12
Jun
By Eric Schweibenz
On June 10, 2009, ALJ E. James Gildea issued the public version of Order No. 8 (dated June 1, 2009) in Certain Active Comfort Footwear (Inv. No. 337-TA-660).  In the Order, ALJ Gildea denied Respondent RYN Korea Co. Ltd.’s (“RYN”) motion for summary determination of non-infringement of U.S. Patent No. 6,341,432 (the “‘432 patent”).

According to the Order, RYN argued that certain of its shoe products (“Accused Shoes”) did not literally infringe the ‘432 patent because the Accused Shoes did not “have the claimed structure for ‘recess (13)’ and ‘material element (25)’” limitations.  RYN also argued that Complainants Masai Marketing & Trading AG and Masai USA Corp. (collectively, “Masai”) were estopped from asserting infringement under the doctrine of equivalents because of certain claim amendments Masai made during prosecution of the patent-in-suit.  In opposition, Masai asserted that RYN’s motion was insufficient because it did not “provide adequate factual evidence of the level of skill in the relevant art” and that there were genuine issues of material fact as to whether the Accused Shoes had a “material element” and a “recess ‘between’ the sole body and covering” as claimed in the patent-in-suit.  Further, Masai argued that RYN was incorrect in asserting that Masai alleged infringement under the doctrine of equivalents.  The Commission Investigative Staff (“Staff”) opposed RYN’s motion for summary determination of non-infringement arguing that Masai did not assert infringement under the doctrine of equivalents and that RYN’s non-infringement arguments with respect to literal infringement were not based on factual evidence but rather, on conclusory expert statements.  Staff also argued that there was “a genuine issue of material fact as to the structure of the sole and location of the ‘tunnel’ or ‘recess’ in the Accused Shoes.”

ALJ Gildea found that summary determination was inappropriate and that genuine issues of material fact remained as to “(i) whether the Accused Shoes have a ‘recess’ and the location of same, and (ii) whether the Accused Shoes have at least one ‘material element.’”  In addition, ALJ Gildea determined that Masai had not asserted infringement under the doctrine of equivalents and accordingly, declined to rule on RYN’s estoppel argument as being premature.
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