AirFX, LLC v. CUSTOM CYCLE CONTROL SYSTEMS, INC
Filing
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ENTRY granting Defendant's 21 Motion to Dismiss and ORDERING the Plaintiff to file a Second Amended Complaint within fifteen (15) days of the date of this Entry. Signed by Judge Richard L. Young on 1/26/2012. (PG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
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Plaintiff,
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vs.
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CUSTOM CYCLE CONTROL SYSTEMS, )
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INC.,
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Defendant.
AirFX, LLC,
1:11-cv-803-RLY-TAB
ENTRY ON DEFENDANT’S MOTION TO DISMISS THE AMENDED
COMPLAINT OR, IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE
STATEMENT
Plaintiff, AirFX, LLC (“Plaintiff”), is the owner of U.S. Patent No. 7,559,396 B2
(the “‘396 patent”), which describes a double-acting piston pneumatic cylinder
suspension system for use on motorcycles. Plaintiff alleges that defendant, Custom Cycle
Control Systems, Inc. (“CCCS”), manufactures and/or sells a product called the
Simplified Air System that infringes the ‘396 patent. CCCS moves to dismiss Plaintiff’s
Amended Complaint under Rules 12(b)(6) and 12(b)(7) of the Federal Rules of Civil
Procedure for failure to state a claim upon which relief can be granted and for failure to
join a necessary party.
A motion to dismiss for failure to state a claim is a procedural question not
pertaining to patent law, and thus, the law of the Seventh Circuit applies. McZeal v.
Sprint Nextel Corp., 501 F.3d 1354, 1355-56 (Fed. Cir. 2007). Rule 8(a)(2) requires that
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a complaint contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” FED. R. CIV. P. 8(a)(2). The Supreme Court has interpreted this
requirement as imposing two easy-to-clear hurdles. E.E.O.C. v. Concentra Health Servs.,
Inc., 496 F.3d 773, 776 (7th Cir. 2007). “First, the complaint must describe the claim in
sufficient detail to give the defendant ‘fair notice of what the . . . claim is and the grounds
upon which it rests.’ Second, its allegations must plausibly suggest that the plaintiff has a
right to relief, raising the possibility above a ‘speculative level;’ if they do not, the
plaintiff pleads itself out of court.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S.Ct 1955, 1964, 1973 n.14 (2007) (internal citations omitted)). Applying the
standard to this case, “[i]t logically follows that a patentee need only plead facts sufficient
to place the alleged infringer on notice as to what he must defend.” McZeal, 501 F.3d at
1357. Thus, a complaint for patent infringement need only include: “(1) an allegation of
jurisdiction; (2) a statement that the plaintiff owns the patent; (3) a statement that
defendant has been infringing the patent ‘by making, selling, and using [the device]
embodying the patent’; (4) a statement that the plaintiff has given the defendant notice of
its infringement; and (5) a demand for an injunction and damages.” Id. at 1356-57 (citing
FED. R. CIV. P. Form 161 (2006)). A plaintiff asserting patent infringement need not
specify each element of the claims of the asserted patent; it is sufficient if the complaint
specifies the product accused of infringement and the means by which the patent is
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Under the current version of the Federal Rules of Civil Procedure, Form 16 cited in
McZeal is now identified as Form 18.
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allegedly infringed – i.e., direct literal infringement and direct infringement under the
doctrine of equivalents. Id.
Plaintiff’s Amended Complaint alleges that: (1) the court has jurisdiction over the
claim, (2) Plaintiff owns the ‘396 patent, (3) the CCCS product infringes that patent, (4)
Plaintiff provided notice to CCCS of the alleged infringement, and (5) Plaintiff is entitled
to damages and an injunction. (Amended Complaint ¶¶ 3, 7-11, 15-18; Amended
Complaint, Prayer for Relief). Here, CCCS complains that the Amended Complaint does
not identify which CCCS product allegedly infringes the ‘396 patent, and fails to identify
a means or theory of infringement.
The Amended Complaint defines the “CCCS product” as the Simplified Air
System. (Amended Complaint ¶ 9). Accordingly, the use of the term “CCCS product” in
Count I for patent infringement refers to CCCS’ “Simplified Air System”; thus, it is the
Simplified Air System which is the accused device. Still, the Amended Complaint
contains pleading deficiencies that concern the court. First, Plaintiff failed to identify the
means or theory of infringement under 35 U.S.C. § 271. The Amended Complaint merely
alleges that “the CCCS product infringes the ‘396 [p]atent.” (Amended Complaint ¶ 13).
Second, Plaintiff’s claim for provisional damages under 35 U.S.C. § 154(d) is at least
partially defective, because it encompasses a period of time before the patent was
assigned from the named inventor to AirFX. Thus, the Amended Complaint is defective
either because it fails to allege that the assignment included all past damages that were
allegedly incurred before Plaintiff acquired the patent, or the Amended Complaint is
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defective because it fails to include a necessary party, that is, the named inventor, who is
otherwise entitled to those past damages. Third, Plaintiff failed to attach the ‘396 patent
to the Amended Complaint; instead, he attached United States Patent No. 7,857,336 B1,
entitled Air Suspension System. The inventor of that patent, Winfield Yaple, appears to
be the Winfield Yaple who is the President of CCCS. (Compare Ex. A with Ex. B of the
Amended Complaint). Complicating matters, Plaintiff failed to respond to CCCS’ motion
to dismiss. In light of these pleading deficiencies, the court finds the Amended
Complaint fails to give CCCS fair notice of Plaintiff’s infringement claim and the
grounds upon which it rests. The court therefore GRANTS CCCS’ motion to dismiss
(Docket # 21), and ORDERS the Plaintiff to file a Second Amended Complaint within
fifteen (15) days of the date of this Entry.
SO ORDERED this 26th day of January 2012.
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RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF
United States District Court JUDGE
United States District Court
Southern District of Indiana
Southern District of Indiana
Electronic Copies to:
Robert Ryan Morishita
MORISHITA LAW FIRM, LLC
rrm@morishitalawfirm.com
David N. Oskin
CALIBER, IP, LLC
david@caliberip.com
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