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Defendant’s Summary Judgment of Noninfringement Not “Airtight”

June 06, 2001

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Last Month at the Federal Circuit - July 2001

Judges: Dyk (author), Rader, and Plager

In Scholle Corp. v. Packaging Systems, LLC, No. 00-1248 (Fed. Cir. June 6, 2001) (nonprecedential decision), the Federal Circuit held that the district court had erred-in-part in its claim interpretation of U.S. Patent No. 4,120,134 (“the ‘134 patent”). The Federal Circuit therefore vacated and remanded-in-part the district court’s grant of the Defendant’s SJ of noninfringement and affirmed the district court’s denial of attorney fees.

The ‘134 patent, relating to an apparatus and method for filling flexible containers with fluids, includes two independent claims at issue in the appeal. Scholle Corporation (“Scholle”) sued Packaging Systems, LLC (“Packaging”) for infringement of these claims resulting from Packaging’s making and/or selling of various machines that include a footer positioned in the center of the machine to seal off the flow of any air into the flexible bag being filled. In some of
these machines, the footer would cause the bag to contact the end of the filling spout, or the footer could be adjusted by consumers to cause such contact.

In granting Packaging’s motion for SJ of noninfringement, the district court had adopted Packaging’s assertion that the claims of the ‘134 patent require an airtight, as opposed to a substantial, seal between the bag and the spout. The district court concluded that Scholle had failed to introduce sufficient evidence to establish a triable issue of fact that Packaging’s filling machines create such an airtight seal. Further, the district court had rested its decision of noninfringement on its view that Packaging’s machine utilized a liquid displacement technique for excluding air from the bag, which technique differed from that utilized in the ‘134 patent.

On appeal, the Federal Circuit reversed-in-part the district court’s claim construction. While agreeing that physical contact between the bag and the spout was required by the ‘134 patent claims, the Federal Circuit disagreed that an airtight seal also was required. Instead, the Federal Circuit construed the ‘134 patent claims to require only a substantial seal.

The Court rested its conclusion on a portion of the specification that read, “Desirably, substantially all of any such atmosphere should be removed or excluded from the head space of the bag prior to recapping. . . .” The Court asserted that “substantially” was used in this passage to modify both “removed” and “excluded.”

Having so construed the claims, the Court turned to the issue of infringement. The Court first pointed out that the district court had erred in its assumption that the accused machines could not infringe if they used a different technique than the ‘134 patent.

The Court then addressed whether the Defendant’s various machines satisfied the physical contact requirement of the ‘134 patent claims, but remanded this issue to the district court to determine which of the Defendant’s various machines included the requisite bag-tospout physical contact. The Court instructed the district court that any of the accused machines that left a gap between the bag and the spout did not infringe the ‘134 patent claims, either literally or under the DOE.

With respect to the issue of whether machines that did have physical contact between the flexible bag and the spout also formed a substantial seal, the Court found that a genuine issue of material fact exists as to whether a substantial seal is formed in the accused machines.