Catching Up-Week of January 3, part 1

Posted on | January 29, 2009 | 2 Comments

Judge Avern Cohn and his clerks must have been busy last fall as a couple appeals from the first week of 2009 are from his court.  FYI, later this year Judge Cohn will hit 30 years on the bench in the Eastern District of Michigan. 

The four cases in Part 1 consist of 3 claim construction cases and one case on damages.

2009-1135 Lydall v. Federal Mogul
07-12473 ED/MI
Judge Avern Cohn

Plaintiff appeal from the claim construction ruling of Judge Avern Cohn, which prompted plaintiff to take a stipulated judgment of non-infringement in order to bring the matter to appeal.  The patent, 6,092,622 (RE39,260), relates to thermal and acoustical shielding via a flexible and fibrous batt.  There is nothing esoteric or unusual about the claim construction issues, and the court gives a detailed analysis including the intrinsic evidence and prior art.

More reading:  Claim Construction Order

2009-1141 Interactive Health v. King Kong USA
CD/CA 06-1902
Judge Valerie Baker Fairbank

Defendants appeal the judgment and denied JMOL entered by Judge Valerie Fairbank on the jury verdict of infringement and damages of approximately $1.7 million.  The sufficiency of plaintiff's damages expert seems to be the key issue (although the JMOL also covers invalidity too), with focus on the "entire market rule," which can be implicated when the accused device includes both patented and non-patented features.  The inquiry is whether damages can be predicated on the value of the entire product or only on the patented portion.

More reading: JMOL Order 

2009-1142 to 44 Intellectual Science v. Sony
ED/MI 06-10406
Judge Avern Cohn

Plaintiff Intellectual Science appeals Judge Avern Cohn's grant of summary judgment of non-infringement to defendants Sony et al., related to CD players/recorders.  The representative patents are 5,748,575 and 6,222,799.  The issues boil down to two items of claim construction, one of which relates to whether the preamble should or should not be given any limiting effect.  According to the court, the case boils down to a patent related to computer CD drives while the accused products are all audio CD devices. 

Judge Cohn does a mea culpa and laments his decision to do combined claim construction and summary judgment rather than dividing it into two stages.

More reading: SJ Order

2009-1145 M Ship v. Ice Marine
SD/FL 06-21866
Judge Alan Gold

Plaintiff M Ship appeals Judge Alan Gold's grant of summary judgment of non-infringement. The case involves an M-shaped hull design for a watercraft, and the claims include language that the outer surface of the sponson (or outer skirt structure) must be "substantially perpendicular with respect to the static water line."  The court interpreted this to mean the angle at the point that the skirt entered the water–because the accused Bladerunner boats have an angle of 60-65 degrees at the point of entry to the water line, there could be no literal infringement.  Equivalents was limited by Festo-type prosecution history estoppel.

More reading: Order  (Too large to upload.  Email me if you want a copy).

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