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Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories Inc.

United States District Court, D. Oregon

April 12, 2017

COLUMBIA SPORTSWEAR NORTH AMERICA, INC., an Oregon corporation, Plaintiff,
v.
SEIRUS INNOVATIVE ACCESSORIES, INC., a Utah corporation, Defendant.

          David W. Axelrod Scott D. Eads Nicholas F. Aldrich, Jr.Schwabe, Williamson & Wyatt, P.C.Attorneys for Plaintiff

          Jasmine C. Hites Troutman Sanders LLC, Matthew D. Murphey Troutman Sanders LLP Paul E. McGowan Troutman Sanders LLP Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, DISTRICT JUDGE.

         Plaintiff Columbia Sportswear North America, Inc. (“Columbia”), alleges that Defendant Seirus Innovative Accessories, Inc. (“Seirus”), has infringed three of Columbia's patents related to a heat reflective lining used in outdoor sporting gear, U.S. Patent Nos. 8, 424, 119 (the “‘119 Patent”), 8, 453, 270 (the “‘270 Patent”) (collectively “the Utility Patents”), and D657, 093 (the “Design Patent”). The Court previously granted summary judgment that Seirus infringed the Design Patent. See Op. & Order, Aug. 10, 2016, ECF 105. Before the Court are the parties' cross motions for partial summary judgment regarding the Utility Patents. Specifically, Seirus alleges that the Utility Patents are invalid because they have either been anticipated or rendered obvious by prior art references pursuant to 35 U.S.C. §§ 102 and 103. By contrast, Columbia seeks summary judgment that the Utility Patents are not invalid. Also before the Court is Columbia's Daubert motion to exclude the expert testimony of Dr. Ira Block.

         Columbia's Motion for Partial Summary Judgment of No Invalidity is granted in part. Seirus's Motion for Partial Summary Judgment of Invalidity is denied in its entirety. Columbia's Daubert Motion to Exclude the Expert Testimony of Ira Block is also denied.

         BACKGROUND AND PROCEDURAL HISTORY

         Columbia's flagship “Omni-Heat” technology is a heat reflective material that can reflect body heat back toward the user while allowing breathability and moisture wicking. The Design Patent relates to the wavy pattern design of a heat reflective element that Columbia uses on the inside of its garments. The Utility Patents relate to coupling heat-directing elements to the innermost surface of a garment in a discontinuous pattern to allow the garment to breathe while simultaneously reflecting body heat back toward the user. Aldrich Decl. Ex. 1, 14-15; Ex. 2, 14- 15, ECF 115. Columbia uses Omni-Heat technology as a liner in a variety of garments including jackets, shirts, gloves, and more. Seirus also sells outdoor gear, including gloves and glove liners with a breathable, heat reflective material it calls “HeatWave.”

         I.The Disputed Patent Claims

         Columbia asserts that Seirus infringes ‘119 Patent claims 2 and 16, and ‘270 Patent claims 2 and 23. The parties' motions pertain to the specific language of the asserted claims. The full text of the disputed claims and claims integrated by reference are as follows:

         A.119 Patent

1.A heat management material adapted for use with body gear, comprising: a base material having a transfer property that is adapted to allow, impede, and/or restrict passage of a natural element through the base material; one or more heat-directing elements, each coupled to a first side of a base material, the one or more heat-directing elements being positioned to direct heat in a desired direction, wherein a surface area ratio of heat-directing elements to base material is from about 7:3 to about 3:7, and wherein the surface area ratio of heat-directing elements to base material permits the base material to retain partial performance of the transfer property.
2.The heat management material of claim 1, wherein the base material comprises an innermost layer of the body gear having an innermost surface, and wherein the one or more heat-directing elements are positioned on the innermost surface to direct heat towards the body of a body gear user.
15. A method of making a heat management body gear material, comprising: coupling one or more heat-directing elements to a first side of a base material having a transfer functionality that is adapted to allow, impede, and/or restrict passage of a natural element through the base material, the one or more heat-directing elements being positioned to direct heat in a desired direction, wherein coupling the one or more heat-directing elements comprises coupling one or more heat-directing elements of a size and spacing to cover from about 30% to about 70% of the base material; pairing the heat management body gear material with a piece of body gear; providing, with the material, body heat management and base material functionality.
16. The method of claim 15, wherein the base material further provides insulating properties, and wherein the one or more heat-directing elements reflect heat toward a body of a user.

         B.270 Patent

1. A heat management material adapted for use with body gear, comprising: a base material having a transfer property that is adapted to allow, impede, and/or restrict passage of a natural element through the base material; and a discontinuous array of discrete heat-directing elements, each independently coupled to a first side of a base material, the heat directing elements being positioned to direct heat in a desired direction, wherein a surface area ratio of heat-directing elements to base material is from about 7:3 to about 3:7 and wherein the placement and spacing of the heat-directing elements permits the base material to retain partial performance of the transfer property.
2. The heat management material of claim 1, wherein the base material comprises an innermost layer of the body gear having an innermost surface, and wherein the heat-directing elements are positioned on the innermost surface to direct heat towards the body of a body gear user.
23.A heat management material adapted for use with body gear, comprising: a base material having a transfer property that is adapted to allow, impede, and/or restrict passage of a natural element through the base material; and a discontinuous array of heat-directing elements, each coupled to a first side of a base material, the heat directing elements being positioned to direct heat in a desired direction, wherein a surface area ratio of heat-directing elements to base material is from about 7:3 to about 3:7, and wherein the placement and spacing of the heat-directing elements permits the base material to retain partial performance of the transfer property, wherein the base material comprises an innermost layer of the body gear having an innermost surface, and wherein the heat-directing elements are positioned on the innermost surface to direct heat towards the body of a body gear user.

Id.

         II. Prior Art References

         Columbia moves for partial summary judgment that the none of the asserted claims described above in the Utility Patents are invalid over ten prior art references that Seirus has raised. Seirus relies on some, but not all, of the following prior art references to support its claims that the Utility Patents are invalid. The following is a complete list of the prior art references at dispute in the parties' cross motions for partial summary judgment:

1. U.S. Patent No. 1, 630, 573, Heat Retaining Garment (“Rand ‘573”)
2. GB 741, 875, Improvements Relating to the Production of Metallized Fabrics (“Rand ‘875)
3. U.S. Patent Publication no. 2006/0179539, Article of Apparel Utilizing Targeted Venting Zones or Heat Retention Zones That May Be Defined Based on Thermal Profiles (“Harber”)
4. International Patent Publication no. WO 2008/103989, Protective Material Having Guard Plateso Clearly Visible Substrate (“Kim”)
5. U.S. Patent No. 5, 626, 949, Breathable Shell for Outerwear (“Blauer”)
6. U.S. Patent Publication No. 2002/0197924, Water-Vapour-Permeable Composite Material (“Halley”)
7. U.S. Patent Publication No. 2007/0173154, Coated Articles Formed of Microcapsules with Reactive Functional Groups (“Hartmann”)
8. U.S. Patent No. 7, 135, 424, Coated Articles Having Enhanced Reversible Thermal Properties and Exhibiting Improved Flexibility, Softness, Air Permeability, or Water Vapor Transport Properties (“Worley”)
9. GB Application 2, 073, 613, Binder-Coated Textiles (“Fottinger”)
10. GB Application 2, 350, 073, Coated Material (“Vaughn”)

Aldrich Decl. Exs. 19, 20, 4, 8, 9, 10, 17, 21, 11, 18.

         III. Procedural History

         The Court previously granted summary judgment that Seirus's HeatWave fabric infringed the Design Patent. Op. & Order, Aug. 10, 2016. In that Opinion, the Court also constructed claim terms relevant to parties' motions. Id. Seirus moves for summary judgment on “Counts IV and VI of its Counterclaims, its third Affirmative Defense of Invalidity, and against Columbia on Counts II and III of its Complaint.” Seirus Mot. Summ. J. (“Seirus MSJ”) at 1, ECF 110. Columbia moves for summary judgment on Seirus's invalidity counterclaims and affirmative defense of invalidity. Columbia Mot. Summ. J. (“Columbia MSJ”) at 1, ECF 108. The central issues in the parties' cross motions are whether the Utility Patents are invalid as anticipated and/or obvious pursuant to 35 U.S.C. §§ 102(b), 103. Relatedly, Columbia has also moved to exclude the testimony of Seirus's expert Dr. Block. See, Daubert Mot., ECF 113. The Court considers Columbia's Daubert motion in tandem with the parties' cross-motions for partial summary judgment because Dr. Block's testimony is entwined with Seirus's obviousness arguments.

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)). Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present “specific facts” showing a “genuine issue for trial.” Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (quoting Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

         The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. ...


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