Beer Barrel v. Deep Wood - MTD

7/25/2019 Beer Barrel v. Deep Wood - MTD

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Cary W. Brooks (pro hac vice pending)

Kenneth F. Brooks (pro hac vice pending)BrooksGroup

48685 Hayes Road

Shelby Township, MI 48315(586) [email protected]

[email protected]

Mark A. Miller, 9563

[email protected]

HOLLAND &HARTLLP

222 South Main Street, Suite 2200Salt Lake City, UT 84101

Telephone: (801) 799-5800

Facsimile: (801) 799-5700

Attorneys for Defendant Deep Wood Brew Products, LLC,

ManCan Universe, Inc., and ManCan Universe, LLC

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF UTAH, CENTRAL DIVISION

THE BEER BARREL, LLC

A Utah Limited Liability Company

Plaintiff,

v.

DEEP WOOD BREW PRODUCTS, LLC,

a Michigan Limited Liability Company;

MANCAN UNIVERSE, LLC, a MichiganLimited Liability Company; and MANCAN

UNIVERSE, INC., a Colorado Corporation,

Defendants.

MOTION TO DISMISS

Case No. 2:16-CV-00440-EJF

Magistrate Judge: Evelyn J. Furse

Defendants Deep Wood Brew Products, LLC, (Deep Wood), ManCan Universe, LLC,

and ManCan Universe, Inc. (Defendants), hereby move to dismiss with prejudice the action

and complaint brought by Plaintiff ,The Beer Barrel, LLC (Plaintiff) as follows:

Case 2:16-cv-00440-EJF Document 10 Filed 07/01/16 Page 1 of 20


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PARTIES

1. Defendant Deep Wood Brew Products is a Michigan based limited liability

company.

2. Defendant Deep Wood Brew Products is doing business as (d/b/a) ManCan

Universe, LLC, a Michigan based limited liability company, and ManCan Universe, Inc., a

Colorado corporation.

3. Plaintiff Beer Barrel is a Utah based limited liability company with its principle

place of business located in American Fork, Utah.

JURISDICTION AND VENUE

4. Jurisdiction is proper only as applied to Defendant Deep Wood Brew Products,

LLC, as the sole assignee of the relevant United States Patents D752839 and D735436 pursuant

to the Federal Declaratory Judgment Act, 28, U.S.C. 2201 (creation of remedy). Certain claims

arise under the Patent Code, 35 U.S.C. 1 et seq., and the Court also has jurisdiction under 28

U.S.C. 1331 (federal question) and 28 U.S.C. 1332 (diversity of citizenship) as well as 28

U.S.C. 1338 (patents).

STATEMENT OF FACTS

5. Deep Wood Brew Products d/b/a ManCan Universe is the sole owner and

assignee of U.S. Design Patent D752839 Mini-keg Growler Neck without Cap (Exhibit A) and

U.S. Design Patent D735436 Mini-keg Growler (Exhibit B). Exhibits C and D show the

official assignment of U.S. Design Patent D752839 and D735436, respectively.

6. Deep Wood Brew Products d/b/a ManCan Universe is a seller and distributer of

the Mini-keg Growlers and Mini-keg Growler Neck without Cap within the United States

including 64oz. and 128 oz. varieties of the Mini-keg Growler.



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7. Plaintiff has sold and made offers for sale within the United States of 64 oz. and

128 oz. varieties of the Mini-keg Growler covered by U.S. Design Patent D752839 Mini-keg

Growler Neck without Cap and U.S. Design Patent D735436 Mini-keg Growler on

Amazon.com and Plaintiffs own website, BeerBarrel.co.

8. Defendants products are not manufactured by Sino Dragon, as alleged by

Plaintiff, and from whom Plaintiff purchases the 64 oz. and 128 oz. varieties of the Mini-keg

Growler.

9. Defendants product designs were not supplied to Defendant by Sino Dragon, as

alleged by Plaintiff.

10. Sino Dragon has not patented its design in China under Chinese Patent

Application Number 201330531456.7, as alleged by Plaintiff.

11. Chinese Patent Application Number 201330531456.7 is owned by Zhangjiagang

Tongrun Machinery Co., LTD., not Sino Dragon as alleged by Plaintiff.

12.

Chinese Patent Application Number 201330531456.7 was filed on November 7,

2013 which can easily be determined from the face of the Patent. See Exhibit E which includes

correspondence with a China Patent Agent showing Application Number 201330531456.7 and

filing date of November 7, 2013.

13. U.S. Design Patent D752839 Mini-keg Growler Neck without Cap, owned by

Deep Wood Brew Products d/b/a ManCan Universe, was filed on November 4, 2013, three (3)

days prior to the filing date of Chinese Patent Application Number 201330531456.7.

14. U.S. Design Patent D735436 Mini-keg Growler owned by Deep Wood Brew

Products d/b/a ManCan Universe, was filed on November 4, 2013, three (3) days prior to the

filing date of Chinese Patent Application Number 201330531456.7.



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15. Upon information and belief, Plaintiff is aware that Deep Wood Brew Products

d/b/a ManCan Universes design patents D752839 and D735436 predate the filing date of

Chinese Patent Application Number 201330531456.7 as would be clear to anyone who examined

the three documents.

16. Upon information and belief, Zhangjiagang Tongrun Machinery Co., LTD filed

for Chinese Patent Application Number 201330531456.7 after Defendant had disclosed the

design to Zhangjiagang Tongrun Machinery Co., LTD and Chinese Patent Application Number

201330531456.7 is a derivation of Defendants design obtained directly or indirectly from

Defendant.

17. Upon information and belief, Sino Dragon, the manufacturer of Plaintiffs 64 oz.

and 128 oz. varieties of the Mini-keg Growler has incorrectly claimed ownership of Chinese

Patent Application Number 201330531456.7 and has misled Plaintiff into believing Sino Dragon

is the proper owner of Chinese Patent Application Number 201330531456.7.

18.

Upon information and belief, Plaintiff is aware or should have been aware that

Sino Dragon is not the true owner of Chinese Patent Application Number 201330531456.7.

19. Upon information and belief, Plaintiff is aware that United States Patent Law

utilizes a first to file system, and Chinese Patent Application Number 201330531456.7 has a

later filing date than Deep Wood Brew Products d/b/a ManCan Universes design patents

D752839 and D735436.

20.

Upon information and belief, Plaintiff is aware that Chinese Patent Law allows

for the filing of a design patent even where the individual or company entity is not the true

original inventor that was the first in the world to invent the patented subject matter.



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21. On or about January 21, 2016, Chris Muller, CEO of ManCan Universe sent the

Plaintiff an e-mail on behalf of Deep Wood Brew Products and ManCan Universe requesting that

Plaintiff cease sales of products that fall within the scope of D735436 and, at that time, pending

D752839, and at least products which fall within common law copyrights. Additionally, Mr.

Mueller informed Plaintiff of additional pending design patent applications and utility patent

applications. See Exhibit F.

22. On the same day, Mr. Mueller mistakenly forwarded a letter from BrooksGroup,

Defendants attorneys, to Plaintiff. Mr. Mueller mistakenly sent Plaintiff a copy of a letter

originally drafted by BrooksGroup on behalf of Deep Wood Brew Products to potential

investors. Mr. Muellers intent was to send additional notice to Plaintiff of infringement. See

Exhibit G.

23. On February 1, 2016, Justin James, attorney for Plaintiff, contacted Chris Mueller

and suggested that Mr. Mueller does not have common law copyright in the products in question.

Mr. James supported this argument by incorrectly citing common law copyright law from law

pre-Copyright Act of 1976 that is, Mr. James based his position on law that has been incorrect

for nearly 40 years. See Exhibit H.

24. On February 1, 2016, Justin James, attorney for Plaintiff, stated that Plaintiff does

not sell the ManCan 64 which As you are well aware this is a patent for your ManCan 64, a

Product that Mr. Frantz [Presumptive Owner of Beer Barrel] does not sell. Mr. James

concluded that Defendants attempts to contact Beer Barrel were to intimidate and extract

unearned money. See Exhibit H.

25. On February 12, 2016, Kenneth Brooks, an attorney for Defendant, e-mailed

Justin James, attorney for Plaintiff, including a letter requesting that Plaintiff cease sales of



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products that fall within the scope of D735436 and, at that time, pending D752839 and at least

products which fall within common law copyrights.

26.

The e-mail dated February 12, 2016 sent by Kenneth Brooks additionally included

a letter addressing Mr. James claims of non-infringement. Kenneth Brooks pointed out that Mr.

James assertions of non-infringement were incorrect. Firstly, Mr. James supported this

argument by incorrectly citing common law copyright law from law pre-Copyright Act of 1976

that is, Mr. James based his position on law that has been incorrect for nearly 40 years. Mr.

James also asserted that this is a patent for your ManCan 64, a product that Mr. Frantz does not

sell. To which Kenneth Brooks responded: We respectfully disagree. A U.S. design patent is

granted to provide legal protection regarding the ornamental design of an item, and not the

product itself. The ManCan 64 and ManCan 128 are, ornamentally speaking, identical. See

Exhibit I.

27. The e-mail dated February 12, 2016 sent by Kenneth Brooks additionally included

a proposed License Agreement under which Deep Wood Brew Products would have, at that time,

been willing to license the rights to sell products that fall within the scope of D735436 to

Plaintiff. Justin James, attorney for Plaintiff, stated Let me review and I will get back to

you. Thanks. However, Plaintiffs attorney ultimately never responded to the offered License

Agreement. See Exhibit J.

28. In an unrelated communication dated May 12, 2016, Defendants counsel e-

mailed Amazon.com to request Amazon cease sales of its products which infringe upon, at least,

U.S. Design Patent D735436. This e-mail indiscriminately identified Amazon webpages, that

Defendants counsel was aware of, and included products offered for sale and sold by Amazon

via numerous third-party retailers including retailers such as KING, Beer Barrel, and Weekend



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Brewer. These webpages all offered for sale 64 oz. mini-keg growlers within the scope of U.S.

design patents D752839 and D735436. The purpose of this e-mail was to inform Amazon that it

was selling products which may infringe upon, at least, U.S. Design Patent D735436 and that

Amazons offers for sale were potential infringement. Amazon promptly removed the items it

was offering for sale and notified the third-party retailers. See Exhibit K.

29. Neither Mr. James, nor Beer Barrel, responded to the offered License Agreement.

Mr. James and Beer Barrel did not cease sales of the infringing products and did not contact

Defendant until May 25, 2016, the date on which this suit was filed.

30. As of May 12, 2016, Defendants counsel was not aware of other Amazon

webpages offering the 128 oz. mini-keg growler or 64 oz. and 128 oz. growlers with carbonated

dispensing kit which are within the scope of U.S. design patents D752839 and D735436, and

therefore could not inform Amazon of the same.

31. Plaintiff has infringed upon, at least, U.S. Design Patents D752839 and D735436,

by selling and offering for sale products that fall within the scope of U.S. Design Patents

D752839 and D735436, which are owned by Defendants, Deep Wood Brew Products d/b/a

ManCan Universe.

32. Plaintiff continues to sell the infringing products on both Amazon.com as well as

Plaintiff's own website, beerbarrel.co. See Exhibit L.

APPLICABLE LAW

Prior to December 1, 2015 some jurisdictions only required notice pleadings consistent

with Form 18 for a complaint. However, the December 1, 2015 revisions to the Federal Rules of

Procedure eliminated Form 18thus making the Supreme Court cases of Twombley and Iqbal the

governing standard for pleadings. On motions to dismiss under Federal Rule 12(b)(6), a



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complaint must contain enough facts to state a claim to relief that is plausible on its face,

which requires the Plaintiff to nudge [its] claims across the line from conceivable to plausible.

Bell Atl. Corp. v. Twombley, 55 U.S. 544, 127 S. Ct. 1955, 1974 (2007). See, Alvarado v KON-

TV, L.L.C., 493 F.3d 1210, 1215 n.2 (10th

Cir. 2007); and Lane v. Simon, 485 F.3d 1182, 1186

(10th

Cir. 2007). Although the Court must accept all the well-plead allegations of the complaint

as true and must construe them in the light most favorable to plaintiff, Alvarado, 493 F.3d at

1215, the Court need not accept any unreasonable inferences or unwarranted deductions of fact

when ruling on a motion to dismiss. See Swanson v. Bixler, 750 F.2d 810, 813 (10th

Cir. 1984);

and Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th

Cir. 2007). Allegations of

conclusions or opinions are not sufficient where no facts are alleged by way of the statement of

the claim. Achcroft v Iqbal, 556 U.S. 662 (2009) holding that Rule 8(a) requires a case-initiating

pleading to state sufficient facts to make the claims plausible.

ARGUMENTS

Here, Defendants invoke Rule 12(b)(6) based on, at least, Plaintiffs complaint lacking

the requisite factual specificity and, consequently, for failure to state a claim upon which relief

can be granted.

A. The first count of the Complaint, Declaratory Judgement of Non-infringement

and Invalidity appears to allege, in a very vague manner, that

(i) Plaintiff did not and does not infringe on U.S. Design Patents D752,839

and D735,436, directly or indirectly, by inducement or contributory infringement,

literally or under the doctrine of equivalents; and

(ii) that U.S. Design Patents D752,839 and D735,436 are invalid under 35

U.S.C. 101, 102, 103, 112, 113, 115 and/or 116.



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Plaintiffs allegations under (i) and (ii) have no basis in the record and have not been

plead with factual sufficiency such that relief can be granted.

I. Plaintiffs claim of non-infringement should be dismissed for lackingsufficient factual specificity such that there is a failure to state a claim upon which

relief can be granted.

There is no set of facts set forth in the record, or otherwise, that support Plaintiffs claim

of non-infringement with respect to U.S. Design Patents D752,839 and D735,436. Indeed, a

defendant seeking to respond to plaintiffs conclusory allegations in the first count would have

little idea where to begin. Reading the complaint, it is abundantly clear that not only is

Plaintiffs First Count inconceivable, it is also implausible.

Plaintiff alleges, vaguely, that no infringement has occurred without any evidence

demonstrating said non-infringement. Plaintiff has not even identified which of its products do

not infringe and certainly has not provided specifics as to why each individual product does not

infringe. At best, Plaintiff reasons that Defendants patents cover only an individual product, the

ManCan 64 and therefore no infringement has occurred. See Exhibit I.

The Declaratory Judgment Act, 28 USC 2201, provides that the existence of an actual

controversy is an absolute predicate for subject matter jurisdiction. The Federal Circuit has

held that in the context of a patent action, an actual controversy exists where a patentee asserts

rights under a patent based on certain identifiedongoing or planned activity of another party, and

where that party contends that it has the right to engage in the accused activity without a

license. SanDisk Corp v. STMicroelectronics, Inc., 480 F.3d 1372, 1382 (Fed. Cir,

2007)(emphasis added). It is not surprising that district courts recently have made it clear that

declaratory judgment plaintiffs must identify an allegedly noninfringing product or method in

order to avoid dismissal. For example, in Wistron Corp. v. Phillip M. Adams & Assoc., No. 10-



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448, 2011 U.S. Dist. LEXIS 46079, at *38-39 (N.D. Cal. April 28, 2011) the court explained: It

is true that because Defendant threatened suit against the [declaratory judgment] Plaintiffs

over the patents sub judice, we should presume that the Defendants know which products

infringe. Nonetheless, without identifying the accused products, there simply is no way to

adjudicate an infringement claim. Absent identification of the products accused of infringement,

there is no concrete case or controversy of sufficient specificity to satisfy Twombley and Iqbal.

In this case, because Plaintiff has not even identified which of its products do not infringe and

certainly has not provided specifics as to why each individual product does not infringe,

Defendants are entitled to dismissal of the case.

Still further, contrary to Plaintiffs assertion, and as the Court well knows, a U.S. Design

Patent is not directed to any individual product but rather to provide legal protection regarding an

ornamental design, and not a single product itself. The products sold by Plaintiff are,

ornamentally speaking, identical, whether they be of the 64 oz. or 128 oz. variety. Aside from

being functionally different in terms of volume and capacity, the two products are ornamentally

identical and both fall within the scope of Issued Design Patents D735,436 and D752,839.

Furthermore, Plaintiff states no facts to support an allegation of non-infringement regarding the

64 oz. mini-keg growler that Plaintiff offers for sale on BeerBarrel.co.

Plaintiff provides no additional insight as to how a determination of non-infringement can

be made. No comparison has been made between the claims of U.S. Design Patents D735,436

and D752,839 and Plaintiffs products to demonstrate non-infringement. Similarly, no

comparison has been made between the figures of U.S. Design Patents D735,436 and D752,839

and Plaintiffs products to demonstrate non-infringement. However, Plaintiff alleges in

paragraph 12 of the Complaint that plaintiff and defendants both purchased the identical products



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in question from the same manufacturer, Sino Dragon. If that were the case, Plaintiff would

matter-of-factly be selling infringing products because Plaintiff has admitted purchasing the

same product that Defendants have patented in U.S. Design Patents D735,436 and D752,839.

Nonetheless, there remains no demonstration that supports Plaintiffs claim of non-

infringement with respect to U.S. Design Patents D752,839 and D735,436 nor have any facts

been set forth that could reasonably support such an assertion. Plaintiff supplied no information

or Exhibits demonstrating or even hinting at the who, what, where, and how their products differ

from the designs within U.S. Design Patents D735,436 and D752,839. Plaintiff has not set forth

a complaint containing enough facts to state a claim to relief that is plausible on its face, nor

has Plaintiff plead sufficient facts to nudge [its] claims across the line from conceivable to

plausible. Thus, Defendants respectfully request that the First Count of the Complaint be

dismissed pursuant to Rule 12(b)(6).

II. Plaintiffs claim of invalidity should be dismissed for having not been

plead with sufficient factual specificity such that there is a failure to state a claim

upon which relief can be granted.

Again, there is no set of facts set forth in the record, or otherwise, that support Plaintiffs

claim of invalidity with respect to U.S. Design Patents D752,839 and D735,436.

Plaintiff vaguely alleged that U.S. Design Patents D735,436 and D752,839 are invalid at

least under 35 U.S.C. 101, 102, 103, 112, 113, 115 and/or 116 but provided no specifics as to

how invalidity could or should be demonstrated.

With respect to 35 U.S.C. 101; Plaintiff has not plead or demonstrated any facts to

establish a plausible theory of how U.S. Design Patents D752,839 and D735,436 were not

invented by Deep Wood Brew Products or how U.S. Design Patents D752,839 and D735,436 are



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not a new or useful process, machine, manufacture, or composition of matter, or any new and

useful improvement thereof as required by 35 U.S.C. 101.


establish a plausible theory of how U.S. Design Patents D752,839 and D735,436 are not novel

under 35 U.S.C. 102. Similarly, Plaintiff has not plead or demonstrated any facts to establish a

plausible presence of any prior art that may establish non-novelty of U.S. Design Patents

D752,839 and D735,436. At best, Plaintiff mentions Chinese Patent Application

201330531456.7, which Plaintiff incorrectly identified as being owned by Sino Dragon, a

Chinese Manufacturer. In fact, Chinese Patent Application Number 201330531456.7 is owned

by Zhangjiagang Tongrun Machinery Co., LTD, from whom Defendant originally had a

manufacturing agreement with. Plaintiff has not identified prior art that identically discloses the

claimed subject matter of U.S. Design Patents D752,839 and D735,436 to invalidate the same

under 35 U.S.C. 102. Chinese Patent Application Number 201330531456.7 has a filing date of

November 7, 2012 while U.S. Design Patent D752839 Mini-keg Growler Neck without Cap,

owned by Deep Wood Brew Products d/b/a ManCan Universe, was filed on November 4, 2013,

and U.S. Design Patent D735436 Mini-keg Growler, owned by Deep Wood Brew Products

d/b/a ManCan Universe, was also filed on November 4, 2013. Both U.S. Design Patents

D752,839 and D735,436 were filed three (3) days prior to the filing date of Chinese Patent

Application Number 201330531456.7, which means Chinese Patent Application Number

201330531456.7 is not prior art under 35 U.S.C. 102 and cannot be used to invalidate U.S.

Design Patents D752,839 and D735,436. Any patent attorney with only minimal experience

would know from that face of the documents that Chinese Patent Application Number

201330531456.7 is not prior art under 35 U.S.C. 102 and cannot be used to invalidate U.S.



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Design Patents D752,839 and D735,436. Defendants would be entitled to Summary Judgment of

validity under 35 U.S.C. 102 of D752,839 and D735,436 in view of Chinese Patent Application

Number 201330531456.7 .

Plaintiff did not allege that Chinese Patent Application Number 201330531456.7 has an

earlier filing date than either U.S. Design Patents D752,839 or D735,436 or that it may or may

not be prior art and it is unclear what Plaintiff believes the significance Chinese Patent

Application Number 201330531456.7 holds with respect to these proceedings.

Having summarily demonstrated that Chinese Patent Application Number

201330531456.7 is irrelevant with respect to the validity of U.S. Design Patents D752,839 and

D735,436, Plaintiffs claims of invalidity crumble.


establish a plausible theory of how U.S. Design Patents D752,839 and D735,436 are not non-

obvious. Plaintiff has not plead or demonstrated any facts that suggest U.S. Design Patents

D752,839 or D735,436 were identically disclosed or rendered obvious in any prior art.

Additionally, Plaintiff has not plead or demonstrated any facts that would suggest that the

difference between the claimed subject matter and any prior art (which Plaintiff has not shown)

would have been obvious to one of ordinary skill in the art at the time the invention was made.

Again, any patent attorney with only minimal experience would know from the face of the

documents that Chinese Patent Application Number 201330531456.7 is not prior art under 35

U.S.C. 103 and cannot be used to invalidate U.S. Design Patents D752,839 and D735,436.

Defendants would be entitled to Summary Judgment of validity under 35 U.S.C. 103 of

D752,839 and D735,436 in view of Chinese Patent Application Number 201330531456.7 .



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establish a plausible theory of how U.S. Design Patents D752,839 and D735,436 lack a written

description of the invention and the manner and process of making and using it in such full,

clear, concise, and exact terms as to enable any person skilled in the art to which it pertains to

make and use the same.


establish a plausible theory of how U.S. Design Patents D752,839 and D735,436 have failed to

provide drawings where necessary. U.S. Design Patents D752,839 and D735,436 clearly depict

the designs at issue within the figures of the patents.


establish a plausible theory of how U.S. Design Patents D752,839 and D735,436 lack an oath by

Applicant (Defendant) stating that Applicant believes himself to be the original and first

inventor. At best, Plaintiff hints that perhaps a Chinese manufacturer had invented the designs at

issue prior to Defendants. However, again, Plaintiff has not plead or demonstrated any facts to

support that theory. In fact, Defendants have an established earlier filing date three (3) days

prior to that of Chinese Patent Application Number 201330531456.7.


establish a plausible theory of how U.S. Design Patents D752,839 and D735,436 may have been

made by two or more persons jointly. At best, Plaintiff hints that perhaps a Chinese

manufacturer had jointly invented the designs at issue prior to Defendants. However, again,

Plaintiff has not plead or demonstrated any facts to support that theory. In fact, Defendants have

an established earlier filing date three (3) days prior to that of Chinese Patent Application

Number 201330531456.7.



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Plaintiffs claim that an actual controversy exists as to infringement of Defendants

Patents and Plaintiff is entitled to a declaratory judgment that Plaintiff has not infringed

Defendants patents or that Defendants patents are invalid. However, Plaintiff has not plead or

demonstrated any facts to establish a plausible theory of non-infringement or invalidity of U.S.

Design Patents D752,839 and D735,436 as established above.

Plaintiffs stated in section 29 of the Complaint that Defendants conduct in this action is

exceptional and Defendants are entitled to their attorneys fees and costs pursuant to 35 U.S.C.

285 and 28 U.S.C. 1927. Defendants agree.

In summation, Plaintiff has not set forth a complaint containing enough facts to state a

claim to relief that is plausible on its face, nor has Plaintiff plead sufficient facts to nudge [its]

claims across the line from conceivable to plausible. Thus, Defendants respectfully request that

the First Count of the Complaint be dismissed pursuant to Rule 12(b)(6).

B. The second count of the Complaint, Tortious Interference with Current and

Prospective Economic Relations appears to allege, in a very vague manner, that Defendants

interfered with Beer Barrels economic relations by contacting Amazon.com to inform

Amazon.com that Defendants are entitled to exclude Amazon.com from making any offer for

sale of products falling within the scope of U.S. Design Patents D752,839 and D735,436.

There is no set of facts set forth in the record, or otherwise, that support Plaintiffs claim

of tortious interference with current and prospective economic relations by Defendants between

Beer Barrel and Amazon. Plaintiffs allegations have no basis in the record and have not been

plead with factual sufficiency such that relief can be granted. Reading the complaint, it is

abundantly clear that not only is Plaintiffs Second Count inconceivable, it is also implausible.



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I. Plaintiffs claim of tortious interference with current and prospective

economic relations should be dismissed for lack of jurisdiction.

Plaintiff, having failed to properly plead invalidity and non-infringement with sufficient

factual specificity such that there is a failure to state a claim upon which relief can be granted,

the Court no longer has supplemental jurisdiction over a Utah state law based claim of tortious

interference with current and prospective economic relations.

Additionally, Defendants contend that the claim of tortious interference with current and

prospective economic relations is not substantially related to the original claims of invalidity and

non-infringement and that the multiple Federal and State claims are not so related that they form

part of the same case or controversy. That is, the claim of tortious interference with current and

prospective economic relations does not arise from the same set of operative facts as the claims

of invalidity and non-infringement. Alternatively, the claim of tortious interference with current

and prospective economic relations does not arise from a common nucleus of operative fact as

the invalidity and non-infringement claims.

II. Plaintiffs claim of tortious interference with current and prospective

economic relations should be dismissed for having not been plead with sufficient

factual specificity such there is a failure to state a claim upon which relief can be

granted.

Under Utah Law, tortious interference with current and prospective economic relations

requires that Plaintiff show:

(1) the defendant intentionally interfered with the plaintiff's existing or potential

economic relations;

(2) for an improper purpose or by improper means;

(3) causing injury to the plaintiff.



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Here, Plaintiff rests on conclusory allegations with any factual specificity supporting the

allegations. Plaintiff has not shown (1) that Defendants predominant purpose was to injure

Plaintiff. Anderson Dev. Co. v. Tobias, 2005 UT 36, 116 P.3d 323. Plaintiff has not shown that

(2) Defendants actions were contrary to statutory, regulatory, or common law or violated an

established standard of a trade or profession. Pratt v. Prodata, Inc., 885 P.2d 786, 787 (Utah

1994). Plaintiff has not shown (3) any actual injury to Plaintiff connected to Defendants actions

other than a vague allegation of damage in an amount to be determined at trial.

Plaintiff alleges that Defendants contacted Amazon.com to allege that Plaintiff was

infringing upon Defendants Patents, and that Defendants knew and intended to immediately

prohibit Plaintiff from selling the products in question. Defendants disagree.

Defendants contacted Amazon.com, as is apparent from the attached Exhibit J, to

exercise Defendants right to notify potential infringers of the sale of products covered by U.S.

Design Patents D752,839 and D735,436. Defendants counsel contacted Amazon.com to request

Amazon cease sales of select products of the 64 oz. variety that Defendants counsel was aware

of, which infringe upon, at least, U.S. Design Patent D735436 and Defendants included a copy of

D735436. Defendants indiscriminately identified Amazon webpages showing products that

Defendants counsel was aware of, that happened to be of the 64 oz. variety of the mini-keg

growler offered for sale and sold by Amazon via numerous third-party retailers including

retailers such as KING, Beer Barrel, and Weekend Brewer. The purpose of contacting Amazon

was to inform Amazon that it was selling and offering for sale products which may infringe

upon, at least, U.S. Design Patent D735436. By contacting Amazon, Defendants did no more

than merely exercise Defendants rights to exclude others from making, using, or selling

products covered by, at least, U.S. Design Patent D735436. Amazon made a determination of



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the validity of Defendants claims and promptly removed select products from Amazon.com.

The removal of select Plaintiffs products from Amazon was based on Amazons decision and

Amazons action, not Defendants.

Despite Plaintiffs claim that Amazon has removed all of the products in question, that is

simply not the case. Amazon has only removed products relating to the 64 oz. variety of the

mini-keg growler as per Defendants request. Amazon did not remove any products relating to

the 128 oz. variety of the mini-keg growler or kits including the 128 oz. variety of the mini-

keg growler currently sold by Plaintiff because Defendants did not expressly request that

Amazon do so. Plaintiff continues to sell infringing products through Amazon.com in addition

to Plaintiffs online sales through its own website, beerbarrel.co. Therefore, no tortious

interference with economic relations has occurred and Plaintiff has not sufficiently plead that

such conduct has occurred because Plaintiff has not shown that (1) the defendants intentionally

interfered with the plaintiff's existing or potential economic relations; (2) for an improper

purpose or by improper means; and (3) causing injury to the Plaintiff.

In summation, Plaintiff has not set forth a complaint containing enough facts to state a

claim to relief that is plausible on its face, nor has Plaintiff plead sufficient facts to nudge [its]

claims across the line from conceivable to plausible. Thus, Defendants respectfully request that

the Second Count of the Complaint be dismissed pursuant to Rule 12(b)(6).

CONCLUSION

WHEREAS, Defendants, Deep Woods Brew Products, ManCan Universe, LLC, and

ManCan Universe, Inc., pray that the Court grant Defendants Motion to Dismiss all of Beer

Barrels claims with prejudice.



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DATED: July 1, 2016.

Respectfully Submitted,

/s/ Cary W. BrooksCARY W. BROOKSMichigan Bar # P38806 (pro hac vice pending)

KENNETH F. BROOKS

Michigan Bar # P79317 (pro hac vice pending)BrooksGroup

48685 Hayes Road

Shelby Township, MI 48315

(586) [email protected]

Filed by local counsel

/s/ Mark A. Miller

MARK A. MILLER, [email protected]

HOLLAND &HARTLLP

222 South Main Street, Suite 2200

Salt Lake City, UT 84101Telephone: (801) 799-5800

Facsimile: (801) 799-5700

Attorneys for Defendant

8926538_1.docx



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LIST OF EXHIBITS

EXHIBIT DESCRIPTION

A U.S. Patent No. D752,839

B U.S. Patent No. D735,436

C Assignment of Assignors Interest D752,839

D Assignment of Assignors Interest D735,436

E Correspondence with China Patent Agent re ApplicationNo. 201330531456.7

F Emails regarding pending design patent applications

G July 24, 2015 BrooksGroup letter

H February 1, 2016 letter from Hatch, James & Dodge

I February 12, 2016 letter from BrooksGroup

J Emails and Patent License Agreement

K May 12, 2016 BrooksGroup letter to Amazon.com

L June 2016 Amazon.com website



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Case 2:16-cv-00440-EJF Document 10-1 Filed 07/01/16 Page 1 of 5


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Documents

Beer Barrel v. Deep Wood - MTD