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Blackbird Tech, LLC v. Lululemon Athletica, Inc.

United States District Court, D. Delaware

June 14, 2017

BLACKBIRD TECH, LLC d/b/a BLACKBIRD TECHNOLOGIES, Plaintiff,
v.
LULULEMON ATHLETICA, INC., Defendant.

          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 Plaintiff

          Denise 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.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Presently 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.

         I. BACKGROUND

         Plaintiff 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 follows:

         1. A 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; and
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).

         II. LEGAL STANDARD

         "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. 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 323.

         The 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. 56(c)(1).

         When 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 ...


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