Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Albritton v. Acclarent, Inc.

United States District Court, N.D. Texas, Dallas Division

December 27, 2017

ACCLARENT, INC., Defendant.



         Before the Court are (1) a Motion to Dismiss Plaintiff's First Amended Complaint [ECF #26], and (2) a Motion for Leave to File a Supplemental Exhibit in Support of Motion to Dismiss [ECF #40], both filed by Defendant Acclarent, Inc. (“Acclarent”). For the following reasons, the Motion for Leave to File a Supplemental Exhibit is DENIED, and the Motion to Dismiss is DENIED in part, and GRANTED in part.


         The First Amended Complaint (“FAC”), which is the live pleading in this action and the subject of Acclarent's Motion to Dismiss, alleges Plaintiff Dr. Ford Albritton, IV (“Dr. Albritton”) is a prominent ENT surgeon and an innovator in the field of nasal and sinus surgery. FAC, ¶14. Acclarent is a medical device company that sells, among other things, balloon sinuplasty devices, including the Relieva Spin® and SpinPlus® devices. Id., ¶¶8, 15. In 2006, Dr. Albritton allegedly began working to develop a novel, surgical catheter device that could be operated with a single hand. Id., ¶15. Acclarent allegedly learned of this invention and contacted Dr. Albritton in 2007 to express interest in working with him to further develop the single-handed surgical catheter and other medical devices. Id., ¶15. On June 12, 2007, Dr. Albritton and Acclarent executed a Mutual Non-Disclosure Agreement (“NDA”) to facilitate the sharing of confidential information while the parties explored possible business opportunities of mutual benefit. Id., ¶16; see also id., Ex. A. In 2008, the parties negotiated and signed a consulting services agreement (“Consulting Agreement”), pursuant to which Dr. Albritton provided advice and guidance to Acclarent employees on modifications and improvements to several Acclarent products. Id., ¶¶25-27; see also id, Ex. F.

         By this lawsuit, Dr. Albritton alleges that Acclarent breached the NDA and the Consulting Agreement (1) by using his confidential information to develop Acclarent's Relieva Spin ® and SpinPlus ® devices; (2) by incorporating Dr. Albritton's pre-existing intellectual property into the patent applications that eventually issued as U.S. Patent No. 8, 414, 473 (“the ʼ473 patent”); (3) by failing to identify Dr. Albritton as a co-inventor of the technology claimed in the ‘473 Patent; and (4) by failing to assign Dr. Albritton all right, title, and interest in the ‘473 Patent. Dr. Albritton further alleges that Acclarent fraudulently induced him to sign both the NDA and the Consulting Agreement and that Acclarent committed fraud because Acclarent secretly used Dr. Albritton's confidential information for its own purposes, including filing for patent protection for its own benefit. Finally, Dr. Albritton alleges that Acclarent directly and indirectly infringes his patent, U.S. Patent No. 9, 011, 412 (“the ‘412 patent”), by making and selling the Acclarent Relieva devices, including the Relieva Spin® and the SpinPlus®.

         Acclarent moves to dismiss on limitations grounds Dr. Albritton's common law claims for breach of the NDA, breach of the Consulting Agreement, fraudulent inducement, and fraud. Acclarent further argues that Dr. Albritton's claims regarding breach and fraudulent inducement of the NDA should be dismissed because the NDA fails to protect the allegedly misused information and because the FAC fails to identify with sufficient particularity the conduct that allegedly induced Dr. Albritton to sign the NDA. Finally, Acclarent argues that the FAC establishes that the Acclarent Relieva devices do not infringe the ‘412 patent.

         Dr. Albritton responds that his common law claims are not barred by the statute of limitations because he adequately pleaded that Acclarent fraudulently concealed information that would trigger the statute of limitations and that his fraudulent inducement and patent infringement allegations are sufficient to state a claim for relief.

         The Court held a hearing on Acclarent's Motion to Dismiss on October 24, 2017, and the parties filed supplemental briefs directed to various limitations issues. On November 9, 2017, Acclarent filed a Motion for Leave to File pleadings submitted to the Patent Trial and Appeal Board (“PTAB”) in support of its Motion to Dismiss. The issues have now been fully briefed and argued, and both Motions are ripe for determination.

         Legal Standards

         To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must have pled “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In analyzing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court accepts all well-pleaded facts as true and views them in the light most favorable to the plaintiff. Thompson v. City of Waco, 764 F.3d 500, 502 (5th Cir. 2014); In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). The Court will not, however “accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.” Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir. 2010).

         A “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Howe v. Yellowbook, USA, 840 F.Supp.2d 970, 975 (N.D. Tex. 2011) (Lynn, J.) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Lone Star Nat. Bank, N.A. v. Heartland Payment Sys., Inc., 729 F.3d 421, 423 (5th Cir. 2013) (quoting Highland Capital Mgmt., L.P. v. Bank of Am., Nat'l Ass'n, 698 F.3d 202, 205 (5th Cir. 2012)). “Plausible” does not mean “probable, ” but it asks for “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         Claims sounding in fraud must also satisfy the heightened pleading standard set out in Fed.R.Civ.P. 9(b), which requires a party “alleging fraud or mistake . . . [to] state with particularity the circumstances constituting fraud or mistake.” United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir. 2009) (internal citation omitted). The Fifth Circuit has interpreted Rule 9(b) to require, at a minimum, that a plaintiff set forth the “who, what, when, where, and how” of the alleged fraud. United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997) (internal citation and quotation marks omitted). However, the Fifth Circuit has also stated that the “time, place, contents, and identity standard is not a straitjacket for Rule 9(b), ” concluding that Rule 9(b) is context-specific and flexible. Grubbs, 565 F.3d at 185.

         Preliminary Matters

         As a preliminary matter, Acclarent seeks leave to submit a copy of Dr. Albritton's response to Acclarent's petition for inter partes review (“IPR”) of the ‘412 patent, for the Court's consideration in connection with Acclarent's Motion to Dismiss Dr. Albritton's patent infringement claims. Acclarent contends the IPR Response filed with the PTAB is relevant to (1) the claim construction proposed by Dr. Albritton and (2) a hypothetical question posed by the Court at the October 24, 2017, hearing regarding “creative” use. More specifically, Acclarent argues Dr. Albritton's assertion at the hearing that the ‘412 patent is infringed if the Relieva devices are “capable of” manipulation of a working device with a thumb and forefinger is inconsistent with his position in the PTAB proceeding that the ‘412 patent covers only products that are “configured to” or “designed to” permit, and not merely “capable of” permitting, manipulation of the working device with both the thumb and index finger.

         Dr. Albritton argues that Acclarent's request should be denied because it is procedurally improper and substantively incorrect. Dr. Albritton contends that his arguments to this Court and the PTAB are consistent and that Acclarent improperly conflates the concepts of inherent anticipation, express anticipation, and literal infringement to show inconsistency.

         Acclarent's Motion is DENIED, and the Court will not consider Dr. Albritton's PTAB submission in the context of the pending Motion to Dismiss. The proffered material is not part of the FAC, and thus is outside of the scope of the pleadings the Court considers under Fed.R.Civ.P. 12(b)(6). See Scanlan v. Texas A & M Univ., 343 F.3d 533, 536 (5th Cir. 2003) (explaining that district court must not go outside the pleadings in determining whether to grant a motion to dismiss). As explained below, the Court declines to consider any claim construction arguments or resolve any disputed issue of fact at this stage in the litigation.

         Patent ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.