Bayer Healthcare LLC v. Baxalta Incorporated et al

Filing 27

MEMORANDUM ORDER: The Motion to Dismiss Counts 2, 3, and 4 (D.I. 14 ) is GRANTED as to induced, contributory, and willful infringement alleged to have occurred prior to December 5, 2016, and otherwise DENIED. Signed by Judge Richard G. Andrews on 8/10/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

BAYER HEALTHCARE, LLC,
Plaintiff;
v.

Civil Action No. 16-1122-RGA
BAXALTA INCORPORATED, BAXALTA
US INC., and NEKTAR THERAPEUTICS,
Defendants.
MEMORANDUM ORDER
Presently before the Court is Defendant's Partial Motion to Dismiss Plaintiff's Counts 2,
3 and 4 (D.I. 14) and related briefing (D.I. 15, 19, 21). For the reasons that follow, IT IS
HEREBY ORDERED THAT Defendant's Partial Motion to Dismiss Plaintiff's Counts 2, 3,

and 4 (D.I. 14) is GRANTED as to induced, contributory, and willful infringement alleged to
have occurred prior to December 5, 2016, and otherwise DENIED.
Defendants have moved under Rule 12(b)( 6) to dismiss Counts 2, 3, and 4 for failure to
state a claim. 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 At!. Corp. v. Twombly, 550 U.S. 544, 558 (2007).
Defendants argue first that as to Counts 2, 3, and 4, which allege induced, contributory,
and willful infringement, Plaintiff has not sufficiently alleged the requisite knowledge. (D.I. 15
at 7). It seems to me, as an initial matter, that the dispute here is necessarily limited to the period
of time between when the patent issued on June 13, 2016, and when Plaintiff filed suit on
December 5, 2016. Defendants do not and could not argue that they did not have knowledge of

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the patent after being served with the complaint. Therefore, the only question is whether
Plaintiff has adequately alleged knowledge of U.S. Patent No. 9,364,520 ("the '520 patent"), the
only patent-in-suit, prior to December 5, 2016. I do not think that Plaintiff has done so.
Plaintiffs allegations center on Defendants' alleged knowledge of applications for different
patents in the same family as the '520 patent. Knowledge of other patents in the same family as
the patent-in-suit can, in some circumstances, allow for a plausible inference that Defendants had
actual knowledge of the patent-in-suit. Elm 3DS Innovations, LLC v. Samsung Elecs. Co., 2015
WL 5725768, at *3 (D. Del. Sept. 29, 2015). Alleging knowledge of a parent application,
however, strains the bounds of plausibility. "Filing an application is no guarantee any patent will
issue ... [and] the scope of claims in patents that do issue ... is something totally
unforeseeable." State Indus., Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1236 (Fed. Cir. 1985).
The only other allegation of knowledge Plaintiff makes is a vague reference to knowledge of
Plaintiff's "patent portfolio" as it relates to the parent application. This, even if true, does not
add anything to the allegation of knowledge of the '520 patent. I find that Plaintiff has not
adequately alleged knowledge of the '520 patent prior to December 5, 2016.
Defendants next argue that Plaintiff's complaint contains no allegations of "egregious
behavior," which they contend are necessary to state a claim for willful infringement. (D.I. 15 at
15). At this stage of the litigation, however, Plaintiff need not allege egregiousness. 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)). Plaintiffs
allegations are sufficient to state a plausible claim for willfulness at this stage of the litigation.

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Finally, Defendant Nektar argues that Plaintiff has failed to adequately plead, for the
induced infringement count, knowledge that induced acts would cause infringement, or, for the
contributory infringement count, knowledge that the component Defendant sells would have no
substantial noninfringing uses. (D.I. 15 at 16). I disagree. Taking Plaintiff's allegations as true,
I think the complaint contains sufficient allegations of fact as to both induced and contributory
infringement to state a plausible claim. (See, e.g., D.I. 1 iMf22-26, 33-47, 53, 57-58). Therefore,
I will deny Defendants' Motion except as to induced, contributory, and willful infringement
alleged to have occurred prior to December 5, 2016.

Entered this _lQ___ day of August, 2017.

istrict Judge

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