In the complaint Yama asserts that they are the assignee and owner of the patent, which generally discloses and claims technology to update default data and parameters relating to spatial noise characteristics in a digital image acquisition system. Of course, the digital image acquisition systems at issue are various Canon digital cameras.
The Yama complaint also includes a section relating to Canon’s knowledge of the ‘982 patent, saying that “Canon cited the ‘982 patent in U.S. Patent No. 6,489,973 demonstrating knowledge of the ‘982 patent at least as of 2002.” The complaint also goes on to point out that the patent was sent to Canon on June 7, 2012, in order to invite licensing discussions. Kaora Nakamura, who is apparently in the Canon legal department, is alleged to have written to Yama’s licensing counsel on June 12, 2012, stating that the ‘982 patent had been received and forwarded up the chain of command at Canon’s worldwide headquarters in Tokyo, Japan. Of course, these statements about knowledge of the patent have been planted to attempt to demonstrate willful infringement, and perhaps later to attempt to argue that this case is exception and warrants attorneys fees. Of course, Yama will first need to prevail.
In terms of the technology allegedly infringed, the lawsuit alleges that Canon infringed on the patent by including the underlying technology covered by the ‘982 patent in the following Canon digital camera models: EOS-1D X, EOS 5D Mark III, EOS 5D Mark II, EOS 7D, EOS 60D, EOS Rebel T4i, EOS Rebel T3i, Powershot G1X, and Powershot S100.
According to the complaint filed, Yama believes that Canon is infringing based on statements contained in the Canon EOS System Summer 2012 brochure. Specifically, the complaint asserts: “Canon’s website boasts that its digital cameras include noise reduction that produces clear images when shooting in low light at high ISO speeds and advertises its infringing noise-reduction technology as a product differentiator.”
While the specific statements are not identified, in reviewing the Cannon brochure several statements seem clearly to be what Yama is referring to. These include (but are not limited to) the following Cannon statements in the brochure:
- “Even at higher ISO settings where one might expect to see a higher degree of noise, the renowned Canon CMOS sensor and noise reduction system work to ensure superb image quality.
- “Large sensors also capture more light, and can record at high ISO sensitivities with less digital grain and reduced image noise. This enables low-light shooting, without loss of detail, in situations previously impossible without artificial light. Although many devices offer HD recording, the quality of video captured by an EOS DSLR and its CMOS sensor is markedly vibrant and truer to life.”
- “With the 5 Image Processor’s remarkable noise-reduction technology, the EOS Rebel T4i sets a new standard for Rebel cameras and low-light photography.”
I have been quite critical of many patent complaints because they simply violate the Federal Rules of Civil Procedure as the Supreme Court has interpreted them most recently in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). See Paul Allen Complaint Dismissed and Motorola Sues Apple with Sparse Complaint. This complaint filed by Yama, however, shows that a complaint does not need to be very long in order to meaningfully put the defendant on notice as to what the plaintiff is alleging. Having said that, the complaint is not everything one would hope for, but certainly as much as district courts require.
The one deficiency I see in the complaint is that there is no mention of any particular claim that is infringed. In the past I have said that there is no way for a patent infringement complaint to rise above a speculative level and have enough facts to justify recovery without identifying a single claim that has been infringed, but the sad truth is that complaints that do not include that level of detail are filed all the time and without consequence. In this complaint, for example, Yama asserts: “Canon has been and continues to infringe the ‘982 Patent, directly and/or by intentionally inducing direct infringement by its customers and/or users by making, using, selling, importing, and offering for sale, the accused digital cameras.”
Simply stated, patents are not infringed. Patent claims are infringed. This may seem like a legal argument that is too cute by at least half, but the reality is that a complaint is supposed to be able to support the recovery asked for. If the defendant were to decide not to participate in the litigation and file an Answer and contest the allegations the complaint would still need to be legally sufficient for the district court to enter judgment. A complaint without the requisite allegations is not one that would support such a default judgment. Because patents are not infringed, but rather claims are infringed, if Canon were to ignore this litigation (which they won’t do) the district court judge should not enter a default judgment. There is no statement that any particular Canon model incorporates all of the limitations of any particular claim. You cannot infringe a patent in a vacuum. It is all about whether each and every limitation found in a claim is included in the accused infringing device. No where in the complaint is the proper assertion made.
Now I realize I am chasing windmills here, but it is truly regrettable that the Federal Circuit has not stepped in to require complaints with more information, which would be consistent with the Supreme Courts rulings in Twombly and Iqbal. It certainly seems that this complaint is not one of those objectively bad, non-informing complaints. There is ample information to put Canon on notice as to the plaintiff’s theory, so this case has not been initiated by ambush by any stretch of the imagination. But there are many complaints that offer no meaningful information as to why the plaintiff believes the defendant is infringing, and they offer no information on any single complaint. Instead they seek to shakedown defendants and bully them into settling in what is reminiscent of the old protection rackets. The Federal Circuit has even explained that some of the bad actors are engaging in what appears to be “extortion like” activities. One easy thing that could be done to prevent such bad actors would be to meaningfully police the requirement to put the defendant on notice mandated by the Supreme Court in Twombly and Iqbal.
The requirements for what goes into an adequate patent infringement complaint are really as clear as mud, thanks to conflict between the Supreme Court’s latest pronouncements in Twombly and Iqbal and the Federal Rules of Civil Procedure. There is a model complaint for patent infringement actions that is attached to the Federal Rules of Civil Procedure. It was obviously created by someone who knows nothing about patents or patent infringement, because all that is required is that the plaintiff assert the title of the patent and sanctions the provision of no useful information. Notwithstanding, it is the Supreme Court that will be the final arbiter of whether the model complaint is appropriate — eventually — and given its recent jurisprudence it seems pretty clear that the Supreme Court is less than thrilled with the lack of substance in federal complaints. The trouble with non-informing complaints is that bringing a lawsuit is made easier, thereby shifting the burden of due diligence onto the defendant without any reasonable or articulable belief there has been any wrongdoing on the part of the defendant.
In a post-Twombly era it is required that complaints have factual allegations above a mere speculative level and for there to be enough facts in the complaint, if taken to be true, that the the plaintiff will prevail. If there were ever going to be a situation where a patent infringement complaint would be deemed appropriate without mention of any claim it would be here. Yama has included information in the complaint explaining how and why they have reason to believe Canon is infringing, asserted that Canon knew of the patent at least as far back as 2002, and they have been approached to initiate licensing negotiations but have failed to move forward with discussions. Still, is it too much to expect that a complaint be sufficient to support a default judgement? I think that should be the basic requirement to satisfy the fundamental fairness requirements.
Alas, I am making a mountain out of a mole hill probably, but we all have our pet-peives. As for the likely outcome? Who knows. It is way to early to tell. Having said that, I would would be willing to bet my bottom dollar that Canon will assert a laches defense. Knowing of the patent for 10 years may seem helpful, but if they did know about it for that long it would seem likely that at some point they could and should reasonably be able to expect that what they have been doing was not infringing, or wouldn’t be pursued by the patent owner.