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AMS, LLC v. Muzzy, LLC

United States District Court, W.D. Wisconsin

March 29, 2019

AMS, LLC, Plaintiff,
v.
MUZZY, LLC, Defendant

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Plaintiff AMS, LLC, filed suit against defendant Muzzy, LLC, alleging that it infringed two of AMS's patents covering bow fishing arrow components -- U.S. Patent No. 6, 517, 453 (the “'453 patent”) and U.S. Patent No. 9, 146, 085 (the “'085 patent”). Muzzy moved to dismiss AMS's complaint for failing to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that: (1) necessary claim elements are “conspicuously absent” from the allegations of infringement, such that AMS's direct and indirect infringement claims are implausible; and (2) AMS failed to sufficiently state a claim for willful infringement. (See dkt. ##5, 6.) While Muzzy's motion to dismiss will be granted, plaintiff may have fourteen days to replead.

         OPINION

         To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Rule 12(b)(6) motions in patent cases are governed by the law of the regional circuit, rather than the Federal Circuit. In re Bill of Lading Transmission & Processing Sys. Patent Litig., 681 F.3d 1323, 1331 (Fed.Cir. 2012); Niazi v. Pressure Prod. Med. Supplies, Inc., No. 16-cv-670-jdp, 2017 WL 108114 (W.D. Wis. Jan. 11, 2017), and Palmer Hamilton, LLC v. AmTab Mfg. Corp., No. 16-cv-522-jdp, 2016 WL 6775458 (W.D. Wis. Nov. 15, 2016).

         I. Direct Infringement Claims

         As an initial matter, a plaintiff is not required to plead direct patent infringement on an element-by-element basis. Palmer Hamilton, 2016 WL 6775458, at *1. Generally, identifying the claims asserted and the accused products will be sufficient to get over the low hurdle of plausibility. Id. However, a patent plaintiff must have a “good faith basis for bringing suit in the first place, ” meaning that the plaintiff must “have conducted an element-by-element analysis of the accused instrumentality before filing a complaint.” Id. Accordingly, there may be grounds for dismissal where an element is “conspicuously absent” from a complaint or infringement is otherwise implausible on the face of the complaint and patent claims. Id. Here, Muzzy argues that AMS's complaint conspicuously lacks a necessary element from each of the two patents-in-suit.

         A. The '453 Patent

         Specifically, AMS alleges that Muzzy infringed Claim 14 of the '453 patent, either literally or under the doctrine of equivalents. (Compl. (dkt. #1) ¶ 19.) Claim 14 requires “a slide stop having a pad to absorb the impact of the slide when the slide slides back.” ('453 patent (dkt. #1-1) 6:23-24 (emphasis added).) In its complaint, AMS states that “these claim elements are satisfied by the stop and screw that accompany Muzzy's Bottle Slide, as shown below.” (Compl. (dkt. #1) ¶ 11.)

         (Image omitted)

         (Id. at 4.) While this picture plainly depicts three unidentified, disassembled parts that would appear to be part of Muzzy's Bottle Slide, the final object is not identified. More importantly, conspicuously absent from the complaint is any allegation that Muzzy's Bottle Slide also includes a pad.

         Although an element-by-element pleading is not required, a claim for literal infringement requires every limitation set forth in a claim to be found in an accused product exactly. Atlas IP, LLC v. City of Naperville, No. 15 C 10744, 2016 WL 3907029, at *3 (N.D. Ill. Jul. 19, 2016). Furthermore, a claim for infringement under the doctrine of equivalents requires that the accused product contain an equivalent for each limitation not literally satisfied by the accused product. Id. As a result, Muzzy's argument that an element of Claim 14 is conspicuously absent would appear to be valid, or at least sufficiently plausible to call into question plaintiff's ability to plead otherwise in good faith. Indeed, the absence of any affirmative assertion that a pad is present in the accused product is highlighted by the fact that AMS explicitly mentions the use of a “stop” and “screw” in Muzzy's bottle slide.

         Of course, it may very well be that Muzzy's product contains a pad, but it is reasonable to direct the plaintiff to either plead the presence of a pad or allege its equivalent is present in the accused product if for no other reason than the efficient administration of justice. Fed.R.Civ.P. 1. Accordingly, AMS will be granted leave to amend the complaint to plead the presence of a pad or its equivalent in one or more of Muzzy's products or show good cause why dismissal of its infringement claims under the ‘453 patent is not appropriate at this time.

         B. The '085 Patent

         AMS also alleges that Muzzy infringed Claim 1 of the '085 patent, either literally or under the doctrine of equivalents. (Compl. (dkt. #1) ¶ 34.) Claim 1 requires “an eye portion attached to an arm portion . . . wherein the arm portion extends from the eye portion at an offset from a line of radius of a center of the hole so that the arm portion is removed from interference.” ('085 patent (dkt. #1-2) 6:54-59 (emphasis added).) In the complaint AMS says Claim 1 requires that “when the arrow tip is in the forward position, an arm portion of the arrow barb is removed from interference with the rear edge of the arrow tip when the barb is in the forward position." (Compl. ...


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