UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`CARDIONET, LLC, and BRAEMAR
`MANUFACTURING, LLC
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`Plaintiffs,
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`v.
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`INFOBIONIC, INC.,
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`Defendant.
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`RDER
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`Civil Action No. 1:15-cv-11803-IT
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`TALWANI, D.J.
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`November 20, 2015
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`Before the court is Defendant’s Motion to Dismiss, or in the Alternative, Motion to Stay
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`Pending Inter Partes Review of the Patents-In-Suit [#17]. Defendant seeks dismissal for lack of
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`subject matter jurisdiction or a stay pending review of each of the patents-in-suit by the United
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`States Patent and Trademark Office Patent Trial and Appeal Board. For the reasons set forth
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`below, the motion is DENIED.
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`I.
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`Motion to Dismiss
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`This is an action for patent infringement arising under the patent laws of the United
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`States, Title 35 of the United States Code. The court has jurisdiction over this matter pursuant to
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`28 U.S.C. §§ 1331 and 1338(a), which respectively confer jurisdiction to the district court for
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`civil actions arising under the laws of the United States in general and under the patent laws of
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`the United States in particular.
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`Defendant’s Rule 12(b)(1) motion contends that Plaintiffs lack standing because no case
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`or controversy existed at the time Plaintiffs filed the complaint as Plaintiffs suffered no “injury in
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`Fitbit, Inc. v. Philips North America LLC
`IPR2020-00828
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`Fitbit, Inc. Ex. 1053 Page 0001
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`fact.” The “injury in fact” element of standing requires “an invasion of a legally protected
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`interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or
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`hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and quotation
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`marks omitted). Defendant contends that the complaint fails to establish an “injury in fact”
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`because it accuses only one of Defendant’s products of infringement (the “MoMe® Kardia
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`System”) and that product is incapable of infringement because it is still under development and
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`not yet approved by the Food and Drug Administration (“FDA”).
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`A defendant may challenge a plaintiff’s allegations of subject matter jurisdiction under
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`Rule 12(b)(1) in two ways. First, a defendant may challenge the sufficiency of the
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`jurisdictionally-significant facts alleged in a complaint. Valentin v. Hospital Bella Vista, 254
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`F.3d 358, 363 (1st Cir. 2001). In considering such “sufficiency challenges,” “the court must
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`credit the plaintiff’s well-pleaded factual allegations . . . , draw all reasonable inferences from
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`them in [its] favor, and dispose of the challenge accordingly.” Id. Second, a defendant may
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`“controvert[] the accuracy (rather than the sufficiency) of the jurisdictional facts asserted by the
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`plaintiff and proffer[] material of evidentiary quality in support of that position.” Id. In such
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`“factual challenges,” the court affords no presumptive weight to the plaintiff’s jurisdictional
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`allegations. Id.
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`To the extent that Defendant challenges the sufficiency of the jurisdictional allegations in
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`the complaint, the court accepts those allegations as true, id., and determines that they are
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`sufficient, at this stage, to establish that Plaintiffs have suffered “injury in fact” and have
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`standing. According to the complaint, Defendant has infringed Plaintiffs’ patents by committing
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`acts of infringement with “products . . . including but not limited to the MoMe® Kardia System.”
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`Compl. ¶¶ 25, 38, 52, 65 (emphasis added). Defendant acknowledges that before it began
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`2
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`Fitbit, Inc. v. Philips North America LLC
`IPR2020-00828
`
`Fitbit, Inc. Ex. 1053 Page 0002
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`developing the MoMe® Kardia System, it developed a “first generation” device—the “MoMe®
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`System”—which did obtain FDA approval. Defendant further concedes that “the names
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`‘MoMe® System’ and ‘MoMe® Kardia System’ were used interchangeably, and there is no
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`correspondence between the name and the design generation.” Defs.’ Reply Supp. Mot. Dismiss
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`3 n.7 [#32]. Plaintiffs’ complaint similarly alleges that that Defendant “recently added ‘Kardia’
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`to the MoMe® name,” Compl. ¶ 17 n.1, and indeed, several exhibits attached to the complaint
`refer to the accused product as “MoMe®” or the “MoMe® System.” See Exs. F-K to Compl.
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`The court therefore understands the complaint’s allegations regarding “products . . . including
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`but not limited to the MoMe® Kardia System” to be allegations about the “MoMe® System” as
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`well. Thus construed, the jurisdictional allegations are not limited to Defendant’s “second
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`generation device” as Defendant contends, and do assert that Defendant’s products have
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`infringed Plaintiffs’ patents and caused Plaintiffs harm. Specifically, the complaint alleges that
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`Defendant’s products satisfy the claims of each patent, Compl. ¶¶ 26-33; 39-47; 53-60; 66-73,
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`and that Defendant “has committed and continues to commit acts of infringement” with those
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`products that have harmed Plaintiffs, id. ¶¶ 36-37; 50-51; 63-64; 76-77. The allegations are
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`therefore sufficient, at this stage, to establish that Plaintiffs have standing.
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`To the extent Defendant challenges the accuracy of Plaintiffs’ jurisdictional allegations,
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`the court finds that the materials offered to controvert them either do not address the allegations
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`regarding the “first generation device” or are not of evidentiary quality. The materials offered by
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`Defendant include: 1) a copy of an attorney letter sent to Plaintiffs on August 7, 2015 stating that
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`the “MoMe® Kardia System” has not obtained FDA approval (Caffrey Decl. Supp. Def.’s Mot.
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`Dismiss Ex. 2); 2) a photograph from Defendant’s booth at a May 2015 exhibition showing that
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`Defendant identified the MoMe device as “not commercially available in the US at this time”
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`3
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`Fitbit, Inc. v. Philips North America LLC
`IPR2020-00828
`
`Fitbit, Inc. Ex. 1053 Page 0003
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`(Caffrey Decl. Supp. Def.’s Reply Ex. 1); and 3) an article published by the Boston Business
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`Journal on August 25, 2015 and updated August 26, 2015 stating that Defendant decided to
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`“delay launch” of its first generation device until the second generation device was ready to
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`market (Caffrey Decl. Supp. Def.’s Reply Ex. 7). First, the attorney letter and photograph do not
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`address the allegations that Defendant’s first generation device infringed Plaintiffs’ patents at all,
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`and thus do not establish that those allegations are untrue. Second, though the Boston Business
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`Journal article does address the allegations about Defendant’s first generation device, that article
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`is hearsay and therefore is not material of “evidentiary quality.” Valentin, 254 F.3d at 363.
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`Thus, none of the materials offered by Defendant support their position that Plaintiffs’
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`jurisdictional allegations are inaccurate.
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`Therefore, whether construed as a “sufficiency challenge” or a “factual challenge,”
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`Defendant’s Rule 12(b)(1) motion fails to demonstrate that Plaintiffs lack standing.
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`Accordingly, the motion to dismiss is DENIED.
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`II.
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`Motion to Stay
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`As an alternative to dismissal, Defendant seeks a stay of this action pending inter-partes
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`review by the Patent Trial and Appeal Board. Defendant states that staying this action pending
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`such review will ultimately allow the court to more efficiently resolve this dispute. However,
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`Defendant’s petitions seeking inter-partes review were only submitted in August 2015. The
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`Patent Trial and Appeal Board has not yet decided whether to institute inter-partes review and
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`may not do so for several months. Accordingly the court DENIES Defendant’s motion to stay,
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`without prejudice.
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`Date: November 20, 2015
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`/s/ Indira Talwani
`United States District Judge
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`4
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`Fitbit, Inc. v. Philips North America LLC
`IPR2020-00828
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`Fitbit, Inc. Ex. 1053 Page 0004
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