“Willfulness Is Not a Dismissible ‘Claim’ at the Pleading Stage”

Headwater Research LLC has brought a decision from Delaware Chief Judge Colm F. Connolly—that a demand for enhanced damages under § 284 “is not a claim that can be dismissed pursuant to Rule 12(b)(6)”—to the attention of Western District of Texas Judge David Counts, who is in receipt of a motion to dismiss from defendant Alphabet (Google). Google seeks dismissal of various aspects of Headwater’s complaint, including willfulness. Headwater urges Judge Counts to follow Judge Connolly’s lead here to “prevent a flood” of “pre-suit motions to dismiss willful infringement”.