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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.

BALL METAL BEVERAGE CONTAINER CORP., a Colorado corporation, Plaintiff, v. CML&J, LLC, a Connecticut limited liability company, Defendant. ______________________________________________________________________________ COMPLAINT AND JURY DEMAND ______________________________________________________________________________ Plaintiff Ball Metal Beverage Container Corp. (Ball) for its Complaint and Jury Demand against Defendant CML&J, LLC (CML&J), states as follows: Introduction 1. This is an action for a declaratory judgment that Ball and its accused product do

not infringe, directly or indirectly, any valid claim of United States Patent No. 8,245,866 (the 866 patent) and that at least claims 13-16 of the 866 patent are invalid. Ball also asserts a claim for tortious interference against Defendant CML&J, who is the alleged owner of the 866 patent. The Parties 2. Plaintiff Ball is a corporation organized under the laws of the State of Colorado

with its corporate headquarters and principal place of business at 9300 West 108th Circle, Westminster, Colorado, 80021. 3. Defendant CML&J is a Limited Liability Company organized and existing under

the laws of Connecticut with its principal place of business at 20 Jennifer Lane, Cromwell, Connecticut, 06416. Upon information and belief, Defendant CML&J has no business operations other than the assertion and attempted licensing of its patent. Jurisdiction and Venue 4. This is an action for declaratory judgment that the claims of United States Patent

No. 8,245,866 are invalid and not infringed. This action is brought under the patent laws of the United States, 35 U.S.C. 101 et seq. and the Federal Declaratory Judgment Act, 28 U.S.C. 2201 et seq. 5. This Court has subject matter jurisdiction over this Complaint, which arises under

the patent laws of the United States, pursuant to 28 U.S.C. 1331 and 1338(a). Venue is proper in this Court under 28 U.S.C. 1391(b) because Defendant CML&J is subject to jurisdiction in this District, and therefore deemed to reside in this District; under 28 U.S.C. 1391(c) because a substantial part of the events giving rise to Balls claims occurred in this District; and under 28 U.S.C. 1400(b) because Defendant CML&J is subject to jurisdiction in this District, and therefore deemed to reside in this District. 6. This Court also has subject matter jurisdiction over this civil action pursuant to 28

U.S.C. 1332(a)(1) and (c)(1) because the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States. 7. This Court also has supplemental jurisdiction over Balls tortious interference

claim pursuant to 28 U.S.C. 1367(a) because the claim is so related to the declaratory judgment claims in the action within the Courts original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. 8. This Court has personal jurisdiction over CML&J because CML&J continues to

make objectively baseless and bad faith threats of asserting one or more claims of the 866 patent against Ballthe designer and manufacturer of the product at issue with its principal place of business in Coloradodespite Ball repeatedly providing detailed reasons why it does not infringe any of the asserted claims and why the asserted claims are invalid. Additionally, CML&J continues to prosecute one or more claims of its objectively baseless and bad faith patent infringement claims against MillerCoors, one of Balls largest customers, despite Balls detailed presentation of non-infringement and invalidity defenses to CML&J. Like Ball, its customer MillerCoors also has long standing and current ties to Colorado. Coors, a part of the MillerCoors joint venture, was founded in 1873 in Golden, Colorado and continues to operate the Coors Brewery in Golden, Colorado that still stands as one of the largest single-site breweries in the world. CML&Js repeated demands, threats and litigation in the face of clear evidence of non-infringement and invalidity constitutes objectively baseless and bad faith assertion of the 866 patent and tortious interference with the business relationship between Ball, the manufacturer of the accused product, and Balls customer MillerCoors. Background Facts & General Allegations 9. On information and belief, CML&J is the owner by assignment of the 866 patent,

which issued on August 21, 2012 from a patent application filed with the United States Patent and Trademark Office on August 25, 2006. According to the face of the 866 patent, it claims priority to provisional application number 60/711,197, which was filed on August 25, 2005. A true and accurate copy of the 866 patent is attached hereto as Exhibit 1. 10. In general terms, the claims of the 866 patent are directed to a container top (also

known as a can top or can end) with both a pull tab and a secondary vent opening, e.g., a first opening that allows a user to pour liquid from a container and a second opening, or vent, that

permits the ingress of air into the container while a user is pouring liquid from the container through the first opening. Figure 4 and Figure 8 of the 866 patent disclose two embodiments of the alleged invention and are reproduced below.

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The alleged inventions of the 866 patent are not novel, and are clearly anticipated

and/or obvious over prior art patents disclosing the same pour and vent configurations as early as 1969, and perhaps earlier. 12. For example, United States Patent No. 3,441,169 issued to Dunn, which was

assigned to Alcoa, described this configuration in 1969. Figure 3 and Figure 6 of Dunn disclose the same pour and vent configurations claimed by the 866 patent.

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Likewise, United States Patent No. 5,011,037 issued to Moen, which was

assigned to Coors Brewing Company of Golden Colorado, described this configuration in 1989. Figure 1 and Figure 5 of Moen disclose the same pour and vent configurations claimed by the 4

866 patent.

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United States Patent No. 5,285,919 issued to Recchia, described this configuration

in 1994. Figure 4 and Figure 5b of Recchia also disclose the same pour and vent configurations claimed by the 866 patent.

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CML&J filed a Complaint in the United States District Court for the District of

Connecticut on October 15, 2012 alleging patent infringement by MillerCoors. A true and correct copy of the Complaint is attached as Exhibit 2. 16. CML&Js Complaint alleges that MillerCoors has infringed, and continues to

infringe, one or more claims of the 866 patent by making, using, offering to sell and/or importing the Miller Lite and/or Miller Genuine Draft Punch Top Can product. (Exhibit 2 at 7-8.) 17. CML&J sent MillerCoors a letter on October 15, 2012, the same day it filed its

Complaint alleging patent infringement. CML&Js letter stated it is the owner of [t]he 866

patent [which] is generally directed to an innovative technology for a can top configured for creation of two openings. CML&Js October 15 letter to MillerCoors restated the allegations in its Complaint and identified at least independent claims 25 and 27 as infringed. The 866 patent does not contain either a claim 25 or 27, however, issued claims 13 and 15 correspond to claims 25 and 27 from the prosecution history. 18. The letter also stated that CML&J was not serving the Complaint on

MillerCoors as this time and invited MillerCoors to enter into licensing negotiations. A true and correct copy of CML&Js October 15, 2012 letter is attached hereto as Exhibit 3. 19. MillerCoors, through its company counsel in Colorado, notified Ball in Colorado

of CML&Js October 15 letter shortly after receipt. Ball designed and is the sole manufacturer of the accused can top that allegedly infringes. Pursuant to Ball and MillerCoors supply agreement, Ball is indemnifying and defending MillerCoors from CML&Js claims. 20. Ball responded to CML&Js October 15 letter on October 29, 2012. In that letter,

Ball notified CML&J that it was the sole manufacturer of the accused can top for its customer MillerCoors, and that Ball was indemnifying MillerCoors in the case. Balls October 29 letter also detailed reasons why Ball and MillerCoors do not infringe claims 1-12 of the 866 patent and asserted claim 15. 21. In addition to detailing reasons why the accused can top does not infringe the 866

patent, Balls October 29 letter also set forth in detail why asserted claim 13 and its dependent claim 14 were invalid as anticipated under 35 U.S.C. 102(b) by United States Patent No. 5,011,037 (the Moen 037 patent). Ball also explained in detail why asserted claim 15 was invalid as anticipated under 35 U.S.C. 102(b) by the Moen 037 patent, or in the alternative, as obvious under 35 U.S.C. 103 over the Moen 037 patent in view of the prior art church key

openings. 22. Balls October 29 letter warned CML&J that in view of the non-infringement and

invalidity positions identified by Ball, its continued assertion of the 866 patent constituted tortious interference with Balls customer relationship with MillerCoors. A true and correct copy of Balls October 29, 2012 letter is attached hereto as Exhibit 4. 23. CML&J responded to Balls October 29 letter by letter dated December 12, 2012

sent to Balls counsel in Colorado. CML&Js December 12 letter only addressed Balls arguments as to asserted claim 15, which it rejected. CML&Js December 12 letter also denied invalidity of claims 13 and 14 and stated that Ball conceded infringement of claims 13 and 14, however, Ball had never made any such concession. CML&Js letter invited Ball and/or MillerCoors to enter into licensing negotiations. A true and correct copy of CML&Js December 12, 2012 letter is attached hereto as Exhibit 5. 24. Ball responded to CML&Js December 12 letter on January 11, 2013. Balls

January 11 letter reiterated their previous invalidity and non-infringement positions. Furthermore, Ball explained that under CML&Js validity interpretation of claims 13 and 14 set forth in its December 12 letter, that there was no plausible argument that the accused can top could infringe claim 13 or 14 because there was no overlap between the rivet and tear panel. 25. Balls January 11 letter also set forth a second, and entirely new, reason why

asserted claims 15 and 16 were invalid based on a cursory inspection of the prior art. Balls January 11 letter included a detailed element-by-element claim chart demonstrating why claims 15 and 16 of the 866 patent were invalid as anticipated under 35 U.S.C. 102(b) by United States Patent No. 5,285,919 to Recchia. 26. Balls January 11 letter again warned CML&J that its continued assertion of the

866 patent, in view of the non-infringement and invalidity positions identified by Ball, constituted tortious interference with Balls customer relationship with MillerCoors. A true and correct copy of Balls January 11 letter is attached hereto as Exhibit 6. 27. CML&J counsel contacted counsel for Ball in Colorado on January 23, 2013 with

a settlement demand. CML&J did not base its demand on any reasonable royalty attributable to a container end sale. Instead, CML&J frivolously and groundlessly demanded $14 million in settlement (1% of allegedly $1.4 billion in beer sales). CML&J premised its demand on the entire market value rule but never responded to any of the substantive issues raised by Balls January 11, 2013 letter. Electronic mail correspondence confirming this demand is attached hereto as Ex. 7. 28. Under Fed. R. Civ. P. 4, CML&J had 120 days after filing to serve its Complaint.

CML&J finally served its Complaint on MillerCoors on February 11, 2013, 119 days after filing its Complaint. 29. Ball sent CML&J a third letter on February 18, 2013 attaching a drawing from

Balls engineers that unequivocally showed that, under CML&Js interpretation of claims 13 and 14, the accused can top cannot infringe claims 13 and 14 of the 866 patent because there is no overlap between the rivet and tear panel. 30. Balls February 18 letter also reiterated its non-infringement positions as to claims

15 and 16, and set forth a third reason claims 15 and 16 are invalid. Balls February 18 letter included yet another detailed element-by-element claim chart demonstrating why claims 15 and 16 of the 866 patent were invalid as anticipated under 35 U.S.C. 102(b) by United States Patent No. 3,441,169 to Dunn. 31. Responding to CML&Js settlement offer, Balls February 18 letter set forth why

CML&Js monetary demand of $14 million was frivolous and groundless in view of wellestablished Federal Circuit case law, specifically, that CML&J had no evidence that consumers buy beer because of a container top feature, rather than the fact they like beer. 32. Finally, Balls February 18 letter warned CML&J for the third time that its

continued litigation of this matter in view of the strong and detailed non-infringement and invalidity positions, coupled with CML&Js frivolous and groundless demand for $14 million constituted tortious interference with Balls customer relationship with MillerCoors. A true and correct copy of Balls February 18 letter is attached hereto as Exhibit 8. 33. CML&J responded to Balls February 18 letter by letter dated February 26, 2013

sent to Balls counsel in Colorado. CML&Js February 26 letter ignored the drawing from Balls engineers which unequivocally showed that the accused can top cannot infringe claims 13 and 14 of the 866 patent because of the lack of overlap between the rivet and tear panel. Instead, CML&Js letter argued that the commercially available accused can top was inconsistent with the drawing from Balls engineers. To support its frivolous infringement argument, CML&J provided pictures of the accused can top with the pull tab remaining on the rivet and tilted to obscure the clear lack of overlap between the rivet and tear panel. 34. CML&Js February 26 letter also stated CML&Js position concerning the alleged

invalidity of claims 13-16 over the three different prior art references Ball identified and why it believes it is entitled to damages based on the entire market value rule. A true and correct copy of CML&Js February 26 letter is attached hereto as Exhibit 9. 35. Ball responded to CML&Js February 26 letter on March 1, 2013. Balls March 1

letter clearly set forth how the drawing from Balls engineers was consistent with the commercially available accused can top and how no infringement of claims 13 and 14 can exist

because there is no overlap between the rivet and tear panel. The side-by-side comparison is below.

No Overlap 36.

No Overlap

Balls March 1 letter also explained why CML&Js characterization of the prior

art Ball identified was inconsistent with CML&Js own patent and the prior art disclosures and why the identified prior art clearly anticipates or renders obvious claims 15 and 16 of the 866 patent. 37. Finally, Balls March 1 letter explained why CML&Js interpretation of the

entire market value rule was misplaced because it would require, among other things, evidence that consumers buy beer in the first place because of a vent feature. Balls March 1 letter warned CML&J for the fourth time that its continued litigation of this matter in view of the strong and detailed non-infringement and invalidity positions, coupled with CML&Js frivolous and groundless demand for $14 million constituted tortious interference with Balls customer relationship with MillerCoors. A true and correct copy of Balls March 1 letter is attached hereto as Exhibit 10. 38. Between October 15, 2012 and March 1, 2013 Ball provided CML&J detailed 10

evidence why the accused can top does not infringe any of asserted claims 13-16, including a Ball drawing and digital pictures of the can top clearly establishing why there is no overlap between the rivet and tear panel as required by claims 13-14. 39. During this time Ball has also provided CML&J with three separate and distinct

references that invalidate claims 13-16 under 35 U.S.C. 102(b) or render these claims obvious under 35 U.S.C. 103(a). Ball provided detailed, claim-element-by-claim element analysis as to why each of the asserted claims is invalid. The prior art Ball relies on was not considered by the United States Patent and Trademark Office during prosecution of the 866 patent. In fact, on information and belief, CML&J never submitted a single prior art reference to the United States Patent and Trademark Office during the prosecution of the 866 patent, despite the fact that one of the named inventors was also one of the prosecuting attorneys from the same law firm that filed the litigation against MillerCoors. 40. Over the course of the last four months, Ball has warned CML&J on four separate

occasions that its continued litigation against MillerCoors is objectively baseless and in bad faith given the clear non-infringement and invalidity positions Ball identified, and that CML&Js actions constitute tortious interference with Balls relationship with its customer MillerCoors. 41. Balls October 29, 2012 letter to CML&J identified the contractual relationship

between Ball and MillerCoors, namely that Ball is the designer and manufacturer of the accused can top and would be indemnifying its customer MillerCoors. On information and belief, CML&J is aware of the contractual relationship between Ball and MillerCoors. 42. Ball has continually warned CML&J that its bad faith assertion of the 866 patent

is interfering with Balls business and contractual relationship with its customer MillerCoors. CML&J has failed to heed Balls warnings and continues to assert and threaten the assertion of

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the 866 patent against Ball and MillerCoors. 43. CML&Js continued assertion and threats of assertion are making Balls

performance of its contract with MillerCoors more expensive and burdensome. For example, Ball is spending unnecessary time, money and resources investigating CML&Js baseless claims, identifying prior art and accused can top design documents, communicating with its customer MillerCoors, and communicating with its attorneys and CML&J, as well paying for the defense of MillerCoors. In addition, Ball must deal with the stigma and negative public perception of having a baseless patent infringement suit pending against its products. CML&Js continued objectively baseless and bad faith assertion and threats of assertion of patent infringement amount to improper conduct in view of the clear and multiple non-infringement and invalidity positions Ball has provided CML&J. On information and belief, CML&Js continued assertion of the 866 patent is an intentional act to disrupt the business and contractual relationship between Ball and its customer MillerCoors, which disruption has occurred. Claim I: Declaration of Non-Infringement of U.S. Patent No. 8,245,866 44. Ball incorporates by reference herein the allegations of paragraphs 1 through 43

of this Complaint. 45. Ball has not infringed, induced infringement of, or contributed to the infringement

of any valid, properly construed claim of the 866 patent, nor does its accused can top infringe, induce infringement of, or contribute to the infringement of any valid, properly construed claim of the 866 patent. 46. The threat of assertion of one or more claims of the 866 patent against Ball and

the continued assertion of one or more claims of the 866 patent against Balls customer MillerCoors, despite the non-infringement of the claims of the 866 patent, makes this an

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exceptional case under 35 U.S.C. 285. Claim II: Declaration of Invalidity of U.S. Patent No. 8,245,866 47. Ball incorporates by reference herein the allegations of paragraphs 1 through 46

of this Complaint. 48. The claims of the 866 patent are invalid for failure to comply with the conditions

of patentability set forth in 35 U.S.C. 102, 103 and 112. 49. The threat of assertion of one or more claims of the 866 patent against Ball and

the continued assertion of one or more claims of the 866 patent against Balls customer MillerCoors, despite the invalidity of the claims of the 866 patent, makes this an exceptional case under 35 U.S.C. 285. Claim III: Tortious Interference 50. Ball incorporates by reference herein the allegations of paragraphs 1 through 49

of this Complaint. 51. A valid contract exists between Ball and MillerCoors related to the manufacture

and supply of the accused can tops. 52. On information and belief, CML&J knew or reasonably should have been aware

of the contract. 53. CML&Js objectively baseless and bad faith assertion of one or more claims of

the 866 patent against MillerCoors is an intentional act causing Balls performance of the contract to be disrupted and/or become more expensive and burdensome. 54. The performance of Balls contract with MillerCoors has been disrupted and/or

become more expensive and burdensome. 55. CML&Js interference with Balls contract with MillerCoors has caused Ball

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damages as a result. Jury Trial Demand 56. Ball demands a trial by jury on all issues so triable pursuant to Rule 38 of the

Federal Rules of Civil Procedure. Prayer For Relief Wherefore, Ball prays for judgment as follows: 1. 2. That this Court declares that United States Patent No. 8,245,866 is invalid; That this Court declares that Ball and its customer MillerCoors do not infringe

any valid claim of United States Patent No. 8,245,866 and that the accused product does not infringe any valid claim of United States Patent No. 8,245,866; 3. Judgment in favor of Ball and against Defendant CML&J for tortious interference

and that Ball is awarded its damages; 4. 5. That Ball is awarded its reasonable attorneys fees and costs; and That Ball is granted such other and further relief this Court deems just and proper

under the circumstances.

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Dated: March 15, 2013

Respectfully Submitted, By: /s/ Peter A. Gergely Peter A. Gergely Ryan J. Fletcher Merchant & Gould, P.C. 1050 Seventeenth Street Suite 1950 Denver, CO 80265-0100 Telephone: +1 303 357 1670 Facsimile: +1 303 357 1671 pgergely@merchantgould.com rfletcher@merchantgould.com Attorneys for Plaintiff Ball Metal Beverage Container Corp.

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