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Albecker v. Contour Products, Inc.

United States District Court, Seventh Circuit

September 27, 2013

WALTER ALBECKER, Plaintiff,
v.
CONTOUR PRODUCTS, INC., Defendant.

MEMORANDUM OPINION AND ORDER

EDMOND E. CHANG, District Judge.

Plaintiff Walter Albecker filed this lawsuit against Contour Products, Inc. to enforce his U.S. Patent No. 5, 836, 653 (653 Patent) and to seek a declaration that U.S. Patent No. 6, 823, 545 (545 Patent), owned by Contour, is invalid.[1] R. 1, Compl. The 653 Patent describes wedge-shaped backrest and legless leisure-chair designs that support the sitter's lower back by maintaining the back's lumbar region in a natural curve. R. 54, Claim Constr. Order at 2. In July 2009, the previously assigned judge denied Contour's motion to dismiss the declaratory judgment count for lack of subject matter jurisdiction. R. 26. And in May 2010, after claim construction briefing by both sides, the previously assigned judge issued an order construing certain disputed terms contained in Claim 10 of the 653 Patent. Claim Constr. Order at 7-18. Albecker now seeks reconsideration of the claim construction, R. 57, while Contour seeks reconsideration of the denial of its motion to dismiss, R. 60. For the reasons explained more fully below, Albecker's motion for reconsideration [R. 57] is denied and Contour's motion [R. 60] is granted.

I. Background

In January 2009, Albecker filed a complaint against Contour Products, accusing Contour of producing and selling chairs that infringe Albecker's 653 Patent. See Compl. ¶¶ 5, 8-9. The 653 Patent describes wedge-shaped backrests and legless leisure chairs for sitting on the floor or on a bed and are designed to maintain the lumbar region of the sitter's back in a relatively natural lordotic curve. R. 46, Exh. A, 653 Patent at 1. The only issue on the table right now is Claim 10 of the patent, which describes a backrest/leisure chair comprising:

(a) a relatively firm generally wedge shaped foundation having a face, a base, a back and two generally triangular sides, with the base being positioned parallel to a horizontal plane such as a floor or bed, and the face being oriented at an acute angle relative to both the base and the horizontal plane to define a generally wedge shape, wherein said face has an upper portion and a lower portion, wherein said upper portion has an average general pitch relative to the horizontal plane and said lower portion base an average general pitch relative to the horizontal plane, and wherein said face further has a contour which orients the average general pitch of upper portion of the face at a greater incline than the average general pitch of the lower portion;
(b) a means for supporting occupant's lumbar region in a relatively natural lordotic curve comprising a generally convex semi-elliptically shaped elongated cylindrical generally firm lumbar support on the lower portion of the relatively firm foundation and extending substantially to a lower edge of said face, said firm lumbar support having a firmness sufficient to generally maintain its convex shape when pressure from a reclining occupant leaning against the foundation is applied; and
(c) a top cushion having an upper and lower portion secured to the face of the generally wedge shaped foundation.

Id. col. 18 ll. 15-41 (emphasis added).

At the core of the parties' dispute is the last paragraph of Claim 10, limitation (c). After considering each side's proposed claim constructions, the previously assigned judge issued an order construing the following disputed claim terms in the following ways:

1. "Top cushion" refers to "the top 4'' of material on the face of the foundation or the cushioning material on the face of the foundation." Claim Constr. Order at 13.
2. "Secured to" means "attached using attachment means, such as an adhesive or mechanical type fasteners that might be used with material that is selected for the top cushion and foundation." Id.
3. "Face of the generally wedged shaped foundation" is "the top surface of the wedge shaped foundation." Id. at 14.

It is the second term, "secured to, " that Albecker continues to contest. Essentially, by construing "secured to" as "attached using attachment means, " the Court held that limitation (c) is satisfied not by a one-piece product with a top cushion that is "integral and continuous" with the foundation, but by a two-piece product whose top cushion is physically attached or "secured to" the foundation. Claim Constr. Order at 13. In light of that construction, Albecker now moves to reconsider, asserting that "secured to" should simply mean "attached to" with no reference to attachment means. See R. 58, Pl.'s Br. at 2. Thus, Albecker believes that "secured to" encompasses both one-and two-piece products.

For its part, Contour independently moves to reconsider the previous denial of the motion to dismiss the declaratory judgment count in Albecker's complaint. In its brief, Contour asserts that this Court lacks subject matter jurisdiction to declare Contour's 545 Patent invalid under the Declaratory Judgment Act, 28 U.S.C. § 2201, ...


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