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GRUSSMARK v. GLAXOSMITHKLINE CONSUMER HEALTHCARE

August 25, 2005.

STEPHEN M. GRUSSMARK, Plaintiff,
v.
GLAXOSMITHKLINE CONSUMER HEALTHCARE, L.P., Defendant.



The opinion of the court was delivered by: MARK FILIP, District Judge

Memorandum Opinion and Order

Plaintiff Stephen Grussmark ("Plaintiff" or "Grussmark") filed this lawsuit against Defendant Glaxo Smith Kline Consumer Healthcare, L.P. ("Defendant" or "GSK"), alleging that GSK has infringed Grussmark's United States Patent No. 5,979,706 ("the '706 patent") by producing and selling GSK's "Floss `N' Cap" product. (D.E. 1.)*fn1 The case is before the Court on GSK's motion for summary judgment of non-infringement ("Motion"). (D.E. 24.) For the reasons stated below, the Motion is granted.

I. Background

  A. Lack of Compliance With Local Rule 56.1

  The Court takes the facts from the parties' respective statements submitted under Local Rule 56.1 ("L.R. 56.1"). L.R. 56.1 requires that statements of facts contain allegations of material fact, and the factual allegations must be supported by admissible record evidence. See L.R. 56.1(a); Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). The Seventh Circuit teaches that a district court has broad discretion to require strict compliance with L.R. 56.1.*fn2 See, e.g., Koszola v. Bd. of Ed. of City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Curran v. Kwon, 153 F.3d 481, 486 (7th Cir. 1998) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995) (collecting cases)). Where a party has offered a legal conclusion or a statement of fact without offering proper evidentiary support, the Court will not consider that statement. See, e.g., Malec, 191 F.R.D. at 583 ("[A] movant's 56.1(a) statement should contain only factual allegations. It is inappropriate to allege legal conclusions." (emphasis in original)); id. ("Factual allegations not properly supported by citation to the record are nullities."). Additionally, where a party has improperly denied a statement of fact by failing to provide adequate or proper record support for the denial, the Court deems admitted that statement of fact. See L.R. 56.1(a), (b)(3)(B); see also Malec, 191 F.R.D. at 584 (failure to adhere to L.R. 56.1 requirements, including citation to specific evidentiary materials justifying denial, is equivalent to admission).

  The Court notes that Grussmark, in particular, has substantially failed to comply with the strictures of L.R. 56.1. For example, Grussmark attempts to dispute certain statements in Defendant's Statement of Material Facts as to Which There Exists No Genuine Issue ("Def. SF") (D.E. 26) without providing any record support for his responses. (See, e.g., Counterstatement of Material Facts: Resp. to Def.'s Statement of Material Facts ("Pl. Resp.") (D.E. 36) ¶¶ 7, 9, 11, 12, 14.) Certain responses argue that the quotations excerpted by GSK do "not accurately and completely reflect the complete circumstances and statements made by Dr. Grussmark or his counsel in the prosecution of the '706 patent" (id. ¶¶ 7, 9, 11), but Grussmark does not point the Court to any portions of the record which support that argument. Other responses simply state "Disputed" with nothing more. (Id. ¶¶ 12, 14.) The Court deems all these statements admitted for the purposes of summary judgment. See L.R. 56.1(b)(3)(B); accord, e.g., Leibforth v. Belvidere Nat'l Bank, 337 F.3d 931, 934 n. 1 (7th Cir. 2003); Smith v. Lanz, 321 F.3d 680, 683 (7th Cir. 2003) ("We have consistently held that a failure to respond by the nonmovant as mandated by the local rules results in an admission."); Bordelon v. Chicago Sch. Reform Bd. of Trs., 223 F.3d 524, 528-29 (7th Cir. 2000) (affirming district court's decision to strike entire response to movant's statement of facts rather than searching for individual, proper statements; holding that "the purpose of [the predecessor rule of L.R. 56.1] — to require the parties to identify the disputed issues in a concise format — would be defeated if the court were required to wade through improper denials and legal argument in search of a genuinely disputed fact"). Grussmark also fails to provide record support for several of his own statements of fact. (See, e.g., Pl.'s Statement of Material Facts as to Which There Is No Genuine Issue ("Pl. SF") (D.E. 36) ¶¶ 15-18, 27, 35; Pl.'s Suppl. Counterstatement of Material Facts ("Pl. Supp. SF") (D.E. 50) ¶¶ 36, 37.) Without record support, the Court will not consider those statements. See Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002); Malec, 191 F.R.D. at 583 ("Factual allegations not properly supported by citation to the record are nullities.").

  GSK, too, has failed to comply with L.R. 56.1 on at least two occasions. The Court has reviewed the record citations for paragraphs 8 and 13 of GSK's statement of facts and finds that the record does not support these statements. (See Def. SF ¶¶ 8 (citing Def. Ex. I (Grussmark Dep.) at 99:9-15), 13 (citing Def. Ex. P (Abbott Dep.) at 73:3-22).) Thus, despite Grussmark's failure to offer proper evidentiary support for his denials, the Court will not consider these statements of fact because these other statements lack evidentiary support. See Metro Life Ins. Co., 297 F.3d at 562.

  B. Facts

  Grussmark is the owner of the '706 patent for a device titled "Combination Dental Floss Dispenser and Stand-Up Toothpaste Container." (Def. SF ¶ 5; see also Def. Ex. N ('706 patent).) The Background section of the '706 patent states:
Numerous devices have been developed to remind people to floss during the brushing process. For example, dental floss dispensers have been attached to toothpaste containers in various forms. . . . [Other patented] devices show dental floss dispensers attached to "standard" type toothpaste tube containers and "pump" type toothpaste tube containers.
The toothpaste industry had now developed a "new" flexible stand-up tube toothpaste container with a flip-open cap. This new stand-up container is significantly different from other containers because it is made from flexible plastic material and because the cap is constructed to form a base enabling the container to stand in an upright position.
('706 patent, col. 1, lines 25-39.) In the Summary of the Invention section of the '706 patent, Grussmark described his invention as "a combination dental floss dispenser and stand-up toothpaste container in which the dispenser is attached to the flip-open cap or screw-on cap of a stand-up container such that the container, cap, and dispenser are adapted to stand in the upright position on the dispenser." (Id., col.1, lines 47-51.) In the Description of the Invention, the tube is described as having "a soft plastic elongated body." (Id., col. 3, lines 26-27.) The Description also includes the following statement: "The tube 12 and the cap 14 are balanced and adapted to stand in the upright position on the base plate 40 of the second part of the cap 14 when placed on a substantially horizontal surface." (Id., col. 4, lines 7-10.) The disputed claims of the '706 patent claim, in pertinent part, the following:
1. A combination of a dental floss dispenser and a stand-up squeezable toothpaste container,
said stand-up toothpaste container comprising:
flexible tube means for storing toothpaste and a nozzle means at one end for selectively discharging toothpaste when a squeezing pressure is applied to said tube means;
* * * *
3. A combination of a dental floss dispenser and a stand-up squeezable toothpaste container,
said stand-up toothpaste container comprising:
flexible tube means for storing toothpaste and a nozzle means at one end for selectively discharging toothpaste when a squeezing pressure is applied to said tube means. . . .
('706 patent, col. 7, lines 20-26; id., col. 7, lines 55-61.)*fn3

  During the prosecution of the patent, Grussmark made several arguments regarding his invention.*fn4 For example, in seeking to overcome a rejection of pending claim 21 in his continuation application (which the examiner held was anticipated by the prior art of another patent, U.S. Patent No. 5,076,302 (referred to in the prosecution history, as well as here, as "Chari")), Grussmark argued that his claimed invention was distinct from Chari because the Chari patent did not incorporate a "stand-up squeezable toothpaste container." (Def. Ex. K at 10 (cited by Def. SF ¶ 9).) Grussmark distinguished the Chari container as "one where the container walls may be rolled up . . . for the purpose of forcing toothpaste from the container." (Id.) To the contrary, Grussmark argued, a "stand-up toothpaste container . . . will retain its shape even after discharging any part of the contents of the container." (Id.)

  During prosecution, Grussmark sought patent protection in proposed claim 22 for a dental floss dispenser attached to a squeezable tube that was not limited to a "stand-up" tube, but that claim was rejected. (Def. SF ¶ 10.) In his appeal to the Board of Patent Appeals and Interferences, Grussmark argued that the "stand-up" tube in his invention was distinct from the prior art "because it is made from a flexible plastic material which retains its shape after discharging any part of the contents of the container." (Id. ¶ 11.)

  GSK's Floss `N' Cap (which the Court observes to be a toothpaste tube with a dental floss dispenser attached to its cap (see D.E. 22)) is able to stand up on a counter when placed on its cap. (Pl. SF ¶ 19.) Defendant has adduced undisputed evidence that the Floss `N' Cap product does not retain its shape after discharging its contents. (Def. SF ¶ 12.) It is what is known in the industry as a "dead fold" product that, as the product gets used up, will remain flat if squeezed. (Def. SF ¶ 14.) The tube can be rolled up (id. ¶ 12), but it will not stay entirely rolled due to the effect of a plastic layer in the tube (Pl. SF ¶ 25).

  II. Legal Standards

  Summary judgment is appropriate in a patent case, as in any other case, where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Desper Prods., Inc. v. QSound Labs, Inc., 157 F.3d 1325, 1332 (Fed. Cir. 1998). Summary judgment is proper where, based on the evidence put forward by the nonmovant, no reasonable jury could find that the alleged infringer's product or process infringes the patent. See Frank's Casing Crew & Rental Tools, Inc. v. Weatherford Int'l, Inc., 389 F.3d 1370, 1376 (Fed. Cir. 2004); Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. ...


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