Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Desert Extrusion Corp., an Arizona) ) corporation, ) ) Plaintiff, ) ) vs. ) ) K2, Inc., a California corporation;) Shakespeare Company Monofilament) ) Division, a division of K2, Inc., ) ) Defendants. ) )

No. CV 02-2180-PHX-JAT ORDER

Pending before the Court are Plaintiff Desert Extrusion Corp.'s: (1) "Motion for 18 Summary Judgment on Defendants' Section 102 Defenses" (Doc. #69); and (2) Plaintiff's 19 "Motion for Summary Judgment of Patent Infringement" (Doc. #75). Defendants K2, Inc., 20 and Shakespeare Company Monofilament Division (collectively, "Defendants"), have filed 21 Responses in opposition to both Motions (Docs. #78, #82), and Plaintiff has filed Replies 22 (Docs. #80, #84). For the following reasons, the Court will grant summary judgment in favor 23 of Plaintiff on Defendants' Section 102 defenses, and will grant in part, and deny in part, 24 Plaintiff's Motion for Summary Judgment of Patent Infringement. 25 26 27 28
Case 2:02-cv-02180-JAT Document 86 Filed 09/23/2005 Page 1 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Procedural History

Background

Plaintiff owns United States Patent Number 6,109,005 (the '005 Patent") entitled, "Method of Packaging a Coiled Trimmer Line." The '005 Patent was issued on August 29, 2000, and describes a method and apparatus for packaging coiled nylon copolymer trimmer line by making a package of plastic material that is melt bonded, and then winding trimmer line into the package through the backing. Defendants manufacture and sell string trimmer line products. In its Complaint, Plaintiff alleges that in manufacturing two trimmer line packages, Defendants have unlawfully infringed on the '005 Patent. (Doc. #1.) In November 2004, following a hearing pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), the Court issued an Order construing certain disputed claims in the '005 Patent. (Doc. #65.) Subsequently, in February 2005, Plaintiff moved for summary judgment on Defendants' Section 102 defenses and on Plaintiff's patent infringement claim. Both Motions are now before the Court. II. The Patented Invention The '005 Patent contains four claims. Claim 1 is an independent claim; claims 2, 3, and 4 are dependant from claim 1. Specifically, the '005 Patent provides: What is claimed is: 1. A method of packaging coiled plastic trimmer line including the steps of: placing a pre-formed plastic container having an opening, with an outwardly-extending flange about the opening thereof, on a backing sheet of plastic material having an aperture formed therein, with the flange of said preformed plastic container engaging the sheet; heat-bonding the flange of the pre-formed plastic container to the backing sheet to form a melt-seal of the flange with the backing sheet; and winding plastic trimmer line having a range of diameter from 0.050' to 0.155' through said aperture into said opening of the pre-formed plastic container into a coil, having approximately one twist per coil, after the flange thereof is bonded to the backing sheet. 2. The method according to claim 1 wherein the preformed plastic container and the backing sheet are made of thermoplastic material, and wherein the step of bonding comprises the step of melting together, under pressure, the -2Case 2:02-cv-02180-JAT Document 86 Filed 09/23/2005 Page 2 of 12

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plastic material of the flange and the region of the backing sheet contacted by the flange to cause a melt-fusion of the flange with the sheet. 3. The method according to claim 1 wherein the bonding of the flange of the pre-formed plastic container to the backing sheet is effected by ultra-sonic welding. 4. The method according to claim 1 wherein the step of bonding the flange of the pre-formed plastic container to the backing sheet is effected by the application of heat and pressure between the flange and the backing sheet to cause a melt seal of the plastic of the flange with the plastic of the backing sheet. (Plaintiff's Statement of Facts ex. 1, '005 Patent, column 8, lines 20-52.) In its Order

8 Construing Claims, the Court interpreted the terms: (1) "backing sheet of plastic"; (2) "heat9 bonding the flange of the pre-formed plastic container to the backing sheet to form a melt 10 seal of the flange with the backing sheet"; and (3) "winding plastic trimmer line . . . into a 11 coil, having approximately one twist per coil." (Doc. #65.) The Court construed the term 12 "backing sheet" to mean a flat piece of plastic material opposite the front pre-formed plastic 13 container. (Id. at 5-9.) It interpreted the phrase "heating-bonding the flange of the pre14 formed plastic container to the backing sheet to form a melt seal of the flange with the 15 backing sheet," to mean that the melting of the flange to the backing sheet must extend 16 sufficiently around the area of contact between the two pieces to securely contain the line in 17 the package over its anticipated lifetime. (Id. at 9-11.) Finally, the Court concluded that the 18 phrase "winding the plastic trimmer line . . . into a coil, having approximately one twist per 19 coil," so as not to require an affirmative twisting of the trimmer line as it is inserted into the 20 package. (Id. at11-13.) The Court further found that the phrase "approximately one twist 21 per coil," meant "nearly, or almost exactly one twist per coil." (Id.) 22 III. 23 Plaintiff contends that in producing two all-plastic trimmer line packages, Defendants 24 used methods that infringe on the '005 Patent. The first accused device, shown as 25 Defendants' Exhibit 501 ("the Exhibit 501 Package"), consists of a single plastic cup-shaped 26 container as the front portion of the package, and a flat plastic backing which mates with the 27 front sheet. (PSOF, ex. 7.) Defendants produced the Exhibit 501 package in early 2000. 28 -3Case 2:02-cv-02180-JAT Document 86 Filed 09/23/2005 Page 3 of 12

The Accused Devices

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Shortly thereafter, Plaintiff sent Defendants a letter indicating that Defendants' package infringed on the '005 Patent. As a result, the parties entered into an agreement, whereby Defendants were authorized to sell 50,000 Exhibit 501 packages in exchange for nominal fee paid to Plaintiff. Defendants subsequently produced a new package, shown as Defendants Exhibit 500 ("the Exhibit 500 Package"), which Plaintiff charges also infringes on its '005 Patent. (See PSOF ex. 6.) The Exhibit 500 Package is an all-plastic package, consisting of two cupshaped containers, mated together to form a cylindrical shaped package, joined near the middle. Defendants contend that they "developed the different Exhibit 500 trimmer line package not only to avoid the '005 Patent, but also to achieve increased manufacturing efficiencies and end-user product presentation." (Resp. at 4.) Legal Standards I. Summary Judgment Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of demonstrating the basis for the motion and identifying the portions of the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file that establish the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Conversely, when the moving party bears the burden of proof on an issue, it must submit evidence sufficient to establish that no reasonable jury could find against it on that issue at trial. Id. at 331. If the moving party meets this initial burden, the burden then shifts to the non-moving party to present specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The non-movant's bare assertions, standing alone, are insufficient to -4Case 2:02-cv-02180-JAT Document 86 Filed 09/23/2005 Page 4 of 12

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create a material issue of fact and defeat a motion for summary judgment. Anderson, 477 U.S. at 247-48. Rather, the non-movant's response must set forth specific facts by affidavits or by other admissible evidence as provided in Rule 56, showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 256. An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute might affect the case's outcome. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved in favor of either party." Id. at 250. Thus, a genuine issue for trial exists if the nonmovant presents evidence from which a reasonable jury, viewing the evidence in the light most favorable to the non-movant, could resolve the material issue in its favor. Id. However, "[i]f the [non-movant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted). II. Patent Infringement Pursuant to section 271 of the Patent Act, 35 U.S.C. § 271, liability for patent infringement may be imposed on any person who without permission of the patentee, "makes, uses, offers to sell, or sells any patented invention [] within the United States . . . during the term of the patent therefor." The rights granted to the patentee are defined by the patent's claims. Markman, 517 U.S. at 373. In determining whether an allegedly-infringing device falls within the scope of the claims, a two-step process is used. Specifically, "the court first determines, as a matter of law, the correct claim scope, and then compares the properly constructed claim to the accused device to determine, as a matter of fact, whether all of the claim limitations are present in the accused device, either literally or by a substantial equivalent." K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1362 (9th Cir. 1999) (citing Renishaw PLC v. Marposs Societa per Anzioni, 158 F.3d 1243, 1247-48 (Fed. Cir. 1998)). Although the second step of the infringement inquiry involves a factual

determination, summary judgment is still appropriate when no genuine dispute of material fact exists. Irdeto Access, Inc. v. Echostar Satellite Corp., 383 F.3d 1295, 1299 (Fed. Cir. 2004).

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The patentee bears the burden of proving infringement by a preponderance of the evidence. Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed. Cir. 1991). To prove literal infringement, the patentee must establish that, "every limitation recited in the claim appears in the accused product, i.e., the properly construed claim reads on the accused product exactly." Jeneric/Pentron, Inc. v. Dillon Co., 205 F.3d 1377, 1382 (Fed. Cir. 2000) (citing Amhil Enters. Ltd. v. Wawa, Inc., 81 F.3d 1554, 1562 (Fed. Cir. 1996)). Alternatively, if one of more elements of the claim are not literally present in the allegedly infringing product or process, the patentee may establish infringement under the doctrine of equivalents. Honeywell Int'l, Inc. v. Hamilton Sundstrand Corp., 370 F.3d 1131, 1139 (Fed. Cir. 2004). This doctrine allows infringement to be found in some cases where the elements of the accused device are substantially equivalent to the corresponding elements of the asserted claim. See Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17, 29 (1997). To determine whether infringement exists under the doctrine of equivalents, the Court engages in an element-by-element comparison of the patented invention and the accused device. Id. at 40. Toward this end, the Court considers whether the accused device "contain[s] elements that are either identical or equivalent to each claimed element of the patented invention." Id. A feature of an accused device is "equivalent" to an element of claimed invention if it performs substantially the same function in substantially the same way to achieve substantially the same result. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339. U.S. 605, 608 (1950). However, this framework may not be appropriate in every case. See Warner-Jenkinson, 520 U.S. at 39-40. Instead, "[a]n analysis of the role played by each element in the context of the specific patent claim [must] inform the inquiry as to whether a substitute element matches the function, way, and result of the claimed element, or whether the substitute element plays a role substantially different from the claimed element." Id. at 40. Additionally, "[i]n applying the doctrine of equivalents, the fact finder must determine the range of equivalents to which the claimed invention is entitled, in light of the prosecution history, the pioneer-nonpioneer status of the invention, and the prior art." Intel Corp. v. U.S. Int'l. Trade Comm'n, 946 F.2d 821, 842 (Fed. Cir. 1991). -6Case 2:02-cv-02180-JAT Document 86 Filed 09/23/2005 Page 6 of 12

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The Court must also be mindful of the limitations of the doctrine of equivalents. Particularly, the doctrine of equivalents cannot allow a patent to encompass subject matter existing in prior art. See Wilson Sporting Goods Co. v. David Geoffrey & Assoc., 904 F.2d 677, 684 (Fed. Cir. 1990). The doctrine also may not be used to allow coverage of obvious or "trivial" variations of the prior art. See Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1580 (Fed. Cir. 1995). Further, "where the patent document expressly identifies a role for a claim limitation, the doctrine of equivalents cannot be used to capture subject matter that does not substantially fulfill that role." K-2 Corp., 191 F.3d at 1367 (citing Warner-Jenkinson, 520 U.S. at 40)). Additionally, the doctrine of equivalents is limited by the principle that the patentee may not use the doctrine to recover subject matter that has been surrendered. Id. "For example, prosecution history estoppel will exclude from the doctrine of equivalents any subject matter that was, by amendment or argument during prosecution, relinquished." Id. (citing Warner-Jenkinson, 520 U.S. at 30-31)). These limitations on the doctrine of equivalents are questions of law. Id. "Taken together, these concepts - that the doctrine of equivalents is both limited and subject to estoppel - reflects [the Ninth Circuit's] (and the Supreme Court's) approach of maintaining the principled application of the doctrine of equivalents while hewing closely to the doctrine's original purpose: to prevent fraud on a patent." Id. Discussion Motion for Summary Judgment on Defendants' Section 102 Defenses Plaintiff first argues that it is entitled to summary judgment on Defendants' patent infringement defenses under 35 U.S.C. §§ 102(a) and (b). Plaintiff argues that because each of the methods that Defendants have identified in support of their section 102(a) and (b) patent invalidity defenses lacks at least one claim limitation, the defenses fail as a matter of law. In their Response, Defendants concede that, based on the Court's claim construction, the three prior art references that they proffered do not anticipate the '005 Patent claims, and therefore do not invalidate the '005 Patent under section 102. Defendants therefore withdraw -7Case 2:02-cv-02180-JAT Document 86 Filed 09/23/2005 Page 7 of 12

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their section 102 defenses. Consequently, the Court will grant summary judgment in favor of Plaintiff on Defendants' section 102 defenses. II. Motion for Summary Judgment on Patent Infringement Plaintiff next moves for summary judgment on its patent infringement claim. It contends that Defendant's Exhibit 501 Package literally infringes on claims 1, 2, and 4 of the '005 Patent, and that Defendants' Exhibit500 package infringes on claims 1, 2, and 4 of the '005 Patent under the doctrine of equivalents. The Court will address each argument, in turn.1 A. The Exhibit 501 Package

Plaintiff contends that it is entitled to summary judgment because Defendants' Exhibit 501 package literally infringes on the '005 Patent. In support, Plaintiff points out that the Exhibit 501 package consists of' "a plastic container comprising a flat backing sheet having an opening disposed in it, [and] an outwardly extending flange about the opening." (Mot. at 8.) Additionally, Plaintiff proffers that "[a]n inspection of the package itself reveals that the backing sheet and a front plastic blister have been heat bonded around the entire periphery of the flange to form a melt seal of the blister flange with the backing sheet." (Id.) Further, Plaintiff asserts that Peter Brissette, Defendants' Rule 30(b)(6) witness, "admitted that Defendants' method included each of the claim limitations in claims 1, 2, and 4 of the '005 Patent." In particular, Plaintiff cites Mr. Brissette's testimony as evidence that, "the remaining steps, such as injection of the trimmer line into the back of the package container and the imparting of approximately one twist per coil, are included in Defendants' initial accused method." (Id. at 9.) In response, Defendants first argue that the Exhibit 501 Package is not subject to infringement claims. Rather, they contend that "[t]he Exhibit 501 package was the subject of a prior dispute between the parties that was conclusively resolved by settlement Because the Court previously construed the scope of the disputed claims in the '005 Patent, it will proceed to the second stage of the infringement analysis. See Renishaw, 158 F.3d at 1247-48 -8Case 2:02-cv-02180-JAT Document 86 Filed 09/23/2005 Page 8 of 12
1

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agreement, and there are no allegations of a breach of that agreement." (Resp. at 6.) In support, Defendants cite to the Declaration of Stan Madden, ¶3, wherein he avers: Desert Extrusion sent a letter to Shakespeare dated October 16, 2000[,] identifying the '005 Patent. Desert Extrusion subsequently accused Shakespeare's all plastic trimmer line, Plaintiff's Exhibit 501, of infringing the '005 Patent. Shakespeare paid a nominal fee to settle all disputes related to Exhibit 501. The settlement agreement entered into by the parties authorized Shakespeare to manufacture and sell 50,000 Exhibit 501 trimmer line packages. A copy of the settlement agreement, with the settlement fee redacted, is attached as Exhibit A. Shakespeare did not manufacture or sell more than 50,000 of these trimmer line packages. (DSOF ex. E.) Exhibit A to Mr. Madden's Declaration provides in full: Dear Gordon: You called on November 15, 2000 and we spoke regarding Shakespeare's request for a temporary agreement for packaging blisters. Your request was to enable you to sell some 50,000 plastic and internally wound blisters, which you produced and are in your inventory. We agreed to your suggestion to a charge of $0.02 per unit for those items until you reach a conclusion and make recommendations as to our licensing proposal for Patent No. 6,109,005 sent to you on November 14, 2000. You were to send us a sample of your package and a purchase order, check, or shipping acknowledgment for the 50,000 +/- pieces. We received neither. I'll give you a call this afternoon to verify your intentions, as the December 1, 2000 date requested for your decision is tomorrow. (Id. ex. A to ex. E.) Based on the evidence Defendants have submitted relating to the purported settlement agreement, the Court finds no support for Defendants' contention that Plaintiff is contractually barred from asserting a infringement claim with respect to Exhibit 501. In particular, Defendants have failed to cite to language in the documents they have submitted indicating that Plaintiff waived any infringement claim. Defendants next argue that Plaintiff failed to present evidence that the Exhibit 501 Package meets the "approximately one twist per coil" limitation, and that, contrary to Plaintiff's statement, Defendants have never admitted that their Exhibit 501 Package literally infringes on the '501 Patent. However, as Plaintiff points out, during his deposition, Mr. Brissette expressly conceded that the Exhibit 501 Package met each of the claims in the '005 Patent. (PSOF ¶6, Brissette depo. at 31-33.) Although Defendants contend that Mr. -9Case 2:02-cv-02180-JAT Document 86 Filed 09/23/2005 Page 9 of 12

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Brissette's opinions are not binding on them and that they raised various objections to Plaintiff's questioning Mr. Brissette regarding infringement, the Court finds these arguments unpersuasive. Particularly, if Defendants did not believe that Mr. Brissette was qualified to serve as their Rule 30(b)(6) witness, Defendants should have made a different witness available. The Court will therefore overrule Defendants' objections to Mr. Brissette's deposition testimony concerning the Exhibit 501 Package's literal infringement on the '005 Patent. Accordingly, because Plaintiff has provided sufficient evidence that each of the claims of the '005 Patent are present in the Exhibit 501 Package, including Defendants' admission that their Exhibit 501 Package literally infringes the '005Patent, and Defendants have failed to proffer evidence raising a triable issue of fact, Plaintiff has met its burden of establishing literal infringement. The Court will therefore grant Plaintiff's Motion for Summary Judgment of Infringement with respect to th Exhibit 501 Package. B. The Exhibit 500 Package

Plaintiff next contends that, "[b]ased on the Court's Markman Order, the evidence of record demonstrates that the method used by Defendants in the manufacture of the Exhibit 500 product includes all of the claim limitation of claims 1, 2 and 4 except one ­ the flat backing sheet." (Mot. at 9.) Nevertheless, Plaintiff asserts that the only difference between the cylindrical backing portion of Defendants' Exhibit 500 Package and the backing sheet described in the '005 Patent is that the geometry varies slightly. (Mot. at 10.) As Plaintiff explains: The backing sheet of the patented invention performs the role or function of mating with the front blister to contain the trimmer line within the package. The slightly raised cylindrical portion of Defendants' backing portion plays exactly this same role in exactly the same way to achieve exactly the same result. It satisfies the "function/way/result" test perfectly. (Mot. at 10.) Additionally, Plaintiff charges that Defendants "intentionally used a non-planar

25 backing sheet [] not to improve the product or method, but specifically to create a non26 infringement defense in case they were sued for infringement." (Id. at 11.) 27 28 - 10 Case 2:02-cv-02180-JAT Document 86 Filed 09/23/2005 Page 10 of 12

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Defendants, however, maintain that the cup-shaped backing of the Exhibit 500 Package distinguishes it from the '005 Patent and compels a finding of non-infringement. In particular, Defendants assert that the fact the backing has been formed into a shape is sufficient to differentiate it from the backing sheet described in the '005 Patent. Moreover, Defendants argue that "allowing the `flat' backing sheet requirement to be interpreted as equivalent to a non-flat, cup-shaped container would vitiate the entire `backing sheet' claim limitation in violation of the `all elements rule.'" (Resp. at 13.) In the same vein, Defendants assert that such an application "would also violate the `specific exclusion' principle by allowing [Plaintiff] to claim subject matter that is, under the Court's claim construction, the exact opposite of flat, and clearly excluded by the language of the claim." (Id.) The Court finds Defendants' arguments to be well-taken. As previously set forth in the Order Construing Claims, the proper construction of the limitation in claim 1regarding a "backing sheet," requires a flat piece of plastic material placed opposite the front, pre-formed plastic container. Assessing the Exhibit 500 Package against this description, it is undisputed that the Exhibit 500 Package contains a formed, cupshaped backing. Because the backing of the Exhibit 500 Package does not contain a flat backing, it does not literally infringe on the '005 Patent. Further, because a formed, cupshaped container is the opposite of the unformed, backing sheet described in the '005 Patent, the Court agrees with Defendants that this feature of the Exhibit 500 Package does not infringe on the '005 Patent's backing sheet limitation under the doctrine of equivalents. To hold otherwise would inappropriately expand the scope of claim 1 to encompass devices are not flat, and thus not envisioned by the '005 Patent. See, e.g., SciMed Life Sys. V. Advanced Cardiovascular Sys., 242 F.3d 1337, 1346 (Fed. Cir. 2001). Because Plaintiff has failed to establish a correspondence between the backing sheet limitation in claim 1 of the '005 Patent and the Exhibit 500 Package, Plaintiff cannot prevail on its infringement claim. Consequently, the Court will grant summary judgment of non-infringement in favor of Defendants with respect to the Exhibit 500 package.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For the foregoing reasons,

Conclusion

IT IS ORDERED that Plaintiff's Motion for Summary Judgment on Defendants' Section 102 Defenses (Doc. #70) is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment of Patent Infringement (Doc. #75) is GRANTED IN PART AND DENIED IN PART as follows: IT IS ORDERED that Plaintiff's Motion for Summary Judgment of Infringement with respect to Defendants' Exhibit 501 Package is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment of Infringement with respect to Defendants' Exhibit 500 Package is DENIED. IT IS FURTHER ORDERED GRANTING summary judgment of non-infringement in favor of Defendants with respect to Defendants' Exhibit 500 Package. IT IS FURTHER ORDERED that, because this Order resolves all outstanding claims, the Clerk of the Court shall enter judgment accordingly. DATED this 22nd day of September, 2005.

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