United States District Court, W.D. Louisiana, Shreveport Division
UNITED GENERAL SUPPLY CO., INC.
2NDS IN BUILDING MATERIALS, INC.
HORNSBY JUDGE .
MEMORANDUM RULING .
MAURICE HICKS, JR.UNITED STATES DISTRICT JUDGE.
the Court is Defendant 2nds in Building Materials, Inc.'s
(“2nds”) Motion to Dismiss Count 6 of
Plaintiff's First Amended Complaint. See Record
Document 16. Count 6 relates to the alleged infringement of
U.S. Patent No. 7, 806, 155 (“the 155 Patent”).
See Record Document 13. Plaintiff United General
Supply Co., Inc. (“United General”) opposed the
Motion to Dismiss. See Record Document 18. For the
reasons set forth below, the Motion to Dismiss is
an action for patent infringement filed by United General.
See Record Document 13 (First Amended Complaint).
2nds sells and commissions the design of furniture, home
decor, and home building materials to consumers in the United
States and, more particularly, in the Western District of
Louisiana. See id., ¶ 2. 2nds does business as
Discount Building Materials & Home Decor and/or
Southeastern Salvage Home Emporium in Shreveport, Louisiana
and operates a store at 8989 Mansfield Rd., Shreveport,
Louisiana. See id.
to 35 U.S.C. § 282, the 155 Patent is presumed valid.
See id., ¶43. The 155 Patent, entitled
“TREATMENT PROCESS FOR LOGS USED IN FURNITURE
CONSTRUCTION AND FURNITURE COMPONENTS FORMED FROM SUCH
TREATED LOGS” was duly and legally issued by the United
States Patent and Trademark Office on October 5, 2010 after
full and fair examination. See id., ¶ 44.
United General is the assignee of all rights, title, and
interest in and to the 155 Patent as of June 12, 2015 and
possesses all rights of recovery under the 155 Patent,
including the right to recover damages for past infringement.
Patent covers the following process:
A process for treating wooden logs to prevent cracking and
increase durability includes the steps of cutting a
longitudinal slot along the length of the log, forming a
generally V-shaped notch by drying the log to a desired
moisture content, charring the log to a desired coloration,
bathing the log in a protective solution, and drying the log.
The slot is cut to a point less than or equal to the radius
of the log. The charring of the log can be accomplished by
the use of a blowtorch.
¶ 45 & Exhibit F, Abstract. 2nds had actual notice
of the 155 patent at least as early as March 19, 2015.
See id., ¶ 46. United General alleges that 2nds
is infringing the 155 patent under 35 U.S.C. § 271 by
importing into the United States for sale its log furniture
products, including but not limited to the “Rattan
Saddle Stool, ” “Rattan Single Rocker, ”
“Double Rocker, ” “Single Rocker, ”
and “Round Bar Stool, ” that are manufactured
using the patented process. Id., ¶ 47.
General sent three cease and desist letters to 2nds regarding
its infringement of the 155 patent. See id., ¶
49. The letters, dated March 19, 2015, April 24, 2015, and
May 15, 2015, requested a substantive response from 2nds.
See id. All three requests were ignored. See
General filed this lawsuit on June 30, 2015 and later amended
its complaint on August 24, 205. See Record
Documents 1 & 13. In its First Amended Complaint, United
General alleges six counts of patent infringement.
See Record Document 13. 2nds filed the instant
Motion to Dismiss, seeking dismissal of Count 6 on the ground
that United General fails to state a claim upon which relief
can be granted. See Record Document 16.
Law and Analysis.
Rule 12(b)(6) Standard.
to dismiss are not unique to patent law; thus, they are
evaluated under the applicable law of the regional circuit.
See Lubrizol Specialty Prod., Inc. v. Flowchem LLC,
165 F.Supp.3d 534, 537 (S.D. Tex. 2016), citing In re
Bill of Lading Transmission & Processing Sys. Patent
Litig., 681 F.3d 1323, 1331 (Fed.Cir.2012);
Addiction and Detoxification Institute LLC v.
Carpenter, 620 Fed.Appx. 934, 936 (Fed.Cir. 2015). A
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure is viewed with disfavor and is rarely
granted. See id., citing Turner v.
Pleasant, 663 F.3d 770, 775 (5th Cir.2011). The
complaint must be liberally ...