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United States District Court, S.D. New York

February 17, 2004.

WILLIAM F. ASIP and MIKLOS L. BARTHA, Plaintiffs, -against- NIELSEN MEDIA RESEARCH, INC. and VNU, INC., Defendants

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


William Asip and Miklos Bartha bring this action against VNU, Inc. ("VNU") and Nielsen Media Research ("Nielsen") (collectively "defendants") alleging patent infringement. VNU now moves to dismiss the Complaint for failure to state a claim, and Nielsen moves for a more definite statement under Rule 12(e). For the reasons that follow, both motions are denied.


  Plaintiffs are New York residents and holders of Patent No. 4,361,851 ("`851 Patent").*fn1 Defendants are owners and operators of television audience measurement estimating systems and devices.*fn2 Both defendants conduct business in New York*fn3 and Page 2 Nielsen is a "division" of VNU.*fn4

  The `851 patent was issued to plaintiffs on November 30, 1982 for their invention of a system that "automatically monitor[s] the selection of a Program Source made by a Subscriber."*fn5 Specifically, this system enables the transmission (over non-dedicated telephone lines) of channel logs chronicling those channels a subscriber has viewed.*fn6 Plaintiffs envisioned use of this invention with "cable television systems or over-the-air pay television scrambled systems."*fn7 But they also noted that the possible applications of this invention "are not restricted to [those relating to] Pay-TV" and could include deployment in activities such as "[o]pinion polling and preference sampling."*fn8

  Plaintiffs' Memorandum of Law in Opposition to Nielsen's Rule 12(e) Motion ("Pl. 12(e) Mem.") at 1. Page 3

  Plaintiffs allege that defendants have infringed, induced, and/or contributed to the infringement of "at least" Claim One of the `851 Patent.*fn9 Claim One covers:

A television-use monitoring device for direct electrical connection to a telephone line, comprising:
(a) coupling means coupled to said television for detecting when said television is actively receiving a predetermined channel and producing, in response thereto a program selection signal indicating the active reception of a particular program selection;
(b) timer means for providing timing information;
(c) transient memory means responsive to said coupling means to store, in response to a first control signal, said program selection signal associated with a particular program whose active reception has been detected;
(d) second memory means responsive to said transient memory means to receive the output of said transient memory means in response to a second control signal and produce the same at its output in response to a third control signal;
(e) control means responsive to said timer for periodically causing said transient memory means to store any program selection signal present in the system, and reading the contents of said transient memory means, and responsive to said transient memory means to cause said transient memory means to transfer its contents to said second memory means in response to the detection of said program selection at one point in time and a second detection of the same program selection a predetermined period of time thereafter;
  (f) interface means, responsive to said control Page 4 means and said second memory means to encode said program selection signal for transmission; and


(g) transmission coupling means, responsive to said interface means, to couple the output of said interface means to conventional telephone lines and transmit said program selection to a central billing facility.*fn10
Defendants allegedly knew of and intentionally infringed the `851 Patent by "importing, making, using and/or selling products which use and/or encompass[,] store [,] and forward technology with the use of a telephone line for data transmission in the television industries."*fn11 Plaintiffs contend that defendants' unlawful conduct began prior to and continued through the `851 Patent's expiration date in January 2000.*fn12


  A. Legal Standard

  1. Rule 12(b)(6)

  A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'"*fn13 "A court's task `in ruling on a Rule 12(b)(6) Page 5 motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'"*fn14 Accordingly, courts must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor.*fn15

  2. Rule 12(e)

  Under Rule 12(e), if a complaint is "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading."*fn16 Rule 8(a) provides that a plaintiff need only plead "a short and plain statement of the claim" that will provide the defendant with fair notice of what the plaintiff's claim is and the grounds upon which it rests.*fn17 "`[I]f [a] complaint complies with the liberal pleading requirements of [Rule 8(a)], then the Rule 12(e) motion should be denied.'"*fn18 Notably, because the purpose of the Rule Page 6 is to "strike at unintelligibility rather than want of detail and . . . allegations that are unclear due to a lack of specificity are more appropriately clarified by discovery rather than by an order for a more definite statement."*fn19 Therefore, "the tendency under the Federal Rules is to discourage motions to compel more definite complaints and to encourage the use of discovery procedures to apprise the parties of the basis for the claims made in the pleadings."*fn20

  B. Patent Infringement

  To state a claim for patent infringement, "a patentee need only plead facts sufficient to place the alleged infringer on notice. This requirement ensures that the accused infringer has sufficient knowledge of the facts alleged to enable it to answer the complaint and defend itself."*fn21 A complaint for patent infringement need only meet the following requirements: alleged ownership of the asserted patent, [(2)] name[] each Page 7 individual defendant, [(3)] cite[] the patent that is allegedly infringed, [(4)] describe[] the means by which the defendants allegedly infringe, and [(5)] point[] to the specific sections of the patent law invoked."*fn22


  A. VNU's Rule 12(b)(6) Motion

  The Complaint satisfies the pleading requirements of Rule 8 because it: (1) alleges plaintiffs' joint ownership of the `851 Patent,*fn24 (2) names VNU and Nielsen as defendants,*fn25 (3) Page 8 cites the `851 Patent as the basis for the action,*fn26 (4) describes the means by which defendants allegedly infringed the "851 Patent,*fn27 and (5) indicates that their claims are based on defendants' willful acts of direct and indirect infringement.*fn28 However, VNU argues that the action against it should be dismissed because it has never "engaged in any of the allegedly infringing activities."*fn29 Rather, VNU contends that those acts were committed by its subsidiary, Nielsen, which was acquired on October 27, 1999, sixty-nine days prior to the expiration of the `851 patent.*fn30 As VNU puts it, " [its] sole relationship with [Nielsen] as relates to this case is this 69 day period during which it owned the stock of [Nielsen] but had no direct involvement in its operations."*fn31

  VNU has not demonstrated that plaintiffs cannot prove Page 9 any set of facts in support of their patent infringement claims. First, plaintiffs' allegations as pled are sufficient because they provide VNU with fair notice as to the claims asserted against it. As plaintiffs correctly point out, VNU's motion is "merely a statement of its belief that it has not engaged in any direct infringement which is more appropriately stated as a denial in answer to the [Complaint]."*fn32 Second, even if plaintiffs' infringement claims against VNU are premised solely on its status as "a holding company" for subsidiary Nielsen, whether VNU is liable for Nielsen's actions turns on factual considerations (e.g., the degree of control that VNU exercised over Nielsen) that are beyond the scope of the pleadings.*fn33 Thus, contrary to VNU's argument that "[t]he timing of the dismissal is irrelevant,"*fn34 the fact that VNU brings this motion at the pleading stage is critical.

  B. Nielsen's Rule 12(e) Motion

  Nielsen argues that because plaintiffs' "`bear-bones' Page 10 [sic] Complaint" does not identify which of Nielsen's television monitoring devices infringe the `851 Patent, the Complaint fails to satisfy Rule 8's pleading requirements.*fn35 But the Complaint specifically states that Nielsen "infringed, induced and/or contributed" to the infringement of the `851 Patent by "importing, making, using and/or selling products which use and/or encompass store and forward technology with the use of a telephone line for data transmission in the television industries and continued to do so to, and including, January 2000."*fn36 These allegations are not "so vague or ambiguous" that Nielsen cannot be "reasonably . . . required to frame a responsive pleading" to the Complaint.*fn37 As the Complaint provides fair notice of plaintiffs' patent infringement claims, it comports with the pleading requirements set forth in Rule 8.*fn38 Page 11

  Nielsen also contends that the doctrine of laches requires plaintiffs to "specifically identify [Nielsen's] allegedly infringing products."*fn39 In particular, Nielsen argues that plaintiffs' allegations either (1) cover activities that Nielsen has undertaken for the twenty years since the `851 patent was issued and "[b]y definition" the doctrine of laches applies; or (2) Nielsen "must have some new product, or must have modified an old product in a way [] that allegedly infringes the `851 Patent" and must identify that product.*fn40 But, at this stage of the proceedings, Neilsen's laches argument is premature. Relief pursuant to the doctrine of laches turns on (1) whether a plaintiff unreasonably delayed the filing of her lawsuit despite having actual or constructive knowledge of the defendant's infringing products and (2) whether that delay resulted in Page 12 material prejudice to defendant.*fn41 Where these inquiries cannot be resolved on the face of the complaint, they are questions properly reserved for summary judgment, after discovery has concluded. Here, the laches defense cannot be resolved solely from a review of the Complaint.


  For the foregoing reasons, both VNU's motion to dismiss and Nielsen's motion for a more definite statement are denied. The Clerk of the Court is directed to close these motions (numbers 13 and 17 on the docket sheet). A conference is scheduled for February 26, 2004, at 2:45 p.m.


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