Case 4:11-cv-00029-RLY-WGH Document 169 Filed 02/06/14 Page 1 of 13 PageID #: 4900
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`NEW ALBANY DIVISION
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`
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` vs.
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`SÜD-CHEMIE AG,
`SÜD-CHEMIE, INC.,
`AIRSEC S.A.S.,
`CLARIANT PRODUKTE
`DEUTSCHLAND GMBH,
`CLARIANT CORPORATION, and
`CLARIANT PRODUCTION (FRANCE)
`S.A.S.
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` Defendants.
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` 4:11-cv-00029-RLY-WGH
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`))))))))))))))))
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`CSP TECHNOLOGIES, INC.,
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` Plaintiff,
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`ENTRY ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OF
`NONINFRINGEMENT
`CSP Technologies, Inc. (“CSP”) is a leading innovator in the field of plastic
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`packaging, and is the owner of United States Patent No. 7,537,137, entitled “Resealable
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`Moisture Tight Container Assembly For Strips And The Like Having A Lip Snap Seal”
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`(the “‘137 patent”). As the title of the patent suggests, the patent relates to substantially
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`moisture-tight container and lid assemblies that can be used to store and package
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`moisture-sensitive items, such as diagnostic test strips, using dessicant entrained polymer
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`technology. Defendants, Süd Chemie AG, Süd Chemie, Inc., and Airsec S.A.S., Clariant
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`Produkte Deutschland GmbH, Clariant Corporation, and Clariant Production (France)
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`1
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`000001
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`CSP Ex. 2005
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`S.A.S.1, are competitors of CSP in this field, and are the owners of the Accused Products,
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`the Handy Active Tubes®. The Accused Products are described by the parties as vial-
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`shaped containers. CSP alleges that the Defendants are infringing claims 1-5 and claim 7
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`of the ‘137 patent by, inter alia, manufacturing, selling and/or importing the Accused
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`Products into the United States, either literally or under the doctrine of equivalents.
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`Defendants now move for summary judgment of noninfringement. For the reasons set
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`forth below, that motion is GRANTED.
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`I.
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`Background
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` The court’s infringement analysis involves two steps: claim construction of the
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`asserted claim(s) and a determination of whether the accused method or process infringes
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`the asserted claim(s). Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1581-82 (Fed.
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`Cir. 1996). “Direct infringement requires proof by preponderant evidence that the
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`defendant performs (if a method claim) or uses (if a product claim) each element of a
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`claim, either literally or under the doctrine of equivalents.” Cheese Sys., Inc. v. Tetra Pak
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`Cheese and Powder Sys., Inc., 725 F.3d 1341, 1348 (Fed. Cir. 2013). The first step,
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`claim construction, is an issue of law. Markman v. Westview Instruments, Inc., 517 U.S.
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`370, 384-85 (1996). The second step, comparing the properly construed claims to the
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`allegedly infringing device, is an issue of fact. Id.
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`Independent claims 1 and 7 contain virtually identical claim language, and recite,
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`in pertinent part:
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`1 Due to corporate restructuring, the court recently granted CSP leave to amend the
`Complaint to include the following Defendants, Clariant Produkte Deutschland GmbH, Clariant
`Corporation, and Clariant Production (France) S.A.S.
`2
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`000002
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`1. A substantially moisture tight container and lid assembly for storing and
`packaging moisture-sensitive items comprising: an assembly with a
`container and a lid,
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`a)
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`b)
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`the lid is attached by a hinge to an upper housing portion of
`the container, the lid has an outer periphery that extends over
`at least a portion of the container, the lid is provided with a
`skirt that extends downwardly therefrom,
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`the container has a container base, and a sidewall extending
`upwardly from the container base,
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`i)
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`ii)
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`iii)
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`iv)
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`a top of the container is provided with an opening that
`permits access to an interior of the container, wherein
`the opening is spaced away from an outer surface of
`the sidewall of the container. . .
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`the opening of the top of the container is bounded by a
`lip that extends upward from the top of the container,
`the lip of the top of the container extends around the
`periphery of the opening of the top of the container,
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`the skirt of the lid is positioned at a location on the lid
`that allows the skirt of the lid to enter into a closing
`relationship with the lip of the top of the container, . . .
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`the lid further includes a flexible lip seal member that
`extends downwardly therefrom, the flexible lip seal
`member of the lid is configured to abut at least a
`portion of the interior side of the lip of the top
`container surface when the lid is in the closed position,
`wherein the flexible lip seal member is designed to be
`sufficiently deflective so as to provide a sealing
`position, . . . which in combination with the closing
`relationship between the skirt of the lid and the lip of
`the top of the container results in a substantially
`moisture tight seal between the lid and the container
`. . . .
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`Claims 2, 3, 4, and 5 are dependent claims of independent claim 1. A dependent claim is
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`“construed to incorporate by reference all the limitations of the claim to which it refers.”
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`3
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`35 U.S.C. § 112 (d). For example, dependent claims 2-4 require “[t]he substantially
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`moisture tight container and lid assembly of claim 1,” and dependent claim 5 requires
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`“[t]he substantially moisture tight container and lid assembly for storing and packaging
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`moisture-sensitive items of claim 1.”
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`Defendants filed the present motion for summary judgment on the same day they
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`filed their brief on claim construction regarding the meaning of four disputed claim
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`terms, shown in italics above: (1) “an opening wherein the opening is spaced away from
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`an outer surface of the sidewall of the container”; (2) “a closing relationship”; (3) “an
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`upper housing portion of the container” and (4) “substantially moisture tight.”
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`Defendants argued that, based upon their interpretation of those disputed claim terms,
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`Defendants’ accused products do not infringe claims 1-5 and 7 of the ‘137 patent either
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`literally or under the doctrine of equivalents.
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`After the Defendants’ motion for summary judgment was fully briefed, the court
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`issued its Entry on Claim Construction. The court agreed with CSP’s construction with
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`respect to three of the four disputed claim terms: (1) “an opening wherein the opening is
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`spaced away from an outer surface of the sidewall of the container”; (2) “a closing
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`relationship”; and (3) “substantially moisture tight.” The court did not agree with CSP’s
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`construction of the term “an upper housing portion of the container,” and construed it as
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`“an upper housing portion of the container that is separate and distinct from the container
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`base” – the construction advocated by Defendants. With this background in mind, the
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`court now turns to the merits of the present motion.
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`4
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`II.
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`Discussion
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`Defendants’ move for summary judgment of noninfringement either literally or
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`under the doctrine of equivalents.
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` “Literal infringement of a claim exists when every limitation recited in the claim
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`is found in the accused device, i.e., when the properly construed claim reads on the
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`accused device exactly.” Strattec Sec. Corp. v. Gen. Auto. Specialty Co., Inc., 126 F.3d
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`1411, 1418 (Fed. Cir. 1997) (citing Johnston v. IVAC Corp., 885 F.2d 1574, 1580 (Fed.
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`Cir. 1989)). Defendants’ Handy Active Tubes® consist of a container with a flip-top lid
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`and a built-in dessicant to sustain a moisture-free environment. CSP understands that
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`Defendants’ accused product does not have “an upper housing portion that is separate and
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`distinct from the container base.” Accordingly, CSP concedes that, pursuant to the
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`court’s claim construction, Defendants’ accused product does not literally infringe the
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`‘137 patent.
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`Infringement under the doctrine of equivalents is evaluated under an element-by-
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`element basis, such that every claimed element of the invention, or its equivalent, is
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`present in the accused product. Deere & Co. v. Bush Hog, LLC, 703 F.3d 1349, 1356
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`(Fed. Cir. 2012) (citing Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17,
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`40 (1997)). Defendants argue the doctrine of equivalents does not apply to the parties’
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`dispute for three principle reasons. First, they argue CSP failed to put forth any evidence
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`of infringement under that theory in response to Defendants’ original motion for
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`summary judgment. Second, they argue CSP cannot pursue infringement under the
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`doctrine of equivalents because CSP dedicated a one-piece container to the public in the
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`5
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`000005
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`‘137 patent’s written description, but did not claim it. Lastly, they argue that application
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`of the doctrine of equivalents would “vitiate” the requirement that the upper housing
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`portion be “separate and distinct” from the container base. The court will discuss each
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`argument, in turn, below.
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`A.
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`CSP’s Original Response to Defendants’ Motion
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`As noted above, Defendants filed their motions for summary judgment before the
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`court’s Entry on Claim Construction. In response to Defendants’ motion for summary
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`judgment, CSP argued that, under its proposed claim constructions as supported by its
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`expert in the field of plastics technology and polymer processing, Dr. Tim Osswald,
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`Defendants’ accused products literally infringed the ‘137 patent, and that “a
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`determination of infringement under the doctrine of equivalents would be premature at
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`this time.” CSP reserved the right, however, to supplement Dr. Osswald’s expert report if
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`the court were to reject its proposed constructions. Following the court’s Entry on Claim
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`Construction, CSP requested, and the Magistrate Judge granted CSP the opportunity to
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`file a supplemental brief in response to Defendants’ motion for summary judgment
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`pursuant to the parties’ Case Management Plan. (See Docket # 56, at 8, § III.P (“If
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`required by the Court’s Markman decision, parties can request that supplemental non-
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`damages expert reports and/or additional summary judgment motion practice be added to
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`the CMP.”)). CSP did so, and the Defendants filed a response to that supplemental brief.
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`On this record, the court finds CSP did not fail to respond or to submit evidence of
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`infringement under an equivalents theory in a timely fashion.
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`B.
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`Disclosure-Dedication Rule
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`6
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`The disclosure-dedication doctrine bars infringement under the doctrine of
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`equivalents when “particular subject matter [has been] disclosed in the patent
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`specification but not claimed . . . .” K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1368
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`(Fed. Cir. 1999). In such situations, the unclaimed subject matter is “deemed to have
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`been surrendered [to the public].” Id.; see also Johnson & Johnston Assocs. v. R.E. Serv.,
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`285 F.3d 1046, 1054 (Fed. Cir. 2002) (“When a patent drafter discloses but declines to
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`claim subject matter, as in this case, this action dedicates that unclaimed subject matter to
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`the public.”). To allow “[a]pplication of the doctrine of equivalents to recapture subject
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`matter deliberately left unclaimed would ‘conflict with the primacy of the claims in
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`defining the scope of the patentee’s exclusive right.’” Johnson & Johnston Assocs., 285
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`F.3d at 1054 (quoting Sage Prods. Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1422 (Fed.
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`Cir. 1997)); see also Conopco, Inc. v. May Dep’t Stores, Co., 46 F.3d 1556, 1562 (Fed.
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`Cir. 1994) (“The doctrine of equivalents cannot be used to erase ‘meaningful structural
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`and functional limitations of the claim on which the public is entitled to rely in avoiding
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`infringement.’”) (citations omitted)).
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`The disclosure-dedication rule “is not without restriction.” Sandisk Corp. v.
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`Kingston Tech. Co., Inc., 695 F.3d 1348, 1363 (Fed. Cir. 2012). The disclosure must be
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`more than a generic reference in a written specification; instead, “‘the disclosure must be
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`of such specificity that one of ordinary skill in the art could identify the subject matter
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`that had been disclosed but not claimed.’” Id. (quoting PSC Computer Prods. v. Foxconn
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`Int’l, Inc., 355 F.3d 1353, 1360 (Fed. Cir. 2004)). Further, “‘before unclaimed subject
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`matter is deemed to have been dedicated to the public, the unclaimed subject matter must
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`7
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`have been identified by the patentee as an alternative to a claim limitation.’” Id. at 1364
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`(quoting Pfizer, Inc. v. Teva Pharm. USA, Inc., 429 F.3d 1364, 1379 (Fed. Cir. 2005)).
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`Whether this rule prevents a patentee from pursuing application of the doctrine of
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`equivalents is an issue of law. Id.
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`Here, Defendants argue CSP disclosed one-piece containers in the ‘137 patent’s
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`written description, but failed to claim one-piece containers. The court’s construction of
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`independent claims 1 and 7 – i.e., that the upper housing portion of the container must be
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`separate and distinct from the container base – supports CSP’s argument that CSP
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`claimed only two-piece containers.
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`The ‘137 patent written description discloses both one-piece and two-piece
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`containers, as illustrated in Figures 6-9 and 12 (two-piece containers) and Figure 10 (one-
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`piece container). Both one- and two-piece containers are also disclosed in the detailed
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`description of the ‘137 patent. (See ‘137 patent, col. 4, ll:4-6 (“In one embodiment, the
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`container can be formed as a single closed unit, with the hinge joining the lid portion to
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`the container portion.”; id., col. 4 ll:42-44 (“In a further embodiment, the lid and
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`container can be formed in a single piece (for example, joined at the hinge). . . .”); id.,
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`col. 4, ll:7-9) (“In yet another embodiment, the container assembly comprising the base
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`and upper housing portion can be molded separately.”); id., col. 4, ll:47-48 (“An
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`embodiment depicting a two-part assembly is illustrated in FIGS. 6 to 9 and 12.”)).
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`Indeed, CSP’s own expert, Dr. Osswald, stated in his Supplemental Expert Report that
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`“the ‘137 patent discloses embodiments where the container base and upper housing are
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`two pieces (see, e.g., Figure 6) and embodiments where the container base and upper
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`housing portion are one piece (see, e.g., Figure 10).” (Supplemental Expert Report of Dr.
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`Tim A. Osswald (“Osswald Supp. Report”) ¶ 26). There is thus no dispute that one of
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`ordinary skill in the art would have understood that the ‘137 patent specifically discloses
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`both one- and two-piece containers. Yet, as noted above, CSP claimed only two-piece
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`containers.
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`The court’s understanding of the ‘137 patent is supported by the claims in United
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`States Patent No. 8,528,778 (the “‘778 patent”), which is a continuation-in-part of the
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`‘137 patent. Both patents claim a container and lid assembly, but only the ‘137 patent
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`claims “the lid is attached by a hinge to an upper housing portion of the container.” (‘137
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`patent, col. 6, claim 1(a)). In simple terms, the ‘137 patent claims two-piece containers,
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`and the ‘778 patent literally claims “wherein the container is a single piece container.”
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`(See U.S. Patent No. 8,528,778, col. 8, claim 6). Because CSP specifically disclosed
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`one-piece containers in the ‘137 patent’s written description, but did not claim one-piece
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`containers, CSP is barred under the disclosure-dedication rule from using the doctrine of
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`equivalents to reclaim one-piece containers such as Defendants’ Handy Active Tubes®.
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`C.
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`Claim Vitiation
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`The Federal Circuit recently explained that “‘[v]itiation’ is not an exception to the
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`doctrine of equivalents, but instead a legal determination that ‘the evidence is such that
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`no reasonable jury could determine two elements to be equivalent.’” Deere, 703 F.3d at
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`1356 (quoting Warner-Jenkinson, 520 U.S. at 39 n.8). Accordingly, the “proper inquiry”
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`is to apply the doctrine of equivalents, asking “whether an asserted equivalent represents
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`an ‘insubstantial difference’ from the claimed element, or ‘whether the substitute element
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`matches the function, way, and result of the claimed element.’” Id. (quoting Warner-
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`Jenkinson, 520 U.S. at 40); see also Brilliant Inst., Inc. v. GuideTech, LLC, 707 F.3d
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`1342, 1347 (7th Cir. 2013) (“[V]itiation applies when one of skill in the art would
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`understand that the literal and substitute limitations are not interchangeable, not
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`insubstantially different, and when they do not perform substantially the same function in
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`substantially the same way, to accomplish substantially the same result.”). “If no
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`reasonable jury could find equivalence, then the court must grant summary judgment of
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`no infringement under the doctrine of equivalents.” Deere, 703 F.3d at 1356. (citing
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`Warner-Jenkinson, 520 U.S. at 39 n. 8). Whether an omitted element is supplied by an
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`equivalent device or structure is ordinarily an issue of fact. Id.
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`The doctrine of claim vitiation has its clearest application where the accused
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`device contains the polar opposite or antithesis of the claimed structure. Brilliant Inst.,
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`707 F.3d at 1347 (citing Planet Bingo, LLC v. GameTech Int’l, Inc., 472 F.3d 1338 , 1345
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`(Fed. Cir. 2006)). This makes sense, as elements that are the opposite of one another are
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`likely not insubstantially different. Id. For example, the Federal Circuit concluded that a
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`competitor’s bingo game did not infringe the plaintiff’s patents claiming alternative
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`methods of playing bingo either literally or under the doctrine of equivalents because the
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`accused version determined a winning combination after the game started, whereas the
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`patented gaming device determined a winning combination before the game started.
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`Planet Bingo, 472 F.3d at 1345; see also Wleklinski v. Targus, Inc., 258 Fed. Appx. 325,
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`329-30 (Fed. Cir. 2007) (refusing to apply the doctrine where the proposed application
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`would change “separate sections made of different materials” to “a single unitary material
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`made of the same fabric”); Asyst Techs., Inc. v. Emtrak, Inc., 402 F.3d 1188, 1195 (Fed.
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`Cir. 2005) (refusing to apply the doctrine where the proposed application would change
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`“mounted” to “unmounted”); Moore U.S.A., Inc. v. Standard Register Co., 229 F.3d
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`1091, 1106 (Fed. Cir. 2000) (refusing to apply the doctrine where the proposed
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`application would change “majority” to “minority”);
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`Here, Defendants argue the court should refuse to apply the doctrine of
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`equivalents because the accused unitary vial-shaped containers are the antithesis or polar
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`opposite of the two-piece containers claimed in the ‘137 patent. Thus, a finding of
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`infringement under the doctrine of equivalents would vitiate the ‘137 patent’s
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`requirement that the container consist of (1) an upper housing portion that is separate and
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`distinct from (2) a container base.
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`In construing the term “upper housing portion of the container” as separate and
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`distinct from the container base, the court reasoned that the dictionary definition of the
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`word “housing” means something that “covers and protects” something else. Thus, in
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`this case, the “upper housing portion of the container” “covers and protects” the contents
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`in the container. The court also analyzed the context of the claim, and noted that subparts
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`1(a) and (b) of independent claim 1 (and by extension, dependent claims 2-5, and claim
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`7) describe the container as having a lid, a hinge, an upper housing portion, a container
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`base with sidewalls extending upward, and a container top (meaning an opening at the
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`top). Finally, the court noted that each time the specification uses the term “upper
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`housing” to describe the container, the specification describes the container as having an
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`upper housing and a separate and distinct container base. By contrast, the Accused
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`Product
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`does not haave an uppeer housing pportion; insttead, it has
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`a lid, a hin
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`ge, a contaiiner
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`base witth sidewallss extending upward, annd a containner top.
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`court’s es that the c IIn Dr. Osswwald’s Suppplemental Exxpert Reporrt, he opine
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`construcction of “an opening wwherein the oopening is sspaced awaay from the
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`outer surfaace of
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`the sidewwall of the ccontainer” mmeant that the court “rrejected thee Defendantts’ argumennt
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`that the claims can not read onn vial shaped containerrs.” (Osswaald Supp. RReport ¶ 20)).
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`duct is ccused prodon of the acusing portioal upper hout the integraHe then opines that
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`ainer m the contaseparate fromion that is sousing portian upper hoerent from ainsubstaantially diffe
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`base. His supplemeental affidaavit includess a visual deepiction of
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`two vial-shhaped
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`). One (See below)the same. (are exactly timensions ahape and dicontaineers whose sh
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`represennts an emboodiment (Figgure 10) froom the ‘1377 patent, andd the other
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`Accusedd Product. AAccording tto Dr. Osswwald, the inttegral “uppper housing
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`Accusedd Product iss simply thee top portionn of the conntainer. (Seee Osswald
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`represents tthe
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`portion” off the
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`Supp. Repoort.
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`¶ 23 (“TThe Accusedd Product’s upper houssing portionn and contaainer base arre made
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`togetherr as one piecce.”)).
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`12
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`Dr. Osswald’s representation of the top portion of the accused product blends the
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`“upper housing portion” of the container with the upper limit of the sidewalls. Dr.
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`Osswald’s representation thus fails to account for the fact that the “upper housing portion
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`of the container” is meant to be a separate and distinct part of the container that covers
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`and protects the container’s contents. Merely pointing out the top of the sidewalls as the
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`“upper housing portion” reads that limitation (that the “upper housing portion” be
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`separate and distinct) out of the patent. The court finds a one-piece container is not the
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`equivalent of a two-piece container, and to find otherwise would entirely vitiate that
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`claim element. No reasonable jury would find otherwise.
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`III. Conclusion
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`For the reasons set forth above, the court finds CSP is barred from asserting the
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`doctrine of equivalents in this case on two independent bases: (1) the disclosure-
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`dedication rule and (2) the claim vitiation doctrine. Accordingly, the court hereby
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`GRANTS Defendants’ Motion for Summary Judgment of Noninfringement (Docket #
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`107).
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`SO ORDERED this 6th day of February 2014.
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` s/ Richard L. Young________
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`United States District Court
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`Southern District of Indiana
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`_________
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`Distributed Electronically to Registered Counsel of Record.
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`13
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` __________________________________
` RICHARD L. YOUNG, CHIEF JUDGE
` United States District Court
` Southern District of Indiana
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`000013
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`CSP Ex. 2005
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