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Levinson v. Sears

May 14, 1998


The opinion of the court was delivered by: Wolin, District Judge


Plaintiff Melvin L. Levinson's reconsideration motion denied; Court's Opinion and Order of October 31, 1997 affirmed; Levinson's summary judgment motion as to validity of U.S. Patent No. 5,094,865 granted and Levinson and defendant Sears, Roebuck & Company's cross-motions for summary judgment as to infringement or noninfringement of Claims 1, 3, 4, 7 and 13 of '865 patent denied.


The opinion of the court was delivered by: ALFRED M. WOLIN

The current case is before the Court on plaintiff pro se Melvin L. Levinson's November 10, 1997 motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on defendant Sears, Roebuck & Company's ("Sears") counterclaim alleging patent noninfringement or, alternatively, invalidity of U.S. Patent No. 5,094,865. Further, on said date, Levinson also filed a motion for reconsideration of this Court's Opinion and Order of October 31, 1997 ("the Order"). Thereafter, Sears cross-moved for summary judgment as to patent invalidity or, alternatively, for noninfringement. For the reasons stated herein, Levinson's reconsideration motion will be denied and the Order affirmed. Further, as to the cross-motions for summary judgment of validity or invalidity and infringement or noninfringement, the Court will grant Levinson's motion as to validity of Claims 1-4, 7-11, and 13 of the patent at issue *fn1, and deny both motions as to infringement of Claims 1, 3, 4, 7, and 13 pursuant to Federal Rule of Civil Procedure 78.


The majority of facts underlying the motions currently before the Court are set forth in this Court's Unpublished Opinion of October 31, 1997. The Court reiterates those facts as set forth herein. Levinson owns U.S. Patent Number 5,094,865 ("the '865 patent"), issued on March 10, 1992 for a Whirlpool microwave oven -- a "Two Stage Process for Cooking/Browning/Crusting Food by Microwave Energy and Infrared Energy." *fn2 (Compl. P 4.) On February 29, 1996, Levinson filed a Complaint that alleged that Sears had marketed and continued to market a product that infringed on the '865 patent. (See id. P 5.) Levinson alleged that Sears ignored "multiple Notices of Infringement, demands to make restitution for past infringement and demands to cease and desists [sic] its continuing infringement." (Id. P 11.) Consequently, Levinson sought an injunction, damages, costs, and attorneys' fees. (See id. at 6-7.)

Sears defended and counterclaimed on the grounds that the '865 patent was (1) not infringed and/or (2) was invalid and void for failing to comply with the patentability requirements set forth in 35 U.S.C. @@ 102 and 103. (See Def.'s Answ. at 7, PP 6, 7.) Sears also sought that Levinson be permanently enjoined from bringing infringement charges or acts of enforcement or suits based on the '865 patent, in addition to costs and attorneys' fees. (See id. at 9.)

Levinson then moved for disqualification of Sears' counsel -- Kevin W. Guynn, Esq. and Hill, Steadman & Simpson, his law firm. Levinson argued that Guynn and his assistant counsel Robert Rice acted unethically in threatening extensive litigation if Levinson did not accept a settlement offer. (See Appellant's Br. at 5.) Further, Levinson moved to disqualify Guynn because appellant expected to call him as a necessary witness; Guynn and Rice engaged in conversations with Levinson, observed a demonstration by Levinson, and sent documents to Levinson of which they allegedly had exclusive knowledge. (See id. at 6-7.) Sears opposed the motion to disqualify. Levinson also sought recusal of Magistrate Judge Pisano due to allegedly questionable impartiality (see id. at 11), alleged commission of numerous errors, and an alleged failure to address a preponderance of Levinson's claims. (See id. at 8.)

Magistrate Judge Pisano denied Levinson's motion without oral argument pursuant to Federal Rule of Civil Procedure 78. After Magistrate Judge Pisano denied Levinson's motion for reconsideration on August 4, 1997, Levinson appealed to this Court.

On October 31, 1997, this Court affirmed Magistrate Judge Pisano's Letter Order, finding that the decision was neither clearly erroneous nor contrary to law.

Levinson then moved for reconsideration of this Court's October 31, 1997 Opinion and Order, in addition to moving for summary judgment as to the validity and infringement of the '865 patent. On December 8, 1997, Sears filed its cross-motion for summary judgment as to the invalidity of the '865 patent or, alternatively, noninfringement, in addition to maintaining a request for fees and costs.


In the interest of justice, the Court will read Levinson's pro se petitions liberally. *fn3 See Boag v. MacDougal, 454 U.S. 364, 365, 70 L. Ed. 2d 551, 102 S. Ct. 700 (1982); Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), reh'g denied, 405 U.S. 948, 30 L. Ed. 2d 819, 92 S. Ct. 963 (1972); Todaro v. Bowman, 872 F.2d 43, 44 n.1 (3d Cir. 1989); Hurd v. Romeo, 752 F.2d 68, 70 (3d Cir. 1985).

I. Motion for Reconsideration

Under Local Civil Rule 7.1(g), the Court has reviewed plaintiff's motion for reconsideration of this Court's Opinion and Order of October 31, 1997, denying Levinson disqualification of opposing counsel, granting Sears' application for fees and costs expended in opposing the motion to disqualify, and denying recusal of Magistrate Judge Pisano.

Local Civil Rule 7.1(g) requires that the moving party set forth "concisely the matters or controlling decisions which counsel believes the Court has overlooked." Local Civil rule 7.1(g) does not contemplate a recapitulation of arguments considered by the Court before rendering its decision, see Carteret Savings Bank F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J.), modified, 919 F.2d 225 (3d Cir. 1990); nor does the Rule contemplate advancing arguments or facts which should have been advanced at the time of the original motion, see Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988).

A court may grant a properly filed motion for reconsideration for one of three reasons: (1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. See Database America v. Bellsouth Advertising & Pub., 825 F. Sup. 1216, 1220 (D.N.J. 1993) (quoting Weyerhaeuser Corp. v. Koppers Co., 771 F. Supp. 1406, 1419 (D. Md. 1991)). Motions to reconsider or reargue are granted "very sparingly." Maldonado v. Lucca, 636 F. Sup. 621, 630 (D.N.J. 1986).

A party must show more than a disagreement with the court's decision before a motion for reconsideration may be granted. See Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991). A motion for reconsideration is improper when it is used "to ask the Court to rethink what it had already thought through -- rightly or wrongly." Carteret Savings Bank, 721 F. Supp. at 706 (holding that mere "recapitulation of the cases and arguments considered by this Court before rendering its initial decision" did not warrant reargument.).

In addition, Local Civil Rule 7.1(g) has been interpreted consistently to restrict review to facts and legal arguments properly presented to the Court at the time the motion on which reargument is sought was initially decided. Thus, efforts to expand the record to include legal arguments not originally before the Court on a motion for reargument have been rejected. See Florham Park Chevron, 680 F. Supp. at 162; Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987).

Through this motion for reconsideration, Levinson fails to raise any issue that was overlooked by the Court and brings to the Court's attention no new case law or dispositive facts in support of his position. Levinson's papers raise only his disagreement with the Court's decision, which disagreement should be dealt with via the normal appellate process, not on a motion for reargument. See Florham Park Chevron, 680 F. Supp. at 163. Accordingly, Levinson has not provided a sufficient basis to merit reconsideration of the Court's earlier decision, and pursuant to Local Civil Rule 7.1(g) his motion for reconsideration of the Court's October 31, 1997 Opinion and Order will be denied.

II. Legal Precepts

A. Summary Judgment

Summary judgment shall be granted if "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 moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where a summary judgment motion is properly made and supported, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). If the adverse party fails to respond with a showing that there is a genuine issue for trial, "summary judgment, if appropriate, shall be entered against the adverse party." Id. In making this determination, the Court must draw all reasonable inferences in favor of the non-movant. See National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1581 (3d Cir. 1992).

The Court's function at the summary judgment stage of litigation is to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). An issue of material fact is genuine if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See id.; Coolspring Stone Supply, Inc. v. American States Life Ins, Co., 10 F.3d 144, 148 (3d Cir. 1993). Absent evidence sufficient to permit a jury to return a verdict for the non-moving party, there is no issue for trial, and summary judgment must be granted. See Anderson, 477 U.S. at 249. The validity issue presented in this case is appropriate for CASE RESOLUTION(S) by summary judgment.

B. Summary Judgment in Patent Infringement Litigation

The fact that this lawsuit involves a noninfringement analysis or the validity of a patent does not render this case unsuitable for CASE RESOLUTION(S) by summary judgment. Although patent infringement often cases often raise complex factual issues, "the rules do not change simply because the case involves patent law." Aid Pack, Inc. v. Beecham, Inc., 641 F. Supp. 692, 694 (D. Mass. 1986), aff'd, 826 F.2d 1071 (Fed. Cir. 1987) (citing D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1573 (Fed. Cir. 1985)). "Summary Judgment is appropriate in patent cases as in other cases under Rule 56(c)." Proctor & Gamble Co. v. Nabisco Brands, Inc., 711 F. Supp. 759, 761 (D. Del. 1989).

In fact, the Federal Circuit repeatedly has upheld the grant of summary judgment in patent infringement cases where there was no genuine issue of material fact. See, e.g., George v. Honda Motor Co., Ltd., 802 F.2d 432, 434 (Fed. Cir. 1986); Porter v. Farmers Supply Serv., Inc., 790 F.2d 882, 884 (Fed. Cir. 1986); Brenner v. United States, 773 F.2d 306, 308 (Fed. Cir. 1985); Builders Concrete, Inc, v. Bremerton Concrete Prods. Co., 757 F.2d 255, 257-58 (Fed. Cir. 1985); Prodyne Enterprises, Inc. v. Julie Pomerantz, Inc., 743 F.2d 1581, 1583 (Fed. Cir. 1984); Molinaro v. Fannon/Courier Corp., 745 F.2d 651, 654 (Fed. Cir. 1984).

Thus, the Federal Circuit has advised: "where no issue of material fact is present . . . courts should not hesitate to avoid an unnecessary trial by proceeding under Fed. R. Civ. P. 56 without regard to the particular type of suit involved." Chore-Time Equip., Inc. v. Cumberland Corp., 713 F.2d 774, 778-79 (Fed. Cir. 1983).

"In accordance with Chore-Time, it is incumbent on the trial judge to look beyond mere denials or arguments with respect to issues of scope and content of the prior art, differences between the prior art and the invention in suit, level of skill in the art or other factual issues." Union Carbide Corp. v. American Can Co., 724 F.2d 1567, 1571 (Fed. Cir. 1984).

The Court considers the current summary judgment motions with these tenets in mind.

III. A Patent Action

A. Jurisdiction

Since 1836, the federal courts have had exclusive subject-matter jurisdiction over all cases arising under the patent laws. See 28 U.S.C. @ 1338(a).

B. Presumption of Validity The Court's analysis proceeds under the presumption of a patent's validity. See 35 U.S.C. at 282. Each claim of a patent is presumed valid independent of the validity of the patent's other claims. See id. This presumption of validity is never destroyed. See Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530 (Fed. Cir. 1983). The burden on the party challenging validity is to show, by clear and convincing evidence, that the patent is invalid. See Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367 (Fed. Cir. 1987), cert. denied, 480 U.S. 947, 94 L. Ed. 2d 792, 107 S. Ct. 1606 (1987). In a patent infringement suit such as the instant case, the alleged infringer Sears challenges the patent's validity as a defense. The Court must decide whether the Sears has sustained its burden in proving the patent invalid. *fn4

There are two ways to establish that a patent is invalid: (1) prove that the patented invention does not meet one or more of the conditions of patentability, or (2) prove that the inventor did not satisfy one or more of the requirements of patentability.

In the current case, Sears' counterclaim alleging invalidity of Claims 1-4, 7-11, and 13 of the '865 patent is premised on the first ground for invalidity -- that the '865 patent failed to meet the conditions of patentability set forth in 35 U.S.C. @@ 102 and 103. (See Counterclaim P 7.) Sears' position is based on a straightforward reading of the patent's claims, Levinson's own admissions during his deposition, and Sears' own prior art search efforts which produced a number of prior art references not considered by the PTO during examination of Levinson's patent application which resulted in issuance of the '865 patent. (See Def.'s Br. at 1.) More specifically, Sears argues that prior art references "teach every feature or element of claims 1-4, 7-11, and 13 of the '865 patent either individually or in combinations of no more than two references. Thus, claims 1-4, 7-11, and 13 are invalid as being anticipated under 35 U.S.C. at 102(b) and/or obvious under 35 U.S.C. @ 103(a)." (Id. at 2.) Although Claims 1-4, 7-11 and 13 are at issue, the Court need only consider independent Claims 1 and 13 since the parties do not here argue that the dependent claims are separately patentable. See (infra) note 6.

Although courts are not bound by the Patent and Trademark Office ("PTO") of the Department of Commerce's decision to issue a patent, the PTO is due the deference given a qualified government agency that is presumed to have properly done its job. See American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1359 (Fed. Cir.), cert. denied, 469 U.S. 821, 83 L. Ed. 2d 41, 105 S. Ct. 95 (1984). Therefore, if a challenger comes forward with no evidence different from that reviewed by the examiner who considered the patent application, the challenger's task is difficult. See id. The challenger's task should be less difficult if the challenger presents material evidence that was not considered during the PTO application process. See id. at 1359-60. The burden of proof, however, is not lessened. See Gillette Co. v. S.C. Johnson & Son, Inc., 919 F.2d 720, 723 (Fed. Cir. 1990).

IV. Invalidity by Anticipation: 35 U.S.C. at 102(b)

A product is not patentable unless it is new. Determining whether a product is "new" within the meaning of the patent statute requires comparing the products with the products of the relevant prior art. See Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 619 (Fed. Cir.), cert. dismissed, 474 U.S. 976 (1985). If a single piece of relevant prior art contains all the elements of the patent at issue, the prior art is said to have anticipated the patent. See Structural Rubber Prods. Co. v. Park Rubber Co., 749 F.2d 707, 715-16 (Fed. Cir. 1984).

Under 35 U.S.C. at 102(b), a patent is invalid if the claimed invention:

was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the ...

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