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Luv N' Care Ltd. v. Laurain

United States District Court, W.D. Louisiana, Monroe Division

January 29, 2018

LUV N' CARE LTD, Plaintiff
v.
LINDSEY LAURAIN, ET AL., Defendants

          JAMES JUDGE

          MEMORANDUM ORDER

          Joseph H. L. Perez-Montes United States Magistrate Judge.

         Before the Court are: (1) Plaintiff Luv N' Care LTD's (“LNC's”) Motion and Supporting Memorandum to Revise the Scheduling Order or In the Alternative for Leave to File an Early Summary Judgment Motion (“Motion to Revise”) (Doc. 76); and (2) Defendant Eazy-PZ, LLC's (“EZPZ's”) Emergency Motion to Enforce the Stipulated Protective Order and Exclude One of Counter-Defendants' Attorneys, Mr. Robert Chiaviello (“Chiaviello”), From Having Access to EZPZ's Confidential Information (“Motion to Enforce”) (Doc. 85).

         The Court heard oral argument on both motions on December 18, 2017, and took the motions under advisement. LNC's Motion to Revise (Doc. 76) is denied in part as moot regarding deletion of claim construction briefing deadlines and granted in part to delete the claim construction hearing deadline and allow for extension of discovery deadlines. LNC's request for leave to file Motion for Summary Judgment (Doc. 76) is denied as premature, as this Court has determined claims need to be construed first per the Scheduling Order. EZPZ's Motion to Enforce (Doc. 85) is granted on the basis that Chiaviello is determined to be a competitive decisionmaker.

         I. Background

         LNC filed a Complaint, as amended, against Lindsey Laurain (“Laurain”) and EZPZ for damages and injunctive relief for false advertising, false representation, unfair competition under the Lantham Act, 15 U.S.C. §§ 1051, et seq., and the Louisiana Unfair Trade Practices and Consumer Protection Law, La. Rev. Stat. 51:1401, et seq. (Doc. 21). LNC also seeks a declaratory judgment under 28 U.S.C. §§ 2201 and 2202 that LNC violates no valid claim of EZPZ's[1] design patent, utility patent, or any other intellectual property right of EZPZ. (Doc. 21). The alleged intellectual property rights at issue are:

(1) On July 17, 2014, Laurain filed United States Patent Application No. 14/333, 682 (“the ‘682 Utility Application”) for Surface Contact Self-Sealing Integrated Tablewear and Dining Mat. (Doc. 21, Doc. 27).
(2) On December 3, 2014, Laurain filed a design patent application for Dining Mat with Integrated Tablewear, and on December 15, 2015, the United States Patent and Trademark Office (“USPTO”) issued United States Patent No. D745, 327 (“the ‘327 Design Patent”). (Doc. 21, Doc. 27).
(3) On March 17, 2016, the application for the ‘682 Utility Application published as United States Published Patent Application No. 2016/0073805, Surface Contact Self-Sealing Integrated Tablewear and Dining Mat (“the ‘805 Publication”). (Doc. 27).
(4) On October 11, 2016, the USPTO issued United States Patent No. 9, 462, 903, Surface Contact Self-Sealing Integrated Tablewear and Dining Mat (“the ‘903 Utility Patent”). (Doc. 21, Doc. 27).

         LNC seeks an injunction and damages for EZPZ's alleged acts of false advertising, false representation, and unfair competition allegedly based on false claims of infringement. (Doc. 21). LNC alleges the product giving rise to this action is a feeding mat, which is an integrated self-sealing silicone place mat with a built-in bowl or plate that attaches to the table using suction. (Doc. 21). LNC alleges EZPZ has no valid existing intellectual property right that covers any aspect of LNC's feeding mats. (Doc. 21). LNC alleges EZPZ sells competing feeding mats. (Doc. 21).

         EZPZ filed an Answer to Complaint, Answer to Amended Complaint, and Counterclaim against LNC alleging that LNC infringed the ‘903 Utility Patent and the ‘327 Design Patent, violated 15 U.S.C. § 1114 and 15 U.S.C. § 1125(a), and unfairly competed with EZPZ in violation of state and common law. (Doc. 27). EZPZ seeks monetary damages and a permanent injunction against LNC. (Doc. 27).

         LNC answered EZPZ's Counterclaim asserting various affirmative defenses. (Doc. 33). EZPZ amended its Counterclaim asserting claims against third party Counter-Defendants Admar International, Inc. (“Admar”) and Nouri E. Hakim (“Hakim”). (Doc. 40). Defendants Admar, Hakim, and LNC answered asserting various affirmative defenses. (Doc. 45).

         This Court adopted EZPZ's proposed scheduling order in this case so that the parties would be able to identify any disputed terms, discovery, or expert issues at the outset of this case.[2] (Doc. 62). The parties filed a Joint Motion for Protective Order to govern the production, use, and disclosure of confidential information of the parties. (Doc. 65). The Court granted in part and denied in part the joint motion. (Doc. 70), and issued a Stipulated Protective Order. (Doc. 71).

         II. Law and Analysis

         A. LNC's Motion to Revise (or in the alternative leave to file Summary Judgment) (Doc. 76) is denied in part and granted in part.

         LNC's Motion to Revise seeks to revise the scheduling order to delete the deadlines relating to claim construction and for leave to file an early summary judgment motion as to infringement and invalidity. (Doc. 76).

         1. Standards governing claim construction.

         Absent a local rule to the contrary, [3] a judge has complete discretion regarding when to make his or her claim construction ruling, with one exception. Cytologix Corp. v. Ventana Med. Sys., Inc., 424 F.3d 1168, 1172-73 (Fed. Cir. 2005); Sofamor Danck Grp. V. DePuy-Motech, 74 F.3d 1216, 1221 (Fed. Cir. 1996). The exception is that, in a case where the right to trial by jury has not been waived, the judge should complete the claim construction before giving the jury its final instructions because the jurors should know the claim construction to apply in their deliberations. Sulzer Textil A.G. v. Picanol N.V., 358 F.3d 1356, 1366-68 (Fed. Cir. 2004); Hewlett-Packard Co. v. Mustck Sys., Inc., 340 F.3d 1314, 1320-21 (Fed. Cir. 2003). Jurisdictions that have adopted local patent rules generally favor claim construction earlier in the action, following a mandatory exchange of contentions by the parties, but before the close of fact discovery. See N.D. Cal. Patent Local Rules 4-1 - 4-6 (2014); E.D. Tex. Local Civil Rules, Appendix B., Patent Rules 4-1 - 4-6 (2015).[4]

         Claim construction can also be addressed as part of the dispositive motion process. See, e.g., MediaCom Corp. v. Rates Tech., 4 F.Supp.2d 17, 20-24, 35-38 (D. Mass. 1998); but cf. Amgen, Inc. v. Hoechst Marion Roussell, Inc., 126 F.Supp.2d 69, 80 (D. Mass. 2001) (suggesting the better practice was to hold a claim construction hearing before any hearing on dispositive motions, and independent of that hearing), aff'd in part, rev'd in part, 314 F.3d 1313 (Fed. Cir. 2003).

         2. LNC's Motion to Revise is denied in part as moot regarding deletion of claim construction briefing deadlines, and granted in part to delete the claim construction hearing and to allow for extension of discovery deadlines pending a ruling on claim construction.

         Under Fed.R.Civ.P. 16(b)(3)(A), the scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. Under Fed.R.Civ.P. 16(b)(4), a schedule may be modified only for good cause and with the court's consent. Squyres v. Heico Companies, L.L.C., 782 F.3d 224, 237 (5th Cir. 2015).

         This Court adopted EZPZ's proposed scheduling order in this case so that the parties would be able to identify any disputed claim terms, discovery, or expert issues at the outset of this case, and to allow for claim construction. (Doc. 62). While claim construction can be addressed as part of the dispositive motion process, see, e.g., MediaCom Corp., 4 F.Supp.2d at 20-24, 35-38, this Court has already determined that the better practice is to construe the claims first.

         Since the filing of LNC's Motion to Revise, the parties have fully briefed claim construction in accordance with this Court's scheduling order claim construction deadlines - those which LNC seeks to delete. (Docs. 79, 83, 84). The deadlines remaining on claim construction are for the Court to set a hearing on claim construction, and for final infringement and validity contentions from the parties after a claim construction ruling. (Doc. 62). LNC's motion seeks to delete the claim construction deadlines to allow for early summary judgment on the ‘903 patent infringement issues.

         Upon oral argument, the parties agreed that LNC's Motion to Revise is partially moot as to LNC's request for deletion of claim construction briefing deadlines, considering the parties had since fully briefed claim construction. Both parties agreed there would be no need for expert testimony at a claim construction hearing, but oral argument could be presented by the attorneys for the benefit of the Court. The parties agreed that there was still a need to revise the scheduling order to remove a claim construction hearing and to account for additional fact discovery and expert discovery following a ruling on claim construction. LNC argued an additional six months would be needed if the Court were to grant EZPZ's Motion to Enforce (Doc. 85) for time to review document production of approximately 300, 000 pages without assistance from Chiaviello. EZPZ argues three months should be ample time for LNC to complete discovery upon document production after the Court's ruling on its Motion to Enforce.

         Considering the agreement of the parties and the record before the Court, LNC's Motion to Revise is denied in part as moot regarding deletion of claim construction briefing deadlines, and granted in part to delete the claim construction hearing and to revise the scheduling order to allow for extension of discovery deadlines pending a ruling on claim construction. LNC's request to delete claim construction briefing deadlines is moot as it has been fully briefed. Further, the Court agrees that the parties briefing is sufficient at this time for the Court to make a ruling on claim construction.[5] Additionally, the parties agree no testimonial evidence will be presented at a hearing. Thus, LNC's request to delete the deadline to hold a claim construction hearing is granted. Given the pendency of the parties' motions and the fact discovery expired on January 18, 2018, LNC's request for a six month extension of discovery deadlines is granted.

         3. LNC's request for leave to file an early summary judgment motion is denied as premature.

         Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Johnston v. IVAC Corp., 885 F.2d 1574, 1576-77 (Fed. Cir. 1989). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon mere allegations or denials of his pleadings, but rather must present significant probative evidence to establish a genuine issue of material fact. Corp. v. Catrett, 477 U.S. 317, 327 (1986).

         Summary judgment is as available in patent cases as in other areas of litigation. Continental Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1265 (Fed. Cir. 1991). Where the parties do not dispute any relevant facts regarding the accused product, but disagree over possible claim interpretations, the question of literal infringement collapses into claim construction and is amenable to summary judgment. See General Mills, Inc. v. Hunt-Wesson, Inc., 103 F.3d 978, 983 (Fed. Cir. 1997). When a district court's determination of infringement is premised on an erroneously construed claim, however, that determination is not entitled to deference. Flex-Rest, LLC v. Steelcase, Inc., 455 F.3d 1351, 1357 (Fed. Cir. 2006); Warren v. Kyler, 422 F.3d 132 (3d Cir. 2005).

         The presumption of validity under 35 U.S.C. § 282 that a patent enjoys must be overcome only through facts supported by clear and convincing evidence. See U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1563 (Fed. Cir. 1997). Thus, a moving party seeking to invalidate a patent at summary judgment must submit such clear and convincing evidence of facts underlying invalidity that no reasonable jury could find otherwise. See Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 716 (Fed. Cir. 1991).

         Evaluation of summary judgment of noninfringement is a two-part inquiry: first, a court construes the scope and meaning of the asserted patent claims, and then compares the construed claims to the accused product or process. Infringement is a question of fact. As such, a grant of summary judgment of noninfringement is proper when no reasonable factfinder could find that the accused product ...


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