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Big Vision Private Ltd. v. E.I. Dupont De Nemours & Co.

United States District Court, S.D. New York

February 10, 2014

BIG VISION PRIVATE LTD., Plaintiff,
v.
E.I. DUPONT DE NEMOURS & CO., Defendant.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge.

On November 23, 2011, Plaintiff Big Vision Private Limited ("Big Vision" or "Plaintiff") initiated the instant action against Defendant E.I. DuPont De Nemours & Co. ("DuPont" or "Defendant"), alleging breach of contract, unfair competition, and misappropriation of trade secrets. Broadly speaking, Big Vision claims that (i) DuPont misappropriated its five-element trade secret method for producing recyclable banners over the course of three laboratory trials attended by both Big Vision and DuPont in 2008 and 2009, and (ii) its trade secret is reflected in several DuPont patent applications and in certain recyclable banner products that DuPont introduced to the market between 2009 and 2011. Pending before the Court is DuPont's motion for summary judgment. For the reasons set forth in the remainder of this Opinion, the motion is granted.

BACKGROUND[1]

A. Factual Background

1. The Parties and the Claims

Plaintiff Big Vision is a digital printing company with approximately 50 employees, headquartered in Mumbai, India. (Compl. ¶ 6; S. Visaria Tr. 10).[2] Big Vision has over 15 years' experience printing advertising banners and billboards. (Compl. ¶¶ 1, 6; Pl. 56.1 ¶ 139).

Defendant DuPont is a Delaware corporation headquartered in Wilmington, Delaware. (Def. 56.1 ¶ 1). DuPont's Tyvek® is a recyclable, nonwoven substrate made from polyethylene that has been used for over 20 years as an advertising banner. ( Id. at ¶ 52). Coated, recyclable Tyvek products have been developed and sold for at least 10 years by several companies. ( Id. at ¶ 53). DuPont also produces and sells specialty polymers and resins, such as Entira®, and commodity pigments such as titanium dioxide ("TiO2"). ( Id. at ¶ 2).[3]

Big Vision alleges that DuPont misappropriated its five-element trade secret for producing recyclable banners, which it defines in its briefing as: (i) a "suitably strong nonwoven polyolefin central layer"; (ii) "high pigment levels, including CaCO3"; (iii) "a layered structure efficiently made by coextrusion or lamination of a predominantly LDPE structure"; (iv) "minimal use of Entira or other expensive resins"; and (v) "surface treatment." (Pl. 56.1 ¶ 159; Pl. Opp. 23-24). Related to this claim is a claim for breach of contract, which Big Vision predicates on two non-disclosure agreements between the parties, and a claim for unfair competition. A careful review of the record - set forth herein with particular focus on the disclosures made by, and the agreements reached between, the parties - is essential to understanding the arguments now made to this Court.

2. Banner Production Generally

Banners are commonly produced by "extruding, " or coating, polyvinyl chloride ("PVC"), a polymer, onto the surface of a base, or "substrate, " which is usually a lightweight, woven fabric, such as polyester. (Def. 56.1 ¶¶ 5, 6). PVC banners are not recyclable. ( Id. at ¶ 8; Compl. ¶ 12). Substrates can also be made of polyethylene ("PE") or polypropylene ("PP"), both of which are of the class of polymers known as polyolefins, and both of which can, in certain circumstances, be recyclable. (Benim Decl. ¶ 9; S. Visaria Tr. 87-88).

Extrusion coating equipment coats the substrate one layer at a time, while coextrusion coating equipment coats the substrate with two or more layers simultaneously. (Def. 56.1 ¶ 10). The layers of the banner are referred to as the banner's "structure, " and are commonly referred to with letter designations, as, for example, "A/B/A" or "A/B." (Ronaghan Tr. 10-11).

The "masterbatch" is a customizable commercial blend of one or more additives in various concentrations that can be extruded onto the substrate. (Def. 56.1 ¶ 6). Various other materials, including resins and additives, can be added to the masterbatch or extruded separately to confer certain physical qualities onto the banner, such as opacity or a silky finish. ( Id. ).

Materials to be coated can include expensive, specialty resins like DuPont's Entira, and inexpensive, commodity resins like Low Density Polyethylene ("LDPE"). (Def. 56.1 ¶¶ 7, 57). LDPE is a widely-used and cost-effective extrusion coating resin. ( Id. at ¶ 85; Ex. 6 at 5 (Defendant's expert noting that LDPE is "widely known to be the least expensive and easiest to process resin for extrusion coating"); Reitman Tr. 216; Shokar Tr. 19-20 (noting that LDPE was the "most widely-used and cost-effective extrusion coating resin")). Other ingredients may include titanium dioxide (TiO2), one of the most-commonly used whitening elements worldwide. (Ex. 6 at 15 (noting that TiO2 is "the best of the opacifiers"). Calcium carbonate (CaCO3) is also frequently used to improve printability in the top layer of the banner, or as a filler or whitening agent. ( Id. at 14).

3. Big Vision Explores the Recyclable Banner Market

a. The Decision to Develop Recyclable Banners

In early 2007, perceiving a need in the market, Big Vision began exploring a project to develop cost-competitive recyclable banners for its own use and for resale. (Pl. 56.1 ¶¶ 140-41). In or around April 2007, Big Vision retained a polymer expert with experience in product development, Dr. Yatish Vasudeo, to assist in developing a recyclable banner. ( Id. at ¶ 144). Big Vision then entered into a written confidentiality agreement with Dr. Vasudeo that, inter alia, prevented him from disclosing Big Vision's "business and manufacturing secrets." ( Id. at ¶ 148; Ex. 150).

b. Circulation of the Circle Graphics Article and Subsequent Patent Searches

In April 2007, Manish Avashia, the executive director of Big Vision, circulated an article to the company's managing director, Shailesh Visaria ("Visaria"), and to Dr. Vasudeo from "Sign of the Times, " a U.S.-based trade publication. (Def. 56.1 ¶ 86; Pl. 56.1 ¶ 139; Avashia Tr. 8; Ex. 44). The article concerned a recyclable banner patent recently filed by Circle Graphics, a Denver-based printing company (the "Circle Graphics Patent"). (Ex. 44).[4] Shortly thereafter, Visaria began conducting patent searches on the Internet, in the course of which he found and reviewed a number of patents related to recyclable banners, including ones filed by Circle Graphics and 3M (the "3M Patent").[5] (S. Visaria Tr. 131-32, 174-76).[6] Visaria also obtained a recyclable banner sample from InterWrap shortly thereafter. (S. Visaria Tr. 107, 150).[7]

c. Big Vision Produces a Test Film at Charu Plastics

As part of its recyclable banner development project, in April 2007, Big Vision contacted Charu Plastics in Indore, India, and asked them to produce a blown, white, opaque film with CaCO3, TiO2, and corona treatment. (Pl. 56.1 ¶¶ 145-46; S. Visaria Tr. 120, 122; Ex. 29). In his initial e-mail communication with Charu Plastics, Visaria attached a copy of the "Sign of the Times" article regarding Circle Graphics' patent for recyclable banners. (Ex. 29).

Around June 2007, Charu Plastics produced a blown film for Big Vision that included CaCO3, TiO2, LDPE, and corona treatment. (Pl. 56.1 ¶ 145; S. Visaria Tr. 122). Shailesh Visaria and Urmil Visaria ("Urmil"), the manager of marketing at Big Vision and Shailesh's nephew, provided different accounts of how the film came to be produced. (U. Visaria Tr. 14, 18). Urmil testified that his uncle instructed him to give Charu Plastics a pre-mixed blend of TiO2, CaCO3, and LDPE, and that Charu Plastics later added in LLDPE. ( Id. at 57-58).

Visaria testified, by contrast, that "[w]e asked [Charu Plastics] for [a] white opaque film with calcium carbonate and TiO2 with corona treatment, " but did not specify the amount of TiO2 or CaCO3 to use. (S. Visaria Tr. 122-23).[8] Visaria further testified that Big Vision did not know the precise amounts of ingredients used in the film, since Big Vision did not send the final product out for analysis. ( Id. at 122-23). While Big Vision concededly did not enter into a written non-disclosure agreement with Charu Plastics, Visaria testified that Big Vision "didn't tell [Charu Plastics] what the intentions of the film" were and "didn't give them any [of the] structure[s]." ( Id. at 121-22).

d. Big Vision Seeks a Manufacturer

Big Vision began contacting manufacturers in 2007 and 2008 with the intention of purchasing its own machinery to manufacture recyclable banners. (Pl. 56.1 ¶ 147). In early 2007, Big Vision contacted various manufacturers and disclosed the "recipe" from the 3M Patent as its intended formulation. (Ex. 63, 64, 65; S. Visaria Tr. 188-92, 194).[9] That formulation included the specific percentages of the ingredients for, and structure of, each layer. ( See Ex. 63, 65).[10] Big Vision did not enter into confidentiality agreements with these manufacturers, but Visaria testified that he had an "understanding of confidentiality" or an "understanding of confidentiality orally" with them. (S. Visaria Tr. 188, 191-93).

Big Vision then turned to Davis-Standard, a noted manufacturer of extrusion and coextrusion equipment. (Def. 56.1 ¶ 13). In May 2007, Shailesh Visaria met Philip Tan, a sales representative from Davis-Standard. (S. Visaria Tr. 145-46). Visaria testified that he told Tan that Big Vision "wanted to manufacture a polyethylene film, " and may have discussed the Circle Graphics Patent with Tan. ( Id. at 145-47). In April 2008, Big Vision entered into a contract with Davis-Standard for the production of an extrusion coating line. (Ex. 32). Visaria testified that he and three employees of Davis-Standard exchanged "verbal [] terms of confidentiality, " but conceded that they did not enter into a written confidentiality agreement. (S. Visaria Tr. 219-21). Christine Ronaghan, the sole Davis-Standard witness deposed in this case, testified that to her knowledge, Big Vision and Davis-Standard did not enter into a confidentiality agreement. (Ronaghan Tr. 50).

4. DuPont's Pre-2008 Recyclable Banner Development

DuPont was another company involved in the recyclable banner market; of note, at least two different DuPont divisions in North America had explored recyclable banners before being introduced to Big Vision. By way of background, DuPont's previous coated-fabric development efforts, including banners, are reflected in a variety of patent applications. ( See Def. 56.1 ¶¶ 66-68, 70-72).[11] In 2002, Dr. Richard Chou, a chemist in DuPont's Polymers and Industrial Products division ("P&IP"), began development of a copolymer known as E/MAME. (Chou Tr. 12, 20). In or around 2006, E/MAME became, to borrow from DuPont's terminology, a "platform" that included a number of related products, including Fusabond 603M and Entira. ( Id. at 20, 22). Entira, in particular, is an ethylene copolymer resin that blends two of DuPont's proprietary resins, [redacted] and [redacted]. ( Id. at 23; Def. 56.1 ¶ 19).

Beginning around 2006, Dr. Chou and H.I. Lee, a P&IP chemist with extensive experience developing specialty polymers and resins, explored using Entira in various coated-fabric applications, including recyclable banners and projection screens. (Chou Tr. 41-42, 81; Lee Tr. 22). As part of these explorations, Lee and others within DuPont ran a series of tests between 2006 and 2008 using specialty resins, including a precursor to Entira, and LDPE, as well as using LDPE alone, on various substrates. (Def. 56.1 ¶ 58).[12] Lee was also working at that time to develop recyclable advertising banners using [redacted] for several customers in Asia. (Lee Tr. 30-31).

"Downgauging" is an extremely common technique in the extrusion coating industry; it simply means to use less of a material, usually in order to reduce costs. (Lee Tr. 136). In fact, Lee testified that when he entered the packaging industry in 1980, the first term he learned was "downgauging." ( Id. ). Perhaps because it was so common, Lee testified that when he develops or tests any resin, he always tries downgauging that resin in laboratory trials to determine the minimal possible thickness at which it still functions. ( Id. at 137, 144-45). Thus, his normal laboratory procedure is to first try to extrude 100% of the expensive resin, and then "split [the resin] using LDPE" in a two-or three-layer structure in order to "reduce the material cost." ( Id. at 181).

A separate DuPont division, known as Nonwoven Fabrics ("NOW"), began developing a recyclable banner product around 2007, using Tyvek as a substrate. (Pl. 56.1 Response ¶ 54; Teather Tr. 23-24). The lead developer for NOW, Eric Teather, reached out to P&IP to obtain resins with which to coat Tyvek around 2008. (Teather Tr. 44-45; Pryor Tr. 60). Entira was recommended to Teather by Dr. Seqwana Pryor, a platform leader in P&IP who was tasked with finding market applications for E/MAME technology. (Pryor Tr. 13-15). To Teather's knowledge, he was the first person at DuPont to coat EntiraCoat[13] onto a substrate for the purpose of creating a recyclable banner or projection screen, in 2007. (Teather Tr. 47).

In 2007 and 2008, NOW engaged in several joint trials with InterWrap to test NOW's intended recyclable banner formulations. (Teather Tr. 20, 23). During those trials, DuPont tested structures in which Entira was extruded along with TiO2 and CaCO3 onto a Tyvek substrate, with a corona finishing treatment. (Def. 56.1 ¶ 63; Shokar Tr. 47-52). DuPont filed a patent application in November 2008 that reflected this structure, described by Plaintiff as a "[r]ecyclable coated banner' in which layers of ethylene acrylic resin [Entira] are affixed, via extrusion coat[ing, ]' to a planar polyolefin banner substrate.'" (Compl. ¶ 50; Teather Tr. 123-25).

5. The Davis-Standard Trials

After Big Vision entered into contract with Davis-Standard, the two companies began planning a series of laboratory trials to test Big Vision's intended machine specifications. Three such trials took place at Davis-Standard between 2008 and 2009 (the "Davis-Standard Trials" or the "Trials"). As described herein, the undisputed evidence shows that DuPont was initially solicited by Davis-Standard for information and insights, and ultimately was invited to attend the trials.

a. The First Trial: June 4-5, 2008

i. Preparation for the First Trial and Development of the Trial Plan

In April 2008, Big Vision sent a polyethylene banner sample that Shailesh Visaria had obtained from "an exhibition or something" to Davis-Standard "[t]o show [them] that's the kind of product that we would like to coat and manufacture." (S. Visaria Tr. 261-63). Big Vision asked Davis-Standard to determine the sample's composition; Davis-Standard, in turn, asked DuPont to analyze the sample, which it did in May 2008. (Def. 56.1 ¶ 96; S. Visaria Tr. 262; Ex. 33).

On May 8, 2008, Ken Piora, a sales manager at Davis-Standard, forwarded the laboratory results to Visaria, writing:

Essentially, [the sample] is a monolayer 65 micron LD[PE]/LLD[PE] coating with CaCO3 onto the PP [polypropylene] fabric. Actual percentage of CaCO3 is [s]till being tested, but is believed to be 10-12%. From discussions with DuPont, they're recommending coextrusion of LD[PE]/LLD[PE] with their Entira Coat 100.[14] They claim the Entira coat has excellent bonding strength to the nonwoven and accepts digital inks very well. Of course we can make our laboratory available for any trials.

(Ex. 33; S. Visaria Tr. 302-04). The "discussions with DuPont" referenced in the e-mail had begun the previous day, when Piora had written to Dr. Seqwana Pryor in DuPont's P&IP division. (Ex. 35 at DSP0026771). Piora related to Dr. Pryor that he was working "on a banner project in India [] that is very active, " and asked her, "[i]n your experience what would be the coating thicknesses (A/B) for this type of banner application[?]" ( Id. ). Dr. Pryor recommended a coating thickness of [redacted] mils, and attached a data sheet on EntiraCoat. ( Id. at DSP0026770; Pryor Tr. 78-79).

Piora replied by noting that "the banner material will be primarily a nonwoven substrate, " and then asked Dr. Pryor to clarify the layer distribution and coating weights for the banner application. (Ex. 35 at DSP0026769). Dr. Pryor explained:

you could do [redacted]mil A coating/B (nonwoven) /[redacted]mil A coating... the key is to get enough coating to print on, the strength will come from the nonwoven substrate... in some applications we've gone as high as [redacted]mil. [Dr. Pryor then suggested the use of an additive package containing a flame retardant, and shared that in DuPont's experience] Entira Coat/PE [polyethylene] or Entira Coat as the A laminate/coating gives you the best... feel & drapability [] and printability as an alternative to PVC coated banners.

( Id. at DSP0026768; Pryor Tr. 78-79).

Piora then advised Dr. Pryor that

[o]ur potential customer would like to run a lab trial at our Fulton, NY facility on June 2-5[, 2008]. The end product is advertisement banners with digital printing. Could DuPont donate some resin for this trial? 1000 pounds of Entira. 2000 pounds of LDPE. We would like to run A/B & B/A/B structures. We hope DuPont could participate in this trial.

(Ex. 35 at DSP0026767-68). Dr. Pryor responded that EntiraCoat 100 was "restricted inventory" and that DuPont would need to know the customer's name and "possibly [have] a confidentiality agreement in place to [perform a] trial [with] the Entira Coat 100." ( Id. at DSP0026767; Pryor Tr. 88-89).

Christine Ronaghan, a Davis-Standard process engineer, then drafted the trial plan for the First Trial with input from Ken Piora and Big Vision. (Ronaghan Tr. 39). Ronaghan was aware that Piora had reached out to Dr. Pryor at DuPont for advice regarding coating thicknesses, which Big Vision and Piora had discussed before, but recalled that Big Vision had not "actually nailed down exactly what they wanted to do." ( Id. at 74). More to the point, Ronaghan testified that prior to the First Trial, Big Vision

had targeted a specific coating weight [and] had targeted layer structures. We had discussed, again, being two layers. There's some options; A/B; A/B/A. We talked about that. And - and they had made some recommendations and we agreed to what we wanted to try. And they had input on the fabrics. So they chose the fabrics and supplied the fabrics. So they were wholly responsible for that at that point.

( Id. at 39). When asked to describe Big Vision's "recommendations, " Ronaghan clarified that they were not so much "recommendations, " but instead "requests, " such as "[t]his is what we would like to see, this sort of layer structure, they talked about A/B/A. And they also made some requests in terms of formulation." ( Id. at 39-40). Big Vision has not disputed Ronaghan's testimony in this regard.

Ronaghan also recalled that Big Vision "had asked for some assistance [] in taking a first stab at selecting these masterbatches, " so Davis-Standard "consult[ed] the suppliers of those materials and ask[ed] for their recommendations." (Ronaghan Tr. 40). Big Vision does not dispute that it asked Davis-Standard to select the masterbatches, which included such ubiquitous additives as TiO2 and CaCO3. (S. Visaria Tr. 384).

On May 23, 2008, Piora sent Visaria a "draft of the proposed 2 day trial plan, " solicited comments and suggestions from Big Vision, and asked Big Vision to "tell us the percentages of CaCO3 and when/where you would like the TiO2." (Ex. 131 at BV-00156142-44). The draft trial plan reflected eight separate B/A/B coating structures: three did not contain Entira; one contained only Entira; and four contained Entira and LDPE, CaCO3, and TiO2. ( Id. ).[15] The plan also indicated that a variety of finishing treatments would be used. ( Id. ). In response, Visaria wrote: "[w]e need to use TiO2 in all the structures to make the material white (opaque). We feel CaCO3 should be added on the top layer as it would help printability." ( Id. at BV-0015641). Piora confirmed the precise masterbatches and coating amounts the next day, and promised to submit a revised trial plan "focused on good printing." ( Id. ).[16]

When the parties met at Davis-Standard for the First Trial on June 4, 2008, Visaria began discussing the 3M Patent with the representatives from DuPont and Davis-Standard. (Pryor Tr. 39, 87-88; S. Visaria Tr. 177-79). Upon hearing this, Dr. Pryor stepped out of the conference room to call her supervisor and request that they execute a confidentiality agreement with Big Vision "to protect all parties... including DuPont." (Pryor Tr. 40, 108-09). Dr. Pryor also testified that DuPont commonly requires its customers to sign a confidentiality agreement in order to use a product, such as Entira, that is in "restricted inventory." ( Id. at 89).[17]

ii. The First Trial

The First Trial was held on June 4-5, 2008. (Def. 56.1 ¶ 97). The DuPont attendees were Drs. Pryor and Chou. (Pl. 56.1 ¶ 157; Ex. 165). The Big Vision attendees were Shailesh Visaria and Dr. Vasudeo. (Vasudeo Tr. 65; S. Visaria Tr. 362).

The Davis-Standard trial report (the "Trial Report") was drafted by Christine Ronaghan, and summarizes all three Trials. (Ronaghan Tr. 117; Ex. 75).[18] The Trial Report notes that Big Vision supplied the substrate, DuPont supplied the Entira, and Davis-Standard chose and purchased the CaCO3 and TiO2 masterbatches from Schulman, a commercial masterbatch manufacturer. (Ex. 75; see also S. Visaria Tr. 384 (not disputing this fact); Ronaghan Tr. 117). The Trial Report notes that "many structures" were run, including variations of LDPE coating on the backside, different layering ratios, different coating structures and weights of Entira, different coating structures and weights of CaCO3 and TiO2, and various finishing treatments. (Ex. 75).

The parties now dispute what was tested at the First Trial. It is undisputed that only A/B/A structures were coextruded onto various nonwoven substrates; that one structure was comprised only of Entira; and that other structures were comprised of varying combinations of Entira (in concentrations of [redacted]-[redacted]%), LLDPE, LDPE, TiO2 (at [redacted]%), and CaCO3 (at [redacted]%). ( See Pl. 56.1 ¶¶ 158-59; Def. 56.1 Response ¶¶ 158-59). The parties further agree that LDPE and LLDPE, TiO2, or CaCO3 structures were tested without Entira, but DuPont argues that the LDPE structures were coated only on the back, non-printable side of the substrate. ( Id. ).[19]

b. The Second Trial: August 5-6, 2008

i. Preparation for the Second Trial and Development

of a Trial Plan

The second Davis-Standard trial (the "Second Trial") was held on August 5-6, 2008. (Def. 56.1 ¶ 101). Ahead of the Second Trial, Ken Piora wrote to Drs. Pryor and Chou at DuPont on July 22, 2008, stating:

During our last trials you mentioned that you were going to make suggestions on the blended materials. We do plan to blend the ENTIRA with TiO2, CaCO3, UV. Could you be so kind and make recommendations on the above?

(Ex. 36 at DSP0006146). Upon receiving no response, Piora wrote again six days later:

I have been in contact with Shailesh of Big Vision and he mentioned that you were in communication with him about the resin. 1 - Do you plan to participate in the trial? 2 - What is the status of the ENTIRA resin? 3 - Christine has been trying to get in contact with your colleague about the TiO2, CaCO3 & UV concentrates with no success yet.... Is there anyone else? As you can imagine, I am getting nervous since the trial is within 7 days.

( Id. ).

H.I. Lee responded to Piora's request the next day:

In regards with the blend ratio of TiO2, CaCO3, UV with Entira Coat 100, I believe it would [] depend on the customer's requirements for the opacity, UV blocking performance, etc. I don't know if you have blended these additives in your previous trial run... but [redacted]% blending of TiO2 would be a good starting point from my experience. We can increase blend ratio of TiO2 in further if it is needed, such as [up to] [redacted]~[redacted]%... I hope you Ken or Christine can talk to Shailesh as to this subject - what level of these additives he wants to blend with Entira Coat 100.

(Ex. 36 at DSP006141-42; Lee Tr. 206-09).

ii. The Second Trial

The Second Trial was attended by Dr. Chou, H.I. Lee, Shailesh Visaria, Urmil Visaria, Manish Avashia, and Dr. Vasudeo. (Lee Tr. 79-191; S. Visaria Tr. 364; U. Visaria Tr. 129; Avashia Tr. 33; Vasudeo Tr. 56). According to the Davis-Standard Trial Report prepared after the trial, UV additive was included for the first time per the recommendation of Schulman (the masterbatch supplier chosen by Davis-Standard), and Davis-Standard chose and purchased the CaCO3, TiO2, and UV additives. (Ex. 75; Ronaghan Tr. 117-18). The report noted, and Ronaghan confirmed, that "many fabrics and various coatweights were evaluated"; that "[s]everal changes were made [] to processing temperature, blend formulation, etc."; and that the "removal of the UV additive" seemed to improve the appearance." (Ex. 75; Ronaghan Tr. 117-18). The amounts of TiO2 and CaCO3 were increased up to [redacted]% and [redacted]%, respectively. (Ex. 75; Ronaghan Tr. 117-18).

The parties again dispute before this Court what was tested at the Second Trial. Plaintiff states that LLDPE- and LDPE-only structures were run, in addition to several structures combining Entira and LDPE. (Pl. 56.1 ¶ 167). Defendant argues instead that LDPE was only coated on the reverse, non-printable surface. (Def. 56.1 Response ¶ 167).[20]

Shailesh Visaria testified that DuPont made additive suggestions ahead of the Second Trial, and that the parties "worked together" during that Trial to "try and identify why the problems are coming in." (S. Visaria Tr. 350-51). Visaria further testified that the concentrations of additives were changed during the Trial. ( Id. ) Similarly, Urmil Visaria described the Second Trial as a "collective call between Davis-Standard and [Big Vision] and DuPont." (U. Visaria Tr. 129). He also recalled that the "UV additives [were] not compiling with Entira, " so "we jointly discussed it and [the UV additives were] removed and after that it ran perfectly all right." ( Id. at 130). Urmil also testified that it was a "joint decision" to increase the amount of TiO2, and CaCO3 by [redacted] to [redacted] percent at the trial. ( Id. at 130-31).

Conversely, Christine Ronaghan testified that Big Vision was "struggling" to come up with the formulation to use, and only conveyed its desire for a more opaque product; it was either Ronaghan or Lee who suggested the specific amount of TiO2 to use. (Ronaghan Tr. 97-100; Lee Tr. 67-71). Urmil also testified (and DuPont disputes) that Big Vision determined that the amount of Entira should be downgauged to [redacted] percent in the Second Trial (from the [redacted] percent used in the First Trial) in order to "reduce cost." (U. Visaria Tr. 131; but see Def. 56.1 Response ¶ 166 (arguing that Big Vision did not choose the Entira amount because "H.I. Lee and Davis-Standard ran the [Second Trial]")). The parties have not alleged what percentages of Entira were tested at the Second Trial, and the Trial Plan and Run Reports do not clearly indicate the amounts of Entira tested. ( See Pl. 56.1 ¶ 167; Ex. 75, 77).

c. The Third Trial: June 5, 2009

The third Davis-Standard trial (the "Third Trial") occurred on June 5, 2009, and was attended by Shailesh Visaria and Dr. Vasudeo from Big Vision; Diane Hahm and Dr. Chou from DuPont's P&IP division; and Rob McPheeters from DuPont's NOW division. (Def. 56.1 ¶ 102; S. Visaria Tr. 376; Vasudeo Tr. 58; Hahm Tr. 129; Chou Tr. 229).[21]

Diane Hahm testified that she drafted the trial plan for the Third Trial (the "Third Trial Plan") with input from Davis-Standard personnel, who conveyed Big Vision's "goal" to manufacture a recyclable, white, non-PVC banner. (Hahm Tr. 96-98). Big Vision does not dispute this testimony. (Pl. 56.1 Response ¶ 102). Christine Ronaghan testified similarly that Hahm recommended and supplied the additives for the formulations that were run at the Third Trial. (Ronaghan Tr. 116). Hahm recalled that Big Vision asked for DuPont's assistance because "they didn't have any processing experience... of their own." (Hahm Tr. 94, 96-98). Shailesh Visaria conceded that DuPont suggested the additives for the Third Trial. (S. Visaria Tr. 387-88).

The Davis-Standard Trial Report stated:

The objective of the third trial was to process the DuPont recommended formulations in an AB structure onto various grades of CLAF [nonwoven] fabric. The scope of the trial was not a continuation of Trial 2, since all additive packages were different, and the UV and FR [flame retardant] were new to the blend. In retrospect, the amounts of materials supplied, including fabric, additives, LDPE were inadequate given that the formulations and materials had all changed.

(Ex. 75 (emphasis added); Ronaghan Tr. 118-21). The Trial Report further noted that "DuPont made additive recommendation[s] based on previous experience in their lab with the Entira resin and various masterbatch grades." (Ex. 75; Ronaghan Tr. 116, 134-35). The formulations included TiO2, CaCO3, UV additives, and flame retardants. (Ronaghan Tr. 116).

The Trial Report noted that "[t]here remain several concerns over formulation [including opacity from the TiO2 levels, the level of flame retardancy, and the additive package to be selected].... DuPont will be issuing a report on formulation and planned testing at their site to assist [Big Vision] in defining the required blends for their application." (Ex. 75; Hahm Tr. 118-19 (testifying to the internal tests DuPont ran for Big Vision in order to troubleshoot the die-buildup issue experienced at the Third Trial)). The Report also detailed the various structures and formulations run, and the problems encountered with each. ( Id. ). The Report ended by noting that "substantial questions regarding the optimal formulation still exist, " and recommended that DuPont work with Big Vision to "optimize blend formulation" at small-scale tests at DuPont. ( Id. ).

Diane Hahm recalled that at the Third Trial, the TiO2 percentage was increased to [redacted] percent, which, in Hahm's opinion, caused the "mixing" to become poor and the samples to have a "very poor appearance." (Hahm Tr. 103). Hahm also testified that at the trial, she "explain[ed] the trial plan [to Big Vision] and explained the extrusion coating process, because they were not familiar with that whole process." ( Id. at 98). Hahm prepared a post-trial report, in which she recommended a three-layer coextruded option as the easiest structure to run at the lowest cost. ( Id. at 104-05). Going forward, ...


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