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Microsoft Billionaire Foiled By Iqbal!

Boy this lame-duck Congress is actually getting a few things done -- (a few) new federal judges even!

So what's the status of efforts to roll back Twombly or Iqbal?

Senator Spector's bill is D.O.A., as is the House version.

That's good news for some, except Microsoft billionaire Paul Allen:

A judge has dismissed Microsoft co-founder Paul Allen?s lawsuit against Google, Apple, Facebook and others for patent infringement.
Back in August, Allen originally claimed that 11 different companies, including YouTube (), Netflix and AOL, had violated four different patents associated with web search and e-commerce. These patents are tied to both software and business methods.

Now, however, a court has sided with Google et al. in a motion to dismiss the case, saying Allen?s claims were too vague and lacked ?adequate factual detail to satisfy the dictates of Twombly and Iqbal? ? two cases that are precedents for requiring adequate evidentiary support.

Sheesh, you'd think Allen's lawyers would know how to plead around this standard, but apparently not.

From the Court order:

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because Plaintiff has failed to identify the infringing products or devices with any specificity. The Court and Defendants are left to guess what devices infringe on the four patents. Plaintiff only indicates that Defendants have websites, hardware, and software that infringe on the patents or that they are encouraging third parties to use products that infringe on the patents. This fails to indicate to Defendants which of their myriad products or devices may be at issue. These allegations are insufficient to put Defendants on "notice as to what [they] must defend." McZeal, 501 F.3d at 1357 (citing Twombly, 550 U.S. at 565 n.10). They are also too generic to satisfy Form 18. Plaintiff urges the Court and Defendants to have patience and simply await delivery of the infringement contentions as required by Local Rule. This ignores that Local Rules do not trump the Federal Rules of Civil Procedure or the Supreme Court's mandate in Twombly and Iqbal. Fed. R. Civ. P. 83(a)(1); Iqbal, 129 S. Ct. at 1950, 1953. Plaintiff's complaint is little more than labels and conclusions, which are inadequate under Twombly, Iqbal, and even Form 18. The Court GRANTS the motions to dismiss.

I don't do patent litigation, but I'm not sure a heightened pleading standard made the difference here.

You can read the complaint and judge for yourself.

Full post as published by South Florida Lawyers on December 21, 2010 (boomark / email).