Case 1:16-cv-00041-CFC Document 245 Filed 04/16/19 Page 1 of 6 PageID #: 10897
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`F'REAL FOODS, LLC and
`RICH PRODUCTS
`CORPORATION,
`
`Plaintiffs,
`
`v.
`
`Civil Action No. 16-41-CFC
`
`HAMIL TON BEACH
`BRANDS, INC. and HERSHEY :
`CREAMERY COrvfi>ANY,
`
`Defendants.:
`
`MEMORANDUM ORDER
`
`In a single filing (D.1. 177), Defendants have asked the Court to grant five
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`motions for summary judgment. Having reviewed the briefing filed by the parties
`
`in support and opposition to D.I. 177 and heard oral argument, and mindful of the
`
`fast-approaching trial date, I will address in this Memorandum Order the two
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`motions in D.I. 177 for summary judgment of invalidity. First, Defendants seek
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`summary judgment that U.S. Patent No. 5,803,377 (the "#377 patent") is invalid as
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`indefinite. See D.I. 178 at 19-23. Second, Defendants seek summary judgment
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`that U.S. Patent No. 7,520,662 (the "#662 patent") and claim 22 of U.S. Patent No.
`
`7,144,150 (the "#150 patent") are invalid as indefinite. See D.I. 178 at 23-25.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`F'REAL FOODS, LLC and
`RICH PRODUCTS
`CORPORATION,
`
`Plaintiffs,
`
`v.
`
`Civil Action No. 16-41-CFC
`
`HAMIL TON BEACH
`BRANDS, INC. and HERSHEY :
`CREAMERY COrvfi>ANY,
`
`Defendants.:
`
`MEMORANDUM ORDER
`
`In a single filing (D.1. 177), Defendants have asked the Court to grant five
`
`motions for summary judgment. Having reviewed the briefing filed by the parties
`
`in support and opposition to D.I. 177 and heard oral argument, and mindful of the
`
`fast-approaching trial date, I will address in this Memorandum Order the two
`
`motions in D.I. 177 for summary judgment of invalidity. First, Defendants seek
`
`summary judgment that U.S. Patent No. 5,803,377 (the "#377 patent") is invalid as
`
`indefinite. See D.I. 178 at 19-23. Second, Defendants seek summary judgment
`
`that U.S. Patent No. 7,520,662 (the "#662 patent") and claim 22 of U.S. Patent No.
`
`7,144,150 (the "#150 patent") are invalid as indefinite. See D.I. 178 at 23-25.
`
`
`
`Case 1:16-cv-00041-CFC Document 245 Filed 04/16/19 Page 2 of 6 PageID #: 10898
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`1.
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`"The court shall grant summary judgment if the movant shows that
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`there is no genuine dispute as to any material fact and the movant is entitled to
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`judgment as a matter of law." FED. R. Crv. P. 56(a). "[T]he party moving for
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`summary judgment ... bears the burden of demonstrating the absence of any
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`genuine issues of material fact." Celotex Corp. v. Catrett, 477 U.S. 317,323
`
`(1986).
`
`2.
`
`If "a patent's claims, viewed in light of [the remainder of] the
`
`specification and prosecution history, inform those skilled in the art about the
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`scope of the invention with reasonable certainty," then the patent is not indefinite.
`
`Nautilus, Inc. v. Biosig Instruments, Inc., 573 U.S. 898,910 (2014). Proof of
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`indefiniteness requires clear and convincing evidence. See Microsoft Corp. v. I 4 I
`
`Ltd. P 'ship, 564 U.S. 91, 95 (2011) (holding that"§ 282 [of the Patent Act]
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`requires an invalidity defense to be proved by clear and convincing evidence").
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`3. With respect to the #377 patent, Defendants make two arguments.
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`Defendants argue first that a lack of corresponding structure for "shaving" and
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`"grinding" means renders the entire patent invalid as indefinite. See D.I. 178 at
`
`19-21. Defendants acknowledge that there is corresponding structure for "grating"
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`means. See id. at 20. Plaintiffs' expert, Dr. Maynes, has sworn in his declaration
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`that a person of ordinary skill in the art would understand the terms "shaving,"
`
`"grinding," and "grating" to be interchangeable. See D.I. 201 at ,r 18. Dr. Maynes'
`
`2
`
`
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`Case 1:16-cv-00041-CFC Document 245 Filed 04/16/19 Page 3 of 6 PageID #: 10899
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`statements create a genuine dispute of material fact, making summary judgment
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`improper. See Dow Chem. Co. v. Nova Chems. Corp., 809 F.3d 1223, 1225 (Fed.
`
`Cir. 2015) ("A question about the state of the knowledge of a skilled artisan is a
`
`question of fact .... ").
`
`4.
`
`Defendants also argue that claim 18 of the #3 77 patent is invalid
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`because there is no corresponding structure for the "control means," which the
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`Court identified as "a microprocessor programmed to instruct the carriage motor to
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`move the blade assembly between the upper and lower blade positions at least
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`twice," because the specification does not disclose an "algorithm" for such a
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`microprocessor. See D.I. 178 at 21-23 (quoting D.I. 83 at 7).
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`5.
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`For means-plus-function claims, "the specification must contain
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`sufficient descriptive text by which a person of skill in the field of the invention
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`would know and understand what structure corresponds to the means limitation."
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`Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1383-84 (Fed. Cir. 2011)
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`(internal quotation marks and citation omitted). "[A] means-plus-function term [in
`
`the claims] is impermissibly indefinite ... when [ the remainder of] the
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`specification simply describes the function to be performed, not the algorithm by
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`which it is performed." Id. at 1384 (internal quotation marks and citation omitted).
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`"The usage 'algorithm' in computer systems has broad meaning, for it
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`encompasses in essence a series of instructions for the computer to follow, whether
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`3
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`
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`Case 1:16-cv-00041-CFC Document 245 Filed 04/16/19 Page 4 of 6 PageID #: 10900
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`in mathematical formula, or a word description of the procedure to be implemented
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`by a suitably programmed computer." Id. (internal quotation marks and citation
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`omitted). The term "algorithm" is "a term of art in its broad sense, i.e., to identify
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`a step-by-step procedure for accomplishing a given result." Id. at 13 85 (internal
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`quotation marks and citation omitted). "[T]he patent need only disclose sufficient
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`structure for a person of skill in the field to provide an operative software program
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`for the specified function." Id. "The amount of detail required to be included in
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`claims depends on the particular invention and the prior art." Id. (internal
`
`quotation marks and citation omitted). "In tum, the amount of detail that must be
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`included in [the remainder of] the specification depends on the subject matter that
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`is described and its role in the invention as a whole, in view of the existing
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`knowledge in the field of the invention." Id. "For computer-implemented
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`procedures, the computer code is not required to be included in the patent
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`specification." Id. "A description of the function in words may disclose, at least to
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`the satisfaction of one of ordinary skill in the art, enough of an algorithm to
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`provide the necessary structure under [the relevant provision in the Patent Act]."
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`6. With respect to claim 18 of the #3 77 patent, Plaintiffs' expert, Dr.
`
`Maynes, has sworn in his declaration that the patent discloses sufficient structure
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`for a person of skill in the art to provide an operative software program for the
`
`specified function. See D.I. 201 at ,r 20. Dr. Maynes' statements create a genuine
`
`4
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`
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`Case 1:16-cv-00041-CFC Document 245 Filed 04/16/19 Page 5 of 6 PageID #: 10901
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`dispute of material fact, making summary judgment improper. I will therefore
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`deny Defendants' motion for summary judgment that the #377 patent is invalid.
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`7. With respect to the #662 patent and claim 22 of the #150 patent,
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`Defendants argue that the claims are invalid as indefinite based on the "sufficient
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`mass" limitations. See D.1. 178 at 23-25.
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`8.
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`"When a word of degree is used, the court must determine whether the
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`patent provides some standard for measuring that degree." Biosig Instruments, Inc.
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`v. Nautilus, Inc., 783 F.3d 1374, 1378 (Fed. Cir. 2015) (internal quotation marks
`
`and citations omitted). "Claim language employing terms of degree has long been
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`found definite where it provided enough certainty to one of skill in the art when
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`read in the context of the invention." Id. (internal quotation marks and citation
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`omitted).
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`9.
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`Plaintiffs' expert, Dr. Maynes, has sworn in his declaration that a
`
`person of ordinary skill in the art would understand the term "sufficient mass" in
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`light of the Court's claim construction of the term. See D.I. 201 at ,r 38 ("As
`
`reflected in the Court's construction, if the splash shield is 'heavy enough to create
`
`sufficient downward force on the vessel so as to retain the vessel within the holder'
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`during mixing, it has 'sufficient mass.' On the other hand, if the splash shield is
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`not heavy enough to retain the vessel within the holder during mixing (i.e., the cup
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`flies out of the holder), the splash shield does not have 'sufficient mass."' ( citation
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`5
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`
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`Case 1:16-cv-00041-CFC Document 245 Filed 04/16/19 Page 6 of 6 PageID #: 10902
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`omitted)). Because Dr. Maynes' statements create a genuine dispute of material
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`fact about whether the "sufficient mass" limitation is clear enough to a person of
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`skill in the art, I will deny Defendants' motion.
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`WHEREFORE, on this Sixteenth day of April in 2019, IT IS HEREBY
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`ORDERED that:
`
`1.
`
`Defendants' motion for summary judgment that U.S. Patent No.
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`5,803,377 is invalid as indefinite is DENIED.
`
`2.
`
`Defendants' motion for summary judgment that U.S. Patent No.
`
`7,520,662 and claim 22 of U.S. Patent No. 7,144,150 are invalid as indefinite is
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`DENIED.
`
`IT IS SO ORDERED.
`
`CONNOLLY, T~TES DISTRICT JUDGE
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`6
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