Nexeon Limited v. EaglePicher Technologies LLC et al

Filing 22

MEMORANDUM ORDER: The Objections at D.I. 19 are OVERRULED. The conclusions of the Report and Recommendation (D.I. 18 ) are ADOPTED. The motion to dismiss (D.I. 13 ) is GRANTED IN PART and DENIED IN PART. Signed by Judge Richard G. Andrews on 10/18/2016. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

NEXEON LTD.,

Plaintiff,
v.

Civil Action No. 1:15-cv-955-RGA
EAGLEPICHER TECHNOLOGIES,
LLC AND ONED MATERIAL LLC,

Defendants.

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MEMORANDUM ORDER
Defendants filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss
Plaintiffs complaint. (D.I. 13). The matter was referred to a Magistrate Judge, who
filed a report recommending that the motion be denied in part and granted in part.
(D.I. 17; D.I. 18 at 15). Defendants object that the Magistrate Judge improperly
relied on Form 18 to hold Plaintiff sufficiently pled direct infringement. (See D.I. 19
at 6-8, 11) (arguing that direct infringement is not adequately pled and induced
infringement is not adequately pled insofar as the direct infringement allegations
are deficient). I review the objected to portions of the Report and Recommendation
de novo. 28 U.S.C. § 636(b)(l).

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Prior to December 1, 2015, Form 18 directed plaintiffs in patent infringement
suits to plead their infringement allegations in a particular way. Fed. R. Civ. P.
Form 18 (abrogated Dec. 1, 2015). Specifically, Form 18 enabled plaintiffs to meet a
four-part pleading standard requiring them to allege (1) jurisdiction; (2) ownership
of the patent; (3) defendant's infringement "by making, selling, and using [the
device] embodying the patent"; and (4) a demand for relief. In re Bill of Lading

Transmission and Processing Sys. Patent Litig., 681F.3d1323, 1334 (Fed. Cir.
2012).
On December 1, amendments to the Federal Rules went into effect
abrogating Form 18. The order adopting the amendments explained that the
changes "shall govern in all proceedings in civil cases thereafter commenced and,
insofar as just and practicable, all proceedings then pending." Supreme Court of the
United States, Order Regarding Amendments to the Federal Rules of Civil

Procedure (U.S. Apr. 29, 2015).1
The complaint in this case was filed on October 21, about six weeks before the
rule changes took effect. (D.I. 1). Without Form 18, patent infringement allegations
are evaluated under the plausibility standard of Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007).
Defendants press that the Magistrate Judge was wrong to center her analysis
on Form 18 instead of Twombly. The standard used, whether Form 18 or Twombly,
is a distinction without a difference in this case. Defendants demand Plaintiff prove

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The order can be found at www.supremecourt.gov/orders/courtorders/frcv15_5h25.pdf.
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its case under the guise of satisfying Twombly (see DJ. 19 at 8-10), but that is not
required at this stage. Plaintiff clearly pled sufficient facts in the claim charts
attached to the complaint to state a plausible claim of infringement. (See DJ. 11-4
at 84-85, 102-03).
Thus, the objection (DJ. 19) is OVERRULED. The conclusions of the Report
and Recommendation (DJ. 18) are ADOPTED. The motion to dismiss (DJ. 13) is
GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED this

Ji_ day of October 2016.

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