Elm 3DS Innovations, LLC v. SK Hynix Inc., et al.C.A. No. 14-1432 – LPS- CJB, October 16 , 2015.

Burke, M. J.   Report and Recommendation recommending that the court deny defendant’s motion to dismiss pre-suit induced infringement claims.

Plaintiff accuses defendants’ semiconductor chip products of infringing 13 patents, one of which is the subject of this motion. The complaint cites to no direct evidence indicating that defendants ever reviewed or cited to the patent-in-suit prior to suit. Plaintiff does allege facts relating to defendants’ knowledge of the parent patent and also alleges that the patent-in-suit was well-known in the industry and frequently referenced by defendants’ competitors.  While this issue amounts to a very close call, taken as a whole the allegations render it at least plausible that defendant was aware of the patent as of the date of its issuance. As for infringement claims, while plaintiff’s allegations of how and why the accused products infringe are not extremely specific, defendants do not explain why they are insufficient to set out a plausible claim of direct infringement. In response to the argument that plaintiff has not pleaded entity-specific facts with respect to certain defendants, the court is mindful that it must take a realistic view of what a plaintiff can allege at this early stage with respect to another party’s knowledge. It’s at least plausible that knowledge of the patent, knowledge of infringement, and infringing intent could reside within all four related defendants.