IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Online News Link LLC,

Plaintiff,
V.

Civil Action No. 13-1440-RGA

Wayfair LLC,

Defendant.
MEMORANDUM ORDER

Before the Court is Defendant Wayfair LLC's Motion to Dismiss Plaintiffs Amended Complaint for Failure to State a Claim. (D.I. 24) and related briefing (D.I. 25, 35, 36). In a related case, this Court dismissed Plaintiffs original complaint for failure to state a claim because the allegations were conclusory and did not provide adequate notice as to what activity allegedly infringed. (No. 13-1438 D.I. 19). The Court granted leave to amend, and Plaintiff amended the complaint. Recognizing that the same arguments might be brought up in a Rule 12(c) motion, Plaintiff also amended the complaint in this case. After answering the original complaint, Defendant now argues that the amended complaint fails to state a claim because it does not give fair notice of what is alleged to infringe. (D.I. 25 at 4). 1 In order to state a claim in the patent context, the complaint must contain:
(1) an allegation of jurisdiction; (2) a statement that the plaintiff owns the patent; (3) a statement that defendant has been infringing the patent 'by making, selling, and using [the device] embodying the patent'; (4) a statement that the plaintiffhas

Plaintiff argues that because Defendant answered the original complaint, it cannot now argue that there was a lack of notice. While this argument appears to be logical, I need not reach it.

given the defendant notice of its infringement; and (5) a demand for an injunction and damages.

In re Bill ofLading Transmission & ProcessingSys. Patent Litig., 681 F.3d 1323, 1334 (Fed.
Cir. 2012) (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed. Cir. 2007). The only issue here is whether the complaint adequately meets the third prong.
i

Wayfair argues that the amended complaint does not adequately identify which products or services allegedly infringe the patent. (D.I. 25 at 7). This argument is not persuasive. The claims are drawn to an information distribution system. Plaintiff alleges that Defendant uses a system which transmits email communications containing user-selectable links associated with data on a server. (D.I. 17 at 3). In order to identify the accused system with more specificity, Plaintiff included as exhibits screenshots of emails which would be part of the accused system. Defendant's argument seems to be that Plaintiff did not identify the system which sends the accused emails. Wayfair is in a position to know which system sends the emails exemplified by the exhibits. Without discovery, Plaintiff could not pursue its claims because Defendant's use of the accused system is private. At this point, Plaintiff has met its burden by moving beyond the abstract pleading that I found insufficient in No. 13-1438. Defendant's motion (D.I. 24) is hereby DENIED.

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Entered this

K day of February, 2014.

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United States Dtstrict Judge 2