Wonderland Nurserygoods Co., Ltd. v. Kids II, Inc.

Filing 60

ORDER denying 34 Motion for Partial Summary Judgment of Noninfringement of U.S. Patent No. RE43,919. Signed by Judge Thomas W. Thrash, Jr on 5/27/2014. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WONDERLAND NURSERYGOODS
CO., LTD.,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:13-CV-1114-TWT

KIDS II, INC.,
Defendant.

OPINION AND ORDER

This case is before the Court on the Defendant’s motion for partial summary
judgment for non-infringement of one of the three patents at issue in this case.
Although the Court has construed the disputed claims, there remains a question of fact
as to whether the Defendant’s accused products fall within the claim limitations of the
Plaintiff’s patent. Accordingly, the motion for partial summary judgment should be
denied.
I. Background
The Plaintiff, Wonderland Nurserygoods Co., Ltd., and the Defendant, Kids II,
Inc., both produce a range of children’s products, including playpens. Wonderland
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holds U.S. Patent No. RE43,919 (“the ‘919 Patent”), which provides for a playpen
with positioning posts that hold the fabric outer wall of the playpen in place. Although
Kids II argues that the primary purpose of the playpen outlined in the ‘919 Patent is
a playpen with exposed outer poles, the patent itself states that “the object of the
present invention is to provide a baby crib that can be easily assembled, that has a
fabric member effectively positioned on a bed frame structure, and that has an
appealing appearance.”1
Kids II argues that no reasonable juror could find that its accused products2
could infringe on the ‘919 patent because Kids II’s playpens have fabric side panels
that make substantial contact with the outside of the support rods of the playpen.
Wonderland, however, argues that the ‘919 Patent is not limited to a playpen with
exposed outer columns, and further argues that the Accused Playpens use fabric that
is separate from the side panels to cover the outer columns, making the comparison
to the side panels of the ‘919 playpen inappropriate.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show that no genuine issue of material fact exists

1

(‘919 Patent; 1:43-46).
The allegedly infringing playpens are Kids II’s model numbers 7066-NA and
60286-NA (the “Accused Playpens” or “Accused Products”).
2

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and that the movant is entitled to judgment as a matter of law.3 The court should view
the evidence and any inferences that may be drawn in the light most favorable to the
nonmovant.4 The party seeking summary judgment must first identify grounds that
show the absence of a genuine issue of material fact.5 The burden then shifts to the
nonmovant, who must go beyond the pleadings and present affirmative evidence to
show that a genuine issue of material fact does exist.6 “A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be a sufficient
showing that the jury could reasonably find for that party.”7
III. Discussion
Kids II argues that no reasonable jury would find that Kids II’s Accused
Playpens infringe on the ‘919 Patent. The Accused Playpens infringe on the ‘919
Patent if they incorporate every limitation of a claim, either literally or through the
doctrine of equivalents.8 If one claim limitation is not met, then there is no literal

3

FED. R. CIV. P. 56(c).
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
5
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
7
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
8
MicroStrategy Inc. v. Business Objects, S.A., 429 F.3d 1344, 1352 (Fed. Cir.
2005) (citing Nazomi Commc’ns, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1732
(Fed. Cir. 2005)).
4

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infringement.9
Here, the parties focus on the limitations in independent claims 15 and 20 and
dependent claims 19, 21, 27, 28, and 29. Claim 15 provides:
A baby crib comprising:
a plurality of upright tubes defining corners of the baby
crib, wherein each of the upright tubes has an outer wall
that defines an outer contour shape of the upright tube; and
an enclosure member including a plurality of side panels
contiguously connected to one another along edge portions
and surrounding an enclosed space adapted for receiving a
baby therein; and
a plurality of positioning posts provided on the enclosure
member at locations corresponding to the edge portions of
the enclosure member, wherein the positioning posts are
lodged inside the upright tubes, the side panels extending
between the upright tubes substantially out of contact with
the outside surfaces of outer walls of the upright tubes, such
that the outwardly facing surface of each of the upright
tubes is exposed on an outside of the enclosure member.10
Claim 19 is dependent on claim 15. Separately, claim 20 provides:
A baby crib comprising:
a frame structure including a plurality of support tubes,
wherein each of the support tubes has an outer wall that
defines an outer contour shape of the upright tube;
an enclosure member including a plurality of side panels having edge
portions; and
9

Id. (citing Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed
Cir. 1998)).
10
(‘919 Patent; 5:6-24).
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an attachment structure configured to mount and secure the edge portions
of the enclosure member along the support tubes,
whereby the side panels surround an enclosed space, and each of the side
panels extends generally between two of the support tubes substantially
out of contact with outwardly facing surfaces of the outer walls thereof,
such that the outwardly facing surface of each of the upright tubes is
exposed on an outside of the enclosure member.11
Claims 21, 27, 28, and 29 are dependent upon claim 20. Thus, Kids II argues that the
side panels in the ‘919 Patent are “substantially out of contact with the outside surface
of the outer walls of the tubes, such that the outwardly facing surface of each of the
tubes is exposed on the outside of the fabric enclosure of the playard.”12
Kids II’s Accused Playpens have rail covers or fabric flaps protecting the outer
edges of the columns. According to Kids II, in the Accused Products, “the side panels
or walls of the boundary sheet extend up and over the top rails of the playard, and the
fabric of the side panels … makes contact with the outwardly facing surface of the
vertical legs of the playard.”13 Likewise, “the fabric of the side panels in each of the
Accused Products rely on the outwardly [sic] facing of the vertical legs for support
because the fabric is stretched over the top rails and connected to the outwardly facing
surface of the vertical legs via hook and loop straps.”14 Thus, the outer columns on the
11

(‘919 Patent; 5:37-6:8).
(Def.’s Br. in Supp. of Mot. for Partial Summ. J., at 5).
13
(Id. at 10).
14
(Id.)
12

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Accused Products are not exposed, and Kids II contends that no reasonable jury could
find that the Accused Products infringe on the ‘919 Patent.
Wonderland contends that summary judgment is inappropriate for two reasons.
First, Wonderland contends it is entitled to discovery under Rule 56(d) before the
Court grants summary judgment concerning the Accused Products. According to
Wonderland, Kids II’s Accused Playpens only introduced a “rail cover” in 2014 and,
because of that, Wonderland has not obtained discovery on the “rail cover” apparatus.
Wonderland requests discovery on what the “rail cover” is and does. Next,
Wonderland argues that there is a question of fact precluding summary judgment. This
is because the rail covers and fabric flaps used in the Accused Playpens may not be
equivalent to the side panels claimed in the ‘919 Patent. If, as Wonderland contends,
the rail covers and fabric flaps are additional elements of the playpens unrelated to the
side panels, Kids II cannot avoid infringement by adding elements to its Accused
Products, as the language of both claims 15 and 20 use the word “comprising,” which
is an open transition word.
The Court agrees that there is an issue of fact precluding summary judgment
here. Kids II’s primary assertion is that the outside surfaces of the outer columns of
its Accused Playpens are not substantially out of contact with the side panels, or fabric
walls, of the playpens. As noted, both claims 15 and 20 of the ‘919 Patent provide “an

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enclosure member including a plurality of side panels” whereby “the side panels
extending between the upright tubes [are] substantially out of contact with the outside
surfaces of outer walls of the upright tubes.”15 In these claims, the “side panels” serve
as the walls of the playpen. Claim 20 specifically provides for “an enclosure member
including a plurality of side panels.”16 Because the side panels are substantially out of
contact with the outer surfaces of the columns, and because the side panels provide
the walls of the playpen, it is unclear whether the “rail covers” and “fabric flaps” that
do come in contact with the outer surfaces of the columns of the Accused Playpens
can be considered “side walls.” Indeed, even Kids II’s own argument that, in the ‘919
Patent, “the outwardly facing surface of each of the tubes is exposed on the outside
of the fabric enclosure of the playard,”17 leaves open the possibility that fabric
separate from the side walls of the playpen can cover the exposed columns. If the rail
covers and fabric flaps in the Accused Products are not side walls or side panels and
are instead additional elements, Kids II “may not avoid infringement of a patent claim
using an open transitional phrase, such as comprising, by adding additional

15

(‘919 Patent; 5:6-24). Claim 20 provides nearly identical language: “whereby
the side panels surround an enclosed space, and each of the side panels extends
generally between two of the support tubes substantially out of contact with outwardly
facing surfaces of the outer walls thereof.” (‘919 Patent; 6:2-8).
16
(‘919 Patent; 6:2-8).
17
(Def.’s Br. in Supp. of Mot. for Partial Summ. J., at 5).
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elements.”18 Accordingly, there is a question of fact concerning whether the Accused
Playpens’ rail covers and fabric flaps are part of the enclosure of the ‘919 Patent’s
playpen that stay substantially out of contact with the outer surfaces of the outer
columns. The Defendant’s motion for partial summary judgment should be denied.19
IV. Conclusion
For the reasons set forth above, the Defendant’s Motion for Partial Summary
Judgment of Noninfringement of U.S. Patent No. RE43,919 [Doc. 34] is DENIED.
SO ORDERED, this 27 day of May, 2014.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

18

Free Motion Fitness, Inc. v. Cybex Int’l, Inc., 423 F.3d 1343, 1353 (Fed. Cir.

2005).
19

Because the Court is denying the Defendant’s motion for partial summary
judgment, the Plaintiff’s request for additional discovery under Rule 56(d) is denied
as moot. See Baron Servs., Inc. v. Media Weather Innovations LLC, 717 F.3d 907,
912 (Fed. Cir. 2013) (noting that in the Eleventh Circuit, motions under Rule 56(d)
should be granted when discovery would be essential to opposing the motion for
summary judgment).
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