Wednesday, December 04, 2019

Judge CLEVENGER's dissent in Plastic Onium: The district court took its eye off the ball.

Judge Clevenger characterized the dispute differently from the majority (and the district court):

But by blessing the district court’s
analysis, the majority commits the same error. Both rely
on Donghee’s nomenclature—the fact that its cutting structure
is called a “die”—to find no infringement. That analysis elides the key factual dispute: Does Donghee’s accused
process have more than one die? The real dispute therefore
is not over an extruded parison and what it takes to create
one—in fact, the parties agree on that front—but is instead
over the term “die” and whether Donghee’s extrusion head
contains one. Plastic Omnium presented sufficient evidence to create a
material factual dispute over the structure of Donghee’s extrusion head, and I therefore
respectfully dissent from the majority’s decision.


The error that the district court committed, and that
the majority approves, stems from the assumption that the
relevant die for purposes of infringement is Donghee’s flat
die tool. Both rely on Donghee’s chosen nomenclature for
its cutting tool, i.e., “flat die tool,” to find that Donghee’s
process involves cutting molten plastic inside of a “die,” instead of
upon or after extrusion from the “die.” Because the
claims require cutting a parison, and a parison cannot be
cut before it is formed by being forced through a die, the
district court and the majority believe that there cannot exist the
claimed parison in Donghee’s process. But just because Donghee calls its cutting tool a “die” does not mean
it is the relevant die for purposes of the infringement analysis.


The district court took its eye off the ball.


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