Hewlett-Packard Company now jointly own the '138 Patent, and Agilent has the exclusive right to enforce the '138 Patent against Micromuse.... (Compl. at ¶ ¶ 6-8.) It is further alleged that Micromuse "makes, sells, or offers products for sale in this district that infringe Agilent's patents." (Compl. at ¶ 4.) The complaint contains two counts and Micromuse's liability is alleged as follows: COUNT ONE Infringement of U.S. Patent No. 6,138,122 9. Agilent realleges the foregoing paragraphs. 10. Agilent is informed and believes that Micromuse has directly infringed and continues to infringe, has induced and continues to induce, and/or has committed and continues to commit acts of contributory infringement of, one or more claims of the '122 Patent. 11. Agilent is informed and believes that Micromuse's acts of patent infringement are and continue to be willful and deliberate. 12. As a result of Micromuse's patent infringement, Agilent has suffered damages in an amount not yet determined, and will continue to suffer damages in the future. 13. Unless an injunction is issued enjoining Micromuse and its agents, servants, employees, attorneys, representatives, and all others acting on their behalf from infringing the '122 Patent, Agilent will be greatly and irreparably harmed.
COUNT TWO Infringement of U.S. Patent No. 6,336,138 14. Agilent realleges the foregoing paragraphs. 15. Agilent is informed and believes that Micromuse has directly infringed and continues to infringe, has induced and continues to induce, and/or has committed and continues to commit acts of contributory infringement of, one or more claims of the '138 Patent. 16. Agilent is informed and believes that Micromuse's acts of patent infringement are and continue to be willful and deliberate. 17. As a result of Micromuse's patent infringement, Agilent has suffered damages in an amount not yet determined, and will continue to suffer damages in the future. 18. Unless an injunction is issued enjoining Micromuse and its agents, servants, employees, attorneys, representatives, and all others acting on its behalf from infringing the '138 Patent, Agilent will be greatly and irreparably harmed. *3 (Compl. at ¶ ¶ 9-18.) Discussion I. Micromuse's Motion To Dismiss Is Denied Micromuse has moved to dismiss Agilent's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the complaint fails to meet the notice requirements of Rule 8(a) of those same Rules. In considering a motion to dismiss pursuant to Rule 12(b)(6), the court should construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor," Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (citing Gregory v.. Daly, 243 F.3d 687, 691 (2d Cir.2001)), although "mere conclusions of law or unwarranted deductions" need not be accepted. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.1994). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). In other words, " 'the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." ' Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168, 176 (2d Cir.2004)
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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 2346152 (S.D.N.Y.) (Cite as: 2004 WL 2346152 (S.D.N.Y.)) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980)). Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir.2000); accord Eternity Global Master Fund, 375 F.3d at 176-77. "The indulgent standard evident in these precedents is codified in Rule 8, which requires no more than 'a short and plain statement of [a] claim showing that the pleader is entitled to relief." ' Id . at 177 (quoting Fed.R.Civ.P. 8(a)(2)) (alteration in original); see also Wynder v. McMahon, 360 F.3d 73, 76-77 & n. 5 (2d Cir.2004) (referring to the "bare-bones standards of Rule 8" and noting that "Rule 8 pleading is extremely permissive"). The Supreme Court has interpreted Rule 8 "not to require a claimant to set out in detail the facts upon which he bases his claim." Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Indeed, The federal rules require (with irrelevant exceptions) only that the complaint state a claim, not that it plead the facts that if true would establish (subject to any defenses) that the claim was valid.... All that need be specified is the bare minimum facts necessary to put the defendant on notice of the claim so that he can file an answer. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.2002); see also Scutti Enters., LLC v. Park Place Entm't Corp., 322 F.3d 211, 215 (2d Cir.2003) ( " 'More extensive pleading of fact is not required because the Federal Rules of Procedure provide other devices besides pleadings that will serve to define the facts and issues and to dispose of unmeritorious claims." ') (quoting 2 James Wm. Moore, et al., Moore's Federal Practice § 8.04[1] (3d ed.1999) (citation omitted)). Whether a complaint satisfies Rule 8(a)(2) is determined by whether the pleading provides fair notice to the opposing party. See Conley, 355 U.S. at 47; see also Wynder, 360 F.3d at 79 ("The key to Rule 8(a)'s requirements is whether adequate notice is given."). Accordingly, dismissal for failure to comply with the requirements of Rule 8 " 'is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised." ' Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.1995) (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988)). *4 Here, Agilent's complaint establishes the jurisdiction of this Court, sets forth the ownership of
the patents in suit and alleges that Micromuse makes, sells, or offers products for sale that infringe Agilent's patents. The complaint further alleges that Micromuse is liable for direct infringement, contributory infringement and infringement by inducement. Agilent has provided a "short and plain statement" of its claims against Micromuse and the nature of those claims is discernible. Fed.R.Civ.P. 8(a)(2). Indeed, it would be difficult to frame a more skeletal pleading. Micromuse nonetheless argues that dismissal of Agilent's complaint is appropriate because the complaint fails to specify any allegedly infringing product, fails to identify any allegedly infringing conduct, and fails to set forth any of the other actors implicated by the allegations that Micromuse has contributed to and induced patent infringement. The absence of allegations such as those described does not demonstrate that the harsh sanction of dismissal is appropriate here, as this absence does not make it "appear[ ] beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief," Sweet, 235 F.3d at 83, nor that the complaint is " 'so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised." ' Simmons, 49 F.3d at 86 (quoting Salahuddin, 861 F.2d at 42); see generally Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 235 (1959) ("It may well be that petitioner's complaint as now drawn is too vague, but that is no ground for dismissing his action."). Where, as here, a pleading is sufficient to provide notice of the claim but does not contain sufficient information to allow a responsive pleading to be framed without risk of prejudice, the proper remedy is a motion for a more definite statement under Rule 12(e), Fed.R.Civ.P. See, e.g., Scott v. City of Chicago, 195 F.3d 950, 952 (7th Cir.1999); Sisk v. Texas Parks & Wildlife Dep't, 644 F.2d 1056, 1059 (5th Cir.1981); Harman v. Nat'l Bank of Arizona, 339 F.2d 564, 567 (9th Cir.1964); but compare Ondeo Nalco Co. v. Eka Chems., Inc., No. 01 Civ. 537(SLR), 2002 WL 1458853, at *1-2 (D. Del. June 10, 2002) (dismissing defendant's counterclaims where it was unclear which products were being accused, concluding that the pleading was "too vague to provide plaintiff with fair notice," and granting leave to amend). II. Micromuse's Motion For A More Definite Statement Is Granted Rule 12(e) of the Federal Rules of Civil Procedure
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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 2346152 (S.D.N.Y.) (Cite as: 2004 WL 2346152 (S.D.N.Y.)) provides in pertinent part that "[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading." Fed.R.Civ.P. 12(e). Rule 12(e) applies only in limited circumstances: *5 [T]he pleading must be sufficiently intelligible for the district court to be able to make out one or more potentially v
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