IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ORIGINAL CREATIONS, INC., ¦

¦
Plaintiff, ¦
¦
~vs.~ ¦ Civil Docket no. 09-CV-8048
¦
SHYE WORLDWIDE, LLC, ¦ Harry D. Leinenweber, U.S.D.J.
Defendant. ¦
____________________________________¦

ELECTRONICALLY FILED

POINTS AND AUTHORITIES IN SUPPORT OF

MOTION TO DISMISS.

Defendant Shye Worldwide, LLC, by and through its undersigned counsel, hereby

denies any allegations of personal jurisdiction, and denies venue in the Northern District

of Illinois. Defendant moves pursuant to Rule 12(b)(2), and Rule 12(b)(6), FED. R. CIV.

PROC., to dismiss this action. A proposed Order is being submitted electronically.

Introduction.

The Complaint fails to plead a connection between the gravamen of the action, the

defendant, and/or the Northern District of Illinois. Plaintiff did not allege any presence of

defendant within, or any relationship with, this federal judicial district.

Defendant Shye has no physical presence in Illinois, and has not specifically

targeted any of its activities towards Illinois. Defendant has no systematic and continuous

contacts in, or any purposefully directed at, the State of Illinois or its citizens. Taken as if

true, the Complaint does not plead any plausible basis for personal jurisdiction or venue.

1
 TABLE OF POINTS AND AUTHORITIES.

BACKGROUND TO THE RULE 12(b)(2) MOTION.

Calder v. Jones, 465 U.S. 783, 788 (1984)

I. Taken as True, No Allegation Supports Personal Jurisdiction Here.

Morton Grove Pharma, Inc. v. The Nat. Pediculosis Ass'n, Inc.,
485 F.Supp.2d 944 (N.D. Ill. 2007)
Avocent Huntsville Corp. v. Aten Intern. Co., Ltd., 552 F.3d 1324 (Fed. Cir. 2008)
Compliance Software Solutions, Corp. v. MODA Technology Partners, Inc.,
2008 WL 2960711 (N.D. Ill. 2008)
Search Force, Inc. v. Dataforce Int'l, Inc., 112 F.Supp.2d 771 (S.D. Ind. 2000)
Guide Technologies, LLC v. Killeen, 2009 WL 1437568 (S.D. Ind. 2009)

II. No Allegation of Specific or General Jurisdiction Was Pleaded.

Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945)
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

III. Lack of General or Specific Contacts.

Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009)
CF Industries v. Ben-Trei, Ltd., 2009 WL 2765972 (N.D. Ill. 2009)
Asahi Metal Industry Co., Ltd. v. Super. Ct. of Calif., 480 U.S. 102 (1987)
Campbell Pet Co. v. Miale, 542 F.3d 879 (Fed. Cir. 2008)
Maclean-Fogg Co. v. Edge Composites, L.L.C.,
2009 WL 1010426 (N.D.Ill. 2009)
MSI v. C Change Surgical LLC, 541 F.3d 1136 (Fed. Cir. 2008)
FMC Corp. v. Varonos, 892 F.2d 1308 (7th Cir. 1990)

V. The Lack of Relevant Contacts Makes Assertion of Jurisdiction Unreasonable.

Inamed Corp. v. Kuzmak, 249 F.3d 1356 (Fed. Cir. 2001)
Akro Corp. v. Luker, 45 F.3d 1541 (Fed. Cir. 1995)

A. No Pleaded Purposeful Activities Constituting Indirect Infringement.

B. On Balance, Assertion of Jurisdiction Here Would Be Unfair and Unreasonable.

VI. INFRINGEMENT WAS NOT PLEADED PLAUSIBLY.

A. Plaintiff Failed to Plead Plausible Infringement Claims.

Limestone Devel.Corp. v. Village of Lemont, Ill., 520 F.3d 797 (7th Cir. 2008)
Phonometrics, Inc. v. Hospitality Franchise Systems, Inc.,
203 F.3d 790 (Fed. Cir. 2000)
Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009)

2
B. The Statutory or Typically Pleaded Elements of Contributory Infringement
Ricoh Co., Ltd. v. Quanta Computer Inc., 550 F.3d 1325 (Fed.Cir. 2008),
cert. den'd, 129 S.Ct. 2864 (2009)
BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373,(Fed. Cir. 2007)
Aro Mfg. Co. v. Convertible Top Repl.Co., 377 U.S. 476 (1964)

C. Inducing Infringement Was Not Pled Plausibly

DSU Med. Corp. v. JMS Co., Ltd., 471 F.3d 1293 (Fed.Cir.2006) (en banc)
Mallinckrodt, Inc. v. E-Z-Em Inc., 2009 WL 4023134 (D.Del. 2009)

D. Good Cause Exists To Rule Indirect Infringement Out of this Case

Elan Micro.Corp. v. Apple, Inc., 2009 WL 2972374 (N.D.Cal. 2009)

E. Implausible to Plead Willful Infringement of Patent Issued Weeks Ago

SEB S.A. v. Montgomery Ward & Co., Inc., 2010 WL 398118 (Fed. Cir. 2010)
In re Seagate, 497 F.3d 1360 (Fed. Cir. 2007) (en banc)

F. Indirect or Willful Infringement Requires a Plausible Direct Infringement Claim

Colida v. Nokia, Inc., 2009 WL 3172724 (Fed. Cir. 2009)
Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009)
Omron Electronic Components LLC v. Thinklogical, Inc.,
2009 WL 4823905 (N.D.Ill. 2009)
Sharafabadi v. Pacific Northwest Farmers Co-op.,
2010 WL 234769 (W.D.Wash. 2010)

CONCLUSION

3
 ARGUMENT

BACKGROUND TO THE RULE 12(b)(2) MOTION.

Defendant Shye Worldwide has no physical presence in Illinois, and no office or

agents in Illinois. It is, as pleaded in ¶3, an LLC organized under the laws of California,

with its principal place of business in Lake Forest, California.

The plaintiff’s Complaint, asserting direct and indirect patent infringement,

contains no allegation of any conduct by defendant in Illinois, or within the Northern

District of Illinois. Calder v. Jones, 465 U.S. 783, 788 (1984) (the focus is on “the

relationship among the defendant, the forum, and the litigation”).

I.

Taken as True, No Allegation Supports Personal Jurisdiction Here.

The Complaint is the starting point for assessing whether the plaintiff can meet its

burden to show personal jurisdiction over this defendant. Morton Grove Pharma, Inc. v.

The Nat. Pediculosis Ass'n, Inc., 485 F.Supp.2d 944, 947 (N.D. Ill. 2007) (it is plaintiff’s

“burden to demonstrate that venue is proper and that this court has personal jurisdiction

over the defendant.”). Any uncontroverted allegations in the Complaint are accepted as if

true, and “construed in the light most favorable to" plaintiff. Avocent Huntsville Corp. v.

Aten Intern. Co., Ltd., 552 F.3d 1324, 1329 (Fed. Cir. 2008).1 Here, however, plaintiff’s

Complaint pleaded no allegation of fact supporting personal jurisdiction.

Defendant’s Answer does not deny that Shye Worldwide is a California LLC,

which has its business office in California. [Dkt. #10]. All “uncontested jurisdictional

facts presented by the defendants [are taken] as true.” Compliance Software Solutions,

1
Avocent, cert. den'd, 129 S.Ct. 2796 (2009).

4
Corp. v. MODA Technology Partners, Inc., 2008 WL 2960711 (N.D. Ill. 2008) (granting

Rule 12(b)(2) dismissal). Fundamentally, the plaintiff did not plead any personal

jurisdictional facts about this California-based defendant.

Plaintiff’s “conclusory allegations unsupported by any factual assertions will not

withstand a motion to dismiss.” Search Force, Inc. v. Dataforce Int'l, Inc., 112 F.Supp.2d

771, 774 (S.D. Ind. 2000) (dismissing for lack of personal jurisdiction), quoted in, Guide

Technologies, LLC v. Killeen, 2009 WL 1437568 (S.D. Ind. 2009). Failing to plead facts

"critically undermines its assertion of specific personal jurisdiction." Avocent, supra,

at1338. This action should be dismissed pursuant to Rule 12(b)(2), FED. R. CIV. PROC.

II.

No Allegation of Specific or General Jurisdiction Was Pleaded.

In a patent infringement suit, a district court follows the jurisdictional precedent

of the U.S. Court of Appeals for the Federal Circuit. Avocent, at 1328. Followed here, a

somewhat abstract inquiry results, since the plaintiff’s Complaint does not plead any

systematic, or isolated, or other contacts with the Northern District of Illinois.

In any patent infringement case, the inquiries are whether “(1) jurisdiction exists

under the state long-arm statute and (2) exercise of jurisdiction would be consistent with

the limitation of the due process clause.” Compliance Software, supra.2 On each aspect

of those inquires, plaintiff has the burden of making a prima facie showing. A “plaintiff's

obligation to provide the grounds of his entitlement to relief requires more than labels and

2
"Whether due process is satisfied must depend rather upon the quality and nature of the
activity in relation to the fair and orderly administration of the laws which it was the purpose of
the due process clause to insure." Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945). A
“defendant's conduct and connection with the forum state [must be] such that [it] should
reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297 (1980).

5
conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).3 There is no

mention of personal jurisdiction, even in conclusory terms, in the plaintiff’s complaint.

III.

Lack of General or Specific Contacts.

Defendant Shye operates from its principal office in California. Because it has no

Illinois office or agents, owns no property in Illinois, pays no taxes in Illinois, and has no

telephone listing or bank account in Illinois, the defendant Shye does not have sufficient,

systematic contacts in Illinois to support an assertion of general jurisdiction.

No specific, or isolated, contacts were alleged in plaintiff’s Complaint. Defense

counsel will not surmise what was un-pleaded in the plaintiff’s Complaint.4 No acts of

infringement occurring in this district were pleaded.5 No such allegations need be taken

as true, since none were pleaded; and too, none need be disputed.

The failure to plead, or even mention, jurisdictional contacts in the complaint also

defeats the idea of pre-ruling discovery. "Nor is there anything in the complaint …[to]

make out a prima facie showing of jurisdiction sufficient to … permit [] jurisdictional

3
“While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950 (2009).
4
A "nonresident defendant does not subject itself to personal jurisdiction in Illinois simply
by entering into a contract with an Illinois resident." and "mere solicitation of customers in the
forum state is also insufficient to establish personal jurisdiction." CF Industries v. Ben-Trei, Ltd.,
2009 WL 2765972 (N.D. Ill. 2009); “The placement of a product into the stream of commerce,
without more, is not an act of the defendant purposefully directed toward the forum State.” Asahi
Metal Industry Co., Ltd. v. Super. Ct. of Calif., 480 U.S. 102, 112 (1987).
5
It is possible that a de minimis number of the alleged infringing products end up in this
district, but that would be insufficient to maintain the suit in the Northern District. See, Campbell
Pet Co. v. Miale, 542 F.3d 879, 884, 88 U.S.P.Q.2d 1252 (Fed. Cir. 2008) ("very small volume of
sales … made to customers in Washington falls far short of enough to reflect the substantial and
continuous presence in the state"), cited with approval in, Maclean-Fogg Co. v. Edge Composites,
L.L.C., 2009 WL 1010426 (N.D.Ill. 2009).

6
discovery." MSI v. C Change Surgical LLC, 541 F.3d 1136, 1142 (Fed. Cir. 2008) (aff'g

dismissal, op. by J. Zagel, sitting by designation).

For these reasons, and in view of the failure to plead facts supporting a plausible

assertion of personal jurisdiction, the defendant prays for entry of an order of dismissal.

IV.

No Act “Within Illinois” Was Pleaded.

The Complaint, fairly read, does not allege the “doing of” any act, “within this

State,” by defendant “in person or through an agent.” 735 ILCS 5/2-209.6 In the most

favorable light, it may allege that, via the stream of commerce, products ended up in

Illinois. In the Avocent case, supra, it was contended “that Aten International should be

subject to personal jurisdiction in Alabama based on the alleged availability of various

Aten International products for sale in the forum state”, based on a 'stream of commerce'

theory. 552 F.3d at 1337. The Avocent case rejects an “assertion of general jurisdiction

under a 'stream of commerce' theory.” Id. After considering the Complaint, it was found

that "Avocent has failed to allege 'sufficient activities related to the claim ...' as to support

the assertion of specific personal jurisdiction." Id , at 1338. “Avocent's complaint and

the declarations it submitted ...-even when construed in the light most favorable to

Avocent-fail to allege any connection” adequate to sustain specific jurisdiction. Id.

The inquiry - whether plaintiff pleaded an act “within” the ambit of the long-arm

statute – yields that there is no such factual allegation in the Complaint.

6
"A nonresident defendant may be sued in Illinois if (1) he or she performs one of the
enumerated acts in Illinois and (2) the minimum contacts with Illinois that due process requires
are present." FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990)(courts will "consider
the two requirements separately").

7
 V.
The Lack of Relevant Contacts Makes Assertion of Jurisdiction Unreasonable.

The second part of the assessment asks whether the exercise of jurisdiction would

contravene due process. Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed. Cir. 2001).

(“Determining whether personal jurisdiction exists over an out-of-state defendant

involves two inquiries: whether a forum state's long-arm statute permits service of

process, and whether the assertion of personal jurisdiction would violate due process”).7

The Federal Circuit, in Akro Corp. v. Luker, 45 F.3d 1541 (Fed. Cir. 1995),

summarized the Supreme Court cases governing the due process inquiry and "outlined a

three-prong minimum contacts test: “(1) whether the defendant purposefully directed its

activities at residents of the forum, (2) whether the claim arises out of or relates to those

activities, and (3) whether assertion of personal jurisdiction is reasonable and fair."

Further, the Circuit Court has explained that the “first two factors correspond with the

‘minimum contacts' prong of the International Shoe analysis, and the third factor

corresponds with the ‘fair play and substantial justice’ prong of the analysis.” Avocent,

supra, at 1332, citing, Inamed, 249 F.3d at 1360.8

A.
No Pleaded Purposeful Activities Constituting Indirect Infringement.

The Complaint, without details, accuses defendant of direct, as well as indirectly

infringing; it alleged: “Shye commits direct and/or contributory infringement, and/or

induces infringement, of the ‘060 Reissued Patent pursuant to 35 U.S.C. §§271(a)-(c).”

7
The “mere fact that [defendants] can ‘foresee’ that the article will be circulated and have
an effect in [the forum state] is not sufficient for an assertion of jurisdiction.” Avocent, citing,
Calder v. Jones, 465 U.S. 783 (1984) (it is “forseeability that is critical to due process analysis").
8
Inamed, opinion on remand, 275 F.Supp.2d 1100 (C.D.Cal. May 28, 2002), aff'd, 64
Fed.Appx. 241 (Fed.Cir. May 15, 2003).

8
 Differing, but similar, assessments under the Akro decision must be made for the

indirect infringement accusation. The Court needs to inquire: (1) what indirectly

infringing activities by defendant were alleged; (2) where those activities have occurred;

and (3) whether defendant purposely directed those activities at the forum state.9

On each inquiry about whether the plaintiff’s indirect infringement accusation has

minimum contacts with this forum, the Complaint is lacking. No activity or plausible

averment of any activity relating to or constituting inducing patent infringement, or

contributory infringement, was alleged in the Complaint. The absence of any such

assertion defeats inquiry into the ‘where’ and the ‘purposeful’ part of the Akro standard.

The quantum and character of purported jurisdictional contacts are allocated to

the categories of general and specific. In simple terms, general contacts are unrelated to

alleged patent infringement, while those in the category of specific contacts regards any

infringing products or infringing conduct in Illinois.10

That allocation provokes the complication of determining whether the plaintiff

plausibly alleged that particular products are infringing, or not. A “court considering a

motion to dismiss can choose to begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth." Iqbal, supra at 1950.

Plaintiff’s conclusory assertion that a particular product is infringing “is no more than” a

legal conclusion, which is “not entitled” to be assumed as if true. Id. No “indirectly”

infringing acts were alleged, leaving that legal conclusions unsupported and implausible.

9
Akro, cert. den'd, 515 U.S. 1122 (1995), appeal after remand, 178 F.3d 1311 (Fed.Cir.
1998), cert. den'd, Luker v. Akro Corp., 526 U.S. 1113 (1999).
10
Cf., Avocent, supra at 1336, "While such activities may in the aggregate justify the
exercise of general jurisdiction …they do not establish a basis for specific jurisdiction".

9
 In its Complaint, plaintiff avers that “Shye sells” three “Xventure” products, then

pleads the conclusion that: “Accordingly, Shye commits direct and/or contributory

infringement, and/or induces infringement, of the ‘060 Reissued Patent.” ¶7. Plaintiff’s

Complaint avers those legal conclusions, lacking in factual support, and in crucial

aspects, lacking plausibility. “It is the conclusory nature of [the infringement] allegations

... that disentitles them to the presumption of truth.” Iqbal, supra at 1951. Plaintiff failed

to plead any basis to find that either of the first two Akro factors are present, because it

pleads no general, specific, or purposeful contacts with the forum. Consequently, the

defendant’s Rule 12(b)(2) motion to dismiss should be granted.

B.
On Balance, Assertion of Jurisdiction Here Would Be Unfair and Unreasonable.

When the complaint pleads no specific activity, purposefully directed at the

forum, then the due process inquires into fairness and reasonableness include: “the forum

State's interest in adjudicating the dispute,” “the interstate judicial system's interest in

obtaining the most efficient resolution of controversies,” and the “shared interest of the

several States in furthering fundamental substantive social policies.” World-Wide VW,

supra, 444 U.S., at 292.

As considered here, the interest of the forum state in the case, as pleaded, is

meager. No act in, and no activities within the state were pleaded. That is outweighed by

the third consideration, the “shared interest” of California, where defendant Shye is

located, in furthering “social policies” against implausible infringement suits against its

resident businesses, and in favor of vindicating its resident businesses’ right to compete

by selling noninfringing products.

10
 VI.

INFRINGEMENT WAS NOT PLEADED PLAUSIBLY.

A.

Plaintiff Failed to Plead Plausible Infringement Claims.

The Complaint alleges the legal conclusions that defendant “Shye commits direct

and/or contributory infringement, and/or induces infringement.” Different facts would

have to be pleaded, and proved, to state a claim for “contributory” infringement, than for

inducing infringement, or for “direct” infringement. Plaintiff alleged some possibility

that infringement may be shown to be “intentional and willful”. Complaint ¶s 7 & 9.

Defendant Shye urges a pause, now before opening up broad discovery, to

evaluate the plausibility vel non of the plaintiff’s assertions of contributory, inducing and

willful infringements. While the plaintiff’s complaint need not contain “detailed factual

allegations,” of these three types of infringement, it must allege more than mere “labels

and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "If discovery is

likely to be more than usually costly, the complaint must include as much factual detail

and argument as may be required to show that the plaintiff has a plausible claim."

Limestone Devel.Corp. v. Village of Lemont, Ill., 520 F.3d 797, 804 (7th Cir. 2008).

On a Rule 12(b)(6) motion challenging the sufficiency of the pleadings in a patent

infringement case, the Federal Circuit adopts the pleading requirements set by the law of

the local Circuit. With "a purely procedural question not pertaining to patent law, such as

whether a Rule 12(b)(6) motion was properly granted, this court again applies the rule of

the regional circuit." Phonometrics, Inc. v. Hospitality Franchise Systems, Inc., 203 F.3d

790, 793 (Fed. Cir. 2000) (pre-Twombly case, applying a "no set of facts" standard).

11
 Caselaw in the 7th Circuit, applying a notice standard to Rule 12(b)(6) motions

and requiring claims to be “plausible,” has held that “in considering the plaintiff's factual

allegations, courts should not accept as adequate abstract recitations of the elements of a

cause of action or conclusory legal statements." Brooks v. Ross, 578 F.3d 574, 581 (7th

Cir. 2009). The assertion of contributory and inducing infringement recites no facts, only

the form of “conclusory legal statements," which Brooks held unacceptable.

B.

The Statutory or Typically Pleaded Elements of Contributory Infringement.

Even though a "doctrine of contributory infringement long predated the enactment

of § 271(c)," the statutory version "was designed to codify the contributory infringement

doctrine." Ricoh Co., Ltd. v. Quanta Computer Inc., 550 F.3d 1325, 1336 (Fed.Cir.

2008), cert. den'd, 129 S.Ct. 2864 (2009). The essential elements are not pleaded.

Here, a contributory infringement claim under the statutory terms would pertain,

not to a “process,” but to a “patented machine.” The operative phrasing in 35 U.S.C.

§271(c) regards selling an item “constituting a material part of the invention ..especially

made or especially adapted for use in an infringement of [the] patent,” and that part being

“not a staple article …suitable for substantial noninfringing use.” Plaintiff’s Complaint is

completely devoid of facts pleaded about the key aspects of §271(c), or any identified

“material part” of an invention or “component of a patent machine” being sold. That

omission results in no notice to defendant of what “part” or “component” is at issue.

Moreover, contributory infringement "requires a mens rea (knowledge)" that the

"part" of the invention being sold is made or adapted "for use in an infringement." BMC

Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373, 1381 (Fed. Cir. 2007) (statute "is

12
limited to sales of components or materials without substantial noninfringing uses");

essential defendant "knew that the combination for which his component was especially

designed was both patented and infringing.” Aro Mfg. Co. v. Convertible Top Repl.Co.,

377 U.S. 476, 488 (1964). No allegation of “knowing” per §271(c) was pleaded.

The assertion of contributory infringement does no contain any facts sufficient to

raise plaintiff's claim to relief under §271(c) above a “speculative” level, Twombly at 555,

and thus, the claim of contributory infringement is not “plausible on its face,” id. at 570.

It too is true that defendant has no notice of what acts supposedly give plaintiff any cause

to make an accusation of indirect infringement.

C.

Inducing Infringement Was Not Pled Plausibly.

Plaintiff, in two words, pleaded that defendant “induces infringement.” As it was

with the plaintiff’s accusation of contributory infringement, nothing was pleaded to

‘nudge’ the inducement claim above the formulaic or speculative level.

Stating a claim that a defendant has “actively induced infringement of a patent”

under 35 U.S.C. §271(b) requires elements of activity and knowledge.11 Plaintiff did

nothing to plead “that the alleged infringer's actions induced infringing acts and that he

knew or should have known his actions would induce actual infringements.” DSU Med.

Corp. v. JMS Co., Ltd., 471 F.3d 1293, 1304 (Fed.Cir.2006) (en banc) (mere “knowledge

11
The "Complaint does not specifically allege that Defendants had knowledge ... Nor does
[it] contain sufficient facts on which the Court can reasonably infer an allegation that Defendants
possessed such knowledge." Mallinckrodt, Inc. v. E-Z-Em Inc., 2009 WL 4023134 (D.Del. 2009)
(Rule 12(b)(6) dismissal of indirect infringement claims).

13
of the acts alleged to constitute infringement” is not enough; "specific intent and action to

induce infringement" is required). Here, no facts and no inducing “acts” were pleaded.

D.

Good Cause Exists To Rule Indirect Infringement Out of this Case.

As to both accusations of indirect infringement, again, this Court “should not

accept as adequate abstract recitations of the elements of a cause of action or conclusory

legal statements." Brooks, supra.12 Moreover, discovery about indirect infringement, in

the nature of a fishing expedition, would be “unusually costly” and must not be permitted

on mere legal conclusions, pleaded without “factual detail.” Limestone Devel., supra.

E.

Implausible to Plead Willful Infringement of Patent Issued Weeks Ago.

The patent pleaded in plaintiff’s complaint issued less than two months ago. It is

attached to the complaint, and at the top right, the patent issue date of “Dec. 29, 2009” is

printed. No granted by patent, are effective until the date that a patent is granted.

No claim for willful infringement is stated unless “a patentee [can] show by clear

and convincing evidence that, as a threshold matter, 'the infringer acted despite an

objectively high likelihood that its actions constituted infringement of a valid patent,'”

[cit. om.], SEB S.A. v. Montgomery Ward & Co., Inc., 2010 WL 398118 (Fed. Cir. 2010),

and that the "objectively-defined risk ... was either known or so obvious that it should

have been known." In re Seagate, 497 F.3d 1360, 1371 (Fed. Cir. 2007) (en banc). Even

some averment that defendant “acted” is lacking in the complaint.

12
"This pleading plainly falls within the prohibition against ‘[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.’” Elan Micro.Corp. v.
Apple, Inc., 2009 WL 2972374 (N.D.Cal. 2009) (citing, Iqbal, supra, 129 S.Ct. at 1949).

14
 As a matter of commonsense, a willful infringement claim is not plausible for a

patent that issued only weeks ago. On the most basic level, plaintiff should plead how or

why anyone other than itself would even have known about this recently-issued patent.

That point arises before reaching the ‘known risk’ that conduct would infringe a “valid”

patent. Defendant must again state: plaintiff’s Complaint leaves this all to speculation.

F.

Indirect or Willful Infringement Requires a Plausible Direct Infringement Claim.

The essential pleading requirements established in the Twombley and Iqbal cases

apply to allegations of direct patent infringement. Authority exists to dismiss where a

claim of patent infringement is pleaded conclusorily, and as a result, is not plausible.

“Colida's infringement claims were facially implausible and provided the district court

with no basis on which to reasonably infer” that a claim was stated. Colida v. Nokia,

Inc., 2009 WL 3172724 (Fed. Cir. 2009) (affirming dismissal).

Here, plaintiff’s direct infringement claim against the accused Xventure 12 LED

Crank Lantern is facially implausible. Id. In short, plaintiff’s reissue patent RE41,060

(attached to the complaint) claims as an essential element that the patented unit output

power to an external device.13 Claim 1 in plaintiff’s reissue patent [] requires “an output

portion for outputting the power to an electrical device.” All the other claims in the

patent begin by describing the invention as a “charger.” The Xventure 12 LED Crank

Lantern has no feature to charge an external device and has no feature to “output” power.

Stated another way, the plaintiff has not pleaded, and could not plead plausibly, that this

13
Court can consider a “concededly authentic” document attached to a complaint, that is
“central to the plaintiff's claim,” and can consider it to decide a Rule 12(b)(6) motion to dismiss.
Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009).

15
Crank Lantern has any feature to charge, or to output power to another electrical device.

The bald pleading that the product is infringing is merely a legal conclusion,

which is not presumed true, and indeed, is not plausible. On a motion to dismiss, a court

“must accept as true all factual allegations in the complaint, but not its legal conclusions.”

Omron Electronic Components LLC v. Thinklogical, Inc., 2009 WL 4823905 (N.D.Ill.

2009) citing, Iqbal, supra. A conclusory allegation that the Crank Lantern directly

infringes, is a mere formulaic conclusion, about a product that lacks an essential feature

required for infringement of the patent attached to plaintiff’s Complaint. Sharafabadi v.

Pacific Northwest Farmers Co-op., 2010 WL 234769 (W.D.Wash. 2010) ("Even

accepting the allegations in the complaint as true, Mr. Sharafabadi has not made out a

claim for direct infringement"). To quote from the 7th Circuit’s decision in Brooks, supra,

with an implausible or conclusory claim, the "behavior ...alleged ...is just as consistent

with lawful conduct as it is with wrongdoing." The plaintiff’s averments of direct

infringement, especially as to the Crank Lantern, lack “facial plausibility” because

plaintiff failed, or could not, plead “factual content that allows the court to draw the

reasonable inference that the defendant is liable” for direct infringement of the recently-

issued patent RE41,060. Iqbal, supra, 129 S.Ct. at 1949.

CONCLUSION

The Complaint fails to plead personal jurisdiction, or any connection between the

parties, the forum and specific activities. Dismissal under Rule 12(b)(2) is proper.

No plausible accusation of any indirect infringement, either by inducing or

contributory acts, was put forth in the Complaint. Also, no willful infringement claim

can be stated. Thus, for the reasons set forth above, dismissal per Rule 12(b)(6) is proper.

16
Date: Feb. 23, 2010

Respectfully submitted

~ S ~ Charles L. Thomason
Charles L. Thomason, pro hac vice pending
SPALDING & THOMASON
106 N. 4th St.
P.O. Box 745
Bardstown, KY 40004
thomason@spatlaw[dot]com
Telep. (502) 349-7227

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 CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of February, 2010, I electronically filed the

foregoing Memorandum Supporting Motion to Dismiss with the Clerk of the Court by

using the CM/ECF system, which will send a notice of electronic filing to the following:

Michael P. Mazza, Esq.

Michael P. Mazza, LLC
686 Crescent Blvd.
Glen Ellyn, Illinois 60137-4281
Email: mazza@mazzallc.com
ATTORNEYS FOR PLAINTIFF

Date: 23 FEB 2010

~ S ~ Charles L. Thomason
Charles L. Thomason, pro hac vice pending

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