IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

SOVERAIN SOFTWARE LLC, §

§
Plaintiff, §
§
vs. § CASE NO. 6:09 CV 274
§ PATENT CASE
J.C. PENNEY CORPORATION, INC., et §
al., §
§
Defendants. §

ORDER

Avon Products, Inc.’s Motion to Dismiss the Complaint under Federal Rules of Civil

Procedure 12(b)(6) and 8(a)(2) (Docket No. 120) is before the Court. Having considered the parties’

written submissions, the Court DENIES the motion.

Avon moves to dismiss Soverain’s direct infringement claims under Rule 12(b)(6) arguing

that the patents-in-suit require the participation of multiple parties in order for direct infringement

to occur. Avon contends that Soverain’s complaint does not allege that Avon’s websites do not

direct or control all of the potentially infringing elements under BMC Resources, Inc. v. Paymentech,

L.P., 498 F.3d 1373 (Fed. Cir. 2007) and Muniauction, Inc. v. Thompson Corp., 532 F.3d 1318 (Fed.

Cir. 2008). As Avon contends that Soverain has not properly pled its direct infringement claims,

Avon also argues that Soverain’s indirect infringement claims must fail for the same reasons.

Finally, Avon contends that Soverain has not adequately pled its indirect infringement claims under

Rule 8(a)(2) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) because Soverain’s complaint

does not contain factual allegations of the knowledge required for inducement or contributory
infringement.

Soverain’s complaint sufficiently complies with Form 18, therefore under Rule 84 Soverain

has adequately pled its claims under Rule 8(a)(2) and Twombly. See Celltrace LLC v. MetroPCS

Commc’ns, 6:09cv371-LED (Docket No. 63). To the extent that Avon is arguing that it cannot

infringe the patents—and therefore Soverain could not have adequately pled infringement—because

Avon does not direct or control all of the infringing elements, that argument is premature at this stage

of the case. The Court denies the motion as to that argument without prejudice to re-raising after

discovery and claim construction.

So ORDERED and SIGNED this 12th day of April, 2010.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE