Better Bags, Inc. v. Illinois Tool Works Inc.
Filing
74
MEMORANDUM OPINION AND ORDER denying without prejudice 58 MOTION for Sanctions, granting in part and denying in part 60 MOTION to Strike 56 Designation of Expert Witness List, Exhibit A (Report of Rafael Alvarado on Invalidity) MOTION to Strike 56 Designation of Expert Witness List, Exhibit A (Report of Rafael Alvarado on Invalidity), granting 61 MOTION for Summary Judgment of Patent Infringement, vacating 63 Order Granting Motion to Stay the Scheduling Order (Agreed Proposed Scheduling Order due by 4/23/2013) (Signed by Judge Sim Lake) Parties notified. (aboyd)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BETTER BAGS, INC.,
§
5
Plaintiffs,
§
§
§
§
v.
CIVIL ACTION NO. H-11-1516
5
ILLINOIS TOOL WORKS, INC.,
FANTAPAK INTERNATIONAL CORP.,
INTEPLAST GROUP, LTD.,
§
§
§
§
Defendants.
MEMORANDUM OPINION AND ORDER
This action was filed on March 20, 2011, by plaintiff/counterdefendant Better Bags, Inc. ("BBI"), against defendants/counterplaintiffs
Illinois
International
Corp.
Tool
Works,
("Fantapak"),
Inc.
and
("ITW"),
Inteplast
Fantapak
Group,
Ltd.
("Inteplast") for declaratory judgment of non-infringement and
invalidity of U.S. Patent No. 7,134,788, entitled "Resealable Bag
with Top Tear-Away Header and Zipper and Method of Manufacturing
the Same" ("the '788 Patent").'
Subsequently, defendants/counter-
plaintiffs
filed
ITW
and
Fantapak
counterclaims
of
patent
infringement against BBI asserting that BBI infringes the '788
Patentfs Claims 1, 3, 6, 8, 9, 10, 11, 12, and 13.'
Pending before
'complaint, Docket Entry No. 1.
' ~ e e Defendant Illinois Tool Works Inc.'s
Answer and
Counterclaim for Patent Infringement, Docket Entry No. 13; Counter
Plaintiffs Illinois Tool Works Inc.'s and Fantapak International
Corp.'s First Amended Counterclaim for Patent Infringement, Docket
(continued.. . )
the
court are
Fantapakfs Motion
for
Sanctions
(Docket Entry
No. 58), Fantapak's and Inteplast's Motion to Strike Better Bags,
Inc.'s
Expert
Invalidity
Report,
to
Strike
its
Invalidity
Contentions, and Exclude All Alleged Evidence and Testimony Based
on Undisclosed Invalidity Contentions (Docket Entry No. 60), and
Fantapak and Inteplastfs Motion for Summary Judgment of Patent
Infringement with Incorporated Memorandum of Law ("Fantapak and
Inteplastfs Motion for Summary Judgment") (Docket Entry No. 61).
For the reasons stated below, the motion for summary judgment will
be granted, the motion to strike and exclude will be granted in
part and denied in part, and the motion for sanctions will be
denied without prejudice to being reurged at trial.
I.
Backaround
BBI filed this action on March 20, 2011, seeking declaratory
judgment of non-infringement and invalidity of the '788 Patent.
Defendants ITW and Fantapak filed counterclaims asserting that BBI
infringes the '788 Patentfs Claims 1, 3, 6, 8, 9, 10, 11, 12, and
13. On October 15, 2012, Fantapak and Inteplast filed their motion
for sanctions (Docket Entry No. 58), and their motion to strike
BBIfs invalidity contentions and expert invalidity report, and to
exclude all evidence and testimony based on undisclosed invalidity
2
(
. . . continued)
Entry No. 23; and Counter Plaintiffs Illinois Tool Works Inc.,
Fantapak International Corp., and Inteplast Group, Ltd.'s Second
Amended Counterclaim for Patent Infringement ("Second Amended
Counterclaim"), Docket Entry No. 54.
contentions (Docket Entry No. 60).
On October 18, 2012, Fantapak
and Inteplast filed their motion for summary judgment on their
counterclaims for infringement of the '788 Patent (Docket Entry
No. 61) . On October 19, 2012, the parties filed their Joint Motion
to Stay the Scheduling Control Order (Doc. No. 20) (Docket Entry
No. 62). On October 22, 2012, the court entered an Order Granting
Joint Motion to Stay the Scheduling Control Order [Doc. No. 201
(Docket Entry No. 63) pursuant to which BBI was to file responsive
briefs to the pending motions by November 8, 2012, Fantapak and
Inteplast were to file reply briefs by November 19, 2012, the close
of discovery was set for 90 days after the court issues orders on
all the pending Fantapak and Inteplast motions, and the litigation
was stayed pending the court's disposition of all the Fantapak and
Inteplast motions. Although on November 8, 2012, BBI timely filed
responses to both the motion for sanctions (Docket Entry No. 64)
and the motion to strike and exclude (Docket Entry No. 65), BBI has
still not responded to the motion for summary judgment even though
more than five months have passed since October 18, 2012, when
Fantapak and Inteplast filed their motion for summary judgment, and
over four months have passed since November 8, 2012, the date by
which BBI was to have responded to that motion.
11.
Motion for Summarv Judgment
Fantapak and Inteplast argue that they are entitled to summary
judgment on their infringement claims because "BBI has admitted
-3-
that based on the plain and ordinary meaning of the claim terms,
'the elements of the asserted claims are literally present in the
bags being accused of
A.
Standard of Review
"Summary judgment is appropriate when there are no genuine
issues of material
fact and the moving party is entitled to
judgment as a matter of law." Svntex (U.S.A.) LLC v. Apotex, Inc.,
407 F.3d 1371, 1377 (Fed. Cir. 2005) (citing Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobbv, Inc., 106 S.Ct. 2505, 2509-2510 (1986))
.
"A genuine dispute is shown to exist if sufficient evidence is
presented such that a reasonable fact finder could decide the
question in favor of the non-moving party."
Oprvland USA Inc. v.
Great American Music Show, Inc., 970 F.2d 847, 850
1992).
(Fed. Cir.
"While the non-moving party is not required to present its
entire case in response to a motion for summary judgment, to defeat
the motion the non-movant must present sufficient evidence to show
an evidentiary conflict as to the material fact in dispute.
with due consideration to the evidentiary burdens."
. .
- "Summary
Id.
judgment may properly be granted on questions of fact when no
reasonable jury could reach a contrary verdict, even after drawing
all reasonable factual inferences in favor of the non-movant."
3~antapak
and Inteplastrs Motion for Summary Judgment, Docket
Entry No. 61, p. 1.
Hoffer v. Microsoft Corp., 405 F.3d 1326, 1328 (Fed. Cir. 2005),
cert. denied, 126 S.Ct. 1037 (2006).
On October 18, 2012, Fantapak and Inteplast filed the motion
seeking summary judgment on their counterclaims for infringement of
BBI has not responded to
the '788 Patent (Docket Entry No. 61).
the pending motion for summary judgment.
Local Rule 7.3 provides
that "[olpposed motions will be submitted to the judge twenty-one
days
from
filing without
appearance by counsel."
notice
from the
clerk and
S.D.Tex.R. 7.3 (2000).
without
Local Rule 7.4
provides :
Failure to respond will be taken as a representation of
no opposition. Responses to motions
A.
Must be filed by the submission day;
B.
Must be written;
C.
Must include or be accompanied by authority; and
D.
Must be accompanied by a
denying the relief sought.
separate
form
order
Although a district court may not grant summary judgment by
default simply because there is no opposition to the motion, the
court may accept as undisputed the movantfs version of the facts
and grant a motion for summary judgment when the movant has made a
prima facie showing of entitlement to summary judgment.
See John
v. State of Louisiana (Board of Trustees for State Colleqes and
Universities), 757 F.2d 698, 708 (5th Cir. 1985) (when the movantfs
-5-
evidence establishes its right to judgment as a matter of law, the
district court is entitled to grant summary judgment absent unusual
circumstances) ; and Everslev v. MBank Dallas, 843 F.2d 172, 173-174
(5th Cir. 1988) (when the nonmovant fails to respond to a motion
for summary judgment, the court does not err by granting the motion
when
the movantf s
submittals make
a prima
facie
entitlement to judgment as a matter of law).
showing of
Therefore, in
accordance with Local Rule 7.4, the court will take BBIfs failure
to respond to the pending motion
for summary judgment as a
representation of no opposition to the legal and factual assertions
made in the motion.
B.
See id.
Motion for Summary Judgment
Fantapak and Inteplast argue that they are entitled to summary
judgment on their infringement claims because
BBI has admitted that the accused bags contain all of the
elements of the asserted claims, in both its answer to
Fantapak' s Interrogatory No. 1 (attached Ex. B) and in
BBIrs responses to Fantapak' s First Request for Admission
Nos. 1 - 51 (attached Ex. C) . Moreover, BBI did not
provide a rebuttal expert report to the infringement
expert report of Victor Matias (Fantapak's technical
expert) . 4
"A determination of patent infringement consists of two steps:
(1) the court must first interpret the claim, and (2) it must then
compare the properly construed claims to the allegedly infringing
device."
4&
Svntex, 407 F.3d at 1377
at n.1.
(citing Cvbor Corp. v. FAS
Techs., Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998) (en banc)).
On
April 17, 2012, the parties filed a Joint Claim Construction Chart
Pursuant to Local Patent Rule 4-5(d) for U.S. Patent No. 7,134,788
(Docket Entry No. 40) in which they agreed that the claim terms and
phrases should be given their plain and ordinary meaning and,
therefore, that no construction of any of the claim terms was
necessary. Because the parties have agreed that the claims require
no construction, the court's only task is to compare the claims to
the allegedly infringing bags.
On March 28, 2012, BBI provided responses to Fantapak's First
Set of Requests for Admissionf5 wherein BBI admitted that its
accused infringing bags include all of the characteristic features
of the limitations asserted in Claims 1, 3, 6, 8, 9, 10, 11, 12,
and 13 of the '788 Patent.6 Fantapak and Inteplast summarized the
characteristic features of these claim limitations and BBIfs
admissions thereto in the chart copied below:7
5~laintif s Responses to Illinois Tool Works Inc.' s and
ff
Fantapak International Corp. 's First Requests for Admission,
Exhibit C to Fantapak and Inteplastfs Motion for Summary Judgment,
Docket Entry No. 61.
Patent No. 7,134,788, Exhibit A to Fantapak and
Inteplast's Motion for Summary Judgment, Docket Entry No. 61,
columns 7-8.
7~antapak
and Inteplastfs Motion for Summary Judgment, Docket
Entry No. 61, pp. 7-9 (citing U.S. Patent No. 7,134,788 columns 78, and Plaintiff's Responses to Illinois Tool Works Inc.'s and
Fantapak International Corp.'s First Requests for Admission,
Responses 12-51, Exhibits A and C, respectively, to Fantapak and
Inteplast's Motion for Summary Judgment, Docket Entry No. 61).
'788 Patent Claims
1
A resealable plastic bag, comprising:
BBI' s Admissions
- Response to
YES
RFA #12
a substantially planar shaped body exhibiting
first and second opposing and foldable panels,
sealing connected along a pair of sides and,
YES - Responses to
RFA #13, #14
- Response to
YES
RFA #15
in cooperation with a common bottom edge
interconnecting said sides, forming an interior
receptacle volume;
YES - Responses to
a pair of sealable bead portions, integrally
formed into said planar shaped body and extending
between said sides of said body;
YES
an integrally formed header extending from a
selected one of said bead portions;
YES - Responses to
RFA #16, #17
- Responses to
RFA #18, #19
RFA #20, #21
- Responses to
RFA #22, #23, #24
a slider attachable to said bag, proximate a
conjoining location associated with said bead
portions and a removed portion of said header,
permitting installation of said slider to contain
said re-sealable bead portions there between;
YES
and a perforation line being established along
said header, in close proximity and above said
selected bead portion, in order to facilitate
tear-away removal of said planar shaped body from
said header substantially along said bead
portion.
YES - Responses to
3
The resealable plastic bag according to claim 1,
further comprising at least one aperture formed
through said header and for mounting said header
and bag in suspending fashion;
YES
6
The resealable plastic bag according to claim 1,
said body having a specified shape and size,
further comprising said slider being traversable
across said bead portions and concurrently
sectioning said body from said header along said
perforation;
YES - Responses to
The resealable plastic bag according to claim 1,
further comprising a portion of said header being
detached from said body across said perforation
line, in order to facilitate installation of said
slider.
YES - Responses to
A sealable plastic bag comprising: a planar
shaped body having first and second panels
connected along opposite sides and a bottom to
define an interior volume;
YES - Responses to
8
9
a pair of engageable bead portions formed along
opposing inner facing surfaces of said panels
between said sides;
RFA #25, #26, #27
- Responses to
RFA #28, #29
FRA #30, #31
FRA #32, #33
RFA #34, #35, #36
YES
- Responses to
RFA #37, #38
'788 P a t e n t C l a i m s
BBI' s Admissions
a header extending from a selected one of said
bead portions in a direction opposite a selected
body defining panel,
a perforation line extending within said header
in parallel extending and approximate location to
said selected bead portion;
11
12
13
YES - Responses to
and a slider attachable to said bag proximate a
conjoining edge location associated with said
bead portions and a removed edge portion of said
header permitting installation of said slider,
separation of said bead portions permitting top
loading of product within said interior volume of
said body, prior to tear-away removal of said
planar shaped body from said header along said
bead portions.
10
YES - Response to
YES - Responses to
RFA # 4 2 , #43, #45,
#46
The plastic bag as described in claim 9, further
comprising traversing displacement of said slider
along said bead portions sealing together said
opposing bead portions concurrent with tear-away
removal from said header portion.
YES - Responses to
The plastic bag as described in claim 9, further
comprising at least one aperture formed through
said header for mounting said header and body in
suspending fashion.
YES
The plastic bag as described in claim 9, further
comprising a heat stapling process for securing
together a plurality of headers associated with a
like plurality of bodies.
YES
A sealable plastic bag comprising: a planar
shaped body having first and second panels
connected along opposite sides and a bottom to
define an interior volume; a pair of engageable
bead portions formed along opposing inner facing
surfaces of said panels between said sides; a
header extending from a selected one of said bead
portions in a direction opposite a selected body
defining panel, a perforation line extending
within said header in parallel extending and
approximate location to said selected bead
portion; and a slider attachable to said bag
proximate a conjoining location associated with
said bead portions, anywhere between said
opposite sides at which said header is detached
from said perforation line to permit installation
of said slider, separation of said bead portions
permitting top loading of product within said
interior volume of said body, prior to tear-away
removal of said planar shaped body from said
header along said bead portions.
YES - Response to
RFA #51
RFA #39
RFA #40, #41
RFA #47, #48
- Response to
RFA #49
- Response to
RFA #50
On April 10, 2012, BBI submitted responses to interrogatories.
Interrogatory No.
asked BBI
state the factual basis for
claims of non-infringement. In response, BBI admitted that all the
elements of asserted Claims 1, 3, 6, 8, 9, 10, 11, 12, and 13 of
the '788 Patent are literally present in the accused bags.'
In
pertinent part BBI expressly stated that
Better Bags, Inc. responds that based on the information
available to it as of the date of this response and
assuming that all elements of the claims have plain and
ordinary meaning, the elements of the asserted claims are
literally present in the bags being accused of
infringement.
Defendants/counter-plaintiffs also argue that on August 17,
2012, Fantapak served on BBI the infringement expert report of
Victor
Matias,
wherein
Mr.
Matias
opined
that
the
accused
infringing BBI bags infringe the '788 Patentfs Asserted Claims,lo
that rebuttal expert reports were due on September 14, 2012,11 but
that BBI has not rebutted Mr. Matiasfs report.l2
g~laintiff's First Amended Responses to Illinois Tool Works
Inc.'s
and Fantapak International Corp.'s
First Set of
Interrogatories to Better Bags, Inc., Exhibit B to Fantapak and
Inteplast's Motion for Summary Judgment, Docket Entry No. 61, p. 2.
losee Declaration of Dwayne Mason in Support of Fantapak and
Inteplast's Motion for Summary Judgment of Patent Infringement
("Mason Declaration"), attached to Fantapak and Inteplastfs Motion
for Summary Judgment, Docket Entry No. 61, ¶ 4.
Patent Case
¶
-
Scheduling Order, Docket Entry No. 20,
21.
12&
Mason Declaration, attached to Fantapak and Inteplastfs
Motion for Summary Judgment, Docket Entry No. 61, ¶ 5.
In light
of
the
summary judgment evidence
submitted by
defendants/counter-plaintiffs showing that BBI has responded to
their requests for admission and interrogatories by acknowledging
that the accused bags include all of the characteristic features of
the limitations of asserted Claims 1, 3, 6, 8, 9, 10, 11, 12, and
13 of the '788 Patent, no reasonable fact-finder could decide the
question of infringement in favor of BBI.
F.2d at 850.
Oprvland USA, 970
Accordingly, the court concludes that the summary
judgment evidence establishes that there is no genuine issue of
material fact for trial and that defendants/counter-plaintiffs are
entitled to summary judgment on their claims that the accused bags
infringe Claims 1, 3, 6, 8, 9, 10, 11, 12, and 13 of the '788
Patent.
Thus, the motion for summary judgment will be granted.
111.
Asserting that BBI's
Motion to Strike
invalidity contentions fail to comply
with Local Patent Rule 3-3, Fantapak and Inteplast seek an order
striking
BBI's
invalidity
contentions
and
export
report
and
excluding BBI's invalidity defenses.
A.
Applicable Deadlines, Patent Rules, and Standard of Review
On September 23, 2011, the court issued a Patent Case -
Scheduling Order requiring each party to comply with P.R. 3-3 and
P.R.
3-4
by
serving
"preliminary
invalidity
contentions"
by
November 18, 2011,13 and setting July 27, 2012, as the "[dleadline
13patent Case - Scheduling Order, Docket Entry No. 20,
-11-
¶
2.
for
final
invalidity
contentions
and
to
amend
pleadings
on
invalidity claims."14 The court's order expressly stated: "Except
as provided in P.R. 3-6, if the amendment would affect preliminary
or final invalidity contentions, a motion must be made under
P.R. 3-7 irrespective of whether the amendment is made before this
deadline."Ic
Patent Rule 3-3 provides in relevant part that the Preliminary
Invalidity Contentions must contain the following information:
(a) the identity of each item of prior art that
allegedly anticipates each asserted claim or
renders it obvious, including:
(1) each prior art patent identified by its
number, country of origin, and date of issue;
(2) each prior art publication identified by its
title, date of publication, and author and
publisher when feasible;
(3) prior art under 35 U.S.C. § 102(b) identified
by the item offered for sale or publicly used
or known; the date the offer or use took place
or the information became known; and the
identity of the person or entity that made the
use or that made and received the offer, or
the person or entity that made the information
known or to whom it was made known;16
(4) prior art under 35 U.S.C. § 102(f) identified
by the name of the person (s) from whom and the
16pursuant to 35 U.S.C. 5 102(b), a person is not entitled to
a patent if the invention was "in public use or on sale in [the
United States] more than one year prior to the date of the
application for the patent in the United States."
circumstances under which the invention or any
part of it was derived;17 and
(5) prior art under 35 U.S.C. § 102(g) identified
by the identities of the person(s) or entities
involved in and the circumstances surrounding
the making of the invention prior to the
patent applicant (s);I8
(b) whether each item of prior art anticipates each
asserted claim or renders it obvious and, if the
latter, the detailed bases for these contentions;
(c) a chart identifying where specifically in each
alleged item of prior art each element of each
asserted claim is found . . .
(d) any other invalidity grounds including, but not
limited to indefiniteness under 35 U.S.C. § 112,
¶ 2, or lack of enablement or written description
under 35 U.S.C. § 112, ¶ 1, of any of the asserted
claims, including the detailed basis for these
contentions.
Rules of Practice for Patent Cases in the Southern District of
Texas
(Effective January 1, 2008), Rule 3-3.
Patent Rule 3-4
requires parties opposing claims of patent infringement to
produce or make available for inspection and copying:
(a) documents and information sufficient to show the
operation of any aspects or elements of an Accused
Instrumentality identified by the patent claimant
in its P.R. 3-1 (c) chart ( e . g . source code,
specifications, schematics, flow charts, artwork,
or formulas);
17pursuant to 35 U.S.C. § 102(f), a person is not entitled to
a patent if he did not invent the subject matter he seeks to
patent.
'*pursuant to 35 U.S.C. 5 102(g), a person is not entitled to
a patent even if he is the inventor if another person conceived of
and reduced the invention to practice before the applicant.
(b) a copy of each item of prior art identified under
P.R. 3-3 (a) that does not appear in the file
history of the patent (s) at issue; and
(c) documents and information, including summaries when
reasonably available, sufficient to show the amount
sold, revenues, costs, and profits of each Accused
Instrumentality identified under P.R. 3-l(b) since
the issuance of the patents-in-suit.
I . Rule 3-4.
d,
Under limited circumstances, a party may file
"Final Invalidity Contentions."
I . Rule 3-6. Otherwise, changes
d,
the preliminary contentions are permitted
court order "only
if the presiding judge finds there is good cause for the requested
changes."
Id
I .
Rule 3-7.
Federal Circuit authority governs rules and deadlines such as
those relating to invalidity contentions that are "intimately
involved in the substance of enforcement of the patent right." 02
Micro International Ltd. v. Monolithic Power Systems, Inc., 467
F.3d 1355, 1364 (Fed. Cir. 2006).
"The burden is on the [party
seeking to amend its contentions] to establish diligence rather
than on the opposing party to establish a lack of diligence."
at 1366.
Id.
The deadline for BBI to file its Final Invalidity
Contentions was July 27, 2012.19 " [Tlhe exclusion of evidence is
often
appropriate sanction for the failure
deadlines."
I . at 1369.
d
comply with such
This is particularly true where the
undisclosed information is significant, and the party failing to
make the timely disclosure lacked diligence.
I . (citing SanDisk
d
Igpatent Case - Scheduling Order, Docket Entry No. 20,
-14-
¶
18.
Corp. v. Memorex Products, Inc., 415 F.3d 1278, 1292 (Fed. Cir.
2005) (finding no abuse of discretion in exclusion of evidence
pertaining to theories of claim construction and infringement not
disclosed as required by the local patent rules and the court's
scheduling order)).
B.
Analysis
1.
Backsround
BBI
served
its
Preliminary
Invalidity
defendants/counter-plaintiffs on November
contentions,
BBI
listed
five
(5) U.S.
Contentions
18, 2011.20
Patents
as
to
In its
allegedly
anticipating prior art references, and an allegedly invalidating
sale of prior art by Nantong Yongyu Plastics Co., Ltd. to Inno-Pack
("Inno-Pak Bags") .21
BBI stated that:
Prior art bags identical to the bags being sold by Better
Bags, Inc. and being accused of infringing U.S. Patent
No. 7,134,788 were sold and known in the United States of
America more than a year before the application for the
subject patent was filed. More particularly, as stated
in the Affidavit of Liu Dexin which was produced as part
of the initial disclosure, Nantong Yongyu Plastics Co.,
Ltd. manufactured for and shipped to Inno-Pak, Inc., in
or before 2001, the prior art bags. Those bags were then
sold by Inno-Pak, Inc. in the United States of America to
Giant Eagle.
Those sales render the subject patent
invalid.
Those bags are referred to herein as the
20~laintiff's
Preliminary Invalidity Contentions with Respect
to United States Patent No. 7,134,788, Exhibit 1 to Fantapak and
Inteplast's Motion to Strike and Exclude, Docket Entry No. 60.
*lid. at 1 (citing U.S. Patent Numbers: 5,682,730 issued
November 4, 1997; 6,306,071 issued October 23, 2001; 6,364,530
issued April 2, 2002; 6,287,000 issued September 11, 2001; and
5,788,080 issued August 4, 1998).
Inno-Pak Bags.
Photographs of the Inno-Pak Bags are
attached. Further, defendant inspected the Inno-Pack
Bags on October 18, 2011 and took samples which are now
in its possession. Better Bags, Inc. also has packing
slips and invoices establishing the sale of Inno-Pak Bags
in 2001.22
BBI also stated that "[tlhe Inno-Pak Bags anticipate every claim
a~serted."'~ On the chart identifying where specifically in each
alleged item of prior art each element of each asserted claim is
found, BBI responded only "Inno-Pack Bags. "24
On April 10, 2012, in its response to Fantapakfs Interrogatory
No. 2 on invalidity, BBI stated:
The patent is unenforceable because applicant failed
to disclose a relevant prior art, namely, U.S. Patent
No. 5,788,080 to Sill et al.
The pertinent claims of the patent are invalid for
the reasons stated in Sections (a), (b) and (c) in
PLAINTIFF'S PRELIMINARY INVALIDITY CONTENTIONS served on
November 18, 2011 and documents referred to therein and
accompanying the same.
Plaintiff incorporates herein
those sections and makes them part hereof.
Further, Plaintiff asserts obviousness based on U.S.
Patent No. 5,788,080 to Sill et al. ("Sill '080") in view
of U.S. Patent Number 6,536,951 to Sill ("Sill '951") or
in view of the "bottom load" zipper bags known and sold
in the United States since at least 2000. It would be
obvious to lower perforations 30 of "Sill '080, take
zipper 44 of Sill '951 and place it to slide over
"zipper" 22 while tearing away at perforations 30.25
25~laintifffs
First Amended Responses to Illinois Tool Works
Inc.'s
and Fantapak's
International Corp.'s
First Set of
(continued. . . )
Even
though BBI
did
not mention
obviousness
or
U.S.
Patent
No. 6,536,951 to Sill in its Preliminary Invalidity Contentions
served to defendants/counter-plaintiffs on November 18, 2011r26
BBI
neither moved to amend nor amended its invalidity contentions to
include obviousness and/or U.S. Patent No. 6,536,951 to Sill by
July 27, 2012, the deadline for submitting "final invalidity
contentions
and
amend
pleadings
on
invalidity
claims."27
Nevertheless, on August 17, 2012, BBI filed its Designation of
Expert Witnesses (Docket Entry No. 56) identifying as an expert
witness, Rafael Alvarado, "who will testify on the validity of U.S.
Patent No.
7,134,788 and, more
obviousness.""
particularly, on
novelty
and
Attached thereto is the Expert Report of Rafael
Alvarado, BBIrs president, indicating that in addition to the five
U. S. Patents listed in BBI' s Preliminary Invalidity Contentions,
U.S. Patent 6,536,951 was considered in support of his conclusions
on novelty and obviousness.29
25
(.
. .continued)
Interrogatories to Better Bags, Inc., Exhibit B to Fantapak and
Inteplastrs Motion for Summary Judgment, Docket Entry No. 61, p. 3.
26~laintiffrs
Preliminary Invalidity Contentions with Respect
to United States Patent No. 7,134,788, Exhibit 1 to Fantapak and
Inteplastrs Motion to Strike and Exclude, Docket Entry No. 60.
27~atent
Case - Scheduling Order, Docket Entry No. 20,
¶
18.
28~etter
Bags, Inc.'s Designation of Expert Witnesses, Docket
Entry No. 56.
29~xpert
Report of Rafael Alvarado, Exhibit A to Better Baas,
Inc.'s Designation of Expert Witnesses, Docket Entry No. 56, p. 2
¶ 9.
2
.
2.
Invalidity Contentions Based on Prior Sale of Inno-Pak
Bass Will Not Be Stricken or Excluded
Defendants/counter-plaintiffs argue
that
BBI's
invalidity
contentions based on the alleged sale of Inno-Pak Bags referenced in
BBI's Preliminary Contentions of Invalidity should be stricken and
excluded because "instead of providing a 'detail[ed] basesf for its
obviousness contentions as required by P.R. 3-3, BBI only stated that
'the Inno-Pak Bags anticipate every claim asserted,' and BBIfs claim
chart only disclosed a mere reference to 'Inno-Pak Bags.'"30
BBI responds:
1.
Better Bags, Inc. ("BBI") served its Preliminary
Invalidity Contentions on November 18, 2011. A copy is
attached as Exhibit A.
The Preliminary Invalidity
Contentions make reference to Inno-Pak Bags. Those bags
are described and identified on page 2 of the Preliminary
Invalidity Contentions and pictures of the Inno-Pak Bags
were attached. Those pictures are attached hereto as
Exhibit B.
2.
In Section (c) of the Preliminary Invalidity
Contentions, BBI refers to those same bags but because of
a clerical error it refers to them as Inno-Pack Bags
instead of Inno-Pak.
Section (c) includes a chart
identifying where specifically in each alleged item of
prior art each element of each asserted claim is found.
The chart is used for anticipation and not novelty when
it refers to Inno-Pack Bags.
3.
Fantapak alleges that Section (c) does not comply
with the rule because the Inno-pack bags are not defined.
BBI respectfully disagrees.
Those bags are clearly
defined and identified in the pictures of Exhibit B.
Accordingly, Fantapak's motion to strike the invalidity
30~antapak
and Inteplast's Motion to Strike and Exclude, Docket
Entry No. 60, pp. 8-9. See also id. at 16.
contentions and Section (c) as to the use of the Inno-pak
bags for anticipation should be denied.31
The court is not persuaded that BBIfs invalidity contentions
based on the alleged prior art sale of Inno-Pak Bags referenced in
its Preliminary Contentions of Invalidity should be stricken and
excluded
disclosed
for failure to comply with
the
Inno-Pak
Bags
in
its
the
Patent Rules.
Preliminary
BBI
Invalidity
Contentions and asserted that the Inno-Pak Bags anticipated and
rendered obvious every element of every claim allegedly infringed.
Moreover, as defendants/counter-plaintiffs acknowledge, the affidavit of Dexin Liu that BBI referenced and incorporated into in its
Preliminary Invalidity Contentions stated that the "prior art bags
[were] identical to the bags sold by Better Bags, Inc. and being
accused of infringing U.S. Patent No. 7,134,788."32
In light of
these disclosures the court is not persuaded that BBI failed to
fulfill the requirement imposed by this Court's Patent Rule 3-3(c)
to disclose "where specifically in each alleged item of prior art
each element of each asserted claim is found."
court is not persuaded that BBI's
Accordingly, the
invalidity defense based on
alleged prior art sale of Inno-Pak Bags should be stricken and
excluded for failure to comply with the Patent Rules.
31~emorandum
in Response to Motion to Strike Better Bags,
Inc.'s Expert Invalidity Report, to Strike Its Invalidity
Contentions, and Exclude All Alleged Evidence and Testimony Based
on Undisclosed Invalidity Contentions ("BBI's Response to Motion to
Strike"), Docket Entry No. 65, pp. 1-2 ¶ ¶ 1-3.
3.
The Obviousness Contentions Contained in BBI's Expert
Report Will Be Stricken and Excluded
Asserting that BBI never attempted to supplement its invalidity
contentions before the July 27, 2012, deadline for doing so set by
the court' s Scheduling order,33 defendants/counter-plaintiffs move the
court to "enforce P.R. 3-3 and strike BBI's expert report as well as
any alleged evidence or testimony relating to undisclosed obviousness
combinations and undisclosed motivations for combining prior art
references.N34
In support of their motion to strike BBI's
expert
report, defendants/counter-plaintiffs argue that
the obviousness opinions expressed in the Alvarado expert
report are "based on references known to BBI at least
Preliminary
since November of 2011 - when BBI's
Invalidity Contentions was ~ u b m i t t e d ; " ~ ~
"BBI never disclosed 'the detail bases'
of the
obviousness combinations disclosed in its Expert
Invalidity Report as required by this Court's P.R. 3-1,
before the July 27, 2012 deadline set by this Court's
Scheduling Order;"36and
" [a]s a result of BBI's representations made in its
Preliminary Invalidity Contentions and BBI's failure to
amend the same to include obviousness combinations that
would later appear in BBI's Expert Invalidity Report for
the first time, Fantapak's discovery was exclusively
directed at investigating BBI's allegations of prior sale
to Inno-Pak Bags based on the Affidavit of Dexin L ~ u . " ~ ~
33~antapak
and Inteplast's Motion to Strike and Exclude, Docket
Entry No. 60, pp. 1-2.
In response BBI acknowledges that it
did not submit detailed analysis of its obviousness
contentions with its Preliminary Invalidity Contentions
because its obviousness analysis had not been fully
developed as of that time. The obviousness analysis was
developed later. BBI admits that its expert report on
obviousness is not supported by what was disclosed in the
Preliminary Invalidity contentions. However, BBI respectfully request that the expert report not be stricken.38
BBIfs admission that its expert report on obviousness is not
supported
by
the
disclosures
in
its
Preliminary
Invalidity
Contentions, and BBIfs failure either to rebut defendants/counterplaintiffsf contention that the obviousness opinions expressed in
the Alvarado expert report are "based on references known to BBI at
least since November of 2011"39 or to offer any explanation for why
BBI failed to disclose its obviousness contentions by the July 27,
2012, deadline for doing so leads the court to conclude that BBI
failed to act diligently either in developing and/or disclosing its
obviousness contentions. See 02 Micro International, 467 F.3d at
1366 (recognizing that "[tlhe burden is on the [party seeking to
amend its contentions] to establish diligence"). Accordingly, the
court
concludes
that
defendants/counter-plaintiffs'
motion
to
strike and exclude BBIfs expert report should be granted because
without
explanation
or
leave of
court, that
report contains
obviousness contentions that are inconsistent with the Preliminary
Invalidity Contentions originally produced on November 18, 2011.
3
¶
8
~
s ~Response to Motion to Strike, Docket Entry No. 65, p. 2
~
f
4.
39~antapak
and Inteplastfs Motion to Strike and Exclude, Docket
Entry No. 60, p. 5 ¶ 10.
Motion for Sanctions
Asserting that BBI knew that its prior-sale invalidity defense
was false and misleading because there was no invalidating prior
sale of plastic bags to Inno-Pak, and that BBI and Dexin Liu knew
that the statements in Liu's affidavit were fabricated and false,
Fantapak
asks
the
court
to
strike the
Liu
affidavit as
an
uncorroborated affidavit of an interested party, exclude evidence
of BBI's
prior-sale
invalidity defense,
and
impose monetary
sanctions on BBI and Liu in the form of the attorneyfs fees and
costs that Fantapak has incurred defending this lawsuit.40
In
support of its motion for sanctions, Fantapak argues that it was
required to engage in "activities [that] included such things as
taking the deposition of Dexin Liu, opposing BBI and partnersf
meritless
discovery
motions,
and
repeatedly
requesting
the
"Fantapak therefore
production of documents and i n f ~ r m a t i o n . " ~ ~
respectfully requests that this Court award Fantapak monetary
sanction in an amount of at least its costs and attorney fees
unnecessarily incurred in connection with defending against BBI's
on-sale bar defense and the Liu ~ f f i d a v i t . " ~Fantapak expressly
~
asks the court to
(1) dismiss BBI's 35 U.S.C.
with prejudice;
§
102 (b) on-sale bar defense
40~antapak's
Motion for Sanctions, Docket Entry No. 58, pp. 3,
12-13, 15, and 19.
411d. 3-4.
at
4
2
at ~ 4.
(2) strike the Liu Affidavit and exclude any related
documents and information related to BBI's on-sale bar
defense;
(3) award Fantapak its attorney's fees, costs and
expenses associated with all matters arising out of or
otherwise related to the Liu Affidavit as well as the
related discovery and motions;
(4) hold that Dexin Liu committed perjury during his
deposition;
(5) hold that Dexin Liu and his Nantong companies are in
contempt of Court for failure to comply with the Court's
Order; and
(6) grant any other relief the Court deems a p p r ~ p r i a t e . ~ ~
In support of its motion for sanctions Fantapak contends that
[tlhis case was initiated by BBI as part of a conspiracy
to invalidate the '788 Patent through the use of a false
affidavit and false testimony. . . Well before BBI
initiated this Litigation, BBI and its sydicates, Raphael
Alvarado ("Alvarado"), Dexin Liu, Nantong Yongyu and
Nantong Chanrong Plastics Co., Ltd. (collectively,
"Nantong") , Richard Ng
and
Forminco
Sdn. Bhd.
("Forminco"), formed a joint business enterprise
(hereinafter collectively referred to as the "BBI
Partnership") to profit from the unlawful sales of
plastic deli bags in violation of Fantapak's intellectual
property rights under U.S. Pat. No. 7,134,788 (the "'788
Patent").
BBI's goal and objective was to be the sole
distributor of infringing plastic bags in the U.S. for
its partner and bag supplier, Nantong. In furtherance of
the enterprise, BBI agreed to initiate this Litigation
against Fantapak for the purpose of eliminating the only
obstacle standing in BBI's and its partners' way Fantapak's '788 Patent.
The plan was to fabricate
evidence for the purpose of invalidating the '788 Patent.
In return for BBI's filing of the present Litigation, Liu
agreed to channel all of its infringing sales into the
U.S. through BBI in order to finance BBI's - and in
essence its own - legal battle with Fantapak.
In
43~antapak's Reply in Further Support of Its Motion
Sanctions ("Fantapak's Reply"), Docket Entry No. 68, p. 2.
-23-
for
addition, Liu would further the conspiracy, inter alia,
by working with BBI and Ng to fabricate and submit a
false and self-serving affidavit designed to invalidate
the '788 Patent.44
In support of its contention that the statements in the Liu
affidavit were fabricated and false and that Liu committed perjury
during
his
deposition,
Fantapak
cites
deposition
showing that
although
Liu
photographs
attached to
his
excerpts
from
testified he
affidavit,
evidence
Liufs
took
the
subsequently
adduced shows that the photographs attached to Lui's affidavit were
taken by BBIfs agent, Richard Ng.45 Fantapak also argues that Lui
his
admitted during his deposition that the bags pictured
affidavit were not manufactured in 2000 or 2001 as stated in his
affidavit but were instead manufactured in 2007-2009, and that Liu
admitted that when he signed the affidavit he had not seen either
a purchase order for the bags from Inno-Pak or a customs document
associated with the alleged sale to Inno-Pak in 2000 or 2001.46
Based on Liufs deposition testimony, Fantapak argues that the Liu
44~antapak's Motion
pp. 1-2.
for
Sanctions,
Docket Entry
No.
58,
4
5
at~ 3.
See also the following exhibits attached to
Fantapak's Motion for Sanctions, Docket Entry No. 58: Ex. 7 (Liu
Deposition, pp. 257:15-258:4, where Liu states that he took the
photographs attached to his affidavit in 2007, 2008, or 2009, to
show Forminco Company the product that his company could produce);
Ex. 17 (April 1, 2011, e-mail from Richard Ng to Dexin Liu attached
to which are two electronic photographs of Inno-Pak Slider Bags,
documents LIU001130-LIU001136); Ex. 20 (metadata indicating photographs were taken on April 1, 2011).
4 6 ~Deposition, Exhibit 7 to Fantapak's Motion for Sanctions,
i ~
Docket Entry No. 58, pp. 254:ll-256:15 and 259:4-260:24.
affidavit
should
be
stricken,
evidence
of
BBIrs prior-sale
invalidity defense excluded, and monetary sanctions imposed on Liu.
In support of its contention that BBI knew that its prior-sale
invalidity defense was false and misleading, Fantapak cites the
declaration of Jonathan Sill, "a manager of Inno-Pak, LLC, a
North Carolina Limited Liability Company," and "the president of
Inno-Pak, LLCfs predecessor company, Inno-Pak, Inc." 4 7
Sill states
in his affidavit:
3. During the 2000-2003 time periods, Inno-Pak did not
purchase, sell, distribute, request to be manufactured,
or manufacture bags that have the product design depicted
in Exhibit 1, hereinafter "top-header plastic slider
bags.
"
4.
Sometime during
2011,
I had
a
telephonic
conversation with Mr. Rafael Alvarado of Better Bags,
Inc., during which Mr. Alvarado inquired about whether
during the 2000-2003 timeframe Inno-Pak had purchased
top-header plastic slider bags from Mr. Dexin Liu, a
Chinese citizen, or Mr. Liurs China-based companies
Nantonq Yongyu or Nantong Changronq.
5.
During the 2011 conversation with Mr. Alvarado, I
indicated that during the 2000-2003 time periods, InnoPak did not purchase, sell, distribute, or manufacture
top-header plastic slider bags, nor did Inno-Pak request
that any entity manufacture top-header plastic slider
bags, including Mr. Dexin Liu and Mr. Liu' s companies
Nantong Yongyu or Nantong Changr~ng.~'
Based on Liu's deposition testimony and the Sill Declaration,
Fantapak argues that
Liu, BBI, and Ng knew that statements in the Liu
Affidavit were false and the photos of the so-called
47~eclaration of Jonathan D. Sill ("Sill Declaration"),
Exhibit 30 to Fantapak's Reply, Docket Entry No. 68, ¶ 2.
Inno-Pak bags were not of bags that existed more than one
year prior to the filing date of the '788 Patent.
Moreover, the record before this Court shows that BBI was
aware of Dexin Liu's inability to provide evidentiary
support for his affidavit well before this lawsuit was
filed. In fact, the lack of veracity of the statements
made in the Liu Affidavit is confirmed by the fact that
BBIfs purported invalidity expert, its President Rafael
Alvarado, failed to rely on or even mention the Liu
Affidavit in his alleged expert report.49
Fantapak also argues that
the record before this Court establishes that BBI pursued
a prior sale invalidity defense knowing that it was
meritless and nonetheless continued its baseless defense
while continuing to infringe Fantapakfs '788 Patent, and
continuing to cause Fantapak to incur substantial and
needless attorneysf fees and cost.50
The response to Fantapak's motion for sanctions filed by BBI
presents a different version of the facts supported by affidavits
submitted by BBI' s owner, Rafael Alvarado; Forminco's
manager,
Richard Ng; Dexin Liu; and BBIfs attorneye5' In support of its
version of the facts, BBI asserts:
10. Movants allege that Dexin Liu testified in his
deposition that he prepared his affidavit and that he
took the pictures of the bags that were attached to his
affidavit and that that testimony is grounds for perjury.
They base that on an allegation that Richard Ng prepared
the affidavit and not Dexin Liu.
It is true, that
because an affidavit has to be of a certain format and to
incorporate correctly the testimony of the affiant, BBIfs
attorney prepared a blank form for the information to be
included in the affidavit by Dexin Liu correctly and to
491d. 2. See also Fantapak's Reply, Docket Entry No. 68,
at
pp. 1-2 (citing Sill Declaration, Exhibit 30 attached thereto).
50~antapak's
Reply, Docket Entry No. 68, p. 2.
51~emorandum Response to Fantapak's Motion for Sanctions,
in
Docket Entry No. 64, and Exhibits A-D attached thereto.
have it notarized properly. Because Richard Ng speaks
Chinese, he was asked to assist Dexin Liu in
understanding the form and to incorporate his testimony
correctly therein. There is nothing unusual about this
practice as long as the affiant provides the truthful
testimony. What Dexin Liu meant with his statement that
he prepared the affidavit only Dexin Liu knows. The fact
is, however, that he provided and incorporated his
truthful testimony in the affidavit and he took the
affidavit and had it notarized. In that respect he may
claim that his statement is correct and truthful.
11. As regards the issue as to who took the pictures,
the fact is that those pictures were in his files because
they were produced by him to the movants. It is also
true, however, that the pictures were taken by Richard Ng
because the sample bags had already been sent to Richard
Ng and Richard Ng had to take the pictures for the
subject affidavit on April 1, 2011. Again, why Dexin Liu
gave that answer noone knows except him. It may be the
result of an honest mistake, false memory or perhaps he
took pictures before and he was mistaken or confused.
12. Regardless of the reason, the false answer to that
question does not affect the veracity of his testimony in
.
the Liu ~ffidavit52
The determination of whether Fantapakrs or BBIfs version of
the facts is the correct version requires credibility determinaFantapak' s allegations of
tions that can only be made at trial.
perjury
and
misconduct
are
serious allegations, but
neither
Fantapakrs allegations nor the evidence that Fantapak has adduced
in support of those allegations persuades the court that Fantapakrs
motion for sanctions should be granted.
Liu
is
not
representative.
a
party
Liu's
and
did
not
testimony whether
testify
by
as
a
party
affidavit or by
deposition is the testimony of a third-party witness, which whether
52~emorandum Response to Fantapak's Motion for Sanctions,
in
Docket Entry No. 64, p. 5 ¶ ¶ 10-12.
false or not, does not provide a basis for awarding sanctions
against BBI.
Rimkus Consultins Group, Inc. v. Cammarata, 688
F.Supp.2d 598, 648 n.36
(S.D. Tex. 2010).
Nor is the court
persuaded that an award of sanctions against Liu is appropriate at
this time.
Fantapak contends that Liu's
affidavit contains false and
fabricated statements and that Liu perjured himself during his
deposition, but Fantapak has neither cited the legal standard for
perjury nor argued that the evidence now before the court satisfies
that standard.
The Supreme Court has stated that perjury occurs
when "[a] witness testifying under oath or affirmation
. . .
gives
false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory."
113 S.Ct. 1111, 1115
United States v. Dunniaan,
(1993). In support of its argument that the
court should impose monetary sanctions upon Liu, Fantapak points to
inconsistencies in Liu's testimony and contradictory testimony from
other witnesses. Mere inconsistencies in a witnessfs testimony and
contradictory testimony from other witnesses is not sufficient to
establish perjury.
Koch v. Puckett, 907 F.2d 524, 531 (5th
Cir. 1990) (citing Little v. Butler, 848 F.2d 73, 76 (5th Cir.
1988) (inconsistencies in witnessesf testimony at trial are to be
resolved by trier of fact and do not suffice to establish that
certain testimony is perjured)).
Fantapak cites cases in which courts have sanctioned parties
for discovery abuse, but Fantapak has not cited any cases with
facts similar to this case in which courts sanctioned either a
third-party witness such as Liu, or a party such as BBI by striking
evidence, excluding a defense, or awarding attorney's
costs to the party seeking sanctions.
fees and
Nor has Fantapak grounded
its motion for sanctions on a statute, rule, or other legal basis.
All but one of the cases that Fantapak cites in support of its
motion for sanctions are inapposite because they concern sanctions
imposed on a party for the party's conduct, not for the conduct of
a third-party witness such as Liu. See, e.q., Certain Underwriters
at Llovdfs of London v. Corporate Pines Realtv Corp., NO. H-063361, 2008 WL 4443065, at *3-*4 (S.D. Tex. September 25, 2008)
(barring the defendant from producing any evidence in support of
its lost-income counterclaim at trial in light of the defendant's
obstructionist discovery practices).
The only arguably comparable
case cited by Fantapak is Harris v. Auxilium Pharmaceuticals, Inc.,
664 F.Supp.2d 711, 725 (S.D. Tex. 2009), revfd on other srounds,
473 Fed.Appx. 400 (5th Cir. 2012), where the court granted the
defendantsf motion to strike the affidavit of a third-party witness
upon concluding that conduct of the plaintiff and third-party
witness deprived the defendant of the opportunity to counter the
allegations made in the affidavit.
Here, Fantapak has not argued
that it has been deprived of the opportunity to counter the
allegations made in the Liu affidavit, and the record before the
court does not support such an argument.
Preclusion of evidence and/or defenses, and award of monetary
sanctions, are drastic remedies generally confined to exceptional
cases where a partyfs failure to provide
requested discovery
results in prejudice to the requesting party.
Although Fantapak
argues that it has been forced to expend resources needlessly,
Fantapak does not argue that BBI's
and/or Liu's
conduct has
prejudiced its ability to present a defense to BBIfs claims.
Accordingly, the court is not persuaded that the record now before
the court warrants the drastic remedies sought in Fantapak' s Motion
for Sanctions.
However, Fantapak' s Motion for Sanctions will be
denied without prejudice to being reurged later should the evidence
adduced at trial bear out Fantapakfs version of the facts.
V.
Fantapak's
Conclusions and Order
Motion for Sanctions
(Docket Entry No. 58) is
DENIED WITHOUT PREJUDICE.
Fantapak and Inteplast's Motion to Strike Better Bags, Inc. s
Expert Invalidity Report, to Strike Its Invalidity Contentions, and
Exclude All Alleged Evidence and Testimony Based on Undisclosed
Invalidity Contentions (Docket Entry No. 60) is GRANTED IN PART and
DENIED IN PART as follows:
(a) The Motion to Strike BBI's Invalidity Contentions
for failure to comply with P.R. 3-3 is DENIED;
(b) The Motion to Strike BBIrs Expert Invalidity Report
for failure to comply with P.R. 3-3 is GRANTED;
(c) The Motion to Exclude All Alleged Evidence and
Testimony Based on BBI' s Expert Invalidity Reportfs
new allegations of anticipation and obviousness
combinations for failure to comply with P.R. 3-3 is
GRANTED ;
(d) The Motion to Exclude All Alleged Evidence and
Testimony of invalidity based on the alleged prior
art sale of "Inno-Pak Bags" for failure to comply
with P.R. 3-3 is DENIED; and
(e) The Motion to Exclude All Alleged Evidence and
Testimony of invalidity based on U.S. Pat.
Nos. 5,682,730, 6,306,071; 6,364,530; 6,287,000,
and 5,788,080 for failure to comply with P.R. 3-3
is DENIED.
Fantapak and Inteplast's Motion for Summary Judgment of Patent
Infringement (Docket Entry No. 61) is GRANTED.
The Order Granting Joint Motion to Stay the Scheduling Control
Order [Doc. No. 201 (Docket Entry No. 63) is VACATED.
The parties
will submit an agreed proposed scheduling order within fourteen
(14) days from the entry of this Memorandum Opinion and Order.
SIGNED at Houston, Texas, on this 9th day of April, 2013.
1
SIM LAKE
UNITED STATES DISTRICT JUDGE
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