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Smart Wearable Technologies Inc. v. Microsoft Corp.

United States District Court, W.D. Virginia, Charlottesville Division

January 31, 2017

SMART WEARABLE TECHNOLOGIES INC., Plaintiff,
v.
MICROSOFT CORPORATION, Defendant.

          MEMORANDUM OPINION

         By: Hon. Glen E. Conrad Chief United States District Judge Smart Wearable Technologies Inc. ("Smart Wearable") filed this action against Microsoft Corporation ("Microsoft"), alleging that Microsoft has infringed Claim 8 of U.S. Patent No. 6, 997, 882 ("the '882 Patent"). Microsoft has moved to dismiss the case under Rule 12(b)(6) of the Federal Rules of Civil Procedure, based on a printing error in Claim 8. Microsoft argues that the printing error cannot be corrected by the court, and that it renders the patent claim invalid under 35 U.S.C. § 112. For the reasons set forth below, the court finds Microsoft's arguments premature at this stage of the proceedings. Accordingly, the motion to dismiss will be denied.

         Background

         Smart Wearable is the owner of the '882 Patent, titled "6-DOF Subject Monitoring Device and Method, " which was issued by the United States Patent and Trademark Office ("USPTO") on February 14, 2006. The patent "relates to systems and methods of monitoring a subject using acquired six degree-of-freedom ("6-DOF") data regarding the subject as well as acquired physiological data of the subject." Compl. ¶ 6, Docket No. 1. "Specifically, certain claims of the '882 Patent disclose the use of an acceleration module to obtain 6-DOF data descriptive of the movement of a subject." IcL "The 6-DOF data is synchronized with obtained physiological data, such as the sensed, detected, or measured heart rate of the subject, " and [t]he synchronized 6-DOF and physiological data is then displayed." Id.

         Smart Wearable contends that Microsoft has infringed the '882 Patent by making and selling items that "practice one or more claims of the '882 Patent." Id. at ¶ 11. In particular, Smart Wearable alleges that Microsoft's "Band 1" and "Band 2" products "infringe at least claim 8 of the '882 Patent." Id. at ¶ 12.

         Claim 8 recites "a method of monitoring a subject during a monitoring period, " which is comprised of seven "steps, " lettered (a) through (g). Compl. Ex. A at 28, Docket No. 1-1. The original version of the claim contains a printing error by the USPTO. Step (b) of Claim 8 should read:

(b) acquiring from the acceleration module attached at step (a) acceleration signals representing the accelerations of the body-segment relative to each of the x, y, and z-axes of an anatomical reference frame;

Pi's Br. in Opp'n Ex. A at 3, Docket No. 20-2. However, the underlined language is missing from the original version of the claim.[1]

         Based on the printing error, Microsoft moved to dismiss the patent infringement action under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court held a hearing on the motion on December 15, 2016. The motion has been fully briefed and is ripe for review.

         Standard of Review

         A Rule 12(b)(6) motion tests the sufficiency of the plaintiffs complaint, which must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a); see also Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). When deciding a motion to dismiss under this rule, "the reviewing court must determine whether the complaint alleges sufficient facts 'to raise a right to relief above the speculative level' and 'to state a claim to relief that is plausible on its face.'" Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). In so doing, the court must accept as true all well-pleaded allegations and draw all reasonable factual inferences in the plaintiffs favor. Id. "While no absolute bar exists, a motion to dismiss under Rule 12(b)(6) does not typically resolve the applicability of defenses to a well-pled claim." Goldfarb, 791 F.3d at 508 (citing Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013)).

         Discussion

         In moving to dismiss the instant action under Rule 12(b)(6), Microsoft seeks a determination regarding the validity of Claim 8 of the '882 Patent, as it was originally issued by the USPTO. Smart Wearable argues that the printing error in step (b) of Claim 8 cannot be corrected by the court, and that the uncorrected claim is invalid under 35 U.S.C. § 112. During the hearing on the pending motion, the court questioned whether a Rule 12(b)(6) motion is the appropriate vehicle for resolving these issues. Upon review of applicable caselaw, the court concludes that neither issue can be decided at this stage of the proceedings.

         I. Judicial Correction of Claim Terms

         "It is well-settled law that, in a patent infringement suit, a district court may correct an obvious error in a patent claim." CBT Flint Partners, LLC v. Return Path, Inc.,654 F.3d 1353, 1358 (Fed. Cir. 2011) (citing I.T.S. Rubber Co. v. Essex Rubber Co.,272 U.S. 429, 442 (1926)). In Novo Industries, L.P. v. Micro Molds Corp.. 350 F.3d 1348 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit held that "[a] district court can correct a patent only if (1) the correction is not subject to reasonable debate based on consideration of the claim language and the specification and (2) the prosecution history does not suggest a different interpretation of the claims." 350 F.3d at 1357. The Court declined to make the proposed corrections to the claim at issue in that case, since the corrections were ...


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