United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT, DENYING AS MOOT PLAINTIFF'S MOTION FOR LEAVE TO
FILE SURREPLY, AND TERMINATING CASE
William J. Martinez United States District Judge
Andersen Manufacturing, Inc. (“Andersen”), sues
Defendant Wyers Products Group, Inc. (“Wyers”),
for patent infringement. The inventions at issue are an
adjustable-height trailer hitch made from aluminum and the
process for manufacturing that hitch.
case began in January 2016 in the United States District
Court for the District of Idaho, the Hon. B. Lynn Winmill
presiding. The case was transferred to this Court in January
2018. In the midst of all these proceedings, the
patents-in-suit have been subject to reexamination
proceedings in the Patent and Trademark Office. An August
2016 decision from that office invalidated all claims of the
patents-in-suit (see ECF No. 96-17), but that
decision remains non-final and so does not govern here. In
December 2016, Judge Winmill denied Wyers's motion to
stay the lawsuit pending the conclusion of reexamination
proceedings. (ECF No. 55.) Wyers renewed that motion in April
2017 but Judge Winmill did not rule on it before transfer to
this District. Shortly after transfer, U.S. Magistrate Judge
Scott T. Varholak denied the renewed motion without
prejudice, essentially reasoning that it was outdated in
light of the lapse of time since its filing and the
subsequent transfer. (ECF No. 90.) Wyers never filed a new
motion to stay, and this case is set for trial in April 2019.
(ECF No. 111.)
the Court is Wyers's Motion for Summary Judgment (ECF No.
96) and Andersen's Motion for Leave to File Sur-Reply in
Opposition to Motion for Summary Judgment (“Surreply
Motion, ” ECF No. 103). For the reasons explained
below, the Court grants Wyers's Motion for Summary
Judgment and denies the Surreply Motion as moot. This result
also moots Andersen's Motion to Exclude Testimony of Dan
Alan Beabout (ECF No. 112), which was recently filed and is
not yet fully briefed.
judgment is warranted under Federal Rule of Civil Procedure
56 “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 also Andersen v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986). A fact is “material” if,
under the relevant substantive law, it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue
is “genuine” if the evidence is such that it
might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
analyzing a motion for summary judgment, a court must view
the evidence and all reasonable inferences therefrom in the
light most favorable to the nonmoving party. Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving
party, thus favoring the right to a trial. See Houston v.
Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.
following is undisputed unless attributed to a party or
The 412 Patent
Patent No. 7, 156, 412 (“412 Patent”) issued to
Andersen on January 2, 2007, from an application filed on
June 20, 2005, which was itself a continuation of an
application filed on November 27, 2002. See 412
Patent, cover sheet. The field of the invention is towing
hitches, such as for towing a boat or RV behind a truck.
Id. at 1:14- 62. As relevant here, the patent
discloses a “stepped, ” or adjustable, hitch
assembly, which permits the user to attach trailers of
varying heights while keeping the trailer level. In the
following illustrations from the patent, Figure 5 depicts the
“drop bar” component whose upper (horizontal)
segment slides into the towing vehicle's hitch adapter,
and whose other (vertical) segment is a series of graded
steps over which the “sleeve” in Figure 6 can
slide, locking into various heights. The hollow column
disclosed in Figure 6 secures the ball mount-the item that
actually makes contact with the trailer- illustrated in
become clear below, the 412 Patent was not the first to
propose this basic design. The patentable innovation asserted
in the 412 Patent is that the components are made of
aluminum, rather than steel. Id. at 1:42-2:4.
The 510 Patent
Patent No. 7, 222, 510 (“510 Patent”) issued to
Andersen on May 29, 2007, from an application filed on
February 21, 2006, which was itself a continuation of
applications tracing back to the same November 27, 2002
application from which the 412 Patent arose. See 510
Patent, cover sheet. The 412 and 510 Patents share the same
specification, but in terms of the claimed invention, the 510
Patent emphasizes the method for creating aluminum drop bars,
as compared to the 412 Patent's emphasis on the hardware
illustrations relevant to the 510 Patent focus on a
non-adjustable drop bar, i.e., one that
emerges horizontally from the vehicle's hitch adapter,
then slopes downward, then bends again into a lower
horizontal component, to which the ball adapter is attached,
as in the following:
this end product in mind, the patent illustrates how aluminum
may be extruded through a die to form a thick metal sheet
with the appropriate drop bar profile (Figure 1), after which
the sheet can be sliced into multiple proto-drop bars that
are machined into their final form (Figure 2):
these illustrations only show the vaguely S-shaped,
non-adjustable drop bar, the 510 Patent does not limit itself
to manufacturing that shape. It also applies to extrusion of
aluminum drop bars in the upside-down-L shape of the drop bar
emphasized in the 412 Patent. See 510 Patent, fig.
5; id. at 6:12-17.
Wyers's “Razor” Adjustable Hitch
2012, Wyers has offered for sale its “Razor”
adjustable hitch, which is made of aluminum and is remarkably
similar to the device disclosed in the 412 Patent:
No. 96-32 at 2.) As this photograph shows, the only
apparent differences between the Razor and the invention
disclosed in the 412 Patent is that the graded steps face
toward the towing vehicle, and the surface facing away from
the towing vehicle is rounded.
does not deny that it manufactures its Razor hitches through
a process that includes extruding aluminum through a die.
Whether that extrusion results in something covered by the
510 Patent is disputed, and addressed below in Part IV.B.
support some of its factual contentions, Andersen attaches a
declaration from its expert, Scott Meek. (ECF No. 101-2.) In
the middle of its reply brief, Wyers moves to exclude Mr.
Meeks's declaration under Federal Rule of Evidence 702.
(ECF No. 102 at 7-9.) Then, later in its reply brief, Wyers
attaches a declaration from its own expert, Dan Beabout,
supposedly to rebut some of Andersen's claims. (ECF No.
102-5.) Mr. Beabout's declaration contains attachments
(regarding use of aluminum in heavy-load situations) that
Andersen claims were not disclosed during discovery but
should have been. Wyers's reply brief also attaches a
1916 patent that Wyers should have produced during discovery.
(ECF No. 102-4.) These arguments and evidence, among other
things, prompted Andersen's Surreply Motion. (ECF No.
mid-brief motion to exclude Mr. Meeks's declaration
directly violates D.C.COLO.LCivR 7.1(d)'s admonition that
“[a] motion shall not be included in a response or
reply to the original motion. A motion shall be filed as a
separate document.” It also contradicts the
undersigned's more explicit instructions in his Revised
Practice Standard III.B, which reads in relevant part:
All requests for the Court to take any action, make any type
of ruling, or provide any type of relief must be contained in
a separate, written motion. A request of
this nature contained within a brief, notice, status report
or other written filing does not fulfill this Practice
Standard. . . . This requirement does not apply to
objections to summary judgment evidence unless the objecting
party is seeking total or partial exclusion of expert
testimony under Federal Rule of Evidence 702.
in original; cross-reference omitted.) This Practice Standard
explicitly states that a Rule 702 motion is not an exception
to the general requirement of filing a separate
motion. The Court therefore sua sponte
strikes that portion of Wyers's reply brief challenging
Mr. Meeks's declaration.
Mr. Beabout's declaration, his exhibits, and the new
patent attached the reply brief, the Court has not relied on
them in its analysis below, and therefore need not strike
them nor grant Andersen a surreply. Andersen's remaining
arguments, which seek to rebut claims that it misrepresented