811 F.3d 1334 (Fed. Cir. 2016), 2015-1331, Akzo Nobel Coatings, Inc. v. Dow Chem. Co.

Docket Nº:2015-1331, 2015-1389
Citation:811 F.3d 1334
Opinion Judge:Lourie, Circuit Judge.
Party Name:AKZO NOBEL COATINGS, INC., Plaintiff-Appellant v. DOW CHEMICAL COMPANY, Defendant-Cross-Appellant
Attorney:ELIZABETH GARDNER, Kenyon & Kenyon LLP, New York, NY, argued for appellant. Also represented by MICHAEL D. LOUGHNANE, RICHARD DELUCIA, MERRI C. MOKEN. AARON A. BARLOW, Jenner & Block LLP, Chicago, IL, argued for cross-appellant. Also represented by PAUL DAVID MARGOLIS, HARRY J. ROPER; JOSHUA SEGA...
Judge Panel:Before LOURIE, REYNA, and CHEN, Circuit Judges.
Case Date:January 29, 2016
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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811 F.3d 1334 (Fed. Cir. 2016)

AKZO NOBEL COATINGS, INC., Plaintiff-Appellant

v.

DOW CHEMICAL COMPANY, Defendant-Cross-Appellant

2015-1331, 2015-1389

United States Court of Appeals, Federal Circuit

January 29, 2016

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Appeals from the United States District Court for the District of Delaware in No. 1:12-cv-01264-LPS, Chief Judge Leonard P. Stark.

AFFIRMED.

ELIZABETH GARDNER, Kenyon & Kenyon LLP, New York, NY, argued for appellant. Also represented by MICHAEL D. LOUGHNANE, RICHARD DELUCIA, MERRI C. MOKEN.

AARON A. BARLOW, Jenner & Block LLP, Chicago, IL, argued for cross-appellant. Also represented by PAUL DAVID MARGOLIS, HARRY J. ROPER; JOSHUA SEGAL, Washington, DC.

Before LOURIE, REYNA, and CHEN, Circuit Judges.

OPINION

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Lourie, Circuit Judge.

Akzo Nobel Coatings, Inc. (" Akzo" ) appeals from the decision of the United States District Court for the District of Delaware granting summary judgment that Dow Chemical Company (" Dow" ) did not infringe the claims of U.S. Patent 6,767,956 (" the '956 patent" ), either literally or under the doctrine of equivalents. Akzo Nobel Coatings, Inc. v. Dow Chem. Co., No. 1:12-cv-01364, (D. Del. Jan. 26, 2015) (" Decision " ). Dow cross-appeals from the court's conclusion that the claims of the '956 patent are not indefinite. Id. at 10-14. For the reasons that follow, we affirm both appeals.

Background

Akzo owns by assignment the '956 patent, directed to an extrusion process that generates low viscosity aqueous polymer dispersions. '956 patent, at [57]. In order to achieve uniform distribution of the polymer in the aqueous medium, the specification notes that " the mixture cannot be heated above the boiling point of the carrier liquid, or else the liquid boils and it

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becomes impossible to disperse the polymer." Id. col. 1 ll. 57-59. The claimed invention aims to prevent such boiling, and thus achieve uniform polymer distribution, by maintaining the pressure in the extruder above atmospheric. Id. col. 2 ll. 26-33. Specifically, " [t]he pressure in the extruder [is] maintained by . . . connecting the outlet of the extruder to a pressurized collection vessel." Id. col. 2 l. 64-col. 3 l. 1.

Claim 1 is representative and reads as follows:

1. A process for producing a dispersion of a polymer in an aqueous medium in which the polymer is dispersed in an aqueous medium in an extruder at a temperature above 100° C. in an extruder having an outlet wherein the pressure in the extruder is maintained above atmospheric so that the aqueous medium does not boil characterized by maintaining the pressure above atmospheric for the extruder at the outlet with a pressurized collection vessel and

wherein aqueous dispersion from the extruder has at least 25% by weight of the aqueous medium where the aqueous medium has less than 40% by weight of organic solvent and wherein the aqueous dispersion enters the outlet and pressurized collection vessel at a pressure above atmospheric so that the aqueous medium does not boil and is subjected to the action of a cooling zone to lower the temperature of the aqueous dispersion to below 100° C. to have an aqueous dispersion with a viscosity below 10 Pa.s.

Id. col. 7 l. 9-col. 8 l. 4 (emphases added). Claim 2 further requires: " [a] process according to claim 1 which is carried out at a temperature of from about 5 to 150° C. above the melting point of the polymer. " Id. col. 8 ll. 5-7 (emphasis added).1

Dow's accused process, called BLUEWAVE[TM], uses an extruder to generate low viscosity polymer dispersions. In Dow's process, the dispersion exits the extruder, passes through a valve located at the extruder's outlet, and then travels through a series of pipes and heat exchangers. Joint App. (" J.A." ) 1012, 1040-41. The dispersion then continues on through a filter and collects in a " Product Tote," an unpressurized compartment, eventually used to transport the end-product. J.A. 1012.

In October 2012, Akzo sued Dow for patent infringement, alleging that Dow's BLUEWAVE[TM] process in-fringed claims 1-8 of the '956 patent. In view of what it considered to be Akzo's failure to identify any " pressurized collection vessel" in the accused process, Dow sought leave of court to file an early summary judgment motion of noninfringement. J.A. 685-88. The district court granted the request and combined the summary judgment and Markman hearings. J.A. 52-53.

After the combined hearings, the district court first construed several disputed limitations. Decision at 6-14. It construed " pressurized collection vessel" as " tubing, piping, or other container where a desired material accumulates, which is maintained above atmospheric pressure." Id. at 6-7. The court reasoned that, to properly give meaning to the word " collection," " some amount of material must be permitted to accumulate within the vessel, rather than all of the material flowing through the vessel at a constant rate." Id. at 7. It specifically relied on two examples in the

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specification, Examples 2 and 3, id., which state: " [t]he dispersion was collected into a water-cooled pressurized vessel maintained under nitrogen at 7 bar and from which the dispersion, once cooled to below 100° C., could be periodically removed," '956 patent col. 6 ll. 40-44, col. 7 ll. 1-4 (emphases added).

The district court next addressed and rejected Dow's contention that the limitation " viscosity below 10 Pa.s" rendered claims 1-8 indefinite. According to Dow, the limitation could be definite only if it incorporated a requirement that the viscosity be tested at a certain temperature; a failure to require such a temperature, Dow suggested, was fatal. The court disagreed, instead finding that " in context one of ordinary skill in the art would know with reasonable certainty that viscosity is to be measured at room temperature." Id. at 11. It accordingly construed " viscosity below 10 Pa.s" to mean " viscosity below 10 Pa.s at room temperature." Id. at 10.

The court then addressed and rejected Dow's contention that the limitation " carried out at a temperature of from 5 to 150° C. above the melting point of the polymer" rendered claims 2-6 indefinite. Specifically, Dow argued that the limitation failed to specify to which steps in the claimed process it applied, and that simply applying the limitation to every step, as the plain meaning suggests, would be irrational, for many steps require a temperature at or below 100° C. The court disagreed, however, instead finding that the specification explains that only a subset of steps in the claimed process occurs at elevated temperatures, id. at 14 (citing '956 patent col. 2 ll. 38-41), and therefore " the limitation in claim 2 refers to the elevated temperature phases," id. The court concluded: " Dow has provided no evidence to show that a person of ordinary skill in the art would not know with reasonable certainty the steps to which the limitation in claim 2 applies." Id. It accordingly construed the limitation to mean " [t]he elevated temperature phases of claim 1 are carried out at a temperature of from 5 to 150° C above the melting point of the polymer." Id. at 13.

In light of the above constructions, the district court granted Dow's motion for summary judgment of noninfringement of claims 1-8. In describing Dow's accused process, the court found that " Dow's accused process uses a valve and allows the polymer dispersion to flow continuously. It does not accumulate." Id. at 17. That lack of accumulation precluded a finding of literal infringement. Indeed, as the court noted: " no reasonable juror could find that Dow's accused process uses a 'pressurized collection [vessel]'" because " a reasonable juror could only find that the accused BLUEWAVE[TM] process allows for the polymer dispersion to flow continuously." Id. The lack of accumulation likewise precluded a finding of infringement under the doctrine of equivalents. As the court found, " [t]o allow Akzo to prevail on infringement by the doctrine of equivalents would vitiate the claim limitation that the 'pressurized collection vessel' be a 'container where the desired material accumulates.'" Id. at 18.

Akzo timely appealed and Dow timely cross-appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

Discussion

I. Akzo's Appeal

We review the district court's grant of summary judgment under the law of the regional circuit, here, the Third Circuit. Halo Elecs., Inc. v. Pulse Elecs., Inc., 769 F.3d 1371, 1377 (Fed. Cir. 2014). Applying the law of the Third Circuit, we review the grant of summary judgment de novo. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc). Summary judgment is proper when, drawing all justifiable inferences

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in the non-movant's favor, " 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Evaluation of summary judgment of noninfringement is a two-part inquiry: construing the claims and comparing the properly construed claims to the accused product. Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009). We review de novo the ultimate interpretation of a claim term and the evidence intrinsic to the patent. Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. ___, 135 S.Ct. 831, 841, 190 L.Ed.2d 719 (2015). When a district court makes factual findings about extrinsic evidence, we review those subsidiary factual findings for clear error. Id. at 835, 841.

Infringement, whether literal or under the doctrine of equivalents, is a question of fact. Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129-30 (Fed. Cir. 2011). As such, it is amenable to summary judgment when no reasonable factfinder could find that the accused product contains every claim limitation or its...

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