United States District Court, D. Delaware
Stamatios Stamoulis, Esq., STAMOULIS & WEINBLATT LLC,
Wilmington, DE; Richard C. Weinblatt, Esq., STAMOULIS &
WEINBLATT LLC, Wilmington, DE; Wendy Verlander, Esq.,
BLACKBIRD TECHNOLOGIES, Boston, MA; Christopher Freeman, Esq.
(argued), BLACKBIRD TECHNOLOGIES, Boston, MA. Attorneys for
S. Kraft, Esq., DLA PIPER LLP (U.S.), Wilmington, DE; Brian
A. Biggs, Esq., DLA PIPER LLP (U.S.), Wilmington, DE; John M.
Guaragna, Esq., DLA PIPER LLP (U.S.), Austin, TX; Aaron G.
Fountain, Esq. (argued), DLA PIPER LLP (U.S.), Austin, TX.
Attorneys for Defendant.
ANDREWS, U.S. DISTRICT JUDGE.
before the Court is Defendant's Motion for Summary
Judgment of Non-Infringement (D.I. 41 at 58) and related
briefing (Id. at 58-71; D.I. 48, 50). The Court
heard oral argument on March 8, 2017.
filed suit against Defendant on October 14, 2015, alleging
infringement of U.S. Patent No. 7, 867, 058 ("the
'058 patent"). (D.I. 1). The '058 patent claims
a sports bra with an integrated storage pouch formed between
plies of material that are laminated together. ('058
patent, claim 1). The present dispute relates to claim 1 and
the scope of the term "laminated." Claim 1 reads as
sports bra capable of holding an object between the breasts
of a user, said bra comprising:
a pair of cups, said cups joined by a cleavage portion said
cleavage portion being disposed between a proximate edge of
each of said pair of cups said cleavage portion having a
height and width, a back strap portion disposed between a
distal edge of each of said pair of cups, a pair of shoulder
straps disposed between said pair of cups and said back
portion, said bra being constructed of first and second ply
laminated material having substantially universal elasticity;
a top opening formed between first and second-plies of said
laminated material wherein said top opening allows
communication between an interior portion of said sports bra
formed between said first and second plies and an exterior,
said top opening being disposed within the cleavage portion
of cleavage portion [sic] and an exterior, said top opening
having a length, an integral pouch being formed within said
interior portion of said sports bra between said first and
second plies being formed by first and second edges, said
first and second edges and said integral pouch being formed
within said cleavage portion and said first and second edges
being spaced apart from one another having a distance
therebetween, said integral pouch having an interior pouch
portion formed by said top opening and said first and second
edges within said first and second plies within which an
object may be stored.
('058 patent, claim 1). I have construed the term
"laminated" to mean "joined by means of heat
or adhesive bonding." (D.I. 45 at 3).
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. Crv. P. 56(a). The moving party has the initial burden of
proving the absence of a genuinely disputed material fact
relative to the claims in question. Celotex Corp. v.
Catrett, 477 U.S.317, 330 (1986). Material facts are
those "that could affect the outcome" of the
proceeding, and "a dispute about a material fact is
'genuine' if the evidence is sufficient to permit a
reasonable jury to return a verdict for the nonmoving
party." Lamont v. New Jersey, 637 F.3d 177, 181
(3d Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S.242, 248 (1986)). The burden on the moving
party may be discharged by pointing out to the district court
that there is an absence of evidence supporting the
non-moving party's case. Celotex, 477 U.S.at
burden then shifts to the non-movant to demonstrate the
existence of a genuine issue for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986); Williams v. Borough of West Chester, Pa.,
891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving party
asserting that a fact is genuinely disputed must support such
an assertion by: "(A) citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations..., admissions, interrogatory
answers, or other materials; or (B) showing that the
materials cited [by the opposing party] do not establish the
absence ... of a genuine dispute . ..." Fed.R.Civ.P.
determining whether a genuine issue of material fact exists,
the court must view the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in
that party's favor. Scott v. Harris, 550 U.S.
372, 380 (2007); Wishkin v. Potter,476 F.3d 180,
184 (3d Cir. 2007). A dispute is "genuine" only if
the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson, 477
U.S.at 247-49. If the non-moving party fails to make a
sufficient showing on an essential element of its case with