ULTRA-MEK, INC. v. UNITED FURNITURE INDUSTRIES, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ULTRA-MEK, INC., )

)

Plaintiff and )

Counter Defendant, )

)

v. ) 1:18CV281

)

UNITED FURNITURE INDUSTRIES, )

INC., OISEYS INTERNATIONAL, )

INC., MAN WAH HOLDINGS LTD., )

JIANGSU YULONG SMART )

TECHNOLOGY CO., LTD., )

REMACRO MACHINERY )

TECHNOLOGY CO., LTD., )

TAIZHOU CHENGUANG VEHICLE CO., )

LTD., and MAN WAH (USA), INC., )

)

Defendants and )

Counter Claimants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before this court is a Renewed Motion for Partial

Summary Judgment of No Literal Infringement filed by United

Furniture Industries, Inc., Oiseys International, Inc., Man Wah

Holdings Ltd., Jiangsu Yulong Smart Technology Co., Ltd., Remacro

Machinery Technology Co., Ltd., Taizhou Chenguang Vehicle Co.,

Ltd., and Man Wah (USA), Inc. (together, “Defendants”).

(Doc. 237.) This court will grant the motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Ultra-Mek, Inc. is the owner of two patents that

each describe a reclining chair. (First Am. Compl. (Doc. 31)

¶¶ 22–25.) The patents are U.S. Patent Number 8,016,348 (the

“‘348 patent”) and U.S. Patent Number 8,297,693 (the “‘693

patent”). (Ex. A (“‘348 patent”) (Doc. 31-1); Ex. B (“‘693

patent”) (Doc. 31-2).)

Plaintiff sued Defendants, alleging multiple of their

mechanisms (together, “accused mechanisms”) infringed Plaintiff’s

patents. (First Am. Compl. (Doc. 31) ¶¶ 73–88.) The case

proceeded to claim construction, and this court construed

disputed claim terms. (Doc. 124.) This court did not construe the

phrase “opposed first and second ends,” as used in claims 7 and

13 of the ‘348 patent and claim 1 of the ‘693 patent. (See id.)

The case progressed to the summary judgment stage, and this

court denied the parties’ summary judgment motions. (Doc. 174 at

40.)1 However, the summary judgment opinion included language

that was dismissive of Plaintiff’s literal infringement theory

because the allegedly infringing mechanisms do “not have literal

opposed ends in the format envisioned by the patent.” (Id. at

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

25.) Based on this language, Defendants filed a motion in limine

to exclude any trial “testimony asserting that claims 7, 13, and

14 of the ’348 patent and claims 1, 2, and 4-7 of the ’693 patent

are literally infringed.” (Doc. 180 at 3.)

This court denied that motion as unripe, (Doc. 214 at 15),

and the parties agreed to file supplemental claim construction

briefs regarding the meaning of the phrase “opposed first and

second ends,” (Doc. 211 at 32). After carefully reviewing that

briefing, this court construed “opposed first and second ends” as

referring to “the lengthwise extremities of the [power actuating

unit/actuating unit/linear actuating unit], wherein length is

defined by the axis in which the [power actuating unit/actuating

unit/linear actuating unit] moves forwardly and rearwardly.”

(Doc. 234 at 14.)

Relying on that construction, Defendants filed a renewed

motion for partial summary judgment of no literal infringement of

claims 7 and 13 of the ’348 patent and claim 1 of the ’693 patent

(and their dependent claims). (Doc. 237.) Those three claims

contain the following language, with minor differences reflected

in brackets:

wherein the [power actuating unit/actuating unit/linear

actuating unit] includes opposed first and second ends,

and wherein the first end of the [power actuating

unit/actuating unit/linear actuating unit] moves

forwardly as the seating unit moves from the upright

position to the TV position, and wherein the second end

of the [power actuating unit/actuating unit/linear

actuating unit]2 moves rearwardly when the seating unit

moves from the TV position to the fully reclined

position.

(‘348 patent (Doc. 31-1) at 10:9–15, 11:14–12:3; ‘693 patent

(Doc. 31-2) at 9:45–51.) Defendants’ motion is accompanied by a

brief. (Defs.’ Br. in Supp. of Renewed Mot. for Partial Summ. J.

of No Literal Infringement (“Defs.’ Br.”) (Doc. 238).) Plaintiff

responded in opposition to the motion, (Pl.’s Opp’n to Defs.’

Mot. for Partial Summ. J. of No Literal Infringement (“Pl.’s

Resp.”) (Doc. 239)), and Defendants replied, (Defs.’ Reply Br. in

Supp. of Renewed Mot. for Partial Summ. J. of No Literal

Infringement (“Defs.’ Reply”) (Doc. 242)). Both parties have

submitted supplemental expert reports to support their respective

positions. (Ex. 1, Suppl. Expert Report of Rufus Brown

Responding to Ct.’s Claim Construction Order (“Brown Report”)

(Doc. 238-2); Ex. 2, Suppl. Expert Report of Dr. Kimberly

Cameron Regarding Noninfringement (“Cameron Report”) (Doc. 238-

3).) Defendants’ partial summary judgment motion is now ripe for

adjudication.

2 For ease of reference, this court will hereinafter use the

term “actuating unit” as shorthand to collectively refer to the

power actuating unit, actuating unit, and linear actuating unit.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322—23 (1986). This

court’s summary judgment inquiry is whether the evidence “is so

one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The

moving party bears the initial burden of demonstrating “that

there is an absence of evidence to support the nonmoving party’s

case.” Celotex, 477 U.S. at 325. If the “moving party discharges

its burden . . . , the nonmoving party then must come forward

with specific facts showing that there is a genuine issue for

trial.” McLean v. Patten Cmtys., Inc., 332 F.3d 714, 718—19 (4th

Cir. 2003). Summary judgment should be granted “unless a

reasonable jury could return a verdict for the nonmoving party on

the evidence presented.” Id. at 719; see also TechSearch, L.L.C.

v. Intel Corp., 286 F.3d 1360, 1371 (Fed. Cir. 2002) (“To support

a summary judgment of noninfringement it must be shown that, on

the correct claim construction, no reasonable jury could have

found infringement on the undisputed facts . . . .”). “[M]ere

allegations” in support of a party’s pleadings without “any

significant probative evidence” to support those allegations do

not provide sufficient evidence to allow a reasonable jury to

resolve a dispute in favor of that party. Liberty Lobby, 477 U.S.

at 248–49 (internal quotation marks omitted) (quoting First Nat’l

Bank of Ariz. V. Cities Serv. Co., 391 U.S. 253, 288, 290

(1968)); see also Mortg. Grader, Inc. v. First Choice Loan Servs.

Inc., 811 F.3d 1314, 1325 (Fed. Cir. 2016) (“The mere existence

in the record of dueling expert testimony does not necessarily

raise a genuine issue of material fact.”).

Put another way, simply showing “some metaphysical doubt as

to the material facts” is not sufficient to establish a genuine

dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986). In considering whether a genuine issue of

material fact exists, the court must be careful not to weigh the

evidence or make credibility determinations. Liberty Lobby, 477

U.S. at 255. Instead, the court must view the facts in the light

most favorable to the non-moving party, drawing all reasonable

inferences in favor of that party. Id.

III. ANALYSIS

Defendants’ principal argument is that partial summary

judgement of no literal infringement is warranted because the

relevant patent claims require that the actuating unit’s second

end “move[] rearwardly when the seating unit moves from the TV

position to the fully reclined position,” but the accused

mechanisms’ second ends never move rearwardly. (Defs.’ Br.

(Doc. 238) at 6–13.) In making this argument, Defendants start

by pointing to video evidence that they claim show that the

accused mechanisms’ second ends only move forwardly during the

entirety of the motion cycle. (Id. at 8–9.) This video evidence

is sufficient to demonstrate that there is an absence of

evidence supporting Plaintiff’s literal infringement claim on

the patent claims at issue, and thus Defendants have discharged

their initial summary judgment burden. See Celotex, 477 U.S. at

325. Plaintiff in response advances specific facts that it

claims show that whether the second ends move rearwardly remains

a genuine issue for trial. (Pl.’s Resp. (Doc. 239) at 7–11.)

Those facts Plaintiff has put forward to show the second

ends move rearwardly are from its expert’s supplemental report.

(See, e.g., id. at 8–9 (discussing Brown Report (Doc. 238-2)).)

That report is by Mr. Brown and states:

Claims 7 and 13 of the ’348 Patent and claim 1 of

the ’693 Patent further require that the “second end

of the [power actuating unit/actuating unit/linear

actuating unit] moves rearwardly when the seating unit

moves from the TV position to the fully reclined

position.” As construed by the Court, this element

requires that the second “lengthwise extremity” of the

actuator moves rearwardly as the seating unit moves

from the TV position to the fully reclined position.

[] This element is literally met by the 4152

mechanism. At my request and direction, videos,

photographs, and measurements were taken of the 4152

mechanism (which was fixed in place in front of and

pointed away from a wall) as the mechanism was cycled

between the TV position and the fully reclined

position. In each position, a measurement was taken

from a fixed point behind the rear of the mechanism to

the rearmost extremity of the actuator—what Dr.

Cameron and I agree is the claimed “second end.” When

the 4152 mechanism was in the TV position, the

rearmost extremity of the actuator (the “second end,”

as construed by the Court) was approximately 19 3/8”

(nineteen and three-eighths inches) away from the wall

behind the mechanism. When the 4152 mechanism was in

the fully reclined position, the rearmost extremity of

the actuator (the “second end,” as construed by the

Court) was approximately 18 3/4” (eighteen and three-

quarters inches) away from the wall behind the

mechanism . . . .

[] The rearmost extremity (the “second end,” as

construed by the Court) thus moves rearwardly when the

mechanism and seating unit move from the TV position

to the fully reclined position, as required by claims

7 and 13 of the ’348 Patent and claim 1 of the ’693

Patent. The amount of rearward movement of the “second

end” is approximately 5/8” (five-eighths of an inch).

(Brown Report (Doc. 238-2) ¶¶ 11–13.) Mr. Brown came to a

similar conclusion regarding the 5151 mechanism by conducting

the same testing. (Id. ¶¶ 18–20 (concluding that the second end

of the 5151 mechanism moved rearwardly by approximately three-

quarters of an inch).)

Defendants argue that this evidence is insufficient to

create a genuine issue for trial because the evidence is (1) too

unreliable and, (2) fails to show “rearwardly” motion as defined

by the patent. (Defs.’ Br. (Doc. 238) at 10–13; see also Defs.’

Reply (Doc. 242) at 5–10.) This court is unconvinced by

Defendants’ first argument but persuaded by the second. Each is

addressed in turn.

A. The Measurements’ Reliability

Defendants argue the measurements Mr. Brown relied upon

“should be disregarded for purposes of summary judgment.”

(Defs.’ Reply (Doc. 242) at 10.) They contend the measurements

are inaccurate, thus rendering Mr. Brown’s conclusions

unreliable. (See id. at 8–10; Defs.’ Br. (Doc. 238) at 10 n.2.)

Specifically, Defendants insist that: the measurements

themselves do not comport with the scientific method; Mr. Brown

did not adequately supervise or verify the measurements; and,

the measurements are self-serving, and thus suspect, because

they were recorded by Plaintiff’s counsel and a co-inventor of

the patents. (Defs.’ Br. (Doc. 238) at 10 n.2; Defs.’ Reply

(Doc. 242) at 8–10.)

Despite these challenges, this court will not disregard the

measurements Mr. Brown relied upon for purposes of adjudicating

the instant summary judgment motion. A different record might

permit an analysis of facts to suggest his measurements are not

scientifically valid. See Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579, 592–93 (1993). However, here, Defendants’

arguments largely concern the credibility and weight to give the

measurement evidence, and those arguments may not be considered

by this court on summary judgment. Indeed, longstanding Supreme

Court precedent holds that “[c]redibility determinations, [and]

the weighing of the evidence . . . are jury functions, not those

of a judge . . . ruling on a motion for summary judgment . . . .

The evidence of the non-movant is to be believed.” Liberty

Lobby, 477 U.S. at 255. This court must view the measurement

evidence in the light most favorable to Plaintiff because it is

the non-moving party. Id. Thus, this court accepts as accurate

the measurements Mr. Brown’s report relied upon. The problem for

Plaintiff, however, is that those measurements do not show

“rearwardly” motion, as defined by the patents, rendering Mr.

Brown’s conclusions unsupported.

B. “Rearwardly” Motion

Defendants point out that Mr. Brown’s supplemental report

and conclusions ignore the definition of “rearwardly” as defined

in the patents’ shared specification.3 (Defs.’ Br. (Doc. 238) at

10–13; see also Defs.’ Reply (Doc. 242).) The patents’

specification states that:

As used herein, the terms “forward,” “forwardly,” and

“front” and derivatives thereof refer to the direction

defined by a vector extending from the backrest toward

the seat parallel to the underlying surface.

Conversely, the terms “rearward,” “rearwardly,” and

derivatives thereof refer to the direction directly

opposite the forward direction; the rearward direction

is defined by a vector that extends from the seat

3 The two patents’ specifications appear identical. (Compare

‘348 patent (Doc. 31-1) at 4–17, with ‘693 patent (Doc. 31-2) at

4–17.)

toward the backrest parallel to the underlying

surface.

(‘348 patent (Doc. 31-1) at 4:19–27 (emphasis added); ‘693 patent

(Doc. 31-2) at 4:23–31 (emphasis added).)

Defendants argue that during the transition from the

alleged intermediate TV position4 to the fully reclined position

the accused mechanisms’ second ends do not move rearwardly, that

is in a direction “defined by a vector that extends from the seat

toward the backrest parallel to the underlying surface.” (E.g.,

Defs.’ Br. (Doc. 238) at 11 (quoting ‘348 patent (Doc. 31-1) at

4:19–27).) Instead, consistent with the finding of its expert,

Defendants argue that the second ends’ motion during this period

in the reclining cycle “is more akin to an upward lift

(perpendicular to the forward and rearward direction) than

movement in the rearward direction as contemplated by the

patents.” (Id.; Cameron Report (Doc. 238-3) ¶ 29.)

Plaintiff responds that even if the patents’ specification

definition of rearwardly is applied, “Mr. Brown’s testing

clearly measured the amount of rearward movement of the second

ends of the Accused Mechanisms, i.e., movement parallel to the

4 Defendants do not concede that the accused mechanisms have

an intermediate TV position. (Defs.’ Br. (Doc. 238) at 7.) The

parties agree, as does this court, that dispute does not need to

be resolved in adjudicating the present motion. (Compare id.,

with Pl.’s Resp. (Doc. 239) at 5 n.7.)

underlying surface.” (Pl.’s Resp. (Doc. 239) at 12.) Plaintiff

does not reject Defendants’ assertion that during the transition

from the alleged intermediate TV position to the fully reclined

position the second ends’ motion could be described as an

“upward lift”; instead, Plaintiff insists that characterization

is irrelevant because the upward lift includes some amount of

rearward motion. (See id. at 13.) Plaintiff argues the inclusion

of only some amount of rearward motion is sufficient because

“[t]he claims at issue are not limited to any precise amount of

rearward movement.” (Id.)

To rule on this issue, this court needs a definition of the

claim term “rearwardly.”5 It can adopt one in this Memorandum

Opinion and Order because the Federal Circuit has held that

“[u]nder our precedent, the district court [i]s well within its

power to clarify, supplement, and even alter its construction of

the [claim] limitations in its summary judgment order.” Level

Sleep LLC v. Sleep No. Corp., No. 2020-1718, 2021 WL 2934816, at

*3 (Fed. Cir. July 13, 2021).

This court defines the term “rearwardly,” as used in the

last clause of claims 7 and 13 of the ’348 patent and claim 1 of

5 Plaintiff argues that this court does not need to construe

“rearwardly” to resolve this motion, (Pl.’s Resp. (Doc. 239) at

11), but Plaintiff has failed to offer this court a viable

alternative route to resolve the motion without such a

construction.

the ’693 patent, consistent with the specification’s definition.

See Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.

Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996) (“Claims must be

read in view of the specification, of which they are a part.”);

Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (en

banc) (“[T]he specification ‘ . . . is the single best guide to

the meaning of a disputed term.’” (quoting Vitronics Corp. v.

Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996))).

Critically, Plaintiff does not dispute this definition nor offer

an alternative definition. (See Pl.’s Resp. (Doc. 239) at 12.)

Incorporating the patents’ specification definition of

rearwardly, the relevant claim limitations state: “the second

end of the actuating unit moves [in a direction ‘defined by a

vector that extends from the seat toward the backrest parallel

to the underlying surface’] when the seating unit moves from the

TV position to the fully reclined position.” (E.g., ‘348 patent

(Doc. 31-1) at 11:17–12:3.)

The accused mechanisms’ second ends do not move rearwardly,

as defined by the patents’ specification. Instead, Plaintiff’s

own video evidence shows they move in an arc-like motion that is

plainly not “parallel to the underlying surface,” which is the

floor. (See, e.g., Doc. 240-3 at 00:10–00:15.) The measurements

Mr. Brown relied on show that at the conclusion of this arc-like

motion, when the seating unit is in the fully reclined position,

the second ends are further rearward than they were in the

alleged intermediate TV position. (See Brown Report (Doc. 238-2)

¶¶ 12, 19.) But that does not matter. The claim limitation at

issue only concerns the second ends’ directional motion, not

their ultimate location. What matters is the direction the

second ends moved in to arrive at their further rearward

location in the fully reclined position.

Plaintiff has provided no evidence that the second ends move

in a direction “defined by a vector that extends from the seat

toward the backrest parallel to the underlying surface.” (See

‘348 patent (Doc. 31-1) at 4:25–27; ‘693 patent (Doc. 31-2) at

4:25–27.) To reiterate, all Plaintiff has provided are

measurements showing that ultimately the second ends arrive at a

rearward location, (see Brown Report (Doc. 238-2) ¶¶ 12, 19),

but the uncontroverted evidence shows that the motion the second

ends take to get to that location is “arc-like,” (see, e.g.,

Doc. 240-3 at 00:10–00:15). Such nonlinear motion does not fall

within the scope of the relevant patent claims because it is not

“rearwardly,” that is, along a vector parallel to the floor. (See

‘348 patent (Doc. 31-1) at 4:25–27; ‘693 patent (Doc. 31-2) at

4:25–27.)

Mr. Brown’s opinion that the second ends do move rearwardly

does not create a genuine dispute of material fact because he did

not apply, or appear to consider, the patents’ specification

definition of “rearwardly.” (See Brown Report (Doc. 238-2).)

Thus, his finding of rearwardly movement is a “mere

allegation[]” in support of Plaintiff’s opposition brief that is

unsupported by “any significant probative evidence.” Liberty

Lobby, 477 U.S. at 248 (internal quotation marks omitted)

(quoting First Nat’l Bank of Ariz., 391 U.S. at 288, 290). That

is not enough to allow a reasonable jury, applying the patents’

construction of rearwardly, to find literal infringement on the

relevant claims. Id.; TechSearch, 286 F.3d at 1371. “The mere

existence in the record of dueling expert testimony does not

necessarily raise a genuine issue of material fact.” Mortg.

Grader, 811 F.3d at 1325. “A party does not manufacture more than

a merely colorable dispute simply by submitting an expert

declaration asserting that something is black when the moving

party’s expert says it is white; there must be some foundation or

basis for the opinion.”6 Invitrogen Corp. v. Clontech Lab’ys,

Inc., 429 F.3d 1052, 1080 (Fed. Cir. 2005). Applying that maxim

here, there must be some foundation or basis for Mr. Brown’s

opinion. But there is no foundation or basis for Mr. Brown’s

opinion because he did not apply the patents’ definition of

rearwardly. Therefore, the statements in his expert report

finding rearward movement fail to create a genuine dispute of

material fact and “do[] not prevent partial summary judgment.”

Id. at 1080–81 (affirming partial literal infringement summary

judgment order, despite contrary expert testimony).

Plaintiff has not “come forward with specific facts showing

that there is a genuine issue for trial” on literal infringement

of claims 7 and 13 of the ’348 patent and claim 1 of the ’693

patent, along with their dependent claims. McLean, 332 F.3d at

718—19. Due to this “absence of evidence to support the nonmoving

party’s case,” Celotex, 477 U.S. at 325, no “reasonable jury

could return a verdict in favor of the nonmovant on the evidence

presented,” McLean, 332 F.3d at 719; see also TechSearch, 286

6 “That maxim is especially true in cases involving

relatively simple technology, such as this one, because ‘the

technology will be easily understandable without the need for

expert explanatory testimony.’” K-TEC, Inc. v. Vita-Mix Corp.,

696 F.3d 1364, 1374 (Fed. Cir. 2012) (quoting Centricut, LLC v.

Esab Group, Inc., 390 F.3d 1361, 1369 (Fed. Cir. 2004))

(affirming trial court’s summary judgment order in a case

concerning blenders, despite contrary opinion in expert report).

F.3d at 1371. Therefore, summary judgment of no literal

infringement on claims 7 and 13 of the '348 patent and claim 1

of the '693 patent, and their dependent claims, will be granted.

IV. CONCLUSION

For the foregoing reasons, IT IS THEREFORE ORDERED that

Defendants’ Renewed Motion for Partial Summary Judgment of No

Literal Infringement, (Doc. 237), is GRANTED.

This the 17th day of August, 2022.

Winer 1 len Me

United States District Ju

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