PAGE 1 – OPINION AND ORDER ON MOTION TO DISMISS

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BOYDSTUN EQUIPMENT 

MANUFACTURING, LLC, an Oregon 

limited liability company

Plaintiff,

v.

COTTRELL, INC., a Georgia corporation,

Defendant.

Case No. 3:16-cv-790-SI

OPINION AND ORDER ON 

MOTION TO DISMISS

Stephen J. Joncus, JONCUS LAW PC, 13203 SE 172nd Avenue, Suite 166 #344, Happy Valley, 

OR 97086; Andrew E. Aubertine, AUBERTINE LAW GROUP PC, 7128 SW Gonzaga Street, 

Suite 230, Portland, Oregon 97223; Philip S. Van Der Weele, K&L GATES LLP, One SW 

Columbia Street, Suite 1900, Portland, OR 97258. Of Attorneys for Plaintiff.

Thomas R. Johnson, PERKINS COIE LLP, 1120 NW Couch Street, 10th Floor, Portland, OR; 

Shylah Alfonso, Ryan J. McBrayer, Cori G. Moore, and Kyle M. Amborn, PERKINS COIE LLP, 

1201 Third Avenue, Suite 4900, Seattle, WA 98101-3099; J. Peter Staples and Jack R. Scholz, 

CHERNOFF VILHAUER LLP, 111 SW Columbia Street, Suite 725, Portland, OR 97201. Of 

Attorneys for Defendant.

Michael H. Simon, District Judge.

Plaintiff Boydstun Equipment Manufacturing (“Boydstun”) brings this action against 

Defendant Cottrell, Inc. (“Cottrell”), seeking a declaratory judgment of non-infringement of 

Cottrell’s U.S. Patent No. 7,585,140 (the “’140 Patent”). Boydstun also asserts a claim of 
PAGE 2 – OPINION AND ORDER ON MOTION TO DISMISS

unlawful monopolization in violation of Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2,

and Oregon’s equivalent state law, Oregon Revised Statutes (“ORS”) § 646.730. Boydstun also 

alleges bad faith enforcement of patents in violation of ORS § 646A.810. Cottrell moves to 

dismiss Boydstun’s Sherman Act and state-law causes of action for failure to state a claim. 

ECF 78 (redacted); ECF 81 (unredacted; filed under seal). Cottrell’s motion to dismiss is granted 

in part and denied in part as set forth below. Cottrell also requests judicial notice. ECF 79. That 

request is granted.

STANDARDS

A. Motion to Dismiss

A motion to dismiss for failure to state a claim may be granted only when there is no 

cognizable legal theory to support the claim or when the complaint lacks sufficient factual 

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., 

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual 

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint 

and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 

F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint 

“may not simply recite the elements of a cause of action, but must contain sufficient allegations 

of underlying facts to give fair notice and to enable the opposing party to defend itself 

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from 

the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office 

Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the 

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 

U.S. 662, 678-79 (2009).
PAGE 3 – OPINION AND ORDER ON MOTION TO DISMISS

A complaint must contain sufficient factual allegations to “plausibly suggest an 

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the 

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “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.” Iqbal, 556 U.S. at 678 (citing 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

B. Monopolization

Section 2 of the Sherman Act prohibits monopolization, attempts to monopolize, and 

conspiracies to monopolize. 15 U.S.C. § 2. To state a civil claim of monopolization under 

Section 2, an antitrust plaintiff must allege: “(a) the possession of monopoly power in the 

relevant market; (b) the willful acquisition or maintenance of that power; and (c) causal antitrust 

injury.” Somers v. Apple, Inc., 729 F.3d 953, 963 (9th Cir. 2013) (quoting Allied Orthopedic 

Appliances Inc. v. Tyco Health Care Grp LP, 592 F.3d 991, 998 (9th Cir. 2010)). The offense of 

monopolization “requires, in addition to the possession of monopoly power in the relevant 

market, ‘the willful acquisition or maintenance of that power as distinguished from growth or 

development as a consequence of a superior product, business acumen, or historic accident.’” 

Verizon Commc’ns., Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) 

(quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966)). “To safeguard the 

incentive to innovate, the possession of monopoly power will not be found unlawful unless it is 

accompanied by an element of anticompetitive conduct.” Id. (emphasis in original). The conduct 

element involves “the use of monopoly power ‘to foreclose competition, to gain a competitive 

advantage, or to destroy a competitor.’” Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 
PAGE 4 – OPINION AND ORDER ON MOTION TO DISMISS

F.3d 1195, 1208 (9th Cir. 1997)) (quoting Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 

U.S. 451, 482-83 (1992)).

1

BACKGROUND

The following facts come largely from the Third Amended Complaint (ECF 77) 

(“Complaint”). The alleged relevant product market is the manufacture and sale of commercial 

car haulers. The relevant geographic market is the United States. Boydstun and Cottrell are 

competitors in the relevant market. Commercial car haulers, of which there are about fifteen 

thousand currently in use in the United States, are used to transport throughout the country up to 

ten automobiles, with one car often riding above another. Nearby drivers may wonder just how 

all of those cars remain in place. The answer, in part, is the subject of this lawsuit.

A. The Commercial Car Haulers Industry

Boydstun has participated in the relevant market since late 2014. Boydstun’s founder and 

President, Rob Boydstun, previously also was involved in the business of making and selling 

commercial car haulers as founder and President of Boydstun Metal Works. Boydstun Metal 

Works manufactured and sold commercial car haulers from 1989 until 2009, when that company 

filed for Chapter 7 bankruptcy protection.

2 At the urging of former and prospective customers 

 

1

The text of Oregon’s anti-monopolization law, ORS 646.730, is virtually identical to 

Section 2 of the Sherman Act, 15 U.S.C. § 2. In addition, the Oregon Legislature has directed 

that “[t]he decisions of federal courts in construction of federal law relating to the same subject 

shall be persuasive authority in the construction of ORS [646.730].” ORS 646.715(2). See also 

Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip Morris Inc., 185 F.3d 957, 

963 n. 4 (9th Cir. 1999) (“The Oregon antitrust statutes are almost identical to the federal 

antitrust statutes,” and “Oregon courts look to federal antitrust decisions for ‘persuasive’ 

guidance in interpreting the state antitrust laws.”); Willamette Dental Group, P.C. v. Oregon 

Dental Services Corp., 130 Or. App. 487, 492 (1994) (“[W]e look to federal decisions 

interpreting section 2 of the Sherman Act for persuasive, albeit not binding, guidance.”).

2 Cottrell requests that the Court take judicial notice of the fact that Boydstun Metal 

Works filed for bankruptcy protection in the U.S. Bankruptcy Court for the District of Oregon. 

ECF 79. Boydstun does not object. Although district courts generally may not consider material 
PAGE 5 – OPINION AND ORDER ON MOTION TO DISMISS

who wanted increased choices and competition in the market, Rob Boydstun re-entered the 

business in late 2014 with Boydstun Equipment Manufacturing. By the end of 2015, Boydstun 

had sold about 50 commercial car haulers. That reflects approximately three percent of the 

market based on annual sales.

Cottrell has been in the business of making and selling commercial car haulers to 

customers in the United States for several decades. Twenty five years ago, there were at least ten

manufacturers of car haulers in the market, including Cottrell and Boydstun Metal Works. In 

1996, Cottrell acquired Bankhead Manufacturing, one of Cottrell’s primary competitors. At the 

time of this acquisition, Boydstun Metal Works had a market share of between ten and fifteen 

percent. By 2008, Cottrell’s market share was approximately 50 percent, and the market share of 

Boydstun Metal Works was approximately 45 percent. Boydstun Metal Works left the market in 

2009, leaving Cottrell to be almost the only supplier of commercial car haulers in the country. As 

of 2010, and at all times relevant to this lawsuit, Cottrell holds a market share of

approximately 95 percent.

To build a commercial car hauler, manufacturers like Boydstun and Cottrell first obtain 

“truck chassis”—essentially a frame—from truck chassis manufacturers. This occurs in one of 

two ways. First, a truck chassis may be purchased from a chassis dealer and promptly delivered 

to the car hauler manufacturer. Alternatively, a truck chassis may be purchased from a chassis 

dealer but held by the dealer and only sent to the car hauler manufacturer when needed. After 

 

beyond the pleadings in ruling on a Rule 12(b)(6) motion, they may take judicial notice of 

documents referenced in the complaint, pleadings from other relevant proceedings, as well as 

undisputed matters in the public record, without converting a motion to dismiss into one for 

summary judgment. Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th 

Cir. 2007). Cottrell’s request for judicial notice is granted.
PAGE 6 – OPINION AND ORDER ON MOTION TO DISMISS

receiving a chassis, car hauler manufacturers, like Boydstun and Cottrell, customize the chassis 

by building and attaching the car hauler trailer to the chassis.

Commercial car haulers generally are sold and distributed to customers through dealers.

Dealers showcase, market, and promote the car haulers made by manufacturers, typically 

receiving compensation in return for a sale. Commercial car haulers are sold primarily to two 

types of customers: larger transport companies that use their own fleet of commercial car haulers 

(“Fleet Owners”), or smaller companies that own and drive one or more commercial car haulers 

(“Owner-Operators”). Owner-Operators can work either independently or with a Fleet Owner. 

A commercial car hauler can sell for up to $300,000. They are part of a $260 million per 

year industry. In the three years comprising 2014, 2015, and 2016, approximately 2,000 

commercial car haulers were made and sold in the United States.

B. Relevant Patents

The process of converting a truck chassis to a commercial car hauler involves specialized 

components that are built into the chassis and trailer and are part of the commercial car hauler 

design. Some of these components involve patented features. Two components of commercial 

car haulers relevant to this case are a tie-down component for fastening cars and a ratcheting 

winch for use in the tie-down system.

1. The ’917 Patent

The first Cottrell patent relevant to the parties’ dispute is U.S. Patent Number 7,484,917 

(“’917 Patent” or “Cottrell soft-tie patent”). On May 17, 2005, Cottrell filed a provisional 

application for a “Strap Tie Down Apparatus and System”—which would become the ’917 

Patent.

3

Eight days later, May 25, 2005, Boydstun Metal Works filed a utility application,

4

titled 

 

3

Provisional applications are non-public.
PAGE 7 – OPINION AND ORDER ON MOTION TO DISMISS

“Vehicle Support and Retention System for a Vehicle Transporter.” Cottrell filed its utility 

application on January 18, 2006. On October 3, 2006, the U.S. Patent and Trademark Office 

(“PTO”) issued the Boydstun Metal Works soft-tie patent, U.S. Pat. No. 7,114,897, (“’897 

Patent”). On February 3, 2009, the PTO issued the Cottrell soft-tie patent, the ’917 Patent.

On the same day that the PTO issued the Boydstun Metal Works soft-tie patent (’897

Patent), and while Cottrell was still prosecuting its ’917 Patent, Boydstun Metal Works sued 

Cottrell for infringement of the ’897 Patent, alleging that the subject of the ’917 Patent infringed 

on Boydstun Metal Works’ ’897 Patent. The parties ultimately settled that dispute, and Cottrell 

acquired, as part of the settlement, a license to the Boydstun Metal Works soft-tie patent 

(the ’897 Patent) as well as another patent held by Boydstun Metal Works.

After Boydstun entered the market in 2014, it began selling its own soft-tie system with a 

sliding spool. On November 2, 2015, Cottrell sent a cease and desist letter to Boydstun, 

demanding that Boydstun stop advertising, manufacturing, and selling commercial car haulers 

with a sliding spool feature in the soft-tie system. Cottrell threatened to sue Boydstun for 

infringement of the ’917 Patent. Boydstun responded that Cottrell’s ’917 Patent was invalid. 

Cottrell neither replied to Boydstun’s responsive letter nor withdrew its original cease and desist 

demand.

2. The ’140 Patent

The second patent relevant to this dispute is the Cottrell ’140 Patent (“ratcheting winch 

patent”).5 Cottrell applied for the ’140 Patent for a ratcheting winch on March 27, 2008, seeking 

 

4 A utility patent application is a non-provisional application.

5 Boydstun seeks a declaratory judgment of non-infringement of the ’140 Patent, but that 

request is not part of Cottrell’s pending motion to dismiss. The patent dispute, however, is 

relevant to Boydstun’s claims of monopolization and bad faith enforcement of patents. 
PAGE 8 – OPINION AND ORDER ON MOTION TO DISMISS

expedited review by the PTO.6In its application, Cottrell cited two prior art references: U.S. 

Patent. Pub. No. 2006/0013667, to Bu Qin Ruan (“Ruan”), and U.S. Patent No. 5,101,537, to 

David S. Cummings. Cottrell’s ’140 ratcheting winch patent issued on September 8, 2009. 

In February 2016, Boydstun introduced its Rapid RatchetTM winch, which helps drivers 

more quickly and easily tie down vehicles. On previous models, drivers had to remove a tiedown bar with each quarter-turn of a ratchet. The Rapid RatchetTM winch allows drivers to insert 

the tie-down bar just once to tighten the straps enough to secure a vehicle. On March 31, 2016, 

Cottrell sent Boydstun a demand letter, asserting that Boydstun’s Rapid RatchetTM winch 

infringed on Cottrell’s ’140 Patent. In its letter, Cottrell explained that it based its assertion on 

information available on Boydstun’s website. After Boydstun responded, asserting its belief that 

the Rapid RatchetTM winch did not infringe the ’140 Patent, Cottrell further explained that its 

infringement allegation was based in part on viewing a video available on Boydstun’s website. 

On February 21, 2017, Boydstun filed a petition for Inter Partes Review (“IPR”) with the 

U.S. Patent Trial and Appeal Board (“PTAB”), asserting that all claims in Cottrell’s ’140 Patent

are obvious over Ruan and one of Cottrell’s own prior patents, U.S. Patent No. 5,314,275 (“’275 

patent”). Boydstun also asserted that the claims of the ’140 Patent are obvious over Ruan and 

U.S. Patent No. US 6,824,121. On August 30, 2017, the PTAB granted the petition on both 

grounds and instituted an IPR proceeding, after finding a reasonable likelihood that Boydstun 

would prevail in at least some of its claims.7Boydstun Equip. Mfg., LLC, 2017 WL 3835954 

(Aug. 30, 2017).

 

6 Under an expedited review, patent applicants have higher duties of disclosure and must 

perform a pre-examination search, disclosing the search logic to the PTO. 

7 Neither party objects to the Court taking judicial notice of the PTAB decision for 

purposes of this motion. 
PAGE 9 – OPINION AND ORDER ON MOTION TO DISMISS

DISCUSSION

Boydstun alleges that Cottrell has monopoly power in the U.S. market for commercial car 

haulers, which Plaintiff and Defendant agree is the relevant market; Cottrell does not dispute that 

fact for purposes of this motion. Boydstun also alleges that Cottrell has engaged in exclusionary 

conduct, including bad faith enforcement of patents, “scare-the–customer-and-run” tactics, 

supply chain restrictions, and interference with suppliers. Boydstun further alleges that it has 

suffered antitrust injury. Cottrell moves to dismiss Boydstun’s monopolization claims on the 

grounds that: (1) based on the Noerr-Pennington doctrine of antitrust immunity, Cottrell is not 

subject to antitrust liability for enforcing its patents;8(2) Boydstun fails to allege sufficient facts 

to show other exclusionary conduct; and (3) Boydstun fails sufficiently to allege causal antitrust 

injury. Boydstun responds that Cottrell’s conduct is subject to both the “sham” and “Walker

Process fraud” 9exceptions to Noerr-Pennington immunity and that Boydstun has alleged 

sufficient facts to show other exclusionary conduct and antitrust injury. Cottrell also moves to 

dismiss Boydstun’s state claim under ORS § 646A.810, arguing preemption under federal law.

Boydstun responds that this claim is not preempted because Cottrell engaged in objectively 

baseless patent enforcement conduct.

A. Monopolization

1. Cottrell’s Patent Enforcement Practices

Boydstun alleges that Cottrell acted in bad faith in enforcing two invalid patents and that 

Cottrell is now using those patents to block and attempt to block Boydstun’s ability to compete 

 

8

The Noerr-Pennington doctrine derives its name from two cases, Eastern R.R. 

Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine 

Workers of Am. v. Pennington, 381 U.S. 657 (1965).

9

The Walker Process fraud exception comes from Walker Process Equipment, Inc. v. 

Food Machinery & Chemical Corp., 382 U.S. 172 (1965).
PAGE 10 – OPINION AND ORDER ON MOTION TO DISMISS

with Cottrell by threatening to bring patent infringement actions against Boydstun based on 

invalid patents. Specifically, Boydstun alleges that Cottrell’s threatened enforcement of the ’917 

Patent and the ’140 Patent was done in bad faith and constitutes anticompetitive conduct.

a. Noerr-Pennington Immunity

Patent law and antitrust law are at odds. “The point of antitrust law is to encourage 

competitive markets to promote consumer welfare. The point of patent law is to grant limited 

monopolies as a way of encouraging innovation.” F.T.C. v. Actavis, Inc., 133 S. Ct. 2223, 2238 

(2013). A patent, in essence, “provides an exception to the antitrust law, and the scope of the 

patent . . . forms the zone within which the patent holder may operate without facing antitrust 

liability.” Id.

“Under the Noerr-Pennington doctrine . . . defendants are immune from antitrust liability 

for engaging in conduct (including litigation) aimed at influencing decisionmaking by the 

government.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1757

(2014). This includes patent infringement litigation. See Handargds, Inc. v. Ethicon, Inc., 601 

F.2d 986, 993 (9th Cir. 1979) (“Patentees must be permitted to test the validity of their patents in 

court through actions against alleged infringers.”). The Ninth Circuit has extended NoerrPennington immunity to “litigation-related activities preliminary to the formal filing of the 

litigation,” such as presuit demand letters and other “conduct incidental to prosecution of the 

suit.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 934-37 (9th Cir. 2006). Plaintiff and Defendant do 

not dispute that Cottrell’s actions, in sending cease and desist letters and threatening patent 

infringement litigation, constitute conduct within the prima facie scope of the Noerr-Pennington

doctrine.

There are, however, exceptions to Noerr-Pennington immunity. First, under the “sham 

exception,” “activity ostensibly directed toward influencing government action does not qualify 
PAGE 11 – OPINION AND ORDER ON MOTION TO DISMISS

for Noerr immunity if it is a mere sham to cover an attempt to interfere directly with the business 

relationships of a competitor.” Octane Fitness, 134 S. Ct. at 1757 (quotation marks and

alterations omitted). Second, under the “Walker Process fraud exception,” enforcement of a 

patent obtained by fraud on the PTO is not entitled to Noerr-Pennington immunity. Boydstun 

argues that both the sham exception and the Walker Process fraud exception apply, and, thus,

Cottrell may be subject to antitrust liability based on its patent enforcement actions.

b. The Sham Exception

“[W]hile genuine petitioning is immune from antitrust liability, sham petitioning is not.” 

BE & K Constr. Co. v. N.L.R.B., 536 U.S. 516, 525-26 (2002). A bad faith patent enforcement 

may form the basis for antitrust liability under Section 2. In order “to qualify as a ‘sham,’ a 

lawsuit must be objectively baseless and must conceal an attempt to interfere directly with the 

business relationships of a competitor.” Octane Fitness, 134 S. Ct. at 1757 (quotation marks and 

alterations omitted). The Supreme Court has articulated a two-part definition of sham antitrust 

litigation:

[F]irst, it “must be objectively baseless in the sense that no 

reasonable litigant could realistically expect success on the 

merits”; second, the litigant’s subjective motivation must “conceal 

an attempt to interfere directly with the business relationships of a 

competitor through the use of the governmental process—as 

opposed to the outcome of that process—as an anticompetitive 

weapon.”

BE & K, 536 U.S. at 526 (quoting Prof’l Real Estate Inv’rs., Inc. v. Columbia Pictures Indus., 

Inc., 508 U.S. 49, 60-61 (1993)) (emphasis in original) (first alteration added, original alterations 

omitted). “For a suit to violate the antitrust laws . . . it must be a sham both objectively and 

subjectively.” Id. (emphasis in original). Therefore, “an objectively reasonable effort to litigate 

cannot be a sham regardless of subjective intent.” Prof’l Real Estate Inv’rs., 508 U.S. at 57. 
PAGE 12 – OPINION AND ORDER ON MOTION TO DISMISS

i. Cottrell’s ’140 Patent

On March 31, 2016, and again on April 18, 2016, Cottrell sent to Boydstun two cease and

desist letters, threatening to sue Boydstun for infringement of the ’140 Patent. Boydstun alleges 

that both letters were objectively and subjectively baseless. Thus, according to Boydstun,

Cottrell’s sending of these letters falls under the sham exception to Noerr-Pennington and 

subjects Cottrell to antitrust liability.

Boydstun offers several arguments that Cottrell’s actions were objectively baseless. First, 

at the time it sent the cease and desist letters, Cottrell had no idea whether the Rapid RatchetTM 

winch infringed the ’140 Patent. Boydstun alleges that Cottrell was fully aware that it could not 

ascertain whether the Rapid RatchetTM winch infringed without seeing the interior workings of 

the winch. This assertion, however, is belied by the text of Cottrell’s letters themselves, which 

Boydstun incorporates into its Complaint. Cottrell explained in its demand letter dated March 31, 

2016, that it based its allegations on information available on Boydstun’s website. In its second 

letter, dated April 18, 2016, Cottrell further explained that it had reviewed a video on Boydstun’s 

website that showed the Rapid RatchetTM winch to have a ratchet head “coupled to” and “in 

mechanical contact” with the ratchet gear—using language from Claim 1 of Cottrell’s ’140 

Patent. Cottrell further stated that the video showed the components to be “coupled” together in a 

way that allowed them to rotate together both forward and in reverse—again using language 

from the ’140 Patent. Finally, Cottrell noted that the video revealed “a shaft configured to 

receive at least one of a chain and a strap as recited in claim 8” of the ’140 Patent. Far from 

indicating that Cottrell had no idea whether the Rapid RatchetTM winch actually infringed, or that 

Cottrell was fully aware that it could not ascertain whether it infringed without seeing its inner 

workings, these letters, at least facially, suggest that Cottrell believed that it was able to—and 

had—concluded that Boydstun’s Rapid RatchetTM winch infringed on Cottrell’s ’140 Patent. 
PAGE 13 – OPINION AND ORDER ON MOTION TO DISMISS

In alternative support of Boydstun’s argument that Cottrell’s demand letters were 

objectively baseless, Boydstun also alleges that Cottrell later “admitted” its inability successfully 

to advance its patent infringement claim when, on October 28, 2016, Cottrell filed a declaration 

in this case stating that “Cottrell is currently unable to allege a claim against Boydstun for patent 

infringement.” ECF 77 at 25, ¶ 135. Boydstun also alleges that “[r]ecently, after having inspected 

a Rapid RatchetTM winch, counsel for Cottrell called counsel for Boydstun and stated that he 

agreed that the Rapid RatchetTM winch did not infringe the ’140 ratcheting-winch patent.” 

ECF 77 at 25, ¶ 137. These facts, however, are largely irrelevant. Cottrell’s declaration stated 

that—as of October 28, 2016—it was unable to make a claim of patent infringement. This 

statement, which Boydstun points out was made nearly seven months after Cottrell sent its first 

demand letter, says little about whether, seven months earlier, Cottrell had an objectively 

reasonable basis for sending a demand letter. Similarly, what Cottrell’s counsel may have 

concluded after finally inspecting the winch says little about whether, at some earlier time, and 

before inspection, it was objectively unreasonable for Cottrell to assert its belief that the winch 

infringed the ’140 Patent.

Boydstun has not alleged sufficient facts from which the Court reasonably may infer that 

Cottrell’s two cease and desist letters regarding the ’140 Patent were “objectively baseless in the 

sense that no reasonable litigant could realistically expect success on the merits” at the time that 

the letters were sent. BE & K, 536 U.S. at 526 (quoting Prof’l Real Estate Inv’rs., 508 U.S. at 60-

61) (alterations omitted). Because Boydstun has not sufficiently alleged that Cottrell’s 

enforcement actions with respect to the ’140 Patent were objectively baseless, the Court need not 

assess Boydstun’s further argument that the claims also were subjectively baseless.
PAGE 14 – OPINION AND ORDER ON MOTION TO DISMISS

ii. Cottrell’s ’917 Patent

Boydstun also alleges that Cottrell’s cease and desist letter dated November 2, 2015 

regarding Cottrell’s ’917 Patent was sent in bad faith. Boydstun’s Complaint alleges:

At the time that it sent its letter, Cottrell knew that its assertion of 

infringement of the ’917 soft-tie patent against Plaintiff was 

without merit because Cottrell had obtained the ’917 patent 

through fraud on the Patent Office, it had not invented the devices 

claimed, and its application was for Rob Boydstun’s invention.

ECF 77 at 20, ¶ 100. Boydstun does not, however, expressly allege that this letter was either 

objectively or subjectively baseless, although it does allege that Cottrell knew its assertion of 

infringement to be “without merit.”

The allegation that Cottrell obtained the ’917 Patent through fraud is a legal conclusion 

that the Court need not accept as true. Iqbal, 556 U.S. at 678-79. Boydstun’s allegations that

Cottrell “had not invented the devices claimed” and that Cottrell’s patent covered “Rob 

Boydstun’s invention,” without more, do not support the conclusion that the November 2nd 

demand letter was either objectively or subjectively baseless. In essence, Boydstun is alleging 

that the demand letter was meritless or “baseless” because of the alleged fraud in obtaining the 

patent. This conflates the two exceptions to Noerr-Pennington immunity—the sham exception 

and Walker Process fraud. Boydstun, however, cites no support for the suggestion that fraud on 

the PTO can itself result in litigation or threatened litigation being labeled a “sham” under the 

Noerr-Pennington doctrine.10

 

10 See Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1071 (Fed. Cir. 

1998) (“PRE and Walker Process provide alternative legal grounds on which a patentee may be 

stripped of its immunity from the antitrust laws . . . [and] we need not find a way to merge these 

decisions. Each provides its own basis for depriving a patent owner of immunity from the 

antitrust laws . . . The Supreme Court saw no need to merge these two separate lines of cases and 

neither do we.”).
PAGE 15 – OPINION AND ORDER ON MOTION TO DISMISS

c. Walker Process Fraud

The Supreme Court found in Walker Process “that enforcement of a fraudulently 

obtained patent claim could violate the Sherman Act.” Spectrum Sports, Inc. v. McQuillan, 506 

U.S. 447, 455 (1993); see also California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 

508, 512-13 (1972) (“Use of a patent obtained by fraud to exclude a competitor from the market 

may involve a violation of the antitrust laws, as we held in [Walker Process].”). Boydstun alleges 

that both the ’140 Patent and ’917 Patent were obtained through fraud on the PTO, and thus 

Cottrell is not entitled to immunity with respect to its enforcement actions for either.

To state a claim of fraud on the PTO, Boydstun must first meet the heightened pleading 

requirements of Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) applies to all 

allegations, or averments, of fraud in all civil cases in federal court, even when fraud is not an 

essential element of the claim. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-05 (9th 

Cir. 2003). The Federal Circuit explained in Medimmune, Inc. v. Genentech, Inc. that “[l]ike all 

fraud-based claims, Walker Process allegations are subject to the pleading requirements of Fed. 

R. Civ. P. 9(b).” 427 F.3d 958, 967 (Fed. Cir. 2005), rev’d and remanded on other grounds, 549 

U.S. 118 (2007) (citing Vess, 317 F.3d at 1103-04). Further, the Federal Circuit applies its “own 

law, not the law of the regional circuit, to the question of whether inequitable conduct has been 

pleaded with particularity under Rule 9(b),” Exergen Corp. v. Wal-Mart Stores, Inc., 575 

F.3d 1312, 1326 (Fed. Cir. 2009), because it “pertains to or is unique to patent law,” Cent. 

Admixture Pharmacy Servs., Inc. v. Advanced Cardiac Solutions, P.C., 482 F.3d 1347, 1356

(Fed. Cir. 2007) (quotation marks omitted). Although the Federal Circuit has not explicitly held 

that Federal Circuit law also applies to the question of whether Walker Process fraud has 

adequately been pled under Rule 9(b), the Court concludes that Federal Circuit law would—and 
PAGE 16 – OPINION AND ORDER ON MOTION TO DISMISS

should—apply because claims of Walker Process fraud “pertain to or are unique to patent law.” 

Cent. Admixture, 482 F.3d at 1356 (quotation marks omitted).

Rule 9(b) requires that a plaintiff alleging fraud identify “the specific who, what, when, 

where, and how of the material misrepresentation or omission committed before the PTO.” 

Exergen, 575 F.3d at 1327; see also In re BP Lubricants USA Inc., 637 F.3d 1307, 1311 (Fed. 

Cir. 2011) (“Exergen’s pleading requirements apply to all claims under Rule 9(b), not just 

inequitable conduct cases.”). The elements of “malice, intent, knowledge, and other conditions of 

mind of a person may be averred generally.” Fed. R. Civ. P. 9(b); see also Exergen, 575 F.3d at 

1327. But, a plaintiff must still “allege sufficient underlying facts from which a court may 

reasonably infer that a party acted with the requisite state of mind.” Exergen, 575 F.3d at 1327.11

The question of “whether conduct in procuring or enforcing a patent is sufficient to strip 

a patentee of its immunity from the antitrust laws is to be decided as a question of Federal Circuit 

law.” Nobelpharma AB v. Implant Innovations, 141 F.3d 1059, 1068 (Fed. Cir. 1998); see also

Dippin’ Dots, Inc. v. Mosey, 476 F.3d 1337, 1346 (Fed. Cir. 2007) (“The first barrier for a 

Walker Process claimant to clear is the requirement that the patent be obtained through actual 

 

11 Similarly, in the Ninth Circuit, “[t]o satisfy Rule 9(b), a pleading must identify ‘the 

who, what, when, where, and how of the misconduct charged,’ as well as ‘what is false or 

misleading about [the purportedly fraudulent] statement, and why it is false.’” Cafasso v. Gen. 

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Ebeid ex rel. United States 

v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010)); see also Juniper Networks, Inc. v. Shipley, 643 

F.3d 1346, 1350 (Fed. Cir. 2011) (“Rule 9(b) requires a plaintiff to plead in detail ‘the specific 

who, what, when, where, and how’ of the alleged fraud.’”) (quoting BP Lubricants, 637 F.3d at

1309. The Ninth Circuit “has interpreted Rule 9(b) to require that allegations of fraud are specific 

enough to give defendants notice of the particular misconduct which is alleged to constitute the 

fraud charged so that they can defend against the charge and not just deny that they have done 

anything wrong.” Neubronner v. Milken, 6 F.3d 666, 671-72 (9th Cir. 1993) (quotation marks 

omitted); see also Gottreich v. San Francisco Investment Corp., 552 F.2d 866, 866 (9th Cir. 

1977) (“[A] pleading is sufficient under Rule 9(b) if it identifies the circumstances constituting 

fraud so that the defendant can prepare an adequate answer from the allegations.”) (quotation 

marks omitted). 
PAGE 17 – OPINION AND ORDER ON MOTION TO DISMISS

fraud upon the PTO. This question is governed by Federal Circuit law.”). In order to make out a 

Walker Process fraud claim, an “antitrust-plaintiff must show . . . that the antitrust-defendant 

obtained the patent by knowing and willful fraud on the patent office and maintained and 

enforced the patent with knowledge of the fraudulent procurement.” TransWeb, LLC v. 3M 

Innovative Props. Co., 812 F.3d 1295, 1306 (Fed. Cir. 2016). 

Thus, a Walker Process plaintiff must allege both materiality and a clear intent to 

deceive. Nobelpharma, 141 F.3d at 1069-70. The materiality standard “requires that the patent 

would not have issued but for the patent examiner’s justifiable reliance on the patentee’s 

misrepresentation or omission.” Dippin’ Dots, 476 F.3d at 1347. “Walker Process intent may be 

inferred from the facts and circumstances of a case . . . .” Id. “[O]missions, as well as 

misrepresentations, may in limited circumstances support a finding of Walker Process fraud.” 

Nobelpharma, 141 F.3d at 1070. But, “‘[a] mere failure to cite a reference to the PTO will not 

suffice’” to establish Walker Process fraudulent intent. Dippin Dots, 476 F.3d at 1347 (alteration 

in original) (quoting Nobelpharma, 141 F.3d at 1071). In order “to find a prosecution omission 

fraudulent there must be evidence of intent separable from the simple fact of the omission.” Id.12

i. Cottrell’s ’140 Patent

Boydstun alleges that Cottrell’s ’140 Patent was obtained through fraud because Cottrell 

failed to disclose to the PTO a highly relevant patent of its own during the prosecution of 

the ’140 Patent. On March 27, 2008, Cottrell applied for what was ultimately issued as the ’140 

Patent, and sought expedited review. Under 37 C.F.R. § 1.56, patent applicants have “a duty of 

 

12 In Dippin’ Dots, the Federal Circuit noted that “[i]t might be argued that because [an] 

omitted reference was so important to patentability, [the applicant] must have known of its 

importance and must have made a conscious decision not to disclose it.” 476 F.3d at 1348. The 

court noted that while “[t]hat argument has some force,” it cannot sustain a finding of Walker 

Process fraud. Id. Rather, deceptive intent must be shown “independently.” Id.
PAGE 18 – OPINION AND ORDER ON MOTION TO DISMISS

candor and good faith in dealing with the [PTO], which includes a duty to disclose to the [PTO] 

all information known to that individual to be material to patentability as defined in [§ 1.56].”13

Under an expedited review process, applicants must provide “an information disclosure 

statement (IDS) in compliance with 37 CFR 1.98 citing each reference deemed most closely 

related to the subject matter of each of the claims.” Manual of Patent Examining Procedure

(“MPEP”) 708.02(a).14 In its application, Cottrell submitted two prior art references: U.S. Pat. 

Pub. No. 2006/0013667 to Ruan; and U.S. Patent No. 5,101,537 to David S. Cummings. 

Boydstun alleges that Cottrell’s ’275 patent, which Cottrell did not disclose, was highly 

pertinent to Cottrell’s application for the ’140 Patent—far more so than the Cummings patent, 

which Cottrell did disclose. Boydstun specifically explains that the Cummings patent “does not 

disclose a large external pawl like the claimed invention or the Cottrell ’275 patent—it discloses 

a very different mechanism for a winch.” ECF 77 at 21, ¶ 117. Boydstun also alleges that “[i]t is, 

and was at the time the application was pending, readily apparent that the ’140 ratcheting-winch 

patent is invalid over Ruan in view of Cottrell’s own winch patent, the Cottrell ’275 patent.” Id. 

¶ 118. This assertion is supported by the fact that PTAB recently granted Boydstun’s petition for 

 

13 As stated in 37 C.F.R. § 1.56(b), “[u]nder this section, information is material to 

patentability when it is not cumulative to information already of record or being made of record 

in the application, and (1) It establishes, by itself or in combination with other information, a 

prima facie case of unpatentability of a claim; or (2) It refutes, or is inconsistent with, a position 

the applicant takes in: (i) Opposing an argument of unpatentability relied on by the Office, or

(ii) Asserting an argument of patentability.”

14 According to 37 C.F.R. § 1.155 (2015) (“Expedited examination of design 

applications”), applicants “must have conducted a preexamination search” and a request for 

expedited review must include “[a] statement that a preexamination search was conducted.”
PAGE 19 – OPINION AND ORDER ON MOTION TO DISMISS

IPR, finding a reasonable likelihood that Boydstun would prevail in challenging Cottrell’s ’140 

Patent on this ground.15

Boydstun pleads sufficient facts to satisfy the Rule 9(b) pleading standard in the context 

of an omission. Cottrell argues that Exergen Corp. v. Wal-Mart Stores, Inc., requires that 

Boydstun allege fraud with greater specificity, including alleging who was obligated to disclose 

the prior art. 575 F.3d 1312 (Fed. Cir. 2009). Exergen, however, involved a request for leave to 

amend pleadings after trial in an inequitable conduct case.16 The Federal Circuit concluded in

that case that the proposed post-trial pleading insufficiently alleged inequitable conduct under 

Rule 9(b). Specifically, the plaintiff had failed to “name the specific individual associated with 

the filing or prosecution of the application . . . who both knew of the material information and 

deliberately withheld or misrepresented it.” Id. at 1329. By that stage of proceedings in Exergen, 

the parties had already completed both discovery and a trial on the merits. Thus, it was 

reasonable to expect that the plaintiffs should have been able to allege who, specifically, 

committed the alleged inequitable conduct.

In contrast, Boydstun has not had the benefit of discovery, let alone trial. To expect that 

Boydstun would be able to allege which person at Cottrell was responsible for the patent 

application is unreasonable. At this stage of the lawsuit, Boydstun has adequately alleged what 

information was withheld by Cottrell from the PTO, when and in what context it was withheld, 

 

15 Cottrell also suggests that its ’275 patent may have been cumulative and it would have 

had no obligation to disclose prior art that was cumulative of that which it had already disclosed. 

Cottrell argues in its motion to dismiss that Boydstun was required to, but did not, allege that 

Cottrell’s ’275 patent was not cumulative. Boydstun, however, alleges that Cottrell’s ’275 patent 

was highly relevant to the patent being sought and that Cummings was entirely unlike either. 

This is sufficient to allege that Cottrell’s ’275 Patent was not cumulative.

16 As the Federal Circuit explained in Exergen, “[i]nequitable conduct, while a broader 

concept than fraud, must be pled with particularity under Rule 9(b).” Exergen, 575 F.3d at 1326 

(quotation marks omitted). 
PAGE 20 – OPINION AND ORDER ON MOTION TO DISMISS

and why the omission was both relevant and false or misleading. In the context of an alleged 

fraudulent omission,17 where the allegation is that no one acted, this is sufficient to meet the 

pleading requirements of Rule 9(b).18

Boydstun’s pleading also satisfies the fraudulent intent element of a Walker Process

claim. Although “[a] mere failure to cite a reference to the PTO will not suffice” to establish 

Walker Process intent, Boydstun alleges more than a mere failure to cite to its own patent. 

Boydstun alleges that Cottrell knew of the other, more relevant patent (since it was Cottrell’s 

own patent), that Cottrell instead disclosed a far less relevant prior art patent along with the Ruan 

patent, and that it was readily apparent at the time that Cottrell’s ’140 Patent was obvious over 

the Ruan patent in view of Cottrell’s ’275 patent. Boydstun alleges that this was done with an 

intent to deceive the patent office. 

Boydstun further alleges that if Cottrell had disclosed its ’275 Patent, Cottrell’s ’140 

Patent would not have issued. Boydstun alleges specific facts about the Cummings prior art that 

explain why Cottrell’s ’275 patent was more relevant. Further, the sufficiency of Boydstun’s

 

17 In the context of an omission, there is reason to believe that the 9(b) pleading standard 

takes a slightly different, less strict form. See In re Premera Blue Cross Customer Data Security 

Breach Litigation, 198 F. Supp. 3d 1183, 1194 (D. Or. 2016); In re Anthem, Inc. Data Breach 

Litig., 2016 WL 3029783, at *35 (N.D. Cal. May 27, 2016) (discussing Rule 9(b) in the context 

of an alleged fraudulent omission).

18 This reading of Exergen also comports with the Federal Circuit’s own Walker Process 

case law. Exergen was an inequitable conduct case, and although the Federal Circuit has stated 

that Rule 9(b) applies in the Walker Process context, it has not yet applied Exergen to a Walker 

Process fraud claim. The Court finds no indication in the Federal Circuit’s Walker Process case 

law that it is insufficient to allege that a party, rather than a specific individual, fraudulently 

omitted information that the applicant was obligated to disclose. See Hydril Co. LP v. Grant 

Prideco LP, 474 F.3d 1344, 1346 (Fed. Cir. 2007) (finding that a Walker Process claimant 

alleging that the defendant company, Grant Prideco, concealed prior art from the PTO 

sufficiently alleged a Walker Process claim). In fact, in the Walker Process opinion itself, the 

U.S. Supreme Court explained that “Walker’s counterclaim alleged that Food Machinery

obtained the patent by knowingly and willfully misrepresenting facts to the Patent Office.” 

Walker Process, 382 U.S. at 177 (emphasis added).
PAGE 21 – OPINION AND ORDER ON MOTION TO DISMISS

allegations also is supported by the fact that the PTO granted IPR, tentatively concluding that 

the ’140 prior art was obvious over Ruan and the ’275 patent.

In Hydril Co. LP v. Grant Prideco LP, the Federal Circuit reversed a lower court’s 

dismissal of an antitrust claim alleging Walker Process fraud. 474 F.3d 1344 (Fed. Cir. 2007). As 

the Federal Circuit explained: 

Hydril’s complaint alleged that Grant Prideco had fraudulently 

obtained its ’631 patent by “fail[ing] to disclose to the USPTO 

material prior art of which [it] was aware” (which the complaint 

described) and that “[t]he ’631 Patent as issued would not have 

been granted to Grant Prideco had Grant Prideco not omitted from 

its disclosures such known information on the prior art.” If Hydril 

can prove these allegations, they would ground a claim of 

monopolization in violation of § 2 of the Sherman Act because 

they “would be sufficient to strip [Grant Prideco] of its exemption 

from the antitrust laws” its patent would otherwise provide. 

Hydril Co., 474 F.3d at 1349 (alterations in original) (quoting Walker Process, 382 U.S. at 177). 

The Federal Circuit concluded that “[u]nder [its] precedent, the conduct alleged in Hydril’s 

complaint would constitute Walker Process fraud.” Id. (citing Nobelpharma, 141 F.3d at 1070). 

Hydril is persuasive with respect to the question before the Court. Cottrell argues that 

Hydril is factually distinguishable, but the Court is unpersuaded. The factual differences between 

the allegations in Hydril and in this case are irrelevant in view of Hydril’s holding. Boydstun 

alleges that Cottrell failed to disclose to the PTO material prior art, that Cottrell was aware of 

this prior art at the time of its application, and that Cottrell’s ’140 Patent would not have been 

granted if the prior art had been disclosed. Under Hydril, if Boydstun “can prove these 

allegations, they would ground a claim of monopolization in violation of § 2 of the Sherman 

Act.” Id. at 1349. Thus, Boydstun has alleged sufficient facts to state a claim of Walker Process

fraud with respect to the prosecution of Cottrell’s ’140 Patent, and may be subject to antitrust 

liability for its enforcement of that patent.
PAGE 22 – OPINION AND ORDER ON MOTION TO DISMISS

ii. Cottrell’s ’917 Patent

Boydstun also alleges Walker Process fraud on the PTO based on the prosecution of 

Cottrell’s ’917 Patent. On May 17, 2005, Cottrell filed a provisional (and non-public) application 

for a patent on its soft-tie system. Eight days later, Boydstun Metal Works filed a utility 

application for its own soft-tie system. Boydstun Metal Works’ soft-tie patent (’897) issued on 

October 3, 2006, and on that day Boydstun Metal Works sued Cottrell for infringement of that

patent. Between October 2006 and December 2007, Boydstun Metal Works and Cottrell were 

involved in litigation over Boydstun Metal Works’ infringement claim. Boydstun alleges that 

during the litigation, Cottrell learned through discovery that Boydstun Metal Works was in fact 

the first to invent the soft-tie technology in question. Boydstun further alleges that Boydstun 

Metal Works’ soft-tie patent covers essentially the same scope as Cottrell’s ’917 patent—an 

allegation of which Cottrell certainly was aware, since it formed the basis of Boydstun Metal 

Works’ suit. During the pendency of that litigation, Cottrell continued to prosecute what later 

became Cottrell’s ’917 Patent. 

Boydstun alleges that Cottrell failed to disclose the following relevant and material

information to the PTO during Cottrell’s prosecution of the ’917 patent: the existence of 

Boydstun Metal Works’ soft-tie patent; prior art listed on Boydstun’s soft-tie patent; information 

that Cottrell had about Boydstun Metal Works’ earlier invention of the soft-tie system; the patent 

infringement suit brought by Boydstun Metal Works and the settlement thereof; and Cottrell’s 

acquisition of a license to Boydstun’s patent in the settlement agreement. 

Cottrell argues that it was under no obligation to disclose the existence of the ongoing 

litigation in the patent prosecution process. The existence of litigation involving the subject 

matter of a patent being prosecuted, however, is relevant to the application. The MPEP provides 

that: 
PAGE 23 – OPINION AND ORDER ON MOTION TO DISMISS

Where the subject matter for which a patent is being sought is or 

has been involved in litigation, the existence of such litigation and 

any other material information arising therefrom must be brought 

to the attention of the U.S. Patent and Trademark Office. Examples 

of such material information include evidence of possible prior 

public use or sales, questions of inventorship, prior art, allegations 

of “fraud,” “inequitable conduct,” and “violation of duty of 

disclosure.”

MPEP 2001.06(c)(1994); see also Critikon, Inc. v. Becton Dickinson Vascular Access, Inc., 120 

F.3d 1253, 1258 (Fed. Cir. 1997) (“There seems little doubt that the litigation involving the 

patent in question would be relevant to its reissue proceeding.”); DaimlerChrysler AG v. Fueling 

Advanced Techs., Inc., 276 F. Supp. 2d 1054, 1061 (S.D. Cal. 2003) (quoting same).19

Cottrell also argues that because Boydstun’s ’897 Patent application was filed after 

Cottrell’s ’917 application, Boydstun’s ’897 Patent was later art, not prior art, and thus Cottrell

was under no obligation to disclose it. But if Cottrell knew, as Boydstun alleges, that Cottrell 

was not in fact the first to invent the technology for which it sought a patent, that would be 

information material to the PTO’s decision of whether to grant a patent to Cottrell—regardless of 

whether Boydstun’s patent application came before or after Cottrell’s. See MPEP

2001.06(c)(1994) (listing “questions of inventorship” and “prior art” as material information). 

As with Cottrell’s ’140 Patent, Boydstun has met the Rule 9(b) standard. Boydstun 

alleges with particularity what was concealed from the PTO, when and in what context, and how 

 

19 Cottrell responds that the cases Boydstun cites for the proposition that litigation 

involving the subject matter of a patent application must be disclosed say nothing about a 

requirement to disclose litigation regarding patents outside the “patent family” at issue. Cottrell 

is correct that DaimlerChrysler, for example, involved a prosecution of a continuation-in-part 

patent and undisclosed litigation about a parent patent. But DaimlerChrysler does not suggest 

that the litigation was relevant only because it involved a patent in the same family. It stands to 

reason that patents in the same family are highly relevant to one another; but patents outside the 

family may be as well, as Boydstun alleges here. Furthermore, the discussion in the MPEP that 

explains that the existence of litigation over the “subject matter for which a patent is being 

sought” must be disclosed to the PTO provides no such distinction or limitation. See

MPEP 2001.06(c) (1994).
PAGE 24 – OPINION AND ORDER ON MOTION TO DISMISS

the withheld information was relevant to Cottrell’s patent application. Walker Process fraudulent 

intent also is adequately alleged. While Cottrell was prosecuting its ’917 Patent, it was defending 

a lawsuit by Boydstun Metal Works regarding the subject matter of that patent, yet did not 

disclose this to the PTO. Cottrell also knew of Boydstun Metal Works’ claim that Cottrell’s 

proposed patent infringed on Boydstun’s patent. Boydstun also alleges that Cottrell knew that 

Boydstun Metal Works had invented the soft-tie technology before Cottrell’s alleged invention 

of the ’917 patented system. When Boydstun specifically asked Cottrell during the litigation 

about its prior invention, Cottrell did not provide a substantive response. When Boydstun asked 

Cottrell during the litigation to describe its history of conception and design of the soft-tie 

system, Cottrell also did not do so, other than to provide the date of a constructive reduction to 

practice. These facts also support Boydstun’s allegation that “Cottrell knew that it did not invent 

the subject matter of the ’917 Patent and that it had copied the soft-tie design from Boydstun.” 

Yet, Cottrell did not disclose this to the PTO.

Boydstun also alleges that all of this information was material to the PTO’s determination 

in whether to grant the ’917 Patent. Specifically, Boydstun alleges that had this information been 

disclosed to the Patent Office, Cottrell’s patent application would have been rejected. These 

allegations are sufficient to state a claim of Walker Process fraud on the PTO. See Hydril Co., 

474 F.3d at 1349. Therefore, Cottrell may be subject to antitrust liability for its patent 

enforcement actions relating to its’917 Patent. 

2. Other Monopolization Tactics

In addition to Cottrell allegedly attempting to enforce invalid patents, Boydstun alleges 

that Cottrell engaged in several other forms of exclusionary conduct. In evaluating these claims, 

the Court examines whether Boydstun’s Complaint alleges “the use of monopoly power ‘to 
PAGE 25 – OPINION AND ORDER ON MOTION TO DISMISS

foreclose competition, to gain a competitive advantage, or to destroy a competitor.’” Image Tech. 

Servs., Inc., 125 F.3d at 1208 (quoting Eastman Kodak Co., 504 U.S. at 482-83).

a. “Scare-the-Customer-and-Run Tactics”

Boydstun alleges that Cottrell’s exclusionary conduct also includes a “scare-thecustomer-and-run tactic that is intended to interfere with Boydstun’s business relationships with 

actual and potential customers and intimidate customers into buying commercial car haulers only 

from Cottrell.” ECF 77 at 29, ¶ 155. Boydstun also alleges that “Cottrell’s motive and purpose is 

to cast doubt on Boydstun’s product and its ability to remain in the market” and that Cottrell’s 

“actions directed at Boydstun” create a “cloud over Boydstun’s products” that deters potential 

customers. Id. ¶ 163.

Boydstun’s customer interference theory relies entirely on Cottrell’s patent enforcement 

actions. As Boydstun explains, the market for commercial car haulers is small, and the key 

players are relatively few. Boydstun asserts that Cottrell’s threats and actions are well-known in 

the market, including, specifically, Cottrell’s threats against other companies, such as AutoMax 

and Miller, which consisted of sending cease and desist letters. Boydstun alleges that Fleet 

Owners and Owner-Operators are well-aware of the “success” of Cottrell’s threats of patent 

litigation—i.e., that threats from Cottrell effectively deter other car hauler manufacturers from 

participating in the market or from offering products they otherwise would. Boydstun 

specifically points to three cease and desist letters issued to Cottrell’s competitors between 

November 2015 and March 2016.

Boydstun does not allege that Cottrell has directly threatened or improperly influenced 

any customers. Rather, Boydstun claims that “[t]he threat of an infringement action against 

Boydstun or any other manufacturer is effectively making the same threat to any Fleet Owner or 

Owner-Operator that chooses to buy Boydstun’s product.” ECF 77 at 29, ¶ 156. Boydstun asserts 
PAGE 26 – OPINION AND ORDER ON MOTION TO DISMISS

that the Fleet Owners and Owner-Operators fear that buying a commercial car hauler from 

Boydstun will compromise their future relationship with Cottrell and possibly expose them to 

expensive infringement litigation.

In addition, as Boydstun suggests, customers may have an incentive to buy from 

companies that they believe are likely to remain in the market—particularly when buying large, 

expensive machinery, such as commercial car haulers. The concern that a manufacturer could be 

forced out of the market may serve as a “disincentive to invest” in that manufacturers’ product. 

Cottrell asserts that Boydstun has not expressly alleged that Cottrell publicized its patent 

enforcement actions, told customers about them, or otherwise worked to ensure that customers 

were aware of them. Boydstun does not dispute this assertion. Rather, Boydstun alleges that, 

because the market for commercial car haulers is small and tight-knit, no such publication is 

necessary in order for customers to be aware of patent enforcement activities. Boydstun’s 

allegation is a reasonable inference that must be drawn in favor of Boydstun at this stage of the 

proceedings. 

But even to the extent that customers may be concerned over Cottrell’s threats to its 

competitors, that effect derives solely from Cottrell’s patent enforcement activities. Boydstun 

alleges that Cottrell’s representatives meet regularly with representatives of Cottrell’s customers

individually and at industry meetings. Boydstun, however, does not allege that Cottrell 

threatened, intimidated, or otherwise improperly attempted to influence customers during those 

meetings. Boydstun also alleges that because of the small size of the market, Cottrell is capable 

of monitoring customers’ buying patterns, and customers understand that Cottrell has this 

capability. Although this may be true, Boydstun does not allege facts sufficient to suggest that 

Cottrell actually used that monitoring ability improperly to influence consumers.
PAGE 27 – OPINION AND ORDER ON MOTION TO DISMISS

The only element of Boydstun’s alleged consumer interference theory that is unrelated to 

Cottrell’s patent enforcement activities is that customers “know” that buying “from Boydstun 

puts them in a position of compromising their future relationship with Cottrell.” ECF 77 at 29, 

¶156. Boydstun also alleges that it has not received requests or orders from customers who 

previously indicated a willingness to buy from Boydstun, and that it generally has not received 

the levels of business that it expected. Boydstun argues that this does not make economic sense 

and asks the Court to infer from these alleged facts that Cottrell has invoked its market power to 

dictate consumers’ buying decision. These vague allegations, however, are unsupported by facts 

alleging any anticompetitive conduct by Cottrell itself with respect to customers, and the 

inference that Boydstun asks this Court to make is too far removed from the facts alleged to be 

reasonable.

The remainder of Boydstun’s allegations relating to customer interference addresses the 

alleged injury, or effect, of Cottrell’s patent enforcement practices. In short, Boydstun alleges 

that Cottrell’s cease and desist letters, news of which has spread through the small auto-hauler 

community, have the effect of deterring potential customers. As discussed above, Cottrell may be 

liable in antitrust for its patent enforcement practices because Boydstun has sufficiently alleged 

Walker Process fraud. Boydstun’s allegations that consumers are deterred by Cottrell’s 

exclusionary conduct—in the form of patent enforcement actions—go to the effect, or injury, 

caused by that exclusionary conduct. Boydstun has not, however, alleged sufficient facts to 

otherwise state a claim of exclusionary conduct in the form of customer interference. 

b. Restrictions on Dealers

Boydstun also alleges exclusionary conduct in the form of downstream supply chain 

restrictions. Commercial car haulers are sold through dealers. Boydstun alleges that dealers have 

refused to sell commercial car haulers manufactured by Boydstun and other Cottrell competitors, 
PAGE 28 – OPINION AND ORDER ON MOTION TO DISMISS

denying them the opportunity to showcase and sell their products to consumers. Specifically, 

Boydstun alleges that four individual dealerships are de facto exclusive Cottrell dealerships: 

Jake’s Trucks in Chester Springs, Pennsylvania; TEC Equipment in Portland, Oregon; Universal 

Leasing in Henderson, Colorado; and West Coast Enterprises in Fresno, California. Boydstun 

alleges that each of these dealers was approached by AutoMax, a competitor of Cottrell’s, 

“and/or another company,” offering to sell commercial car haulers through these dealers. Each of 

the dealers declined, and each stated, as a reason for declining the offer, that selling to other 

manufacturers would jeopardize their business with Cottrell. 

Boydstun’s Complaint also provides further allegations. In 2013 or 2014, Paul Lugo

(“Lugo”), the owner of AutoMax, approached Jake Grow (“Grow”), owner of Jake’s Trucks. The 

two discussed developing a new type of commercial car hauler that Grow would sell to his

customers. Lugo and Grow worked for several months on a prototype. After some time, 

however, Grow told Lugo that a representative of Cottrell had told Grow that if Grow sold car 

haulers made by AutoMax then Grow would no longer be able to sell Cottrell car haulers. Grow 

stated that Cottrell gave him a clear warning: if he kept working with AutoMax, he would not be 

able to sell Cottrell products. After this, Grow and Lugo ended their discussions, and Jake’s 

Trucks does not sell car haulers made by AutoMax.

Boydstun’s Complaint alleges a similar story with respect to TEC Equipment and 

Universal Leasing. In 2015 or 2016, Lugo approached a sales manager with the Autotransport 

Division of TEC Equipment about selling AutoMax car haulers. TEC’s representative was 

excited about the prospect of working with AutoMax, and the two had several conversations, all 

of which seemed positive to Lugo. At some point, TEC Equipment’s representative called Lugo 

and told him that TEC Equipment could not promote AutoMax products because doing so 
PAGE 29 – OPINION AND ORDER ON MOTION TO DISMISS

“would jeopardize its relationship with Cottrell.” ECF 77 at 33, ¶ 178. Although Boydstun does 

not explicitly allege that someone from Cottrell told the representative as much, it is a reasonable

inference. AutoMax similarly attempted to work with Universal Leasing. A representative of 

Universal Leasing told Lugo that the company could not work with AutoMax due to concerns 

that doing so would cause it to lose its supply of Cottrell haulers. 

Finally, Boydstun alleges that another (unnamed) car hauler manufacturer that attempted 

to develop business relationships with West Coast Enterprises and TEC equipment experienced 

similar treatment and responses. Representatives of each dealer explained that they could not 

deal with this other manufacturer because they were already selling Cottrell products.

Cottrell characterizes this as an allegation of exclusive dealing and argues that Boydstun 

has not adequately pled a claim of exclusive dealing in violation of the antitrust laws. Exclusive 

dealing claims generally arise under Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 3 

of the Clayton Act, 15 U.S.C. § 14. When exclusive dealing claims are brought as violations of 

these provisions, a plaintiff must allege substantial market foreclosure resulting from the 

arrangement. See, e.g., Allied Orthopedic Appliances Inc. v. Tyco Health Care Grp., LP, 592 

F.3d 991, 996 (9th Cir. 2010) (“Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits ‘[e]very 

contract, combination . . . or conspiracy, in restraint of trade or commerce among the several 

States.’ Plaintiffs premise their Section 1 claim on just one theory of liability: exclusive 

dealing.”); Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327 (1961) (“[E]ven though a 

contract is found to be an exclusive-dealing arrangement, it does not violate the section unless 

the court believes it probable that performance of the contract will foreclose competition in a 

substantial share of the line of commerce affected.”). 
PAGE 30 – OPINION AND ORDER ON MOTION TO DISMISS

Cottrell argues that, even proceeding under § 2 rather than § 1, monopolization plaintiffs 

alleging exclusive dealing must plead substantial market foreclosure. In support of this 

proposition, Cottrell cites a Fourth Circuit case involving a claim of exclusive dealing arising 

under § 2. Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160 (4th Cir. 2014). In 

Kolon, the Fourth Circuit noted that, under Supreme Court precedent, “an exclusive dealing 

arrangement does not violate antitrust laws unless its probable effect is to ‘foreclose competition 

in a substantial share of the line of commerce affected.’” Id. at 175 (quoting Tampa Elec. Co., 

365 U.S. at 327. Cottrell also cites a case from the Northern District of California, which cited 

Kolon for the proposition that “to be actionable under section 2, a monopolist’s conduct must 

foreclose competition . . . .” Eastman v. Quest Diagnostics Inc., 108 F. Supp. 3d 827, 834 (N.D. 

Cal. 2015). This portion of Eastman, while citing Kolon, left out the text in Kolon indicating that 

it was speaking only of claimed exclusive dealing arrangements. This difference is important 

here. 

Cottrell is correct that Boydstun does not assert a separate claim of exclusive dealing.20

The important question, though, is whether Boydstun’s allegations sufficiently state a claim for 

monopolization under Section 2—whether the alleged facts indicate “the use of monopoly power 

‘to foreclose competition, to gain a competitive advantage, or to destroy a competitor.’” Image 

Tech. Servs., Inc., 125 F.3d at 1208 (quoting Kodak, 504 U.S. at 482-83). As Boydstun argues, 

Cottrell’s alleged interference with dealers serves to bolster Boydstun’s claim of anticompetitive 

conduct by Cottrell. Boydstun sufficiently alleges that Cottrell has interfered with the 

relationships between dealers and manufacturers, and that Cottrell has essentially threatened 

 

20 The parties agree that there is no express precedent in the Ninth Circuit that supports a 

claim of “de facto exclusive dealing.” See generally Aerotec Int’l, Inc. v. Honeywell Int’l, 

Inc., 836 F.3d 1171, 1182 (2016) (noting that the Ninth Circuit has “not explicitly recognized a 

‘de facto’ exclusive dealing theory” and declining to reach that question).
PAGE 31 – OPINION AND ORDER ON MOTION TO DISMISS

dealers out of doing business with Cottrell’s competitors. This is sufficient to allege the use of 

monopoly power for anti-competitive purposes. 

c. Interference with Suppliers

Finally, Boydstun alleges that Cottrell’s monopolization tactics have included 

interference with suppliers of truck chassis, which are needed to make commercial car haulers. 

Boydstun alleges the following facts in support of this claim. North Florida Western Star (“North 

Florida”) is a large dealership that sells and delivers truck chassis to Cottrell. Its manager, Dustin 

Brigman (“Brigman”) spoke with Rob Boydstun on several occasions in 2014 and 2015. On or 

about December 14, 2014, Brigman visited Boydstun’s facility and offered to supply Boydstun 

with truck chassis. Brigman provided quotes for the chassis on five different occasions between 

July 31, 2014 and May 22, 2015, and told Rob Boydstun that North Florida would be ready to 

supply chassis whenever Boydstun was ready to place an order. On November 14, 2014, 

Brigman confirmed that two truck chassis were available for Boydstun to purchase, and in 

June 2015 Brigman offered to sell Boydstun a Volvo cab. At some point later in 2015, Rob 

Boydstun called Brigman, ready to place an order. Brigman said that he would get right back to 

Rob Boydstun, and within a few hours he called Rob Boydstun and told him that North Florida 

would have to pass on filling Boydstun’s order. Brigman told Rob Boydstun that because North 

Florida sells truck chassis to Cottrell, North Florida could not also sell truck chassis to Boydstun 

because to do so would be a “conflict of interest.” Later, Rob Boydstun related these facts to the 

President of Western Star, which oversees several dealerships, including North Florida. The 

President responded to Rob Boydstun that Western Star dealers are required to sell to “all 

buyers.”

Boydstun also alleges that at some time in 2017, a former Cottrell customer told West 

Coast Enterprises to redirect several Western Star truck chassis from Cottrell to Boydstun, so 
PAGE 32 – OPINION AND ORDER ON MOTION TO DISMISS

that Boydstun could build commercial car haulers for that customer. Boydstun alleges that after 

this, North Florida engaged in tactics that jeopardized the timely delivery of the truck chassis to 

Boydstun and the completion of a commercial car hauler for that customer. Boydstun alleges that 

this issue with North Florida occurred because of Cottrell’s control over North Florida’s

business, and was caused by threats from Cottrell. 

Cottrell argues that Boydstun’s allegation of interference with suppliers is vague and 

speculative. The Court disagrees. As Boydstun alleges, North Florida told Rob Boydstun that 

supplying to him would be a “conflict of interest.” Western Star’s President, however, stated that 

dealerships were required to sell to all sellers, implying that there is no “conflict of interest” that 

would prohibit North Florida from selling to two different competing manufacturers. Even after 

being told to supply to Boydstun, North Florida acted in a way that sought to delay the supply of 

needed chassis to Boydstun. From this, it is a reasonable inference that North Florida knew that 

Cottrell, its main purchaser, would view unfavorably North Florida selling to Boydstun and 

would respond accordingly to the detriment of North Florida. Boydstun also specifically alleges 

that North Florida’s behavior was “caused by threats from Cottrell.” ECF 77 at 36, ¶199. Truck

chassis are an “essential feature of the commercial car hauler,” and interfering with a 

competitor’s ability to obtain truck chassis may constitute exclusionary or anticompetitive 

behavior. Whether and to what extent this is so may depend upon more specific facts and 

circumstances, but Boydstun’s allegations are sufficient at this stage of the proceedings.

3. Antitrust Injury

In order to state a claim for unlawful monopolization, in addition to showing unlawful 

exclusionary conduct, a plaintiff must also adequately allege antitrust injury. Antitrust injury is 

“injury of the type the antitrust laws were intended to prevent and that flows from that which 

makes defendants’ acts unlawful.” Brunswick, 429 U.S. at 489. Antitrust injury generally has 
PAGE 33 – OPINION AND ORDER ON MOTION TO DISMISS

four elements: “(1) unlawful conduct, (2) causing an injury to the plaintiff, (3) that flows from 

that which makes the conduct unlawful, and (4) that is of the type the antitrust laws were 

intended to prevent.” Somers v. Apple, Inc., 729 F.3d 953, 963 (9th Cir. 2013) (quoting American 

Ad Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1055 (9th Cir. 1999)). The type of injury 

that the antitrust laws were intended to prevent is injury to competition. See Brunswick, 429 U.S. 

at 488 (“The antitrust laws . . . were enacted for ‘the protection of competition not 

competitors.’”) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962)); 

Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 988 (9th Cir. 2000) (“[T]he central 

purpose of the antitrust laws . . . is to preserve competition.”). The Ninth Circuit has added a fifth 

element: “that ‘the injured party be a participant in the same market as the alleged malefactors,’ 

meaning ‘the party alleging the injury must be either a consumer of the alleged violator’s goods 

or services or a competitor of the alleged violator in the restrained market.’” Somers, 729 F.3d at 

963 (quoting Glen Holly Entm’t, 343 F.3d at 1008). 

As previously discussed, Boydstun adequately alleges anticompetitive conduct. 

Specifically, Cottrell’s alleged patent enforcement practices, alleged interference with suppliers 

of truck chassis, and alleged interference with dealers sufficiently allege anticompetitive 

conduct. Thus, the first antitrust injury factor is met. The Ninth Circuit’s fifth antitrust injury 

factor also is met. Cottrell and Boydstun are competitors in the same market for making and 

selling commercial car haulers.

The Court next considers the second, third, and fourth factors together. Boydstun alleges 

that Cottrell’s actions have caused consumers who would otherwise buy from Boydstun to buy 

from Cottrell instead. Cottrell allegedly has deterred dealers from working with Boydstun and 

selling Boydstun’s car haulers. As a result of Cottrell’s alleged anticompetitive conduct, 
PAGE 34 – OPINION AND ORDER ON MOTION TO DISMISS

Boydstun has lost sales, revenue, and profit. Further, Boydstun allegedly would have had a larger 

share of the relevant market but for Cottrell’s anticompetitive conduct. Instead, Boydstun alleges 

that its sales “have plateaued at three percent (3%) of the market in 2016.” ECF 77 at 38, ¶ 208. 

Boydstun also alleges that, as a result of Cottrell’s actions, Boydstun has incurred litigation costs 

in order to assert its right to sell the products it manufactures.21 Boydstun alleges that its 

damages, to date, “are in the millions of dollars.” ECF 77 at 38, ¶ 209. 

Boydstun also alleges that its injuries flow from Cottrell’s anticompetitive conduct. 

Boydstun alleges that Cottrell’s interference with suppliers of truck chassis has delayed or 

hindered its ability to obtain this crucial component to car haulers. Boydstun further alleges that 

Cottrell’s interference with dealers has hindered Boydstun’s ability to present its car haulers to 

consumers in the market. Specifically, Boydstun alleges that this “decreases visibility of the 

manufacturers’ products, undermines their ability to gain a foothold in the market and compete 

with Cottrell, results in less information about competitive products in the market,” and 

otherwise reduces sales to Cottrell competitors. ECF 77 at 32 ¶ 170. Boydstun also alleges that 

Cottrell’s threats of patent infringement litigation have “scared away” potential customers.

Boydstun alleges that “Cottrell’s actions have restricted its rivals’ business independence, 

foreclosed distribution channels . . . forced its rivals to provide fewer choices to its customers 

and potential customers, and delayed innovation.” ECF 77 at 36, ¶ 202. The effect of Cottrell’s 

actions, Boydstun alleges, has been to hinder the growth of Cottrell’s competitors and prevent 

them from gaining market share, and to “restrict the market’s maximum output of technical 

 

21 Cottrell argues that, because Boydstun is the plaintiff in this case rather than the 

defendant, and is seeking a declaratory judgment of non-enforcement of the ’140 patent, it may 

not rely on an allegation of attorney’s fees to allege antitrust injury. This distinction does not 

matter. The costs incurred in responding—in one way or another—to a cease and desist letter are 

no different in theory from the costs incurred in responding to a lawsuit alleging patent 

infringement. These costs may differ in quantity, but not quality. 
PAGE 35 – OPINION AND ORDER ON MOTION TO DISMISS

advancement.” ECF 77 at 37, ¶ 202. Boydstun further alleges that Cottrell’s actions have “cast[] 

doubt, suspicion, and concerns over Boydstun’s products and/or the consequences to customers” 

of buying from Boydstun, which has prevented Boydstun from fully competing in the market. 

ECF 77 at 37, ¶ 204. Boydstun also alleges that Cottrell’s actions have injured competition by 

“stifling, artificially restraining, and impeding competition on choice of suppliers and products,

product quality, supply, innovation, and price.” ECF 77 at 37, ¶ 205. As a result, there is less 

competition in the market, and fewer choices for consumers. 

These allegations are sufficient to allege an injury to Boydstun that flows from Cottrell’s 

alleged unlawful conduct and harms competition. Thus, Boydstun has sufficiently alleged the 

second, third, and fourth factors of antitrust injury, as well as the first and fifth factors.

B. Bad Faith Enforcement of Patents Under ORS § 646A.810

Cottrell also moves to dismiss Boydstun’s claim for tortious patent enforcement in 

violation of ORS § 646A.810 on the ground that this claim is preempted by federal patent law. 

The Federal Circuit’s decision in Globetrotter Software, Inc. v. Elan Computer Group, Inc. 

controls this question.22 362 F.3d 1367 (Fed. Cir. 2004).

The Federal Circuit explained in Globetrotter that “federal patent law preempts state-law 

tort liability for a patentholder’s good faith conduct in communications asserting infringement of 

its patent and warning about potential litigation.” Id. at 1374. Boydstun’s state law claim “can 

survive federal preemption only to the extent that [the claim is] based on a showing of bad faith 

action in asserting infringement.” Id. (quotation marks omitted). Globetrotter expressly held that 

state-law tort liability is permitted “for only objectively baseless allegations of infringement,” 

 

22 As the Federal Circuit noted in Globetrotter, “[w]e apply Federal Circuit law not only 

to the patent issues [in a case] but also in deciding whether the patent laws preempt a state-law 

tort claim.” Globetrotter, 362 F.3d at 1374 (citing Midwest Indus., Inc. v. Karavan Trailers, Inc., 

175 F.3d 1356, 1359 (Fed. Cir. 1999) (en banc in relevant part)).
PAGE 36 – OPINION AND ORDER ON MOTION TO DISMISS

applying the standard from Professional Real Estate. Id. at 1377. Therefore, “[a] plaintiff 

claiming that a patent holder has engaged in wrongful conduct by asserting claims of patent 

infringement must establish that the claims of infringement were objectively baseless.” Id. 

Boydstun argues that Globetrotter was wrongly decided, and Boydstun has preserved that 

argument for later appellate review. Boydstun does not contest, however, that this district court is 

bound by Globetrotter and that Globetrotter controls the issue of whether Boydstun’s state law 

claim is preempted.

As discussed above regarding Noerr-Pennington immunity, Boydstun has not alleged a 

sufficient factual basis from which the Court can reasonably infer that Cottrell’s patent 

enforcement actions were “objectively baseless.” Therefore, Boydstun’s claim under ORS 

§ 646A.810 is preempted by federal law. Cottrell’s motion to dismiss this claim is granted.

CONCLUSION

The Court GRANTS IN PART AND DENIES IN PART Cottrell’s motion to dismiss. 

ECF 78 (redacted); ECF 81 (unredacted). Cottrell’s motion to dismiss is granted with respect to 

Boydstun’s claim arising under ORS § 646A.810 and denied in all other respects. The Court also 

GRANTS Cottrell’s request for judicial notice. ECF 79.

IT IS SO ORDERED.

DATED this 24th day of October, 2017.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge