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TRANSCO PRODS. v. PERFORMANCE CONTR.

January 28, 1993

TRANSCO PRODUCTS INC., Plaintiff,
v.
PERFORMANCE CONTRACTING, INC. and PERFORMANCE CONTRACTING GROUP, INC., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

MEMORANDUM OPINION AND ORDER

 Transco Products Inc. ("Transco") has sued Performance Contracting, Inc. and Performance Contracting Group, Inc. (collectively "Performance Contracting," treated as a singular noun):

 1. seeking a declaratory judgment of invalidity, noninfringement and unenforceability of United States Patent No. 4,009,735 (the "Pinsky patent") owned by Performance Contracting, and

 2. charging Performance Contracting with infringement of Transco's United States Patent No. 3,941,159 (the "Toll patent").

 In response Performance Contracting has counterclaimed, seeking a declaratory judgment of invalidity and unenforceability of the Toll patent and charging Transco with infringement of the Pinsky patent.

 This Court's May 12, 1992 memorandum opinion and order (the "Opinion," 792 F. Supp. 594) *fn1" dealt with a double-faceted summary judgment motion under Fed. R. Civ. P. ("Rule") 56 by Performance Contracting:

 1. It denied the motion for summary judgment on the issue of the invalidity of the Toll patent.

 2. It granted the motion for summary judgment declaring Performance Contracting's noninfringement of the Toll patent.

 Now Transco has moved for partial summary judgment under Rule 56 on the issue of noninfringement of the Pinsky patent, and Performance Contracting has filed a cross-motion for summary judgment on the same issue, asking this Court to rule summarily that Transco's several products *fn2" infringe the Pinsky patent. For the reasons stated in this memorandum opinion and order, both motions are denied.

 Rule 56 Standards

 Rule 56 principles impose on any movant the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to the nonmovant ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) (citations omitted)). Where as here cross-motions are involved, that principle thus demands a dual perspective--one that this Court has described as Janus-like--that sometimes involves the denial of both motions.

 This District Court's General Rules 12(m) and 12(n) require factual statements in support of and in opposition to Rule 56 motions, and both sides have tendered such statements. References to Transco's statement in support of its motion are cited "P. 12(m) P --," to Performance Contracting's responsive statement are cited "D. 12(n) P --," to Performance Contracting's statement in support of its cross-motion are cited "D. 12(m) P --" and to Transco's responsive statement are cited "P. 12(n) P --." *fn3"

 Facts

 On October 2, 1974 Gordon Pinsky ("Pinsky") filed a continuation of his original October 24, 1973 application with the United States Patent Office covering a pipe insulation design (P. 12(m), D. 12(n) PP 4, 5). On March 1, 1977 the Pinsky "Thermal Insulation" patent (the "Pinsky patent") issued, containing these four claims (P. Ex. 1, col. 4):

 1. Readily removable and replaceable rewettable thermal insulation for use on vessels and piping within reactor containment areas of nuclear power plants comprising high temperature resistant mineral fiber or glass fiber encapsulated within rewettable, high temperature resistant, asbestos free glass cloth held in place with a plurality of spaced quick release and engage fasteners, wherein the glass cloth can withstand repeated wettings from spray systems within the reactor containment areas of nuclear power plants and wherein the fasteners are two woven nylon, hook and loop mating strips, wherein the glass cloth has a finish of a leachable, organic silicate carried in a fatty and mineral oil vehicle.

 2. Thermal insulation according to claim 1 wherein the encapsulated fiber is a fine fiber and is in the form of tangled or felted mats.

 3. Thermal insulation according to claim 2 wherein the mats are quilted.

 4. Thermal insulation according to claim 1 wherein the strips comprise a hook strip covered with stiff little hooks and a loop strip covered with tiny, soft loops.

 Transco began marketing blanket-type insulation for nuclear power plant containment areas as early as 1982 (D. Ex. M). In three letters dated February 13, March 8 and September 11, 1989, Performance Contracting notified Transco that it believed Transco was infringing the Pinsky patent (Complaint Exs. B, C, D). Transco's own nuclear reaction was to file its October 25, 1989 Complaint seeking a declaration of its rights in this action.

 Performance Contracting has identified five Transco constructions for purposes of this motion (D. 12(m) P 32, D. Mem. 5): (1) Drawing No. SK-TW-01 (the "TA construction") (P. Ex. A); *fn4" (2) a construction allegedly used at Arkansas Nuclear Power Plant (the "A construction") (D. Ex. A); (3) a configuration allegedly used at Millstone Nuclear Power Plant (the "MA Construction") (D. Exs. B, C, F through I, M; (4) a second construction allegedly used at Millstone (the "MB construction") (D. Exs. I, M, N) and (5) a generic construction (the "G construction") (D. Ex. J). Performance Contracting claims that all five constructions infringe the Pinsky patent either literally or under the doctrine of equivalents (D. Mem. 5).

 Noninfringement

 To establish infringement by any Transco construction, Performance Contracting must show by a preponderance of the evidence that every limitation in a claim is incorporated either literally or by a substantial equivalent in that Transco construction ( Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed. Cir. 1991)). *fn5" Literal infringement of a claim requires a showing that each claim element of the Pinsky patent is matched exactly by a corresponding Transco element ( Jurgens v. McKasy, 927 F.2d 1552, 1560 (Fed. Cir. 1991)). Under the doctrine of equivalents a patent is viewed as infringed, even if not by its literal language, if the accused device "performs substantially the same function in substantially the same way to obtain the same result"--an inquiry frequently termed the function-way-result test ( Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 94 L. Ed. 1097, 70 S. Ct. 854 (1950), quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 74 L. Ed. 147, 50 S. Ct. 9 (1929)).

 Performance Contracting asserts that the accused constructions infringe claims 1 and 4 *fn6" of the Pinsky patent (D. Mem. 5). Transco has endeavored to demonstrate (in both senses employed in n. 5) that its constructions do not infringe these claims on the following three limitations (P. Mem. 4-5):

 1. "a plurality of spaced quick release and engage fasteners;"

 2. "the fasteners are two woven nylon, hook and loop mating strips";

 3. "the glass cloth has a finish of a leachable organic silicate carried in a fatty and mineral oil vehicle."

 Those limitations will be addressed in turn. *fn7" ...


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