The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE '577 AND '892 PATENTS [Doc. No. 109.]
Harris Research ("Harris") is the assignee of two patents for Device[s] for Enhancing Removal of Liquid from Fabric, U.S. Patent No. 6,298,577 ("the '577 patent"), and U.S. Patent No. 6,266,892 ("the '892 patent"). Mytee Products Inc. ("Mytee") is a manufacturer and distributor of vacuum devices and accessories for the professional floor cleaning industry. Harris alleges that Mytee infringes both these patents with its manufacture and sale of a product called the Banana Glider, models H931, H933, H934, H964 and H965 ("the Accused Devices"). The Mytee Banana Glider is an attachment for wand and extraction vacuum devices designed to "increase extraction of water and reduce fatigue on the operator." [Mytee's Motion for Non-Infringement and Invalidity, Doc. No. 109-1, at 2:11-19.] Mytee moves for summary judgment of non-infringement contending its Accused Devices*fn1 do not infringe the asserted claims of the '577 patent or the '892 patent either literally or under the Doctrine of Equivalents. Harris filed an opposition [Doc. No. 127], and Mytee filed a reply, [Doc. No. 136]. The Court held argument on April 27, 2009. For the reasons set forth below, Mytee's motion is DENIED.
II. LEGAL STANDARD FOR A MOTION FOR SUMMARY JUDGMENT
"Summary judgment is appropriate when no genuine issue of material fact exists and the moving is entitled to judgment as a matter of law." IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1380 (Fed. Cir. 2005). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).
The moving party has the initial burden of demonstrating that summary judgment is proper.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). To meet this burden, the moving party must identify the pleadings, depositions, affidavits, or other evidence that it "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies this initial burden, then the burden shifts to the opposing party to show that summary judgment is not appropriate. Id. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Instead, it must designate specific facts showing there is a genuine issue for trial. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). More than a "metaphysical doubt" is required to establish a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A determination of patent infringement is a two-step process, "wherein the court first construes the claims and then determines whether every claim limitation, or its equivalent, is found in the accused device." Roche Palo Alto LLC v. Apotex, Inc., 531 F.3d 1372, 1377 (Fed. Cir. 2008). The first step is a question of law, and the second step is a question of fact. Nystrom v. Trex Co., 424 F.3d 1136. 1141 (Fed. Cir. 2005). The patentee has the burden of establishing infringement by a preponderance of evidence. Infringement will not be shown unless the patentee demonstrates the presence of every element or its substantial equivalent in the accused device. Terlep v. Brinkmann Corp., 418 F.3d 1379, 1384-85 (Fed. Cir. 2005).
The '577 Patent issued on October 9, 2001.*fn2 It is directed at a device for enhancing the removal of liquid from fabric utilizing mechanical and aerodynamic techniques. Harris alleges Mytee's Accused Devices infringe claims 5, 10, 11, 13 and 28. Claim 5 is dependent on Claim 1 and therefore incorporates all the elements of Claim 1 as well. Mytee moves for summary judgment asserting its Accused Devices do not infringe these claims either literally or under the doctrine of equivalents. [Doc. No. 109-1, at 8-11.]
Claim 5 (incorporating Claim 1) recites:
1. A device for enhancing removal of liquid from fabric which compromises: a base plate having one or more apertures forming extraction nozzles; and means for forcing liquid in the fabric toward said apertures as said base plate is moved across the fabric, said means for forcing being attached to a bottom of said base plate.
5. A device in accordance with claim 1, wherein the means for forcing includes a barrier disposed behind the plurality of apertures.
Claim 1 requires a "means for forcing liquid in the fabric toward [the] apertures." When an element of a claim is expressed as a means for performing a specified function without the recital of structure, the claim is construed to cover the corresponding structure described in the specification and equivalents thereof. 35 U.S.C. § 112. The "means for" forcing liquid are described in the specification as "barriers," the portion of the baseplate that faces and contacts the fabric, oriented and shaped in any fashion that will force any liquid in the fabric toward the apertures. ('577 Patent at 4:53-58.) The barriers are further described as constructed "such that each barrier has only a small surface area that will contact the fabric generally perpendicularly to the original orientations of such fabric." (Id. at 5:4-7.) Claim 5 specifically requires the inclusion of a barrier structure as the "means for" forcing liquid toward the apertures and requires it be on the baseplate located behind a plurality of apertures.
10. A device configured to be attached to a machine for extracting a liquid from a fabric, the device compromising:
(a) a baseplate with a bottom configured to face and contact the fabric,
(b) a plurality of apertures, formed in the bottom of the baseplate, forming extraction nozzles configured to withdraw fluid from the fabric there through; and
(c) at least one barrier, disposed on the bottom of the baseplate, configured to force liquid in the fabric towards the plurality of apertures.
Claims 11 and 13 are dependent on Claim 10, and therefore incorporate all the elements of Claim
Claim 11 further recites:
11. A device in accordance with claim 10, where the [sic] at least one barrier has a straight elongated shape.
Claim 13 further recites:
13. A device in accordance with claim 10, where the [sic] at least one barrier is disposed behind ...