Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp.

• Decision Date: 07 November 2014
• Docket Number: Civil Action No. 2:12–cv–02108–WGY–cgc.
• Citation: 63 F.Supp.3d 786
• Parties: MULTILAYER STRETCH CLING FILM HOLDINGS, INC., Plaintiff, v. BERRY PLASTICS CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Tennessee

63 F.Supp.3d 786

MULTILAYER STRETCH CLING FILM HOLDINGS, INC., Plaintiff

v.BERRY PLASTICS CORPORATION, Defendant.

Civil Action No. 2:12–cv–02108–WGY–cgc.

United States District Court, W.D. Tennessee, Western Division.

Signed Nov. 7, 2014.

Joel T. Beres, Stites & Harbison, Louisville, KY, Kevin P. Hartley, England Law Office, Decaturville, TN, Melissa Hunter Smith, William C. Ferrell, James R. Michels, Stites & Harbison, PLLC, Nashville, TN, for Plaintiff.

Daniel Paul Albers, Jonathan P. Froemel, Elizabeth A. Peters, Mark Alan Hagedorn, Pro Hac, Vice, Barnes & Thornburg LLP, Chicago, IL, Adam S. Baldridge, Baker Donelson Bearman Caldwell & Berkowitz, Memphis, TN, for Defendant.

MEMORANDUM & ORDER

YOUNG, District Judge.¹

I. INTRODUCTION

The motion presently before this Court arises from a patent infringement suit filed by Multilayer Stretch Cling Film Holdings, Inc. (“Multilayer”), the assignee of U.S. Patent No. 6,265,055 (the “'055 Patent”), against Berry Plastics Corporation (“Berry”). Following the claim construction hearing and the filing of the Markman order, Berry filed its present motion for summary judgment, arguing that, as matter of law, none of Berry's accused products infringe the '055 Patent as construed. Arguments on this motion were heard on July 17, 2014, at which time the Court took the matter under advisement. Min. Entry, July 17, 2014, ECF No. 140.

For the reasons stated herein, the Court now GRANTS Berry's motion for summary judgment.

A. Procedural Posture

Multilayer filed a complaint against Berry in the Western District of Tennessee on February 10, 2012, alleging that the latter's stretch films infringed the '055 Patent. Compl. ¶ 11, ECF No. 1. On April 10, 2012, Berry filed its answer, along with defenses and counterclaims, against Multilayer. Def.'s Answer, Affirmative Defenses & Countercls. Compl., ECF No. 14. Two weeks later, Berry filed a motion for summary judgment, Berry Plastics Corp.'s Mot. Summ. J., ECF No. 17, which was denied on September, 28, 2012, Electronic Order, ECF No. 55.

Multilayer had also initiated several lawsuits in the Western District of Tennessee, against additional companies besides Berry, alleging infringement of the same '055 Patent. See Order Following Claim Construction Hr'g (“Markman Order”) 1 n. 1, ECF No. 104. The then four remaining cases were consolidated for the purpose of claim construction before Judge McCalla in Multilayer Stretch Cling Film Holdings, Inc. v. MSC Marketing & Technology, Inc. et al., No. 12–cv–02112 (the “MSC Marketing litigation”). Markman Order 1. On November 8, 2013, Judge McCalla signed an order (the “Markman Order”) construing thirteen terms of the '055 Patent. Id. at 102–06. On the same day, Judge McCalla entered a separate proposed order (the “Proposed Order”) addressing one specific term of the patent that had not been addressed in the Markman Order. Ct.'s Proposed Construction “Wherein Each of Said Two Outer Layers And Each Of Said Five Inner Layers Have Different Compositional Properties When Compared To A Neighboring Layer” (“Proposed Order”), ECF No. 105. In this order, Judge McCalla gave the parties fourteen days to file supplemental briefs on the proposed construction. Id. at 9. The parties filed their briefs on November 22, 2013. Supplemental Br. Defs. Clarification Ct.'s Proposed Claim Construction, case docket No. 12–cv–02112, ECF No. 98; Multilayer's Supplemental Claim Construction Br., case docket No. 12–cv–02112, ECF No. 99. The MSC Marketing litigation, however, was dismissed with prejudice after the parties agreed to a settlement. Stipulation Dismissal With Prejudice, case docket No. 12–cv–02112, ECF No. 101; Judgment, case docket No. 12–cv–02112, ECF No. 102. As a result, a final order has not been entered on the remaining claim term.

On March 14, 2014, Berry filed a motion for partial summary judgment. Def. Berry Plastics Corp.'s Mot. Summ. J. Non–Infringement U.S. Patent No. 6,265,055, ECF No. 120; Def. Berry Plastics Corp.'s Br. Supp. Mot. Summ. J. Non–Infringement U.S. Patent No. 6,265,055 (“Berry's Br.”), ECF No. 120–1. Two months later, Multilayer filed a brief in opposition to Berry's motion. Resp. Opp'n Berry Plastics Corp.'s Mot. Summ. J. Non–Infringement U.S. Patent No. 6,265,055 (“Multilayer's Opp'n”), ECF No. 129. Berry filed a reply on June 2, 2014. Def. Berry Plastics Corp.'s Reply Br. Supp. Mot. Summ. J. Non–Infringement U.S. Patent No. 6,265,055 & Resp. Multilayer's Statement Additional Facts (“Berry's Reply”), ECF No. 134.

B. Jurisdiction

28 U.S.C. sections 1331 and 1338(a) confer upon this Court jurisdiction to hear the instant matter, as the claims at issue arise under federal patent law.

C. Factual Summary

The evidentiary record in this matter is replete with helpful and detailed information regarding all aspects of the production and manufacture of the various stretch-films. Though both informative and necessary for the global claim, given the focused nature of this motion, and for the sake of concision, the facts outlined below are restricted to those which directly relate to the infringement claim presently before this Court.

This matter arises from the alleged infringement of the '055 Patent, issued on July 24, 2001, to David Simpson and Terry Jones. Compl., Ex. A, U.S. Patent No. 6,265,055 C3 (“U.S. '055 Patent”), ECF No. 1–3.² Multilayer is the present assignee of all “right, title and interest in the '055 Patent.” Compl. ¶ 9. The '055 Patent is titled “Multilayer Stretch Cling Film” and relates to a “multi-layer stretch film comprising at least 7 layers and having excellent mechanical properties and stretch film performance.” U.S. '055 Patent, Abstract.

Multilayer alleges that Berry's stretch-film products infringe “at least claim 1 of the '055 [P]atent.” Compl. ¶ 11. In response, Berry raises a number of defenses, including invalidity, non-infringement, and inequitable conduct. Def.'s Answer Affirmative Defenses & Countercls. Compl. 2–3, ECF No. 14.

1. The '055 Patent

The '055 Patent relates to a “multi-layer stretch film comprising at least 7 layers .... compris[ing] two outer, or skin layers ... [and] at least five internal layers to assist in producing mechanical strength and stretchability.” U.S. '055 Patent, col. 1:51–58. The patent-in-issue is described in thirty-four claims, of which two, claims 1 and 28, are independent. U.S. '055 Patent ; see also Markman Order 13. It is the alleged non-infringement of these nearly identical claims which is presently before this Court. See Berry's Br. 2–4. Claim 1 teaches:

A multi-layer, thermoplastic stretch wrap film containing seven separately identifiable polymeric layers, comprising:

(a) two identifiable outer layers, at least one of which having a cling performance of at least 100 grams/inch, said outer layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, and ultra low density polyethylene resins, said resins being homopolymers, copolymers, or terpolymers, of ethylene and alpha-olefins; and

(b) five identifiable inner layers, with each layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, ultra low density polyethylene, and metallocene-catalyzed linear low density polyethylene resins; said resins are homopolymers, copolymers, or terpolymers, of ethylene and C₃to C₂₀alpha-olefins; wherein each of said two outer layers and each of said five inner layers have different compositional properties when compared to a neighboring layer.

U.S. '055 Patent PageID 19–20. Claim 28 teaches:

A multi-layer, thermoplastic stretch wrap film containing seven polymeric layers, comprising:

(a) two outer layers, at least one of which having a cling performance of at least 100 grams/inch, said outer layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, and ultra low density polyethylene resins, said resins being homopolymers, copolymers, or terpolymers, of ethylene and alpha-olefins; and

(b) five inner layers, with each layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, ultra low density polyethylene, and metallocene-catalyzed linear low density polyethylene resins; said resins being homopolymers, copolymers, or terpolymers, of ethylene and C3 to C20 alpha-olefins,

wherein at least one of said inner layers comprises a metallocene catalyzed linear low density polyethylene resin with a melt index of 0.5 to 3 dg/min and a melt index ratio of 16 to 80; and wherein each of said two outer layers and each of said five inner layers have different compositional properties when compared to a neighboring layer.

Id. at PageID 24 col. 2:4–26.

2. Claim Construction

At the request of the parties, during the claim construction process that took place last November, Judge McCalla construed thirteen terms, including, inter alia, the Markush limitations³ for the inner layers of the claimed multilayer film and the term “linear low density polyethylene” (“LLDPE”). Markman Order 62–82. With regard to the former, Judge McCalla agreed with the construction proposed by Berry and construed the Markush group of element (b) in claims 1 and 28 as closed.⁴ Markman Order 63. In doing so, Judge McCalla rejected Multilayer's contention that the claims taught blends of resins from two or more different classes, at least in the seven layers taught by the patent. See id. at 62–63; see also id. at 48–57 (discussing in more depth Multilayer's related argument regarding the Markush group for the outer layers of the film). This construction is set out below:

Id. at 104 (emphasis added to court's construction). By contrast, in construing the term “LLDPE” Judge McCalla favored the construction proposed by Multilayer, declining to narrow the definition of LLDPE to specific catalyzing agents or densities and instead proposing a definition solely based upon the “branching architecture” of...