Philippi-Hagenbuch Inc et al v. Western Technology Services International Inc

Filing 334

ORDER entered by Chief Judge James E. Shadid on 9/9/2015: IT IS ORDERED that Plaintiffs Motion for Summary Judgment that Certain of Westech's Water Tanks Infringe Claims 22, 23, 24, 36, and 60 of U.S. Patent No. 6,547,091 and That Such Claims Ar e Not Invalid 192 is GRANTED IN PART and DENIED IN PART. The Motion is granted with respect to any assertions that Claims 22, 23, 24, 36, and 60 are invalid and denied with respect to the request to find that Claims 22, 23, 24, 36, and 60 have been infringed as a matter of law. (SEE FULL WRITTEN ORDER)(JRK, ilcd)

E-FILED

Wednesday, 09 September, 2015 02:54:29 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS

PHILIPPI-HAGENBUCH, INC., and
LEROY HAGENBUCH,
Plaintiffs,
v.
WESTERN TECHNOLOGY SERVICES
INTERNATIONAL, INC., and WOTCO,
INC.,
Defendants.

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Case No. 12-1099

ORDER
This matter is now before the Court on Plaintiffs’ Motion for Summary Judgment that
Certain of Westech’s Water Tanks Infringe Claims 22, 23, 24, 36, and 60 of U.S. Patent No.
6,547,091 (the “‘091 patent”) and That Such Claims Are Not Invalid. The Motion [192] has been
fully briefed by the parties and is now ready for resolution.
BACKGROUND
Both parties are competitors in the manufacture of large water tanks used in mining. This
case arises out of a claim by Plaintiffs that Defendants have infringed on its patents for designing
and making these water tanks.
Specifically relevant to these Motions is the fact that Plaintiff, Leroy Hagenbuch
(“Hagenbuch”), is the inventor and owner of the ‘091 patent, which was filed on June 1, 2001.
Hagenbuch asserts that Westech infringes Claims 22-24, 36, and 60 of the ‘091 patent.

LEGAL STANDARD
A motion for summary judgment will be granted where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). The moving party has the responsibility of informing the Court of portions of the record
or affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S.
317, 106 S.Ct. 2548, 2552 (1986). The moving party may meet its burden of showing an absence
of material facts by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Id. at 2553. However, a plaintiff’s uncorroborated testimony or subjective
belief standing alone is insufficient to defeat a motion for summary judgment. Weeks v. Samsung
Heavy Indus. Co., Ltd., 126 F.3d 926, 939 (7th Cir. 1997); Chiaramonte v. Fashion Bed Group,
Inc., 129 F.3d 391, 401 (7th Cir. 1997). Any doubt as to the existence of a genuine issue for trial
is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106
S.Ct. 2505, 2513 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
If the moving party meets its burden, the non-moving party then has the burden of
presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986).
Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings
and produce evidence of a genuine issue for trial. Celotex Corp., 106 S.Ct. at 2553. This Court
must then determine whether there is a need for trial -- whether, in other words, there are any
genuine factual issues that properly can be resolved only by a finder of fact because they may be
reasonably resolved in favor of either party. Anderson, 106 S.Ct. at 2511; Hedberg v. Indiana
Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).

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ANALYSIS
Initially, the Court notes that Plaintiffs seek a finding that the claims of the ‘091 patent
are not invalid. As Westech admits that invalidity is not in issue, this portion of Plaintiffs’
Motion for Summary Judgment is granted.
Plaintiffs next argue that Westech’s offer for sale and WOTCO’s manufacturing, sale,
and use of their D04984, D05253, D05354, D05760, and D06567 tanks infringe on Claims 2224, 36, and 60 of the ‘091 patent. In order to determine whether a patent has been infringed,
courts must first determine the scope and meaning of the patent claims asserted and then compare
the claims to the alleged infringing device. Golden Blount, Inc. V. Robert H. Peterson Co., 365
F.3d 1054, 1059 (Fed. Cir. 2004). To establish infringement, every limitation of the allegedly
infringed device must exist in the accused device. Amazon.com, Inc. v. Barnesandnoble.com.,
Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001); Oakley, Inc. v. Sunglass Hut, Int’l, 316 F.3d 1331,
1339 (Fed. Cir. 2003).
The key issue with respect to these claims revolves around the term “pivotal baffle,”
which has been construed by the Court to mean “a portion of a baffle that pivots, such as a door
in a baffle.” Court’s Order dated April 8, 2015 at 10.
The language of the relevant claims is as follows:
22. A tank for transporting liquids, comprising: a tank vessel
having front and rear walls defining a longitudinal direction,
opposing sidewalls defining a lateral direction and a floor and a
top, a longitudinal baffle arrangement extending in the longitudinal
direction through the tank vessel, the longitudinal baffle
arrangement including a longitudinally extending chamber, and
a pivotal baffle supported on the longitudinal baffle arrangement
for pivotal movement between an open position wherein the
pivotal baffle extends in the longitudinal direction and a closed
position wherein the pivotal baffle extends in the lateral direction.

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23. The tank according to claim 22 wherein the tank includes a
plurality of longitudinally spaced pivotal baffles.
24. The tank according to claim 23 further including a plurality of
lateral baffles supported on the longitudinal baffle arrangement,
each lateral baffle being aligned with a respective one of the
pivotal baffles.
36. The tank according to claim 22 wherein the tank vessel has a
plurality of entry hatches therein for permitting access into the
interior of the tank vessel, each entry hatch having an associated
hatch plate which is movable between open and closed positions
and being sized to allow a person to enter the tank therethrough.
60. The tank according to claim 57 wherein at least one of the
lateral baffles is supported for pivotal movement.
Hagenbuch argues that Westech’s only non-infringement position is that the accused
tanks do not have a “pivotal baffle,” as defined by Westech. However, the Court ultimately
adopted a construction that differed from that proposed by Westech. Hagenbuch then cites a
claim chart prepared by his expert, Fred Smith, which purports to map each of the challenged
claims in the ‘091 patent to the accused tanks using a construction of the term “pivotal baffle”
that is in line with the construction adopted by the Court. Westech’s objection to this evidence as
unsworn is without merit; Smith expressly affirmed his opinions under oath during his deposition
and has also cured any deficiency in that respect by tendering an affidavit verifying the
authenticity of the report.
Smith has identified the longitudinal baffle arrangement, including a longitudinally
extending chamber, as well as a pivotal baffle supported on the longitudinal baffle arrangement
which extends in the longitudinal direction when open and in the lateral direction when closed.
Westech now offers the Declaration of Dr. Frey, its technical expert, to create a factual dispute as
to whether the door in the opening of the baffle in the accused tanks is supported by the

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longitudinally extending baffle arrangement as required by the claims. Specifically, Dr. Frey
takes the position that if the door is the pivotal baffle as opined by Smith, it is supported on a
lateral baffle rather than on the longitudinal baffle arrangement. Hagenbuch responds that this
Declaration is an untimely supplemental expert report in disguise and should be stricken. Even
without Dr. Frey’s Declaration, when viewed in the light most favorable to Westech, the
drawings relied on by Smith and corresponding explanations raise a question of fact regarding his
designation and identification of the longitudinal baffle arrangement that requires resolution by a
jury.
The Court was asked to construe the meaning of the term “pivotal baffle” as used in the
claims in this action. Construction of longitudinal or latitudinal baffle arrangements was not at
issue, but this appears to be where the battle between the opposing experts will occur with
respect to these claims. For now, that battle will remain for trial.
CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for Summary Judgment that Certain of
Westech’s Water Tanks Infringe Claims 22, 23, 24, 36, and 60 of U.S. Patent No. 6,547,091 and
That Such Claims Are Not Invalid [192] is GRANTED IN PART and DENIED IN PART. The
Motion is granted with respect to any assertions that Claims 22, 23, 24, 36, and 60 are invalid
and denied with respect to the request to find that Claims 22, 23, 24, 36, and 60 have been
infringed as a matter of law.
ENTERED this 9th day of September, 2015.

s/ James E. Shadid
James E. Shadid
Chief United States District Judge
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