Builders Concrete, Inc. v. Bremerton Concrete Products Co.

• Decision Date: 04 March 1985
• Docket Number: No. 84-1292,84-1292
• Citation: 225 USPQ 240,757 F.2d 255
• Parties: BUILDERS CONCRETE, INC., Appellant, v. BREMERTON CONCRETE PRODUCTS COMPANY, Appellee. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 255

757 F.2d 255

225 U.S.P.Q. 240

BUILDERS CONCRETE, INC., Appellant, v. BREMERTON CONCRETE PRODUCTS COMPANY, Appellee.

Appeal No. 84-1292.

United States Court of Appeals Federal Circuit.

March 4, 1985.

Edward W. Bulchis, Seed & Berry, Seattle, Wash., argued for appellant. With him on brief were William O. Ferron, Jr. and Donald S. Chisum, Seattle, Wash.

Michael Bocianowski, Christensen, O'Connor, Johnson & Kindness, of Seattle, Wash., argued for appellee. With him on brief was James W. Anable, Seattle, Wash.

Before DAVIS, BENNETT and NEWMAN, Circuit Judges.

PAULINE NEWMAN, Circuit Judge.

The decision of the United States District Court for the Western District of Washington, granting summary judgment of non-infringement in favor of appellee Bremerton Concrete Products Company, is affirmed.

OPINION

Appellant Builders Concrete, Inc. is the assignee of U.S. Patent No. 4,353,320, inventor Wesley W. Sluys, for a marine float made of a concrete casing surrounding a buoyant core, the concrete deck of the float accommodating utility lines, the inner structure being braced with ribs in which tie rods are embedded to load the concrete casing compressionally and to prevent weakening or cracking of the float. The utility lines are housed in a longitudinal trench which carries the main lines, and in a transverse "passage" which carries utilities to outlets at the side of the deck. It is this "passage" which is the focus of the issue on appeal.

The proceedings before the district court were based on various cross-motions for summary judgment, all of which were denied or mooted except for Bremerton's motion for summary judgment that the Sluys patent was not infringed. Builders Concrete appeals from this award, and also from the denial of its own motion for summary judgment of infringement.

Although the patent issued with several claims, patent claim 10 (application claim 11) is the sole claim in suit:

10. A marine float comprising:

a buoyant core generally having the shape of a rectangular prismatoid;

a concrete casing surrounding said core, said casing having a bottom, a pair of spaced-apart end walls, a pair of spaced-apart side walls extending longitudinally between corresponding sides of said end walls and a deck connecting the upper edges of said end walls and said side walls, said deck having formed therein an elongated utility trench extending longitudinally between said end walls, and a plurality of spaced-apart, generally parallel ribs extending transversely between said side walls, said ribs projecting downwardly from said deck beneath said trench such that the lower portions of said ribs extend continuously from one side wall to the other;

an elongated wale extending along the upper edge of each side wall;

transversely positioned, respective tie rods extending transversely across said casing beneath said trench, with the ends of the said tie rods projecting through the side walls of said casing and said wales, all of said tie rods being embedded in respective ribs so that said ribs brace the side walls of said casing against the tensional forces of said tie rods;

respective fastener means mounted on said ends of said tie rods for tensioning said tie rods, thereby securing said wales to said side walls and compresionally loading said casing; and

a passage extending between said utility trench and an opening formed in the upper surface of said deck adjacent one of said side walls for routing utility conduits to a utility outlet mounted on said deck adjacent the opening on the upper surface thereof.

Bremerton admitted that its accused float contains every feature of claim 10 except the utility passage of the final clause. The Bremerton utility passage extends transversely from the longitudinal utility trench through the interior of the float and opens through the side wall of the float below the wales, and the utility outlet is mounted not on the concrete deck of the float but on a metal floor plate that connects the float to an adjacent float; as illustrated in a sketch of record on behalf of Bremerton, with descriptive labels added:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Literal Infringement

The district court held that summary judgment was appropriate on the cross-motions relating to literal infringement because there was no dispute as to the construction of either the patented device or the accused device. Although Builders Concrete now challenges the correctness of this basis for summary judgment, we find no error therein. No genuine issue as to any material fact requiring resolution at trial remained on the question of literal infringement. Chore-Time Equipment, Inc. v. Cumberland, 713 F.2d 774, 778-79, 218 USPQ 673, 675 (Fed.Cir.1983).

Literal infringement requires that the accused device embody every element of the claim. Fay v. Cordesman, 109 U.S. 408, 420-21, 3 S.Ct. 236, 244-43, 27 L.Ed. 979 (1883); Interdent Corp. v. United States, 531 F.2d 547, 552, 199 USPQ 191 (Ct.Cl.1976), adopting 187 USPQ 523, 526 (Ct.Cl.Tr.Div.1975). This does not require a slavish conformity to words of insignificance, and Builders Concrete argues that literal infringement is found when one views the accused structure as a whole. The transverse utility passage of the Bremerton float runs beneath the deck and opens to the side of the float. Builders Concrete argues that the words in the last clause of claim 10 "between said utility trench and ... the upper surface of said deck" can mean "part way between" as well as "all the way between". They also argue that the adjacent floor piece that receives the outlet of the Bremerton utilities is encompassed by the literal meaning of the word "deck".

The district court declined to adopt these proposed constructions of claim 10, and held that the passage of claim 10 did not literally encompass the Bremerton utility passage. We discern no error in this conclusion.

Infringement by Equivalents

The transition may be gradual between literal infringement by substantially identical structures and infringement by equivalent structures. If the requirements of literal infringement are not met, one determines whether the structures are equivalent. In considering whether the Bremerton float is equivalent to that described in claim 10, the district court applied the classical standard of whether the utility passage of the Bremerton float "performs substantially the same function in substantially the same way to obtain the same result". Graver Tank Co. v. Linde Air Products Co., 339 U.S. 605, 610, 70 S.Ct. 854, 857, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950).

Bremerton argued that its routing of utilities through the side wall at a point near the waterline is the same as prior art structures, which expose the utility lines to weathering and corrosion in their routing to an outlet in a connected structure that is not part of the claimed float. Builders Concrete presented affidavit and deposition testimony to the effect that the Sluys invention is not limited to any specific routing of the transverse utility passage from the utility trench to the utility outlet, and that the location of the outlet is immaterial. Builders Concrete's position is that the substance of its invention, which is described in the other provisions of claim 10, is not affected by the...