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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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 GUTTERGLOVE, INC. Plaintiffs, 8 v. 9 10 AMERICAN DIE and ROLLFORMING, INC., et al., 11 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 12 13 The purpose of this Order is to help the parties prepare for the Claim Construction hearing 14 at 9:30 a.m. on Friday, September 1, 2017. My tentative constructions are below. I am also ruling 15 on Gutterglove’s ex parte application to strike or exclude. 16 Having read the briefs and considered the terms at issue, I do not believe that a separate 17 tutorial is necessary. At the hearing, each side may have a total of one hour to argue. Plaintiff 18 will start and address any terms as construed in the tentative with which it disagrees. Defendants 19 may respond concerning those terms, and plaintiff may reply. Then the defendants may address 20 any additional terms, plaintiff may respond and defendants reply. If either side wishes to fold into 21 their argument a truncated tutorial, it may do so. I will not hear any expert testimony. Personnel 22 issues or disputes between the parties other than the meaning of the terms are not relevant at this 23 hearing. 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 United States District Court Eastern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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.” 28 2 1 2 3 4 5 6 7 8 9 10 United States District Court Eastern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. The ’747 Patent Claim Terms 5. “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.” 26 27 28 3 1 2 II. GUTTERGLOVE’S APPLICATION TO STRIKE AND/OR EXCLUDE On August 24, 2017, Gutterglove submitted an ex parte application to strike and/or 3 exclude certain extrinsic evidence submitted by defendants because they failed to adequately 4 disclose the evidence in accordance with the Patent Local Rules and Federal Rule of Civil 5 Procedure 26. Dkt. No. 36. Specifically, Gutterglove asserts that defendants failed to sufficiently 6 set forth summaries and opinions of their proffered experts Slate Bryer and Matthew I. Stein, and 7 failed to produce expert reports prior to the close of claim construction discovery. Id. at 1. 8 Gutterglove also argues that certain exhibits submitted with defendants’ responsive claim 9 construction brief were not properly disclosed and should be excluded, and asks that the court 10 strike the portions of defendants’ brief that cite the objectionable evidence.1 11 United States District Court Eastern District of California Defendants responded to the application on August 25, 2017, arguing that they adequately 12 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 14 6 and 13 were not properly disclosed. Id. 15 I agree with defendants that their expert disclosures were adequate for tutorial and/or claim 16 construction purposes. At this time, I make no determination as to the reliability of their proposed 17 testimony for other purposes. Further, I do not find the identified exhibits attached to the Costello 18 declaration particularly helpful and did not rely on them in generating the tentative constructions 19 below. Since defendants do not dispute that they failed to disclose exhibits 6 and 13, I will 20 exclude those from consideration.2 But to the extent exhibits 3, 4, and 5 become relevant to claim 21 construction, Gutterglove cannot claim prejudice—not only are they publicly-available, but they 22 specifically relate to the parties and patents at issue here, so it must have known of the existence of 23 24 25 1 26 27 28 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). 2 I do not find it necessary to strike any corresponding portions of defendants’ brief. 4 1 2 3 4 this evidence. IT IS SO ORDERED. Dated: August 28, 2017 5 6 William H. Orrick United States District Judge 7 8 9 10 United States District Court Eastern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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