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United General Supply Co. Inc v. 2Nds in Building Materials Inc

United States District Court, W.D. Louisiana, Shreveport Division

February 7, 2017

UNITED GENERAL SUPPLY CO., INC.
v.
2NDS IN BUILDING MATERIALS, INC.

          HORNSBY JUDGE .

          MEMORANDUM RULING .

          S. MAURICE HICKS, JR.UNITED STATES DISTRICT JUDGE.

         Before 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 DENIED.

         I. Background.

         This 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.

         Pursuant 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. See id.

         The 155 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.

         Id., ¶ 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.

         United 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 id.

         United 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.

         II. Law and Analysis.

         A. Rule 12(b)(6) Standard.

         Motions 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 ...


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