Wednesday, March 30, 2011

Infringement defendants win in Radar v. Cleveland

If you ever wondered what a "clevis link" was:

Clevis links are
used in a variety of manufacturing contexts, including in
automobile manufacturing where they connect the auto-
motive radiator to the engine. The patented clevis links
are considered an improvement over the prior art because
they are stamped from a single piece of sheet metal rather
than forged from heavier metals, making them more
economical and lightweight.

There was a marking issue in this case:

On August 20, 2009, Cleveland Die moved for sum-
mary judgment that the accused links were not properly
marked under 35 U.S.C. § 287(a), which requires a patent
holder to mark all patented articles sold “for or under” it
in order to obtain infringement damages.2

There was a licensing issue:

Radar, on the other hand, contended
that neither Standard Products nor Cleveland Die sold
clevis links “for or under” Radar because, contrary to its
earlier position, a Have Made agreement never in fact
existed. The district court granted summary judgment on
March 4, 2010, concluding that Standard Products was
licensed and that the patent notice statute foreclosed any
claim for damages in recovery of all relief sought in the
infringement action.

Yes, the case is complicated:

The arguments of the parties in this case are unusu-
ally convoluted.
The question of whether Radar was
obligated to mark the clevis links under § 287(a) depends
entirely on whether Radar authorized Standard Products
to produce the clevis links (i.e. whether Standard Prod-
ucts had an express or implied license). If Standard
Products was authorized, there is no need to address the
notice issue. An express or implied license is a defense to
infringement. See Carborundum Co. v. Molten Metal
Equip. Innovations, Inc., 72 F.3d 872, 878 (Fed. Cir.
The district court did not err in finding that there was
a license. In De Forest Radio Telephone & Telegraph Co.
v. United States, 273 U.S. 236, 241 (1927), the Supreme
Court held that a patent license did not require a formal
written agreement (...)

The DDB case is cited:

In return, Radar enjoyed substantial consid-
eration from the sales of the more profitable tie bar busi-
ness. See, e.g., DDB Techs., L.L.C. v. MLB Advanced
Media, L.P., 517 F.3d 1284, 1292 (Fed. Cir. 2008)
(“[W]hen a contract is ambiguous, conduct of the parties
which indicates the construction that the parties them-
selves placed on the contract may . . . be considered in
determining the parties' true intent.”) (quotation marks
and citations omitted); Sanchez v. Eagle Alloy, Inc., 658
N.W.2d 510, 517 (Mich. Ct. App. 2003) (stating that,
under the applicable contract law of Michigan, a meeting
of the minds “can be found from performance and acquies-
cence in that performance”); see also Restatement (Sec-
ond) of Contracts § 202(5) (1981) (noting the import of the
parties' course of performance and course of dealing to an agreement).

An evidence issue arose:

In fact, because the declaration was made
“under penalty of perjury,” it is equivalent to an affidavit
and can support or oppose a motion for summary judg-
ment. 28 U.S.C. § 1746.

Statements by counsel are underwhelming:

Under these circumstances, we think the
district court properly declined to find that Cleveland
Die’s earlier legal position raised a genuine issue of
material fact. See, e.g., Vivid Techs., Inc. v. Am. Sci. &
Eng’g, Inc., 200 F.3d 795, 812 (Fed. Cir. 1999) (“Factual
assertions by counsel in motion papers, memoranda,
briefs, or other such ‘self-serving’ documents, are gener-
ally insufficient to establish the existence of a genuine
issue of material fact at summary judgment.”) (quoting
Nieves v. Univ. of P.R., 7 F.3d 270, 276 n.9 (1st Cir.


t is well-settled law
that a party opposing summary judgment “must point to
an evidentiary conflict created on the record; mere denials
or conclusory statements are insufficient.” SRI Int’l v.
Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed.
Cir. 1985). Here, we conclude that Zmyslowski’s declara-
tion was wholly conclusory and insufficient to raise a
factual dispute as to whether the agreement covered the
Two Interrogatory Links or the Other Links.5


Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.
2001) (“It is a ‘settled appellate rule that issues adverted
to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.”) (quot-
ing United States v. Zannino, 895 F.2d 1, 17 (1st Cir.


Because we hold that Standard Products had a Have
Made license, its suppliers, including Cleveland Die,
cannot be sued for infringement with respect to any
accused products made for Standard Products.


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