Order Form (01/2005)Case: 1:04-cv-06372 Document #: 188 Filed: 01/24/12 Page 1 of 3 PageID #:3171
Name of Assigned Judge Judge Zagel Sitting Judge if Other or Magistrate Judge than Assigned Judge
Motion for reconsideration or in the alternative, clarifying of order denying Jore's motion for partial summary judgment of non infringement  is granted. Enter amended order denying partial summary judgment.
This is a patent infringement action in which Eazypower alleges that Jore infringed Claims 1, 2, 4, 5, and 7 of Patent 4,876,929 ("the '929 Patent'"). The '929 Patent is entitled "Portable Screw Driver Having Flexible Extension Shaft" and has expired. I previously denied Jore's motion for summary judgment regarding the alleged invalidity of the '929 Patent, and Jore now moves for summary judgment of non-infringement. A hearing was held on this motion and both parties presented oral arguments. Having considered the written briefs and the oral arguments, I am denying Jore's motion for summary judgment.
Jore argues that summary judgment for non-infringement is proper on two grounds. First, Jore contends that the Jore flexible extension shaft does not meet the requirement of "normally being disposed so as to be substantially entirely coaxial with said chuck." The second basis for summary judgment is that the Jore flexible extension shaft does not include one of the two cylindrical fittings that are located at opposite ends of the patented flexible extension shaft "so as to define a shoulder internally of each of said fittings."
A. "Normally Being Disposed So As To Be Substantially Entirely Coaxial."
In August, 2008, I interpreted the phrase "said flexible extension shaft normally [being] disposed so as to be substantially entirely coaxial with said chuck" to mean that, "when the device is positioned in a chuck, said positioning is usually substantially entirely coaxial with the chuck." The first basis on which Jore seeks summary judgment is that its device has no "default" or "standard" position in which it is straight. In other words, absent active intervention, the position assumed by the flexible extension shaft depends on the position it was in the last time it was subjected to active intervention. For example, when a Jore shaft is manually bent into a curve and the bending force is removed, the flexible extension shaft will remain in a curved position. For these reasons, Jore argues that its shaft has no "standard position" in which it is straight, or not bent or angled. Accordingly, the Jore shaft would not be "usually substantially entirely coaxial" when placed in a chuck. Jore also argues that each time its extension shaft is placed in a chuck, its coaxial or non-coaxial relationship to the axial centerline of the chuck is determined by the way it is being grasped by the person who is placing the shaft in the chuck. Therefore, Jore contends the flexible extension shaft's relationship to the axial centerline of the chuck need not be a coaxial relationship, as is required by the patent.
I note that the Markman Order does not directly reference any 'default' or 'standard' position. Instead, the Order interpreted the "normally disposed" claim to mean that "when the device is positioned in a chuck, said positioning is usually substantially entirely coaxial with the chuck." I explained this phrase to mean that the "standard position of the shaft of its device is straight, i.e., not bent or angled." With regard to the "normally [being] disposed" claim language, I commented that "the term 'normally' simply refers to the fact that the default position of the device is straight. For example, it is straight when housed in the packaging in which it is sold." From this, Jore argues that an appropriate definition of a "default" position is "a situation or condition that obtains in the absence of active intervention." Jore asserts that its device does not have a 'default' or 'standard' position in which the device is straight. In the Markman Order, however, I also stated that "I find nothing in the language of the patent to suggest that this [returning to a straight position after the user releases the pressure that caused the shaft to curve] limitation is contained therein. The term 'normally' simply refers to the fact that the default position of the device is straight. . . . But the fact that the default position is straight does not mean that the device necessarily must 'spring back' to that position when the force that bent it in the first place is removed."
I am unpersuaded by Jore's arguments and deny summary judgment regarding this issue. The trier of fact could find that in the typical usage of the Jore device, the flexible shaft of the invention is substantially entirely coaxial ...