United States District Court, D. Maine
ORDER ON DEFENDANTS' PARTIAL MOTION TO
LEVY, U.S. DISTRICT JUDGE
Puritan Medical Products Company LLC and Puritan Diagnostics
LLC (together, “Puritan”) have moved to dismiss
the indirect patent infringement claims asserted by
Plaintiffs Copan Italia S.p.A. and Copan Diagnostics, Inc.
(together, “Copan”) for failure to state a claim
upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).
In the alternative, Puritan moves for “a more definite
statement” of the indirect infringement claims under
Fed.R.Civ.P. 12(e). ECF No. 18 at 15. For the reasons
explained below, I deny Puritan's motion.
case concerns “flocked” swabs that are used to
collect and transport biological specimen samples for
analysis. The complaint (ECF No. 1) alleges the following
facts, which I treat as true for purposes of the motion to
the early 2000s, the standard tool for collecting and
transporting biological specimen samples was a fiber swab
similar in construction to a Q-tip: a small rod with fibers
wrapped around the tip. Copan claims that in 2003 it invented
and released the industry's first “flocked”
swabs. Flocked swabs consist of a rod several inches long
with a layer of short fibers deposited onto its tip so that
the fibers stand perpendicular to the rod.
“Flocking” is the process of depositing the
fibers electrostatically. In the years since they were first
released, flocked swabs have grown in popularity as compared
to traditional fiber swabs because of their documented
benefits in the absorption, transport, and elution (release)
of biological specimen samples.
began selling its own flocked swabs in 2011. The flocked
swabs that Puritan manufactures, like Copan's, consist of
rods with a layer of small fibers on the tip of one end,
which fibers are deposited on the tip by a process of
electrostatic flocking. In a blog post on its website,
Puritan instructs customers to use its flocked swabs to
collect biological specimens. Puritan also advertises that
its flocked swabs have the “[h]ighest performing
collection and elution[, ]” ECF No. 1 at ¶ 100,
and a later blog post similarly claims “greater sample
absorption, retention, and faster release.”
Id. at ¶ 107. In addition, Puritan has funded
several studies on the effectiveness of its flocked swabs for
collecting and transporting biological specimens for analysis
when compared to other flocked swabs.
Puritan began selling its flocked swabs in 2011, Copan had at
least one patent application for its flocked swab technology
pending in the United States. On December 22, 2011, Puritan
published a press release acknowledging that the U.S. patent
examiner had allowed certain claims in Copan's Patent
Application No. 10/543, 873. The following day, Puritan's
outside counsel sent a letter to a general manager at Copan
that cited Patent Application No. 10/543, 873 and stated that
Puritan had “reviewed all pending published patent
applications assigned to Copan Italia S.P.A. and Copan
Innovation Limited.” ECF No. 1 at ¶¶ 14, 63.
Patent Application No. 10/543, 873 was ultimately approved
and issued as Patent No. 8, 114, 027 on February 14, 2012.
Between November 2012 and November 2015, four additional U.S.
patents were issued to Copan for its flocked swab design and
the method for using a flocked swab to collect, transport,
and release a biological specimen sample for analysis. The
patents-in-suit include Copan's five U.S. patents issued
between 2012 and 2015: Patent No. 8, 114, 027 (“the
‘027 patent”), Patent No. 8, 317, 728 (“the
‘728 patent”), Patent No. 8, 979, 784 (“the
‘784 patent”), Patent No. 9, 011, 358 (“the
‘358 patent”), and Patent No. 9, 173, 779
(“the ‘779 patent”). In 2016, after the
five patents-in-suit had issued, Puritan sent a letter to one
of its distributors acknowledging that “Copan . . . has
several U.S. Patents.” ECF No. 1 at ¶ 65.
complaint contains eleven counts alleging three types of
claims: false advertising (Counts I and II), direct patent
infringement (Counts III, V, VII, VIII, and X), and indirect
patent infringement (Counts IV, VI, IX, and XI). Shortly
after Copan filed its complaint, Puritan moved to dismiss the
indirect patent infringement counts for failure to state a
claim under Fed.R.Civ.P. 12(b)(6). In the alternative,
Puritan requests “a more definite statement of a
pleading” under Fed.R.Civ.P. 12(e) on the basis that
the indirect infringement claims in the complaint are
“so vague or ambiguous that [Puritan] cannot reasonably
prepare a response.” ECF No. 18 at 15.
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Standard of Review
survive Puritan's Rule 12(b)(6) motion to dismiss, the
indirect infringement counts in the complaint must be
supported by “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
when the facts pled in the complaint “allow the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). Because “[a] motion
to dismiss for failure to state a claim upon which relief can
be granted is a purely procedural question not pertaining to
patent law, ” the law of the regional circuit applies.
McZeal v. Sprint Nextel Corp., 501 F.3d 1354,
1355-56 (Fed. Cir. 2007); accord In re Bill of Lading
Transmission & Processing Sys. Patent Litig., 681
F.3d 1323, 1331 (Fed. Cir. 2012).
First Circuit has laid out a two-step process for evaluating
a Rule 12(b)(6) motion: first, “isolate and ignore
statements in the complaint that simply offer legal labels
and conclusions or merely rehash cause-of-action elements[,
]” and second, “take the complaint's
well-pled . . . facts as true, drawing all reasonable
inferences in the pleader's favor, and see if they
plausibly narrate a claim for relief.” Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55 (1st
Cir. 2012). “There need not be a one-to-one
relationship between any single allegation and a necessary
element of the cause of action. What counts is the
‘cumulative effect of the [complaint's] factual
allegations.'” Rodríguez-Reyes v.
Molina-Rodríguez, 711 F.3d 49, 55 (1st Cir. 2013)
(quoting Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011)).