United States District Court, W.D. Virginia, Abingdon Division
Stephen Christopher Swift, Swift & Swift, Attorneys at Law, P.L.L.C., Alexandria, Virginia, for Plaintiff.
John D. Luken, Jeffrey P. Hinebaugh, and Emily S. Meyer, Dinsmore & Shohl LLP, Cincinnati, Ohio, and Howard C. McElroy, McElroy, Hodges & Caldwell, Abingdon, Virginia, for Defendant Ball Corporation.
Mark M. Supko and Michael H. Jacobs, Crowell & Moring LLP, Washington, D.C., for Defendant Alcoa Inc.
OPINION AND ORDER
JAMES P. JONES, District Judge.
In this patent infringement case, I find that it is likely that the doctrine of laches bars the plaintiff's claims.Before making that determination, however, I will allow the parties an opportunity to respond.
The plaintiff, Jerry Artrip, contends in his Amended Complaint in this case that the defendants, Ball Corporation and Alcoa, Inc. ("Alcoa"), have infringed (or, in the case of Alcoa, contributorily infringed) certain patents owned by him. He seeks an accounting and damages. In response, the defendants have filed motions to dismiss on various grounds, including, at least as to Ball Corporation, that the plaintiff's action is barred by the doctrine of laches.
In reply, the plaintiff has submitted declarations containing information outside the scope of the pleadings that challenges Ball Corporation's assertion of laches. According to one of the declarations, Artrip worked until 1996 at a Bristol, Virginia, plant that manufactures metal beverage lift-tab can ends. The plant is currently owned and operated by Ball Metal Beverage Container Corporation, a subsidiary of Ball Corporation. The plaintiff alleges that Ball Corporation infringed the asserted patents through the use of the respective inventions in making the lift-tab can ends and that Alcoa contributorily infringed the patents through the supply of "food grade coiled aluminum sheets with special coating" for use with the patented inventions. ( See, e.g., Am. Compl. ¶ 4, ECF No. 35.)
Artrip claims to be the assignee of various patents purporting to cover the making of lift-tab can ends. The plaintiff asserts eight patents in his Amended Complaint, including U.S. Patent Nos. 5, 511, 920 (the "920 Patent"), 5, 660, 516 (the "516 Patent"), 6, 022, 179 (the "179 Patent"), 7, 063, 492 (the "492 Patent"), 7, 234, 907 (the "907 Patent"), 7, 237, 998 (the "998 Patent"), 7, 237, 999 (the "999 Patent"), and 7, 344, 347 (the "347 Patent").
The eight asserted patents were issued by the United States Patent and Trademark Office between 1996 and 2008. According to the plaintiff, all eight patents expired on or before October 14, 2014, prior to the plaintiff's filing of this action on March 18, 2014.
Attached as the sole exhibit to the Amended Complaint is an August 17, 2007, letter written by the plaintiff that states:
Dear Manufactures [sic] of lift-tab can ends and lift-tab can end machines and machinery.
This letter is to inform you of several United States patents that I own, and or listed as the assignee.
Here they are listed;
I suspect some maufactors [sic] are infringing on at least ...