The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Papst Licensing GMBH & Co. KG ("Papst") filed a bare-bones Complaint against Sanyo Electric Co., Ltd. and Sanyo North America Corp. (collectively "Sanyo"), alleging that Sanyo infringed two patents owned by Papst, U.S. Patent Nos. 6,470,399 and 6,895,449 (the "Patents"). Sanyo moved to dismiss for failure to state a claim. Because the Complaint was insufficient to assert a right to relief above the speculative level, the Court granted the motion on November 12, 2008. Papst filed a motion to reconsider. As explained below, the Court will amend its Order dismissing the Complaint to note that the dismissal was without prejudice.
Papst's original Complaint for infringement against Sanyo alleged:
10. A reasonable opportunity for further investigation or discovery is likely to provide evidentiary support the Sanyo Defendants have made, used, sold or offered to sell to numerous customers in the United States or have imported into the United States digital cameras which infringe the Patents in Suit.
Compl. ¶ 10 (emphasis added). When Sanyo moved to dismiss, Papst requested leave to file an amended complaint that would allege:
10. Upon information and belief, the Sanyo Defendants have made, used, sold or offered to sell to numerous customers in the United States or have imported into the United States digital cameras which infringe the Patents in Suit.
Papst's Opp'n, Ex. A (emphasis added). The Court found that Papst failed to state a claim because it failed to include any information about the circumstances giving rise to the claim. Papst v. Sanyo Elec. Co., Ltd. (In re Papst Licensing GMBH & Co. KG), 585 F. Supp. 2d 32, 35 (D.D.C. 2008) [Dkt. # 254 in 07-ms-493 and Dkt. # 30 in 08-cv-1405].
Papst now indicates that in fact it had compared Sanyo camera models to each element of at least one claim in the Patents and that Papst was convinced that Sanyo's cameras infringed. Papst's Mot. to Alter, Amend, or Vacate J. ("Papst's Mot. to Alter J.") [Dkt. # 258] at 2-5. Papst asks that the Court reconsider its dismissal, requesting one of three alternative remedies:
(1) that the Court vacate the November 12, 2008 dismissal as improvidently decided; (2) that the Court allow Papst to file an amended complaint, which complaint would allege that "the Sanyo Defendants have each infringed and are still infringing the patents" without any qualifying language such as "a reasonable opportunity for further investigation" or "upon information and belief;" or (3) that the Court amend its dismissal to reflect that it was without prejudice.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a ...