United States District Court, W.D. Arkansas, Texarkana Division
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
Infinity Headwear & Apparel, LLC ("Infinity"),
filed a Motion Summary Judgment. ECF No. 34. 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:
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.
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.
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).
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.
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.
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)).
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 ...