Opinion
CASE NO. 2:09-CV-343-DF-CE.
September 28, 2010
ORDER
The above-titled and numbered civil action was referred to United States Magistrate Judge Chad Everingham pursuant to 28 U.S.C. § 636. The report of the Magistrate Judge (Dkt. No. 260), which contains his recommendation that the court grant in part and deny in party Yahoo!, Inc.'s ("Yahoo") motion to dismiss for failure to state a claim as to willful infringement (Dkt. Nos. 114, 196), has been presented for consideration.
Neither party objected to the report of the Magistrate Judge.
The court is of the opinion that the conclusions of the Magistrate Judge are correct. Therefore, the court adopts, in its entirety, the report of the United States Magistrate Judge as the conclusions of this court. Accordingly, the defendant's motion to dismiss is GRANTED in part and DENIED in part. The claim for post-filing willful infringement should be DISMISSED without prejudice until Plaintiff seeks and the court rules upon a preliminary injunction in accord with Seagate or Plaintiff pleads other extraordinary circumstances sufficient to show an objectively high likelihood of infringing a valid patent arising after filing as in St. Clair.
In re Seagate Tech., LLC, 497 F.3d 1360, 1374 (Fed. Cir. 2007).
St. Clair Intellectual Prop. Consultants, Inc. v. Palm, Inc., 2009 WL 1649751, at *1 (D. Del. Jun. 10, 2009)