The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Meyer Intellectual Properties Limited and Meyer Corporation, U.S. (collectively "Meyer," treated after this sentence as a singular noun to avoid awkward verb usage) claim that Bodum, Inc. ("Bodum") "infringed, induced and/or contributed to the infringement" of two of its United States patents: Numbers 5,780,087 ("Patent '087," entitled "Apparatus and Method for Frothing Liquids") and 5,939,122 ("Patent '122," entitled "Method for Frothing Liquids")(collectively "Meyer Patents")(see the Complaint's Request for Relief ¶B). Meyer has now moved for summary judgment under Fed. R. Civ. P. ("Rule") 56 on the issue of Bodum's liability for patent infringement.*fn1 For the reasons stated in this memorandum opinion and order, this Court grants that motion.
Summary Judgment Standards
Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider evidentiary records in the light most favorable to the nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a non-movant "must produce more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is a summary of the facts viewed of course in the light most favorable to non-movant Bodum--but within the limitations created by the extent of its compliance (or noncompliance) with the strictures of LR 56.1.*fn2
Patent '087 was issued July 14, 1998 (M. St. ¶5), and Patent '122 was issued August 17, 1999 (M. St. ¶6). Meyer filed its Complaint here in November 2006, alleging that Bodum "has been and still is using, selling, offering for sale and/or importing one or more milk frother products" that "infringe, directly indirectly, contributorily and/or by inducement" the Meyer Patents (Complaint ¶¶8, 12). Bodum admits that it obtained notice of the Meyer Patents through the filing of the Complaint (B. St. ¶25) and that it continued to use, sell, offer for sale and/or import the three types of milk frothers--designated as the Shin Bistro, Aerius and Chambord--for some period of time thereafter (B. St. ¶11). Bodum does not, however, believe that its sale of those frothers constituted infringement of the Meyer Patents because it considers the Meyer Patents invalid (B. Add. St. ¶¶1, 2).
Meyer confines its motion for partial summary judgment to the issue of Bodum's liability for infringement of the Meyer Patents (M. Mem. 1-2). In so doing Meyer argues that Bodum both directly infringed the Meyer Patents (M. Mem. 8-9) and induced others to do so (M. Mem. 9).
Bodum responds with a narrower characterization (B. Mem. 1 n.1):
The only issue before the Court is whether Bodum induced infringement under 35 U.S.C. §271(b) through the sale of certain frother products sold by Bodum as of the date of the complaint.
And to support that position, Bodum cites what it calls the first footnote in Meyer's motion (id.). But in fact Meyer's short motion has no footnotes. No doubt Bodum meant to cite the first footnote in Meyer's Memorandum (M. Mem. 1 n.1):
After initiation of this litigation, Bodum changed the design of its milk frother products. The present motion establishes infringement over the products originally accused of infringement. The redesigned products will be treated in a separate motion.
Just how Bodum manages to read that statement as identifying the only issue to be resolved as whether Bodum is liable for inducement is hard to understand. Meyer's motion and supporting memorandum quite clearly address not only whether Bodum is liable for inducing others to infringe the Meyer Patents but also whether Bodum itself directly infringed those patents.
So Bodum's citation to the Meyer footnote as somehow constricting the scope of the motion solely to inducement is simply wrong. Instead the footnote says that Meyer has limited its current motion to the question whether Bodum is liable for infringement of the products "originally accused of infringement," as contrasted with Bodum products that were redesigned after this action was brought.
Moreover, the issue of infringement is necessarily encompassed within the issue of inducement to infringe. Yet Bodum's own flawed characterization of Meyer's motion has led it to speak only to the issue of whether Bodum induced third parties to infringe the Meyer Patents. Thus Bodum's entire defense against the current motion essentially comes down to three arguments: (1) that Meyer failed to provide sufficient evidence of inducement, (2) that Bodum could not induce infringement because the Meyer Patents are invalid and (3) that Bodum could not induce infringement because no third ...