Thomas C. Grimm, Esquire, Stephen J. Kraftschik, Esquire, and Jeremy A. Tigan, Esquire of Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware. Counsel for Plaintiff. Of Counsel: James P. Brogan, Esquire, Carolyn V. Juarez, Esquire, Daniel Knauss, Esquire, Stephen C. Neal, Esquire, Michelle S. Rhyu, Esquire, and Tryn T. Stimart, Esquire of Cooley LLP.
John G. Day, Esquire, Lauren E. Maguire, Esquire, and Andrew C. Mayo, Esquire of Ashby & Geddes, Wilmington, Delaware. Counsel for Defendants. Of Counsel: Gilbert A. Green, Esquire, and William C. Slusser, Esquire of Fulbright & Jaworski LLP.
SUE L ROBINSON, District Judge.
On July 30, 2012, Gevo, Inc. ("Gevo") filed a complaint against defendants Butamax (TM) Advanced Biofuels LLC ("Butamax"), E. I. DuPont de Nemours and Co. ("DuPont"), BP p.l.c. ("BP"), BP Corporation North America Inc. ("BP Corp"), and BP Biofuels North America LLC ("BP Biofuels") (collectively, "defendants"), alleging that each defendant directly and/or indirectly infringed U.S. Patent No. 8, 232, 089 ("the '089 patent"), and U.S. Patent Publication No. U.S. 2011/0076733 ("the '733 publication") which issued as the '089 patent on July 31, 2012. (D. I. 1) Presently before the court is BP's motion to dismiss for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). (D. I. 71) The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1338(a).
Gevo is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business in Englewood, Colorado. (D. I. 1 at ¶ 1)
Butamax is a limited liability corporation organized and existing under the laws of the State of Delaware, with its principal place of business in Wilmington, Delaware. ( Id. at ¶ 2) Butamax is jointly owned by DuPont and BP Biofuels. ( Id. )
DuPont is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business in Wilmington, Delaware. ( Id. at ¶ 3)
BP is a public limited corporation incorporated under the laws of England and Wales, and is doing business in the United States through various subsidiaries, including BP Corp. BP maintains its North American headquarters at 501 Westlake Park Blvd., Houston, Texas. ( Id. at ¶¶ 5, 6)
BP Corp is an Indiana corporation with a principal place of business at 501 Westlake Park Blvd., Houston, Texas. ( Id. at ¶¶ 5, 7) BP Corp is a subsidiary of BP. ( Id. at ¶ 5)
BP Biofuels is a limited liability corporation organized and existing under the laws of the State of Delaware, with its principal place of business at 501 Westlake Park Blvd., Houston, Texas. ( Id. at ¶ 9) BP Biofuels is a subsidiary of BP. ( Id. at ¶ 2)
III. STANDARD OF REVIEW
A motion filed under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint's factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555; Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 545 (internal quotation marks omitted) (interpreting Fed.R.Civ.P. 8(a)). Consistent with the Supreme Court's rulings in Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Third Circuit requires a two-part analysis when reviewing a Rule 12(b)(6) motion. Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217, 219 (3d Cir. 2010); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, a court should separate the factual and legal elements of a claim, accepting the facts and disregarding the legal conclusions. Fowler, 578 F.3d. at 210-11. Second, a court should determine whether the remaining well-pled facts sufficiently show that the plaintiff "has a plausible claim for relief."' Id. at 211 (quoting Iqbal, 556 U.S. at 679). As part of the analysis, a court must accept all well-pleaded factual allegations in the complaint as true, and view them in the light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). In this regard, a court may consider the pleadings, public record, orders, exhibits attached to the complaint, and documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 n.2 (3d Cir. 1994).
The court's determination is not whether the non-moving party "will ultimately prevail" but whether that party is "entitled to offer evidence to support the claims." United States ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295, 302 (3d Cir. 2011). This "does not impose a probability requirement at the pleading stage, " but instead "simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of [the necessary element]." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). The court's analysis is a context-specific task requiring the court "to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 663-64.
A. Factual ...