The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is GE Healthcare, Inc.'s Motion to Dismiss. (Doc. # 45).
This action is a patent infringement lawsuit. On June 17, 2009, Plaintiff AntiCancer, Inc. ("AntiCancer") initiated this action by filing its Complaint. (Doc. # 1). On August 20, 2009, AntiCancer filed its First Amended Complaint ("FAC"). (Doc. # 6). On September 9, 2009, Fujifilm Corporation and Fujifilm Medical Systems U.S.A., Inc. (collectively "Fujifilm") filed an answer to the complaint. (Doc. # 9). On October 9, 2009, GE Healthcare, Inc. ("GE") filed a motion to dismiss. (Doc. # 20). On November 16, 2009, AntiCancer filed its Second Amended Complaint ("SAC") along with an opposition to dismiss which contended the SAC was filed as of right and rendered the motion to dismiss moot. (Doc. # 22). On January 19, 2010, the Court struck the SAC from the docket because AntiCancer had not obtained leave of the Court or consent of Defendants prior to filing the SAC and granted GE's motion to dismiss the SAC as unopposed. (Doc. # 36). On April 9, 2010, the Court granted AntiCancer's motion for leave to amend. (Doc. # 43). On April 15, 2010, AntiCancer filed its SAC again, which is the operative pleading in this case. (Doc. # 44). On April 29, 2010, GE filed its Motion to Dismiss. (Doc. # 45).
ALLEGATIONS OF THE SECOND AMENDED COMPLAINT
AntiCancer holds patents for techniques which allow researchers to track metastasis of tumor cells in live lab animals through the use of
* fluorescent proteins, including green fluorescent protein ("GFP"), a protein which occurs naturally in a species of jellyfish, Aequorea victoria (known as the crystal jelly);
* do whole-body external optical imaging of gene expression in live animals; and
* evaluate candidate protocols or drugs for treating disease using fluorophores, i.e., proteins which self-fluoresce (so that no other factor is needed to cause it to glow).
(Doc. # 44 at 1). AntiCancer can "encode tumor cells with GFP and other fluorophores which glow" when exposed to blue light. Id. AntiCancer then injects the tumor cells into animals which allows scientists to monitor the tumors' "growth and spread in the living animal . . . by fluorescence imaging." Id. at 1-2. This allows researchers to test the efficacy of cancer treatments. Id. at 2.
There are three patents at issue in this case. First, the '384 patent is a patent for methods of provid[ing] a real-time model of tumor invasion and mestasis formation. The method enables testing of candidate protocols or drugs in animal models before they are tried in the clinic. The methods of the invention can be applied not only to mouse models of tumor growth and metastasis, but, through the use of retroviral vectors, can in the future be employed to obtain clinical data in human subjects bearing tumors.
Id. at 5. One of the key terms in the patent is "GFP" or green fluorescent protein. Id. Despite the name, GFP is defined as a fluorescent protein of any color. Id. The '384 patent claims a method for testing cancer drugs by administering them to mammals with primary tumors which "express" the GFP when the cancer metastasizes and monitoring the progress of the metastasises via fluorescence optical tumor imaging ("FOTI"). Id. The patent also covers a process of removing organ tissue samples containing GFP-expressing cancer cells and examining them under a fluorescence microscope. The priority date of the '384 patent is March 27, 1998. Id.
Second, the '038 patent is a patent for methods of tracking metasis of GFP-expressing cancer in the organ tissue of vertebrates. Id. at 5-6. The priority date of the '038 patent is also March 27, 1998. Id. at 6.
Third, the '159 patent is a patent for "any suitable methods" of whole-body noninvasive imaging of animals with cancer cells containing fluorophores. Id. The fluorophores are limited to GFP (which in this patent is limited to fluorescent protein that is actually green in color), blue fluorescent protein ("BFP"), and red ...