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Cot'n Wash, Inc. v. Henkel Corp.

United States District Court, D. Delaware

August 26, 2014

COT'N WASH, INC. and BIG 3 PACKAGING, LLC, Plaintiffs,
v.
HENKEL CORPORATION, THE DIAL CORPORATION, and HENKEL CONSUMER GOODS INC., Defendants. COT'N WASH, INC. and BIG 3 PACKAGING, LLC, Plaintiffs,
v.
THE SUN PRODUCTS CORPORATION, Defendant

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Jessica Zeldin, Esquire of Rosenthal, Monhait & Goddess, P.A., Wilmington, Delaware, Counsel for Plaintiffs. Of Matthew L. Mustokoff, Esquire and Richard A. Russo, Jr., Esquire of Kessler, Topaz, Meltzer & Check LLP.

J. Clayton Athey, Esquire of Prickett, Jones & Elliott, P.A., Wilmington, Delaware, Counsel for Defendants Henkel Corporation, The Dial Corporation, and Henkel Consumer Goods Inc. Of Christopher T. Holland, Esquire, Kenneth E. Keller, Esquire, and Ethan Jacobs, Esquire of Keller, Sloan, Roman & Holland LLP.

Jack B. Blumenfeld, Esquire and Regina Murphy, Esquire of Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, Counsel for Defendant The Sun Products Corporation. Of Errol B. Taylor, Esquire, Fredrick M. Zullow, Esquire, and Anna Brook, Esquire of Milbank, Tweed, Hadley & McCloy LLP.

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MEMORANDUM OPINION

Sue L. Robinson, District Judge.

I. INTRODUCTION

On May 23, 2012, Big 3 Packaging, LLC (" B3P" ) and Cot'n Wash, Inc. (" Cot'n Wash" ) (collectively, " plaintiffs" ) filed suit in this district against Henkel Corporation, The Dial Corporation (" Dial" ), and Henkel Consumer Goods, Inc. (collectively, " the Henkel defendants" ) alleging infringement of United States Patent No. 6,037,319 (" the '319 patent" ). (Civ. No. 12-650, D.I. 1) On the same day, plaintiffs asserted the '319 patent against The Sun Products Corporation (" Sun" ) in a related case before this court.[1] (Civ. No. 12-651, D.I. 1)

The Henkel defendants and Sun (collectively, " defendants" ) answered plaintiffs' complaints on July 30, 2012 and asserted counterclaims against plaintiffs seeking declaratory judgments of non-infringement and invalidity of the '319 patent. (Civ. No. 12-650, D.I. 11 at 18-19, ¶ ¶ 17-27; Civ. No. 12-651, D.I. 9 at 12-14, ¶ ¶ 13-26) On August 21, 2012, plaintiffs answered defendants' counterclaims. (Civ. No. 12-650, D.I. 17; Civ. No. 12-651, D.I. 13) On August 15, 2013, by stipulation, the Henkel defendants filed their first amended answer, affirmative defenses, and counterclaims, adding affirmative defenses of patent invalidity under 35 U.S.C. § 112 and inequitable conduct, as well as a counterclaim of patent unenforceability due to inequitable conduct. (Civ. No. 12-650, D.I. 56 at 14-23, 12-39; id. at 39-41, ¶ ¶ 59-69) On September 3, 2013, plaintiffs answered the Henkel defendants' new affirmative defenses and counterclaim. (Civ. No. 12-650, D.I. 62)

On January 31, 2014, Sun filed a motion for leave to amend its answer, affirmative defenses, and counterclaims. (Civ. No. 12-651, D.I. 152) On February 7, 2014, the Henkel defendants filed a similar motion for leave to file a second amended answer, affirmative defenses, and counterclaims. (Civ. No. 12-650, D.I. 145) On July 11, 2014, the court denied Sun's motion with respect to the addition of false marking counterclaims, but granted the motion with respect to the inequitable conduct counter

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claim. (Civ. No. 12-651, D.I. 225) On the same day, the court denied the Henkel defendants' motion. (Civ. No. 12-650, D.I. 235)

Presently before the court are defendants' motions for summary judgment of invalidity (Civ. No. 12-650, D.I. 159; Civ. No. 12-651, D.I. 170) and non-infringement (Civ. No. 12-650, D.I. 168; Civ. No. 12-651, D.I. 166). Defendants also filed motions to exclude the testimony and opinions of Drs. Di Vincenzo, Kong, and Gering (Civ. No. 12-650, D.I. 161) and Robertson Microlit's and Mibrobac's testing (Civ. No. 12-651, D.I. 167), as well as a motion to strike the March 6 supplemental expert reports of Drs. Di Vincenzo and Kong (Civ. No. 12-650, D.I. 167). The court has jurisdiction pursuant to 28 U.S.C. § § 1331 and 1338(a).

II. BACKGROUND

A. Parties

B3P is a limited liability company organized and existing under the laws of the State of New Jersey, with its principal place of business in Philadelphia, Pennsylvania. (Civ. No. 12-650, D.I. 1 at ¶ 5; Civ. No. 12-651, D.I. 1 at ¶ 5) B3P is the assignee of the '319 patent. ( Id. ) Cot'n Wash. is a corporation organized and existing under the laws of

Pennsylvania, with its principal place of business in Philadelphia, Pennsylvania. (Civ. No. 12-650, D.I. 1 at ¶ 6; Civ. No. 12-651, D.I. 1 at ¶ 6) Cot'n Wash. is an exclusive licensee of the '319 patent in the laundry products field. ( Id. )

Henkel Corporation, a subsidiary of the German company Henkel AG & Co. KGaA, is a corporation organized and existing under the laws of the State of Delaware with a place of business in Rocky Hill, Connecticut. (Civ. No 12-650, D.I. 1 at ¶ 9) Henkel Consumer Goods, a subsidiary of Henkel Corporation, is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business in Scottsdale, Arizona. ( Id. at ¶ 8) Dial, a subsidiary of Henkel Consumer Goods, is a corporation organized and existing under the laws of the State of Delaware, with a place of business in Scottsdale, Arizona. ( Id. at ¶ 7) Sun is a private company organized and existing under the laws of the State of Delaware, with its principal place of business in Wilton, Connecticut. (Civ. No. 12-651, D.I. 1 at ¶ 7)

B. The Patent-in-Suit

Plaintiffs assert that certain of defendants' products infringe claims 1, 3, 6, 7, and 8 [2] of U.S. Patent No. 6,037,319 (" the '319 patent" ), titled " Water-Soluble Packets Containing Liquid Cleaning Concentrates," filed April 1, 1997 and issued March 14, 2000. The '319 patent is directed to " [w]ater-soluble packets containing liquid cleaning concentrates" which " are stable despite the presence of any minor amount of water in the cleaning concentrates." ('319 patent, Abstract) Specifically, " the invention provides a stable water-soluble cleaning packet comprising an uncoated, single-layered containment system containing a liquid cleaning composition." ( Id. at 2:34-37)

III. STANDARD OF REVIEW

" The court shall grant summary judgment 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). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Matsushita Elec. Indus.

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Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A party asserting that a fact cannot be--or, alternatively, is--genuinely disputed must support the assertion either by citing to " particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motions only), admissions, interrogatory answers, or other materials," or by " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then " come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The court will " draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

To defeat a motion for summary judgment, the non-moving party must " do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586-87; see also Podohnik v. U.S. Postal Service, 409 F.3d 584, 594 (3d Cir. 2005) (stating party opposing summary judgment " must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue" ) (internal quotation marks omitted). Although the " mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment," a factual dispute is genuine where " 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, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating entry of summary judgment is mandated " against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial" ).

IV. DISCUSSION

A. The '319 Patent Claims

Claim 1 is directed to and recites:

A cleaning packet comprising a liquid cleaning concentrate and a water-soluble container containing said concentrate, wherein said cleaning concentrate comprises less than 7.5 wt. % water, and said container comprises a single layer film having an internal surface directly contacting said concentrate, and having an external surface which is an outermost portion of said cleaning packet.

('319 patent, 9:9-15) Claim 3 is dependent on claim 1, and recites:

The cleaning packet according to claim 1, wherein said cleaning concentrate comprises less than 5.0 wt. % water.

( Id. at 9:18-19) Claim 6 is also dependent on claim 1, and further recites:

The cleaning packet according to claim 1, wherein the single layer film has a thickness of about 2 mils to about 4 mils.

( Id. at 9:25-27) Claim 7, also dependent on claim 1, recites:

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The cleaning packet according to claim 1, wherein the single layer film is a ...

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