YOUNG, District Judge.
The motion presently before this Court arises from a patent infringement suit filed by Multilayer Stretch Cling Film Holdings, Inc. ("Multilayer"), the assignee of U.S. Patent No. 6,265,055 (the "'055 Patent"), against Berry Plastics Corporation ("Berry"). Following the claim construction hearing and the filing of the Markman order, Berry filed its present motion for summary judgment, arguing that, as matter of law, none of Berry's accused products infringe the '055 Patent as construed. Arguments on this motion were heard on July 17, 2014, at which time the Court took the matter under advisement. Min. Entry, July 17, 2014, ECF No. 140.
For the reasons stated herein, the Court now GRANTS Berry's motion for summary judgment.
Multilayer filed a complaint against Berry in the Western District of Tennessee on
Multilayer had also initiated several lawsuits in the Western District of Tennessee, against additional companies besides Berry, alleging infringement of the same '055 Patent. See Order Following Claim Construction Hr'g ("Markman Order") 1 n. 1, ECF No. 104. The then four remaining cases were consolidated for the purpose of claim construction before Judge McCalla in Multilayer Stretch Cling Film Holdings, Inc. v. MSC Marketing & Technology, Inc. et al., No. 12-cv-02112 (the "MSC Marketing litigation"). Markman Order 1. On November 8, 2013, Judge McCalla signed an order (the "Markman Order") construing thirteen terms of the '055 Patent. Id. at 102-06. On the same day, Judge McCalla entered a separate proposed order (the "Proposed Order") addressing one specific term of the patent that had not been addressed in the Markman Order. Ct.'s Proposed Construction "Wherein Each of Said Two Outer Layers And Each Of Said Five Inner Layers Have Different Compositional Properties When Compared To A Neighboring Layer" ("Proposed Order"), ECF No. 105. In this order, Judge McCalla gave the parties fourteen days to file supplemental briefs on the proposed construction. Id. at 9. The parties filed their briefs on November 22, 2013. Supplemental Br. Defs. Clarification Ct.'s Proposed Claim Construction, case docket No. 12-cv-02112, ECF No. 98; Multilayer's Supplemental Claim Construction Br., case docket No. 12-cv-02112, ECF No. 99. The MSC Marketing litigation, however, was dismissed with prejudice after the parties agreed to a settlement. Stipulation Dismissal With Prejudice, case docket No. 12-cv-02112, ECF No. 101; Judgment, case docket No. 12-cv-02112, ECF No. 102. As a result, a final order has not been entered on the remaining claim term.
On March 14, 2014, Berry filed a motion for partial summary judgment. Def. Berry Plastics Corp.'s Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055, ECF No. 120; Def. Berry Plastics Corp.'s Br. Supp. Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055 ("Berry's Br."), ECF No. 120-1. Two months later, Multilayer filed a brief in opposition to Berry's motion. Resp. Opp'n Berry Plastics Corp.'s Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055 ("Multilayer's Opp'n"), ECF No. 129. Berry filed a reply on June 2, 2014. Def. Berry Plastics Corp.'s Reply Br. Supp. Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055 & Resp. Multilayer's Statement Additional Facts ("Berry's Reply"), ECF No. 134.
28 U.S.C. sections 1331 and 1338(a) confer upon this Court jurisdiction to hear the instant matter, as the claims at issue arise under federal patent law.
The evidentiary record in this matter is replete with helpful and detailed information regarding all aspects of the production and manufacture of the various stretch-films. Though both informative and necessary for the global claim, given the focused nature of this motion, and for the sake of concision, the facts outlined below
This matter arises from the alleged infringement of the '055 Patent, issued on July 24, 2001, to David Simpson and Terry Jones. Compl., Ex. A, U.S. Patent No. 6,265,055 C3 ("U.S. '055 Patent"), ECF No. 1-3.
Multilayer alleges that Berry's stretch-film products infringe "at least claim 1 of the '055 [P]atent." Compl. ¶ 11. In response, Berry raises a number of defenses, including invalidity, non-infringement, and inequitable conduct. Def.'s Answer Affirmative Defenses & Countercls. Compl. 2-3, ECF No. 14.
The '055 Patent relates to a "multi-layer stretch film comprising at least 7 layers.... compris[ing] two outer, or skin layers... [and] at least five internal layers to assist in producing mechanical strength and stretchability." U.S. '055 Patent, col. 1:51-58. The patent-in-issue is described in thirty-four claims, of which two, claims 1 and 28, are independent. U.S. '055 Patent; see also Markman Order 13. It is the alleged non-infringement of these nearly identical claims which is presently before this Court. See Berry's Br. 2-4. Claim 1 teaches:
U.S. '055 Patent PageID 19-20. Claim 28 teaches:
Id. at PageID 24 col. 2:4-26.
At the request of the parties, during the claim construction process that took place last November, Judge McCalla construed thirteen terms, including, inter alia, the Markush limitations
Id. at 104 (emphasis added).
Multilayer asserts that at least five stretch-films manufactured by Berry infringe the patent-in-issue. Statement Material Facts Not Dispute Supp. Def. Berry Plastics Corp.'s Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055 ("Berry's Facts") ¶ 4, ECF No. 121. The allegedly infringing films are: the Revolution machine films, R-122 and R-122Q; the Stratos film; the T-Machine film, and the Max Plus 2 film (jointly "the Accused Films"). Id. The Accused Films all have outer and inner layers, with the inner layers composed of blends of resins from the following classes: metallocene-catalyzed linear low density polyethylene ("mLLDPE"), LLDPE; low density polyethylene ("LDPE"), polypropylene ("PP"), and ultra low density polyethylene ("ULDPE"). Def.'s Objections & Resps. Pl.'s First Set Interrogs. ("Berry's Resp. Interrogs.") 9-10, ECF No. 64.
"Summary judgment is as available in patent cases as in other areas of litigation." Continental Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1265 (Fed. Cir.1991) (citing Chore-Time Equip., Inc. v. Cumberland Corp., 713 F.2d 774, 778-79 (Fed.Cir.1983)). Summary judgment is proper if the moving party shows, based on the materials in the record, 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(a). A dispute is genuine where "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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Conclusory allegations, improbable inferences, and unsupported speculation, are insufficient to establish a genuine dispute of fact." Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146 (1st Cir.2013) (quoting Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999)); see also Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (concluding that "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient"). Whether a fact is material will depend upon the substantive law of the case, and only factual disputes that might affect the outcome of the suit can properly preclude summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
When adjudicating a motion for summary judgment, a court must view the record "in the light most favorable to the non-moving part[y]," drawing all reasonable
In its brief in opposition to the instant motion, Multilayer raises both procedural and substantive arguments against the granting of summary judgment. See Multilayer's Opp'n 1. Procedurally, Multilayer argues that the motion is premature because claim construction is incomplete, Berry has been uncooperative in discovery, and expert discovery has yet to be undertaken. Id. at 2. This Court, after review, concludes that the instant motion is ripe.
An analysis of the record does not evidence any insufficiency in discovery undertaken,
Finally, though a final claim construction order has not been entered,
In order to infringe a patent claim, the accused device must embody each and every element of that claim, either literally or under the doctrine of equivalents. Stewart-Warner Corp. v. City of Pontiac, Mich., 767 F.2d 1563, 1570 (Fed.Cir.1985). "A patent infringement analysis consists of two steps: first the patent claims are construed, [and] second the properly-construed claims are compared to the product accused of infringement." In re Omeprazole Patent Litig., 490 F.Supp.2d 381, 415 (S.D.N.Y.2007) (citing Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996)), aff'd, 281 Fed.Appx. 974 (Fed.
In the instant motion, Berry contends that none of the Accused Films infringe the '055 Patent because each lacks five inner layers that meet the requirements of claims 1 and 28. Berry's Br. 12. More specifically, Berry alleges that the Accused Films' inner layers: (a) impermissibly include blends of classes of resins from the Markush group and (b) impermissibly include resins from outside the Markush group. Id.
In opposition, Multilayer contends that there remains a genuine issue of material fact, namely whether each of the resins used in the inner layers of the Accused Films can be characterized as an LLDPE resin, as the term was construed at the Markman hearing. Multilayer's Opp'n 14. Multilayer suggests that all of the listed resins "all fall within a single class," and, as a consequence, a combination of the listed resins "do[es] not constitute [a] blend[]."
For the reasons that follow, this Court GRANTS Berry's motion for summary judgment.
Following the claim construction hearing, the phrase "each [inner] layer being selected from the group consisting of [LLDPE, VLDPE, ULDPE and mLLDPE]" was construed to describe a "closed Markush group," not permitting blends. Markman Order 62-63; see also id. at 55 ("[T]here is nothing in the language of the claim itself to indicate blends of the specifically listed polymers.") (emphasis added); id. at 63 ("[E]ach of five... inner layers must contain only one class of ... resins, and no other resin(s)....") (emphasis added). Relevantly, Judge McCalla also construed the term "LLDPE" to mean "a class of copolymers of ethylene and alpha-olefins, which are characterized by relatively straight polymer chains with short chain branching and little or no long chain branching." Id. at 82 (emphasis added). In reaching this conclusion, Judge McCalla acknowledged that this definition was sufficiently broad to encompass mLLDPE resins, as well as VLDPE and ULDPE. Id. at 74-76, 81.
The inner layers of all five of the Accused Films include blends of resins. Berry's
This motion turns on a question of interpretation: does the '055 Patent, given the broad construction of LLDPE, permit blends of resins from at least two of the specified classes taught in claims 1 and 28 — mLLDPE, LLDPE, ULDPE and VLDPE — in an inner layer that is subject to the Markush group limitation?
Turning first to the construction of the Markush limitation, it is apparent that the permissibility of blends of resins within a film's inner layer was directly considered and rejected during claim construction. See, e.g., Markman Order 98 (holding that claims 1 and 28 "do not contemplate blends of different resins"); id. at 55 ("Element (a) of Claim 1 and element (a) of Claim 28 do not contain any qualifying language to indicate that blends of resins are within the scope of the independent claims."); id. ("[T]here is nothing in the language of the claim itself to indicate blends of the specifically listed polymers.")(emphasis added). The definition ascribed to LLDPE is acknowledged to be sufficiently broad to encompass mLLDPE, see id. at 74 ("LLDPE... is a broader term and includes polyethylenes that can be produced using various catalysts."), VLDPE, and ULDPE, see id. at 75-76. The fact that a resin can be described as both an mLLDPE resin and also as a broader LLDPE resin does not mean that the combination, in an inner layer of a stretch film, of an mLLDPE resin and a LLDPE resin catalyzed using an agent other than metallocene does not constitute a prohibited blend. Though resins within the classes of mLLDPE, VLDPE, and ULDPE can (also) broadly be characterized as LLDPE resins, a resin within one of these separate specified classes does not lose its classification as such merely because it may also be described as a member of another broader class. In directly addressing this issue, Judge McCalla was emphatic that blends of the specifically listed classes were not taught by the patent. Id. at 63 (construing language in element (b) of claims 1 and 28 and drawing direct parallels to analysis of element (a), which directly rejected the suggestion that the claims taught blends of the enumerated resins, see id. at 55, 57). At this juncture, to permit blends would impermissibly require the Court to ignore the "specific limitations" of the '055 Patent, Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 797 (Fed.Cir.1990), and for the aforementioned reasons, the Court
It is uncontested that at least one of the inner layers of the Accused Films contains blends of resins from the classes of mLLDPE, ULDPE, and LLDPE — all classes of resins separately specified in claims 1 and 28. See Berry's Resp. Interrogs. 9-10; Multilayer's Opp'n 12. Because, as discussed above, the '055 Patent does not teach blends of the specifically listed classes of resins, the Accused Films do not do not "embody every element" of claim 1 and claim 28, Stewart-Warner, 767 F.2d at 1570, and thus do not infringe the '055 Patent.
Even were the Court to adopt Multilayer's interpretation of claims 1 and 28 of the '055 Patent — that "[i]f all of the resins within a stretch film can be characterized as [LLDPE] as that term [was] construed by [Judge McCalla], then they all fall within a single class of resins and do not constitute blends," Multilayer's Opp'n 14 — this would avail Multilayer nothing. Contrary to Multilayer's argument, the necessary consequence of an interpretation which has all resins falling within a single class is not that all combinations and permutations are thus permissible, but rather it is that claims 1 and 28 are indefinite and thus invalid. See, e.g., Nautilus, Inc. v. Biosig Instruments, Inc., ___ U.S. ___, 134 S.Ct. 2120, 2125, 189 L.Ed.2d 37 (2014).
The Patent Act requires that every patent specification "conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor ... regards as the invention." 35 U.S.C. § 112(b). A patent is indefinite where its claims "fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention." Nautilus, 134 S.Ct. at 2124. In evaluating the "definiteness" of a patent, the Court adopts the perspective of "someone skilled in the relevant art ... at the time the patent was filed," reading all claims "in light of the patent's specification and prosecution history." Id. at 2128.
Though "[s]ome modicum of uncertainty... is the `price of ensuring the appropriate incentives for innovation,'" the patent must "afford clear notice of what is claimed," and its claims must be sufficiently precise to "inform those skilled in the art about the scope of the invention with reasonable certainty." Id. at 2128-29 (citations omitted); see also id. at 2129 ("[T]he definiteness requirement ... mandates clarity...."). Thus, while the double inclusion of elements within a Markush group is permissible, see Markman Order 76-77, (citing Manual of Patent Examining Proc. ("M.P.E.P.") § 2173.05h (9th ed., 2014)); Ex Parte Dale E. Hutchens & Norman Cohen, Appeal No. 1996-3292, 1996 WL 1749363, at *1 (Bd.Pat.App. & Interf.) (noting that "there is no automatic rule against double inclusion" (internal quotation marks omitted)), care must be taken to ensure that this act does not then make the claim indefinite. See Ex Parte Hutchens, 1996 WL 1749363 at *1; see also Ex parte Ionescu, 222 U.S.P.Q. 537, 1984 WL 63050, at *4 (Pat.& Tr. Office Bd.App. Jan. 12, 1984).
Multilayer's interpretation is not only a distortion of the Markush group taught by the patent, but it also renders independent claims 1 and 28 indefinite. Adopting this interpretation would teach a stretch film with inner layers composed of an almost indefinite number of combinations of resins that fall with the (broadly construed) class of LLDPE resins, such that "persons skilled in the art [could not] determine the metes and bounds of the claimed invention."
Given, however, that patents are presumed valid, 35 U.S.C. § 282(a), and that the general modus operandi of the court is to "protect the inventive contribution of patentees" — and accordingly to "find[] claims indefinite only if reasonable efforts at claim construction prove futile" — this Court does not elect to grant summary judgment on this basis, Exxon Research & Eng'g Co. v. United States, 265 F.3d 1371, 1375 (Fed.Cir.2001), abrogated on other grounds by Nautilus, 134 S.Ct. at 2120. Moreover, having concluded that the Accused Films do not infringe the '055 Patent as construed, it is unnecessary to address Berry's alternative arguments.
For the aforementioned reasons, this Court GRANTS Berry's motion for summary judgment, ECF No. 120.