After ZeaVision LLC filed a complaint seeking declaratory judgment that it did not infringe on Bausch & Lomb Inc.’s patents, the patent owners pushed back in a motion to dismiss filed Wednesday in the Eastern District of Missouri.
This litigation began nearly seven months before the filing of the operative lawsuit; Bausch & Lomb and PF Consumer Healthcare 1 LLC alleged that ZeaVision’s products, including the EyePromise AREDS 2 Plus Multi-Vitamin, infringe on United States Patent Nos. 6,660,297 and 8,603,522 and that its product labels and marketing violate the Lanham Act and state unfair competition laws, in a Western District of New York filing. ZeaVision fired back with its own complaint Jan. 19 in the current Missouri venue, hoping for a court ruling absolving it of Bausch & Lomb’s same allegations.
The defendants in the operative action are now seeking dismissal of ZeaVision’s separate case, or, alternatively, a stay or venue transfer.
“This case and the New York Action are mirror images of one another—they involve the same parties, patents, accused product, and accused conduct,” the defendants claimed. “The Complaint here is a transparently improper attempt to preempt Defendants’ prior lawsuit that has been pending for nearly one year and to deprive Defendants who, as patentees, are the true plaintiffs, from their choice of forum.”
In particular, the defendants argued that the District of Missouri does not have general nor specific personal jurisdiction over them because they do not do business in Missouri nor do they have “sufficient contacts with the forum,” according to the filing, which is grounds for dismissal.
Further reasoning backing dismissal, the defendants contended, arises under the “first-to-file” rule. “The Federal Circuit has explicitly held that under circumstances such as those presented here, where two actions that sufficiently overlap are filed in different federal district courts, one for infringement and the other for declaratory relief, the declaratory judgment action, if filed later, generally is to be stayed, dismissed, or transferred to the forum of the infringement action,” the defendants said, citing the Federal Circuit’s ruling in Futurewei Techs. Inc. v. Acacia Research Corp.
The defendants also claimed that “it is in the interest of justice” to continue with their original New York action, as the defendants “are the true plaintiffs in this dispute.” They also argued that scrapping this action and proceeding with the original New York suit would favor efficiency “because it includes the primary infringement claims and because the case is procedurally ahead of this one.”
Bryan Cave Leighton Paisner LLP represents the defendants. Hein Schneider and Bond P.C. represents ZeaVision.