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March 25, 2003


The opinion of the court was delivered by: Amy J. St. Eve, United States District Court Judge


The Locker Company ("Lockformer") filed suit seeking, inter alia, a declaration that use of its machinery with RL-5O desiccant does not infringe PPG Industries Ohio, Inc.'s U.S. Patent No. 5,177,916. Lockformer and TruSeal Technologies, Inc. ("TruSeal") have moved for partial summary judgment on infringement. For the reasons stated herein, the motion for summary judgment is granted.


Summary judgment is proper when the evidence presented to the Court "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a mater of law." Fed.R.Civ.P. 56(c). A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return u verdict for the nonmoving party." Pugh v. City of Attica Indiana, 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party that bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact. Id. at 324, 106 S.Ct. at 2553. A mere scintilla of evidence in support of the non-movant's position is insufficient. See Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. A party will be successful in opposing summary judgment only if it presents "definite, competent evidence to rebut the motion." E.E.O.C. v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000).

The Court "considers the evidentiary record in the light most favorable to the non-moving party, and draws all reasonable inferences in his favor." Lesch to Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). The Court accepts the non-moving party's version of any disputed facts but only if it is supported by relevant, admissible evidence, Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).


I Litigation History

On October 15, 1999, Lockformer initiated this lawsuit against PPG Industries and PPG Ohio. Lockformer filed a nine-count amended complaint on January 31, 2000. Counts I to VIII are actions for alleged unfair competition, tortious interference, and antitrust violations. In Count IX, Lockformer seeks a declaration that it does not infringe three of PPG Industries, Inc.'s patents or that those patents were invalid and unenforceable, PPG Industries, Inc. ("PPG Industries") and PPG Industries, Ohio Inc. ("PPG Ohio") (collectively "PPG") have countered with claims that Lockformer and Third-Party Defendant TruSeal's products infringe these patents.

Over the years, this case has substantially simplified. On April 30, 2001, the parties stipulated to a dismissal of Lockformer's first eight counts. Later, Judge Coar, who presided over this case until it was transferred to this Court on September 12, 2002, dismissed two patents from the declaratory judgment claim. See Lockformer Co. v. PPG Indus., Inc., 2001 WL 940555, at *1 (N.D. Ill. Aug. 15, 2001). Finally, the Court recently entered judgment in favor of PPG on the invalidity and unenforceability claims. See Lockformer v. PPG Indus., Inc., 99 C 6799, 2003 WL — (N.D. Ill. Mar. 21, 2003). The only issue before the Court now is whether Lockformer and TruSeal are entitled to judgment as a matter of law on the issue of infringement of the '916 patent

II. Summary Judgment Filings

In support of their motion for summary judgment on this issue, Lockformer and TruSeal filed a twenty-one paragraph statement of undisputed material facts pursuant to Local Rule 56.1. (R. 159-1.) PPG filed a two paragraph response to that statement.*fn1 (R. 165-1.) The first paragraph admitted certain paragraphs and the second paragraph denied the remaining facts with little explanation or supporting references. (Id.) This overly terse filing by PPG clearly did not comply with the Local Rules, which require "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Local Rule 56.1(b)(3)(A).

Recognizing these deficiencies, Lockformer and TruSeal filed an objection to its response. (R. 177-1.) PPG countered with a supplemental response. (R. 189-1.) This supplemental response also failed, however, to comply with the local rules. For example, PPG offered several denials without citing to portions of the record or even stating what exactly it disputes. In other instances, PPG denials contained citations to case law or its trial brief Judicial opinions and parties' own briefs are not evidence. Without denials with supporting references, Lockformer and TruSeal's Statements Nos. 6-8 and 11-21 we deemed admitted. Local Rule 56.1(b)(3)(B).


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