IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

MICROSOURCE, LLC; and GAVILON No. 19-CV-4016-CJW-MAR

FERTILIZER, LLC,

Plaintiffs,

vs. ORDER

ECO WORLD GROUP, LLC, d/b/a

PRESIDION AG.; ECO AGRO
RESOURCES, LLC; and THOMAS
STANTON,

Defendants.

ECO WORLD GROUP, LLC, d/b/a

PRESIDION AG.; and ECO WORLD
RESEARCH AND DEVELOPMENT
GROUP, LLC,

Counterclaim-Plaintiffs,

vs.

MICROSOURCE, LLC; and GAVILON

FERTILIZER, LLC,

Counterclaim-Defendants.

___________________________

I. INTRODUCTION
This matter is before the Court on counterclaim-defendants’ Partial Motion to
Dismiss Counterclaims and Motion to Strike Certain Allegations in the Counterclaims,
filed on April 1, 2020. (Doc. 81). Counterclaim-defendants’ motion relates to the

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counterclaims filed by counterclaim-plaintiffs on February 26, 2020, which assert two
claims of infringement against counterclaim-defendants in violation of Title 35, United
States Code, Section 271 as to Patent ’306 (“Count 1”) and Patent ’231 (“Count 2”)
respectively. (Doc. 70, at 32-40).1 On April 15, 2020, counterclaim-plaintiffs filed a
timely resistance to counterclaim-defendants’ motion. (Doc. 83). On April 22, 2020,
counterclaim-defendants timely filed a brief in reply. (Doc. 84).
For the following reasons, the Court grants in part and denies in part
counterclaim-defendants’ motion. (Doc. 81).
II. APPLICABLE LAW
A. Motion to Dismiss
A complaint must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Rule 8 does not require
“detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Nevertheless, it “demands more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint that relies
on “naked assertion[s]” devoid of “further factual enhancement,” “labels and
conclusions,” or “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555, 557.
Prior to filing an answer, a defendant may move to dismiss a complaint for “failure
to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).2 “To

1
Patent ’306 is titled “Compositions and Methods Comprising Nitrification Inhibitors Containing
a Mixture of Protic and Aprotic Solvent Systems” (Doc. 70-1) and Patent ’231 is titled “Liquid
Formulations of Urease Inhibitors for Fertilizers” (Doc. 70-2).
2
Counterclaim-defendants filed the motion now before the Court immediately before filing an
answer. (Docs. 81 & 82). Counterclaim-defendants note this was done to facilitate expeditious
resolution. (Doc. 81-1, at 2). Counterclaim-plaintiffs do not raise counterclaim-defendants’

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survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to
‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citation
omitted). “[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true
all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S.
89, 94 (2007). The Court must also “grant all reasonable inferences from the pleadings
in favor of the nonmoving party.” United States v. Any & All Radio Station Transmission
Equip., 207 F.3d 458, 462 (8th Cir. 2000). “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. Plausibility is not equivalent to
probability, but it is something “more than a sheer possibility that a defendant has acted
unlawfully.” Id. “The question . . . is not whether [a plaintiff] might at some later stage
be able to prove [their claims]; the question is whether [a plaintiff] has adequately asserted
facts (as contrasted with naked legal conclusions) to support his claims.” Whitney v.
Guys, Inc., 700 F.3d 1118, 1129 (8th Cir. 2012).
B. Motion to Strike
Federal Rule of Civil Procedure 12(f) provides:
Upon motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these rules, upon motion made by a
party within 20 days after the service of the pleading upon the party or upon
the court’s own initiative at any time, the court may order stricken from
any pleading any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.

“Judges enjoy liberal discretion to strike pleadings under Rule 12(f).” BJC Health Sys.
v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007). “Striking a party’s pleading,
however, is an extreme and disfavored measure.” Id. Thus, “courts infrequently grant

near-simultaneous answer to the counterclaims as an issue. The Court finds that counterclaim-
defendants’ answer was proper and does not hinder their motion here.

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Rule 12(f) motions to strike.” Williams v. Hawkeye Cmty. Coll., 494 F. Supp. 2d 1032,
1042 (N.D. Iowa 2007). Motions to strike are typically not granted without a showing
of prejudice. See, e.g., Williams v. Averitt Express, No. 8:15CV464, 2016 WL 589861,
at *2 (D. Neb. Feb. 11, 2016).
III. DISCUSSION
In their motion, counterclaim-defendants seek to (1) dismiss with prejudice
counterclaim-plaintiffs’ claims for induced infringement, contributory infringement, and
willful infringement with corresponding enhanced damages under Federal Rule of Civil
Procedure 12(b)(6), (2) strike Paragraphs 46 and 57 regarding enhanced damages under
Federal Rule of Civil Procedure 12(f), and (3) strike portions of Paragraph 45, Paragraph
56, and Subparagraph (D) of the Prayer for Relief regarding profits from the claims.
(Doc. 81 at 1); see also (Doc. 70). The Court will address each issue in turn.
A. Motion to Dismiss
1. Induced Infringement & Contributory Infringement
As to counterclaim-plaintiffs’ claims for induced infringement and contributory
infringement, counterclaim-defendants argue such claims fail to sufficiently allege
knowledge. (Doc. 81-1, at 3). In other words, both claims fail to cite facts indicating
counterclaim-defendants knew they were inducing another to infringe or contributing to
another’s infringement as required. See, e.g., Global-Tech Appliances, Inc. v. SEB S.A.,
563 U.S. 754, 766 (2011); Lifetime Indus., Inc. v. Trim-Lok, Inc., 869 F.3d 1372, 1379-
80 (Fed. Cir. 2017). Here, counterclaim-defendants asserts that counterclaim-plaintiffs
merely “parroted” the required legal elements as to knowledge in a conclusory fashion
without any supporting facts. (Doc. 81-1, at 3-4). Counterclaim-defendants assert
counterclaim-plaintiffs’ eight-month delay in alleging infringement further undermines
their claim. (Id., at 4).

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 In response, counterclaim-plaintiffs assert their claims sufficiently allege
knowledge. (Doc. 83, at 4-5). They note their claims allege counterclaim-defendants
had knowledge of the ‘306 patent as early as October 23, 2018, and had knowledge of
the ‘231 patent even prior to its issuance. Further, the claims allege counterclaim-
defendants knew by selling their products they were inducing others to infringe or
contributing to such infringement. (Id., at 5). Counterclaim-plaintiffs highlight
marketing material by counterclaim-defendants containing suggested use rates for their
products, which they allege supports an inference counterclaim-defendants intended for
others to use their products in an infringing manner. (Id.). Counterclaim-plaintiffs
further argue any delay in asserting infringement on their part is irrelevant to the Court’s
analysis. (Id., at 6).
Both “induced infringement [and] contributory infringement require[ ] knowledge
of the patent in suit and knowledge of patent infringement.” Commil USA, LLC v. Cisco
Sys., Inc., 135 S. Ct. 1920, 1926 (2015). To survive a motion to dismiss on a claim of
induced infringement, “a complaint must plead facts plausibly showing that the accused
infringer specifically intended another party to infringe the patent and knew that the other
party’s acts constituted infringement.” Lifetime Indus., Inc., 869 F.3d at 1379 (internal
quotation marks, citations, and alterations omitted). Contributory infringement similarly
requires that the alleged infringer “offers to sell or sells . . . a component of a patented
[invention], . . . knowing the same to be especially made or especially adapted for use in
an infringement of such patent.” 35 U.S.C. § 271(c). Thus, contributory infringement
requires “a showing that the alleged contributory infringer knew that the combination for
which his component was especially designed was both patented and infringing.” Aro
Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488 (1964).
Counterclaim-plaintiffs’ claims of induced infringement and contributory infringement
are sufficiently alleged and supported by facts. They allege knowledge of such infringement

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and cite “marketing [materials], sales sheets, product labels[,] and instructions” from
counterclaim-defendants which allegedly show such intent. (Doc. 70, at 32). Specifically,
counterclaim-plaintiffs highlight counterclaim-defendants’ marketing materials (Docs. 70-3 &
70-4) containing suggested use rates which, they allege, direct others to use counterclaim-
defendants’ products in an infringing manner. These facts amount to more than the naked
allegations cited by counterclaim-defendants in Boston Scientific Corp. v. Nevro Corp.,
415 F. Supp. 3d 482, 488-89 (D. Del. 2019). (Doc. 84, at 3). Although counterclaim-
plaintiffs’ claims may not be as strong at this stage as the claims in Lifetime Industries,
Inc. v. Trim-Lok, Inc., 869 F.3d at 1373-75 or Nalco Co. v. Chem-Mod, LLC, 883 F.3d
1337, 1357 (Fed. Cir. 2018), counterclaim-defendants ask too much. As held in
Illumina, Inc. v. BGI Genomics Co., courts have regularly found allegations of
infringement based on marketing materials, user guides, and technical literature to
adequately show an alleged infringer knowingly caused others to infringe. No. 19-cv-
03770-WHO, 2020 WL 571030, *6-7 (N.D. Cal. 2020) (citing similar cases). As
asserted by counterclaim-plaintiffs, the Court declines to assume supporting facts are
absent based on some delay in asserting these claims, particularly in the absence of any
supporting authority.
Granting all reasonable inferences in favor of counterclaim-plaintiffs and accepting
their allegations as true, they have stated plausible claims for both induced infringement
and contributory infringement. Thus, counterclaim-defendants’ motion to dismiss these
claims under Federal Rule of Civil Procedure 12(b)(6) is denied.
2. Willful Infringement & Enhanced Damages
As to counterclaim-plaintiffs’ claim for enhanced damages due to willful
infringement, counterclaim-defendants argue this claim is insufficient because it fails to
sufficiently allege willfulness. (Doc. 81-1, at 5-6). That is, enhanced damages from
willful infringement requires some proof of conduct that was “willful, wanton, malicious,

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bad-faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a
pirate.” Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1932 (2016).
Counterclaim-defendants assert that counterclaim-plaintiffs have offered only a
conclusory allegation that willful and deliberate infringement occurred without supporting
facts. (Doc. 81-1, at 5). Counterclaim-defendants note particularly that “continuing
post-suit manufacturing and sales” and knowledge that a patent exists alone are
insufficient. (Id.) (citations omitted).
In response, counterclaim-plaintiffs argue facts such as subjective intent which
“are peculiarly within defendants’ possession and control” may be alleged upon
information and belief. (Doc. 83, at 7) (quoting Van Stelton v. Van Stelton, No. C11-
4045-MWB, 2013 WL 3776813, at * 10 (N.D. Iowa July 17, 2013)). They assert they
have plausibly alleged facts sufficient to raise an inference of willfulness by counterclaim-
defendants. (Id., at 7-8).
In order to succeed on a claim of willful infringement, a party must show the
alleged infringer (1) knew of the patent at issue, (2) infringed on the patent after having
such knowledge, and (3) knew their conduct constituted infringement. 3Shape A/S v.
Align Tech., Inc., No. 18-886-LPS-CJB, 2019 WL 1416466, at *4 (D. Del. Mar. 29,
2019) (citations omitted).
Here, as discussed above, counterclaim-plaintiffs have alleged more than mere
continuing sales after the commencement of this suit. They have cited facts sufficient to
create a reasonable inference that counterclaim-defendants knew of the patents at issue,
continued to sell their allegedly infringing products, and directed others to use such
products in an allegedly infringing manner. Thus, plaintiffs have sufficiently plead their
claim for willful infringement.

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 Their claim for enhanced damages based on willful infringement is also sufficient
at this stage. Boston Scientific, the primary case on which counterclaim-defendants rely,
states:
Because of the difficulty in articulating precisely the range or type of
circumstances that would transform a simple intentional or knowing
infringement claim into an enhanced damages claim, the safest course is to
allow an enhanced damages claim to proceed beyond the pleadings stage if
the operative pleading alleges facts from which it can be plausibly inferred
that the party accused of infringement had knowledge of the asserted patent
and knowledge that the party’s alleged conduct constituted, induced, or
contributed to infringement of the asserted patent. [Thus,] a willful
infringement-based claim for enhanced damages survives a motion to
dismiss if it alleges facts from which it can be plausibly inferred that the
party accused of infringement (1) had knowledge of or was willfully blind
to the existence of the asserted patent and (2) had knowledge of or was
willfully blind to the fact that the party’s alleged conduct constituted,
induced, or contributed to infringement of the asserted patent.

415 F. Supp. 3d at 495 (internal quotation marks and citations omitted). Although the
court there dismissed the claim because it rested on conclusory allegations, the Court
finds here, as discussed, that counterclaim-plaintiffs’ allegations are not conclusory.
Indeed, the Court finds they have sufficiently plead knowledge of the patents at issue and
knowledge of infringement. Thus, the Court finds it should tread the “safest course” and
allow counterclaim-plaintiffs’ claim for enhanced damages based on willful infringement
to proceed beyond the pleading stage.
Granting all reasonable inferences in favor of counterclaim-plaintiffs and accepting
their allegations as true, they have stated a plausible claim for willful infringement and
corresponding enhanced damages. Thus, counterclaim-defendants’ motion to dismiss this
claim under Federal Rule of Civil Procedure 12(b)(6) is denied.

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 B. Motion to Strike
1. Typographical Error in Claims for Enhanced Damages
Counterclaim-defendants argue counterclaim-plaintiffs’ claims for enhanced
damages in Paragraphs 46 and 57 should be stricken because they erroneously cite as
authority Title 35, United States Code, Section 285, an inapplicable section regarding
attorneys’ fees. (Doc. 81-1, at 5-6); see also (Doc. 70, at 37, 40). Counterclaim-
defendants assert the lack of a proper legal basis makes dismissal proper here. (Doc. 81-
1, at 6) (citing FED. R. CIV. P. 12(f)).
In response, counterclaim-plaintiffs note their Prayer for Relief cites the correct
statute; Title 35, United States Code, Section 284. (Doc. 83, at 8); see also (Doc. 70,
at 41). Counterclaim-plaintiffs argue a mere typographical error in Paragraphs 46 and
57—citing Section 285 instead of 284—does not require the “extreme” step of striking
their claims for enhanced damages because counterclaim-defendants have not shown any
prejudice occurred as a result. (Doc. 83, at 9).
In their reply brief, counterclaim-defendants note Section 285 is cited in the body
of counterclaim-plaintiffs’ claims while Section 284 is only cited in the Prayer for Relief.
(Doc. 84, at 4). Counterclaim-defendants argue the Prayer for Relief is not part of the
claims and should not be considered. (Id.) (citing Dingxi Longhai Dairy Ltd. v. Becwood
Tech. Grp. L.L.C., 635 F.3d 1106, 1108 (8th Cir. 2011)). Counterclaim-defendants
assert the Court should strike the claims for enhanced damages because they are
“baseless” and “improper” as a result. (Id.). As prejudice, counterclaim-defendants
argue they should not be required to spend money defending against such claims. (Id.).
Here, striking counterclaim-plaintiffs’ claims for enhanced damages due to a
typographical error in the cited statute would be improper. Paragraphs 46 and 57 each
request “enhanced damages under 35 U.S.C. § 285.” (Doc. 70, at 37, 40). The correct
statute, Section 284, is cited in the Prayer for Relief on the page following Paragraph 57.

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(Id., at 41). Even setting that correct citation aside, however, the language and context
of Paragraphs 46 and 57 sufficiently alerted counterclaim-defendants that counterclaim-
plaintiffs intended to seek enhanced damages. Counterclaim-defendants have not
provided any reason, outside of the typographical error itself, as to why these claims are
baseless or improper. Thus, their assertion of prejudice relies on a finding that the error
itself invalidates counterclaim-plaintiffs’ claims entirely. The Court finds that an extreme
remedy like striking is not warranted by the relatively minor error of misciting a statute
when the error was easily identifiable, the language and context immediately surrounding
the error in the same paragraphs made counterclaim-plaintiffs’ intent clear, the correct
statute could be easily located, and no prejudice otherwise resulted.
Thus, the Court denies counterclaim-defendants’ motion to strike as it relates to
Paragraphs 46 and 57 of counterclaim-plaintiffs’ claims. (Doc. 81-1, at 5-6).
2. Allegations Regarding Profits
Counterclaim-defendants assert the Court should strike counterclaim-plaintiffs’
requested recovery of “profits from the sale of allegedly infringing products.” (Doc. 81-
1, at 6). Counterclaim-defendants cite the first sentence of Paragraph 45, the first
sentence of Paragraph 56, and Subparagraph D of the Prayer for Relief as containing
references to such recovery. (Id.); see also (Doc. 70, at 36-37, 39, 40-41).
Counterclaim-defendants argue such recovery is not available in lawsuits involving utility
patents, as is the case here. (Doc. 81-1, at 6) (citing 35 U.S.C. § 289).
Counterclaim-plaintiffs concede such recovery is not available and therefore do
not contest that Subparagraph D of their Prayer for Relief should be stricken. (Doc. 83,
at 9). They do, however, argue that the sentences involving profits in Paragraphs 45 and
56 need not be stricken because such facts are relevant to determining reasonable royalty
damages and potential injunctive relief. (Id., at 9-10) (citing i4i Ltd. v. Microsoft Corp.,
598 F.3d 831, 853 n.3 (Fed. Cir. 2010) (noting that factors relevant to the calculation of

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a reasonable royalty include established profitability, commercial success, current
popularity, and the extent to which the infringer used the product and the value of that
use); Broadcom Corp. v. Emulex Corp., 732 F.3d 1325, 1338 (Fed. Cir. 2013) (noting
injunctive relief is an equitable determination).
In their reply brief, counterclaim-defendants maintain their position that the
sentences regarding profits in Paragraphs 45 and 56 are improper and should be stricken.
(Doc. 84, at 4-5).
Counterclaim-defendants are correct that disgorgement of profits as recovery is
only available as to design patents, not utility patents. See 35 U.S.C. § 289. Given that
counterclaim-plaintiffs agree such recovery is improper here, the Court strikes
Subparagraph D of counterclaim-plaintiffs’ claims as requested by counterclaim-
defendants.
Further strikes, however, are not appropriate. The first sentence of Paragraph 45
states “On information and belief, Counterclaim-Defendants have derived, received, and
will unless restrained and/or enjoined, derive and receive from the aforesaid infringement
of the ‘306 Patent, substantial gains, profits, and advantages, including gains profits and
advantages from regular making and sales of infringing devices . . ., in amounts to be
proven at trial.” (Doc. 70, at 36-37). The first sentence of Paragraph 56 is the same
regarding the ‘231 Patent. (Id., at 39). Although counterclaim-plaintiffs cannot seek
disgorgement of these profits as a remedy, such profits are relevant to damages and to
potential injunctive relief.
Thus, the Court grants counterclaim-defendants’ motion to strike as it relates to
Subparagraph D of counterclaim-plaintiffs’ Prayer for Relief but denies the motion as it
relates to Paragraphs 45 and 56. (Doc. 81-1, at 6).

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 IV. CONCLUSION
For these reasons, counterclaim-defendants’ Partial Motion to Dismiss
Counterclaims and Motion to Strike Certain Allegations in the Counterclaims is granted
in part and denied in part. The motion is granted as to striking Subparagraph D of
counterclaim-plaintiffs’ Prayer for Relief. (Doc. 70, at 40-41). The motion is denied in
all other respects, both as to dismissing counterclaim-plaintiffs’ claims and striking any
other portions of them. Counterclaim-plaintiffs are directed to refile their counterclaims
with Subparagraph D of their Prayer for Relief removed.
IT IS SO ORDERED this 4th day of May, 2020.

___________________________
C.J. Williams
United States District Judge
Northern District of Iowa

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