NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

BALL METAL BEVERAGE CONTAINER 

CORPORATION,

Plaintiff-Counterclaim Defendant-Appellee

v.

CROWN PACKAGING TECHNOLOGY, INC., 

CROWN CORK & SEAL USA, INC.,

Defendants-Counterclaim Plaintiffs-Appellants

v.

REXAM BEVERAGE CAN CO.,

Counterclaim Defendant-Appellee

______________________

2020-1212

______________________

Appeal from the United States District Court for the 

Southern District of Ohio in No. 3:12-cv-00033-WHR, 

Judge Walter H. Rice.

______________________

Decided: December 31, 2020

______________________

JOHN DAVID LUKEN, Dinsmore & Shohl LLP, Cincinnati, OH, argued for plaintiff-appellee and for counterclaim 

defendant-appellee. Also represented by LAUREN E.

Case: 20-1212 Document: 53 Page: 1 Filed: 12/31/2020
BALL METAL BEVERAGE CONTAINER v. CROWN PACKAGING 

TECHNOLOGY

2

INGEBRITSON, OLEG KHARITON, JOSHUA LORENTZ, BRIAN S.

SULLIVAN; JOHN M. WHEALAN, Chevy Chase, MD. 

 JOHN FRANK MURPHY, Baker & Hostetler LLP, Philadelphia, PA, argued for defendants-appellants. Also represented by DANIEL J. GOETTLE, ALAINA J. LAKAWICZ, AARON 

RABINOWITZ. 

 ______________________

Before WALLACH, TARANTO, and CHEN, Circuit Judges.

CHEN, Circuit Judge. 

Crown Packaging Technology, Inc. and Crown Cork & 

Seal USA, Inc. (collectively, Crown) appeal a decision of the 

United States District Court for the Southern District of 

Ohio granting summary judgment in favor of Rexam Beverage Can Co. and Ball Metal Beverage Container Corp. 

(collectively, Ball Metal) finding the claim terms “second 

point” in U.S. Patent No. 6,935,826 (’826 patent) and “transition”1 in U.S. Patent No. 6,848,875 (’875 patent) indefinite, thereby rendering the asserted claims invalid under 

35 U.S.C. § 112, ¶ 2.2 Because the district court erred in 

its indefiniteness analysis, we vacate the court’s summary 

1 The “second point” and “transition” both refer to 

the same location—the juncture where the chuck wall ends 

and the annular reinforcement bead begins. For ease of 

reading we only refer to “second point.” Additionally, for 

the sake of ease, quotation marks will be omitted from this 

term hereinafter.

2 Paragraph 2 of 35 U.S.C. § 112 was replaced by 

§ 112(b) when the Leahy-Smith America Invents Act (AIA), 

Pub. L. No. 112–29, 125 Stat. 284 (2011) took effect on September 16, 2012. Because the applications resulting in the 

’826 and ’875 patents were filed before that date, we refer 

to the pre-AIA version of § 112.

Case: 20-1212 Document: 53 Page: 2 Filed: 12/31/2020
BALL METAL BEVERAGE CONTAINER v. CROWN PACKAGING 

TECHNOLOGY

3

judgment of invalidity and remand to the district court in 

order for it to perform the correct analysis.

BACKGROUND

Aluminum beverage cans have two parts—the can 

body and the can end. The ’826 and ’875 patents3 describe 

a can end, which is attached to the can body using a seamer 

machine. ’826 patent col. 1 ll. 16–19. As shown in Figure 

4 below, the outer edge of the can end, the chuck wall, is 

angled with respect to a vertical line h2 extending from the 

bottom of an annular reinforcing bead 25 and perpendicular to the central panel 26, which purportedly saves money 

because less metal can be used without sacrificing can 

strength. Id. at col. 2 ll. 1–12, col. 4 ll. 16–24. The angle is 

shown in the figure at “Co.”

’875 patent at Fig. 4. The asserted claims require the angle 

“Co” to fall within a certain range. Claim 50 of the ’875 

patent, for example, recites that the angle is “between 

about 20o and about 60o.” Id. at claim 50. The claimed 

3 Because both patents have similar written descriptions, when citing to the written description, we cite only 

to the ’826 patent.

Case: 20-1212 Document: 53 Page: 3 Filed: 12/31/2020
BALL METAL BEVERAGE CONTAINER v. CROWN PACKAGING 

TECHNOLOGY

4

angle is defined by a first point and a second point (or a 

“first location” and a “transition”) that create a diagonal 

line, the angle of which is then calculated based on the diagonal line compared to a vertical line, as illustrated by h2

in the above figure. ’826 patent at claim 13. The first point 

is defined by the location where the wall extends from the 

peripheral cover hook, and the second point is defined by 

the location where the annular reinforcing bead extends 

from the lowermost end of the chuck wall. Id.

Claim 14 of the ’826 patent is representative of the 

claims of both patents. Claim 14 depends from claim 13

and the bracketed language quoted below is from claim 13.

14. [A metal can end for use in packaging beverages 

under pressure and adapted to be joined to a can 

body by a seaming process so as to form a double 

seam therewith using a rotatable chuck comprising 

first and second circumferentially extending walls, 

said first and second chuck walls forming a juncture therebetween, said can end comprising;

a peripheral cover hook, said peripheral cover book 

comprising a seaming panel adapted to be formed 

into a portion of said double seam during said 

seaming operation;

a central panel;

a wall extending inwardly and downwardly from 

said cover hook, a first portion of said wall extending from said cover hook to a first point on said 

wall, said first wall portion adapted to be deformed 

during said seaming operation so as to be bent upwardly around said juncture of said chuck walls at 

said first point on said wall, a second portion of said 

wall extending from said first point to a second 

point forming a lowermost end of said wall, a line 

extending between said first and second points 

Case: 20-1212 Document: 53 Page: 4 Filed: 12/31/2020
BALL METAL BEVERAGE CONTAINER v. CROWN PACKAGING 

TECHNOLOGY

5

being inclined to an axis perpendicular to said central panel at an angle of between 30o and 60o],

further comprising an annular reinforcing bead 

connected to said wall at said second point, said annular reinforcing bead connecting said wall to said 

central panel.

’826 patent at claim 14 (emphases added).

On February 1, 2012, Rexam4 filed an action for declaratory judgment seeking a ruling of noninfringement with 

respect to its can end and a determination of invalidity for

the ’826 and ’875 patents. J.A. 4282–91. On July 25, 2012,

Crown counterclaimed alleging infringement of the ’875 

and ’826 patents. JA. 4321–35. The asserted claims include claims 50, 52, 54, 56, 58, and 59 of the ’875 patent 

and claim 14 of the ’826 patent. On September 25, 2019, 

the district court granted summary judgment of invalidity

for the asserted claims. J.A. 6–36. The district court found 

the claims indefinite because the patents failed to reference 

any test for locating the second point and Crown’s expert 

had inconsistently presented at least three different tests 

for locating the second point. Id. at 33. 

Crown appeals the district court’s finding of indefiniteness and grant of summary judgment in favor of Ball 

Metal. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(1).

DISCUSSION

The ultimate conclusion that a claim is indefinite under 35 U.S.C. § 112, ¶ 2 is a legal conclusion which we review de novo. Eidos Display, LLC v. AU Optronics Corp., 

779 F.3d 1360, 1364 (Fed. Cir. 2015). “[A] patent is invalid 

for indefiniteness if its claims, read in light of the 

4 Ball Metal was later added as a party to the case 

after Ball Metal acquired Rexam.

Case: 20-1212 Document: 53 Page: 5 Filed: 12/31/2020
BALL METAL BEVERAGE CONTAINER v. CROWN PACKAGING 

TECHNOLOGY

6

specification delineating the patent, and the prosecution 

history, fail to inform, with reasonable certainty, those 

skilled in the art about the scope of the invention.” Nautilus Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 

(2014). 

We review a district court’s grant of summary judgment under the law of the regional circuit. Lexion Med., 

LLC v. Northgate Techs., Inc., 641 F.3d 1352, 1358 (Fed. 

Cir. 2011). The Sixth Circuit reviews an order granting 

summary judgment de novo. Savage v. Gee, 665 F.3d 732, 

737 (6th Cir. 2012). 

Crown argues that its expert, Martin J. Higham, has 

consistently used the same methodology to determine the 

location of the second point of the claimed invention over 

the course of various litigations. Appellant’s Br. at 51. We 

disagree. Mr. Higham has had a number of opportunities 

to explain how a skilled artisan would determine the 

claimed second point and has not been consistent in those

explanations. The method Mr. Higham uses in this litigation is the “across from the central panel test.” J.A. 5107, 

6523 (p. 156 ll. 11–19), 6213, 6250. This test calculates the 

second point by drawing a horizontal line from the top of 

the central panel to an intersection point with the chuck

wall. J.A. 6213. In a prior litigation between Crown and

Anheuser-Busch, however, Mr. Higham calculated the second point by identifying “a point along the chuck wall 

where the radius of the lower arcuate portion of the chuck 

wall deviates from” the chuck wall to become the annular 

reinforcing bead. J.A. 5129–30, 5133. Mr. Higham determined this deviation by first calculating the radius curvature of the chuck wall and then finding where the chuck 

wall begins to deviate from this curvature. Id. Finally, in 

a prior litigation with Ball Metal, Mr. Higham used the finite element analysis (FEA) method—a computer modeling 

method. J.A. 5123–25, 2001. 

Case: 20-1212 Document: 53 Page: 6 Filed: 12/31/2020
BALL METAL BEVERAGE CONTAINER v. CROWN PACKAGING 

TECHNOLOGY

7

The record evidence also shows, contrary to Crown’s argument, that Mr. Higham’s different methodologies do not 

necessarily result in selection of the same location for the 

second point. Unlike the “across from the central panel 

test,” the record shows examples of the other tests identifying a location other than the point across from the central 

panel as the second point. See J.A. 5133, 5107, 6658. We 

also note that Crown’s argument that the FEA test in the 

prior Ball Metal litigation was simply confirmatory of the 

“across the central panel” test is explicitly rebutted by Mr. 

Higham’s deposition testimony. J.A. 5123–25.

That the record evidence indicates that multiple different methodologies exist for measuring a parameter recited 

in a claim does not by itself render a claim indefinite. Under such circumstances, the relevant indefiniteness inquiry 

then becomes whether the differing methodologies lead to 

materially different results in defining the boundaries of 

the claim. We have explained that “the mere possibility of 

different results from different measurement techniques” 

does not render a claim indefinite. Takeda Pharms. Co. 

Ltd. v. Zydus Pharms. USA Inc., 743 F.3d 1359, 1366–67 

(Fed. Cir. 2014). In ruling that a possibility of different 

results did not render the claims indefinite in Takeda, we 

distinguished an earlier case in which held a claim to a process for making a product indefinite because there were 

several methods for measuring a claimed process parameter and “the particular method chosen was ‘critical to discerning whether [a product] has been produced by the 

claimed process.’” Id. at 1367 n.4 (quoting Honeywell Int’l, 

Inc. v. Int’l Trade Comm’n, 341 F.3d 1332, 1340 (Fed. Cir. 

2003)). In Teva, the claim included a specific measurement 

of a copolymer’s “molecular weight” and the specification 

did not indicate which of three known measurement methods used was used (Mp, Mw, or Mn) to determine the claimed 

molecular weight. Teva Pharms. USA, Inc. v. Sandoz, Inc., 

789 F.3d 1335, 1345 (Fed. Cir. 2015). Because it was unclear which measurement to use for the claimed molecular 

Case: 20-1212 Document: 53 Page: 7 Filed: 12/31/2020
BALL METAL BEVERAGE CONTAINER v. CROWN PACKAGING 

TECHNOLOGY

8

weight and those different measurements would yield different results, the claim “failed to inform with reasonable 

certainty those skilled in the art about the scope of the invention.” Id. Similarly, in Dow, we concluded that the 

claims were indefinite where there were multiple methods 

of measuring a claimed parameter “leading to different results without guidance in the patent or the prosecution history as to which method should be used.” Dow Chem. Co. 

v. Nova Chems. Corp. (Can.), 803 F.3d 620, 634 (Fed. Cir. 

2015) (emphasis added); see also Pacific Coast Bldg Prods., 

Inc. v. CertainTeed Gypsum, Inc., 816 F. App’x 454, 460 

(Fed. Cir. 2020) (affirming indefiniteness ruling where evidence demonstrated the existence of “at least two methods 

of converting the measurement between board thicknesses 

that produce significantly differing results”). Consistent 

with the purpose of the definiteness requirement, differences in measurement methods must matter for determining whether or not a claim limitation is met by those who 

might realistically be practicing the other claim limitations. Under our case law, then, a claim may be invalid as 

indefinite when (1) different known methods exist for calculating a claimed parameter, (2) nothing in the record 

suggests using one method in particular, and (3) application of the different methods result in materially different 

outcomes for the claim’s scope such that a product or 

method may infringe the claim under one method but not 

infringe when employing another method. Such a claim 

lacks the required degree of precision “to afford clear notice 

of what is claimed, thereby apprising the public of what is 

still open to them.” Nautilus, 572 U.S. at 909 (quoting 

Markman v. Westview Instruments, Inc., 517 U.S. 370, 373 

(1996) (internal quotation marks omitted)). 

Ball Metal relies on Amgen Inc. v. Hoechst Roussel, 

Inc., 314 F.3d 1313 (Fed. Cir. 2003), to support its argument that Crown’s claims are indefinite simply due to the 

lack of clarity in the patent or record as to which of the 

methods should be used to identify the second point on a 

Case: 20-1212 Document: 53 Page: 8 Filed: 12/31/2020
BALL METAL BEVERAGE CONTAINER v. CROWN PACKAGING 

TECHNOLOGY

9

can end. Appellee’s Br. 32–33. We disagree with this reading of Amgen. In Amgen, the claimed glycoprotein had 

“glycosylation which differs from that of human urinary 

erythropoietin [uEPO].” Amgen, 314 F.3d at 1340. In other 

words, “one must know what the glycosylation of uEPO is 

with certainty before one can determine whether the 

claimed glyocoprotein has a glycosylation different from 

that of uEPO.” Id. at 1341. The key pivotal defect with the 

claims was that, while the claim language “presupposes 

that the glycosylation of [uEPO] is a fixed, identifiable 

marker,” the evidence established uEPO produced variable 

glycosylation patterns. Id. Because the claimed standard 

for comparison was actually a variable, a skilled artisan 

would be unable to reliably determine whether the glycosylation of a particular glycoprotein differed from that of 

uEPO. Id. Although we noted that multiple techniques 

existed for detecting the differences in glycosylation between two glycoproteins, that observation was not the decisive factor in affirming the indefiniteness ruling. Amgen

thus is not inconsistent with our understanding of Teva

and Dow, discussed above.

The relevant portion of claim 13, which provides the 

context for dependent claim 14, states “a line extending between said first and second points being inclined to an axis 

perpendicular to said central panel at an angle of between 

30o and 60o.” ’826 patent at claim 13. The relevant inquiry 

is therefore whether the different methodologies used to 

identify the second point yield materially different angle 

ranges because the purpose of the claimed second point is 

simply for defining the angle, and it is ultimately the 

claimed angle range, not the location of the second point 

itself that matters for determining the scope of the claim 

and whether an accused product infringes it. For example, 

if the evidence established that any conceivable choice of a 

second point through the different methodologies used by 

Mr. Higham would always lead to an angle that was within 

30o to 60o for any operational can end, then whether 

Case: 20-1212 Document: 53 Page: 9 Filed: 12/31/2020
BALL METAL BEVERAGE CONTAINER v. CROWN PACKAGING 

TECHNOLOGY

10

different methods yield different second point locations 

would be immaterial to understanding the scope of claim 1

of the ’826 patent. On the other hand, if one of the methods 

for identifying the second point resulted in an angle outside 

of the claimed range, then that would be a materially difference, for the selection of a particular method would alter 

the result of the infringement inquiry. In that scenario, the 

lack of clarity as to which method to choose to identify the 

second point would have a material impact on the scope of 

the claim, rendering it indefinite.

The district court’s opinion states “[b]ecause all asserted claims require measuring the angle, from vertical, 

of a hypothetical line that connects two points, one of which 

is a second point/transition, and because the methods do 

not always produce the same results, the method chosen 

for locating the second point/transition could affect 

whether or not a given product infringes the claims.” J.A. 

33 (internal quotation marks omitted). This analysis is incomplete, however, because it does not establish in any 

meaningful way what material difference in angle range 

outcome, if any, exists among Mr. Higham’s different methodologies. We therefore must vacate the district court’s decision. We emphasize that on remand the district court 

should review Mr. Higham’s methodologies and analyze 

whether the methods lead to materially different results 

for the angle.

CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. For the foregoing reasons, we 

vacate the district court’s grant of summary judgment and 

remand for further proceedings consistent with this opinion.

VACATED AND REMANDED

COSTS

No costs.

Case: 20-1212 Document: 53 Page: 10 Filed: 12/31/2020