United States District Court, D. Delaware
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.
ANDREWS; UTS. DISTRICT JUDGE.
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.
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)
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)).
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).
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 §
271(a) because it ...