Case: 1:16-cv-06097 Document #: 263 Filed: 01/23/17 Page 1 of 17 PageID #:10432
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHER DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`Case No. 16 C 6097
`
`Judge Harry D. Leinenweber
`
`
`
`
`THE CHAMBERLAIN GROUP, INC.,
`
`
` Plaintiff,
`
`v.
`
`TECHTRONIC INDUSTRIES CO.,
`LTD., TECHTRONIC INDUSTRIES
`NORTH AMERICA, INC., ONE
`WORLD TECHNOLOGIES, INC.,
`OWT INDUSTRIES, INC., ET
`TECHNOLOGY (WUXI) CO. LTD.,
`and RYOBI TECHNOLOGIES, INC.,
`
`
` Defendants.
`
`
`
`
`
`
`
`
`
`
`MEMORANDUM OPINION AND ORDER
`Before the Court is Plaintiff’s Motion to Enforce the
`Court’s Preliminary Injunction and for an Order to Show Cause
`Why Defendants Should Not Be Held in Contempt (“the Motion”)
`[ECF No. 211]. The parties engaged in extensive briefing and
`offered testimony on the Motion, including at a hearing before
`the Court. For the reasons stated herein, the Court grants the
`Motion in part.
`
`
`
`I. BACKGROUND
`
`This litigation involves Plaintiff’s claim of infringement
`
`with respect to patents it holds on a certain type of garage
`door opener (“GDO”). This Court granted Plaintiff’s request for
`a preliminary injunction and, on September 20, 2016, entered an
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHER DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`Case No. 16 C 6097
`
`Judge Harry D. Leinenweber
`
`
`
`
`THE CHAMBERLAIN GROUP, INC.,
`
`
` Plaintiff,
`
`v.
`
`TECHTRONIC INDUSTRIES CO.,
`LTD., TECHTRONIC INDUSTRIES
`NORTH AMERICA, INC., ONE
`WORLD TECHNOLOGIES, INC.,
`OWT INDUSTRIES, INC., ET
`TECHNOLOGY (WUXI) CO. LTD.,
`and RYOBI TECHNOLOGIES, INC.,
`
`
` Defendants.
`
`
`
`
`
`
`
`
`
`
`MEMORANDUM OPINION AND ORDER
`Before the Court is Plaintiff’s Motion to Enforce the
`Court’s Preliminary Injunction and for an Order to Show Cause
`Why Defendants Should Not Be Held in Contempt (“the Motion”)
`[ECF No. 211]. The parties engaged in extensive briefing and
`offered testimony on the Motion, including at a hearing before
`the Court. For the reasons stated herein, the Court grants the
`Motion in part.
`
`
`
`I. BACKGROUND
`
`This litigation involves Plaintiff’s claim of infringement
`
`with respect to patents it holds on a certain type of garage
`door opener (“GDO”). This Court granted Plaintiff’s request for
`a preliminary injunction and, on September 20, 2016, entered an
`
`
`
`Case: 1:16-cv-06097 Document #: 263 Filed: 01/23/17 Page 2 of 17 PageID #:10433
`
`order (the “PI order”) prohibiting Defendants from further
`making, using, selling or offering to sell in the United States
`or importing into the United States any of their Ryobi GD200
`garage door openers likely to infringe claims 1 and 5 of U.S.
`Patent No. 7,224,275 (“the ’275 patent”). Independent claim 1
`of the ’275 patent claims a movable barrier operator comprising,
`as relevant, “a wireless status condition data transmitter
`[that] transmits a status condition signal that: corresponds to
`a present operational status condition defined, at least in
`part, by at least two operating states from the plurality of
`operating states.” Dependent claim 5 recites the movable
`barrier operator of claim 1 “wherein the plurality of operating
`states includes at least one of” various different GDO
`operations, such as “moving a movable barrier in a first
`direction,” “moving the movable barrier in a second direction,”
`and “a lighting status change.”
`
`In the memorandum opinion accompanying its PI order, the
`Court held that Plaintiff demonstrated a likelihood of success
`on the issue of whether Defendants’ Ryobi GD200 infringes
`Claim 1 of the ’275 patent. Specifically, the Court noted that
`“the crux of the issue is the ’275 patent’s description of a
`self-aware controller in Claim 1.” (ECF No. 107, Mem. Op., at
`9.) Whereas Plaintiff’s technical expert “purchased a Ryobi GDO
`and dismantled it and, with the assistance of CGI engineers,
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`conducted extensive testing,” Defendants’ infringement expert
`“did not examine the Ryobi GDO.” (Id. at 7.) Plaintiff’s
`expert testified that the Ryobi GDO “did not rely upon any
`external sensors to obtain the status conditions of the GDO,”
`including “garage door open/shut, and garage lights on/off,”
`which it was then “able to transmit . . . upon request.” (Id.)
`Thus, both the Ryobi GDO and the patented invention “obtained
`and transmitted similar data without the aid of external
`sensors.” (Id.) As the precise wording of the Court’s ruling
`suggests, the finding of “similar data” transmission as between
`the original Ryobi GDO and the patented invention focuses on the
`substance of the data transmitted, not the number of signals
`required for transmission or, more broadly, the message format.
`
`On December 6, 2016, Defendants filed a Notice of Redesign
`[ECF No. 203] in which they asserted that they successfully
`designed around the ’275 patent. Their only change to the
`design of the original Ryobi GDO concerned the communication of
`GDO information to smart phone applications. As with the
`original, the redesigned Ryobi GDO’s wireless status condition
`data transmitter is capable of signaling to the end user
`whether, for example, the garage door is open or closed, the
`lights on or off. Rather than transmitting, in a single signal,
`information corresponding to multiple changes in the status of
`the GDO, the redesigned Ryobi GDO transmits a signal that
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`contains information corresponding only to one such change. For
`example, if both door position and lighting have changed, then
`the redesigned product transmits one signal indicating the door
`change and a second successive signal, milliseconds later,
`communicating the lighting change. Vitally, the data
`transmitted still corresponds to the same set of characteristics
`drawn from the same defined set of operating states of the same
`GDO. Only the transmission format has changed.
`
`Defendants have imported the redesigned Ryobi GDO into the
`United States for sale at Home Depot. Following the notice of
`redesign and discovery of Defendants’ importation of the
`redesigned Ryobi GDO, Plaintiff filed the Motion. Both parties
`submitted briefs, and the hearing on the Motion followed.
`II. APPLICABLE STANDARDS
`The primary question in a contempt proceeding is “whether
`
`the newly accused product is so different from the product
`previously found to infringe that it raises a fair ground of
`doubt as to the wrongfulness of the defendant’s conduct.” TiVo
`Inc. v. EchoStar Corp., 646 F.3d 869, 882–883 (Fed. Cir. 2011).
`The analysis centers on “those aspects of the accused product
`that were previously alleged to be, and were a basis for, the
`prior finding of infringement.” Id. “[A] contempt proceeding
`does not open to reconsideration the legal or factual basis of
`the order alleged to have been disobeyed and thus become a
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`retrial of the original controversy.” Maggio v. Zeitz, 333 U.S.
`56, 69 (1948).
`
`Where two products are functionally identical, a redesigned
`product is not colorably different. Proveris Sci. Corp. v.
`Innovasystems, Inc., 739 F.3d 1367, 1371 (Fed. Cir. 2014). The
`moving party bears the burden of proving by clear and convincing
`evidence both that the newly accused product is not more than
`colorably different from the product previously found to
`infringe and that the newly accused product actually infringes.
`See, Tivo Inc., 646 F.3d at 882; Stotler & Co. v. Able, 870 F.2d
`1158, 1163 (7th Cir. 1989).
`
`Judicial estoppel precludes a party who “successfully urges
`a particular position in a legal proceeding . . . from taking a
`contrary position in a subsequent proceeding where its interests
`have changed.” Cardpool, Inc. v. Plastic Jungle, Inc., 817 F.3d
`1316, 1323 (Fed. Cir. 2016). In particular, prosecution history
`estoppel can prevent a patentee from relying on the doctrine of
`equivalents when the patentee relinquishes subject matter during
`the prosecution of the patent, either by amendment or argument.
`AquaTex Indus. v. Techniche Sol’ns, 419 F.3d 1374, 1382 (Fed.
`Cir. 2005).
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`III. DISCUSSION
`A. The Redesigned Ryobi GDO Is Not More Than Colorably
`
`Different from the Ryobi GDO Subject to the
`
`Court’s Preliminary Injunction Order.
`Although the parties dispute their legal significance,
`certain facts are uncontested. For one, the only feature of the
`original Ryobi GDO that was redesigned relates to the status
`condition signals sent by the wireless status condition data
`transmitter. To the extent that multiple status conditions of
`the GDO change (i.e., the garage door opens and the lights turn
`on), the redesigned transmitter sends signals to the user’s
`smart phone application seriatim (i.e., one signal communicating
`an open garage door, and another signal the status of the
`lights). On the other hand, the wireless status condition data
`transmitter of the original Ryobi GDO sent one signal to a
`user’s cell phone application that was capable of communicating
`multiple status changes.
`
`For another, as between the original and redesigned Ryobi
`GDO, both the universe of data transmitted and end-user
`functionality remain unchanged. (See, e.g., ECF No. 255, Hr.
`Tr., at 55:5–8.) Additionally, both the original and redesigned
`Ryobi GDOs employ what have been termed “Hall effect sensors,”
`external to the GDO controller, to determine the position of the
`garage door. (Id. at 133:4–7.) Although the parties dispute
`whether the presence of these Hall effect sensors obviates the
`
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`“self-awareness” of a GDO controller, this facet of the original
`Ryobi GDO played no part in the Court’s PI analysis; indeed,
`Defendants did not argue it. (Id. at 59:25-61:21.)
`
`In arguing that the redesigned Ryobi GDO is more than
`colorably different from the original Ryobi GDO subject to the
`Court’s PI, Defendants face an insurmountable legal obstacle:
`they redesigned an aspect of the accused product that played no
`role in the Court’s PI infringement analysis. Federal Circuit
`law mandates that the Court consider whether changes in a
`redesigned product relate to a feature that was “previously
`alleged to be, and [was] a basis for, the prior finding of
`infringement.” TiVo Inc., 646 F.3d at 882; see, Proveris, 739
`F.3d at 1371 n.1 (applying the TiVo analysis in light of whether
`the parties asserted that the claim “require[s] a particular
`feature”). Plaintiff did not assert, and the Court’s PI
`analysis and opinion cannot fairly be read to find, likely
`infringement based on the original Ryobi GDO’s transmission of a
`status condition signal communicating multiple fields of
`information about the GDO or relaying to plural changes in the
`GDO’s operating states.
`repeatedly
`opinion
`Court’s
`the
`
`On
`the
`contrary,
`characterized the concept of a “self-aware” controller as the
`“crux” of the Plaintiff’s infringement case. (See, e.g., Mem.
`Op. at 7, 9.) Admittedly, the Court could have more clearly
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`described status conditions in the PI opinion as “garage door
`position” or “lighting mode” instead of “garage door open/shut[]
`and garage lights on/off”; the latter formulations more
`accurately describe the operating states that define what status
`condition is transmitted. However, any resulting confusion
`appears minimal in light of the admission by Defendants’ expert
`that the Court also “mentioned [these] as status conditions.”
`(ECF No. 256 at 220:20-221:12.)
`
`By contrast, the Court heard no substantive argument at the
`PI hearing on whether the asserted claims require multiple
`fields of GDO information or plural changes in operating states
`to be transmitted in the status condition signal. Indeed, the
`’275 patent’s specification says precisely the opposite –
`namely, that “[a] single data field can be used if desired to
`contain information that corresponds to the specified status
`condition.” (ECF No. 1, Exhibit 2, at 6:46-48.) The
`specification goes on describe “another approach” involving “a
`plurality of fields (From field 1 41 to field N 43),” with “each
`field corresponding to, for example, a particular monitored
`condition.” (Id. at 6:48-51.) Thus, the specification
`contemplates both the original and redesigned Ryobi GDOs.
`
`Had the Court effectively construed “a plurality of
`operating states” to connote the data that the status condition
`signal actually transmits, then Defendants’ arguments would have
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`more purchase. But the Court repeatedly maintained that, far
`from encapsulating the granular packet of data transmitted, the
`plurality of operating states defines the GDO in a much broader
`sense. (See, e.g., Mem. Op. at 9 (“[The Ryobi GDO] piggybacked
`on the ’275’s description of a self-aware controller defined by
`a plurality of operating states.”).) To the extent any language
`in the extensive PI hearing transcript can be read to furnish an
`ounce of support for Defendants’ redesign, two ounces of support
`evaporate. (See, e.g., ECF No. 120, PI Hearing Tr., at 606:6-16
`(CGI counsel noting that, “for the status condition of what
`stage your garage door is in, those are two states”), 605:17-18
`(“So the status condition for that is the garage door, and open
`and close are the two states of that.”).)
`
`As noted, no one disputes that the original and redesigned
`Ryobi GDOs are functionally equivalent: they transmit the same
`substance and types of data and, crucially, function identically
`from the perspective of the end user. (See, infra, Section II.)
`This brings the Ryobi GDO within the ambit of the Court’s PI
`order. See, e.g., Proveris, 739 F.3d at 1371 (“[E]ven if Innova
`did make some small changes to the product’s software, a
`comparison of the User Manuals demonstrates that the two
`products are functionally identical. Thus, we agree with the
`district court that the ADSA product is not more than colorably
`different from the infringing OSA product.”). Defendants’
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`reading of Ncube Corp. v. SeaChange Int’l Inc., 2013 WL 230358
`(Fed. Cir. Jan. 8, 2013), does not compel a different result.
`As described above and unlike the situation in Ncube, the PI
`infringement analysis in this case did not turn on the feature
`of the product that was redesigned – that is, whether the status
`condition signal of the original Ryobi GDO corresponded to
`information about one or multiple status changes.
`
`Nor is the redesigned Ryobi GDO colorably different because
`it engenders “data loss,” “compromised performance,” or
`otherwise represents a “product inferior to what [Defendants]
`previously had.” TiVo Inc., 646 F.3d at 880. Whatever human or
`financial capital Defendants expended to implement the
`aforementioned change to the wireless status condition data
`transmitter — whatever inefficiencies, bandwidth strains, or
`additional data costs the redesigned GDO engenders — both GDOs
`transmit the same data in status condition signals, and data
`transmission is functionally identical from the perspective of
`the end user.
`
`Therefore, for all the above reasons, Plaintiff has shown
`by clear and convincing evidence that the redesigned Ryobi GDO
`is not more than colorably different from the Ryobi GDO subject
`to the Court’s PI order.
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`B. Under the Framework of the Court’s PI Order,
`the Redesigned Ryobi GDO Likely Infringes
`at least Claims 1 and 5 of the ’275 Patent.
`1. The Redesigned Ryobi GDO Directly Infringes
`
`
`
`As Plaintiff has shown and the above analysis makes clear,
`
`the redesigned Ryobi GDO infringes under the terms of the PI
`because the redesign does not take the Ryobi GDO outside the
`asserted claims as understood and construed in the court’s PI
`opinion. Because the redesigned Ryobi GDO still sends a signal
`that contains an operational status condition, which condition
`is defined by two or more operating states, it still literally
`infringes the claim.
`
`Only the Plaintiff offered infringement testimony consonant
`with the construction and framework of the Court’s PI opinion.
`Defendants’ expert, on the other hand, admitted that his claim
`constructions differed from those used in his prior expert
`report. (See, Hr. Tr. at 187:15, 276:1-23.) As Plaintiff’s
`counsel
`argued, Defendants’ new
`construction
`improperly
`construes the claims in light of the accused device. (See, ECF
`No. 257 at 17-18 (citing SRI Int’l v. Matsushita Elec. Corp. of
`Am., 775 F.2d 1107, 1118 (Fed. Cir. 1985) (en banc)).) In view
`of the postponement of all Markman-related activities, which
`Defendants advocated (see, ECF Nos. 168, 193), the Court need
`not engage Defendants’ claim construction briefings to decide
`this contempt proceeding.
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`2. The Redesigned Ryobi GDO Infringes via
`the Doctrine of Equivalents
`Although it finds that Plaintiff has clearly and
`convincingly shown literal infringement of the redesigned Ryobi
`GDO under the terms of the PI order, the Court finds it prudent,
`in light of the pending Federal Circuit appeal of the PI order,
`to explore an alternative infringement analysis of the
`redesigned Ryobi GDO under the doctrine of equivalents. To the
`extent the appeals court’s opinion may cast doubt on whether the
`redesigned Ryobi GDO implicates a literal difference from the
`language of the asserted claims, Plaintiff has still clearly and
`convincingly shown that it infringes. Even if the asserted
`claims are construed as Defendants would have them, the
`redesigned Ryobi GDO performs substantially the same function in
`substantially the same way to yield substantially the same
`result as the original Ryobi GDO. See, Graver Tank & Mfg. Co.
`v. Linde Air Prods. Co., 339 U.S. 605 (1950); Warner-Jenkinson
`Co. v. Hilton Davis Chem. Co., 520 U.S. 17 (1997) (defining the
`doctrine to require that any difference between the feature in
`the accused product and the limitation literally recited in the
`patent claim must be “insubstantial”).
`
`During the hearing on the Motion, Plaintiff’s expert
`convincingly testified that the redesigned GDO infringed via the
`doctrine of equivalents and differed only insubstantially from
`
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`the asserted claims. He noted that it took Defendants’ engineer
`less than one day to develop the code to implement the redesign,
`that the end-user software was simply updated via now-ubiquitous
`“over-the-air update[s]” without any corresponding changes to
`hardware of the GDO, that the status condition signal still
`includes the same number of message fields, and that the
`redesigned GDO still employs the same components. (See, Hr. Tr.
`at 98:2-100:23.) Even Defendants’ engineer conceded that the
`redesign did not alter end-user functionality and indeed was
`intended to preserve the status quo. (See, id. at 151:17-
`152:19.) The Court finds Dr. Rhyne’s testimony both convincing
`and consistent with his seminal 1973 textbook, which draws
`precisely the same conclusion in the apposite scenario of
`“sending two statuses in one message versus sending two messages
`sequentially.” (Id. at 100:24-102:4.)
`
`Rather than attacking the sufficiency of this evidence,
`Defendants strenuously object that, because of arguments made
`during prosecution, Plaintiff is judicially estopped from
`arguing that the redesigned GDO infringes the asserted claims of
`the ’275 patent via the doctrine of equivalents. Defendants
`hone in on the Doyle reference, over which the Examiner issued a
`rejection of independent claim 1 along with various dependent
`claims on March 16, 2005. That reference, Defendants contend,
`discloses transmitting a single operating state in the same
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`manner as the redesigned Ryobi GDO, and Plaintiff argued the
`same to overcome the rejection based on Doyle or, alternatively,
`relinquished relevant subject matter by canceling application
`dependent claim 4.
`
`In the relevant amendment and remarks, the Applicant
`traversed Doyle by citing to Figure 2 of Doyle and its
`associated text, which disclose a mercury switch oriented within
`a radio frequency (“RF”) transmitter where the mercury bead only
`causes transmission of the RF signal when the garage door is in
`an intermediate position. The Applicant contrasted this facet
`of Doyle, in which the transmitted RF signal is keyed to a
`single position or state of Doyle’s garage door, with its
`amended claims, which “require a wireless status condition data
`transmitter to transmit a status condition signal that
`corresponds to a present operational status condition defined,
`at least in part, by at least two operating states from the
`plurality of operating states.” See, File History, App. No.
`10/447,663, June 15, 2005 Amendment, page 12 (emphasis in
`original).
`
`Therefore, the Applicant did not distinguish over Doyle by
`claiming transmission of multiple fields of information or
`multiple status changes via the status condition signal, but
`instead by arguing that the information transmitted in (the
`cited embodiment of) Doyle could only ever be defined by one
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`operating state: a single intermediate position of a garage
`door, as opposed to the dual operating states of open/closed.
`Similarly, Applicant’s cancelation of application dependent
`claim 4 and simultaneous amendment of claim 1 is more fairly
`read as an attempt to clarify that the already-claimed
`“potential operational status conditions” and “plurality of
`operating states” relate to each other. (See, Hr. Tr. at 285:3-
`286:22.) (The prior versions of the claims recited these as
`separate elements. See, ’275 Patent File History, June 15, 2005
`Amendment, page 2.) This helps explain why a conforming change
`was made not just to the wireless status condition data
`transmitter limitation of claim 1, but also to the controller
`limitation. Because the Applicant’s arguments limit the
`contours of judicial estoppel, other embodiments in Doyle — to
`the extent they might relate, as Defendants argue, to
`determining the absolute position of the garage door based on
`two different RF signals – are irrelevant to whether Plaintiff
`has recourse to the doctrine of equivalents on the facts
`presented to the Court.
`
`Plaintiff offered persuasive testimony with respect to the
`doctrine of equivalents, and Defendants, without challenging the
`substance of this evidence, erroneously argued that Plaintiffs
`were judicially estopped from invoking the doctrine. Thus,
`Plaintiff has shown by clear and convincing evidence that the
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`redesigned Ryobi GDO infringes claims 1 and 5 of the ’275 patent
`under the doctrine of equivalents.
`
`3. Defendants Have Waived their “Self-Aware” Argument
`
`During the PI phase of this litigation, Defendants’
`
`technical expert, Dr. Madisetti, devoted the bulk of his
`testimony to arguing that self-awareness is not a limitation of
`claim 1. For example, Dr. Madisetti argued that, because many
`of the activities set forth in dependent claim 5 must implicate
`the use of external sensors, independent claim 1 could not
`require a self-aware controller. (See, Mem. Op. at 8.) Far
`from contesting infringement on the grounds that the original
`Ryobi GDO controller was not self-aware, this focus on
`invalidity throughout the PI phase suggested a tacit acceptance
`that the original Ryobi GDO contained a self-aware controller.
`The Court’s PI Opinion states as much. (See, e.g., Mem. Op.
`at 8 (“This contention by Dr. Madisetti is more material to the
`issue of invalidity rather than the issue of infringement.”).)
`
`Defendants seek to persuade the Court of non-infringement
`by arguing that neither the redesigned nor the original Ryobi
`GDO controller is self-aware. This argument, presented for the
`first time in this contempt proceeding, has been waived and
`amounts to an improper request for reconsideration of the merits
`of the Court’s PI order. Especially in light of their arguments
`against modifying the PI order to encapsulate indirect
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`infringement while the PI order is pending on appeal (see, ECF
`No. 115 at 2, 7; ECF No. 130 at 3-4; ECF No. 137 at 3-5),
`Defendants’ attempt here to shoehorn into the limited scope of
`this proceeding new substantive issues is unconvincing.
`Defendants must live with the strategic choices they have made
`throughout this litigation.
`IV. CONCLUSION
`For the reasons stated herein, the Court grants the Motion
`
`to Enforce the Court’s Preliminary Injunction [ECF No. 211] in
`part and will issue an Order to Show Cause why Defendants should
`not be held in contempt for violating the PI order. The Order
`(a) requires Defendants to notify Home Depot that all shipments
`after September 27, 2016, were in violation of the PI order and
`should be recalled; and (b) enjoins Defendants from inviting or
`accepting any further GDO purchase orders while the PI order is
`in effect. The Court directs the parties to brief the
`appropriate additional sanctions for Defendants’ contempt of the
`PI order.
`IT IS SO ORDERED.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Harry D. Leinenweber, Judge
`United States District Court
`
`
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`Dated:1/23/2017
`
`
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