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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EXPRESS MOBILE, INC.,
Plaintiff, v. DREAMHOST LLC, Defendant. EXPRESS MOBILE, INC., Plaintiff, V. HOSTWAY SERVICES, INC., Defendant.
Civil Action No. 1:18-cv-01173-RGA
CivilActionNo. l:18-cv-01175-RGA
MEMORANDUM ORDER
Presently before me are Defendants' Motions to Dismiss. (C.A. 18-1173, D.I. 13; C.A. 18-1175, D.I. 13). The Parties have briefed the issues. (C.A. 18-1173, D.I. 14, 18, 24; C.A. 18- 1175, D. I. 14, 17, 23). For the reasons set out below, I will grant Defendants' motions as to past damages and willful infringement. I will deny Defendant Hostway Service Inc.' s motion as to direct infringement and Defendants' motions as to patent eligibility. Plaintiff filed these lawsuits on August 4, 2018. It alleges that Defendants infringe U.S. Patent Nos. 6,546,397 ("'397 Patent"), 7,594,168 C'168 Patent), 9,471,287, and 9,928, through their use of certain website building tools such as Wordpress or Joomla. (See C.A. 18- 1173, D.I. 10; C.A. 18-1175, D.I. 9).
When reviewing a motion to dismiss pursuant to Rule 12(b)( 6), the court must accept the complaint's factual allegations as true. See Bell At!. Corp. v. Twombly, 550 U.S. 544, 555- (2007). Rule 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Id at 555. The factual allegations do not have to be detailed, but they must provide more than labels, conclusions, or a "formulaic recitation" of the claim elements. Id ("Factual 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)."). Moreover, there must be sufficient factual matter to state a facially plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The facial plausibility standard is satisfied when the complaint's factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id ("Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." (internal quotation marks omitted)). To satisfy the Iqbal pleading standard in a patent case, "[s]pecific facts are not necessary." Disc Disease Solutions Inc. v. VGH Solutions, Inc., 888 F.3d 1256, 1260 (Fed. Cir.
- (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). The Complaint need only give defendant "fair notice of what the [infringement] claim is and the ground upon which it rests." Id. Defendant Hostway Services, Inc. ("Hostway") argues that the direct infringement claims of the 67-page First Amended Complaint should be dismissed for failure to meet the pleading standard. (C.A. 18-1175, D.I. 14 at 7-10). In three related cases, I have found that Plaintiffs essentially identical complaints are sufficient. (See C.A. 18-1176, D.I. 19; C.A. 18-1177, D.I. 26; C.A. 18-1181, D.I. 39). Hostway's argument for dismissal of Plaintiffs direct infringement
Bombardier Recreational Prod. Inc., 876 F.3d 1350, 1366 (Fed. Cir. 2017). Plaintiff avers that there is no evidence that there was anything for it to mark but does not argue that it pled compliance. (SeeC.A.18-1173,D.I.16at19-20;C.A.18-1175,D.I.·17at5-7). Atthemotion to dismiss stage, I am only concerned with the sufficiency of the claims. A claim for past damages requires pleading compliance with the marking statute--even when compliance is achieved, factually, by doing nothing at all. Thus, as Plaintiff has failed to state a claim for past damages, I will grant Defendants' motions. Defendants also argue for dismissal of half of Plaintiffs claims on the basis that the claims of the '397 and' 168 Patents are invalid under Section 101. (C.A. 18-1173, D.I. 14 at 5- 15; see also C.A. 18-1175, D.I. 14 at 14 (incorporating Section 101 argument)). Patentability under 35 U.S.C. § 101 is a threshold legal issue. Bilski, 561 U.S. at 602. Accordingly, the§ 101 inquiry is properly raised at the pleading stage if it is apparent from the face of the patent that the asserted claims are not directed to eligible subject matter. See Cleveland Clinic Found. v. True Health Diagnostics LLC, 859 F.3d 1352, 1360 (Fed. Cir. 2017), cert. denied, 138 S. Ct. 2621 (2018). This is, however, appropriate "only when there are no factual allegations that, taken as true, prevent resolving the eligibility question as a matter of law." Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121, 1125 (Fed. Cir. 2018). In response to Defendants' argument, Plaintiff identified factual allegations of inventiveness in the complaint and submitted
an expert declaration explaining inventiveness of the claims. (See C.A. 18-1173, D.I. 10 at ,-r,r
12, 13, 60, 61; C.A. 18-1173, D.I. 20 (expert declaration discussing inventiveness of the claims)). I find that these factual issues preclude a finding of invalidity on a motion to dismiss. Thus, I will deny Defendants' Section 101 motion without prejudice to Defendants raising the issue again on summary judgment.
Defendants' Motions to Dismiss (C.A. 18-1173, D.I. 13; C.A. 18-1175, D.I. 13) are GRANTED-IN-PART and DENIED-IN-PART. Plaintiff's claims for past damages and willful infringement are dismissed. Plaintiff may file an amended complaint within 14 days of the entry of this order.
Entered this J1L day of June 2019.
