United States District Court, W.D. Louisiana, Monroe Division
MICHAEL L. McGINLEY, ET AL.
LUV N' CARE, LTD., ET AL.
L. HAYES MAG. JUDGE.
RULING ON MOTION FOR SUMMARY JUDGMENT
A. DOUGHTY UNITED STATES DISTRICT JUDGE.
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.
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.
Court is now prepared to rule on these motions.
FACTUAL AND PROCEDURAL BACKGROUND
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].
'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
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].
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.
LAW AND ANALYSIS
Standard of Review
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.
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).
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)).
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 ...