Case 1:11-cv-00812-RGA Document 287 Filed 06/18/12 Page 1 of 2 PageID #: 1594

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

SELECT RETRIEVAL LLC, Plaintiff,

v.

Civil Action No. 11-812-RGA

AMERIMARK DIRECT LLC., et al., Defendants.

This

~ day of June 2012, the Court having considered the various motions to dismiss

ORDER

(D.I. 121, 145, 156, 168, 180, 191, 193, 195,209,240, 274) and related objections (D.I. 237 & 257), IT IS HEREBY ORDERED that:

1. The motions to dismiss (D.I. 121, 145, 156, 168, 180, 191, 193, 195,209,240, 274) are
DENIED.

2. The Court understands the First Amended Complaint (D.I. 28) to allege that the Defendants make and use named websites to conduct their businesses. (See, e.g., D.I. 1, ~ 86). The First Amended Complaint further alleges that the Plaintiff is the owner of a named patent, which the Defendants infringe by the making and using of the web sites. These minimal allegations (combined with jurisdictional allegations and an appropriate request for a remedy) are all that are required to satisfy Form 18 and to state a claim of direct infringement. See In re Bill
ofLading Transmission and Processing System Patent Litigation, 2012 WL 2044605, *7 (Fed.

Cir. June 7, 2012) ("whether [a complaint] adequately pleads direct infringement is to be

Case 1:11-cv-00812-RGA Document 287 Filed 06/18/12 Page 2 of 2 PageID #: 1595

measured by the specificity required by Form 18."). 1 There is no need to allege a product being sold, as a claim of making or using can make out a claim of patent infringement. The patent at issue involves, "hierarchical graphical listings [which] allow simple retrieval of information from a database record having plural fields." The Court understands this to describe, among other things, what a consumer might do when using a website such as one of those of the defendants to purchase merchandise over the internet. Thus, the allegations that the Defendants have infringed the patent by the operation of their respective websites "that embody the inventions claimed in the [patent]" meet the Form 18 requirements. 3. The First Amended Complaint alleges that the conduct was willful, and it alleges as a fact that on a particular date shortly before the Complaint was filed, the defendant was notified by letter of the existence of its patent, that the defendant infringed the patent, and that the plaintiff was offering a licensing agreement. (D.I. 1, ~ 164). The Complaint provides a sufficient factual averment to support the allegation that, since the date of the letter, the infringement has been willful. 4. The objections (D.I. 237 & 257) are moot, and are therefore OVERRULED.

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The Federal Circuit further comments, "It will not always be true that a complaint which contains just enough information to satisfy a governing form will be sufficient under Twombly ...." ld at *7 n.6. Given the citations that follow in the footnote, I do not believe this is meant to be some sort of limitation on the holding in the text.