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285

Andrea D. Coit, OSB #002640 

andrea.coit@harrang.com 

HARRANG LONG GARY RUDNICK P.C. 

360 East 10th Avenue, Suite 300 

Eugene, OR 97401-3273 

Telephone: 541-485-0220 

Facsimile: 541-686-6564 

Randall B. Bateman, Pro Hac Vice

mail@batemanip.com 

BATEMAN IP, P.C. 

257 East 200 South, Suite 750 

P.O. Box 1319 

Salt Lake City, UT 84110 

Telephone: 801- 533-0320 

Facsimile: 801- 533-0323 

Attorneys for Defendant AAA Production, Inc. 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

CHARLENE A. BOEHM and 

CPSBIORESEARCH, LLC, a North 

Carolina limited liability company, 

Plaintiffs, 

vs. 

FUTURE TECH TODAY, INC., an Oregon 

corporation, JOSHUA KORN, a/k/a Joshua 

Parker, and AAA PRODUCTION, INC., a 

Utah Corporation, 

Defendants. 

Case No. 6:15-cv-00277-MC

REPLY MEMORANDUM IN SUPPORT 

OF MOTION TO DISMISS UNDER 

RULE 12(b)(6) AND 12(b)(7) AND FOR

ATTORNEY FEES UNDER 

35 USC§ 285

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Defendant AAA Production, Inc. (“AAAP”) submits this Reply in support of its motion 

to dismiss Plaintiffs’ Complaint for failure to state a claim and failure to join an indispensable 

party. 

I. AAAP’S FACTUAL BACKGROUND 

In support of its Motion, AAAP provided a detailed set of facts as to the scope of 

Plaintiffs’ patent and the conduct of Plaintiffs in the prior litigation. Plaintiffs do not dispute the 

allegations, including the fact that U.S. Patent No. 7,280,874 (“the ‘874 patent”), is for “A 

method for determining therapeutic resonant frequencies of electromagnetic radiation for treating 

an animal or human infected with a disease caused by a pathogen . . .” (Claim 1, emphasis 

added). Furthermore, practicing the invention of the ‘874 patent requires steps a through e: 

a) determining a velocity of the electromagnetic radiation through 

the medium surrounding the genomic material; (Memorandum in 

Support, Exhibit C, Col. 11, lines 60-61). 

b) determining the length of the genomic material; (Id. at Col. 12, 

line 1). 

c) determining a first therapeutic resonant frequency to influence 

the genomic material in a first electromagnetic frequency range...; 

(Id. at Col. 12, lines 2-4). 

d) programming the frequency-emitting device to emit the first, or 

the second resonant frequency; (Id. at Col. 12, lines 16-17) and 

e) treating the animal or human with the programmed resonant 

frequency intended to influence said genomic material, thereby 

rendering a therapeutic or desirable effect in the animal or human. 

(Exhibit C, Col. 12, lines 18-21). 

AAAP has never performed most of the elements of Plaintiff’s method claims, as set 

forth by affidavit. Moreover, the Complaint never alleges that AAAP has conducted any of the 

calculation steps required by the patent. Rather, Plaintiffs’ Complaint alleges that AAAP: 

1) has used resonant frequencies calculated in accordance with the 

Boehm method; 

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2) has offered to sell, and has sold the GB4000 along with the 

calculated resonant frequencies to others; and 

3) independently promoted the purchase of its GB4000 frequency 

generator, along with resonant frequency calculations...knowing 

that use of the resonant frequencies with the GB4000 would 

constitute infringement of the Boehm patent by others. 

The problem with these allegations is that they are legally insufficient to state a claim for 

patent infringement. Simple use of the resonant frequencies does not constitute infringement.1 

In order to infringe, a single entity has to determine the velocity of the radiation, determine the 

length of the genomic material and determine a first therapeutic resonant frequency and then 

apply that frequency to a person or animal. AAAP could tape a list of the Boehm frequencies to 

every GB4000 frequency generator it sold without infringing because AAAP has never 

performed the calculations of steps (a)-(c) in the patent, and there is no allegation that AAAP or 

its customers ever has performed these steps. 

Rather than pleading facts to allege a single entity performed all the steps of the claim, 

the Complaint actually alleges that the person who made the calculation step was Craig Ledwell. 

(Complaint, ¶ 16). The Complaint then goes on to assert that Ledwell supplied the frequencies to 

Joshua Korn, who provided them to AAAP. (Complaint ¶ ¶ 17, 18). The Complaint finally 

asserts that AAAP then provided those frequencies to customers along with the GB4000. 

(Complaint, ¶¶ 20 and 21). Taken as true, these allegations not only fail to make a claim for 

infringement of the method patent, they actually require a finding of non-infringement. 

II. ARGUMENT 

A. THIS COURT SHOULD DISMISS THE PATENT INFRINGEMENT 

CLAIMS BECAUSE AAAP IS NOT EVEN ALLEGED TO HAVE 

PERFORMED THE STEPS OF THE CLAIMS 

 

1

 It is instructive that throughout their brief Plaintiffs repeatedly use the passive voice whenever 

they refer to the calculation of the frequencies. Not once do Plaintiffs actually accuse AAAP 

or its customers of making those calculations. The claims of their patent, however, require 

exactly that. 

 

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Plaintiffs have failed to state a claim of infringement against either AAAP or its 

customers. Nowhere in the Complaint do Plaintiffs allege that AAAP or its customers conduct 

any of the first three steps of the claims.

1. Form 18 Does Not Resolve Plaintiffs Pleading Dilemma 

a. Plaintiffs Did Not Rely on Form 18 

Plaintiffs did not choose to rely on Form 18 and therefore cannot rely on any safe harbor 

the form may provide. Plaintiffs specifically allege that the first three steps of the claims were 

performed by Craig Ledwell, who allegedly passed the frequencies to Josh Korn, who allegedly 

passed the frequencies to AAAP. (Complaint, ¶¶ 16-18). There is no scenario under which 

AAAP can be held liable for patent infringement based on the facts alleged in Plaintiffs’ 

complaint. Plaintiffs did not simply rely on Form 18. Rather they alleged a fact scenario under 

which AAAP cannot be an infringer. 

The law is settled that in order for there to be infringement of a method claim, a single 

party must perform all steps of the claimed method. Limelight Networks, Inc. v. Akami Techs., 

Inc. 572 U.S. ___ (2014), 134 S. Ct. 2111 (2014)(emphasis added). Not only is there a lack of 

allegations that either AAAP or its customers performs each step of claim 1 of the ‘874 patent, 

the Complaint affirmatively alleges that the various steps in the claim are performed by at least 

three different parties – Ledwell, AAAP, and AAAP’s customers. Plaintiffs have specifically 

alleged a fact scenario which requires a finding of non-infringement under Limelight. 

The Complaint contains no allegations from which the Court could reasonably infer that 

AAAP, a manufacturer of frequency-emitting devices, calculates the frequencies or treats an 

animal or human, as required by the claims. To the contrary, the Complaint specifically alleges 

that it was Craig Ledwell who “proceeded to calculate therapeutic resonant frequencies using the 

Boehm method.” 

Plaintiffs argue that the Court must take the allegations as being true in a motion under 

Rule 12(b)(6). AAAP wholeheartedly agrees. The Court must accept as true that Ledwell 

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performed the calculations to determine the Boehm frequencies, as Plaintiffs allege. The Court 

must accept as true that Ledwell passed the frequencies to Korn, who passed them to AAAP. 

Having accepted all of this as true, however, there is no longer a plausible claim against AAAP 

or its customers because neither one performs the first three elements of Claim 1 in the ‘874 

patent. Rather, having accepted Plaintiffs’ allegations as true makes the claim for patent 

infringement an implausible one that should “rightly be dismissed.” See K-Tech 

Telecommunications, Inc. v. Time Warner Cable, Inc., 714 F3d 1277, 1284 (Fed Cir 2013)(“an 

implausible claim for patent infringement rightly should be dismissed.”) 

b. Form 18 Does Not Excuse Compliance with Fed.R.Civ.Proc. 8 

A complaint is required to show that the claim is plausible on its face. Aschcrost v. Iqbal,

556 US 662, 663 (2009). To be plausible, the pleaded factual content must allow “the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 663 

(citing Bell Atlantic Corp. v. Twombly, 550 US 544, 556 (2007). There is some disagreement in 

the district courts of this Circuit as to whether or not Form 18 is sufficient to save a direct patent

infringement claim from a motion to dismiss on its face, or whether the pleadings standards of 

Iqbal and Twombly apply. Several district courts in the Ninth Circuit have held that patent 

infringement pleadings “must meet the pleading standard addressed in Twombly.” Deerpoint 

Group, Inc. v. Acqua Concepts, Inc., 2014 US Dist LEXIS 173662, 8-9 (ED Cal Dec. 16, 

2014)(explaining that the “Supreme Court made clear in Twombly that the required application 

of Rule 8 was necessary to assume that expensive litigation would not occur unless the plaintiff 

had made a plausible case in the complaint. That reasoning is no less persuasive in a patent 

action. This Court finds no logical reason to exempt patent actions from the plausibility 

requirements that apply to all other federal complaints.”).2 Likewise, in Videx, Inc. v. TriTeq 

 

2

See also Ziptronix, Inc. v. Omnivision Techs., Inc., 2011 US Dist LEXIS 129275 (ND Cal Nov. 

7, 2011)(“this Court has already determined that the Twombly/Iqbal standard applies to both 

direct and indirect patent infringement claims.”); Bender v. Motorola, Inc., 2010 US Dist 

LEXIS 26076 (ND Cal Feb. 26, 2010)(“Plaintiff's generic descriptions of a litany of electronic 

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Lock & Sec.. LLC, 2014 US Dist LEXIS 63653 (D Or May 8, 2014), this Court was “not 

persuaded by plaintiff's argument that its amended complaint must meet only the bare minimum 

pleading requirements of Federal Rule of Civil Procedure 8 and Form 18.” 

c. Plaintiffs Have Not Met the Standard for Form 18 

While Defendant AAAP believes it is persuasive for Iqbal and Twombly to apply to 

patent infringement pleadings, even if this Court finds that Form 18 controls, a pleading under 

Form 18 must still be “plausible” on its face. See K-Tech Telecommunications, Inc. v. Time 

Warner Cable, Inc., 714 F3d 1277, 1284 (Fed Cir 2013)(holding that while Form 18 controls, the 

pleadings must still be plausible—“an implausible claim for patent infringement rightly should 

be dismissed.”). 

The Federal Circuit addressed` the problem of sufficiency of pleading a plausible patent 

infringement of a method patent in Desenberg v. Google, Inc., 392 Fed Appx 868 (Fed Cir 

2010). In Desenberg, the Plaintiff alleged that defendant Google had infringed claims of its 

method patent. However, Plaintiff did not allege that Google performed all the steps of the 

method claims. And because the claims required multiple actors, Plaintiff could not plausibly 

allege Google performed all the steps. Because infringement of a method claim requires a single 

actor to perform all the steps, and Plaintiff did not allege Google performed all the steps, the 

Federal Circuit affirmed the district court’s dismissal under Rule 12(b)(6). 

Similarly, the plain language of the claims may preclude direct infringement by a 

manufacturer where, for example, the claims are for treating a person, and there is no indication 

the manufacturer treats persons. In See Bonutti Skeletal Innovations LLC v. ConforMIS, Inc., 

 

products are far too conclusory to pass muster under Rule 8, Twombly or Iqbal”); Videx, Inc. v.

TriTeq Lock & Sec.. LLC, 2014 US Dist LEXIS 63653 (D Or May 8, 2014)(court was “not 

persuaded by plaintiff's argument that its amended complaint must meet only the bare 

minimum pleading requirements of Federal Rule of Civil Procedure 8 and Form 18”); 

Medsquire LLC v. Spring Med. Sys., 2011 US Dist LEXIS 107416 (CD Cal Aug. 31, 

2011)(court “agrees with those courts that apply Iqbal and Twombly’s ‘plausibility’ standard to 

direct patent infringement actions”). 

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2013 US Dist LEXIS 164549, 7-8 (D Del Nov. 14, 2013), a manufacturer of knee implants could 

not be held liable for direct infringement for a method claim that required “performing surgery.” 

Id. Plaintiffs could not assert direct infringement by a single party because there was no 

indication that the manufacturer performed surgery. Id. 

2. The Prior Litigation Demonstrated The Futility of Plaintiffs’ Claim 

Plaintiffs attempt to dismiss the findings in the North Carolina litigation by asserting that 

the Court granted dismissal based on a lack of jurisdiction. That is true. What Plaintiffs miss, 

however, is that the Court dismissed the claim because AAAP could not have committed 

infringement in North Carolina. More specifically, the North Carolina court noted that AAAP 

could not be liable for the actions of the upstream actors because there was no basis for finding 

that they were acting under the control of AAAP.3 The same reasoning applies anywhere in the 

country. AAAP cannot infringe because nearly every element of the claims is performed by a 

third party that is not under the control of AAAP. 

While paragraphs 22, 26 and 27 of Plaintiffs’ Complaint make conclusory assertions of 

infringement, each does so on a legally flawed analysis of infringement. The facts asserted by 

Plaintiffs do not amount to infringement as a matter of law. While the Court must take 

Plaintiffs’ factual assertions as true for purposes of the motion to dismiss, it need not take 

Plaintiffs’ legal conclusions as true. Indeed, Plaintiffs’ legal conclusions contradict their factual

allegations. Contrary to the flawed legal assertions, AAAP providing the resonant frequencies to 

its customers cannot constitute patent infringement or induced infringement because it was 

Ledwell who performed the calculations. Based on Plaintiffs’ own pleadings, there is not a 

single entity which performs each step of the claimed method. 

 

3

 The court noted: 

Plaintiffs do not allege that Defendant FTT is Defendant AAA’s agent. The fact that Defendant 

FTT is Defendant AAA’s distributor, on its own, defeats Plaintiffs’ argument that Defendant 

AAA is responsible for Defendant FTT’s actions. (Memorandum in Support, Exhibit D, page 

8)(emphasis added). 

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B. THE COURT SHOULD DISMISS THE CLAIM FOR INDUCED 

INFRINGEMENT BECAUSE THERE IS NO DIRECT INFRINGER 

To survive a motion to dismiss for induced infringement, a plaintiff's complaint must 

contain facts that show a defendant “specifically intended their customers to infringe” the patents 

and “knew that the customer[s’] acts constituted infringement.” In re Bill of Lading, 681 F3d at 

1339. Compliance with Form 18 is insufficient, and the general principles of Twombly and Iqbal

should be applied. See Pecorino, 934 F Supp. 2d at 446-47. Therefore, for an induced 

infringement claim to survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must 

allege sufficient facts to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 

US at 678; see also Bell Atl. Corp. v. Twombly, 550 US at 547 (2007). In making this 

determination, a court should assume all well-pleaded allegations in the complaint to be true 

“and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 US 

at 679. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id. at 678 (citation omitted). 

In addition, the Supreme Court recently confirmed that that “inducement liability may 

arise if, but only if, [there is] . . . direct infringement.” Limelight Networks, Inc. v. Akamai 

Techs., Inc., 134 S Ct 2111, 2117, 189 L Ed 2d 52 (2014)(citation omitted). 

Plaintiffs’ claims for induced infringement should be dismissed because there are no 

factual allegations which could support a claim of direct infringement against any party. Neither 

AAAP nor its customers perform all steps of the method claim, and Plaintiff has not alleged that 

a single actor performs all steps of the method claim. While the Court must take Plaintiffs’ 

allegations of different actors performing some steps of the method claim as true, these facts 

actually demonstrate that no one is directly infringing. Under Limelight, where there is no direct 

infringement, there can be no induced infringement. Therefore, Plaintiffs’ claims for induced 

infringement should be dismissed. 

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C. PLAINTIFFS HAVE FAILED TO JOIN AN INDESPENSIBLE PARTY 

For some reason, Plaintiffs have not named as a party the only person whom they allege 

to have performed the first three steps of Claim 1 of the patent. While Plaintiffs argue that the 

revisions to patent law under the America Invents Act (AIA) prevent the joinder of Ledwell, this 

argument reveals their dilemma. Under 35 U.S.C. § 299 a party may only be joined if any right 

to relief is “arising out of the same transaction, occurrence, or series of transactions or 

occurrences relating to the making, using, importing into the United States, offering for sale, or 

selling of the same accused product or process.” Thus, it begs the question. Was Ledwell’s 

conduct part of the same series of transactions? If so, he is an indispensable party, as he is the 

only person alleged to have performed the first three elements of Claim 1 of the patent. If not, 

then Plaintiffs Complaint does not even pass the standards for Rule 11, as there is no good faith 

basis for asserting infringement or induced infringement against any of the Defendants where the 

first three steps of Claim 1 are done by an unrelated third party. 

III. CONCLUSION 

When taken as true, Plaintiffs Complaint alleges a fact scenario which preludes a finding 

of infringement (either direct or induced) by AAAP. Moreover, in light of the warnings of the 

court in the prior litigation, Plaintiffs were aware that the Complaint lacks merit under 

established Supreme Court precedent and AAAP should be awarded its fees. Furthermore, the 

Complaint should be dismissed for failure to add the only party alleged to have actually 

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performed the first three steps of Claim 1. 

DATED this 30th day of April, 2015. 

HARRANG LONG GARY RUDNICK P.C. 

Andrea D. Coit, OSB #002640 

BATEMAN IP 

By: s/ Randall B. Bateman 

Randall B. Bateman, Pro Hac Vice

Of Attorneys for Defendant AAA Production, 

Inc.

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CERTIFICATE OF SERVICE 

I certify that on April 30, 2015, I served or caused to be served a true and complete copy 

of the foregoing REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 

RULE 12(B)(6) AND 12(B)(7) AND FOR ATTORNEY FEES UNDER 35 USC § 285 on the 

party or parties listed below as follows: 

 Via CM / ECF Filing 

Via First Class Mail, Postage Prepaid 

Via Email 

Via Personal Delivery 

Megan I. Livermore 

Gaydos Churnside & Balthrop, PC 

440 East Broadway, Suite 300 

Eugene, OR 97401 

 Of Attorneys for Plaintiffs 

Albert P. Allan, Pro Hac Vice

Allan Law Firm, PLLC 

409 East Boulevard 

Suite 201 

Charlotte, NC 28203 

Of Attorneys for Plaintiffs

HARRANG LONG GARY RUDNICK P.C. 

Andrea D. Coit, OSB #002640 

BATEMAN IP 

By: s/ Randall B. Bateman 

Randall B. Bateman, Pro Hac Vice

Of Attorneys for Defendant AAA Production, 

Inc. 

00711251.v1

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