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METROLOGIC INSTRUMENTS, INC. v. PSC

December 13, 2004.

METROLOGIC INSTRUMENTS, INC., Plaintiff,
v.
PSC, INC., Defendant.



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

OPINION

This matter comes before the Court upon Plaintiff Metrologic's motion for summary judgment of infringement of Claims 8 and 10 of U.S. Patent No. 5,081,342 (the '342 patent) and Claims 1, 6 and 28 of U.S. Patent No. 5,343,027 (the 027 patent). Also before the Court are Defendant PSC Inc.'s motion for partial summary judgment of noninfringement and invalidity of U.S. Patent No. 5,637,852 (the '852 patent) as well as PSC Inc.'s motion for summary judgment under 35 U.S.C. § 287 on the '342 patent.*fn1

  I. BACKGROUND

  A. Procedural Posture

  Metrologic Instruments, Inc. ("Metrologic") brought this action for patent infringement against PSC Inc. ("PSC") on October 12, 1999, alleging that Defendant's products infringed Metrologic's United States Patent Nos. 5,637,852 (the '852 patent), 5,627,359 (the '359 patent), 5,789,731 (the '731 patent), 5,260,553 (the '553 patent), 5,343,027 (the '027 patent), 5,686,717 (the '717 patent), 5,828,049 (the '049 patent), and 5,081,342 (the '342 patent). PSC filed a counterclaim, seeking a declaratory judgment of non-infringement and alleging unfair competition under § 43 of the Lanham Act.

  This Court held a Markman hearing on August 6 and 7, 2002 to construe the claims at issue. After Defendant filed bankruptcy in December 2002, the case was administratively terminated on December 17, 2002. The case was reopened on July 18, 2003, after Defendant emerged from bankruptcy protection. In its lengthy Opinion of August 26, 2003, this Court set forth its construction of the disputed claim limitations in Metrologic's '359, '731, '852, '027, and '342 patents. Metrologic Instruments, Inc. v. PSC, Inc., 2003 WL 22077652 (D.N.J. Aug. 26, 2003) ("Markman Decision"). Metrologic filed its motion for reconsideration on an aspect of the decision relating to the multi-port '342 patent, which this Court denied on May 6, 2004.

  The present summary judgment motions were filed and briefed by the parties at the time of the Markman hearing. However, PSC's voluntary bankruptcy placed an automatic stay on this action and, by agreement of the parties, the motions were deferred pending the Markman Decision. Supplemental briefing was permitted on the present motions and the Court heard oral argument on October 1, 2004. B. Metrologic's Motion for Partial Summary Judgment of Infringement of Claims 8 and 10 of the '342 Patent and Claims 1, 6 and 28 of the '027 Patent

  Metrologic seeks partial summary judgment as to its assertion that PSC's Magellan, Magellan SL, HS1250, and VS1200 products (collectively, the "Magellan Devices") infringe claims 8 and 10 of the '342 patent and claims 1, 6, and 28 of the '027 patent.

  In the original summary judgment papers submitted to the Court, Metrologic identified ten limitations in the '342 patent claims: Limitation 1-5 within the preamble of independent claim 5, Limitations 6-8 within the body of claim 5, and Limitation 9 and 10 within the bodies of dependent claims 8 and 10, respectively. Metrologic asserted that the preamble contains affirmative limitations, which PSC disputed, and the parties disputed the meaning of Limitation 6-9. This Court determined in its Markman Decision that the preamble did not contain affirmative limitations. Moreover, this Court held that Limitation 8 was not a limitation and declined to construe it. This Court thus construed only Limitations 6, 7, and 9 of the '342 patent. See Markman Decision at *43. Similarly, for the '027 patent, Metrologic identified nine limitations, the meanings of two of which, Limitations 5 and 7, were disputed by the parties. The Court construed these two limitations.*fn2 Id.

  1. Claims 8 and 10 of the '342 Patent

  Metrologic asserts that the Magellan Devices infringe claims 8 and 10 of the '342 patent. Claim 8 depends from independent claim 5, and claim 10 depends from claim 8.

  The claims recite a device that processes digital input signals, such as signals from bar code scanners. The device accepts at least two digital input signals, such as an input from a high-speed, in-counter (or "slot") scanner and an input from a low-speed, hand-held scanner or light pen. (See '342 patent, 1:51-59.) Each digital input signal has two levels, such as low and high, representing the bars and spaces (or spaces and bars) on a bar code symbol. The input signals may be transmitted at different frequencies (or bit rates), based on the type of scanner and the resolution of the bar code symbol read. Some bar codes are "low density," such as those printed on a rough material, like cardboard, and others are "high density," such as those printed on a smooth material, like paper, and this will affect the frequency required to detect and process the bar code signal. (See id., 2:10-23.)

  The claimed device generates a plurality of predetermined frequencies. It does this by using a clock input 12 to generate a fundamental or reference frequency, e.g., 40 MHz, and then uses a series of dividers (clock divider circuitry 14) to generate frequencies stepping down from the fundamental frequency by successive factors of 2, e.g., 20 MHz, 10 MHz, 5 MHz, 2.5 MHz, 1.25 MHz, 625 kHz, 312 kHz, 156 kHz, 78 kHz, 39 kHz, 19.5 kHz, 9.25 kHz, 4.875 kHz, and 2.44 kHz. (See id., 4:47-50, 9:33-68.) Clock input 12 accepts a number of input signals (which are external to clock input 12) in order to generate the fundamental or reference frequency. The word "predetermined" "refers not to a precise starting frequency determined beforehand, but to the known set of divisions that are applied through the clock divider circuitry 14 each time the device is operated, which creates the plurality of frequencies." Markman Decision at *31.

  The claimed device measures the time duration of the high and low bar code signal levels using one of the plurality of frequencies previously generated. The device then produces digital data representing the measured time durations. The device measures the time durations by first selecting one of the predetermined clock frequencies using the clock mux*fn3 16, id. at *35, then counting the length of the high and low levels using the transition detector 24, the sequencing means 28, and the digitizing counting means 30. Id.; ('342 patent, 5:16-34.)

  The claimed device also includes a decoder for decoding the bar code signal information. This decoder decodes UPC and EAN bar codes, as well as a wide variety of other codes. (See '342 patent, 2:24-33.)

  2. Claims 1, 6 and 28 of the '027 Patent

  Metrologic asserts that the Magellan Devices also infringe claims 1, 6, and 28 of the '027 patent. Claims 1 and 28 are independent; claim 6 depends from claim 1.

  The claims recite a device that decodes digital data signals, such as signals from bar code scanners. Each digital data signal has two levels, such as low and high, representing the bars and spaces (or spaces and bars) on a bar code symbol. The device includes at least two data input ports, each of which is connected to a scanner, and each of which receives one of the digital data signals. The digital data signals are connected to a transition detector, which detects transitions from low to high and high to low. Sequencing means 28 and digitizing counting means 30 take the output of the transition detector and produce signal level transition data.

  The claimed device measures the time duration of the high and low bar code signal levels and produces digital data relating to the measured time durations. The device measures the time durations by using a fundamental or reference frequency, e.g., the output of clock input 12, and clock divider circuitry 14 to generate a plurality of frequencies. Clock mux 16 selects one of the plurality of frequencies and then counters 50 and 52 are used to count the length of the high and low levels. Markman Decision at *40.

  The claimed device also includes a controller that controls the operation of the clock mux 16 and the selected frequencies based on the signal level transition data produced by the transition detector. The device further includes a programmable decoder, e.g., programmable processor 26 or fixed program decoder 20, for processing the digital data to produce decoded symbol data representative of the bar code symbol being scanned. Markman Decision at *43. Decoded symbol data is transmitted to a host device, e.g., a computer, through a data output port. The device may be realized as an integrated circuit chip. ('027 patent, 20:22-30.)

  3. PSC's Accused Devices Relating to the '342 and '027 Patents

  "X," "Y," and "Z" were code names given to scanner designs that Spectra-Physics (which PSC acquired in 1996) developed beginning in 1993. The "X" became the VS1000/VS1200 models, released in 1994; the "Y" became the HS1250, released in 1995; and the "Z" became the Magellan, also released in 1994 (the Magellan SL was released in 1997). These models share much of the same internal design, but differ by virtue of their different scanning orientations: the VS1200 has a vertical scanning window, the HS1250 has a horizontal scanning window, and the Magellans combine a vertical and horizontal scanning window.

  Each of the four accused devices, the Magellan, Magellan SL, VS1200 and HS1250, contain a port for connecting an undecoded hand-held device, which PSC refers to as a "hand-held laser control" (HHLC) port. (See Latimer Dep., Metrologic Ex. 5, p. 160; HS1250 Marketing Brochure, Metrologic Ex. 16, p. 2 ("[p]eripheral port for undecoded handheld scanner"); VS1200 Marketing Brochure, Metrologic Ex. 17, p. 1("[p]eripheral port for undecoded scanner"); Magellan Marketing Brochure, Metrologic Ex. 29, p. 2 ("undecoded handheld scanner port").) The HHLC provides the input for connecting a slower speed hand-held device to the common decoding architecture of the high-speed scanner. (See Actis Dep. I, Metrologic Ex. 4, p. 33:4-8.)

  The outputs from the hand-held device and the high-speed device are provided to the DAT II ("Decoder by [Robert] Actis and [Andrew] Taussig") chip to decode barcode data. (See id.) The DAT II chip is a type of integrated circuit — an "ASIC" or "application specific integrated circuit." (See Actis Dep. I, Ex. 4, 82:16-23.) The Magellans use three DAT II chips, while the VS1200 and HS1250 each use a single DAT II chip. (See Magellan System Controller Diag. (Drawing 1-0244), Metrologic Ex. 6, p. 5 (PSC 0014699), items U25, U26, and U27; VS1000/VS1200 Mega-Main Diag. (Drawing 1-0249), Metrologic Ex. 7, p. 2 (PSC 0019728), item U7; HS1250 Speaker Main Diag. (Drawing 1-0260), Metrologic Ex. 8, p. 2 (PSC 0019784), item U9). Each of these representative drawings uses the same DAT II chip.

  There are several inputs to the DAT II chip. These include "undecoded auxiliary input and standard scanner input." (Actis Dep I, Metrologic Ex. 4, 79:16-23.) Standard scanner input uses the RTV~ and STV_BAR~ flip-flop to generate a BAR_HS (high speed) signal. (DAT II Theory of Operation, Metrologic Ex. 24, p. 7.) Auxiliary input, which could be a "single video data stream from an alternate scanning device (such as a wand)," can use the BAR LS (low-speed) input to the chip. (Id.)

  The DAT II chip generates a set of frequencies, which allows the device to "switch? from a high speed clock for a high performance scanner to a low speed clock for a slower data input from a wand, for example. (Id. at 13.) The chip does this by using a clock input circuit to generate a fundamental clock, called "CLK" ("that runs the entire chip," DAT II Theory of Operation, Ex. 24, p. 13), creating a cleaner version of the fundamental clock called CLOCK0, and then uses a series of flipflop circuits ("ripple counter divider," id.) to generate 16 clock frequencies (labeled CLOCK1-CLOCK 16) stepping down from the fundamental frequency (e.g. 40 MHz) by successive factors of 2. The DAT II chip "measure[s] and process[es] the relative time differences between bars and spaces in the [bar code] label." (Id. at 3.) The incoming signal from the bar code scanner is "converted into a series of 13 bit binary numbers by counting the number of cycles, of a fixed time base clock, between transitions of the signal (bar code edges)" (Id.)

  The "fixed time base clock" (INTVL_CLK) is the clock selected from the 16 clock frequencies generated to match the speed of the incoming data from the bar code scanner. (Id. at 13 ("INTVL_CLK can be selected, by the scanner controller, . . . [which] allows switching from a high speed clock for a high performance scanner to a low speed clock for a slower data input from a wand, for example.").) INTVL_CLK is selected using a group of four multiplexers shown in the middle of that DAT II Clock Generation Diagram. (Metrologic Ex. 23, p. 14, col. 4.)

  The counting of the 13-bit number is performed in the "front end" circuit. (See id. at 6.) This front end circuit includes a transition detector and a counter. The transition detector consists of the "front end state controller[, which] detects bar/space transitions." (Id. at 7.) The counter is a "13 bit parallel load ripple counter." (Id. at 8.)

  Also included in the "front end" circuit is a sequencer. Item 28 in the '027 patent and '342 patent is called "sequencing means." This sequencer is also termed a "control means." The DAT II chip also includes two decoders, termed "decoder 1" and "decoder 2." (See DAT II Top Level Block Diagram, Metrologic Ex. 23, p. 1 (PSC0020075); DAT II Theory of Operation, Metrologic Ex. 24, p. 4, item 3.) The decoders (also called "decode microprocessors" or "decode processors") can access the 13-bit binary numbers or count data (which are stored in RAM buffers) generated by the counters, and then the decoders "extract patterns from the counts, primarily by computing ratios of the numbers." (DAT II Theory of Operations, Metrologic Ex. 24, p. 3.) Each decoder "processes counts into decoded or partially decoded bar code label information." (Id. at 17.) Because the decode processors are microprocessors, they are programmable. Decoded symbol data is transmitted to a host device, e.g., a computer or controller, through a data output port.

  C. PSC's Motion for Partial Summary Judgment of Noninfringement of the '852 Patent

  Plaintiff Metrologic's '852 patent was filed on June 7, 1995, and issued on June 10, 1997. The patent claims priority as a continuation of U.S. Patent No. 5,216,232, which was filed on September 10, 1990. The '852 Patent is directed to a bar code scanner that sits above a counter and projects a narrow, dense pattern of light, the cross-section of which is patterned. The scanner is designed to read the bar code of objects placed within this dense pattern, regardless of its orientation. This is achieved by projecting many lines of laser light at different angles in front of the scanner. The ability to scan bar codes no matter what angle they face the scanner is beneficial because it allows a clerk at a high-volume check-out counter to scan items quickly, irrespective of their orientation. In addition, counter space, particularly at smaller and lower-volume retail establishments, is preserved by the scanner's placement above the counter. Although placement above the counter had previously caused scanners to inadvertently read bar codes of items located nearby, an additional benefit with this device is that items placed nearby are not scanned, due to the narrowness of the laser light. Thus, Metrologic's '852 patent discloses and claims an optical design capable of generating a scan pattern which is rich in scan lines and which has a scan pattern of narrow volume.

  II. DISCUSSION

  A. Legal Standards

  An infringement analysis is a two-step process. The first step is for the Court, as a matter of law, to construe the disputed claim terms. The second step is to compare the construed claims to the accused device to determine, as an issue of fact, whether all of the claim limitations are present in the accused device, either literally or by substantial equivalent. Karlin Tech., Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 971 (Fed. Cir. 1999). This Court has already completed the first step of the process, see Markman Decision, and now undertakes the second in the context of summary judgment review.

  A patent claim is infringed if every claim limitation finds correspondence in the accused device — either literally or by substantial equivalents. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 20 (1997). In determining literal infringement of claims written in means-plus-function language as provided for by 35 U.S.C. § 112, ¶ 6, "the relevant structure in the accused device [must] perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the [patent] specification." Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259, 1266-67 (Fed. Cir. 1999). Equivalence of structure is found when "the differences between the structure in the accused device and any disclosed in the specification are insubstantial." Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1309 (Fed. Cir. 1998) (emphasis added). The test for insubstantial differences is whether "the assertedly equivalent structure performs the claimed function in substantially the same way to achieve substantially the same result as the corresponding structure described in the specification." Odetics, 185 F.3d at 1267.

  Summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Karlin Tech., 177 F.3d at 970. Summary judgment is proper in patent infringement cases, when "no reasonable jury could determine that every limitation recited in the properly construed claim . . . is not found in the accused device." Karlin Tech., 177 F.3d at 974; SDS USA, Inc. v. Ken Specialities, Inc., 122 F. Supp. 2d 533, 536-37 (D.N.J. 2000). Moreover, Rule 56(e) provides that judgment "shall be entered," unless the nonmoving party offers specific facts contradicting the facts averred by the movant, which indicate that there is a genuine issue for trial. See Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888 (1990). If the evidence of the nonmoving party is "merely colorable or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). Summary judgment of infringement is proper after a court has conducted a Markman hearing and construed the claims. See, e.g., SDS USA, Inc., 122 F. Supp. 2d at 536.

  B. Metrologic's Motion on the '342 Patent

  As this Court declined to construe limitation 8 as an affirmative limitation, the parties are now only contesting the application of Limitations 6, 7, and 9 of the '342 patent against PSC's Magellan Devices.

  1. Claims 8 & 10, Limitation 6 — "means for generating a plurality of predetermined frequencies"

  Limitation 6 recites a "means for generating a plurality of predetermined frequencies." In its Markman Decision, this Court construed the function of the limitation as:
generat[ing] a plurality of predetermined frequencies, predetermined meaning that the division of the clock pulse frequency by two is a constant, fixed process which allows the frequency to always constitute half of its original number. "Predetermined" does not mean that the frequencies must be determined in advance, or that the frequency must be fixed conclusively or authoritatively beforehand.
Markman Decision at *32 (emphasis in original). This Court construed the corresponding structure of the means as:
Clock Input 12, which is either the Crystal Oscillator 13 or other External Clock 15, and the Clock Circuitry Divider 14. That is, the clock input 12 consists of a 40 MHz crystal oscillator or an equivalent external clock.
Id. (emphasis in original).

  This Court construed Limitation 6 to be a means-plusfunction element. "To determine whether a claim limitation is met literally, where expressed as a means for performing a stated function, the court must compare the accused structure with the disclosed structure, and must find equivalent structure as well as identity of claimed function for that structure." Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934 (Fed. Cir. 1987) (en banc) (emphasis in original). Having identified the corresponding structure of the recited means, the next question is whether the structure of the accused device is equivalent to Metrologic's patented structure. "[S]ection 112, paragraph 6, rules out the possibility that any and every means which performs the function specified in the claim literally satisfies that limitation." Pennwalt Corp., 833 F.2d at ...


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