Judge Albright is not “So Unreasonable or Egregious”

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.

This case:

  • 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.”

15 thoughts on “Judge Albright is not “So Unreasonable or Egregious”

  1. 4

    If claim construction briefing is underway, that means the Plaintiff has already served its Preliminary Infringement Contentions, including a detailed claim chart. Whether or not the original complaint gave the Defendant notice, the Defendant surely has notice now, right?

  2. 3

    Arguing that the complaint-itself “fails to put Freelancer on proper notice of how its products or services infringe either of the two asserted patents” was a sure loser at the Fed. Cir. That court has not required complaint identification of which claims may be infringed by which products [much less “how”] even after the old FRCP patent complaint form was removed after the Sup. Ct. Twombly and Iqbal decisions. As much defendants and the district court need that information for rational discovery, etc., it apparently has to be dug out at a later stage, from good local district court rule requirements, discovery, and/or early enough pre-trial orders? If that information is not obtained early enough it can allow imposition of hugely burdensome and costly discovery on a defendant with a large number of different products with different features. Even though the burden to prove infringement is on the patent owner.

    1. 3.1

      Hint: notice pleading – not full scale pleading….

  3. 2

    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.
    In other words, this is a situation where the 12(b)(6) motion is being used for its proper purpose. Under Federal Rule of Civil Procedure 8(a)(2) a pleading only requires “only ‘a short and plain statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

    A 12(b)(6) motion is about a failure to state a claim. Under Iqbal, a claim has “facial plausibility” when the complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). As stated in Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), the issue is “not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.”

    Let me repeat, 12(b)(6) motions were never intended to be used to invalidate patent claims. Under i4i, invalidity must be proved by clear and convincing evidence. However, a 12(b)(6) motion is prior to evidence between presented. How can a patent be invalidated with clear and convincing evidence prior to evidence being submitted?

    Using 12(b)(6) with 35 USC 101, from the best of my knowledge, was blessed in a concurrence in Ultramercial — that concurrence being written by Judge Mayer. The same judge who think ALL software is unpatentable. The rest of the Federal Circuit has turned a blind eye to this misuse of 12(b)(6) motions.

    1. 2.1

      So, let me play the Devil’s advocate and distinguish the presence and level of presumption of validity by inquiring as to whether that presence and level is the same for matters of fact and for matters of law…

      1. 2.1.1

        inquiring as to whether that presence and level is the same for matters of fact and for matters of law…
        103 (like 101) is a matter of law with subsidiary factual findings. However, one NEVER sees a 103 invalidity defense in a 12b6 motion.

        Regardless, the question isn’t whether the defendant can raise an affirmative defense. It is whether the plaintiff made a plausible claim (e.g., did defendant infringe the patent). A 12b6 motion is about identifying a deficiency in the pleading — that’s it. This is why a very common consequence of a successful 12b6 motion is that plaintiff can request a chance to refile the complaint.

        1. 2.1.1.1

          I was referring more to your inclusion of the i4i case.

          You seem to want to depend on the presence and level of the presumption (even if but for validity) on a point of legal process to which you also want to prevent ‘validity’ from being a consideration.

          It seems that if you have the point that you want, then the point of validity (and ‘defense of’ by challenging) that disappears, and with that disappearance, carries away with it that same presence and level (that also disappears).

          I do “get” that your position is little more nuanced, in that you are saying that the result of current 12b6 practice IS invalidating patents – and that, by way of a (pled?) ‘defense’ in answer to the plaintiff’s filing.

          But the ‘very common consequence’ that you now speak of disappears because of that invalidating aspect.

          (and yes, this is not a position that I espouse, as – like you – I DO envision that a very important stick in the bundle of property rights of a granted patent is both the presence and level of that very presumption of validity, to which [as held in i4i] is BOTH present and at a level of requiring clear and convincing evidence of invalidity)

          Perhaps a bit crabbed, but does the fact that the courts are deciding these things as NOT requiring any factual determinations (as if Berkheimer did not exist) and as a matter of law, that the CC (as to evidence) becomes ‘something else’ that is in all essence NOT requiring any evidence at all, but merely the feelings of the judge (akin to Night Writer’s phrasing of ‘pure equity’)….?

          1. 2.1.1.1.1

            i4i refers to the evidentiary burden required to invalidate a patent.
            Obviously, evidence refers to factual issues.
            Pursuant to Berkheimer/Aatrix, 35 USC 101 involves factual issues.
            As such, before the patent can be invalidated, those factual issues must be decided.

            A 12b6 motion to dismiss presumes the facts alleged in the complaint. However, the law does not require a plaintiff to anticipate an affirmative defense in a pleading. As such, it is inappropriate to decide the 101 issue merely on the pleadings since plaintiff is not required to plead facts regarding the 101 issue.

            Only AFTER evidence has been presented would it be appropriate to address the 101 issue (using the relevant evidentiary standard of clear and convincing evidence).

            However, all of this unnecessarily complicates what should be an exceptionally straight-forward issue. Affirmative defenses are not addressed at the pleading stage — particularly when there are factual issues to be decided. There are a number of 12(b) defenses that can be pled, which include:
            (1) lack of subject-matter jurisdiction;
            (2) lack of personal jurisdiction;
            (3) improper venue;
            (4) insufficient process;
            (5) insufficient service of process;
            (6) failure to state a claim upon which relief can be granted; and
            (7) failure to join a party under Rule 19.

            However, the Federal Circuit has transformed 12b6 into something it is not.

            1. 2.1.1.1.1.1

              Thanks Wt, I wanted to give you an opportunity to flesh out your views (with the hope of engendering comments from others)

              In particular, your paragraph of “A 12b6 motion to dismiss presumes the facts alleged in the complaint. However, the law does not require a plaintiff to anticipate an affirmative defense in a pleading. As such, it is inappropriate to decide the 101 issue merely on the pleadings since plaintiff is not required to plead facts regarding the 101 issue.” is instructive.

              So let’s take a little closer look:

              A 12b6 motion to dismiss presumes the facts alleged in the complaint.

              So this would be the original complaint of the patent holder to which a defendant is asserting the 12b6 motion. So in addition to any presence and level of presumption of validity of the underlying patent (a ‘legal fact’ – if you will pardon the colloquial terminology – for ALL granted patents, by law), a court must ‘lean’ towards the non-movant of the 12b6 motion.

              However, the law does not require a plaintiff to anticipate an affirmative defense in a pleading.

              This appears to state a level of sufficiency in the original complaint, and one to which any LACK thereof to address ANY potential defense does not defeat that original complaint.

              One nit here for me though, does a successful 12b6 motion hinge on whether or not any such anticipation is present? From your inclusion of the list of 12(b) defenses, you appear to draw a sharp distinction between that list and any affirmative defense, such as for example, claims of invalidity.

              Your point then appears to be that Affirmative defenses that may (or may not) invoke introduction of evidence, simply are not the subject of a proper dismissal under a 12b6 motion.
              As such, it is inappropriate to decide the 101 issue merely on the pleadings since plaintiff is not required to plead facts regarding the 101 issue.

              To further the point then, by the Court expanding the reach of what 12(b) covers (implicating that additional statements of facts in order to inoculate against a premature dismissal) violates civil procedure. That it is the court itself that is inducing this violation is only more onerous, as they are the ones that are supposed to make sure that the order of civil procedure is followed.

              There is an underlying “simian-in-a-cage-being-firehosed” lesson here: being anti-patent is an Ends that justifies any Means.

      2. 2.1.2

        Also, I am sure that we have discussed this years ago when Alice came out.

        I’ve said what you are saying now Wandering years ago.

        It doesn’t matter as the Scotus has the CAFC’s back.

        I think it is great to continue to point out just how bad this Alice nonsense is. But get that the Scotus set up Alice intentionally for 12b6 motions and intentionally so that a judge could just invalidate claims privately.

        1. 2.1.2.1

          Night Writer,

          I have to disagree with you on the particulars of this point (and agree with Wt). I do NOT disagree that the effect is in line with your past provided views.

          The Ends are in the same camp.

          But here, the specific means simply are NOT what the Supreme Court ever hinted at. As noted above, there is MORE than one dynamic here. You have BOTH the dynamic that the legislatively provided presence AND level of presumption of validity (a valuable stick in the bundle of property rights) is being disregarded and effectively taken, but you ALSO have a matter of pure civil procedure being wantonly trampled.

          Sure, this is an offshoot of the Supreme Court’s firehosing, but I would posit that Wt’s distinction here is a better and more precise one.

          1. 2.1.2.1.1

            anon, again you just don’t get how the Scotus works.

            Spend more time reading in other areas of the law. I get my state bar publication which has great articles on all areas of the law. You quickly learn that patent law isn’t special. All the problems we have are part of the zeitgeist.

            The Scotus knows exactly what it is doing in setting up Alice so that DCs can dismiss patent lawsuits by invalidating all the claims with 101.

    2. 2.2

      Wandering,

      I agree with you but I think that it is just another one of the outrages in this whole weaken patents by the judicial.

      1. 2.2.1

        Yes – in this manner, each of us are in accord.

  4. 1

    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.

    If this is true, then it is a very relevant detail that I have not seen reported anywhere else. If true, this detail substantially changes my thinking on this subject.

    Do you know where one might find confirmation of the data on this detail? Thanks in advance.

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