United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
CHARLES R. SIMPSON, III, Senior District Judge.
This matter is before the court on motion of the defendant, Bear Onsite, LLC, ("Bear") for summary judgment as to Count I of the Amended Complaint which alleges that Bear's ML3-916 effluent filter ("ML3 filter") and BO-VRS Vertical Reed Switch alarm ("vertical reed switch" and "alarm" or collectively "VRS/alarm") infringe plaintiff Polylok, Inc.'s U.S. Patent No. 6, 129, 837 ("the 837 patent") entitled "Waste Water Treatment Filter Including Waste Water Level Control Alert Device." DN 67, p. 5, ¶¶ 25, 26, 28.
I. Factual Background
The Amended Complaint alleges the following facts:
Almost thirty years ago, Polylock entered the business of precast, drainage and waste water products, including waste water filters and water level control devices. On October 10, 2000, the United States Patent and Trademark Office ("USPTO") issued the 837 patent. On April 17, 2006, through an assignment, the Peter W. Gavin Spray Trust became owner of all right, title and interest in and to the 837 patent.
Through an asset purchase agreement, Polylok purchased the assets of Bluegrass Environmental Septic Technology, LLC ("BEST"), a high-quality effluent septic filter business. In connection with the purchase, the members of BEST agreed not to compete in the manufacture or sale of effluent septic filters for a period of five years following the sale of the company to Polylok.
Additionally, Michael Jay Hornback, president of BEST and Promold & Tool, LLC, entered into a consulting agreement in which Promold agreed to assist and consult with Polylok concerning the effluent septic filer being purchased from BEST, and agreed not to compete in the effluent septic filter market with Polylok. Despite Hornback's agreement not to compete, Hornback's companies continue to manufacture effluent septic filters for Bear.
Poylok filed suit against Bear, Hornback, Promold and Premier on the foregoing allegations, and alleged patent infringement by Bear (Count I), inducement of and contributing to patent infringement by Promold and Premier (Count II), breach of contract by Hornback (Count III), unjust enrichment by Hornback, Promold and Premier (Count IV), and common law unfair competition by Hornback, Promold and Premier (Count V).
Bear seeks summary judgment as to Count I for patent infringement on the ground that Bear's products do not infringe Claim 1 of the 837 patent because:
(1) Bear's ML3 filter does not include a vertical reed switch and alarm in an "unfiltered waste water side" of the filter device as required by Claim 1 of the 837 patent; and
(2) The ML3 filter does not "combin[e] a filter device with a high level alert device" as required by Claim 1 of the 837 patent.
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 151-60, 90 S.Ct. 1598, 16 L.Ed.2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the nonmoving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at ...