N OTE : This disposition is nonprecedential.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, CA PITAL BRANDS, LLC,

AND DOES 1

- 10, Counterclaim Defendants,

v.

SORENSEN RESEARCH AND DEVEL OPMENT 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

______________________HOMELAND HOUSEWARES , LLC v. SORENSEN RESEARCH 2

R. J OSEPH T ROJAN , Trojan Law Offices, of Beverly Hills, California, argued for plaintiff/counterclaim d efendant

- cross appellant. With him on the brief was D YLAN C. D ANG

.

P ATRICIA A. S HACKELFORD , Law Office of Patricia A. Shackelford, of Encinitas, California, argued for defen dant/counterclaimant

- appellant. With her on the brief was C HRISTIAN F ENTON , Law Office of Christi a n Fenton, of San Diego, California.

______________________

Before L OURI E , B RYSON , and C HEN , Circuit Judges.

B RYSON , Circuit Judge

. Declaratory judgment defendant Sorensen Research and Development Trust (“Sorensen”) appeals from the decision of the United States District Court for the Ce ntral District of California granting th e p laintiff Homeland Housewares, LLC (“Homeland”) summary judgment of noninfring ement of U.S. Patent No. 6,599, 460 (“the ’460 patent”). Homeland has conditionally cross

- appealed from the district court’s decision granting Sorensen su mmary judgment of vali dity and denying Homeland’s motion for summary judgment of invalidity of the ’460 patent . We affirm summary judgment o f noninfringement and d o not reach the invalidity cross

- appeal.

I
The ’460 patent recites a method for manufactu r ing “thin wall” plastic products by injection molding . Inje ction molding is a process in which molten plastic is injec ted under pressure into a mold shaped in the form of the desired final product, such as a plastic cup.
Using injection moldi ng to m anufactur e plastic pro ducts with thin walls can pose difficulties, because molte n plastic cools and solidifies rapidly upon contact with aHOMELAND 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 portion s of a plastic mold that are relatively thick compared to adj a cent thin

wall section s

. Because the flow chambers are thicker, they do not fill with solidified plastic before the molten plastic has filled the entire mold . F low chambers can therefore be used to direct molten plastic into adj a cent 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 i njection mol d ing to manufacture thin

- wall plastic products can result in undesirable “ gaseous voids” in the thin

- wall port ions of the final product. Such voids can result in gaps in the pla stic wall s , discoloration, or area s of reduced wall strengt h.

Jens Ole Sorensen and Paul Brown

— the named i nventors of the ’460 patent

— sought to solve th e problem of gaseous voids in plastic products having thin walls that increase in thickness in the direction that the plastic flow s in the mold during manufacturin g. They discovered that they could eliminate the risk of gaseous void s 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 parame ters. Instead, t hey disco vered only that there is such a threshold rate , which they defined , with some circularity, as the rate below which gaseous voi ds are not ob served for any given injection

molding process.HOMELAND HOUSEWARES , LLC v. SORENSEN RESEARCH 4

Claim 1 is the primary independent claim in the ’460 patent and is representative of the claims on appeal. The portions of c laim 1 relevant to t his appeal read as follows:
A method of injection

- molding a product that i ncludes at least one thin wall, comprising the steps of:
(a) combining a plurality of mold parts to d e fine a mold cavity for forming the product and at least one gate from which fluid pla s tic mat erial may be i n jected into the mold cavity, wherein the mold cavity includes at least one thin

- wall cavity section and at least two

op posed flow chambers that a d join opp o site edges of the thin

- wall cavity section for d irecting injected fluid plastic mat e rial . . . i nto . . . the at least one thin

- wall cavity section

. . . *** wherein . . . the thickness of the at least one thin

wall cavity section increases in the ge n eral dire ction of flow within the flow cha m bers

. . . at less than a threshold rate

. . . . ’460 patent, col. 7, ll. 5

- 33 (emph ases 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

on to the blender. Homeland uses a plastic injection molding process to manufacture the cups that are sold with the blenders

. In that process, p lastic 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 inside s 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, Hom eland filed suit seeking a declaratory judgment that its

cup

- manufacturing process did not infringe the ’460 patent and that the patent was invalid and unenforcea ble

. 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 Sto rage Cup , and the Baby Bullet Short Cup.

After the district court issued a claim construc tion ruling and substantial discovery had been completed, Homeland moved for summary judgment of noninfring ement. Th e district court granted Homeland’s motion on three primary grounds. First, the court found that Sorensen had no evidence to support its c ontention that the portions of the molds that form ed 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 increase d in thickness at all. The court ruled that three drawings submitted by Sorensen that depicted measur ements of wall thickness increasing in the direction of flow for each accused cup were unauthenticated and therefore inadmissible.
Finally, the district court determined t hat there was no evidence that Homeland’s accused manufacturing

processes met the “threshold rate” li mitation. The c ourt had construed “threshold rate” to mean “the rate of i ncrease in the thickness of the thin wall section as empir ically determined by conducting test strips at the time the

mo l d is made in order to prevent gase ous voids.” Because there was no evidence that Home land had ever performedHOMELAND HOUSEWARES , LLC v. SORENSEN RESEARCH 6

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 o f noninfring ement, 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 su mmary judgment of inval idity and granted Sorensen’s cross

motion, 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 di strict court ’ s noninfringement ruling and the district court’s construction of the term “threshold rate.” Hom eland 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 accuse d cups increas e 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 di screte “accused zone” of each accused cup. According to Sorensen, the measurements depicted in its drawings contradict ed measure ments offered by Homeland and thereby create d a factual dispute over whether the a cc used products ha d walls of increasing thickness

. Sorensen asserts that the district court erred when itHOMELAND 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 t hat 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 aut henticating . . . 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 sa mples.” 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 mea surements are depicted. Mr. Sorensen’s contribution to the drawings w as 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 fro m Mr. Sorensen that could serve to authenticate mea surements 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 authentica ting testimony from Mr. Brown by reference, that arg ument fail s. 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. Br own test ified 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 tha t
cup, and that he believed the difference in wall thickness was “sufficient to go beyond manufacturing tolerances.”HOMELAND HOUSEWARES , LLC v. SORENSEN RESEARCH 8

Setting aside the fact that those excerpts do not mention the other two accused cups, Mr. Brown did not authent icate , or even mention, Sor ensen’s three drawing s , nor did he testify that the measurements depicted on those dra wings were accurate. Instead, testimony from Mr. Brown that might have authenticated the drawings’ measur ements 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 su mmary judgment, and it did not even include the relevant portions of the Brown deposition as an exhibit acco mp any ing 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 m otion. 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 th at supports their case).
On appeal, Sorensen does not argue that the brief e xcerpt s of Mr. Brown’s testimony that it cited to the district
court w ere sufficient to create a factual dispute for a jury

. Nor would such an argument be plausible given the

conc lusory nature of that portion of Mr. Brown’s testim ony. See Moore U.S.A., Inc. v. Standard Register Co. , 229 F.3d 1091, 1112 (Fed. Cir. 2000) (“A party may not ove rcome a grant of summary judgment by merely offering conclusory statements.”); s ee also Rege nts 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 i n-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 me asurements that Homeland provided in photographic form through the declaration of Joe Meyer. Sorensen asserts that Homeland’s measurements were not properly authent icated and that the district court applied a more lenient standard of authentication to Hom eland’s measurements than it did to Sorensen’s . Sorensen also argues that Homeland’s measurements are flawed be cause they do
not represent the average wall thickness from two oppo sing sides of a cup, which Mr

. Sorensen testified was the correct way to mea sure wall thickness.

S orensen’s arguments attacking Homeland’s mea surements, 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 non in fringement. 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 burde n shifted
to Sorensen, the nonmovin g 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 ha d no authenticated evidence that the accused cups ha d walls of increasing thickness

. The district court therefore correctly concluded that Sorensen had not met its burden under Celotex in opposing summary judgme nt.

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 ha ve “flow chambers” that direct the flow of plas tic into adjacent thin

- wall areas. Sorensen did not conduct testing of its own to determine whether molten plasticHOMELAND HOUSEWARES , LLC v. SORENSEN RESEARCH 10

flowed from the thicker rib

- forming portions of the a ccused molds into the adjacent walls

. Instead, Sorensen relied on evidence that Homeland generated and offered in an effor t to prove noninfringement with respect to the “flow chambers” limitation . Sorensen argued that Hom eland’s evidence actually proved infringement . Additiona lly, Sorensen sought to undercut the probative value of other evidence that Homeland offered to prove noni nfringement with respect to the flow

- chambers limitation

. In an effort to demonstrate that molten plastic in the accused mol ds d oes not flow from the rib

- forming portions to the adjacent walls, Homeland produced a series of “short shots.” The sh ort shots are a se t 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 pa rtially 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 form s the top of each short shot is called the “flow front.” T he flow fro nt 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 e xhibit a slight scalloping around the four ribs of each partially formed cup. Even though each of the four ribs in each of the short shot s is a different height, the flow fronts slope gently downward on either side of each rib.

Before the district court, the parties offered competing interpreta tions 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 ther efore assert ed that plastic in the ac cused molds does notHOMELAND HOUSEWARES , LLC v. SORENSEN RESEARCH 11

flow as required by the ’460 patent. Sor ensen, 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 th e flow front. Because such lines drawn with respect to the slightly concave flo w fronts of the Homeland short shots would intersect the ribs , Mr. Sorensen assert ed that the short shots prove that plastic flows from the rib

forming portions to adjacent walls in the accused molds.

While Sorensen is entitled to rely on evidence offered by Homeland as affirmative evidence of infringe ment , the short

- shot evidence does not help Sorensen.

A s Sorensen itself argues on appeal, the short shots

were not made with the same injection

- molding param eters 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 (cm 3 /ms). The s hort shots, however, were manufactured with inje ction pressures ranging from 40 to 70 and injection speeds ranging from 40 to 50 cm 3 /ms. Sorensen did not offer any evidence to explain why short shots made with a different process than the accused process es are probative of how plastic flows in the accused processes. Mr. Sorensen, who was not offered as an expert, test ified 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 admi ssible 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 chamber s ” limitation failed to satisfy the requirements of Celote x. Soren sen ’s affirmative evi dence that plastic flows from the rib

-HOMELAND HOUSEWARES , LLC v. SORENSEN RESEARCH 12

forming portions to the adjacent walls in the ac cused mol ds during manufacturing consists solely of a lay opinion base d 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 So rensen 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

s ufficient to creat e a factual dispute over the “flow cha mbers” limitation . Those statements, Sorensen as serts, “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 t h ose patents describe products that are co mpletely 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 cha mbers 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 decl aration 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 observ ing 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 un reliable, 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 noni nfringement was properly granted on the “flow chamber s ” issue.

3. Because Homeland was entitled to summary judgment of noninfringement on both grounds d iscussed 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 noni nfringement, 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 as king 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 constru ction 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. Soren sen 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 inj ection

- 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 m ade using a different injection

- molding process from that used toHOMELAND HOUSEWARES , LLC v. SORENSEN RESEARCH 14

make the accused cups substantially undermine s the force of Sorensen’s reliance on the short

- shot evidence as a ffirmative 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 noninfring ement. The district court therefore did not abuse its di scretion by denying Sorensen’s motion for reconsideration.
Finally, Homeland has requested sanction s 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 appropria te case for sanctions based on a frivolous appeal.

AFFIRMED