Motion to Dismiss Granted with Leave to Amend,
Delphix Corp. v. Actifo, Inc., Case No.
C-13-4613 RS (Judge Seeborg)
Pleading facts "on information and belief" is a common
practice, especially for subjective facts like a defendant's
pre-suit knowledge of the asserted patent. But when the
phrase is used selectively to qualify critical facts, those
allegations may not be sufficient to support claims of willful
infringement and indirect infringement, according to Judge
Seeborg's March 19, 2014 order granting a motion to
dismiss.
Plaintiff Delphix alleged that defendant Actifo had knowledge of
the patents before the suit was filed because, inter alia,
Actifo's founder was previously a Delphix board member and had
continued to track the development of Delphix's patent
portfolio after resigning from the board. In particular,
Delphix relied on the alleged post-resignation conduct to
distinguish an earlier decision by Judge Seeborg that rejected
conclusory averments of
