NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`JERRY ARTRIP,
`Plaintiff-Appellant
`
`v.
`
`BALL CORPORATION, BALL METAL BEVERAGE
`CONTAINER CORPPRATION, ALCOA, INC.,
`Defendants-Appellees
`______________________
`
`2018-1277
`______________________
`
`Appeal from the United States District Court for the
`Western District of Virginia in No. 1:14-cv-00014-JPJ-
`PMS, Judge James P. Jones.
`______________________
`
`Decided: May 23, 2018
`______________________
`
`JERRY ARTRIP, Bluff City, TN, pro se.
`
`
`
`JOHN DAVID LUKEN, Dinsmore & Shohl LLP, Cincin-
`
`nati, OH, for defendants-appellees Ball Corporation, Ball
`Metal Beverage Container Corporation.
`
` MARK MICHAEL SUPKO, Crowell & Moring, LLP,
`Washington, DC, for defendant-appellee Alcoa, Inc. Also
`represented by MARK A. KLAPOW.
`
`

`

`
`2
`
` ARTRIP v. BALL CORP.
`
`______________________
`
`Before DYK, O’MALLEY, and STOLL, Circuit Judges.
`STOLL, Circuit Judge.
`Jerry Artrip appeals the district court’s dismissal of
`his case. Mr. Artrip asks us to reverse the district court
`and remand so that he may file a fourth amended com-
`plaint charging Appellees Alcoa, Inc. (“Alcoa”), Ball Corp.,
`and Ball Metal Beverage Container Corp. (together,
`“Ball”) with patent infringement.
`We lack jurisdiction to review the dismissal of Mr. Ar-
`trip’s claims against Alcoa. And because we find that
`Mr. Artrip’s third amended complaint does not satisfy the
`legal pleading standard and that the district court did not
`abuse its discretion in denying leave for further amend-
`ments, we affirm the district court’s dismissal of
`Mr. Artrip’s claims against Ball with prejudice.
`BACKGROUND
`In 1996, Donald Artrip, Mr. Artrip’s son, obtained
`U.S. Patent No. 5,511,920, covering a press assembly and
`method for forming the lift-tab can ends used for opening
`beverage cans. Donald Artrip continued his work on lift-
`tab can end production techniques until his death in 2007,
`and obtained an additional seven patents for improve-
`ments
`related
`to
`this
`technology:
` U.S. Patent
`Nos. 5,660,516,
`6,022,179,
`7,063,492,
`7,234,907,
`7,237,998, 7,237,999, and 7,344,347. The patented as-
`semblies and systems changed the lift-tab can end assem-
`bly process and eliminated the need for a human tab
`press operator to turn and move the tabs between ma-
`chines.
`
`

`

`ARTRIP v. BALL CORP.
`
`3
`
`In 2014, Mr. Artrip, the patents’ assignee, filed a pro
`se complaint accusing Alcoa and Ball1 of infringing the
`’347 patent. A few months later, after obtaining counsel,
`Mr. Artrip filed a first amended complaint asserting that
`Alcoa indirectly infringed and Ball directly infringed all
`eight of the Artrip patents. In early 2015, Mr. Artrip filed
`a second amended complaint modifying these allegations.
`The second amended complaint accused Alcoa and
`Ball of infringing the ’179, ’492, ’907, ’998, ’999, and
`’347 patents. For each of the patents, the complaint
`alleged that Alcoa induced infringement because it sup-
`plied material, particularly “food grade coiled aluminum
`sheets with special coating” in knowing aid of direct
`infringement of the patents. J.A. 272–78, ¶¶ 5, 8, 11, 14,
`17, 20. And it alleged that Alcoa contributorily infringed
`because the aluminum met “required specifications for
`said invention” and “constitut[ed] a material part of the
`invention,” and Alcoa knew the aluminum “to be especial-
`ly made or especially adapted for use in an infringement.”
`Id. The complaint further alleged that the Alcoa alumi-
`num was not a staple article or commodity suitable for
`substantial noninfringing use. And the complaint stated
`that Ball directly infringed the patent by using a system
`“that embodies the patented invention.” J.A. 272–77,
`¶¶ 4, 7, 10, 13, 16, 19.
`Alcoa and Ball each moved to dismiss the second
`amended complaint for failure to state a claim on which
`relief could be granted, and the district court granted the
`motions. Applying the plausibility standard set forth by
`
`1 This complaint identified different Alcoa and Ball
`entities than those here on appeal. By the second amend-
`ed complaint, however, the parties had been finally identi-
`fied as Mr. Artrip and the Appellees. For simplicity, we
`do not distinguish between the earlier and later entities
`here.
`
`

`

`
`4
`
` ARTRIP v. BALL CORP.
`
`the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 678
`(2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
`570 (2007), the district court first concluded that
`Mr. Artrip’s claims for direct infringement were insuffi-
`cient because they did not identify the infringing Ball
`equipment or explain how Ball’s use of that equipment
`infringes any claim. The court determined that it “would
`be unjust to permit [Mr.] Artrip to move forward with a
`complaint that does not alert Ball as to what it has done
`wrong.” Artrip v. Ball Corp., No. 1:14-cv-00014-JPJ-PMS,
`2017 WL 3669518, at *4 (W.D. Va. Aug. 24, 2017). Never-
`theless, because Mr. Artrip’s second amended complaint
`had been filed before the Iqbal/Twombly plausibility
`standard clearly applied to direct infringement claims,
`the district court dismissed Mr. Artrip’s claims against
`Ball without prejudice.
` In doing so, it instructed
`Mr. Artrip that any amended complaint “must comply
`with the pleading requirements of Rule 8(a), Twombly,
`and Iqbal. In particular, it must plead specific facts
`supporting [Mr.] Artrip’s claims.” Id. at *5.
`The district court determined that Mr. Artrip’s indi-
`rect infringement claims were also deficient. It found that
`the second amended complaint did not plausibly allege
`facts supporting an inference that Alcoa knew of the
`patents, a prerequisite for indirect infringement claims.
`Relatedly, the district court found that the complaint did
`not allege facts supporting an inference that Alcoa specifi-
`cally intended to aid any direct infringement (as required
`for induced infringement) or knew its aluminum was
`made to be used in infringement (as required for contribu-
`tory infringement). It also found that Mr. Artrip’s second
`amended complaint did not show that the aluminum
`sheets allegedly supplied by Alcoa were not staple articles
`of commerce suitable for noninfringing use. Because the
`Iqbal/Twombly
`plausibility
`standard
`applied
`to
`Mr. Artrip’s indirect infringement claims when the second
`amended complaint was filed, the district court dismissed
`
`

`

`ARTRIP v. BALL CORP.
`
`5
`
`Mr. Artrip’s claims against Alcoa with prejudice, denied
`further leave to amend as to Alcoa, and ordered the clerk
`to terminate Alcoa from the case.
`A few weeks later, Mr. Artrip filed his third amended
`complaint. In that complaint, he alleged that Ball directly
`infringed five of the patents—the ’492, ’907, ’998, ’999,
`and ’347 patents. The complaint stated that “one or more
`of the machines at least at the Bristol Plant” infringed the
`patents because those machines were for forming and
`attaching lift-tabs to can ends and included each element
`of the independent claims. J.A. 324–35, ¶¶ 9, 11, 13, 15,
`17. In addition, the complaint identified Ball facilities
`other than the Bristol plant and stated that on infor-
`mation and belief, “one or more machines in each of Ball’s
`Operating Plants infringe one or more of the Patents-in-
`Suit.” J.A. 335–36, ¶¶ 19–20.
`Ball again moved to dismiss, arguing that Mr. Artrip
`did not state a claim on which relief could be granted.
`The district court found that the third amended complaint
`contained “minimal facts” and that the “conclusory”
`allegation that Ball infringed the patents by using “one or
`more machines” according to the claims did not meet the
`pleading standard. Artrip v. Ball Corp., No. 1:14-cv-
`00014-JPJ-JMS, 2017 WL 5037470, at *3 (W.D. Va.
`Nov. 3, 2017). Because it found that Mr. Artrip had
`“notice of the applicable pleading standard, had multiple
`opportunities to meet it, and has failed to do so,” the
`district court dismissed the third amended complaint with
`prejudice and denied leave to amend. Id. at *4. The same
`day, November 3, 2017, the court entered a final order
`dismissing Mr. Artrip’s action against Ball.
`Acting pro se, Mr. Artrip filed a notice of appeal, after
`which his former counsel withdrew from the case. The
`notice listed both Alcoa and Ball in the case caption, but it
`specifically designated the district court’s November 3,
`
`

`

`
`6
`
` ARTRIP v. BALL CORP.
`
`2017 order, which dismissed the third amended complaint
`against only Ball, as the subject of the appeal.
`DISCUSSION
`We review the grant of a motion to dismiss for failure
`to state a claim under the law of the regional circuit.
`Aatrix Software, Inc. v. Green Shades Software, Inc.,
`882 F.3d 1121, 1124 (Fed. Cir. 2018) (citing Content
`Extraction & Transmission LLC v. Wells Fargo Bank,
`Nat’l Ass’n, 776 F.3d 1343, 1346 (Fed. Cir. 2014)). The
`Fourth Circuit reviews such dismissals de novo. United
`States ex rel. Nathan v. Takeda Pharm. N. Am., Inc.,
`707 F.3d 451, 455 (4th Cir. 2013). De novo review re-
`quires an appellate court to look at the issues as though
`for the first time, with no deference to the trial court. See
`Appeal, Black’s Law Dictionary (10th ed. 2014) (defining
`“appeal de novo” as “[a]n appeal in which the appellate
`court uses the trial court’s record but reviews the evidence
`and law without deference to the trial court’s rulings”).
`We also review the denial of leave to amend a plead-
`ing under regional circuit law. See Chi. Bd. Options
`Exch., Inc. v. Int’l Sec. Exch., LLC, 677 F.3d 1361, 1374
`(Fed. Cir. 2012). When a district court denies leave to
`amend a complaint, the Fourth Circuit reviews that
`decision for an abuse of discretion. See Anand v. Ocwen
`Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014). A
`court abuses its discretion “if it relies on an error of law or
`a clearly erroneous factual finding.” E.E.O.C. v. Freeman,
`778 F.3d 463, 466 (4th Cir. 2015).
`
`

`

`ARTRIP v. BALL CORP.
`
`7
`
`I
`We first consider the district court’s dismissal of
`Mr. Artrip’s contributory infringement2 claims against
`Alcoa, and its denial of leave to amend.
`A
`As a threshold issue, Alcoa contends that we have no
`jurisdiction to review the district court’s order dismissing
`the second amended complaint and denying Mr. Artrip
`leave to amend his complaint as to Alcoa.3 We agree.
`We have jurisdiction only if Mr. Artrip filed a timely
`notice of appeal that complies with Rule 3 of the Federal
`Rules of Appellate Procedure. See Smith v. Barry,
`502 U.S. 244, 248–49 (1992) (“Rule 3’s dictates are juris-
`dictional in nature, and their satisfaction is a prerequisite
`to appellate review.”). Whether a notice of appeal meets
`
`2 Mr. Artrip now concedes that the induced in-
`fringement allegations should not have been included in
`the case. Appellant’s Br. 2–3.
`3 Ball does not expressly challenge jurisdiction but
`states in a footnote that Mr. Artrip’s notice of appeal was
`of uncertain effectiveness because he signed and filed it
`pro se before his counsel formally withdrew. An improp-
`erly signed notice of appeal does not impact our jurisdic-
`tion. See Becker v. Montgomery, 532 U.S. 757, 766 (2001)
`(finding signature on notice of appeal is required by
`Federal Rule of Civil Procedure 11, “render[ing] it nonju-
`risdictional”); Republican Nat’l Comm. v. Taylor, 299 F.3d
`887, 890 n.1 (D.C. Cir. 2002) (declining to dismiss appeal
`for technical violation of signature requirement); see also
`In re First Protection, Inc., 440 B.R. 821, 827 (B.A.P.
`9th Cir. 2010) (finding pro se litigant’s declared intention
`to participate in appeal cured signature defect). We
`therefore consider Mr. Artrip’s notice of appeal to have
`been properly filed.
`
`

`

`
`8
`
` ARTRIP v. BALL CORP.
`
`the standard imposed by Rule 3 “is a question of Federal
`Circuit law.” See Minn. Mining & Mfg. Co. v. Chemque,
`Inc., 303 F.3d 1294, 1308–09 (Fed. Cir. 2002).
`Among other requirements, Rule 3 states that a notice
`of appeal must “designate the judgment, order, or part
`thereof being appealed.” Int’l Rectifier Corp. v. IXYS
`Corp., 515 F.3d 1353, 1357 (Fed. Cir. 2008) (emphasis
`added) (quoting Fed. R. App. P. 3(c)(1)); see also Durango
`Assocs., Inc. v. Reflange, Inc., 912 F.2d 1423, 1425
`(Fed. Cir. 1990) (finding party “cannot now expand the
`scope of its specifically limited notice of appeal”). Our
`sister circuits have found that they do not have jurisdic-
`tion to review orders other than those identified in the
`notice of appeal. See, e.g., Doran v. J.P. Noonan Trans.,
`Inc., 853 F.3d 66, 69 (1st Cir. 2017) (finding “no basis to
`reverse an order” other than order designated in notice);
`In re GNC Corp., 789 F.3d 505, 512 (4th Cir. 2015) (dis-
`missing appeal as to order not identified in notice); Ste-
`phens v. Jessup, 793 F.3d 941, 943 (8th Cir. 2015) (finding
`no jurisdiction to review order dismissing first party
`where notice of appeal identified separate order only
`dismissing second party).
`Here, Mr. Artrip’s notice of appeal identifies only the
`district court’s November 3, 2017 order dismissing the
`third amended complaint against Ball. Alcoa is men-
`tioned only in the notice’s case caption. Although we
`construe notices of appeal liberally, Mr. Artrip’s notice
`does not indicate an intent to appeal the district court’s
`earlier order dismissing the second amended complaint
`and terminating Alcoa. See Smith, 502 U.S. at 248 (per-
`mitting courts to find compliance “‘with the rule if the
`litigant’s action is the functional equivalent of what the
`rule requires’” but explaining “[t]his principle of liberal
`construction does not, however, excuse noncompliance
`with the Rule. Rule 3’s dictates are jurisdictional” (quot-
`ing Torres v. Oakland Scavenger Co., 487 U.S. 312, 317
`(1988))). Mr. Artrip’s letter requesting Alcoa’s addition to
`
`

`

`ARTRIP v. BALL CORP.
`
`9
`
`the case caption in this appeal might indicate intent to
`appeal Alcoa’s dismissal, but that letter was filed after
`the deadline for appeal. “There is no doctrine that per-
`mits an appellant to ‘amend’ a notice so that the time for
`appealing is extended beyond the prescribed statutory
`period.” Durango, 912 F.2d at 1425.
`B
`In any event, even if we were to construe Mr. Artrip’s
`pro se notice of appeal to include all prior orders in the
`case, we would affirm the district court’s dismissal of
`Mr. Artrip’s contributory infringement claims and its
`denial of leave to amend. See, e.g., Elliott v. City of Hart-
`ford, 823 F.3d 170, 173 (2d Cir. 2016) (holding in the
`Second Circuit “a pro se appellant’s appeal from an order
`closing the case [constitutes] an appeal from all prior
`orders”).
`To survive a motion to dismiss, a plaintiff alleging
`contributory infringement must plausibly allege that the
`accused infringer knew of the asserted patents, see Com-
`mil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1926
`(2015), and must “plead facts that allow an inference that
`the components sold or offered for sale have no substan-
`tial non-infringing uses,” In re Bill of Lading Transmis-
`sion & Processing Sys. Patent Litig., 681 F.3d 1323, 1337
`(Fed. Cir. 2012).
`Mr. Artrip alleged that Alcoa supplies “food grade
`coiled aluminum sheets with special coating, that meet
`required specifications for [the patented] invention[s].”
`J.A. 272–78, ¶¶ 5, 8, 11, 14, 17, 20; see also J.A. 265, ¶ 9
`(alleging in declaration that aluminum sheets were
`“precut” to “[d]ifferent widths and thickness”). But these
`facts do not suggest that Alcoa knew of the Artrip patents
`or that the aluminum Alcoa supplied could not be used
`“for purposes other than infringement.” Bill of Lading,
`681 F.3d at 1338. While the complaint recited that Alcoa
`acted despite “knowing [the aluminum] to be especially
`
`

`

`
`10
`
` ARTRIP v. BALL CORP.
`
`made or especially adapted for . . . infringement” and that
`the aluminum is “a material part” of the claimed inven-
`tion that is not a “staple article” and is not “suitable for
`substantial noninfringing use,” J.A. 272–78, ¶¶ 5, 8, 11,
`14, 17, 20, the second amended complaint did not plausi-
`bly assert facts to suggest that Alcoa was aware of the
`patents or facts to suggest that the aluminum it supplied
`had no substantial noninfringing use. See Iqbal, 556 U.S.
`at 678 (“Threadbare recitals of the elements of a cause of
`action, supported by mere conclusory statements, do not
`suffice.”). We have considered Mr. Artrip’s remaining
`arguments, but we find them unpersuasive.
`C
`We would also affirm the district court’s denial of
`leave to amend as to Alcoa.
`The Federal Rules of Civil Procedure encourage courts
`to freely give leave to amend when justice so requires.
`See Fed. R. Civ. P. 15(a)(2). Nevertheless, where a party
`repeatedly does not cure defects in its pleadings, a court
`does not abuse its discretion by refusing to allow further
`amendments. See Foman v. Davis, 371 U.S. 178, 182
`(1962); David v. Alphin, 704 F.3d 327, 344 (4th Cir. 2013)
`(finding no abuse of discretion where district court dis-
`missed already amended complaint with prejudice).
`Mr. Artrip’s second amended complaint was his third
`complaint presented to the court and his second filed by
`counsel. Alcoa had already alerted Mr. Artrip to potential
`deficiencies in the contributory infringement allegations
`in his first amended complaint, including a lack of ade-
`quate support for his assertion that the aluminum provid-
`ed by Alcoa had no substantial noninfringing use. But
`Mr. Artrip was nevertheless unable to state a plausible
`claim for contributory infringement in his second amend-
`ed complaint. In these circumstances, we cannot say the
`district court abused its discretion in denying further
`leave to amend.
`
`

`

`ARTRIP v. BALL CORP.
`
`11
`
`II
`We now consider the dismissal of Mr. Artrip’s third
`amended complaint against Ball and the court’s denial of
`further leave to amend.
`
`A
`A motion to dismiss should be granted if a complaint
`does not contain “sufficient factual matter, accepted as
`true, ‘to state a claim to relief that is plausible on its
`face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
`at 570).4 To meet the plausibility standard, a plaintiff
`must plead “factual content that allows the court to draw
`the reasonable inference that the defendant is liable for
`the misconduct alleged.” Id. Merely pleading facts that
`are consistent with liability or stating legal conclusions is
`not sufficient. Id.
`We recently applied these requirements in Disc Dis-
`ease Solutions Inc. v. VGH Solutions, Inc., No. 17-1483,
`2018 WL 2011468 (Fed. Cir. May 1, 2018). The plaintiff
`in that case plausibly pled direct infringement by specifi-
`cally identifying the infringing products and alleging
`those specific products included each element of the
`patented claims. Id. at *3. The complaint provided the
`defendants fair notice of how they infringed—the plaintiff
`had named each of the three allegedly infringing products
`
`4 As of December 1, 2015, the plausibility standard
`applies to direct infringement claims. Lifetime Indus.,
`Inc. v. Trim-Lok, Inc., 869 F.3d 1372, 1376–77 (Fed. Cir.
`2017). Though this case has been pending for years,
`Mr. Artrip’s third amended complaint was filed on Sep-
`tember 14, 2017, after the district court directed him to
`comply with the plausibility standard and almost two
`years after that standard clearly came into effect. We
`therefore apply the plausibility standard to our review
`here.
`
`

`

`
`12
`
` ARTRIP v. BALL CORP.
`
`and had attached their photographs as exhibits to the
`complaint. Id.
` Here, Mr. Artrip’s third amended complaint described
`the patents and the parties and alleged that Ball infringes
`the ’492, ’907, ’998, ’999, and ’347 patents “by use of one or
`more of the machines at least at the Bristol Plant.”
`J.A. 324–34, ¶¶ 9, 11, 13, 15, 17. The third amended
`complaint did not otherwise identify the accused ma-
`chines, but it stated that these machines are systems for
`“forming and attaching lift-tabs to can ends” that include
`each element of each patent’s single independent claim,
`which the complaint recited. Id. The complaint also
`identified additional Ball packaging plants across the
`country, and alleged that on information and belief,
`machines in each of these plants similarly infringe one or
`more of the asserted patents.
`We agree with the district court that these allegations
`are insufficient to state a plausible claim for direct in-
`fringement. Even taken as true, the facts alleged in the
`third amended complaint are insufficient to state a plau-
`sible, rather than merely possible, claim for relief. See
`Iqbal, 556 U.S. at 678. Mr. Artrip’s attorney received
`access to Ball’s Bristol plant, toured the factory, and
`photographed Ball’s equipment. But the third amended
`complaint does not sufficiently identify, for example, by
`photograph or name, any of the particular machines that
`allegedly infringe other than by broad functional lan-
`guage. Unlike the plaintiff in Disc Disease, Mr. Artrip did
`not fairly identify the accused machines. The third
`amended complaint is thus insufficient; under any plead-
`ing standard, a complaint must put a defendant “on notice
`as to what he must defend.” McZeal v. Sprint Nextel
`Corp., 501 F.3d 1354, 1357 (Fed. Cir. 2007); see also
`Peralta v. Cal. Franchise Tax Bd., 673 F. App’x 975, 980
`(Fed. Cir. 2016) (affirming dismissal of complaint contain-
`ing only “[t]he boilerplate allegation that defendants
`infringe”) (nonprecedential).
`
`

`

`ARTRIP v. BALL CORP.
`
`13
`
`B
`Finally, we consider and affirm the district court’s
`
`denial of leave to amend the complaint as to Ball for a
`fourth time.
`
`A district court does not abuse its discretion where it
`denies leave after “repeated failure to cure deficiencies by
`amendments previously allowed.” Foman, 371 U.S.
`at 182. When the district court dismissed the direct
`infringement allegations in Mr. Artrip’s second amended
`complaint, it identified particular deficiencies in that
`complaint and instructed Mr. Artrip to plead specific facts
`supporting his infringement allegations going forward.
`As discussed above, the third amended complaint did not
`do so. In these circumstances, the district court did not
`abuse its discretion in denying further leave to amend.
`See Glaser v. Enzo Biochem, Inc., 464 F.3d 474, 480
`(4th Cir. 2006) (finding no abuse of discretion in denying
`leave to amend where plaintiff has “already set forth four
`iterations of their complaint”).
`CONCLUSION
`We have considered Mr. Artrip’s remaining argu-
`ments and find them unpersuasive. Accordingly, we
`affirm the decision of the district court.
`AFFIRMED
`COSTS
`
`Costs to Appellees.
`
`