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Webasto Thermo & Comfort North America, Inc. v. BesTop, Inc.

United States District Court, E.D. Michigan, Southern Division

July 12, 2019

BESTOP, INC., Defendant/Counter-Plaintiff.

          R. Steven Whalen United States Magistrate Judge



         This action involves Plaintiffs Webasto Thermo & Comfort North America, Inc. and Webasto-Edscha Cabrio USA, Inc.'s (collectively “Webasto”) claim that Defendant Bestop, Inc. (“BesTop”) infringes Webasto's U.S. Patent No. 9, 346, 342 (“the '342 Patent”), entitled “Vehicle Roof and Roof Opening Mechanism.” Webasto claims that BesTop's Accused Product, the Sunrider for Hardtop (“the Sunrider”), infringes Webasto's ‘342 patent as embodied in Webasto's Black Forest ThrowBack top (“ThrowBack”). BesTop responds that Sunrider does not infringe and that the claims of the '342 Patent were disclosed in prior art and are therefore unpatentable and that BesTop created and publicly used the invention claimed in the ‘342 patent before Webasto applied for a patent in March, 2015, thereby invalidating the ‘342 patent. The Court has issued claim construction rulings and the parties have filed and fully briefed summary judgment and Daubert[1] motions. Now before the Court is Webasto's Motion for Summary Judgment of Infringement. The matter was fully briefed and the Court held a hearing on June 6, 2019. For the reasons that follow, the Plaintiffs' motion is GRANTED.

         I. BACKGROUND

         The background facts of this litigation are set forth in multiple prior Orders of this Court and the reader's knowledge of those facts is presumed. Particular facts, as specifically relevant to the issues in this summary judgment motion, will be discussed where appropriate.


         Summary judgment is appropriate where the moving party demonstrates that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a). “A fact is ‘material' for purposes of a motion for summary judgment where proof of that fact ‘would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.'” Dekarske v. Fed. Exp. Corp., 294 F.R.D. 68, 77 (E.D. Mich. 2013) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         “In deciding a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party.” Perry v. Jaguar of Troy, 353 F.3d 510, 513 (6th Cir. 2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). At the same time, the non-movant must produce enough evidence to allow a reasonable jury to find in his or her favor by a preponderance of the evidence, Anderson, 477 U.S. at 252, and “[t]he ‘mere possibility' of a factual dispute does not suffice to create a triable case.” Combs v. Int'l Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). Instead, “the non-moving party must be able to show sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.” Arendale v. City of Memphis, 519 F.3d 587, 601 (6th Cir. 2008) (quoting Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004)). “The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. The plaintiff must present more than a mere scintilla of the evidence. To support his or her position, he or she must present evidence on which the trier of fact could find for the plaintiff.” Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000) (internal quotation marks and citations omitted). That evidence must be capable of presentation in a form that would be admissible at trial. See Alexander v. CareSource, 576 F.3d 551, 558-59 (6th Cir. 2009).

         The non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986) (footnote and internal quotation marks omitted).

         III. ANALYSIS

         “[Federal Circuit] precedent is clear: a patent is infringed if a single claim is infringed.” Grober v. Mako Pdcts., Inc., 686 F.3d 1335, 1344 (Fed. Cir. 2012). See also CollegeNet, Inc. v. ApplyYourself, Inc., 418 F.3d 1225, 1236 (Fed. Cir. 2005) (“[I]nfringement of even a single claim entitles a patentee to damages.”). Here, BesTop does not dispute that the Accused Product, the Sunrider for Hardtop, meets every limitation of Claim 6 of the ‘342 Patent except for the final limitation: “Wherein the tensioning bow in relation to a vertical longitudinal center plane of the roof is on each of its two sides connected to the auxiliary tensioning bow via a coupling rod, the coupling rod being articulated to the auxiliary tensioning bow and to the main tensioning bow via intermediately positioned hinge points.” And within this limitation, the parties are in agreement that the only dispute is over the term “intermediately positioned.” As counsel for BesTop stated at oral argument on Webasto's motion for summary judgment on infringement: “The infringement question before this Court boils down to whether the hinge point on the accused product is intermediately positioned or whether it's somewhere else.” (ECF No. 229, Transcript of 6/26/19 Hearing on Plaintiffs' Motion for Summary Judgment (“Hr'g Tr.”) at 13:3-6.)

         Webasto argues that given the Court's claim construction ruling that this claim term be given its customary and ordinary meaning, Webasto is entitled to a summary judgment finding of infringement because there is no genuine issue of material fact that the hinge points for the coupling rod on the Sunrider are positioned between the end points of the main and auxiliary tensioning bows and are therefore “intermediately positioned.” The essence of BesTop's position is that because the hinge point on the Sunrider is “closer to the end” (but admittedly not on the end points) of the side arm of the tensioning bow rather than in the “middle, ” it is not “intermediately positioned, ” and therefore the final limitation of Claim 6 is not met and there is at a minimum a question of fact whether the Claim is infringed. (6/26/19 Hr'g Tr. 16:15-22.)

         During claim construction, BesTop advocated for the following construction of the disputed term:

A “coupling rod” is required. “Hinge Points” for a “coupling rod” must be disposed in the middle of the side legs of the tensioning bow and in the middle of ...

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