Applications v. Brookwood Companies Inc
| Decision Date | 31 March 2010 |
| Docket Number | No. 07 Civ. 6901(RJH).,07 Civ. 6901(RJH). |
| Citation | 703 F.Supp.2d 390 |
| Parties | NEXTEC APPLICATIONS, Plaintiff,v.BROOKWOOD COMPANIES, INC., Defendant. |
| Court | U.S. District Court — Southern District of New York |
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Kesari Ruza, Sheppard, Mullin, Richter & Hampton, LLP, Charles Albert Legrand, Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Michael Gerard Murphy, Beveridge & Diamond, P.C., New York, NY, Amar L. Thakur, Foley & Lardner LLP, Daniel N. Yannuzzi, John E. Maki, Jon Maki, Michael Murphy, Sean Joseph Kirby, Sheppard, Mullin, Richter & Hampton LLP, San Diego, CA, for Plaintiff.
Blas P. Arroyo, Jitendra Malik, Alston & Bird LLP, Charlotte, NC, Thomas Jude Parker, Natalie Christine Clayton, Alston & Bird, LLP, New York, NY, for Defendant.
In this action, plaintiff Nextec Applications, Inc. (“Nextec”) alleges that defendant Brookwood Companies, Inc. (“Brookwood”) violated various Nextec patents relating to the application of materials to fabrics to produce weather-resistant fabrics. Before the Court are four motions for full or partial summary judgment-two filed by each party-relating to ten individual patent claims stemming from four patents assigned to Nextec: United States Patent Nos. 5,418,051 (the “'051 patent”), 5,869,172 (the “'172 patent”), 5,954,902 (the “'902 patent”), and 6,289,841 (the “'841 patent”). This Opinion sets forth the Court's rulings on the four pending motions.
Nextec manufactures various patented breathable water-resistant fabrics. Nextec holds several patents covering the fabrics it makes, the methods of making those fabrics, and the systems for making the fabrics. Nextec's fabrics are sold to garment manufacturers that use the fabrics to produce a variety of consumer and military goods, including windshirts, parkas, and tents.
Nextec's fabrics are produced by taking them through a fabric coating operation. Broadly speaking, that operation consists of rollers that pull the fabric through a machine, somewhat similar to a movie projector threading a film through a reel. At one point in the process, there is a blade or knife that is positioned transverse to the fabric. A coating composition, typically a polymer composition, is deposited in front of the blade, and the blade is then used to apply the composition to result in treatment of the fabric. A series of parameters in this coating operation can be adjusted to achieve the desired fabric properties, including: the tension of the fabric, the speed of the fabric, the sharpness of the blade, the depth of the blade as it impacts the fabric, the polymer composition and rheology, and the weave of the fabric. ( See Transcript of Oral Argument, February 17, 2010 (hereinafter “Tr.”) at 5-6.)
Nextec is the assignee of the 2 051 patent, which is entitled “Internally Coated Webs,” is directed to “an improved process ... for treating a porous web (especially fabric) to produce a novel silicone polymer internally coated web.” The Abstract to this patent, which was filed on February 16, 1993, summarizes this process as follows:
In the process, a starting curable liquid silicone polymer is coated under pressure upon one surface of the web, and the web is then subjected to localized shear forces sufficient to move the silicone polymer composition into interior portions of the web and to distribute the silicone polymer composition generally uniformly therwithin [sic] in such planar region. Excess silicone polymer composition is wiped away from a web surface. Thereafter, the resulting web is heated or irradiated to cure the silicone polymer. Preferably a web is preliminarily impregnated with a fluorochemical. Webs procured by this process are breathable, waterproof or highly water repellent, and flexible.
The '172 patent, filed on May 17, 1995, is entitled “Internally-Coated Porous Webs with Controlled Positioning of Modifiers Therein.” It covers “processes ... for treating a porous substrate (especially a fabric) to produce novel internally coated materials.” The Abstract of this patent summarizes the process as follows:
During treatment, a curable thixotropic material and one or more modifying materials are applied to the porous substrate as an impregnant. The treatment imparts specific properties to the end product material. Selection of the modifier material is based on the particular end use application. Sufficient energy is directed to the impregnant and porous substrate to cause the impregnant to flow into the porous substrate and force the modifier to specific positions within the substrate.
The '902 patent, filed on June 7, 1995, is entitled “Controlling the Porosity and Permeation of a Web.” The invention is summarized in the Abstract as follows:
Products and methods for controlling the porosity and permeation of a web are provided using a curable thixotropic shear thinnable polymer composition that preferably encapsulates a plurality of fibers of the web and/or forms an internal layer within the web. Webs suitable for several different uses are featured, for example medical garments resistant to permeation by a virus or bacteria. The effective pore size of the web is controlled by regulating various factors such as the thickness of the polymer composition encapsulating the fibers and the thickness and placement of the internal polymer layer. Other factors include the polymer density, structure and crosslinking orientation, as well as the diffusion, permeation, and sorption of the polymer.
The '841 patent, filed on November 30, 1997, is entitled “Method and Apparatus for Controlled Placement of a Polymer Composition Into a Web.” It relates to “an apparatus for controlling the placement of a curable, shear-thinnable polymer composition into a porous web.” It is summarized in the Abstract as follows:
The apparatus comprises means for applying tension, means for applying the polymer composition to one surface of the tensioned web, and means for shear thinning the composition and placing it into the web to encapsulate at least some of the structural elements of the web, leaving most of the interstitial spaces open. A preferred apparatus includes one or more process heads that has mounted thereto a rigid knife blade for engagement with the web. The knife blade is movable vertically and rotationally. The process head is movable horizontally along the path of the web. The invention also relates to an apparatus for selectively placing the polymer composition into a substantially continuous region extending through the web so that the polymer composition fills the interstitial spaces and adheres adjacent structural elements of the web in the region. In the areas of the web above and below the filled region, at least some of the structural elements are encapsulated and most of the interstitial spaces are open.
Three of the patents-in-suit (the '051, '172, and '902 patents) claim their earliest priority filing date in the United States Patent and Trademark Office (“USPTO”) from applications filed with the USPTO on March 14, 1988, including Application Serial Number 167,630 (the “'630 application”). (Docket Entry (hereinafter “D.E.”) ...
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