Saturday, November 05, 2016

Summary judgment of non-infringement affirmed by CAFC in Red Dog v. KAT

The non-precedential case of RED DOG MOBILE SHELTERS v. KAT INDUSTRIES is of interest because of subject matter and legal citations.

Red Dog’s 8,534,001 patent, entitled “Re-Deployable Mobile
Above Ground Shelter,” discloses certain protective shelters
having features whose purpose is to help the shelter
stay in place during high winds or similar conditions.
’001 patent, col. 3, lines 37–40.
According to the record on summary judgment that
governs the decision on review, KAT manufactures mobile
protective shelters that are designed to protect occupants
during storms or tornadoes, and the particular one at
issue here is the Tuffy shelter. Red Dog brought this
infringement suit against KAT in the United States
District Court for the Northern District of Texas, alleging
that KAT’s Tuffy shelter infringed Red Dog’s ’001 patent.
Red Dog asserted claims 44, 45, 47, 48, 55, 57, 60, 77, 89,
90, 91, 92, 93, and 94 of the ’001 patent.

The idea of applying "common sense" is hiding in the background:

We think that the district court properly concluded
that Red Dog’s interpretation is not one a person of ordinary
skill in the art would adopt, at least for this patent.
As already noted, the ’001 patent clearly contemplates
rails that lift the bottom plate above the ground, creating
a gap between the floor panel and the ground. ’001 patent,
col. 3, lines 45–46; id., col. 2, lines 29–30; see also id.,
col. 4, lines 24–39 (particular embodiment allowing “the
free passage air from any locale beneath the shelter to
any other locale”) (emphasis added). More generally, the
district court explained, under Red Dog’s interpretation,
“it would be impossible to create a floor that was not
elevated,” because the floor would be the (twodimensional)
top of some (necessarily three-dimensional)
material, which “would have to have a thickness to it.”
J.A. 12. Red Dog’s “expert’s application of ‘elevate’ does
not make any sense.”

Of legal matters:

We review the grant of summary judgment de novo.
See Akzo Nobel Coatings, Inc. v. Dow Chem. Co., 811 F.3d
1334, 1338 (Fed. Cir. 2016); Wright v. Excel Paralubes,
807 F.3d 730, 732 (5th Cir. 2015). Summary judgment is
proper where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56.
Infringement, which is a question of fact, “is amenable
to summary judgment when no reasonable factfinder
could find that the accused product contains every claim
limitation or its equivalent.” Akzo, 811 F.3d at 1339.
That determination depends on claim construction. Id.
Claim construction is a matter of law, with any underlying
findings about extra-patent understandings or other
facts outside the patent documents calling for clear-error
review. Id.

One recalls from Intellectual Ventures v. Symantec, 120 U.S.P.Q.2D 1353 (CAFC 2016) :

We review the grant or denial of summary judgment de novo. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc). For the district court's entry of judgment under Rule 52(c), we review the district court's factual findings for clear error and its legal conclusions de novo. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 273 (3d Cir. 2010). Patent eligibility under § 101 is an issue of law which we review de novo. See OIP Techs., Inc. v., Inc., 788 F.3d 1359, 1362 (Fed. Cir. 2015).

As to "clear error", from Dickinson v. Zurko, 527 U.S. 150; 119 S. Ct. 1816; 144 L. Ed. 2d 143 (1999):

This Court has described the APA court/agency "substantial evidence" standard as requiring a court to ask whether a "reasonable mind might accept" a particular evidentiary record as "adequate to support a conclusion." Consolidated Edison, 305 U.S. at 229. It has described the court/court "clearly erroneous" standard in terms of whether a reviewing judge has a "definite and firm conviction" that an error has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948). And it has suggested that the former is somewhat less strict than the latter. Universal Camera, 340 U.S. at 477, 488 (analogizing "substantial evidence" test to review of jury findings and stating that appellate courts must respect agency expertise).

One also recalls the text of Judge Mayer from the Intellectual Ventures case:

Like all congressional powers, the power to issue patents and copyrights is circumscribed by the First Amendment. See Golan v. Holder, 565 U.S. 302, 132 S. Ct. 873, 889-93, 181 L. Ed. 2d 835 (2012); Eldred v. Ashcroft, 537 U.S. 186, 219-21, 123 S. Ct. 769, 154 L. Ed. 2d 683 (2003). In the copyright context, the law has developed "built-in First Amendment accommodations." Eldred, 537 U.S. at 219; see also Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 201, 105 S. Ct. 658, 83 L. Ed. 2d 582 (1985) (noting that the Lanham Act contains safeguards to prevent trademark protection from "tak[ing] from the public domain language that is merely descriptive"). Specifically, copyright law "distinguishes between ideas and expression and makes only the latter eligible for copyright protection." Eldred, 537 U.S. at 219; see also Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556, 105 S. Ct. 2218, 85 L. Ed. 2d 588 (1985) (explaining that "copyright's idea/expression dichotomy" supplies "a definitional balance between the First Amendment and the Copyright Act [*35] by permitting free communication of facts while still protecting an author's expression" (citations and internal quotation marks omitted)). It also applies a "fair use" defense, permitting members of "the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances." Eldred, 537 U.S. at 219; see 17 U.S.C. § 107 ("[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.").

And one recalls from Golan v. Holder a simple economic argument to counter First Amendment issues:

Before we joined Berne, domestic works and some foreign works were protected under U.S. statutes and bilateral international agreements, while other foreign works were available at an artificially low (because royalty-free) cost. By fully implementing Berne, Congress ensured that most works, whether foreign or domestic, would be governed by the same legal regime. The phenomenon to which Congress responded is not new: Distortions of the same order occurred with greater frequency--and to the detriment of both foreign and domestic authors--when, before 1891, foreign works were excluded entirely from U.S. copyright protection. See Kampelman, The United States and International Copyright, 41 Am. J. Int'l L. 406, 413 (1947) (“American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter.”). Section 514 continued the trend toward a harmonized copyright regime by placing foreign works in the position they would have occupied if the current regime had been in effect when those works were created and first published. Authors once deprived of protection are spared the continuing effects of that initial deprivation; §514 gives them nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.


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