The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge
Plaintiff, EnviroCare International, Inc. ("EnviroCare"), brings this action against Defendants Essroc Cement Corp. ("Essroc"), TurboSonic Technologies, Inc. ("TurboSonic") and Capitol Cement Corp. ("Capitol Cement"), alleging that Defendants have directly and indirectly infringed and/or that they will directly and indirectly infringe unspecified claims of U.S. Patent 6,464,952 ("the '952 patent").
Presently before this Court for disposition is a motion for judgment on the pleadings, submitted by Defendant TurboSonic and joined in by Defendants Essroc and Capitol Cement. For the reasons that follow, the motion will be denied.
On October 15, 2002, the '952 patent was duly and legally issued for an invention entitled "Sulfur Dioxide Abatement Method" and Plaintiff holds all rights and interest in the'952 patent. (Am. Compl. ¶ 7 & Ex. A.) Plaintiff alleges that Essroc and Capitol Cement awarded a contract to TurboSonic on or about June 9, 2009 for the supply and installation of a custom built sulfur dioxide abatement equipment at a cement plant that they owned, controlled and/or operated in Martinsburg, West Virginia. Plaintiff further alleges that, when put into operation, this installation will infringe the '952 patent. Plaintiff notified Essroc of its '952 patent prior to the date the contract for the installation was awarded to TurboSonic and cautioned Essroc regarding infringement of the patent. (Am. Compl. ¶¶ 8-9.)
Plaintiff filed this action on July 13, 2009 and it filed a First Amended Complaint on January 27, 2010 (Docket No. 8). Jurisdiction is based on the federal question presented by the patent claims, 28 U.S.C. §§ 1331 and 1338. (Am. Compl. ¶ 5.) The complaint alleges that Essroc and Capitol Cement have directly, contributorily and/or by inducement literally, or under the doctrine of equivalents, infringed and continue to infringe the '952 patent by practicing the methods that infringe the patent, and that TurboSonic has contributorily, and/or by inducement literally, or under the doctrine of equivalents, infringed and continues to infringe the '952 patent by manufacturing, selling and/or offering for sale the installation. Plaintiff seeks a declaration that Defendants have infringed the '952 patent, an order enjoining them from further infringement, damages (including enhanced damages for willful infringement), prejudgment and postjudgment interest, attorney's fees and such other costs and further relief as the Court may deem just and proper.
On February 17, 2010, Defendants filed answers to the Amended Complaint and Essroc and Capitol Cement also filed counterclaims thereto (Docket Nos. 14, 16, 18). On April 15, 2010, TurboSonic filed a motion for judgment on the pleadings and on April 22, 2010, Essroc and Capitol Cement filed a motion for joinder in TurboSonic's motion. The motion for joinder filed by Essroc and Capitol Cement will be granted and the motion for judgment on the pleadings will be treated as filed by all defendants.
Defendants argue that the complaint fails to state a claim for direct patent infringement because it alleges only that infringement might occur at some unspecified time in the future, and that the complaint fails to state a claim for indirect infringement because such a claim arises only when a defendant has either induced or contributed to an act of direct infringement.
Plaintiff responds that liability for contributory infringement can attach immediately upon an offer for sale and the act of infringement need not have already occurred and anticipatory acts of indirect infringement can be enjoined before the infringing system is operational. In the alternative, Plaintiff requests leave to amend its complaint, now that discovery is ongoing, to allege that the cement plant is operational and that infringement has occurred.
A motion for judgment on the pleadings is treated in the same manner as a motion to dismiss for failure to state a claim upon which relief may be granted. The court should "view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the ... nonmoving party. Green v. Fund Asset Mgmt., L.P., 245 F.3d 214, 220 (3d Cir. 2001) (citing Institute for Scientific Info., Inc. v. Gordon & Breach, Science Publishers, Inc., 931 F.2d 1002, 1004 (3d Cir. 1991)). In reviewing the motion, the Court may refer to any documents attached to the complaint and matters of public record. Pension Benefit Guaranty Corp. v. White Consolidated Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
The Supreme Court has recently stated that:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in [Bell Atlantic Corp. v.] Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 [(2007)], the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation. Id., at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not ...