Google's Motion to Dismiss patent infringement charges granted

Lawsuits are formalized disputes by which those who have a fight with each other are given an opportunity to determine whether an alleged wrong was committed by one party against another and, if so, how it should be redressed.

The fight begins with formal notice about what your claims are, and these are subject to specific rules known in federal court as "federal rules of civil procedure" (counterparts exist in each state court as well).

Contrary to what most people think who have never been through a formal litigation, one does not just file a simple piece of paper and then show up before Judge Judy to testify as a witness and get an instant result. Rather, in federal court, a case is begun by the filing of a complaint that gives notice of the claims and then a formal process follows by which each party sued is given a right to respond in a formal way, ultimately culminating in the filing of an "answer" in which that party denies whatever allegations are disputed and also asserts special defenses (known as "affirmative defenses") that essentially say, "even if all that you say is true, I still win" (e.g., if the statute of limitations has run on what otherwise would be a valid claim). In any case, once an answer is filed, the material allegations in the complaint, coupled with the answer's denials of such allegations, then constitute the "triable issues" in the case. The parties are free to conduct (normally) extensive discovery concerning those issues, and that process can run a year or more in a typical case and cost the parties a lot of expense for things such as documents productions, interrogatory responses, deposition testimony, and the like. In time (usually a minimum of 12 to 18 months from the date of first filing), the case comes up for trial, at which time the trier of fact (judge or jury) hears the factual evidence, determines what is to be counted as creditable, and then applies the law to it to come to a formal judgment. That judgment often is "x committed some wrong and caused $xxx damages to y, and y is hereby awarded damages in the sum of $xxx" or it could reflect some other remedy.

In any case, my point is that this is a long, complicated, and expensive process. Therefore, the law imposes certain thresholds at inception that a party must meet in order to be allowed to proceed with its case beyond the filing stage. These traditionally are pretty easy thresholds to meet because the policy behind the law is to permit all valid claims to come to trial and not to subject them to early judge-ordered dismissals on technical grounds (the ease of normally meeting these threshold requirements is what causes institutional defendants to complain about how easy it is for them to be sued and harassed even if the claims are dubious). But, though minimal, threshold minimal pleading requirements do exist and, if a court determines that a complaint does not meet them, it has the power to order that the complaint be dismissed in whole or in part (that is, as to some but not all the claims).

The federal rules of civil procedure allow a pleader to assert any set of facts that constitutes a proper claim for relief. If the facts set forth in a complaint, on their face, do set forth such a claim, then the court has no power to dismiss any such claim (even if those facts are ultimately be proved to be untrue). Thus the procedural rules give a party that is sued the power to bring what is known as a motion to dismiss in order to attack a complaint on the technical grounds that is doesn't, on its face, set forth a proper claim for relief and the court must then assess the complaint (on its face only) to determine whether it does or does not in fact set forth "proper claims."

In determining what is a "proper claim," the law defines each claim as having essential elements and each of these must be properly pleaded in order to set forth a good claim. Traditionally, the level of detail required to satisfy the pleading requirements for each element of a claim is not too much. Therefore, if each element is properly pleaded, the court will simply deny the motion and this enables the complaining party to have a broad opportunity to engage in discovery and ultimately seek to move the case to trial, all at great expense to the parties sued.

These pleading rules went many years being so liberally construed in favor of letting cases survive preliminary challenges and move toward trial that a backlash eventually occurred, and this happened at the U.S. Supreme Court in the form of a couple of leading cases that wound up giving trial judges much greater ability to dismiss a case unless it set forth a lot more detail about what allegedly occurred than had theretofore been required if that claim were to be permitted to survive a motion to dismiss.

Now, with that long windup, here is what happened here: the Paul Allen entity sued Google for patent infringement and Google moved to dismiss the complaint on the grounds that it did not set forth proper claims for relief when tested by the standards of the recent Supreme Court cases tightening up the pleading requirements; the complainant said that it had set forth all the facts needed to define proper claims and asked the court to deny Google's motion so that the case might proceed through discovery and trial and argued, incidentally, that the tighter standards required by the Supreme Court for federal cases generally should not be applied to patent cases; the court agreed in all respects with Google and dismissed the claims in their entirety on grounds that they were too vaguely pleaded to set forth proper claims.

Since the rules in federal court are tilted to assure that all meritorious claims ultimately have their day in court, such a dismissal is done "with leave to amend," meaning that the plaintiff is given one or more opportunities to fix any deficiencies before a court can dismiss such claims "with prejudice" (meaning once and for all).

This was round one in the fight, and Google won it decisively. The rules are stacked against any defendant in such cases but Google does seem to do a brilliant job of exploiting the tools the law does afford defendants and, for the moment anyway, does have this patent troll on the run.

Sad to see Paul Allen associating his legacy with trolls and extortion strategies for profit.

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We never ask: what is the last straw?"

-- @taylorbuley in TC comments regarding something else, 2010