CAFC reverses WD Washington in Loops case and gives a bit of a lecture on procedure

The CAFC reversed the district court:

Loops, LLC and Loops Flexbrush, LLC (collectively, Loops) appeal a decision of the United States District Court for the Western District of Washington sua sponte granting summary judgment of noninfringement in favor of Maxill, Inc., both the Ohio and Canadian corporations (collectively, Maxill), and subsequently denying Loops’s request for reconsideration of that decision. In granting summary judgment, the district court determined that the accused toothbrush’s elongated body was not “flexible throughout,” as required by the claims. Because the court’s noninfringement ruling was based on an incorrect understanding of the “flexible throughout” claim limitation, we reverse.
Because the district court incorrectly viewed the flexibility limitation as directed to the combination of the elongated body and head, rather than the accused product’s elongated body alone, the district court erred in determining that the accused product lacks an elongated body that is flexible throughout.

of note here
Generally, a district court may not sua sponte grant summary judgment unless the losing party had “notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f). The Ninth Circuit has held that sua sponte summary judgment may be granted as long as the losing party has had a “full and fair opportunity to ventilate the issues involved in the motion.” United States v. Grayson, 879 F.2d 620, 625 (9th Cir. 1989) (internal quotation marks omitted); see also In re Harris Pine Mills, 44 F.3d 1413, 1439–40 (9th Cir. 1995) (entering summary judgment for the non-movant). Loops did not have a full and fair opportunity to argue and present its case against summary judgment of noninfringement. Because Maxill first requested that the court sua sponte grant summary judgment in its favor in its opposition to Loops’s motion, Loops was limited by both time and page length with respect to its response. After receiving Maxill’s opposition, Loops had just three days to respond and twelve pages. W.D. Wash. Local R. 7. Had Maxill filed its own summary judgment motion, Loops would have had about three weeks to respond and twentyfour pages. Id. Further, the local rules provide that motions requesting permission to file overlength briefs are due “no later than three days before the underlying motion or brief is due.” Id. Therefore, even if Loops had wanted to file a request for an overlength brief, it would not have had time.
And although the district court indicated that it would give full consideration to any reconsideration request, the court refused to consider any additional evidence and quickly dismissed Loops’s reconsideration motion as “merely rehashing” its prior arguments. Under the circumstances, we conclude, Loops did not have a full and fair opportunity to respond to Maxill prior to the district court’s sua sponte grant of summary judgment.