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Plastic Omnium Advanced Innovation & Research v. Donghee America, Inc.

Equivalence Argument Fails for Failure to Prove Insubstantiality of Differences

Plastic Omnium Advanced Innovation & Research v. Donghee America, Inc., __ F.3d __, 2019 WL ___ (Fed. Cir. Nov. 21, 2019) (Newman, Clevenger (dissenting), REYNA) (D. Del.: Stark) (2 of 5 stars)

Fed Cir affirms summary judgment of noninfringement. Plastic Omnium’s patents relate to manufacturing plastic fuel tanks formed by blow molding. The opinion discusses how the patents required extrusion of a plastic tube (a “parison”) cut into sheets at or after the point of extrusion from the “die.” The district court had held, and Plastic Omnium did not dispute, that under the patent, “the splitting of the molten plastic must not occur inside any of the extrusion head/die equipment.” Op. at 8. Because in Donghee’s system plastic was “split and formed [into sheets] within the die,” there was no literal infringement. There was also no infringement by equivalents. There was no dispute that Donghee’s system had advantages, and Plastic Omnium had not presented evidence as to why these advantages amounted to insubstantial differences.

Dissent: Judge Clevenger criticizes the majority for not taking up Plastic Omnium’s argument that Donghee’s system had another “die” (which Donghee’s engineering documents called a “coextrusion die tool), separate from the “die” the majority analyzed, that might practice a key limitation. “[J]ust because Donghee calls its cutting tool a ‘die’ does not mean it is the relevant die for purposes of the infringement analysis.” Op. at 6. Judge Clevenger would have held that Plastic Omnium had raised a material fact question as to whether Donghee’s accused system had more than one “die,” sufficient to avoid summary judgment.

KEYWORDS: INFRINGEMENT (NO); CLAIM CONSTRUCTION; SUMMARY JUDGMENT (YES)