Pleading Section 271(f) Infringement Claim Requires Identification of Exported Components

The magistrate judge recommended granting defendant's motion to dismiss plaintiffs' patent export infringement claims under 35 U.S.C. §§ 271(f)(1)&(2) for failure to state a claim. "Plaintiffs clearly rely on the asserted presence of unnamed 'first and second components of the system [of the accused product]' that are supplied by Defendant along with 'components of the applicator'; Defendant is then alleged to provide instructions on how to combine these components together in an infringing manner overseas. But in the absence of Plaintiffs providing any hint in the Amended Complaint as to what those first and second components are said to be, the Court could not discern whether it is plausible that the accused products at issue are, in fact, supplied from the United States as separate components. . . . Put differently, Plaintiffs' bald reference to additional 'first and second components' is not much different in effect than if Plaintiffs had simply tracked the language of the statute . . . in making their allegations of export infringement. Plaintiffs have to do more than merely track the statutory language-they have to allege facts that go beyond a formulaic recitation of the elements of their cause of action."

Confluent Surgical, Inc. et al v. HyperBranch Medical Technology, Inc., 1-17-cv-00688 (DED October 25, 2017, Order) (Burke, MJ)