ecoNugenics, Inc. v. Bioenergy Life Science, Inc. et al

Filing 52

ORDER: (1) Bioenergy's motion to dismiss [Docket No. 27 ] is GRANTED. (2) ecoNugenics's motion for partial summary judgment [Docket No. 33 ] is DENIED. (3) ecoNugenics's claims against Bioenergy are DISMISSED WITHOUT PREJUDICE. (Written Opinion) Signed by Judge Joan N. Ericksen on 9/4/2018. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ecoNugenics, Inc.,
Plaintiff,
v.

Case No. 17-cv-5378 (JNE/DTS)
ORDER

Bioenergy Life Science, Inc., Chengzhi Life
Sciences Company, Ltd., and Zhejiang Gold
Kropn Biotechnology Co., Ltd.,
Defendants.

Steven B. Kelber, The Kelber Law Group, and Taylor D. Sztainer, Moss & Barnett, PA,
appeared for ecoNugenics, Inc.
David P. Swenson and John A. Cotter, Larkin Hoffman Daly & Lindgren Ltd., appeared
for Bioenergy Life Science, Inc.

This is an action for patent infringement brought by ecoNugenics, Inc., against
Bioenergy Life Science, Inc. (“Bioenergy”), Chengzhi Life Sciences Company, Ltd.
(“Chengzhi”), and Zhejiang Gold Kropn Biotechnology Co., Ltd. (“Gold Kropn”).
ecoNugenics alleged that Bioenergy, Chengzhi, and Gold Kropn infringe U.S. Patent No.
6,462,029; U.S. Patent No. 7,026,302; U.S. Patent No. 7,452,871; U.S. Patent No.
8,426,567; U.S. Patent No. 9,427,449; and U.S. Patent No. 9,649,329. Bioenergy moved
to dismiss ecoNugenics’s claims against it for failure to state a claim upon which relief
can be granted. See Fed. R. Civ. P. 12(b)(6). It argued that the asserted patents are
invalid because they do not claim patent-eligible subject matter, see 35 U.S.C. § 101
(2012), and that ecoNugenics failed to plausibly plead infringement. ecoNugenics

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opposed Bioenergy’s motion. ecoNugenics also filed a motion for partial summary
judgment, requesting a finding that the claims of the asserted patents are directed to
patent-eligible subject matter. For the reasons set forth below, the Court grants
Bioenergy’s motion and denies ecoNugenics’s motion.
I.
A.

BACKGROUND

ecoNugenics’s complaint
A summary of ecoNugenics’s complaint follows. ecoNugenics is “engaged in the

manufacture, importation and sale of products for support of health and nutrition
comprising, inter alia, Modified Citrus Pectin (or MCP).” (Compl. ¶ 2.) It owns the
asserted patents. (Id. ¶¶ 2, 7-12.) “Modified Citrus Pectin . . . has been in use for many
years. ecoNugenics’ patents disclose its discoveries that the MCP product, typically
made from citrus peels and subjected to enzymatic degradation to reduce its molecular
weight, may be used to address various ailments.” (Id. ¶ 14.) “ecoNugenics has engaged
in the marketing and sale of its own MCP products. This MCP is made to exacting
standards, and is sold only by ecoNugenics to customers inside and outside of the United
States of America.” (Id. ¶ 15.)
Gold Kropn manufactures MCP. (Id. ¶ 5.) Chengzhi buys MCP in China from
Gold Kropn and imports it into the United States for sale by Bioenergy, which is wholly
owned by Chengzhi. (Id. ¶ 3-5.) “Sales by [Bioenergy] of MCP to customers of
ecoNugenics inside the United States impact not only ecoNugenics[’s] sales volume and
market share, but also the company’s reputation.” (Id. ¶ 16.) Bioenergy’s “MCP product
is of an inferior quality relative to that of ecoNugenics, but customers are often unable to
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tell why the product is inferior, and so regard the products generally as inferior.” (Id.)
ecoNugenics elaborated:
Specifically, while the MCP offered by ecoNugenics,
often under the mark Pecta-Sol® or Pecta-SolC®, is of a high
quality offering a very narrow molecular weight distribution
at about 10 kDa, the MCP offered by Gold Kropn/Chengzhi/
[Bioenergy] is not similarly refined. On comparative analysis
using the same testing protocol as that used for Pecta-Sol®,
results for the MCP offered by the Defendants showed their
product to have a molecular weight of 24.1 kDa. The MCP
product produced by Gold Kropn and advertised and sold by
Chengzhi and [Bioenergy] is described on Gold Kropn’s
website as having a molecular weight in the range of 5000 –
22000 Da. Comparative testing by qualified laboratories
confirmed that, in fact, while the sample from the Defendants
might be partially de-esterified citrus pectin it is “certainly
not MCP with the ability to enter mammalian circulation and
bind heavy metals and galectin-3 in the blood.”
(Id. ¶ 17.)
“Throughout 2015, Gold Kropn indicated through public advertisement and by
presentation at trade shows that it would begin to sell its MCP for the purposes recited in
the claims of the ecoNugenics Patents.” (Id. ¶ 18.) After discussions with ecoNugenics,
Gold Kropn agreed not to market MCP in the United States in a manner “that would
suggest the methods of use claimed in the ecoNugenics Patents. (Id.)
In 2016, Bioenergy’s sales manager asked ecoNugenics about acquiring
ecoNugenics’s patent portfolio. (Id. ¶ 19.) At that time, Bioenergy “did not make,
import, or offer for sale any MCP or any product comprising MCP.” (Id.)
Later, Bioenergy contacted customers of ecoNugenics that had purchased MCP
products. (Id. ¶ 20.) It advertised its MCP product, sold under the name “ZyPect,” as

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capable of being “administered to humans to detoxify toxins and heavy metals, provide
immune support, reduce inflammation, [and] reduce fibroses.” (Id. ¶ 21.) In general,
Bioenergy promoted administration of its MCP product “to humans for the purposes
recited in the ecoNugenics patents.” (Id.)
In September 2017, Bioenergy displayed an advertisement for ZyPect at a trade
show in the United States. (Id. ¶ 26.) Bioenergy promoted the product “for the
therapeutic treatments claimed in the ecoNugenics[] patents.” (Id.)
“MCP does not require a prescription or a Doctor’s support.” (Id. ¶ 27.)
Individuals who have read Bioenergy’s promotional material “have purchased the inferior
MCP made available by [Bioenergy] and administered it to themselves for the reasons set
forth: detoxification of toxins and heavy metals, enhancing immune support, reducing
inflammation in patients in need of same, reducing fibrosis in patients in need of same,
and the like.” (Id.) The “individuals infringe the claims of the ecoNugenics[] patents
with the inducement and contribution of [Bioenergy], Chengzhi, and Gold Kropn.” (Id.)
Bioenergy, Chengzhi, and Gold Kropn import, offer for sale, and sell
“compositions comprising MCP” with recommendations that the product be administered
to individuals “to treat diseases and conditions associated with toxic metals,
environmental toxins and the like,” (Id. ¶ 28); “to treat diseases and conditions associated
with poisonous metals, environmental toxins, supporting weight management to prevent
obesity, and the like,” (Id. ¶ 30); “to treat diseases and conditions associated with
poisonous metals, environmental toxins, and the like,” (Id. ¶ 32); “to treat diseases and
conditions associated with an immune system in need of support, and the like,” (Id. ¶ 34);
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“for Galectin-3 modulation and to reduce inflammation in those requiring such inhibition
of inflammation, and the like,” (Id. ¶ 36); and “to modulate Galectin-3 and to inhibit
formation of fibroses and reduce fibrosis in those individuals requiring inhibition or
reduction of fibrosis,” (Id. ¶ 38). Bioenergy, Chengzhi, and Gold Kropn “were made
aware of their ongoing inducement to infringe, contributory infringement, and
infringement” of the asserted patents and were offered the opportunity to resolve the
issues of infringement “on a reasonable basis.” (Id. ¶¶ 29, 31, 33, 35, 37, 39.)
Bioenergy, Chengzhi, and Gold Kropn declined the offer and advertised their MCP
product for purposes recited in the asserted patents’ claims. (Id.) Bioenergy, Chengzhi,
and Gold Kropn “have infringed and induced infringement of the [asserted patents,] and
that ongoing infringement is willful.” (Id.)
B.

The patents in suit
1.

The ’029 Patent, the ’302 Patent, and the ’871 Patent

The ’302 Patent was issued from a continuation of the application that was issued
as the ’029 Patent. The ’871 Patent was issued from a continuation of the application that
was issued as the ’302 Patent.
The ’029 Patent, the ’302 Patent, and the ’871 Patent are titled “Compositions and
methods for treating mammals with modified alginates and modified pectins.” The
abstract of the ’029 Patent states:
A modified alginate and/or modified pectin
composition for preventing and/or treating diseases and/or
conditions caused by circulating agents such as poisonous
heavy metals, environmental toxins, calcium and cholesterol,
is provided. The composition includes a modified alginate
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having a molecular weight of no more than 40,000 daltons
and/or a modified pectin having a molecular weight of no
more than 40,000 daltons. The method involves orally or
intravenously administering the modified alginate and/or
modified pectin composition, alone or with excipients.
The abstracts of the ’302 Patent and the ’871 Patent add “and method” after “modified
pectin composition” and are otherwise essentially the same as the ’029 Patent’s abstract.
The ’029 Patent contains 17 claims. Claim 8 is representative of the claims that
require modified pectin:
8. A method of treating or preventing poisoning in a mammal
which is caused by circulation in the blood of said mammal of
a poison selected from the group consisting of toxic metals,
environmental toxins and mixtures thereof, comprising
administering to a mammal in need of same an effective
amount of modified pectin having a molecular weight of no
more than 40,000 daltons, and obtained by hydrolysis or
enzymatic degradation of pectin, in an amount to effectively
bind said poison.
The ’302 Patent contains five claims. Claim 1 is the only independent claim:
1. A method of treating a condition or disease mediated by an
agent selected from the group consisting of a poisonous
metal, an environmental toxin and calcium circulating in the
blood, the disease or condition being selected from the group
consisting of blood poisoning, arteriosclerosis,
atherosclerosis, calcinosis, dermatomytosis, obesity,
hypercholesterolima, and diabetes, the method comprising
administering to a mammal in need of same an effective
amount of alginate comprised of a mixture of
polymannuronic acid with galactic linkages at the 1e–4e-diequatorial position and polyguluronic acid with glycosidic
linkages at the 1a–4a-di-axial position having a molecular
weight of no more than 40,000 daltons, in an amount to
effectively bind said agent.

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Claim 2, which depends from claim 1, recites that “said condition is metal poisoning, and
said agent is a poisonous heavy metal.” Claim 3, which depends from claim 2, recites a
list from which “said heavy metal” is selected. Claim 4, which depends from claim 3,
recites that “administration of said alginate is accompanied by administration of pectin
comprised of partially esterified polymers of galacturonic acid having a molecular weight
of no more than 40,000 daltons.”
The ’871 Patent contains four claims. Claim 1 is the sole independent claim:
1. A method of treating a condition or disease mediated by an
agent selected from the group consisting of a poisonous
metal, an environmental toxin and calcium circulating in the
blood, the disease or condition being selected from the group
consisting of blood poisoning, calcinosis, and
dermatomyositis, the method comprising administering to a
mammal in need of same an effective amount of pectin
comprised of partially esterified polymers of galacturonic
acid having a molecular weight of no more than 40,000
daltons, in an amount to effectively bind said agent.
2.

The ’567 Patent

The ’567 Patent is titled “Method for enhancing mammalian immunological
function.” Its abstract states:
Low molecular weight modified pectin, particularly
modified citrus pectin (MCP), and/or low molecular weight
modified alginate is useful in a composition for stimulating
the immune response of a mammal, particularly a human.
Modified pectin and/or modified alginate is administered in a
composition in an amount sufficient to modulate, support,
enhance or extend an immune response, particularly to an
individual having an inadequate or reduced immune function.
Stimulation of an immune response is evidenced by
stimulation of cell-mediated immune function, humoral
immune function, phagocytic function of mononuclear
macrophages, and NK cell activity. The composition also

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may comprise well known pharmacologically acceptable
agents, such as sulfured amino acids, cilantro, garlic,
minerals, and herbs.
The ’567 Patent contains 28 claims. Claim 1 is the only independent claim:
1. A method of stimulating an immune response in a
mammal, comprising selecting a mammal exhibiting an
inadequate or reduced immune function characterized by at
least one of a cell-mediated immunity below average in said
mammal, a humoral immunity below average in said
mammal, phagocyte mononuclear macrophage function
below average in said mammal or NK cell activity below
average in said mammal, and administering to said mammal a
composition comprising an agent effective to stimulate an
immune response in said mammal, wherein said agent
consists of a modified pectin, a modified alginate, or a
combination of a modified pectin and a modified alginate,
where the modified alginate or modified pectin has an
average molecular weight of 40,000 daltons or less, where the
modified alginate or modified pectin is present in an amount
effective to stimulate an immune response in said mammal.
3.

The ’449 Patent and the ’329 Patent

The ’449 Patent was issued from a continuation-in-part of the application that was
issued as the ’567 Patent. The ’329 Patent was issued from a continuation-in-part of the
application that was issued as the ’449 Patent. The ’449 Patent and the ’329 Patent are
titled “Binding of galectin-3 by low molecular weight pectin.” Each contains two claims.
The claims of the ’449 Patent are:
1. A method of treating a mammal which benefits from a
reduction in available circulating galectin-3, comprising the
steps of:
a) Selecting a mammal in need of at least one of inhibition or
reduction of inflammation, and
b) Administering to said mammal an amount of modified
citrus pectin of molecular weight of 3,000-13,000 Daltons, in
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an amount of 10-750 mg/kg/day, for a period of time
sufficient such that said mammal exhibits a reduction in
active galectin-3 levels in said mammal and thereby inhibit in
said mammal said inflammation or thereby reduce it.
2. A method of treating a mammal which benefits from a
reduction in available galectin-3, comprising the steps of:
a) Selecting a mammal in need of at least one of inhibition
and reduction of inflammation, and
b) administering to said mammal an amount of modified
citrus pectin of low molecular weight of 10,000-20,000
Daltons, in an amount of 5-1,500 mg/kg/day, for a period of
time sufficient for said mammal to exhibit a reduction in
active galectin-3 levels in said mammal and thereby inhibit in
said mammal said inflammation or thereby reduce it.
The claims of the ’329 Patent are:
1. A method of treating a mammal which benefits from a
reduction in available circulating galectin-3, comprising the
steps of:
a) Selecting a mammal in need of at least one of inhibition or
reduction of formation of fibroses, and
b) Administering to said mammal an amount of modified
citrus pectin of molecular weight of 3,000-13,000 Daltons, in
an amount of 10-750 mg/kg/day, for a period of time
sufficient such that said mammal exhibits a reduction in
active galectin-3 levels in said mammal and thereby inhibit in
said mammal formation of fibroses or thereby reduce
formation of fibroses in said mammal.
2. A method of treating a mammal which benefits from a
reduction in available galectin-3, comprising the steps of:
a) Selecting a mammal in need of at least one of inhibition or
reduction of the formation of fibroses, and
b) Administering to said mammal an amount of modified
citrus pectin of low molecular weight of 10,000-20,000
Daltons, in an amount of 5-1,500 mg/kg/day, for a period of
time sufficient for said mammal to exhibit a reduction in
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active galectin-3 levels in said mammal and thereby inhibit in
said mammal formation of fibroses or thereby reduce
formation of fibroses in said mammal.
II.
A.

DISCUSSION

Bioenergy’s motion
“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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A plaintiff satisfies this requirement by “plead[ing] factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id. “When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Id. at 679. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678. “The court may consider the pleadings themselves, materials
embraced by the pleadings, exhibits attached to the pleadings, and matters of public
record.” Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010). “Documents
necessarily embraced by the pleadings include ‘documents whose contents are alleged in
a complaint and whose authenticity no party questions, but which are not physically

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attached to the pleading.’” Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th
Cir. 2012) (quoting Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th Cir. 2003)).
ecoNugenics filed a single memorandum in support of its motion for partial
summary judgment and its opposition to Bioenergy’s motion to dismiss. Insofar as
matters outside the pleadings were presented by ecoNugenics to oppose Bioenergy’s
motion, the Court excludes the matters outside the pleadings and considers Bioenergy’s
motion under Rule 12(b)(6). See Fed. R. Civ. P. 12(d).
1.

Infringement

Bioenergy asserted that ecoNugenics failed to state a plausible claim of patent
infringement. It maintained that ecoNugenics admitted that Bioenergy’s MCP does not
infringe and that ecoNugenics set forth no plausible claims of direct, induced, or
contributory infringement.
Direct infringement
“Except as otherwise provided in this title, whoever without authority makes, uses,
offers to sell, or sells any patented invention, within the United States or imports into the
United States any patented invention during the term of the patent therefor, infringes the
patent.” 35 U.S.C. § 271(a) (2012). “Direct infringement under § 271(a) occurs where
all steps of a claimed method are performed by or attributable to a single entity.” Nalco
Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1351 (Fed. Cir. 2018) (quoting Akamai Techs.,
Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1022 (Fed. Cir. 2015) (en banc)).
ecoNugenics failed to state a claim of direct infringement against Bioenergy.
Claim 8 of the ’029 Patent, a representative claim, claims “[a] method of treating or
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preventing poisoning in a mammal which is caused by circulation in the blood of said
mammal of a poison . . . comprising administering to a mammal in need of same an
effective amount of modified pectin . . . in an amount to effectively bind said poison.”
Claim 4 of the ’302 Patent claims a method of treating metal poisoning mediated by a
poisonous heavy metal circulating in the blood. Claim 1 of the ’871 Patent claims “[a]
method of treating a condition or disease mediated by an agent selected from the group
consisting of a poisonous metal, an environmental toxin and calcium circulating in the
blood.” The method “compris[es] administering to a mammal in need of same an
effective amount of pectin comprised of partially esterified polymers of galacturonic acid
having a molecular weight of no more than 40,000 daltons, in an amount to effectively
bind said agent.” Claim 1 of the ’567 Patent claims a method of stimulating an immune
response in a mammal. The claims of the ’449 Patent and of the ’329 Patent are
addressed to administering modified citrus pectin to a mammal to reduce active galectin3 levels. As noted above, ecoNugenics alleged that “[c]omparative testing by qualified
laboratories confirmed that, in fact, while the sample from the Defendants might be
partially de-esterified citrus pectin it is ‘certainly not MCP with the ability to enter
mammalian circulation and bind heavy metals and galectin-3 in the blood.’” (Compl.
¶ 17.) The allegation that the sample of Bioenergy’s product that was tested is not MCP
with the ability to enter mammalian circulation and bind heavy metals and galectin-3 in
the blood renders ecoNugenics’s infringement claims implausible.

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In addition, the asserted patents recite administration of modified pectin.
ecoNugenics alleged that the purchasers of Bioenergy’s product administer the product to
themselves:
MCP does not require a prescription or a Doctor’s
support. Accordingly, there is no restriction on those who
have read the promotional material circulated by [Bioenergy],
Chengzhi, and Gold Kropn from doing exactly as suggested.
Such individuals have purchased the inferior MCP made
available by [Bioenergy] and administered it to themselves
for the reasons set forth: detoxification of toxins and heavy
metals, enhancing immune support, reducing inflammation in
patients in need of same, reducing fibrosis in patients in need
of same, and the like. These individuals infringe the claims
of the ecoNugenics’ patents with the inducement and
contribution of [Bioenergy], Chengzhi, and Gold Kropn.
(Id. ¶ 27.)
The Court grants Bioenergy’s motion to dismiss insofar as Bioenergy moved to
dismiss ecoNugenics’s claims of direct infringement against Bioenergy.
Induced infringement
“Whoever actively induces infringement of a patent shall be liable as an
infringer.” 35 U.S.C. § 271(b). “[D]irect infringement is a necessary predicate for a
finding of induced infringement in the usual patent infringement case. It also ‘must be
established that the defendant possessed specific intent to encourage another’s
infringement and not merely that the defendant had knowledge of the acts alleged to
constitute inducement.’ Circumstantial evidence can support a finding of specific intent
to induce infringement.” Vanda Pharm. Inc. v. W.-Ward Pharm. Int’l Ltd., 887 F.3d
1117, 1129 (Fed. Cir. 2018) (citations omitted). “Section 271(b), on inducement, does

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not contain the ‘substantial noninfringing use’ restriction of section 271(c), on
contributory infringement.” Sanofi v. Watson Labs. Inc., 875 F.3d 636, 646 (Fed. Cir.
2017).
ecoNugenics’s allegation that the sample of Bioenergy’s product that was tested is
not MCP with the ability to enter mammalian circulation and bind heavy metals and
galectin-3 in the blood renders ecoNugenics’s claims of direct infringement implausible.
Having failed to plausibly allege induced infringement’s necessary predicate,
ecoNugenics failed to plausibly allege its claims of induced infringement against
Bioenergy. The Court grants Bioenergy’s motion to dismiss insofar as Bioenergy moved
to dismiss ecoNugenics’s claims of induced infringement against Bioenergy.
Contributory infringement
“Whoever offers to sell or sells within the United States or imports into the United
States a component of a patented machine, manufacture, combination or composition, or
a material or apparatus for use in practicing a patented process, constituting a material
part of the invention, knowing the same to be especially made or especially adapted for
use in an infringement of such patent, and not a staple article or commodity of commerce
suitable for substantial noninfringing use, shall be liable as a contributory infringer.” 35
U.S.C. § 271(c). There can be no contributory infringement without an underlying act of
direct infringement. Nalco, 883 F.3d at 1355. “‘[C]ontributory infringement requires
knowledge of the patent in suit and knowledge of patent infringement.’ ‘[C]ontributory
infringement requires “only proof of a defendant’s knowledge, not intent, that his activity
cause[s] infringement.”’” Id. at 1356-57 (alterations in original) (citation omitted). “A
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substantial noninfringing use is any use that is ‘not unusual, far-fetched, illusory,
impractical, occasional, aberrant, or experimental.’ ‘For purposes of contributory
infringement, the inquiry focuses on whether the accused products can be used for
purposes other than infringement.’” Id. at 1357 (citation omitted).
ecoNugenics’s allegation that the sample of Bioenergy’s product that was tested is
not MCP with the ability to enter mammalian circulation and bind heavy metals and
galectin-3 in the blood renders ecoNugenics’s claims of direct infringement implausible.
Having failed to plausibly allege direct infringement, ecoNugenics failed to plausibly
allege its claims of contributory infringement against Bioenergy. In addition,
ecoNugenics failed to plausibly allege that there are no substantial noninfringing uses of
Bioenergy’s product. Cf. id. (concluding plaintiff adequately alleged no substantial
noninfringing use). ecoNugenics alleged that MCP “has been in use for many years,”
(Compl. ¶ 14), and Bioenergy promoted ZyPect for many uses beyond those addressed in
the asserted patents. The Court grants Bioenergy’s motion to dismiss insofar as
Bioenergy moved to dismiss ecoNugenics’s claims of contributory infringement against
Bioenergy.
2.

Patent-eligible subject matter

Bioenergy moved to dismiss, arguing that the asserted patents do not claim patenteligible subject matter. Having concluded that ecoNugenics failed to plausibly plead
infringement claims against Bioenergy, the Court declines to address Bioenergy’s
assertion that the patents do not claim patent-eligible subject matter.

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B.

ecoNugenics’s motion
ecoNugenics moved for partial summary judgment, requesting a finding that the

claims of the asserted patents are directed to patent-eligible subject matter. The Court
denies the motion. See Toben v. Bridgestone Retail Operations, LLC, 751 F.3d 888, 894
(8th Cir. 2014) (“As a general rule, summary judgment is proper ‘only after the
nonmovant has had adequate time for discovery.’”).
III.

CONCLUSION

Because ecoNugenics failed to plead plausible claims of patent infringement, the
Court grants Bioenergy’s motion. The Court dismisses ecoNugenics’s claims against
Bioenergy without prejudice. See Orr v. Clements, 688 F.3d 463, 465 (8th Cir. 2012)
(“Although there is a presumption that a dismissal under Rule 12(b)(6) is a judgment on
the merits made with prejudice, such a dismissal can be rendered without prejudice if the
court so specifies.” (citation omitted)). The Court denies ecoNugenics’s motion.
Based on the files, records, and proceedings herein, and for the reasons stated
above, IT IS ORDERED THAT:
1.

Bioenergy’s motion to dismiss [Docket No. 27] is GRANTED.

2.

ecoNugenics’s motion for partial summary judgment [Docket No. 33] is
DENIED.

3.

ecoNugenics’s claims against Bioenergy are DISMISSED WITHOUT
PREJUDICE.

Dated: September 4, 2018
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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