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Patent Licensing and Investment Company, LLC v. Green Jets Incorporated

November 10, 2011

PATENT LICENSING AND INVESTMENT COMPANY, LLC, PLAINTIFF,
v.
GREEN JETS INCORPORATED, DEFENDANT.



The opinion of the court was delivered by: Kenneth A. Marra United States District Court

OPINION AND ORDER

THIS CAUSE comes before the Court upon Plaintiff's Motion to Dismiss (DE 47), filed on April 29, 2011. The motion is now fully briefed and is ripe for review. The Court has carefully considered the motion and is otherwise fully advised in the premises.

I. Background

This matter arises out of a August 24, 2010, Complaint for Patent Infringement filed by Plaintiff Patent Licensing and Investment Company, LLC ("PLIC"), against Defendant Green Jets Incorporated ("Green Jets") in the Eastern District of Virginia (DE 1). The Complaint seeks injunctive relief for alleged acts of patent infringement of United States Patent 6,711,548. See DE 1 at ¶ 2. On February 2, 2011, Green Jets filed a responsive pleading that asserted six affirmative defenses and two counterclaims (DE 11). PLIC subsequently filed a Motion to Dismiss (DE 14) Green Jets' Second, Third, Fourth, and Sixth Affirmative Defenses pursuant to Federal Rule of Civil Procedure 12(f), and the second counterclaim for declaratory judgment of invalidity pursuant to Rule 12(b)(6).

On March 7, 2011, Green Jets filed a Motion for Leave to File an Amended Answer, Affirmative Defenses, and Counterclaims (DE 20). The district court referred both PLIC's Motion to Dismiss and Green Jets' Motion to Amend (DE 20) to a magistrate judge (DE 35). The resulting Report and Recommendation (DE 37) provided:

Under Rule 15(a) of the Federal Rules of Civil Procedure, defendant has the right as a matter of course to amend its Answer within twenty-one days after service of plaintiffs Motion to Dismiss. Fed. R. Civ. P. 15(a)(l)(B). Defendant's Motion for Leave to File was filed on March 7, 2011-less than twenty-one days after plaintiff served its Motion to Dismiss and therefore within the time period provided under Rule 15(a)(l)(B). Accordingly, having considered both defendant's motion and the fact that plaintiff does not oppose defendant's right amend its Answer, the undersigned recommends that the Court grant defendant's Motion for Leave to File. Moreover, as plaintiffs original Motion to Dismiss attacks a pleading which has been substantially revised, the undersigned further recommends that the Court dismiss plaintiffs original Motion to Dismiss as moot. Should plaintiff wish to continue to challenge perceived defects in the Amended Answer, it may file an appropriate pleading addressed to those matters.

The district court subsequently adopted the Report and Recommendation (DE 43), granting Green Jets' Motion for Leave to File an Amended Answer and dismissing Plaintiff's Motion to Dismiss as moot.

On April 19, 2011, Green Jets filed an Amended Answer and Counterclaims to Plaintiff's Complaint (DE 44), again asserting six affirmative defenses and two counterclaims. On April 29, 2011, PLIC filed a second Motion to Dismiss (DE 47), seeking only to challenge Green Jets' Second Counterclaim and Second Affirmative Defense. The Motion was fully briefed in the Eastern District of Virginia, but on June 15, 2011, the matter was transferred to this Court (DE 55). PLIC's second Motion to Dismiss (DE 47) is the matter presently before the Court.

II. Motion to Dismiss Counterclaim

PLIC moves to dismiss Green Jets' Second Counterclaim because it is allegedly deficient. The Second Counterclaim, in its entirety, provides:

11. Green Jets incorporates heein and realleges as though fully set forth in this paragraph the averments of Paragraphs 1-7 of this Counterclaim. One or more of the claims of U.S. Patent No. 6,711,548 are invalid for failure to comply with one or more of the provisions of 35 U.S.C. §§ 101, et seq, including without limitation 35 U.S.C. § 102, 103, and 112. The '548 parent is invalid as anticipated or obvious by a number of prior art references including, but not limited to, United States Patent No. 5,253,165 and the SABRE system. U.S. Patent No. 5,253,165 issued on October 12, 1993 and describes a computerized reservation system of the type claimed in the '548 patent and asserted in Plaintiff's complaint. The SABRE system, an electronic airline reservation system, debuted in 1962 and was in use by many airlines by 1970. It has been well-known in the industry for almost 50 years. This list is meant to be exemplary and is not exhaustive.

12. Unless PLIC is enjoined, Green Jets believes that PLIC will continue to assert that U.S. Patent No. 6,711,548 is valid and enforceable against PLIC.

A. Standard of Review

Rule 8(a) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claims" that "will give the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests." The Supreme Court has held that "[w]hile a complaint attacked by a Rule 12(b) (6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be ...


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