Bellinger v. CureWave Lasers LLC

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

GARY BELLINGER, § § Plaintiff, § § v. § Civil Action No. 3:23-cv-00844-M § CUREWAVE LASERS, LLC, et al., § § Defendants. § § §

MEMORANDUM OPINION AND ORDER Defendants CureWave Lasers, LLC, Laser Concepts, LLC, and Daniel Herbert’s Motions to Dismiss (ECF Nos. 48, 58, 59) are DENIED. I. Factual Matters

The First Amended Complaint (“FAC”) alleges that Defendants infringe three method claims of U.S. Patent No. 10,589,120 (the “’120 patent”). FAC ¶¶ 9, 23–74. Claims 1, 12, and 15 of the ’120 patent are independent claims, and each recites a method for “alleviating the physical symptoms associated with acute or chronic inflammatory conditions.” Among other contentions, the FAC alleges direct infringement. II. Legal Standard

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege sufficient facts to “state a claim that is plausible on its face.” Magnacross LLC v. OKI Data Americas, Inc., No. 3:20-CV-01959-M, 2022 WL 992595, at *3 (N.D. Tex. Mar. 31, 2022) (Lynn, C.J.) (quoting Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011)). A court generally accepts well-pleaded facts as true and construes the complaint in the light most favorable to the plaintiff. Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (Sth Cir. 2012). However, a court need not accept “threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Il. Analysis A. Direct Infringement Defendants argue that the FAC does not sufficiently plead a cause of action for direct infringement of the asserted method claims. In fact, the FAC does so. See, e.g., FAC 9 35. The mere sale of a product that infringes does not constitute direct infringement of a method claim, so if that is all that Plaintiff were to prove, that would not support submission to the jury of contention of direct infringement of claims 1, 12, and 15. B. Defendants’ Request for Reconsideration Defendants CureWave Lasers, LLC and Daniel Herbert criticize Plaintiff for voluntarily dismissing Herbert before again including him as a Defendant in the FAC. ECF Nos. 48 at 1-2, 59 at 1-2. To the extent these Defendants seek relief from Plaintiff due to Herbert’s rejoinder, such relief is DENIED. IV. Conclusion For the reasons stated above, Defendants CureWave Lasers, LLC, Laser Concepts, LLC, and Daniel Herbert’s Motions to Dismiss (ECF Nos. 48, 58, 59) are DENIED. SO ORDERED. March 11, 2024.

gira WAL hy SENIOR UNITED STATES DISTRICT JUDGE