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MIDWEST CANVAS CORPORATION v. CANTAR/POLYAIR CORP.

September 3, 2003

MIDWEST CANVAS CORPORATION, PLAINTIFF,
v.
CANTAR/POLYAIR CORP., AND LESLIE'S POOLMART, INC., DEFENDANTS



The opinion of the court was delivered by: Wayne Andersen, District Judge

MEMORANDUM, OPINION AND ORDER

This case is before the Court on the defendants' motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the motion for partial pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the motion for partial summary judgment is granted.

BACKGROUND

Plaintiff Midwest Canvas Corporation ("Midwest Canvas") is a corporation organized under the laws of the State of Illinois with its principal place of business in Chicago, Illinois. Among other things, Midwest Canvas is engaged in the business of manufacturing and marketing lightweight plastic swimming pool covers which have been designed to keep debris out of swimming pools and to help heat the pool and retain the heat of the pool. Defendant Cantar/Polyair Corporation ("Cantar") is a corporation organized under the laws of the State of Delaware with its principal place of business in Chicago, Illinois. Defendant Leslie's Poolmart, Incorporated ("Leslie's") is a corporation organized under the laws of the State of Delaware with its principal place of business in Phoenix, Arizona. Page 2

Prior to November of 1996, Gary Handwerker, owner and Chief Executive Officer of Midwest Canvas, conceived of and developed a pool cover having a reflective lower layer specifically constructed and adapted to reflect heat already in the pool water back into the pool water. On October 30, 1996, Midwest Canvas' new swimming pool cover was presented to Maxim Technologies/Twin City Testing, Inc. for the purpose of determining the heat retentiveness in the pool water when the new reflective pool cover was utilized compared to Midwest Canvas' prior non-reflective pool cover. These tests established that a 14.6% improvement in pool water heat retention was achieved using the new pool cover. On November 12, 1996, Handwerker filed an application with the United States Patent and Trademark Office to have the new pool cover patented. After a lengthy prosecution of the application, patent no. 6,286,155 (the "`155 patent") was issued to Handwerker (and Midwest Canvas as assignee) for the new reflective pool cover on September 11, 2001.

From December 1997 through July 1998, Midwest Canvas became aware that Cantar and Leslie's had recently introduced to the market a reflective pool cover that was substantially identical to the reflective pool cover marketed by Midwest Canvas, and which is the subject of the `155 patent. Specifically, Midwest Canvas alleges that Cantar's "Solar Trap" pool cover was substantially identical to its pool cover. Both parties concede that Cantar's production/sale and Leslie's sale of the "Solar Trap" pool cover cannot be considered infringing the `155 patent until September 11, 2001, when the patent was actually issued to Handwerker.

On September 13, 2001, Midwest Canvas filed the instant patent infringement suit against Cantar and Leslie's alleging that the production and sale of the "Solar Trap" pool cover after September 11, 2001 was an infringement on the rights protected by the `155 patent. After a Page 3 brief period of discovery was conducted, the defendants requested that this Court hold a Markman hearing to resolve issues pertaining to the construction of certain claims in the `155 patent. Specifically, disputes arose between the parties as to the proper interpretation of the terms "dark color," "reflective surface," and "substantial amount." On December 2, 2002, a Markman hearing was held.

During the course of this hearing, certain testimony was elicited from the plaintiff that prompted the defendants to file this motion for partial summary judgment on the issues of infringement and patent validity. The nature of that testimony will be discussed in detail below. The motion for partial summary judgment is now fully briefed and ripe for decision.

DISCUSSION

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate, in a patent case as in any other case, when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); C.R. Bard, Inc. v. Advanced Cardiovascular Systems, Inc., 911 F.2d 670, 672 (Fed. Cir. 1990). "to determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the opponent." Chiuminatta Concrete Conceptst Inc. v. Cardinal Industries, Inc., 145 F.3d 1303, 1307 (Fed. Cir. 1998). We will grant such a motion only when "no `reasonable jury could return a verdict for the nonmoving party.'" Id, (quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986)). Page 4

1. Does the accused product infringe the `155 patent?

Patent infringement occurs when someone "without authority makes, uses, offers to sell, or sells any patented invention. . . ." 35 U.S.C. § 271(a). We analyze infringement in two steps: first, we determine the meaning and scope of the patent claims asserted to be infringed; and second, we compare the properly construed claims to the product or process accused of infringing. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995), affd 517 U.S. 370 (1996).

1. Claim Construction

The first step, claim construction, is a question of law and, as such, is made exclusively by the Court and involves ascertaining the true meaning and scope of each claim. Id. at 978. Claims are the metes and bounds of a patent and must be interpreted in light of the claim language and specifications, the prosecution history, the other claims in the patent, the prior art, and the interpretation that those skilled in the art would give the claim. See Premier Networks, Inc. v. Lucent Tech., Inc., 2003 WL 21290835, at *1 (N.D. III ...


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