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 parenthetical explanation as a singular noun to avoid awkward verb usage) initially brought this action to charge that Bodum, Inc. ("Bodum") had "infringed, induced and/or contributed to the infringement" of two of Meyer's 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"). This Court's February 11, 2009 memorandum opinion and order ("Opinion," 597 F.Supp.2d 790) granted summary judgment in Meyer's favor as to such infringement by Bodum products then on the market.
With Bodum now having redesigned some of its products in an effort to avoid further liability, Meyer has again moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, this time invoking only Patent '122 to target Bodum's new products. For the reasons stated in this memorandum opinion and order, Meyer's motion is granted in part and denied in part.
Summary Judgment Standards
Every Rule 56 movant bears the burden of establishing the absence of any genuine material factual dispute (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 disputed 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 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.*fn1
According to its Abstract, Patent '122 describes a "method which permits the frothing of a liquid, such as milk, without the need for traditional steam and/or electricity." Bodum admits that it obtained notice of Patent '122 through the filing of the Complaint (B. Add. St. ¶22). As stated earlier, the Opinion addressed, and found against Bodum on, its milk frothers that were on the market when Meyer filed the Complaint (the "Version 1 frothers").
About May 2007 Bodum had already begun the process of redesigning the Version 1 frothers (B. Add. St. ¶32). While the Version 1 frothers comprised a container, a lid and a plunger assembly that may be pumped up and down within the container (M. St. ¶1), Bodum initially redesigned the Version 1 frothers by substituting a plunger assembly from an existing Bodum coffee press (B. Add. St. ¶33). That substitute differed from the Version 1 plunger in that it (1) featured a silicone O-ring surrounding the screen and (2) did not feature a spring or "feet-like protrusions" at the base (M. Mem. 1; M. St. ¶¶2, 5, 10).
As for the first of those differences, Bodum maintains that it had intended to remove the O-ring from the substitute plunger before producing the redesigned frothers (B. Add. St. ¶¶33-34).
In that respect Claims 19-21 and 23-25 of Patent '122*fn2 include a limitation providing that "substantially no liquid passes between the circumference of the plunger body and the inside wall of the container" when the frother is operated (M. St. ¶18; Patent '122 7:17-8:4, 8:7-31). Bodum reasoned that it could circumvent that limitation (and thus avoid infringement) by removing the O-ring, so that a greater amount of liquid could pass between the plunger and the container (B. Add. St. ¶33). But Bodum mistakenly produced and sold frothers with O-rings ("Version 2 frothers") during a period that began about July 2007 and ran through June 2008 (M. St. ¶¶5, 8; B. St. ¶5; B. Add. St. ¶34). Later Bodum removed the O-ring, creating its second redesign ("Version 3 frothers"), which it began selling about July 2008 (M. St. ¶¶9, 10; B. Add. St. ¶34).
Meyer's motion argues that this Court should grant summary judgment on the issue of Bodum's liability for infringement of Patent '122 by both its Version 2 and its Version 3 milk frothers. Meyer contends that Bodum is liable for both direct infringement under 35 U.S.C. 271(a)*fn3 and inducement of infringement under Section 271(b), and it asserts that Versions 2 and 3, when operated according to Bodum's ...