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Pacific Biosciences of California, Inc. v. Oxford Nanopore Technologies, Inc.

United States District Court, D. Delaware

April 24, 2019


          Brian E. Faman and Michael J. Farnan, FARNAN LLP, Wilmington, DE Edward R. Reines and Derek C. Walter, WEIL, GOTSHAL & MANGES LLP, Redwood Shores, CA Attorneys for Plaintiff

          Jack B. Blumenfeld, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE Stephen M. Hash, Puneet Kohli, and Samoneh Kadivar, BAKER BOTTS L.L.P., Austin, TX Elizabeth Durham Flannery, BAKER BOTTS L.L.P., Houston, TX Yan-Xin Li, BAKER BOTTS L.L.P., New York, NY Attorneys for Defendants



         Plaintiff Pacific Biosciences of California, Inc. ("PacBio") filed two suits against Defendant Oxford Nanopore Technologies, Inc. ("ONT INC") on March 15, 2017 (C.A. No. 17-275D.I. 1) and on September 25, 2017 (C.A. No. 17-1353 D.I. 1). Following the Court's approval of PacBio's motion to amend its complaints to add another defendant - Oxford Nanopore Technologies, Ltd. ("ONT LTD") - on August 23, 2018, PacBio filed a First Amended Complaint ("FAC") in C.A. No. 17-275 (D.I. 83) and a Third Amended Complaint ("TAC") in C.A. No. 17-1353 (D.I. 113) (collectively, the "Amended Complaints"). On September 24, 2018, ONT LTD moved to dismiss the Amended Complaints for failure to state a claim. (See C.A. No. 17-275 D.I. 107; C.A. No. 17-1353 D.I. 137)[1]

         For the reasons stated below, the Court will deny ONT LTD's motions to dismiss.


         Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the Court to accept as true all well-pleaded factual allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).

         A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, 135 S.Ct. 346, 347 (2014). A complaint may not be dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See Id. at 346.

         "To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). A claim is facially plausible "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. At bottom, "[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element" of a plaintiffs claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).

         The Court is not obligated to accept as true "bald assertions," Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported conclusions and unwarranted inferences," Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or allegations that are "self-evidently false," Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996).


         A. Direct Infringement

         ONT LTD contends that PacBio fails to properly plead a claim of direct infringement, because "the Amended Complaints fail to specify any particular alleged infringing act performed by Oxford Ltd. as distinct from Oxford, Inc." (D.I. 108 at 9) While many cases - including those cited by ONT LTD (see Id. at 8, 10) - reject the sufficiency of collective allegations against multiple defendants, other cases do not. See, e.g., MBIA Ins. Corp. v. Royal Indem. Co., 221 F.R.D. 419, 421 (D. Del. 2004) (noting "there is no per se rule that group pleading cannot satisfy Rule 9(b)"). Also, ONT LTD ignores the many allegations that are specific to ONT LTD and its actions relating to the allegedly infringing conduct.

         For example, PacBio alleges that "ONT, Ltd. is engaged in the design, manufacture, importation into the United States, sale for importation, and commercialization throughout the United States of nanopore-based single-molecule sequencing products." (FAC ¶ 8)[2] Further allegations support a claim for direct infringement, including that ONT LTD "mak[es] its products available for purchase in Delaware through its website," "provide[s] genetics laboratories at the University of Delaware with its sequencing products," and enters into agreements ...

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