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Polyform A.G.P., Inc. v. Xtreme Insulation Technologies, LLC

United States District Court, D. Minnesota

October 11, 2017

POLYFORM A.G.P., INC., PLASTIQUES CELLULAIRES POLYFORM, INC., and NUDURA, INC., Plaintiffs / Counter Defendants,
v.
XTREME INSULATION TECHNOLOGIES, LLC, TERRA LOGIC BUILDING PRODUCTS, INC., and COOPER STEWART, Defendants / Counter Claimants.

          Aaron M. Johnson and Christopher J. Sorenson, MERCHANT & GOULD PC, for plaintiffs / counter defendants.

          Douglas C. Mezera and R. John Bartz, BARTZ & BARTZ, PA, for defendants / counter claimants.

          MEMORANDUM OPINION AND ORDER DENYING MOTION FOR A PRELIMINARY INJUNCTION

          JOHN R. TUNHEIM CHIEF JUDGE

         Plaintiffs Polyform A.G.P., Inc., Plastiques Cellulaires Polyform, Inc., and Nudura, Inc. (collectively, “Polyform”) bring this patent-infringement action against Defendants Xtreme Insulation Technologies, LLC, Terra Logic Building Products, Inc., and Cooper Stewart (collectively, “Xtreme”). Polyform and Xtreme offer competing insulated concrete form (“ICF”) products. Polyform contends that Xtreme's ICF products infringe Polyform's U.S. Patent No. 6, 792, 729 (“the ‘729 patent”). Polyform moves for a preliminary injunction, seeking to prevent Xtreme from selling their ICF products. Because, at this early stage of the case and on a limited record, the Court cannot find that Polyform is likely to succeed on the merits and because the threat of irreparable harm is unclear, the Court will deny Polyform's motion.

         BACKGROUND

         The ‘729 patent, titled “Stackable Construction Panel System, ” describes an improvement to ICF products, or as stated in the ‘729 patent, “stackable wall forms . . . having pairs of opposed panels for receiving flowable materials such as concrete.” (Compl., Ex. A (“‘729 Patent”) at 1:6-9, Mar. 9, 2017, Docket No. 1.) Generally, “[o]nce the concrete is solidified, the assembled wall forms remain in place to insulate the wall.” (Id. at 1:19-20.) Claim 1 of the ‘729 patent recites:

         A wall form for receiving a flowable material, comprising:

a pair of foam panels each having opposed top and bottom wall surfaces; and
a connector for tying together said foam panels in spaced and parallel relationship along a longitudinal direction, said connector comprising a pair of elongated anchor members each embedded longitudinally inside a corresponding one of said foam panels, each of said anchor members having two opposed extremities and a head piece projecting from each of said extremities along the longitudinal direction, the head pieces each having a terminal surface extending transversally and along a portion of a corresponding one of the top and bottom wall surfaces of the corresponding foam panel, the connector further comprising a connecting member for connecting longitudinally the anchor members of the pair together;
wherein each of the top and bottom wall surfaces of each of the foam panels is provided with alternating projections and recesses, the head pieces each being embedded into one of said projections.

(Id. at 8:40-61.)

         Polyform contends that it has become a “leader[] in the ICF industry in Canada, Europe, and the United States”; it has been “instrumental in establishing building codes in Canada and the United States to enhance the safety and uniform construction of buildings utilizing ICF technology”; and it has “invested heavily and incurred great expense in developing a market for [its] Nudura ICFs and in developing, training, and maintaining a network of distributors in Canada, Europe, and throughout the United States.” (Decl. of Murray Snider (“Snider Decl.”) ¶¶ 6-7, June 5, 2017, Docket No. 14.)

         Xtreme also manufactures and sells ICF products. (Decl. of Paige S. Stradley (“Stradley Decl.”) ¶¶ 2-3 & Exs. A-B, June 5, 2017, Docket No. 16.) Polyform contends that Xtreme's ICF products have been used in at least one construction site in Illinois. (Snider Decl. ¶ 13.) Xtreme's website contains testimonials regarding its ICF products. (Stradley Decl., Ex. C.)

         ANALYSIS

         I. STANDARD OF REVIEW

         In deciding whether to grant a preliminary injunction, the Court considers four factors: (1) the likelihood of success on the merits (2) the likelihood of irreparable harm (3) the balance of equities; and (4) the public interest. Trebro Mfg., Inc. v. Firefly Equip., LLC, 748 F.3d 1159, 1165 (Fed. Cir. 2014). “These traditional four factors ‘apply with equal force to disputes arising under the Patent Act.'” Apple Inc. v. Samsung Elecs. Co., 695 F.3d 1370, 1374 (Fed. Cir. 2012) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). “[A] preliminary injunction is a drastic and extraordinary remedy that is not to be routinely granted.” Intel Corp. v. ULSI Sys. Tech., Inc., 995 F.2d 1566, 1568 (Fed. Cir. 1993). The Court will not grant ...


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