Wechsler v. Macke International Trade, Inc.

56 F. App'x 935
CourtCourt of Appeals for the Federal Circuit
DecidedJanuary 29, 2003
DocketNo. 02-1265
StatusPublished

This text of 56 F. App'x 935 (Wechsler v. Macke International Trade, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wechsler v. Macke International Trade, Inc., 56 F. App'x 935 (Fed. Cir. 2003).

Opinion

DECISION

SCHALL, Circuit Judge.

Lawrence I. Wechsler appeals from the decision of the United States District Court for the Central District of California that granted summary judgment of non-infringement with respect to U.S. Patent No. 5,636,592 (“the ’592 patent”) in favor of Macke International Trade, Inc. (“Macke”), Anthony O’Rourke, and Pets-Mart, Inc. (“Petsmart”). See Wechsler v. Macke Int'l Trade, Inc., No. 00-00296-CAS (C.D.Cal. Feb. 13, 2002) (order granting summary judgment) ('‘Summary Judgment Order”). We affirm-in-part, reverse-in-part, and remand.

DISCUSSION

I.

Mr. Wechsler is the inventor of the device claimed in the ’592 patent. He also owns the patent. The ’592 patent is directed to a “Portable Device for Feeding Animals.” Figs, la and 2a of the patent, both of which are reproduced below, illustrate an embodiment of the invention.

[937]*937[[Image here]]

As shown, dispenser 10 includes a reservoir 2 and a trough 8. The reservoir is movably mounted to the trough so that it can nest in the trough when not in use, as shown in Fig. la. When needed for feeding, the reservoir can be moved clear of the trough so that its contents can be transferred to the trough for the animal,

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as shown in Fig. 2a. ’592 patent, col. 4, 11. 60-67, col. 5,11. 1-20.

Reservoir 2 is mounted to trough 8 via a coupling assembly 1, as shown in more detail in Fig. 2b of the ’592 patent, which is reproduced below.

[938]*938Coupling assembly 1 optionally includes a valve portion 4 to selectively prevent discharge of the contents within the reservoir by permitting positive closure of the reservoir from the outside. ’592 patent, col. 5,11. 21-27.

Dispenser 10 also includes means for allowing relative movement of the reservoir and the trough between first and second mounted positions, shown respectively in Figs, la and 2a. In the embodiment shown in Figs, la, 2a, and 2b, the means for permitting relative movement while mounted is provided in the form of a pair of cylindrical shaft stubs or pivots 7a and 7b. Trough 8 has a pair of holes 9a and 9b on opposed peripheral sides 11a and lib for receiving cylindrical shaft stubs 7a and 7b. ’592 patent, col. 5, lines 3(M:9.

II.

Macke and Petsmart make and/or sell two different devices, the Handi-Drink (“HD”) and the Handi-Drink 2 (“HD2”). Both are portable water dispensing and drinking devices for animals. The HD is the original device, while the HD2 is an updated model with some differences in features, structure, and functions.

Mr. Wechsler sued Macke, Mr. O’Rourke,1 and Petsmart for infringement of the ’592 patent by the HD and HD2 devices. He alleged that the HD device infringed claims 1-3, 5, 6, 11, 12, 14-16, and 18-20, and that the HD2 device infringed claim 15 and 16, of the ’592 patent. Petsmart counterclaimed seeking a declaratory judgment of invalidity and non-infringement.

The district court noted that, for purposes of claim construction, only claims 1, 5, 6, 15, 16, and 18 of the patent were at issue. Accordingly, it issued two orders construing those claims. See Wechsler v. Macke Int’l Trade, Inc., No. 00-00296-CAS (C.D. Cal. Aug. 20, 2001) (order construing patent) (“First Claim Construction Order”); Wechsler v. Macke Int’l Trade, Inc., No. 00-00296-CAS (C.D.Cal. Oct. 30, 2001) (order construing additional portions of claims 1 and 18) (“Second Claim Construction Order”).

After the district court’s claim construction, Macke, Mr. O’Rourke, and Petsmart moved for summary judgment of non-infringement. In determining whether to grant summary judgment of non-infringement, the court noted that only claims 1, 15, and 18 are independent claims. Summary Judgment Order at 3. It further noted that a dependent claim cannot be infringed if the independent claim on which it depends is not infringed. Id. at 3-4. The district court then considered whether the HD device infringed claims 1, 15, and 18 and whether the HD2 device infringed claim 15 of the ’592 patent. Based on a comparison of the construed claims and the two accused devices, the court concluded that the HD device did not infringe claim 1, 15, or 18 and that the HD2 device did not infringe claim 15, either literally or under the doctrine of equivalents. Id. at 4-14. As a result, the court granted summary judgment of non-infringement, id. at 14, and entered final judgment in favor of Macke, Mr. O’Rourke, and Petsmart on February 13, 2002. Mr. Wechsler appealed to us from that judgment.

After oral argument in this appeal, we noted that Petsmart’s invalidity counterclaim apparently remained unresolved. Wechsler v. Macke Int’l Trade, Inc., No. 02-1265, slip op. at 2, 51 Fed.Appx. 871, 2002 WL 31684809 (Fed.Cir. Nov. 13, 2002) (order dismissing appeal). We further noted that none of the exceptions to the general rule that non-final orders are not appealable, such as when there has been a certification for appeal pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, was present. Id. at 2-3. Accordingly, we dismissed the appeal for lack of [939]*939jurisdiction, subject, however, to reinstatement under the same docket number without the payment of an additional filing fee if, within thirty days of the date of the dismissal, a party appealed from the entry of a final judgment on the entire case or obtained a certification for appeal pursuant to Rule 54(b). Id. at 3.

On December 9, 2002, the district court issued an order granting Mr. Wechsler’s request for a certification for appeal pursuant to Rule 54(b). Wechsler v. Macke Int’l Trade, Inc., No. 00-00296-CAS, slip op. at 1 (C.D.Cal. Dec. 9, 2002) (amended order granting plaintiffs motion for determination under rule 54(b)). At the same time, the court dismissed as moot, without prejudice, Petsmart’s invalidity counterclaim. Id. at 2. On December 10, 2002, Mr. Wechsler filed a motion requesting reinstatement of the appeal based on the district court’s December 9, 2002 order. We granted that motion on December 18, 2002. See Wechsler v. Macke Int’l Trade, Inc., No. 02-1265, 54 Fed-Appx. 320, 2002 WL 31939144 (Fed.Cir. Dec. 18, 2002) (order granting motion to reinstate appeal). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(1).

III.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Johnston v. IVAC Corp., 885 F.2d 1574, 1576-77, 12 USPQ2d 1382, 1383 (Fed.Cir.1989). In determining whether there is a genuine issue of material fact, the court must view the evidence in the light most favorable to the party opposing the motion, with doubts resolved in favor of the non-movant. Transmatic, Inc. v. Guiton Indus., Inc.,

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