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Judge Greenlights Electronic Voting Tech Patent Fight (1)

March 6, 2019, 8:52 PM

A patent infringement suit brought against a multinational election technology company for bidding on a Los Angeles voting project can go forward, a federal court ruled.

Election Systems & Software LLC sued London-based Smartmatic USA Corp. for allegedly committing an infringing act by submitting a proposal to implement and support voting machine services in Los Angeles County. The decision highlights the question of how much a plaintiff has to allege in order to pursue patent infringement claims.

U.S. District Judge Richard G. Andrews of the District of Delaware March 6 rejected Smartmatic’s motion to dismiss, saying Election Systems “has pleaded sufficient facts that the final design would plausibly be infringing based upon Los Angeles County’s requested features.”

Smartmatic said the lawsuit “consists of a series of legal conclusions devoid of relevant actual support, and, consequentially devoid of the required plausibility to support a claim of patent infringement.”

But Andrews said that the U.S. Court of Appeals for the Federal Circuit has touched on patent infringement complaint sufficiency several times. He pointed to the appeals court’s 2018 decision in Disc Disease Solutions Inc. v. VGH Solutions, Inc. In that case, the Federal Circuit split with the lower court, writing that Disc Disease adequately demonstrated infringement by merely noting two specific VGH products met each element of at least a single claim.

The Federal Circuit said that Disc Disease’s allegations were “sufficient under the plausibility standard” of the Supreme Court’s Bell Atlantic. Corp. v. Twombly and Ashcroft v. Iqbal decisions.

“It seems apparent to me that the court’s view is that very little is required in order to plead a claim of patent infringement,” Andrews said, referring to the Federal Circuit. Election Systems “has pleaded sufficient facts that the final design would plausibly be infringing based upon Los Angeles County’s requested feature.”

After Smartmatic won the LA bid, Election Systems sued, alleging that documents obtained via an information request, despite LA County’s exclusion of those believed to contain trade secrets, and the county’s submission specifications led it to believe Smartmatic’s offer would infringe two of its patents.

The proposal itself was an infringing act, Election Systems claimed, because in it Smartmatic proposed using a “ballot marking device” that would have infringed its patent.

DLA Piper is representing Smartmatic, while attorneys from Rogowski Law and Stinson Leonard Street LLP are representing Election Systems. The firms didn’t immediately respond to Bloomberg Law’s requests for comment.

To contact the reporter on this story: Ian Lopez in Washington at

To contact the editor responsible for this story: Keith Perine at