The opinion of the court was delivered by: Robert W. Gettleman, United States District Judge
MEMORANDUM OPINION AND ORDER
In these consolidated cases, SRAM Corp. has sued defendant AD-II Engineering, Inc. for infringement of patent no. 5,662,00 (the "`000 patent"), and AD-II has sued SRAM for a declaration of non-infringement, tortious interference with prospective business relations, unfair competition in violation of the Lanham Act, the Illinois Uniform Deceptive Trade Practices Act and Illinois common law (jointly as the "unfair competition claims"). SRAM has moved for summary judgment of infringement. AD-II has moved for summary judgment of non-infringement and for summary judgment of all of its unfair competition claims. For the reasons set forth below, SRAM's motion for summary judgment of infringement is granted. AD-II's motion for summary judgment on all its claims is denied.
Since 1988 SRAM has made and sold twist shifters for use on derailleur-equipped bicycles under the tradename Grip Shift. The Grip Shift is a way of shifting gears without removing all or part of the rider's hand from the handlebar. Instead, the rider changes gears by twisting part of the handgrip. AD-II, a Taiwan company, also sells a bicycle gear shift system that operates by twisting part of the handgrip. SRAM alleges that AD-II's shifters infringe claims 7 and 8 of the `000 patent, which is entitled "Detente Spring for Rotatable Grip Actuating System." Claim 7 provides*fn1:
7. A rotatable handgrip actuating system for releasing
or pulling a tensioned cable, the system comprising:
a support member having a generally cylindrical
a grip disposed over said generally cylindrical
outer surface of said support member and rotatable
relative thereto in a first direction and in a
second direction opposite said first direction, a
generally cylindrical inner surface of said grip
facing said outer surface of said support member,
one of said inner surface and said outer surface
having a plurality of detent positions formed
a spring metal detent spring disposed between said
grip and said support member and engageable with one
of said detent positions, said detent spring
providing a first resistance against being forced
out of said one detent position when said grip is
rotated with respect to said support member in said
first direction, said detent spring providing a
second resistance against being forced out of said
one detent position when said grip is rotated
relative to said support member in said second
direction, said second resistance being greater than
said first resistance, the difference between the
first and second resistance due at least in part to
the shape of the detent spring.
SUMMARY JUDGMENT STANDARDS
A movant is entitled to summary judgment under Fed.R.Civ.P. 56 when the moving papers and affidavits show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party has met its burden, the nonmoving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Becker v. Tennenbaum-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. See 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 nonmnoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). The moving party, however, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [nonmoving party'sJ position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252.
A. AD-II's Motion for Summary Judgment of Non-Infringement.
AD-II has moved for summary judgment of non-infringement, arguing that its accused device lacks certain elements of Claim 7. AD-II's motion is premised entirely on its argument that the court should reconsider its decision in SRAM I which construed the term "support member" to mean "spring retaining member," and held that the spring retaining member was not required to be stationary. SRAM I 155 F. Supp.2d at 834-35. Absent reconsideration, AD-II admits it is not entitled to summary judgment because it "concedes that there is an issue of fact whether these limitations [in Element 2 of Claim 7] read on AD-II's shifters under this Court's construction of `support member.'"
This is AD-II's third attempt to convince the court that the "support member" must be stationary. It is no more persuasive than its first two attempts. Ordinarily, this court would deny AD-II's request at a third bite of the apple without discussion, because this court's opinions on summary judgment motions are not "mere first drafts subject to revision and reconsideration at a litigant's pleasure." Quaker Alloy Casting Co. v. Gulf Co. Indust., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). AD-II argues, however, that reconsideration is appropriate based on a change in law by the Federal Circuit's recent opinion in Rheox, Inc. v. Entact, Inc., 276 F.3d 1319 (Fed. Cir. 2002), issued after this court's opinion in SRAM I Because a controlling or significant change in the law is a proper basis for a motion for reconsideration, Quaker Alloy, 123 F.R.D. at 288, the court considers AD-II's argument, despite its failure to actually bring such a motion before the court.
In SRAM I, AD-II argued that an amendment submitted by SRAM to the Patent and Trademark Oflice in response to a rejection of the patent evidences a disclaimer by SRAM of a "rotatable" or non-stationary support member. This court rejected that argument, in part because such an interpretation would result in the patent not reading on the third preferred embodiment. An interpretation that defines the invention in a manner that excludes a preferred embodiment is rarely, if ever, correct and requires highly persuasive evidentiary support, which this court found lacking. SRAM I, 155 F. Supp.2d at 834 (citing, Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996)).
AD-II now argues that Rheox demonstrates that this court's rejection of AD-II's construction because it would define the invention in a manner that would not read on a preferred embodiment was misplaced. In fact, it is AD-II's reliance on Rheox that is misplaced. Indeed, contrary to AD-II's assertion, Rheox creates no new law and is perfectly consistent with this court's construction. In Rheox the Federal Circuit recognized that an interpretation excluding a preferred embodiment is rarely, if ever, correct and would require highly persuasive evidentiary support, but then held that "where the prosecution history requires a claim construction that excludes some but not all the preferred embodiments, such a construction is permissible and meets the standard of highly persuasive evidentiary support." Rheox, 276 F.3d at 1327. This holding followed, according to the court, from its "precedent that the prosecution history limits interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution." Id. (emphasis added).
Nothing in SRAM I is inconsistent with Rheox. This court did not hold or even imply in SRAM I that evidence in a prosecution history that the applicant had disclaimed an interpretation would not amount to "highly persuasive evidentiary support" sufficient to find that the patent should not read in the preferred embodiment. To the contrary, the court found no evidence in the prosecution history that SRAM had disclaimed any interpretation of the term "support member," except that the support member must retain the spring. SRAM I 155 F. Supp.2d at 833-34. This court found no evidence in the prosecution history that the applicant disclaimed a rotatable support member because all references in the amendment to "stationary" were made with specific respect to the description of the first two preferred embodiments only, in which the support member is stationary. Id.
In contrast, in Rheox the patent was rejected originally and a second time as obvious over the prior art. In the instant case, the application was rejected because "antecedent basis is lacking in the form of language followed by a reference character, for `support member'" The Rheox applicant responded to the rejection by amending its first claim, cancelling two other claims which had explicitly recited two specific chemical compounds found in the prior art, and amending a third claim to remove a reference to the chemical compound used by the alleged infringer. Rheox, 276 F.3d at 1322. In other words, the claim language in Rheox was changed to specifically eliminate that which the plaintiff later sought to claim. Faced with that prosecution history neither the district court nor the Federal Circuit had any difficulty concluding that ...