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Edge-Works Manufacturing Co. v. Hsg, LLC

United States District Court, E.D. North Carolina, Southern Division

September 12, 2019

EDGE-WORKS MANUFACTURING COMPANY, Plaintiff,
v.
HSG, LLC, a North Carolina limited liability company, and CTGI, LLC, a North Carolina limited liability company, Defendants. HSG, LLC, a North Carolina limited liability company, and CTGI, LLC, a North Carolina limited liability company, Counter Claimants,
v.
EDGE-WORKS MANUFACTURING COMPANY, Counter Defendant.

          CLAIM CONSTRUCTION ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court for a claim construction order. The parties filed a joint claim construction statement and claim construction briefs, as well as responses. In addition, motions to exclude expert testimony were filed both by plaintiff and counter defendant Edge-Works Manufacturing Company (“Edge-Works” or “plaintiff”) (DE 82) and defendants and counter claimants HSG, LLC (“HSG”) and CTGI, LLC (“CTGI”) (collectively, “defendants”) (DE 84). In this posture, the issues raised are ripe for ruling. The court sets forth below its decision on the parties' disputed claim terms and denies as moot the parties' motions to exclude expert testimony.

         STATEMENT OF THE CASE

         Plaintiff initiated this case by complaint filed November 22, 2017, alleging that defendant HSG's variable compression ammunition magazine pouches, known as the Polymer Taco pouches (“accused products”), infringe upon U.S. Patent No. 9, 795, 210 (“the '210 patent”). Plaintiff was granted this patent in conjunction with the development of its own variable compression ammunition magazine pouches, known as the Hardshell Scorpion pouches.[1]

         Plaintiff filed emergency motion for temporary restraining order and motion for preliminary injunction on December 1, 2017, seeking an order prohibiting defendant HSG from further sales of its accused products. On December 18, 2017, the court denied plaintiff's emergency motion for temporary restraining order and directed briefing on plaintiff's motion for preliminary injunction.

         Following briefing, the court denied plaintiff's motion on January 11, 2018, because plaintiff failed to demonstrate irreparable harm. In so holding, the court also held plaintiff had forecasted sufficient evidence to show it will likely prove that defendant's accused products infringe the '210 patent and that defendant had failed to raise a substantial question of invalidity, also adopting for purposes of resolving plaintiff's motion the definition of “covered” as to “put something on top or in front of (something) in order to protect or conceal it.” (DE 32 at 11-13). Case management order followed on February 21, 2018, providing for the close of discovery to occur on April 1, 2019.

         On April 9, 2018, defendant filed motion to stay this case pending the outcome of reexamination proceedings of the '210 patent before the Patent and Trademark Office (“PTO”), which the court granted on April 30, 2018. Following conclusion of the reexamination proceedings, wherein the PTO confirmed the validity of the '210 patent, plaintiff filed unopposed motion to lift stay and amend case management order, which the court granted on November 29, 2018, entering amended case management order on December 18, 2018.

         On January 28, 2019, plaintiff filed unopposed motion for leave to file first amended complaint and stipulation regarding scheduling order, both of which the court allowed, further amending the case management order to provide for the close of discovery to occur on November 15, 2019. In amended complaint, plaintiff added as defendant Comp-Tac Victory Gear, LLC, (“Comp-Tac”), an entity that had been acquired by defendant HSG, asserting claims against both defendants for infringement of both the previously-identified '210 patent and U.S. Patent No. 9, 668, 568 (the “'568 patent”). Thereafter, with consent of all parties and by order of the court, plaintiff filed second amended complaint on March 11, 2019, substituting all references previously made to Comp-Tac to currently-named defendant CTG1.[2]

         On March 12, 2019, defendant HSG and defendant CTGI filed answers to second amended complaint, both asserting counterclaims for declaratory judgment of non-infringement of the '210 and ‘568 patents as well as declaratory judgment of invalidity as to the same patents.

         As required by the court's case management order and Local Patent Rule 304.3, the parties filed a joint claim construction statement on April 10, 2019, setting forth five sets of disputed claim terms as to the two patents at issue and proposed constructions for those terms.[3] The parties filed opening claim construction briefs and responsive claim construction briefs in May and June, 2019. Additionally, on June 7, 2019, plaintiff moved to exclude expert testimony of James Cagle (“Cagle”), an expert retained by defendants, and declaration of Frederick Storms (“Storms”), a former employee of defendant HSG. On June 14, 2019, defendants likewise moved to exclude expert testimony of Nanci Stevens (“Stevens”), an expert retained by plaintiff.[4]

         The two patents plaintiff alleges have been infringed are both entitled “expandable carry pouch with variable compression, ” both designate one inventor and applicant, Scott Evans (“Evans”), and both share identical abstracts, figures, and specifications. (See '210 patent (DE 70-2); '568 patent (DE 8-7)). Additionally, both claim priority to a common application, and the claims of each patent contain similar and repeated phrases.[5]

         Plaintiff alleges infringement of independent claims 1 and 7 of the '210 patent which claims are included as follows with the disputed terms indicated:

1. An expandable carry pouch defining an interior compartment defined by
a. a front wall with an interior and exterior surface with apertures along a perimeter of the front wall;
b. a back wall opposed to the front wall with an interior and exterior surface with apertures along a perimeter of the back wall;
c. a pair of opposing side walls;
d. at least one covered recessed vertical channel molded into the interior surface of the front or back wall between the apertures along the perimeter of the front or back wall extending longitudinally along the length of the front or back wall with openings on opposite ends and molded into the front wall or back wall; and
e. a top open end;
wherein the front wall and back wall are compressed towards one another using a binding device weaved or laced through the apertures in the perimeter of the front and back wall and the recessed vertical channel and the openings of the vertical channel . . . .
7. An expandable carry pouch defining an interior compartment defined by
a. a front wall with an interior and exterior surface with apertures along a perimeter of the front wall;
b. a back wall opposed to the front wall with an interior and exterior surface with apertures along a perimeter of the back wall;
c. a pair of opposing side walls;
d. at least one covered recessed horizontal channel molded into the interior surface of the front or back wall between the apertures along the perimeter of the front or back wall extending crosswise along the length of the front or back wall with openings on opposite ends and molded into the front wall or back wall; and
e. a top open end;
wherein the front wall and back wall are compressed towards one another using a binding device weaved or laced through the apertures in the perimeter of the front and back wall and the recessed horizontal channel and the [] openings of the horizontal channel.

('210 patent (DE 70-2) col. 4, ll. 28-47; col. 4, l. 64-col. 5, l. 16 (emphasis added)).

         As seen above, the '210 patent provides for an expandable carry pouch with variable compression that can be used to carry tactical gear and that includes channels into which a “binding device” is woven for compression purposes. Defendants argue, and plaintiff does not dispute, that with respect to the channel referenced in claim 1 of the '210 patent, the following 11 features or limitations exist: 1) There must be at least one channel; 2) The channel must be vertical; 3) The channel must be recessed; 4) The recessed channel must also be covered; 5) The channel must also be molded into the interior surface of the front or back wall; 6) The channel must be molded between the apertures; 7) The apertures must be along the perimeter of the front or back wall; 8) The channel must extend longitudinally; 9) The channel must extend the length of the front or back wall; 10) The channel must have openings on opposite ends; and 11) The channel's openings must be molded into the front or back wall. (See DE 81 at 7). Likewise, the same features or limitations exist to the channel described in claim 7 of the '210 patent, except that the directions are “horizontal” and “crosswise, ” instead of “vertical” and “longitudinally.” (Id.).

         Plaintiff also alleges infringement of independent claim 14 as well as dependent claims 15 and 16 of the '568 patent, which claims are included as follows with the disputed terms indicated:

14. An expandable carry pouch defining an interior compartment defined by
a. a front wall with a proximal side edge and a bottom edge, a forward panel segment extending in a substantially perpendicular plane outward from the proximal side edge of the front wall and a bottom panel segment extending in a substantially perpendicular plane outward from the bottom edge of the front wall;
b. a back wall opposed to the front wall with a distal side edge and a bottom edge, a rearward panel segment extending in a substantially perpendicular plane outward from the distal side edge of the back wall and a bottom panel segment extending in a substantially perpendicular plane outward from the bottom edge of the back wall;
c. at least one vertical channel with openings on opposite ends molded into the front wall or back wall;
d. at least one recessed horizontal channel with openings on opposite ends molded into the front wall or back wall; and
e. a top open end
wherein the front wall and back wall are compressed towards one another using a binding device with ends weaved or laced through the openings of the vertical channel and the openings of the horizontal channel.
15. The pouch of claim 14 wherein the front wall, front wall forward panel segment, and front wall bottom panel segment comprise a single continuous and rigid component.
16. The pouch of claim 14 wherein the back wall, back wall rearward panel segment, and back wall bottom panel segment comprise a single continuous and rigid component.

('568 patent (DE 8-7) col. 5, l. 31-col. 6, l. 31 (emphasis added)).[6]

         Both the '210 and '568 patents provide for the following figures 1 and ...


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