Artrip v. The Ball Company et al

Filing 110

OPINION and ORDER granting 90 Motion to Dismiss for Failure to State a Claim and the plaintiffs claims of induced infringement and contributory infringement against defendant Alcoa are dismissed with prejudice; granting in part and denying in part 91 Motion to Dismiss for Failure to State a Claim and the plaintiffs claims of direct infringement against Ball are dismissed without prejudice; Plaintiffs construed 99 Motion for Leave to Amend Complaint as to Ball is granted, provided that any Third Amended Complaint must be filed within 21 days of this date; Plaintiffs construed 100 Motion for Leave to Amend Complaint as to Alcoa is denied; directing the Clerk to terminate Alcoa Inc. as a party to this action. Signed by Judge James P. Jones on 08/24/2017. (ab)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
JERRY ARTRIP,
Plaintiff,
v.
BALL CORPORATION, ET AL.,
Defendants.

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Case No. 1:14CV00014
OPINION AND ORDER
By: James P. Jones
United States District Judge

Dale R. Jensen, Dale Jensen, PLC, Staunton, Virginia, and Stephen C. Swift,
Swift & Swift, Attorneys at Law, P.L.L.C., Alexandria, Virginia, for Plaintiff; John
D. Luken, Jeffrey P. Hinebaugh, and Nicole S. Nan, Dinsmore & Shohl LLP,
Cincinnati, Ohio, and Steven R. Minor, Elliott Lawson & Minor, Bristol, Virginia,
for Defendants Ball Corporation and Ball Metal Beverage Container Corp.; Mark
M. Supko and Michael H. Jacobs, Crowell & Moring LLP, Washington, D.C., for
Defendant Alcoa Inc.
The plaintiff, Jerry Artrip, has asserted claims of direct patent infringement
against defendants Ball Corporation and Ball Metal Beverage Container Corp.
(collectively, “Ball”), as well as claims of induced infringement and contributory
infringement against defendant Alcoa Inc. (“Alcoa”), all in violation of 35 U.S.C.
§ 271.

Both Ball and Alcoa have moved to dismiss the Second Amended

Complaint for failure to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6).

In response, Artrip opposes the motion to dismiss and,

alternatively, seeks leave to further amend his Second Amended Complaint. For

the reasons that follow, I will deny in part and grant in part the Motion to Dismiss
by Ball, grant the request to amend the claims against Ball, grant the Motion to
Dismiss by Alcoa, and deny Artrip’s request to amend his claims against Alcoa.1
I. PROCEDURAL HISTORY.
Artrip initially filed this case pro se, alleging that “The Ball Company” and
“Alcoa Aluminum Company” had infringed one of his assigned patents. Some
months later, Artrip obtained counsel, who subsequently filed a First Amended
Complaint alleging that Ball Corporation and Alcoa had infringed eight of Artrip’s
assigned patents.2 Both Ball and Alcoa filed motions to dismiss pursuant to Rule
12(b)(6) for failure to state a claim. In its motion, Ball asserted, among other
things, that Artrip’s suit was barred by the doctrine of laches. In accord with Rule
12(d), I converted the motions to dismiss into motions for summary judgment and
permitted the parties to further respond to this issue.
Before I had ruled on summary judgment, Artrip sought leave to further
amend his lawsuit, asserting that a “proposed Second Amended Complaint [would]
better state his claims.” Mot. to Amend 1, ECF No. 59. I granted the motion, and
1

Artrip has not filed a formal motion seeking to amend, but I construe Section IV
of his two memoranda in opposition to Ball’s and Alcoa’s motions to dismiss as such a
motion. See Mem. Opp’n Ball’s Mot. to Dismiss 17, ECF No. 99 (stating that “[i]f any
part of the Motion [to Dismiss] is sustained, leave to amend should be granted”); Mem.
Opp’n Alcoa’s Mot. to Dismiss 13, ECF No. 100 (same).
2

The defendants also assert that Artrip served, but never filed, a revised pro se
complaint asserting claims of infringement of three additional patents. See Alcoa’s Mot.
to Dismiss 2, ECF No. 37; Ball’s Mem. Supp. Mot. to Dismiss 1, ECF No. 39.
-2-

the Second Amended Complaint added Ball Metal Beverage Container Corp. as a
third defendant and alleged that all three defendants — Ball Corporation, Ball
Metal Beverage Container Corp., and Alcoa Inc. — had infringed six of Artrip’s
assigned patents.
Two days later, following appropriate notice to the parties, I stayed the case
pending the Federal Circuit’s en banc reconsideration of its long-standing
adherence to laches as a defense in patent cases. The en banc court upheld the
defense, SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC,
807 F.3d 1311, 1315 (Fed. Cir. 2015), but the Supreme Court granted certiorari,
eventually overruling the Federal Circuit, holding that laches is not a viable
defense where the alleged infringement occurred within the Patent Act’s six-year
limitations period. SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods.,
LLC, 137 S. Ct. 954, 967 (2017). Based on the Supreme Court’s decision, I lifted
the stay and denied the defendants’ motions asserting the defense of laches.
Ball and Alcoa then filed new motions to dismiss under Rule 12(b)(6) as to
Artrip’s Second Amended Complaint.

Artrip opposes the motions and,

alternatively, requests leave to further amend. The motions have been fully briefed
and orally argued and are ripe for consideration.

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II. FACTUAL SUMMARY.
The Second Amended Complaint alleges the following facts, which I must
accept as true for the purpose of deciding the present motions.
Between February 2000 and March 2008, Donald Artrip was issued six
patents related to the manufacture of lift-tab can ends. “Lift-tabs” are the metal tabs
used to open metal beverage cans. “Lift-tab can ends” are the ends of the cans with the
lift-tabs attached. These patents were assigned to Donald Artrip’s father, plaintiff

Jerry Artrip, throughout 2006. 3 The six patents claimed in the Second Amended
Complaint are as follows:
• A System and Method When Forming Lift-Tab Can Assemblies –
No. 6,022,179 (’179);
• A System for Forming and Attaching Lift-Tabs to Can Ends – No.
7,063,492 (’492);
• A System for Forming and Securing Lift-Tabs to Can Ends Having
a Drive Belt – No. 7,234,907 (’907);
• A System for Forming and Securing Lift-Tabs to Can Ends Having
Independent Tab Press and Conversion Press – No. 7,237,998
(’998);
• A System for Forming and Securing Lift-Tabs to Can Ends Having
Two Frames – No. 7,237,999 (’999); and
• A System for Forming and Securing Lift-Tabs to Can Ends Having
a Bridge – No. 7,344,347 (’347).
Second Am. Compl. ¶¶ 3, 6, 9, 12, 15, & 18, ECF No. 64.

3

Five of the patents were assigned to Jerry Artrip after they were filed but before
they were issued. The Second Amended Complaint refers to Donald as plaintiff Jerry’s
Artrip’s deceased son. It thus appears that the patents were assigned to his father after
Donald’s death.
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Artrip alleges that Ball directly infringed each of these patents by “using”
the “system” or “system and method” that “embod[y] the patented invention[s].”
Id. at ¶¶ 4, 7, 10, 13, 16, & 19. He does not make any additional allegations as to
Ball.
Artrip also alleges that Alcoa indirectly infringed each of these patents by
supplying “material,” or “food grade coiled aluminum sheets with special coating,”
for use in the manufacture of lift-tab can ends. Id. at ¶¶ 5, 8, 11, 14, 17, & 20. He
first asserts that Alcoa actively induced infringement of the patents by “supplying
material for use in practicing” the patented inventions “that knowingly aid[ed] the
direct infringement of such patent[s].”

Id.

Artrip also asserts that Alcoa

contributorily infringed each of the patents by “supplying material for use in
practicing the patented invention[s],” that the material supplied “[met] required
specification for said invention[s],” that the material supplied “constitut[ed] a
material part of the invention[s],” that Alcoa knew the material was “especially
made or especially adapted for use in an infringement of such patent[s],” and that
the material was “not a staple article or commodity of commerce suitable for
substantial noninfringing use.” Id. Artrip does not make any additional allegations
as to Alcoa. He does allege that neither he nor Donald Artrip had a duty to provide
Ball or Alcoa with notice of the alleged infringement. Id. at ¶ 21. He seeks

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damages from both Ball and Alcoa for any infringement that occurred within
specified periods of time. 4
III. APPLICABLE LAW.
The Federal Rules of Civil Procedure require a claim for relief to contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Generally, “[t]o survive a motion to dismiss” under Rule
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“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.” Id. at 678 (citing Twombly, 550 U.S. at 556). In ruling on a
motion to dismiss, the court must accept as true all of the factual allegations
contained in the complaint, Twombly, 550 U.S. at 572, and it must view those facts
in the light most favorable to the plaintiff. Christopher v. Harbury, 536 U.S. 403,
406 (2002).
4

Artrip seeks damages for infringement of each patent beginning on March 18,
2008, six years before he filed his original Complaint. For five of the patents, he seeks
damages up to May 12, 2013, twenty years after the filing date of the original application.
For Patent ’179 as to Ball, he seeks damages up to February 8, 2012, when the patent
expired for failure to pay maintenance fees. For Patent ’179 as to Alcoa, he seeks
damages up to August 26, 2009, when the patent purportedly “expired for failure to pay
maintenance fees.” Second Am. Compl. ¶ 5, ECF No. 64. It is unclear why Artrip
provides two different dates of expiration and when the patent actually expired.
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However, this “tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at
678. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
Although legal conclusions can “provide the framework of a complaint, they must
be supported by factual allegations.” Id. at 679.
This standard has not always applied to cases involving patents. Prior to
December 1, 2015, a plaintiff in a direct patent infringement case needed only
adhere to Form 18. Form 18, part of the Federal Rules of Civil Procedure’s nowabrogated Appendix of Forms, provided a sample complaint for direct patent
infringement. Its pleading requirements were significantly less stringent than those
imposed by Twombly and Iqbal, requiring only:
(1) an allegation of jurisdiction; (2) a statement that the plaintiff owns
the patent; (3) a statement that defendant has been infringing the
patent “by making, selling, and using [the device] embodying the
patent”; (4) a statement that the plaintiff has given the defendant
notice of its infringement; and (5) a demand for an injunction and
damages.
R+L Carriers, Inc. v. DriverTech LLC (In re Bill of Lading Transmission &
Processing Sys. Patent Litig.), 681 F.3d 1323, 1334 (Fed. Cir. 2012) (quoting
McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed. Cir. 2007)). Thus, a
claim for direct patent infringement was sufficiently pled where the complaint met
the basic requirements of Form 18. See id. at 1336 (reiterating that “[a]s long as
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the complaint in question contains sufficient factual allegations to meet the
requirements of Form 18, the complaint has sufficiently pled direct infringement);
id. at 1335 (reiterating “Form 18 and the Federal Rules of Civil Procedure do not
require a plaintiff to plead facts establishing that each element of an asserted claim
is met” (citing McZeal, 501 F.3d at 1357)).

A Form 18 complaint must

nevertheless, however, “plead facts sufficient to place the alleged infringer on
notice as to what he must defend.” McZeal, 501 F.3d at 1357.
In April 2015, the Supreme Court abrogated by amendment Rule 84 and the
Appendix of Forms, effective December 1, 2015. The Court’s order stated that the
amendment “shall govern in all proceedings in civil cases thereafter commenced
and, insofar as just and practicable, all proceedings then pending.” Order ¶ 2 (U.S.
Apr. 29, 2015), available at https://www.supremecourt.gov/orders/courtorders/
frcv15(update)_1823.pdf (hereafter “Abrogation Order, Apr. 29, 2015”). Because
Artrip filed his initial Complaint in March 2014 and his Second Amended
Complaint in January 2015, both this case in general and the Second Amended
Complaint in particular were pending when the new pleading standards took effect.
Accordingly, one question presented in these motions is whether the sufficiency of
Artrip’s direct infringement claims against Ball should be evaluated under the
standard of Form 18, or whether it would be “just and practical” to retroactively
apply the standard articulated by Twombly and Iqbal.
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Importantly, Form 18 only ever applied to claims for direct infringement.
R+L Carriers, Inc., 681 F.3d at 1336-37. As a result, Artrip’s claims against
Alcoa for induced and contributory infringement are and were always subject to
the pleading standards of Twombly and Iqbal, the amendments’ retroactivity
notwithstanding.5
IV. ANALYSIS.
A. Direct Infringement Claims Against Ball.
Ball seeks dismissal of the claims against it on two grounds: first, that five of
the six patents alleged to have been infringed are invalid as indefinite; and second,
that the Second Amended Complaint fails to meet the applicable pleading
requirements. I address the latter argument first.
1. Applicable Pleading Standard.
I must first determine which pleading standard governs Artrip’s claims
against Ball: Form 18 or Twombly and Iqbal. As I note above, in its order
abrogating Rule 18, the Supreme Court stated that the new pleading standard —
that is, the standard articulated in Twombly and Iqbal — “shall govern . . . insofar
as just and practicable, all proceedings then pending” as of December 1, 2015.
5

Artrip argues that the pleading standards of Form 18 should apply to his claims
against Alcoa. Mem. Opp’n to Alcoa’s Mot. to Dismiss 8, ECF No. 100. This is
contrary, however, to clear Federal Circuit precedent. See R+L Carriers, Inc., 681 F.3d
at 1337 (stating that “because Form 18 addresses only direct infringement, we must look
to Supreme Court precedent for guidance regarding the pleading requirements for claims
of indirect infringement”).
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Abrogation Order, Apr. 29, 2015. Artrip filed his Second Amended Complaint in
January 2015. Thus, the new pleading standard must apply if such application is
“just and practicable.”
Ball argues that it would be “just and practicable” to apply the new pleading
standards to Artrip’s Second Amended Complaint because the case is “in an early
stage” and because the Second Amended Complaint “fails to put Ball on notice of
what systems are accused of infringing which claims of the Asserted Patents or
how those systems infringe.” Mem. Supp. Ball’s Mot. Dismiss 14, ECF No. 92.
Given Artrip’s delay in bringing the case, Ball argues, “it is not unreasonable to
ask [Artrip] to at least identify which Ball equipment supposedly infringes which
claims of which patents,” particularly in light of the fact that Artrip’s counsel and
family member were given the opportunity to tour Ball’s Bristol factory and
photograph its equipment.

Id. at 12 n.5, 14.

Artrip argues in response that

retroactive application of the updated pleading standards would be neither just nor
practicable, given that he filed his Second Amended Complaint months before the
change took effect. Mem. Opp’n Ball’s Mot. Dismiss 15, ECF No. 99. He asserts
that it would be “simply unjust to require [him] to have been clairvoyant in
drafting . . . the [Second Amended Complaint].” Id.
I find that it would be both just and practicable to retroactively apply the
Twombly and Iqbal pleading standard in this case.
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The Second Amended

Complaint is almost entirely devoid of meaningful allegations and is sparse even
by Form 18 standards. A Form 18 complaint must “plead facts sufficient to place
the alleged infringer on notice as to what he must defend.” McZeal, 501 F.3d at
1357. The Second Amended Complaint arguably fails to meet even this
fundamental requirement: it asserts only that Ball has infringed the patents by
“using” the patented systems. Artrip does not identify “what equipment at Ball
infringes, what patent claims Ball’s use of the unspecified infringement infringes,
or how Ball’s use of the unspecified equipment supposedly infringes the
unspecified claims.” Reply Mem. Supp. Ball’s Mot. Dismiss 15, ECF No. 102. It
would be unjust to permit Artrip to move forward with a complaint that does not
alert Ball as to what it has done wrong.
Moreover, because I dismiss the claims against Ball without prejudice, see
infra at IV.A.2, dismissal under these circumstances is not unjust. Artrip will not
be precluded from continuing to pursue his action; he will simply be required to replead it.
Finally, requiring Artrip to comply with the updated standards is practicable
under these circumstances. Despite its prolonged timeline, this case is still in a
very early stage. Dismissing the Second Amended Complaint and requiring Artrip
to file a Third Amended Complaint will not complicate the case, prejudice the

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parties, or result in unjust delay. In fact, requiring Artrip to plead his case with
greater particularity will likely expedite the dispute.
For the above reasons, I find that the updated pleading standards articulated
in Rule 8(a), Twombly, and Iqbal are properly retroactively applied to Artrip’s
Second Amended Complaint. It is therefore by this standard that I judge its
sufficiency.
2. Sufficiency of the Complaint.
Section 271(a) states that “whoever without authority . . . uses . . . any
patented invention . . . during the term of the patent therefor, infringes the patent.”
35 U.S.C. § 271(a). A plaintiff claiming direct infringement need only prove
“unauthorized use of a patented invention”; the defendant’s knowledge or intent is
“irrelevant.” Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 761 n.2
(2011) (citing Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476,
484 (1964)). Thus, to survive a Rule 12(b)(6) motion to dismiss, a plaintiff need
only allege facts giving rise to a reasonable inference that the defendant used the
patented invention.
As I have noted above, the Second Amended Complaint is sparse. With
respect to his claims of direct infringement, Artrip alleges only that Ball has
infringed the patents by “using” the patented systems. This allegation is merely
conclusory and thus, by itself, insufficient under Twombly and Iqbal. Artrip must
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support his legal conclusion with factual allegations, and he has not done so. See
Iqbal, 556 U.S. at 679. Accordingly, I will grant Ball’s Motion to Dismiss to the
extent it argues that the Second Amended Complaint fails to state a faciallyplausible claim for relief as to all six asserted patents.
Because Artrip’s Second Amended Complaint was governed by Form 18 at
the time it was filed, it is in the interest of justice to allow him to amend his
complaint. Such dismissal is therefore without prejudice, and I will permit Artrip
to file another amended complaint. Any such amended complaint must comply
with the pleading requirements of Rule 8(a), Twombly, and Iqbal. In particular, it
must plead specific facts supporting Artrip’s claims.
3. Validity of the Patents.
Ball also asserts that five of the six patents at issue are “invalid as indefinite
and are therefore incapable of being infringed by anyone” and that, as a result, the
claims based on these five patents must fail as a matter of law. Mem. Supp. Ball’s
Mot. Dismiss 1, ECF No. 92. It bases this argument on its assertion that “[a]ll of
the claims of these patents have means-plus-function limitations” and that “the
patents’ common specification fails to disclose any ‘structure’ for the recited
‘function.’” Id.
A claim that employs a means-plus-function limitation is required to include,
in its specification, a description of the “structure, material, or acts” that
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correspond to the limitation. 35 U.S.C. § 112(f); Atmel Corp. v. Info. Storage
Devices, Inc., 198 F.3d 1374, 1382 (Fed. Cir. 1999). Such structure must be
capable of being recognized and associated with the corresponding function by a
person of ordinary skill in the art. AllVoice Computing PLC v. Nuance Commc’ns,
Inc., 504 F.3d 1236, 1241 (Fed. Cir. 2007) (citing Atmel Corp., 198 F.3d at 138182). If the specification does not describe any such structure, or if the structure is
not recognizable and associable by a person of ordinary skill in the art, the claim is
invalid for indefiniteness. Atmel Corp., 198 F.3d at 1382.
Ball asserts that because the patents have means-plus-function limitations,
and because their specifications lack corresponding structures, the claims are
invalid as indefinite as a matter of law. Artrip contends in response that the issue
of the claims’ validity is premature at the Rule 12(b)(6) stage. I agree.
Whether “a patent claim is invalid for failure to meet the definiteness
requirement . . . is a legal conclusion that is drawn from the court’s performance of
its duty as the construer of patent claims, and indefiniteness, therefore, like claim
construction, is a question of law.” Biomedino, LLC v. Waters Tech. Corp., 490
F.3d 946, 949 (Fed. Cir. 2007) (internal quotation marks and citations omitted).
Accordingly, district courts typically address this question at the claim construction
stage or at the summary judgment stage following claim construction. See, e.g.,
Twin Peaks Software Inc. v. IBM Corp., No. 2016-2177, 2017 WL 2304641, at *2
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(Fed. Cir. May 26, 2017) (unpublished) (district court found claims invalid
following claim construction); Cloud Farm Assocs. LP v. Volkswagen Grp. of Am.,
Inc., 674 F. App’x 1000, 1002 (Fed. Cir. Jan. 9, 2017) (unpublished) (same);
Media Rights Techs., Inc. v. Capital One Fin. Corp., 800 F.3d 1366, 1369 (Fed.
Cir. 2015) (district court found claims invalid pursuant to motion for judgment on
the pleadings, following Markman hearing); Lighting Ballast Control LLC v.
Philips Elecs. N. Am. Corp., 790 F.3d 1329, 1335 (Fed. Cir. 2015) (district court
found claims invalid following claim construction); Williamson v. Citrix Online,
LLC, 792 F.3d 1339, 1345 (Fed. Cir. 2015) (same); Biomedino, LLC, 490 F.3d at
949 (same); Default Proof Credit Card Sys., Inc. v. Home Depot U.S.A., Inc., 412
F.3d 1291, 1296 (Fed. Cir. 2005) (district court granted summary judgment based
on invalidity for indefiniteness). Even in the case cited by Ball where the district
court decided this question on a motion to dismiss, it did so only in conjunction
with formal claim construction. See In re TLI Commc’ns LLC Patent Litig., 87 F.
Supp. 3d 773, 782 (E.D. Va. 2015) (district court combined briefing and arguments
for motion to dismiss and claim term disputes).
Thus, while Ball has made a strong argument in favor of a finding of
invalidity, I find that it would be premature to decide this question on the present
record. Accordingly, I will deny Ball’s Motion to Dismiss to the extent it argues
that five of the asserted patents are invalid as indefinite.
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B. Indirect Infringement Claims Against Alcoa.
As I note above, see supra at III, claims for indirect infringement are
required to meet the “facial plausibility” requirements of Twombly and Iqbal.
Accordingly, I evaluate Artrip’s claims against Alcoa under this standard.
1. Induced Infringement.
Section 271(b) states that “[w]hoever actively induces infringement of a
patent shall be liable as an infringer.” 35 U.S.C. § 271(b). A plaintiff claiming
induced infringement must prove four things: (a) that the patent in question was
directly infringed by another entity, Limelight Networks, Inc. v. Akamai Techs.,
Inc., 134 S. Ct. 2111, 2117 (2014) (stating that “inducement liability may arise if,
but only if, there is direct infringement” (internal quotation marks, alterations, and
citations omitted)); (b) that the defendant “knew of the patent”; (c) that the
defendant “knowingly induced the infringing acts”; and (d) that the defendant
specifically intended to “encourage another’s infringement of the patent.” VitaMix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1328 (Fed. Cir. 2009).
To survive a Rule 12(b)(6) motion to dismiss, then, a complaint alleging
induced infringement must contain a plausible allegation of direct infringement as
well as “facts plausibly showing that [the defendants] specifically intended their
customers to infringe the . . . patent and knew that the customer’s acts constituted
infringement.” R+L Carriers, Inc., 681 F.3d at 1339; see also Iqbal, 556 U.S. at
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678. The Second Amended Complaint falls short. With respect to his claims of
induced infringement, Artrip alleges only that Alcoa provided “food grade coiled
aluminum sheets with special coating,” that these aluminum sheets were used in
practicing the patented inventions, and that Alcoa was “knowingly aid[ing] the
direct infringement of such patent[s].” Second Am. Compl. ¶¶ 5, 8, 11, 14, 17, &
20, ECF No. 64.
Such bare-bones allegations are clearly not sufficient to sustain a claim for
induced infringement under Twombly and Iqbal. Indeed, the Second Amended
Complaint is virtually devoid of factual allegations. As I stated above, see supra at
IV.A.2, Artrip has failed to plausibly allege that the patents were directly infringed,
whether by Ball or another entity. 6 He also fails to allege any facts supporting his
conclusory allegation that Alcoa knowingly aided infringement of the patents.
There is nothing in the Second Amended Complaint supporting a reasonable
inference that Alcoa even knew about the existence of the patents, let alone that it
knowingly aided Ball’s infringement of those patents or specifically intended to
encourage that infringement by supplying Ball with aluminum sheets. See Iqbal,
6

While Artrip does not specifically allege that Ball was the entity whose direct
infringement Alcoa induced, the allegations taken in the context of the complaint as a
whole make it clear that Artrip intends to allege that Alcoa induced Ball’s patent
infringement by providing Ball with the aluminum sheets necessary to make the lift-tab
can ends. I need not consider whether Artrip’s failure to connect the dots between the
alleged direct and indirect infringement requires dismissal because I find that dismissal is
appropriate on other grounds.
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556 U.S. at 679 (noting that legal conclusions “must be supported by factual
allegations”).
In an attempt to cure the deficiencies in his Second Amended Complaint,
Artrip submitted an affidavit and declaration as exhibits to his opposition to
Alcoa’s Motion to Dismiss. See Artrip Aff., Ex. 1, ECF No. 100-1; Artrip Decl.,
Ex. 2, ECF No. 100-2. I may consider documents external to the complaint in
considering a Rule 12(b)(6) motion, “so long as they are integral to the complaint.”
Sec’y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
2007). The present documents do not meet this test, but even considering them, I
find that they fail to fill the gaps left by the complaint.
To start, the documents show that Artrip’s allegations of infringement are
based on observations he made at Ball’s factory from 1976 to 1996, a period that
predates the infringement Alcoa is alleged to have induced and contributed to. See
Artrip Decl. ¶ 4, Ex. 2, ECF No. 100-2. In addition, and more importantly, he fails
to plead facts giving rise to a reasonable inference that Alcoa knew about the
patents, knowingly induced Ball’s infringement of the patents, or specifically
intended to encourage Ball’s infringement of the patents. In his affidavit, Artrip
states that Alcoa once owned Stolle, a company that supplies machinery for the
production of beverage containers, and that during the time Alcoa owned Stolle,
Stolle held patents of its own. Artrip Aff. ¶¶ 9-14, Ex. 1, ECF No. 100-1. The fact
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that Alcoa owned a beverage container company that held its own patents,
however, simply does not give rise to a reasonable inference that Alcoa had
knowledge of the particular patents at issue in this case.
Artrip also asserts that the aluminum strips used by Ball in its factory were
“precut by Alcoa to fit the specific kind of can tops being produced.” Artrip Decl.
¶ 5, Ex. 2, ECF No. 100-2. He further alleges that, “[b]ased on [his] experience,
[he] believe[s] that can tops made using [his] son’s inventions . . . are likewise
made from specifically designed precut coiled sheets of aluminum stock.” Id.
However, the mere fact that Alcoa supplied Ball with aluminum sheets cut to
Ball’s specifications does not reasonably suggest that Alcoa knew Ball was
infringing any patent — let alone the patents at issue in this case — or that it
specifically intended to encourage that infringement. A plaintiff may not use a
lawsuit to “conduct a fishing expedition to determine if there is any factual basis
for asserting claims against” the defendant. Johnson v. Am. Towers, LLC, 781 F.3d
693, 709 (4th Cir. 2015) (quoting and affirming the district court’s finding that the
plaintiff’s claim failed due to the “speculative nature of [the] allegations”).
In short, neither Artrip’s declaration and affidavit nor the Second Amended
Complaint itself plead sufficient “factual content” supporting a “reasonable
inference” that Alcoa is “liable for the misconduct alleged.” Iqbal, 556 U.S. at

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678. For that reason, I will grant Alcoa’s Motion to Dismiss as to Artrip’s claims
of induced infringement.
2. Contributory Infringement.
There are two types of contributory infringement under § 271(c):
contributory infringement of a patented machine and contributory infringement of
a patented process. The claim has five elements: (1) The defendant sells or offers
to sell in the United States (2) either a component of a patented machine, or a
material for use in practicing a patented process (3) constituting a material part of
the invention, (4) knowing the component/material to be especially made or
adapted for use in infringement of such patent, and (5) the component/material is
not a staple article or commodity of commerce suitable for substantial
noninfringing use. 35 U.S.C. § 271(c).
Artrip has not alleged sufficient facts to render his asserted inferences
plausible. With respect to his claims of contributory infringement, Artrip alleges
only that Alcoa supplied “food grade coiled aluminum sheets with special
coating,” that these aluminum sheets were supplied “for use in practicing the
patented invention[s],” that the aluminum sheets “meet required specifications for
said invention,” that the aluminum sheets “constitut[e] a material part of the
invention,” that Alcoa knew the aluminum sheets were “especially made or
especially adapted for use in an infringement of such patent[s],” and that the
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aluminum sheets were “not a staple article or commodity of commerce suitable for
substantial noninfringing use.” Second Am. Compl. ¶¶ 5, 8, 11, 14, 17, & 20, ECF
No. 64.
As with the claims for induced infringement, such bare-bones allegations are
insufficient to sustain a claim for contributory infringement under Twombly and
Iqbal. Artrip alleges no facts supporting an inference that Alcoa’s aluminum
sheets constitute a material part of the patented inventions, no facts supporting an
inference that Alcoa knew the aluminum sheets were made to be used in
infringement of the patents, and no facts supporting an inference that the aluminum
sheets were not a staple article or commodity of commerce suitable for
noninfringing use.

Instead, his allegations as to the elements are purely

conclusory, and as such, insufficient to survive a Motion to Dismiss. See Iqbal,
556 U.S. at 678 (stating that “mere conclusory statements[] do not suffice”). In
addition, for the reasons described above, see supra at IV.B.1, Artrip’s
supplemental affidavit and declaration fail to cure these deficiencies. Neither
document contains any facts giving rise to a reasonable inference that Alcoa even
knew of the patents’ existence, let alone that it provided aluminum sheets
“specifically designed” to infringe those patents. Artrip Decl. ¶ 5, Ex. 2, ECF No.
100-2.

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Moreover, it is impossible as a matter of law for Alcoa’s provision of the
aluminum sheets to constitute contributory infringement for five of the six patents
asserted.

As I note above, there are two types of contributory infringement:

infringement of patented machines and infringement of patented processes. A
defendant contributorily infringes a patented machine by providing a component of
that machine, whereas he contributorily infringes a patented process by providing a
material for use in practicing that process. See 35 U.S.C. § 271(c).
Artrip alleges in his Second Amended Complaint that Alcoa contributorily
infringed the patents at issue by “supplying material for use in practicing the
patented invention[s].” Second Am. Compl. ¶¶ 5, 8, 11, 14, 17, & 20, ECF No. 64.
In so alleging, Artrip clearly intends to accuse Alcoa of contributory infringement
of a patented process. His language mirrors the language of the statute with
respect to contributory infringement of a process, and he does not attempt to allege
that the aluminum sheets constituted a component of the patented inventions.
Five of the six patents at issue are “system” patents. 7 I must therefore
determine whether a patented “system” is a “machine” or “process” within the
meaning of § 271(c). If a “system” is properly treated as a “machine,” then
Artrip’s claims must fail as a matter of law. Alcoa cannot have contributorily
infringed the patented systems by providing “material for use” in the systems,
7

The five “system” patents are ’492, ’907, ’998, ’999, and ’347.
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because a machine patent can only be contributorily infringed by providing a
component of that machine — not by providing a material for use in that machine.
On the other hand, if a “system” is properly treated as a “process,” then Artrip’s
claims need not necessarily fail as a matter of law.
Artrip argues that the Federal Circuit’s analysis in one case “treats system
claims more like method claims than machine claims.” Mem. Opp’n Alcoa’s Mot.
to Dismiss 12, ECF No. 100 (citing Centillion Data Sys., LLC v. Qwest Commc’ns
Int’l., Inc., 631 F.3d 1279, 1284 (Fed. Cir. 2011)). However, the Federal Circuit
has made it clear that system claims are more appropriately considered machine
claims. “Claims which recite a ‘system,’ ‘apparatus,’ ‘combination,’ or the like are
all analytically similar in the sense that their claim limitations include elements
rather than method steps. All such claims can be contributorily infringed by a
component supplier.” Arris Grp., Inc. v. British Telecomms. PLC, 639 F.3d 1368,
1376 n.8 (Fed. Cir. 2011) (emphasis added). Accordingly, claims that recite a
“system” are properly treated as machine claims. By contrast, claims that recite a
“method” are properly treated as process claims. Id. at n.9 (citing contributory
infringement cases in which method claims were analyzed as process claims rather
than machine claims).
Because “system” claims are properly treated as “machine” claims, in order
to allege contributory infringement of these “system” patents, Artrip must allege
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that Alcoa provided “components” of the patented machines. Instead, he alleges
that Alcoa provided a “material” for use in the patented processes. Because these
patents are to be treated as patents for machines, rather than processes, Artrip’s
claims for contributory infringement of the five “system” patents must fail as a
matter of law.8
Finally, dismissal of all claims against Alcoa will be with prejudice, and
leave to amend is denied. The Second Amended Complaint is Artrip’s third
complaint and the second complaint filed by counsel. The pleading standard
applicable to claims for indirect infringement has not changed since the time Artrip
filed this lawsuit in 2014. Artrip was therefore on notice of the applicable pleading
standard, had multiple opportunities to meet it, and has failed to do so. See Allen v.
FCA US LLC, No. 6:17-CV-00007, 2017 WL 1957068, at *4 (W.D. Va. May 10,
2017) (denying leave to amend and dismissing complaint with prejudice where
plaintiff had “multiple opportunities” to allege fraud with specificity and was “on
clear notice that she was required to do so”). Moreover, five of Artrip’s six claims
of contributory infringement must necessarily fail as a matter of law. In light of

8

The sixth patent, ’179, is a patent for a “system and method.” Determining
whether Artrip’s claim of contributory infringement as to this patent must fail as a matter
of law would require further analysis. However, because I dismiss all six contributory
infringement claims for failure to state a facially-plausible claim to relief, and because I
dismiss all claims with prejudice, see infra, I need not determine whether this sixth claim
necessarily fails as a matter of law.
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the above, I will grant Alcoa’s Motion to Dismiss, deny Artrip’s request to amend,
and dismiss Artrip’s claims against Alcoa with prejudice.
V.
For the foregoing reasons, it is ORDERED as follows:
1. Defendants Ball Corporation and Ball Metal Beverage Container Corp.’s
Motion to Dismiss (ECF No. 91) is DENIED IN PART and GRANTED
IN PART, and the plaintiff’s claims of direct infringement against Ball
are DISMISSED WITHOUT PREJUDICE;
2. The plaintiff’s construed Motion for Leave to Amend Complaint as to
Ball (ECF No. 99) is GRANTED, provided that any Third Amended
Complaint must be filed within 21 days of this date;
3. Defendant Alcoa Inc.’s Motion to Dismiss (ECF No. 90) is GRANTED,
and the plaintiff’s claims of induced infringement and contributory
infringement

against

defendant

Alcoa

are

DISMISSED

WITH

PREJUDICE;
4. The plaintiff’s construed Motion for Leave to Amend Complaint as to
Alcoa (ECF No. 100) is DENIED; and
5. The Clerk shall terminate Alcoa Inc. as a party to this action.
ENTER: August 24, 2017
/s/ James P. Jones
United States District Judge
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