United States District Court, N.D. Illinois, Eastern Division
For Thermapure, Inc., Plaintiff: Paul K Vickrey, LEAD ATTORNEY, Frederick Christopher Laney, Niro, Scavone, Haller & Niro, Ltd., Chicago, IL; Daniel R. Ferri, Patrick Francis Solon, Niro, Haller & Niro, Ltd., Chicago, IL.
For RxHeat, LLC, Cambridge Engineering, Inc., Defendants, Counter Claimants, ThirdParty Plaintiffs: Douglas Alan Robinson, Harness Dickey & Pierce PLC, St. Louis, MO; Kara Eve Foster Cenar, Bryan Cave, Chicago, IL; Mariangela M. Seale, Bryan Cave LLP, Chicago, IL.
For E-Therm, Inc., TPE Associates, LLC, Third Party Defendants, Counter Defendants: Daniel R. Ferri, Patrick Francis Solon, Niro, Haller & Niro, Ltd., Chicago, IL; Frederick Christopher Laney, Paul K Vickrey, Niro, Scavone, Haller & Niro, Ltd., Chicago, IL.
For Thermapure, Inc., Counter Defendant: Paul K Vickrey, LEAD ATTORNEY, Frederick Christopher Laney, Niro, Scavone, Haller & Niro, Ltd., Chicago, IL; Patrick Francis Solon, Niro, Haller & Niro, Ltd., Chicago, IL.
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, United States District Judge.
Plaintiff Thermapure, Inc. asks the court to reconsider one aspect of its March 31, 2014 order granting Defendants RxHeat, LLC and Cambridge Engineering, Inc.'s motion for summary judgment of non-infringement. Thermapure argues that the court misconstrued a claim limitation in Claim 8 of Thermapure's U.S. Patent No. 6, 327, 812 (the " '812 patent") and that, based on Thermapure's preferred construction of this limitation, a fact dispute remains whether Defendants' Z9000 electric heater infringes Claim 8. As explained below, the motion  is granted.
The facts of this case are generally laid out in the summary judgment ruling, and the court revisits them only briefly here. ( See Mem. Op. & Order , 1-11.) Thermapure filed this action for infringement against Defendants RxHeat and Cambridge, companies organized and located in Missouri and under " common ownership." (Pl.'s Resp. to Defs.' Statement of Facts , hereinafter " Pl.'s Resp. to Defs.' 56.1, " ¶ ¶ 2-3; Defs.' Resp. to Pl.'s Statement of Additional Facts , hereinafter " Defs.' Resp. to Pl.'s 56.1, " ¶ 9.) The '812 patent covers a method and kit of components for sanitizing buildings and other enclosed spaces by destroying unwanted organisms and toxins. Under the patented method, the targeted space is heated by introducing hot air, which later exits the space through doors, windows, or ducts connected to a filter. ('812 Patent, Ex. C to Pl.'s Mot. for Reconsideration [156-3], hereinafter " Pl.'s Mot." , 1:6-9; 1:64-2:8.) The patent identifies several " object[s]" of the invention, including " to filter gases leaving from the enclosure to prevent the allergenic organism remains from entering the environment, " and " to remove substantially all of the remains of the killed organisms from open areas in the enclosure." (Id. at 2:28-33.) In its final claim contentions, Thermapure asserted that Defendants infringed Claims 4, 6, and 8 of the '812 patent under 35 U.S.C. § § 271(a)-(c) through use of filters with their heat treatment products (the Rx12/Rx15 line of gas-fueled heaters and the Z9000 electric heater).
The Z9000 is an RxHeat product which may be " set up inside a structure to treat smaller areas, such as individual rooms." (Defs.' Statement of Facts , hereinafter " Defs.' 56.1, " ¶ 62.) The Z9000 heats to the " requisite temperatures" and is sold with remote temperature monitoring capability. (Defs.' Resp to Pl.'s 56.1 ¶ ¶ 11-12.) It comes with a MERV 11 " inlet" filter; as air enters the Z9000, it passes through the filter, is heated, exits the unit through a non-filtered opening, and is blown into the enclosure. (Defs.' 56.1 ¶ ¶ 63, 65.) While the Z9000 typically is set up inside an enclosure to be treated, it may also be set up outside the targeted room with the heated air ducted into the enclosure. (Pl.'s Resp. to Defs.' 56.1 ¶ 64.) The Z9000's instructions state that it comes with " multiple ducting options, " including a " 12 [inch] intake" and a " 12 [inch] supply, " and that the unit " can be ducted at the inlet, the outlet or both using the included round outlet adapter." (RxHeat Z9000 Installation, Operation & Maint. Instructions, Ex. 2 to Pl.'s Resp. to Defs.' 56.1 [130-3], RX000330-331.).)
Claim 8 of the '812 patent reads as follows:
A system for sanitizing an enclosed structure having an exterior and an interior, comprising:
a source of an environmentally acceptable gas;
a heater coupled to said gas source to heat said gas to a predetermined temperature, and
means for introducing a flow of said heated gas into said interior of said enclosed structure ;
a filter arranged to allow said flow of heated gas to pass therethrough after passing through said interior of ...