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Rosing v. Sap AG, Aap America, Inc.

United States District Court, Eastern District of Pennsylvania

March 21, 2014





Plaintiff Mark von Rosing is a consultant, professor, and author on the subject of enterprise modeling and architecture, and he is founder of plaintiff Value Team ApS. Defendant SAP America, Inc. (“SAP”) develops software and training materials on subjects relating to enterprise modeling. Plaintiffs allege that defendants SAP, SAP AG, and unidentified Doe and Roe defendants misappropriated plaintiffs’ intellectual property and are liable for breach of contract or, alternatively, for various torts and statutory violations. Defendant SAP[1] filed the instant Motion to Dismiss Counts B Through I of the Complaint and to Strike Defendants Does I through X and Roe Entities XI Through XX. For the reasons stated below, the Court grants in part and denies in part SAP’s Motion.


In 2001, plaintiff Mark von Rosing formed Value Team ApS and began working for companies such as IBM, Air France, Dutch Railway, Petronas, and Saudi Arabia Oil, “on improving [the companies’] software and . . . hardware, ” in an area described as “enterprise modeling, ” and “enterprise architecture.”[3] Compl. ¶ 14.

SAP is a company which creates software designed to help businesses “[l]everage role-based access to critical data, applications, and analytical tools.” Id. ¶ 20. “The cost and complexity of implementing SAP software is one of the major hurdles for SAP’s software sales efforts, ” and, because of that, SAP created ASAP, which is an “implementation tool” that allows SAP users to customize SAP’s software in order to “reduce and streamline” the burdens on customers. Id. ¶¶ 8-9.

In the fall of 2009, Ann Rosenberg, a SAP employee, began working with von Rosing “to develop training materials for SAP’s customers and employees in subjects matters related to process management, value management, and information management, ” a subject which is referred to collectively as business process management (“BPM”). Id. ¶ 15. On March 3, 2010, Rosenberg “sent an email to a group of people informing them of SAP’s new BPM curriculum and certification, ” in which she listed von Rosing as a “subject matter expert[].” Id. ¶ 17. In April 2010, von Rosing taught the BPM course at SAP’s offices in Holland. Id.

In March of 2011, von Rosing engaged in a series of phone calls with, inter alios, Jan Musil of SAP regarding “SAP’s desire to obtain von Rosing’s input into ways to improve ASAP.” Id. ¶ 24. A March 31, 2011 email from von Rosing to Hermann Reiter of SAP confirmed the substance of the conversations, with von Rosing noting that he would “provide general consulting services ‘without pay’” for SAP “so long as SAP agreed that SAP field service will try to position [von Rosing] where possible [for work on] SAP projects.” Id. On April 1, 2011, Reiter responded, stating “Hello Mark, Yes, it summarizes our discussion.” Id.

In April and March of 2011, after phone calls with SAP, von Rosing “realized that the assistance SAP wanted him to provide was so detailed that it would require him to use and disclose [his] [intellectual property (“IP”)] to SAP, and that his initial agreement with SAP did not require disclosure of von Rosing’s IP or define SAP’s obligations to protect it.” Id. ¶ 25. Accordingly, von Rosing had additional discussions with Musil about his concerns, after which they reached an agreement (“IP Agreement”) whereby von Rosing would “provide the detailed assistance SAP wanted on ASAP 7.2 if SAP would agree to protect von Rosing’s IP and make sure he was paid for the disclosure and use of his IP.” Id. On April 29, 2011, von Rosing sent SAP an email stating specific terms regarding protection of his IP, which included the provisions that the “material c[ould not] be systematically ‘given away’ . . . without explicit coordination and written permission, ” and that the “material c[ould not] be shared or used as part of [] engagement efforts by companies that ha[d] not paid.” Id. ¶ 29.

On May 11, 2011, SAP sent von Rosing a reply email stating that SAP will “add all the mentioned points” and that “your IP statement that [SAP] will add and the SAP Code of Conduct around IP and copyrighted material should ensure that [SAP is] fully complaint to the agreement discussed.” Id. ¶ 28. Over the next week, von Rosing had several phone calls with SAP in which he shared his ideas regarding concepts for ASAP 7.2. Id. ¶ 29. Von Rosing also delivered his ideas to SAP “in the form of over 200 proposed substantive additions to ASAP 7.2 as text, charts, and templates.” Id. ¶ 30.

Sometime thereafter, in 2011, SAP “widely distributed von Rosing’s IP for free by including it in ASAP 7.2 and posting ASAP 7.2 on SAP’s Service Marketplace where . . . hundreds of thousands of SAP’s customers, partners, and any other third parties could download and use ASAP 7.2, including von Rosing’s IP, free of charge.” Id. ¶ 31. Over the next several months the parties attempted to negotiate an agreement regarding protection of von Rosing’s IP, to no avail. Id. ¶¶ 31-36. The parties ceased communicating on August 6, 2012. Id. ¶ 36 Von Rosing later learned that on September 28, 2012 SAP had “issued a training certificate to an individual named Freek Stoffel, ” stating that “von Rosing certified Stoffel’s training in enterprise architecture, ” and which was ostensibly signed by von Rosing “in his capacity as a professor at the University of Copenhagen and as the ‘head of SAP University Alliances’” Id. ¶ 37.

On October 15, 2013, plaintiffs filed suit in this Court. Plaintiffs’ Complaint alleges nine counts, each in the alternative: (1) Breach of Express Written Contract, (2) Breach of Express Oral Contract, (3) Breach of Implied Contract, (4) Quantum Meruit; Unjust Enrichment, (5) Misappropriation of Ideas, (6) Unfair Competition, (7) Fraudulent Misrepresentation, (8) Negligent Misrepresentation, and (9) Unauthorized Use of Name. On December 20, 2013, SAP filed the instant Motion to Dismiss.


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a complaint, a defense of “failure to state a claim upon which relief can be granted” may be raised by motion to dismiss. To survive a motion to dismiss, a civil plaintiff must allege facts that “raise a right to relief above the speculative level.” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff’s allegations must show that defendant’s liability is more than “a sheer possibility.” Id. “Where a complaint pleads facts that are ‘merely ...

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