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NLB Corp. v. PSI Pressure Systems LLC

United States District Court, S.D. Texas, Houston Division

November 14, 2019

NLB CORP., Plaintiff,



         This patent case is before the Court on the Motion to Exclude Patent Infringement Testimony by NLB Witnesses [Doc. # 50] filed by Defendant PSI Pressure Systems LLC d/b/a PSI Pressure Systems Corp. (“PSI”); Defendant's Motion to Exclude Testimony of Plaintiff's Expert William Marscher [Doc. # 51]; Defendant's Motion for Summary Judgment [Doc. # 52]; and Plaintiff NLB Corp. (“NLB”)'s Motion for Summary Judgment and to Strike PSI's Expert Reports [Doc. # 53].[1] Having reviewed the record and the governing legal authorities, the Court grants summary judgment in favor of PSI as to literal infringement by the NX-series products, as to infringement under the doctrine of equivalents by the NX-series products, and as to PSI's permissible repair defense in connection with the NLB-type replacement parts. The Court denies summary judgment on the false advertising claim. The Court denies NLB's Motion for Summary Judgment. The Court denies as moot the motions to exclude expert testimony of NLB corporate witnesses, William Marscher, Dara Childs, and Randy Hinson.

         I. BACKGROUND

         NLB designs, manufactures, and markets high pressure waterjet systems (pumps) and components. NLB's pumps can be used to clean industrial equipment for the oil and gas industry.

         NLB is the owner of United States Patent No. 7, 121, 812 (“the '812 Patent”), entitled High Pressure Pump Having Replaceable Plunger/Valve Cartridges.[2] The pump covered by the '812 Patent is a double guided system. In single guided valve assemblies, only the valve stem is guided. The double guided valve guide, however, guides both the valve stem and the valve head. It includes one section with a reduced diameter that guides the stem portion of the valve and a second section with an increased diameter that guides the valve head. According to NLB, this double guiding feature improves valve performance and increases the life of the valve.

         PSI manufactures and sells competing high pressure waterjet pumps and components. PSI sells NX-series pumps, NX-series cartridges, and NX-series components (the “NX-series products”) that NLB alleges infringe Claim 33 of the '812 Patent. Additionally, PSI manufactures and sells replacement parts for use with NLB's pumps (the “NLB-type” parts). NLB alleges that these NLB-type parts infringe Claim 33 when used by PSI's customers in a pump.

         PSI made a statement on its Facebook page that characterizes its NLB-type parts as made from “superior materials” and “guaranteed to last longer” than “competitors' parts.” See Facebook Posts, Exh. 3 to First Amended Complaint [Doc. # 6]. NLB alleges that these statements constitute false advertising under the Lanham Act.

         NLB filed this lawsuit alleging that the NX-series products infringe Claim 33 of the '812 Patent, either literally or under the doctrine of equivalents. NLB alleges further that PSI's sale of the NLB-type parts induces infringement of Claim 33 in violation of 35 U.S.C. § 271(b) and contributes to infringement in violation of § 271(c). NLB asserts a violation of the Lanham Act based on PSI's statements on its Facebook page.

         Following claim construction based on the parties' agreement, and the completion of discovery, each party moved for summary judgment on the infringement and Lanham Act claims. Each party also moved to exclude certain expert testimony offered by the opposing party. The Motions have been fully briefed and are now ripe for decision.


         Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “When evaluating a motion for summary judgment, the court views the record evidence through the prism of the evidentiary standard of proof that would pertain at a trial on the merits.” SRAM Corp. v. AD-II Engineering, Inc., 465 F.3d 1351, 1357 (Fed. Cir. 2006).

         Summary judgment on infringement is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Ultimatepointer, L.L.C. v. Nintendo Co., Ltd., 816 F.3d 816, 824 (Fed. Cir. 2016). The infringement analysis at the summary judgment stage requires the Court to compare the patent claims as construed with the accused device. See Convolve, Inc. v. Compaq Computer Corp., 812 F.3d 1313, 1317 (Fed. Cir. 2016).


         NLB argues that the NX-series products literally infringe Claim 33 of the '812 Patent. Both NLB and PSI have moved for summary judgment on the literal infringement claim.

         A. Governing Legal Principles

         “[W]hoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States . . . infringes the patent.” 35 U.S.C. § 271(a); Lexmark Int'l, Inc. v. Impression Prods., Inc., 816 F.3d 721, 726 (Fed. Cir. 2016); Int'l Bus. Machines Corp. v. Booking Holdings Inc., 775 Fed.Appx. 674, 677 (Fed. Cir. May 22, 2019). “An infringement analysis has two steps.” Indivior Inc. v. Dr. Reddy's Labs., S.A., 930 F.3d 1325, 1336 (Fed. Cir. 2019) (citing Clare v. Chrysler Grp. LLC, 819 F.3d 1323, 1326 (Fed. Cir. 2016)).

         In the first step, the Court construes the asserted claims. Id. In this case, the parties agreed on the proper construction of the relevant claim terms. See Joint Proposed Claim Construction Chart [Doc. # 27]. The Court agreed with, and adopted, the parties' proposed claim construction. See Order [Doc. # 28].

         In the second step, the Court determines whether the accused product meets each limitation of the claim as construed. See Indivior, 930 F.3d at 1336. The comparison is only to the patent claims as construed, not to any specific embodiment in the patent specification or to the patent holder's commercial embodiment. See Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1347 (Fed. Cir. 2003); Fleet Eng'rs, Inc. v. Mudguard Techs., LLC, 761 Fed.Appx. 989, 992 (Fed. Cir. Feb. 25, 2019). “The patentee has the burden of proving infringement by a preponderance of the evidence.” Eli Lilly & Co. v. Hospira, Inc., 933 F.3d 1320, 1328 (Fed. Cir. 2019).

         B. Analysis

         Claim 33 of the '812 Patent covers a discharge valve assembly for a high pressure fluid jetting system comprising:

a discharge valve guide having a discharge valve guide skirt and a discharge valve guide stem said discharge valve guide skirt is of a greater diameter than said discharge valve guide stem;
a discharge valve having a discharge valve stem and a discharge valve head of a greater diameter than said discharge valve stem, said discharge valve stem axially guided within said discharge valve guide stem and said discharge valve head axially guided ...

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