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A&E PRODUCTS GROUP, L.P. v. MAINETTI USA INC.

February 5, 2004.

A&E PRODUCTS GROUP, L.P., Plaintiff, -against- MAINETTI USA INC., et al., Defendants


The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge

OPINION AND ORDER

Plaintiff A&E Products Group, L.P., moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for a finding of infringement of U.S. Patent Nos. 5,485,943 ("`943 patent"), Page 2 5,613,629 ("`629 patent"), and 6,145,713 ("`713 patent") by defendants Mainetti USA Inc., Mainetti S.p.A. and Mainetti (HK) Ltd. (collectively, "Mainetti").

 I. SUMMARY JUDGEMENT STANDARD

  "A patent infringement analysis involves two steps: 1) claim construction and 2) application of the properly construed claim to the accused product." TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1369 (Fed. Cir. 2002), cert. denied, 537 U.S. 995 (2002): see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (stating that moving party has the initial burden of demonstrating the absence of a disputed issue of material fact); Kegel Co., Inc. v. AMF Bowling, Inc., 127 F.3d 1420, 1425 (Fed. Cir. 1997) (stating that plaintiff has the burden of proving patent infringement by a preponderance of the evidence).

  In comparing the construed claim to the accused device, the Court must determine that the accused device meets each claim limitation, either literally or by a substantial equivalent. See Catalina Mktg. Int'l v. Coolsavings.com, Inc., 289 F.3d 801, 807-08 (Fed. Cir. 2002). Summary judgment is appropriate where only one conclusion as to infringement could be reached by a reasonable jury. TechSearch, 286 F.3d at 1369.

 II. DISCUSSION

  Plaintiff states that Mainetti hangers and side sizers are based upon the design disclosed in two patents owned by Mainetti, U.S. Patent Nos. 5,687,887 ("`887 patent") and 5,950,883 ("`883 patent") (collectively, "Mainetti Patents"), whose stated objectives are "to provide a side sizer marker for a hanger which can be firmly mounted in place without rocking . . . which can be mounted on a hanger in a fixed manner and cannot be removed by hand and which requires a special tool for removal, [and] which can be mounted on a hanger in a child-resistant manner." Page 3 (Pl. Mem. in Supp., dated April 8, 2003 ("Pl. Mem."), at 4 (citing the `887, `883 patents) (alterations in original).)

  A. The W157S Sample

  Plaintiff has provided the Court with a sample of the allegedly infringing hangers and tabs, Mainetti hanger and tab model W157S, which plaintiff states are based upon designs disclosed in the Mainetti Patents. (See id. at 11, 17.)

  Both sides have agreed that W157S is representative of the alleged infringing item. Defendants maintain that the structure of W157S is not the same as that shown in their `883 and `887 patents.*fn1 (Tr. of Dec. 15, 2003 Argument at 82.) W157S does not bear any patent number and the Court's examination shows that W157S does not conform to patents `887 or `883, which include as an objective "to provide a side sizer marker for a hanger which can be firmly mounted in place without rocking" (Pl. Mem. at 4). The sizer tab on the W157S tab holder can be rocked.*fn2 Accordingly, the W157S hanger differs from that objective of the `887 and `883 patents.

  Examination of W157S also reveals differences from plaintiff`s `943, `629, and `713 patents. These differences lead the Court to find: (a) plaintiff has not shown that there is no genuine issue of material fact on the issue of infringement and (b) a reasonable jury could reach the conclusion that W157S does not infringe the `943, `629, or `713 patents. Page 4

  First, as stated in the Court's Markman opinion and order dated December 18, 2002, the claims of the plaintiff's patents, including the `943, `629, and `713 patents, are read in the light of the Court's examination of the specification and drawings that accompanied each patent. A&E Prods. Group, L.P. v. Mainetti United States, 2002 U.S. Dist. LEXIS 24280, at *13 (S.D.N.Y. Dec. 18, 2002). The specifications and drawings are the same in all the Zuckerman patents and reveal that plaintiff's tab holder is molded onto a plane of plastic between the hook and hanger body. (Hand Supp. Decl., dated June 13, 2003, Exs. 1-6.) In general, the plaintiff's tab holders contain a free edge to receive the sizer tab and two raised sides to embrace the ends of the sizer tab within which area the tab holder consists of a plane surface*fn3 with either two longitudinal ridges or a single longitudinal ridge. These longitudinal ridges, in conjunction with a longitudinal rib on the inside of the opposing tab sides, obstruct the removal of the tab. None of the drawings, specifications, or claims in the Zuckerman patents suggest that the plane surface would contain a gap*fn4 within the tab holder area. (Decl. of Ira E. Silfin, dated May 23, 2003, Exs. 1-6.) Indeed, the drawings show no gap in the plane surface. (Id.) In the allegedly infringing article (W157S), the tab holder is also constructed on a plane of plastic between the hook and hanger body, and contains a free edge and two sides, as well as a back side with a one-eighth of an inch gap in the plane surface between the two sides of the tab holder and adjacent to the back side. (Id., Ex. 1, 3.) The Court's examination of W157S found that the gap enables the tab to be Page 5 rocked on the tab holder, thereby allowing a finger purchase on the tab for removal from the tab holder. Samples of plaintiff's patented hangers do not permit rocking of the tab on the tab holder and removal in this manner.

  Moreover, on W157S, the tab is locked to the tab holder by means of three longitudinal ribs in the inner surface of each of the tab sides, the first two ribs of which engage the two ridges on the surface of the tab holder. The third rib on the tab is somewhat larger and, when the tab sizer is attached to the tab holder, extends beyond the inner edge of the tab holder adjacent to the gap in the plane surface, at which position the foremost edges of the opposing tab sides are near to but not touching the back side of the tab holder. The two combinations of ribs and ridges — 1) the position of the third rib on the inner surface of the opposing tab sides so that it is adjacent to the inner edge of the plane surface and the ...


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