DC grant of SJ of no literal or DOE infringement affirmed

Plastic Omnium Advanced Innovation and Research v. Donghee America, Inc. et al.

Docket Nos. 2018-2087
December 3, 2019

Brief Summary: DC grant of SJ of no literal infringement or under the DOE affirmed based on DC claim construction.

Summary: PO appealed DC grant of summary judgment (SJ) of noninfringement of PO’s US 6,814,921 and 6,866,812 relating to processes for manufacturing plastic fuel tanks formed by blow molding and such that accessory components can be installed without cutting holes in the tanks. The claimed process requires “manufacturing plastic hollow bodies from two shells formed by molding, which are joined together”, including “cutting and opening an extruded parison of closed cross section.” The DC construed the claim term “parison” and agreed with PO that it “had acted as its own lexicographer” (i.e., not using “the term ‘parison’ [in] its conventional, plain and ordinary meaning”). Based on its claim construction, the DC found Donghee’s accused product does not literally infringe or the doctrine of equivalents (DOE), based in part on PO’s expert opinion. On appeal, PO argued the DC’s deviated from its claim construction and “improperly imposed a ‘cutting location requirement’” in its decision. The FC panel disagreed with PO regarding literal infringement, explaining that the DC “correctly determined in its claim construction-accepting [PO’s] arguments-that the patentee gave the term ‘parison’ a special definition, and the patents ‘do not use the term ‘parison’ [in] its conventional, plain and ordinary meaning” and that definition, “not Donghee’s product literature”, “controls whether the accused product falls within the scope of the claim” (citing Martek Biosciences, Fed. Cir. 2005 and Phillips, Fed. Cir. 2005). The FC panel explained that infringement under the DOE “requires a showing that the difference between the claimed invention and the accused product or method was insubstantial or that the accused product or method performs substantially the same function in substantially the same way with substantially the same result as each claim limitation of the patented product or method” and “focuses on the an examination of the claim and the explanation of it found in the written description of the patent” (citing AquaTex, Fed. Cir. 2007). “The question” here, the FC panel wrote, was whether PO “presented evidence that” Donghee’s “conceded advantage is an ‘insubstantial difference’” (citing AquaTex and Texas Instruments, Fed. Cir. 1996), and concluded PO did not. The FC panel therefore affirmed the DC grant of SJ of no infringement to Donghee. Judge Clevenger’s dissent argued that the dispute should have turned on the meaning of “the term ‘die’ and whether Donghee’s extrusion head contains one” (e.g., “The [D] took its eye off the ball.”)

This entry was posted in Claim Construction, Doctrine of equivalents, Infringement, Uncategorized. Bookmark the permalink.

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