United States District Court, D. Oregon
CHARLENE A. BOEHM and CPS BIORESEARCH, LLC, a North Carolina limited liability company, Plaintiff,
FUTURE TECH TODAY, INC., an Oregon Corporation, JOSHUA KORN, a/k/a Joshua Parker, and AAA PRODUCTION, INC., a Utah Corporation, Defendants.
OPINION AND ORDER
MICHAEL McSHANE, District Judge.
Plaintiff Charlene Boehm ("Boehm") brings this action against the manufacturer, AAA Production, Inc. ("AAA"), and the distributor of the GB4000, a frequency generator, for infringing upon her method patent of calculating resonant frequencies and using them to treat an animal or human infected with a disease caused by a pathogen ("the Boehm method"). Boehm claims direct infringement under 35 U.S.C. § 271(a) and indirect infringement under 35 U.S.C. § 271(b). AAA filed a motion to dismiss Boehm's complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). See ECF No. 7.
On the eve of oral argument, Boehm filed an amended complaint alleging an infringement claim under 35 U.S.C. § 271(g). Because the facts as alleged in Boehm's complaint do not and cannot establish that any individual has performed each element of the Boehm method, Boehm cannot make out a claim for direct or indirect infringement. Additionally, § 271(g) cannot establish liability under any reading of the facts in the amended complaint, so AAA's motion, ECF No. 7, is GRANTED, and Boehm's complaint is dismissed with prejudice.
In August 1999, Boehm published a paper describing the methodology she created for determining therapeutic resonant frequencies for various diseases. In 2004, Craig Ledwell ("Ledwell") contacted Boehm to seek assistance with a disease outbreak in his community. Boehm provided Ledwell a relevant set of resonant frequencies for use in the disease outbreak, after which Ledwell informed Boehm that he intended to use Boehm's method to calculate resonant frequencies on his own. Boehm informed Ledwell that she had applied for a patent on her method and that he was not authorized to distribute the resonant frequencies. On October 9, 2007, the United States Patent and Trademark Office issued a patent for the Boehm method.
Ledwell subsequently provided the therapeutic resonant frequencies and the Boehm method to Joshua Korn of Future Tech, a distributor of the GB4000, who in turn provided the therapeutic resonant frequencies and the Boehm method to AAA. The GB4000 is used as part of the Boehm method. Future Tech distributes the GB4000 and provides the resonant frequencies calculated in accordance with the Boehm method. Independent of Future Tech, AAA promoted the purchase of the GB4000 and provided the resonant frequencies calculated in accordance with the Boehm method through various websites. Purchasers of the GB4000 then used the resonant frequencies provided to them by AAA and Future Tech.
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter that "state[s] a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations allow the court to infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than "the mere possibility of misconduct." Id. at 678.
While considering a motion to dismiss, the court must accept all allegations of material fact as true and construe in the light most favorable to the non-movant. Burget v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). But the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555. If the complaint is dismissed, leave to amend should be granted unless the court "determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).
I. § 271(a) and § 271(b)
"A method patent claims a number of steps; under this Court's case law, the patent is not infringed unless all the steps are carried out." Limelight Networks, Inc. v. Akami Tech., Inc., 134 S.Ct. 2111, 2117 (2014). In order to be liable for induced infringement under 35 U.S.C. § 271(b), a third party must be liable for direct infringement, and a method patent is not directly infringed under § 271(a) "unless a single actor can be held responsible for the performance of all steps of the patent." Id. at 2119.
Boehm does not plead ultimate facts that demonstrate any individual infringed all the steps of the patent. To the contrary, Boehm specifically alleges that AAA and Future Tech provided the resonant frequencies to purchasers of the GB4000, who then treated themselves with the frequencies. Nowhere in the complaint does Boehm allege that the purchasers calculated the frequencies, and nowhere in the complaint does Boehm allege that AAA or Future Tech treated the purchasers with the GB4000. Boehm insists that her allegation that AAA directly infringed on her patent and that purchasers infringed on her patent is sufficient, but Boehm is mistaken. Whether AAA or the purchasers directly infringed her method patent is a legal conclusion, and the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555. Boehm must plead facts that would allow this Court to draw inferences that AAA, Future Tech, or the purchasers infringed on all the elements of the Boehm method. Specifically, Boehm's patent reads as follows:
What is claimed is: 1. A method for determining therapeutic resonant frequencies of electromagnetic radiation for treating an animal or human infected with a disease caused by a pathogen, wherein said pathogen comprises a genomic material, ...