Lear Corporation v. NHK Seating of America Inc.
Filing
278
OPINION and ORDER Regarding Special Master's Report and Recommendation 273 . Signed by District Judge Laurie J. Michelson. (EPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LEAR CORPORATION,
Plaintiff,
Case No. 13-12937
Honorable Laurie J. Michelson
v.
NHK SEATING OF AMERICA INC.,
NHK SPRING COMPANY, LIMITED,
and
NHK INTERNATIONAL INC.,
Defendants.
OPINION AND ORDER REGARDING SPECIAL MASTER’S
REPORT AND RECOMMENDATION [273]
Lear Corporation holds patents covering active-headrest-restraint technology.
The patented technology reduces whiplash during a vehicle crash by moving the
headrest. Lear believes that NHK Seating of America, NHK Spring Company, and
NHK International (“the NHK Companies”) make products that infringe several of
its active-headrest-restraint patents.
After years of litigation, the dispositive motion phase of this case is nearly
complete. In particular, the parties moved for summary judgment on a host of issues,
and the Court resolved many of them. See Lear Corp. v. NHK Seating of Am. Inc., No.
13-12937, 2022 WL 876021, 2022 WL 870834, 2022 WL 866393 (E.D. Mich. Mar. 23,
2022) (addressing, among other things, summary-judgment motions relating to
damages, inequitable conduct, and the on-sale bar). But there were also many issues
based on the underlying technology, and the Court referred those to Special Master
Joseph Berenato, III. (ECF No. 267.) He issued a thorough report and
recommendation (ECF No. 273) and also considered input from the parties regarding
his report and recommendation (ECF No. 274).
Except for a single determination, the parties do not ask this Court to review
specific findings by Special Master Berenato. Instead, both sides object for the
purpose of preserving their positions for future appeal. (See ECF No. 275,
PageID.16985; ECF No. 276, PageID.17188.)
Lear makes one objection to the report and recommendation that it asks this
Court to address. According to Lear, at the hearing before the Special Master, the
NHK Companies made an indefiniteness argument that they had not made before.
Because Lear’s summary-judgment brief did not address this argument, the Special
Master believed that it was beyond the scope of what had been referred to him. Thus,
the Special Master neither addressed the merits of the NHK Companies’ argument
nor found it forfeited. Lear objects that it broadly sought summary judgment on the
NHK Companies’ indefiniteness defense and that the Special Master should have
found the NHK Companies’ new argument untimely. (See ECF No. 276,
PageID.17190–17191.)
As explained below, the Court agrees with Lear that the indefiniteness
argument the NHK Companies raised at the hearing before the Special Master is
untimely. Thus, the Court finds it forfeited. The Court therefore sustains Lear’s
objection and adopts Special Master Berenato’s report and recommendation with only
limited modification.
2
Some background information tees up Lear’s objection.
Among other patents, Lear has asserted that the NHK Companies’ products
infringe U.S. Patent No. 6,655,733 (the ’733 patent) and, in particular, Claim 15 of
the ’733 patent. (See ECF No. 113-12, PageID.3974.) Claim 15 includes the language
of Claim 10 (or, in patent speak, inherits Claim 10’s limitations). As relevant to Lear’s
objection, Claim 10 includes a “headrest arrangement” and “a seatback” with “the
headrest arrangement having . . . at least one of a guide member and a follower” and
“the seatback having the other at least one of a guide member and follower . . . .” U.S.
Patent No. 6,655,733 col. 12 ll. 56–65 (filed Jun. 28, 2002).
The ’733 patent provides examples of a “headrest arrangement having . . . at
least one of a guide member and a follower” and a “seatback having the other at least
one of a guide member and follower.” The figure below on the left from the ’733 patent
shows headrest arrangement 14 and a guide member 21 connected to the seatback
frame; the figure on the right shows a side view, cross section of the guide member
21 and also a follower, itself made up of a front portion 41 and a back portion 43.
3
As suggested by the figures, the guide member and the follower are complementary
pieces in that the guide member has a channel (or “guideway”) that the follower is
meant to move through. See U.S. Patent No. 6,655,733 col. 6 ll. 66–67, col 7, ll. 1–65
(filed Jun. 28, 2002).
According to the NHK Companies, Claim 10 of the ’733 patent is invalid
because it is indefinite. (See ECF No. 226-1, PageID.7446; ECF No. 226-2,
PageID.7695.) To oversimplify a bit, if a product falls within a claim’s scope, it
infringes the patent. For this reason, for a claim to be valid, its scope needs to be
relatively clear, i.e., definite. See Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S.
898, 909 (2014) (balancing the “inherent limitations of language” with the need for a
patent to “afford clear notice of what is claimed, thereby apprising the public of what
is still open to them” (internal quotation marks and alterations omitted)). So if a
person with ordinary skill in the field reads the patent’s prosecution history, the
patent’s specification, and the claim, and still cannot be reasonably certain about the
claim’s scope, then the claim is indefinite and, thus, invalid. See Niazi Licensing Corp.
v. St. Jude Med. S.C., Inc., 30 F.4th 1339, 1346 (Fed. Cir. 2022). Invalid claims cannot
be infringed.
As will be explained in greater detail below, this Court requires accused
infringers, here the NHK Companies, to tell the patent holder, here Lear, why they
believe a particular claim is invalid. This includes invalidity based on indefiniteness.
This detailed disclosure is referred to as “invalidity contentions.”
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In the NHK Companies’ final invalidity contentions, they asserted that Claim
10 of the ’733 patent is indefinite for two reasons. For one, the NHK Companies
argued that Claim 10 failed to adequately define the term “headrest arrangement.”
In their view, the ’733 patent described the headrest arrangement as, on the one
hand, including a seatback but, on the other hand, attached to the seatback. (See ECF
No. 226-1, PageID.7447; ECF No. 226-2, PageID.7696.)
Second (and more important for present purposes), the NHK Companies
focused on the following language of Claim 1 of the ’733 patent: “the headrest
arrangement having one of a guide member and a follower; the seatback having the
other one of a guide member and follower.” (ECF No. 226-1, PageID.7448.) (Claim 1
has similar language to Claim 10, except that Claim 10 includes the phrase “at least.”)
In their contentions, the NHK Companies asserted that this language meant that “a
certain structure is part of or connected to the seatback” and “another structure is
part of or connected to the headrest arrangement.” (Id.) But, argued the NHK
Companies, Lear had “conflate[d] these requirements by contending that everything
is part of and connected to everything else.” (Id.) In the NHK Companies’ view, the
way Lear was applying the claim language to the accused product “render[ed] the
claims invalid for indefiniteness.” (Id.) To illustrate this point, the NHK Companies
included in their invalidity contentions a photo of the accused device that Lear
marked up to identify the “guide member,” “follower,” and other language of the
claims of the ’733 patent. (See ECF No. 226-1, PageID.7449.) The NHK Companies
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contended that under Lear’s mapping of the claim language to the accused product,
“[t]here is no clear boundary of which element is part of which other element.” (Id.)
More than a year after the NHK Companies served their final invalidity
contentions, Lear moved for summary judgment on a host of the NHK Companies’
affirmative defenses, including that Claim 10 of the ’733 patent is indefinite. In doing
so, Lear primarily addressed the argument made in the NHK Companies’ final
contentions. In particular, Lear argued that “by focusing on [its] ‘application’ of the
claim to the accused product, NHK is not raising a genuine indefiniteness issue.
Lear’s ‘application’ of the claim to the accused product is an infringement issue, not
an indefiniteness issue.” (ECF No. 238, PageID.11272.)
In responding to Lear’s motion for summary judgment, the NHK Companies
made several, related points. For one, the NHK Companies presented a win-win
argument: if Lear’s application of the language of Claim 10 onto the accused product
was correct (such that the product infringed), then the language of Claim 10 is so
pliable that it is indefinite, and, alternatively, if the language is well-defined, then
there was no plausible way to map the language onto the accused product such that
it infringes. (See ECF No. 249, PageID.12025–12026.) Referring to another photo of
the accused product annotated by Lear, the NHK Companies also argued that what
Lear had identified as the guide member and follower were both part of the headrest
arrangement whereas the claim language required one piece to be part of the
headrest arrangement and the complementary piece to be part of the seatback. (ECF
No. 249, PageID.12029.) The NHK Companies concluded, “if Lear is correct that the
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claimed requirement could somehow be interpreted to cover seats where both the
‘guide member’ and the ‘follower’ were part of the claimed ‘headrest arrangement,’
(and thus [not] part of the seatback or frame), then the scope of the claims do not have
‘reasonably certainty’ as required for definiteness.” (ECF No. 249, PageID.12030.)
The Court referred Lear’s motion for summary judgment on the NHK
Companies’ indefiniteness defense to the ’733 patent (as well as other issues) to
Special Master Joseph W. Berenato, III. (ECF No. 267.)
At the hearing before the Special Master, the NHK Companies expressly
withdrew their indefiniteness theory based on Lear’s application of the language of
the asserted claim to the accused product. (See ECF No. 276-2, PageID.17236; ECF
No. 276-2, PageID.17232; ECF No. 276-5, PageID.17338.) But the NHK Companies
nonetheless maintained an argument that the claim is indefinite. Focusing on Claim
10’s language, “the headrest arrangement having . . . at least one of a guide member
and a follower,” the NHK Companies argued that “at least” allowed the headrest
arrangement to have both the guide member and the follower; but, their argument
continued, if the headrest had both the guide member and the follower, then it would
be “physically impossible” for the seatback to have “the other” of the guide member
and the follower. (ECF No. 276-2, PageID.17232; see also ECF No. 276-4,
PageID.17336.) Yet Claim 10 states, “the seatback having the other at least one of a
guide member and follower.” U.S. Patent No. 6,655,733 col. 12 ll. 62 (filed Jun. 28,
2002) (emphasis added). So, argued the NHK Companies, Claim 10 “recites a physical
impossibility within its scope. And for that reason, it’s indefinite on its face, putting
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aside Lear’s application [of the claim] to the NHK products.” (ECF No. 276-2,
PageID.17232; see also ECF No. 276-4, PageID.17336.) As this Court understands it,
the NHK Companies essentially argued that the language of Claim 10 is internally
inconsistent and thus, indefinite. But because the NHK Companies have referred to
this indefiniteness theory as the “physically impossible” argument, the Court will
refer to it in that way too.
At the hearing, Lear responded to this physically impossible argument by
telling the Special Master that “[f]or the first time today, NHK apparently has a new
theory of indefiniteness.” (ECF No. 276-2, PageID.17233.) It was Lear’s position that
the NHK Companies had not made this argument in their response to its motion for
summary judgment; and, said Lear, “it doesn’t look like it was in their contentions.”
(Id.) Thus, from Lear’s perspective, the NHK Companies’ indefiniteness theory was
“waived.” (Id.) (To be hyper-technical, the better term is “forfeited.” See Peters Broad.
Eng’g, Inc. v. 24 Cap., LLC, 40 F.4th 432 n.6 (6th Cir. 2022) (explaining that
“forfeiture” is the “failure to make the timely assertion of a right” whereas “waiver”
is the “intentional relinquishment or abandonment of a known right”).)
In post-hearing emails to the Special Master, the parties debated whether he
should address the physically impossible argument. Lear claimed that the NHK
Companies’ invalidity contentions and their summary-judgment response brief
omitted the argument and so it had been waived. (ECF No. 276-5, PageID.17339.) In
response, the NHK Companies explained that in seeking summary judgment, Lear
only addressed their indefiniteness argument based on Lear’s application of the claim
8
language to the accused product, and so they simply responded to that argument in
their brief. (ECF No. 276-5, PageID.17338.) The NHK Companies further told the
Special Master, “If you determine that this part of Defendants[’] defense is outside
the scope of Lear’s motion, then it need not be decided at this stage. But in order to
rule that ’733 claim 10 is not indefinite as a matter of law, we respectfully submit
that the impossible claim language must be addressed.” (ECF No. 276-5,
PageID.17338.)
Ultimately, the Special Master did not address the NHK Companies’ physically
impossible theory of indefiniteness. He stated, “Defendants allege that claim 10 of
the ‘733 Patent is indefinite because it recites a physical impossibility. I do not
address that indefiniteness issue, because it is outside the scope of Lear’s Motion. In
its Motion, Lear moved for summary judgment only . . . to the extent that [the
indefiniteness] defense is based on Lear’s application of the claims to the accused
product.” (ECF No. 273, PageID.16944.) The Special Master also made “no
recommendation regarding whether Defendants have waived that defense, as Lear
has suggested.” (Id.)
Now, to Lear’s objection.
According to Lear, the NHK Companies did not present their “physically
impossible” theory of indefiniteness in their final invalidity contentions. (See ECF No.
276, PageID.17193, 17196–17197.) And, according to Lear, the NHK Companies did
not present that theory in their brief opposing summary judgment. (See ECF No. 276,
9
PageID.17191, 17195–17196.) Thus, in Lear’s view, “NHK’s new argument should be
dismissed as being untimely and summary judgment [on the issue of whether the
language of Claim 10 is indefinite] should be granted.” (ECF No. 276, PageID.17189.)
And, says Lear, if the Court finds that the NHK Companies did not forfeit their
“physically impossible” theory of indefiniteness, it should have a chance to brief the
issue on the merits. (See id. at PageID.17190.)
The Court referred matters to the Special Master under Federal Rule of Civil
Procedure 53. (ECF No. 267, PageID.16708.) And with exceptions not applicable here,
Rule 53(f) requires this Court to “decide de novo” “all objections” to findings of fact or
conclusions of law “made or recommended by a master.”
That standard does not fit very well here, though. The Special Master made no
findings on the merits of the NHK Companies’ “physically impossible” theory of
indefiniteness. And the Special Master made no findings that the theory was
forfeited. Accordingly, there is really no finding by the Special Master for this Court
to review. (Other than, perhaps, his conclusion that the “physically impossible” theory
was beyond the scope of what this Court referred to him to decide; but resolving that
issue would do little to advance the litigation.)
As such, the Court addresses the NHK Companies’ “physically impossible”
indefiniteness argument and whether they forfeited that argument as if the two
issues had been presented to this Court in the first instance.
10
The Court begins with Lear’s claim that the NHK Companies’ “physically
impossible” argument is forfeited.
In a non-patent case, it might be common for an answer to simply list an
affirmative defense in a perfunctory manner and then for a summary-judgment brief
to flesh out the defense. But in patent cases, this Court requires more substance up
front. In particular, this Court’s case-management order for patent cases requires a
defendant to provide the patent holder with invalidity contentions, which include “a
detailed statement of any grounds of invalidity based on . . . indefiniteness.” (ECF
No. 43, PageID.426.) As the Court said earlier in this case, invalidity (and
infringement) contentions “force each side to show its cards: the patent holder shows
in detail how the accused device meets each claim limitation and the accused
infringer shows in detail how the claim is invalid.” Lear Corp. v. NHK Seating of Am.
Inc., No. 2:13-CV-12937, 2020 WL 1815876, at *2 (E.D. Mich. Apr. 10, 2020); see also
Lear Corp. v. NHK Seating of Am. Inc., No. 13-12937, 2022 WL 866393, at *1 (E.D.
Mich. Mar. 23, 2022). “And to ensure that the aims of early, detailed disclosure [are]
not undermined, it ma[kes] sense to restrict the parties’ ability to swap out their cards
for new ones late in the game.” Lear, 2020 WL 1815876, at *2. Thus, this Court
requires that, absent extensions, final contentions be served about six months after
entry of the case-management order. See id. And final contentions can be amended
“only by order of the Court upon a showing of good cause and absence of unfair
prejudice to opposing parties, made within 14 days upon discovery of the basis for the
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amendment.” (ECF No. 43, PageID.428.) Here, although the NHK Companies were
permitted to amend their final invalidity contentions, their contentions as to the ’733
patent were final over a year, perhaps two, before Lear sought summary judgment.
(See ECF No. 182-8, PageID.6440–6443, PageID.6466 (redline of a version of the final
invalidity contentions served on May 2020); see also ECF No. 155, PageID.5502
(setting November 2019 deadline for final invalidity contentions).)
So the forfeiture question turns on whether the NHK Companies’ final
invalidity contentions gave Lear adequate notice of the indefiniteness argument that
they later raised in their summary-judgment response brief and at the summaryjudgment hearing before the Special Master. If the NHK Companies’ summaryjudgment arguments differ too much from their final invalidity contentions, then they
would be impermissibly “swap[ping] out their cards for new ones late in the game.”
Lear, 2020 WL 1815876, at *2; see also Medline Indus., Inc. v. C. R. Bard, Inc., No.
14 C 3618, 2020 WL 10485718, at *2 (N.D. Ill. Jan. 8, 2020) (providing that the
purpose of the local patent rules, including contentions, is to force “the parties to
crystallize their theories of the case early in litigation” and that “[e]xpert
infringement reports may not introduce theories not previously set forth in
infringement contentions”).
On the one hand, some facts suggest that the NHK Companies’ summaryjudgment arguments were, at their core, the same as the ones they presented in their
final invalidity contentions. First, in their contentions, the NHK Companies asserted
that the language, “the headrest arrangement having one of a guide member and a
12
follower; the seatback having the other one of a guide member and follower,” is
indefinite. (ECF No. 226-1, PageID.7448.) And at summary judgment, the NHK
Companies continued to assert that similar claim language relating to the location of
the guide member and follower is indefinite. (ECF No. 249, PageID.12027–12028;
ECF No. 276-4, PageID.17336.) Second, in their contentions, the NHK Companies
argued that Lear’s identification of the guide member and follower on the accused
product failed to respect the requirement that one complementary piece be part of the
headrest arrangement while the other complementary piece by part of the seatback.
(See ECF No. 226-1, PageID.7448–7449.) At the summary-judgment hearing, the
NHK Companies made a similar argument. The NHK Companies took the position
that the claim language permitted the guide member and follower to both be part of
the headrest arrangement (which, in their view, was how Lear had been applying the
claim language), but, contradictorily, the claim language also required one
complementary piece to be on the headrest arrangement and the other to be on the
seatback. (ECF No. 276-2, PageID.17232; ECF No. 276-4, PageID.17336.)
On the other hand, other facts suggest that the NHK Companies’ summaryjudgment arguments were, at their core, not the same as the ones they presented in
their final invalidity contentions. While close, the Court concludes that the NHK
Companies’ invalidity contentions did not give Lear adequate notice of the argument
that they made at the summary-judgment hearing.
First, although a minor point, it appears that the NHK Companies’ contention
argument and summary-judgment argument were based on different starting
13
premises. In their contentions, the NHK Companies interpreted the claim language
as requiring the headrest arrangement to have either the guide member or follower
and the seatback to have the other. (See ECF No. 226-1, PageID.7448.) Indeed, that
is consistent with what they said in their summary-judgment response brief: “The
asserted ‘949 and ‘733 claims require that if the ‘follower’ is part of the headrest
arrangement, then the ‘guide member’ must be part of the seatback.” (ECF No. 249,
PageID.12029.) From that starting premise, the NHK Companies argued that Lear’s
application of the claim language did not honor the requirement that one of the guide
member and follower be part of the headrest arrangement while the other be part of
the seatback. (See, e.g., ECF No. 226-1, PageID.7448.) In contrast, at the summaryjudgment hearing, the NHK Companies first argued that the claim language
permitted both complementary pieces to be part of the headrest arrangement. (See
ECF No. 276-2, PageID.17232.) And from that starting premise, the NHK Companies
then argued that there was internal inconsistency with the claim language requiring
“the other” of the complementary pieces to be part of the seatback. (See id.)
Second and more significantly, in their invalidity contentions, the NHK
Companies focused on how Lear was applying the claim language to the accused
products whereas at the summary-judgment hearing, the NHK Companies focused
on the claim language itself. In their contentions they argued, “Lear’s application of
[the claim] requirements conflates [the] requirements by contending that everything
is part of and connected to everything else. This application renders the claims invalid
for indefiniteness.” (ECF No. 226-1, PageID.7448 (emphasis added).) But at the
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summary-judgment hearing, the NHK Companies made an argument that the
language—on its face—is indefinite: “So [claim 10 of the ’733 patent] recites a
physical impossibility within its scope. And for that reason, it’s indefinite on its face,
putting aside Lear’s application to the NHK products.” (ECF No. 276-2, PageID.17232
(emphasis added).)
Third, at the summary-judgment hearing, the NHK Companies homed in on a
specific phrase that they did not mention in their contentions. In their contentions,
the NHK Companies quoted the following language from Claim 1 of the ’733 patent:
“the headrest arrangement having one of a guide member and a follower; the seatback
having the other one of a guide member and follower.” (ECF No. 226-1, PageID.7448.)
But at the summary-judgment hearing, the NHK Companies focused on the words
“at least,” which appear in Claim 10 (but not Claim 1). (ECF No. 276-2, PageID.17232;
see also ECF No. 276-4, PageID.17336.) Indeed, at the hearing, they pointed out that
another asserted patent, the ’949 patent, had claim language like the ’733 patent’s
except that the ’949 patent did not use the phrase “at least.” (ECF No. 276-2,
PageID.17232.) The NHK Companies then argued that in contrast to the ’949 patent,
the ’733 patent included the term “at least,” which was “important” because “that
allows [the headrest arrangement] to have both a guide member and a follower.” (Id.)
In contrast, in their contentions, the NHK Companies did not make any argument
about the claim language using “at least.” (See ECF No. 226-1, PageID.7441–7449.)
Nor did they contrast the ’733 patent’s inclusion of those words against the ’949
patent’s omission of those words. (See id.)
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Putting all this together, the Court believes that there are some material
differences between the indefiniteness argument that the NHK Companies made in
their final invalidity contentions and the one they ultimately made at the summaryjudgment hearing. The Court has little doubt that if the NHK Companies were clear
in their contentions that they were not relying on Lear’s application of the claim
language, and that the language “on its face” (and in particular, the words “at least”)
permitted both the guide member and follower to be part of the headrest
arrangement, then Lear’s opening summary-judgment brief would have been quite
different. Indeed, because the NHK Companies’ invalidity contentions critiqued
Lear’s application of the claim language, Lear’s summary-judgment brief argued that
its application of the language was an infringement issue not an indefiniteness issue.
(ECF No. 238, PageID.11272.) Surely Lear’s argument would have been different had
the NHK Companies’ contentions instead presented the “physically impossible”
argument made at the summary-judgment hearing.
And two other considerations help justify forfeiture here.
First, although Lear objected to the Special Master’s report, the NHK
Companies have not responded. In its objections, Lear argued that the indefiniteness
argument the NHK Companies raised at the summary-judgment hearing “should be
dismissed as . . . untimely” and further asserted that “NHK’s indefiniteness defense
for claim 10 of the ‘733 patent, including its new argument, should be dismissed
entirely.” (ECF No. 276, PageID.17189, 17195.) And this Court’s order referring
matters to the Special Master states, “any responses to any objections are due 7 days
16
after the objections are filed.” (ECF No. 267, PageID.16710.) Yet the NHK Companies
filed no response; and the time to do so has long passed.
Second, it is not obvious that the NHK Companies’ indefiniteness argument
would prevail at trial. If it were obvious that Claim 10 (and thus Claim 15) is
indefinite because of the alleged “physical[] impossibil[ity],” then it might be too
harsh to enforce forfeiture. See Blanchet v. Charter Commc’ns, LLC, 27 F.4th 1221,
1228 (6th Cir. 2022) (“[C]ourts have discretion to consider forfeited arguments in
‘exceptional cases’ or when application of the rule would produce a ‘plain miscarriage
of justice.’”). But to prevail at trial, the NHK Companies would have to carry the
considerable burden of proving indefiniteness by clear and convincing evidence.
BASF Corp. v. Johnson Matthey Inc., 875 F.3d 1360, 1365 (Fed. Cir. 2017).
Additionally, Lear has a plausible argument why the claim language is not indefinite.
Lear explains that the phrase “at least” allows the claimed invention to have at least
one, but possibly two or more, pairs of guide members and followers, not that both
complementary pieces are part of the headrest arrangement. (ECF No. 276,
PageID.17198–17199.) While the Court does not conclude that Claim 10 is not
indefinite, it suffices to say that once a clear-and-convincing standard is factored in,
it is not obvious that the NHK Companies’ “physically impossible” argument would
prevail. So it is not unduly harsh to find the argument forfeited.
In sum, the Court finds that the NHK Companies did not timely raise their
argument that Claim 10 of the ’733 patent is indefinite because the claim language
17
allows both the guide member and follower to be part of the headrest arrangement
yet requires the seatback to have one of those two complementary pieces. (ECF No.
276-2, PageID.17232.) Further, the NHK Companies withdrew their argument that
Claim 10 is indefinite based on Lear’s application of the claim language to the accused
products. (Id.) And between their summary-judgment response brief and the hearing,
the NHK Companies made no other arguments that Claim 10 is indefinite. Further,
the NHK Companies have not responded to Lear’s objection, which states, “NHK’s
new argument should be dismissed as being untimely and summary judgment should
be granted.” (ECF No. 276, PageID.17189 (emphasis added).) Accordingly, the Court
GRANTS Lear summary judgment on the NHK Companies’ affirmative defense that
Claim 10 of the ’733 patent is indefinite.
As noted at the outset, the parties’ other objections to the Special Master’s
report and recommendation do not ask this Court to review specific findings by the
Special Master, but instead preserve their arguments for appeal in the event that
this Court adopts the Special Master’s report and recommendation as its opinion and
order. (See ECF No. 275, PageID.16985; ECF No. 276, PageID.17188.) Accordingly,
the Court ADOPTS the Special Master’s report and recommendation. Thus, the Court
(1) DENIES the NHK Companies’ motion to compel the deposition of Frank
Angileri (ECF No. 178);
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(2) DENIES Lear’s motion for claim construction (ECF No. 235)1 insofar as
Lear sought a construction of original claim 2 of U.S. Patent No. 5,378,043
to allow for an impact target separate from the headrest; instead,
consistent with the Special Master’s report, original claim 1 (and thus
original claim 2) of the ’043 patent is construed “as having a headrest which
includes a cushion portion and an impact target, such that the impact
target is part of the headrest”; “[t]hat construction precludes the headrest
and the impact target from being separate elements, i.e., the impact target
not being part of the headrest”;
(3) GRANTS IN PART and DENIES IN PART Lear’s motion for summary
judgment on technology issues (ECF No. 238) as follows:
a. Lear is DENIED summary judgment on the NHK Companies’
enablement defense against the ’949 and ’733 patents,
b. because claim 2 of the ’043 patent was broadened during
reexamination, Lear is DENIED summary judgment on the NHK
Companies’ § 305 invalidity defense against the ’043 patent,
c. Lear is DENIED summary judgment on the NHK Companies’
defense that prior art anticipates or renders obvious the ’357 patent,
and
The Court recognizes that the Special Master recommended granting Lear’s
claim-construction motion, but that was apparently only to the extent that Lear asked
for the claim to be construed; although the Special Master did construe the claim, he
did not adopt Lear’s proposed construction; so the Court believes that the motion is
more properly denied than granted.
1
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d. Lear is GRANTED summary judgment on the NHK Companies’
defense of inequitable conduct against the ’043 patent.
The Court further notes that the NHK Companies have withdrawn their
defenses that the asserted claims of the ’949, ’357, and ’818 patents are indefinite.
(ECF No. 276-2, PageID.17232; ECF No. 276-5, PageID.17338.)
SO ORDERED.
Dated: August 3, 2022
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
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