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ZELINSKI v. BRUNSWICK CORP.

December 5, 1997

GEORGE ZELINSKI, JR. and PINBREAKER, INC., Plaintiffs,
v.
BRUNSWICK CORPORATION, and Illinois Corporation, Defendant.



The opinion of the court was delivered by: CONLON

 George Zelinski, Jr. and Pinbreaker, Inc. (collectively "plaintiffs") sue Brunswick Corporation ("Brunswick") for patent infringement. The parties have filed cross-motions for summary judgment.

 BACKGROUND

 George Zelinski, Jr. owns United States Patent No. 5,046,731 ("the '731 patent"), entitled "Bowling Ball." Pinbreaker, Inc. is the exclusive licensee of the '731 patent, which issued on September 10, 1991. As part of its Phantom series of bowling balls, defendant Brunswick produced, marketed and sold the StealthCore I TM and StealthCore II bowling balls. Plaintiffs allege Brunswick's StealthCore I TM and II bowling balls infringe claim 1 (and dependent claims 2 through 14) of the '731 patent. Claim 1 of the '731 patent reads as follows:

 
A bowling ball having a spherical mass of preselected density and a spherical surface equidistant from a center of the spherical mass, the improvement being a weight block of a density, greater than said preselected density, in which said weight block comprises:
 
a first elongate section having a pair of opposite ends with an intermediate portion there between adjacent the spherical surface; and
 
another elongate section having an axis of symmetry extending in a direction generally transverse of the first elongate section and extending from the intermediate portion and located between the center of the spherical mass and the first elongate section.

 Pl. 12(M) P 7.

 The design of Brunswick's StealthCore I TM and II bowling balls includes a spherical outer shell of polyurethane, a spherical center, an annular ring which encircles the spherical center, and an "eccentric weight" atop the annular ring. Def. 12(M) PP 11, 12; Pl. 12(N) PP 11, 12.

 DISCUSSION

 I. SUMMARY JUDGMENT STANDARD

 A movant in a patent case, as in any case, is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 795 (Fed Cir. 1990); see generally Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993), cert. denied, 510 U.S. 1121, 127 L. Ed. 2d 393, 114 S. Ct. 1075 (1994).

 II. LITERAL INFRINGEMENT: CLAIM CONSTRUCTION

 To prevail under a theory of literal infringement, plaintiffs must prove that each and every limitation of independent claim 1 is matched exactly by a corresponding element in Brunswick's StealthCore I TM and II bowling balls. Lantech, Inc. v. Keip Mach. Co., 32 F.3d 542, 547 (Fed. Cir. 1994). Any deviation from the claim limitations precludes a finding of literal infringement. Id. If claim 1 is not infringed, it follows that none of its dependent claims are infringed. Wahpeton Canvas Co., Inc. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed. Cir. 1989).

 Determining whether the StealthCore I TM and II bowling balls infringe claim 1 of the '731 patent entails a two-step analysis. First, claim 1 must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused products to determine whether infringement has occurred. Carroll Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1576 (Fed. Cir. 1993). The first step, claim construction, is a question of law. Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S. Ct. 1384, 1396, 134 L. Ed. 2d 577 (1996). The second step, applying the claim construction to the accused device, is a question of fact. Where, as here, the parties do not dispute any facts relevant to the question of literal infringement but disagree over the proper claim construction, the question of literal infringement collapses into claim construction and is amenable to summary judgment. Athletic Alternatives, Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1578 (Fed. Cir. 1996).

 The parties dispute the meaning of the words "spherical mass" as used in the preamble to claim 1 of the '731 patent:

 
A bowling ball having a spherical mass of preselected density and a spherical surface equidistant from a center of the spherical mass....

 In construing claim 1, the court should look first to the intrinsic evidence of record: the '731 patent itself, including the claims and the specification. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Brunswick asserts a "spherical mass" necessarily includes the core of the sphere, especially where reference is made to the "center" of the spherical mass. Plaintiffs respond that the center of a spherical mass is a geometric position, not a tangible, physical object. Thus, a hollow sphere still has a geometric center at the point where the radii (extending in from the surface of the sphere) converge. Moreover, plaintiffs argue that the '731 patent elsewhere identifies the spherical mass as "mass 12" and the weight core as "weight core 34." Plaintiffs argue that the independent element numbers, together with the fact that spherical mass 12 is shown in the '731 specification as a polyurethane shell, indicate that "spherical mass" as used in claim 1 does not include the core of the sphere. Plaintiffs' interpretation of "spherical mass" is plainly correct. Accordingly, "spherical mass" is interpreted such that it does not include the core of the sphere.

 The parties also dispute the meaning of the word "located" in claim 1 of the '731 patent, as it is used in the following clause:

 
another elongate section having an axis of symmetry extending in a direction generally transverse of the first elongate section ... and located between the center of the spherical mass and the first elongate section.

 Pl. 12(M) P 7. Again, in construing a claim the court first looks to the intrinsic evidence of record. Vitronics, 90 F.3d at 1582. Neither the claims nor the specification define the term "located," so it should be given its ordinary and accustomed meaning. Lantech, 32 F.3d at 547. Brunswick argues "located" means wholly or entirely located; that is, for a second elongate section to be located between the center of the spherical mass and the first elongate section, the second elongate section must be located only between the center of the spherical mass and the first elongate section. Plaintiffs respond that Brunswick's interpretation of "located" is too narrow; plaintiffs suggest that a second elongate section is also located between the center of the spherical mass and the first elongate section when only a segment of the second elongate section is located between the center of the spherical mass and the first elongate section.

 In support of their broader claim construction, plaintiffs offer the following analogy:

 
In the city of Chicago, there is a subway line between Jackson and Monroe streets (the Blue Line). This line is located between Jackson and Monroe streets. However, the Blue Line is not entirely located between Jackson and Monroe streets. The Blue Line extends out northwest to O'Hare airport and west to Oak Park. The Defendant's argument of "located" meaning "entirely located" implies that to be located between Jackson and Monroe streets means that ...

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