Zipwall Takes Zip in Damages to Appeal Claim Construction

Posted on | March 21, 2008 | 1 Comment

2008-1249, 1250 Zipwall v. Fastcap
D/MA 05-11852

The parties appeal Judge Joseph Tauro’s judgment that defendant Fastcap infringes one of Zipwall’s patents but not the other two.  Money damages were waived by Zipwall and the court declined to enter a permanent injunction.

Zipwall owns several patents directed at methods and products for erecting dust containment systems or barriers using poles, clips and plastic sheets.  These temporary barriers can be seen in construction zones, remodeling etc.  Fastcap has a product called the "Third Hand," basically a pole with a ratchet and clamp mechanism that can jack up the head of the pole to secure, e.g., molding, drywall or other loads.   Also available is a clip that attaches to the top of the "Third Hand" for securing plastic sheets to form dust barriers.

Infringement of the earlier two patents turned on construing "Compression mechanism," a required term in the asserted claims.  Plaintiff argued that it means "any structure that can be used to generate a compression force within the pole."  Defendant argued that it is a mechanism that "can be compressed to adjust the fit of" the plastic sheet and "released to pin the [sheet] into place."  Based on the ordinary meaning of "compression" and the specification, the court essentially adopted defendant’s construction, ruling that a jack using ratchets cannot be a compression mechanism, and therefore granted summary judgment of non-infringement.

As to the last patent, however, the court construed the term "a plurality of legs" and found that Fastcap’s clip infringed.  There, defendant argued that a "plurality of legs" required more than one side of the clip containing more than one leg.  Again, the court rejected this construction based on plain meaning and the specification.

Subsequent to this ruling, plaintiff Zipwall waived all monetary damages (conditionally, subject to reversal by the CAFC) and moved for final judgment and an injunction in order to appeal the remainder of the ruling.  The court ultimately granted this, in part, denying the request for a permanent injunction.

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