NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1575

PETER CHRISTIAN ROPER, Plaintiff-Appellant,

v.
JO-ANN STORES, INC., Defendant-Appellee.

Peter Christian Charles Roper , of Douglas, Arizona, pro se. Thomas F. Zych , Thompson Hine LLP, of Clev eland, Ohio, for defendantappellee. Appealed from: United States District Cour t for the Central Dis trict of California Judge A. Howard MatzNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit
2006-1575 PETER CHRISTIAN ROPER, Plaintiff-Appellant,

v. JO-ANN STORES, INC., Defendant-Appellee.

______ ____________________ DECIDED: January 9, 2007

______ ____________________ Before LINN, DYK, and MOORE, Circuit Judges

. PER CURIAM. Peter Christian Roper (“Roper”) appeals from a final judgment of the United States District Court for the Central District of California (“district court”) dismissing his action for patent and copyright infringement against Jo-Ann Stores, Inc. (“Jo-Ann”). Roper v. Jo-Ann Stores, Inc. , No. 04-CV-09654 (C.D. Cal. May 6, 2005) (“ Civil Minutes ”). Because Jo-Ann’s motion to di smiss was granted as unopposed, and because the district court correctly dete rmined that Roper’s First Amended Complaint fails to state a claim upon which relief may be granted, we affirm

. DISCUSSION We review the district court’s dismissal of an action for failure to state a claim without deference. Univ. of W. Va. Bd. of Trs. v. Vanvoorhies , 278 F.3d 1288, 1295(Fed. Cir. 2002). “Dismissal is proper” when, “after drawing all re asonable inferences in the appellant's favor, i t is cl ear that the appellant can prov e no set of facts consistent with his claim that would entitle him to relief.” Id. Thus, contrary to Roper’s arguments , the Sevent h Amendment provides a right to a jury trial only where a plaintiff has demonstrated a triable issue of fact. Fidelity & De posit Co. of Md. v. United States , 187 U.S. 315, 319–320 (1902). For the reasons that follow, we c onclude that dismissal was
proper. 1. Failure to Oppose Jo-Ann’s Motion to Dismiss As a preliminary matter, we observe t hat under the Local Rules of the U.S. District Court for the Central Di s t rict of California, as under many courts’ local rules, a party who f a ils to oppose a motion may be deem ed to consent to the granting of that motion. Thus, even if Roper’s amended c o mp laint had been meritorious, the district court properly dismis sed it when he failed to file any oppos ition to Jo-Ann’s motion t o dismiss. This, standing alone, is sufficient grounds for affirmance. However, perhaps because Roper is proceeding pro se, the distri ct court also cons id ered the motion on the merits, and so shall we. 2. Patent Infri ngement Roper first alleges that Jo-Ann has infri nged his U.S. Patent No. 4,713,909 (“the ’909 patent”). “Literal infringem ent of a claim exists when eac h of the claim limitations ‘reads on,’ or in other words is found in, t he accused devic e.” Allen Eng ’ g Corp. v. Bartell Indus. , 299 F.3d 1336, 1345 (Fed. Cir. 2002). In this case, even if all the alleged facts are taken as true, they would not supp ort a finding that Jo-Ann’s accus ed product s infringe either independent clai m of the ’909 patent. Both cl aims of the patent require

2006-1575 2multiple “v ertically spaced” “sections” or “layers,” wherein plants can grow. The accused pr oduct is s i mply a block of rigid gr een foam, into which a customer can insert flowers in an arrangement. Even if we assume that Jo-Ann’s floral foam could, in principle, s upport growing plants, it complete ly fails to meet any of the structural limitations of the clai ms of the ’909 patent. It therefor e cannot infringe, and dismissal o f Roper’s pat ent infringement claims was proper. 3. Copyright Infringement Roper also alleges that Jo-Ann has infr inged his copyrights on various written works. As with his patent infringement claim, the connection between Roper ’s purported intellectual property and Jo-Ann’s activities is far too tenuous to support an infringement claim. Jo-Ann’s commercial adver tising for floral foam , expressing simple descriptions and images of flor al arrangements, cannot, as a matter of law, infringe the copyrights on Roper’s works on plant cultiv ation. To the extent that Roper’s complaint challenges not Jo-Ann’s advertising, but rat her alleged similarit i es between Jo-Ann’s floral foam and Roper’s ideas, we echo the district court’ s observation that “copyright protects only an author’s express i on of an idea and not the idea itself.” Landsberg v. Scrabble Crossword Game Play ers, Inc. , 736 F.2d 485, 488 (9th Cir. 1984). Dismiss al of the copyright claims was proper. 4. Discriminat ion In addition to his infringement claims, Rope r alleges that the di strict court (and possibly Jo-Ann) discriminated against him on t he basis of race. These allegations are without merit. The district court correct ly analyz ed Roper’s claims and properly

2006-1575 3concluded that they lacked merit; we have every confidence that the decis ion would have been the same regardless of his race. 5. Sanctions Finally, Jo-Ann argues that Roper’s appeal should be sanctioned as frivolous. Howev e r, although J o -Ann cites t o Fed. R. App. P. 38, it neglects to note that sanctions may only be awarded “after a separately f iled motion”—not after a request in a n appellate brief—or after “notice from the c ourt and reasonable opportunity to respond. ” Neither condition applies here, and we conclu de that action to impose sanctions is unwarranted. CONCLUS ION We have c onsidered Roper’s remaining ar guments and find them to be without merit. Accordingly, the district co urt’s dismissal is affirmed.

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