KEITH P. ELLISON, District Judge.
Pending before the Court are: (1) the Motion to Dismiss Pursuant to Rule 12(b)(6) and, in the Alternative, Rule 12(e) Motion for a More Definite Statement filed by Defendants FugroGeoteam, Inc., Fugro, Inc., Fugro (USA), Inc., and Fugro Geoservices, Inc., and joined by Fugro-Geoteam AS and Fugro Norway Marine Services (Doc. No. 123); and (2) the Motion to Dismiss for lack of personal jurisdiction filed by Fugro-Geoteam AS and Fugro Norway Marine Services (Doc. No. 133).
Upon considering the Motions, all responses thereto, and the applicable law, the Court finds that the Motion to Dismiss Pursuant to and, in the Alternative, Rule 12(e) Motion for a More Definite Statement (Doc. No. 123) must be granted in part and denied in part, and the Motion to Dismiss for lack of personal jurisdiction (Doc. No. 133) must be denied.
This is a patent infringement case originally brought by WesternGeco L.L.C. ("Plaintiff" or "WesternGeco") against Ion Geophysical Corporation ("Ion") in 2009.
In June 2010, WesternGeco filed suit against the following six entities: (1) FugroGeoteam, Inc.; (2) Fugro, Inc.; (3) Fugro (USA), Inc.; (4) Fugro Geoservices, Inc.; (5) FugroGeoteam AS; and (6) Fugro Norway Marine Services. (Case No. 4:10-cv-2120). For purposes of these motions, the following four entities will be referred to as the "Fugro U.S. Defendants": (1) Fugro-Geoteam, Inc.; (2) Fugro, Inc.; (3) Fugro (USA), Inc.; (4) Fugro Geoservices, Inc. The entities Fugro-Geoteam AS and Fugro Norway Marine Services will be referred to as the "Fugro Norway Defendants." When referring to all six entities, we will use the term the "Fugro Defendants." The case brought by WesternGeco against Fugro Defendants was consolidated with WesternGeco's suit against Ion.
For purposes of the motions to dismiss, the Court accepts the following factual allegations in Plaintiff's complaint as true. Frame v. City of Arlington, 575 F.3d 432, 434 (5th Cir.2009). The Fugro U.S. Defendants and the Fugro Norway Defendants are companies that conduct marine towed streamer surveys. (Compl. ¶ 22.) The Fugro U.S. Defendants are located at a Houston, Texas office (the "Houston Office"). (Id. ¶ 30.) In December 2009, a company named Statoil USA E & P, Inc. ("Statoil") applied for and received a Geological & Geophysical Permit from the U.S. Department of the Interior in order to conduct a three-dimensional (3D) marine seismic survey in the Chukchi Sea, off the coast of Alaska. (Compl. Exh. F at 1.) The permit application listed Statoil as the applicant and Fugro-Geoteam, Inc. as the "Service Company or Purchaser" that would be conducting the survey. (Id. at 46, 47.) A seismic vessel, the marine vessel Geo Celtic towing an airgun array of airgun and hydrophone streamers for data acquisition, would conduct the survey along with two support vessels. (Id. at 6.) The specifications for the Geo Celtic state that its "Operator" is "Fugro-Geoteam AS" and that "Seismic Management" is conducted by "Fugro Norway Marine Services AS." The survey would utilize Ion's DigiFIN and Compass Birds or DigiBIRD and/or Orca command and control software for streamer control and streamer positioning. (Compl. ¶ 31; Exh. F at 21, 23.) WesternGeco states that both the Fugro U.S. Defendants and the Fugro Norway Defendants have offered for sale products and services for use in the Chukchi Sea survey relying, in part, on equipment, services, and/or support provided from the Houston Office. (Compl. ¶ 32.)
The survey would explore Statoil's lease holdings in the Chukchi Sea. (Id. at 6, 8.) These lease holdings are located in the Outer Continental Shelf ("OCS"), approximately
WesternGeco filed suit against the Fugro Defendants, alleging that the Chukchi Sea survey and other activities constitute infringement of the same five U.S. patents at issue in its suit against Ion. Specifically, WesternGeco claims that the Fugro U.S. Defendants and the Fugro Norway Defendants have violated 35 U.S.C. §§ 271(a), (b), (c), and/or (f) by "making, using, offering to sell, selling and/or supplying in or from the United States products and services relating to steerable streamers (including but not limited to products and services incorporating DigiFIN and ORCA) and/or inducing and/or contributing to such conduct . . . ." (Compl. ¶¶ 34.) In addition, WesternGeco claims that the alleged infringement has been willful, rendering this an exceptional case pursuant to 35 U.S.C. § 285.
WesternGeco served both the Fugro U.S. Defendants and the Fugro Norway Defendants, the latter pursuant to the Convention of November 15, 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the "Hague Service Convention.") The Fugro U.S. Defendants filed a motion to dismiss WesternGeco's complaint pursuant to Rule 12(b)(6) and, in the alternative, a Rule 12(e) motion for a more definite statement. (Doc. No. 123.) The Fugro Norway Defendants joined in this motion to dismiss and asserted lack of personal jurisdiction as a separate ground for dismissal that is specific to the Fugro Norway Defendants. (Doc. No. 133.). The motions to dismiss have been briefed and are ripe for disposition.
WesternGeco avers the following facts in its complaint to support the exercise of personal jurisdiction over the Fugro Norway Defendants. The Fugro Norway Defendants are subsidiary companies that share a common owner, Fugro N.V., with the Fugro U.S. Defendants. The "Fugro-Geoteam" designation is a business or marketing brand that encompasses some or all of the Fugro entities and has worldwide responsibility for marine seismic data acquisition services within Fugro. Both the Fugro Norway Defendants and the Fugro U.S. Defendants operate as a single, world-wide, integrated company with substantial contacts in Houston, Texas. First, the Fugro Norway Defendants regularly sell products and services, including infringing products and services, to customers within the Southern District. For example, a Fugro Norway Defendant operated the vessel using the allegedly infringing equipment that conducted the Chukchi Sea seismic survey in order to provide seismic 3D data to Statoil, a company doing business in Houston, Texas. The seismic survey was managed by another Fugro Norway Defendant. Second, the Fugro Norway Defendants have offered for sale infringing products and services relying upon equipment, services, and/or support provided from the Southern District. A Fugro U.S. Defendant—Fugro-Geoteam, Inc.—is listed in the permit application for the Chukchi Sea survey as the "Service Company" who will be conducting exploration activity for Statoil, who is listed as the "Purchaser of Data." Third, both the Fugro Norway Defendants and the Fugro U.S.
WesternGeco has also offered the following facts via affidavit. The Fugro Norway Defendants have regular contacts within this District involving their marine surveys. Such contacts include advertising their seismic data acquisition services in a Houston-based oil and gas magazine, advertising and demonstrating their products and services at industry conferences in Texas, shipping seismic survey equipment to customers located in Houston, and receiving equipment through Galveston. The Fugro Norway Defendants list "6100 Hillcroft Houston, Texas" as their address for shipments. Listings for job opportunities with the Fugro Norway Defendants identify Houston, Texas as the location for the jobs. A Fugro Norway Defendant purchased allegedly infringing equipment from Ion, a Houston-based company, and assisted Ion to develop and test the infringing products. The Fugro Norway Defendants have not submitted any affidavits or documentation to controvert WesternGeco's affidavit.
Finally, WesternGeco submitted by affidavit a copy of an application submitted to the U.S. Department of Interior for a permit to conduct seismic surveys in the United States' Exclusive Economic Zone in the Gulf of Mexico. The permit application states that Fugro Geoteam AS, a Fugro Norway Defendant, will conduct seismic surveys for Fugro Multi Client Services, Inc., which is not a party to the litigation. The address for both companies is listed as 6100 Hillcroft Avenue, Houston, Texas, and both have identical telephone and fax numbers. The marine vessels conducting the surveys are the Geo Coral and the Geo Caspian. Fugro Norway Marine Services AS, a Fugro Norway Defendant, is listed as the entity that operates and conducts seismic management for both vessels. The vessels operate from the ports of Galveston, Texas and Fourchon, Louisiana. In addition, WesternGeco submitted via affidavit discovery material obtained from Ion that lists the Geo Coral and the Geo Caspian as vessels that use the allegedly infringing Ion device DigiFIN. The Fugro Norway Defendants assert that the facts contained in the permit application are wrong. They submit declarations from employees of Fugro Multi Client Services, Inc. and Fugro Geoteam, Inc. to assert that Fugro Geoteam Inc., a Fugro U.S. Defendant, rather than Fugro Geoteam AS, a Fugro Norway Defendant, should have been listed on the permit application. As support for this statement, they point out that the employees listed on the application—Hans Christian Vaage, Michael Whitehead, and Steve Garrison—are employees of Fugro Multi Client Services, Inc. and Fugro Geoteam, Inc. The permit application is also asserted to be incorrect in that it should not have listed Galveston, Texas as a port of operation.
We briefly address the existence of subject matter jurisdiction. The Fugro Defendants argue that WesternGeco's action should have been filed as a declaratory judgment action because the acts of
"Ripeness is a component of subject matter jurisdiction, because a court has no power to decide disputes that are not yet justiciable." Lopez v. City of Houston, 617 F.3d 336, 342 (5th Cir.2010) (citing Sample v. Morrison, 406 F.3d 310, 312 (5th Cir.2005)) (per curiam). "A court should dismiss a case for lack of `ripeness' when the case is abstract or hypothetical." Monk v. Huston, 340 F.3d 279, 282 (5th Cir.2003). The key considerations are "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). A claim is not ripe for adjudication if it rests upon "contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (omitting internal quotation and citation).
WesternGeco's complaint sets forth a number of factual allegations about the Fugro Defendants' activities, including their use of allegedly infringing Ion devices in marine towed streamer surveys, a contract with Statoil to conduct a seismic survey using infringing Ion devices, and offers to sell products and services based on use infringing Ion devices. These activities are characterized as having already occurred. At the time of the complaint's filing, the only alleged event that was yet to occur was the Chukchi Sea survey. The Fugro Defendants' activities during the survey are fit for judicial review. Though the survey may appear to be "abstract or hypothetical," it is "sufficiently likely to happen to justify judicial intervention." Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153 (5th Cir.1993) (citing 13A Charles Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3531.12, at 50 (1984)). There are no "contingent future events" upon which the Fugro Defendants are relying in order to proceed with the Chukchi Sea survey. Unlike cases where conditions precedent to a potentially unlawful action had not yet occurred, the Department of the Interior has already approved the necessary permit application for the survey. See Texas v. United States, 523 U.S. at 300, 118 S.Ct. 1257 (facial challenge to the Texas Education Code's provision appointment of special master was unripe when several statutorily-prescribed steps would have to occur before master would be appointed); Benitec Austl. v. Nucleonics, 495 F.3d 1340, 1346 (Fed.Cir.2007) (defendant's actions not ripe for challenge when they would not become infringing until after defendant filed new drug application with FDA); Monk v. Huston, 340 F.3d at 283 (action challenging proposed construction of a landfill was unripe when the landfill permit application had not yet been granted); Telectronics Pacing Sys., Inc. v. Ventritex, Inc., 982 F.2d 1520, 1527 (Fed.Cir. 1992) (patent infringement suit unripe where accused defibrillator had only begun clinical trials and was years away from FDA approval). The location of the Fugro Defendant's activities and Ion device accused of infringing are all known. The infringing Ion device appears to be installed on the Geo Celtic and ready for use, as indicated on the survey's Plan of Operations. It appears that no further factual issues need to be developed that would render the court in a better position to adjudicate the issues regarding the Chukchi Sea survey in the future than it is now. Pearson v. Holder, 624 F.3d 682, 684 (5th Cir.2010) (omitting citation).
Finally, the Fugro Defendants argue that WesternGeco must file a declaratory judgment action to prevent future infringement. The Federal Circuit has held that the proper vehicle for a suit to redress the future infringement would be an action under the Declaratory Judgment Act, 28 U.S.C. § 2201, rather than a suit under 35 U.S.C. § 271 alone. See Lang v. Pacific Marine & Supply Co., 895 F.2d 761, 765 (Fed.Cir.1990), abrogated on other grounds by, MedImmune, Inc. v. Genentech, 549 U.S. 118, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). Where, as here, there are a mix of allegations of past and future infringement, the Court grants WesternGeco leave to amend its complaint to add a request for a declaratory judgment. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) ("`[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal.'").
Federal Rule of Civil Procedure 12(b)(2) permits a defendant to move for dismissal of case for lack of personal jurisdiction. Federal Circuit law governs personal jurisdiction determinations in patent cases. Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564-65 (Fed.Cir.1994). Determining whether personal jurisdiction over a nonresident defendant is proper entails two inquiries: whether a forum state's long-arm statute permits service of process, and whether the assertion of jurisdiction would be inconsistent with due process. Electronics For Imaging, Inc. v. Coyle, 340 F.3d 1344, 1349 (Fed.Cir.2003). Because the Texas long-arm statute has been interpreted to extend as far as due process permits, see Electrosource, Inc. v. Horizon Battery Techs., Ltd., 176 F.3d 867, 871 (5th Cir. 1999), the sole inquiry is whether the exercise of personal jurisdiction over a nonresident defendant comports with federal constitutional due process requirements. See Electronics For Imaging, 340 F.3d at 1349-50; Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358 (Fed.Cir.1998).
Courts may exercise personal jurisdiction over defendants on either of two bases: specific or general jurisdiction. Synthes (U.S.A.) v. G.M. dos Reis Jr. Ind. Com. de Equip. Medico, 563 F.3d 1285, 1297 (Fed.Cir.2009). The Federal Circuit applies a three prong test to determine if specific jurisdiction exists: (1) whether the defendant purposefully directed activities at residents of the forum; (2) whether the claim arises out of or relates to those activities; and (3) whether assertion of personal jurisdiction is reasonable and fair. Nuance Communs., Inc. v. Abbyy Software House, 626 F.3d 1222, 1231 (Fed.Cir. 2010).
To establish the minimum contacts necessary to establish general jurisdiction, a plaintiff bears a higher burden. Avocent Huntsville Corp. v. Aten Int'l Co., 552 F.3d 1324, 1330 (Fed.Cir.2008). General jurisdiction "requires that the defendant have `continuous and systematic' contacts with the forum state and confers personal jurisdiction even when the cause of action has no relationship with those contacts." Silent Drive, Inc., 326 F.3d at 1200 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). "Neither the United States Supreme Court nor this court has outlined a specific test to follow when analyzing whether a defendant's activities within a [forum] are `continuous and systematic.'" Synthes (U.S.A.), 563 F.3d at 1297 (quoting LSI Indus. Inc. v. Hubbell Lighting, Inc., 232 F.3d 1369, 1375 (Fed.Cir.2000)).
If a plaintiff successfully makes a prima facie showing of minimum contacts, the burden shifts to the defendant to show that traditional notions of fair play and substantial justice would be violated by the exercise of jurisdiction. Patent Rights Prot. Group, LLC v. Video Gaming Techs., Inc., 603 F.3d 1364, 1369 (Fed.Cir.2010).
To survive a motion to dismiss in the absence of jurisdictional discovery, a plaintiff need only make a prima facie showing of jurisdiction and all pleadings and affidavits are to be construed in the light most favorable to the plaintiff.
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). "To survive a Rule 12(b)(6) motion to dismiss, a complaint `does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief— including factual allegations that when assumed to be true `raise a right to relief above the speculative level.'" Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That is, "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. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim has facial plausibility "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The plausibility standard is not akin to a "probability requirement,"
Ultimately, the question for the court to decide is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. The court must accept well-pleaded facts as true, but legal conclusions are not entitled to the same assumption of truth. Iqbal, 129 S.Ct. at 1950 (citation omitted). The court should not "`strain to find inferences favorable to the plaintiffs'" or "accept `conclusory allegations, unwarranted deductions, or legal conclusions.'" R2 Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005) (quoting Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 362 (5th Cir.2004)). A district court can consider the contents of the pleadings, including attachments thereto, as well as documents attached to the motion, if they are referenced in the plaintiff's complaint and are central to the claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir.2000). Furthermore, a court may refer to matters of public record when deciding a motion to dismiss. Chauhan v. Formosa Plastics Corp., 212 F.3d 595, 595 (5th Cir.2000). Importantly, the court should not evaluate the merits of the allegation, but must satisfy itself only that plaintiff has adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.2004). "Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted." Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir.2009) (citation omitted); Duke Energy Intern., L.L.C. v. Napoli, 748 F.Supp.2d 656, 671-72 (S.D.Tex.2010).
The Fugro Defendants argue that the Complaint fails to allege any action that could be an infringement of U.S. patents has occurred or will occur in the United States. In addition, three of the Fugro U.S. Defendants (Fugro, Inc., Fugro (USA), Inc., and Fugro Geoservices, Inc.) argue that there is no allegation of infringement as to any of them in any location. Alternatively, the Fugro Defendants request a more definite statement under Rule 12(e). The Fugro Norway Defendants assert that the Complaint does not allege facts necessary to assert personal jurisdiction over them. WesternGeco contests all of these arguments.
The Fugro Norway Defendants contest personal jurisdiction by arguing that WesternGeco has not established a prima facie case for either general or specific jurisdiction. The Fugro Norway Defendants contend that personal jurisdiction can arise only when the defendant has specific continuous and systematic contacts with Texas or when the cause of action arises from the defendant's activities within Texas. (Doc. No. 133 at 2.) Further, the Fugro Norway Defendants argue that, because WesternGeco has not shown and cannot show that an act of infringement will occur in the United States, they are not subject to personal jurisdiction. WesternGeco argues that it has provided sufficient facts for both general and specific personal jurisdiction, and that the exercise of such jurisdiction would be reasonable.
As an initial matter, we address an issue that the Fugro Norway Defendants argue precludes the exercise of both specific and general jurisdiction. The Fugro
The Court agrees with WesternGeco that the facts set forth in its complaint and affidavits confers specific jurisdiction over the Fugro Norway Defendants. When the cause of action at issue arises out of or relates to the defendants' contacts with the forum, the court may properly assert specific jurisdiction, even if the contacts are isolated and sporadic. Silent Drive, Inc., 326 F.3d at 1200. WesternGeco's averments about the Fugro Norway Defendants' activities directed at the residents of this forum fall into several categories. See Akro Corp., 45 F.3d at 1547 ("[P]laintiff need not be the forum resident toward whom any, much less all, of the defendant's relevant's activities were purposefully directed.")
First, WesternGeco points to the relationship between the Fugro Norway Defendants and the Fugro U.S. Defendants—which the Fugro Norway Defendants do not contest—in collaborating and cooperating in seismic data acquisition generally and the Chukchi Sea survey specifically. The Fugro Norway Defendants operates and manages the Geo Celtic, the vessel utilizing the allegedly infringing Ion devices, while the Fugro U.S. Defendants are listed as the "Service Company" that provides the data acquired by the Ion devices to Statoil, the "Purchaser of Data." The Fugro U.S. Defendants are located in and conduct business from their Houston Office. This type of relationship between the co-defendants, one a forum resident and one an out-of-state resident, serves as purposeful activities that the Fugro Norway Defendants have directed toward the forum resident. See Nuance Comm'ns, Inc., 626 F.3d at 1232 (finding purposefully directed activities due in part to the relationship between commonly owned sister companies operating under a consolidated global management team); Centre One v. Vonage Holdings Corp., Case No. 6:08cv467, 2009 WL 2461003, *3, 2009 U.S. Dist. LEXIS 69683, *11 (E.D.Tex. Aug. 10, 2009) (finding minimal contacts
Second, specific jurisdiction is appropriate because the Fugro Norway Defendants provided the services requiring use of the infringing Ion device to Statoil, which is alleged to be a Texas resident because it is located and conducts business from its office in Houston. In a patent infringement case, specific jurisdiction over a foreign defendant may be proper if the defendant sells the infringing item to customers in the forum state.
In a similar vein, WesternGeco asserts that specific jurisdiction is conferred by the Fugro Norway Defendants' recent application for a permit from the U.S. Department of the Interior to conduct a seismic survey exploration in the Gulf of Mexico.
However, we do not find a prima facie case of specific jurisdiction to be supported by evidence of the Fugro Norway Defendants' presence at trade shows and trade association meetings or advertisement in World Oil. The trade show evidence presented fails to describe the activities in which the Fugro Norway Defendants' employees were engaged, much less to establish that the Fugro Norway Defendants were advertising and/or sold infringing products or services at the shows. The advertisement in World Oil advertisement may confer personal jurisdiction but is not accompanied by appropriate evidence to demonstrate that World Oil is a Texas-based publication that is distributed to Texas residents.
Neither will we consider the Fugro Norway Defendants' transactions with other Houston-based customers because of the quality of evidence submitted in support of these links. As evidence of the Fugro Norway Defendants' sales to other Texas residents, WesternGeco relies on an averment
Similarly, we do not base our finding of specific jurisdiction upon WesternGeco's assertion that the Fugro Norway Defendants' relationship as purchaser of products from Ion, a co-defendant in this litigation, subjects them to specific jurisdiction. Although WesternGeco claims that Ion Geophysical Inc., a Texas resident, sold the infringing Ion devices to the Fugro Defendants, the purchasing and collaboration agreement submitted as evidence identifies Concept Systems Limited and Ion Marine as the selling parties, which do not appear to be Texas residents. The two DigiFIN Evaluation Test Reports that are copyrighted by Ion Geophysical Inc. document testing and collaboration, rather than sales, between the entities that occurred outside of Texas.
In sum, we find that WesternGeco has established a prima facie case of personal jurisdiction over the Fugro Norway Defendants based on the Fugro Norway Defendants' contacts with the Fugro U.S. Defendants, with Statoil, and identification on the Gulf of Mexico survey permit application, all of which give rise to or relate to WesternGeco's claims of patent infringement.
The Court agrees with WesternGeco that the facts set forth in its complaint and affidavits confer general jurisdiction over the Fugro Norway Defendants. WesternGeco argues that the Fugro Norway Defendants have "continuous and systematic" contacts with Texas because they regularly advertise, sell, and ship products and services to and purchase products from Texas residents. In addition, WesternGeco contends that the Fugro Norway Defendants rely on the Houston Office for its headquarters for managing marine surveys and receiving marine seismic products. In addition, the Fugro Norway Defendants' collaboration with Ion in the development of the infringing products and services confer general jurisdiction.
Neither the Supreme Court nor the Federal Circuit has outlined a specific test to follow in order to determine whether a defendant's activities within a forum are "continuous and systematic." Synthes (U.S.A.), 563 F.3d at 1297. However, caselaw suggest that an ongoing business relationship with forum residents, rather than occasional advertisements and attendance at trade shows, can support a finding of continuous and systematic contacts. In Synthes (USA), the Federal Circuit held that a foreign defendant's attendance at trade shows in the forum, purchases of parts and a machine in the forum, the sale of a product to a customer in the forum, and consultations in the forum about product development did not rise to the level of continuous and systematic contacts. Id. In Centre One, a district court examined the relationship between
At this stage, without the opportunity for discovery, WesternGeco need only make a prima facie case for personal jurisdiction; jurisdiction will need to be proved by a preponderance of the evidence at trial. See Mullins v. TestAmerica Inc., 564 F.3d 386, 399 (5th Cir.2009). The strongest allegations that WesternGeco submits for the exercise of general jurisdiction consists of the Fugro Norway Defendants' own ties to Texas. In its complaint, WesternGeco avers Fugro operates as a single, world-wide, integrated company with substantial contacts in Texas. In addition, WesternGeco avers that the Fugro entities that have offered for sale allegedly infringing products and services relied, in part, on services and/or support provided from Fugro's Houston office. In support of the averments in the complaint, WesternGeco offers documentation of a relationship between the Fugro Norway Defendants, on one hand, and the Fugro U.S. Defendants residing in Texas, on the other. For example, Fugro-Geoteam AS operates and Fugro Norway Marine Services AS performs seismic management for the Geo Celtic, which will carry out the seismic data acquisition in the Chukchi Sea on behalf of Fugro Geoteam, Inc., a Texas resident located at "6100 Hillcroft, Houston, TX." Similarly, the companies will operate and conduct seismic management for the Geo Pacific and Geo Coral, which will carry out seismic data acquisition in the Gulf of Mexico on behalf of Fugro Multi Client Services, Inc., a Texas resident located at "6100 Hillcroft Houston, TX." This fact is not controverted by the Fugro Norway Defendants. In addition to the Fugro Norway Defendants' connections to Fugro entities residing in Texas, WesternGeco contends that the Fugro Norway Defendants are themselves located and conducting business in Texas. Fugro Geoteam AS is listed as the Service Company/Provider on the permit application for the Gulf of Mexico survey. In the application, Fugro Geoteam AS's address is "6100 Hillcroft, Ho[u]ston, TX." The Fugro Norway Defendants
However, the presence of employees of the Fugro Norway Defendants at two trade association meetings, without description of their activities at those meetings, and a single advertisement in a magazine does not create continuous and systematic contacts with Texas. See Synthes (USA), 563 F.3d at 1297. Neither can the Fugro Norway Defendants' purported purchase from Ion serve as contacts with Texas because WesternGeco's evidence does not establish that the Ion entity selling devices is a Texas resident. The collaborative testing of allegedly infringing Ion devices by Ion Geophysical, Inc. and the Fugro Norway Defendants does not identify activity that could constitute the Fugro Norway Defendants' continuous or systematic contacts with Texas. Finally, the two sales to Sercel, Inc., a company that has an address in Houston, TX, in December 2007 and July 2009 do not establish that the Fugro Norway Defendants had a high level of sales in Texas or to Texas residents.
We are required to construe all pleadings and affidavits in the light most favorable to WesternGeco and take as true all uncontroverted allegations in WesternGeoc's complaint. As such, we find that WesternGeco's averments that the Fugro Norway Defendants have an ongoing business relationship with the Fugro U.S. Defendants residing in Texas, and that they maintain regular and ongoing contacts with Texas themselves. Such inferences are reasonable in light of the evidence that WesternGeco has submitted. Therefore, we find that WesternGeco has established a prima facie case for the exercise of general jurisdiction.
Finally, we examine whether the Fugro Norway Defendants have met their burden in establishing that the exercise of jurisdiction would offend principles of fair play and substantial justice. The Fugro Norway Defendants have not submitted any evidence or argument to this effect.
Based on our review of the five factors set forth by the Supreme Court in Burger
In sum, we conclude that WesternGeco has established a prima facie case for the exercise of specific and general personal jurisdiction over the Fugro Norway Defendants.
The Fugro Defendants argue that WesternGeco's allegations of infringement in the Chukchi Sea survey are not actionable under U.S. patent law. Further, three entities (Fugro, Inc., Fugro (USA), Inc., and Fugro Geoservices, Inc.) argue that dismissal is required on the additional ground that there is no allegation that these defendants infringed WesternGeco's patents in any location. Alternatively, the Fugro Defendants request that the Court order a more definite statement by WesternGeco pursuant to Rule 12(e).
In response, WesternGeco argues, first, that its complaint tracks Form 18 of the Federal Rules of Civil Procedure, which provides a form patent infringement complaint, and therefore is sufficient to avoid dismissal for failure to state a claim. Next, WesternGeco argues that acts taking place in the Chukchi Sea are acts within the United States for purposes of patent law. Finally, WesternGeco argues that components supplied from Dutch Harbor, Alaska are sufficient to state a claim for infringement under 35 U.S.C. § 271(f).
As a general matter, we review whether WesternGeco's use of Form 18 of the Federal Rules of Civil Procedure as a template for its patent infringement complaint allows it to meet the pleading standards of Rule 8. The Federal Circuit has held that a complaint pleaded in conformity with Form 18 is sufficient to avoid dismissal for failure to state a claim even after the Supreme Court's decision in Twombly. See McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356-58 (Fed.Cir.2007); see also Petersen Indus. v. Hol-Mac Corp., No. 4:10-cv-152-CWR-FKB, 2011 WL 577377, 2011 U.S. Dist. LEXIS 13369 (S.D.Miss. Feb. 9, 2011) (holding that the logic of McZeal still stands after Twombly and Iqbal). Here, WesternGeco's complaint conforms to the structure and content of Form 18. In addition, paragraphs 34, 40, 46, 52, and 58 in WesternGeco's complaint are factual recitations as opposed to legal conclusions, and fulfill the general pleading requirements for patent infringement under §§ 271(a), (b), (c), and (f). See, e.g., McZeal, 501 F.3d at 1356-57; Tune Hunter, Inc. v. Samsung Telcoms. Am., LLC, Civ. Action No. 2:09-cv148-TJW, 2010 WL 1409245, *4-5, 2010 U.S. Dist. LEXIS 31980, *11-*13 (E.D.Tex. Apr. 1, 2010).
However, we cannot stop here. With respect to WesternGeco's claim for inducement of infringement under § 271(b),
Similarly, contributory infringement under § 271(c)
Finally, WesternGeco's use of the collective term "Fugro" to refer to the actions of all Fugro Defendants, without distinguishing among the acts of each defendant, is not fatal to its complaint. The Federal Circuit has approved the use of a collective term within a complaint to refer to acts of all defendants without distinction among the exact infringing acts performed by each one. See McZeal, 501 F.3d at 1357 (holding that a complaint alleging only that "defendants" had offered an infringing product for sale, without regard to which of the two defendants specifically had offered the product for sale, contained "enough detail to allow the defendants to answer"). In addition, WesternGeco's averments in its complaint, which we must accept as true, indicate that the Fugro Defendants operate as a world-wide integrated organization and under the trade name "Fugro Geo-team," which encompasses some or all of the Fugro Defendants. At this stage, WesternGeco may not know which Fugro Defendant performed what role in the allegedly infringing activity. However, the specific roles of each Fugro Defendant may be determined in discovery. See id. at 1357-58 (holding that plaintiff's complaint fashioned on publicly available information about how defendants' purportedly infringing device was sufficient and that specifics could be determined through discovery). The Fugro Defendants attempt to introduce facts about each Fugro Defendant in their motion to dismiss, but because they are unsubstantiated by attachments to the motion, we cannot consider such statements in our determination. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-499 (5th Cir.Tex.2000) (approving of use of documents attached by a defendant to a motion to dismiss "if they are referred to in the plaintiff's complaint and are central to her claim."). We note the patent infringement cases cited by the Fugro Defendants in support of their argument that undistinguished facts asserted against multiple defendants generally in insufficient to state a claim against each. See, e.g., PLS-Pacific Laser Sys. v. TLZ Inc., 2007 WL 2022020, 2007 U.S. Dist. LEXIS 53176 (N.D.Cal. July 9, 2007). However, we decline to follow these cases and instead
The Fugro Norway Defendants argue that none of the acts alleged to be infringing during the Chukchi Sea survey constitute infringement under U.S. patent law because they occur outside of the United States. Specifically, the survey's Plan of Operations identifies Statoil's location of the lease holdings being surveyed as approximately 100 miles off the coast of Alaska. WesternGeco contends that the lease holdings are within the Outer Continental Shelf ("OSC") and the Exclusive Economic Zone ("EEZ") of the United States, both of which are within the United States for purposes of U.S. patent law.
Under 35 U.S.C. § 271(a), "whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States" infringes the patent. "It is well-established that the reach of section 271(a) is limited to infringing activities that occur within the United States." See MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1376 (Fed.Cir.2005); Rotec Indus. v. Mitsubishi Corp., 215 F.3d 1246, 1251 (Fed.Cir.2000) (quoting Dowagiac Mfg. Co. v. Minn. Moline Plow Co., 235 U.S. 641, 650, 35 S.Ct. 221, 59 L.Ed. 398 (1915)) ("[T]he right conferred by a patent under our law is confined to the United States and its territories, and infringement of this right cannot be predicated of acts wholly done in a foreign country."). The term "United States" is defined broadly to include the "United States of America, its territories and possessions." 35 U.S.C. § 100(c);
The issue presented here is whether the seas located approximately 100 miles away from Alaska can be considered "territory" of the United States for purposes of patent law. Many cases analyze the particular type of patent, and the "situs" of the infringing activity, in order to determine whether infringement was within the United States. See, e.g., Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296, 1307-10 (Fed.Cir.2010) (whether "offers to sell" occurred within the United States); NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282, 1313-24 (Fed.Cir.2005) (whether infringement of system and method patent occurred in the United States); MEMC Elec. Materials, Inc., 420 F.3d at 1375-77 (whether "offers to sell" occurred within the United States); Rotec Indus., 215 F.3d at 1251-57 (same).
Far fewer courts have addressed whether a particular geographic area is United States territory. The line of cases begin with Brown v. Duchesne, 60 U.S. (19 How.) 183, 15 L.Ed. 595 (1857), in which the Supreme Court held that U.S. patent law did not apply to foreign commercial vessels coming into the ports of the United States temporarily that carried, but did not use, infringing items. Brown did not squarely answer a question of whether a particular area constituted territory of the United States, but referred to use of a patented invention on the high seas as "out of the jurisdiction of the United States." Id. at 599-600. Distinguishing Brown, the next case, Gardiner v. Howe, 9 F.Cas. 1157 (C.C.D.Mass.1865), held that U.S. patent law reached infringement occurring upon a U.S. flag vessel on the high seas. Recognizing that patent law affords "no protection to inventions beyond or outside the jurisdiction of the United States," the court nonetheless concluded that, because the decks of American vessels were subject to U.S. jurisdiction, the vessels would be subject to U.S. patent law. Id. at 1158. In Marconi Wireless Tel. Co. v. United
An examination of the territorial reach of U.S. patent law must begin with the fact that "patents arise out of an act by the government of the granting country." 3 Moy's Walker on Patents § 12:10, at 12-25 (4th ed. 2004). As such, "a patent is a sovereign grant and has no force beyond the territorial limits of sovereignty." Hanover Star Milling Co. v. Allen & Wheeler Co., 208 Fed. 513 (7th Cir.1913); Opinion of the Comptroller General of the United States, 150 U.S.P.Q. 298, 300, 1968 WL 8347 (Comp.Gen.1968) ("It is a fundamental concept that territorial limitations of sovereignty preclude a country from giving extraterritorial effect to its patent laws.").
The United States possesses different forms of sovereign rights and territorial jurisdiction over a series of geographic zones that extend away from the terrestrial limits of its coast. See Louisiana Boundary Case, 394 U.S. 11, 22-23, 89 S.Ct. 773, 22 L.Ed.2d 44 (1969). First, the United States possesses complete sovereignty over the territorial sea—a belt of sea that extends no more than 12 miles seaward of the baseline
Here, we must review the three different statuses of the portion of the Chukchi Sea surveyed by the Fugro Norway Defendants—as high seas, as U.S. EEZ, and as superjacent to U.S. continental shelf—in order to determine whether the geographic area can be deemed U.S. territory subject to U.S. patent law. First, we determine whether the Chukchi Sea, when considered as "high seas," is U.S. territory. It is a fundamental principle of customary international law that no state may exercise sovereignty over the high seas. Louisiana Boundary Case, 394 U.S. at 23, 89 S.Ct. 773; see also Restatement (3d) of Foreign Relations Law § 521 cmt. a ("No state may appropriate any part of the high seas or otherwise subject the high seas to its sovereignty."); Ian Brownlie, Principles of Public International Law 226 (7th ed. 2008) ("The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty.").
Second, we determine whether the Chukchi Sea, when considered as the U.S. EEZ, is U.S. territory. The Presidential Proclamation establishing the EEZ stated that:
Presidential Proclamation No. 5030. Congress has enacted extensive legislation to implement the sovereign rights recognized by this Presidential statement. See Schoenbaum, Admiralty & Mar. Law § 2-16, at 39 (citing legislation). However, the Proclamation also explicitly provides that, "[w]ithout prejudice to the sovereign rights and jurisdiction of the United States, the Exclusive Economic Zone remains an area beyond the territory and territorial sea of the United States in which all States enjoy the high seas freedoms of navigation, overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea." Presidential Proclamation No. 5030. This provision incorporates the principle that the sovereign rights that the United States enjoys in its EEZ and continental shelf are "functional in character, limited to specified activities." Restatement (3d) of Foreign Relations Law § 511 cmt. b.
The Fugro Norway Defendants are engaged in activity that arguably could be characterized as exploration of "natural resources, both living and non-living, of the seabed and subsoil" in the EEZ, which is subject to the United States's sovereign rights. Under one analytical approach, the fact that the United States possesses a subset of resource-related sovereign rights over these activities in the EEZ and possesses the power to enforce patent law within the territorial limits of its sovereignty leads to the conclusion that U.S. patent law applies to natural resource-related activity that occurs in the EEZ. However, we decline to take that approach for three reasons. First, the Presidential Proclamation establishing the EEZ explicitly acknowledges that the extension of sovereign rights over the EEZ does not change the EEZ's character as outside the territory of the United States. Customary international law and UNCLOS reaffirm the principle that a country's EEZ retains its character as outside the territory of that country and largely maintains its status as high seas. The Australian patent statute cited by WesternGeco as support for the proposition that a country's patent law covers the EEZ may be interpreted in an opposite manner. The statute expressly states that it shall "extend to: (a) each external territory; and (b) the Australian continental shelf; and (c) the waters above the Australian continental shelf; and (d) the airspace above Australia, each external Territory and the Australian continental shelf." Patents Act 1990(Cth) § 12 (Australia). The provision "the waters above the Australian continental shelf" would refer to the Australian EEZ. Rather than firmly establishing that Australia considers the EEZ to be part of its territory, the
Second, the United States does not possess full sovereign rights over the EEZ, but only a certain subset of rights related to economic exploration and exploitation. Moreover, its jurisdiction is even further circumscribed to the establishment and use of artificial islands, installations and structures, and protection of the marine environment, and does not include jurisdiction over marine scientific research. Presidential Proclamation No. 5030. The Geo Celtic is a marine vessel that does not fall within the categories of items or issues subject to U.S. jurisdiction. WesternGeco cites a South African case holding that South African patent law extends to the South African EEZ, but fails to note that the infringing activity concerned a pipeline, which was held to be an "installation" as defined by UNCLOS and subject to South African jurisdiction. See Schlumberger Logelco, Inc. v. CoFlexip, Case No. 700/98 (Supr.Ct.App.S.Afr. May 25, 2000).
Third, Congress has not enacted legislation that extends U.S. patent law to cover infringement occurring in the EEZ. Without express statutory instruction, courts are reluctant to extend the geographic reach of a patent right. See Johns Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342, 1367 (Fed.Cir.1998) (declining to extend 35 U.S.C. § 283 to enjoin activities in a foreign country that did not constitute infringement within the United States); Rotec Indus., 215 F.3d at 1257-58 (declining to extend the amendment to 35 U.S.C. § 271(a) to § 271(f)(2) in order to proscribe "offers to supply" from the United States components of a patented invention where offers were made in the United States); Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 92 S.Ct. 1700, 32 L.Ed.2d 273 (1972), superseded by statute, 35 U.S.C. § 271(f) (declining to enjoin the manufacture of parts of a patented invention in the United States as "making" under § 271(a) when the operable assembly of the parts did not occur within the United States). In Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007), the Supreme Court reaffirmed that the "presumption that United States law governs domestically but does not rule the world applies with particular force in patent law." Id. at 454-55, 127 S.Ct. 1746. At issue in Microsoft was the supply of intangible data from the United States for copying abroad, which AT & T argued should be actionable under § 271(f). Though the installation of copied data allowed infringement to occur abroad, the Supreme Court held that the supply of "component" under § 271(f) applied only to tangible forms of software. Id. at 451-52, 127 S.Ct. 1746. Noting that such an interpretation of § 271(f) left a "loophole" that could be exploited by software makers, the Court nevertheless believed the loophole to be "properly left for Congress to consider, and to close if it finds such action warranted" due to the "expanded extraterritorial thrust" closure would require. Id. at 457, 458, 127 S.Ct. 1746 (citing Sony Corp. of Am. v. Universal
A similar loophole would appear to exist here—as the EEZ is outside of the territorial United States, and Congress has limited the reach of U.S. patent law to the United States and its territories, infringing activity would not be actionable under U.S. patent law. Even though U.S. jurisdiction has been extended to the EEZ for some, but not all activities, this begs the question of whether it takes U.S. patent law—which territorially limited—along with it. Congress could extend the reach of U.S. patent law to encompass marine scientific research occurring in the EEZ, as countries such as Australia and the United Kingdom have done. See Litecubes, LLC v. Northern Light Products, Inc., 523 F.3d 1353, 1363 (Fed.Cir.2008) (quoting EEOC v. Arabian Am. Oil. Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991)) ("Congress has the authority to enforce its laws beyond the territorial boundaries of the United States."); Patents Act 1990(Cth) § 12(c) (Australia); Patents Act 1977 § 132(4)(UK); cf. UNCLOS art. 246 ("Coastal States, in the exercise of their jurisdiction, have the right to regulate, authorize and conduct marine scientific research in their exclusive economic zone and on their continental shelf in accordance with the relevant provisions of this Convention."). With Congressional action, however, we refrain from doing so.
Thus, we find that the Fugro Norway Defendants' activities in the EEZ do not occur within the territory of the United States for purposes of U.S. patent law.
Finally, we examine whether the Fugro Norway Defendants' activities with respect to the continental shelf are considered to be within the territory of the United States. Under the Outer Continental Shelf Lands Act ("OCSLA"), the federal government has jurisdiction and control over the continental shelf. See 43 U.S.C. §§ 1301, 1331(a), 1332. OSCLA mandates:
43 U.S.C. § 1333(a)(1); see also Shell Oil Co. v. Iowa Dep't of Revenue, 488 U.S. 19, 27, 109 S.Ct. 278, 102 L.Ed.2d 186 (1988). However, OCSLA must be "construed in such a manner that the character of the waters above the outer Continental Shelf as high seas . . . shall not be affected." 43 U.S.C. § 1332(2); see also UNCLOS art. 78(1) ("The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters."). Federal district courts have jurisdiction over cases and controversies arising out of operations conducted on the OCS "which involve[]
OCSLA can be read as providing the Court with subject matter jurisdiction to hear this dispute because it relates to the exploration of lease holdings in the OCS. See 43 U.S.C. § 1331(k); Texaco Exploration & Prod. v. AmClyde Engineered Prods., 448 F.3d 760, 769 (5th Cir.2006) (recognizing that OCSLA's jurisdictional grant is broad). However, the broad grant of subject matter jurisdiction does not also extend the reach of U.S. substantive law, including patent law, to exploration activities. Rather, substantive law is provided via § 1333, which states that United States law applies to the seabed and subsoil of the OCS, to devices permanently or temporarily attached to the seabed, or to devices or vessels meant to transport resources obtained from the seabed. See 43 U.S.C. § 1333(a)(1); see also Demette v. Falcon Drilling Co., 280 F.3d 492, 496 (5th Cir.2002), overruled on other grounds by Grand Isle Shipyard Inc. v. Seacor Marine, LLC, 589 F.3d 778, 788 (5th Cir.2009). Section 1333 does not extend substantive law to vessels traversing the seas above the OSC for purposes of conducting seismic exploration, and that are neither permanent nor temporarily attached to the seabed.
WesternGeco conflates the character of the OSC as an area subject to federal regulatory and permitting authority with the character of the seas above the OSC, which both customary international law and OSCLA maintain as "high seas." WesternGeco has not alleged facts to suggest that the Geo Celtic falls within any of the categories set forth in § 1333(a)(1) as subject to the laws of the United States. Indeed, the Geo Celtic appears to perform seismic data acquisition while traversing the seas above the OCS and does not attach itself to the seabed. Thus, OCSLA's extension of U.S. law cannot be used to extend U.S. patent law to cover the acts of infringement alleged here. See Offshore Logistics v. Tallentire, 477 U.S. 207, 218, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) ("The extension of OCSLA far beyond its intended locale to the accident in this case simply cannot be reconciled with either the narrowly circumscribed area defined by the statute or the statutory prescription that the Act not be construed to affect the high seas which cover the Continental Shelf.").
In sum, we hold that the acts of direct infringement the Fugro Norway Defendants are alleged to have performed while surveying Statoil's lease holdings in the Chukchi Sea are outside the territory of the United States and thus not actionable under 35 U.S.C. § 271(a). We note, however, the limited nature of this holding. The Fugro Defendants have not challenged WesternGeco's allegations of their direct infringement in the form of "sale" or "offers to sell" in the United States. In addition, The parties have not contested, and we decline to decide, whether the Chukchi Sea survey can, as a matter of law, constitute inducing or contributory infringement under §§ 271(b), (c). Indeed, several courts have held that § 271(b) "applies to exclusively territorial conduct." Wing Shing Products (BVI), Ltd. v. Simatelex Manufactory Co., 479 F.Supp.2d 388, 409 (S.D.N.Y.2007) (collecting cases). The Federal Circuit has not definitively addressed whether inducing activity extraterritorially can give rise to liability under U.S. patent law, see MEMC Electronic
The Fugro U.S. Defendants and the Fugro Norway Defendants argue that the complaint fails to allege that any act of infringement will occur in the port of Dutch Harbor, Alaska. The Plan of Operations for the Chukchi Sea survey states that Dutch Harbor is where the Geo Celtic will load crew and supplies before heading to the lease holdings to conduct the survey. Even if an act of infringement were to take place in Dutch Harbor, the Fugro Defendants argue that this activity falls within the exemption of 35 U.S.C. § 272. WesternGeco argues that infringing components and equipment will be provided from Dutch Harbor, Alaska in violation of 35 U.S.C. § 271(f) and that § 272 does not exempt the Fugro Defendants from liability.
Section 271(f) states:
35 U.S.C. § 271(f). This section requires that the infringing act—supplying or causing to be supplied components for infringement upon a patent—take place within the
Here, all five patents owned by WesternGeco recite apparatus claims and fall within the scope of § 271(f), though their method claims cannot be infringed under § 271(f). WesternGeco bases its § 271(f) allegation on the theory that the Fugro Defendants have supplied or caused to be supplied from Dutch Harbor components of infringing seismic streamer technology. The Plan of Operations of the Chukchi Sea survey states that the Geo Celtic will be "supplied" from Dutch Harbor before it travels to the Chukchi Sea to complete its survey, which allegedly will use infringing Ion seismic streamer arrays. No further detail is provided in the Plan of Operations or in the complaint itself about the items to be supplied when the Geo Celtic berths at Dutch Harbor. The description of the Geo Celtic's specifications suggests that allegedly infringing Ion software and products are already installed on the Geo Celtic. Viewing the facts alleged in the light most favorable to WesternGeco, as we must, the complaint alleges sufficient facts to make out a plausible claim that components of the infringing apparatus were supplied by the Fugro Defendants to the Geo Celtic while it was located in Dutch Harbor. This is not an "unwarranted deduction" because the entire purpose of the Chukchi Sea survey was to perform seismic data acquisition. Thus, "supply" of the Geo Celtic before it set off on its seismic survey may have included supply of the components needed to perform the survey. Further, the complaint alleges that the Fugro Defendants were aware of WesternGeco's patents, thereby providing sufficient allegations that the Fugro Defendants possessed the requisite intent under § 271(f) to induce the combination of components in a manner that would infringe the patents. See DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1304 (Fed.Cir.2006). Thus, we conclude that WesternGeco has stated a claim against the Fugro Defendants for infringement under § 271(f) of the apparatus claims of its patents.
Section 272 provides that:
35 U.S.C. § 272. A vehicle entering the United States "temporarily" is one "entering the United States for a limited period of time for the sole purpose of engaging in international commerce." Nat'l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1329 (Fed.Cir.2004). In Nat'l Steel Car, the Federal Circuit found "international
WesternGeco argues that the infringing Ion devices installed on the Geo Celtic are neither used "in" the Geo Celtic (in other words, they are towed "behind" the vessel) nor used exclusively for the needs of the vessel. In addition, WesternGeco argues that the Geo Celtic will not be in the United States temporarily and that the infringing Ion products will be used in the manufacture of seismic data to be sold in and exported from the United States. The Fugro Defendants argue that the Ion devices are a need of the Geo Celtic, that they are used "in" the Geo Celtic, that the Geo Celtic is in the United States temporarily, and that the Ion products will not be sold in the United States.
The complaint and its attachments allege that the Geo Celtic will use the Ion devices to conduct a seismic survey of the Chukchi Sea. The seismic survey is "designed to collect 3D data of the deep sub-surface in the area of Statoil's lease holdings" in order to "support future oil and gas exploration within the area of coverage." (Compl., Ex. F at 1.) These facts indicate the use of Ion's devices— the allegedly infringing invention—to manufacture 3D data. Next, the party to be provided with the 3D data is Statoil, a company located and doing business in the United States according to the Plan of Operations. Statoil has contracted with Fugro Geoteam, Inc., which uses vessels operated and managed by the Fugro Norway Defendants, to obtain the 3D data. The 3D data has been sold in the United States in the sense that it has been sold by one U.S. company to another. Since we conclude that, based on the complaint and the attachments, the Geo Celtic used the allegedly infringing invention for the manufacture of an item to be sold in the United States, we need not review the other issues related to exclusive use for the needs of the vessel, use within the vessel, and temporary presence.
For the reasons stated above, the Fugro Norway Defendants' Motion to Dismiss for lack of personal jurisdiction (Doc. No. 133) is
WesternGeco is
