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D Three Enterprises, LLC v. SunModo Corp.

District Court Not Strictly Bound by Reasoning in Summary Judgment Motion; May Enter Judgment on Different Reasoning Within Movant’s Overall Issue

D Three Enterprises, LLC v. SunModo Corp., __ F.3d __, 2018 WL 2293299 (Fed. Cir. May 21, 2018) (Reyna, Clevenger, WALLACH) (D. Colo.: Shaffer) (3 of 5 stars)

Fed Cir affirms summary judgment of invalidity for anticipation. D Three’s patents relate to roof mount sealing assemblies. The district court did not err in determining that a priority D Three application did not sufficiently describe D Three’s later claims, as required by post-AIA § 112(a) and § 120. That the district court’s specific reasoning for summary judgment was different from what was in SunModo’s motion was not grounds for reversal. “[SunModo]’s Motion for Summary Judgment provided D Three with notice that [SunModo was] arguing lack of benefit from an earlier filing date, particularly based on the theory that D Three claimed different, broader inventions [from what was in its claimed priority application].” Op. at 11. Because D Three was on notice that it had to “present its entire argument and all its evidence” bearing on written description, there was no prejudice from the district court’s variation in reasoning, as per Rule 56(f) and First American Kickapoo Operations, 412 F.3d 1166 (10th Cir. 2005). See Op. at 10–11.

The district court correctly determined that the pre-reference application, though it disclosed one species of a “washerless assembly,” did not support the claims’ specific recitation of washerless attachment brackets. Per Knowles Electronics, 883 F.3d 1358 (Fed. Cir. 2018), boilerplate language that a PHOSITA would recognize “certain modifications” did not suffice. As to two claims that required washers in a certain position, the district court correctly determined that the prior application did not include the necessary disclosure.

KEYWORDS: SUMMARY JUDGMENT (YES); INVALIDITY (YES); ANTICIPATION (YES); WRITTEN DESCRIPTION (NO); SECTION 120; PRIORITY