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Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp.

United States Court of Appeals, Federal Circuit

August 4, 2016

MULTILAYER STRETCH CLING FILM HOLDINGS, INC., Plaintiff-Appellant
v.
BERRY PLASTICS CORPORATION, Defendant-Cross-Appellant

         Appeals from the United States District Court for the Western District of Tennessee in No. 2:12-cv-02108-WGY-cgc, Judge William G. Young (by designation).

          Melissa Hunter Smith, Stites & Harbison, PLLC, Nashville, TN, argued for plaintiff-appellant. Also represented by JOEL T. Beres, Louisville, KY.

          MARK A. HAGEDORN, Barnes & Thornburg LLP, Chicago, IL, argued for defendant-cross-appellant. Also represented by ELIZABETH A. PETERS, JONATHAN Paul Froemel.

          Before Dyk, Plager, and TARANTO, Circuit Judges.

          DYK, CIRCUIT JUDGE.

         Multilayer Stretch Cling Film Holdings, Inc. ("Multilayer") brought suit against Berry Plastics Corp. ("Berry"), alleging infringement of at least claim 1 of U.S. Patent No. 6, 265, 055 ("the '055 patent"), which relates to multilayered plastic cling wrap films. The district court construed the claims of the '055 patent as not covering (i.e., closed to) blends of the four resins expressly recited by those claims or unlisted resins, instead requiring that each of five inner layers within the film be composed of only one of the listed resins. Multilayer Stretch Cling Film Holdings, Inc. v. Inteplast Grp. Ltd. (''Multilayer v. Inteplasf''), No. 2:12-cv-2107, 2013 WL 5972195, at *27 (W.D. Tenn. Nov. 8, 2013) (claim construction order). The court subsequently granted Berry's motion for summary judgment of non-infringement based on its claim construction. Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp. (''Multilayer v. Berry"), 63 F.Supp.3d 786, 795 (W.D. Tenn. 2014). The district court also invalidated claim 10 of the '055 patent under 35 U.S.C. § 112(d). Multilayer v. Inteplast, 2013 WL 5972195, at *39-40. The district court denied Berry's request for sanctions against Multilayer under Rule 11 of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.").

         We hold that the district court erred in one aspect of its claim construction, and we reverse in part its construction of claims 1 and 28. We vacate the court's summary judgment of non-infringement, which was predicated on this aspect of its claim construction, and remand for further proceedings consistent with this opinion. We affirm the district court's conclusion that claim 10 of the '055 patent is invalid and the court's decision not to impose sanctions against Multilayer under Rule 11.

         Background

         Multilayer's '055 patent claims multilayered thermoplastic stretch wrap films. In the words of the patent, "[t]he present invention relates to multi-layer stretch cling films having at least seven individual layers in the film composition offering acceptable cling performance, good balance of strength and good elongation properties." '055 patent col. 111. 5-8. Such stretch films cling to themselves and can be used to securely wrap boxes, furniture, and other items. The plastic films of the '055 patent are distinguished by their structure: the films contain two outer layers and at least five inner layers, each of which is compositionally distinct from its immediate neighbors. According to the patent, the outer layers contribute "moderate to high controlled cling, " and the inner layers "assist in producing mechanical strength and stretchability." Id. col. 111. 55-58.

         The '055 patent underwent three rounds of ex parte reexamination by the United States Patent & Trademark Office ("PTO"), during which its claims were amended. Claim 1 is the broadest claim; as amended, it recites,

1. A multi-layer, thermoplastic stretch wrap film containing seven separately identifiable polymeric layers, comprising:
(a) two identifiable outer layers, at least one of which having a cling performance of at least 100 grams/inch, said outer layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, and ultra low density polyethylene resins, said resins being homopolymers, copolymers, or terpolymers, of ethylene and alpha-olefins; and
(b) five identifiable inner layers, with each layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, ultra low density polyethylene, and me-tallocene-catalyzed linear low density polyethylene resins; said resins are homopolymers, copolymers, or terpolymers, of ethylene and C3 to C20 alpha-olefins; wherein each of said two outer layers and each of said five inner layers have different compositional properties when compared to a neighboring layer.

U.S. 6, 265, 055 C2 col. 11. 43-col. 2 1. 3 (as corrected by the Certificate of Correction of July 14, 2009).

         Most of the language of claim 1 describes the multiple layers of the film and the various types of polymeric "resins"-plastics prepared by polymerization of one or more olefin compounds-that are suitable for use in preparing those layers. Claim 1 describes outer layers that contain linear low density polyethylene ("LLDPE"), very low density polyethylene ("VLDPE"), or ultra low density polyethylene ("ULDPE") resins and inner layers that contain these three resins or a fourth resin, metallo-cene-catalyzed linear low density polyethylene ("mLLDPE").

         Claim 28 is the only other independent claim of the '055 patent. Like claim 1, claim 28 recites a plastic film that contains at least seven layers, but claim 28 further specifies that at least one of the inner layers must comprise an mLLDPE resin:

28. A multi-layer, thermoplastic stretch wrap film containing seven polymeric layers, comprising:
(a)two outer layers, at least one of which having a cling performance of at least 100 grams/inch, said outer layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, and ultra low density polyethylene resins, said resins being homopolymers, copolymers, or terpolymers, of ethylene and alpha-olefins; and
(b) five inner layers, with each layer being selected from the group consisting of linear low density polyethylene, very low density polyethylene, ultra low density polyethylene, and metallocene-catalyzed linear low density polyethylene resins; said resins being homopolymers, copolymers, or terpolymers, of ethylene and C3 to C20 alpha-olefins, wherein at least one of said inner layers comprises a metallocene catalyzed linear low density polyethylene resin with a melt index of 0.5 to 3 dg/min and a melt index ratio of 16 to 80; and wherein each of said two outer layers and each of said five inner layers have different compositional properties when compared to a neighboring layer.

U.S. 6, 265, 055 C2 col. 2 11. 4-27.

         In 2012, Multilayer sued Berry in the U.S. District Court for the Western District of Tennessee for infringement of the '055 patent. Multilayer's complaint accused various plastic stretch films manufactured by Berry of infringing at least claim 1. The district court issued its claim construction order on November 8, 2013. Multilayer v. Inteplast, 2013 WL 5972195. While the court formally construed thirteen claim terms, only three are relevant to this appeal. The first relevant claim term is a part of element (b) of claims 1 and 28, which the court construed as follows:

Disputed part of element (b) of claims 1 and 28:

District court’s construction:

five [identifiable][1] inner layers, with each layer being selected from the group consisting of linear low density polyethylene [(LLDPE)], very low density polyethylene [(VLDPE)], ultra low density polyethylene [(ULDPE)], and metallocene-catalyzed linear low density polyethylene [(mLLDPE)] resins

each of five identifiable inner layers must contain only one class of the following resins, and no other resin(s): linear low density polyethylene [(LLDPE)] resins, very low density polyethylene [(VLDPE)] resins, ultra low density polyethylene [(ULDPE)] resins, or metallocenecatalyzed linear low density polyethylene [(mLLDPE)] resins

Multilayer v. Berry, 63 F.Supp.3d at 790. Notably, the court's construction of element (b) required that each inner layer "must contain only one class of [the listed] resins, and no other resin(s), " thereby excluding blends of more than one type of resin and all unlisted resins. Id. at 793.

         The second relevant claim term is "linear low density polyethylene" (LLDPE), which appears in claims 1 and 28. The court construed "linear low density polyethylene" to mean "a class of copolymers of ethylene and alpha-olefins, which are characterized by relatively straight polymer chains with short chain branching and little or no long chain branching." Id. at 791 (emphasis omitted). The court found that this relatively broad construction of LLDPE encompasses the other types of resin recited in element (b), namely, very low density polyethylene (VLDPE), ultra low density polyethylene (ULDPE), and metallocene-catalyzed linear low density polyethylene (mLLDPE). Id. at 794. However, the court held that when a particular resin qualifies as an mLLDPE, mixture of that resin with non-metallocene-catalyzed LLDPE creates a blend. "The fact that a resin can be described as both an mLLDPE resin and also as a broader LLDPE resin does not mean that the combination, in an inner layer of a stretch film, of an mLLDPE resin and a LLDPE resin catalyzed using an agent other than metallocene does not constitute a prohibited blend." Id.

         The third relevant claim term is "low density polyethylene homopolymers" ("LDPE"), a resin not listed in element (b). The district court construed this term to mean "a class of polymer formed entirely of ethylene monomers, the polymer chains being characterized by a branched polymer backbone consisting of short-chain branches and long-chain branches." Multilayer v. In-teplast, 2013 WL 5972195, at *40. The '055 patent itself differentiates "low density polyethylene (LDPE)" from "linear low density polyethylene (LLDPE)." '055 patent col. 111. 60-61 (emphasis added). The court held that "a distinction between LLDPE and LDPE is necessary, " given that "[t]he patent itself uses the terms LLDPE and LDPE separately." Multilayer v. Inteplast, 2013 WL 5972195, at *29.

         In its claim construction order, the district court held that dependent claim 10 is invalid under 35 U.S.C. § 112(d). Id. at *39-40. Claim 10 depends from claim 1 and further requires that "at least one said inner layer comprises low density polyethylene homopolymers." '055 patent col. 10 11. 14-15. The court found that, because LDPE is not listed in claim 1 and is chemically distinct from the four resins that are recited, "Claim 10 attempts to improperly broaden the scope of the closed Markush Group in element (b) of Claim 1." Multilayer v. Inteplast, 2013 WL 5972195, at *39.

         Thereafter, on March 14, 2014, Berry moved for summary judgment of non-infringement. Multilayer opposed the motion, arguing that summary judgment was premature because claim construction and discovery had not been completed. The district court granted Berry summary judgment of non-infringement on November 7, 2014. Multilayer v. Berry, 63 F.Supp.3d at 793. The district court concluded that the case was ripe for summary judgment, as "[a]n analysis of the record does not evidence any insufficiency in discovery undertaken" and "all terms relevant to the instant motion have been construed." Id. at 792.

         The parties had agreed that "at least one of the inner layers of the Accused Films contains blends of resins from the classes of mLLDPE, ULDPE, and LLDPE-all classes of resins separately specified in claims 1 and 28." Id. at 795. The district court consequently held that, as a matter of law, the accused Berry films could not infringe claims 1 and 28 because those claims had been construed as closed to blends of listed resins within the inner layers of the film. "[I]t is apparent that the permissibility of blends of resins within a film's inner layer was directly considered and rejected during claim construction." Id. at 794. "At this juncture, to permit blends would impermissibly require the Court to ignore the specific limitations of the '055 Patent . . . ." Id. (internal quotation marks and citation omitted).

         On December 5, 2014, Berry moved for sanctions against Multilayer under Fed.R.Civ.P. 11, arguing that Multilayer's infringement case relied on frivolous claim constructions and that Multilayer improperly maintained its infringement suit after the district court issued its claim construction order. The district court denied Berry's motion for sanctions on January 28, 2015, in a one-page order. Multilayer v. Berry, No. 2:12-cv-02108, ECF No. 162.

         Multilayer appeals the judgment of non-infringement and the invalidation of claim 10, arguing that the district court erred in its claim constructions. Berry cross-appeals, requesting reversal of the district court's denial of sanctions under ...


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