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Ball Aerosol and Specialty Container, Inc. v. Limited Brands

March 27, 2008

BALL AEROSOL AND SPECIALTY CONTAINER, INC. PLAINTIFF,
v.
LIMITED BRANDS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendants' (collectively referred to as "Limited Defendants") motion for reconsideration. For the reasons stated below, we deny Limited Defendants' motion for reconsideration in its entirety.

BACKGROUND

Plaintiff Ball Aerosol and Specialty Container, Inc. ("BASC") alleges that U.S. Can Company, Inc., BASC's predecessor, is the assignee of U.S. Patent No. 6,457,969 ("'969 Patent"). Claims 1 and 5 of the '969 Patent generally cover a candle tin comprised of a hollow candle holder in which a candle is placed and a cover that, when the candle is lit, is to be used as a base upon which to place the candle so that heat transferred through the bottom of the candle tin does not scorch the surface that the candle tin would otherwise be placed upon. Defendants Bath & Body Works, Inc., ("BBW") and Henri Bendel, Inc. ("Bendel") allegedly began selling the Henri Bendel Home Scented Travel Candle ("Accused Candle Tin") in March and April of 2004, respectively. Bendel purchased the Accused Candle Tin from BBW up to the Fall of 2005, and BBW has stopped manufacturing the Accused Candle Tin.

BASC brought the instant patent infringement action against Limited Defendants, alleging that the Accused Candle Tin infringes Claims 1 and 5 of the '969 Patent. In a memorandum opinion dated April 19, 2006, we construed various phrases used in the '969 Patent including the terms "Protrusions Formed," "Seat," and "Cup Shaped." On May 1, 2006, the parties filed cross motions for summary judgment. BASC asked for summary judgment on the issue of infringement. Limited Defendants asked for summary judgment on the issue of invalidity and non-infringement and also filed an alternative motion to limit damages as premature. On June 28, 2006, we granted summary judgment to BASC, finding Limited Defendants to be infringing the '969 Patent. We also carefully considered the issue of the '969 Patent's validity in response to Limited Defendants' motion and denied summary judgment for Limited Defendants on the issue of invalidity. In a separate order dated June 30, 2006 ("June 30 Order"), we found the patent to be valid as a matter of law based on the evidence presented in the cross motions for summary judgment. On May 16, 2007, both parties were afforded the opportunity to file supplemental briefs on the issue of validity in light of the Supreme Court decision in KSR International Co. v. Teleflex Inc., 126 S.Ct. 1727 (2007). After consideration of parties' briefs, we reaffirmed our decision on the issue of validity of the '969 Patent. Finally, in response to cross motions for summary judgment on the issue of damages, we issued a memorandum opinion on September 4, 2007, granting BASC's motion for summary judgment, determining a reasonable royalty rate, finding willful infringement, and awarding BASC total damages in the amount of $2,739,881 as to BBW and total damages in the amount of $94,605 as to Bendel.

Limited Defendants have filed the instant motion for reconsideration, asking this court to reconsider several rulings in this case dating back to our first memorandum opinion construing disputed claims in the '969 Patent.

LEGAL STANDARD

Federal Rule of Civil Procedure 59(e) ("Rule 59(e)") permits parties to file, within ten days of the entry of a judgment, a motion to alter or amend the judgment. Fed. R. Civ. P. 59(e). Rule 59(e) motions do not give a party the opportunity to rehash old arguments or to present new arguments or evidence "that could and should have been presented to the district court prior to the judgment." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)(citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)). Rather, for a Rule 59(e) motion, the movant "must clearly establish either a manifest error of law or fact or must present newly discovered evidence" in order to be successful. LB Credit Corp., 49 F.3d at 1267 (quoting Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). The decision of whether to grant or deny a motion brought pursuant to Rule 59(e) "is entrusted to the sound judgment of the district court. . . ." In re Prince, 85 F.3d 314, 324 (7th Cir. 1996).

DISCUSSION

In the instant motion for reconsideration, Limited Defendants ask this court to:

(1) vacate its order and memorandum opinion granting BASC summary judgment on the issue of infringement, (2) vacate the court's order finding the '969 Patent to be valid, (3) vacate the court's determination of a reasonable royalty rate, and (4) reconsider the finding of willful infringement.

I. Infringement

Limited Defendants argue that this court committed error in its memorandum opinion dated June 28, 2006, by granting summary judgment in favor of BASC and finding Limited Defendants to be infringing the '969 Patent. In that opinion, we carefully compared the Accused Candle Tin to Claims 1 and 5 in the '969 Patent and proceeded to review whether BASC satisfied summary judgment requirements by showing literal infringement of the '969 Patent. Taking into consideration our claim construction ruling dated April 19, 2006, we found that no reasonable trier of fact could conclude other than that there was literal infringement since the Accused Candle Tin is reasonably capable of operating in an infringing manner. Limited Defendants argue that this conclusion was erroneous alleging that it is based on an improper claim construction and alleging that the court used the improper standard.

A. Limited Defendants' Arguments Relating to Claim Construction Limited

Defendants first argue that this court's construction of the word "seat" in the April 19, 2006, claim construction ruling was "manifestly wrong." (Mot. Rec. Mem. 1). Claims 1 and 5 of the '969 Patent each required "protrusions resting upon the closed end of the cover to seat the holder of the cover." ('969 Patent, Col 5, Ln. 54-56); ('969 Patent Col 6, Ln. 27-29). During briefing on claim construction, the parties disputed the construction of the word "seat." (4/19/06 M.O. at 4-6). In our opinion dated April 19, 2006, we construed the word "seat" in Claims 1 and 5 to mean to "either rest or fit into the cover." (4/19/06 M.O. at 6). We declined to adopt Limited Defendants' more restrictive construction of the word "seat" as requiring "some level of engagement or fit - in this case between the holder and the cover." (4/19/06 M.O. at 4). In reaching this conclusion, this court followed the legal standard for claim construction which requires courts "[w]hen interpreting claims, [to] inquire into how a person of ordinary skill in the art would have understood claim terms at the time of the invention." Pfizer, Inc. v. Teva Pharmaceuticals, USA, Inc., 429 F.3d 1364, 1372-73 (Fed. Cir. 2005)(citing Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005)). We also noted that in applying this standard "the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent. . . ." Id.; Phillips, 415 F.3d at 1313-14. Looking closely at the language in Claims 1 and 5 of the '969 Patent, particularly in the context of the entire patent, we found that a person of ordinary skill in the art would construe the term "seat" to mean "to rest or fit into the cover." (4/19/06 M.O. at 6). In reaching that conclusion, we noted that other dependent claims in the patent specifically identified when there was a requirement that a recess be formed to allow engagement or fit between the holder and the cover. (4/19/06 M.O. at 5). No such limiting language existed in Claims 1 and 5, a fact that supported the conclusion that the term "seat" merely means to "either rest or fit into the cover." (4/19/06 M.O. at 6).

In the instant motion, Limited Defendants argue that the court was incorrect in reaching its construction of the term "seat" and that this misconstruction led to an erroneous ruling on infringement. However, Limited Defendants have not presented any new arguments or evidence to support their interpretation and have merely raised the exact same arguments already presented to this court when this court originally ruled on the issues of claim construction and on infringement. (D. Ans. Pre-Mark. 5). In fact, Limited Defendants have raised this argument with respect to the claim construction on numerous occasions throughout the litigation, at times unjustifiably. With respect to the claim construction, Limited Defendants merely rehash old arguments or they present new arguments or evidence "that could and should have been presented to the district court prior to the judgment." Moro, 91 F.3d at 876 (citing LB Credit Corp., 49 F.3d at 1267).

When construing the word "seat," this court considered all relevant case law and the arguments by both parties and determined that a person of ordinary skill in the art would have understood the term "seat" at the time of the invention to mean merely to rest upon or to fit into the cover. (4/19/06 M.O. at 5-6). In presenting the same semantic argument that the plain language of the '969 Patent requires a "nesting feature" between the holder and the cover, Limited Defendants have not met the burden necessary to succeed on a motion for reconsideration. See LB Credit Corp., 49 F.3d at 1267 (stating that to be successful on a motion for reconsideration, the moving party "must clearly establish either a manifest error of law or fact or must present newly discovered evidence").

B. Limited Defendants' Arguments Relating to the Capability Standard Limited

Defendants also claim that the court's finding of infringement was based on an erroneous understanding of Federal Circuit precedent in the cases of Intel Corp. v. U.S. Int'l Trade Comm'n, 946 F.2d 821 (Fed. Cir. 1991), and High Tech Medical Instrumentation v. New Image Indus., 49 F.3d 1551 (Fed Cir. 1995).

In granting summary judgment to BASC on the issue of patent infringement, we found that even after viewing the record in a light most favorable to Limited Defendants, the Accused Candle Tin literally infringed on each of the claim limitations in the '969 Patent. Ferguson Beauregard/Logic Controls v. Mega Sys., 350 F.3d 1327, 1338 (Fed. Cir. 2003)(stating that an accused product must include every claim limitation of the asserted claims in order to be literally infringing).

During summary judgment briefing, the parties disputed whether the legal standard required BASC to offer undisputed evidence of actual use of the Accused Candle Tin in violation of the '969 Patent, or whether literal infringement could be found simply since the Accused Candle Tin was reasonably capable of performing the functional limitations in Claims 1 and 5 of the '969 Patent. In Intel, the Federal Circuit held that to support a finding of infringement, a device "need only be capable of operating" in an infringing manner. 946 F.3d at 832. However, at the summary judgment phase, Limited Defendants pointed to the Federal Circuit's statement in High Tech, that "a device does not infringe simply because it is possible to alter it in a way that would satisfy all limitations of a patent claim." 49 F.3d at 1555. In our decision granting summary judgment based on literal infringement, we agreed with the proposition that literal infringement would not exist in all cases where an accused product is capable of being altered into an infringing configuration. We noted Federal Circuit precedent stating that "as in every infringement analysis, the language of the claims, as well as the nature of the accused product, dictates whether an infringement has occurred." Fantasy Sports Prop., Inc. v. Sportsline.com, Inc., 287 F.3d 1108, 1118 (Fed. Cir. 2002).

In the instant action, the undisputed evidence in the record on summary judgment showed that the Accused Candle Tin could be placed in an infringing manner through the placing of the removable cover under the holder as a base with absolutely no physical alteration to the Accused Candle Tin itself. (6/28/06 M.O. at 16-17). Based on the record, at the summary judgment phase, and the precedent of the Federal Circuit in Intel,this court found that no reasonable fact finder could conclude other than that the Accused Candle Tin literally infringed on the '969 Patent.

In the instant motion, Limited Defendants rehash their argument that High Tech is applicable to the instant action and that it narrows the scope of Intel in this case. (D. Ans. PSJ Infring. 13-14). As a preliminary matter, Limited Defendants' argument relating to infringement fails since it consists of both arguments already raised when this court ruled at the summary judgment stage and arguments that should have been raised at that time. Moro, 91 F.3d at 876; LB Credit Corp., 49 F.3d at 1267. Also, the court did apply the correct standard when ruling on summary judgment and did not "impermissibly broaden the patent" as is claimed by Limited Defendants. (Mot. Rec. Mem. 4). Limited Defendants strain to distinguish the instant action from the facts of Intel in an attempt to bring the matter outside of the province of the well-established standard that a device infringes a patent if it is "reasonably capable" of infringement. Intel, 49 F.3d 1555.

Limited Defendants argue that the court overlooked the language in the '969 Patent in reaching its finding of infringement. According to Limited Defendants, there was no "capability" language in the '969 Patent that would bring the instant action under the standard in Intel. (D Mot. Rec. Mem. 3-4). Limited Defendants claim that the only possible way the Intel standard would apply would be if the '969 Patent used the words "placeable" and "settable" rather than the words "being placed upon the surface with the holder being set upon the cover to support the holder." (D. Mot. Rec. Mem. 3-4). Limited Defendants state that since the patent language does not use the suffix "-able" to describe the actions relating to the use of the product, it lacks the capability element that would bring it under the Intel standard. (D. Mot. Rec. Mem. 3-4). They ...


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