Company sues competitor for patent infringement

Where a company suing a competitor for direct infringement of its patents for a system and method for removing animals from indoor facilities included factual allegations, photos and a video showing the competitor’s employees allegedly carrying out the patented bird removal process, its direct infringement claims survived the competitor’s motion to dismiss.

Background

Safe Haven Wildlife Removal and Property Management Experts LLC sued Meridian Wildlife Services LLC for patent infringement. Specifically, Safe Haven alleges direct and indirect infringement of three of its patents. Each of these patents claims a system and method for removing animals — primarily birds — from indoor facilities. Meridian has moved to dismiss the second amended complaint for failure to state a claim.

Direct infringement

Safe Haven insists that Meridian directly infringed (and continues to infringe) upon the ‘374 (Count One), ‘108 (Count Three) and ‘683 patents (Count Five) by using the patented methods for bird removal comprising various perimeter nets, trapping nets, flushing devices and telescoping poles.

Viewing the photos and allegations collectively, Safe Haven has alleged sufficient facts to support a reasonable inference that Meridian used the processes embraced by the ‘374, ‘108 and ‘683 patents. Drawing all reasonable inferences in Safe Haven’s favor, these allegations — coupled with the photos (though the image quality leaves something to be desired) and the video which apparently shows the pictured Meridian employees actively carrying out the patented bird removal process — are sufficient at this stage to put Meridian on notice of how its processes allegedly infringe upon Safe Haven’s patents as to each of the asserted claims.

Indirect infringement

Based on the complaint’s allegations, it is reasonable for the court to infer that Meridian had knowledge of the existence of the ‘374 patent (but not necessarily of any alleged infringement of that patent) as of the date it received the letter from counsel for Safe Haven dated May 21, 2019.

However, the only attempts Safe Haven makes to allege pre-suit knowledge as to the other patents are its bald statements that Meridian “has known” of the ‘108 and ‘683 patents since Aug. 4, 2020, and July 20, 2021, respectively, which are also the dates that those patents issued. These allegations are evidently conclusory, and no other part of the complaint explains how Meridian became aware of these patents on those dates other than the fact that those were the dates of issuance.

That said, “patent infringement is often ‘an ongoing offense that can continue after litigation has commenced.’” Moreover, Safe Haven has alleged that Meridian continues to use the same allegedly infringing processes it employed in Sarasota through the present.

Assuming all other elements are satisfied, Safe Haven may seek relief under Count Two for indirect infringement of the ‘374 patent occurring only from May 21, 2019, to the present; under Count Four for indirect infringement of the ‘108 patent only from June 25, 2021, to the present and under Count Six for indirect infringement of the ‘683 patent only from Sept. 22, 2021, to the present. The court will now consider whether the complaint plausibly alleges induced or contributory infringement based upon acts occurring within that period.

The court finds that the complaint plausibly states a claim as to induced infringement of the ‘374 and ‘108 patents, but not the ‘683 patent. As to the former two patents-in-suit, the photos from Sarasota (and alleged video representing the same) support a reasonable inference that Meridian knowingly induced its employees, independent contractors and the like to engage in the allegedly infringing acts — at least on that day — because it hired them to do that work (or at least that inference is plausible from the fact that the individuals in the photos are wearing Meridian shirts).

However, regarding the ‘683 patent, this complaint provides no allegations that Meridian knowingly induced any infringement after it learned of the patent. As to contributory infringement, the complaint does not contain facts sufficient to support these claims.

Defendant’s motion to dismiss granted in part, denied in part.

Safe Haven Wildlife Removal and Property Management Experts LLC v. Meridian Wildlife Services LLC, Case No. 7:21-cv-00577, March 31, 2023. WDVA at Roanoke (Dillon). VLW 023-3-177. 19 pp.