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Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp.

United States District Court, W.D. Tennessee, Western Division

November 7, 2014

MULTILAYER STRETCH CLING FILM HOLDINGS, INC., Plaintiff,
v.
BERRY PLASTICS CORPORATION, Defendant

For Multilayer Stretch Cling Film Holdings, Inc., Plaintiff, Counter Defendant: Joel T. Beres, STITES & HARBISON, Louisville, KY; Kevin P. Hartley, England Law Office, Decaturville, TN; James R. Michels, PRO HAC VICE, Melissa Hunter Smith, William C. Ferrell, STITES & HARBISON, PLLC - Nashville, Nashville, TN.

For Berry Plastics Corporation, Defendant, Counter Claimant: Daniel Paul Albers, Jonathan P. Froemel, LEAD ATTORNEYS, PRO HAC VICE, BARNES & THORNBURG - Chicago, Chicago, IL; Adam S. Baldridge, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ- Memphis, Memphis, TN; Mark Alan Hagedorn, PRO HAC VICE, Elizabeth A. Peters, BARNES & THORNBURG, LLP, Chicago, IL.

For Multilayer Stretch Cling Film Holdings, Inc., Counter Defendant: Joel T. Beres, STITES & HARBISON, Louisville, KY; James R. Michels, PRO HAC VICE, Melissa Hunter Smith, William C. Ferrell, STITES & HARBISON, PLLC - Nashville, Nashville, TN.

Page 787

MEMORANDUM & ORDER

WILLIAM G. YOUNG, UNITED STATES DISTRICT JUDGE[10].

I. INTRODUCTION

The motion presently before this Court arises from a patent infringement suit filed by Multilayer Stretch Cling Film Holdings, Inc. (" Multilayer" ), the assignee of U.S. Patent No. 6,265,055 (the " '055 Patent" ), against Berry Plastics Corporation (" Berry" ). Following the claim construction hearing and the filing of the Markman order, Berry filed its present motion for summary judgment, arguing that, as matter of law, none of Berry's accused products infringe the '055 Patent as construed. Arguments on this motion were heard on July 17, 2014, at which time the Court took the matter under advisement. Min. Entry, July 17, 2014, ECF No. 140.

For the reasons stated herein, the Court now GRANTS Berry's motion for summary judgment.

A. Procedural Posture

Multilayer filed a complaint against Berry in the Western District of Tennessee on

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February 10, 2012, alleging that the latter's stretch films infringed the '055 Patent. Compl. ¶ 11, ECF No. 1. On April 10, 2012, Berry filed its answer, along with defenses and counterclaims, against Multilayer. Def.'s Answer, Affirmative Defenses & Countercls. Compl., ECF No. 14. Two weeks later, Berry filed a motion for summary judgment, Berry Plastics Corp.'s Mot. Summ. J., ECF No. 17, which was denied on September, 28, 2012, Electronic Order, ECF No. 55.

Multilayer had also initiated several lawsuits in the Western District of Tennessee, against additional companies besides Berry, alleging infringement of the same '055 Patent. See Order Following Claim Construction Hr'g (" Markman Order" ) 1 n.1, ECF No. 104. The then four remaining cases were consolidated for the purpose of claim construction before Judge McCalla in Multilayer Stretch Cling Film Holdings, Inc. v. MSC Marketing & Technology, Inc. et al, No. 12-cv-02112, (the " MSC Marketing litigation" ). Markman Order 1. On November 8, 2013, Judge McCalla signed an order (the " Markman Order" ) construing thirteen terms of the '055 Patent. Id. at 102-06. On the same day, Judge McCalla entered a separate proposed order (the " Proposed Order" ) addressing one specific term of the patent that had not been addressed in the Markman Order. Ct.'s Proposed Construction " Wherein Each of Said Two Outer Layers And Each Of Said Five Inner Layers Have Different Compositional Properties When Compared To A Neighboring Layer" (" Proposed Order" ), ECF No. 105. In this order, Judge McCalla gave the parties fourteen days to file supplemental briefs on the proposed construction. Id. at 9. The parties filed their briefs on November 22, 2013. Supplemental Br. Defs. Clarification Ct.'s Proposed Claim Construction, case docket No. 12-cv-02112, ECF No. 98; Multilayer's Supplemental Claim Construction Br., case docket No. 12-cv-02112, ECF No. 99. The MSC Marketing litigation, however, was dismissed with prejudice after the parties agreed to a settlement. Stipulation Dismissal With Prejudice, case docket No. 12-cv-02112, ECF No. 101; Judgment, case docket No. 12-cv-02112, ECF No. 102. As a result, a final order has not been entered on the remaining claim term.

On March 14, 2014, Berry filed a motion for partial summary judgment. Def. Berry Plastics Corp.'s Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055, ECF No. 120; Def. Berry Plastics Corp.'s Br. Supp. Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055 (" Berry's Br." ), ECF No. 120-1. Two months later, Multilayer filed a brief in opposition to Berry's motion. Resp. Opp'n Berry Plastics Corp.'s Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055 (" Multilayer's Opp'n" ), ECF No. 129. Berry filed a reply on June 2, 2014. Def. Berry Plastics Corp.'s Reply Br. Supp. Mot. Summ. J. Non-Infringement U.S. Patent No. 6,265,055 & Resp. Multilayer's Statement Additional Facts (" Berry's Reply" ), ECF No. 134.

B. Jurisdiction

28 U.S.C. sections 1331 and 1338(a) confer upon this Court jurisdiction to hear the instant matter, as the claims at issue arise under federal patent law.

C. Factual Summary

The evidentiary record in this matter is replete with helpful and detailed information regarding all aspects of the production and manufacture of the various stretch-films. Though both informative and necessary for the global claim, given the focused nature of this motion, and for the sake of concision, the facts outlined below

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are restricted to those which directly relate to the infringement claim presently before this Court.

This matter arises from the alleged infringement of the '055 Patent, issued on July 24, 2001, to David Simpson and Terry Jones. Compl., Ex. A, U.S. Patent No. 6,265,055 C3 (" U.S. '055 Patent" ), ECF No. 1-3.[1] Multilayer is the present assignee of all " right, title and interest in the '055 Patent." Compl. ¶ 9. The '055 Patent is titled " Multilayer Stretch Cling Film" and relates to a " multi-layer stretch film comprising at least 7 layers and having excellent mechanical properties and stretch film performance." U.S. '055 Patent, Abstract.

Multilayer alleges that Berry's stretch-film products infringe " at least claim 1 of the '055 [Patent." Compl. ¶ 11. In response, Berry raises a number of defenses, including invalidity, non-infringement, and inequitable conduct. Def.'s Answer Affirmative Defenses & Countercls. Compl. 2-3, ECF No. 14.

1. The '055 Patent

The '055 Patent relates to a " multi-layer stretch film comprising at least 7 layers . . . . compris[ing] two outer, or skin layers . . . [and] at least five internal layers to assist in producing mechanical strength and stretchability." U.S. '055 Patent, col.1:51-58. The patent-in-issue is described in thirty-four claims, of which two, claims 1 and 28, are independent. U.S. '055 Patent; see also Markman Order 13. It is the alleged non-infringement ...


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