No Willfulness Claim Based on Post-Filing Knowledge Absent Motion for Preliminary Injunction

The court granted defendant's motion to dismiss plaintiff's willful infringement claims for failure to state a claim because plaintiff did not seek a preliminary injunction. "[In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007)] makes clear that an allegation of willfulness based on the accused infringer's post-suit knowledge of the patent can only be sustained if the plaintiff seeks a preliminary injunction. . . . We are not here presented with a question of whether the claim contains sufficient factual detail. Instead, the question is whether the claim can exist under the circumstances present, where the alleged knowledge of the patent resulted only from the filing of the original complaint in the action and the plaintiff has not sought a preliminary injunction. . . . It would eviscerate Seagate if a plaintiff could file an amended complaint alleging willfulness immediately after the original complaint was served. In sum, Seagate makes clear that where notice of the patent comes via the lawsuit, a plaintiff who wants to pursue a charge of willfulness needs to file a motion for a preliminary injunction, not an amended complaint."

McRo, Inc. v. Namco Banda Games America, Inc., 2-12-cv-10322 (CACD July 11, 2013, Order) (Wu, J.).