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Lecat's Ventriloscope v. MT Tool and Manufacturing

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

January 6, 2017

LECAT'S VENTRILOSCOPE, Plaintiff,
v.
MT TOOL AND MANUFACTURING, Defendant.

          MEMORANDUM OPINION AND ORDER

          Ruben Castillo Chief Judge.

         Plaintiff Lecat's Ventriloscope filed this suit against Defendant MT Tool & Manufacturing for alleged infringement of U.S. Patent No. 7, 645, 141 ("the '141 Patent"). (R. 1, Compl.) Defendant moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (R. 23, Def.'s Mot. to Dismiss.) For the reasons set forth below, Defendant's motion to dismiss is denied.

         BACKGROUND

         The '141 Patent relates generally to auscultation, which it describes as the "act of listening to sounds within the body as a method of diagnosis, " and more specifically relates to an "arrangement for auscultation training." (R. 1-1, '141 Patent at [54] (Title), 1:13-14, 1:41-42.) The patent specification explains that "[a] stethoscope is an example of an auscultation device" as it may be used to "listen to internal sounds in the human body, such as for example heart sounds, breathing (breath sounds), intestinal noises, and blood flow in arteries and veins." (Id. at 1:14-18.) The patent discloses an arrangement for auscultation training that "provides for the transmission of audio signals to an auscultation device for medical simulation." (Id. at 1:42-45.) Generally speaking, the patent describes a device (such as a stethoscope) that is adapted for use in auscultation training by embedding a speaker which plays sounds that are sent to it by a remote transmitter, presumably simulating internal body sounds. (See, e.g., Id. at 4:13-25, Fig. 2.) The patent also describes methods for using such a device in auscultation training. Claim 1 of the patent, for example, reads:

         1. An arrangement for auscultation training, comprising:

a signal generator capable of generating an audio signal representing at least one sound, the signal generator being controlled by a human operator, wherein the human operator plays one or more appropriate audio files according to a user's placement of a stethoscope headpiece on a patient;
a transmitter associated with the device for transmitting an audio signal corresponding to the at least one sound;
an auscultation device, comprising a stethoscope, remote from the transmitter, the auscultation device comprising:
a receiver adapted to receive the audio signal from the transmitter; and
a speaker adapted to audibly communicate the audio signal received by the receiver to the user.

(Id. at 8.)

         Plaintiff alleges that Defendant is liable for infringement by virtue of "making and selling a product, the MT S-Scope (the 'S-Scope'), that, when used by an end user for the specific purpose and in the specific manner promoted by [Defendant], infringes the '141 Patent." (R. 1, Compl. ¶ 9.) Plaintiff alleges that end users of the S-Scope directly infringe claims 1, 8, 9, 10, 12, and 14 of the '141 Patent, in violation of 35 U.S.C. § 271(a), when utilizing the S-Scope. (Id. ¶¶ 9-10, 18-23.) Plaintiff further alleges that Defendant actively induces such infringement, in violation of 35 U.S.C. § 271(b), by, among other things, "making and selling the S-Scope, . . . making the S-Scope [iPhone] App . . . available on the Apple iTunes store as a free download, and actively promoting the S-Scope as an auscultation training device." (Id. ¶ 16.) The complaint includes a claim chart mapping elements of each asserted patent claim to evidence Plaintiff relies on to support its allegations. (See Id. at 3-9.)

         Plaintiff alleges that on January 12, 2015, it sent a cease-and-desist letter to Defendant, "inform[ing] [Defendant] of the existence of the '141 Patent, provid[ing] a copy of the '141 Patent to [Defendant], indicat[ing] that the manufacture and sale of the S-Scope infringed the '141 Patent, and request[ing] that [Defendant] cease and desist in making and selling the S-Scope." (Id. ¶ 12.) Plaintiff alleges that Defendant consequently "had actual knowledge of the '141 Patent"' during the relevant time period, "beginning when [Defendant] was told of the existence of the '141 Patent and continuing to the present." (Id. ¶ 24.) Plaintiff further alleges that "[d]uring the relevant time period, [Defendant] knowingly induced infringement of the '141 Patent" and "specifically intended to encourage infringement by purchasers and users of the . . . S-Scope." (Id. ¶¶ 25-26.)

         Defendant moves to dismiss pursuant to Rule 12(b)(6), raising three arguments. First, Defendant argues that Plaintiff has not plausibly alleged that Defendant's accused product (the S-Scope) includes an "auscultation device" as required by every asserted claim of the '141 Patent. (R. 23, Def.'s Mot. to Dismiss at 1-2, 7-8.) Second, Defendant argues that Plaintiff has not plausibly alleged that the use of the S-Scope (by end users and/or customers) employs a "user, " a "[human] operator, " and a "patient, " as also recited by every claim. (Id. at 1-2, 8-11.) Third, Defendant argues that Plaintiff has not plausibly alleged that Defendant has the specific intent required to find it liable for inducing infringement. (Id. at 1-2, 11-13.) Plaintiff argues in response that it has adequately alleged factual content to state a claim that is "plausible on its face" and that by demanding more, Defendant is arguing that Plaintiff "needs to prove its case at the pleading stage." (R. 27, Pl.'s Resp. at 2-3.)

         Defendant also argues briefly in a footnote that all claims of the '141 Patent should be found indefinite under 35 U.S.C. § 112(b) for simultaneously claiming "both an apparatus and the method steps of using the apparatus, " in violation of the rule against so-called mixed-mode or hybrid patent claims. (R. 23, Def.'s Mot. to Dismiss at 4 n.2.) Plaintiff offered no response to Defendant's argument, perhaps because the argument was raised only in a single footnote, and Defendant did not further address the issue in its Reply. This argument is addressed in turn below.

         LEGAL ...


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