NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

HOMELAND HOUSEWARES, LLC,

Plaintiff/Counterclaim Defendant-Cross Appellant,

AND

HASTIE2MARKET, LLC, C-SQUARED TV, INC.,

INFOMERCIAL CONSULTING CORPORATION,

BRENTWOOD CORPORATE SERVICES, INC.,

BABY BULLET, LLC, CAPITAL BRANDS, LLC,

AND DOES 1-10,

Counterclaim Defendants,

v.

SORENSEN RESEARCH AND DEVELOPMENT 

TRUST,

Defendant/Counterclaimant-Appellant.

______________________ 

2013-1345, -1383

______________________ 

Appeals from the United States District Court for the 

Central District of California in No. 11-CV-3720, Judge 

George H. Wu.

______________________ 

Decided: September 8, 2014

______________________ 
2 HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH

R. JOSEPH TROJAN, Trojan Law Offices, of Beverly 

Hills, California, argued for plaintiff/counterclaim defendant-cross appellant. With him on the brief was 

DYLAN C. DANG. 

PATRICIA A. SHACKELFORD, Law Office of Patricia A. 

Shackelford, of Encinitas, California, argued for defendant/counterclaimant-appellant. With her on the brief was 

CHRISTIAN FENTON, Law Office of Christian Fenton, of 

San Diego, California. 

______________________ 

Before LOURIE, BRYSON, and CHEN, Circuit Judges.

BRYSON, Circuit Judge. 

Declaratory judgment defendant Sorensen Research 

and Development Trust (“Sorensen”) appeals from the 

decision of the United States District Court for the Central District of California granting the plaintiff Homeland 

Housewares, LLC (“Homeland”) summary judgment of 

noninfringement of U.S. Patent No. 6,599,460 (“the ’460 

patent”). Homeland has conditionally cross-appealed 

from the district court’s decision granting Sorensen summary judgment of validity and denying Homeland’s 

motion for summary judgment of invalidity of the ’460 

patent. We affirm summary judgment of noninfringement 

and do not reach the invalidity cross-appeal.

I 

The ’460 patent recites a method for manufacturing 

“thin wall” plastic products by injection molding. Injection molding is a process in which molten plastic is injected under pressure into a mold shaped in the form of the 

desired final product, such as a plastic cup. 

Using injection molding to manufacture plastic products with thin walls can pose difficulties, because molten 

plastic cools and solidifies rapidly upon contact with a 
HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH 3

mold. In a thin-wall mold, cooling plastic may solidify 

and fill the parts of the mold near where the molten 

plastic is injected (referred to as the “injection gate”), 

blocking the further flow of plastic before the mold is 

filled. One solution to that problem, well known in the art 

of injection molding, is to use “flow chambers,” also known 

as “flow leaders.” Flow chambers are portions of a plastic 

mold that are relatively thick compared to adjacent thinwall sections. Because the flow chambers are thicker, 

they do not fill with solidified plastic before the molten 

plastic has filled the entire mold. Flow chambers can

therefore be used to direct molten plastic into adjacent

thin-wall portions of the mold that are relatively far from 

the injection gate and that might otherwise have been 

blocked off from the flow of molten plastic.

Under some circumstances, using injection molding to 

manufacture thin-wall plastic products can result in 

undesirable “gaseous voids” in the thin-wall portions of 

the final product. Such voids can result in gaps in the 

plastic walls, discoloration, or areas of reduced wall

strength.

Jens Ole Sorensen and Paul Brown—the named inventors of the ’460 patent—sought to solve the problem of 

gaseous voids in plastic products having thin walls that 

increase in thickness in the direction that the plastic 

flows in the mold during manufacturing. They discovered 

that they could eliminate the risk of gaseous voids in such 

products by ensuring that the wall thickness increased at 

less than a “threshold rate.” They did not discover how to 

calculate the threshold rate for any given mold under any 

given set of injection parameters. Instead, they discovered only that there is such a threshold rate, which they 

defined, with some circularity, as the rate below which 

gaseous voids are not observed for any given injectionmolding process.
4 HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH

Claim 1 is the primary independent claim in the ’460 

patent and is representative of the claims on appeal. The 

portions of claim 1 relevant to this appeal read as follows:

A method of injection-molding a product that includes at least one thin wall, comprising the steps 

of: 

(a) combining a plurality of mold parts to define 

a mold cavity for forming the product and at 

least one gate from which fluid plastic material may be injected into the mold cavity, 

wherein the mold cavity includes at least 

one thin-wall cavity section and at least two 

opposed flow chambers that adjoin opposite 

edges of the thin-wall cavity section for directing injected fluid plastic material . . . into . . . the at least one thin-wall cavity section

. . .

*** 

wherein . . . the thickness of the at least one thinwall cavity section increases in the general direction of flow within the flow chambers . . . at less 

than a threshold rate . . . .

’460 patent, col. 7, ll. 5-33 (emphases added).

II

Homeland manufactures the Magic Bullet and Baby 

Bullet food blender systems. Those products are sold with 

an assortment of plastic cups and mugs that fit directly 

onto the blender. Homeland uses a plastic injection 

molding process to manufacture the cups that are sold 

with the blenders. In that process, plastic is injected 

through an injection gate located at the part of the mold 

that forms the closed, bottom portion of the cup. The 

mold is shaped so that the completed cups have ribs that 

run lengthwise along the insides of the cups and that are 

slightly thicker than the adjoining plastic cup walls. 
HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH 5

In March 2011 Sorensen sent a cease-and-desist letter 

to Homeland accusing certain of Homeland’s plastic cups 

of infringing the ’460 patent. The following month, Homeland filed suit seeking a declaratory judgment that its 

cup-manufacturing process did not infringe the ’460 

patent and that the patent was invalid and unenforceable. 

Sorensen filed a counterclaim alleging infringement of the 

manufacturing process used to make three of Homeland’s 

cups: the Magic Bullet Short Cup, the Baby Bullet Storage Cup, and the Baby Bullet Short Cup.

After the district court issued a claim construction 

ruling and substantial discovery had been completed, 

Homeland moved for summary judgment of noninfringement. The district court granted Homeland’s motion on 

three primary grounds. First, the court found that 

Sorensen had no evidence to support its contention that 

the portions of the molds that formed the ribs along the 

cup walls were “flow chambers” that directed plastic into 

the allegedly thin-wall portions of the mold.

Second, the court found that Sorensen had not pointed 

to any evidence that the thickness of the walls of the 

accused cups increased at less than a threshold rate 

because there was no admissible evidence that the walls 

increased in thickness at all. The court ruled that three 

drawings submitted by Sorensen that depicted measurements of wall thickness increasing in the direction of flow

for each accused cup were unauthenticated and therefore 

inadmissible.

Finally, the district court determined that there was 

no evidence that Homeland’s accused manufacturing 

processes met the “threshold rate” limitation. The court 

had construed “threshold rate” to mean “the rate of increase in the thickness of the thin wall section as empirically determined by conducting test strips at the time the 

mold is made in order to prevent gaseous voids.” Because

there was no evidence that Homeland had ever performed 
6 HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH

empirical testing to determine a “threshold rate,” the

court found that there was no infringement under the 

court’s construction of that term.

After the entry of summary judgment of noninfringement, Homeland continued to prosecute its claim that the 

’460 patent was invalid for obviousness and for indefiniteness of the claim term “threshold rate.” The district 

court subsequently denied Homeland’s motion for summary judgment of invalidity and granted Sorensen’s crossmotion, holding that Homeland had presented insufficient 

evidence to create a genuine dispute of fact over the 

validity of the patent.

Sorensen subsequently took this appeal from the district court’s noninfringement ruling and the district 

court’s construction of the term “threshold rate.” Homeland cross-appealed from the district court’s ruling on 

validity. During oral argument, Homeland clarified that 

its cross-appeal was conditional and that it was asking us 

to reach the question of validity only if we reversed the 

district court’s claim construction.

III

1. Sorensen argues that the district court erred in 

holding that it had presented no admissible evidence to 

establish that the walls of the accused cups increase in 

thickness, as required by the ’460 patent. Sorensen 

points to three drawings offered through the declaration 

of Mr. Sorensen, one of the named inventors of the patent. 

Those drawings depict measurements of wall thickness 

that increase along the direction of plastic flow in a discrete “accused zone” of each accused cup. According to 

Sorensen, the measurements depicted in its drawings 

contradicted measurements offered by Homeland and 

thereby created a factual dispute over whether the accused products had walls of increasing thickness. 

Sorensen asserts that the district court erred when it 
HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH 7

found that the three drawings were inadmissible because 

they had not been authenticated. 

A careful review of the record in this case reveals that 

Sorensen did not present the district court with sufficient 

evidence from which a reasonable finder of fact could 

conclude that the measurements depicted in the three 

drawing were authentic. See Fed. R. Evid. 901(a) (“To 

satisfy the requirement of authenticating . . . an item of 

evidence, the proponent must produce evidence sufficient 

to support a finding that the item is what the proponent 

claims it is.”). In his declaration, Mr. Sorensen testified 

that the drawings were “based upon [Mr. Brown’s and Mr. 

Sorensen’s] physical examination of actual product samples.” Mr. Sorensen, however, acknowledged that he was 

not the one who measured the accused cups. Instead, the 

other inventor, Mr. Brown, was responsible for making 

the measurements and the drawings on which the measurements are depicted. Mr. Sorensen’s contribution to the 

drawings was limited to assigning Mr. Brown the task of 

producing drawings of products that might infringe the 

’460 patent. Sorensen has pointed to no other testimony 

from Mr. Sorensen that could serve to authenticate measurements that Mr. Sorensen did not himself take. His 

declaration is therefore inadequate to authenticate the 

measurements depicted in Sorensen’s three drawings. 

To the extent that Sorensen’s argument on appeal is 

that Mr. Sorensen’s declaration incorporated authenticating testimony from Mr. Brown by reference, that argument fails. In its brief opposing Homeland’s summary 

judgment motion in the district court, Sorensen cited two 

brief excerpts from Mr. Brown’s deposition. In those 

excerpts, totaling four and a half pages, Mr. Brown testified that he examined one of the three accused cups (the 

Magic Bullet cup), that he “found there was an increase in 

wall thickness . . . between the flow chambers” in that 

cup, and that he believed the difference in wall thickness 

was “sufficient to go beyond manufacturing tolerances.” 
8 HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH

Setting aside the fact that those excerpts do not mention 

the other two accused cups, Mr. Brown did not authenticate, or even mention, Sorensen’s three drawings, nor did 

he testify that the measurements depicted on those drawings were accurate. Instead, testimony from Mr. Brown 

that might have authenticated the drawings’ measurements occurred in a much later portion of the deposition, 

which was not before the district court. Sorensen failed to 

refer to that testimony in its brief in opposition to summary judgment, and it did not even include the relevant 

portions of the Brown deposition as an exhibit accompanying its brief. Sorensen cannot now rely on portions of 

the Brown deposition that were not presented to the 

district court at the time of the summary judgment motion. See In re Cygnus Telecomm. Tech., LLC, Patent 

Litig., 536 F.3d 1343, 1352-53 (Fed. Cir. 2008), quoting

Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 

1026, 1029-31 (9th Cir. 2001) (district court cannot be 

expected to “examine reams or file cabinets full of paper 

looking for genuine issues of fact” when the attorneys fail 

to point out the evidence that supports their case).

On appeal, Sorensen does not argue that the brief excerpts of Mr. Brown’s testimony that it cited to the district 

court were sufficient to create a factual dispute for a jury. 

Nor would such an argument be plausible given the 

conclusory nature of that portion of Mr. Brown’s testimony. See Moore U.S.A., Inc. v. Standard Register Co., 229 

F.3d 1091, 1112 (Fed. Cir. 2000) (“A party may not overcome a grant of summary judgment by merely offering 

conclusory statements.”); see also Regents of Univ. of 

Minn. v. AGA Med. Corp., 717 F.3d 929, 941 (Fed. Cir. 

2013), quoting Sitrick v. Dreamworks, LLC, 516 F.3d 993, 

1001 (Fed. Cir. 2008) (“Conclusory expert assertions 

cannot raise triable issues of material fact on summary 

judgment.”). 

Rather than relying on Brown’s conclusory statement 

in his deposition that he “found that there was an in-
HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH 9

crease in wall thickness . . . between the flow chambers” 

in the Magic Bullet cup, Sorensen makes a number of 

arguments attacking the wall-thickness measurements 

that Homeland provided in photographic form through 

the declaration of Joe Meyer. Sorensen asserts that 

Homeland’s measurements were not properly authenticated and that the district court applied a more lenient 

standard of authentication to Homeland’s measurements 

than it did to Sorensen’s. Sorensen also argues that 

Homeland’s measurements are flawed because they do

not represent the average wall thickness from two opposing sides of a cup, which Mr. Sorensen testified was the 

correct way to measure wall thickness. 

Sorensen’s arguments attacking Homeland’s measurements, however, miss the point. Under the Supreme 

Court’s decision in Celotex Corp. v. Catrett, 477 U.S. 316 

(1986), Homeland was not required to produce affirmative 

evidence of noninfringement. Instead, as the moving 

party that would not have the burden of proof at trial,

Homeland needed only to point out to the district court 

“the absence of evidence to support the nonmoving party’s 

case.” Id. at 325. Once that occurred, the burden shifted 

to Sorensen, the nonmoving party with the burden of 

proof, to “designate ‘specific facts showing that there is a 

genuine issue for trial.’” Id. at 324. Even if Homeland’s 

measurements were not properly authenticated and were 

otherwise flawed, that would not help Sorensen, as 

Sorensen had no authenticated evidence that the accused 

cups had walls of increasing thickness. The district court 

therefore correctly concluded that Sorensen had not met 

its burden under Celotex in opposing summary judgment.

2. As an alternative ground for summary judgment 

of noninfringement, the district court found that Sorensen 

had failed to produce any evidence that the accused cup 

molds have “flow chambers” that direct the flow of plastic 

into adjacent thin-wall areas. Sorensen did not conduct

testing of its own to determine whether molten plastic 
10 HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH

flowed from the thicker rib-forming portions of the accused molds into the adjacent walls. Instead, Sorensen 

relied on evidence that Homeland generated and offered 

in an effort to prove noninfringement with respect to the 

“flow chambers” limitation. Sorensen argued that Homeland’s evidence actually proved infringement. Additionally, Sorensen sought to undercut the probative value of 

other evidence that Homeland offered to prove noninfringement with respect to the flow-chambers limitation. 

In an effort to demonstrate that molten plastic in the 

accused molds does not flow from the rib-forming portions

to the adjacent walls, Homeland produced a series of 

“short shots.” The short shots are a set of incomplete, 

partially formed cups that are intended to show how 

plastic flows through an accused mold during production. 

Each cup in the series is made by partially filling an 

accused mold with plastic; each time, the mold is filled

with somewhat more plastic than the time immediately 

before. The first cup in the series therefore consists of 

just the bottom portion of a cup, while the final one is an

almost completely formed cup that is missing only the cup 

rim. The ridge that forms the top of each short shot is

called the “flow front.” The flow front shows how far the 

plastic in the mold had flowed in each partially formed 

cup. 

The flow fronts of each of Homeland’s short shots exhibit a slight scalloping around the four ribs of each 

partially formed cup. Even though each of the four ribs in 

each of the short shots is a different height, the flow 

fronts slope gently downward on either side of each rib. 

Before the district court, the parties offered competing

interpretations of the short-shot evidence. Homeland 

argued that the short-shot flow fronts do not resemble the 

flow fronts illustrated in the ’460 patent, which are highly 

scalloped relative to the flow chambers. Homeland therefore asserted that plastic in the accused molds does not 
HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH 11

flow as required by the ’460 patent. Sorensen, on the 

other hand, offered the declaration of Mr. Sorensen, who 

explained that one could establish the direction of plastic 

flow in a mold by drawing a series of lines perpendicular 

to the flow front. Because such lines drawn with respect 

to the slightly concave flow fronts of the Homeland short 

shots would intersect the ribs, Mr. Sorensen asserted that 

the short shots prove that plastic flows from the ribforming portions to adjacent walls in the accused molds. 

While Sorensen is entitled to rely on evidence offered 

by Homeland as affirmative evidence of infringement, the 

short-shot evidence does not help Sorensen. 

As Sorensen itself argues on appeal, the short shots 

were not made with the same injection-molding parameters used to make the accused cups. The record shows 

that the accused cups are manufactured with an injection 

pressure value between 100 and 120 and an injection 

speed of 35 cubic centimeters per millisecond (cm3/ms). 

The short shots, however, were manufactured with injection pressures ranging from 40 to 70 and injection speeds 

ranging from 40 to 50 cm3/ms. Sorensen did not offer any 

evidence to explain why short shots made with a different 

process than the accused processes are probative of how 

plastic flows in the accused processes. 

Mr. Sorensen, who was not offered as an expert, testified that the opinion he formed about the short shots was 

based on his experience in the field of plastic injection 

molding. Even assuming his testimony would be admissible as lay opinion evidence, see Fed. R. Evid. 701, he did 

not explain why the evidence of short shots that were 

made under different conditions nonetheless proved that 

the accused processes infringed.

As in the case of the wall-thickness limitation, 

Sorensen’s showing on the “flow chambers” limitation 

failed to satisfy the requirements of Celotex. Sorensen’s

affirmative evidence that plastic flows from the rib-
12 HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH

forming portions to the adjacent walls in the accused 

molds during manufacturing consists solely of a lay 

opinion based on observations of the output of a process

that is different from the accused process. As the district 

court held, that is not sufficient evidence from which a 

jury could find that Sorensen has met its burden to prove 

that the accused injection-molding processes use flow 

chambers to direct the flow of plastic in the mold. 

Sorensen contends that statements made in two prior 

art patents and in the specification of the ’460 patent are 

sufficient to create a factual dispute over the “flow chambers” limitation. Those statements, Sorensen asserts, 

“show that it was known and understood in the prior art 

that the thicker walled sections of a mold cavity that form 

the flow chambers or ribs feed plastic resin into adjacent 

thin-wall cavity sections.” The prior-art patents that 

Sorensen points to, however, describe thin-walled plastic 

lids of the sort used, for example, on coffee cans and that 

have thinner walls than those on Homeland’s cups. 

Because those patents describe products that are completely different from Homeland’s accused cups, they are 

not probative of infringement. Likewise, the statement in 

the ’460 patent that “[s]ome thin-wall portions of some 

plastic products” use flow chambers to direct the flow of 

plastic into adjacent walls, ’460 patent, col. 1, ll. 13-17, 

says nothing about how plastic flows in the accused 

molds.

Finally, Sorensen attacks the significance of “dye 

tests” conducted by Homeland and offered through the 

declaration of Mr. Meyer to prove noninfringement. 

Those tests purportedly trace the flow of plastic in a mold

by placing red dye at certain locations in the mold and 

then observing how the dye has spread in a finished 

product. Sorensen offered evidence that Homeland’s dye 

tests were not reliable and were not properly admitted 

through the testimony of Mr. Meyer, a nonexpert witness. 

Even assuming that the dye tests are unreliable, however, 
HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH 13

Sorensen is still left with no affirmative evidence to 

support its infringement case with respect to the “flow 

chambers” limitation. Because Sorensen failed to meet its 

burden under Celotex, summary judgment of noninfringement was properly granted on the “flow chambers” 

issue. 

3. Because Homeland was entitled to summary 

judgment of noninfringement on both grounds discussed

above, we do not need to address the district court’s 

construction of the claim term “threshold rate,” which was 

not implicated in the two portions of the court’s summary 

judgment decision reviewed above. As to the district 

court’s third ground for summary judgment of noninfringement, which relied on the court’s construction of the 

term “threshold rate,” we need not and do not address 

that ground for decision.

At oral argument, Homeland clarified that it was asking us to reach the validity of the ’460 patent, as raised in 

its cross-appeal, only if we modified the district court’s 

construction of the term “threshold rate.” Because we 

have decided this case without addressing the construction of “threshold rate,” we decline to reach Homeland’s 

invalidity cross-appeal.

Sorensen also argues that the district court abused its 

discretion when it denied Sorensen’s motion to revise (i.e., 

reconsider) the summary judgment of noninfringement. 

Sorensen asserts that the district court should have 

reconsidered its grant of summary judgment after it was 

discovered that Mr. Meyer’s declaration contained the 

false statement that the short shots were made according 

to the same injection-molding process that was used to 

make the accused products. The false nature of Mr. 

Meyer’s statement, however, does not change the fact that 

Sorensen had no affirmative evidence of infringement. In 

fact, the revelation that the short shots were made using 

a different injection-molding process from that used to 
14 HOMELAND HOUSEWARES, LLC v. SORENSEN RESEARCH

make the accused cups substantially undermines the force 

of Sorensen’s reliance on the short-shot evidence as affirmative evidence of infringement. In any event, Mr. 

Meyer’s false statement did not relate to whether the 

walls of the accused cups increase in thickness, which was

an alternative and independent ground of noninfringement. The district court therefore did not abuse its discretion by denying Sorensen’s motion for reconsideration.

Finally, Homeland has requested sanctions against 

Sorensen for filing this appeal, which it characterizes as 

frivolous. Homeland’s request is rejected, however, because Homeland did not comply with the requirements of 

Rule 38 of the Federal Rules of Appellate Procedure, 

which requires that a request for sanctions for a frivolous 

appeal be filed as a separate motion, not simply included 

in the appellee’s brief. See Riverwood Int’l Corp. v. R.A. 

Jones & Co., 324 F.3d 1346, 1358-59 (Fed. Cir. 2003); 

Nordberg, Inc. v. Telsmith, Inc., 82 F.3d 394, 398 (Fed. 

Cir. 1996). In any event, we do not view this case as an 

appropriate case for sanctions based on a frivolous appeal.

AFFIRMED