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FO2GO LLC v. Keepitsafe, Inc.

United States District Court, D. Delaware

April 16, 2019

FO2GO LLC, Plaintiff;
KEEPITSAFE, INC., Defendant.

          Stamatios Stamoulis, STAMOULIS & WEINBLATT LLC, Wilmington, DE; David R. Bennett, DIRECTION IP LAW, Chicago, IL, attorneys for Plaintiff.

          Melanie K. Sharp, James L. Higgins, and Michelle M. Ovanesian, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, DE; Guy Ruttenberg and Michael Eshaghian, RUTTENBERG IP LAW, A PROFESSIONAL CORPORATION, Los Angeles, CA, attorneys for Defendant.



         Currently pending before the Court is Defendant's Motion to Dismiss the First Amended Complaint under Rule 12(b)(6). (D.I. 11). The parties have fully briefed the issues. (D.I. 12, 15, 16). After full consideration of the briefing, Defendant's motion is granted-in-part and denied-in-part.

         I. BACKGROUND

         Plaintiff FO2GO LLC filed suit against j2 Global, Inc. on May 29, 2018. (D.I. 1). After discussions between FO2GO and j2 revealed that the correct defendant was KeepItSafe, Inc., FO2GO amended the Complaint to assert patent infringement of U.S. Patent No. 9, 935, 998 ("the '998 patent") against Defendant KeepItSafe. (D.I. 9). The patent-in-suit "relates to digital cameras that 'include a radio frequency (RF) transceiver for transmitting digital photos to a remote destination according to user preferences.'" (D.I. 9 ¶ 11 (quoting '998 patent at col. 1:16-19)). KeepItSafe has now moved to dismiss the complaint in its entirety. (D.I. 11)


         When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept the complaint's factual allegations as true. See Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Rule 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. at 555. The factual allegations do not have to be detailed, but they must provide more than labels, conclusions, or a "formulaic recitation" of the claim elements. Id. ("Factual allegations must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)."). Moreover, there must be sufficient factual matter to state a facially plausible claim to relief. Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009). The facial plausibility standard is satisfied when the complaint's factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. ("Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." (internal quotation marks omitted)).

         The Court of Appeals for the Federal Circuit has addressed the issue of the sufficiency of a patent infringement complaint on multiple occasions. 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. For example, in Disc Disease Solutions Inc. v. VGH Solutions, Inc., 888 F.3d 1256 (Fed. Cir. 2018), the Court reversed a district court dismissal of a patent infringement complaint. In relevant part, the Court of Appeals stated:

The district court determined that Disc Disease failed to "explain how Defendants' products infringe on any of Plaintiff s claims" because it "merely alleges that certain of Defendants' products 'meet each and every element of at least one claim' of Plaintiff s patents." We disagree. Disc Disease's allegations are sufficient under the plausibility standard of Iqbal/Twombly. This case involves a simple technology. The asserted patents, which were attached to the complaint, consist of only four independent claims. The complaint specifically identified the three accused products-by name and by attaching photos of the product packaging as exhibits-and alleged that the accused products meet "each and every element of at least one claim of the T13 [or '509] Patent, either literally or equivalently." These disclosures and allegations are enough to provide VGH Solutions fair notice of infringement of the asserted patents. The district court, therefore, erred in dismissing Disc Disease's complaint for failure to state a claim.

Disc Disease Sols. Inc. v. VGH Sols., Inc., 888 F.3d at 1260 (citations omitted).


         A. Direct Infringement

         KeepItSafe asserts that FO2GO has not adequately pled a plausible claim of direct infringement because FO2GO "does not allege that KeepItSafe makes, sells, offers for sale, uses, or imports the hardware elements of the claimed invention." (D.I. 12 at 7). FO2GO argues that it has adequately pled direct infringement both under Akamai Techs., Inc. v. Limelight Networks, Inc.,797 F.3d 1020 (Fed. Cir. 2015) (en banc) and under the "use" prong of ยง 271(a) because it ...

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