A federal district court in Massachusetts has allowed a plaintiff in a patent case to amend its complaint to add a claim of willful infringement for acts of infringement performed after the defendant was served with the complaint.

Plaintiff Englishtown is a company doing business in Cambridge, Massachusetts that was formed in 1996 to develop an interactive online product for teaching students foreign languages. Its primary teaching method used “pair games” in which students learned by playing interactive games with each other.

Defendant Rosetta Stone is a company that does business in Arlington, Virginia. It creates and sells language-learning products and services, including many that are offered online.

Englishtown claims that Rosetta Stone is infringing two of its patents for a system and method for teaching online educational courses over a network. The patents at issue are U.S. Patent No. 6,741,833, issued in 2004, “Learning Activity Platform and Method for Teaching a

Foreign Language over a Network” and U.S. Patent No. 7,058,354 issued in June, 2006. The ‘354 Patent is a continuation of the ‘833 Patent.

Englishtown filed suit in April, 2012 and then moved to file an amended complaint in March, 2013 seeking to add claims for indirect infringement and willful infringement of the ‘354 patent.

To prevail on a claim of willful infringement, the patent holder must prove that: (1) the accused infringer “acted despite an objectively high likelihood that its actions constituted infringement of a valid patent”; and (2) this objectively defined risk was either known or so obvious that

the accused infringer should have known about it.

Englishtown alleged that Rosetta Stone had willfully infringed the ‘354 patent because it continued to sell infringing products despite learning of the ‘354 patent via Englishtown’s complaint.

The court agreed to allow the amendment.

The case is Englishtown, Inc. v. Rosetta Stone Inc., Case No. 12-10636-NMG (D. Mass. July 25, 2013).