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McGinley v. Luv N' Care Ltd.

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

May 15, 2019

MICHAEL L. McGINLEY, ET AL.
v.
LUV N' CARE, LTD., ET AL.

          KAREN L. HAYES, MAG. JUDGE

          RULING ON MOTION FOR SUMMARY JUDGMENT

          TERRY A. DOUGHTY, UNITED STATES DISTRICT JUDGE

         Pending before the Court is the Motion for Summary Judgment [Doc. No. 158] filed by Luv n' care, Ltd. (“LNC”), Admar International, Inc. (“Admar”), BuyBabyDirect, LLC (“BBD”), Bayou Graphics and Design, LLC (“BGD”), Control Services, Inc. (“CS”), and HHHII, LLC (“HHHII”) (collectively “Defendants”). Plaintiffs Michael L. McGinley and S C Products, Inc., (collectively “Plaintiffs”) have filed an Opposition [Doc. No. 180], and Defendants have filed a Reply [Doc. No. 186]. The matter is fully briefed.

         Also pending before the Court is Plaintiffs' Cross-motion for Summary Judgment [Doc. No. 181]. Defendants have filed an Opposition [Doc. No. 191], and Plaintiffs have filed a Reply [Doc. No. 195]. The matter is fully briefed.

         The Court is now prepared to rule on these motions.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Defendants move for summary judgment that the claims in United States Patent No. 8, 636, 178 (“the '178 Patent”), are invalid because the patentee failed to comply with the “on-sale bar” of section 35 U.S.C. § 102(b). [Doc. No. 158]. Plaintiffs move for summary judgment that the effective filing date of the claims of the '178 Patent is February 4, 2003. [Doc. No. 181]. Plaintiffs contend that this effective filing date is before they first offered to sell and began selling an embodiment of the flexible panel pitcher in 2004. Id.

         The claimed invention of the '178 Patent is directed to a pitcher that includes a generally flat sidewall section and a generally flat flexible panel forming a portion of the generally flat sidewall section. The '178 Patent was based on a continuation-in-part (“CIP”) application Serial No. 12/255, 797 (“the '178 Application”), filed on October 22, 2008. [Doc. No. 136-11]. The '178 Application was a CIP of Application Serial No. 10/770, 325 (“the '675 Application”) filed on February 2, 2004. [Doc. No. 136-22]. The '675 Application issued as United States Patent No. 7, 441, 675 (the '675 Patent) with all claims directed to a flexible panel pitcher or container with a divider. The '675 Application was a CIP of Application Serial No. 10/357, 651 filed on February 4, 2003 (“the Original Application”). [Doc. No. 158-6]. After the '675 Application was filed and assigned a serial number, the patentee abandoned the Original Application. [Doc. 158-6 at 48].

         The application included with the Original Application contained four drawings:

         (Image Omitted)

         [Doc. No. 158-6 at 22-23].[1] The application included with the '675 Application contained six drawings:

         (Image Omitted)

         [Doc. No. 158-5 at 20-22]. The application included with the '178 Application contained the six drawings disclosed in the Original Application and the '675 Application. The '178 Application also added Figures 7, 8 and 9, which were not previously included in either the '675 Application or the Original Application.

         (Image Omitted)

         [Doc. No. 158-4 at 2-6]. Figures 7, 8 and 9 of the '178 Application disclose a container with a flat sidewall and a flat flexible panel. On February 26, 2010, the patentee through his patent counsel filed Claims 34 and 35 in the '178 Application:

Claim 34 (New) in part provided:
a generally rigid continuous sidewall terminating in an upper sidewall end and a lower sidewall end and defining an inward space bounded by said continuous sidewall, said continuous sidewall having a portion thereof that defines a generally flat sidewall section, ...
a generally flat inwardly flexible panel forming a portion of said generally flat sidewall section and extending to form-at least a portion of said upper sidewall end, said flexible panel having a generally smooth inward surface for unobstructed fluid flow out of said open upper sidewall end.
Claim 35 (New) in part provided:
a generally rigid continuous sidewall having an upper sidewall end and a lower sidewall end and defining an inward space bounded by said continuous sidewall, said continuous sidewall having a portion thereof that ...

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