The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Clipco, Ltd. ("Clipco") sues Ignite Design, LLC ("Ignite") for
patent infringement pursuant to 35 U.S.C. § 271 et seq., and
breach of a license agreement. The parties cross-move for summary
judgment on the infringement issue.
The following facts are undisputed. U.S. Patent No. 5,270,909
("the `909 patent") entitled "Openable Handle Attachment" was
filed with the United States Patent and Trademark Office on
November 20, 1992, and issued on December 14, 1993. Clipco Facts
at ¶ 6. The patent describes "an openable and reclosable, rigid
integral handle attachment for small portable items to permit
quick, facile selective attachment to and release from another
item, such as a backpack or belt." Ignite Add'l Facts at ¶ 1. The
patent identifies Jennifer Weiss Kaslow, president of Clipco, and
her father Richard Weiss as co-inventors of the patent. Clipco
Facts at ¶¶ 5-6. Clipco is the sole owner of the `909 patent by
assignment. Id. at ¶ 7; Ignite Facts at ¶ 1. Ignite manufactures and sells insulated mugs and coffee
presses. Ignite Facts at ¶ 12. In December 2002, Clipco granted
Ignite a non-exclusive, royalty-bearing license to use the `909
patent. Clipco Facts at ¶ 8. In September 2003, Ignite informed
Clipco that it did not believe its products were covered by the
patent. Id. Ignite never paid royalties to Clipco under the
license agreement. Id. Ignite sells Extreme Tumbler mugs and an
Extreme Coffee Press to Starbucks Corporation. Id. at ¶ 9. At
one time, Ignite marked certain products with the `909 patent
number. Id.
Clipco alleges that Ignite's Extreme Tumbler Mug infringes
Claims 2-7, 20 and 21 of the `909 patent. Ignite Facts at ¶ 13.
Clipco alleges Ignite's Extreme Coffee Press infringes Claims 2-7
and 20. Id. Claims 2 and 21 are independent claims. Id. at ¶
14. Claim 2 states:
An openable handle for attachment to a portable
object, the handle comprising:
an elongated first arm having first and second
opposed ends and extending therebetween and an
elongated second arm having first and second opposed
ends and extending therebetween, said first arm and
said second arm each being connected to the object by
the corresponding first ends thereof in spaced
relation to each other and in such manner that said
handle is attached to the object so as not to be
separable therefrom, the second end of said first arm
and the second end of said second arm each extending
outwardly from the object attached to said handle and
defining therebetween a site for locating means for
making said handle openable; and
means for making said handle openable located at the
site between the second end of said first arm and the
second end of said second arm and permitting
selective passage therethrough of a member from which
the object is to be suspended, said means for making
said handle openable being automatically recloseable
after opening.
Clipco Ex. 18, col. 11, In. 4-27. Claim 21 states:
The combination of a mug and an openable handle
therefor, wherein said openable handle comprises
an elongated first arm having first and second ends
and extending therebetween and an elongated second
arm having first and second opposed ends and
extending therebetween, said first arm and said
second arm each being connected to the mug in spaced
relation to each other, the first end of said first
arm and the first end of said second arm each being
connected to the mug in such manner that the handle
is integrally attached thereto so as not to be
removable from the mug, the second end of said first
arm and the second end said second arm each extending
away from the mug attached to said handle and
defining therebetween a site for making said handle
openable; and
means for making said handle openable located at the
site between the second end of said first arm and the
second end of said second arm and permitting
selective passage therethrough of a member from which
the mug is to be suspended, said means for making
said handle openable being automatically recloseable
after opening.
Id. at col. 14, In. 29-52.
Claims 3-7 and 20 are dependent claims. Ignite Facts at ¶ 14.
Claim 3 states:
The openable handle of claim 2, wherein said means
for making said handle openable is an elongated
member having first and second opposed ends and
extending therebetween, the first end of said
elongated member being pivotally connected to the
second end of one of said first arm and said second
arm and the second end of said elongated member
including means for selectively openable latchable
connection to the second end of the other of said
first arm and said second arm.
Id. at col. 11, In. 27-35.
Claim 4 requires that the means for making the handle openable
be recloseable after opening. Clipco Facts at ¶ 23. Claim 5
requires that the means for making the handle openable be
repeatedly openable and recloseable. Id. at ¶ 24. Claim 6 adds
a limitation requiring that the means for making the handle openable include a spring for effecting automatic
reclosing of the openable portion. Id. at ¶ 25. Claim 7
requires that the means for making the handle openable be in the
form of a latching mechanism of a carabiner. Id. at ¶ 26. A
carabiner is "an oblong metal ring with one spring-hinged side
that is used especially in mountain climbing as a connector and
to hold a freely running rope." Id. Claim 20 requires that the
central openable portion may be opened by a single finger and
automatically returns to the closed position when the finger is
removed. Id. at ¶ 27.
Clipco and Ignite contested the "elongated arm" and "means for
making said handle openable" claim limitations in Claims 2 and
21. Id. The court construed "elongated arm" to mean "an
attachment that is long in comparison to its width and that
generally extends horizontally outward." Id. at ¶ 13; see
also Memorandum Opinion & Order, 2/23/05, Dkt. No. 36 at 9. It
is uncontested that Ignite's Extreme Tumbler Mug and Extreme
Coffee Press contain one elongated arm as construed by the court.
Clipco Facts at ¶ 15. The court also construed the
means-plus-function limitation to require the means for making
the handle openable perform two functions: (1) make the handle
openable; and (2) make the handle automatically recloseable.
Id. at ¶ 14; Dkt. No. 36 at 11. The court identified Figs. 1-5,
16 and 17 as containing the corresponding structure for the
required functions of the means-plus-function limitation. Id.;
Dkt. No. 36 at 12-13. The tumbler mug and coffee press include
pivot levers that can be opened by exerting pressure with a
single finger. Id. at ¶ 21. When the finger is released, the
levers automatically reclose. Id. DISCUSSION
On cross-motions for summary judgment, each movant must satisfy
the requirements of Rule 56. EEOC v. Admiral Maint. Serv.,
L.P., No. 97 C 2034, 1998 WL 102748, at * 6 (N.D. Ill. Feb. 26,
1998). Summary judgment is appropriate when the moving papers and
affidavits show there is no genuine issue of material fact and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Once a moving party meets its burden, the non-moving
party must go beyond the pleadings and set forth specific facts
showing there is a genuine issue for trial. Fed.R.Civ.P. 56
(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir.
1999). The court considers the record as a whole and draws all
reasonable inferences in the light most favorable to the party
opposing the motion. Bay v. Cassens Transport Co.,
212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact exists
when "the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
An infringement analysis requires two steps: claim construction
and comparison of the alleged infringing product with the patent
claims. See Markman v. Westview Instr., Inc., 52 F.3d 967, 979
(Fed. Cir. 1995), aff'd 517 U.S. 370 (1996); Intellicall, Inc.
v. Phonometrics, Inc., 952 F.2d 1384, 1387-89 (Fed. Cir. 1992).
The court has already performed the first step by construing the
disputed claims. See Memorandum Opinion & Order, 2/23/05, Dkt.
No. 3. Comparison of the claims with the accused devices, in a
summary judgment setting, requires a determination that "a
reasonable trier of fact could find that every limitation in
every construed claim at issue" is found in the infringing
products. Unidynamics Corp. v. Automatic Prods. Int'l, Ltd.,
157 F.3d 1311, 1316-17 (Fed. Cir. 1998). "A patent is infringed if a single claim is
infringed." Intervel America, Inc. v. Kee-Vet Lab., Inc.,
887 F.2d 1050, 1055 (Fed. Cir. 1989); see also Deering Precision
Instr., LLC v. Vector Distrib. Sys., 347 F.3d 1314, 1324 (Fed.
Cir. ...