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Callwave Comms. LLC v. AT&T Mobility LLC, et al., C.A. No. 12-1701-RGA to 12-1704-RGA, 12-1788-RGA (D. Del. Jan. 28, 2014).

Callwave Comms. LLC v. AT&T Mobility LLC, et al., C.A. No. 12-1701-RGA to 12-1704-RGA, 12-1788-RGA (D. Del. Jan. 28, 2014).

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Callwave Comms. LLC v. AT&T Mobility LLC, et al., C.A. No. 12-1701-RGA to 12-1704-RGA, 12-1788-RGA (D. Del. Jan. 28, 2014).
Callwave Comms. LLC v. AT&T Mobility LLC, et al., C.A. No. 12-1701-RGA to 12-1704-RGA, 12-1788-RGA (D. Del. Jan. 28, 2014).

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09/25/2014

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IN THE UNITED STATES DISTRICT COURT
FOR
THE DISTRICT OF DELAWARE CALL WAVE COMMUNICATIONS LLC, Plaintiff,
v
AT T MOBILITY LLC, et al., Defendants. Civil Action No. 12-1701-RGA IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CALL WAVE COMMUNICATIONS LLC, Plaintiff,
v
SPRINT NEXTEL CORP., et al., Defendants. Civil Action No. 12-1702-RGA IN THE UNITED STATES DISTRICT
OURT
FOR THE DISTRICT OF DELAWARE CALL WAVE COMMUNICATIONS LLC, Plaintiff,
v
T-MOBILE USA INC., et al., Defendants. Civil Action No. 12-1703-RGA
Case 1:12-cv-01701-RGA Document 70 Filed 01/28/14 Page 1 of 6 PageID #: 1440
 
IN THE UNITED STATES DISTRICT COURT
FOR
THE DISTRICT OF DELAWARE CALL
WAVE
COMMUNICATIONS LLC, Plaintiff,
V
VERIZON COMMUNICATIONS INC., et al., Defendants. Civil Action No. 12-1704-RGA IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CALL WAVE COMMUNICATIONS LLC, Plaintiff,
v
Civil Action No. 12-1788-RGA AT T MOBILITY LLC, et al., Defendants.
OR ER
In the above-captioned five cases, nine motions to dismiss are pending. No. 12-1701, D.I. 30 32; No. 12-1702, D.I. 26 28; No. 12-1703, D.I. 24 27; No. 12-1704, D.I.
23
25; No.l2-1788, D.l. 27).
1
The arguments
are
to a great
extent
overlapping, and the Plaintiff managed to respond to the motions in one nineteen page brief.
E.g.,
No. 12-1701, D.l. 36). Thus, the Court will address the arguments by category.
1
The portions
of
these motions that sought to dismiss for lack
of
standing have been withdrawn.
E.g.,
No. 12-1701, D.l. 53).
Case 1:12-cv-01701-RGA Document 70 Filed 01/28/14 Page 2 of 6 PageID #: 1441
 
Willfulness. For the most part, Plaintiff alleges willfulness on no basis other than the fact that an earlier version
of
the suit was served on a defendant before the present amended complaint was filed. While I previously had allowed such a pleading,
see Ip Venture
Inc.
v.
Lenovo Group
Ltd
2013 WL 126726 (D.Del. Jan. 8, 2013), I have
now
thought better
of
that decision. Other judges
of
this Court have split on this issue.
See e.g. Execware
LLC
v.
Staples Inc.
2012
W
6138340, at *7 (D.Del. Dec. 10, 2012) (Magistrate Judge Fallon)( dismissing willfulness allegation);
Aeritas
LLC
v.
Alaska
Air
Group Inc.
893 F.Supp.2d 680, 685 (D.Del. 2012) (Judge Robinson) (same);
contra Clouding
IP
LLC
v.
Amazon. com Inc.
2013 WL 2293452, at *4-5 (D.Del. May 24, 2013) (Judge Stark) (allowing willfulness allegation). Judge Stark stated that there was not much difference conceptually between sending a letter pre-suit and the filing
of
a complaint to put an alleged infringer on notice, and I agree with the logic
of
that statement. The pre-suit letter does, however, offer a benefit -the patent holder and the asserted infringer may exchange information, and the asserted infringer might then take a license, or the patent holder might learn
of
reasons why suit should not be filed. There is a benefit to society
if
the matter is resolved without a suit. Once a suit is filed, however, the only thing a willfulness allegation in an amended complaint does is allow the Plaintiff to raise the stakes. Given what the Federal Circuit has said about an injunction generally being the preferred remedy for post-filing reckless conduct, and recognizing that some
plaintiffs
generally,
non competitors
may not be able to seek an injunction, it seems to me the better course is generally not to allow allegations
of
willfulness based solely on conduct post-dating the filing
of
the original complaint.
 
See LML
2
The Federal Circuit has indicated that willfulness is generally something that either does, or does not, happen before litigation begins. [I]n ordinary circumstances, willfulness will depend on an infringer's prelitigation conduct. [W]hen an accused infringer's post-filing conduct is reckless, a patentee can move for a preliminary injunction, which generally provides an adequate remedy for
i
 
Case 1:12-cv-01701-RGA Document 70 Filed 01/28/14 Page 3 of 6 PageID #: 1442

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