Bio-Rad Laboratories Inc. v. Thermo Fisher Scientific Inc.

Filing 16

MEMORANDUM ORDER Denying 11 MOTION to Dismiss Based upon Plaintiff's Willful Infringement Claim. Signed by Judge Richard G. Andrews on 1/31/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

BIO-RAD LABORATORIES INC.,
Plaintiff,

v.

Civil Action No. 16-358-RGA

THERMO FISHER SCIENTIFIC INC.,
Defendant.

MEMORANDUM ORDER

Presently before me is Defendant Thermo Fisher Scientific Inc.' s Motion to Dismiss
Plaintiff Bio Rad Laboratories, Inc.'s willful infringement claim. (D.1. 11). The briefing is
complete (D.I. 12; D.I. 13; D.I. 14). For the reasons set forth below, Defendant's Motion is
DENIED.

I.

LEGAL STANDARD

Rule 8 requires a complainant to provide "a short and plain statement of the claim
showing that the pleader is entitled to relief .... " Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) allows
the accused party to bring a motion to dismiss the claim for failing to meet this standard. A Rule
12(b)(6) motion may be granted only if, accepting the well-pleaded allegations in the complaint
as true and viewing them in the light most favorable to the complainant, a court concludes that
those allegations "could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly,
550 U.S. 544, 558 (2007).
"Though 'detailed factual allegations' are not required, a complaint must do more than
simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of

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action."' Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly,
550 U.S. at 555). I am "not required to credit bald assertions or legal conclusions improperly
alleged in the complaint." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311F.3d198, 216 (3d
Cir. 2002). A complaint may not be dismissed, however, "for imperfect statement of the legal
theory supporting the claim asserted." See Johnson v. City ofShelby, 135 S. Ct. 346, 346 (2014).
A complainant must plead facts sufficient to show that a claim has "substantive
plausibility." Id. at 347. That plausibility must be found on the face of the complaint. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the [complainant]

pleads factual content that allows the court to draw the reasonable inference that the [accused] is
liable for the misconduct alleged." Id. Deciding whether a claim is plausible will be a "contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense." Id. at 679.

II.

DISCUSSION
"A patent infringer's subjective willfulness, whether intentional or knowing, may warrant

enhanced damages, without regard to whether his infringement was objectively reckless." Halo
Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1926 (2016). See also WBIP, LLC v. Kohler
Co., 829 F.3d 1317, 1341 (Fed. Cir. 2016) ("Knowledge of the patent alleged to be willfully

infringed continues to be a prerequisite to enhanced damages."). At the pleading stage, it is not
necessary to show that the case is egregious. See Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S.
Ct. 1923, 1934 (2016) ("Consistent with nearly two centuries of enhanced damages under patent
law, however, such punishment should generally be reserved for egregious cases typified by
willful misconduct." (emphasis added)).

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The following alleged facts are highly relevant. Bio-Rad's complaint alleges that BioRad gave Thermo Fisher notice of its infringement of the patent-in-suit as early as March 2013.
(D.I. 9 ~ 25). On January 2014, proposed licensing terms were sent to Thermo Fisher. (Id). On
May 6, 2015, Bio-Rad sent a letter to Thermo Fisher of a reminder that sales of the accused
products constitute infringement of the patent-in-suit. (Id.). Bio-Rad alleges that Thermo Fisher,
or one of its subsidiary or affiliated companies directed the filing of the opposition to a European
patent that is a counterpart to the patent-in-suit. (Id.

~~

28-29). Accused products continue to

be sold. (Id ~ 27).
Bio-Rad has sufficiently alleged that Thermo Fisher had willfulness. On these facts, it is
plausible that Thermo Fisher intentionally or knowingly infringed the patent-in-suit. See Bobcar

Media, LLC v. Aardvark Event Logistics, Inc., 2017 WL 74729, at *6 (S.D.N.Y. Jan. 4, 2017)
("It is possible that further development of the facts of this case may reveal that it is not an
'egregious case' justifying enhanced damages .... ).

III.

CONCLUSION
Defendant's Motion to Dismiss Plaintiffs willful infringement claim (D.I. 11) is

DENIED. It is SO ORDERED this

J{

day of January, 2017.

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