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Hemphill v. Johnson & Johnson

United States District Court, District of Columbia

January 29, 2013

Allegra HEMPHILL, Plaintiff,

Allegra Hemphill, Washington, DC, pro se.

George Frank Pappas, Baltimore, MD, Jeffrey B. Elikan, Kelly Vanderzell Silverman, Covington & Burling, LLP, Washington, DC, for Defendant.



For more than a decade, Plaintiff Allegra Hemphill has filed suit in federal courts seeking to hold various companies liable for purportedly infringing United States Patent No. 4,557,720 (the " '720 Patent" ). This case represents the Plaintiff's fifth complaint alleging infringement of the ' 720 patent, and the second against Defendants Johnson & Johnson. Presently before the Court is the Defendant's [7] Motion to Dismiss Complaint Under Rule 12(b)(6). The motion is fully briefed and ripe for adjudication. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court

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finds as a matter of law the Plaintiff cannot recover for any alleged infringement of the '720 patent by the Defendant. Accordingly, the Defendant's [7] Motion to Dismiss Complaint Under Rule 12(b)(6) is GRANTED and the Complaint is DISMISSED.


For purposes of the Defendant's motion to dismiss, the Court presumes all well-pleaded factual allegations in the Complaint are true. Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C.Cir.2009), cert. denied, 559 U.S. 1039, 130 S.Ct. 2064, 176 L.Ed.2d 418 (2010). The Plaintiff filed a patent application for a " vaginal applicator" on June 11, 1984, claiming a priority date of October 18, 1982. Compl., Ex. 1 ('720 Patent) at 1. The United States Patent and Trademark Office issued the '720 Patent on December 10, 1985 with two independent claims describing a disposable vaginal swab, intended to be used for cleansing or treating the vaginal area. Id. at 1, 4-5. The USPTO confirmed the patentability of both claims following reexamination proceedings in 1999. Pl.'s Ex. 2 (1/26/1999 Reexamination Certificate) at 1-2.

The Plaintiff initially filed suit against Johnson & Johnson in United States District Court for the District of Maryland in 1999, alleging Johnson & Johnson's Stayfree, Carefree, and Serenity sanitary napkins and adult incontinence products infringed claim 2 of the '720 Patent. Hemphill v. McNeil-PPC, Inc., 134 F.Supp.2d 719, 723 (D.Md.2001)( Hemphill I ). The Maryland District Court substituted McNeil-PPC as the proper defendant and granted summary judgment of noninfringement in favor of the defendant. Id. at 721, 727-29. The Federal Circuit affirmed the district court's claim construction and findings of non-infringement on appeal. Hemphill v. McNeil-PPC, Inc., 25 Fed.Appx. 915 (Fed.Cir.2001). The Plaintiff subsequently filed three separate suits against Kimberly-Clark Corp. and Procter & Gamble Co. alleging infringement of the '720 patent, all of which resulted in judgments in favor of the defendants. See Hemphill v. Kimberly-Clark Corp., 605 F.Supp.2d 183, 186-87 (D.D.C.2009); Hemphill v. Kimberly-Clark Corp., 530 F.Supp.2d 108, 110 (D.D.C.2008), aff'd 335 Fed.Appx. 964 (Fed.Cir.2008); Hemphill v. Procter & Gamble Co., 258 F.Supp.2d 410, 413 (D.Md.2003), aff'd 85 Fed.Appx. 765 (Fed.Cir.2004).

The Plaintiff filed the present Complaint on February 21, 2012, alleging Johnson & Johnson's Stayfree and Carefree feminine care products directly infringe the '720 Patent, and that the Defendant induced infringement of the '720 Patent by a third party. See generally Compl., ECF No. [1]. Johnson & Johnson now moves to the dismiss the Complaint as untimely and barred by res judicata.


Federal Rule of Civil Procedure 12(b)(6) provides that a party may challenge the sufficiency of a complaint on the grounds it " fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). " [A] complaint [does not] suffice if it tenders ‘ naked assertion[s]’ devoid of ‘ further factual enhancement.’ " Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, " state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. Additionally, in deciding a Rule 12(b)(6) motion, a court may consider " the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," or " documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by [the ...

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