Interval's Patent Suit Against the World Dismissed

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Interval's Patent Suit Against the World Dismissed

Posted by Soulskill on Saturday December 11, 2010 @08:15AM from the method-and-system-for-existing-and-failing-to-not-exist dept.

randall77 writes with an update to a story we discussed in August about a patent infringement suit filed by Interval Licensing, a firm run by Microsoft co-founder Paul Allen, against many major tech companies over vague and broadly defined business methods. That patent suit has now been dismissed. Quoting Groklaw: "The court agreed with Google et al that it 'lacks adequate factual detail to satisfy the dictates of Twombly and Iqbal and also 'fails to provide sufficient factual detail as suggested by Form 18.' The court doesn't agree with Allen's Interval Licensing that the two cases do not apply to patent complaints, but it doesn't even need to go there: 'The Court does not find it necessary to determine whether Form 18 is no longer adequate under Twombly and Iqbal because Plaintiff's complaint fails to satisfy either the Supreme Court's interpretation of Rule 8 or Form 18.' Go Google. That was their argument in their motion to dismiss, along with AOL's. Google said the complaint was too vague to meet the standard under Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Then, after Interval Licensing brought up the lower patent form standard it thought should apply instead, AOL jumped in saying the complaint was too vague under even that standard, and the court agreed.

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Good by kaptink · 2010-12-11 08:17 · Score: 1

Good

--
Those who can, do. Those who cannot, sue.
It's not over yet. by tomhudson · 2010-12-11 08:20 · Score: 4, Informative

The court also gave them the right to amend their complaint, as well as a "shopping list" of what they need to do to "fix" it.
You can bet that they'll amend - after all, even if it's ultimately fruitless, lawyers would never advise a client against their (the lawyer's) financial interests.
1. Re:It's not over yet. by postbigbang · 2010-12-11 09:12 · Score: 1
  
  It's an unbelievable gaffe on the parts of Allen's lawyers. I'm guessing a few heads rolled and they'll be back. After all, Allen's yacht needs fuel. http://www.luxuo.com/super-rich/paul-allen-to-give-away-half-of-his-fortune.html
  
  --
  ---- Teach Peace. It's Cheaper Than War.
2. Re:It's not over yet. by Rogerborg · 2010-12-11 23:37 · Score: 2
  
  It's not a gaffe, it's a shrewd move. It was a long shot that they'd be allowed to proceed with such prejudicial case, but they gambled (correctly) that they'd be allowed a do-over. So now they file the case they should have filed in the first place. They've lost nothing except lawyer time, but since all of these patent cases are really about the enrichment of lawyers anyway, that's hardly going to keep them awake at night. What keeps them awake at night is the need to feed.
  
  --
  If you were blocking sigs, you wouldn't have to read this.
EU firms immune agains this kind of bullshit? by whiteboy86 · 2010-12-11 08:22 · Score: 1

Makes we wonder whether this could be enforced in the EU and against EU based firms?

EU is software patent free, is it not?
1. Re:EU firms immune agains this kind of bullshit? by Anonymous Coward · 2010-12-11 09:23 · Score: 1
  
  You sure can sue an EU firm if their product ever goes near the US.
  The world seems to use the USPTO as the go-to place to file due to the extremely low bar for acceptance and highly developed legalese allowed as claims.
2. Re:EU firms immune agains this kind of bullshit? by Anonymous Coward · 2010-12-11 21:38 · Score: 0
  
  Liar. I have searched both patent databases and there are no patents for Anonymous Coward.
"Dictates of Twombly and Iqbal" by Beryllium+Sphere(tm) · 2010-12-11 08:30 · Score: 5, Funny

That would make a kick-ass title for something, I don't know what.
1. Re:"Dictates of Twombly and Iqbal" by PatPending · 2010-12-11 08:36 · Score: 1
  
  DictatesOfTwomblyAndIqbal.com is available!
  
  --
  What one fool can do, another can. (Ancient Simian Proverb)
2. Re:"Dictates of Twombly and Iqbal" by EnsilZah · 2010-12-11 08:55 · Score: 2
  
  Sounds like a new Terry Pratchett/J K Rowling collaboration.
3. Re:"Dictates of Twombly and Iqbal" by Bieeanda · 2010-12-11 09:13 · Score: 5, Funny
  
  "The Dictates of Twombly and Iqbal: A Curiously Victorian Guide to Jihad" (Oxford University Press)
4. Re:"Dictates of Twombly and Iqbal" by Anonymous Coward · 2010-12-11 09:16 · Score: 0, Funny
  
  Is that a rule 34 ploy?
5. Re:"Dictates of Twombly and Iqbal" by Anonymous Coward · 2010-12-11 09:36 · Score: 0
  
  "The Dictates of Twombly and Iqbal: A Curiously Victorian Guide to Jihad" (Oxford University Press)
  This. All night long.
6. Re:"Dictates of Twombly and Iqbal" by CajunArson · 2010-12-11 09:40 · Score: 2, Informative
  
  Federal Rule of Civil Procedure 12(b)(6): Failure to state a claim upon which relief can be granted. Basically, the plaintiff (Interval) didn't submit a proper complaint that states both 1. the claim and 2. relief that the court could grant under the law.
  Twombly & Iqbal are two cases that courts have used in determining whether a complaint avoids a 12(b)(6) dismissal.
  This is not the end of the case, the plaintiff can go back and amend the complaint to meet the standard. It is sort of embarrassing that these high-priced and supposedly very highly skilled attorneys couldn't even draft a complaint that states the claim & prayer for relief though.
  
  --
  AntiFA: An abbreviation for Anti First Amendment.
7. Re:"Dictates of Twombly and Iqbal" by game+kid · 2010-12-11 09:52 · Score: 4, Interesting
  
  I think so, Brain, but how will we mix a burqa with a maid catgirl outfit and still have space for the bombs?
  
  --
  You can hold down the "B" button for continuous firing.
8. Re:"Dictates of Twombly and Iqbal" by M.+Baranczak · 2010-12-11 10:15 · Score: 2
  
  "When Twombly Met Iqbal".
9. Re:"Dictates of Twombly and Iqbal" by turgid · 2010-12-11 10:16 · Score: 1
  
  Uncle Bulgaria begs to differ.
  
  --
  Stick Men
10. Re:"Dictates of Twombly and Iqbal" by fishexe · 2010-12-11 11:13 · Score: 1
  
  That would make a kick-ass title for something, I don't know what.
  I'm pretty sure that would be an indie-rock band made up entirely of 1st-semester law school students who majored in philosophy and/or English.
  
  --
  "I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009
11. Re:"Dictates of Twombly and Iqbal" by akpoff · 2010-12-11 14:03 · Score: 0
  
  Many US companies are praying for relief in patent cases. ;-)
  Sadly, that's not what the parent meant by "prayer for relief".
12. Re:"Dictates of Twombly and Iqbal" by advocate_one · 2010-12-11 20:14 · Score: 1
  
  This is not the end of the case, the plaintiff can go back and amend the complaint to meet the standard. It is sort of embarrassing that these high-priced and supposedly very highly skilled attorneys couldn't even draft a complaint that states the claim & prayer for relief though.
  It was deliberate... it caused the defendants to burn time and money.
  
  --
  Donald 'Duck' Dunn: We had a band powerful enough to turn goat piss into gasoline.
13. Re:"Dictates of Twombly and Iqbal" by sznupi · 2010-12-11 21:46 · Score: 1
  
  Implants don't have to be filled with saline? And a fabulous motivation for, uhm, bigger explosions.
  
  --
  One that hath name thou can not otter
14. Re:"Dictates of Twombly and Iqbal" by Pharmboy · 2010-12-12 01:04 · Score: 1
  
  A Gwar album?
  
  --
  Tequila: It's not just for breakfast anymore!
15. Re:"Dictates of Twombly and Iqbal" by jhylkema · 2010-12-13 11:33 · Score: 1
  
  It was deliberate... it caused the defendants to burn time and money.
  Wrong.
  Under Federal Rule of Civil Procedure 8(a)(2), a complaint is only required to have "a short and plain statement of the claim showing that the pleader is entitled to relief." Prior to 2007, this had been interpreted by the U.S. Supreme Court to mean that the complaint would only fail if, on its face, the pleader could prove no set of facts that would entitle him to relief.
  In 2007, the Supreme Court tightened up these standards in the two cases Judge Pechman referenced in her ruling. Now, to comply with Rule 8, a pleader must allege enough specific facts in support of his claim so that relief is more than speculative. In other words, "Staples, you infringed my patent, you bastards!" no longer cuts the mustard.
  Prior to 2007, though, the type of boilerplate pleading that Paul Allen's lawyers submitted was just fine. They continued to get away with it until, as now, someone decided to call them out on it. The suggestion probably came from a summer associate who mentioned, "argue Twombly and Iqbal" in passing to his boss.
  Just doing my part to correct some of the rampant legal illiteracy on /.
A Simple Solution by Bottles · 2010-12-11 08:45 · Score: 2

I still maintain that in addition to the dismissal of such a frivolous case should be the removal of one finger of all those who brought it. That would send the right kind of message.
1. Re:A Simple Solution by jhylkema · 2010-12-13 11:55 · Score: 1
  
  I still maintain that in addition to the dismissal of such a frivolous case should be the removal of one finger of all those who brought it. That would send the right kind of message.
  Except that we don't know if it's a frivolous case yet. Why not? Because the complaint didn't give the defendants fair notice of which of their products allegedly infringed the patents in question. I agree that it's probably a dogshit case, but statements like yours are just plain ignorant. If it truly is a frivolous (i.e., completely unfounded, baseless or fraudulent) lawsuit, then Brother Paul will end up having to pay the other side's attorney fees as well as possibly additional sanctions. Make no mistake about it, courts are very well-equipped to deal with truly frivolous cases.
2. Re:A Simple Solution by Bottles · 2010-12-13 12:09 · Score: 1
  
  I agree absolutely. We don't know. But if it is proven to be frivolous Brother Paul's payment of the fees and having to endure the sanctions will be much sweetened by the bloody removal of one of his fingers on live television, backed by a brass band and dancing girls.
  Ignorant? No, sir. Hilarious!
No actual "woohoo" by Theaetetus · 2010-12-11 08:56 · Score: 1, Insightful

This is purely a procedural requirement of the complaint, and the complaint was dismissed without prejudice. That means that Interval can amend their complaint or rewrite it, and refile.
What's next, editors? Should we get excited about a motion to dismiss for failure to join a required party? How about a motion to dismiss because the complaint wasn't filed in triplicate, but only duplicate?
1. Re:No actual "woohoo" by Dachannien · 2010-12-11 10:41 · Score: 0
  
  No kidding. I almost fell asleep reading the OP. Wake me up when there's a decision on the merits.
2. Re:No actual "woohoo" by pavon · 2010-12-11 11:20 · Score: 1
  
  Yeah, certainly nothing to celebrate over. But is this common? I would have expected a company founded for the sole purpose of licensing and litigating patents to know more about what is needed for a successful patent lawsuit.
3. Re:No actual "woohoo" by Sulphur · 2010-12-11 12:39 · Score: 1
  
  Yeah, certainly nothing to celebrate over. But is this common? I would have expected a company founded for the sole purpose of licensing and litigating patents to know more about what is needed for a successful patent lawsuit.
  Are they firing HR personnel then?
4. Re:No actual "woohoo" by Rogerborg · 2010-12-11 23:50 · Score: 1
  
  They know exactly what they're doing - they're gaming the system. It was a long shot that they'd be allowed to proceed with such a clearly prejudicial case, but they knew they'd be allowed to amend and re-file, so they lose nothing. Plus, they've moved the goalposts several miles out of the field: now when they file the amended claim, it'll still be prejudicial to the defendants, just not as blatantly so, and they'll assert adamantly that they've satisfied the court's requirements.
  It's a great opening move - it really sets the tone for the rest of the case.
  
  --
  If you were blocking sigs, you wouldn't have to read this.
5. Re:No actual "woohoo" by jhylkema · 2010-12-13 11:47 · Score: 1
  
  Damn, wish I had mod points.
  Word of advice, though: Don't bother. Asperger's-addled coders in their 40s living in their parents' basements don't get that you can't fix the world's problems by recompiling your kernel for the 40,000th time.
microsoft peculiarity? by skywatcher2501 · 2010-12-11 09:09 · Score: 2

what is it with all those ex microsoft employees running patent firms?
btw imagining ballmer leaving microsoft and opening his own patent trolling outfit, wouldn't that be like a christmas gift to the microsoft bashing community? hmm christmas, geeks, creativity... i see a market for ballmer action figures throwing chairs!
ok daily bashing quota reached.
1. Re:microsoft peculiarity? by gnasher719 · 2010-12-11 09:16 · Score: 3, Insightful
  
  btw imagining ballmer leaving microsoft and opening his own patent trolling outfit, wouldn't that be like a christmas gift to the microsoft bashing community? hmm christmas, geeks, creativity... i see a market for ballmer action figures throwing chairs!
  Not really a Christmas gift. Why would anybody be happy if an experienced CEO with a few billion dollars cash on his private hands went into the patent trolling business?
2. Re:microsoft peculiarity? by skywatcher2501 · 2010-12-11 09:56 · Score: 1
  
  what's a soldier without a battle? what's rms without a beard? what's slashdot without microsoft bashing?
3. Re:microsoft peculiarity? by M.+Baranczak · 2010-12-11 10:19 · Score: 3, Funny
  
  What's Twombly without Iqbal?
4. Re:microsoft peculiarity? by Anonymous Coward · 2010-12-11 11:08 · Score: 0
  
  What's a wolf without a pack?
5. Re:microsoft peculiarity? by rtyhurst · 2010-12-11 11:10 · Score: 1, Informative
  
  Microsoft?
  Making billions from other people's work and then claiming it as their own?
  Nah... it'd never happen...
  Wonder where Allen got the idea...
6. Re:microsoft peculiarity? by fishexe · 2010-12-11 11:29 · Score: 4, Interesting
  
  What's Twombly without Iqbal?
  The way the law should be, that's what.
  
  I know you were making a joke, but I have to answer seriously because the question is a surprisingly apt one. In Twombly the SCOTUS ruled that you can't just allege facts showing lawful activity and say they constitute a pattern of unlawful activity, you have to allege at least one specific fact that permits the inference of unlawful activity. Under the standard prior to Twombly, your case would only get dismissed if it was clear you could prove "no set of facts" that could support it; naturally, the letter of the law before Twombly said cases could almost never get dismissed for failure to state a claim, but many absurd suits met the "no set of facts" test and judges dismissed them anyway, because they were absurd. So Twombly basically brought the letter of the law (case law, that is) in line with how it had always been applied in practice.
  
  In Iqbal, the court took this a few steps further and ruled that you can't base your cause of action on any "conclusory" statements, that is basically that you have to plead specific facts for every element of your cause of action. They claim to be applying prior law even-handedly, but the dissent (in this 5-4 decision) does a really good job of pointing out how impossible a burden the court is putting on plaintiffs in certain types of actions to know all the details up front. The whole point of discovery is that there are details you can't know when you first file the suit but that will be relevant to the case; under Iqbal you have to know enough details with enough specificity to basically prove your whole case before you get to discovery, for certain types of cases (discrimination is a good example).
  
  --
  "I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009
7. Re:microsoft peculiarity? by The+Great+Pretender · 2010-12-11 16:26 · Score: 2
  
  Perhaps he was only a CTO, but hasn't this already happened? http://www.intellectualventures.com/WhoWeAre/Bio/Nathan_Myhrvold.aspx
  
  --
  A positive attitude may not solve all your problems, but it will annoy enough people to make it worth the effort.
8. Re:microsoft peculiarity? by owlstead · 2010-12-12 10:22 · Score: 1
  
  Well, if everything gets dismissed, he'll loose out on some serious cash. The problem is that so will Google and the other companies.
Nothing by Anonymous Coward · 2010-12-11 09:22 · Score: 0

This is supposedly a site for the tech-oriented people. News here don't have to be relevant for the Joe Average.
Re:Woo-Hoo! by Rip+Dick · 2010-12-11 09:23 · Score: 0

I prefer Joe Sixpack. It implies a chemically induced state of complacence, that I feel is more accurate.
Merry Christmas by Kymation · 2010-12-11 10:52 · Score: 0

The court did grant leave to amend the complaint, but the deadline for doing so is December 28th. This year. I can't think of a nicer Christmas present for the lawyers.
1. Re:Merry Christmas by Theaetetus · 2010-12-11 11:04 · Score: 2
  
  The court did grant leave to amend the complaint, but the deadline for doing so is December 28th. This year. I can't think of a nicer Christmas present for the lawyers.
  That's the deadline for amending this complaint. If they miss the deadline, this complaint goes abandoned. However, they're not anywhere close to hitting the deadline of the statute of limitations, so there's nothing to stop them from simply refiling with a better-written complaint next month. This dismissal is not on the merits and creates no judicial estoppel.
Not a gaffe by Weaselmancer · 2010-12-11 15:41 · Score: 2

It's good two ways.
1) It lets Allen know what he has to fix to get things moving. And it's a sort of promise from the court. "You said I needed to do X,Y, and Z. I've done X, Y, and Z. So let's get this party started."
2) Lawyers charge by the hour. A sloppy first filing? Damn! Going to have to put in some overtime on this one, boys. I'd say they were laughing all the way to the bank, but they probably aren't. They're probably in hysterics rolling around on the floor with glee and unable to walk until they catch their breath.

--
Weaselmancer
rediculous.
Fucking Google fanboy by Anonymous Coward · 2010-12-11 20:09 · Score: 0

Go Google. That was their argument in their motion to dismiss, along with AOL's.
You meant to say Go Google and AOL then? Oh wait! You meant to say go independent lawyers hired by Google and AOL!
Patenting oneself out of world commerce and jobs by lsatenstein · 2010-12-12 05:13 · Score: 1

I wonder how long it will take before companies will be bypassing US designed and written software due to fears of being sued. Moreover, since software written outside of the USA in countries in Africa, India, Asia, etc, will be functional and will not contain an iota of consideration for any business process considered under USA jurisdictions as patentable, the only consequence I see is that end-user businesses will stop purchasing or running the software in the USA or its jurisdictions. The cloud has made patents a penalty for American software designers and businesses. Have India or China host your business systems. There will be security provided. If one can steal from a server in China, one could steal from a server located anywhere in the universe.

--
Leslie Satenstein Montreal Quebec Canada
more on the way by Anonymous Coward · 2010-12-14 08:20 · Score: 0

Even so, I expect Allen either to file an amended complaint or to appeal the ruling on this case. Someone like him doesn't tend to bring a suit like this unless he thinks he has a reasonable chance of winning. At the very least, he can use his billions to harass the tech companies via endless patent litigation, until the two sides work out some kind of settlement.