Is Knowledge of the Patent Prior to Suit Sufficient to Withstand a Motion to Dismiss a Willfulness Claim?

According to a recent district court decision, Michigan Motor Technologies LLC v. Volkswagen Aktiengesellschaft, Case No. 19-10485 (E.D. Mich July 13, 2020), the answer is no.  (Hat tip to Professor Dmitry Karshtedt for sending me a copy of this opinion, along with a recent write-up on the Shearman & Sterling IP Blog). The court dismisses claims that the defendants willfully infringed four patents, where the second amended complaint (1) includes only conclusory allegations that the  "defendants were made aware of the patents-in-suit at least as early as March 4, 2015, when [they were] provided notice of the patents via letter", and (2) alleges that they were made aware no later than February 18, 2019, the date on which the first complaint was filed.  The court states that "The plaintiff did not attach a copy of the referenced letter, never specified what the letter stated, did not mention who sent the letter, and did not mention to whom the letter actually was sent. There are too many dots to connect before the Court can arrive at finding that the letter indeed was sent to the defendants or their agents and that it informed the defendants that they were potentially infringing on MMT’s patents."  In addition, "there are no facts in the SAC from which a factfinder could infer that the defendants deliberately copied the ideas or design of another, that the defendants had a motivation for infringing the patents, or that that they otherwise behaved poorly or acted with bad faith."  The court states that its understanding of the governing standards post-Halo v. Pulse is consistent with the majority of other district courts that have considered this issue (and with Justice Breyer's concurring opinion in Halo, which the court cites more than once), though it notes a minority view to the contrary from the Eastern District of Texas.  The court also dismisses claims for induced and contributory infringement on largely the same grounds, noting inter alia the lack of any factual allegations in support of the claim that the defendants were "willfully blind."

For previous discussion on this blog of whether post-suit conduct can suffice to support a theory of willful infringement, and of whether willful blindness is an adequate substitute for knowledge of the patent to support such a claim, see here, here, here, and here.  See also pp. 117-18 of the recently-published second edition of my casebook.