The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Cannon Rubber Limited and Avent America, Inc.
("Cannon") accuse Defendant The First Years, Inc. ("TFY") of
infringing Claims 3 and 5 of United States Patent No. 5,749,850
("the '850 patent"). On September 17, 2004, the Court issued an
order construing certain disputed claim limitations of Claims 1,
3 and 5. Cannon Rubber Ltd. v. The First Years, Inc., No. 03 C
4918, 2004 WL 2095669 (N.D. Ill. Sept. 17, 2004) (R. 126-1,
"Markman Order"). Four summary judgment motions and a motion to
amend are now before the Court.
Cannon filed three motions: (1) a motion for partial summary
judgment of infringement of Claims 3 and 5; (2) a motion for
partial summary judgment that the '850 patent is not invalid for
failure to disclose the best mode under 35 U.S.C. § 112, ¶ 1; and
(3) a motion for partial summary judgment that the '850 patent is
not invalid for indefiniteness under 35 U.S.C. § 112, ¶ 2 or lack
of written description under 35 U.S.C. § 112, ¶ 1. TFY filed a motion for summary judgment as to noninfringement
and invalidity.*fn1 TFY also filed a motion to amend its
answer to include the affirmative defense of inequitable conduct.
For the reasons stated herein, Cannon's motion for partial
summary judgment of infringement is denied. Cannon's motion for
partial summary judgment that the patent is not invalid for
failure to disclose the best mode is denied as moot. Cannon's
motion for partial summary judgment that the patent is not
invalid for indefiniteness or lack of written description is also
denied as moot. TFY's motion for summary judgment is granted as
to noninfringment and denied as moot as to invalidity. Finally,
TFY's motion for leave to amend its answer is denied as moot.
Summary judgment is proper 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). A genuine
issue of triable fact exists only if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 2510 (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 (1986). A party will successfully oppose
summary judgment only if it presents "definite, competent evidence to rebut the
motion." Equal Employment Opportunity Comm'n v. Roebuck & Co.,
233 F.3d 432, 437 (7th Cir. 2000). The Court "considers the
evidentiary record in the light most favorable to the nonmoving
party, and draws all reasonable inferences in his favor." Lesch
v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002).
A determination of patent infringement is a two-step process in
which the Court first construes the claims. Cybor Corp. v. FAS
Techs., Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998) (en banc).
The factfinder then compares the properly construed claims to the
accused device to determine, as a question of fact, whether all
of the claim limitations are present in the accused device. Id.
at 1454; Int'l Rectifier Corp. v. IXYS Corp., 361 F.3d 1363,
1369 (Fed. Cir. 2004).
Because the ultimate burden of proving infringement rests with
the patentee, an accused infringer seeking summary judgment of
noninfringement may meet its initial burden either by providing
evidence that would preclude a finding of infringement, or by
showing that the evidence fails to establish a material issue of
fact essential to the patentee's case. Vivid Tech., Inc. v.
American Sci. & Eng'g, Inc., 200 F.3d 795, 807 (Fed. Cir. 1999).
Summary judgment of noninfringement may be granted if, after
viewing the alleged facts in the light most favorable to the
patentee and drawing all justifiable inferences in the patentee's
favor, there is no genuine issue as to whether the patent claims
encompass the accused device. Novartis Corp. v. Ben Venue Labs.
Inc., 271 F.3d 1043, 1046 (Fed. Cir. 2001); Pitney Bowes, Inc.
v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed. Cir. 1999).
"To prove infringement, the patentee must show that the accused
device meets each claim limitation." Deering Precision Instruments, L.L.C. v. Vector
Distrib. Sys., Inc., 347 F.3d 1314, 1324 (Fed. Cir. 2003). This
is known as the "All Elements Rule." See Warner-Jenkinson Co. v.
Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S. Ct. 1040 (1997);
Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 935-36
(Fed. Cir. 1987) (en banc). Summary judgment of noninfringement
is proper where there is no genuine issue as to whether the
accused device lacks a single claim element or its equivalent.
Lockheed Martin Corp. v. Space Sys./Loral, Inc., 324 F.3d 1308,
1321 (Fed. Cir. 2003).
"An accused device literally infringes a claim if every
limitation recited in the claim appears in the accused device,
i.e., the properly construed claim reads on the accused product
exactly." Jeneric/Pentron, Inc. v. Dillon Co., 205 F.3d 1377,
1382 (Fed. Cir. 2000) (quoting ...