Artrip v. Ball Corporation, et Al.

Brief / Memorandum in Opposition re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Va.May 31, 2017

1 DALE JENSEN, PLC ATTORNEYS AT LAW UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ABINGDON DIVISION JERRY ARTRIP, Plaintiff, vs. BALL CORPORATION, BALL METAL BEVERAGE CONTAINER CORP., AND ALCOA, INC. Defendants. Case No. 1:14-cv-00014-JPJ-PMS BRIEF IN OPPOSITON TO THE MOTION TO DISMISS OF ALCOA, INC. BRIEF IN OPPOSITON TO THE MOTION TO DISMISS OF ALCOA, INC. Plaintiff, Jerry Artrip (“Artrip”), by his undersigned counsel, files this Brief in Opposition to the Motion to Dismiss (the “Motion”) filed by Alcoa Inc. (“Alcoa”), which seeks to dismiss Artrip’s Second Amended Complaint (the “SAC”). Artrip avers the following: I. Introduction At its core, Alcoa relies upon three arguments, each of which fail. Firstly, Alcoa argues that it cannot be held liable for induced infringement because Alcoa claims that the allegations in the Second Amended Complaint somehow do not allege that Alcoa knew of the Patents at Issue. This argument is Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 1 of 14 Pageid#: 1010 2 DALE JENSEN, PLC ATTORNEYS AT LAW highly disingenuous particularly in view of Alcoa’s corporate history. During the time period when Donald Artrip filed for and obtained his patents for metal can tab technologies, Alcoa was both an owner of can manufacturing plants as well as a leading canning machine equipment manufacturer. The involvement of Alcoa in canning equipment manufacturing as well as can and tab production, is strong circumstantial evidence that Alcoa would, as a matter of good business practices, monitor the issuance of patents in those technologies, such as those at issue in this case. Since the resolution of when Alcoa actually became aware of the Patents at Issue is a question of fact, the Motion to Dismiss should be denied so that discovery can proceed on that issue. Secondly, Alcoa argues that the induced infringement claim should be dismissed because it claims that there is a substantial non-infringing use for the materials supplied to Ball. However, whether there is a substantial non-infringing use is an issue of fact that should be decided after discovery. Artrip has averred in the past (see Document 44-1, which is resubmitted herewith as Exhibit 2 for the convenience of the Court) that the coiled aluminum sheets supplied to Ball by Alcoa are specifically tailored for each machine. Exh. 2 at ¶ 4-5. Thirdly, Alcoa argues that the SAC against Alcoa should be dismissed because the Patents at Issue (as defined herein, infra) claim “machines” only and that as a supplier of materials used by the machines, Alcoa cannot be liable for Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 2 of 14 Pageid#: 1011 3 DALE JENSEN, PLC ATTORNEYS AT LAW contributory infringement. This argument fails because the claims of the Patents at Issue are system claims rather than device claims. The metal stock material supplied by Alcoa is integral to the systems claimed. As such, Alcoa is a component supplier to the claimed systems and can be a contributory infringer as alleged in the SAC. For all of the reasons stated herein, the Motion should be denied. II. Background Donald Artrip, the inventor of the Patents at Issue, first applied for a patent on his first related invention on May 12, 1993. That initial application issued on August 26, 1997 as U. S. Patent No. 5,660,516 (the “‘516 Patent”). The issuance of the ‘516 Patent and its contemporaneous publication put the world, including Alcoa on notice of Donald Artrip’s invention in the specialized area of producing and installing pull top tabs on metal cans. Over a period of 10 years following the issuance of the ‘516 Patent, the six Patents at Issue were filed and issued on closely related subject matter. 1. The Patents at Issue Artrip is the Assignee of rights to each of U. S. Patent Nos. 6,022,179 (the “‘179 Patent”), 7,063,492 (the “‘492 Patent”), 7,234,907 (the “‘907 Patent”), Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 3 of 14 Pageid#: 1012 4 DALE JENSEN, PLC ATTORNEYS AT LAW 7,237, 998 (the “‘998 Patent”), 7,237, 999 (the “‘999 Patent”), and 7,344, 347 (the “‘347 Patent”) (collectively the “Patents at Issue”). Each of the Patents at Issue have a distinct and separate claim set. The filing, publication, and issue dates for the Patents at Issue is as follows: Patent Filing Date Issue Date a ‘179 Sept. 10, 1996 Feb. 8, 2000 ‘492 Jan. 13, 2004 June 20, 2006 ‘907 April 19, 2006 June 26, 2007 ‘998 April 19, 2006 July 3, 2007 ‘999 April 19, 2006 July 3, 2007 ‘347 April 19, 2006 March 18, 2008 For example, The ‘179 Patent, which is entitled “SYSTEM AND METHOD WHEN FORMING LIFT-TAB CAN END ASSEMBLIES” includes eight independent claims. Each of the claims in the Patents at Issue are directed toward a system. For analytic purposes, Claim 1 of the ‘347 Patent is presented as follows (without limiting Artrip’s infringement claims thereto) (emphasis added): 1. A system for forming and attaching lift--‐tabs to can ends to form easy opening lift--‐tab can ends, wherein each of said can ends includes a rivet to which a lift--‐tab may be attached, said system comprising: a first frame; a second frame, said second frame being in close proximity to the first frame; a means for forming a lift-tab, said means for forming a lift-tab being mounted on the first frame and adapted to form at least one Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 4 of 14 Pageid#: 1013 5 DALE JENSEN, PLC ATTORNEYS AT LAW lane of lift-tabs in a strip of metal stock material; a drive roller supported on the first frame and adapted to move the strip of metal stock material through the means for forming a lift-tab; a means for attaching a lift-tab onto a can end, said means for attaching a lift-tab onto a can end being mounted on the second frame and adapted to attach a lift-tab onto a can end, and wherein the means for attaching a lift-tab onto a can end includes a conversion press mounted on the second frame, said conversion press being adapted to attach a lift-tab onto a can end, and said conversion press having a locating means for placing the strip of metal stock material into the conversion press with the lift-tab being placed into working relationship with a can end so that the conversion press may detach the lift-tab from the strip and attach the lift-tab onto the can end to form an easy opening lift-tab can end; and a conveyor means for conveying the at least one lane of formed lift-tabs from the means for forming a lift-tab to the means for attaching a lift-tab onto a can end; a power source for providing power to operate either or both of the means for forming a lift-tab and the means for attaching a lift-tab onto a can end, and wherein the power source includes a tab press power source for providing power to operate the tab press and a conversion press power source for providing power to operate the conversion press, the tab press power source and the conversion press power source being adapted to operate independently of each other; and a tab press crank shaft that is operatively connected to the tab press power source and adapted to transmit power for operating the tab press and a conversion press crank shaft that is operatively connected to the conversion press power source and adapted to transmit power for operating the conversion press; and wherein: the first frame and the second frame are connected by a bridge. 2. Selected Events From the History of Alcoa Alcoa traces its history back to approximately 1886 when its founder, one Charles Martin Hall started the Pittsburgh Reduction Company. Ex. 1 at ¶ 4. The Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 5 of 14 Pageid#: 1014 6 DALE JENSEN, PLC ATTORNEYS AT LAW Pittsburgh Reduction Company was renamed as the Aluminum Company of America (i.e., “Alcoa”) in 1907. Ex. 1 at ¶ 5. Over time, Alcoa grew and pursued vertical integration in its business. A. Reynolds Ownership of the Bristol Virginia Plant and Reynolds Subsequent Merger with Alcoa In 1971, Reynolds Metals Company (“Reynolds”) constructed and began operation of the plant referenced in paragraph 2 of the SAC in Bristol, Virginia. Ex. 1 at ¶ 6. Years later, Ball Metal Beverage Container Corp. acquired the plant from Reynolds in 1998. Ex. 1 at ¶ 7. Approximately one year later, in 1999 Alcoa announced its intent to merge with Reynolds, which merger was completed in 2000. Ex. 1 at ¶ 8. B. Alcoa’s Ownership of Stolle Stolle Machinery (“Stolle”) is a leading supplier of machinery for the production of beverage containers, which are the subject matter of the Patents at Issue. Ex. 1 at ¶ 9. In 1973, Alcoa acquired Stolle. Ex. 1 at ¶ 10. In 1986 Alcoa acquired Borden can machinery operations and combined it with Stolle to form Alcoa Packaging Machinery. Ex. 1 at ¶ 11. In its merger with Reynolds in 2000, Alcoa acquired Reynolds can machinery operations, which was also combined into Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 6 of 14 Pageid#: 1015 7 DALE JENSEN, PLC ATTORNEYS AT LAW Alcoa Packaging Machinery. Ex. 1 at ¶ 12. Alcoa retained ownership of Stolle until on or about January 12, 2004 at which time it sold the Alcoa Packaging Machinery to a holding company. Ex. 1 at ¶ 13. C. Stolle’s Knowledge of the Patents at Issue Between Feb. 8, 2000 (the issue date of the ‘179 Patent) and January 12, 2004 (when Alcoa sold Stolle), without considering patents filed by other divisions of Alcoa, Stolle alone had at least 30 patents applications published between the date of issuance of the ‘179 Patent and the date that Alcoa sold Stolle on or about January 12, 2004. Ex. 1 at ¶ 14. III. Argument A complaint must include a short and plain statement of the claim under which the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). Under the notice pleading standard employed by the federal courts, the complaint need only give the defendant notice of what the claim is and the grounds upon which it rests. Sukumar v. Nautilus, Inc., 829 F. Supp. 2d 386, 390 (W.D. Va. 2011); Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007)). In considering a motion to dismiss under Rule 12(b)(6), the Court is obligated to accept as true all of the complaint’s factual allegations and take the facts in the light most favorable to the plaintiff. Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 7 of 14 Pageid#: 1016 8 DALE JENSEN, PLC ATTORNEYS AT LAW Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). All reasonable inferences are also to be drawn in the Plaintiff’s favor. United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014). Prior to December 2015, under Federal Rule of Civil Procedure 84 (which was in effect and fully in force at the time this case was filed and when the SAC was filed), if a plaintiff's patent complaint met the requirements of Form 18, the plaintiff sufficiently stated a claim, and was not subject to the higher standard outlined in Iqbal and Twombly. Polaris Indus. v. Arctic Cat Inc., 2016 U.S. Dist. LEXIS 82031, at *2 (D. Minn. June 23, 2016) (citing In re Bill of Lading Transmission and Processing Sys. Patent Litig., 681 F.3d 1323, 1333-34 (Fed. Cir. 2012)). Dismissal under 12(b)(6) is appropriate only if the plaintiff can prove no set of facts that would support his claim. T.G. Slater & Son v. Donald P. & Patricia A. Brennan LLC, 385 F.3d 836, 841-842 (4th Cir. 2004). 1. It Can Be Reasonably Inferred from the SAC that Alcoa Provided Materials to Ball In the SAC, Artrip has alleged that Ball directly infringes the Patents at Issue (see SAC, passim). In conjunction with that alleged infringement by Ball, Artrip alleges that Alcoa has induced infringement and is liable for contributory Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 8 of 14 Pageid#: 1017 9 DALE JENSEN, PLC ATTORNEYS AT LAW infringement (see, e.g., SAC at ¶¶ 5, 8, 11, 14, 17, 20). Although not explicitly stated, it can be reasonably inferred that Artrip is alleging that Alcoa supplied materials to Ball, which used those materials in infringing the Patents at Issue. Because such a reasonable inference is easily drawn from the allegations of the SAC, the contentions of Alcoa concerning the SAC not explicitly stating that Alcoa was not alleged to have supplied materials to Ball should be denied. 2. The Induced Infringement Claims Should not be Dismissed Alcoa argues that it is entitled to have two issues of fact resolved in its favor as a matter of law before any discovery has been conducted in the case. First, Alcoa argues that the SAC does not properly allege that Alcoa had knowledge of the Patents at Issue and that Artrip’s claims against Alcoa should be dismissed as a result. However, Artrip has alleged such knowledge in summary form and Alcoa admits as much. See, e.g., Doc. 90-1 at p. 6 (citing SAC at ¶¶ 5, 8, 11, 14, 17, 20). The underlying factual basis for the Artrip’s allegations stems from Alcoa’s historical vertical integration in supplying materials for can manufacturing, operation of plants that manufacture cans and the pull tabs for those cans, as well as being a supplier of equipment for such manufacture between 1973 and 2004, which time period did not end until four full years after the ‘179 Patent issued. Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 9 of 14 Pageid#: 1018 10 DALE JENSEN, PLC ATTORNEYS AT LAW Alcoa has supplied metals for can and can tab manufacturing during the relevant time period of this case. Certainly, Alcoa had strong reasons to monitor patents issuing in can and can tab manufacturing after it acquired Stolle in 1973. After that time, Stolle actively sought many patents in relevant technology including, without limitation, at least 30 patents being sought between the date that the ‘179 Patent issued and January 12, 2004 at which time Alcoa sold Stolle. Circumstantially, it seems difficult to believe that Alcoa would not have found one or more of the Patents at Issue in art searches peformed by Alcoa and its affiliated compnies (e.g., Stolle) well before the filing of this action. At a minimum, Artrip should be allowed to seek discovery from Alcoa and Stolle concerning patent searches and monitoring that occurred between Feb. 8, 2000 (the issue date of the ‘179 Patent) and March 18, 2014 (the filing date of this case). Alcoa’s knowledge of the Patents at Issue is a factual issue concerning which Alcoa is not entitled to any presumptions in its favor at this stage of the litigation. See, e.g., Giarratano, 521 F.3d at 302. Second, Alcoa contends that Artrip’s claims should be dismissed because it claims that the aluminum supplied to Ball has a substantial noninfringing use. However, whether there is a substantial noninfringing use is also a question of fact. See Mentor H/S, Inc. v. Med. Device Alliance, Inc., 244 F.3d 1365 (Fed. Cir. 2001) Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 10 of 14 Pageid#: 1019 11 DALE JENSEN, PLC ATTORNEYS AT LAW (upholding jury verdict of contributory infringement where there was a lack of substantial non-infringing uses); C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc., 911 F.2d 670 (Fed. Cir. 1990) (summary judgment on contributory infringement inappropriate when there existed disputed material fact issues regarding substantial non-infringing use). Artrip avers that his prior Declaration, which is resubmitted as Exh. 2, which alleges that materials supplied for can tops are custom produced for the machines of a given can producer such as Ball, is sufficient to maintain a disputed material fact as to whether there is a substantial non-infringing use. At this stage, Alcoa is not entitled to presumptions as to issues of fact and its Motion to Dismiss the induced infringement claims of Artrip should be denied. 3. The Contributory Infringement Claims Should not be Dismissed Alcoa contends that Artrip cannot maintain contributory infringement claims under 35 U.S.C. § 271(c). Alcoa contends that the claims of the Patents at Issue are “machine claims” and that it does not supply a component of the machine pursuant to 35 U.S.C. § 271(c). However, 35 U.S.C. § 271(c) attempts to categorize all patented subject matter into either a “patented machine” or a “patented process”. At its core, Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 11 of 14 Pageid#: 1020 12 DALE JENSEN, PLC ATTORNEYS AT LAW Alcoa’s basic argument relies upon attempting to place the claims of the Patents at issue into the category of a “patented machine”. However, the claims of the patents at issue are not device claims, but instead are system claims. One of the very cases cited by Alcoa is illustrative of the difference between device and system claims. Two of the claims at issue in that case were system claims. Nielsen Co. (US), LLC v. comScore, Inc., 819 F. Supp. 2d 589, 596 (E.D. Va. 2011). Concerning infringement of system claims, the Nielson Co. opinion stated (emphasis added): A recent Federal Circuit decision explained how “use” of claimed systems such as those claimed in independent Claims 13 and 17 of the '722 patent can constitute direct infringement. “[T]o ‘use’ a system for purposes of infringement, a party must put the invention into service, i.e., control the system as a whole and obtain benefit from it.” Centillion Data Sys., LLC v. Qwest Commc'ns Int'l, Inc., 631 F.3d 1279, 1284 (Fed. Cir. 2011). Although the Federal Circuit reiterated in that recent decision its prior holding in BMC that “[d]irect infringement requires a party to perform or use each and every step or element of a claimed method or product,” BMC Res., 498 F.3d at 1378, it explained that an alleged infringer need not “exercise physical or direct control over each individual element of the system” that it is using, but instead need only have “the ability to place the system as a whole into service.” Centillion, 631 F.3d at 1284. 819 F. Supp. 2d at 598. This analysis treats system claims more like method claims than machine claims as to 35 U.S.C. § 271(c). Here, the ability to place the claimed systems of the Patents at Issue by Ball are sufficient to show direct infringement. However, Ball could not have infringed Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 12 of 14 Pageid#: 1021 13 DALE JENSEN, PLC ATTORNEYS AT LAW the system claim without the supply of aluminum provided by Alcoa. Ball had no ability to place the system as a whole into service without the claimed “strip of metal stock material”. Artrip incorporates by reference the discussion, supra, concerning knowledge of Alcoa as to the induced infringement claim as governing the requisite knowledge for contributory infringement. Accordingly, Alcoa’s Motion should be denied. IV. Conclusion For all of the reasons stated herein, the Motion should be denied in its entirety. If any part of the Motion is sustained, leave to amend should be granted. Respectfully submitted, Dated: May 31, 2017 By:/s/Dale R. Jensen Counsel Dale R. Jensen (VSB 71109) Dale Jensen, PLC 606 Bull Run Staunton, VA 24401 (434) 249-3874 (866) 372-0348 facsimile djensen@dalejensenlaw.com Counsel for Jerry Artrip Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 13 of 14 Pageid#: 1022 14 DALE JENSEN, PLC ATTORNEYS AT LAW CERTIFICATE OF SERVICE I hereby certify that the original of the foregoing was, on this 31st day of May, 2017, served electronically to the following: Mark M. Supko Michael H. Jacobs CROWELL & MORING LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Counsel for Defendant Alcoa, Inc. Steven R. Minor ELLIOTT LAWSON & MINOR The Piedmont Building 110 Piedmont Avenue, Suite 300 Bristol, Virginia 24201 Counsel for the Defendants Ball Corporation and Ball Metal Beverage Container Corp. Respectfully Submitted, /s/ Dale R. Jensen Dale R. Jensen Counsel for Jerry Artrip Case 1:14-cv-00014-JPJ-PMS Document 100 Filed 05/31/17 Page 14 of 14 Pageid#: 1023 1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ABINGDON DIVISION JERRY ARTRIP, Plaintiff, vs. BALL CORPORATION, BALL METAL BEVERAGE CONTAINER CORP., AND ACLOA, INC. Defendants. Case No. 1:14-cv-00014-JPJ-PMS BRIEF IN OPPOSITON TO THE MOTION TO DISMISS OF ALCOA, INC. AFFIDAVIT OF JERRY ARTRIP IN SUPPORT OF PLAINTIFF’S RESPONSE IN OPPOSITION TO THE MOTION TO DISMISS OF ALCOA INC. I, Jerry Artrip, hereby affirm the following, of which I have personal knowledge: 1. I am over the age of eighteen, have never been convicted of a crime of moral turpitude, and am legally competent to make this declaration. I have personal knowledge of the matters stated herein and would testify that they are true if called upon to do so. 2. I am the Plaintiff of this case. 3. I have personally reviewed various publically available documents that are available online concerning Alcoa Inc. (“Alcoa”) including newspaper Opposition to Alcoa Motion to Dismiss Exhibit 1 Case 1:14-cv-00014-JPJ-PMS Document 100-1 Filed 05/31/17 Page 1 of 4 Pageid#: 1024 2 articles, press releases, patent filings and information from the websites of Alcoa, Ball Corporation (“Ball”), and Stolle Machinery (“Stolle”). 4. According to information that I have reviewed, Alcoa traces its history back to approximately 1886 when its founder, one Charles Martin Hall started the Pittsburgh Reduction Company. See http://www.alcoa.com/global/en/who-we-are/history/default.asp. 5. According to information that I have reviewed, the Pittsburgh Reduction Company was renamed as the Aluminum Company of America (i.e., “Alcoa”) in approximately 1907. See Id. 6. According to information that I have reviewed, in 1971, Reynolds Metals Company (“Reynolds”) constructed and began operation of the plant referenced in paragraph 2 of the Second Amended Complaint (the “SAC”) in Bristol, Virginia. See https://www.epa.gov/hwcorrectiveaction/hazardous-waste- cleanup-ball-metal-beverage-container-corp-bristol-va. 7. According to information that I have reviewed, years later, Ball Metal Beverage Container Corp. acquired the plant from Reynolds in 1998. See Id. 8. According to information that I have reviewed, approximately one year later, in 1999 Alcoa announced its intent to merge with Reynolds, which merger was completed in 2000. See Opposition to Alcoa Motion to Dismiss Exhibit 1 Case 1:14-cv-00014-JPJ-PMS Document 100-1 Filed 05/31/17 Page 2 of 4 Pageid#: 1025 3 http://www.nytimes.com/1999/08/20/business/alcoa-and-reynolds-reach-merger- agreement.html; http://www.alcoa.com/global/en/who-we-are/history/default.asp. 9. Stolle is a leading supplier of machinery for the production of beverage containers, which are the subject matter of the Patents at Issue. See https://www.stollemachinery.com/en. 10. According to information that I have reviewed, in 1973, Alcoa acquired Stolle. See https://www.stollemachinery.com/en/history. 11. According to information that I have reviewed, in 1986 Alcoa acquired Borden can machinery operations and combined it with Stolle to form Alcoa Packaging Machinery. See Id. 12. According to information that I have reviewed, in its merger with Reynolds in 2000, Alcoa acquired Reynolds can machinery operations, which was also combined into Alcoa Packaging Machinery. See Id. 13. According to information that I have reviewed, Alcoa retained ownership of Stolle until on or about January 12, 2004 at which time it sold the Alcoa Packaging Machinery to a holding company. See Id.; http://www.getfilings.com/o0001193125-04-068372.html; http://www.bizjournals.com/dayton/stories/2004/01/12/daily10.html 14. According to records of the United States Patent and Trademark Office, Between Feb. 8, 2000 (the issue date of the ‘179 Patent) and January 12, Opposition to Alcoa Motion to Dismiss Exhibit 1 Case 1:14-cv-00014-JPJ-PMS Document 100-1 Filed 05/31/17 Page 3 of 4 Pageid#: 1026 4 2004 (when Alcoa sold Stolle), without considering patents filed by other divisions of Alcoa, Stolle alone had at least 30 patents applications published between the date of issuance of the ‘179 Patent and the date that Alcoa sold Stolle on or about January 12, 2004. I affirm and declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. DATED: May 31, 2017. /s/ Jerry Artrip Jerry Artrip Opposition to Alcoa Motion to Dismiss Exhibit 1 Case 1:14-cv-00014-JPJ-PMS Document 100-1 Filed 05/31/17 Page 4 of 4 Pageid#: 1027 EXHIBIT A Case 1:14-cv-00014-JPJ-PMS Document 44-1 Filed 11/20/14 Page 1 of 3 Pageid#: 477 Opposition to Alcoa Motion to Dismiss Exhibit 2 Case 1:14-cv-0 14-JPJ-PMS Document 100 2 05 31 7 1028 -1- UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ABINGDON DIVISION ____________________________________ | JERRY ARTRIP, | Plaintiff, | | Case No. 1:14-cv-00014-JPJ-PMS v. | District Judge James P. Jones | Magistrate Judge Pamela Meade Sargent BALL CORPORATION | and ALCOA INC., | Defendants. | ____________________________________| DECLARATION OF JERRY ARTRIP I, Jerry Artrip, hereby declare as follows: 1. I am the Plaintiff in the above-captioned case. 2. I offer this Declaration in opposition to Alcoa’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6). 3. I have personal knowledge of the facts set forth in this Declaration. 4. From 1976 to 1996, I worked at the Bristol, Virginia plant that is now owned and operated by Ball Metal Beverage Container Corporation, a subsidiary of a subsidiary of the Defendant Ball Corporation. 5. When I was working at said plant, I observed that the coiled sheets of aluminum used to make metal can tops were always precut by Alcoa to fit the specific kind of can tops being produced. Different widths and thickness of aluminum sheets, with different alloys, are used for different types of can tops. Based on my experience, I believe that can tops made using my son’s inventions, the patents for which are asserted in the above-captioned case, are likewise Case 1:14-cv-00014-JPJ-PMS Document 44-1 Filed 11/20/14 Page 2 of 3 Pageid#: 478 Opposition to Alcoa Motion to Dismiss Exhibit 2 Case 1:14-cv-0 14-JPJ-PMS Document 100 2 05 31 7 1029 -2- made from specifically designed precut coiled sheets of aluminum stock. 6. I am over the age of 18 years and competent to testify in this matter. 7. I declare under penalty of perjury that the foregoing is true and correct. Dated: November 20, 2014 /s/ Jerry Artrip Jerry Artrip Plaintiff Case 1:14-cv-00014-JPJ-PMS Document 44-1 Filed 11/20/14 Page 3 of 3 Pageid#: 479 Opposition to Alcoa Motion to Dismiss Exhibit 2 Case 1:14-cv-0 14-JPJ-PMS Document 100 2 05 31 7 1030