The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER (1) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON PATENT NON-INFRINGEMENT OF U.S. PATENT NO. D510,652; (2) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON PATENT NON-INFRINGEMENT OF U.S. PATENT NO. 6,272,690; AND (3) DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON PATENT NON-INFRINGEMENT OF U.S. PATENT NO. 5,214,804.
On September 2, 2011, Cabela's Inc. ("Cabela's") filed its motion for summary judgment of patent non-infringement. (Doc. No. 279.) On the same day, Ross Glove Company ("Ross") filed a notice of joinder. (Doc. No. 284.) On October 3, 2011, Seirus Innovative Accessories, Inc. ("Seirus") filed its response in opposition regarding Cabela's and Ross's (collectively "Defendants") motion for summary judgment. (Doc. No. 351.) On October 7, 2011, Defendants filed a response in support of their motion. (Doc. No. 369.) On October 17, 2011, and October 24, 2011, the Court held a hearing on Defendants' motion for summary judgment. Matthew Murphey and Paul McGowan appeared for Seirus. Nicole Murray, Callie Bjurstrom, and Gregory Sitrick appeared for Cabela's.Duane Horning, Justin Walker, and Cynthia Iliff appeared for Ross.
For the following reasons, the Court grants Defendants' motion for summary judgment on non-infringement of U.S. Patent No. D510,652; grants Defendants' motion for summary judgment on U.S. Patent No. 6,272,690; and denies Defendants' motion for summary judgment on U.S. Patent No. 5,214,804.
On January 20, 2009, Seirus commenced this action by filing a complaint alleging that Defendants' accused products infringe one or more of the following patents: U.S. Patent Nos. 6,272,690 ("the '690 patent"); 5,214,804 ("the '804 patent"); and D510,652 ("the 'D652 patent"). (Doc. No. 8 at 4-6.) In response, Cabela's filed its answer and asserted counterclaims along with a number of affirmative defenses, including patent non-infringement. (Doc. No. 108 at 11-13.) The Court issued a claim construction order on February 4, 2011. (Doc. No. 139.)
The 'D652 patent was filed on October 31, 2003, and issued on October 18, 2005. (The 'D652 patent.) The design patent includes a series of eight drawings and is directed to the ornamental design of a neck protector. (Id.)
The '690 patent was filed on March 18, 1996, and issued on August 14, 2001. (The '690 patent.) It contains a single claim directed to a "combination of a sport goggle and an article of protective clothing." (Id.) The article of clothing includes a mask member for placement about a user's mouth and nose, a head member connected to the mask member for placement about a user's head, and a scarf portion for placement about the user's neck. (Id.)
The '804 patent was filed on January 27, 1992, and issued on June 1, 1993. (The '804 patent.) Two independent claims are directed to an article of clothing that includes a mask portion to be worn about a user's mouth and nose, and a scarf portion to be worn about a user's neck. A "securing means" secures the article of clothing about a user's head. (Id.)
I. Summary Judgment Standard
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Freeman v. Arpaio, 125 F.3d 732 (9th Cir.1997). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can present evidence that negates an essential element of the nonmoving party's case or demonstrate that the nonmoving party failed to establish an essential element of the nonmoving party's case on which the nonmoving party bears the burden of proving at trial. Id. at 322-23. Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 322. The nonmoving party cannot oppose a properly supported summary judgment motion by "rest[ing] on mere allegations or denials of his pleadings." Anderson, 477 U.S. at 256.
When ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court does not make credibility determinations with respect to evidence offered. See T.W. Elec., 809 F.2d at 630-31 (citing Matsushita, 475 U.S. at 587). Summary judgment is therefore not appropriate "where contradictory inferences may reasonably be drawn from undisputed evidentiary facts." Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 (9th Cir. 1980).
II. Patent Infringement Standards
A determination of design patent infringement involves a two step analysis. First, the claim must be properly construed to determine its meaning and scope. Secondly, the properly construed claim must be compared to the accused design to determine whether there has been infringement. Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed. Cir. 1995). Regarding the first step, "the scope of the claim must be construed in order to identify the non-functional [i.e., ornamental] aspects of the design as shown in the patent" when the design contains both functional and non-functional elements. ...