The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Pro se*fn1 Plaintiff Yoon Ja Kim ("Kim") filed a four
count complaint against Defendant Dawn Food Products, Inc.
("Dawn"), alleging breach of contract (Count I), fraud*fn2
(Count II), trade secret misappropriation (Count III), and
infringement of United States Patent No. Re. 36,355 ("the '355 patent") (Count IV).
In response, Dawn asserts the following affirmative
defenses:*fn3 Count III is barred by the statute of
limitations; the '355 patent is invalid under 35 U.S.C. §§ 102,
103; and the '355 patent is invalid for indefiniteness under
35 U.S.C. § 112. Dawn further seeks a declaratory judgment that Dawn
does not infringe the '355 patent (Counterclaim I), and a
declaratory judgment that the '355 patent is invalid under
35 U.S.C. §§ 102 and 103 (Counterclaim II).*fn4
For the reasons stated herein, the Court grants summary
judgment of noninfringement (Count IV), and grants Dawn's motion
for declaratory judgment of noninfringment (Counterclaim I).
Counterclaim II, Dawn's summary judgment motion as to invalidity,
and the affirmative defenses as to invalidity are denied as moot.
The Court declines to exercise supplemental jurisdiction over
Kim's state law claims of breach of contract (Count I) and trade
secret misappropriation (Count III). LEGAL STANDARD
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). The language of the claims is the starting point for all claim
construction analysis, because it frames and ultimately resolves
all issues of claim interpretation. Robotic Vision Sys., Inc. v.
View Eng'g, Inc., 189 F.3d 1370, 1375 (Fed. Cir. 1999); Abtox,
Inc. v. Exitron Corp., 122 F.3d 1019, 1023 (Fed. Cir. 1997). In
construing an asserted claim, the analytical focus of the
construction must begin, and remain centered, on the language of
the claims themselves. Texas Digital Sys., Inc. v. Telegenix,
Inc., 308 F.3d 1193, 1201-02 (Fed. Cir. 2002).
In the absence of an express intent by the patentee to impart a
novel meaning to a claim term, the words are presumed to take on
the ordinary and customary meaning attributed to them by those of
ordinary skill in the art. Teleflex, Inc. v. Ficosa N. Am.
Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). The Court may
determine the ordinary and customary meaning of a claim term by
reviewing a variety of sources, beginning with the intrinsic
evidence consisting of the claim terms themselves, the written
specification, drawings, and prosecution history. Vitronics
Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.
1996). The Court may consult dictionaries, encyclopedias and
treatises to determine the ordinary meaning of a word. Texas
Digital, 308 F.3d at 1202-03.
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).
A court may grant summary judgment of noninfringement 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 Amhil Enters., Ltd. v. Wawa,
Inc., 81 F.3d 1554, 1562 (Fed. Cir. 1996)). An accused device
infringes a claim under the doctrine of equivalents if it
performs substantially the same overall function, in
substantially the same way, to produce substantially the same
overall result as the claimed invention. Warner-Jenkinson,
520 U.S. at 40; Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,
339 U.S. 605, 608, 70 S. Ct. 854, 856 (1950). BACKGROUND
Kim is the named inventor and holder of the '355 patent, which
issued on October 26, 1999 as a reissue of United States Patent
No. 5,510,129 ("the '129 patent"). Kim filed the application that
ultimately issued as the '129 patent on September 19, 1994. The
'129 patent issued on April 23, 1996. The '129 patent was a
continuation-in-part of Patent Application Serial No. 147,995,
which Kim filed on November 5, 1993 and has since abandoned.
The '355 patent discloses a potassium bromate replacer
comprising an ascorbic acid composition that acts as a slow
acting oxidant in the breadmaking process. '355 patent, col. 3,
Ins. 8-10. Potassium bromate, an oxidizing agent for bread dough,
was once widely used in the breadmaking industry. Its use became
less common, however, after the FDA discovered that it causes
cancer in laboratory animals. The invention of the '355 patent
serves as a substitute for potassium bromate.
Kim alleges that Dawn manufactures various bread mixes that
infringe Claims 5, 6, 7, 8, and 10 of the '355 patent. Dependent
Claims 6, 7, and 8 depend from Claim 5. Accordingly, Claims 6, 7,
and 8 contain all of the limitations of Claim 5. 35 U.S.C. § 112,
Claim 5 recites:
A potassium bromate replacer composition consisting
essentially of, by weight:
(a) about 0.001 to 0.03 parts ascorbic acid as an
oxidant per 100 parts flour;
(b) about 0.015 to 0.2 parts food acid per 100 parts
flour, said food acid selected from the group
consisting of acetic acid, citric acid, fumaric acid, lactic acid, malic acid, oxalic acid, phosphoric
acid, succinic acid, tartaric acid, fruit juice,
fruit juice concentrate, vinegar, wine, and mixtures
'355 patent, col. 8, Ins. 47-57.
Dependent Claim 6 recites: "The composition of Claim 5, wherein
said food acid slows down oxidation of ascorbic acid to
dehydroascorbic acid during a manufacturing process of
yeast-leavened products." '355 patent, col. 8, Ins. 58-61.
Dependent Claim 7 recites: "The composition of Claim 5, wherein
said ascorbic acid acts as a slow acting oxidant that is
functional throughout the entire manufacturing process ...