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Inc. v. Marker Deutschland GmbH

United States District Court, W.D. Washington, Seattle

May 11, 2017

G3 GENUINE GUIDE GEAR INC., Plaintiff,
v.
MARKER DEUTSCHLAND GMBH, et al., Defendants.

          ORDER

          Thomas S. Zilly United States District Judge

         THIS MATTER comes before the Court on defendants' motion for summary judgment, docket no. 35, and plaintiff's cross-motion for partial summary judgment, docket no. 49. In this litigation, plaintiff G3 Genuine Guide Gear Inc. alleges that defendants Marker Deutschland GmbH and Marker Volkl USA, Inc. are infringing U.S. Patent No. 8, 746, 728 B2 (“the '728 Patent”). Plaintiff is the assignee of the '728 Patent, which discloses a heel unit for an alpine ski binding. The parties have entered into a stipulation pursuant to which defendants conceded that the accused devices literally infringe independent Claim 1 of the '728 Patent, and plaintiff agreed to limit its infringement contentions for trial to only dependent Claims 35 and 37 of the '728 Patent. See Stip. (docket no. 32).[1] In their motion for summary judgment, defendants asserted inter alia that Claims 1 and 37 of the '728 Patent are invalid because they were anticipated by French Patent No. 2, 613, 949, which was issued to Raymond Durfort and Roger Brard (the “Durfort/Brard Patent”). In its cross-motion, plaintiff sought a ruling as a matter of law that such anticipation defense lacks merit as to Claim 1 of the '728 Patent. Plaintiff did not make a similar argument with regard to Claim 37 of the '728 Patent, but the Court is satisfied that the issue has been fully briefed with regard to both Claim 1 and Claim 37. Having concluded, as a matter of law, that Claims 1 and 37 are not anticipated by the Durfort/Brard Patent, the Court entered a Minute Order on May 9, 2017, docket no. 64, denying defendants' motion and granting plaintiff's cross-motion for summary judgment. This Order explains the Court's reasoning.

         Background

         Defendants manufacture and/or sell the “Marker Kingpin” brand of alpine ski bindings, which usually include both a toe and a heel unit. The toe unit is not at issue in this matter. Alpine skiing or touring involves both downhill and uphill travel on skis. When an individual is skiing downhill, both the toes and the heels of his or her alpine ski boots are connected to the skis. In contrast, when an individual is ascending or “touring, ” only the toes of his or her boots remain pivotally engaged with the skis; the heels are able to move up and down with respect to the skis. The invention disclosed in the '728 Patent is an apparatus that can transition between (i) holding a ski boot heel onto an alpine ski for downhill travel, and (ii) releasing the heel for touring use of the ski.

         For safety reasons, alpine touring bindings are designed to release the ski boots in the event that the user falls while skiing downhill. In addition, when a ski boot detaches from a ski while the heel binding is in the downhill mode, brake arms that are attached to the ski will automatically deploy into the snow. Automatic deployment of these brake arms, however, is neither necessary nor desired when the skis are being used in ascent or touring mode. The '728 Patent discloses an apparatus that can transition between (i) locking the brake arms in a raised position (away from the snow) during the touring mode, and (ii) allowing automatic deployment of the brake arms in the event of a fall while traveling downhill.

         Claim 1 of the '728 Patent concerns a device for “selectively holding” the heel of an article of footwear, typically a ski boot (2), to a snow travel aid, usually a ski (1). See '728 Patent at Col. 15, Lines 47-48, Ex. A to Am. Compl. (docket no. 15-1); see also Id. at Col. 2, Lines 57-58. Claims 35 and 37 are dependent on Claim 29, which is similar to Claim 1, but discloses a “binding kit” comprising “toe holding and heel holding units for holding footwear to a snow travel aid.” Id. at Col. 18, Lines 63-64. The heel unit (20) disclosed in Claim 1 has five primary components: (i) a base (27) mountable to a ski; (ii) an “upper portion” (26) that is “slidably engageable with the base” for “controllable movement” by the user into a downhill or a touring position; (iii) a “connector” with pins (28) for connecting the apparatus to the heel (3) of a ski boot; (iv) a brake; and (v) a “brake holder.” See id. at Col. 15, Lines 49-67; see also id. at Cols. 8-9. The heel unit disclosed in Claim 29 does not include either the brake or the brake holder limitations of Claim 1, but dependent Claim 37 does contain such requirements.

         (Image Omitted)

Id at Fig. 4A. The downhill and touring positions are defined as follows: (i) in the downhill position (B), “the connector would be connected to the heel, ” and (ii) in the touring position (A), which is “spaced rearwardly from the downhill position, ” the connector “would be disconnected from the heel.” Id at Col. 15 at 55-59. Claim 1 also requires that “single motions of a lever in opposite directions result in complete movement in opposite directions between the downhill and touring positions.” Id at Col. 15, Line 67 - Col. 16, Line 2.

         The brake described in Claims 1 and 37 is “moveable between a braking position whereby the brake is positioned to contact snow and a raised position whereby the brake would be positioned above the snow.” Id at Col. 15, Lines 60-63 & Col. 20, Lines 16-19. The associated “brake holder” must be “moveable in response to movement of the upper portion between the downhill and touring positions” and must hold the brake “in the raised position when the upper portion is in the touring position.” Id at Col. 15, Lines 63-67 & Col. 20, Lines 19-22.

         (Image Omitted)

Id at Figs. 20B & 22B. The drawing on the left shows the downhill mode, in which, in the absence of a ski boot, the brake platform (61) is elevated, and the brakes (62) are in the deployed position. In the figure on the right, the brake platform (61) is latched and the brakes (62) are locked in the raised position to allow for ascent or touring. After the lever (21) is moved from the downhill to the touring position, the user must depress the brake platform (61) in order to raise and lock the brakes (62).

         The claimed scope of the “brake holder” involves the latching mechanism underneath and adjacent to the brake platform, which changes configuration when the lever is switched between the downhill and touring positions. In the downhill mode, the hook (64) will not engage with the brake platform, while in the touring mode, it “is rotated forward such that when the platform is forced downward to raise brake arms 62 from the snow, latch portion 67 of brake link 65 will engage the hook and the brake platform will be retained in a position with brake arm 62 elevated from the snow.” Id at Col. 14, Lines 30-40. In this manner, the brake holder “automatically” switches from a downhill (incapable of locking) to a touring (capable of locking) configuration.

         Discussion

         A. Patentability

         To be eligible for patent protection, an invention must (i) fall within a category of patentable subject matter, 35 U.S.C. § 101; (ii) be novel, id. at § 102; and (iii) be non-obvious, id. at § 103. See Microsoft Corp. v. i4i Ltd. P'ship, 564 U.S. 91, 96 (2011). A patent is presumed valid, and the burden of establishing the invalidity of a patent or any claim thereof rests on the party asserting such invalidity. 35 U.S.C. § 282(a). The “clear and convincing” standard applies to any evidentiary issues associated with an assertion of invalidity. See Microsoft, 564 U.S. at 95; see also id. at 114 (Breyer, J., concurring) (clarifying that a factfinder must use the “clear and convincing” standard to decide “disputes about, say, when a product was first sold or whether a prior art reference had been ...


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