Ever since the abolition of form complaints in patent cases (see our previous reporting here, here, and here), patent defendants have been incentivized to file motions to dismiss, and many have succeeded. But as Judge Gonzalez Rogers’ recent Order in this case reminds us, even after Twombly and Iqbal, Rule 12(b)(6) still offers a relatively lenient pleading standard and, in many cases, requires development of a factual record before dismissal can be considered.
The plaintiff in this case—the Regents of the University of California (“the Regents”)—brought suit against Boston Scientific on two patents claiming methods for treating atrial fibrillation. The Regents alleged that Boston Scientific infringed the patents by actively inducing and contributing to physicians’ direct infringement. Boston Scientific moved to dismiss, arguing that the Regents listed certain devices that did not perform any step of the claimed method and that other devices were not FDA-approved for such treatment and therefore not promoted by Boston Scientific for those uses.
The court denied the motion, finding that Boston Scientific’s arguments would be better decided after development of a factual record. With respect to contributory infringement, the Court found that the Regents had sufficiently alleged that particular devices used by physicians (including catheters and sheaths) contributed to infringement as a result of their “purposeful design, manufacture and use.” Here, the Regents referenced specific model names while also alleging that they were essential to and were part of the hardware that performed the claimed methods. In response to Boston Scientific’s argument that the devices had substantial noninfringing uses, the Court stated it could not make that determination from the documents attached to the Complaint: “This is, at best, a matter to be established with an evidentiary record at summary judgment.”
Similarly, with respect to induced infringement, the Court found sufficient the Regent’s allegations that Boston Scientific used seminars, trade shows, marketing materials, and training programs to promote the use of the devices to practice the patented methods. The Court was unpersuaded by Boston Scientific’s argument that such use was outside of FDA approval, citing cases that focus on the viewpoint of the doctors. The Court again noted that “much of [Boston Scientific’s] argument relies on matters outside the pleadings and [is] more properly suited for a determination based upon a factual record.”
Thus, while motions to dismiss may have gained traction in appropriate cases, success or failure can depend on whether the supporting facts are apparent from the face of the Complaint and its attached documents. If not, then a defendant might just have to wait for its ultimate day in court.