Precision Metal Fabricators v. JETSTREAM SYSTEMS
| Decision Date | 08 February 1988 |
| Docket Number | No. C 86 4516 AJZ.,C 86 4516 AJZ. |
| Citation | 693 F. Supp. 814 |
| Parties | PRECISION METAL FABRICATORS, INC., Plaintiff, v. JETSTREAM SYSTEMS COMPANY, DIVISION OF OERLIKON MOTCH CORPORATION and Stanley Lenox, Defendants. |
| Court | U.S. District Court — Northern District of California |
Flehr, Hohbach, Test, Albritton & Herbert, Elmer S. Albritton, William J. Egan, III, Luann Cserr, San Francisco, Cal., for plaintiff.
Willian Brinks Olds Hofer Gilson & Lione Ltd., Gary M. Ropski, Chicago, Ill., for defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This is an action commenced by plaintiff, Precision Metal Fabricators, Inc. (hereinafter "Precision"), against defendants Jetstream Systems Company (hereinafter "Jetstream"), and Stanley Lenox, for infringement of three U.S. patents, Nos. 4,347,022 (the "'022 patent"), 4,456,406 (the "'406 patent"), and 4,568,223 (the "'223 patent"). This court has jurisdiction under 28 U.S.C. § 1338(a).
Defendants have moved for summary judgment on the ground that Jetstream's air conveying equipment does not infringe plaintiff's patents. Defendants also claim that the '223 patent is invalid because it does not satisfy the enablement requirements of 35 U.S.C. § 112. Although defendants originally challenged the '022 patent and the '406 patent on enablement grounds, they have since withdrawn the enablement argument with respect to those patents.
Summary judgment is rarely appropriate in patent infringement actions. Chemical Engineering v. Essef Indus., 795 F.2d 1565, 157 (Fed.Cir.1986). However, summary judgment may be granted where the movant has supported its motion with affidavits establishing that it is entitled to judgment, and the non-movant fails to come forward with specific facts showing that there is a genuine issue for trial. Id.; Fed.R.Civ.P. 56(e). To defeat a motion for summary judgment, the non-movant must show that, assuming all inferences in its favor, "reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).
The patents in suit relate to air conveyors. Defendants' air conveyors are used to convey empty soft drink or beer cans in the process of manufacture or filling. The air conveyor lifts the cans with air from holes in a deck plate, and also propels the cans forward through the use of air directed at an angle from the vertical.
Precision asserts infringement of only certain claims of the patents: claims 1 and 8 of the '022 patent; claims 1, 6, and 7 of the '406 patent; and claims 1 and 2 of the '223 patent.
Defendants assert that their equipment does not infringe plaintiff's patents literally or under the doctrine of equivalents. Alternatively, defendants assert that their equipment does not infringe plaintiff's patents based on the reverse doctrine of equivalents.
To establish literal infringement, plaintiff must show that defendants' equipment embodies each and every element of plaintiff's claim. Perkin-Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1533 (Fed.Cir.1987). In determining whether the claims are infringed, the court will compare the accused equipment to the patent claim, not to plaintiff's equipment as sold. See SRI Intern. v. Matsushita Elec. Corp. of America, 775 F.2d 1107, 1121 (Fed.Cir.1985).
The basic features of the '022 patent are a vertical barrier means and a cover that has perforated and solid portions. The solid portions of the cover, which are situated above the vertical barrier means, create higher air pressure, causing the cans to separate and move around the vertical barrier. See Defendants' Memorandum of Points and Authorities in Support of Motion for Summary Judgment ("Defendants' Memo") at 16:12-18. The exact wording of the claim is "a vertical barrier means positioned between the table surface and the cover such that the objects moving under the solid cover separate and pass to either side of the barrier means." Defendants' Appendix of Exhibits, Tab H, at 1:16-20. This wording suggests a causal connection between the solid portion and the vertical barrier means. Otherwise, the pressure zone created by the solid cover would not aid in the separation of the cans.
Defendants claim that their equipment does not have such a solid cover. Rather, defendants' products have "uniformly perforated" covers, and the covers do not create high pressure zones. See Defendants' Appendix of Exhibits, Tab A, at ¶¶ 22-23 (), and Tab B, at ¶ 8c .
However, plaintiff's witnesses observed defendants' equipment, and they declare that it has a solid cover overlying the vertical barrier.1 See Supplemental Declaration of Harris Zimmerman, at ¶ 8c.
Since there is conflicting evidence regarding whether defendants' equipment has a solid cover over the vertical barrier means, reasonable jurors could differ depending on issues of credibility. Thus, a genuine issue of fact exists as to literal infringement of the '022 patent.
The '406 patent requires covers that have both imperforate and perforated portions, so that the air pressure between objects under the imperforate cover is greater than the pressure under the perforated cover. This pressure provides a barrier against objects tending to move into the space beneath the imperforate portions, slowing the objects down and causing them to separate. Defendant's Appendix of Exhibits, Tab H. Claim 1 of the '406 patent requires that the imperforate portions of the cover cause high pressure zones that "assist in guiding objects being transported." Id. Claims 6 and 7 of the '406 patent requires that the increased pressure zones cause cans "to move away from each other." Id.
Defendants claim that their equipment does not have solid portions of covers that create high pressure zones. Defendant's Appendix of Exhibits, Tab A, at ¶ 25 (). Defendant's covers are uniformly perforated, except for a small portion around each edge which is imperforate.2 See Addendums C and D to Plaintiff's Memo (Parts marked "A" and "B" are solid). Defendants assert that these small imperforate portions do not create high pressure zones. Defendants' Appendix of Exhibits, Tab B, at ¶¶ 8, 9 (), and Tab C, at ¶ 11. In substantiating its claim that these portions do not create pressure zones, defendants note that such pressure zones would inhibit the operation of its equipment "because cans could not flow down the conveyor— they would be stopped every few feet by a lateral strip creating a high pressure barrier." Defendants' Reply, at 11:7-10.
Plaintiff presents evidence indicating that defendants' equipment does create high pressure zones. Ronald Lenhart, the president of Precision, constructed an air table based on specifications from defendants' equipment. When Lenhart measured the air pressure with a manometer, the air pressure under the imperforate portions of the equipment's cover was higher than that under the perforated portions. See Appendix to Supplemental Opposition, at Tab 15 (Lenhart deposition). Later, Lenhart measured the air pressure on actual Jetstream equipment and discovered that the air pressure was higher under the imperforate portions of the cover. See Appendix to Plaintiff's Request for Continuance, at Tab 2, Exhibit B at ¶ 13.
Based on the conflicting evidence, this court cannot determine whether the solid portions of defendants' covers create a high pressure zone. However, this conclusion does not preclude the court from finding that there is no literal infringement of the '406 patent. The claims of the '406 patent require that the high pressure zones "assist in guiding objects" and that they cause the objects to "move away from each other." In the absence of a causal connection between the variable air pressures and guidance of the cans, plaintiff's patent is not infringed.
Defendants claim that the solid portions of their covers are created because several pieces of material are needed to make up the cover. These pieces are periodically attached to one another, creating a break between the systematically perforated covers. Plaintiff claims that these periodic strips of solid cover are intentional. According to plaintiff, these strips cause the cans to periodically slow down to prevent jamming. See Appendix to Supplemental Request for Continuance, at Exhibit 4 at ¶¶ 18, 20.3
Even assuming that plaintiff's theory is accurate, plaintiff's patent is not infringed. A slowing effect is not tantamount to assistance in guiding the cans, nor does it establish that defendants' equipment causes the cans to move away from each other. Plaintiff presents no evidence, other than bare conclusory statements, showing that the strips assist in guidance or cause cans to move away from each other. Conclusory statements are insufficient to create a genuine issue of fact. Chemical Engineering Corp., 795 F.2d at 1571; Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed.Cir.1984). Accordingly, defendant is entitled to summary judgment regarding the '406 patent because plaintiff has failed to establish a genuine issue of fact as...
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