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Blazer v. Chrisman Mill Farms, LLC

United States District Court, E.D. Kentucky, Central Division, Lexington

January 2, 2018




         This matter is pending for consideration of Plaintiff Brian Blazer's (“Blazer”) motion to dismiss Defendant Chrisman Mill Farms, LLC's (“CMF”) Amended Counterclaims [Record No. 21] and CMF's motion for a temporary restraining order and a preliminary injunction. [Record No. 52] More specifically, CMF seeks an order requiring Blazer to revoke his takedown notices from online retailers and forgo further enforcement actions. For the reasons discussed below, the Court will grant, in part, and deny, in part Blazer's motion to dismiss. CMF's motion for injunctive relief will be denied.


         Blazer owns U.S. Patent No. 8, 375, 624 (“the '624 Patent) which covers an insect trap meant for carpenter bees. [Record No. 3-1] In December 2015, CMF began selling traps that unknown to it allegedly infringed Blazer's patent. [Record No. 57');">57');">57');">57, p. 3');">p. 3] In light of the allegations of infringement, CMF obtained a license under the '624 Patent and began selling traps under the license on December, 29, 2015. [Id.] The duration of the agreement was one year, ending in December 2016. [Id. at p. 2] Blazer sought to negotiate more favorable terms for a new contract, but was unsuccessful. As a result, the business relationship ended and CMF designed a new trap which it believed did not infringe the '624 Patent. [Id.] CMF notified Blazer of its intent to begin marketing the new trap, and provided Blazer the opportunity to object and provide reasons why he believed the new trap infringed on his patent. [Id.] From the record before the Court, it appears that Blazer never articulated to CMF why the trap infringed his patent and instead filed this suit.

         Blazer contacted several online retailers in February 2017, alleging CMF's new trap infringed the '624 Patent. He contacted Amazon and asserted that CMF's new trap infringes the claims of the '624 Patent, which caused Amazon to contact CMF and notify it of the allegations. [Record No. 52-4] Amazon indicated to CMF that attempts to relist the new trap prior to resolving the allegations of patent infringement may result in the removal of CMF's selling privileges on Amazon. [Id.] In Blazer's original infringement contentions to Amazon, he wrongly indicated that the roof of the new trap extended past the top of the trap to the shelter the entrance. [Record No. 57');">57');">57');">57, pp. 6-7] He later amended his infringement contentions to correctly note that the roof does not extend past the top and modified his contentions further. [Id.]

         Blazer also contacted,, and, alleging that the new trap infringes his patent. Subsequently, all of the retailors notified CMF of the allegations and indicated any further attempt to relist the new trap prior to resolving the allegations of patent infringement would result in the loss of selling privileges. [Record Nos. 7, 8, 9]

         The '624 Patent was reissued as RE46, 421 (“RE46421”) on June 6, 2017. [Record No. 52-2] The reissue patent retains claims 1-12 without amendment, and adds reissue claims 13- 21. [Id.] Blazer has alleged that CMF's trap infringes claims 1-4, 7-8, 10, 13-17, and 20-21 of the patent. [Record No. 56, p. 3');">p. 3]


         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must determine whether the counterclaims state a viable claim for relief. Simply put, the counterclaims “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 56 U.S. 662');">556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 57');">57');">57');">570 (2007)). The factual allegations must be sufficient to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, and permit the Court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. While a counterclaim need not contain detailed factual allegations, it must contain more than an “unadorned, the defendant-unlawfully-harmed-me accusation.” Id. “A pleading that offers ‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action'” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).

         A preliminary injunction is an extraordinary equitable measure. It has been characterized as “one of the most drastic tools in the arsenal of judicial remedies.” Am. Civ. Liberties Union of Ky. v. McCreary Cnty., Ky., 354 F.3d 438, 444 (6th Cir. 2003) (internal quotation marks and citation omitted). For this reason, it should not be extended to cases which are doubtful or do not come within well-established principles of law. See id.

         “Federal Circuit law governs the legal standard applicable to the question of whether a court should issue a preliminary injunction in a patent case.” FieldTurf USA, Inc. v. Astroturf, LLC, 725 F.Supp.2d 609, 613 (E.D. Mich. 2010) (citing Mikohn Gaming Corp. v. Acres Gaming, Inc., 165 F.3d 891, 894 n. 3 (Fed. Cir. 1998)). “To obtain a preliminary injunction, a party must show (1) reasonable likelihood of success on the merits; (2) irreparable harm; (3) that the balance of hardships tips in its favor; and (4) the impact of the injunction on the public interest.” Jack Guttman, Inc. v. Kopykake Enterprises, Inc., 302 F.3d 1352, 1356 (Fed. Cir. 2002). However, the factors do not all carry equal weight. The first two factors effectively set a threshold showing that the moving party must meet before the other factors are weighted. See, Inc. v., Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001) (“[A] movant cannot be granted a preliminary injunction unless it establishes both of the first two factors, i.e., likelihood of success on the merits and irreparable harm.” (emphasis in original)). The Federal Circuit's standard of likelihood of success is whether success is more likely than not. See Revision Military, Inc. v. Balboa Mfg. Co., 700 F.3d 524, 526 (Fed. Cir. 2012).


         A. Motion to Dismiss Analysis

         1. Invalidity and Unenforceability Claim

         Blazer argues that Count 3 of CMF's Amended Counterclaim must be dismissed for failure to state a claim, specifically alleging that Count 3 contains nothing more than a formulaic recitation of various statutory bases for invalidity, while lacking any allegations of facts to demonstrate the claims are plausible. While CMF contends that it has alleged sufficient facts to support its claims, it also argues ...

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