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Forum Selection Clause Applies in Patent Case

In this complaint alleging patent infringement, the Norfolk U.S. District Court has personal jurisdiction over defendants under a forum selection clause in the parties’ earlier Agreement, and the complaint complies with Fed. R. Civ. P. Form 18 and the district court denies defendants’ motion to dismiss the complaint as insufficient under Twombly and Iqbal.

Plaintiffs W.L. Gore & Assocs.  Inc. and Gore Enterprise Holdings Inc. have brought an action for patent infringement involving the ‘870 patent, for an “Intraluminal Stent Graft.” The parties entered into a Settlement and License Agreement (Agreement) on Aug. 28, 2009. Plaintiffs contend this court has personal jurisdiction over defendants by virtue of this Agreement. Defendants contend plaintiffs improperly rely on the Agreement to establish personal jurisdiction.

The complaint’s entire personal jurisdictional allegation states the Agreement “stipulates that, during the term of the Agreement, any action for patent infringement brought by one of the parties against another … shall be brought” in the U.S. District Court for the Eastern District of Virginia. District courts apply the precedents of the Federal Circuit when determining personal jurisdiction in patent cases.

Here, the plain language of the forum selection clause counsels in favor of a finding of consent to personal jurisdiction. The clause specifically states that with respect to patent infringement and/or patent invalidity claims relating to or arising from any of Medtronic’s cardiovascular businesses, the parties agree to bring such actions in the Eastern District of Virginia or, as appropriate, the U.S. Patent and Trademark Office. The court concludes plaintiffs have made a showing that the forum selection clause applies and thus defendants have consented to personal jurisdiction in the Eastern District of Virginia. While the court finds the Agreement provides for personal jurisdiction, defendants argue the complaint should be dismissed because it does not comport with other provisions of the same Agreement.

Defendants seek dismissal on the ground that plaintiff have requested relief they voluntarily relinquished in the Agreement.

Numerous courts have wrestled with the question whether a pleading that closely tracks Fed. R. Civ. P. Form 18 states sufficient facts to survive a motion to dismiss under Twombly, despite its presentation of little more than threadbare recitals of the elements of a cause of action for direct infringement. It is difficult to reconcile the pleading standards set forth in Twombly and Iqbal with the legally conclusive form of pleading found in Form 18. However, the court agrees with McZeal v. Sprint Nextel Corp., 501 F. 3d 1354 (Fed. Cir. 2007), that a litigant who complies with the provisions of Form 18 has sufficiently stated a claim for direct infringement as contemplated by Rule 12(b)(6). The court notes this conclusion could change if it were presented with a different factual scenario, such as a claim under a doctrine of equivalents theory or a claim asserting infringement of a design patent.

But the complaint here alleges literal infringement, and does not involve a design patent, and the complaint is sufficient to withstand challenge under Rule 12(b)(6), so long as it closely tracks Form 18, which this complaint does. The absence of a paragraph in the complaint regarding “notice” does not warrant dismissal under Rule 12(b)(6).

Motion to dismiss denied.

W.L. Gore & Assocs. Inc. v. Medtronic Inc. (Davis) No. 2:10cv441, April 20, 2011; USDC at Norfolk, Va.; Ahmed J. Davis for plaintiffs; Dabney J. Carr IV for defendant. VLW 011-3-680, 28 pp.

VLW 012-3-219

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