Thursday, July 23, 2015

CAFC cites Twombly and Iqbal in affirming 12(b)(6) dismissal

is a 2=1 affirmance of a
dismissal under Federal Rule 12(b)(6)

Addiction and Detoxification is the assignee of U.S. Patent
No. 5,789,411, titled Improvements to rapid opioid detoxification,
and initially assigned to Lance L. Gooberman .

The first claim of US '411 states:

A method of detoxifying a patient addicted to one or more opioids, comprising:

sedating said patient with an anesthetic agent;

administering to said patient a diarrhea suppressant;

detoxifying said patient by injecting an opioid antagonist into said patient;

reviving said patient from the effects of said anesthetic agents,

whereby said patient can be discharged in an ambulatory condition within about eight hours of being sedated with said anesthetic agent without a significant amount of diarrhea.

The "background of invention" is an interesting read and includes the

It is widely known that heroin addicts fear and loathe heroin detoxification. For the addict, withdrawal can be like having a massive panic attack, an acute case of Huntington's Chorea, a psychological shock syndrome, and a nasty flu, all rolled into one.

Even if we discount the less than warm reception by addicts, the current method of detoxifying an individual from opiates is flawed in several respects. First of all, it is extremely uncomfortable for individual patients. Second, it can take days, and even weeks, for treatment, and this treatment is very expensive when one considers the overall length of stay at a hospital. Third, it is not very effective. Early relapse is the rule rather than the exception.

From within the CAFC decision:

“Rule 8(a)(2) of the Federal Rules of Civil Procedure
generally requires only a plausible ‘short and plain’
statement of the plaintiff’s claim, not an exposition of his
legal argument.” Skinner v. Switzer, 562 U.S. 521, 530
(2011). To survive a motion to dismiss, a complaint must
plead “enough factual matter” that, when taken as true,
“state[s] a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Twombly and Iqbal require that a complaint for patent
infringement contain sufficient factual allegations such
that a reasonable court could, assuming the allegations
were true, conclude that the defendant infringed

As to Form 18:

We have held that a complaint that complies
with Form 18 will satisfy Rule 8 because Form 18 has the
force of law and was enacted by Congress. See, e.g., In re
Bill of Lading, 681 F.3d at 1334 (“to the extent the parties
argue that Twombly and its progeny conflict with the
Forms and create differing pleadings requirements, the
Forms control”). However, as Form 18 applies only to
direct infringement, we have rejected the idea that it
provides a model for other causes of action, such as indirect
infringement. Id. at 1336. For other patent-related
claims, such claims must comply with Twombly and Iqbal.
See id.

As to notice:

Pre-filing notice, however, is
not required to bring a suit for direct infringement. See,
e.g., id. (“Filing of an action for infringement shall constitute
such notice.”).

As to pleading:

It is not
enough to say “you infringe my patent.” And that is all
that is alleged in Addiction and Detoxification’s complaint.
There must be some allegation of specific services
or products of the defendants which are being accused.

As to indirect infringement:

To state a claim for
induced infringement, a plaintiff must allege that the
defendant knew of the patent and that the induced acts
constitute patent infringement. Commil USA, LLC v.
Cisco Sys., Inc., 135 S. Ct. 1920, 1926 (2015). The Original
Complaint contains no allegations regarding intent or
any specific acts caused by Defendants. “To state a claim
for contributory infringement . . . a plaintiff must, among
other things, plead facts that allow an inference that the
components sold or offered for sale have no substantial
non-infringing uses.” In re Bill of Lading, 681 F.3d at
1337. The Original Complaint contains no allegations
regarding substantial non-infringing uses. Simply repeating
the legal conclusion that Defendants induced infringement
or contributorily infringed does not plead
“factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. We thus affirm the
dismissal of the indirect infringement claim in the Original

CJ Bryson dissented:

The majority concludes that the district court properly
dismissed the plaintiff’s claim of direct infringement
because the complaint “provides no detail whatsoever that
would put Defendants on notice as to what activity,
method, or procedure is alleged to infringe.” I disagree
with the majority that the complaint fails to satisfy the
requirement of Rule 8, Fed. R. Civ. P., of “a short and
plain statement of the claim showing that the pleader is
entitled to relief,” particularly in view of Form 18, Fed. R.
Civ. P., which contains a form complaint for patent infringement
that is not materially different from the
complaint in this case.


If the majority’s reference to “products” means that it
would require the complaint to contain detail regarding
the products that the defendants use in their therapies—
such as allegations identifying the specific drugs that the
defendants administer to patients—that degree of specificity
would be far greater than what is required by Rule 8
and Form 18 and would depart from the principles of
notice pleading that are embodied in the Federal Rules of
Civil Procedure. See Erickson v. Pardus, 551 U.S. 89, 93
(2007) (“Specific facts are not necessary; the statement
need only give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests” (citation


Other CAFC cases citing Iqbal:

**ABB TURBO SYSTEMS AG v. TURBOUSA, INC., 774 F.3d 979 (CAFC 2014)

To avoid dismissal under Rule 12(b)(6), the complaint must contain sufficient factual allegations "to raise a right to relief above the speculative level." Id. Rule 8's pleading standard "does not require 'detailed factual allegations.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 555); see also Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam) ("Specific facts are not necessary . . . ."); Speaker, 623 F.3d at 1380 (quoting Iqbal). But it requires more than "barren recitals of the statutory elements, shorn of factual specificity," Speaker, 623 F.3d at 1384, and more than the mere possibility of liability or mere consistency with liability, Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557, 570. What is needed is "facial plausibility" of the claim, which exists "when the plaintiff pleads factual [**10] content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Rule 8 "simply calls for enough fact to raise a reasonable expectation [*985] that discovery will reveal evidence" of the alleged violation. Twombly, 550 U.S. at 556.

Overview of case: [1]-The district court erred when it dismissed an action a Swiss corporation and a Delaware corporation filed against a Florida corporation and its president, alleging, inter alia, misappropriation of trade secrets in violation of Fla. Stat. §§ 688.001-688.009 and civil conspiracy to misappropriate trade secrets concerning the design, manufacture, servicing, and pricing of plaintiffs' turbochargers; [2]-The district court relied on judgments about the merits of the case that went beyond what was authorized at the complaint stage when it found that plaintiffs' complaint showed that their claim alleging misappropriation of their trade secrets was time-barred under Fla. Stat. § 688.007, and was precluded by Fla. Stat. § 688.002(4)(b) because plaintiffs did not take reasonable steps to protect their trade secrets.


"To survive a motion to dismiss, a complaint must contain 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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Given Accent's admissions, both in its complaint and before the district court, we conclude that its complaint fails to state a claim to relief that is plausible on its face. Accordingly, we affirm the district court's dismissal of Accent's MUTSA claim.


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