Cot’n Wash, Inc., et al. v. Henkel Corporation, et al., C.A. Nos. 12-650– SLR; 12-651– SLR, August 26, 2014.
Robinson, J. Defendant Henkel’s motion for summary judgment of invalidity is denied; its motion to exclude expert testimony and opinions is granted in part and denied in part; its motion to strike supplemental expert reports is denied as moot; and its motion for summary judgment of non-infringement is granted in part and denied in part. Defendant Sun’s motion for summary judgment of non-infringement is granted; its motion for summary judgment of invalidity is denied; and its motion to exclude testing is granted.
The disputed technology relates to water-soluble packets containing liquid cleaning concentrates. Defendant Henkle reformulated its product after the litigation began and under the court’s current claim construction these products would not infringe. The parties dispute whether plaintiff has placed this new product at issue although it has requested injunctive relief and conducted discovery of the product. Plaintiff is given the option of providing a covenant not to sue on this product or the court will enter judgment on the current evidence. Summary judgment is denied as to the original product. With respect to dismissing two Henkle entities, an issue of fact remains as to one and plaintiff agrees to dismiss the other. The question of double recovery based on claims of both direct and induced infringement is left for the damages phase. The record shows that Defendant sun’s products are non-infringing, and summary judgment is granted. As for invalidity, the court finds issue of fact as to whether samples were publicly demonstrated and whether they embody the claimed invention. Issues of fact likewise preclude summary judgment as to obviousness. The court excludes the testimony of experts Drs. Kong and Dr. Gering regarding commercial success, industry praise and licensing because no nexus has been shown between these factors and the claimed invention. Dr. Kong’s copying opinions are also excluded because no evidence supporting copying was provided to the court.