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3Shape A/S v. Align Technology, Inc.

United States District Court, D. Delaware

March 29, 2019

3Shape A/S, Plaintiff,
v.
Align Technology, Inc., Defendants.

          Geoffrey Grivner, BUCHANAN INGERSOLL & ROONEY PC, Wilmington, DE S. Lloyd Smith, Kimberly E. Coghill, BUCHANAN INGERSOLL & ROONEY PC, Alexandria, VA Philip L. Hirschhorn, BUCHANAN INGERSOLL & ROONEY PC, New York, NY Attorneys for Plaintiff.

          John W. Shaw, Karen E. Keller, Andrew E. Russell, SHAW KELLER LLP, Wilmington, DE Blair M. Jacobs, Christina A. Ondrick, John S. Holley, Diva Ranade, PAUL HASTINGS LLP, Washington, D.C. Thomas A. Counts, PAUL HASTINGS LLP, San Francisco, CA Attorneys for Defendant.

          MEMORANDUM OPINION

          STARK, U.S. DISTRICT JUDGE

         I. BACKGROUND

         Plaintiff 3 Shape A/S ("Plaintiff) sued Defendant Align Technology, Inc. ("Defendant") for direct, indirect, and willful infringement of Plaintiff s U.S. Patent No. 9, 629, 551 ("the '551 Patent") on June 14, 2018. (D.I. 1) ("Complaint") The '551 Patent describes an intraoral scanner and claims a system and method for distinguishing "movable objects" (e.g., a tongue, cheeks, or dental instruments) from "rigid objects" (e.g., teeth) so that only the rigid objects are rendered in the three-dimensional model. '551 Patent, col. 111. 29-60, col. 3 11. 50-54, col. 29 I. 45-col. 32 1. 46.

         On August 9, 2018, Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (D.I. 10) Defendant argues that Plaintiff s pre-suit induced infringement and contributory and willful infringement claims fail to meet the pleading standards set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The Court disagrees.

         II. LEGAL STANDARDS

         Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A party that believes a complaint fails to meet this standard may move to dismiss under Rule 12(b)(6). Such a motion may be granted only if, accepting the well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the claimant, a court concludes that those allegations "could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

         When presented with a Rule 12(b)(6) motion, a court conducts a two-part analysis. See Fowler, 578 F.3d at 210. First, the court separates the factual and legal elements, accepting "all of the complaint's well-pleaded facts as true, [while] ... disregard[ing] any legal conclusions." Id. at 210-11. Second, the court determines "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief" Id. at 211 (quoting Iqbal, 556 U.S. at 679).

         Determining whether a claim is plausible is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. A plausible claim does more than merely allege entitlement to relief; it must also demonstrate the basis for that "entitlement with its facts." Fowler, 578 F.3d at 211 (internal citations omitted). Thus, a claimant's "obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted); see also Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). In other words, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         III. DISCUSSION

         A. Induced Infringement

         The parties dispute whether Plaintiffs Complaint alleges sufficient facts to plead indirect infringement by inducement. (D.I. 11 at 3-7; D.I. 13 at 4-10) To adequately plead a claim of induced infringement, a plaintiff must demonstrate that "the defendant knew of the patent and that the induced acts constitute patent infringement." Commil USA, LLC v. Cisco Sys., Inc., 135 S.Ct. 1920, 1926 (2015) (internal quotation marks omitted). Further, a plaintiff must allege a specific intent to induce infringement, which is "evidence of culpable conduct, directed to encouraging another's infringement, not merely that the inducer had knowledge of the direct infringer's activities." DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1306 (Fed. Cir. 2006). "[R]ecovery on an induced infringement claim is limited to the time period that begins when defendant learns of the patent's existence." E.I. Du Pont De Nemours & Co. v. Heraeus Precious Metals N. Am. Conshohocken LLC, 2013 WL 4047648, at *2 (D. Del. Aug. 8, 2013) (citing SynQor, Inc. v. Artesyn Techs., Inc., 709 F.3d 1365, 1379 (Fed. Cir. 2013)).

         Defendant does not challenge the sufficiency of the pleadings for direct infringement, but does argue that the claims of induced infringement contain nothing more than "rote allegations" that Defendant encouraged infringement through the training, promotion, sales, and importation of the accused products. (D.I. 11 at 4) Defendant then argues that although it filed a pre-suit inter partes review[1] ("IPR") directed to the patent-in-suit, an IPR petition alone is an ...


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