Centaur Chemical Co. v. Abbott Laboratories

• Decision Date: 13 October 1982
• Docket Number: No. 78 C 0665.,78 C 0665.
• Citation: 553 F. Supp. 62
• Parties: CENTAUR CHEMICAL COMPANY, Plaintiff, v. ABBOTT LABORATORIES, Defendant.
• Court: U.S. District Court — Northern District of Illinois

553 F. Supp. 62

CENTAUR CHEMICAL COMPANY, Plaintiff, v. ABBOTT LABORATORIES, Defendant.

No. 78 C 0665.

United States District Court, N.D. Illinois, E.D.

October 13, 1982.

Arthur O. Klein, Westport, Conn., Alfred W. Vibber, Pro Hac Vice, Klein & Vibber, New York City, Gerson E. Meyers, Marshall W. Sutker, Dressler, Goldsmith, Shore, Sutker & Milnamow, Ltd., David D. Kaufman, Chicago, Ill., for plaintiff.

James R. Hawkins II, Gary A. Macmillan, Cummings & Lockwood, Stamford, Conn., Ronald E. Larson, D. Dennis Allegretti, Pro Hac Vice, Allegretti, Newitt, Witcoff & McAndrews, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

This matter is before the Court on the motion of counter-defendant, Centaur Chemical Company ("Centaur"), for summary judgment against counter-plaintiff, Abbott Laboratories ("Abbott"). Abbott filed an alternative supplemental counterclaim against Centaur for patent infringement in 1981, and Centaur seeks a decision by this Court that there is no genuine issue of material fact as to the facts upon which Abbott's counterclaim is based. For reasons set forth below, Centaur's motion for summary judgment is denied.

This matter involves a variety of business disputes between Abbott and Centaur. Abbott sued Centaur in 1977 ("the 1977 case"), alleging violations of the Lanham Act, 15 U.S.C. § 1125(a), unfair competition and patent infringement. The patent count, Count III, was dismissed on grounds of improper venue under 28 U.S.C. § 1400(b), but Counts I and II remain in the case. A counterclaim by Centaur in the 1977 case alleged acts of unfair competition by Abbott under Ill.Rev.Stat., ch. 121½ § 312; this Court denied Abbott's motion for summary judgment as to that counterclaim. Abbott Laboratories v. Centaur Chemical Co., Inc., No. 77 C 0602 (N.D.Ill. Aug. 25, 1981).

In a second action ("the 1978 case"), Centaur accused Abbott of unfair competition and sought a declaratory judgment as to the validity of the Abbott patent at issue in the 1977 case. The 1978 case was transferred to this Court from the District of Connecticut on February 10, 1978. On January 9, 1981, this Court granted leave to Abbott to file an alternative supplemental counterclaim for patent infringement in the 1978 case. We denied Centaur's motion to dismiss the supplemental counterclaim on August 25, 1981.¹ This opinion addresses Centaur's motion for summary judgment and dismissal of Abbott's supplemental counterclaim.²

Abbott's supplemental counterclaim alleges that Abbott is the assignee of United States Reissue Letters Patent No. 30,391,³ and that Abbott manufactures a cuvette⁴ which embodies the invention described and covered by that patent. Abbott further alleges that Centaur's cuvettes infringe U.S. Reissue Letters Patent No. 30,391. In support of its motion for summary judgment, Centaur argues that its cuvettes do not infringe U.S. Reissue Patent No. 30,391, alleging that Centaur's cuvettes have curved windows, and that the Reissue Patent only covers "planar windows."

In considering motions for summary judgment under Federal Rule of Civil Procedure 56, the Court must resolve all doubts as to the existence of material facts against the moving party, Moutoux v. Gulling Auto Electric, 295 F.2d 573, 576 (7th Cir.1961). A "party moving for summary judgment has the burden of clearly establishing the nonexistence of any genuine issue of fact that is material to a judgment in his favor. Cedillo v. International Association of Bridge & Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir.1979). Thus, in analyzing the various exhibits and affidavits submitted by the parties in this case, the Court must view any inferences from the facts contained in such materials in the light most favorable to Abbott, the non-movant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

Moreover, while summary judgment has been granted in patent proceedings, Medical Laboratory Automation, Inc. v. Labcon, 670 F.2d 671 (7th Cir.1981); Shemitz v. Deere & Co., Inc., 623 F.2d 1180 (7th Cir.1980), "the courts should exercise great caution before granting such a motion in an infringement action." Landau v. J.D. Barter Construction Inc., 657 F.2d 158, 161 (7th Cir.1981); see also, Technitrol Inc. v. Control Data Corp., 550 F.2d 992 (4th Cir.1977), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 79 (1977) (summary judgment "is not ordinarily appropriate for the disposition of a patent case." Id. at 996). This is so because patent cases often raise complex issues requiring expert testimony for their resolution.

Before reaching the question of whether any material facts exist concerning Centaur's alleged infringement of Abbott's patent, it is necessary to examine the claims of that patent. In so doing, this Court will assume, without deciding, that the patent in suit, U.S. Reissue Patent No. 30,391, is valid.⁵

Centaur argues that the claims of U.S. Reissue Patent No. 30,391 cover cuvettes with "opposed planar window means." Abbott agrees that the claims of the patent in suit call for planar windows. Memorandum in Opposition to Centaur's Motion for Summary Judgment at 8-9, Centaur Chemical Co. v. Abbott Laboratories, No. 78 C 0665. An examination of the claims contained in the patent in suit reveals that planar windows are indeed required:

The following is claimed:

1. In a chemical analyzer, an improved cuvette comprising:

... window means associated with each compartment comprising opposed planar members that are parallel to each other for transmitting radiant energy through at least some portions of the compartments, whereby the specimens may be analyzed;

* * * * * *

4. A cuvette, as claimed in claim 1, wherein the window means associated with each compartment comprises opposed planar members that are parallel to each other.

* * * * * *

14. An improved cuvette for use in a chemical analyzer comprising:

... window means for transmitting radiant energy through at least some portions of each of the compartments comprising an opposed pair of planar members....

* * * * * *

25. A cuvette, as claimed in claim 14, wherein the predetermined distance between the planar members is one centimeter, and wherein the planar members in each pair are substantially parallel. (Emphasis added).

While the claims of the patent clearly call for cuvettes with planar windows, Abbott and Centaur each offer different definitions of the word "planar." Centaur argues that "planar" means absolutely flat, and would have this Court rely upon a discussion of the term "generally planar" in Arvin Industries v. Berns Air King Corp., 525 F.2d 182 (7th Cir.1975). While that court did not define the word "planar" in discussing the term "generally planar," it declared that:

the use of the modifier "generally" in the context of Claim 9, we think, was intended to allow for irregular deviations from a perfectly flat surface and not to broaden the scope of "planar" to encompass surfaces which are distinctly arcuate by design.

Id. at 185. Abbott maintains that the claims of the patent in suit do not employ the term "flat," and that "planar" means "relating to a plane" or "having a flat two-dimensional quality." Before addressing the issue of infringement, it is necessary to define the term "planar."

The construction of a patent is a matter of law. Fred Whitaker Co. v. E.T. Barwick Industries, Inc., 551 F.2d 622, 629 (5th Cir.1977). Patents, furthermore, are defined by the scope of their claims. Deere & Co. v. International Harvester Co., 658 F.2d 1137, 1141 (7th Cir.1981). It is important to emphasize that "patent construction is not a matter of pure literalism and slavish adherence to the words used.... A patent is to be construed as a contract with the intent of the parties as the lodestar." Weidman Metal Masters v. Glass Master Corp., 623 F.2d 1024 (5th Cir.1980), cert. denied, 450 U.S. 982, 101 S.Ct. 1519, 67 L.Ed.2d 817 (1981) (citations omitted). An analysis of the patent in suit reveals that the specifications of the patent describe the "preferred embodiment" as having "flat planar portions 98 and 100 that form a window section 38." U.S. Reissue Patent No. 30,391, col. 3, lines 14-15. However, the relevant claims of the patent in suit, which have been set forth at an earlier point in this discussion, do not employ the word "flat." Although courts may consider specifications and drawings when interpreting the claims of a patent, where the language of a claim is clear, it is controlling and may not be limited by specifications. Maclaren v. B-I-W Group, Inc., 535 F.2d 1367, 1373 (2d Cir.1976), cert. denied, 429 U.S. 1001, 97 S.Ct. 531, 50 L.Ed.2d 612 (1976). The word "planar" is not an ambiguous term. We find that the omission of the word "flat" from the claims of the patent indicates that the term "planar" should be the focus of any inquiry concerning infringement of the patent in suit.

Webster's Third International Dictionary defines planar as "1: of or relating to a plane; lying on one plane. 2: having a flat two dimensional quality." Abbott offered this definition of planar, which Centaur accepted for purposes of this motion. Reply Brief in Support of the Motion for Summary Judgment at 4, Centaur Chemical Co. v. Abbott Laboratories, No. 78 C 0665. It is this definition that the Court shall apply in considering if there is no issue of material fact concerning whether Centaur has infringed the patent in suit.⁶

The patent laws define infringement as making, using or selling a patented invention without authority. 35 U.S.C. § 271. Infringement is generally a question of fact, Hickory Springs Mfg. Co. v. Fredman Bros. Furniture Co., 509 F.2d 55, 58 (7th Cir.1975); CS&M, Inc. v. Covington Bros. Technologies, 678 F.2d 118 (9th Cir.1982). Courts must examine the words of a patent claim to decide whether an accused device infringes a patent. Graver Tank & Mfg. Co. v. Linde Air Products...