BERRY PLASTICS CORPORATION v. INTERTAPE POLYMER CORPORATION

Filing 83

ORDER OVERRULING Intertape Polymer Corporation's 75 Objection to the Magistrate Judge's Denial of Request for Reconsideration. Signed by Judge Richard L. Young on 1/30/2012. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

BERRY PLASTICS CORPORATION,
Plaintiff,
vs.
INTERTAPE POLYMER CORP.,
Defendant.

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3:10-cv-00076-RLY-WGH

ENTRY ON INTERTAPE POLYMER CORPORATION’S RULE 72(a)
OBJECTION TO THE MAGISTRATE JUDGE’S DENIAL OF REQUEST FOR
RECONSIDERATION
Plaintiff, Berry Plastics Corporation (“Berry”), is a direct competitor of Intertape
Polymer Corporation (“Intertape”), in the manufacture and sale of a variety of tapes,
including adhesive tapes. Intertape is the assignee of United States Patent No. 7,476,416
(“‘416 patent”) which claims, inter alia, a manufacturing process for preparing an
adhesive using a specially modified planetary roller extruder (“PRE”). Independent claim
1 of the ‘416 patent recites the step of “introducing primary raw materials comprising a
non-thermoplastic elastomer into a feeding section of a planetary roller extruder.” Berry
denies infringement of the asserted patent based on its assertion that it introduces a nonthermoplastic elastomer into its PRE in a section other than the “feeding section” of the
PRE as claimed in the patent.
On August 29, 2011, Interstate filed a motion to compel inspection of Berry’s PRE
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and manufacturing process, including a request to test the identity of raw materials
introduced into Berry’s PRE. On October 17, 2011, Magistrate Judge Hussmann granted
in part, and denied in part, Interstate’s motion (“October 17 Order”). On November 1,
2011, Interstate simultaneously filed both an Objection with this court, and a separate
motion to reconsider the October 17 Order with the Magistrate Judge. On November 28,
2011, the Magistrate Judge issued a Notation Order denying Interstate’s motion to
reconsider (“November 28 Order”). Interstate now brings a second Objection with this
court. The parties indicate that the present Objection incorporates the Objection filed on
November 1, 2011.
Pursuant to Federal Rule of Civil Procedure 72(a), Intertape’s Objection claims
certain rulings in the Magistrate Judge’s October 17 and November 28 Orders are clearly
erroneous. FED. R. CIV. P. 72(a) (stating that a magistrate judge’s non-dispositive order
shall be set aside, in whole or in part, if it is clearly erroneous or contrary to law). The
October 17 Order denied Intertape’s request to: (1) observe Berry’s manufacturing
process in operation, and (2) sample and test each material introduced into the feeding
section of Berry’s PRE during the observed manufacturing run.1 In making his rulings,
the Magistrate Judge balanced Intertape’s need to inspect Berry’s manufacturing facility
against Berry’s legitimate concern that Intertape may obtain other competitive and
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The October 17 Order also granted Intertape’s motion for samples to test the accused
adhesive products. In its Objection, Intertape seeks samples of the accused product actually
produced during the observed production run. Because this issue dovetails with the issue of
whether Intertape may observe Berry’s manufacturing process in operation, the court will not
address it as a separate issue.
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proprietary information during its visual inspection of the machine in operation. The
Magistrate Judge determined that less intrusive means were available to obtain the same
information and, therefore, “order[ed] Berry to provide to Intertape photographs and/or
videotapes of all portions of the PRE (while in operation)” that Berry believes will show
that its manufacturing process does not infringe the ‘416 patent. The November 28 Order
expounded upon the October 17 Order with regard to Intertape’s request to sample each
raw material Berry introduces into its PRE. The Magistrate Judge again determined that
less intrusive means were available to acquire that information, and suggested that
Intertape conduct a deposition of a Berry representative with knowledge of those matters.
The Magistrate Judge ultimately concluded that the opportunity to depose a Berry
representative, coupled with the previously ordered photographs and/or videotape of the
accused manufacturing process while in operation, was a reasonable but less instrusive
means for Intertape to determine if Berry is copying Interstate’s manufacturing process.
A ruling is clearly erroneous if it leaves the court “with a definite and firm
conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., Ltd., 126
F.3d 926, 943 (7th Cir. 1997). The Magistrate Judge’s rulings do not leave the court with
a definite and firm belief that a mistake has been made. The Magistrate Judge balanced
the interests of both parties, and came up with a fair and logical resolution for obtaining
the information Intertape seeks. Accordingly, Intertape Polymer Corporation’s Rule

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72(a) Objection to the Magistrate Judge’s Denial of Request for Reconsideration (Docket
# 75) is OVERRULED.

SO ORDERED this 30th day of January 2012.

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RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
District of Indiana
Southern
Electronic Copies to:
Daniel Paul Albers
BARNES & THORNBURG
[e-mail]
Stephen J. Butler
THOMPSON HINE LLP
[e-mail]
Jonathan P. Froemel
BARNES & THORNBURG - Chicago
[e-mail]
James D. Johnson
RUDOLPH FINE PORTER & JOHNSON
[e-mail]
David L. Jones
JONES WALLACE, LLC
[e-mail]
Jeffrey C. Metzcar
THOMPSON HINE LLP
[e-mail]

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James E. Michel
BARNES & THORNBURG - Chicago
[e-mail]

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