Exmark Manufacturing Company Inc. v. Briggs & Stratton Power Product Group

Filing 566

ORDER - IT IS ORDERED that the defendant's motion for reconsideration (Filing No. 534 ) is denied. Ordered by Senior Judge Joseph F. Bataillon. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EXMARK MANUFACTURING COMPANY
INC.,
8:10CV187
Plaintiff,
v.

ORDER

BRIGGS & STRATTON POWER
PRODUCTS GROUP, LLC,
Defendant.

This matter is before the court on a motion for reconsideration filed by defendant
Briggs & Stratton Power Products, LLC, (hereinafter, "Briggs"), Filing No. 537. This is a
patent infringement action that is set for trial on September 8, 2015. Briggs seeks
reconsideration of this court's denial, of its motion for summary judgment seeking a
declaration that the asserted claims of U.S. Patent No. 5,987,863 (“the ‘863 patent”) are
invalid due to indefiniteness, in light of the Federal Circuit's opinion in Dow Chem. Co. v.
Nova Chems. Corp., Nos. 2014-1431, 2014-1462, 2015 WL 5060947 (Fed. Cir. Aug. 28,
2015).

See Filing No. 476, Memorandum and Order.

In Dow, the Federal Circuit

clarified that the Supreme Court's decision in Nautilus, Inc. v. Biosig Instruments, Inc.,
—- U.S. ——, 134 S. Ct. 2120 (2014), "changed the law of indefiniteness." Dow, 2015
WL 5060947 at *6. The Federal Circuit explained that the new standard is “[c]ontrary to
[its] earlier approach,” and that the new standard requires that "[t]he claims, when read
in light of the specification and the prosecution history, must provide objective
boundaries for those of skill in the art."

Id.

Briggs contends that such objective

boundaries are not established with respect to whether a baffle has an “elongated and
substantially straight portion” or whether the baffle ends at a location “adjacent” (which

has been construed to mean “near”) the side wall. Further, it challenges the Court's
findings that “there are objective criteria to measure the effect of a flow control baffle,”
and the finding that “[o]ne skilled in the art would understand the limitations to call for a
baffle that efficiently controls the flow of the air and clippings,” Id. at 27.
Briggs argues that The Dow Chemical opinion effectively repudiates Exmark's
argument at the hearing/oral argument on the parties' motions for summary judgment
that Nautilus had not changed the law of indefiniteness. Contrary to Briggs's assertion,
the court did not adopt that argument. The court cited the standard announced in
Nautilus and stated "[w]hatever the distinction between the 'reasonable certainty'
standard announced in Nautilus II, and the former standard that required that language
be 'not insolubly ambiguous,' the court finds the terms at issue herein are not indefinite."
Filing No. 476, Memorandum and Order at 25.
The court's findings on indefiniteness referred to four claim terms1 and were
based on the specifications, prosecution history and testimony of persons skilled in the
art in the context of all of the claims of the patent. The gravamen of the Dow case is
that "the patent and prosecution history must disclose a single known approach or
establish that, where multiple known approaches exist, a person having ordinary skill in
the art would know which approach to select." Dow, 2015 WL 5060947, *6 (emphasis
added); see Teva, 789 F.3d at 1341, 1344–45 (holding a claim indefinite where
molecular weight could be measured three different ways and would yield different

1

Those were: "elongated and substantially straight baffle portion," "substantially continuously”
"adjacent the interior surface” and "a first flow control baffle positioned in said mower deck which extends
downwardly from the interior surface of said top wall between said cutting blades and said front wall.”
See id. at 25-26.

2

results and the patent and prosecution history did not provide guidance as to which
measure to use). Different approaches to measurement that yield different results are
not at issue in this case. The court has considered the Dow opinion and finds it does
not affect the court's findings with respect to indefiniteness. Accordingly,
IT IS ORDERED that the defendant's motion for reconsideration (Filing No. 534)
is denied.
Dated this 4th day of September, 2015.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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