Brice Environmental ServicesCorporation v. Arcadis U.S., Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BRICE ENVIRONMENTAL
SERVICES CORPORATION, a
Subsidiary of Claisa
Corporation,
Plaintiff,
vs.
ARCADIS U.S., INC.,
Defendant.
Case No. 3:21-CV-00141-JMK
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS
Pending before the Court is Defendant Arcadis U.S., Inc’s (“Arcadis”)
Motion to Dismiss for Failure to State a Claim.1 	Plaintiff Brice Environmental Services
Corporation (“Brice”) responded in opposition,2 and Arcadis filed a reply.3 For the reasons
set forth below, Arcadis’s Motion to Dismiss is DENIED.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
The 	following 	facts 	are 	taken 	from 	Plaintiff 	Brice’s 	First 	Amended
Complaint (“FAC”). 	Brice is an environmental engineering, consulting and construction
1 Docket 21.
2 Docket 22.
3 Docket 24.
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contractor.4 Brice is involved in the design, development, and execution of environmental-
service and construction projects, including large soil remediation projects, across the
United States.5 	In 2004, Brice developed its own system and method for treating
contaminated soil from a site.6 	Brice’s system involves utilizing particle size separation
and particle density separation in a system for removing, treating, and returning the treated
soil back to the original site.7 Brice applied for a patent in 2006.8 On July 15, 2008, Brice
was awarded a patent, issued as U.S. Patent No. 7,255,514 (the “ '141 Patent”).9
Arcadis is a competitor of Brice’s within the market for environmental
services, 	including 	soil 	remediation 	projects.10 	In 	May 	2020, 	the 	United 	States
Environmental Security Technology Certification Program (“ESTCP”), an environmental
technology demonstration and validation program, announced award #ER20-5258 to
Arcadis to demonstrate a soil-washing system for the treatment of per- and polyfluoroalkyl-
contaminated soils at Eielson Airforce Base near Fairbanks, Alaska.11 	Arcadis’s Soil-
Washing System (the “Arcadis Soil-Washing System”) is a system developed by Clean
Earth Technologies, Inc. (“CET”).12 	Based on conversations between counsel for Brice
and counsel for CET, Brice understands that the Arcadis-Soil Washing System as sold is
described 	in 	U.S. 	Patent 	Application 	No. 	US2020/0222953 	(the 	“CET 	Patent
4 Docket 16 at ¶ 8.
5 Id. at ¶¶ 6, 8.
6 Id. at ¶ 9.
7 Id.
8 Id. at ¶ 10.
9 Id. See also Docket 16-1.
10 Docket 16 at ¶ 41.
11 Id. at ¶ 19.
12 Id. at ¶ 21.
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Application”).13 	The Arcadis-Soil Washing System also was described in a proposal
presented jointly by Arcadis and CET to the Department of Defense, Environmental
Protection 	Agency, 	and 	Alaska 	Department 	of 	Environmental 	Conservation 	on
December 2, 2020 (the “ESTCP Presentation”).14 Based on publicly available information,
Brice alleges that the Arcadis Soil-Washing System directly and willfully infringes at least
Claim 1 or Claim 20 of the '141 Patent, either literally or through the doctrine of
equivalents.15
Brice filed a Complaint against Arcadis on June 11, 2021.16 	On August 6,
2021, Arcadis filed a Motion to Dismiss for Failure to State a Claim.17 On September 10,
2021, Brice filed its FAC, thereby mooting Arcadis’s Motion to Dismiss.18 Brice’s FAC
alleges a single claim for direct patent infringement under 35 U.S.C. § 271(a), and seeks
relief in the form of damages, treble damages, injunctive relief, and attorney’s fees.19
Brice’s FAC includes the '141 Patent as an attachment.20 By the present motion, Arcadis
moves to dismiss Brice’s FAC pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim.21
13 Id.
14 Id. at ¶ 22.
15 Id. at ¶¶ 37–43.
16 Docket 1.
17 Docket 11.
18 Docket 16; Docket 20.
19 Docket 16 at 18–20.
20 Docket 16-1.
21 Docket 21.
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II. 	LEGAL STANDARD
A. 	Rule 12(b)(6) Motion to Dismiss or Rule 56 Motion for Summary Judgment
At the outset, the Court must address whether Arcadis’s motion to dismiss
should be converted into a motion for summary judgment pursuant to Rule 12(d). When
ruling on a motion to dismiss for failure to state a claim, “[o]rdinarily, a court may look
only at the face of the complaint.”22 	Generally, if a court considers materials outside of
the pleadings, the court must convert the motion to dismiss into a motion for summary
judgment under Rule 56.23 However, a court may “consider certain materials—documents
attached to the complaint, documents incorporated by reference in the complaint, or matters
of judicial notice—without converting the motion to dismiss into a motion for summary
judgment.”24 	Documents properly subject to the incorporation by reference doctrine are
documents “whose contents are alleged in a complaint and whose authenticity no party
questions, but which are not physically attached to the [plaintiff’s] pleading.”25 	Under
Federal Rule of Evidence 201, the court can judicially notice facts that are “generally
known” within a court’s territorial jurisdiction, or that can be “accurately and readily
determined from sources whose accuracy cannot be questioned.”26 	Appropriate subjects
22 J. K. J. v. City of San Diego, 17 F.4th 1247, 1254 (9th Cir. 2021) (quoting Van Buskirk v. Cable
News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002)).
23 Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that
is pertinent to the motion.”).
24 United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
25 Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (quoting Knievel v.
ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)).
26 Fed. R. Evid. 201(b).
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of judicial notice include facts contained in records of administrative bodies, press releases,
a court’s own records, and proceedings of other courts.27
Here, both parties have presented matters outside the pleadings. 	Arcadis
attached to its motion to dismiss the following documents: 	(1) a declaration from the
Senior Vice President of Research and Development at CET (the “Morrell Declaration”);28
(2) the ESTCP Presentation;29 and (3) the CET Patent Application.30 	Brice, in turn,
submitted with its opposition a declaration from its PFAS-Program Manager (the “Becker
Declaration”).31 Arcadis argues that the ESTCP Presentation and CET Patent Application
may be considered on a motion to dismiss because (i) they are referenced in the complaint,
(ii) they contradict allegations made in the complaint,32 (iii) the court can judicially notice
these exhibits; and (iv) the court may elect to convert the motion to dismiss into a motion
for summary judgment.33 Arcadis offers no authority to support the propriety of the Court
considering the Morrell Declaration at the motion to dismiss stage.34 	Likewise, Brice
27 See Samson Tug & Barge, Co. v. Int’l Longshore & Warehouse Union, No. 3:20-cv-00108-
TMB, 2021 WL 1081139, at *2 (D. Alaska Feb. 12, 2021).
28 Docket 21-1.
29 Docket 21-2.
30 Docket 21-3.
31 Docket 23.
32 When deciding a Rule 12(b)(6) motion, courts need not accept as true (i) “allegations that
contradict facts which may be judicially noticed,” SEMICAPS Pte Ltd. v. Hamamatsu Corp., 393 F. Supp.
3d 802, 807 (N.D. Cal. 2019), or (ii) “conclusory allegations which are contradicted by documents referred
to in the complaint.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). Because the
Court finds that none of the extrinsic materials submitted in support or in opposition to the motion to dismiss
are judicially noticeable, and the documents that are incorporated into the FAC by reference are not
inherently contradictory to any of the allegations in the FAC, the Court does not disregard any of the FAC’s
allegations on these bases.
33 Docket 21 at 2–3 n.1.
34 In its Reply, Arcadis states that “in an attempt to streamline this litigation, [Arcadis] submitted
a declaration from Mr. Colin Morrell that addresses these holes in the Amended Complaint . . . .” Docket 24
at 10. The Court is not persuaded that streamlining litigation is a sufficient reason for the Court to look
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offers no legal authority to support the Court’s consideration of the Becker Declaration on
a 12(b)(6) motion.
The ESTCP Presentation and CET Patent Application are not proper subjects
of judicial notice;35 however, they both are frequently referenced in the FAC, and their
authenticity is not questioned by either party.36 The Court finds that these documents are
incorporated by reference into the FAC and thus may be considered on a Rule 12(b)(6)
motion. By contrast, the Morrell and Becker Declarations are not referenced in the FAC.
They also plainly are not proper subjects of judicial notice.37 If the Court were to consider
these declarations it would have to convert this motion to dismiss into a motion for
summary judgment. The Court declines to do so in this instance.
Given the early stage of this case, the absence of discovery, the limited record
before the Court, and the fact that only Brice has addressed the summary judgment standard
in briefing, the Court finds that summary judgment is premature.38 	Accordingly, in
deciding the present motion, the Court does not consider the content of the Morrell or
Becker Declarations or the arguments that rely on these declarations. 	The Court does,
beyond the pleadings at the motion to dismiss stage or, in the alternative, to convert the current motion into
one for summary judgment.
35 See Samson Tug & Barge, Co. v. Int’l Longshore & Warehouse Union, No. 3:20-cv-00108-
TMB, 2021 WL 1081139, at *2 (D. Alaska Feb. 12, 2021); see also D. Alaska Loc. Civ. R. 7.3(d)
(“Requests that the court take judicial notice pursuant to Federal Rule of Evidence 201 must be made in a
separate motion.”).
36 See generally Docket 16; see also Docket 21 at 2; Docket 22 at 11–17.
37 See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (finding that the district court
erred in taking judicial notice of disputed facts in declarations attached to a motion to dismiss); see also
Gerritsen v. Warner Bros. Ent. Inc., 112 F. Supp. 3d 1011, 1021 (C.D. Cal. 2015) (“Courts regularly decline
to consider declarations and exhibits submitted in support of or opposition to a motion to dismiss, however,
if they constitute evidence not referenced in the complaint or not a proper subject of judicial notice.”).
38 See Advanced Steel Recovery, LLC v. X-Body Equip., Inc., No. 2:16-cv-00148-KJM-EFB, 2016
WL 4192439, at *3 (E.D. Cal. Aug. 9, 2016).
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however, 	consider 	the 	ESTCP 	Presentation 	and 	CET 	Patent 	application 	under 	the
incorporation by reference doctrine.
B. 	Rule 12(b)(6) Motion to Dismiss
Following the December 1, 2015, amendments to the Federal Rules of Civil
Procedure, a majority of courts within the Ninth Circuit agree that Form 18 of the Appendix
of Forms to the Federal Rules of Civil Procedure no longer sets the pleading standard for
allegations of direct patent infringement.39 	District courts now assess the sufficiency of
claims for direct patent infringement under the standard set forth in Bell Atlantic Corp. v.
Twombly, and Ashcroft v. Iqbal.40
Rule 8(a)(2) requires that a complaint contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.” 	Under Twombly and Iqbal, a
complaint will survive a motion to dismiss if it contains “sufficient factual matter . . . to
‘state a claim to relief that is plausible on its face.’”41 	A claim is plausible on its face
“when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”42 If the facts alleged in
the complaint do not support a reasonable inference of liability, stronger than a mere
possibility, the claim must be dismissed.43 	A court assessing a Rule 12(b)(6) motion
accepts as true all factual allegations alleged in the complaint, and construes the pleadings
39 See Novitaz, Inc. v. in Market Media, LLC, No. 16-cv-06795-EJD, 2017 WL 2311407, at *2
(N.D. Cal. May 26, 2017) (collecting cases).
40 Id.
41 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
42 Id.
43 Id.
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in the light most favorable to the plaintiff.44 The Court need not, however, accept as true
“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
inferences.”45 	Therefore, a “plaintiff’s obligation to provide the 	‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”46
III. 	DISCUSSION
A. 	Direct Patent Infringement
Pursuant to 35 U.S.C. § 271(a), “whoever without authority makes, uses,
offers to sell, or sells any patented invention within the United States . . . during the term
of the patent . . . infringes the patent.” 	District courts within the Ninth Circuit have
determined that a complaint must “contain factual allegations that the accused product
practices every element of at least one exemplary claim.”47 The “failure to meet a single
[element] is sufficient to negate infringement of a claim.”48
The Federal Circuit recently has clarified the level of detail required to
sufficiently state a claim for patent infringement. In Bot M8 LLC v. Sony Corp. of America,
the Federal Circuit held that a “plaintiff is not required to plead infringement on an element-
44 Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
45 In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
46 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
47 	Novitaz, Inc. v. inMarket Media, LLC, No. 16-cv-06795-EJD, 2017 WL 2311407, at *3 (N.D.
Cal. May 26, 2017) (collecting cases); see also Scripps Research Inst. v. Illumina, Inc., No. 16-cv-661 JLS
(BGS), 2016 WL 6834024, at *5 (S.D. Cal. Nov. 21, 2016) (“[T]o properly plead direct infringement under
Twombly and Iqbal, a plaintiff must plausibly allege that a defendant directly infringes each limitation in at
least one asserted claim.”).
48 Novitaz, Inc., 2017 WL 2311407, at *3 (quoting Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533,
1535 (Fed. Cir. 1991)).
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by-element basis.”49 Instead, a complaint states a claim if it “place[s] the alleged infringer
‘on notice of what activity . . . is being accused of infringement.’”50 The “level of detail
required in any given case will vary depending upon a number of factors, including the
complexity of the technology, the materiality of any given element to practicing the
asserted claim(s), and the nature of the allegedly infringing device.”51 	Other Federal
Circuit 	cases 	establish 	parameters 	for 	the 	level 	of 	detail 	plaintiffs 	alleging 	patent
infringement must plead to withstand a motion to dismiss. In Disc Disease Solutions Inc.
v. VGH Solutions., Inc., a case “involv[ing] a simple technology,” the court held that a
plaintiff sufficiently stated a claim when it included a statement in its complaint alleging
that the defendants’ products “meet each and every element of at least one claim,” either
literally or equivalently, and attached photographs of the defendant’s products.52 In Artrip
v. Ball Corp., the Federal Circuit found that plaintiff failed to state a claim when the
complaint did not identify, by photograph or name, the particular machines that allegedly
infringed, other than by “broad functional language.”53
In moving to dismiss, Arcadis argues that Brice fails to adequately allege
infringement of elements [d] and [j] of Claim 1 and element [d] of Claim 20.54 Brice also
asserts that the remainder of the allegations in Brice’s FAC fail to state a claim due to
49 4 F.4th 1342, 1352 (Fed. Cir. 2021) (applying Ninth Circuit law in reviewing dismissal for
failure to state a claim) (“To the extent this district court and others have adopted a blanket element-by-
element pleading standard for patent infringement, that approach is unsupported and goes beyond the
standard the Supreme Court articulated in Iqbal and Twombly.”).
50 Id. (quoting Lifetime Indus., Inc. v. Trim-Lok, Inc., 869 F.3d 1372, 1379 (Fed. Cir. 2017)).
51 Id. at 1353.
52 888 F.3d 1256, 1260 (Fed. Cir. 2018).
53 735 F. App’x 708, 715 (Fed. Cir. 2018).
54 Docket 21 at 6.
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Brice’s “inclusion of misleading claim charts, coupled with a failure to include the
documents from which it allegedly draws its conclusions of infringement.”55 	For the
foregoing reasons, the Court finds that Brice has adequately stated a claim for direct and
willful infringement of Claims 1 and 20, either literally or through the doctrine of
equivalents. Arcadis’s Motion therefore is denied.
1. 	Claims 1 and 20, element [d]
Element [d] of Claim 1 requires “means for segregating each of the size
fractions into a plurality of density fractions according to particle density prior to testing
for contaminants.”56 Element [d] of Claim 20 requires
means for segregating each of the size fractions into a plurality
of density fractions according to particle density into a first
density fraction having a specific density corresponding to
vegetative matter, a second fraction having a specific density
corresponding to metal, and a third density fraction having
specific density intermediate of the vegetative matter and
metal, prior to testing for contaminants.57
To support its allegation that the Arcadis Soil-Washing System practices this
element of both Claims, the FAC references the ESTCP Presentation, claiming it shows
that the Arcadis Soil-Washing System “necessarily segregates by density, because the
proposed field-scale method segregates the soil to be treated into a plurality of density
fractions.”58 Brice asserts that density separation during the treatability study occurs prior
to testing for contaminants because the system uses density separation to identify which
55 Id. at 10.
56 Docket 16 at 5.
57 Id. at 9–10.
58 Docket 16 at ¶ 27.
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density fractions are contaminated.59 Brice further alleged that the CET Patent Application
describes density separation modules whereby gravity and one or more other forces
opposing gravity are used for particle separation, “such that contaminants with a density
different than the bulk solid waste can be separated and concentrated into a plurality of
density factions.”60
Arcadis argues that Brice’s allegation that the ESTCP Presentation shows
that the Arcadis Soil-Washing System “necessarily segregates by density” because the
Arcadis’s proposed method “segregates the soil to be treated into a plurality of density
fractions” cannot state a plausible claim because it merely parrots Brice’s own claim
language.61 	The Court agrees that this statement, standing alone, too closely tracks the
claim language to be entitled to the presumption of truth.62 	However, this statement is
bolstered by a specific allegation explaining why it is reasonable to infer from the ECSTP
Presentation that the Arcadis Soil-Washing System utilizes density separation prior to
testing for contaminants. 	Further, the ESTCP Presentation itself does not render Brice’s
allegations implausible. 	Arcadis argues the presentation supports the inference that the
Arcadis Soil-Washing System utilizes a single density separation that occurs separately
from the size separation.63 However, construing the allegations in the light most favorable
to Brice, the ESTCP Presentation, through its images and descriptions, plausibly alleges
59 Id.
60 Id.
61 Docket 21 at 6–7.
62 Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1355 (Fed. Cir. 2021) (noting claim was
insufficient when supporting allegations were “conclusory, merely track the claim language, and [did] not
plausible allege” infringement).
63 Docket 21 at 7; Docket 24 at 7.
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that the Arcadis Soil-Washing System performs a plurality of density segregations
following size separation.64
Brice’s factual allegations related to the CET Patent Application also pass
muster under Twombly and Iqbal. 	Brice’s allegation of infringement, supported by a
specific reference to the density modules described in the CET Patent Application, allow
the Court to reasonably infer that the Arcadis Soil-Washing System includes a means for
separating a plurality of size fractions into a plurality of density fractions which is the same
or equivalent to the means described in element [d] of Claims 1 and 20. 	Arcadis argues
that the CET Patent Application’s description of density separation as one option for
physical separation is not the equivalent of the means required by element [d].65 Arcadis
further asserts, without citation to legal authority, that “disclosure of alternative processes
in a patent application is not sufficient to allege that those processes are occurring at the
Eielson location.”66
Brice need not “prove its case at the pleading stage.”67 	Because the
technology at issue here is not simple like the technology in Disc Disease Solutions Inc. v.
VGH Solutions, Inc., Brice is required to allege more than a single sentence stating that all
elements of a Claim are met and a picture of the accused product.68 Brice easily clears that
hurdle here. 	Brice specifically has identified the infringing method and describes the
64 Docket 22 at 11–12.
65 Docket 21 at 8.
66 Id.
67 See Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1350 (Fed. Cir. 2018) (quoting In re Bill of
Lading Transmission & Processing Sys. Patent Litig., 681 F.3d 1323, 1339 (Fed. Cir. 2012)).
68 888 F.3d 1256, 1260 (Fed. Cir. 2018).
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functionalities that read on element [d] of Claims 1 and 20 without relying solely on “broad
functional language.”69 Arcadis seems to argue that Brice would have to provide detailed
factual allegations regarding the exact functioning of the density separation process within
the Arcadis Soil-Washing System, including precisely how many density fractions it
produces, in order to state a claim. 	This is more than the plausibility standard demands
and more than what the vast majority of patentees would be able to plead based on publicly
available information. 	Brice has gone beyond reciting the claim elements and “merely
concluding that the accused product has those elements.”70 Brice’s allegations related to
element [d] of Claims 1 and 20 are more than sufficient to place Arcadis on notice of the
allegedly infringing activity. That is all that is required at this stage.71
The remainder of Arcadis’s arguments related to elements 1[d] and 20[d] are
based on the assertion that Brice’s allegations do not reflect what actually is occurring at
the Eielson location.72 Factual disputes regarding how a product or method actually works
are inappropriate for resolution at the pleading stage, where the Court must take plaintiff’s
well-pleaded factual allegations as true.73 	Further, these allegations rely, at least in part,
69 Artrip v. Ball Corp., 735 F. App’x 708, 715 (Fed. Cir. 2018).
70 Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1353 (Fed. Cir. 2021).
71 Id.
72 Docket 21 at 3, 7, 10–11.
73 AlterG, Inc. v. Boost Treadmills LLC, No. 18-CV-07568-EMC, 2019 WL 4221599, at *5 (N.D.
Cal. Sept. 5, 2019) (“Defendants’ remaining arguments for dismissal of the infringement claim raise factual
disputes about how [Defendant’s] products actually work . . . such disputes are inappropriate for resolution
at the pleading stage, where the Court must accept [Plaintiff’s] well-pleaded factual allegations as true.”)
(internal citations omitted).
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on the Morrell Declaration.74 As discussed supra, the Court does not consider the Morell
Declaration when reviewing the sufficiency of the FAC under Rule 12(b)(6).
2. 	Claim 1, element [j]
Element [j] of Claim 1 requires “means for treating the processed soil
fractions from the site corresponding to the identified contaminated fractions with at least
one stabilization reagent formulated for inhibiting the solubility of metal contaminants
remaining in the processed soil.”75 To support the claim for infringement of element [j],
Brice asserts that the ESTCP presentation discloses that “the Arcadis Soil-Washing System
relies upon ‘enhanced chemistry,’ which includes the addition of at least one stabilization
reagents to the fine soil fraction,” and “[a]ny stabilization reagent used for PFAS-
contaminated soil will also inhibit the solubility of metal.”76 	Additionally, Brice alleges
that the CET Patent Application discloses “the use of a polymer to remove solids from the
liquid stream or other electrochemical processes to remove PFAS contamination directly
from the liquid stream.”77
Arcadis argues that Brice’s allegations that the “non-specific chemical
additives taught by the ESTCP Presentation, and the non-specific polymers recited by the
CET Patent Application meet the '141 Patent’s claim elements of a ‘stabilization reagent’”
are conclusory “threadbare recitals” of this claim element.78 	Arcadis concludes that
“Brice’s inability to point to evidence that demonstrates that the chemicals used by Arcadis
74 See Docket 21 at 3, 7, 10–11.
75 Docket 16 at 8–9.
76 Id. at ¶ 33.
77 Id.
78 Docket 21 at 9.
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do, in fact, act as stabilizing reagents is . . . fatal to its claim of infringement of Claim 1 of
the '141 Patent.”79
Again, Arcadis demands too much at the pleading stage. The Court does not
find that Brice’s allegations related to element [j] of Claim 1 are conclusory. 	Brice
referenced specific descriptions of the accused product found in Arcadis’s publicly
available materials to allege infringement of this element.80 	Requiring Brice to prove at
the pleading stage what specific chemicals or polymers are added to the Arcadis Soil-
Washing System and precisely how they act as “stabilization reagents” that inhibit the
solubility of contaminants would run afoul of recent Federal Circuit precedent.81 	It is
sufficient that Brice has alleged facts from the ESTCP Presentation and CET Patent
Application that make it plausible that the chemicals and polymers added to the Arcadis
Soil-Washing System perform the functionality of the stabilization reagent in element [j].
These allegations place Arcadis on notice of the infringing activity.
The remainder of Arcadis’s arguments for dismissal boil down to the
contention that the polymers and chemicals added to the Arcadis Soil-Washing System
simply are not “stabilizing reagent[s] formulated for inhibiting the solubility of metal
contaminants.”82 	Of course, accepting Arcadis’s argument on this point would mean
accepting Arcadis’s construction of “stabilization reagent,” a disputed claim term.83 The
79 Docket 24 at 11.
80 Docket 16 at ¶ 33.
81 See Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1352–53 (Fed. Cir. 2021); Disc Disease
Sols., Inc. v. VGH Sols., Inc., 888 F.3d 1256, 1260 (Fed. Cir. 2018).
82 Docket 21 at 10.
83 Id.; Docket 22 at 17–18.
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Court declines to do so, as claim construction issues are inappropriate for resolution on a
motion to dismiss.84 The Court also declines to engage with this line of argument because,
as above, it raises factual disputes about the actual operation of the Arcadis-Soil Washing
System and the communications between the parties, and it relies upon the Morrell
Declaration.85 	Even if true, Arcadis’s averments to Brice that it was not infringing does
not demonstrate implausibility.86
3. 	Remaining allegations
Arcadis asserts that the remainder of Brice’s allegations in the FAC do not
meet the standard under Twombly or Iqbal because Brice did not include a traditional
claims chart and did not attach the ESTCP Presentation or CET Patent Application.87
Arcadis alleges that the chart included in Brice’s FAC is “deceiving” because it is not the
type of chart typically found in patent infringement complaints, namely, a chart identifying
where each element of a claim in the patent is found in the accused product.88 Brice’s chart
instead shows each element in Claims 1 and 20 of the '141 Patent, as well as representative
structures or acts disclosed in the specification for the '141 Patent.89
84 Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1349 (Fed. Cir. 2018) (“Defendants’ arguments
boil down to objections to Nalco’s proposed claim construction for ‘flue gas,’ a dispute not suitable for
resolution on a motion to dismiss.”).
85 Docket 21 at 10.
86 Relevant Holdings, LLC v. MindGeek USA Inc., et al., No. 2:21-cv-03174_MCS (KESx), 2021
WL 6103349, at *4 (C.D. Cal. Oct. 5, 2021).
87 Docket 21 at 10.
88 Id. at 5.
89 Docket 16 at 4–11; Docket 22 at 8.
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Brice was not required to plead on “an element-by-element basis,” yet did so
in paragraphs 24 to 34 of the FAC.90 The fact that Brice’s element-by-element allegations
do not appear in chart form, when there is no claims chart requirement in this district, is
not “deceiving” and is not a basis for dismissal.91 Similarly, there is no requirement that
Brice attach the documents referenced in its complaint to the complaint itself. In fact, the
incorporation by reference doctrine specifically contemplates the situation where the
contents of documents are alleged in the complaint, but those documents “are not
physically attached to the [plaintiff’s] pleading.”92 	Arcadis’s arguments as to the
remainder of the allegations in Brice’s FAC are therefore unavailing. This Court finds that
Brice has sufficiently stated a claim for literal infringement of all elements of Claims 1 and
20 of the '141 Patent.
B. 	The Doctrine of Equivalents
In its FAC, Brice asserts that Arcadis infringes Claims 1 and 20 either
literally or under the doctrine of equivalents.93 	Under the doctrine of equivalents, a
“product or process that does not literally infringe upon the express terms of a patent claim
may nonetheless be found to infringe if there is ‘equivalence’ between the elements of the
accused product or process and the claimed elements of the patented invention.”94
90 See Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1352 (Fed. Cir. 2021).
91 See Cont’l Cirs. LLC v. Intel Corp., No. CV16-2026 PHX DGC, 2017 WL 679116, at *5 (D.
Ariz. Feb. 21, 2017) (“[A] chart specifically identifying where each limitation of an asserted claim can be
found in an accused instrumentality is not required absent a local rule stating otherwise.”).
92 Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (quoting Knievel v.
ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)).
93 Docket 16 at ¶¶ 23, 25–34, 38.
94 Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1354 (Fed. Cir. 2018) (quoting Warner–
Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 21 (1997)).
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Equivalence requires a showing that either the “difference between the claimed invention
and the accused product or method was insubstantial or that the accused product or method
performs the substantially same function in substantially the same way with substantially
the same result as each claim limitation of the patented product or method.”95
There is no consensus among district courts regarding the pleading standard
for infringement under the doctrine of equivalents.96 Arcadis argues that equivalence must
be specifically pled and Brice has not done so here.97 	Arcadis asserts that in order to
sufficiently plead infringement through the doctrine of equivalents, “a patent holder must
actually allege some identifiable ‘insubstantial change or substitution’ to a specific aspect
of an alleged infringer’s process such that it reads on the particular claim element at
issue.”98 Arcadis cites to Graver Tank and Manufacturing Company v. Linde Air Products
Company for this proposition.99 Graver Tank does not address the pleading standard under
the doctrine of equivalents at all, much less adopt the stringent standard that Arcadis
suggests.100 District courts within the Ninth Circuit that have recently addressed this issue
have concluded that plaintiffs “need not specifically plead infringement under the doctrine
of equivalents” and that a general allegation of patent infringement under the doctrine of
95 Id. (quoting AquaTex Indus., Inc. v. Techniche Sols., 479 F.3d 1320, 1326 (Fed. Cir. 2007)).
96 See Pres. Techs. LLC v. MindGeek USA Inc., No. CV17-8906-DOC (JPRx), 2019 WL 3213585,
at *3 (C.D. Cal. Apr. 2, 2019).
97 Docket 24 at 5–6.
98 Id. at 5 (citing Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 607 (1950)).
99 Id.
100 See generally Graver Tank, 339 U.S. 605 (1950). 	Arcadis also cites to Preservation
Technologies LLC, 2019 WL 3213585, at *3 for the proposition that “[t]he technical and factual nature of
an infringement claim under the doctrine of equivalents requires some level of specificity beyond a one-
sentence accusation.” 	However, this quote comes from a 2018 District of Nebraska case which
Preservation Technologies LLC explicitly disagreed with to conclude, “[t]he Court agrees with the line of
cases holding that Plaintiff need not specifically plead infringement under the doctrine of equivalents.” Id.
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equivalents 	is 	“sufficient 	to 	place 	Defendants 	on 	notice 	that 	it 	maintains 	patent
infringement theories under the doctrine of equivalents.”101 This Court agrees. Brice has
sufficiently pled a claim for direct literal patent infringement. 	The FAC’s general
allegations that the Arcadis Soil-Washing System infringes each of the elements in
Claims 1 and 20 either literally or equivalently places Arcadis on notice that Brice
maintains a patent infringement theory under the doctrine of equivalents. Brice therefore
has carried its pleading burden.102
Finally, Arcadis argues that Brice could be estopped from asserting the
doctrine of equivalents because of Brice’s conduct during prosecution.103 This argument
is premature. 	“[T]he determination whether prosecution history estoppel applies would
require a substantive review of the patent record that is inappropriate on a motion to
dismiss.”104 Here, the Court has no context to determine which inferences properly may
be drawn from the prosecution history. Without the benefit of the patent record, this Court
is unwilling to rule that prosecution history estoppel applies as a matter of law, or, in the
alternative, hold that Brice has failed to plead infringement under the doctrine of
equivalents because of the possibility it could be estopped.
101 Neutrik AG v. ADJ Prod., LLC, No. LA CV19-09937 JAK (AGRx), 2020 WL 6128066, at *4
(C.D. Cal. May 6, 2020) (holding general allegation sufficient to place Defendants on notice that it
maintains patent infringement theories under the doctrine of equivalents and noting “[n]o additional
allegations are required to satisfy the pleading standard.”); Pres. Techs. LLC, 2019 WL 3213585, at *3.
102 Neutrik AG, 2020 WL 6128066, at *4.
103 Docket 24 at 6, 8.
104 Neutrik AG, 2020 WL 6128066, at *4.
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C. 	Willful Infringement
Brice seeks enhanced damages under 35 U.S.C. § 284 because it claims that
Arcadis’s infringement was willful.105 In Halo Electronics, Inc. v. Pulse Electronics, Inc.,
the Supreme Court held that district courts may award enhanced damages for infringement
that is “willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant,
or—indeed—characteristic of a pirate.”106 	Enhanced damages “should generally be
reserved for egregious cases,” yet it is not required that “enhanced damages must follow a
finding of egregious misconduct.”107
While Halo addressed the standard for proving willful infringement, the
pleading requirements for willful infringement are the subject of some debate.108 	In the
absence of controlling Federal Circuit precedent, a majority of district courts in the Ninth
Circuit agree that allegations of knowledge alone are not sufficient to state a claim for
willful infringement; rather, the patent owner must allege knowledge of the patent and
knowledge of infringement.109 Courts are split, however, on whether a patent owner must
adequately plead egregiousness.110 This Court is persuaded by the line of cases concluding
that egregiousness need not be pled and is instead an issue to be developed as the case
105 Docket 16 at 20.
106 579 U.S. 93, 103–04 (2016).
107 Id. at 106.
108 Document Sec. Sys., Inc v. Nichia Corp., No. CV 19-08172 JVS (JEMx), 2020 WL 3881623,
at *3 (C.D. Cal. Mar. 4, 2020).
109 See MasterObjects, Inc. v. Amazon.com, Inc., No. C 20-08103 WHA, 2021 WL 4685306, at *2
(N.D. Cal. Oct. 7, 2021); Document Security Systems, Inc., 2020 WL 3881623, at *2.
110 Sonos, Inc. v. Google LLC, No. C 21-07559 WHA, 2022 WL 799367, at *4 n.1 (N.D. Cal.
Mar. 16, 2022) (collecting cases).
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progresses.111 	Accordingly, “[a] patent plaintiff can . . . plead the material elements of
willful infringement, simply by sending a cease-and-desist letter that explains why the
accused product infringes and giving the infringer a fair chance to cease or to obtain a
license.”112
Brice alleges that its Vice President informed Arcadis’s Director of Business
Pursuit Management of the existence of the '141 Patent during an in-person meeting in May
2019.113 Brice further alleges that it sent Arcadis a pre-complaint letter “stating the concern
that the Arcadis Soil-Washing System infringed the '141 Patent, enclosing a copy of the
patent.”114 	While this letter may not have been a formal cease-and-desist letter, taking
Brice’s allegation as true and construing all inferences in favor of Brice, the letter alerted
Arcadis to the existence of the '141 Patent, included a copy of the patent itself, and notified
Arcadis of its alleged infringement of the patent. The gap in time between May 2020 and
the filing of Brice’s original complaint in June 2021 gave Arcadis more than “a fair chance
to cease or to obtain a license.”115 This Court concludes that Brice’s well-pled allegations
of knowledge, combined with its pre-complaint letter, adequately state a claim for willful
infringement.
IV. 	CONCLUSION
For the foregoing reasons, Arcadis’s Motion to Dismiss for Failure to State
a Claim is DENIED.
111 Id. at *4.
112 Id.
113 Docket 16 at ¶ 35.
114 Id. at ¶ 36.
115 Sonos, Inc., 2022 WL 799367, at *4.
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IT IS SO ORDERED this 6th day of April, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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