United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON GETINGE AB'S MOTION TO
DENNIS SAYLOR F. DENNIS SAYLOR, IV, UNITED STATES DISTRICT
a case for patent infringement. Plaintiff Maquet
Cardiovascular LLC contends that defendants Abiomed, Inc.,
Abiomed R&D, Inc., and Abiomed Europe GmbH infringe its
U.S. Patent No. 9, 789, 238. Abiomed, Inc.
(“Abiomed”) has counterclaimed against Maquet and
third-party defendant Getinge AB for declaratory judgment of
has moved to dismiss the claim against it. It contends that
Abiomed's third-party complaint fails to state a claim
upon which relief can be granted. Alternatively, Getinge has
moved for a more definite statement as to what actions were
taken specifically by it to support the counterclaim. Getinge
also contends that this Court lacks personal jurisdiction
over it because it is a Swedish corporation with a principal
place of business in Sweden. For the reasons that follow, the
motion will be granted.
case is related to another case alleging patent infringement,
Abiomed, Inc. v. Maquet Cardiovascular LLC, No.
16-cv-10914-FDS (D. Mass.) (“Abiomed
I”). On October 17, 2017, during the pendency of
that case, the '238 patent issued. Maquet sought to add
allegations of infringement of the '238 patent in
Abiomed I, but when Abiomed objected, it agreed to
assert those claims in a separate lawsuit. Maquet accordingly
filed this action on November 22, 2017.
its answer, Abiomed included a counterclaim against Maquet
and a third-party claim against Getinge. The third-party
complaint alleges that “Counterclaim Defendants [which
it defines as Maquet and Getinge] have asserted that Abiomed
directly and indirectly infringes the '238 patent.”
(3d Pty. Compl. ¶ 7). It further alleges that
“[a]cting in concert, Counterclaim Defendants have
threatened to enforce the '238 patent and related patents
within this District by accusing Abiomed . . . of infringing
the patents and demanding that Abiomed take a license to
those patents, ” and that they have “engaged in
discussions with Abiomed . . . regarding litigation and
settlement of claims relating to the '238 patent and
related patents.” (Id. ¶ 10).
Specifically, the third-party complaint alleges that Abiomed
received a letter from Maquet asserting patent infringement,
and that Getinge employees Abraham Ronai, Gary Sufat, and
Philip Freed were involved in asserting the patents and
preliminary settlement discussions. (Id.
¶¶ 11-12, 18, 29-30 & Ex. 2).
third-party complaint also alleges that Getinge, a corporate
parent of Maquet, exercises substantial control over Maquet.
It alleges that “Getinge operates and holds itself out
to the world as one company that maintains unitary
administration, values, policies, history, [and] strategy
over its subsidiaries, including Maquet, ” which is
shown by Getinge's listing of Maquet as one of its
“Main Offices” on its website and the fact that
Maquet's website redirects to Getinge's for several
topics, including “About Us, ” “Our
History, ” “Vision & Management, ”
“Code of Conduct, ” “Ethics and Compliance,
” and “Careers.” (Id. ¶¶
13-16). Abiomed also alleges that the corporate structures of
Maquet and Getinge are deeply intertwined, in that the
companies share information-technology systems and have
access to each other's files. (Abiomed Opp. at
Furthermore, Abiomed alleges that a business organization
within Getinge named “Acute Care Therapies”
oversees several Getinge subsidiaries, including Maquet,
including determining research and development budgets,
evaluating strategies for product lines, and approving the
initiation of any legal action. (Id. at 6-7).
with respect to the '238 patent, the third-party
complaint alleges that “Getinge led the acquisition of
the patent that gave rise to the newly-issued '238 patent
and on information and belief exercises substantial rights in
the '238 patent, including by initiating, directing, and
participating in Counterclaim Defendants' efforts to
enforce the patent against Abiomed.” (3d Pty. Compl.
¶ 27). The third-party complaint further alleges that
“Getinge acquired, from Boston Scientific Corporation,
the application that led to the '238 patent, as well as
related patents, and purported to cause title in the
application and patents to be assigned to Maquet.”
(Id. ¶ 30). Abiomed also contends-in its
opposition memorandum-that Datascope, another subsidiary of
Getinge, seems to have licensed rights to the '238 patent
to another company in 2010, even though Getinge claims that
it assigned all its rights in the patent to Maquet in 2008.
(Abiomed Opp. at 4).
third-party complaint contains one count seeking declaratory
judgment of noninfringement of the '238 patent.
Standard of Review
motion to dismiss, the Court “must assume the truth of
all well-plead[ed] facts and give . . . plaintiff the benefit
of all reasonable inferences therefrom.” Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st
Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77
(1st Cir. 1999)). To survive a motion to dismiss, the
complaint must state a claim that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). That is, “[f]actual allegations must be enough
to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Id. at 555
(citations and footnote omitted). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 556). Dismissal is appropriate
if the facts as alleged do not “possess enough heft to
sho[w] that [plaintiff is] entitled to relief.”
Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84
(1st Cir.2008) (alterations in original) (quoting Clark
v. Boscher, 514 F.3d 107, 112 (1st Cir. 2008)) (internal
quotation marks omitted).
motion to dismiss contains three parts: (1) a motion to
dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a
claim upon which relief can be granted; (2) a motion to
dismiss, to strike, and/or for a more definite statement
under Fed. Rule Civ. P. 8 and 16(e)-(f) for failure to plead
conduct by Getinge; and (3) a motion to dismiss under
Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction.
Because the Court concludes that the third-party complaint
fails to state a claim against Getinge, it need not reach the
other two issues.
primarily contends that there is no actual controversy
between Abiomed and Getinge as to infringement of the
'238 patent, because Getinge does not have standing to
assert that patent against Abiomed. See 28 U.S.C.
§ 2201(a); MedImmune, Inc. v. Genentech, Inc.,
549 U.S. 118, 126-27 (2007). “Standing to sue for
patent infringement derives from the Patent Act, which
provides that ‘[a] patentee shall have remedy by civil
action for infringement of his patent.'”
Keranos, LLC v. Silicon Storage Tech., Inc., 797
F.3d 1025, 1031 (Fed. Cir. 2015) (alteration in original)
(quoting Prima Tek II, L.L.C. v. A-Roo Co., 222 F.3d
1372, 1376-77 (Fed. Cir. 2000); 35 U.S.C. § 281).
“The word ‘patentee' includes not only the
patentee to whom the patent was issued but also the
successors in title to the patentee.” 35 U.S.C. §
100(d). In ...