Chaffin v. Braden et al

Filing 70

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

MARK N. CHAFFIN,
Plaintiff,
v.
MICHAEL R. BRADEN and
LBC MANUFACTURING,
Defendants.

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May 23, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 6:14-0027

MEMORANDUM AND ORDER
This patent case is before the Court on the Motion for Summary Judgment on
Invalidity (“Invalidity Motion”) [Doc. # 49] filed by Defendants Michael R. Braden
and LBC Manufacturing (“LBC”), to which Plaintiff Mark N. Chaffin filed a
Response [Doc. # 58], and Defendants filed a Reply [Doc. # 66]. Also pending are
Plaintiff’s Motion for Partial Summary Judgment of Direct Infringement of Method
Claim 20 (“Plaintiff’s Motion”) [Doc. # 51], to which Defendants filed a Response
[Doc. # 60], and Plaintiff filed a Reply [Doc. # 64], and Defendants’ Motion for
Summary Judgment of Non-Infringement (“Defendants’ Non-Infringement Motion”)
[Doc. # 52], to which Plaintiff filed a Response [Doc. # 59], and Defendants filed a
Reply [Doc. # 65].

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The Court has carefully reviewed the record, including United States Patent No.
6,932,912 (“the ’912 Patent”), the parties’ briefing, and all evidence submitted by the
parties. Based on this review and the application of relevant legal authorities, the
Court grants Defendants’ Non-Infringement Motion, denies Plaintiff’s Motion, and
denies as moot Defendants’ Invalidity Motion.
I.

BACKGROUND
Plaintiff Mark N. Chaffin is the owner of the ’912 Patent, entitled “Wastewater

Treatment System of Residential Septic Systems.” He is also the inventor of the
patented system. The patent covers a wastewater treatment system in which liquid
chlorine is continuously drawn from a chlorine supply canister into a storage-mixing
tank containing sewage effluent. Specifically, a pump in the storage-mixing tank
circulates the sewage effluent through a venturi chamber and creates suction which
continuously draws chlorine into the flowing sewage effluent stream, mixing the
chlorine and the sewage effluent.
Chaffin sued Defendants Michael R. Braden and LBC Manufacturing (“LBC”)
alleging infringement of Claims 7, 20, 21, 22, and 24 of the ’912 Patent.1 See

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Plaintiff also asserted a false marking claim under 35 U.S.C. § 292, a false advertising
claim under 15 U.S.C. § 1125(a), and a tortious interference with prospective relations
claim under Texas Law. See First Amended Complaint [Doc. # 13]. Plaintiff has now
abandoned these claims. See Letter Agreements [Docs. # 55 and # 61]. The patent
infringement claim is the only claim asserted in the Third Amended Complaint [Doc.
# 62].

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Plaintiff’s Motion, p. 1. Specifically, Plaintiff alleges that Defendants’ liquid
chlorinators “LBC 500” and “LBC-IM” (the “Accused Devices”) infringe these five
claims of the ’912 Patent.
Following a Markman hearing, the Court issued a Memorandum and Order on
Claim Construction [Doc. # 36]. The pending Motions were timely filed, have been
fully briefed, and are now ripe for decision.
II.

SUMMARY JUDGMENT STANDARDS
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party’s case, and on which that party will bear the burden at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “When evaluating a motion for summary
judgment, the court views the record evidence through the prism of the evidentiary
standard of proof that would pertain at a trial on the merits.” SRAM Corp. v. AD-II
Engineering, Inc., 465 F.3d 1351, 1357 (Fed. Cir. 2006).
Summary judgment on infringement is appropriate only if there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter
of law. See Ultimatepointer, L.L.C. v. Nintendo Co., Ltd., 816 F.3d 816, 824 (Fed.
Cir. 2016). The infringement analysis at the summary judgment stage requires the

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Court to compare the patent claims as construed with the accused device. See
Convolve, Inc. v. Compaq Computer Corp., 812 F.3d 1313, 1317 (Fed. Cir. 2016). An
infringement claim “is amenable to summary judgment when no reasonable factfinder
could find that the accused product contains every claim limitation or its equivalent.”
Akzo Nobel Coatings, Inc. v. Dow Chem. Co., 811 F.3d 1334, 1339 (Fed. Cir. 2016).
A patent is presumed valid under 35 U.S.C. § 282, and “overcoming that
presumption requires clear and convincing evidence.” Spectrum Pharm., Inc. v.
Sandoz Inc., 802 F.3d 1326, 1333 (Fed. Cir. 2015). “Where, as here, the defendants
raised invalidity only as an affirmative defense, and not in the form of a counterclaim,
it is ordinarily not necessary for this court to address validity once it has found
noninfringement.” Aerotel, Ltd. v. Telco Group, Inc., 433 F. App’x 903, 916-17 (Fed.
Cir. July 26, 2011) (citing Solomon Techs., Inc. v. Int’l Trade Comm., 524 F.3d 1310,
1319 (Fed. Cir. 2008)).
III.

INFRINGEMENT ANALYSIS
“[W]hoever without authority makes, uses, offers to sell, or sells any patented

invention, within the United States . . . infringes the patent.” 35 U.S.C. § 271(a);
Lexmark Int’l, Inc. v. Impression Prods., Inc., 816 F.3d 721, 726 (Fed. Cir. 2016).
“Patent infringement requires a two-step analysis.” Grober v. Mako Prods., Inc., 686
F.3d 1335, 1344 (Fed. Cir. 2012). In the first step, the Court construes the asserted

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claim terms. See id. The Court construed the meaning of the disputed claim terms in
its Memorandum and Order on Claim Construction [Doc. # 36].
The second step, a “comparison of the claims to the accused device, is a
question of fact, and requires a determination that every claim limitation or its
equivalent be found in the accused device.” Planet Bingo, LLC v. GameTech Int’l,
Inc., 472 F.3d 1338, 1343 (Fed. Cir. 2006). The comparison is only to the patent
claims, not to any specific embodiment in the patent specification or to the patent
holder’s commercial embodiment. See Amgen Inc. v. Hoechst Marion Roussel, Inc.,
314 F.3d 1313, 1347 (Fed. Cir. 2003). The patent holder bears the burden of proving
infringement by a preponderance of the evidence. See Octane Fitness, LLC v. ICON
Health & Fitness, Inc., __ U.S. __, 134 S. Ct. 1749, 1758 (2014); Cephalon, Inc. v.
Watson Pharms., Inc., 707 F.3d 1330, 1340 (Fed. Cir. 2013) (citing Tech. Licensing
Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir. 2008)).
Claim 7 of the ’912 Patent describes a wastewater treatment system wherein
chlorine from a supply canister “is continuously drawn into said venturi chamber and
into said recirculation pipe.” Claims 20 and 21 describe a method for treating sewage
effluent that includes a step of pumping sewage effluent through a venturi chamber
to develop a suction “to continuously draw chlorine from a chlorine supply canister
into the venturi chamber and into the recirculation pipe. . ..” Claims 22 and 24

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describe a wastewater treatment system wherein pumped sewage effluent creates a
suction “continuously drawing chlorine from said chlorine supply canister and
continuously discharging chlorine into the pumped sewage effluent . . ..” A limitation
in each of these claims is that chlorine is continuously drawn from the supply canister.
Defendants have presented evidence that the Accused Devices do not
continuously draw chlorine from the supply canister. Unlike the device covered by
the ’912 Patent in which the chlorine is continuously drawn from the canister into the
venturi chamber, the Accused Devices draw an initial amount of chlorine at the
beginning of the pump cycle and, thereafter, intermittently draw chlorine from the
canister. At times, only air is drawn into the venturi chamber and, as a result, there
is an interruption in the drawing of chlorine. Although at times there are droplets of
chlorine in the air that is being drawn from the supply canister, at other times only air
without any chlorine is drawn.
Defendants’ evidence includes screen shots from a video of simulated tests of
the Accused Devices, including a videotaped test conducted by Plaintiff. The screen
shots clearly reveal examples of times when only air, without any chlorine, is being
drawn from the supply canister into the venturi chamber.
Additionally, Defendants’ expert, James Weishuhn stated in his report that after
the initial amount of chlorine is drawn into the venturi chamber, additional amounts

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of chlorine were “intermittently and sporadically conveyed from the [supply] canister
during the remainder of the pump cycle.” See Weishuhn Report [Doc. # 52-2], ¶ 86.
Weishuhn stated also that at times during the pump cycle, “the venturi draws air
through the tube end.” See id., ¶ 87. Weishuhn opined specifically that chlorine is not
continuously drawn into the venturi chamber during a pumping cycle by either
Accused Device, and that suction does not continuously draw chlorine into the venturi
chamber in the Accused Devices. See id., ¶¶ 132-139.
Defendants cite also to the deposition testimony of Plaintiff’s expert, Walter T.
“Terry” Winn, Jr. Winn testified that he observed air in the Accused Devices
“introduced along with the chlorine solution” after the initial dose of chlorine. See
Winn Deposition [Doc. # 52-3], p. 47. Winn testified further that “if there was an
identifiable break” in chlorine being drawn into the venturi chamber, then there would
be no infringement. See id. at 54. Although Winn described the air that was drawn
into the venturi tube as “air bubbles” in the chlorine, the screen shots show clearly that
the “air bubbles” are at times sections of air without any chlorine (that was dyed for
purposes of the videotaped tests) being drawn into the venturi chamber. At these
times, the drawing of air interrupted the drawing of chlorine. An interrupted draw of
chlorine is not a continuous draw of chlorine.

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Plaintiff has not presented evidence that contradicts Defendants’ evidence to
raise a genuine issue of material fact on the “continuous draw” limitation of the
asserted claims. Instead, Plaintiff has presented evidence that the chlorine volume
drawn from the Accused Devices continued to increase so long as the pump cycle
continued. See Response, pp. 1-2. Plaintiff argues that “logic dictates” that this
evidence demonstrates that chlorine “must be continuously drawn” so long as the
pump is running. See id. at 2 (emphasis in original). This argument, however, is
refuted by the clear images from the videotaped tests which show periods of time
where only air, with no chlorine, is being drawn from the supply canister.
Plaintiff notes correctly that chlorine is drawn into the venturi chamber where
there is a mixture of air and chlorine. This argument does not raise a genuine issue
of material fact because, although there are times during which a mixture of air and
chlorine is being drawn from the canister, there are other times during which only air
with no chlorine is drawn from the supply canister.
Defendants have presented evidence, including their expert’s report, testimony
from Plaintiff’s expert, and screen shots of videotaped tests conducted by Plaintiff and
Defendants.

This evidence demonstrates that the Accused Devices do not

continuously draw chlorine from the supply canister. Plaintiff has failed to present
evidence that raises a genuine issue of material fact on this issue, and no reasonable

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jury could find that the Accused Devices contain this claim limitation or its
equivalent. Defendants are entitled to summary judgment on non-infringement and,
consequently, their Non-Infringement Motion is granted and Plaintiff’s Motion is
denied.
IV.

CONCLUSION AND ORDER
Based on a comparison between the claims of the ’912 Patent and Defendants’

Accused Devices, there is no genuine issue of material fact regarding whether the
Accused Devices continuously draw chlorine from the supply canister. As a result,
Defendants are entitled to summary judgment on non-infringement. For the same
reason that Defendants are entitled to summary judgment on non-infringement,
Plaintiff’s Motion for Partial Summary Judgment on Infringement is denied. Having
granted summary judgment on non-infringement, Defendants’ Invalidity Motion is
moot. It is, therefore, hereby
ORDERED that Defendants Motion for Summary Judgment of NonInfringement [Doc. # 52] is GRANTED and this case is DISMISSED WITH
PREJUDICE. It is further
ORDERED that Plaintiff’s Motion for Partial Summary Judgment of Direct
Infringement of Method Claim 20 [Doc. # 51] is DENIED. It is further

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ORDERED that Defendants’ Motion for Summary Judgment on Invalidity
[Doc. # 49] is DENIED AS MOOT.
The Court will issue a separate Final Judgment.
SIGNED at Houston, Texas, this 23rd day of May, 2016.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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