Sample Motions To Dismiss Patent Infringement Complaints

Below are sample motions to dismiss patent infringement litigation claims in federal court. The motions to dismiss examples are divided by issue. These are publicly filed in the respective lawsuits. The motions to dismiss were all filed in 2010 or later. This post says nothing of the legal or factual merits of the arguments. The post simply provides examples of filed motions to dismiss patent infringement complaints.

Standard:

“Rule 12(b)(6) permits a defendant to move to dismiss a complaint for failure to state a claim upon which relief can be granted. To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. To meet this requirement, the plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged; put another way, the plaintiff must do more than plead facts merely consistent with’ a defendant’s liability. When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts all well-pleaded factual allegations as true and construes all reasonable inferences in favor of the plaintiff.” Nalco Co. v. Chem-Mod, LLC.

Direct Infringement:

“To prove infringement, a patentee must supply sufficient evidence to prove that the accused product or process contains, either literally or under the doctrine of equivalents, every limitation of the properly construed claim.” Eli Lilly & Co. v. Hospira. Courts “apply a two-step analysis to determine whether accused devices literally infringe a patent’s claims. First, the claims are construed to determine their scope. Second, the claims must be compared to the accused device. Literal infringement exists when every limitation recited in the claim is found in the accused device.” EMED Techs. v. Repro-Med. “A party asserting infringement under the doctrine of equivalents may prove its case by showing, on an element-by-element basis, that the accused product performs substantially the same function in substantially the same way with substantially the same result as each claim limitation of the patented product.” Verinata Health v. Ariosa Diagnostic.  

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Joint Infringement:

“While a typical claim of direct infringement requires proof that a defendant performs each step of the claimed method, joint infringement requires more. To prove joint infringement, where multiple actors are involved in practicing the claim steps, the patent owner must show that the acts of one party are attributable to the other such that a single entity is responsible for the infringement. This court has held that an entity will be responsible for others’ performance of method steps in two circumstances: (1) where that entity directs or controls others’ performance, and (2) where the actors form a joint enterprise.” Lyda v. CBS Corp.

Induced Infringement:

“In order to succeed on a claim of inducement, the patentee must show, first that there has been direct infringement, and second that the alleged infringer knowingly induced infringement and possessed specific intent to encourage another’s infringement. Mere knowledge of infringement is insufficient. Liability for inducement can only attach if the defendant knew of the patent and knew as well that the induced acts constitute patent infringement…. Unlike direct infringement under 35 U.S.C. § 271(a), which must occur in the United States, liability for induced infringement under § 271(b) can be imposed based on extraterritorial acts, provided that the patentee proves the defendant possessed the requisite knowledge and specific intent to induce direct infringement in the United States.” Enplas Display Device v. Seoul Semiconductor.

Contributory Infringement:

Contributory infringement occurs if a party sells, or offers to sell, “a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use.” 35 U.S.C. § 271(c). “Contributory infringement requires knowledge of the patent in suit and knowledge of patent infringement. Contributory infringement requires only proof of a defendant’s knowledge , not intent , that his activity causes infringement.” Nalco v. Chem-Mod.

Willful Infringement:

“[S]ubjective willfulness alone—i.e., proof that the defendant acted despite a risk of infringement that was either known or so obvious that it should have been known to the accused infringer—can support an award of enhanced damages. The subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless.” WesternGeco v. ION.

Design Patents:

“A design patent is infringed if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other. As with utility patents, the patentee must prove infringement of a design patent by a preponderance of the evidence. Where the claimed and accused designs are sufficiently distinct and plainly dissimilar, the patentee fails to meet its burden of proving infringement as a matter of law. If the claimed and accused designs are not plainly dissimilar, the inquiry may benefit from comparing the claimed and accused designs with prior art to identify differences that are not noticeable in the abstract but would be significant to the hypothetical ordinary observer familiar with the prior art.” Ethicon Endo-Surgery v. Covidien.

Subject-Matter Eligibility:

“A claim falls outside § 101 where (1) it is directed to a patent-ineligible concept,  i.e. , a law of nature, natural phenomenon, or abstract idea, and (2), if so, the particular elements of the claim, considered both individually and as an ordered combination, do not add enough to ‘transform the nature of the claim’ into a patent-eligible application. The first stage of the Alice inquiry looks at the focus of the claims, their character as a whole; and the second stage of the inquiry (where reached) looks more precisely at what the claim elements add—specifically, whether, in the Supreme Court’s terms, they identify an inventive concept in the application of the ineligible matter to which (by assumption at stage two) the claim is directed.” SAP Am., Inc. v. Investpic (parenthesis in original).

Standing:

“Title 35 allows a patentee to bring a civil action for patent infringement. 35 U.S.C. § 281. The term patentee includes the original patentee (whether the inventor or original assignee) and successors in title. But it does not include mere licensees…. If the party asserting infringement is not the patent’s original patentee, the critical determination regarding a party’s ability to sue in its own name is whether an agreement transferring patent rights to that party is, in effect, an assignment or a mere license. In distinguishing between an assignment and a mere license, [courts] examine whether the agreement transferred all substantial rights to the patents. This inquiry depends on the substance of what was granted rather than formalities or magic words.” Lone Star Silicon Innovations LLC v. Nanya Tech. Corp. (parenthesis in original).

Venue:

“The patent venue statute, 28 U.S.C. § 1400(b), is the sole and exclusive provision controlling venue in patent infringement actions. Venue is proper under § 1400(b) only where a defendant resides or has a regular and established place of business.” Bd. of Regents of Univ. of Tex. Sys. v. Bos. Sci. Corp.

Personal Jurisdiction: