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MARLEY MOULDINGS LIMITED v. MIKRON INDUSTRIES

February 19, 2004.

MARLEY MOULDINGS LIMITED, a Nevada corporation, Plaintiff,
v.
MIKRON INDUSTRIES, INC., a Washington corporation, Defendant



The opinion of the court was delivered by: JOHN W. DARRAH, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Marley Mouldings Limited ("Marley"), commenced a patent infringement action against Mikron Industries, Inc. ("Mikron") for the infringement of United States Patent 5,951,927 ("927 Patent"). Presently before the Court are Mikron's Motion for Summary Judgment of Invalidity, Mikron's Motion for Partial Summary Judgment of Noninfringement, and Marley's Motion for Summary Judgment of Literal Infringement.

BACKGROUND

  The 927 Patent is directed to a method for making plastic extrusions that contain, wood flour as set forth in the single independent claim 1. Claim 1 states:
A method of forming a solid elongated member of predetermined profile for use as a door, window or frame molding, comprising the steps of:
encapsulating wood flour particles with a polymer resin in an extrudable material by high intensity mixing, said extrudable material consisting essentially of, in parts (volume):
polymer resin: in an amount up to 100
  wood flour: 15-140 Page 2

  stabilizers: in an amount up to 5

  lubricants: in an amount up to S

  process aids: in an amount up to 10,
extruding and cutting said extrudable material to form pellets of said extrudable material,
mixing additional polymer resin and a non-aqueous blowing agent with said pellets to form an extrudable foam material,
compressing said extrudable foam material at a compression stage by passage through an orifice, said orifice having at one end thereof a predetermined profile, said foam material consisting of, in parts (volume):
polymer resin: in an amount up to 100
wood flour: 15-140
stabilizers: in an amount up to 5
lubricants: in an amount up to 5
process aids: in an amount up to 10
blowing agents: .2 to 5
expanding said foam material through a shaper, said shaper having an internal solid surface defining a channel for said foam material, and solidifying said foam material to form a solid elongated member.
(Def.'s 56.1(a)(3) Statement ¶ 1).

  Mikron manufactures or has manufactured polymer resin/wood flour extrusions which are cut to specified lengths for use in windows, frames, slats for window coverings, and window blinds. (Def.'s 56.1(a)(3) Statement ¶ 2). The composite extrusions are currently sold under the product name Mikronwood® XTR. (Id., ¶ 3). Marley asserts that Mikron's manufacture of its Mikronwood® XTR foamed wood flour and polymer extrusions constitutes infringement of Claims 1, 2, 3, and 5 of the 927 Patent. (Id., ¶ 4).

  Claim 1 of the 927 Patent identifies a "foam material consisting essentially of, in parts (volume): polymer resin: in an amount up to 100. . . ." (Def.'s 56.1(a)(3) Statement ¶ 5). Claim 1 also Page 3 recites that wood flour particles are encapsulated with polymer resin. (Plaint's 56.1(3)(b) Statement ¶ 1). The parties' technical experts disagree whether the lower bound of resin quantity to obtain a foamed extrudable product can be determined without undue experimentation. (Def.'s 56.1(a)(3) Statement ¶ 7). However, there must be some minimum quantity of polymer resin greater than zero parts by volume to obtain a foamed extrudable product. (Id., ¶ 8).

  The 927 Patent does not specifically recite a method for calculating the volume of wood flour ingredient in the foam material. (Def.'s 56.1(a)(3) Statement ¶ A11; Plaint's Response to ¶ 11). The weight or mass of the wood flour listed in Claim 1 can vary in volume, depending on the bulk density. (Id., ¶ 12). The 927 Patent also does not specifically recite a method for measuring bulk density of wood flour ingredients. (Id., ¶ 13). Volume can be calculated by dividing bulk density by weight or mass. The minimum percent volume of wood flour the final formulation required for literal infringement of claim of the 927 Patent stays the same, 10.7 percent. (Plaint's 56.1(3)(b) Statement ¶ 5).

  Experimentation, such as mixing a batch of a test formulation and running it through the extruder, is common in the extrusion industry to determine whether a given formulation will achieve the required characteristics of the end product. Such experimentation may take from several days to several weeks to determine the appropriate formula for a satisfactory product (Plaint's 56.1(3)(b) Statement ¶ 2).

  Marley's technical expert, Dr. Giacomin, stated that infringement can be evaluated by calculation of volume using both the highest and lowest bulk density values provided on a specification sheet from a wood flour supplier. (Def.'s 56.1(a)(3) Statement ¶ 16). Page 4

  ANALYSIS

  Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). All the evidence and the reasonable inferences that may be drawn from the evidence are viewed in the light most favorable to the nonmovant. Miller v. American Family Mutual Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). Summary judgment may be granted when no "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 ...


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