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Andersen Manufacturing Inc. v. Wyers Products Group, Inc.

United States District Court, D. Colorado

February 7, 2019

ANDERSEN MANUFACTURING INC., an Idaho corporation, Plaintiff,
v.
WYERS PRODUCTS GROUP, INC., a Colorado corporation, Defendant.

          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

         Plaintiff 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.

         This 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U.S. Magistrate Judge Scott T. Varholak denied the renewed motion without prejudice, essentially reasoning that it was outdated in light of the lapse of time since its filing and the subsequent transfer.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.)

         Before 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.

         I. LEGAL STANDARD

         Summary 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).

         In 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. 1987).

         II. BACKGROUND

         The following is undisputed unless attributed to a party or otherwise noted.

         A. The 412 Patent

         U.S. 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 Figure 7.

         (Image Omitted)

         As will 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.

         B. The 510 Patent

         U.S. 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 itself.

         The 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:

         (Image Omitted)

         With 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):

         (Image Omitted)

         Although 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.

         C. Wyers's “Razor” Adjustable Hitch

         Since 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:

         (Image Omitted)

         (ECF No. 96-32 at 2.)[1] 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.

         Wyers 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.

         III. PRELIMINARY MATTERS

         To 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. 105.)

         Wyers's 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.

         (Emphasis 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.[2] The Court therefore sua sponte strikes that portion of Wyers's reply brief challenging Mr. Meeks's declaration.

         As to 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 ...


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