OK To Heat Accused Product To Show Infringement

Posted on | November 10, 2008 | No Comments

2009-1001 Gemtron v. Saint-Gobain
WD/MI 1:04-cv-0387
Judge Avern Cohn

Saint-Gobain appeals from the orders and judgment of Judge Avern Cohn and jury verdict finding that Saint-Gobain infringed 6,679,573 directed to a refrigerator shelf.  Saint-Gobain raises the usual JMOL and post-trial arguments, but the most substantive (based on length of discussion by the court) relates to infringement and whether the accused product was "altered" to show infringement.

Also, this is the first CAFC appeal filed in the 2009 term:  "The new phone books are here!"

The asserted claim 23 generally covers a refrigerator shelf constructed from a synthetic frame holding a panel of glass.  The claim requires, in part,

The question at trial (and beyond) is at what temperature does the frame have to exhibit the emphasized characteristic?  Saint-Gobain had argued, unsuccessfully, at claim construction that this resiliency must exist at normal temperatures (room and below).  The distinction was critical to Saint-Gobain because the shelf was manufactured in Mexico and was resilient only when heated during assembly in Mexico—thus, the accused shelf did not infringe in the United States, relying on Biotec Biologische Naturverurpackengen GmbH v. Biocorp, 249 F.3d 1341, 1350 (Fed. Cir. 2001). 

The court disagreed, finding that the accused shelf could meet this limitation if it exhibited the resiliency characteristic at any temperature, including a higher temperature.  Thus, the evidence of how it is manufactured in Mexico and Gemtron's expert's experiments in which the accused product was heated were appropriate and sufficient to show infringement.
More reading:

Counsel:

Gemtron: Butzel Long (Detroit); Michael Best Friedrich (Chicago); and Steptoe Johnson (Chicago).
Saint-Gobain: Oblan Spivak McClelland Maier & Neustadt (Virginia).

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