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Red Rhino Leak Detection, Inc. v. Anderson Manufacturing Company, Inc.

United States District Court, D. Minnesota

August 27, 2019

Red Rhino Leak Detection, Inc., Plaintiff and Counterclaim Defendant,
Anderson Manufacturing Company, Inc., Defendant and Counterclaimant.

          Mark F. Warzecha and Kelly G. Swartz, Widerman Malek, PL, Melbourne FL, and Jack E. Pierce, Bernick Lifson, Minneapolis MN for Plaintiff and Counterclaim Defendant Red Rhino Leak Detection, Inc.

          Devan V. Padmanabhan and Erin O. Dungan, Padmanabhan & Dawson, PLLC, Minneapolis, MN for Defendant and Counterclaimant Anderson Manufacturing Company, Inc.


          Eric C. Tostrud United States District Court

         This is a patent-infringement case. Plaintiff Red Rhino Leak Detection owns U.S. Patent No. 9, 464, 959 ("the '959 Patent"). Red Rhino alleges that a "light tester" product sold by Defendant Anderson Manufacturing Company violated the '959 Patent. It's more complicated than this, but described at a very high level, Red Rhino's '959 Patent and Anderson's light tester are devices that may be used to detect leaks in swimming pools. In response to Red Rhino's complaint, Anderson answered and asserted counterclaims seeking a declaratory judgment of invalidity or, failing that, then non-infringement. Red Rhino and Anderson have presented four matters for decision: First, Anderson requested claim construction with respect to four[1] disputed claim terms pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370, 390-91 (1996). Second, Anderson moved for summary judgment on the basis "that Anderson does not infringe [the '959 Patent] and/or that the '959 Patent is invalid." That motion does not specifically reference Anderson's counterclaim for declaratory relief but necessarily encompasses it. Third, Anderson has moved to exclude the expert testimony of a Red Rhino witness pursuant to Federal Rule of Evidence 702. Fourth, Red Rhino has filed a summary-judgment motion of its own as to each count of its Complaint. Red Rhino has not moved for summary judgment as to Anderson's counterclaim seeking a declaratory judgment, but a ruling in Red Rhino's favor would require dismissal of those counterclaims.


         Anderson has moved to exclude the testimony of Glen Stevick, Red Rhino's expert on claim construction, infringement, anticipation, obviousness, and indefiniteness. Daubert Mot. [ECF No. 64]; Anderson Br. at 38 [ECF No. 66]. Because the resolution of this motion has the potential to affect what evidence properly may be considered in the Parties' other motions, the Daubert motion will be addressed first. Stevick's testimony will be admitted.

         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. That rule provides:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). "District courts have wide latitude in determining whether an expert's testimony is reliable." Olson v. FordMotor Co., 481 F.3d 619, 626 (8th Cir. 2007) (citation omitted). As long as the evidence indicates that the expert evidence is reliable and relevant, "no single requirement for admissibility" governs. Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005). The proponent of the expert opinion bears the burden of showing, by a preponderance of the evidence, that the testimony satisfies Rule 702. Khoury v. Philips Med. Sys., 614 F.3d 888, 892 (8th Cir. 2010) (citations omitted). "As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination." Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (citation omitted).

         The Federal Circuit has held that "it is an abuse of discretion to permit a witness to testify as an expert on the issues of noninfringement or invalidity unless that witness is qualified as an expert in the pertinent art." Sundance, Inc. v. DeMonte Fabricating, Ltd., 550 F.3d 1356, 1363 (Fed. Cir. 2008). Although Sundance involved the admissibility of expert testimony on issues of infringement and invalidity, Anderson seems to argue (and Red Rhino does not seem to disagree) that the holding of Sundance applies more broadly to any "issue [that] calls for consideration of evidence from the perspective of one of ordinary skill in the art," such as claim construction. Id.; see also Phillips v. A WH Corp., 415F.3d 1303, 1318 (Fed. Cir. 2005) ("[E]xtrinsic evidence in the form of expert testimony can be useful to a court ... to ensure that the court's understanding of the technical components aspects of the patent is consistent with that of a person of skill in the art, or to establish that a particular term in the patent or the prior art has a particular meaning in the pertinent field."). When offered for such purposes, "[t]estimony proffered by a witness lacking the relevant technical expertise fails the standard of admissibility under [Rule] 702." Sundance, 550 F.3d at 1363. To determine the relevant field of art in a given case, courts "must look to the nature of the problem confronting the inventor." Verizon Servs. Corp. v, Cox Fibernet Va., Inc., 602 F.3d 1325, 1338 (Fed. Cir. 2010) (citation omitted). "One factor bearing on the determination of the relevant art is the type of skill required to understand the disclosure of the . . . patent" in suit. Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1008 (Fed. Cir. 1983) (per curiam).

         Stevick's qualifications are extensive. He earned a Ph.D. and an M.S. from the University of California, Berkeley, and also earned a B.S. from Michigan Technological University, all in the field of mechanical engineering. Warzecha Decl. Ex. A-18 at 1 [ECF No. 83 at 129]. He is a member of the American Society of Mechanical Engineers and a co-founder of, and consulting engineer with, Berkeley Engineering and Research, Inc. ("BEAR"), where he was previously a director and principal. Id. at 1-2. BEAR is a multi-disciplinary engineering laboratory through which Stevick has provided engineering services relating to various mechanical, fluid-flow, and electrical devices and systems. Id. at 2. Over his 35 years of professional experience as a mechanical engineer, he has designed or worked on leak-detection systems for a number of clients. Id. at 1. Although he does not have experience detecting leaks in swimming pools specifically, he has worked on leak-detection problems in other contexts, including gasoline tanks, pipes, and vessels. Warzecha Decl. Ex. A-12 ("Stevick Dep.") at 17 [ECF No. 84 at 18]. He has not personally used the accused product to detect leaks in a pool but observes that "they are pretty simple in their configuration. And just using the laws of physics, you know exactly how they work." Stevick Dep. at 17-18.

         Anderson argues nonetheless that Stevick's testimony must be excluded because he is not "qualified as an expert in the pertinent art." Sundance, 550 F.3d at 1363; see Def.'s Mem. in Supp. at 41-44. Anderson's expert defines a "person of ordinary skill in the art of the '959 Patent" as someone who has "at least two (2) years of experience working in the area of swimming pool leak detection." Anderson Expert Disclosures at 9 n.2 [ECF No. 71 at 10]. Neither Party has spent considerable effort defining a person of ordinary skill in the art for purposes of this case, but Stevick testified in his deposition that "anyone with a couple years of experience dealing with pools and their leaks would be qualified, a POS A [person of ordinary skill in the art, ] or more certainly an engineer would qualify.'" Stevick Dep. at 35 (emphasis added).

         Essentially, then, Anderson's Daubert motion boils down to whether a person of ordinary skill in the pertinent art must have experience detecting leaks in swimming pools (as Anderson contends), Anderson Expert Disclosures at 9 n.2, or whether an engineer who lacks direct experience detecting leaks in swimming pools but who is otherwise familiar with the laws of hydrodynamics and has experience detecting leaks in non-swimming-pool contexts may also qualify as a person of ordinary skill in the relevant art. Anderson does not explain why experience detecting leaks in swimming pools differs in any discernible way from experience detecting leaks in other contexts, nor is it immediately apparent why that would be so. The '959 Patent is not limited to swimming pool leak detection. It describes a system and method for detecting leaks in a fluid-filled vessel. Warzecha Decl. Ex. A-l at 1 ('"959 Patent") [ECF No. 83 at 7]. Although claim 1 of the '959 Patent expressly refers to "[a] leak detecting device for swimming pool lights in a water filled swimming pool," id. at 4:45-46, the abstract and specification both describe a swimming pool as an example-perhaps the primary example, though not necessarily the only example-of the type of fluid-filled vessel in which the '959 Patent may be used. See Id. at 1:14-15 (stating that the invention related to "a system and method for detecting leaks in a liquid filled vessel such as a swimming pool"); 1:32-34 (similar); 1 (similar). The title of the patent itself makes clear that the patent relates to the "detect[ion of] leaks in a fluid filled vessel," more broadly. Id. at 1; Bancorp Servs., L.L.C. v. Hartford Life Ins. Co., 359F.3d 1367, 1375 (Fed. Cir. 2004) (concluding that the district court erred in excluding testimony from a witness who was an expert in stable value investments but not in life insurance administration, where the abstract and title of the patent made clear that the patent related to both fields). Here, the nature of the problem facing the inventor expressly was not limited to swimming pools, as opposed to other fluid-filled vessels, and Anderson does not attempt to explain how having expertise specific to swimming pools, or swimming-pool-leak detection, would be necessary to understand the disclosure of the '959 Patent. See Orthopedic Equip., 702 F.2d at 1009 ("In determining the relevant art of the claims in suit one looks to the nature of the problem confronting the inventor." (citation omitted)). Furthermore, Anderson does not argue that the relevant scientific principles apply any differently to detecting leaks from swimming pools than they do to detecting leaks from any other fluid filled vessel, such as those with which Stevick has experience.

         Given Stevick's training and professional experience, and in particular his work on leak-detection systems in a variety of contexts including gasoline tanks, pipes, and vessels, Stevick plainly qualifies as a technical expert in the art of detecting fluid leaks, and his expert testimony is relevant and material to this case. See Shelcore, Inc. v. Durham Indus., Inc., 745 F.2d 621, 625 (Fed. Cir. 1984) (holding that district court did not abuse its discretion in permitting expert testimony of witness in a case involving patents related to a driving-simulator toy where the proffered expert was not a toy designer but was an expert in plastics manufacturing). Anderson's motion to exclude Stevick's testimony will be denied.


         Because it is essential to know what the relevant claim terms mean before determining whether any Party is entitled to summary judgment in this case, the next issue must be claim construction. Courts, not juries, construe patent claims. Markman v. Westview Instruments, Inc., 517 U.S. 370, 391 (1996). In general, claim language means whatever it would have meant, ordinarily and customarily, to a person of ordinary skill in the relevant art at the time the patent application was filed. Phillips v. AWH Corp., 415F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc). Sometimes the ordinary and customary meaning of claim language to a person of ordinary skill in the art may be identical to the meaning of that language to a lay person who is not skilled in the art. See Id. at 1314 (acknowledging that claim construction sometimes "involves little more than the application of the widely accepted meaning of commonly understood words" (citation omitted)). Here, neither Party argues that a person of ordinary skill in the art would understand a disputed claim term any differently than would an educated member of the lay public.

         "The intrinsic record in a patent case is the primary tool to supply the context for interpretation of disputed claim terms." V-Formation, Inc. v. Benetton Grp. SpA, 401 F.3d 1307, 1310 (Fed. Cir. 2005) (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1592 (Fed. Cir. 1996)). Such intrinsic evidence includes "the words of the claims themselves, the remainder of the specification, [and] the prosecution history," which consists of "the complete record of the proceedings before the PTO and includes the prior art cited during the examination of the patent." Phillips, 415 F.3d at 1314, 1317 (citations omitted). The prosecution history of a parent application also constitutes intrinsic evidence that may be useful in construing claim terms. Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 980 (Fed. Cir. 1999). "[T]he specification 'is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'" Phillips, 415 F.3d at 1315 (quoting Vitronics Corp., 90 F.3d at 1582).

         Courts also may rely on "extrinsic evidence"-that is, "all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Phillips, 415 F.3d at 1317 (citations omitted). Extrinsic evidence "can shed useful light on the relevant art," but it "is less significant than the intrinsic record in determining the legally operative meaning of disputed claim language." C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004) (internal quotation marks and citation omitted); see Phillips, 415 F.3d at 1317. Extrinsic evidence is considered "less reliable" than intrinsic evidence and may not be used to contradict the intrinsic evidence. Phillips, 415 F.3d at 1318; Mantech Envtl. Corp., v. Hudson Envtl. Servs., Inc., 152 F.3d 1368, 1373 (Fed. Cir. 1998).

         Courts depart from the plain and ordinary meaning of a claim term only "when a patentee acts as his own lexicographer" or "when the patentee disavows the full scope of the claim term in the specification or during prosecution." Poly-Am., L.P. v. API Indus., Inc., 839F.3dll31, 1136 (Fed. Cir. 2016) (citations omitted). "[A]n inventor may disavow claims lacking a particular feature when the specification describes 'the present invention' as having that feature." Id. (citation omitted). "While disavowal must be clear and unequivocal, it need not be explicit." Id. (citation omitted). "The standard for disavowal is exacting, requiring clear and unequivocal evidence that the claimed invention includes or does not include a particular feature. Ambiguous language cannot support disavowal." Cisco Sys., Inc. v. Int'l Trade Comm'n, 873 F.3d 1354, 1361 (Fed. Cir. 2017) (citations omitted).

         In their Markman briefing, the Parties dispute the meaning of the following claim terms:

• "an inlet... to selectively deliver fluid through the inlet into the interior of the housing";
• "or deliver a dye solution for leak detection purposes into the interior of the housing";
• "the seal being for causing the device to be fixed or secured in one place"; and
• "the defined underwater surface of the swimming pool being about a component related to being partly in a passage from inside the pool to a position removed from the surface"

Anderson Br. at 10-15. Each of these terms is located in claim 1, which in its entirety provides as follows:

A leak detecting device for swimming pool lights in a water filled swimming pool comprising:
a ring shaped annular resilient seal adapted to contact a surface of the swimming pool underwater and create a seal between the resilient seal and the underwater surface of the swimming pool, the underwater surface being a defined area with a defined perimeter about which the seal engages, the seal having a central opening; the seal being for effecting anchoring in a sealing engagement around the perimeter and being in a stationary non-movable position relative to the defined underwater surface of the swimming pool, the defined underwater surface of the pool being about a component related ...

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