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Artrip v. Ball Corp.

United States District Court, W.D. Virginia, Abingdon Division

November 3, 2017

JERRY ARTRIP, Plaintiff,
v.
BALL CORPORATION, et al, Defendant.

          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.

          OPINION

          JAMES P. JONES, UNITED STATES DISTRICT JUDGE.

         The plaintiff, Jerry Artrip, has asserted claims of direct patent infringement against defendants Ball Corporation and Ball Metal Beverage Container Corp. in violation of 35 U.S.C. § 271. The defendants have moved to dismiss the Third Amended Complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). For the reasons that follow, I will grant the Motion to Dismiss.

         I. Procedural History.

         Artrip initially filed this case pro se, alleging that “The Ball Company” and 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 the defendants had infringed eight of Artrip's assigned patents.[1] Both defendants filed motions to dismiss pursuant to Rule 12(b)(6) for failure to state a claim. It was 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 the laches.

         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. Amend 1, ECF No. 59. I granted the motion, and 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.[2]

         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 Prods. Aktiebolag v. First Quality Baby Prods., 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 overruled 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.[3] I granted Alcoa's Motion to Dismiss, dismissing Artrip's claims of induced infringement and contributory infringement against Alcoa with prejudice and terminated Alcoa as a party to the action. Artrip v. Ball Corp., No. 1:14CV00014, 2017 WL 3669518 (W.D. Va. Aug. 24, 2017). I granted Ball's Motion to Dismiss to the extent the Second Amended Complaint failed to state a facially-plausible claim for relief, finding that Artrip's allegations were merely conclusory and insufficient under Twombly and Iqbal.[4] However, because Artrip's Second Amended Complaint was governed by Form 18 at the time it was filed, I allowed him to file an amended complaint. Id. at *5. I directed that “[a]ny such amended complaint must comply with the pleading requirements of Rule 8(a), Twombly and Iqbal, ” and “must plead specific facts supporting Artrip's claims.” Id. Artrip has now filed a Third Amended Complaint, and Ball has filed a new Motion to Dismiss under Rule 12(b)(6). Artrip opposes the motion. The motion has been fully briefed and is ripe for consideration.[5]

         II. Factual Summary.

         The Third Amended Complaint alleges the following facts, which I must accept as true for the purpose of deciding the present motion.

         Between June 2006 and March 2008, Donald Artrip was issued five 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. The five patents claimed in the Third Amended Complaint are as follows:[6]

• U.S. Patent No. 7, 063, 492 (the “'492 Patent”), for an invention of a System for Forming and Attaching Lift-Tabs to Can Ends;
• U.S. Patent No. 7, 234, 907 (the “'907 Patent”), for an invention of a System for Forming and Securing ...

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