Gutterglove, Inc. v. Valor Gutter Guard et al

Filing 38

ORDER signed by William H Orrick, III on 8/28/2017 ORDERING 36 at the Claim Construction hearing at 9:30 AM, on 9/1/2017, each side may have a total of one hour to argue. Plaintiff will start and address any terms as construed in the tentative with which it disagrees. Defendants may respond concerning those terms, and plaintiff may reply. Then the defendants may address any additional terms, plaintiff may respond and defendants reply. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUTTERGLOVE, INC.
Plaintiffs,

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v.

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AMERICAN DIE and ROLLFORMING,
INC., et al.,

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United States District Court
Eastern District of California

Case No. 2:16-cv-02408-WHO

Defendants.

ORDER REGARDING CLAIM
CONSTRUCTION HEARING AND EX
PARTE APPLICATION TO STRIKE
IMPROPER EVIDENCE
Re: Dkt. No. 36

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The purpose of this Order is to help the parties prepare for the Claim Construction hearing
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at 9:30 a.m. on Friday, September 1, 2017. My tentative constructions are below. I am also ruling
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on Gutterglove’s ex parte application to strike or exclude.

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Having read the briefs and considered the terms at issue, I do not believe that a separate
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tutorial is necessary. At the hearing, each side may have a total of one hour to argue. Plaintiff
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will start and address any terms as construed in the tentative with which it disagrees. Defendants
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may respond concerning those terms, and plaintiff may reply. Then the defendants may address
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any additional terms, plaintiff may respond and defendants reply. If either side wishes to fold into
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their argument a truncated tutorial, it may do so. I will not hear any expert testimony. Personnel
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issues or disputes between the parties other than the meaning of the terms are not relevant at this
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hearing.
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United States District Court
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I. TENTATIVE CLAIM CONSTRUCTION
A.

The ’454 Patent Claim Terms

1.
“a floor” (claims 1, 7, 12, 16)
Gutterglove’s Proposed
Defendants’ Proposed
Construction
Construction
Plain and ordinary meaning.
“a planar supporting surface of
the underlying support
Alternatively, “a structure that spanning between the front
resides slightly below the
edge and the tab and between
screen to provide a space in
the lateral ends of the rigid
which water can travel after
support”
coming into contact with the
screen”

Court’s Tentative
Construction
“a surface of the underlying
support that resides slightly
below the screen spanning
between the front edge and the
tab and between the lateral
ends of the rigid support”

2.
“a floor on a portion of said rigid support” (claim 1)
Gutterglove’s Proposed
Defendants’ Proposed
Court’s Tentative
Construction
Construction
Construction
Plain and ordinary meaning.
“the floor (defined above) as a No construction necessary.
portion of the rigid support, the
In brief, offers definition of:
other portions of the rigid
“a lower portion of the rigid
support being a tab portion and
support”
a front edge portion, the floor
portion, the tab portion, and
the front edge portion
combining to comprise the
rigid support.”
3.
“screen” (claims 1, 2, 12, 13, 16, 17)
Gutterglove’s Proposed
Defendants’ Proposed
Construction
Construction
“Mesh with openings small
“a mesh filtration screen
enough to preclude grit and
formed into corrugations with
other fine debris from passing
crests and troughs
into the gutter, but that allow
perpendicular to the longest
water to pass into the gutter”
dimension of the mesh where
the crests and troughs extend
from an upper edge of the
mesh to a lower edge.”

Court’s Tentative
Construction
“Mesh formed into
corrugations with crests and
troughs with openings small
enough to preclude grit and
other fine debris from passing
into the gutter, but that
allow[s] water to pass into the
gutter..”

4.
“plurality of holes” (claims 1, 12, 16)
Gutterglove’s Proposed
Defendants’ Proposed
Construction
Construction
Plain and ordinary meaning
“more than two openings
penetrating the floor which
In its brief, “plurality is more
allow water to be conducted
than one.”
through the floor.”

Court’s Tentative
Construction
“two or more openings
penetrating the floor which
allow water to be conducted
through the floor.”

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B.

The ’747 Patent Claim Terms

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“fine mesh material” (claims 1–6, 11–13, 16–20, 21)
Gutterglove’s Proposed
Defendants’ Proposed
Court’s Tentative
Construction
Construction
Construction
“mesh with openings small
“a mesh filter member which
Combination:
enough to preclude grit and
filters out debris while
“a mesh filter member with
other fine debris from passing
allowing water to pass
openings small enough to filter
into the gutter, but that allow
therethrough and is imbued
out fine debris while allowing
water to pass into the gutter”
with properties of sufficient
water to pass therethrough and
stiffness and ability to
is imbued with properties of
overcome water droplet
sufficient stiffness and ability
adhesion characteristics
to overcome water droplet
without requiring an
adhesion characteristics
underlying support”
without requiring an
underlying support”
6.
“being corrugated with ridges” (claims 1, 16)
Gutterglove’s Proposed
Defendants’ Proposed
Court’s Tentative
Construction
Construction
Construction
Plain and ordinary meaning.
“Being shaped into a repeating “shaped into a series of parallel
pattern of parallel ridges and
ridges and grooves so as to
Alternatively, “shaped into
valleys extending
give strength, extending
alternate ridges and grooves.”
perpendicular to a long axis of perpendicular to a long axis of
a gutter along their entire
a gutter”
length so as to imbue the mesh
material with properties of
sufficient stiffness and ability
to overcome water droplet
adhesion characteristics
without requiring an
underlying support.”
7.
“ridges” (claims 1, 2, 5, 6, 12, 16, 17, and 21)
Gutterglove’s Proposed
Defendants’ Proposed
Court’s Tentative
Construction
Construction
Construction
Plain and ordinary meaning.
“a repeating pattern of parallel “raised bands or crests”
crests, which extend
Alternatively, “raised bands or perpendicular to a long axis of
crests.”
a gutter along their entire
length.”

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II. GUTTERGLOVE’S APPLICATION TO STRIKE AND/OR EXCLUDE
On August 24, 2017, Gutterglove submitted an ex parte application to strike and/or

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exclude certain extrinsic evidence submitted by defendants because they failed to adequately
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disclose the evidence in accordance with the Patent Local Rules and Federal Rule of Civil
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Procedure 26. Dkt. No. 36. Specifically, Gutterglove asserts that defendants failed to sufficiently
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set forth summaries and opinions of their proffered experts Slate Bryer and Matthew I. Stein, and
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failed to produce expert reports prior to the close of claim construction discovery. Id. at 1.
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Gutterglove also argues that certain exhibits submitted with defendants’ responsive claim

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construction brief were not properly disclosed and should be excluded, and asks that the court
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strike the portions of defendants’ brief that cite the objectionable evidence.1

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United States District Court
Eastern District of California

Defendants responded to the application on August 25, 2017, arguing that they adequately
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disclosed the intended contributions from Bryer and Stein, and exhibits 3, 4, and 5 are publicly13
available documents that are properly before the court. Dkt. No. 37. They conceded that exhibits
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6 and 13 were not properly disclosed. Id.
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I agree with defendants that their expert disclosures were adequate for tutorial and/or claim
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construction purposes. At this time, I make no determination as to the reliability of their proposed
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testimony for other purposes. Further, I do not find the identified exhibits attached to the Costello
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declaration particularly helpful and did not rely on them in generating the tentative constructions
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below. Since defendants do not dispute that they failed to disclose exhibits 6 and 13, I will
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exclude those from consideration.2 But to the extent exhibits 3, 4, and 5 become relevant to claim

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construction, Gutterglove cannot claim prejudice—not only are they publicly-available, but they
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specifically relate to the parties and patents at issue here, so it must have known of the existence of
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Specifically, Gutterglove objects to the following exhibits to the Costello declaration (Dkt. No.
32-1): Patent Application No. 14/453,783 by Robert C. Lenney (Costello Decl. ¶ 6, Ex. 3),
Complaint filed in Case No. 2:17-cv-01372-WBS (Costello Decl. ¶ 7, Ex. 4), Copy of Patent No.
9,284,735 (Costello Decl. ¶ 8, Ex. 5), NCR Broadcast Corporation gutter guard product reviews
(Costello Decl. ¶ 9, Ex. 6), Pages from Ruffles Potato Chip website (Costello Decl. ¶ 16, Ex. 13).
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I do not find it necessary to strike any corresponding portions of defendants’ brief.
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this evidence.
IT IS SO ORDERED.
Dated: August 28, 2017

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William H. Orrick
United States District Judge

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United States District Court
Eastern District of California

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