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Motion to Dismiss Denied Where Claim for Joint Infringement Was Not At Issue in Complaint

Plaintiff Intertainer, Inc. brought an action for patent infringement against Defendant Hulu, LLC. Hulu moved to dismiss Intertainer’s first amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). In the first amended complaint, Intertainer alleged infringement of a patent entitled, “Method for Interactive Video Contention Programming,” which according to the district court, “relates to a method of creating and streaming an interactive video stream permitting a user to view ancillary content, such as advertisements.”

Intertainer also alleged that the interactive video program includes an interface which when selected, displays ancillary material for the user and interrupts the running of the video and when the user returns to watching the video content, the video program resumes streaming from the point in time at which it was interrupted. Intertainer’s first amended complaint alleged that Hulu operated a website at, which displays video content to users over the Internet and that the Hulu media player displays video content and video advertisements as well as advertising banners on its website.

Intertainer further alleged that users watching videos on the Hulu website can choose to view additional advertising content by clicking on the advertisement or the advertisement banner, which will then direct the user to another webpage displaying the advertisement content and will interrupt the streaming of the content from the web server. The video content can be resumed when the user returns to the Hulu website and clicks play. Intertainer contended that these steps directly infringed the patent-in-suit.

In its motion to dismiss, Hulu argued that that the claims of the patent require coordinated action of multiple parties, “namely Hulu and its website users–and that as such, Intertainer needs to allege a claim for ‘joint infringement,’ which Intertainer has failed to do because it has not alleged that Hulu ‘directs or controls’ its users to interact with Hulu’s website in an infringing manner.” Intertainer argued that it had sufficiently alleged a claim for direct infringement and that Hulu was urging an improper construction of one of the independent claims on a motion to dismiss and that the construction also contradicted the plain meaning of the claim terms.

The district court began its analysis by noting that “[i]n a complaint for patent infringement, ‘a patentee need only plead facts sufficient to place the alleged infringer on notice’ of the claim to enable the alleged infringer to answer and defend itself.” The district court also recited the requirements of Form 18, jurisdiction, ownership, infringement of the patent, notice of infringement and a demand for an injunction and damages.

The district court then found that Intertainer had included allegations of jurisdiction, ownership, direct infringement (by providing a video streaming service), knowledge of the patent (at least as early as the filing of the complaint), and that Intertainer was entitled to injunctive relief and damages. With respect to the allegations of direct infringement, the district court stated that the first amended complaint “alleges that Hulu owns and operates its website which streams video content, video advertisements, and advertising banners; that Hulu interrupts the streaming of the video content when users click on a video advertisement or advertising banner; and that Hulu resumes the streaming once the user returns to the media play[er] and clicks ‘play’ button, in violation of” at least one claim of the patent.

In addition, the district court found that a claim for joint infringement was not at issue in the first amended complaint. “Intertainer attributes the infringing steps to Hulu under claim 83, which describes a method for essentially creating an interactive video in which the enumerated actions are performed by a video streaming service. Moreover, at the pleading stage, Intertainer is not required to specifically include each element of a the claims of the asserted patents, as such a requirement ‘would contravene the notice pleading standard, and would add needless steps to the already complex process of patent litigation.'”

Accordingly, the district court denied the motion to dismiss.

Intertainer, Inc. v. Hulu, LLC, Case No. SACV 11-01208 CJC (RNB) (C.D. Cal. Jan. 4, 2012)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or