United States District Court, D. Delaware
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
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
U.S. DISTRICT JUDGE.
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.
reasons stated below, the Court will deny ONT LTD's
motions to dismiss.
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).
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.
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).
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).
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.
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) 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 ...