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Sorrell Holdings LLC v. Infinity Headwear & Apparel, LLC

United States District Court, W.D. Arkansas, Texarkana Division

April 25, 2018

SORRELL HOLDINGS, LLC PLAINTIFF
v.
INFINITY HEADWEAR &APPAREL, LLC DEFENDANT

          ORDER

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE.

         Defendant, Infinity Headwear & Apparel, LLC ("Infinity"), filed a Motion Summary Judgment. ECF No. 34.[1] Plaintiff Sorrell Holdings, LLC ("Sorrell") filed their response. ECF No. 39. The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 33. The Court having reviewed the pleadings finds as follows:

         1. Background:

         Plaintiff Sorrell alleges Infinity's product line, the MascotWear Mascot Bath Loofahs (“Product”), infringes on United States Patent No. 6, 887, 007 (“007 Patent”). Specifically, Sorrell alleges the Product infringed on the 007 Patent's eleventh claim (“Claim 11"). Claim 11 covers a washing device comprising: a scrubber made of a foraminous material and gathered to form a pleated ball; a figurative handle coupled to the scrubber; and a cinch for binding the foraminous material into the pleated ball and forming a loop extending around at least a portion of said handle to secure the handle to the scrubber. ECF No. 1-1, Pg. 15.

         2. Applicable Law:

         The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986). Summary judgment is proper under Rule 56(a) of the Federal Rules of Civil Procedure “if 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(a). A dispute about a material fact is genuine when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id.

         When the summary judgment movants demonstrate the absence of a genuine dispute over any material fact, the burden shifts to the non-movant to show there is a genuine factual issue for trial. Celotex, 477 U.S. at 324. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). A court must draw all reasonable inferences in favor of the non-moving party. BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378 (Fed.Cir.2007).

         3. Discussion:

         Infinity moves for summary judgment, arguing Claim 11 of the 007 Patent is invalid for obviousness in light of prior art in the area of hand-held washing devices including U.S. Patent Nos.: (1) 5, 727, 278, (“278 Patent”); (2) 5, 937, 472, (“472 Patent”); (3) 6, 161, 246, (“246 Patent”); (4) 6, 276, 022, (“022 Patent”); (5) 6, 370, 723, (“723 Patent”); (6) 6, 510, 577, (“577 Patent”); and (7) 7, 140, 063, (“063 Patent”) (collectively, the “Patents”). Additionally, Infinity argues in the alternative, they have not infringed the 007 Patent.

         A. Obviousness

         There is a presumption that a patent is valid. Ruiz v. A.B. Chance Co., 234 F.3d 654, 662 (Fed. Cir. 2000). Infinity bears the burden of proving invalidity by clear and convincing evidence, and the burden never shifts to Sorrell, the patentee, to prove validity of the patent at issue. Title 35 U.S.C. § 103, address non-obvious subject matter of patents and states that a patent for a claimed invention may not be obtained, if:

the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.

         Further, the Court has stated that “Obviousness is a legal question based on the following underlying factual inquiries: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) secondary evidence of nonobviousness.” Ivera Med. Corp. v. Hospira, Inc., 801 F.3d 1336, 1344 (Fed. Cir. 2015). “Summary judgment of obviousness is appropriate if ‘the content of the prior art, the scope of the patent claim, and the level of the ordinary skill in the art are not in material dispute, and the obviousness of the claim is apparent in light of these factors.' ” TriMed, Inc. v. Stryker Corp., 608 F.3d 1333, 1341 (Fed. Cir. 2010) (quoting KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 427 (2007)).

         To establish invalidity, Infinity must do more than merely compare the prior art and the accused product. Zenith Electronics Corp. v. PDI Communication Systems, Inc., 522 F.3d 1348, 1363 (Fed. Cir. 2008) (“[M]ere proof that the prior art is identical, in all material respects, to an allegedly infringing product cannot constitute clear and convincing evidence of invalidity.”). Infinity must show that each element of the challenged claim is present in the prior art systems. Zenith, 522 F.3d at 1363. Infinity has not demonstrated the lack of a genuine dispute of material fact as to whether or not the Patents referenced include all elements of the claim at issue. For example, material factual disputes remain as to whether or not the Patents referenced suggest “a figurative handle coupled to the scrubber" and “a cinch for binding the foraminous material into the pleated ball and forming a loop extending around at least a ...


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