United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. DARRAH United States District Court Judge
LoggerHead, LLC filed a Second Amended Complaint against
Defendants Sears Holdings Corporation and Apex Tool Group,
LLC. The Second Amended Complaint alleges, inter
alia, four counts of willful patent infringement of
United States Patents No. 6, 889, 579 (the “‘579
Patent”), in Counts I and II, and No. 7, 992, 470 (the
“‘470 Patent”), in Counts III and IV.
Plaintiff filed a Motion for Summary Judgment of Infringement
. For the reasons set forth more fully below,
Plaintiff's Motion for Summary Judgment of Infringement
 is denied.
Rule 56.1(a)(3) requires the moving party to provide “a
statement of material facts as to which the party contends
there is no genuine issue for trial.” Ammons v.
Aramark Uniform Servs., 368 F.3d 809, 817 (7th Cir.
2004). Local Rule 56.1(b)(3) requires the nonmoving party to
admit or deny every factual statement proffered by the moving
party and to concisely designate any material facts that
establish a genuine dispute for trial. See Schrott v.
Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir.
2005). A nonmovant's “mere disagreement with the
movant's asserted facts is inadequate if made without
reference to specific supporting material.” Smith
v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). In the case
of any disagreement, the nonmoving party must reference
affidavits, parts of the record, and other materials that
support his stance. Local Rule 56.1(b)(3)(B). To the extent
that a response to a statement of material fact provides only
extraneous or argumentative information, this response will
not constitute a proper denial of the fact, and the fact is
admitted. See Graziano v. Vill. of Oak Park, 401
F.Supp.2d 918, 936 (N.D. Ill. 2005). Similarly, to the extent
that a statement of fact contains a legal conclusion or
otherwise unsupported statement, including a fact that relies
upon inadmissible hearsay, such a fact is disregarded.
Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.
1997). Pursuant to Local Rule 56.1(b)(3)(C), the nonmovant
may submit additional statements of material facts that
“require the denial of summary judgment.”
following facts are taken from the parties' statements of
undisputed material facts submitted in accordance with Local
is an Illinois limited-liability company with its principal
place of business in Illinois. (PSOF ¶ 1.) Defendant
Sears Holding Corporation is a Delaware corporation with its
principal place of business in Illinois. (Id. ¶
2.) Defendant Apex Tool Group, LLC is a Delaware
limited-liability company with its principal place of
business in Maryland. (Id. ¶ 3.) The ‘579
Patent and the ‘470 Patent are titled “Adjustable
Gripping Tool” and are assigned to Plaintiff.
(Id. ¶¶ 7, 8.) During prosecution, the
‘470 Patent was distinguished from the Buchanan patent,
U.S. Patent No. 2, 787, 925. (DSOF ¶ 4.)
began selling the Max Axess Locking Wrench (the
“MALW”), which was developed by Apex, in late
2012. (PSOF ¶¶ 16, 17.) Plaintiff asserts claims 1,
2, 6, 9, 11, and 16-18 of the ‘579 Patent and claims 1,
9, 10, and 33-35 of the ‘470 Patent. (DSOF ¶ 1.)
The first element of each asserted claim includes a gripping
portion that requires a gripping element containing a body
portion, an arm portion, and a force transfer element.
(Id. ¶ 2.) The second element includes an
actuation portion that facilitates movement of the gripping
elements via a slot with a first section configured to engage
the force transfer element. (Id. ¶ 3.)
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56. Courts deciding summary judgment motions
must view facts “in the light most favorable to the
nonmoving party only if there is a ‘genuine'
dispute as to those facts.” Scott v. Harris,
550 U.S. 372, 380 (2007). A genuine dispute as to any
material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The moving party has the initial burden
of establishing that there is no genuine dispute as to any
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party meets this burden,
“[t]he nonmoving party must point to specific facts
showing that there is a genuine issue for trial.”
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.
2009). Factual disputes do “not preclude summary
judgment when the dispute does not involve a material
fact.” Burton v. Downey, 805 F.3d 776, 783
(7th Cir. 2015). The evidence must be such “that a
reasonable jury could return a verdict for the nonmoving
party.” Pugh v. City of Attica, Ind., 259 F.3d
619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
argue that Plaintiff cannot show infringement of the
‘470 Patent and the ‘579 Patent. Patent
infringement occurs when someone “without authority
makes, uses, offers to sell, or sells any patented invention,
within the United States or imports into the United States
any patented invention during the term of the patent
therefor, infringes the patent.” 35 U.S.C. §
271(a). “Patent infringement involves both claim
construction and application of the claim to the accused
product.” Crystal Semiconductor Corp. v. TriTech
Microelectronics Int'l, Inc., 246 F.3d 1336, 1345
(Fed. Cir. 2001) (citing Markman v. Westview Instruments,
Inc., 52 F.3d 967, 976 (Fed. Cir. 1996)). “The
infringement inquiry remains focused at all times on the
claim language, as illuminated by the written description and
the prosecution history.” Id. at 1345-46
(citing Pitney Bowes, Inc. v. Hewlett-Packard Co.,
182 F.3d 1298, 1309 (Fed. Cir. 1999)). Whether the claim, as
construed, matches the accused product is a question of fact.
ActiveVideo Networks, Inc. v. Verizon Commc'ns,
Inc., 694 F.3d 1312, 1319 (Fed. Cir. 2012).
patentee has the burden of proving infringement by a
preponderance of the evidence.” Centricut, LLC v.
Esab Grp., Inc., 390 F.3d 1361, 1367 (Fed. Cir. 2004). A
patentee must show that every limitation of the allegedly
infringed patent claims exists in the accused device in order
to establish infringement. Neopost Industrie B.V. v. PFE
Int'l, Inc., 403 F.Supp.2d 669, 676 (N.D. Ill. 2005)
(citing Oakley, Inc. v. Sunglass Hut Int'l, 316
F.3d 1331, 1339 (Fed. Cir. 2003); Amazon.com, Inc. v.
Barnesandnoble.com. Inc., 239 F.3d 1343, 1350 (Fed. Cir.
2001)). The failure to meet any limitation of a patent claim
defeats an allegation of literal infringement. Id.
(citing Rohm & Haas ...