United States District Court, E.D. Virginia, Norfolk Division
OPINION & ORDER
COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE
matter came before the Court pursuant to Defendants Keysight
Technologies, Inc.'s ("Keysight's") and
Ixia's (collectively, "Defendants'")
Partial Motion to Dismiss Plaintiff Centrip Networks,
Inc.'s ("Plaintiffs" or
("Motion"). Doc. 20. The Court heard argument on
this Motion on November 14, 2017, and reserved ruling on the
Motion. After further consideration, and for the reasons
stated herein, the Court DENIES the Motion
WITHOUT PREJUDICE to renewing the same
arguments under Rule 12(c) after the Markman hearing
or at the summary judgment stage.
Factual Allegations 
action arises from the alleged infringement of four (4) of
Plaintiffs patents: U.S. Patent No. 9, 264, 370 (the
'"370 Patent"), U.S. Patent No. 9, 137, 205
(the "'205 Patent"), U.S. Patent No. 9, 560,
077 (the '"077 Patent"), and U.S. Patent No. 9,
413, 722 (the '"722 patent"). Doc. 1
Centrip is a network security company incorporated in
Delaware with its principal place of business in Herndon, VA.
Id. ¶ 1. Defendant Keysight is incorporated in
Delaware with its principal place of business in Santa Rosa,
CA. Id. ¶ 2. Defendant Ixia is incorporated in
California with its principal place of business in Calabasas,
CA, and as of April 18, 2017, is owned by Defendant Keysight.
Id. ¶ 3.
accuses the Ixia ThreatARMOR devices of infringing the
'370 Patent, accuses those devices when used with
Ixia's Application and Threat Intelligence servers, such
as Ixia's Vision One devices, of infringing the '205
Patent and the '722 Patent, and accuses either setup of
infringing the '077 Patent. Id. ¶¶
16-62. Plaintiff seeks damages; injunctive relief; enhanced
damages for willful infringement; attorneys' fees, costs,
and expenses; and pre-judgment and post-judgment interest.
Id. at 36-37.
filed its Complaint in this Court on July 20, 2017. See
Compl. The Parties filed a consent Motion for and extension
of time to respond to the Complaint, Doc. 8, which the Court
GRANTED, Doc. 12. Defendants timely filed the instant Motion
on September 5, 2017. Doc. 20. They simultaneously filed a
Motion to Transfer Venue Under Section 1404(a) or Dismiss for
Improper Venue. See Docs. 23-24. They also filed an Answer.
Doc. 29. Plaintiff responded in opposition to the instant
Motion on September 19, 2017. Doc. 30. Defendants replied on
September 25, 2017. Doc. 36. During the pendency of this
Motion, Defendants have also filed three notices of
additional authority from the Federal Circuit related to the
issues in this case. Docs. 43, 46, 47.
Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss
tests the sufficiency of a complaint; it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses. Republican Party of N.C. v.
Martin. 980 F.2d 943, 952 (4th Cir. 1992). "To
survive a motion to dismiss, 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. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly. 550 U.S. 544, 570
(2007)); see also Venkatraman. 417 F.3d at 420
("In considering a motion to dismiss, we accept as true
all well-pleaded allegations and view the complaint [or
counterclaim] in the light most favorable to the plaintiff
[or counterclaim plaintiff]") (citing Mvlan
Labs., 7 F.3d at 1134). A complaint establishes facial
plausibility "once the factual content of a complaint
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Nemet Chevrolet. Ltd. v. Consumeraffairs.com. Inc..
591 F.3d 250, 256 (4th Cir. 2009) (quoting Iqbal.
556 U.S. at 678). Therefore, the complaint need not include
"detailed factual allegations" as long as it pleads
"sufficient facts to allow a court, drawing on judicial
experience and common sense, to infer more than the mere
possibility of misconduct." Id. Although a
court must accept as true all well-pleaded factual
allegations, the same is not true for legal conclusions.
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Iqbal. 556 U.S. at 678.
deciding the motion, a court may consider the facts alleged
on the face of the complaint as well as '"matters of
public record, orders, items appearing in the record of the
case, and exhibits attached to the complaint.'"
Moore v. Flaestar Bank. 6 F.Supp.2d 496, 500 (E.D.
Va. 1997) (quoting 5A Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 1357 (1990)).
The court may look to documents attached to the complaint and
those incorporated by reference without converting a Rule
12(b)(6) motion into a Rule 56 motion for summary judgment.
See Pueschel v. United States. 369 F.3d 345, 353 n.
3 (4th Cir. 2004) (citations omitted).
the Complaint alleges patent infringement, the Court may
consider patent eligibility through a motion to dismiss
pursuant to Rule 12(b)(6) because eligibility is a question
of law. See, e.g., Peschke Map Techs. LLC v.
Rouse Properties Inc.. 168 F.Supp.3d 881, 884 (E.D. Va.
2016). The Federal Circuit has recognized that claim
construction "will ordinarily be desirable-and often
necessary-to resolve claim construction disputes prior to a
§ 101 analysis, for the determination of patent
eligibility requires a full understanding of the basic
character of the claimed subject matter." Bancorp
Servs.. L.L.C.. 687 F.3d at 1273-74. Nevertheless, this
District has often decided patent eligibility without claim
construction. See, e.g.. Peschke Map Techs. LLC. 168
F.Supp.3d at 884; Orbcomm Inc. v. CalAmn Corp. No.
3:16cv208, 2016 WL 3965205, at *2 (E.D. Va. July 22, 2016),
on reconsideration in part. 215 F.Supp.3d 499 (E.D.
Va. 2016); Asehari-Kamrani v. United Servs. Auto.
Ass'n. No. 2:15cv478, 2016 WL 3670804, at *3 (E.D.
Va. July 5, 2016). Whether the patent has a presumption of
validity at this stage is an open question. Compare
Ultramercial. Inc. v. Hulu. LLC. 772 F.3d 709, 720-21
(Fed. Cir. 2014) (Mayer, J., concurring) (denying the
presumption because Alice challenges address
failures of the U.S. Patent and Trademark Office to properly
consider an issue) with CLS Bank. Int'l v. Alice
Corp.. 717 F.3d 1269, 1304-05 (Fed. Cir. 2013) (en banc)
(Rader, J., concurring-in-part, dissenting-in-part) (applying
the presumption in order to cabin the judicially created
exceptions to patent eligibility).