The opinion of the court was delivered by: Michael A. Telesca United States District Judge
"How many legs does a dog have if you call the tail a leg? Four. Calling the tail a leg does not make it a leg."
Abraham Lincoln (attributed)
The plaintiff in this case has filed a motion for reconsideration asking the court to revisit the issue of what constitutes a "strap opening" with respect to plaintiff's patented invention of a dual strap system for carrying a golf bag. Plaintiff contends that the court misapprehended plaintiff's argument, and seeks to clarify its position as to which area between two strap ends constitutes a strap opening. Calling an area a strap opening, however, does not make that area a strap opening, and for the reasons set forth below, I deny plaintiff's motion for reconsideration.
Plaintiff Izzo Golf, Inc., ("Izzo") moves pursuant to Rule 59(e) of the Federal Rules of Civil Procedure for reconsideration of this Court's July 5, 2007 Decision and Order granting in-part and denying in-part defendant King Par Golf, Incorporated's motion for summary judgment. Specifically, Izzo seeks reconsideration of this court's holding that the defendant's "new style" golf bag does not infringe upon Claim 14 of plaintiff's United States Patent No. 5,042,704 (hereinafter "the '704 patent"). In support of its motion, Izzo contends that this court may have misapprehended its argument with respect to how the defendant's new style bag allegedly infringes upon Claim 14 of the '704 Patent, and invites the Court to reconsider the issue of infringement. Defendant opposes plaintiff's motion on grounds that because the plaintiff has failed to cite new evidence or authority in support of its motion, relief cannot be granted relief pursuant to Rule 59(e).
The relevant facts of this case are discussed at length in my July 5, 2007 Decision and Order, and familiarity with those facts is presumed. In summary, the '704 patent, entitled "Dual Strap Carrying System for Golf Bags" generally discloses a carrying-strap designed to evenly distribute the weight of a golf bag across both shoulders of the person carrying the bag. The strap system can also be used to carry a golf bag across only one shoulder.
Claim 14 of the '704 Patent discloses:
In a golf bag to be carried by a person, a golf bag having an elongated enclosure including a surrounding sidewall, a closed end and an open end whereby golf clubs may be inserted lengthwise into said golf bag through the open end, the improvement comprising: a shoulder strap assembly disposed externally of said sidewall including first and second strap members, each of said strap members having opposite ends; first and second securing means for securing each of said opposite ends of said first strap member to longitudinally spaced locations on said sidewall including a first location proximate said open end and a second location longitudinally spaced from said first location whereby said first strap member defines a first strap opening through which one arm of the person can be inserted; and third and fourth securing means for securing each of said opposite ends of said second strap member to longitudinally spaced locations on said sidewall to define a second strap opening that another arm of the person can be inserted through said second strap opening whereby said golf bag can be selectively supported on one shoulder by said first strap member to incline downwardly across the back of the person carrying said golf bag and can be selectively supported on both shoulders by said first and second strap members with said golf bag extending transversely across the back of the person carrying said golf bag.
As I stated in my July 5, 2007 Decision and Order, "Claim 14 . . . discloses the use of two straps, with each strap having an end for a total of four strap ends. ... The Claim ... require[s] . . . that the two ends of each strap define a 'strap opening' which is the open space through which a user's arm is inserted for purposes of picking up and carrying the bag in its intended manner." July 5, 2007 Decision and Order at p. 29. For purposes of illustration and discussion, I identified each of the four ends separately as "End A", "End B", "End C", and "End D". See July 5, 2007 Decision and Order at p. 18, Illustration 5. That Illustration is reproduced here for ease of reference. Claim 14 further requires that the attachment points of the strap ends be "longitudinally spaced." Id.
Izzo contends that the defendant's new style bag infringes upon claim 14 of the '704 patent because the ends of each strap member are attached in a way to make them longitudinally spaced. In support of this argument, Izzo contends that Ends A and D form one strap member, defining one strap opening, and that Ends B and C form the second strap member, defining the second strap opening.*fn1 Izzo argues that because Ends A and D are longitudinally spaced, as are Ends B and C, the new style bag reads on every element of Claim 14 of the '704 Patent, and therefore, the new style bag infringes on the '704 Patent. Izzo suggests that this court misapprehended Izzo's argument with respect to which strap ends form a strap member and strap opening, and contends that based on its clarification, the court must find, at the very least, that there is a question of fact as to which strap ends form a strap member and strap opening, and therefore, summary judgment on the issue of infringement is inappropriate.
This court, however, quite clearly understood Izzo's argument, and expressly rejected it. As I stated in my July 5, 2007 Decision and Order:
Because the ends of each strap must define the strap opening, neither the plaintiff nor any other party may simply characterize any pair of the four ends of the two straps as being the ends of a single strap. Instead, only those ends which ...