Fed Circ. bats down stringent pleading standards in PlayStation patent case

The Sony logo is seen on a building in the Manhattan borough of New York City, New York, U.S., January 16, 2019. REUTERS/Carlo Allegri

  • Bot M8 alleged Sony infringed authentication patents, others
  • District court judge wrongly required “element-by-element” infringement claims
  • Federal Circuit said pleading standard too strict under Supreme Court precedent

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(Reuters) – The U.S. Court of Appeals for the Federal Circuit reinstated some, but not all, of gaming tech patent owner Bot M8 LLC’s patent infringement claims against Sony Corp over PlayStation 4 technology on Tuesday.

U.S. District Judge William Alsup’s requirement for Bot M8 to cite “every element” of the patents that were infringed in the complaint was too stringent, U.S. Circuit Judge Kathleen O’Malley wrote for a three-judge panel.

“To the extent this district court and others have adopted a blanket element-by-element pleading standard for patent infringement, that approach is unsupported and goes beyond the standard the Supreme Court articulated” in its 2007 decision in Bell Atlantic Corp v. Twombly and 2009 decision in Ashcroft v. Iqbal, O’Malley said.

Sony and its attorney John O’Quinn of Kirkland & Ellis didn’t immediately respond to a request for comment, and neither did Bot M8 nor its attorney Paul Andre of Kramer Levin Naftalis & Frankel.

Foster City, California-based Bot M8 sued Sony in 2019, alleging Sony’s PlayStation 4 console and games infringed five of its patents related to aspects of casino and video-game systems including an authentication mechanism, a fault-inspection program, and a gaming machine that “changes future game conditions based on players’ prior game results.”

After the case was moved from Manhattan to San Francisco federal court, Alsup told Bot M8 to file an amended complaint that specified “every element of every claim you say is infringed and/or explain why it can’t be done.” He later dismissed the amended Bot M8 complaint as to four of the patents and granted Sony summary judgment on a fifth, finding the relevant parts of that patent unpatentably abstract.

O’Malley, joined by U.S. Circuit Judges Timothy Dyk and Richard Linn, took issue with Alsup’s instructions to Bot M8.

“Once more, we address the stringency of pleading requirements in cases alleging patent infringement. Once more, we explain that patentees need not prove their case at the pleading stage,” O’Malley said.

O’Malley said a complaint must instead only “place the alleged infringer on notice of what activity is being accused of infringement.”

O’Malley affirmed the dismissal of two of the claims but reversed on two others, finding the lower court “simply required too much” with respect to two patents related to a fault-inspection program.

Bot M8 provided sufficient evidence that the PS4 may include a fault-inspection program that infringes the two patents, O’Malley said. Its amended complaint “expressly alleges – at least four different times” that the PS4’s program functions in the same way as Bot M8’s, and identifies PS4 error messages that support its allegations.

“The FAC plausibly alleges that the PS4 completes its execution of the fault inspection program before the game is started and supports those assertions with specific factual allegations,” O’Malley said. “Nothing more is required.”

The court affirmed Alsup’s summary judgment decision in Sony’s favor on another patent.

The case is Bot M8 LLC v. Sony Corp of America, U.S. Court of Appeals for the Federal Circuit, No. 20-2218.

For Bot M8: Paul Andre of Kramer Levin Naftalis & Frankel

For Sony: John O’Quinn of Kirkland & Ellis

Blake Brittain

Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com

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