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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. 137] 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. 157], and Defendants have filed a Reply [Doc. No. 168]. The matter is fully briefed.

         Also pending before the Court is Plaintiffs' Motion for Summary Judgment [Doc. No. 136]. Defendants have filed an Opposition [Doc. No. 143], and Plaintiffs have filed a Reply [Doc. No. 170]. The matter is fully briefed.

         The Court is now prepared to rule on these motions.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Defendants seek summary judgment that U.S. Patent No. 8, 636, 178 (the '178 Patent) asserted by Plaintiffs is not infringed. [Doc. No. 137]. Plaintiffs move for summary judgment that the importation into and/or the use, offers to sell, and actual sale of the Nuby Tear Free Rinse Pail (“Accused Device”) literally infringed claims 1 and 6 of the '178 Patent. [Doc. No. 136].

         The '178 Patent issued on January 28, 2014, and is related to a “flexible panel pitcher device.” Plaintiffs assert that Defendant LNC infringed and continues to infringe the '178 Patent by importing and using, offering to sell, and selling the Accused Device. [Doc. No. 136-33 at 7-8].[1] Plaintiffs additionally assert that Defendant BBD infringed and continues to infringe the '178 Patent by using, offering to sell, and selling the Accused Device [Doc. No. 136-33 at 8]. LNC admits that it first offered to sell the Accused Device in October 2011 and completed its first sale in March 2012. [Doc. No. 143-1 at ¶¶ 40-42]. BBD admits that it first offered to sell the Accused Device via the internet “prior to March 2, 2012.” [Id. at ¶¶ 43-46]. Plaintiffs contend that the importation into, and the use, offers to sell and sale of the Accused Device within the United States by LNC and BBD infringed the '178 Patent. [Doc. No. 136-33 at 8].

         Defendants assert that there is no dispute concerning the configuration of the Accused Device. [Doc. No. 137 at 1]. Defendants further assert that the Accused Device fails to meet the requirements that the claimed container have either a “generally flat sidewall” or “a generally flat inwardly flexible panel.” Id. Defendants contend that a visual inspection of the Accused Device reveals that it has no “generally flat” sidewall or flexible panel. Id.

         II. LAW AND ANALYSIS

         A. Standard of Review

         Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the initial burden of informing the court of the basis for its motion by identifying portions of the record which highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact cannot be . . . disputed must support the assertion by . . . citing to particular parts of materials in the record . . .). A fact is “material” if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.

         If the moving party can meet the initial burden, the burden then shifts to the nonmoving party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the Court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Anderson, 477 U.S. at 248). The summary-judgment standard on a patent claim is the same as the standard for other claims. Avia Group Int'l v. L.A. Gear Calif., Inc., 853 F.2d 1557, 1560-61 (Fed. Cir. 1988).

         A determination of patent infringement involves a two-step inquiry. “The court must first interpret the claims to determine their scope and meaning. It must then compare the properly construed claims to the allegedly infringing device.” Dynacore Holdings Corp. v. U.S. Phillips Corp., 363 F.3d 1263, 1273 (Fed. Cir. 2004) (citation omitted). The comparison is only to the patent claims, not to any specific embodiment in the patent specification or to the patent holder's commercial embodiment. See Amgen, Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1347 (Fed. Cir. 2003). The patent holder bears the burden of proving infringement by a preponderance of the evidence. See Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 557 (2014); Cephalon, Inc. v. Watson Pharms., Inc., 707 F.3d 1330, 1340 (Fed. Cir. 2013) (citing Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir. 2008)).

         The first step of this inquiry is a legal determination. The second step is primarily factual, though to support a judgment of infringement the accused device must satisfy every limitation in the asserted claims, either literally or under the doctrine of equivalents. Freedman Seating Co. v. American Seating Co., 420 F.3d 1350, 1356-57 (Fed. Cir. 2005). Although the comparison of the claims to the accused system is a fact question, summary judgment may be granted if ...


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