2011-1208 SJ Opinion
Transcript of 2011-1208 SJ Opinion
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Defendant Lamertek, Inc. entered into a settlement agreement with Plaintiff and was1
dismissed from this action with prejudice on November 9, 2010.
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by J. Sink (Gory), Lamartec, Inc. (Lamartek) , Sink Enterprises, Inc. (Sink Enterprises), S.1
Janet Sink, Joseph R. Sink (collectively, Defendants) on February 11, 2009. [DE 1]. The
Complaint alleges two causes of action: patent infringement (U.S. Patent No. 6,132,142) (Count
I) and patent infringement (U.S. Patent No. 6,712,557) (Count II). The Court has original subject
matter jurisdiction of this action pursuant to 28 U.S.C. 1331 and 1338(a) based upon the patent
laws of the United States contained cited in Plaintiffs Complaint, 35 U.S.C. 1 et seq.
According to the Complaint, Plaintiff Trebor is a Florida corporation with its principal
place of business in Fort Lauderdale, Florida. Defendant Gory is a Florida limited liability
company, doing business throughout the state of Florida under the fictitious name The Air Line
by J. Sink. Defendant Sink Enterprises (originally named The Air Line by J. Sink, Inc.) was a
Florida corporation administratively dissolved by the State of Florida on September 26, 2008.
Defendants Janet and Joseph Sink are individuals residing in the state of Florida who were
officers of Defendant Sink Enterprises and, together, controlled, authorized, and directed the
activities of Defendant Sink Enterprises. (collectively, Sink Defendants).
The Complaint states that, on October 17, 2000, the United States Letters Patent No.
6,132,142 (the 142 patent) was issued for an invention entitled DROP WEIGHT DIVE
BELT, listing Robert M. Carmichael as the inventor. Additionally on March 30, 2004, the
United States Letters Patent No. 6,712,557 (the 557 patent) was issued for an invention
entitled DROP WEIGHT DIVE BELT, listing Robert M. Carmichael as the inventor. On
February 9, 2009, inventor Robert M. Carmichael assigned all right, title, and interest in and to
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According to the Complaint, Defendant Sink Enterprises is not believed to be currently2
selling infringing products. Plaintiff alleges that Sink Enterprises sold the "Air Line by J. Sink"
business to Defendant JL Gory. JL Gory has continued to sell and offer for sale the infringing
Dive Rite ditchable weight harnesses, as well as to continue to add a tow clip to such harnesses.
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the 142 patent and the 557 patent to Plaintiff Trebor, who is the current owner of all right, title
and interest in and to the 142 and 557 patents. Plaintiff Trebor has full and exclusive rights to
bring suit to enforce these patents, including the right to recover for past infringements.
According to the Complaint, Defendants engaged in manufacturing, selling, and/or
offering for sale products covered by the 142 patent and 557 patent. Specifically, Plaintiff
alleges that Defendants manufacture, sell or offer for sale ditchable weight harnesses covered by
these patents. The ditchable weight harnesses are sold under the Dive Rite trademark and have
been and continue to be sold and offered for sale by Defendant JL Gory. Plaintiff also alleges2
that Defendant Gory and the Sink Defendants add a tow clip to the Dive Rite ditchable weight
harness.
In Count I, patent infringement (U.S. Patent No. 6,132,142), Plaintiff alleges that, in
violation of 35 U.S.C. 271, Defendants make, use, offer to sell, and/or sell products that
infringe the 142 patent, including, but not necessarily limited to, the above-described ditchable
weight harness. Plaintiff also alleges that Defendants contribute to and/or induce infringement of
the 142 patent. Plaintiff claims that Defendants infringement of the 142 patent is willful and
deliberate and that Defendants acts of infringement of the 142 patent will continue unless
enjoyed by the Court.
In Count II, patent infringement (U.S. Patent No. 6,712,557), Plaintiff alleges that, in
violation of 35 U.S.C. 271, Defendants make, use, offer to sell, and/or sell products that
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either of the patents-in-suit. Each element contained in a patent claim is deemed material to
defining the scope of the patented invention. Warner-Jenkinson Co., Inc. v. Hilton Davis
Chemical Co. 520 U.S. 17, 29 (1997). Under the all-elements rule, in order for an article to
infringe a patent, all elements must be present. See Lemelson v. U.S., 752 F.2d 1538, 1551 (Fed.
Cir. 1985) (It is also well settled that each element of a claim is material and essential, and that
in order for a court to find infringement, the plaintiff must show the presence of every element or
its substantial equivalent in the accused device.).
Literal patent infringement
Determining whether a patent claim has been infringed requires a two-stepanalysis: First, the claim must be properly construed to determine its scope and
meaning. Second, the claim as properly construed must be compared to the
accused device or process. Carroll Touch, Inc. v. Electro Mechanical Sys., Inc.,
15 F.3d 1573, 1576 (Fed. Cir. 1993). Claim construction is to be determined by
the court. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996)
(We hold that the construction of a patent, including terms of art within its claim,
is exclusively within the province of the court.). In construing the claims, the
court looks to the claims, the specification, the prosecution history, and, if
necessary, extrinsic evidence. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1582 (Fed. Cir. 1996). Application of the properly construed claim to the accused
device is a question of fact.
Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1572-73 (Fed. Cir. 1997).
Direct infringement requires a party to perform each and every step or element of a
claimed method or product. BMC Res., Inc. v. Paymentech, LP., 498 F.3d 1373, 1378 (Fed. Cir.
2007). If any claim limitation is absent from the accused device, there is no literal infringement
as a matter of law. Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir.
2000). If an accused product does not infringe an independent claim, it also does not infringe any
claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.
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Cir. 1989).
In construing the meaning of claim terms, courts must first examine the patent's intrinsic
evidence. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Intrinsic
evidence includes the claim language, the specification, and the prosecution history. Id.; Housey
Pharmaceuticals, Inc. v. Astrazeneca UK Ltd., 366 F.3d 1348, 1352 (Fed. Cir. 2004). Such
intrinsic evidence is the most significant source of the legally operative meaning of disputed
claim language. Vitronics Corp., 90 F.3d at 1582.
Only when the intrinsic evidence is insufficient to establish the clear meaning of the
asserted claim, does the court turn to extrinsic evidence. Zodiac Pool Care, Inc. v. Hoffinger
Industries, Inc., 206 F.3d 1408, 1414 (Fed. Cir. 2000). Extrinsic evidence includes expert
testimony, inventor testimony, dictionaries, treatises, and prior art not cited in the prosecution
history. Id. Unlike intrinsic evidence, little or no probative weight in claims construction is
given to extrinsic evidence, including the intended meaning of the patent applicant when he used
a particular term, e.g. the Declaration of Robert M. Carmichael [DE 92-2]. Superior Fireplace
Co. v. Majestic Products Co., 270 F.3d 1358, 1375 (Fed. Cir. 2001). See Northern Telecom Ltd.
v. Samsung Electronics Co., Ltd., 215 F.3d 1281, 1295 (Fed. Cir. 2000) ([E]xtrinsic evidence is
rarely, if ever, probative of a special and particular definition of a limitation found in a claim.)
No inquiry as to the subjective intent of the applicant or PTO is appropriate or even possible in
the context of a patent infringement suit. The subjective intent of the inventor when he used a
particular term is of little or no probative weight in determining the scope of a claim (except as
documented in the prosecution history). Superior Fireplace, 270 F.3d at 1375 (quoting
Markman, 52 F.3d at 985).
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Accordingly, the Court rejects Plaintiffs argument that the Sinks admissions create3
factual disputes regarding the definitions of the claims terms at issue.
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Likewise, in the legal exercise of interpreting the patent claims in this case, the Court
assigns little or no probative value to the meaning of the terms attributable to the Sink
Defendants responses to Plaintiffs Request for Admissions. See attachments to [DE 92-1].3
This is consistent with the principle that it is the claims of the patent that define the patents
scope and inform the public at large of what invention is claimed. See Johnson & Johnston
Associates Inc. v. R.E. Service Co., Inc., 285 F.3d 1046, 1052 (Fed. Cir. 2002).
Claim interpretation begins, as always, with the language of the claims. Tate Access
Floors, Inc. v. Interface Architectural Resources, 279 F.3d 1357, 1370 (Fed. Cir. 2002). The
claims themselves provide substantial guidance as to the meaning of particular claim terms.
Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005). Words in a claim are generally
given their ordinary meaning, as understood by one of ordinary skill in the art, unless the patentee
clearly defines his own terms or where the claim term would render the claim unclear. Tate
Access Floors, 279 F.3d at 1370. Claims must be read in view of the specification, of which they
are a part. Vitronics Corp., 90 F.3d at 1582; Markman, 52 F.3d at 979.
The specification contains a written description of the invention which must be
clear and complete enough to enable those of ordinary skill in the art to make and
use it. Thus, the specification is always highly relevant to the claim construction
analysis. Usually, it is dispositive; it is the single best guide to the meaning of a
disputed term.
Vitronics Corp., 90 F.3d at 1582.
Section 112 of the Patent Act, 35 U.S.C. 112 provides explicit guidance for
interpretation of claim elements expressed in means-plus-function terms:
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Claim 1 of the 142 patent requires a body member and means for quickly4
releasing. Defendant argues that neither of these claim elements are present in the accused
device. See infra.
Claims 9 and 10of the 142 patent: elastic member. Defendant contends that this5
element allows automatic tightening of the belt as the diver descends in the water by pulling the
two section members tighter. Defendant argues that the element of elastic member is not
present in the accused device and therefore there is no infringement of Claims 9 and 10.
Defendant also points out that the body member element and quick release means
element, discussed infra, also present in Claim 9, is not present in the accused device.
See fn. 6, supra. Defendant also points out that the sleeve member which is part of6
body member in Claim 10 is not present in the accused device.
Claim 11of the 142 patent: body member andmeans for removing said weight7
means. Defendant argues that neither of these claim elements are present in the accused device.
See infra.
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An element in a claim for a combination may be expressed as a means or step for
performing a specified function without the recital of structure, material, or acts in
support thereof, and such claim shall be construed to cover the corresponding
structure, material, or acts described in the specification and equivalents thereof.
35 U.S.C. 112, 6. The Federal Circuit has held that for a means-plus-function limitation to
read on an accused device, the accused device must employ means identical to or the equivalent
of the structures, material, or acts described in the patent specification. The accused device must
also perform the identical function as specified in the claims. Valmont Industries, Inc. v. Reinke
Mfg. Co., Inc., 983 F.2d 1039, 1042 (Fed. Cir. 1993).
Defendant Gory submits that the 142 Patent contains five independent Claims 1 , 9 , 10 ,4 5 6
11 , and 15. Plaintiff argues that independent Claim 15 and dependent Claim 16 are being7
infringed by Defendants accused device. The Court need only examine the independent claims
to determine infringement because the dependent claims each incorporate the independent
claims. See Wahpeton Canvas, 870 F.2d at 1553, n.10 ([N]on-infringement of an independent
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interconnected by an elastic member between the two main sections. The area of interconnection
and elastic member is contained within a protective sleeve member. Defendant contends that, in
contrast, the belt portion of the accused device is one continuous piece, which is contained in
prior art and is distinctly unlike the body member of the 142 Patent.
As to the term body member, Plaintiff submits that the term does not require the
product to have an elastic member, sleeve member, and/or multiple parts. Rather, these
permutations or limitations or enhancements only apply to particular claims. Plaintiff contends
that Defendant is inappropriately attempting to read features found in dependent claims of the
142 Patent into the definition of body member. Plaintiff argues that the only proper
interpretation of the term body member to Claims 1, 15, and 16 of the 142 Patent is that it is
understood as a simple, everyday term with no special meaning. See Declaration of Robert M.
Carmichael [DE 92-2]. Plaintiff claims body member to require only that it has a first end
and a second end, nothing more. Thus, Plaintiff asserts that the term body member is the
main, central or principal part of the whole dive belt. See Declaration of Daniel S. Polley. [DE
92-3]. Under Plaintiffs interpretation of the term body member, i.e. a standard/conventional
belt that was already in use at the time of Plaintiffs invention, Plaintiff asserts that the accused
device includes a body member.
Plaintiffs position that body member should be given its everyday meaning is at odds
with the principle that the special definition given to a claim term by the patentee governs over
the general meaning it would otherwise possess. Phillips, 415 F.3d at 1315-16. The Court finds
that Plaintiffs interpretation of the term body member is clearly incongruous with the patent
languages specification, which states what comprises a body member. Where, as here, the
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specification explains and defines a term used in the claims, without ambiguity or
incompleteness, there is no need to search further for the meaning of the term. ATD Corp. v.
Lydall, Inc.,159 F.3d 534, 540 (Fed. Cir. 1998) (quoting Multiform Desiccants Inc. v. Medzam
Ltd., 133 F.3d 1473 at 1478 (Fed. Cir. 1998). Plaintiff cannot use the doctrine of claim
differentiation to broaden claims beyond the scope that is supported by the specification. ATD
Corp. v. Lydall, Inc.,159 F.3d at 541; Tandon Corp. v. United States Int'l Trade Comm'n, 831
F.2d 1017, 1023 (Fed. Cir. 1987) (Whether or not claims differ from each other, one can not
interpret a claim to be broader than what is contained in the specification and claims as filed.).
See also Bristol-Myers, 246 F.3d at 1376 (declining to apply the doctrine of claim differentiation
where it would supplant other canons of claim construction).
Moreover, even if the elastic member and sleeve were not essential to the body
member, (i.e., that the dependent claims allow for some variations of the multi-component belt)
the term body member in the patents at issue, at a minimum, must contain at least a first
section and a second section, which are operatively associated with each other.
Accordingly, body member is not simply a single one piece, continuous belt.
Understanding what body member means, the Court finds that the element is distinctly
not present in the accused device, whose belt portion is simply one continuous piece without
separate associated sections.
Means for quickly releasing, means for removing:claim 1, 15 of the 142 patent,
claim 2 of the 557 patent
Means for quickly releasing is defined in the claim as having two components, a pocket
and means for removing said weight means. Defendant argues that this element of Claim 1
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means that, when the handle (extending outside the pocket after the pocket opening flap is
secured closed by velcro) at the end of the double thick strap containing the weight (which is
inserted into the pocket) is pulled with a normal tugging motion by the diver, the strap pushes
open the velcro-held pocket opening flap, allowing the diver to continue pulling out the weight at
the end of the strap. In contrast, Defendant submits, its accused device does not have a means
for quick releasing, i.e., there is no strap-type structure or its structural equivalent for weight
removal. Rather, a diver who uses the accused device must manually remove the weight from
the pocket after opening the pocket.
As to the term means for quickly releasing, Plaintiff submits that the act of tugging
open of the pocket (which is configured in a horizontal position) by pulling on a handle
constitutes the means for quick release or quick removal. Plaintiff states that its patents provide
the diver with instant, gravity actuated release and removal of the ballast. Plaintiff argues that,
with regard to both the patents at issue and Defendants accused device, a diver who needs to
evacuate the ballast immediately may accomplish this by tugging the handle sufficiently to
disengage the securement, causing the flap of the pocket to open and the weight to fall away.
Plaintiff states that, while the accused device uses a D-ring handle while Plaintiffs uses a more
custom handle, the handle of the dive belts work in the same fashion, namely, to release and
remove the weight.
As to the term means for quickly releasing, the Court agrees with the Defendant that the
term cannot simply comprise a handle on the pocket flap, but instead must include the handle,
strap, pouch or weight bag and weight, together, or its structural equivalent. Plaintiff correctly
cites that, [u]nder 112, 6, a court may not import functional limitations that are not recited in
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Plaintiff asks that the Court enter,sua sponte, summary judgment in favor of Plaintiff12
with respect to infringement by Defendant Gory. Plaintiff also requests that the Courts finding
of infringement against Gory be considered a finding of infringement against the Sink
Defendants.
Even if Plaintiff were correct that failure to address the doctrine of equivalents would13
prevent the Court from entering complete summary judgment on the issue of infringement in
Defendant Gorys favor, the Court could, however, grant partial summary judgment to Defendant
Gory on the issue of literal infringement and conduct a trial on the issue of infringement under
the doctrine of equivalents.
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concerning the doctrine of equivalents. In other words, Plaintiff argues that even if Defendant12
demonstrates that the accused product does not literally infringe the patents at issue, as long as
Defendant does not also prove a lack of infringement under the doctrine of equivalents, the Court
cannot grant summary judgment in Defendants favor as to the issue of infringement.13
A product that does not literally infringe a patent claim may still infringe under the
doctrine of equivalents if every element in the claim is literally or equivalently present in the
accused device. Sage Products, Inc. v. Devon Industries, Inc., 126 F.3d 1420, 1423 (Fed. Cir.
1997). This doctrine prevents an accused infringer from making only minor, insubstantial
changes from the claimed invention to avoid infringement, while attaining the same
functionality. Id. Equivalency under 35 U.S.C. 112, supra, differs from, and should not be
confused with, the doctrine of equivalents. Valmont Industries, Inc. v. Reinke Mfg. Co., Inc., 983
F.2d 1039, 1042-43 (Fed. Cir. 1993).
The essential inquiry under the doctrine of equivalents is whether the accused product or
process contain[s] elements identical or equivalent to each claimed element of the patented
invention. Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 40 (1997). An
element in the accused product is equivalent to a claim limitation if the differences between the
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two are insubstantial to one of ordinary skill in the art. Eagle Comtronics, Inc. v. Arrow
Commc'n Labs., Inc., 305 F.3d 1303, 1315 (Fed. Cir. 2002) (citing Warner-Jenkinson, 520 U.S.
at 40); see also Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 609 (1950)
(Graver II). As with literal infringement, infringement by equivalents is a question of fact.
Warner-Jenkinson, 520 U.S. at 38. However, in appropriate circumstances, the issue of
infringement by equivalents may be resolved by the court on summary judgment:
To be sure, a device that does not infringe a patent claim literally may still
infringe the very same claim under the DOE [doctrine of equivalents] if every
limitation of the claim is literally or equivalently present in the accused device.
See Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934-35 (Fed. Cir.
1987). For a claim limitation to be equivalently present in an accused device,there must be only insubstantial differences between the missing claim
limitation and corresponding aspects of the accused device. Hilton Davis Chem.
Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1517-18 (Fed. Cir. 1995), rev'd on
other grounds, 520 U.S. 17 (1997). Although equivalence is an issue of fact
ordinarily preserved for a jury, [w]here the evidence is such that no reasonable
jury could determine two elements to be equivalent, district courts are obliged to
grant partial or complete summary judgment. Warner-Jenkinson, 520 U.S. at 39
n. 8.
Zodiac Pool Care, 206 F.3d at 1415. In Graver II, the Supreme Court explained: equivalency
must be determined against the context of the patent, the prior art, and the particular
circumstances of the case. 339 U.S. 605, 609 (1950).
Significantly, the doctrine of equivalents must be applied on an element-by-element basis,
not to the device as a whole:
Each element contained in a patent claim is deemed material to defining
the scope of the patented invention, and thus the doctrine of equivalents must be
applied to individual elements of the claim, not to the invention as a whole. It is
important to ensure that the application of the doctrine, even as to an individual
element, is not allowed such broad play as to effectively eliminate that element in
its entirety.
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Game Tech., 184 F.3d 1339, 1355 (Fed. Cir. 1999). If possible, claims are construed to preserve
validity. Tate Access Floors, 279 F.3d at 1369.
Pursuant to 35 U.S.C. 102(b), A person shall be entitled to a patent unless . . . the
invention was patented or described in a printed publication in this or a foreign country or in
public use or on sale in this country, more than one year prior to the date of the application for
patent in the United States. The Federal Circuit has held that the public use bar applies to
obvious variants of the demonstrated public use. Netscape Commc'ns Corp. v. Konrad, 295 F.3d
1315, 1321 (Fed. Cir. 2002) (Section 102(b) may bar patentability by anticipation if the device
used in public includes every limitation of the later claimed invention, or by obviousness if the
differences between the claimed invention and the device used would have been obvious to one
of ordinary skill in the art.); Minnesota Min. & Mfg. Co. v. Chemque, Inc., 303 F.3d 1294, 1301
(Fed. Cir. 2002) (In order to invalidate a patent under the on-sale bar of 35 U.S.C. 102(b), an
accused infringer must demonstrate by clear and convincing evidence that there was a definite
sale or offer to sell more than one year before the application for the patent and that the product
sold or offered for sale anticipated the claimed invention or rendered it obvious.). This
determination is a conclusion of law based on underlying findings of fact. Id.
To prove obviousness, a defendant must show that a person of ordinary skill in the art
would have had a reason in the relevant field to combine the particular elements or technologies
in the way the claimed new invention does. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). A person of ordinary skill in the art is a person presumed to think along the line of
conventional wisdom in the art and is not one who undertakes to innovate, whether by patient,
and often expensive, systematic research or by extraordinary insights. Standard Oil Co. v. Am.
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Anticipation is a question of fact, and its determination is reviewed on appeal for14
substantial evidence. Minnesota Min., 303 F.3d at 1301.
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Cyanamid Co., 774 F.2d 448, 454 (Fed. Cir. 1985).
With regard to anticipation, [a] claim is anticipated if each and every limitation is found
either expressly or inherently in a single prior art reference. Bristol-Myers Squibb Co. v. Ben
Venue Laboratories, Inc., 246 F.3d 1368, 1374 (Fed. Cir. 2001) (quoting Celeritas Techs. Ltd. v.
Rockwell Intl. Corp., 150 F.3d 1354, 1360 (Fed. Cir. 1998). The Federal Circuit has held that it
is axiomatic that that which would literally infringe if later anticipates if earlier. Bristol-Myers,
246 F.3d at 1378 (citing Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 747 (Fed. Cir.
1987). [I]nvalidity by anticipation requires that the four corners of a single[ ] prior art14
document describe every element of the claimed invention, either expressly or inherently.
TriMed, Inc. v. Stryker Corp., 608 F.3d 1333, 1343 (Fed. Cir. 2010) (quoting Advanced Display
Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1282 (Fed. Cir. 2000); see also Silicon Graphics,
Inc. v. ATI Technologies, Inc., 607 F.3d 784, 796 (Fed. Cir. 2010) (To show that a patent claim
is invalid as anticipated, the accused infringer must show by clear and convincing evidence that a
single prior art reference discloses each and every element of a claimed invention.).
Thus, to establish that the patents at issue were obvious, Defendant Gory must show by
clear and convincing evidence that before the filing of the applications for the patents at issue,
a person of ordinary skill in the art would have had a reason to take what was known in the art at
the time and modify it to arrive at the patents at issues specifications.
With regard to the body member component, the prior art clearly contains a continuous
piece belt with two ends and a clamp-style belt. The dive belt demonstrated in the Stinton Patent
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Plaintiff also points out that the weight pockets of Plaintiffs dive belt are positioned17
90-degrees counterclockwise from the Stinton and the Zeagle 1994 weight system.
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component. In particular, Defendant has filed a Declaration of Dennis Bulin, president and
founder of Zeagle Systems, Inc., a Florida corporation that manufactures, designs, and supplies
scuba diving equipment. [DE 69-3]. Mr. Bulin states that he has been selling through his
business a pull-out pocket system for releasing weights since before November 14, 1994. The
system includes a pocket that could be attached to a dive vest or belt, a flap for closing the
pocket, a removable weight located within the pocket and a handle strap attached to said
removable weight. The weight system releases with a tug on a handle mounted on the weight
pouch. Attached to Mr. Bulins Declaration is an excerpt of Zeagles 1994 catalog, depicting and
offering for sale a pull-out weight release system. Plaintiff points out in its opposition to
summary judgment that Defendant Gory has failed to show where each and every element of
every claim in the 142 Patent and the 557 Patent appears in the Stinton patent and/or the Zeagle
1994 product. Nonetheless, even [i]f a single prior art reference does not anticipate each17
and every element of the claimed invention, the invention still might be rendered invalid if it is
proven to have been obvious under 103(a). Avocent Huntsville Corp. v. ClearCube
Technology, Inc., 443 F.Supp.2d 1284, 1328 n.169 (N.D. Ala. 2006). Plaintiff would have the
Court construe the claims of the 142 and 557 Patents as narrow and limited for purposes of
validity with regard to the elements of body member and means for quickly releasing, but as
encompassing all instances of belt pieces and any means of opening a pocket flap for purposes of
infringement. Plaintiff cannot have it both ways.
Because the Court has already determined that Defendants accused device does not
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infringe Plaintiffs patents, the Court need not find the patents at issue to be invalid in order to
enter final summary judgment in favor of Defendants. As explained earlier in the Courts
infringement analysis, the Court disagrees with the Plaintiffs position regarding the construction
of the claim terms body member and means for quickly releasing in the patents at issue.
However, if the Court were to assign the broad meaning of these terms presently asserted by
Plaintiff, i.e., that a body member is any continuous piece belt with two ends and that means
for quickly releasing is any sort of tab or handle to allow a user to more easily open the flap of
the pocket containing a weight, it appears to the Court that Plaintiffs 142 and 557 patents
would be invalid in light of prior art described herein and the case law regarding obviousness.
Moreover, the Court agrees with Defendant that to the extent that Plaintiff now contends its
patent is nothing more than opening a pocket and relying on gravity to hopefully cause the weight
to drop out, it would also be obvious on its face under 103(a) and, as such, would be invalid.
III. CONCLUSION
Based upon the foregoing, it is ORDERED AND ADJUDGED that Defendant JL Gory's
Motion for Summary Judgment as to Infringement [DE 69] is hereby GRANTED as to both
causes of action set forth in Plaintiffs Complaint [DE 1]: patent infringement (U.S. Patent No.
6,132,142) (Count I) and patent infringement (U.S. Patent No. 6,712,557) (Count II). Pursuant to
Fed. R. Civ. P. 58, a final judgment shall be entered separately.
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