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Viveve, Inc. v. Thermigen, LLC

United States District Court, E.D. Texas, Marshall Division

April 20, 2017

VIVEVE, INC., Plaintiff,
v.
THERMIGEN, LLC; THERMIAESTHETICS, LLC; AND RED ALINSOD, M.D., Defendants.

          MEMORANDUM OPINION AND ORDER

          RODNEY GILSTRAP, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Red Alinsod, M.D.'s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(2), and 35 U.S.C. § 287(c). (Dkt. No. 14.) On February 22, 2017, the Court held a hearing at which the parties presented oral argument on said motion. After considering the briefing and argument of the parties, and for the reasons set forth below, the Court finds that Defendants' motion should be and is DENIED.

         I. BACKGROUND

         On October 21, 2016, Plaintiff Viveve, Inc. (“Plaintiff” or “Viveve”) filed its original complaint for infringement of U.S. Patent No. 8, 961, 511 (the “'511 patent”) against Defendants Thermigen, LLC; ThermiAesthetics, LLC; and Dr. Red Alinsod, M.D. (See Dkt. No. 1.) Viveve alleges that Defendants produce and market a vaginal reconstruction procedure under the name “ThermiVa, ” which purportedly infringes the '511 patent. (Dkt. No. 1 at ¶ 34.) According to Viveve, the ThermiVa procedure uses a radio frequency, thermistor tip to control heat delivery to specific genital tissues to tighten the target zone. (Id.) Most relevant to the present motion, Viveve alleges that Dr. Alinsod, in his individual capacity, both (1) directly infringes the '511 patent by performing the procedures claimed therein and (2) induces others to infringe the '511 patent. (Dkt. No. 1 at ¶¶ 38-39, 44-50.)

         Dr. Alinsod is a practicing urogynecologist who is licensed in the state of California. (Dkt. No. 14 at 4.) Viveve alleges that Dr. Alinsod is “the face of ThermiVa, ” and that his commercial development efforts aimed at selling and marketing the ThermiVa procedure constitute the basis for his alleged infringing conduct. (Dkt. No. 22.) In support of these allegations, Viveve asserts that Dr. Alinsod is an executive of ThermiAesthetics (one of the other named Defendants), that he is Charman of the Women's Health Clinical Advisory Board at ThermiAesthetics, and that he is the owner of the ThermiVa.org website. (Dkt. No. 1 at 15, 20.)

         On December 19, 2016, Dr. Alinsod filed his motion to dismiss pursuant to 12(b)(1), 12(b)(6), and 35 U.S.C. § 287(c). (Dkt. No. 14.) Dr. Alinsod argues that 35 U.S.C. § 287(c), the so-called “Physician's Immunity Statute, ” either deprives the Court of jurisdiction over a claim against him in his personal capacity or provides a defense rendering Viveve's claims against him implausible and thus worthy of dismissal under Rule 12(b)(6).[1]

         II. LEGAL STANDARD

         A. Rule 12(b)(6)

         Rule 8(a) of the Federal Rules of Civil Procedure, which governs pleadings in patent infringement cases, provides that a claim must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must assume that all well-pleaded facts are true and view those facts in the light most favorable to the plaintiff. Bowlby v. City of Aberdeen, 681 F.3d 215, 218 (5th Cir. 2012). The court may consider “the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.) L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The court must then decide whether those facts state a claim for relief that is plausible on its face. Bowlby, 681 F.3d at 217. “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). As the Supreme Court noted, the plausibility requirement is not akin to a “probability requirement at the pleading stage; it simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal” that the defendant is liable for the alleged misconduct. Bell Atl. Corp. v. Twombly, 550 U.S. 554, 556 (2007).

         B. Section 287(c)(1): The Physician's Immunity Statute

         Section 287(c) provides medical practitioners and related entities with a defense to infringement. See Lamson v. U.S., 117 Fed.Cl. 755, 762-63 (2014). Section 287(c)(1) of the Patent Act states: “With respect to a medical practitioner's performance of a medical activity that constitutes an infringement under section 271(a) or (b), the provisions of sections 281, 283, 284, and 285 shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity.” 35 U.S.C. § 287(c)(1). The term “medical practitioner” is defined in § 287(c)(2)(B) as “any natural person who is licensed by a State to provide the medical activity described in subsection (c)(1) or who is acting under the direction of such person in the performance of the medical activity.” Id. at 287(c)(2)(B). The statute also defines the term “medical activity” as “the performance of a medical or surgical procedure on a body, but shall not include (i) the use of a patented machine, manufacture, or composition of matter in violation of such patent, (ii) the practice of a patented use of a composition of matter in violation of such patent, or (iii) the practice of a process in violation of a biotechnology patent.” Id. at 287(c)(2)(A).

         C. Section 287(c)(3): Exceptions to the Physician's Immunity Statute

         Even if the elements of the defense provided in § 287(c)(1) are met, that provision does not apply to:

the activities of any person, or employee or agent of such person . . . who is engaged in the commercial development, manufacture, sale, importation, or distribution of a machine, manufacture, or composition of matter or the provision of pharmacy or ...

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