Petition for Writ of Certiorari — Caputo v. Sealed Air Corp.

US.

we E

7+ Q08 548 a6 26 2003

No.

IN THE

Supreme Court of the United States

GARRY L. CAPUTO,

Petitioner,

(Inventor)

V.

SEALED AIR CORPORATION,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Garry L. Caputo (Pro Se)

464 Riverside Ave.

Rutherford, New Jersey 07070

201-939-5187

Counsel of Record Pro Se Litigant (Petitioner)

THE QUESTIONS PRESENTED ARE:

QUESTIONS PRESENTED:

The doctrine of equivalents prevents a copyist from

avoiding infringement by making unimportant and

insubstantial cnanges to a patented invention. These

copyists will hide behind any means necessary to win

infringement cases including tampering with constitutional

issues.

This case sets a precedent, which is favoring copyists

over inventors, by not disclosing evidence to the inventor

so that no evidence can be repudiated. The Federal District

Court ruling was based on this non repudiated evidence that

the inventor has not seen and defense lay witness testimony

making legal decisions. The inventor was barred in this

case from seeing any evidence because of false claims of

trade secret status giver: to the defendant’s product, barring

the inventor the right to due process. a

This violation of the inventor’s right to a fair trial was

the only way that the defendant was going to get away with

taking illegal possession of this patented technology.

This court unanimously affirmed the well established

doctrine of equivalents factor in Warner-Jenkinson Co. v.

Davis Chemical Co. 520 U.S. 17 (1997) and in the Fesco

Corporation v. Shoketsu Kogyo Kabushiki Co. L.T.D.

(Decided May 28, 2002) and its importance to prevent

would-be predators from infringement of patented

inventions. However, it was circumvented in this action.

This is new law and works extreme change in the

American patent system and due process.

1). Is there a seventh Amendment right to a trial by jury

on issues of whether a patent claim is properly enabled under

Title 35 U.S.C.~ Part I> Chapter 11>Section 112?

2). Does the Seventh Amendment require, when there are

underlying factual issues in patent infringement litigation, be

decided by a jury, not a Federal District Court in summary

judgement on lay testimony?

3). Can a Federal District Court narrow the claims of @

patent to alter the claims as stated?

4). Can a Pro Se inventor be denied access to defense

evidence and due process of law based on false claims of trade

secret status given to the defendant’s product, preventing the

inventor from representing himself?

5). Can the inventor be completely barred from seeing any

evidence in an infringement case, based on treatment by the

court as a lay person, biasing the case in favor of the defense?

6). Can a Pro Se litigant be denied access to evidence

pivotal to his case, when there is no attorney available to

represent him violating inventor's right to due process?

7). Can a Federal District Court negate U.S.C. TITLE

35>PART TL-CHAPTER 28>SECTION 271, & 295, &

U.S.C. TITLE 35>PART Ifl> CHAPTER 29>281 as a remedy

for inventors to resolve infringement issues?

9). Can a Federal District Court narrow the claims of a

patent in a patent infringement case to lessen what the claims

actually states, to help would-be infringers to win infringement

law suits?

10). Can a Federal District Court deny oral argument from

a Pro Se litigant and not deny oral argument form the defense

attorney?

|

it

11). Can a Federal District Court accept trade secret status

for the defendant’s product on the word of the defense counsel,

without the reguired proof-of trade secret as mandated by trade

secret law thereby denying the inventor access to the would-be

infringers sealed evidence?

12). Can the Federal District Court accept defense counsel

evidence and bar the inventor from repudiating the evidence in

self-defense?

id

PARTIES TO THE PROCEEDING "

Petitioner, Garry L. Caputo Pro Se (inventor) has no parent

company. There are no subsidiaries or affiliates.

TABLE OF CONTENTS

PAGE

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TABLE OF AUTHORITIES

Cases Page

The Constitution Of The United States

Fourth, Fifth & Fourteenth Amendment

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Festco Corp. v. SMC Corp.

00-1543 (Decided May 28,2002)...... 13-14

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

JP Ah Gilet CEMA viv ok biscnncasicensenneons 15

Union Paper-Bag Machine Co. v. Murphy,

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Warner-Jenkinson Co. v. Hilton Davis Chem. Co.

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STATUTES AND CONSTITUTIONAL PROVISIONS

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Brief fer United States as Amicus Curiae,

1996 WL 172221 (U.S. Apr. 11,1996)......

Federalist No. 43 (James Madison)............. 3-9

SS — ~ —<———

OPINIONS BELOW

The district court entering a judgement in Civil Action

; No. 99-482 on March 30,2001 granting the would-be patent

: infringer Sealed Air Corporation summary judgement of

noninfringement of U.S. Patent No. 4,579,516 based on lay

person testimony and misrepresented evidence presented by

the defendant. The inventor from the very beginning of the

action requested a trial by jury, which was denied.

| This case was based on lay person testimony not

qualified to make legal decisions as to patent infringement

issues and the defense’s misrepresented evidence of

noninfringement on six of the claims of the patent which

were hidden from the inventor so that the evidence would not

1 be repudiated.

Therefore, the case was decided on lay testimony based

: on misrepresented evidence and circumvented Federal Patent

| Law and the inventor was not legally represented in the case

by valid counsel because of circumstances set in place by the

| defense counsel.

It is the inventor’s opinion based on the evidence and the

hiding of evidence in this action that the defense’s stratagem

from the beginning of the case was to prevent

: the inventor from seeing any of the evidence in the

proceedings and to avoid, at all possible cost, a trial by jury

as requested by the inventor.

Not allowing the inventor to see any of the evidence,

biased the proceedings in favor of the defense and denied the

inventor due process and a trial by jury.

The case went to the Federal Appeals Court in search of

justice, and to show cause, why the district court made an

error in its decision based on false evidence not seen nor

repudiated by the inventor. The District Court admits on

record that the inventor’s independent Certified Expert

witness found, after examining the defendant's technology,

2

that the defendant was using and infringing the 516 pateni.

Because the inventor was not able to see the Certified

Expert witness testimony, the inventor could not

participate in the case to help his counsel with technical

support. Because of this issue counsel for the inventor was

barred from utilizing his client’s expertise in developing a

valid defense against the defense’s evidence. Furthermore,

counsel for inventor could not even talk to his client about

any evidence in the case, which rendered him an invalid legal

representative to prosecute this action. Subsequently, the

inventor was left without legal counsel.

The Appeal Court was a continuance of this case

denying the inventor due process because this court looked at

the same false evidence unchallenged and unseen by the

inventor and disregarded the inventor’s testimony, the

independent Certified Expert witness testimony and the

lower court decision. The Appeals Court once again

disregarded all evidence presented by the inventor including

independent Certified Expert Witness findings.

The inventor, now Pro Se, without legal representation,

tried to show the Appeals Court truths and the errors made by

the District Court. Somehow, the Court was not hearing the

inventor and disregarded the independent Certified Expert

witness findings that the defendant infringed the 516 patent

and the inventor's testimony that the defense misrepresented

evidence.

Therefore, what is.the value of a patent in America if it

can be infringed upon by a would-be infringer who is

protected by a court ruling on misrepresented evidence, lay

person testimony making legal decisions, over an inventor’s

testimony, and an independent Certified Expert witness

testimony who has found after reviewing the defendants

evidence, that the defendant infringes the 516 patent? None

of the defense evidence was seen by the inventor, because the

inventor was barred by the Court.

a ee

JURISDICTION

The Federal Court entered an opinion and order on April

8, 2003. A petition for panel rehearing and en banc

was denied on April 24, 2003 because the inventor Pro Se

did not sign the petition in the rush to get the petition

submitted timely, and an error that Fedex made because

Fedex thought the wrong zip code was on the document. This

condition caused the delay in delivery to the court by two

days. This Court has jurisdiction under 28 U.S.C. ~ 1254(1).

CONSTITUTION AND STATUTORY

PROVISIONS INVOLVED

The Seventh Amendment of the Constitution of the

United States Provides:

“In suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury be

preserved, and no fact tried by jury, shall be otherwise

reexamined in any court of the United States, than according

to the rules of the common law.”

35 U.S.C. ~ 112(1) provides:

The specification shall contain a written description of

the invention, and of the manner and process of making and

using it, in such full, clear, concise, and exact terms as to

enable any person skilled in the art to which it pertains, or

with which it is most nearly connected, to make and use the

same, and shall set forth the best mode contemplated by the

inventor of carrying out his invention.”

4

CONSTITUTION OF THE UNITED STATES

DUE PROCESS. REF. BLACK'S LAW DICTIONARY

Due Process Rights:

All rights which are of such fundamental importance as to

require compliance with due process standards of fairness

and justice. Procedural and substantive rights of citizens

against government actions that threaten the denial of life,

liberty, or property.

Due Process of Law:

Law in its regular course of administration through the

courts of justice. Due process of law in each particular case

means such an exercise of power of the government as the

settled maxims prescribe for the class of cases to which the

one in question belongs. A course of legal proceedings

according to those rules and principles which have been

established in our system of jurisprudence for the enforces

and protection of private rights. To give such proceedings

any validity, there must be a tribunal competent by its

constitution that is, by the law of its creation- to pass upon

the subject matter of the suit; and if that involves merely a

determination of the personal liability of the defendant, he

must be brought within its jurisdiction by service of process

with the state, or his voluntary appearance. Pennoyer v.

Neff, 95 U.S.733,733 L.Ed. 565. Due process of law

implies the right of the person affected thereby to be present

before the tribunal which pronounces judgement upon the

question of life, liberty, or property, in its most

comprehensive sense; and to have the right of

controverting, by proof, every material fact which bears on

the question of right in the mater involved. If any question

of fact or liability be conclusively presumed against him,

this is not due process of law. An orderly proceeding

wherein a person is served with notice, actual or

constructive, and has an opportunity to be heard and to

enforce and protect his rights before a court having power

to hear and determine the case. Phrase means that no person

shall be deprived of life, liberty, property or of any right

5

granted him by statue, unless matter involved first shall

have been adjudicated against him upon trial conducted

according to established rules regulating judicial

proceedings, and it forbids condemnation without a

hearing. The concept of "due process of law" as it is

embodied in the Fifth Amendment demands that a law shall

not be unreasonable, arbitrary, or capricious and that the

means selected shall have a reasonable and substantial

relation to the object being sought. Fundamental requisite

of "due Process" is the opportunity to be heard, to be aware

that a matter is pending, to make an informed choice

whether to acquiesce or contest, and to assert reasons for

such choice. Aside from all else, "due process" means

fundamental fairness and substantial justice. Embodied in

due process concept are the basic rights of a defendant in

criminal proceedings and the requisites for a fair trial.

These rights and requirements have been explained by the

Supreme Court decisions and included, timely notice of a

hearing or which informs the accused of the charges against

him or her; the opportunity to confront accusers and to

present evidence on one's own behalf before an impartial

jury or judge; the presumption of innocence under which

guilt must be proven by legally obtained evidence

presented; the right to an accused to be warned of

constitutional rights at the earliest stage of the criminal

process; protecting against self- incrimination; assistance of

counsel at every critical stage of the criminal process; and

the guarantee that an individual will not be tried more than

once for the same offence.

Fourteenth Amendment............

Fifth Amendment...................

Seventh Amendment ..............

Sixth Amendment. ............00+000

6

THE LAW FOR PATENT INFRINGEMENT IS:

U.S.C. TITLE 35 > PART Il > CHAPTER 29 > SECTION

295.

SECTION 295. PRESUMPTION: “PRODUCT MADE BY

PATENTED PROCESS”

In actions alleging infringement of a process patent

based on the importation, sale, offer for sale, or use of a

product, which is made from a process patented in the

United States, if the court finds:

1). that a substantial likelihood exists that the product was

made by the patented process, and

2). That the Plaintiff has made a reasonable effort to

determine the process actually used in the production of the

product and was unable to so determine, the product shall

be presumed to have been so made, and the burden of

establishing that the product was not made by the process

shall be on the party asserting that it was not so made.

INFRINGEMENT OF PATENT OF THE U:S.C., TITLE

35 >PART III > CHAPTER 28 > SECTION 271

Infringement Of Patent.

a). Except as otherwise provided in this title, whoever

without authority makes, uses, offers to sell, or sells any

patented invention, within the United States or imports into

the united states any patented invention during the term of

the patent therefore, infringes the patent

b). Whoever actively induces infringement of a patent shall

be liable as an infringer.

c). whoever offers to sell or sells within the United States

or imports into the United States a component of a patented

process, constituting a material part of the invention,

knowing the same to be especially made or especially

adapted for use in an infringement of such patent, and not a

substantial non-infringing use, shall be liable as a

contributory infringer.

7

d}. no patent owner otherwise entitled to relief for

infringement or contributory infringement of a patent shall

be denied relief or deemed guilty of misuse or illegal

extension of the patent right by reason of his having done

one or more of the following:

1). derived revenue from acts which if performed by

another without his consent would constitute contributory

infringement of the patent;

2). Licensed or authorized another to perform act which if

preformed without his consent would constitute

contributory infringement of the patent.

3). Sought to enforce his patent rights against infringement

or contributory infringement;

4). Refused to license or use any rights to the patent; or

5). conditioned the license of any rights to the patent or the

sale of the patented product on the acquisition of a license

to rights in another patent or purchase of a separate product,

unless, in view of the circumstances, the patent owner has

market power in the relevant market for the patent or

patented product on which the license or sale is

conditioned.

The law is Unde U.S.C. TITLE 35 > PART>

III>CHAPTER 28 > SECTION 271 INFRINGEMENT of

PATENT

a). Except as otherwise provided in this title, whoever

without authority makes, uses, offers to sell, or sells any

patented invention, within the United States or imports into

the united states any patented invention during the term of

the patent therefore, infringes the patent.

b). Whoever actively induces infringement of a patent shall

be liable as an infringer.

AND U.S.C. TITLE 35 > PART Il > CHAPTER 29 >

SECTION 295.

Section 295. presumption: “product made by patented

process”

2). That the Plaintiff has made a reasonable effort to

determine the process actuaily used in the production of the

ae fom

8

product and was unable to so determine,

the product shall be presumed to have been so made, and

the burden of establishing that the product was not made by

the process shall be on the party asserting that it was not so

made.

INFRINGEMENT OF PATENT OF THE U:S.C., TITLE

35 >PART Il > CHAPTER 28 > SECTION 271

Infringement of patent

a). Except as otherwise provided in this title, whoever -

without authority makes, uses, offers to sell, or sells any

patented invention, within the United States or imports into

the united states any patented invention during the term of

the patent therefore, infringes the patent.

b). Whoever actively induces infringement of a patent shall

be liable as an infringer.

c). Whoever offers to sell or sells within the United States

or imports jiito the United States a component of

a patented process, constituting a material part of the

invention, knowing the same to be especially made or

especially adapted for use in an infringement of such

patent, and not a substantial non-infringing use, shall be

liable as a contributory infringer.

d). No patent owner otherwise entitled to relief for

infringement or contributory infringement of a patent shall

be denied relief or deemed guilty of misuse or illegal

extension of the patent right by reason of his having done

one or more of the following:

1). Derived revenue from acts which if performed by

another without his consent would constitute contributory

infringement of the patent;

2). Licensed or authorized another to perform act which if

oreformed without his consent would constitute

contributory infringement of the patent.

3). Sought to enforce his patent rights against infringement

or contributory infringement;

Title 35> Part I> Chapter 29> Section 281.

Section 281. Remedy for infringement of patent.

9

A patentee shall have the remedy by civil action for

infringement of his patent.

STATEMENT OF THE CASE

This case presents a fundamental change in patent and

constitution law and litigation procedures to circumvent

patents, accomplished by circumventing the “doctrine of

equivalents” aiid inventor’s constitutional right to a fair trial

and due process in patent infringement case litigation.

Under this well-established doctrine of equivalents, “a

product or process that does not literally infringe upon the

expressed terms of a patent claim may nonetheless be found

to infringe if there is ‘equivalence’ between the elements of

the accused product or process and the claimed elements of

the patented invention.” Warner-Jenkinson Co. v. Hilton

Davis Chemical Co. 520 U.S. 17,21 (1997). The principle

has been consistently applied by this Court, in numerous

cases, since the Doctrine was first embraced in 1853. It is a

frequently recurring issue in patent law and practice because,

lower courts have problems _ understanding patent

infringement law.

Petitioner Garry L. Caputo is the owner of many U.S.

Patents in the field of the art of continuous motion advanced

thermoforming technology systems. This case is about the

advanced 516 patented forming roller for producing

continuous production output of air bubble cushioning

material of the highest quality product never seen before, in

this highly specialized industry.

W.R. Grace, Cryovac Division, now known as Sealed

Air Corporation was extremely interested in this new

technology and copied the inventor’s patented machine

system employing this advanced technology to produce Air

Bubble cushioning material in 1989 and was showing

machine system technology to the industry at the same time

that the inventor was receiving a Gold Medal Award for the

technological innovation in the field of the art of air bubble

10

cushioning material manufacturing.

This first patent infringement case ‘vas settled by W.R.

Grace in 1991 in Greenville South Caroline, Federal Court.

When W.R. Grace bought Sealed Air Corporation (63%

ownership) the Sealed Air process had changed to the 516

technology as depicted by the only independent Certified

Expert witness in this action, the inventors own expert

testimony, and the testimony of an expert Mr. John Scheld's

professional opinion.

The only way that Sealed Air/Grace was going to win

this infringement case was to hide evidence from the

inventor so that the inventor could not repudiate evidence

submitted by the defendant. Therefore, the defense counsel

could have said anything not repudiated, and they would

automatically win the infringement case circumventing

Federal Patent Law and inclusion of the “doctrine of

equivalence” factor and the inventor’s right to due process

and a fair trial.

If the inventor can not see any evidence against him, the

case is biased in favor of the defendant and the inventor’s

patent rights and opportunity to a fair trial was denied.

Because of this reason and unproven claims of trade secret

status given to the defendant’s forming roller, and the

misrepresented false claims of what insubstantial means, and

the hiding of pivotal evidence in the inventor’s case from the

inventor, and the misrepresented claims of the 516 patent as

being narrow claims, the doctrine of equivalents factor was

not applied in this action and in itself circumvents Federal

Patent Law.

The only independent Certified Expert witness in the

case testified that the defendant’s forming roller infringes the

516 patent. The court disregarded his testimony over non-

certified employee and defense counsel testimony, (acting as

an expert witness in the field of the art of continuous motion

thermo-forming) both not qualified to make legal decisions

relative to infringement of the 516 patent.

Additionally, the inventor believes the defense counsel

0 Eo

11

has misrepresented what was said in this one-sided

deposition, answers to interrogatories, and misrepresented

admissions on file. The inventor was denied discovery. The

inventor has, not seen these admissions and claims of the

defense counsel, because the inventor was barred from

seeing any of the evidence in this action and only a Federal

Court who sealed the evidence, can unseal the evidence so

that it can be viewed by the inventor.

This condition biased the case in favor of the defense

because the inventor could not repudiate evidence not seen.

The inventor’s right to due process and a fair trial was also

violated by this condition.

If this case is allowed to stand, it will set a precedent,

and will impact litigation of any future patent infringement

case. This new law will allow would-be patent infringers to

circumvent Federal Patent Law to win infringement cases

drastically changing the American patent system and the

validity of an American Patent for both large and small

inventors. , c

The invéntor’s case was based on misrepresented

evidence and trade secret status given to the defendant’s

forming roller, even without proof, lay person testimony

making legal decisions and counsel for the defense changing

the meaning of patent law to suit his own litigating agenda to

win this case.

The inventor was denied discovery from the defendant

because the inventor was barred from seeing any of the

evidence presented by the defense by the court.

The defense could have made any claims in the case

whether true or not and they would be undisputed by the

inventor.

The inventor was not legally represented in this action

because the inventor’s attorney was threatened by the defense

counsel who has political power and was in fear of losing his

ability to provide for his family and was barred by the court

from even talking to the inventor about the evidence

presented in this infringement case. Therefore, the inventor

12

was not legally represented in this action_as guaranteed by

the Constitution.

The United States Court of Appeals for the Federal

Circuit, (motion for en banc decision was denied, in this

case) has now held “that any statutory requirement for patent

infringement, regardless of the reason, gives rise to a

transformation of established patent law and _ court

procedures to favor copyists over inventors that generates an

absolute bar to the Doctrine of Equivalents based on any

claim of trade secret by the defense counsel without proof,

and the false claims that the inventor is a direct competitor of

the defendant, the would-be infringer will automatically win

iniringement cases. As proven in this action in the lower

courts. |

This new law works a drastic change in American patent

system rendering all patents irrelevant because there is no

defense against unseen evidence and false claims of trade

secret without required proof of trade secret as mandated by

law, resulting in the undercutting of public policy

surrounding patent law and public perception that patents are

subsisting over copyists stratagems.

A would-be infringer just needs to claim that the inventor

is a direct competitor of the defendant, and is a lay person,

and further claim that the product they are using does not

infringe the patent. This is supported by uncertified company

employees’ testimonies, who are not qualified to make a

legal interpretations regarding infringement issues.

Furthermore, the defense counsel testimony, acting as an

expert witness, and who is a true lay person in the field of the

art of continuous motion thermoforming was able to obtain

trades secret status for their client’s product, without_proof.

This allowec ‘the defendant to circumvent Federal Patent

Infringement Law to win this action. The defense also used

misrepresented evidence taken out of context, to support the

defense arguments.

Small inventors are at greatest disadvantages under this

new change in patent litigation law and _ procedures

13

circumventing due process, now affirmed by the Federal

Appeals Court. Small inventors will not obtain relief from

iniringers of their patents because of this action.

REASONS FOR GRANTING WRIT

a). Petitioner seeks review of this case because the

judgement in this action is unconstitutional in direct conflict

with the Supreme courts precedent support and finding that

the ultimate question of enablement is for a jury: However,

even if the ultimate question is found one of law, the

underlying factual issues are subject to the seventh

amendment right to a jury trial. Trial by jury was requested

when this case was filed and because of the errors in the

Districts Court’s judgement the petitioner’s Fifth, Six,

Seventh, and Fourteenth Amendment rights to due process

and a right to a trial by jury were denied.

b). Petitioner seeks review of this case because the

judgement in this case is a direct conflict with the courts

(1)Warner-Jenkison decision of 520 U.S 17(1997);

(2) in conflict with Festo Corporation v. Skoketsu

Kabushiki Co. L.T.D. with importance-to extreme

efforts that is required to prevent would-be infringers

from using property that does not belong to them;

(3) radically transforming established patent law to

favor copyists over patentees and court procedures;

severely undercuts the policy behind patent law, the

principle of a patent and its protection; (4) denying

inventors due process of law; (5) violates the Seventh.

Amendment right to a fair trial by jury and is in direct

conflict with the court’s precedent and rulings and the

rules of evidence.

The Federal Court in this case has denied the inventor

the fundamental right to a trial by jury on issues of

enablement, which has historically been the right of a jury to

decide. This will minimize on political power of players in

our judicial system when one side is a small inventor and the

other side is powerful multi-billion dollar corporation. Since

14

the Federal Circuit has jurisdiction over patent appeals from

the district courts, there can be no conflict among the

circuits.

1). If this case is allowed to stand, it sets a new

precedent against inventors especially small inventors that

changes Patent Law principles and court procedures currently

in place. This new unfair court litigation practice and

procedure will squash the small inventor and favor would-be

infringers over inventors and will undermine the American

patent system as a reliable means for protecting intellectual

property of smaller inventors. Most inventions are made by

smaller inventors, and the constitutional purpose of patent

law is to promote the progress of science and useful Arts” by

granting inventors exclusive rights to their invention for a

limited period of time. The judicially created doctrine of

equivalents has long played an important, controversial role

in realm of patent law. It strives to strike a balance between

the two competing policies behind the enforcement of the

patent: to protect the inventor’s right to exclude others who

might steal the product of his work and to clearly notice the

public of the invention’s boundaries. While the balance has

been extremely difficult to achieve, the Supreme Court in

Warner-Jenkinson v. Hilton Davis Chemical Co. and

Festo v. SMC Corporation has made admirable response to

this lingering problem.

Large Corporations are devious in getting around patent

law and winning infringement case by misrepresenting as.

much law and evidence as possible as long as the inventor is

barred from seeing any of the evidence so that it can not be

repudiated. It is the responsibility of the court to keep the

cases lawful. However, some times the courts error, and it is

up to the higher court to take a close look at what happen to.

correct the errors made in the interest of justice.

7 2). The Federal Circuit has exclusive jurisdiction of

patent appeals from the district courts. There can be no

circuit conflicts. It is also not possible for the issues

presented here to be discussed freely and openly in other

15

circuits, especially when the inventor’s voice is not heard and

considered a lay person. The key opinions however, have

thoroughly explored the issues and the policies, which are the

basis of federal jurisdiction in the court of first instance.

28U.S.C. ~1295(A) and 28 U.S.C. 1338(a).

CERTIORARI SHOULD BE GRANTED BECAUSE:

This action was based on unconstitutional principles as per

the 5", 6", 7, and 14", Amendment rights to a fair trial

and due process under law to citizens. Patent infringement

rights were also circumvented in this exceptional

unconstitutional action of extremes in the litigation process.

Graver Tank & Manufacturing Co. ,339 U.S. 605(1950) this

Court recognized that to permit imitation of a patented

invention which does not copy every literal detail would be

to convert the protection of the patent grant into a hollow

and useless thing. Such a limitation would leave room for-

indeed encourag’- the unscrupulous copyist to make

unimportant and insubstantial changes and substitutions in

the patent which, though adding nothing, would be enougi:

to take the copied matter outside the claim, and hence

outside the reach of the law. .

PETITION FOR A WRIT OF CERTIORARI

Garry L. Caputo hereby petitions for a writ of certiorari to

review the judgement of the United States District Court case

# 99-CV-482 decided March 30, 2001 in summary

judgement in favor of the defendant and with a Final Ruling

of August 30, 2002, and for the Court of Appeals for the

Federal Circuit case # 02-1556 decided on April 8, 2003

affirming the lower court decision. The basis for the Federal

jurisdiction in the court of first instance is 28 U.S.C. ~

1295(a) and 28 U.S.C. ~ 1338 (a).

Application for the extension of time to prepare this petition

has been filed with the court and on July 9, 2003 the time

16

was extended to August 27, 2003.

CONCLUSIONS

For all of the reasons and factual evidence cited and

Set forth above, this petition should be granted as the case

clearly exhibits and demonstrates that the respondent is

indeed infringing, the inventor’s 516 patent. Corroboration

of this petition is inclusive in the testimony of the

independent certified expert witness who examined the

defendant’s product, and whose credentials and background

make him unquestionably qualified to make factual

conclusions relative to this case. His findings verify that

the respondent’s product is performing the same functions

as the claims of the 516 patent and are insubstantial and are

infringing. |

It is imperative that the court send a strong message to

would-be infringers and their counsel that this kind of

frivolous deceptive litigation procedures and predatory -

practices that violates the Constitutional rights of others has

to stop. Respondent’s stratagems such as these increase

litigation loads in our court system for infringement cases

and inventors seeking rightful justice and respect under the

patent laws and due process of laws provided the inventor

by the Constitution.

If this kind of frivolous defense is allowed to continue, our

judicial system will not be a means for inventors to protect

their patents and intellectual property. Law protects

inventors but their voice is not heard over the voice of

super powerful respondents. The inventor's opinion based

on the factual evidence is that the respondent is using the

inventor’s patent and the respondent is making money from

the technology. The inventor has been harmed by this

powerful respondent and has lost his civil and

constitutional rights to a fair trial because of stratagems by

most powerful legal minds in the country making money

from property that does not belong to them.

17

This is based on the inventor’s own testimony which has

been disregarded by the court and an independent

certified expert witness testimony who evaluated the

respondent’s product and concluded that the defendant is

infringing the 516 patent.

If the inventor can see the respondent’s forming roller he

can offer a detailed depiction of the infringement. This case

is a powerful and compelling example of what can happen

in litigation when the rules of evidence is not followed and

erroneous unsupported and sealed evidence is used in

deciding cases denying the petitioner the opportunity to

repudiate. This new law works significant changes in the

American patent system and due process of law.

This condition undermines inventors’ confidence in our

patent system and validity of due process in our court

system in matters of fairness and impartiality of the courts.

Pro Se litigants are at greatest risks being held to the same

standards as legal professionals to address and respond to

issues in a timely fashion where deadlines are almost

impossible to meet in our court proceedings. Inventors are

lay people in terms of processing responses to court

documents and do not have a massive supporting staff to

research and respond on the same timely basis of trained

legal professionals who do this for a living.

Inventors will not continue to trust and use United States

Patent Law system as a means to protect their intellectual

property, and patent rights, if the court decisions favor the

would-be infringers over inventors. This is contrary to what

patent law depicts and will further undermine the patent

provisions of the United States Constitution and the

public’s confidence in the Constitutional rights of our

citizens to a fair trial and due process if allowed to stand.

The Constitutional purpose of patent law is to “...promote

the Progress of science and useful Arts” by granting

inventors exclusive rights to their invention for a limited

time. Patent Law also needs the public trust that the law

will protect their intellectual property right in exchange for

18

teaching interested parties what the invention is and how it

works.

The Writ of Certiorari should be granted in this

exceptional case, because the hidden and sealed factual

evidence in the case proves willful infringement of the 516

patent. The respondent and their costly efforts to conceal

the infringement, utilizing stratagems that circumvent the

law and due process of their victim, would have been the

only way that the respondent could have won this

infringement lawsuit.

The U.S. Supreme Court recently rendered a decision that

Patents cover more than their actual words describe. See the

“Doctrine of Equivalence Law” and ref. by Supreme Court

case file Winans v. Denmead, 15 How 330, 347. Case in

point Supreme Court Justice Anthony Kennedy Festo Corp.

v. Shoketsu Kinzoku Kogyo Kabushiki Co., LTD. (see

attached Case No. 00-1543 Decided May 8, 2002)

Patent Law as per Supreme Court ruling summarized by

Justice Anthony Kennedy’s (case No. 00-1543) supports

the inventor and the invention, against unimportant and

insubstantial changes and substitutions in the patent, which

though adding nothing, would be enough to take the copied

matter outside the claim, hence outside the reach of the law.

- “So we’d better declare that these, not-quite-identical

inventions are also covered by the patent, provided they are

equivalent to the patented invention.”

“The substantial equivalents of things, in the sense of the

patent law, is the same as the thing itself." Id. at 35, quoting

Union -Bag machine Co. v. Murphy, 97 U.S.

120, 125 (1878). Indeed, the essential predicate of the

doctrine of equivalents is the notion of identity between a

patented invention and its equivalent." Id.

In this case the respondent practiced deception of evidence

however, if the certified expert witness testimony can be

seen it explains the infringement in detail as evidenced by

the court.

19

For these reasons the petition for Writ of Certiorari should

be granted.

| Respectfully submitted,

Garry L. Caputo

Inventor Pro Se

464 Riverside Avenue

Rutherford, New Jersey 07070

201-939-5187

I

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

FILED

AUG. 30 2002

GARRY L. CAPUTO,

Plaintiff, : Civil Action

: No. 99-482

v. :

:The Honorable Alfred

: M. Wolin

~ SEALED AIR CORPORATION:

(US),

Magistrate Judge

‘Susan D. Wigenton

Defendant.

FINAL JUDGMENT

A memorandum and order having been entered March 30,

2001 granting the motion by defendant Sealed Air

Corporation (US) (“Sealed Air”) for summary judgment

of noninfringement of U. S. Patent No. 4,579,516; an order

dated July 7, 2001 having taxes (entered June 11,2001

taxing) costs in favor of defendant Sealed Air and against

Plaintiff Garry L. Caputo (“Caputo”) in the amount of

$1,677 ($1667.00); and a memorandum and order dated

August 8, 2002 having been issued denying Caputo’s

motion for reconsideration, and denying both parties’

motions for sanctions, including Sealed Air’s renewed

motion under Fed. R. Civ. P. 11, the Court enters the

following judgment:

II

1. This Court has jurisdiction over the subject matter of

the claims and Counterclaims asserted in this action and the

parties hereto;

2. Judgment is entered for Sealed Air Corporation (US)

and against Garry L Caputo on all of the claims raised in

the Complaint for infringement of U.S. Patent No.

4,579,516;

3. Judgment is entered for Sealed Air Corporation (US)

on its counterclaim for a declaratory judgment that the

forming rollers of Sealed Air’s machinery for producing air

cushioning material do not infringe any claim of U.S.

Patent No. 4,579,516;

4. A money judgment is entered for Sealed Air

Corporation (US) against Garry L. Caputo in the amount of

$1,667, for taxation of costs;

5. Judgment is entered for Garry L. Caputo against

Sealed Air Corporation (US) on Sealed Air’s request for

designation of this case as an exceptional case and for

sanctions under Fed. R. Civ. P. 11;

6. Judgment is entered for Sealed Air Corporation (US)

against Garry L. Caputo on Caputo’s claims for sanctions.

IT IS SO ORDERED:

Newark, New Jersey

Date: August 29,2002

United States District Judge

Original Filed

William T. Walsh, Clerk

August 8, 2002

III

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

GARRY L. CAPUTO, — : Civil Action No. 99-482

Plaintiff, ;

: MEMORANDUM OPINION

SEALED AIR

CORPORATION,

Defendant.

Several motions in this case are now before the Court.

First is plaintiff Gary Caputo’s motion for reconsideration.

In addition, the Court must also decide defendant Sealed

Air Corporation’s motion for sanctions against plaintiff and

for attorney’s fees under 35 U.S.C. __ 285, and its motion

to strike. Plaintiff's cross-motion for sanctions against

defendant and its attorneys is also before the Court.

BACKGROUND

The Court will recount the facts only very briefly here.

Plaintiff Gary L. Caputo is the holder of United States

Patent No. 4,579,516 (“the ‘516 patent’) titled “forming

roller for air-cushioning product.” This

patent covers a specific construction for a forming roller

that is one part of the machinery used for producing air

cushioning packaging material, commonly known as

bubble wrap. Plaintiff has over thirty-six years of

experience in the development of packaging products and

thirty years of hands-on experience with machinery design

and thermo-plastic film engineering.

Defendant Sealed Air Corporation has been in the business

of producing air cushioning material since its start in the

IV

industry in the 1960s. It owns numerous patents for the

methods and apparatus of making bubble wrap and is an

acknowledged global leader in the field.

On February 2, 1999, plaintiff field this action against

defendant, contending that defendant was infringing the

‘516 patent.

Before any discovery occurred, defendant filed for

sanctions against plaintiff and his attorney, asserting that

they had failed to conduct a sufficient investigation before

filing the complaint as required by Federal rule of Civil

Procedure 11. This motion was denied by then-magistrate

judge Pisano, who concluded that he could not evaluate

defendant” allegations on the facts in the record at that

time.

During the course of discovery, defendant filed for a

protective order, claiming that plaintiff should not be privy

to defendant’s confidential trade secret information because

he is a competitor. The court issued a protective order, and

instructed plaintiff to hire an independent expert to review

the materials and write a report.

Defendant then filed for summary judgment, and in an

opinion and order of April 4, 2001, the Court granted

defendant’s motion.

After defendant succeeded on summary judgment, it

pressed plaintiff to sign a settlement agreement containing

certain terms unfavorable to plaintiff. Despite pressure

from defendant that it would renew the motion for

sanctions, plaintiff refused to sign.

DISCUSSION

Plaintiff's Motion for Reconsideration:

Plaintiff’s motion to reconsider was filed on March 6,

2002. The Court issued its summary judgment opinion on

April 4, 2001. Local civil rule 7.1(g), which established the

procedure for reargument, provides that “a motion for

Vv

reargument shw.: Se curved and filed within ten days of the

entry of the order or judgment on the original motion....”

As a result, plaintiff’s motion, filed eleven months after

the court’s summary judgment opinion, is woefully late.

For this reason, it must be denied.

Defendant’s Motion for rule 11 Sanctions Against Plaintiff.

Plaintiff argues that Rule 11 sanctions should be leveled

against plaintiff because the lack of evidence for his claim

of infringement violates Federal Rule of Civil Procedure 11

(b) (3).Under Rule 11, litigants have the obligation “before

filing the complaint, (to make) reasonable inquiry to

determine that the complaint [is] well grounded in fact.”

Judin v. United States, 110 F.3d 780, 784 (Fed. Cir. 1997).

Defendant contends that plaintiff's factual basis for his

infringement claim — the appearance of the bubble wrap

made by defendant’s machine — is insufficient. According

to defendant, the action would not have been brought had

plaintiff reviewed Sealed Air’s forming roller and

compared it to the claims of the ‘516 patent.

It was not for lack of trying, however, that plaintiff

never observed Sealed Air’s forming roller. Defendant

refused to allow plaintiff to see Sealed Air’s technology at

any point. Defendant claimed that it could not allow

plaintiff to review its technology because this would

involve the disclosure of trade secrets to a competitor.

Indeed, defendant sought and received a protective order on

this basis. Personal review by plaintiff being out of the

question, defendant claims that plaintiff should have

performed a closer analysis through a third-party or

plaintiff's attorney.

And so plaintiff did. Plaintiff retained expert Arthur

Honczarenko, who, after reviewing the technology, agreed

with plaintiff's assessment that defendant’s technology

infringed the ‘516 patent.

VI

It is of course legitimate for defendant to protect its

trade secrets. However, there can be no questions that

plaintiff's ability to research the alleged infringement was

hampered by defendant’s restrictions. This is not a case, as

is Judin, in which “no attempt was made to obtain the

device.” Judin, 100 F.3d at 784.

Defendant emphasizes repeatedly that it must be true

that plaintiff had no evidentiary grounds for the

infringement actioi because the Court found that there was

no infringement on six different elements of claim one of

the patent. Losing a summary judgment motion, however,

does not suggest misconduct in bringing a suit. See

McClarin Plastics, Inc. v. LRV Acquisition Corp., 1999

WL 507188, at *4 (Fed. Cir. 1999), cert. Denied, 528 U.S.

1079 (2002) (denying motion for sanctions because

“negligence in filing and prosecuting the infringement

action is not established simply because LRV lost on the

merits’).

Defendant also suggests that plaintiff should be subject

to sanctions for his conduct as a pro se. Despite

defendant’s contentions, the fact that plaintiff's motion to

reconsider was filed many months late is grounds for

denying the motion, not awarding sanctions. Plaintiff's

motion for reconsideration also contains some aggressive

allegations against defendant and its counsel.

Although plaintiff’s status as a pro se plaintiff does not

insulate him from sanctions, pro se litigants are “generally

held to a lower standard that attorneys.” Elizabeth

Teachers Union, AFT Local 733 v. Elizabeth Bd. of Educ.,

1990 WL 174654, at *4 (D.N.J. 1990). See also Poling v.

K. Hovnanian Enterprises, 99 F.Supp.2d 502, 517 (D.N_J.

2000), appeal dismissed, 32 Fed. Appx. 32 (3d Cir. 2002)

(“Plaintiffs’ pro se status rescues them from the brink of

sanctions by this Court.”). The allegations in the

VII

submissions of plaintiff, a pro se litigant, are not

appropriate grounds for Rule 11 sanctions.

In addition, the court sees no evidence for defendant’s

assertion that plaintiff's motion was brought in bad faith.

Plaintiff's motion indicates that plaintiff's grasp of the

proper information to include in and the effective way to

argue such a motion are not sophisticated, but his concern

about the propriety of the Court’s decision, however ill-

argued, appears genuine. There is no suggestion that

plaintiff brought this motion to harass defendant or the

court, or to generate additional litigation. Plaintiff's

reading of the Court’s summary judgment opinion was the

first time plaintiff encountered the technical comparison of

his invention and defendant’s technology because he was

barred by the protective order from having access to it. As

a result, the Court cannot conclude that plaintiff brought

this motion “to harass or cause . . . needless increase in the

cost of litigation.” Fed. R. Civ. P. 11 (b) (1).

Defendant finally points to plaintiff's retention of a page

from defendant’s summary judgment papers that contained

confidential information and was requested,

and confirmed, returned.

The last contention is the most troubling to the Court.

Plaintiff erroneously received an unredacted copy of

defendant’s summary judgment brief. Page 16 of that brief

outlined certain aspects of the technology at issue in this

case. Despite defendant’s request that all copies of page 16

be returned, plaintiff appears to have kept a copy even after

assuring his attorney that all copies had been either

returned or destroyed. This conduct is indeed vexing to the

Court, as it constitutes willful disregard of the Court’s

protective order. Plaintiff claims that once this page was

released to him, he felt that the information therein could

not be withdrawn - he already knew it, regardless of

whether he retained the written proof — and was thus in “the

public domain...” Plaintiff's letter of April 116, 2002 to

VIII

Charles Kennedy, Esq. The Court strongly admonishes

plaintiff to honor the Court’s directives at all times, but

does not agree that this action alone is sufficient to justify

sanctions. In the future, similar conduct may be.

Defendant’s motion for sanctions under Rule 11 will be

denied.

Defendant’s Motion for Award of Attorney’s Fees Under

35 U.S.C. 285.

Defendant also moves for attorney’s fees under 35 U.S.C.

285 on the grounds that this is an “exceptional case.”

According to defendant, the case is exceptional because the

suit was frivolous and plaintiff engaged in misconduct as a

Pro Se litigant.

In order to award attorney’s fees under 285, the Court

must engage in a two-step analysis. First, the Court must

determine whether there is clear and convincing evidence,

that the cace is “exceptional.” If the Court so determines, the

Court must then decide whether an award of attorney’s fees

to the prevailing party is warranted. Enzo Biochem, Inc. v.

Calgene, Inc., 188 F.3d 1362, 1370 (Fed. Cir. 1999). The

second inquiry “permits the judge to weigh intangible as well

as tangible factors: The degree of culpability of the infringer,

the closeness of the question, litigation behavior, and any

other factors whereby fee shifting may serve as an instrument

of justice.” Superior Fireplace Co. v. Maiestic Products Co.,

270 F.3d 1358, 1378 (Fed. Cir. 2001).

A court may determine that a case is exceptional if there

has been “willful infringement, inequitable conduct before

the P.T.O., misconduct during litigation, vexatious or

unjustified litigation, and frivolous suit.” Hoffman-La Roche

Inc. v. Invamed Inc., 213 F.3d 1359, 1365 (Fed. Cir. 2000)

(citations omitted). Indeed, “[e]xceptional cases are normally

those involving bad faith litigation.” Brasseler, U.S.A. I. L.P.

v. Stryker Sales Corp., 267 F.3d 1370, 1380 (Fed. Cir. 2001).

Defendant argues that there has been significant

IX

misconduct by plaintiff during the course of the litigation.

For the reasons discussed above, however, the Court does not

agree that plaintiff's behavior rises to the level of exceptional.

Even if it could be considered exceptional, it does not

warrant the award of attorney’s fees to defendant. It is a

comerstore of our judicial system that each side bears its

own costs.

Defendant’s Motion to Strike

Defendant also moves to strike exhibit P6 of plaintiff's

motion to reconsider under Federal Rule of civil Procedure

12 (f). Exhibit P6 is a letter by plaintiff dated May 8, 2001 to

his attorney David Bursik, Esq., detailing his reaction to the

Court’s summary judgment decision. Defendant claims that

comments in the letter relating to the conduct of defendant’s

attorney are libelous.

Because the Court will deny plaintiff's motion for

reconsideration, defendant’s motion to strike will be denied

as moot. See Piascik-Lambeth v. Textron Automotive Co.,

Inc, 2000 WL 1875873, at *9 (D.N.H.

Dec. 22, 2000).

-

CONCLUSION

For the reasons discussed above, plaintiff's motion for

reconsideration will be denied. Defendant’s motion for

sanctions and for attorney’s fees, and its motion to strike will

be denied. Plaintiff's motion for sanctions will also be

denied as plaintiff has offered no evidence to support his

motion. An appropriate order is attached.

Dated: August 7, 2002

Alfred M. Wolin,

U.S.D.J.

X

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition

is not citable as precedent. It is a public record. This

disposition will appear in tables published periodically.

United States Court of Appeals for the Federal Circuit

02-1556

GARRY L. CAPUTO,

Plaintiff-Appellant,

v.

SEALED AIR CORPORATION (US),

Defendant-Appellee.

DECIDED: April 8, 2003

Before BRYSON, GAJARSA, and PROST, Circuit Judges.

PER CURIAM.

DECISION

Garry L. Caputo (“Caputo”’) petitions for review of the final

judgment of the United States District Court for the District

of New Jersey, finding no infringement of Caputo’s United

States Patent No. 4,579,516 (“the ‘516 patent”) by Sealed

Air Corporation (“Sealed Air”). Caputo v. Scaled Air

Corp., Civil Action No. 99-CV-482 (Sep. 3, 2002). Because

the district court properly interpreted the claims and found

no infringement of

the ‘516 patent by Sealed Air, this court affirms.

02-1556 2 BACKGROUND

Caputo is the patentee and owner of the “516 patent,

entitled “Forming Roller For Producing Air-Cushioning

Product,” which is directed to a forming roller used in the

production of air packaging or dunnage material commonly

known as “bubble wrap.” He has more than thirty-six years

experience in the packing products industry. Sealed Air is a

XI

New Jersey corporation that has been manufacturing

apparatuses for the production of air cushioning material

from the early 1960s. Sealed Air owns numerous patents

for methods and apparatuses for making bubble wrap.

Caputo first accused Sealed Air of infringement of the ‘516

patent in a June 4,1991 letter sent by his attorney to Sealed

Air. Sealed Air denied the charge. The denial apparently

concluded the matter until January 26, 1999, when

Caputo’s attorney again wrote Sealed Air, alleging once

again infringement of the ‘516 patent. In those intervening

eight years, the two parties had numerous contacts at

~ various trade shows and during a failed attempt to establish

a joint business venture.

Caputo sued Sealed Air on February 2, 1999 for

infringement of the ‘516 patent.

Caputo’s infringement allegation stems from his inspection

of certain bubble wrap produced by Sealed Air and his

analysis that, based solely on the appearance of the product,

Sealed Air must be using an infringing forming roller.

Sealed Air immediately moved for Rule 11 sanctions

against Caputo and his attorney, which were subsequently

denied without prejudice. Sealed Air also asserted that

Caputo be denied access to information regarding the

alleged infringing roller, arguing that it was protected as a

trade secret. The magistrate judge granted a protective

order on August 21, 2000, prohibiting Caputo, but not his

attorney or expert, from viewing material deemed 02-1556

3 confidential and submitted in conjunction with Sealed -

Air’s anticipated motion for summary judgment. That order

was subsequently affirmed by the district court. Pursuant to

the order, Caputo’s attorney and expert were allowed to

review the material submitted by Sealed Air with its motion

for summary judgment. The district court reviewed a report

from Caputo’s expert analyzing the Sealed Air materials

and a response from Sealed Air. In a memorandum opinion

XII

entered March 30, 2001, the district court granted summary

judgment of non-infringement in favor of Sealed Air. The

district court construed the claims of the ‘516 patent.

Caputo agreed that there was no literal infringement and

that only infringement under the doctrine of equivalents

was at issue.

The court found no equivalents in six of nine asserted claim

limitations.

Claim | of the ‘516 pa ent reads, in relevant part:

A forming roller for use with a heated thermoplastic film as

brought to this forming roll and when in contact

with an outer diameter surface portion of said roller is

vacuum-shaped and cooled to bring this heated film to a

condition whereat said film is weldable to another film, this

roller including:

(b) a central axial bore formed in this metal roller and

having a precise size and with a counterbore formed in each

end of the roller and substantially concentric with the axial

bore;

(d) a multiplicity of fluid-conducting passageways formed

longitudinally and substantially parallel to the axis of said

roll, each of these passageways open at each end toa

counterbore;. . . .“516 patent at col. 5, 1. 20 — col. 6, 1. 15

(emphases added). Independent claim 10 was also at issue.

Limitation (b) of claim 10 reads: “‘a central axial bore

formed in this metal 02-1556 4

roller and having a precise size.” ‘516 patent at col. 6, Il.

65-66 (emphasis added).

Other than this limitation, the district court found claims 1

and 10 similar in all respects.

On May 3, 2001, the district court granted Caputo-personal

access to re - ew the March 30, 2001 opinion, even though

the opinion contained restricted confidential information.

Based upon this review, Caputol filed a motion for

XIII

reconsideration on March 6, 2002, approximately eleven

months after the March 30, 2001 opinion. The court issued

a second opinion on August 8, 2002 addressing various

motions from both parties. The court dismissed Caputo’s

motion for reconsideration as untimely and denied both

parties’ motions for sanctions and attorney’s fees. The

court also reprimanded Caputo for retaining an unredacted

copy of a page from Sealed Air’s brief in support of its

motion for summary judgment (in violation of the

protective order), but nevertheless, declined to impose

sanctions. Final judgment was entered on September 3,

2002. Caputo appealed to this court and we have

jurisdiction pursuant to 35 U.S.C. § 1295(a)(1).

DISCUSSION

Our review of a grant of summary judgment of patent

infringement or noninfringement is plenary. Cole v.

Kimberly-Clark Corp., 102 F.3d 524, 528, 41 USPQ2d

1001, 1004 (Fed. Cir. 1996). We first determine whether

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits if any, show

that there is no genuine issue as to any material fact and

that the 1 From approximately this time until the present,

Caputo has been arguing this case pro se. 02-1556 5

moving party is entitled to a judgment as a matter of law.”

Unidynamics Corp. v. Automatic Prod. Int’i, Ltd., 157 F.3d

1311, 1316, 48 USPQ2d 1099, 1102 (Fed. Cir. 1998)

(quoting Fed. R. Civ. P. 56(c)). “In determining whether

there is a genuine issue of material fact, the evidence must

be viewed in the light most favorable to the party opposing

the motion, with doubts resolved in favor of the opponent.”

Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus.,

Inc., 145 F.3d 1303, 1307, 46 USPQ2d 1752, 1755 (Fed.

XIV

Cir. 1998). “[C]laim construction, as a purely legal issue, is

subject to de novo review on appeal.”

Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1451, 46

USPQ2d 1169, 1171 (Fed. Cir: 1998) (en banc). On appeal,

Caputo alleges a host of errors by the district court. They

can be reduced to the following: (1) Sealed Air continues to

infringe the ‘516 patent, as evidenced by the district court’s

April 4, 2001 opinion; (2) the district court improperly

granted trade secret status to Sealed Air’s roller; (3) Sealed

Air offered misleading evidence, testimony, and argument;

and (4) the burden to prove that the bubble wrap produced

by Sealed Air does not use Caputo’s patented process shifts

to Sealed Air under 35 U.S.C. § 295. “An infringement

analysis entails two steps. The first step is determining the

meaning and scope of the patent claims asserted to be

infringed. The second step is comparing the properly

construed claims to the device accused of infringing.”

~ Markman v. Westview Instruments, Inc., 52 F.3d 967, 976,

34 USPQ2d 1321, 1326 (Fed. Cir. 1995) (en banc) (internal

citation omitted), aff'd, 517 U.S. 370 (1996). Infringement

under the doctrine of equivalents requires an element-by-

element inquiry. Warner-Jenkinson Co. v. Hilton Davis

Chem. Co., 520 U.S. 17, 40, 41 USPQ2d 1865, 1876 02-

1556 6 (1997). Equivalence is determined by applying the

tripartite function-way-result test. Id. at 39, 41 USPQ2d at

1875. Under this test, an accused product is equivalent to a

claimed element if the accused element performs

substantially the same function in substantially the same

way to accomplish substantially the same result as the

claimed element. Graver Tank & Mfg. Co. v. Linde Air

Prods. Co., 339 U.S. 605, 608, 85 USPQ 328, 330 (1950).

The district court properly construed limitation (b) to mean

that the forming roller requires “a counterbore formed in

each end of the roller and substantially concentric with the

XV

axial bore.” The court noted that these counterbores

provided a reservoir for fluid that passes through limitation

(d). The district court construed limitation (d) to mean that

“within the roller is another set of longitudinally formed

water-conducting passageways that run substantially

parallel to [the] axis of the roller.” The district court noted

that at least one purpose of these passageways was to

control temperature along the roller during operation. We

find both these constructions to be correct.

The district court found no equivalent to limitations (b) and

-(d) of claim 1 of the ‘516 patent in Sealed Air’s accused

roller, and we will not disturb this finding .

2. At a minimum, the allegedly “equivalent” structure to

claim limitation (d) in Sealed Air’s accused roller controls

temperature (its “function”) in a way different than (i.e., not

substantially the same as) the ‘516 patent, thus failing at

least one prong of the tripartite test. See id. Finding no

equivalent to this element in Sealed Air’s forming roller is

by 2. The district court compared the properly construed

claims to the accused roller in more detail in its decision.

Since certain details of the roller are subject to a protective

order, however, we will not elaborate on its construction.

02-1556 7 itself sufficient to find no infringement under the

doctrine of equivalents. See Warner-Jenkinson, 520 U.S. at

40, 41 USPQ2d at 1876.

Moreover, even if Sealed Air’s forming roller did contain

equivalents to the “counterbores” of limitation (b) and to

the “passageways” of limitation (d), which it does not, we

note claim | presents those limitations in a precise

structural arrangement.

That is, the counterbores are “formed in each end of the

roller and substantially concentric with the axial bore,” and

the passageways are “formed longitudinally and

substantially parallel to the axis of said roll, each of these

passageways open at each end to a counterbore.” Similarly,

claim 10 only describes a “central axial bore,” a limitation

that does not change the outcome of our analysis. The

district court correctly noted that Sealed Air’s roller does

not contain these elements in such a precise arrangement.

Indeed, our review of the record finds that the two elements

are in a completely dissimilar arrangement than that of the

‘516 patent. We will not, as the district court did not,

remove these clear structural limitations from the patent in

an effort to find infringement under the doctrine of

equivalents. See Sage Prods., Inc. v. Devon Indus., Inc.,

126 F.3d 1420, 1426, 44 USPQ2d 1103, 1108 (Fed. Cir.

1997).

We have carefully considered the additional arguments

presented by Caputo in his brief and find them to be

without merit. Accordingly, the decision of the district

court is affirmed.

NO COSTS

XVII

United States Court of Appeals for the Federal

Circuit

ORDER

Before Bryson, Circuit Judge, Gajarsa, Circuit Judge, and

Prost, Circuit Judge.

A petition for rehearing having been filed by the

Appellant, Upon Consideration Thereof, it is

ORDERED that the petition for rehearing be, and same

hereby is, DENIED.

The mandate of the court will issue on May 6, 2003.

FOR THE COURT,

Jan Horbaly

Clerk

Dated: April 19, 2003

FILED: U.S. Court Of Appeals

For the Federal Circuit

Apr.29, 2003

cc. Garry L. Caputo

Charles P. Kennedy