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Judge Mistakenly Nixed Microsoft Patent Suit

A Washington federal judge has revived part of an antivirus patent suit against Microsoft Corp. by Cap Co., a Korean company, admitting that she dismissed the entire case by mistake last month after only resolving some of the claims.

CAP Co. sued Microsoft last year, alleging that the Windows operating system infringes three patents for antivirus and firewall software. The complaint alleged that Microsoft directly infringed, contributorily infringed and induced its customers to infringe, as well as that the infringement was willful.

Judge Marsha Pechman of the Western District of Washington granted CAP Co.’s motion for reconsideration after an order dismissing its entire infringement suit against Microsoft with prejudice.

While she granted Microsoft’s motion to dismiss CAP Co.’s indirect and willful infringement claims last month, her decision did not address the direct infringement claims in the complaint. Nevertheless, she then issued an order dismissing the case in its entirety.

She said that CAP Co. “correctly points out that the court mistakenly conflated their ‘willful infringement’ claim … with their ‘direct infringement claims.’”

Microsoft’s “motion to dismiss did not attack the sufficiency of the direct infringement claims and they should have been left intact by the court’s previous ruling,” the judge wrote.

She therefore withdrew her previous order dismissing the case but denied CAP Co.’s motion for reconsideration of the dismissal of the indirect and willful infringement claims.

In her decision last month, the judge wrote that CAP Co.’s complaint failed to meet the pleading standards for induced, contributory and willful infringement. Induced infringement requires a showing that Microsoft “specifically intended” their customers to infringe, but “there is no question” that the complaint didn’t do that, the judge said.

A complaint alleging contributory infringement must show that the accused product has no substantially noninfringing uses, and she said that saying that Windows has no use other than to infringe CAP Co.’s patents “borders on a frivolous allegation.”

Finally, she said that the willful infringement allegations failed because CAP Co. failed to show that Microsoft knew of the patents. She said she was dismissing the claims with prejudice because the plaintiff had an opportunity to address the deficiencies but failed to do so.

The decision did not mention the direct infringement claims, and CAP Co. argued in its motion for reconsideration that its complaint easily satisfies the pleading standard for direct infringement, which require little more than a statement that the plaintiff owns a patent and that the defendant infringes.

“As direct and willful infringement have entirely different pleading standards, CAP Co. requests the court to withdraw its judgment dismissing CAP Co.’s direct infringement claims,” the company wrote.

Microsoft filed a response conceding that the direct infringement claims should not have been dismissed, even though it said the other claims were properly dismissed.

For more information, see Law360.

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