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LIQUI-BOX CORP. v. REID VALVE CO.

October 1, 1987

Liqui-Box Corporation, an Ohio corporation, Plaintiff,
v.
Reid Valve Company, Inc., a California corporation, Defendant


Bloch, District J.


The opinion of the court was delivered by: BLOCH

BLOCH, District J.

 Defendant has moved to dismiss the instant patent infringement action on the basis that venue is improper in this district. Venue in patent infringement actions is governed by 28 U.S.C. § 1400(b), which provides as follows:

 
Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.

 The plaintiff in a patent infringement action has the burden of establishing proper venue. Cordis Corporation v. Cardiac Pace Makers, Inc., 599 F.2d 1085 (1st Cir. 1979); Grantham v. Challenge-Cook Brothers, Inc., 420 F.2d 1182 (5th Cir. 1969). Where, as here, the defendant does not deny that it has a regular and established place of business within this district, the issue is reduced to whether the plaintiff can establish that the defendant has committed acts of infringement within the district. In determining whether venue may be premised upon the commission of such acts of infringement, the Court need not reach the merits of plaintiff's claim, however. Ingersoll-Rand Company v. Rockwell International Corporation, 420 F. Supp. 277 (S.D. Fla. 1976); Gunter & Cooke, Inc. v. Southern Electric Service Company, 256 F. Supp. 639 (M.D.N.C. 1966), aff'd., 378 F.2d 60 (1967). For the purposes of § 1400(b), acts of infringement are present when it is established that activities alleged to be infringing have taken place within the district where the suit is brought. Gunter & Cooke, Inc., supra.

 Plaintiff alleges that defendant has infringed Patent No. 270,136, issued to plaintiff on August 16, 1983, for the ornamental design of a plastic container for liquids. The complaint states that plaintiff manufactures 5-gallon, refillable, plastic water cooler bottles in accordance with the patented design. Attached to the complaint are two photographs, labeled Exhibit 2 and Exhibit 3. Each photograph purports to show plaintiff's patented bottle and a bottle manufactured by defendant, the design of which, plaintiff contends, infringes its patent.

 The manufacture or sale of an allegedly infringing article within a district constitutes an act of infringement within the meaning of the venue statute. Cordis Corporation, supra; T. P. Laboratories, Inc. v. Ormco Corporation, 389 F.2d 622 (7th Cir. 1968). Plaintiff states that "on information and belief," defendant has manufactured the allegedly infringing bottle shown in Exhibits 2 and 3 at a facility located in Leetsdale, Pennsylvania, and that sales of this bottle have been conducted in this district by defendant's manager, Kenneth Chin. Based upon these factual allegations, plaintiff contends that venue is proper within this district.

 Defendant has submitted an affidavit of Kenneth K. Chin, who states that he is the General Sales Manager and Operations Manager for defendant. Mr. Chin's affidavit establishes that the water bottle pictured in Exhibits 2 and 3 is what the defendant itself refers to as the "Reid No. 9 bottle." The affidavit further states that the only mold for the Reid No. 9 bottle is located in Texas, that all sales of the bottle have been generated from defendant's Texas office, and that no sales or sales solicitations for the bottle have taken place in Pennsylvania. In addition, the affidavit states that all Reid No. 9 bottles which have been sold or offered for sale have been manufactured exclusively in the Texas manufacturing plant.

 Plaintiff has failed to submit affidavits or other documentation in opposition to the averments of Mr. Chin's affidavit. This Court does not have the discretion to disregard facts established by uncontested affidavits and must accept the statements contained in the Chin affidavit as true. Consequently, the Court concludes that the plaintiff has failed to meet its burden of establishing proper venue, in that plaintiff is unable to establish that the defendant has committed acts of infringement in this district in connection with either the manufacture or the sale of the Reid No. 9 bottles. Cordis Corporation, supra.

 Plaintiff first raised the issue of the alleged infringement of its patent by the Design V bottle in a brief in response to defendant's motion to dismiss. No reference to the Design V bottle is made in plaintiff's complaint, or in other pleadings of the plaintiff which are of record in this action.

 Although Fed. R. Civ. P. 15(a) provides the plaintiff the opportunity to amend its pleading "once as a matter of course at any time before a responsive pleading is served," *fn1" plaintiff has not amended its complaint to state a claim for patent infringement based upon defendant's actions concerning the Design V bottle. Indeed, plaintiff expressly states that it does not intend to do so because "filing an amended complaint . . . would not tell defendant anything it does not already know and . . . would be premature because plaintiff does not yet know how many other infringing bottles the defendant may manufacture." (Plaintiff's response at 4.)

 The averments of Ms. Willson's affidavit are uncontradicted on the present record in this matter and presumably would suffice to establish that the defendant sells or has sold its Design V bottles within this district. Even given this fact, however, plaintiff has not properly established venue for the purposes of this action. The complaint fails to allege that the defendant has infringed plaintiff's patent by the manufacture of the Design V bottles; as established by Mr. Chin's affidavit, the factual allegations of plaintiff's complaint address only the Reid No. 9 bottle. Venue cannot be premised upon facts, e.g., ...


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