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D Three Enterprises, LLC v. SunModo Corp.

United States Court of Appeals, Federal Circuit

May 21, 2018

D THREE ENTERPRISES, LLC, Plaintiff-Appellant
v.
SUNMODO CORPORATION, Defendant-Appellee D THREE ENTERPRISES, LLC, Plaintiff-Appellant
v.
RILLITO RIVER SOLAR LLC, D BA ECOFASTEN SOLAR, Defendant-Appellee

          Appeals from the United States District Court for the District of Colorado in Nos. 1:15-cv-01148-CBS, 1:15-cv-01151-CBS, Magistrate Judge Craig B. Shaffer.

          Dave R. Gunter, Friedman, Suder & Cooke, Fort Worth, TX, argued for plaintiff-appellant. Also represented by Michael Thomas Cooke, Corby Robert Vowell.

          Scott E. Davis, Klarquist Sparkman, LLP, Portland, OR, argued for defendants-appellees. Also represented by Sarah Elisabeth Jelsema, Todd M. Siegel.

          Before Reyna, Clevenger, and Wallach, Circuit Judges.

          WALLACH, CIRCUIT JUDGE.

         Appellant D Three Enterprises, LLC ("D Three") sued Appellees SunModo Corporation ("SunModo") and Rillito River Solar LLC, doing business as EcoFasten Solar ("EcoFasten"), (together, "Appellees") in the U.S. District Court for the District of Colorado ("District Court"), alleging infringement of various claims of U.S. Patent Nos. 8, 689, 517 ("the '517 patent"), 9, 068, 339 ("the '339 patent"), and 8, 707, 655 ("the '655 patent") (collectively, the "Patents-in-Suit"). Appellees filed, inter alia, a joint motion for summary judgment, arguing the various claims were invalid based on a determination that D Three could not claim priority from U.S. Patent Application No. 61/150, 301 ("the 2009 Application"), and the District Court granted Appellees' Motion. See D Three Enters., LLC v. Rillito River Solar LLC, Nos. 15-cv-01148-CBS, 15-cv-01151-CBS, 2017 WL 1023389, at *1, *14 (D. Colo. Mar. 15, 2017); J.A. 31-34 (Final Judgments), 2212-48 (2009 Application).[1]

         D Three appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (2012). We affirm.

         Background

         The Patents-in-Suit are directed to roof mount sealing assemblies, which allow users to mount objects on a roof and seal "the mounting location . . . against water." '517 patent, Abstract; '655 patent, Abstract; see '339 patent, Abstract. For example, the '517 patent claims, inter alia, "[a] roof standoff device for use in mounting an object to a roof" comprising "a base bracket, " "a flashing, "[2] "a core body, " and "a second threaded attachment element." '517 patent col. 10 ll. 27-29, 33, 43, 45 (claim 1). It is undisputed that: SunModo's allegedly infringing products were available to the public in 2010; EcoFasten's allegedly infringing product was available to the public in June 2009, [3] see D Three, 2017 WL 1023389, at *13 & n.16; and the U.S. Patent and Trademark Office issued the Patents-in-Suit in 2014 and 2015. To successfully assert the Patents-in-Suit against the allegedly infringing products, D Three was required to claim priority from the 2009 Application's effective filing date, February 5, 2009. See id. at *3, *13; J.A. 2212.

         On summary judgment, the District Court determined that the Asserted Claims could not claim priority from the 2009 Application because they were broader than the invention disclosed in the 2009 Application, such that they did not meet the written description requirement pursuant to 35 U.S.C. § 112(a) (2012).[4] See D Three, 2017 WL 1023389, at *5, *9-10, *12. Specifically, the District Court divided the Asserted Claims into two categories-- claims that recited a washer and claims that did not--and asked whether "the parent applications disclose roof mount assemblies that (a) do not have a soft washer but also do not limit the type of attachment bracket, and (b) have a soft washer but do not limit its location." Id. at *7. The District Court held that the 2009 Application's only disclosure of a washerless assembly "requir[ed a] W[-]pronged attachment bracket 1700, " but the Asserted Claims disclosed broader configurations of washerless assemblies. Id. at *10; see J.A. 2225 (discussing the washerless assembly in the 2009 Application), 2246 (Figure 41). The District Court also held that the 2009 Application's assemblies with washers only disclosed washers situated "above the flashing, " but the Asserted Claims covered assemblies with washers below the flashing. D Three, 2017 WL 1023389, at *11, *12. D Three did "not dispute that without the benefit of the 2009 [A]pplication's filing date . . . the [P]atents[-]in[-S]uit would be invalid due to intervening prior art, " i.e., Sun-Modo's allegedly infringing products and EcoFasten's QuikFoot Roof Mount System. Id. at *13. Accordingly, the District Court invalidated all but one of the Asserted Claims as anticipated based on D Three's stipulation, and found the remaining claim (claim 6 of the '655 patent) asserted against the purportedly-withdrawn EcoFasten's Tile Flashing System anticipated based on other prior art that post-dated the 2009 Application. Id.; J.A. 2772-811, 2813-44.[5]

         Discussion

         D Three argues the District Court erred in granting summary judgment because a genuine issue of material fact exists as to whether the 2009 Application adequately discloses the Asserted Claims of the Patents-in-Suit. See Appellant's Br. 21-34. Specifically, D Three avers that the 2009 Application adequately discloses (1) washerless assemblies with "various attachment brackets, " id. at 27, such that there is a genuine issue as to whether a person having ordinary skill in the art ("PHOSITA") would understand the 2009 Application to have disclosed different types of washerless assemblies, and (2) assemblies with washers below the flashing, id. at 32-34.[6] After articulating the applicable standards of review and legal standard, we address each issue in turn.

         I. Standards of Review

         In reviewing the grant of motions for summary judgment, we apply the law of the regional circuit, see AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc., 759 F.3d 1285, 1295 (Fed. Cir. 2014), here, the Tenth Circuit. The Tenth Circuit reviews a grant of summary judgment de novo. See Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Birch, 812 F.3d at 1251. At summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006).

         For issues unique to patent law, such as determination of priority date, we apply Federal Circuit law. See AbbVie, 759 F.3d at 1295; see, e.g., Go Med. Indus. Pty., Ltd. v. Inmed Corp., 471 F.3d 1264, 1270-72 (Fed. Cir. 2006) (applying Federal Circuit precedent to claim of priority date). "Compliance with the written description requirement [of 35 U.S.C. ยง 112(a)] is a question of fact but is amenable to summary judgment in cases where no reasonable fact finder could ...


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