United States District Court, D. Massachusetts
OPINION AND ORDER
GEORGE A. O'TOOLE, Jr., District Judge.
This case arises out of a patent dispute involving light-emitting diode ("LED") driver technology. Skyworks Solutions, Inc. alleges that the defendants have infringed its rights under U.S. Patent No. 7, 921, 320 ("the 320 patent"), entitled "Single Wire Interface, " relating to technology for LED drivers used in consumer electronics such as cell phones.
Defendant Kinetic Technologies HK Limited ("Kinetic HK"), a company based in Hong Kong, has moved to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). The other defendant, Kinetic Technologies, Inc. ("Kinetic U.S."), a California corporation, was previously dismissed from the case (dkt. no. 45) for lack of personal jurisdiction.
In support of its motion to dismiss, Kinetic HK submitted an affidavit declaring that Kinetic HK is incorporated and headquartered in Hong Kong, owns no property in Massachusetts, has no employees in Massachusetts, and has never done or solicited any business in Massachusetts. In opposition, Skyworks asserts that Kinetic sells the allegedly infringing component to Samsung in South Korea for use in cellular telephones, including phones Samsung sells in Massachusetts.
II. Legal Standard
In order to establish personal jurisdiction where discovery has not been conducted, a plaintiff need only make a prima facie showing that the defendant is subject to personal jurisdiction. Autogenomics, Inc. v. Oxford Gene Tech. Ltd., 566 F.3d 1012, 1016 (Fed. Cir. 2009). "[T]he pleadings and affidavits are to be construed in the light most favorable to [the plaintiff]." Id.
Determining whether specific personal jurisdiction exists requires two inquiries: whether the forum state's long arm statute authorizes extraterritorial service of process, and whether the assertion of personal jurisdiction over the absent defendant in the forum state would be consistent with constitutional requirements of due process. Id. at 1017. In a patent case, a court follows the interpretation of the long arm statute by the forum state's highest court but looks to Federal Circuit precedent in analyzing compliance with constitutional due process. Touchcom, Inc. v. Bereskin & Parr, 574 F.3d 1403, 1409-10 (Fed. Cir. 2009). In this case, Skyworks has failed to establish personal jurisdiction over Kinetic HK under either the Massachusetts Long Arm Statute, Mass. Gen. Laws ch. 233A, § 3, or under constitutional considerations.
III. Long Arm Statute
The inquiries under the Massachusetts Long Arm Statute and the due process clause often converge, but they are both necessary. Even if a court is "presented with jurisdictional facts sufficient to survive due process scrutiny, a judge would be required to decline to exercise jurisdiction if the plaintiff was unable to satisfy at least one of the statutory prerequisites." Good Hope Indus., Inc. v. Ryder Scott Co., 389 N.E.2d 76, 80 (Mass. 1979).
Skyworks argues that jurisdiction is appropriate under § 3(d) of the long arm statute:
A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's...
(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth[.]
Mass. Gen. Laws ch. 233A, § 3(d). An allegation of patent infringement may be considered a tortious injury. Systemation, Inc. v. Engel Indus., Inc., 992 F.Supp. 58, 60 (D. Mass. 1997); Hologic Inc. v. Lunar Corp., No. 95-cv-10008-REK, 1995 WL 661238, at *7 (D. Mass. Aug. 4, 1995) ("A patent infringement is not a tort in the conventional sense, but it is fairly considered a tortious injury' within the meaning of §§3(c) and 3(d)."). Skyworks has presented evidence that cell phones with the allegedly infringing component were sold in Massachusetts, but that alone is not enough to establish that Kinetic HK is responsible for infringement of Skyworks' U.S. patent. Skyworks offers no facts that Kinetic HK, whose contact ...