Eazypower Corp v. Jore Corp

Filing 188

Motion for reconsideration or in the alternative, clarifying of order denying Jores motion for partial summary judgment of non infringement 176 is granted. Enter amended order denying partial summary judgmentMailed notice(drw, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Judge Zagel

CASE NUMBER

04 C 6372

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

January 24, 2012

EAZYPOWER CORPORATION v. JORE CORPORATION

DOCKET ENTRY TEXT:

Motion for reconsideration or in the alternative, clarifying of order denying Jore’s motion for partial summary
judgment of non infringement [176] is granted. Enter amended order denying partial summary judgment.

STATEMENT
I. OVERVIEW
This is a patent infringement action in which Eazypower alleges that Jore infringed Claims 1, 2, 4, 5,
and 7 of Patent 4,876,929 (“the ‘929 Patent’”). The ‘929 Patent is entitled “Portable Screw Driver Having
Flexible Extension Shaft” and has expired. I previously denied Jore’s motion for summary judgment
regarding the alleged invalidity of the ‘929 Patent, and Jore now moves for summary judgment of noninfringement. A hearing was held on this motion and both parties presented oral arguments. Having
considered the written briefs and the oral arguments, I am denying Jore’s motion for summary judgment.
II. DISCUSSION
Jore argues that summary judgment for non-infringement is proper on two grounds. First, Jore
contends that the Jore flexible extension shaft does not meet the requirement of “normally being disposed so
as to be substantially entirely coaxial with said chuck.” The second basis for summary judgment is that the
Jore flexible extension shaft does not include one of the two cylindrical fittings that are located at opposite
ends of the patented flexible extension shaft “so as to define a shoulder internally of each of said fittings.”
A. “Normally Being Disposed So As To Be Substantially Entirely Coaxial.”
In August, 2008, I interpreted the phrase "said flexible extension shaft normally [being] disposed so as
to be substantially entirely coaxial with said chuck" to mean that, "when the device is positioned in a chuck,
said positioning is usually substantially entirely coaxial with the chuck.” The first basis on which Jore seeks
summary judgment is that its device has no "default" or "standard" position in which it is straight. In other
words, absent active intervention, the position assumed by the flexible extension shaft depends on the
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STATEMENT
position it was in the last time it was subjected to active intervention. For example, when a Jore shaft is
manually bent into a curve and the bending force is removed, the flexible extension shaft will remain in a
curved position. For these reasons, Jore argues that its shaft has no "standard position" in which it is straight,
or not bent or angled. Accordingly, the Jore shaft would not be "usually substantially entirely coaxial" when
placed in a chuck. Jore also argues that each time its extension shaft is placed in a chuck, its coaxial or noncoaxial relationship to the axial centerline of the chuck is determined by the way it is being grasped by the
person who is placing the shaft in the chuck. Therefore, Jore contends the flexible extension shaft’s
relationship to the axial centerline of the chuck need not be a coaxial relationship, as is required by the patent.
I note that the Markman Order does not directly reference any ‘default’ or ‘standard’ position.
Instead, the Order interpreted the “normally disposed” claim to mean that “when the device is positioned in a
chuck, said positioning is usually substantially entirely coaxial with the chuck.” I explained this phrase to
mean that the “standard position of the shaft of its device is straight, i.e., not bent or angled.” With regard to
the "normally [being] disposed" claim language, I commented that "the term 'normally' simply refers to the
fact that the default position of the device is straight. For example, it is straight when housed in the
packaging in which it is sold.” From this, Jore argues that an appropriate definition of a “default” position is
“a situation or condition that obtains in the absence of active intervention.” Jore asserts that its device does
not have a ‘default’ or ‘standard’ position in which the device is straight. In the Markman Order, however, I
also stated that “I find nothing in the language of the patent to suggest that this [returning to a straight
position after the user releases the pressure that caused the shaft to curve] limitation is contained therein. The
term ‘normally’ simply refers to the fact that the default position of the device is straight. . . . But the fact that
the default position is straight does not mean that the device necessarily must ‘spring back’ to that position
when the force that bent it in the first place is removed.”
I am unpersuaded by Jore’s arguments and deny summary judgment regarding this issue. The trier of
fact could find that in the typical usage of the Jore device, the flexible shaft of the invention is substantially
entirely coaxial with the chuck. Accordingly, summary judgment is improper.
B. Internal Shoulder That Forms A Stop For An Associated Cylindrical Body Portion
Claims 1 and 7 both require a flexible sleeve "having cylindrical fittings secured thereto at opposite
ends thereof so as to define a shoulder internally of each of said fittings." Both claims also specify that each
of the cylindrical fittings is "adapted to receive one of said cylindrical body portions therein." Jore admits
that one end of its flexible extension shaft includes a cylindrical fitting that includes an internal shoulder that
serves as a stop. Jore argues, however, that because the other end of its flexible extension shaft does not have
an internal shoulder that serves as a stop, there is no infringement.
The parties make two arguments that go to issues of claim construction, rather than summary
judgment. First, the parties dispute whether or not the ‘internal shoulder’ must serve as a stop. This is a
matter for claim construction, which is inappropriately brought in this motion for summary judgment. Jore
has never claimed that any claim terms are ambiguous or in dispute other than those already ruled upon by the
Court. Nevertheless, it now presents extrinsic evidence to show that the ‘929 Patent requires that the internal
shoulder must serve as a stop. The evidence presented takes the form of prior lawsuits where Eazypower has
taken the position that the internal shoulders set forth in the patent form stops. Jore has had ample time to
argue that the patent requires that the internal shoulder must form a stop, yet it has failed to do so. Moreover,
as I noted at the summary judgment hearing, I am disinclined to rely heavily on arguments or theories asserted
in prior cases. There is no claim language in claims 1 or 7 requiring that internal shoulders form a stop, and
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STATEMENT
there is no limitation in either claim that requires a stop at all. Instead, the Preferred Embodiment states that
“the flexible sleeve 36 and the cylindrical fittings 38 and 40 define shoulders 46 and 48 internally of each of
the fittings 38 and 40 to form a stop for the cylindrical body portions 20a and 22a.” I deny summary
judgment as to this line of argument.
Similarly, Eazypower raises the question of whether the patent requires more than one internal
shoulder to be created by the cylindrical fitting and the flexible sleeve. Jore admits that one end of its flexible
extension shaft includes a cylindrical fitting that includes an internal shoulder that serves as a stop.
Eazypower implies that this is sufficient to show infringement because the second internal shoulder is not
required and not claimed in the patent. Eazypower’s argument is both muddled and unavailing.
The preferred embodiment states that the flexible sleeve shall have cylindrical fittings secured to the
flexible sleeve at opposite ends whereby an internal shoulder is formed. Claims 1 and 7 specify that the:
“flexible sleeve having cylindrical fittings secured thereto at opposite ends thereof so as to
define a shoulder internally of each of said fittings . . . said cylindrical body portions being
spaced apart by a distance greater than the distance between said shoulders in said cylindrical
fittings to permit limited axial movement of said cylindrical body portions and said concentric
coil springs relative to said cylindrical fittings and said flexible sleeves.
The claim language is clear, and Eazypower’s suggestion that only one end must form an internal shoulder is
unpersuasive.
I am left then, to decide whether summary judgment is appropriate on the issue of whether Jore’s
device has a second internal shoulder so as to infringe on the Patent. Jore’s position is that infringement
requires “cylindrical fittings with internal shoulders that form stops for the associated cylindrical body
portions.” Jore argues that the stop on the device must be internal, whereas the stop in its accused device is
on the outside. As I noted supra, however, I do not consider the placement of stops for purposes of this
motion. The focus of Jore’s argument surrounds whether the internal shoulder of the second end form a stop.
However, leaving aside the issue of the stop, Jore has failed to show that its device does not infringe the
“internal shoulder” claim of the Patent.
III. CONCLUSION
Summary judgment as to non-infringement is denied.

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