Questions of Fact re Alleged Enjoined Imitations Prevent Contempt

Posted on November 7, 2008 by R. David Donoghue

Liquid Dynamics Corp. v. Vaughan, No. 08 C 6934, Slip Op. (N.D. Ill. Oct. 20, 2008) (Conlon, J.).

Judge Conlon denied plaintiff's objections to the Magistrate's Report and Recommendations and denied plaintiff's contempt motion. In a prior case, a jury found plaintiff's patent valid and willfully infringed. The Court trebled plaintiff's damages, awarded plaintiff attorney's fees, and entered a permanent injunction preventing defendant from making, using or selling any of 47 mixing systems, or colorable imitations thereof, at issue in the case. Plaintiff brought a second case alleging infringement of 22 additional mixing systems and then filed a contempt motion arguing that the 22 new mixing systems were imitations of the original 47. After an extensive evidentiary hearing, the Magistrate found questions of fact as to whether the 22 mixing systems were colorable imitations of the enjoined systems and, therefore, denied the contempt motion. After a de novo review, the Court affirmed the Magistrate's Recommendation The 22 new mixing systems were not exact duplicates of the enjoined systems and there were questions of fact as to whether the differences were sufficiently minimal to make the new systems colorable imitations. The contempt motion was, therefore, denied, but the infringement case continued.

 

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"Approximately" Construed Using Extrinsic Industry Standards

Posted on September 11, 2008 by R. David Donoghue

Liquid Dynamics Corp. v. Vaughan Co., No. 06 C 5611, 2008 WL 3007996 (N.D. Ill. Aug. 4, 2008) (Kennelly, J.).

Judge Kennelly construed “approximately” as used in plaintiff Liquid Dynamic’s (“LD”) patent for wastewater treatment tanks, and denied defendant Vaughan Co.’s (“Vaughan”) motion for summary judgment.  The claim at issue required that flow generators were located “between approximately 30 percent and 70 percent” of the radial distance from the center to the inside wall of the tank.  LD argued that approximately was defined by industry standard tolerances of 10%.  Vaughan argued that approximately was limited to 5% based upon the broadest range of 25%-75%.

The Court held that the intrinsic evidence – patent’s specification and prosecution history – made clear that 25%-75% were not the outer limits of flow generator placement.  But the intrinsic evidence did not clarify what those outer limits were or what approximately meant.  The Court, therefore, relied upon the extrinsic evidence – plaintiff’s expert’s affidavit – and held that 10% was an industry standard.

The Court denied Vaughan’s motion for summary judgment that argument-based estoppel precluded doctrine of equivalents. Vaughan argued that LD gave up any range beyond 25% - 75% during prosecution. For the same reasons the Court defined approximately as extending beyond the 25% - 75% range, the Court held that LD had not surrendered equivalents beyond the 25%- 75% range.
 

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Judge Filip's Cases Reassigned

Posted on March 14, 2008 by R. David Donoghue

While Judge Filip heads to Washington as Deputy Attorney General, the Northern District has reassigned his cases — click here for the Executive Committee’s Order. At least the following IP cases have been reassigned:

Judge Andersen

1:07-cv-05666             Dicam, Inc. v. United States Cellular

Judge Dow

1:07-cv-02883             Kids Hope USA, Inc. v. Kids Hope United

Judge Kennelly

1:06-cv-05611             Liquid Dynamics Corporation v. Vaughn Co.

Judge Zagel

1:07-cv-03339             Borg Warner Inc. et al. v. Hilite International, Inc. et al.

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