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Marshall Feature Recognition, LLC v. Wendy's International, Inc.

United States District Court, N.D. Illinois, Eastern Division

March 4, 2015




Plaintiff, Marshall Feature Recognition, LLC ("MFR") filed a single-count Complaint alleging infringement of its patent seeking monetary and injunctive relief. Defendant Wendy's International, Inc. ("Wendy's") filed a motion to dismiss the Complaint for failure to state a claim upon which relief can be granted. For the reasons stated herein, Wendy's motion to dismiss is denied.


MFR alleges in its Complaint that it has a legal and duly issued patent under No. 6, 886, 750, entitled "Method and Apparatus for Accessing Electronic Data Via a Familiar Printed Medium" (the "'750 patent"). The '750 patent provides a

"system for displaying programming to a user, the system comprising: a printed commercial document having at least one machine recognizable feature; a feature recognition unit having associated therewith a means for recognizing said feature and a means for transmitting a coded signal in response to the recognition of said feature; an intelligent controller having associated therewith a means for accessing said programming material in response for receiving said coded signal; and a display unit presenting said programming material." Dkt 1, ¶ 10.

According to the Complaint, Wendy's "owns, operates, advertises, controls, sells, and otherwise provides systems that infringe the '750 patent." Id.

MFR explains in its Complaint that QR Codes are features that can be recognized by smartphones when users scan the QR Code using a barcode scanner application to communicate with the QR Code, which is on Wendy's printed advertisement. The user is then able to "obtain programmed information relating to the advertisement." Scanning the QR Code initiates a command sequence that accesses material that Wendy's programmed into the code to download Wendy's advertising material from the Internet. Dkt 1 ¶ 15. MFR also alleged inducement infringement under 35 U.S.C § 271(b).

MFR filed a motion for leave to amend its complaint on June 25, 2014, after the Court granted MFR two extensions to respond to Wendy's motion to dismiss. MFR stated in its motion that it sought to amend so that it might address the issues raised in Wendy's motion to dismiss and the Supreme Court's decision in Limelight Networks v. Akamai Technologies, Inc ., and to add new matter. The Court denied MFR's motion to amend its complaint, partly due to MFR's delay in responding to Wendy's motion, and also because Wendy's would suffer prejudice since MFR sought to amend its theory of infringement to include theories of testing and demonstration and attempted to assert an additional patent.


When considering a motion to dismiss in a patent case, district courts apply the substantive law of the regional circuit. McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1355-56 (Fed. Cir. 2007). To survive a 12(b)(6) motion, a complaint must include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A "short and plain" statement requires the plaintiff to provide sufficient facts to plausibly suggest that the allegations could have occurred, and to give fair notice to the defendant as to what the complaint is about. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).


Direct Infringement

Direct infringement claims are governed by 35 U.S.C. § 271(a), which provides that "whoever without authority makes, uses, offers to sell, or sells any patented invention... during the term of the patent therefore, infringes the patent." Form 18 in the Appendix to the Federal Rules of Civil Procedure provides that a complaint sufficiently states a cause of action for direct infringement if it includes: (1) an allegation of jurisdiction; (2) a statement that the plaintiff owns the patent; (3) a statement that defendant has been infringing the patent by making, selling, and using [the device] embodying the patent'; (4) a statement that the plaintiff has given the defendant notice of its infringement; and (5) a demand for an injunction and damages. See McZeal, 501 F.3d at 1357; see also Fed.R.Civ.P. 84 ("The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.")

Here, MFR fulfilled all five requirements provided for in Form 18. MFR alleges, first that its claims for patent infringement are brought pursuant to United States patent law, specifically 35 U.S.C. § 271, and that this Court has personal jurisdiction over Wendy's. Dkt 1, ¶¶ 4-5. Second, MFR alleges that it is the owner by assignment of the '750 ...

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