The opinion of the court was delivered by: Joseph E. Irenas, S.U.S.D.J.
Presently before this Court is a motion for a preliminary injunction filed by Plaintiff Larami Ltd. ("Larami"), maker of Super Soaker water guns, claiming that Defendant Ohio Art Company ("Ohio Art") is infringing on its patents with its A.R.M. 4000XL water gun ("A.R.M."). Specifically, Larami claims that Ohio Art is infringing on two of its patents, No. 5,799,827 (the "827 patent") and No. 5,339,987 (the "987 patent"). The Court will deny Plaintiff's motion for a preliminary injunction.
Ohio Art is a longtime toy manufacturer best known for its Etch A Sketch drawing toy. The A.R.M. is a relatively new product that represents the first attempt by Ohio Art to enter the toy water gun market. The A.R.M. allows the user to strap the water gun onto his arm. As a result, unlike Larami's Super Soaker, only one arm is needed to operate the gun. A tank used to store water is worn on the user's back and is similar to a backpack. There is one connection between the tank and the "bladder" of the gun. The bladder is expandable, and the user of the gun pumps water from the tank into the bladder by flexing his arm. When the trigger of the gun is depressed and the valve is opened, water is forced out of the gun due to the pressure put on the water in the expandable bladder.
Larami is a subsidiary of Hasbro, Inc., a large toy manufacturer. The Super Soaker line of water guns has dominated the toy water gun market since its introduction in 1990 and Larami states that Super Soakers presently account for approximately 60% to 80% of total sales in the toy water gun market. Larami claims that sales in the toy water gun category have been declining as the market has matured and demand for high end water guns has declined.
Courts having jurisdiction of patent cases "may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable." 35 U.S.C. § 283. The Court of Appeals for the Federal Circuit has noted that "the standards applied to the grant of preliminary injunctions are the same in patent cases as in other areas of the law...." High Tech Medical Instrumentation, Inc. v. New Image Indus., Inc., 49 F.3d 1551, 1554 (Fed. Cir. 1995). Thus, a party seeking a preliminary injunction must demonstrate: (1) a reasonable likelihood of success on the merits; (2) irreparable harm if the injunction is not issued; (3) a balance of hardships in favor of the moving party; and (4) that the public interest favors the issuance of the preliminary injunction. Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001) (citing Reebok Int'l Ltd. v. J. Baker, Inc. 32 F.3d 1552, 1555 (Fed. Cir. 1994)).
In order to establish a likelihood of success on the merits, a movant must make a "clear showing" that the patent at issue is both valid and infringed by the accused device. Atlas Powder Co. v. Ireco Chemicals, 773 F.2d 1230, 1233 (Fed. Cir. 1985); see also, Amazon.com, at 1359; Nutrition 21 v. United States, 930 F.2d 867, 870 (Fed. Cir. 1991) (quoting Atlas Powder). Ohio Art does not dispute in this case that the patents at issue are valid. If a patentee succeeds in making a strong showing of validity and infringement, a presumption of irreparable harm is raised. See Purdue Pharma L.P. b. Boehringer Ingelheim GmbH, 237 F.3d 1359, 1363 (Fed. Cir. 2001); Reebok Int'l, 32 F.3d at 1556 ("A strong showing of likelihood of success on the merits coupled with continuing infringement raises a presumption of irreparable harm to the patentee."). For that reason, likelihood of success on the merits is often the primary issue in a motion for a preliminary injunction of alleged patent infringement. Accordingly, it is an essential element of Larami's motion that it carry its burden of demonstrating a likelihood of success on its claim that the Ohio Art's A.R.M gun infringes on the 827 and the 987 patents.
Generally, determination of the infringement of a patent is a two-step inquiry: first, the claims in the patent at issue must be construed to determine their scope and meaning; second, a comparison must be made between those claims as properly construed and the allegedly infringing device or process. Seal-Flex, Inc. v. Athletic Track and Court Construction, 172 F.3d 836, 842 (Fed. Cir. 1999); Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed. Cir. 1998); see also, generally, 5A Donald S. Chisum, Chisum on Patents, § 18.03 (2001). In order for infringement to be proved, it must be shown that the infringing device contains or "reads on" each and every limitation disclosed in a given patent claim. Mas-Hamilton, 156 F.3d at 1211; Amhil Enters. v. Wawa, Inc., 81 F.3d 1554, 1562 (Fed. Cir. 1996). Under the doctrine of equivalents, "a claim is infringed only if each limitation in the claim is found in the accused device, either literally or by a substantial equivalent." Vehicular Technologies Corp. v. Titan Wheel Int'l, Inc., 141 F.3d 1084, 1089 (Fed. Cir. 1998) (stating that something is a substantial equivalent if it performs the same functions "in substantially the same way, to produce substantially the same result.").
Although claims must be construed to determine infringement, a court need not arrive at a final and conclusive claim construction in deciding a motion for a preliminary injunction, see Sofamor Danek Group, Inc. v. DePuy-Motech, Inc., 74 F.3d 1216, 1221 (Fed. Cir. 1996), and the court's findings and conclusions regarding claim construction are not binding at trial, see Illinois Tool Works, Inc. v. Grip-Pak, Inc., 906 F.2d 679, 681 (Fed. Cir. 1990). In sum, the court's obligation at the preliminary injunction stage is only to determine the probability that infringement can be proved after a full presentation of the evidence at trial. Atari Games Corp. v. Nintendo of America, Inc., 897 F.2d 1572, 1575 (Fed. Cir. 1990); Dentsply Int'l, Inc. v. Great White, Inc., 132 F.Supp.2d 310, 315 (M.D.Pa. 2000).
Ohio Art argues that Larami's failure in its original brief to detail the alleged claim constructions on which it is basing its infringement claim has left Ohio Art unable to properly respond to the Plaintiff's motion. This argument is disingenuous, however, as the Certification of Jack Krafchick clearly lays out Larami's claim constructions. In the Krakchick Certification he states that Ohio Art is violating claims 1 through 34 of the 827 Patent and claims 1, 3, and 7 of the 987 Patent. Since the certification itself only includes claim constructions of claims 1, 2, and 3 of the 827 Patent and claims 1, 3, and 7 of the 987 Patent, this Court will only look at whether Larami has demonstrated a likelihood of success on the merits of those claims.