783 F.3d 865 (Fed. Cir. 2015), 2014-1540, Ineos USA LLC v. Berry Plastics Corp.

Docket Nº:2014-1540
Citation:783 F.3d 865
Opinion Judge:Moore, Circuit Judge.
Party Name:INEOS USA LLC, Plaintiff-Appellant v. BERRY PLASTICS CORPORATION, Defendant-Appellee
Attorney:DONALD ROBERT DUNNER, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for plaintiff-appellant. Also represented by ALLEN MARCEL SOKAL. DEBORAH POLLACK-MILGATE, Barnes & Thornburg LLP, Indianapolis, IN, argued for defendant-appellee. Also represented by JESSICA M. LINDE...
Judge Panel:Before DYK, MOORE, and O'MALLEY, Circuit Judges.
Case Date:April 16, 2015
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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783 F.3d 865 (Fed. Cir. 2015)

INEOS USA LLC, Plaintiff-Appellant

v.

BERRY PLASTICS CORPORATION, Defendant-Appellee

No. 2014-1540

United States Court of Appeals, Federal Circuit

April 16, 2015

Editorial Note:

This decision has been published without opinion

Appeal from the United States District Court for the Southern District of Texas, in No. 3:13-cv-00017, Judge Gregg Costa.

DONALD ROBERT DUNNER, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for plaintiff-appellant. Also represented by ALLEN MARCEL SOKAL.

DEBORAH POLLACK-MILGATE, Barnes & Thornburg LLP, Indianapolis, IN, argued for defendant-appellee. Also represented by JESSICA M. LINDEMANN.

Before DYK, MOORE, and O'MALLEY, Circuit Judges.

OPINION

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Moore, Circuit Judge.

Ineos USA LLC accused Berry Plastics Corporation of infringing U.S. Patent No. 6,846,863. Ineos appeals from the district court's summary judgment that the '863 patent is invalid as anticipated under 35 U.S.C. § 102 (2006). We affirm.

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Background

The '863 patent is directed to polyethylene-based compositions which can be used to form shaped products, such as screw caps for bottles. '863 patent col. 1 ll. 5-8. Prior art polyethylene bottle caps incorporated a lubricant to optimize the cap's slip properties and to facilitate unscrewing of the cap. Id. col. 1 ll. 9-14. However, these compositions suffered the disadvantage of imparting bad odor and flavor to food products stored in contact with the compositions. Id. col. 1 ll. 15-17. The '863 patent explains that its compositions having specific amounts of polyethylene, of material, and additives solve this problem. Id. col. 1 ll. 24-35. Claim 1 is the only independent claim and is illustrative:

1. Composition comprising at least [1] 94.5% by weight of a polyethylene with a standard density of more than 940 kg/m3,

[2] 0.05 to 0.5% by weight of at least one saturated fatty acid amide represented by CH3(CH2)nCONH2 in which n ranges from 6 to 28[,] [3] 0 to 0.15% by weight of a subsidiary lubricant selected from fatty acids, fatty acid esters, fatty acid salts, mono-unsaturated fatty acid amides, polyols containing at least 4 carbon atoms, mono-or poly-alcohol mono ethers, glycerol esters, paraffins, polysiloxanes, fluoropolymers and mixtures there of, and [4] 0 to 5% by weight of one or more additives selected from antioxidants, antacids, UV stabilizers, colorants and antistatic agents.

For ease of reference, we refer to the various limitations by the respective bracketed numbers inserted into the claim.

Ineos alleged that Berry Plastics infringes claims 1-7 and 9-11 of the '863 patent. Berry Plastics moved for summary judgment that the asserted claims are anticipated independently by various prior art references, including U.S. Patent No. 5,948,846. The parties do not dispute that the '846 patent discloses 94.5% by weight of a polyethylene with a standard density of more than 940 kg/m3 as described in limitation 1 of claim 1 of the '863 patent. Ineos USA LLC v. Berry Plastics Corp., No. 13-cv-0017, *10 (S.D. Tex. Apr. 15, 2014), ECF No. 101 ( Summary Judgment Order ). Likewise, there is no dispute that stearamide, disclosed in the '846 patent, is a compound within the class of saturated fatty acid amides represented by CH3(CH2)nCONH2 in which n ranges from 6 to 28 (" primary lubricant" ) described in limitation 2. The court found that the '846 patent's disclosure of a lubricant, which could be stearamide, in amounts from 0.1 to 5 parts by weight,1 and more specifically of " at least 0.1 part by weight per 100 parts by weight of polyolefin, in particular of at least 0.2 parts by weight, quantities of at least 0.4 parts by weight being the most common ones" describes specific values (e.g., 0.1 part by weight) along with the broader disclosure of the full range (0.1 to 5 parts by weight). It therefore concluded that the '846 patent's disclosure of stearamide in these amounts met limitation 2. It then determined that the subsidiary lubricant of limitation 3 and the additive of limitation 4 are optional in the claimed composition because limitations 3 and 4 set forth ranges beginning with 0%. It therefore found that the '846 patent's disclosure of an optional subsidiary lubricant and an optional additive satisfied limitations 3 and 4. Id. The court concluded that the '846 patent anticipates the asserted claims. Ineos appeals. We

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have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

Discussion

We review the grant of summary judgment under the law of the relevant regional circuit. See Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1340 (Fed. Cir. 2013). The Fifth Circuit reviews grants of summary judgment de novo. Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). To anticipate a patent claim under 35 U.S.C. § 102, " a reference must describe . . . each and every claim limitation and enable one of skill in the art to practice an embodiment of the claimed invention without undue...

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