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a United States District Court, Northern District of Illinois
Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 01C 7019 DATE 3/22/2002
CASE Illinois Tool Works, Inc. Vs. Powers Fasteners, Inc.
TITLE
{in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
Memorandum Opinion and Order

DOCKET ENTRY:

qd) a Filed motion of { use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) Oo Answer brief to motion due. . Reply to answer brief due.

(4) a Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at

(6) Oo Pretrial conference[held/continued to} [set for/re-set for] on set for at :

(7) oO Trial[set for/re-set for] on at

(8) joa (Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OGeneral Rule 21 CIFRCP41(a)(1) O FRCP41(a)(2).

(0) «=o [Other docket entry] Enter Memorandum Opinion and Order. We deny the motion to enforce the
scheduling order, we deny the request for deposition, we deny the motion for disclosure, and we direct
plaintiff to respond to the motion for summary judgment by July 15, 2002, with defendant to reply by
August 5, 2002.

dl) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court,
No notices required, umber of nties
Notis iled by judge’s staff.

‘tices mailed by judge's s MAY 2 3 2002
Notified counsel by telephone. date docketed

v | Docketing to mail notices.

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Mail AO 450 form, 18
Jocketing deputy initials
Copy to judge/magistrate judge.
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central Clerk's Office mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ILLINOIS TOOL WORKS, INC., )
)

Plaintiff, ) Pra

. alee

VS. ) No. 01 C 7019 ot.
) an 23

POWERS FASTENERS, INC., )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff has a patent, United States Patent No. 5,069,340, for a “Strip of Collated
Fasteners for Fastener-Driven Tool.” In a layman’s terms, the patent relates to a type of strips
of sleeves holding fasteners to feed through a nail gun. Plaintiff claims defendant infringes.
Defendant, among other things, argues that it clearly does not infringe either literally or by
application of the doctrine of equivalents. It moves for summary judgment on that ground.
Plaintiff complains that a scheduling order is already in place which provides for dispositive
motions by October 30, 2002, and claims it needs further discovery before it can respond. It
has moved to enforce the scheduling order, seeks time to complete expert analysis, wants to
depose a person who wrote a brochure for defendant, and moves to compel disclosure of all
other entities involved in the manufacture of the accused device. Contending none of that is
necessary before plaintiff responds, defendant asks for a rather tight briefing schedule.

The invention claimed in the patent and the product sold by defendant are simple and
straightforward: configured plastic strips with no moving parts. Plaintiff has samples of

defendant’s product, as originally and currently produced, and design drawings. While the

ae


No. 01 C 7019 Page 2

scheduling order does contemplate a dispositive motion schedule tied to October 30, 2002 (“on
or before”), that is not cast in stone any more than a contemplated trial date next March.
Patent litigation is generally an expensive undertaking. Ifit can be resolved early, or the issues
refined, we see no reason not to seek to do so. Claim construction is a legal issue, and the
outcome of claim construction may provide the answer to an equivalence claim. Perhaps
defendant can prevail on summary judgment, But even ifit cannot, that effort can be the run-
up to a Markman hearing, which the scheduling order now sets for September, if necessary.

But what does plaintiff really need before responding to the motion? We see no
purpose to be served at this time by a deposition of a brochure writer. Nor do we see the need.
for discovery from an Asian manufacturer and an Asian distributor, a complicated and
probably lengthy process. Plaintiff's contention that something might turn up falters in the
context of what is presently at issue, claim construction. But we think plaintiff is entitled to
present an expert analysis in an orderly fashion. Perhaps expert analysis will not carry the
day, if not for summary judgment, then in a Markman hearing. Perhaps plaintiff is seeking
to redefine common terms. Plaintiff is, however, entitled to try. And defendant is not put to
any expense from plaintiff so trying, unless it wishes to depose the expert or present an expert
of its own.

We deny the motion to enforce the scheduling order, we deny the request for deposition,
we deny the motion for disclosure, and we direct plaintiff to respond to the motion for
summary judgment by July 15, 2002, with defendant to reply by August 5, 2002.

Gomes . Morea

S\ JAMES B. MORAN
iS

ior Judge, U. S, District Court
Mow, DL, 2002.