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VISKASE CORP. v. AMERICAN NAT'L CAN CO.

August 19, 1998

VISKASE CORPORATION, Plaintiff,
v.
AMERICAN NATIONAL CAN COMPANY, Defendant.



The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 A jury awarded the plaintiff, Viskase Corporation ("Viskase"), $ 102,384,681 in damages against the defendant American National Can Company ("ANC"), for patent infringement. I subsequently granted ANC's motion for a new trial on infringement as it relates to Affinity based films on the grounds that Viskase's expert witness perjured himself and that his testimony was central to Viskase's infringement case. *fn1" Viskase Corp. v. American Nat'l Can Co., 979 F. Supp. 697, 699-705 (N.D. Ill. 1997). Viskase now moves for partial summary judgment on the issue of infringement. *fn2" For the reasons set forth below, Viskase's motion is granted.

 Background

 This patent infringement action involves six United States patents owned by Viskase. All of the asserted claims of the six patents are directed to heat-shrinkable films that contain very low density polyethylene ("VLDPE"). A VLDPE is a linear polyethylene plastic. At trial, I defined a linear polyethylene plastic as a polyethylene plastic that "contains insignificant amounts of long chain branching." (Pl.'s Ex. 7, Trial Tr. 2636-37).

 Viskase alleges that ANC infringed its patents by making and selling films containing the Affinity PL-1840 ("Affinity") resin manufactured by Dow Chemical Company ("Dow"). *fn3" Viskase moves for partial summary judgment on the issue of infringement based on my claim interpretation rulings and on the undisputed facts uncovered at the first trial.

 Linearity

 Based on my previous rulings, the only infringement issue in this case is whether Affinity is a linear polyethylene plastic, i.e, does it "contain[] insignificant amounts of long chain branching." (Id.). Viskase argues that "insignificant" modifies "amounts" and that according to Webster's Ninth New Collegiate Dictionary 80, 626 (1989), "amount" means "the total number or quantity" and "insignificant," given its ordinary meaning, means "small in size, quantity, or number." Consequently, "insignificant amounts" relates to the number of long chain branches. If Affinity has the same number or fewer long chain branches than recognized linear polyethylenes, the amount of long chain branching must be "insignificant."

 To support its interpretation, Viskase argues that I have already expressly refused to adopt ANC's position that "insignificant" should be further defined as not having an effect on the properties, and in particular, not having an effect on rheological properties. Viskase quotes a statement that I made at trial that "I wasn't going to instruct that [what is significant] had to do with rheological properties," (Pl.'s Ex. 7, Trial Tr. at 2397), and my September 29, 1997 opinion where I refused to find that I "must accept, as a matter of law, [ANC]'s rheological theory of long chain branching." Viskase, 979 F. Supp. at 699. Viskase, however, takes both statements out of context to imply that I accepted its interpretation of "insignificant amounts of long chain branching" when in fact, I neither accepted nor rejected it.

 At trial, I did not reject ANC's interpretation of "insignificant." Rather, I stated that I could not rule on it as a matter of law. (Pl.'s Ex. 7, Trial Tr. at 2395-2401). "The jury essentially had to decide first, whether to use a numerical or rheological test to determine 'significant' levels of long chain branching, and then to determine, under whichever test it thought correct, whether films made with the Affinity resin had significant levels of long chain branching." Viskase, 979 F. Supp. at 699.

 Similarly, in my decision to grant ANC a new trial, I stated that the parties disagreed over what was significant and presented their positions at trial through experts. Id. at 698-99. After reviewing the evidence, I declined to accept as a matter of law ANC's rheological theory of long chain branching. Id. at 699. "Neither party presented convincing evidence that its test for long chain branching is the only acceptable test used by experts in the field. Dow's test of rheological qualities may or may not be sound . . . ." Id.

 Since neither my statements at trial nor my September 29 decision on a new trial support Viskase's argument, I do not accept its interpretation of insignificant as a matter of law.

 Literal Infringement

 Viskase moves for summary judgment on literal infringement on the basis of its interpretation of "insignificant." In essence, it argues that since Affinity has less long chain branching then recognized linear polyethylenes, that as a matter of law, the amount of long chain branching cannot be significant. But since I have not accepted Viskase's reading of "insignificant ...


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