by Dennis Crouch
In re Freelancer Ltd. (Fed. Cir. 2021)
Here is another mandamus writ coming out of Judge Albright’s Waco Texas courthouse. A basic repeated complaint against Judge Albright is that he appears to work quickly regarding issues that move the case toward trial, but acts more slowly to decide motions to dismiss transfer. I personally don’t put much weight in this complaint because truthfully he’s deciding all of the issues more quickly than most other judges.
- August 2020, GreatGitz sued Freelancer for patent infringement and then filed an amended complaint just before Thanksgiving (November 23, 2020). U.S. Patents Nos. 6,662,194 and 7,490,086 (Providing job searching and recruitment services).
- Two months later (January 21, 2021) Freelancer filed a motion to dismiss for failure to state a claim upon which relief can be granted.
- Briefing ended on the eligibility question in March 2021. At that time, Freelancer also moved to stay all other proceedings in the case until the 12(b)(6) motion was decided.
- It is now June 2021 and Judge Albright had not ruled on either the substantive motion to dismiss or the procedural motion to stay. But, claim construction briefing is moving forward.
- June 10, 2021 Freelancer petitioned to the Federal Circuit to force Judge Albright to decide the 12(b)(6) motion and stop all other activities until that is decided.
The mandamus was assigned to a panel that has now denied the petition, holding that Freelancer has not shown a “clear legal right to a stay of all proceedings premised solely on the filing of a motion to dismiss the complaint.” Likewise, Freelancer did not establish that the delay is “so unreasonable or egregious as to warrant mandamus relief.” Slip Op.
[Freelancer Mandamus Petition]
Note here that the 12(b)(6) motion is not about eligibility but rather infringement. “The Complaint fails to put Freelancer on proper notice of how its products or services infringe either of the two asserted patents.” Although the complaint alleges infringement against particular activity, it does not do a claim-chart walk through showing how each limitation is met. Freelancer argues that “this generic, nonspecific language fails to meet the pleading standard set forth by Twombly, Iqbal, and the Federal Rules of Civil Procedure.”
[Freelancer Motion to Dismiss]
In its responsive briefing, the patentee points to some amount of claim-term-linking in the pleadings — locating various components within “the so-called Aurora Database Cluster, Elasticache, Cloudwatch, Kinesis, and Redshift.”
See Figs. 1-6 (describing the apparatus comprising data centers with servers, which further comprise the Aurora database cluster (memory/processing device), Amazon Elasticache (processing device/receiver/transmitter), Cloudwatch (processing device), Kinesis (processing device/receiver/transmitter), and Redshift (memory/processing device)).
Amended Complaint. In addition, the patentee explained that it has done enough for a complaint and that further details “are quite obviously not subject to specific identification without fact discovery and source code review.”