NIELSEN CO.(US), LLC v. comScore, Inc.
2011 U.S. Dist. LEXIS 120188
E.D. Va.2011Background
- Plaintiff Nielsen asserts five patents cover software monitoring PC usage and internet activity.
- Defendant comScore moves to dismiss Counts I, V, and part of IX for failure to plead.
- Nielsen requests dismissal of Counterclaim XI; motions are fully briefed and ripe.
- Court applies Twombly/Iqbal standards and McZeal framework for patent pleading.
- The court addresses direct and indirect infringement theories for each asserted patent.
- Decision: motions to dismiss Counts I, V, and part of IX denied; Counterclaim XI denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct infringement by single defendant | Nielsen pleads owner/director liability for all steps. | ComScore cannot perform all steps; panelists do steps. | Count I plausibly alleges direct infringement |
| Infringement by use of systems | Customers use claimed system; Centillion supports use concept. | Customers cannot place system into service; no direct use. | Count V plausibly alleges use and indirect infringement |
| Contributory infringement by customers of another patent | Defendant supplies components with no substantial noninfringing use. | Identify components; materiality and noninfringing use lacking specificity. | Count IX plausibly alleges contributory infringement |
| Counterclaim XI sufficiency | Counterclaim XI should be dismissed for lack of specificity. | Counterclaim XI contains detailed functionality descriptions. | Counterclaim XI survives dismissal motion |
Key Cases Cited
- McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007) (pleading patent infringement under Twombly standard)
- Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318 (Fed. Cir. 2008) (direct infringement requires control over entire process)
- BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed. Cir. 2007) (joint/direct infringement standards; control/direction)
- Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301 (Fed. Cir. 2009) (contributory infringement; no substantial noninfringing use)
- Centillion Data Sys., LLC v. Qwest Commc'ns Int'l, Inc., 631 F.3d 1279 (Fed. Cir. 2011) (use of a system may be satisfied by placing system into service)
- Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263 (Fed. Cir. 2004) (indirect infringement requires direct infringement proofs)