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Copan Italia S.P.A. v. Puritan Medical Products Company LLC

United States District Court, D. Maine

November 9, 2018

COPAN ITALIA S.P.A., et al., Plaintiffs,
v.
PURITAN MEDICAL PRODUCTS COMPANY LLC, et al., Defendants.

          ORDER ON DEFENDANTS' PARTIAL MOTION TO DISMISS

          JON D. LEVY, U.S. DISTRICT JUDGE

         Defendants 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.

         I. FACTUAL BACKGROUND

         This 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 dismiss.

         Before 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.

         Puritan 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.

         When 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.

         Copan's 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.

         Copan's 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.

         II. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

         A. Standard of Review

         To 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).

         The 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)).

         B. ...


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