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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN Civil Action No. 11-cv-118 Judge Rudolph T. Randa Magistrate Judge William Callahan

3 NORDOCK, INC., 4 5 6 7 8 9 10 11 Plaintiff, v. SYSTEMS, INC., Defendant. OPPOSITION TO NORDOCK, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant Systems, Inc. (Systems), by and through undersigned counsel, hereby

12 opposes Plaintiff Nordock, Inc.'s (Nordock's) motion for summary judgment. 13 14 I. INTRODUCTION Nordock has moved for partial summary judgment of essentially all of Systems'

15 affirmative defenses. In particular, Nordock has asked this Court for a ruling that U.S. 16 Design Patent D579,754 (the '754 Patent) is not invalid as primarily functional; is valid 17 under 35 U.S.C. 102,103, and 112; is not unenforceable under the doctrines of laches, 18 estoppel, and unclean hands. All of Nordock's requested relief should be denied. Systems 19 has also moved for summary judgment of invalidity on various grounds. (Dkt 65). 20 21 II. RESPONSES TO NORDOCK ARGUMENTS

Nordock's Motion for Partial Summary Judgment is not well taken for several

22 reasons. The evidence overwhelmingly establishes that the '745 Patent is invalid for 23 several reasons. In addition, to the extent that there are any disputed issues, they are all 24 issues of law for the Court to decide. Accordingly, Nordock's motion does not present any 25 material issues that should go to the jury. Rather, this Court may properly dispose of all 26 the disputed issues in this matter based on the overwhelming weight of the evidence. 27
Opposition to Nordock Summary Judgment Civil Action No. 11-cv-118
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ALL The Evidence Leads To One Inescapable Conclusion: The '745 Patent Is Invalid As Primarily Functional And Obvious In View Of The Prior Art Nordock is correct that there is no genuine issue regarding the validity of the '745

Patentthe '745 Patent is undeniably invalid for a number of reasons. The figures of the '745 Patent show nothing except the necessary arrangement of functional components. There is absolutely no evidence to support a conclusion that the '745 Patent is anything but primarily functional. In addition, to the extent that Nordock seeks to abstract away all the functional components of the '745 Patent, then it is invalid as anticipated or obvious in view of the prior art references. Nordock's motion should be denied in all respects. 1. Ornamentality

A design patent claim protects only ornamental features. [W]hen the design also contains ornamental aspects, it is entitled to a design patent whose scope is limited to those aspects alone and does not extend to any functional elements of the claimed article. Richardson v. Stanley Works, Inc., 597 F.3d 1288 (Fed. Cir. 2010). Functional features cannot be protected with a design patent. In determining whether a design is primarily functional, the purposes of the particular elements of the design necessarily must be considered. Id. At 240. If the patented design is primarily functional rather than ornamental, the patent is invalid." PHG Technologies v. St. John Companies, Inc., 469 F.3d 1361, 1366 (Fed. Cir. 2006); Power Controls Corp. v. Hybrinetics, Inc., 806 F.2d 234, 238 (Fed. Cir. 1986). As set forth here, the '745 Patent is invalid as primarily functional, and Nordock has presented no evidence to the contrary. a. All The Evidence Points to the Fact That The '754 Patent Is Primarily Functional

All the evidence of record leads to the inescapable conclusion that the '745 Patent

24 is invalid as primarily functional. As set forth more fully in Systems' own Motion for 25 Summary Judgment (Dkt 65), the '754 Patent is demonstrably invalid at least because 26 there is a complete absence of any evidence of ornamental features. Evidence of 27 functionality is presented in greater detail in Systems' own motion, but briefly re-stated
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1 here for simplicity: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Opposition to Nordock Summary Judgment Civil Action No. 11-cv-118
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(i)

The Parent Application to the '754 Patent Explicitly Concedes Ornamentality

The 754 Patent issued from originally-filed utility patent application number 10/328,279 (the 279 Application or the '409 Patent). Accordingly, statements made in the '279 Application apply to the claimed subject mater of the '754 Patent. In the '279 Application, Nordock represents that with conventional dock levelers [t]he connection [of the lip plate to the deck frame] is a critical part of the leveler as it must withstand concentrated stresses as the fork lift and the load it is carrying traverse from the building to the trailer, or visa versa. 409 Patent, at col. 2, lines 51-56 (emphasis added). More specifically, Nordock represented that a [prior art dock leveler] design uses lip plate lugs to lessen these stresses. In lieu of a header plate, cooperating lugs are also welded to the support beams and deck plate. A problem with this design is that the unsupported front edge of the deck plate is more easily bent and dished between the support beams. 409 Patent, at col. 2, lines 60-65 (emphasis added). Nordock purported to overcome those problems in the prior art by providing a durable combined lip lug and header plate hinge construction. 409 Patent, at col. 3, lines 15-16 (emphasis added). Nordock went on to state: A still further advantage of the dock leveler is its solid and durable attachment of the lip to the deck and deck frame. A header plate is used to support the front edge of the deck plate across its full width. This header plate is combined with a lip plate lug type hinges to reduce the concentrated stresses on the tubular hinge to provide a longer structural life for the dock leveler. 409 Patent at col. 4, lines 26-32 (emphasis added).

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(ii)

Prosecution History Bars The Claim Of Ornamentality

Nordock is estopped from relying on the lug hinge shown in the drawings of the 754 Patent as a patentable feature. During prosecution of divisional application number 11/179,941 (the parent application to the '745 Patent), Nordock attempted to seek utility patent protection on precisely its lug hinge and header plate design. See Whitaker Declaration, Exhibit A at 4 (Dkt 66). More specifically, in the 941 Application, Nordock presented to the Patent Office a set of utility patent claims that sought to protect a dock leveler comprising . . . a header plate . . . a set of header lugs . . . [and] a set of lip lugs. See Whitaker Declaration, Exhibit A at 4 (Dkt 66). The Patent Office refused to grant Nordock utility patent protection on those elements and cited substantial prior art in opposition. Id. In view of the Patent Office's rejection, Nordock abandoned those claims, thus forever dedicating the lug hinge and header plate design to the public. See Johnson & Johnston Associates, Inc. v. R.E. Service Co., 285 F.3d 1046 (Fed. Cir. 2002)(failure to claim disclosed subject matter dedicates it to the public). Accordingly, Nordock is estopped from trying to recapture protection over those elements by improperly extending design patent protection far beyond its intention. (iii) Nordock's Own Advertising Admits Functionality

Touting the specific utility of design features in advertising is one of the earmarks of functionality. See Berry Sterling Corp. v. Prescor Plastics, Inc., 122 F.3d 1452, 1456 (Fed. Cir. 1997). As set forth thoroughly in the Brookman Report, Nordock advertises that its "[e]xclusive lip lug and header plate design ensures maximum strength and durability." Brookman Report, Exhibit B at pages 9-10 (Dkt 67). Also, on its Web site, Nordock advertises that the lug hinge design is self cleaning, does not allow debris to collect in this critical area, and provides the strongest front hinge and deck support. Brookman Report, Exhibit B at page 10 (Dkt 67).

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(iv)

Witnesses All Testify That The Features Are Functional

When asked at his deposition whether there were any ornamental features for the product shown in the 745 Patent, Mr. Gerald Palmersheim, chief engineer for Systems, testified I dont see any ornamental features. When asked if he saw any functional elements of the design in the 745 Patent, Mr. Palmersheim testified: A: The lip plate, the lugs that attach to the lip, the pin, the lugs that attach to the dock leveler platform. I see all those as -- and deck plate. I see all those as functional. Q: And does the arrangement or configuration of those components, could that be ornamental? A: I see that as functional as well. Palmersheim Deposition, Exhibit D. Ed McGuire, Systems President testified at his deposition that Systems manufactured dock levelers with header plates because: Systems has always manufactured a dock leveler I should say that I know of since 1986 that has had a front header. We know how to manufacture a dock leveler with a front header. McGuire Deposition, Exhibit C. When asked why manufacturing a dock leveler without a header would be

20 difficult, Mr. McGuire testified: 21 22 23 24 25 26 27 It's a whole different way to put the product together. You know, again, we take this front header and we weld the joists to the front header. It eliminates having tear. If you don't weld the joists to the front header, you're going to experience tear of the joist from the front header, and you're going to have failure, major failure. McGuire Deposition, Exhibit C. Accordingly, all those actually involved with the design and manufacturing of the

Opposition to Nordock Summary Judgment Civil Action No. 11-cv-118

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1 Systems accused products consider the lug hinge and header plate design, individually 2 and collectively, to be purely functional elements driven by performance, not 3 ornamentation. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (v) Even Nordock's own expert admits that every single feature shown in the figures of the '745 Patent is functional.

Nordock hired Professor Steven C. Visser, an Industrial Design professor at Purdue University, to opine on the '745 Patent. Even Nordock's own expert made the following statements: The general configuration of a dock leveler with a hinged articulated lip is functional. The width of the dock leveler is a functional requirement they are dictated by the industry. It is my understanding that the tapering [of the width] is a functional request from the customer not an ornamental choice. See Excerpts of Visser Report, Exhibit A, pages 2-4. Despite admitting that every individual feature of the Nordock design is functional, and that the general configuration of a dock leveler with a hinged articulated lip is functional, Prof. Visser still concluded that the overall design of the '754 patent is ornamental. Oddly enough, but not surprisingly, Prof. Visser provided absolutely no corroborating analysis or factual foundation for that conclusion. b. The Availability Functionality of Alternatives Does Not Eliminate

Conspicuously absent from Nordock's motion is even an attempt to identify even one ornamental feature of the '745 Patent. Rather than describe anything ornamental about the '745 Patent, Nordock instead relies completely on the position that the availability of purported alternative designs is alone sufficient to sustain ornamentality. Nordock Motion at pages 11-16 (Dkt 60). Nordock greatly misstates the law. Although one factor to consider in the functionality analysis is the availability of alternative designs, the Federal Circuit has cautioned that a full inquiry with respect to alleged alternative designs includes a determination as to whether the alleged "alternative

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1 designs would adversely affect the utility of the specified article," such that they are not 2 truly "alternatives" within the meaning of the law. PHG Technologies v. St. John 3 Companies, Inc., 469 F.3d 1361, 1367 (Fed. Cir. 2006)(citing Rosco, Inc. v. Mirror Lite 4 Co., 304 F.3d 1373, 1378 (Fed. Cir. 2002)). An element is functional if it is essential to 5 the use or purpose of the article or if it affects the cost or quality of the article. Amini 6 Innovation Corp. v. Anthony California, Inc., 439 F.3d 1365, 1371 (Fed. Cir. 2006) 7 (emphasis added). 8 At his deposition, Ed McGuire was questioned about the decisions to use the 9 header plate and the lug hinge rather than other alternatives. Mr. McGuire testified that 10 the lower cost of the using the header plate and the lug hinges make those decisions 11 necessary. More specifically, Mr. McGuire testified: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Q: So manufacturing said make it without a front header and you overruled them? A : Well, one other option was -- 'cause again, our goal was to take cost out of the product. And in the early stages they go -- you know, well we looked at taking out the front header and attaching it to the channel. We could eliminate the cost of that front plate. And I specifically, you know, remember telling them no, we're not -- let's not do that because of the -- number one, the time constraint of getting the product out to market, and number two, how well we manufacture a dock leveler with a front header. To go without the front header would be a whole new learning curve for us in manufacturing. And when asked to testify about why Systems used a lug hinge design, Mr. McGuire testified that: [I]f we go with the front -- with the lug design, what advantages are to doing that. Well, the first one that we talked about was there's less weld. Okay, that takes cost out of it. Theres less of them, so the time will be quicker. In addition, as opined by Mr. Brookman, the substitution of any different
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1 configuration of elements for the dock leveler design would almost certainly result in 2 either a compromise in the functionality of the claimed design or an increase in the cost 3 of the dock leveler. Brookman Report, Exhibit B at pages 22-23. 4 Accordingly, the availability of possible alternative designs to the one depicted in 5 the 754 Patent does not, of itself, render the design ornamental. For example, the use of 6 glue to adhere two objects together rather than tape does not make the glue ornamental. 7 Nor does it make the two objects ornamental. Alternatives that are the product of cost 8 versus functional compromises are not driven by ornamental features. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2. The '754 Patent is Both Obvious and Anticipated

Nordock erroneously argues that Systems is precluded from challenging the validity of the '754 Patent under 35 U.S.C. 102, 103, and 112 because Systems has not identified a primary reference. Nordock Motion (Dkt 60) pages 6-9. Apparently, Nordock's position is that because Systems had not picked a single reference upon which to rely, it may not rely on any references. Not surprisingly, Nordock does not cite any authority for that incredible assertion. a. Systems Disclosed Its Primary Reference During Discovery

Nordock suggests, but does not explicitly state, that Systems failed to produce the prior art references on which it relies for anticipation and obviousness. Nordock points to its Interrogatory 15, which asked Systems to identify a primary reference on which it intended to rely. See Nordock SOF 61 (Dkt 61). Systems objected to that Interrogatory on the grounds the primary reference was vague, and that it improperly suggested Systems must pick a single reference upon which to rely. Id. Systems was never under a requirement to pick only one reference as Nordock cannot limit the number of references Systems may rely upon. Accordingly, Systems identified by Bates numbers the particular references upon which it intended to rely for invalidity and non-obviousness, to wit Bates numbers SI100800-940. Id.

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In its own Motion for Summary Judgment (Dkt 65), Systems principally relied on

2 the Crawford reference as a primary reference, which bears Bates numbers 3 SI200925-928. Those Bates numbers are precisely within the range of references 4 identified by Systems in its interrogatory responses. See Systems Motion, pages 11-12 5 (Dkt 65). It is simply dishonest for Nordock to suggest that Systems did not disclose a 6 prior art reference when, plainly, it did. 7 In addition, a simple visual inspection of the dock leveler in the Crawford 8 reference (see below) reveals that it is nearly identical in all respects to the dock leveler 9 shown in the figures of the '745 Patent; every element shown in the figures of the 754 10 Patent is shown in the illustration of the Crawford dock leveler. Accordingly, the 11 evidence of record plainly demonstrates that the design shown in the figures of the '745 12 Patent was known prior to the effective filing date of the '745 Patent. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Opposition to Nordock Summary Judgment Civil Action No. 11-cv-118
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Nordock cites a ruling out of the Northern District of CaliforniaApple, Inc. v. Samsung Electronics Co. Ltd., Case No. 11-cv-1846 (Aug 2, 2012)for the proposition that Systems should not be able to rely on the references that Systems disclosed.

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1 However, a simple review of that decision reveals that it is inapplicable to this case. First, 2 the Northern District of California local rules govern the disclosures that must 3 accompany invalidity contentions in a patent infringement action. See CAND Local 4 Patent Rules. In that case, Samsung was barred from relying on certain references 5 because they were not disclosed in accordance with the Northern District's explicit rules 6 governing such disclosures. However, the Eastern District of Wisconsin has no such local 7 patent rules, so the Northern District of California's ruling is irrelevant here. In short, 8 Systems has not violated any disclosure rules because the Eastern District of Wisconsin 9 requires patent litigants to rely on ordinary discovery rules, not any set of formal patent 10 rules. Systems has done so. 11 Nordock's allegation that Systems did not disclose to Nordock the references upon 12 which Systems would rely is simply false. Systems did disclose to and produce all the 13 references that Systems intended to rely. Systems was not obligated to identify one single 14 reference upon which it would rely, and thereby severely limit Systems' own invalidity 15 challenge. Systems properly identified, as Nordock requested, all the references from 16 which Systems would select a primary reference. Accordingly, Nordock's motion 17 should be denied. 18 19 20 21 22 23 24 25 26 27
Opposition to Nordock Summary Judgment Civil Action No. 11-cv-118
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b.

The Crawford Reference Is Effective Prior Art

Nordock also suggests that the evidence does not prove the '754 Patent invalid because Systems' expert did not perform an obviousness analysis. See Nordock Motion, pages 10-11 (Dkt 60). However, Systems' expert explicitly declined to render an opinion as to the obviousness of the '754 Patent. See Brookman Opinion at page 26 (Dkt 67). However, the fact that Systems' expert did not perform a complete obviousness analysis in his opinion does not eliminate the prior art references against the '754 Patent. More specifically, as pointed out at length in Systems own Motion for Summary Judgment, the Crawford reference is nearly identical to the images depicted in the '754 Patent and

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1 renders it invalid. See Systems Motion at page 11 (Dkt 65). Thus, the fact that Systems' 2 expert did not analyze the Crawford reference does not change the fact that it is still an 3 effective prior art reference. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Opposition to Nordock Summary Judgment Civil Action No. 11-cv-118
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B.

Laches and Estoppel Nordock first accused Systems of infringing the '745 Patent on May 19, 2009, six

months after the '754 Patent issued. (Dkt 64, page 2). Systems responded on July 13, 2009 that the '754 Patent was invalid for all the reasons as set forth above and in Systems' own motion for summary judgment. (Dkt 64, pages 3-4). In particular, Systems asked Nordock to explain exactly what aspect of the '745 Patent was ornamental. Id. Nordock was essentially silent until filing suit nearly two years later. See Complaint (Dkt 1). These facts fall squarely within the circumstances that the Federal Circuit has numerous times held constitute either laches or estoppel or both. See A. C. Aukerman Co. v. R. L. Chaides Constr. Co ., 960 F.2d 1020, 1033 (Fed. Cir. 1992) (discussing excusable circumstances such as ongoing negotiations with accused infringer, disputes over ownership of patents, war or illness). In fact, this case falls within the Aukerman courts description of the most common estoppel situation, in which the patentee specifically objects to the activities currently asserted as infringement in the suit and then does not follow up for years. A.C. Aukerman Co., 960 F.2d at 1042. Nordock's silence became misleading when the threat of vigorous enforcement of its patent rights was followed by years of silence. See also Aspex Eyewear Inc. v. Clariti Eyewear, Inc., 605 F.3d 1305 (Fed. Cir. 2010) (intentionally misleading silence arises when a patentee threatened immediate suit or vigorous enforcement of its patent rights but then did nothing for an unreasonably long time). Had Nordock been diligent in either substantiating or following up on its earlier threat of infringement, Systems could and would have taken action to address those threats. Instead, Nordock largely ignored this matter while possible damages accrued over

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1 a two-year period. It is improper for Nordock to essentially sit idly by after threatening 2 infringement merely so that it could increase any possible damages award from 3 six-months worth of sales to two and a half years worth. Nordock's claims should be 4 barred under the doctrines of laches and estoppel. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 C. Unclean Hands There is a genuine issue of material fact that Nordock is acting with unclean hands and, accordingly, its '754 Patent should not be enforced against Systems. First, Nordock's Motion apparently incorrectly suggests that Systems' unclean hands claim is actually an inequitable conduct charge. Nordock Motion at page 19 (Dkt 60). However, Systems' claim of unclean hands is based on Nordock's unjustly seeking to secure utility-patent protection with a design patent after Nordock was unable to secure actual utility patent protection. More specifically, Nordock unsuccessfully prosecuted a patent application that sought utility patent claims for Nordock's lug and hinge plate design for several years. See Systems Motion at pages 6-8, Whitaker Decl. Exhibit A. (Dkt 65). After failing to secure actual utility patent protection, Nordock abandoned that effort in lieu of a design patent. Id. However, Nordock is asserting its so-called design patent against industry competitors who have come to rely on Nordock's failure to secure actual utility protection for that design. Accordingly, Nordock's conduct in seeking utility-like patent protection after having already abandoned its earlier efforts at securing such constitutes unclean hands. For at least this reason, Nordock's motion should be denied on these grounds. D. Nordock Has Not Identified A Material Question For The Jury It is well-settled that claim construction is a legal matter that is exclusively within the province of the Court. See Markman v. Westview Instruments, Inc. 517 U.S. 370 (1996). This is no less true when the subject patent is, as here, a design patent. See Richardson v. Stanley Works, Inc., 597 F.3d 1288 (Fed. Cir. 2010). For that reason,

Opposition to Nordock Summary Judgment Civil Action No. 11-cv-118

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1 whether the '754 Patent is invalid as primarily functional is a question that must be 2 answered by the Court, not the jury. 3 Systems has set forth above why there is no genuine issue that the '754 Patent is 4 invalid as primarily functional and, thus, invalid. So even if the Court concludes that 5 Nordock's Motion for Summary Judgment does present material questions (and Systems 6 does not believe that it should), those questions are exclusively for this Court to decide 7 and not the jury. For that reason, Nordock has not presented the Court with any material 8 questions of fact that must go to the jury, and the Court is in position to decide these 9 issues. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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III.

CONCLUSION

Systems, Inc. respectfully requests an order from the Court denying Nordock's Motion for Partial Summary Judgment in all respects. All the evidence demonstrates that the 754 Patent is invalid as primarily functional, and Nordock has not presented the Court with any evidence to the contrary. Dated: October 22, 2012. Respectfully submitted, /s/ Philip P. Mann Philip P. Mann, WSBA No: 28860 MANN LAW GROUP 1218 Third Avenue, Suite 1809 Seattle, Washington 98101 (206) 346-0900 phil@mannlawgroup.com Attorneys for Systems, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on the date indicated below, I electronically filed the

3 foregoing with the Clerk of the Court using the CM/ECF system which will send 4 notification of such filing to the following as indicated below: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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Jeffrey S. Sokol jsokallaw@att.net David A. Affeldt david.affeldt@affeldtlaw.com

[ ] By United States Mail [ ] By Legal Messenger [X] By Electronic CM/ECF [ ] By Overnight Express Mail [ ] By Facsimile [ ] By Email [by agreement of counsel] s/John Whitaker John Whitaker

DATED: October 22, 2012

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EXPERT REPORT ON INFRINGEMENT Professor Steven C. Visser June 20, 2012

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Functionality

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Analysis of Prior Art

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