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CANNON RUBBER LIMITED v. FIRST YEARS INC.

September 27, 2004.

CANNON RUBBER LIMITED and AVENT AMERICA, INC., Plaintiffs,
v.
THE FIRST YEARS INC., Defendant.



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.

  LEGAL STANDARDS

  I. Summary Judgment

  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).

  II. Patent Infringement

  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).

  A. Literal Infringement

  "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 ...


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