Unreported / Non-Citable
Background
Graphene Platform Corporation sued NanoXplore Inc. and RMC Advanced Technologies Inc., alleging direct, indirect, and willful infringement of ten patents concerning graphene technology and materials. Its direct-infringement theory focused principally on U.S. Patent No. 9,428,393 and NanoXplore’s GrapheneBlack0X and GrapheneBlack3X industrial graphene powders.
After the defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), Graphene Platform missed the response deadline and sought leave 24 days late. It attributed the delay to anticipated business-resolution and standstill discussions and counsel’s preplanned vacation. The defendants disputed that such discussions occurred.
The Court’s Holding
The court denied leave to file the late response, finding no excusable neglect. The asserted settlement discussions did not excuse compliance with filing deadlines, counsel’s vacation was within counsel’s reasonable control, the delay exceeded three weeks, and the defendants arguably suffered prejudice through unnecessary fees and delayed resolution. The court therefore granted the dismissal motion as unopposed.
Alternatively, the court held that the amended complaint failed to state a claim. The accused GrapheneBlack powders had already been exfoliated from natural graphite, making it implausible that they were a “graphene precursor” from which graphene could be exfoliated as required by the ’393 patent. The allegations concerning the other nine patents did not identify facts showing what accused activity or product infringed their claims.
Because Graphene Platform did not plausibly allege direct infringement, its induced-, contributory-, and willful-infringement theories also failed. The court dismissed the amended complaint without prejudice and permitted one final amendment, due October 16, 2026.
Key Takeaways
- Settlement discussions and a planned vacation did not establish excusable neglect for a 24-day-late response.
- A patent complaint must allege facts making infringement plausible; identifying products and reciting claim limitations is insufficient when the pleaded facts contradict a required limitation.
- Indirect- and willful-infringement claims could not proceed without a plausibly pleaded underlying infringement.
- The dismissal was without prejudice, and Graphene Platform received one final opportunity to amend.
Why It Matters
The decision underscores that patent plaintiffs must connect each asserted patent to specific accused conduct and plead facts supporting the relevant claim limitations. A complaint may fail when its own description of an accused product is incompatible with a patent’s requirements.
It also cautions litigants that informal business discussions do not suspend court deadlines. Parties anticipating settlement or standstill negotiations should obtain an extension before a filing deadline expires.