Last week, Magistrate Judge Thynge granted summary judgment of non-infringement in Innovative Patents, L.L.C. v. Brain-Pad, Inc., C.A. No. 07-680-MPT, Mem. Opinion (D. Del. June 29, 2010) [Innovative Patents II]. Plaintiffs Innovative Patents, L.L.C. and Forcefield, Inc. brought this infringement action based on Brain-Pad‘s sale of sweat bands with impact-absorbing inserts, which Forcefield alleges infringes U.S. Pat. No. 7,234,174.
This case again demonstrates the importance of claim construction. In January, we covered the claim construction opinion in this case, where the Court adopted defendant Brain-Pad’s definition of “curved in configuration”: “preformed, arcuate and having first and second ends.” Innovative Patents, L.L.C. v. Brain-Pad, Inc., C.A. No. 07-680-MPT, at 4 (D. Del. Jan. 13, 2010). Now, the Court granted summary judgment for Brain-Pad because its accused products use pads that are not “curved in configuration” as required by the claims. Brain-Pad’s pad inserts are “flaccid, shapeless loop[s] of perforated elastomeric material,” which are neither “arcuate” nor have “first and second ends” (because they are loops). Innovative Patents II, at 9.
What about the doctrine of equivalents? It turns out that the “curved in configuration” limitation was added during prosecution to avoid the prior art, and the Court determined that prosecution history estoppel applies, blocking Plaintiffs from relying on the doctrine of equivalents. Id. at 10-13.
All in all, this shows that, while District of Delaware judges have counseled against summary judgment motions under certain circumstances, they remain a useful tool in Delaware.
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