UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

LIFETIME INDUSTRIES, INC., ) 

) 

 Plaintiff ) 

) 

 vs. ) CAUSE NO. 3:13-CV-819 RLM 

) 

TRIM-LOK, INC., ) 

) 

 Defendant ) 

OPINION AND ORDER 

 Defendant Trim-Lok, Inc.’s motion to dismiss the second amended 

complaint is before the court. For the following reasons, the court grants the 

motion. 

 The second amended complaint, like its predecessors, contains claims for 

direct infringement, induced infringement, and contributory infringement of 

Lifetime Industries, Inc.’s ‘590 Patent (U.S. Patent No. 6,966,590) in violation of 

35 U.S.C. §§ 271(a), (b), and (c). Trim-Lok moved to dismiss because Lifetime 

Industries hasn’t cured the defects in its prior complaints. 

I. STANDARD OF REVIEW

 When considering a Rule 12(b)(6) motion to dismiss, the court construes 

the complaint in the light most favorable to the nonmoving party, accepts all 

well-pleaded facts as true, and draws all inferences in the nonmoving party's 

favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). But 

FED. R. CIV. P. 8(a)(2) “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To 

survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 

v. Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 

570); see also Morrison v. YTB Int’l, Inc., 649 F.3d 533, 538 (7th Cir. 2011); 

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). A claim is plausible if “the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 

Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. at 556); 

Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013); Swanson v. Citibank, N.A., 

614 F.3d 400, 404 (7th Cir. 2010) (“the plaintiff must give enough details about 

the subject-matter of the case to present a story that holds together.”). “[L]egal 

conclusions or conclusory allegations that merely recite a claim’s elements” are 

not entitled to any presumption of truth. Munson v. Gaetz, 673 F.3d 630, 632 

(7th Cir. 2012). See also Ashcroft v. Iqbal, 556 U.S. at 678 (“Threadbare recital 

of the elements of a cause of action, supported by mere conclusory statements, 

do not suffice.”). Twombly and Iqbal “require the plaintiff to provid[e] some 

specific facts to support the legal claims asserted in the compliant.” McCauley v. 

City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). The plaintiff “must give 

enough details about the subject-matter of the case to present a story that hold 

together,” and “may elaborate on [its] factual allegation so long as the new 

elaborations are consistent with the pleadings.” Id. 
II. DISCUSSION

 Briefly summarized, the second amended complaint alleges that: 

 (1) LTI owns a patent for a “two-part seal for a slide-out room” on a mobile 

living quarters (“RV”) – U.S. Patent No. 6,966,590 (the “‘590 patent”). [Doc. Nos. 

32 at ¶¶ 9-11 and 32-1 (Exh. A)]. 

 (2) The LTI seals are marketed under the name EK-Seal and KE-Seal, and 

“include a mounting portion and a separate bulb portion that is slidably 

connected to the mounting portion.” [Doc. No. 32 at ¶ 13]. 

 (3) Trim-Lok also makes, sells, and offers for sale “a two part seal” (the 

“Accused Product”) specifically for use with an RV with a slide-out room, without 

authorization by LTI. [Doc. Nos. 32 at ¶¶ 14, 20, 24, 26-27, 34 and 32-2 (Exh. 

B)].1

 

 (4) Trim-Lok “gained knowledge of LTI’s patent from at least one former LTI 

employee (Andrew Busch and/or Daryl Torrey) before June, 2013”. [Doc. No. 32 

at ¶¶ 17-19]. 

 (5) “In or around June 2013", Trim-Lok infringed on “at least one claim of 

the ‘590 patent”, in violation of 35 U.S.C. § 271(a), by “making, using, offering 

                                                            

1 The images of the “Accused Product” attached to the second amended complaint as 

Exhibit B appear to be hand drawings of the seal that Ed Ksiezopolski, a LTI 

representative, allegedly discovered on one of Forest River’s RV’s during a visit to 

Forest River’s Elkhart, Indiana manufacturing plant in June 2013. (See ¶ 16). In its 

response to the motion to dismiss, LTI provided actual photos of the seal, “to show 

what [could] be proven consistent with the Complaint.” (See Doc. Nos. 37 at p. 3 and 

37-1 at p. 2-6).
for sale, and selling” its two-part seal to at least one RV manufacturer, Forest 

River; “assist[ing] with the installation, direct[ing] the installation, or directly 

install[ing] [a Trim-Lok seal] on an RV at Forest River”; and “combining the 

Accused Product with RVs having slide-out rooms”, without authorization by LTI. 

[Doc. No. 32 at ¶¶ 14-15, 20, 24, and 26-33]. 

 (6) Ed Ksiezopolski, a LTI representative, discovered that a the Trim-Lok 

seal had been installed on one of Forest River’s RVs during a visit to Forest 

River’s Elkhart, Indiana manufacturing plant in June 2013. [Doc. No. 32 at ¶ 

16]. 

 (7) On July 12, 2013, LTI sent a cease and desist letter notifying Trim-Lok 

that: it was infringing on LTI’s ‘590 patent by “selling a seal that [was] covered 

by the ‘590 patent”; “further sales of the seal [would] constitute willful 

infringement”; and Trim-Lok was required to immediately discontinue “all 

infringing product” and to account for “all sales made to date of products 

practicing the inventions which is the subject of the ‘590 patent,” in order to 

mitigate further damage. [Doc. Nos. 32 at ¶ 21 and 32-3 (Exh. C)]. 

 (8) Trim-Lok had knowledge of the ‘590 patent and the alleged 

infringement “at least as early as” its receipt of the cease and desist letter. [Doc. 

No. 32 at ¶ 21] 

 (9) Trim-Lok continued to make, offer for sale, and sell the Accused 

Product after receiving the cease and desist letter. [Doc. No. 32 at ¶ 22]. 

 (10) Trim-Lok “knowingly induced and continues to induce” and 

“intentionally caused” Forest River to commit acts that directly infringe on the 
‘590 patent, in violation of 35 U.S.C. § 271(b), when it: (a) “suppl[ied] Forest River 

with the Accused Product; (b) “encourag[ed]” and “influenced” Forsest River to 

incorporate the Accused Product as a component in its RVs and to offer to sell 

or sell the Accused Product “in combination with RVs having slide-out rooms”; 

(c) “assisted in the installation [or] directed the installation [of] the Accused 

Product” on a Forest River RV; and (d) “solicited sales of [the] Accused Product 

to Forest River for making RVs with slide-out rooms.” [Doc. No. 32 at ¶¶ 38-46] 

[Doc. No. 32 at ¶¶ 38-42]. 

 (11) Trim-Lok made and adapted the Accused Product “specifically...for 

infringing the ‘590 patent” and, “through its influence and control”, knowingly 

and intentionally contributed, and continues to contribute, to Forest River’s 

infringement of the ‘590 patent, in violation of 35 U.S.C. § 271(c), by: (1) “making, 

using, offering for sale and selling the [Trim-Lok seal] to Forest River for inclusion 

on [its] RVs,” and (2) “assist[ing] in the installation and directing the installation 

of the [Trim-Lok seal]” on a Forest River RV.” [Doc. No. 32 at ¶¶ 48-56]. 

 (12) “[The] components of the [Trim-Lok seal] are not staple articles of 

commerce suitable for non-infringing use...[and] ha[ve] no use apart from sealing 

a slide-out room.” [Doc. No. 32 at ¶ 57]. 

 (13) “Forest River was aware of or participated in the aforementioned 

installation of the Accused Product on the Forest River RV.” [Doc. No. 32 at ¶ 

58].2

                                                            

2 The second amended complaint contains several allegations of continuing violations 

with respect to Trim-Lok’s dealings with Forest River and alleges that Trim-Lok also 
 Trim-Lok moved to dismiss the second amended complaint in its entirely 

under Fed. R. Civ. P. 12(b)(6), arguing that LTI hasn’t: (1) specifically identified 

which Trim-Lok product(s) allegedly infringe on the ‘590 Patent; (2) alleged 

sufficient facts to support a claim against Trim-Lok for direct infringement; or 

(3) adequately pleaded the scienter requirement for induced or contributory 

infringement. 

A. Direct Infringement

 Trim-Lok contends that LTI’s claim of direct infringement under 35 U.S.C. 

§ 271(a) doesn’t sufficiently identify which Trim-Lok seal was allegedly installed 

on the Forest River RV, or allege any facts from which direct infringement could 

be shown or inferred. 

 Although Trim-Lok’s description of the allegedly infringing device in the 

second amended complaint is less than ideal, it elaborated on those allegations 

in response to the motion to dismiss by providing photographs of the actual 

device and attaching a copy of an affidavit that was filed in a related case, TrimLok, Inc. v. Lifetime Industries, Inc., Case No. CV13-1141 JAK (C.D. Ca), in which 

Trim-Lok’s Marketing Manager, Dan Whitener, attests that: “He believe[d] all of 

the documents involved in the sales and marketing of what [he] believed to be 

the accused product [referenced in LTI’s July 12, 2013 cease and desist 

                                                            

induced and/or contributed to the infringement of the ‘590 patent by other RV 

manufacturers (see Doc. No. 32 at ¶¶ 22, 24, 36, 38, 48, and 54). Those allegations 

are conclusory and unsupported by any factual details, and so “are not entitled to any 

presumption of truth.” Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). See also

Ashcroft v. Iqbal, 556 U.S. at 678 (“Threadbare recital of the elements of a cause of 

action, supported by mere conclusory statements, do not suffice.”).
order][were] located in Buena Park, California.” [Doc. Nos. 37-1 and 37-2 (Exhs. 

D and E)]. While LTI can’t amend its complaint in a response to a motion to 

dismiss, it “may elaborate on [its] factual allegation so long as the new 

elaborations are consistent with the pleadings.” McCauley v. City of Chicago, 671 

F.ed 611, 616 (7th Cir. 2011). The court, accordingly, finds for purposes of the 

motion to dismiss that the second amended complaint provides a sufficient 

description of the infringing device to satisfy the notice requirements. But it 

doesn’t state a plausible claim for direct infringement by Trim-Lok. 

 35 U.S.C. § 271(a) provides that, “whoever without authority makes, uses, 

offers to sell, or sells any patented invention, within the United States . . . 

infringes the patent.” To state a plausible claim for direct infringement and 

survive dismissal, LTI must allege facts which if true, would show that Trim-Lok 

knew about the ‘590 patent in June 2013, and knew that it was infringing on 

that patent when it allegedly made, used, or sold the “patented invention”, 

without LTI’s authorization. 35 U.S.C. § 271(a); Aro Mfg. Co. v. Convertible Top 

Replacement Co., 377 U.S. 476, 483 (1964); McZeal v. Sprint Nextel Corp., 501 

F.3d 1354, 1357 (Fed. Cir. 2007). Despite repeated opportunities to amend its 

claims, it hasn’t done so. 

 The amended complaint alleges that Trim-Lok gained knowledge of the 

‘590 patent from at least one former LTI employee before June 2013. Trim Lok 

appears to concede in its reply that such knowledge might be imputed to the 

Trim-Lok “employee, representative, or agent” who assisted in, directed, or 

installed the seal on the RV at Forest River, but remains steadfast in its assertion 
that LTI hasn’t alleged any facts from which the court could infer that Trim-Lok 

“makes, uses, offers to sell, or sells [the] patented invention”, as required under 

35 U.S.C. § 271(a). 

 Trim-Lok contends that the “patented invention” in this case is a 

combination and/or method patent comprised of two components – a seal and a 

“mobile living quarters with a slide-out room”, and that it can’t be held liable for 

direct infringement, if it makes and sells only one of the two components. LTI 

disagrees, arguing that a determination on what the patent covers is a matter of 

claim construction to be decided at a later date, and that the complaint, as 

amended, adequately alleges that “[Trim-Lok’s] employees, representatives, or 

agents assisted with the installation, directed the installation, or directly 

installed the [Trim-Lok seal] on an RV at Forest River for use with a slide-out 

room.” 

 LTI appears to confuse liability for direct infringement based upon the sale 

or offer to sell a patented combination or method, 35 U.S.C. § 271(a), with 

contributory infringement liability based on an offer to sell a component, 

material, or apparatus, 35 U.S.C. § 271(c). Formal claim construction isn’t 

required to reach the conclusion that the ‘590 patent is a combination and/or 

method patent. See In re Bill of Lading Transmission and Processing System 

Patent Litigation, 681 F.3d 1323, 1339 (Fed. Cir. 2012) (rejecting a similar 

argument and holding that claim construction wasn’t a necessary predicate to 

determining whether the product had substantial non-infringing uses). The ‘590 

patent (which is attached to and incorporated in the second amended complaint) 
contains six claims and clearly states on its face that the invention is a 

combination of two components – a two-part seal and “a mobile living quarters 

having a slide-out room”. [Doc. No. 32-1]. Claim 1 of the patent states that the 

seal is used “in combination with a mobile living quarters having a slide-out 

room”; Claims 2-5 require “[t]he seal and mobile living quarters of claim 1"; and 

Claim 6 patents “[a] method of attaching a seal to a mobile living quarters having 

a slide-out room.” [Doc. No. 32-1]. LTI concedes the point in paragraphs 26, 39, 

and 42 of the second amended complaint, when it alleges that: (1) Trim-Lok 

infringed or induced infringement of the ‘590 patent “by making, using, offering 

for sale and selling the Accused Product on RVs, or by combining the Accused 

Product with RVs having slide out rooms”; “[t]he Accused Product as installed on 

an RV infringes at least one claim of the ‘590 patent”; and Trim-Lok induced 

Forest River to infringe by “includ[ing] the Accused Product as a component of 

their RVs, knowing that such combination would fulfill all elements of at least 

one claim of the ‘590 patent.” [Doc. No. 32]. 

 The complaint, as amended, alleges that Trim-Lok “makes, uses, and sells” 

only one of the two components the make up the “patented invention” [Doc. No. 

32 at ¶ 14]. Liability for direct infringement doesn’t attach, and dismissal of the 

direct infringement claim is appropriate. See Aro Mfg. Co. v. Convertible Top 

Replacement Co., 365 U.S. 336, 340 (1961) (where patent is for a combination 

only, petitioners’ manufacture and sale of one of the components is not a direct 

infringement under 35 U.S.C. 271(a)); Cimiotti Unhairing Co. v. American Fur 
Refining Co., 198 U.S. 399, 410 (1905) (“[N]o one is an infringer of a combination 

claim unless he uses all the elements thereof.”). 

B. Induced and Contributory Infringement

 Counts 2 and 3 of the second amended complaint assert claims of induced 

and contributory infringement under 35 U.S.C. §§ 271(b) and (c). To state a claim 

for induced and contributory infringement, LTI must allege facts plausibly 

showing that Trim-Lok’s employees, representatives, and agents knew that 

Forest River’s actions constituted infringement and specifically intended Forest 

River to infringe the ‘590 patent. 35 U.S.C. § 271(b) and (c); Commil USA, LLC v. 

Cisco Systems, Inc., U.S. , 135 S.Ct. 1920, 1926 (2015); Global-Tech 

Appliances, Inc. v. SEB S.A., 563 U.S. 754, 763 (2011); Aro Mfg. Co. v. 

Convertible Top Replacement Co., 377 U.S. 476, 488 (1964); In re Bill of Lading 

Transmission and Processing System Patent Litigation, 681 F.3d 1323, 1339 

(Fed. Cir. 2012). 

 LTI alleges that Trim-Lok gained knowledge of the ‘590 patent from at least 

one of LTI’s former employees (Andrew Busch and/or Daryl Torrey) “before June 

2013"; that Trim-Lok’s employees, representatives, or agents knew that Forest 

River would be infringing on the ‘590 patent when they assisted in or directed 

the installation of a Trim-Lok seal on a Forest River RV; and that intent to induce 

or contribute to Forest River’s acts of infringement can be inferred from TrimLok’s sales calls, visits, and installation of a Trim-Lok seal on the Forest River 

RV. [Doc. No. 32 at ¶¶ 38-46 and 48-56]. 
 Trim-Lok contends that LTI’s allegations regarding intent are conclusory, 

unsupported by any facts, and insufficient, and that its claims for induced and 

contributory infringement should be dismissed. The court agrees. 

 “In assessing whether it is reasonable to infer intent from statements or 

conduct, the Supreme Court recently made clear that a court must assess the 

facts in the context in which they occurred and from the standpoint of the 

speakers and listeners within that context.” In re Bill of Lading Transmission 

and Processing System Patent Litigation, 681 F.3d 1323, 1340 (Fed. Cir. 2012) 

(citing Matrixx Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309, 1324-25 (2011) 

(holding that plaintiffs adequately plead intent because the allegations, taken 

collectively and in context, gave rise to an “inference that [the defendant] elected 

not to disclose the reports of adverse events not because it believed they were 

meaningless but because it understood their likely effect on the market.”)). 

LTI hasn’t alleged any facts from which intent could be inferred in this 

case. It simply concludes that Trim-Lok acted “knowingly” and “intentionally”. 

LTI alleges that Trim-Lok had knowledge of the ‘590 patent and the alleged 

infringement “at least as early as” its receipt of the cease and desist letter [Doc. 

No. 32 at ¶ 21], but that occurred in July 2013, well after the infringing acts 

alleged in the complaint. Bare legal conclusions of intent aren’t entitled to a 

presumption of truth, Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). See 

also Ashcroft v. Iqbal, 556 U.S. at 678, and don’t state a plausible claim for which 

relief can be granted under 35 U.S.C. 271(b) or (c). 
 Accordingly, Trim-Lok’s motion to dismiss the second amended complaint 

[Doc. No. 34] is GRANTED, and the motions for ruling [Doc. Nos. 39 and 40] are 

DENIED as moot. 

 SO ORDERED. 

 ENTERED: September 30, 2016 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court