AIR VENT, INC. v. OWENS CORNING CORPORATION
Filing
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MEMORANDUM OPINION AND ORDER denying 45 Motion to Dismiss Count Three of Plaintiff's Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). Signed by Judge Terrence F. McVerry on 10/28/2011. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AIR VENT, INC.,
Plaintiff,
v.
OWENS CORNING CORPORATION,
Defendant.
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02: 10-cv-01699
MEMORANDUM OPINION AND ORDER
Pending before the Court is DEFENDANT‟S MOTION TO DISMISS COUNT THREE
OF PLAINTIFF‟S AMENDED COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL
PROCEDURE 12(b)(6) (Document No. 45). The motion has been thoroughly briefed by the
parties (Document Nos. 46, 53, 57, 60 and 63) and is ripe for disposition.
Plaintiff Air Vent, Inc. (“Air Vent”) has alleged a variety of patent infringement claims
against Owens Corning Corporation (“Owens Corning”).
In a nutshell, Count One and Two of
the Amended Complaint allege that Owens Corning‟s VentSure 4-Foot Strip Heat and Moisture
Ridge Vent product directly infringes two of Air Vent‟s patents: United States Patent Nos.
6,299,528 (“the „528 Patent”), entitled “End-Ventilating Adjustable Pitch Arcuate Roof
Ventilator”; and 6,482,084 (“the „084 Patent”), entitled “End-Ventilating Adjustable Pitch
Arcuate Roof Ventilator.”
Count Three of the Amended Complaint alleges that the Owens Corning product also
infringes under a single theory of infringement - inducement of infringement - a third patent
owned by Air Vent, United States Patent No. 6,793,574 (“the „574 Patent), entitled “Vent With
Presecured Mechanical Fasteners.” Specifically, Air Vent avers that Owens Corning encourages
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and induces purchasers and/or users of the accused VentSure product to install the product in an
allegedly infringing manner through its internet advertising and installation instructions - namely
that “[t]he VentSure Product also incorporates tubular passageways for presecuring nails or other
fasteners . . . and is sold together with special nails provided with the product that are designed to
friction fit in the tubular passageways to presecure the nails in the VentSure product prior to
installation on a roof.” Amended Complaint, Paragraph 11.
Defendant moves for dismissal of only Count Three of the Amended Complaint.
Standard of Review
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) challenges the legal sufficiently
of the complaint filed by Plaintiff. The United States Supreme Court has held that “[a] plaintiff‟s
obligation to provide the „grounds‟ of his „entitle[ment] to relief‟ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (207) (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)) (alterations in original).
The Court must accept as true all well-pleaded facts and allegations, and must draw all
reasonable inferences therefrom in favor of the plaintiff. However, as the Supreme Court made
clear in Twombly, the “factual allegations must be enough to raise a right to relief above the
speculative level.” Id. The Supreme Court has subsequently broadened the scope of this
requirement, stating that only a complaint that states a plausible claim for relief survives a
motion to dismiss.” Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1950 (2009) (emphasis added).
Thus, after Iqbal, a district court must conduct a two-part analysis when presented with a
motion to dismiss for failure to state a claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210
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(3d Cir. 2009). First, the Court must separate the factual and legal elements of the claim. Id.
Although the Court “must accept all of the complaint‟s well-pleaded facts as true, [it] may
disregard any legal conclusions.” Id. at 210-211. Second, the Court “must then determine
whether the facts alleged in the complaint are sufficient to show that the plaintiff has a „plausible
claim for relief.‟ In other words, a complaint must do more than allege the plaintiff‟s entitlement
to relief. A complaint has to „show‟ such an entitlement with its facts.” Id. at 211 (citing Iqbal
129 S. Ct. at 1949). The determination for “plausibility” will be “„a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.‟” Id. at 211
(quoting Iqbal 129 S. Ct. at 1950).
As a result, “pleading standards have seemingly shifted from simple notice pleading to a
more heightened form of pleading, requiring a plaintiff to plead more than the possibility of
relief to survive a motion to dismiss.” Id. at 211. That is, “all civil complaints must now set out
„sufficient factual matter‟ to show that the claim is facially plausible. This then „allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.‟” Id. at
210 (quoting Iqbal, 129 S. Ct. at 1948).
However, nothing in Twombly or Iqbal changed the other pleading standards for a motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and the requirements of Fed. R. Civ. P. 8 must
still be met. See Phillips v. Co. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal citations
omitted). Fed. R. Civ. P. 8 requires a showing, rather than a blanket assertion, of entitlement to
relief, and “contemplates the statement of circumstances, occurrences, and events in support of
the claim presented and does not authorize a pleader‟s bare averment that he wants relief and is
entitled to it.” Twombly, 550 U.S. at 555 n.3 (internal citations and quotations omitted).
Additionally, the Supreme Court did not abolish the Fed. R. Civ. P. 12(b)(6) requirement that
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“the facts must be taken as true and a complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will ultimately prevail on those merits.”
Phillips, 515 F.3d at 231(citing Twombly, 550 U.S. at 553). The “plausibility” standard does not
become a “probability” standard in complex cases. West Penn Allegheny Health System, Inc. v.
UPMC, 627 F.3d 85, 98 (3d Cir. 2010).
Legal Analysis
Defendant argues that Count Three of the Amended Complaint should be dismissed as
the Amended Complaint does not contain sufficient factual averments for a plausible claim as to
specific intent or active inducement. However, the Court finds that Paragraphs 11 and 12 of the
Amended Complaint contain sufficient factual averments for a plausible claim as to specific
intent or active inducement. For example, Paragraph 11 states that the VentSure Product
incorporates tubular passageways for presecuring nails or other fasteners as described and
claimed in the „574 Patent and is sold together with special nails that are designed to friction fit
in the tubular passageways to presecure the nails in the VentSure Product prior to its installation
on a roof. Paragraph 12 avers, inter alia, that Owens Corning intends that the purchasers and/or
users of its VentSure Product first presecure the nails sold with the product and that Owens
Corning encourages and induces the purchasers and/or users of the VentSure Product to
presecure the nails while knowing that their actions constitute infringement of the „574 Patent.
Therefore, the Court concludes that Air Vent has stated a claim for relief for inducement of
infringement which survives a motion to dismiss. The Court, of course, makes no judgment as to
whether Air Vent will succeed on the merits. That awaits another day.
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Accordingly, the Motion to Dismiss Count Three of the Amended Complaint will be denied.
Defendant shall file an Answer to Count Three of the Amended Complaint on or before
November 14, 2011.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AIR VENT, INC.,
Plaintiff,
v.
OWENS CORNING CORPORATION,
Defendant.
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)
)
)
)
)
)
)
02: 10-cv-01699
ORDER OF COURT
AND NOW, this 28th day of October, 2011, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED and DECREED that
DEFENDANTS‟ MOTION TO DISMISS PLAINTIFF‟S AMENDED COMPLAINT
PURSUANT TO FED. R. CIV. P. 12(b)(6) (Document No. 37) is DENIED.
Defendant shall file an Answer to Count 3 of the Amended Complaint on or before
November 14, 2011.
BY THE COURT:
s/Terrence F. McVerry
United States District Judge
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cc:
Dariush Keyhani , Esquire
Lippes Mathias Wexler Friedman LLP
Email: dkeyhani@meredithkeyhani.com
Katherine E. Koop, Esquire
Tucker Arensberg
Email: KKoop@tuckerlaw.com
Sidney R. Bresnick, Esquire
Meredith & Keyhani, PLLC
Email: sbresnick@meredithkeyhani.com
Eric G. Soller, Esquire
Pietragallo, Gordon, Alfano, Bosick & Raspanit, LLP
Email: egs@pbandg.com
Georgia E. Yanchar, Esquire
Calfee, Halter & Griswold LLP
Email: gyanchar@calfee.com
Jennifer B. Wick, Esquire
Calfee, Halter & Griswold, LLP
Email: jwick@calfee.com
Nenad Pejic, Esquire
Calfee, Halter & Griswold
Email: npejic@calfee.com
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