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Maquet Cardiovascular LLC v. Abiomed, Inc.

United States District Court, D. Massachusetts

September 4, 2018

MAQUET CARDIOVASCULAR LLC,, Plaintiff/Counterdefendant,
v.
ABIOMED, INC. Defendant/Counterclaimant,
v.
ABIOMED R&D, INC. and ABIOMED EUROPE GMBH,, Defendants,
v.
GETINGE AB, Third-Party Defendant.

          MEMORANDUM AND ORDER ON GETINGE AB'S MOTION TO DISMISS

          F. DENNIS SAYLOR F. DENNIS SAYLOR, IV, UNITED STATES DISTRICT JUDGE

         This is 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 noninfringement.

         Getinge 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.

         I. Background

         This 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.

         With 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).

         The 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 6).[1] 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).

         Specifically 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).[2]

         The third-party complaint contains one count seeking declaratory judgment of noninfringement of the '238 patent.

         II. Standard of Review

         On a 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).

         III. Analysis

         Getinge's 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.

         Getinge 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 ...


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