United States District Court, D. Delaware
before me are Defendants' Motions to Dismiss. (C.A.
18-1173, D.I. 13; C.A. 18-1175, D.I. 13). The Parties have
briefed the issues. (C.A. 18-1173, D.I. 14, 18, 24; C.A.
18-1175, D. I. 14, 17, 23). For the reasons set out below, I
will grant Defendants' motions as to past damages and
willful infringement. I will deny Defendant Hostway Service
Inc.'s motion as to direct infringement and
Defendants' motions as to patent eligibility.
filed these lawsuits on August 4, 2018. It alleges that
Defendants infringe U.S. Patent Nos. 6, 546, 397
("'397 Patent"), 7, 594, 168 ('"168
Patent), 9, 471, 287, and 9, 928, 044 through their use of
certain website building tools such as Wordpress or Joomla.
(See C.A. 18-1173, D.I. 10; C.A. 18-1175, D.I. 9).
reviewing a motion to dismiss pursuant to Rule 12(b)(6), the
court must accept the complaint's factual allegations as
true. See Bell Atl. 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.
Ashcroft v. 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)).
satisfy the Iqbal pleading standard in a patent
case, "[s]pecific facts are not necessary."
Disc Disease Solutions Inc. v. VGH Solutions, Inc.,
888 F.3d 1256, 1260 (Fed. Cir. 2018) (quoting Erickson v.
Pardus, 551 U.S. 89, 93 (2007)). The Complaint need only
give defendant "fair notice of what the [infringement]
claim is and the ground upon which it rests."
Hostway Services, Inc. ("Hostway") argues that the
direct infringement claims of the 67-page First Amended
Complaint should be dismissed for failure to meet the
pleading standard. (C.A. 18-1175, D.I. 14 at 7-10). In three
related cases, I have found that Plaintiffs essentially
identical complaints are sufficient. (See C.A.
18-1176, D.I. 19; C.A. 18-1177, D.I. 26; C.A. 18-1181, D.I.
39). Hostway's argument for dismissal of Plaintiff s
direct infringement claims are largely identical to those
made in the related cases. (Compare C.A. 18-1175,
D.I. 14 at 7-10, with C.A. 18-1177, D.I. 14 at 4-6,
and C.A. 18-1181, D.I. 28 at 5-7). Accordingly, I
will deny Hostway's motion to dismiss Plaintiffs direct
next argue that Plaintiff's willfulness claims should be
dismissed. I agree. "[T]o state a claim of willful
infringement, the patentee must allege facts in its pleading
plausibly demonstrating that the accused infringer had
committed subjective willful infringement as of the date of
the filing of the willful infringement claim."
Valinge Innovation AB v. Halstead New England Corp.,
2018 WL 2411218, at * 10-12 (D. Del. May 29, 2018)
(discussing Mentor Graphics Corp. v. EVE-USA, Inc.,
851 F.3d 1275, 1282 (Fed. Cir. 2017), cert. dismissed,
No. 17-804, 2018 WL 3978434 (U.S. Aug. 17, 2018)). The
complaints allege only post-filing knowledge of the alleged
infringement. (C.A. 18-1173, D.I. 10 at ¶¶ 54, 72,
143, 210; C.A. 18-1175, D.I. 9 at ¶¶ 54, 72, 143,
210). Thus, they fail to meet the pleading standard for
willful irifringement, which requires allegations of willful
conduct prior to the filing of the claim. I will grant
Defendants' motion to dismiss Plaintiffs willful
infringement claims. I will, however, also grant Plaintiffs
request for leave to amend the complaints to plead
post-filing conduct. (See C.A. 18-1175, D.I. 17 at
separately note that Plaintiff has failed to plead compliance
with the marking statute. (C.A. 18-1173, D.I. 14 at 16-19;
C.A. 18-1175, D.I. 14 at 13-14). They argue that this is a
basis to dismiss Plaintiffs claims to the extent that they
seek past damages. 35 U.S.C. § 287(a) requires that a
patentee who makes or sells a patented article mark the
articles to recover past damages. It is the patentee's
burden to plead compliance with § 287(a). Arctic Cat
Inc. v. Bombardier Recreational Prod. Inc., 876 F.3d 13
50, 1366 (Fed. Cir. 2017). Plaintiff avers that there is no
evidence that there was anything for it to mark but does not
argue that it pled compliance. (See C.A. 18-1173,
D.I. 16 at 19-20; C.A. 18-1175, D.I. 17 at 5-7). At the
motion to dismiss stage, I am only concerned with the
sufficiency of the claims. A claim for past damages requires
pleading compliance with the marking statute-even when
compliance is achieved, factually, by doing nothing at all.
Thus, as Plaintiff has failed to state a claim for past
damages, I will grant Defendants' motions.
also argue for dismissal of half of Plaintiffs claims on the
basis that the claims of the '397 and' 168 Patents
are invalid under Section 101. (C.A. 18-1173, D.I. 14 at
5-15; see also C.A. 18-1175, D.I. 14 at 14
(incorporating Section 101 argument)). Patentability under 35
U.S.C. § 101 is a threshold legal issue.
Bilski, 561 U.S. at 602. Accordingly, the § 101
inquiry is properly raised at the pleading stage if it is
apparent from the face of the patent that the asserted claims
are not directed to eligible subject matter. See
Cleveland Clinic Found, v. True Health Diagnostics LLC,
859 F.3d 1352, 1360 (Fed. Cir. 2017), cert, denied,
138 S.Ct. 2621 (2018). This is, however, appropriate
"only when there are no factual allegations that, taken
as true, prevent resolving the eligibility question as a
matter of law." Aatrix Software, Inc. v. Green
Shades Software, Inc., 882 F.3d 1121, 1125 (Fed. Cir.
2018). In response to Defendants' argument, Plaintiff
identified factual allegations of inventiveness in the
complaint and submitted an expert declaration explaining
inventiveness of the claims. (See C.A. 18-1173, D.I.
10 at ¶¶ 12, 13, 60, 61; C.A. 18-1173, D.I. 20
(expert declaration discussing inventiveness of the claims)).
I find that these factual issues preclude a finding of
invalidity on a motion to dismiss. Thus, I will deny
Defendants' Section 101 motion without prejudice to
Defendants raising the issue again on summary judgment.
Motions to Dismiss (C.A. 18-1173, D.I. 13; C.A. 18-1175, D.I.
13) are GRANTED-IN-PART and
DENIED-IN-PART. Plaintiffs claims for past
damages and willful infringement are dismissed. Plaintiff may
file an amended complaint within 14 days of the entry of this
 Plaintiff improperly included a
screenshot of a content management service detection website,
https://builtwith.com, as evidence that Hostway uses
WordPress. (C.A. 18-1175, D.I. 17 at 4). I have not