In recent years, District of Delaware Judges, including Judge Richard Andrews, have helped to manage the high volume of patent litigation cases by referring 12(b)(6) motions to dismiss to Magistrate Judges. Last week, in Wrinkl, Inc. v. Facebook, Inc., Judge Andrews announced a change to his motion to dismiss referral practice when dismissing the plaintiff’s claims for indirect and willful infringement claims of one asserted patent because the Complaint had insufficient allegations of pre-suit knowledge. C.A. No. 20-cv-1345-RGA (D. Del. Sept. 30, 2021). 

The Court noted that there is a disagreement in the District of Delaware “as to whether the Complaint alone may support post-suit willful and induced infringement claims.” Judge Andrews admitted that he has been on both sides of the issue and that referral of motions to dismiss can compound the issue because the Magistrates are put in an “unenviable position” of issuing inconsistent opinions or issuing consistent opinions that will be hard to sustain. 

Judge Andrews acknowledged that the state of the law encouraged alleged infringers to waste time and resources filing motions to dismiss that have no long-term impact on the case. With that in mind, he announced, “I am going to solve the Magistrate Judge referral concern by no longer referring the Rule 12(b)(6) pleading motions (as distinguished from the Section 101 motions to dismiss to Magistrate Judges. (For outstanding referrals to Magistrate Judges, of which there are nearly none, I will adopt whatever they have recommended. There is no reason to continue to waste resources on this issue.).” 

This practice announced by Judge Andrews may be adopted by other District of Delaware Judges and should be considered in analyzing whether to file a motion to dismiss on indirect and willful infringement claims.