The opinion of the court was delivered by: WILLIAM B. ENRIGHT
MEMORANDUM DECISION AND ORDER
This is an action for infringement for U.S. Patent No. 4,937,989 (the '989 patent) claiming a mobile home support that elevates and ties together "trailer-like" sections of mobile homes. The suit is brought by plaintiffs Sure Safe Industries, Inc. ("Sure Safe") and Intertrack Management, Inc. ("Intertrack") against defendants C&R Pier Mfg. ("C&R"), its president Richard Clifton and a former shareholder of C&R Pier, Chuck Giles.
The '989 patent claims a combination of three assemblies: 1) a pair of piers; 2) a two-part clamp to engage an I-beam; and 3) a tie-rod assembly for connecting piers (the marriage lock). The '989 patent does not contain claims for any single subassembly by itself. Only a product comprised of all three subassemblies arranged as set out in the claims infringes.
In April 1993, after viewing the accused product, this court granted summary judgment in favor of defendants. It found that C&R Pier's product did not infringe the '989 patent because the accused device did not embody the elements of the claimed invention. Specifically, the court found that there was no credible evidence that the C&R piers and tie-rods could be or had been engaged as specified by the claims in the '989 patent, or that defendants' product could form all the sub-assemblies required by the '989 patent. Based on these missing elements and others, the court found there was not the necessary correspondence between the elements in the claimed invention and the accused device.
I. Plaintiffs' Motion for Reconsideration
Plaintiffs move for reconsideration of the court's decision to grant summary judgment in favor of defendants on the infringement issue.
In order to have the motion reconsidered, plaintiffs must meet the standard for reconsideration under Local Rule 7.1i(1), which requires the existence of new facts or circumstances, which did not exist, or were not shown upon prior application. A motion for reconsideration is properly denied if it presents no arguments that had not been raised in opposition to summary judgment. Backlund v. Barnhart, 778 F.2d 1386 (9th Cir. 1985).
Plaintiffs argue that reconsideration is appropriate because the court erred by concluding that the C&R products do not infringe the plaintiffs' patent.
First, they argue that this court failed to appreciate that a C&R product trademarked "Lock-Tops" has the capability of connecting together a tie-rod assembly (marriage lock) with a pier. Plaintiffs support this argument by: 1) Exhibit LT which shows a Lock-Top comprised of a two-part clamp with a depending stud; 2) Exhibit 12C which are C&R sales invoices showing the sale of marriage locks along with marriage lock heads and; 3) Exhibit RC which is deposition testimony by Richard Clifton that C&R Pier builds Lock-Tops as a component part of several products, including the Marriage lock and an earthquake-resistance brace.
However, plaintiffs do not support their argument with any direct evidence of photographs or testimony showing or describing a Lock-Top being used to connect the pier and tie-rod assembly together as required for infringement. Rather, they appear to rely on the speculations of counsel that the Lock-Top can be used with both the C&R pier and tie-rod assembly. The court did consider that circumstantial evidence can be used to prove direct infringement, but it did not find any circumstantial evidence which did so.
Third, plaintiffs argue that the court erroneously concluded that the elements in claims 1-4 require a physical connection between the piers and the tie-rod. Rather, plaintiffs argue that the '989 patent in suit requires that the tie-rod assembly be secured to each of the I-beams by engaging the two-part clamp with each of the threaded rods of the tie-rod assembly.
Plaintiffs contend that infringement is established by the C&R tie-rod assembly (marriage lock) being secured to a clamp, which is secured by an I-beam; which is secured to another clamp, which is secured to a pier. Plaintiffs argue that it showed a photo of the C&R Marriage Lock indirectly connected to a C&R pier through the medium of an I-beam to this court which satisfied the "engaging" language of the patent in suit.
However, plaintiffs' argument is contrary to the testimony of Chong (the inventor in this suit) and Logan (plaintiffs' patent attorney), who testified that engagement literally means physical connection between the tied rod assembly and the piers. The inventors of the patent-in-suit contemplated that the word "engaged" means direct connection. Plaintiffs presented no evidence of a direct connection between the tie-rod and pier of C&R products to this court. The photo to which defendants refer showed the C&R product at a trade exhibit and did not show the tie-rod and pier engaged in a manner as required by the patent in suit.
Furthermore, even if defendants were right, and there is engagement to the tie-rods, there is still no infringement because several other elements of the claims are missing. These include the requisite tie-rod assemblies and threaded rods. The absence of a single element is sufficient to defeat infringement. See Builders Concrete, Inc. v. Bremerton Concrete Products Co., 757 F.2d 255, 257 (Fed. Cir. 1985).
Fourth, plaintiffs argue that the Hendershot deposition should have been given more weight by this court. Hendershot declared that the missing elements in defendants' products are nothing more than structurally or mechanically equivalent connecting means and, therefore, the doctrine of equivalence applies.
Upon reconsideration, this court finds that the Hendershot declaration was properly questioned by the court because: 1) it uses conclusory terms; 2) Hendershot was unqualified as a patent law expert and a mobile home support expert; and 3) Hendershot recently admitted that his statements regarding the engagement between the C&R pier and tie-rod were misleading and false.
Infringement does not exist under the doctrine of equivalence because defendants' products do not function in the same way as plaintiffs' products. Plaintiffs' pier and tie-rod fit together by means of a stud and socket. In contrast, the C&R pier and tie-rod cannot be physically engaged. C&R separately sells a pier with its patented clamp and separately sells a tie-rod. There is no evidence that C&R or its customers have ever engaged these products. However, defendants have ...