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Kahr v. Cole

United States District Court, E.D. Wisconsin

November 18, 2016

MICHAEL M. KAHR, Plaintiff,
v.
MICHAEL E. COLE and IRON WORKS CONSTRUCTION CO. LLC, Defendants.

          DECISION AND ORDER

          WILLIAM C. GRIESBACH, CHIEF JUDGE

         Plaintiff Michael Kahr brought this action against Defendants Michael Cole and Iron Works Construction Co. LLC contending that several of Defendants' dock structures infringe various claims of a patent owned by Plaintiff, U.S. Patent No. 8, 348, 554 (the '"554 Patent"). After a three day trial, the jury returned a verdict of infringement under the doctrine of equivalents and awarded Plaintiff a total royalty of $50, 000.00. Defendants' have filed two post-trial motions arguing the Court should set aside the jury's verdict and enter judgment as a matter of law pursuant to Rule 50(a), or alternatively, enter judgment of noninfringement as a matter of law pursuant to the ensnarement defense. (ECF Nos. 95 and 110.) For the reasons below, I find that the asserted scope of equivalency ensnares the prior art. Accordingly, Defendants' motion for judgment of noninfringement as a matter of law based on the ensnarement defense is granted.

         BACKGROUND

         A. The Proceedings

         Plaintiff designs and constructs permanent dock structures primarily for residents in northeastern Wisconsin. His company, Death's Door Marine, Inc., is located in Sister Bay, Wisconsin and competes directly with Iron Works Construction Company, LLC, owned by Cole. On September 6, 2013, Plaintiff sued Defendants accusing them of infringing Claims 1-4, 6, and 7 of his '554 Patent. The central dispute in this case is whether the accused docks infringe under the doctrine of equivalents. After a three day jury trial in August 2016, the jury found that Defendants' dock structures infringed on the asserted claims of the '554 patent, that Defendants willfully infringed, that Iron Works induced Cole to infringe, and that $50, 000.00 would fairly compensate Plaintiff for Defendants' infringement as a reasonable royalty.

         B. The '554 Patent

         The '554 Patent describes the design for interlocking and adjustable concrete dock segments and the methods of manufacturing and constructing such assemblies. Specifically, the patent "relates to a dock structure that has enhanced integrity against the elements, and against the freeze-thaw cycles experienced in northern climates." ('554 Patent, col. 111. 14-17, ECF No. 112-1.)

         Plaintiff claims Defendants infringed Claims 1-4, 6, and 7 of the '554 Patent. Claim 1 reads as follows:

A dock structure for use with vertical pilings, the structure comprising: a first end and a second end, a pair of opposing side walls, a pair of opposing end walls, one end wall disposed at each end of the structure, and a floor; wherein the side walls, the end walls and the floor form a cavity; a pair of cylindrical rims forming a vertically-disposed cylindrical opening in the floor and each opening being functionally adapted to receive a piling through it; and a pair of overlapping members formed at the second end of the structure; wherein each overlapping member has an aperture formed in it for receiving a fastener; and wherein each cylindrical rim and that portion of the side wall adjacent the rim has an aperture formed in it for receiving a fastener.

('554 Patent, ECF No. 112-1.) Claims 2 and 3 are dependent upon Claim 1. Claim 2 states, "The dock structure of claim 1 further comprising at least one reinforcement member extending between the opposing side walls." (Id.) Claim 3 reads, "The dock structure of claim 1 wherein the cavity is filled with concrete." (Id.) Claim 4, an independent claim, states:

A dock assembly for use with a plurality of vertical pilings, the assembly comprising: at least one dock element, the element comprising a pan-like structure having a first end and a second end, a pair of opposing side walls, a pair of opposing end walls, one end wall disposed at each end of the element, and a floor; wherein the side walls, the end walls and the floor form a cavity within the element; a pair of cylindrical rims disposed at the first end of the dock element, each rim forming a vertically-disposed cylindrical opening in the floor of the element and each opening being functionally adapted to receive a piling through it; and a pair of overlapping members formed at the second end of the dock element; wherein each overlapping member has an aperture formed in it for receiving a fastener; and wherein each cylindrical rim and that portion of the side wall adjacent the rim has an aperture formed in it for receiving a fastener.

(Id.) Claims 6 and 7 are dependent upon Claim 4. Claim 6 reads, "The dock assembly of claim 4 further comprising at least one reinforcement member extending between the opposing side walls of the dock element." (Id.) Finally, Claim 7 states, "The dock assembly of claim 4 wherein the cavity of the pan-like structure of each element is filled with concrete." (Id.)

         Claim 1 and Claim 4, originally Claim 5 in Plaintiff's patent application, were initially rejected by an Examiner at the U.S. Patent and Trademark Office under 35 U.S.C. § 103 as being obvious over U.S. Patent 3, 964, 221 (the "Berquist Patent"). Plaintiff amended these claims by including the words "wherein each overlapping member has an aperture formed in it for receiving a fastener; and wherein each cylindrical rim and that portion of the side wall adjacent the rim has an aperture formed in it for receiving a fastener." (ECF No. 112-14.) This language clarified that the use and method of a fastener allowed the height of the dock structure to be adjustable, a feature that was not present in the Berquist invention. After the Examiner received Plaintiffs claim amendments and remarks, he granted the '554 Patent on January 8, 2013.

         C. The Accused Docks

         The primary difference between the '554 Patent docks and the accused docks is the connection mechanism. The '554 Patent describes a dock structure, dock assembly, and dock constructing method for a permanent dock structure that is attached to vertical pilings. The patented structure permits multiple dock segments to be connected to create the desired length and straight, "T-shaped, " or "L-shaped" configurations. ('554 Patent, ECF No. 112-1.) Each dock segments' side and end walls, and a floor form a cavity which is filled with concrete after the structure is assembled. Each dock segment also has two cylindrical openings through which the vertical pilings pass, and each segment overlaps with the next. Each segment's side walls and cylindrical rims contain apertures, or holes. The holes allow a single fastener to both secure a set of dock segments together and fasten the dock assembly to the pilings. (Id.)

         Specifically, each dock segment has a pair of cylindrical rims at the first end through which a piling passes. The second end of an adjacent dock segment overlaps with this section of the first end of the next dock segment. The holes through which the fasteners are intended to pass are in the overlapping members on the side walls adjacent to the cylindrical openings of the second end and the cylindrical openings on the first end. Although the claims do not expressly state, Figure 6 below shows that a pin or bolt fastener is inserted through the hole in the overlapping member of one dock segment through the holes in the sidewall and one side of the cylindrical opening, the piling, and then the other side of the cylindrical opening before the pin is capped.

         (Image Omitted)

         ('554 Patent, fig. 6, ECF No. 112-1.) In short, a single fastener not only holds the dock segments together but also attaches the dock to the piles.

         While the accused docks have many of the features claimed in the '554 patent, they use a different connection mechanism. As depicted in Image 1 below, because the accused docks do not have a hole in the dock segment's side wall, the accused docks cannot use a single fastener to connect the dock segments and attach the dock to the piles. Instead, the accused docks use two connection mechanisms-one fastening the dock segments together and another attaching the dock to the pilings.

         (Image Omitted)

(Tr. Ex. 1035, at ...


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