United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO DISMISS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
LLC (“Rampage”) filed this lawsuit against Global
Graphics SE, Global Graphics Software Inc. (collectively
“Global Graphics”), and John Doe #1 alleging
three counts of patent infringement. Rampage's amended
complaint alleges that John Doe #1 directly infringed on a
patent held by Rampage (Count I), and that Global Graphics
committed induced patent infringement (Count II) and
contributory patent infringement (Count III). [ECF No. 15].
Now before the Court is Global Graphics' motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
[ECF No. 16]. For the reasons stated below, the Court grants
the motion to dismiss as to Count I, without prejudice and
with leave to amend if needed after discovery, and denies the
motion as to Counts II and III.
is the sole owner of U.S. Patent No. 9, 053, 410 (hereinafter
the “'410 Patent”), entitled “Raster
Image Processor With Printhead Profile Compensation For a
Multi-Level Digital Printing Machine.” [ECF No. 15 at
¶ 10]. Mitchell J. Bogart is listed as the
inventor. Id. This patent is for a new type
of printing technology that presents “[a] system and
method of calibration, screening, and compensation . . . for
multiple gray-level digital presses.” [ECF No. 15-1 at
1]. This new system for distributing ink from inkjet printing
presses deals with an issue known as the “Screening
Problem.” [ECF No. 15 at ¶ 23]. The
“Screening Problem” arises because
[m]ost printing software assumes you can print a perfect grid
of dots. In [practice] on an inkjet press there are often
variations between the control system's aim point for an
ink drop and where it actually lands. In addition the
interaction of the ink drops with the media may introduce
variations. . . . All these variables, in combination or
separately, may lead to changes in halftone dots' size or
shape away from the intended ideal, which in turn might lead
to artifacts and errors that are visible to the naked eye in
the finished print.
Id. at ¶ 24.
'410 Patent covers processes that offer a solution to the
Screening Problem. Id. at ¶¶ 26, 28.
Bogart's solution, known as the “Multi-Level
Screening Solution, ” “change[s] the size of the
tonal sub-ranges based upon density measurements of the
actual dot sizes for each colorant” and
“overlap[s] each tonal sub-range by a small amount, for
example two percent.” Id.
alleges that Global Graphics knew of the patent application
by March 5, 2015, perhaps due to its publication.
Id. at ¶ 47. On June 23, 2015, someone
affiliated with Rampage- the complaint does not mention
who-emailed Global Graphics and its Chief Technology Officer,
Martin Bailey, informing them of the '410 Patent, and Mr.
Bailey confirmed receipt of the email. Id. In
approximately the same time frame, Global Graphics developed
a software-based raster image processor for use with a
digital press that it sells under the mark “Harlequin
Host Renderer SDK” (hereinafter the “Accused
Product”). Id. at ¶ 14. The Accused
Product has four types of screening methods that an operator
may select: Harlequin multi-level screening, Harlequin
Dispersed Screening, Harlequin Cross Modulated, and Harlequin
Precision Screening. Id. at ¶ 15. Only the
Harlequin multi-level screening option (hereinafter the
“Accused Process”) is at issue in this case.
Rampage asserts that Global Graphics did not sell a
multi-level screening option in any of its products until
after Rampage contacted Global Graphics regarding the
“Multi-Level Screening Solution” invented by
Bogart. Id. at ¶ 28. Rampage believes that the
Harlequin multi-level screening uses processes and methods
covered in the '410 Patent, which forms the basis for the
“Multi-Level Screening Solution.” Id. at
suspects that Global Graphics then sent the Accused Product
to John Doe #1 for testing in the United States. Id.
at ¶ 17. Rampage's belief that John Doe #1 has used,
tested, or researched the Accused Product in the United
States forms the basis for Count I. Id. at
¶¶ 20- 45. Rampage's belief that John Doe #1
received the Accused Product from Global Graphics forms the
basis for Counts II and III. Id. at ¶¶
46-59. Rampage does not know the location or identity of John
Doe #1, but believes that Global Graphics does know the
location and identity of John Doe #1. Id. at
¶¶ 18-19. Rampage also does not have access to the
source code for the Accused Product, which is a software
product. Id. at ¶ 22. Without examining the
source code, Rampage cannot determine exactly how the Accused
Product's code is written, and how close it is to the
'410 Patent. Id.
filed this suit on April 10, 2016 [ECF No. 1] and then filed
an amended complaint on June 10, 2016 [ECF No. 15]. Global
Graphics filed its motion to dismiss on June 24, 2016. [ECF
No. 16]. Rampage filed an opposition on July 18, 2016. [ECF
No. 23]. The Court held a hearing on the motion to dismiss on
November 16, 2016.
STANDARD OF REVIEW
parties disagree as to what standard the Court must use to
evaluate a motion to dismiss in the patent infringement
context. The disagreement boils down to whether or not a
complaint that follows Form 18 in the abrogated Appendix of
Forms to the Federal Rules of Civil Procedure is sufficient,
or whether a complaint must follow the more stringent
requirements set forth in Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) and Bell Atlantic Corp. v.
550 U.S. 544, 555 (2007). Before December 1, 2015, Form 18 in
the Appendix of Forms provided a sufficient model complaint
for direct patent infringement despite the Twombly
and Iqbal decisions. Lyda v. CBS Corp., 838
F.3d 1331, 1337 n.2 (Fed. Cir. 2016). Form 18, however, did
not suffice for indirect patent infringement, such as induced
infringement or contributory infringement, after the
decisions in Twombly and Iqbal were issued.
In re Bill of Lading Transmission &
Processing Sys. Patent Litig., 681 F.3d 1323, 1336 (Fed.
Cir. 2012). Form 18 had only five requirements for a
complaint alleging direct patent infringement:
(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
Lyda, 838 F.3d at 1338 (quoting In re Bill of
Lading, 681 F.3d at 1334).
December 1, 2015, amendments to the Federal Rules of Civil
Procedure eliminated Rule 84 and the Appendix of Forms.
Id. at 1337 n.2. When eliminating Rule 84 and the
Appendix of Forms, the Advisory Committee explained
“[t]he abrogation of Rule 84 does not alter existing
pleading standards or otherwise change the requirements of
Civil Rule 8.” Fed.R.Civ.P. 84 (2015 Advisory Committee
Note). “[W]hile it is possible the Form 18 pleading
template may provide sufficient information to satisfy
Twombly/Iqbal, such information may not