October 10, 2016
“Big Brother,” the TV show that calls itself a “combination of a reality series and a game show,” has convinced the top patent appeals court that a trial judge properly dismissed an infringement suit over the show’s audience voting method.
The U.S. Court of Appeals for the Federal Circuit found the lower court did not abuse its discretion in dismissing inventor Edwin Lyda’s patent infringement suit for failure to state a claim.
The suit’s joint infringement allegations were unsuitable for Form 18, a document previously attached to the Federal Rules of Civil Procedure, that included a sample patent infringement complaint.
Last December the U.S. Supreme Court adopted recommended changes to the Federal Rules and eliminated the appendix of forms, including Form 18.
Before the changes, the Federal Circuit had decided Form 18 satisfied the minimal pleading requirements for direct infringement claims. In re Bill of Lading Transmission & Processing Sys. Patent Litig., 681 F.3d 1323 (Fed. Cir. 2012).
While the top patent appeals court had ruled Form 18 did not suffice for induced or contributory infringement lawsuits, before the recent decision it had not addressed whether Form 18 satisfied the pleading requirements for joint infringement lawsuits.
Voting method infringed patent, inventor claims
“Big Brother” features a group of strangers living in a house with cameras and microphones recording their every move until a participant is voted off the show by the other housemates, according to the official website.
Versions of the reality-TV game show have been featured in numerous countries across the world, with slight variations in the rules, the website says.
In the American version, the viewing audience can vote to award prizes or give advantages to certain residents by calling, emailing or sending a text message to the show, the site says.
In August 2014 Lyda submitted Form 18 in his lawsuit against the show’s producers, CBS Corp. and CBS Interactive, alleging the “Big Brother” voting method infringed U.S. Patent Nos. 7,434,243 and 7,730,506.
Lyda is a named inventor on the ’243 and ’506 patents, which cover methods of “obtaining real-time responses” by allowing TV audience members to vote in real-time without a computer, using text messages.
After the CBS defendants notified Lyda of some alleged deficiencies in the complaint, Lyda filed an amended complaint in November 2014.
The amended complaint said independent contractors operating “under the control” of CBS tested the show’s text-message voter response system, and Lyda argued this made the media company liable for infringement.
CBS moved to dismiss the complaint for failure to state a claim, arguing that Lyda did not specify how CBS allegedly infringed the patent.
U.S. District Judge Valerie Caproni of the Southern District of New York offered Lyda the option of amending the complaint a second time or opposing CBS’ motion to dismiss.
Lyda elected to oppose the motion, but Judge Caproni dismissed the suit. Lyda v. CBS Corp., No. 14-cv-6572, 2015 WL 4393120 (S.D.N.Y. July 16, 2015).
“Plaintiff’s allegations are simply too vague, even under the Form 18 standard,” the judge said referring to the form found in the appendix to the Federal Rules of Civil Procedure.
Form 18 insufficient
“For claims of direct infringement, this court has determined that the pleading requirements of Form 18 suffice to survive a motion to dismiss,” the three-judge Federal Circuit panel said.
Lyda, however, said this was infringement by “people under the control or direction of an independent contractor” employed by CBS, the panel said, quoting the amended complaint.
Such an allegation implicates a theory of joint infringement, which requires additional elements that Form 18 does not address, the panel said.
Such a claim must allege sufficient facts to state a plausible claim for relief, the panel said, citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
A claim is only plausible if a court can “draw a reasonable inference that the defendant is liable for the misconduct alleged,” the panel added, quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Lyda did not attempt to argue that the amended complaint satisfied the Twombly/Iqbal pleading standard and, even if he would have, the panel said it would have rejected Lyda’s allegations.
The amended complaint offered no factual allegations that CBS directed or controlled independent contractors or that those contractors controlled unnamed third parties who infringed the patents.
Because the trial judge gave Lyda ample opportunity to submit a plausible claim, she did not abuse her discretion in dismissing Lyda’s suit, the panel concluded.