Treading Water
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I am truly hoping for the best from SOLM
and it would just tickle me to death
to not only see Technipower go through
the roof, but also see Toyota get flamed in the
lawsuit.. that would be sweet..
There is one other company I have been following
very closely that you guys "might" want to look at..
Its CBAI... They too are super cheap right now
but poised for greatness.. So some DD and
I think you will see what I mean..
Good luck to everyone and GO SOLM!!!!!!
Kip
U.S. ARMY
Ben,
I am just outside of Baltimore
near Westminster.. PM me, we'll go
for a beer..
Kip
U.S. ARMY
Does anyone know the
Number of Share Holders of Record
that CBAI has? I am curious
as to just how many of us there
are that are going to be FRIGGING RICH!!!!
Dew, you gonna take us for a ride on your
yacht??? I'll buy the beer!!
Kip
U.S. ARMY
Mobiaus,
I tend to dissagree, yeah there is only a
million or so of trading each day, but
there is way too much activity, for this
thing to be dead..
That may be the optomist in me though..
Kip
U.S. ARMY
John,
I think your right.. Way too much stuff
going on.. Somebody knows something or this
stock would have gone by the wayside a few
months back...
We are all in it for the long haul..
Kip
U.S. ARMY
Dew,
Oh... Well color me stupid..
Sorry about that..
Kip
U.S. ARMY
Pete,
Thank you sir, much appreciated.
Being in Maryland, I don't realy have
access to the company. However, people
such as yourself, who are in the area,
are invaluable to us.
Keep the good info and insight coming.
We will all benifit down the road.
I believe this company is on the right
track. I dont think for a minute they
would waste money on a sketchy lawsuit.
Hopefully they will come out on top this
go around..
Kip
U.S. ARMY
All these Legal Motions lead me to believe
that something is going on...
I also tend to think that with all the bashing
going on, the bashers are intenionally trying
to keep this stock down so that they can buy
up more before HGLC surfaces from this
Legal black hole.. Do they know something we dont???
I am holding on to mine.. it wont kill me.
Kip
U.S. ARMY
Randy218,
I agree with you.. I think this go around
they are making sure all their ducks are in a
row..
The last attempt seemed to go off a bit half-cocked.
They need to nail Toyota, and do it hard!!!
Kip
U.S. ARMY
This is just my opinion, but if there are
only 2.2M outstanding shares left, then I
think we as long time shareholders should
try and buy up as much as possible as quick
as we can.
That way "WE" are the ones rewarded when
CBAI makes its run.. Leave the others
in the dark and without shares, it will make
them want what we have even more...
Absense makes the heart grow fonder. yadda yadda.
Kip
U.S. ARMY
Why did they change their symbol from ZIPN to ZIPZ???
Are they trying to come off as a brand new company?
Kip
U.S. ARMY
Hopefully, they will put together a winning team.
At this point they need to be very aggressive.
Kip
U.S. ARMY
GTX Corp and BrickHouse Security Team to protect the 2,000 children reported missing daily with GPS personal location solutions
New iPhone utility App - Code Mobile - from GTX Corp, together with the BrickHouse Child Locator, use the most advanced GPS PLS proximity alert technology to provide protection for children locally and nationally
Press Release: For Immediate Release
Los Angeles CA September 21, 2009 - GTX Corp (OTCBB: GTXO), a leader in 2-way GPS Personal Location Services (PLS), has partnered with BrickHouse Security to offer products that can assist in the recovery of the 2,000 children reported missing every day. GTX Corp and BrickHouse will be working together to solve safety problems through product development, co-branding and joint marketing of innovative geo-specific and proximity-alerting solutions.
To help keep these children safe locally in busy malls, parks, and even in their own back yard, GTX Corp, through its Code Amber? subsidiary has formed a distribution relationship with BrickHouse Security to market the company's Child Locator, as well as to jointly develop new safety and protection programs. The Child Locator, recently featured in a global media campaign by Duracell batteries, uses GPS technology to monitor the location of wandering children up to 600 feet away using an onscreen display and alert system. The Child Locator is now available on the Code Amber web site and promoted on the Code Amber News Ticker that is viewed by millions. GTX Corp has expanded its subscriber base for geo-proximate real time information about reported missing children, through placement of its News Ticker on the BHS website and with a new mobile App; Code Mobile - now available on iPhone, Blackberry and Android platforms.
The Code Amber News Service and the Child Locator have already aided in the recovery of numerous children. "My favorite story is one in which CANS helped recover a child missing from his Arizona home who was later located in a car in a California parking lot of Walgreen's, a long-standing partner who posted the alert at their stores. Thanks to the cross-state notification, the child was safely returned to his family."
Todd Morris, BrickHouse founder and CEO, adds his own story of a happy recovery: Said Mr. Morris, "I recently received a call from a relieved father who brought his child to a major theme park. His child had climbed a structure and moved out of sight and range of his calls. Using the Child Locator he was able to quickly find his child to the relief of the family." He adds, "Now that we're working with GTX Corp I'm comforted to know that we can reach further to recover children when they're separated over longer distances, and I'm sure that many parents will be, too."
Mr. Bertagna offered; "We are excited about the relationship, since Todd and I met close to a year ago we have been exploring the different opportunities for us to work together." "Identifying a company with complementary products and a parallel mission marks the beginning of a profitable and purposeful relationship. I know that together we can help change the headlines from - child found missing, to - missing child found."
About GTX Corp
GTX Corp (GTXO.OB) develops and integrates 2-way GPS people finding technologies which seamlessly integrate with consumer products and enterprise applications. Utilizing the latest in miniaturized tracking and cellular location technology, the company offers a GPS location platform that enables subscribers to track in real time the whereabouts of people, pets, or high valued assets through its customizable transceiver module, wireless connectivity gateway, middleware, and viewing portal.
Committed to being the "better people finder" GTX Corp owns and operates LOCiMOBILE, Inc.(www.locimobile.com) which develops applications that transforms smart phones into real time 2-way GPS personal location transceiver, letting friends, co-workers and loved ones know; where you are. And Code Amber News Service (www.codeamber.com), a leading US and Canadian syndicator of online Amber Alerts which is dedicated to the recovery of missing persons.
Founded in 2002 and based in Los Angeles, California, the company has evolved from its early beginnings of putting a micro GPS device in a shoe - the patented smart-shoe (www.gpsshoe.com) - and continues to pave the way with innovative geo-specific and proximity alerting applications that help you know where someone or something is at the touch of a button. The company believes in a strong intellectual property strategy and to date has an extensive portfolio of patents, patents pending, registered trademarks, copyrights, and URLs.
About BrickHouse Security
BrickHouse Security provides safety and security products to consumers, businesses of all sizes including roughly half of the Fortune 500, and more than 500 local and national government agencies such as the NYPD, LA County Sheriffs, and the FBI. To help its customers protect what they care most about, the company offers a range of leading-edge safety, protection, GPS tracking and counter-surveillance products. BrickHouse Security's industry-leading experts seek to be the go-to source for all of its audiences' needs by providing timely information through the company's informative blogs and content, and by identifying, developing, and selling quality products that represent the best and the latest in safety and security. The company is headquartered in New York City and serves a diverse US and international client base.
For more information regarding GTX Corp, please contact:
Ross Silver
Investor Relations
(213) 489.3019 ext 646
ir@gtxcorp.com
Banking on the Future
By Melissa Heckscher, Staff Writer
San Gabriel Valley (Calif.) Tribune
8/19/20009
Patients Consider Saving Cord Blood as 'Biological Insurance'
Soon-to-be parents have a lot to think about before their babies are born, from what sort of pain medication to use during childbirth to what kind of car seat to put their bundle of joy inside when taking him home from the hospital.
But these days, more and more parents are facing a new question: whether or not they should bank their babies' umbilical cord blood shortly after birth as a type of "biologic insurance" for potential future medical use.
Cord blood is rich in stem cells, which can be used in to treat a variety of illnesses.
"I think it's groundbreaking," said Hilda Elena Rodriguez, an OBGYNobstetrician-gynecologist with offices in Manhattan Beach and Torrance. "The studies that have come out have shown that the potential for these cells is so much greater than donated bone marrow."
For more than a decade, cord blood cells have been used to treat more than 70 diseases including leukemia, genetic disorders, sickle cell anemia, and immune deficiency disorders. Unlike bone marrow or traditional blood transplants, cord blood cells don't have to be an exact match between the donor and recipient, making it easier for those in need to find a suitable donor.
But it is the potential future of stem cell research that is prompting many parents to spend thousands of dollars to bank their babies' cord blood. Studies are under way, for instance, to see if these cells can be used to treat everything from health issues ranging from brain and spinal cord injuries to heart disease and diabetes.
"Who knows what the future can hold," said Becky Scholten, a Hermosa Beach mother of two.
"If this could one day save your child's life, wouldn't you feel like crap if you could have afforded it and you didn't do it?" she said.
"I don't ever want to say "'Shoulda, woulda, coulda,'" Scholten said. "I don't ever want to wonder, "'What if I would have done this?'"
Cord blood can be stored in a frozen state, possibly indefinitely.
"It is like a biologic insurance policy," said health care educator Wendy Spry. "If you don't (bank), you can't go back and get that 15-minute window of time."
Private banking is recommended in cases where a sibling has a genetic condition that might be treatable with stem cell transplantation. In addition, private banking also can be useful for minorities, who are least represented in public storage banks.
*****
Stem cell transplantation cures girl of thalassemia
M R Venkatesh, Chennai, Sept. 17, Deccan Herald News Service:
In a medical miracle, a nine-year-old girl suffering from thalassemia has been fully cured of the deadly disease with a transplantation of stem cells from her younger brother's umbilical cord blood.
Doctors at the Apollo Speciality Hospital here, who achieved the feat, claimed that it was the country's first successful transplant using a sibling's cord blood stem cells.
The 18-month-old boy, Pugazhendhi, gave his ailing sister Thamirabharuni a new lease of life and permanent relief from the trauma of monthly blood transfusions, after the blood disorder — that results in excessive destruction of red blood cells and causes severe anaemia — had started eating into her vitals for the past nearly seven years.
The girl's parents from Coimbatore — 35-year-old Senthil Kumar, a carpenter, and Sarojini — ran from pillar to post when they found to their horror that their daughter was suffering from thalassemia. The couple almost gave up hope until a friend put them on to people at the Thalassemia Society in Chennai.
On examining the girl, the physician said she had advised the couple "to try for one more child" to enable starting an "umbilical cord blood stem cell banking" and transplant. The reason: a newborn sibling's umbilical cord provides a better chance of the tissues of the donor and the recipient matching, and has very little chance of "donor rejection."
Fortunately, "the third time my wife became pregnant (in pursuance of the doctor's advice), the foetus was unaffected," Kumar said here. So during the delivery of the third child (Pugazhendhi), the umbilical cord blood stem cell of the infant was saved. "We managed to collect 100ml of blood from the sibling's umbilical cord." The cord blood stem cells were later separated and preserved at their laboratory free of cost.
After preserving the extracted cord blood stem cells for a year, the donor's stem cells were injected into the patient's body without surgery. "It was like blood transfusion," done in March 2009. Three weeks after the infusion, Thamirabharani started showing signs of recovery and today "the girl is completely cured of thalassemia," the doctor added.
Thamirabharuni smiled as she was presented to reporters. She is one of the lucky few to survive this fatal disease as every year 10,000 children with thalassemia major are born in India."I suffered a lot, and if not for my brother whose cord blood stem cell was transplanted into me, I would not have been around," said Thamirabharani. "Today, I feel fine, want to spring back to the playfield," she said.
Brian39,
The stem cell research costs loads of money,
not to mention everybody and their brother is doing it..
Cord Blood America is positioning itself to be
the biggest one stop shop for Cord Blood Storage.
There is just as much money to be made on the
storage side if your the Wallmart of Cord Blood
Storing...
Not a great analogy but its the only one I got.
Kip
U.S. ARMY
Thanks Agent92260... "IF" thats your real name...hahaha
Yes IHub is much better than the Googleboard but I try
and post to both if I "think" what I am thinking has
any merit..
CBAI is destined for Greatness... I feel it in
my bones.. The only other stock I feel this
sure about is "SOLM" and Possibly GTXO
I am 600K strong in CBAI but only 190K in SOLM..
and 10K in GTXO
I buy as only been playing with stocks since Feb.
It feels good to be part of a company you truely
believe in...
Kip
U.S. ARMY
In reference to Rather B Lucky's post on the Press Release
"9-17-09 Solomon Technologies Recertifies and Expands"
I found the following paragraph VERY VERY interesting..
"Technipower has also leased additional manufacturing space near its headquarters in Connecticut to accommodate anticipated growth in its marine propulsion and solar PV products. The Company recently launched its new Instant Solar(TM) product line and is preparing for the reintroduction of its Solomon(®) Marine Propulsion line."
We need to read between the lines here folks..
What is going on with the Marine Propulsion Division???
Something must be up, otherwise why would they be
expanding that division????
Is this pre-release info?
Thoughts anyone?
Kip
U.S. ARMY
Rather B Lucky,
Great Post!!!
Keep it up!
Kip
U.S. ARMY
Dew,
I am perplexed at why you think this stock
will only hit .10 next year?
Once CBAI gets rolling and taking orders
that this stock will take off.. Not simply
because of the service it provides, but it
will become commonplace practice to store
these varied types of Stem Cells. Just as it
is commonplace to have your children innoculated
against diseases of the past, and or take them
to the dentist at least once a year.
Can you imagine your reaction to a parent
that said they didn't have their children immunized
and or ever take them to the dentist??
I feel after a time, people will have the same
reaction to someone who chooses not to store
these vital lifesaving cells..
I would also imagine that the Insurance companies
would jump on the band wagon with this, as I am
sure that it would be alot cheaper to pay for Stem Cell
storage, than to pay for lets say a 5 year fight with
a debilitating diseast such as Luekemia or MS,
which may or may not be near as effective.
I am a bit more optomistic for this stock..
I think by 3Q 2010 this stock could easily be
at .50 pps or better. I am hoping for better!!
Just my 2 cents..
Kip
U.S. ARMY
Solomon Technologies' Power System in Field Test Phase
DANBURY, Conn., Sept 15, 2009 /PRNewswire-FirstCall via COMTEX/ -- Solomon Technologies, Inc. /quotes/comstock/11i!solm (SOLM 0.02, -.00, -10.00%) announced today that its Technipower subsidiary has successfully completed the development and pre-production manufacturing of a high power, fast charging power system for the military. Technipower was awarded the $800,000 contract last year and developed a robust system that substantially increases the cycle time and accuracy of a tactical weapons system. In concert with the customer's engineering team, a rigorous design and factory test program was recently completed resulting in the delivery of pre-production units for integration in the customer's system.
Dan Connors, President of Technipower said, "We are pleased the program has advanced to the field testing phase which is an important milestone to reaching initial production. Although we do not yet have firm timing on the first production order, this project is a major advancement for us in the energy storage market comprising high energy charging and charge control. The delivery of the pre-production units underscores Technipower's reputation as a preeminent supplier of rugged, high technology power systems for critical applications."
Connors continued, "Technipower's future growth builds on our experience in military and commercial power applications and applies it to the burgeoning opportunities in the renewable and alternative energy markets. We will continue to leverage our inventory of cutting edge power conversion technologies to supply innovative, highly reliable solutions to the growing energy markets."
DennisCT,
I found the pics!!
Kip
U.S. ARMY
All,
Please welcome "L vus" as my Assistant Moderator.
Since L vus has owned shares of SOLM since 2006, I am
sure L vus possesses knowledge about this company
that will come in very handy to us all.
Please give L vus a warm welcome!!!!
Kip
U.S. ARMY
DennisCT,
Where are the pics? Keep in mind I am still
learning to negotiate around IHub..
I should probly be wearing a helmet.
Kip
U.S. ARMY
Hey!! I just found SOLM's IBOX.. Pretty cool stuff..
I still have alot to learn about IHub..
Kip
U.S. ARMY
GTXO needs to let us know their plan..
Here is a prime example of what can
happen when a good plan comes together..
http://www.google.com/finance?q=OTC:VRMLQ
Needless to say I missed the boat on that..
I have great hopes for GTXO.. Lets get
some decent PR going, and unleash some
good products..
Kip
U.S. ARMY
CBAI needs some good PR..
Here is a prime example of what can happen
when a plan comes together..
http://www.google.com/finance?q=OTC:VRMLQ
Lets hope CBAI can follow suit..
I missed the boat on that one, but I am
all aboard CBAI in hopes of the same..
Kip
U.S. ARMY
I am hoping that SOLM will follow a trend
similar to this...
http://www.google.com/finance?q=OTC:VRMLQ
I am kicking myself for missing this one!!!
GO SOLM!!!!
Kip
U.S. ARMY
DenniseCT,
Sure!!!! But what is IBox??
Kip
U.S. ARMY
Sea 2 Sky Announces Update on Torrefaction Strategy
Torrified Wood to offer 30% less pollution to manufacturing facilities
FERNDALE, WASHINGTON, Sep 10, 2009 (MARKETWIRE via COMTEX) -- Sea 2 Sky Corporation /quotes/comstock/11k!ssky (SSKY 0.10, -0.01, -5.00%) , a leading edge Renewable Bio-Energy Company, wishes to update its shareholders with respect to its Biomass and Torrefaction implementation. Torrefaction is a scientifically proven method for improving the properties of Biomass as a fuel. The end result of Torrified pellets is the formation of a solid product that retains approximately 70% of its initial weight and 90% of the original energy content. Sea 2 Sky plans to apply this technology to increase the energy output in Biomass products and to provide a coal like product with significant environmental advantages. Sea 2 Sky is currently exploring and evaluating several alliances pertaining to the Torrefaction method to best position itself and plans to market the Torrefied Biomass to existing coal factories to be co-fired in a pulverized coal boiler.
Torrefied Biomass facts and properties:
- Hydrophobic nature: the material does not regain humidity in storage and therefore unlike wood and charcoal, it is stable and with well defined composition.
- Lower moisture content and higher calorific values as compared to unprocessed Biomass.
- Exhausts less emissions when ignited in end user applications and can be produced in a desired shape and form.
- Higher density and similar mechanical strength compared to the initial Biomass.
- Suitable for various applications as a fuel - in the steel industry, combustion, and gasification.
- Torrefied products can substitute charcoal in a number of applications such as fuel for domestic cooking stoves or residential heating.
- Raw material for manufacture of improved solid fuel products such as fuel pellets, compacted fireplace logs and barbecue briquettes for commercial and domestic uses. Torrefied briquettes have superior combustion characteristic as compared with ordinary briquettes.
- Fuel for industrial uses. Important advantage of Torrefied wood compared to wood is its uniformity. It is as a predictable, flexible fuel with optimum combustion and transport economies. Due to the low moisture content of Torrefied wood, the transport cost is lower and the quality as a fuel better. It is easily packaged and transported thru traditional mechanisms, and thus constitutes an efficient fuel.
C'mon, we need some good PR out of GTXO
its been a long time since they put out
anything strong..
Need updates on the PLS, Shoes,
Possible Military contracts yadda yadda...
Kip
U.S. ARMY
I agree, the pps seems to be holding fairly firm.
New PR on another Military contract would take
us much further up the totem pole.
However, good news about the Toyata lawsuit
would do just as well. But we will have to
wait for that.. Keep your fingers crossed.
Kip
U.S. ARMY
Fivestar,
Yes, please help.. I sent some
specific questions to you in a private message.
Can you get back with me on them please..
I think I'll need a booster seat for a while..
Thanks,
Kip
U.S. ARMY
Randy218
I should probly be wearing a helmet,
I looked all over for what you were referring
too and I couldnt find it..
Dee-Dee-Dee
Kip
U.S. ARMY
Randy218,
Is this what your looking for?
Looks like SOLM is getting ready
to kick some Toyota Hybrid Tuckass.. See Below..
Kip
U.S. ARMY
============================================================
NY 72260822
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
-----------------------------------------------------------------------
SOLOMON TECHNOLOGIES, INC.,
Plaintiff,
v.
TOYOTA MOTOR CORPORATION,
TOYOTA MOTOR MANUFACTURING
NORTH AMERICA, and TOYOTA MOTOR
SALES, U.S.A., INC.,
Defendants.
-----------------------------------------------------------------------
x::::::::::::::
x
Case No. 8:05-cv-01702-JDW-MAP
SOLOMON’S OPPOSITION TO TOYOTA’S MOTION
FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
Case 8:05-cv-01702-MAP Document 79 Filed 08/17/2009 Page 1 of 25
- i -
NY 72260822
TABLE OF CONTENTS
Page
I. Introduction.........................................................................................................................1
II. Toyota’s “Stare Decisis” Argument is Wrong as a Matter of Law,
and Irrelevant to the Outcome of its Motion........................................................................3
A. Toyota has Misinterpreted Texas Instruments—This Court is Not Bound by
the Federal Circuit’s Prior Solomon Decision .........................................................3
B. None of the Cases Cited by Toyota Support its Interpretation of Texas
Instruments—To the Contrary, they Support Solomon’s Position ..........................5
C. Under Texas Instruments, Solomon is Entitled to Raise New Issues in this
Action—Not Previously Raised before the ITC or Federal Circuit—and this
Court Must Consider those Issues............................................................................7
D. There is No Stare Decisis Effect Regarding the Factual
Findings by the ITC .................................................................................................8
III. If the Court Agrees with Solomon that the “Power Conversion Means”
Limitation is NOT a Means-Plus-Function Limitation, Then the Federal
Circuit Decision Regarding that Limitation is Inapplicable Here .......................................8
A. The “Power Conversion Means” Limitation Should Not Be Construed
as a Means-Plus-Function Limitation ......................................................................9
B. Solomon Has the Right to Have This Court Determine Whether the
“Power Conversion Means” Limitation is a Means-Plus-Function
Limitation...............................................................................................................11
IV. There are Fact Issues, Precluding Summary Judgment, Even Under the
Federal Circuit’s Prior Claim Construction .......................................................................12
A. Issues of Fact Pertaining to the “Power Conversion Means” Limitation ..............12
B. Issues of Fact Pertaining to the “Integral Combination” Limitation .....................15
C. Issues of Fact Pertaining to the “Envelope” Limitation.........................................16
V. This Court Must Independently Consider Solomon’s Arguments Regarding
Why there are Compelling Reasons to Modify or Clarify the Federal
Circuit’s Claim Construction .............................................................................................17
Case 8:05-cv-01702-MAP Document 79 Filed 08/17/2009 Page 2 of 25
- ii -
NY 72260822
VI. Solomon Requires Additional Discovery Under Rule 56(f)..............................................18
VII. Conclusion .........................................................................................................................19
Case 8:05-cv-01702-MAP Document 79 Filed 08/17/2009 Page 3 of 25
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NY 72260822
TABLE OF AUTHORITIES
Page(s)
CASES
Alloc, Inc. v. Norman D. Lifton Co.,
No. 03 Civ. 4419 (PAC), 2007 WL 2089303 (S.D.N.Y. Jul. 18, 2007) ............................4, 5, 6
Alloc, Inc. v. Pergo, LLC,
No. 00-C-999, 2009 WL 1939034 (E.D.Wis. Jul 02, 2009) ......................................................5
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986).................................................................................................................18
Applied Med. Res. Corp. v. U.S. Surg. Corp.,
448 F.3d 1324 (Fed. Cir. 2006)................................................................................................12
Celotex Corp. v. Catrett,
477 U.S. 317 (1986).................................................................................................................18
Cole v. Kimberly-Clark Corp.,
102 F.3d 524 (Fed. Cir. 1996)..............................................................................................9, 10
Crown Packaging Tech., Inc. v. Rexam Beverage Can Co.,
559 F.3d 1308 (Fed. Cir. 2009)................................................................................................12
Envirco Corp. v. Clestra Cleanroom, Inc.,
209 F.3d 1360 (Fed. Cir. 2000)............................................................................................9, 10
Finnigan Corp. v. ITC,
180 F.3d 1354 (Fed. Cir. 1999)................................................................................................11
Fuji Photo Film Co. v. Jazz Photo Corp.,
173 F. Supp. 2d 268 (D.N.J. 2001) ....................................................................................4, 6, 8
IMS TECH. Inc. v. Haas Automation, Inc.,
206 F.3d 1422 (Fed. Cir. 2000)..........................................................................................13, 15
LizardTech, Inc. v. Earth Res. Mapping, Inc.,
424 F.3d 1336 (Fed. Cir. 2005)................................................................................................12
3M v. Beautone Specialties Co.,
117 F. Supp. 2d 72 (D. Mass. 1999) ..................................................................................4, 5, 8
MyMail v. Am. Online,
476 F.3d 1372 (Fed. Cir. 2007)................................................................................................12
Case 8:05-cv-01702-MAP Document 79 Filed 08/17/2009 Page 4 of 25
- iv -
NY 72260822
Newell Cos Inc. v. Kenny Mfg., Co.,
864 F.2d 757 (Fed. Cir. 1988)....................................................................................................7
Sage Prods., Inc. v. Devon Indus., Inc.,
126 F.3d 1420 (Fed. Cir. 1997)................................................................................................12
Seal-Flex, Inc. v. Athletic Track and Court Const.,
172 F.3d 836 (Fed. Cir. 1999)..................................................................................................12
Solomon Techs.s, Inc. v. Int’l Trade Comm’n,
524 F.3d 1310 (Fed. Cir. 2008)........................................................................................ passim
Stout v. St. Amour’s Lawn Care, LLC, No. 6:07-cv-1882,
2008 WL 816818, at *2 (M.D. Fla. 2008) ...............................................................................18
Texas Instruments, Inc. v. Cypress Semiconductor, Inc.,
90 F.3d 1558 (Fed. Cir. 1996).......................................................................................... passim
Thomson Consumer Elecs., Inc. v. Innovatron, S.A.,
3 F. Supp. 2d 49 (D.D.C. 1998) .................................................................................................6
TriMed, Inc. v. Stryker Corp.,
514 F.3d 1256 (Fed. Cir. 2008)............................................................................................9, 10
STATUTES
35 U.S.C. § 112, ¶ 6............................................................................................................... passim
OTHER AUTHORITIES
Fed. R. Civ. P. 56(f)...................................................................................................................3, 18
Case 8:05-cv-01702-MAP Document 79 Filed 08/17/2009 Page 5 of 25
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NY 72260822
I. Introduction
Toyota frames its summary judgment motion in terms of two straightforward legal
questions: “(1) Are the Federal Circuit’s findings and conclusions in Solomon Technologies, Inc.
v. Int’l Trade Comm’n, 524 F.3d 1310 (Fed. Cir. 2008), binding on this Court?” and “(2) If so,
what did the Federal Circuit hold?” (Toyota’s Motion for Summary Judgment of
Noninfringement (“Toyota’s Brief”), p. 1). Toyota then argues that the answer to the first
question is yes and that, therefore, “this Court need do nothing more than follow the Federal
Circuit and grant summary judgment of noninfringement.” (Id.). Significantly, Toyota does not
assert that it is entitled to summary judgment if the answer to the first question is no.
Accordingly, Solomon submits that if the Court agrees with Solomon that the answer to the first
question is “no,” then the Court must deny Toyota’s motion.
Notably, Toyota argues that this Court, in deciding the present motion, need not (i)
“construe the claim limitations of . . . the ’932 patent,” or (ii) “apply [the claim limitations] to the
accused vehicles.” Indeed, Toyota asserts that “it would be improper [for this Court] to do so.”
(Id.). Accordingly, Toyota’s motion does not call for any claim construction or infringement
analysis at this time.1
Toyota’s first question actually includes an inquiry into not only whether this Court is
bound by the Federal Circuit’s legal determinations in Solomon v. Int’l Trade Comm’n, but also
whether this Court is bound by the factual determinations of the Internal Trade Commission
(“ITC”), which the Federal Circuit relied on in reaching its decision. The answer to both
questions, under well-settled caselaw, is clearly no.
Section II, below, explains why this the Court cannot simply adopt the Federal Circuit’s
decision, as Toyota argues, but rather, must independently evaluate the claim construction and
other issues before it. Significantly, no court has ever adopted Toyota’s interpretation of Texas
1 Solomon requests the opportunity to submit separate briefing and argument regarding claim
construction (including a detailed analysis of the patent, file history and other evidence that accompanies
claim construction) at an appropriate time under a schedule to be determined by the Court.
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Instruments, the case upon which Toyota relies. In fact, every single case that has addressed
Texas Instruments is directly contrary to Toyota’s position.
Section III explains why this Court cannot simply adopt the Federal Circuit’s decision
with respect to the “power conversion means” limitation, as this Court must first rule, in
connection with claim construction proceedings, whether that limitation is, in fact, a means-plusfunction
limitation under 35 U.S.C. § 112, ¶ 6. That issue was not raised during the ITC
proceedings or previously considered by the Federal Circuit. In particular, in reaching its
decision, the Federal Circuit treated—without considering the issue—the limitation as a meansplus-
function limitation. If the Court agrees with Solomon that this assumption is incorrect, i.e.,
the limitation is not a means-plus-function limitation, then the Federal Circuit’s decision
regarding that limitation is no longer applicable.
Section IV describes numerous issues of material fact that preclude summary judgment
even under the Federal Circuit’s prior claim construction. Those factual issues include:
i. whether the structure in Toyota’s accused vehicles that corresponds to the
“disk” in the ‘932 patent is solely the rotor shaft, as opposed to the entire
rotor assembly;
ii. whether the rotor assemblies in Toyota’s accused vehicles are disk-like;
iii. whether the “rotor shaft” in Toyota’s vehicles is part of the motor;
iv. whether the element of the accused vehicles that corresponds to the
“motor element” in the claimed “integral combination” is the rotor
assembly, rather than the rotor shaft (a subcomponent of the rotor
assembly); and
v. whether Toyota’s accused vehicles meet the “envelope” limitation when
the sweep of other elements in Toyota’s motors is considered, not just the
sweep of the magnets.
In support of the above factual issues, Solomon has submitted with this opposition sworn
declarations from (1) Professor Ali Emadi, a pre-eminent expert in the field of hybrid vehicles,
(2) Jonathan Rollins Edwards, the inventor of the patent-in-suit, and (3) Robert Alexander
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Pesiridis, the Chief Engineer of Solomon. Since all factual inferences must be decided in
Solomon’s favor on Toyota’s motion for summary judgment, Toyota’s motion must be denied.
Section V explains why Solomon believes there are compelling reasons to modify or
clarify the Federal Circuit’s prior claim construction in claim construction proceedings before
this Court.
Finally, Section VI explains why Solomon requires additional discovery relating to
Toyota’s infringement and that, under Fed. R. Civ. P. 56(f), this Court cannot decide Toyota’s
motion until Solomon has had the opportunity to obtain such discovery.
II. Toyota’s “Stare Decisis” Argument is Wrong as a
Matter of Law, and Irrelevant to the Outcome of its Motion
Toyota argues that, under Texas Instruments, “Federal Circuit affirmances of ITC rulings
are stare decisis when the same patent is later litigated between the same parties in a district
court, as in the present case.” (Toyota’s Brief, p. 6). Toyota is wrong as a matter of law. In
addition, Toyota’s argument is irrelevant to the outcome of Toyota’s motion since there remain
disputed issues of material fact, precluding summary judgment, even if this Court were to adopt
the Federal Circuit’s claim construction.
A. Toyota has Misinterpreted Texas Instruments—This Court is Not Bound by
the Federal Circuit’s Prior Solomon Decision
Contrary to Toyota’s assertion, Texas Instruments and each and every one of the district
court cases cited by Toyota hold that this Court is not bound by a Federal Circuit’s decisions in a
related ITC appeal (including decisions relating to claim construction and infringement). This
Court must independently consider those issues—exactly the opposite of what Toyota urges.
Indeed, in Texas Instruments, the Federal Circuit affirmed a finding of non-infringement
on appeal from a district court action, despite the fact that it had previously affirmed a finding of
infringement on appeal from an earlier ITC proceeding addressing the exact same infringement
issue between the same parties. See Texas Instruments, Inc. v. Cypress Semiconductor, Inc., 90
F.3d 1558, 1568-70 (Fed. Cir. 1996). That result would have been impossible if the district
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court in the Texas Instruments case did what Toyota urges this Court to do—namely, treat the
Federal Circuit’s prior determination of infringement in the related ITC appeal as stare
decisis without itself independently considering the issue of infringement. It is, thus, crystal
clear from the Texas Instruments case that the Federal Circuit did not believe that the ITC’s
ruling on infringement or its own affirmance of that ruling subsequently bound the district court
on the question of infringement.2
Significantly, not a single court has interpreted Texas Instruments as Toyota does, in
particular, as standing for the proposition that the Federal Circuit’s affirmance of an ITC
decision has a stare decisis effect on a subsequent district court action. To the contrary, courts
interpreting Texas Instruments have uniformly held that ITC rulings on patent issues (including
those relating to claim construction) and the Federal Circuit’s affirmance of those rulings have
no preclusive effect on district courts. See, e.g., Alloc, Inc. v. Norman D. Lifton Co., No. 03 Civ.
4419(PAC), 2007 WL 2089303, at *9 (S.D.N.Y. July 18, 2007) (explaining that in Texas
Instruments “the Federal Circuit ruled that ITC decisions and Federal Circuit decisions on appeal
from the ITC, including claim construction decisions, had no preclusive effect in subsequent
actions involving identical patent claims.”) (all emphasis added unless otherwise noted); see also
3M v. Beautone Specialties Co., 117 F. Supp. 2d 72, 83 (D. Mass. 1999) (“the Commission's
determination and subsequent affirmance by the Federal Circuit do not have collateral estoppel
effect [on district courts]”). As explained by the court in Fuji Photo Film Co. v. Jazz Photo
Corp.:
2 Toyota asserts that a different rule should apply when considering the stare decisis effect of the Federal
Circuit’s affirmance of an ITC’s ruling of infringement versus the Federal Circuit’s affirmance of an
ITC’s ruling of no infringement. (Toyota’s Brief at 6). In the latter case, Toyota asserts that there must
be a stare decisis effect. However, that same argument has already been rejected in the 3M case. See 3M
v. Beautone Specialties Co., 117 F. Supp. 2d 72, 82-83 (D. Mass. 1999) (stating that Texas Instruments
“forecloses giving collateral estoppel effect either to the ITC finding of no infringement or to the
Federal Circuit’s decision affirming that determination in this case” and rejecting the defendants
argument to the contrary). As the 3M court explained, Texas Instruments, makes “no distinction”
between those two situations. Moreover, contrary to Toyota’s assertion (at Toyota’s Brief, pp. 7 and 11
n.6) as explained herein, there are factual and legal issues in dispute here that the Federal Circuit never
considered, which preclude summary judgment.
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In analyzing the prior decisions in this matter this Court is mindful of the findings
and opinions rendered by the ALJ and ITC, as well as the opinion rendered by the
Federal Circuit on appeal from the ITC. However, while such findings and
opinions serve a persuasive value, they do not receive any deferential treatment
nor do they have a preclusive effect on any findings and opinions rendered by this
Court . . . This Court therefore renders its opinion based on an independent
review of the facts and law.
(173 F. Supp. 2d 268, 274 (D.N.J. 2001)). Accordingly, Toyota’s assertion that the Federal
Circuit’s affirmance of an ITC decision has a stare decisis effect on a subsequent district court
action is simply wrong.
While courts interpreting Texas Instruments have given various degrees of persuasive
value to the Federal Circuit’s affirmance of ITC rulings (see Norman D. Lifton, 2007 WL
2089303, at *9 (surveying cases)), each of them recognized that it was required to do its own
independent review of the factual and legal issues before it. In particular, in every single case
that addressed the merits, the district court engaged in its own detailed claim construction
analysis and infringement analysis. See, e.g., 3M, 117 F. Supp. 2d at 83; Alloc, Inc. v. Pergo,
LLC, No. 00-C-999, 2009 WL 1939034, at *13 (E.D. Wis. July 2, 2009); Norman D. Lifton,
2007 WL 2089303, at *15. Significantly, none of the cases cited by Toyota involve a situation
where the district court simply adopted the Federal Circuit’s decision from a prior ITC appeal, as
Toyota would have this Court do. Plainly, the answer to Toyota’s question—are the Federal
Circuit’s findings and conclusions binding on this Court—is no.
B. None of the Cases Cited by Toyota Support its Interpretation of Texas
Instruments—To the Contrary, they Support Solomon’s Position
Toyota cites 3M for the proposition that Texas Instruments “makes clear that this Court
cannot simply ignore the Federal Circuit’s decision affirming the ITC finding of no infringement
. . . .” (Toyota’s Brief at 5). But in that case, the court actually concluded that Texas Instruments
“remains good law and forecloses giving collateral estoppel effect either to the ITC finding of
no infringement or to the Federal Circuit’s decision affirming that determination in this case.”
3M, 117 F. Supp. 2d at 82.
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Toyota also cites Alloc, Inc. v. Norman D. Lifton Co. for the proposition that “Texas
Instruments means that a Federal Circuit affirmance of an ITC ruling is tantamount to a
‘command’ to the district courts.” (Toyota’s Brief, p. 9). But as Toyota acknowledges, that case
stated that in Texas Instruments, “the Federal Circuit ruled that ITC decisions and Federal Circuit
decisions on appeal from the ITC, including claim construction decisions, had no preclusive
effect in subsequent actions involving identical patent claims.” (Toyota’s Brief, p. 11, n. 7).
Thus, Alloc, Inc. v. Norman D. Lifton Co., supports Solomon’s position, not Toyota’s. While
Toyota attempts to explain away the Alloc decision as “wrong with respect to the Texas
Instruments’ court’s ruling regarding Federal Circuit affirmances of ITC rulings,” the Alloc
decision is consistent with every other case that has addressed the issue.
Toyota further cites Thomson Consumer Elecs., Inc. v. Innovatron, S.A. for the
proposition that a Federal Circuit’s affirmance of an ITC’s ruling would be given “near
preclusive effect.”3 (Toyota’s Brief, p. 7). The Thomson court’s statement was perhaps at one
extreme of the degree of deference given to such prior rulings with Fuji Photo on the opposite
extreme, which stated that such rulings do not receive “any deferential treatment.” Fuji Photo,
173 F. Supp. 2d at 274. In any event, a “near preclusive effect” is again plainly not the same
thing as stare decisis. Significantly, Thomson acknowledged that “[r]egardless of the final
outcome before the ITC, its determination will not formally have preclusive effect in the instant
action.” Thomson, 3 F. Supp. 2d at 51.
Finally, Toyota asserts that Fuji Photo Film Co. v. Jazz Photo Corp. “created a split
among the district courts regarding the stare decisis effect of Texas Instruments” and that this
Court should grant summary judgment to “clear the way for the Federal Circuit to resolve the
split.” (Toyota’s Brief at 9). As explained above, however, not a single case supports Toyota’s
stare decisis argument. If there is any split, it is only with respect to the degree of persuasive
3 Thomson’s brief discussion of Texas Instruments was clearly dicta, since no parallel ITC decision or
appellate review of that decision had yet occurred.
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value a court should give such prior findings and opinions—not whether the court is bound by
those findings and opinions, which it is clearly not.
Toyota’s suggestion that this Court grant summary judgment so that the Federal Circuit
can resolve this supposed split in authority invites reversible error. (Toyota’s Brief at 9). The
most expeditious way to handle this matter is simply to proceed in the same manner that every
other district court has done following ITC proceedings—namely, to independently consider and
decide the issues before it.4
C. Under Texas Instruments, Solomon is Entitled to Raise New Issues in this
Action—Not Previously Raised before the ITC or Federal Circuit—and this
Court Must Consider those Issues
Another reason that Toyota’s stare decisis argument is flawed is that Texas Instruments
expressly permits a party to make whatever arguments in the district court it deems justified—
which includes arguments not made in prior ITC proceedings. As the Federal Circuit explained,
[T]he rule that decisions of the ITC involving patent issues have no
preclusive effect in other forums has not changed . . . once we
accept, as we have done at least since 1986, that ITC decisions are
not binding on district courts in subsequent cases brought before
them, it necessarily follows that accused infringers can raise
whatever defenses they believe are justified regardless whether
they previously raised them and lost in the ITC.
(Texas Instruments, 90 F.3d at 1569). Plainly, there can be no stare decisis effect if the Federal
Circuit and ITC never even ruled on an issue.
As explained in Section III below, one such issue that Solomon raises here is whether the
“power conversion means” limitation is a means-plus-function limitation under 35 U.S.C. § 112,
4 Toyota also cites Newell Cos Inc. v. Kenny Mfg., Co. for the proposition that the Federal Circuit “has
adopted the rule that prior decisions of a panel of the court are binding precedent on subsequent panels
unless and until overturned in banc.” (Toyota’s Brief, p. 5). But under Texas Instruments, that rule
plainly does not apply to a district court action relating to the subject matter of a prior ITC appeal. See
Texas Instruments, 864 F.2d at 1569 (stating that “Congress did not intend decisions of the ITC on patent
issues to have preclusive effect” and that “[r]ecent changes to ITC procedures and the formation of this
court [the Federal Circuit] as the exclusive appellate court for patent cases, including ITC determinations,
do not compel a different rule.”).
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¶ 6. The Federal Circuit and ITC never considered that issue and, therefore, there can plainly be
no stare decisis pertaining to it.
D. There is No Stare Decisis Effect Regarding
the Factual Findings by the ITC
Toyota asserts that “[t]o the extent that the Federal Circuit made factual findings in
Solomon, they are not now subject to dispute by the parties.” (Toyota’s Brief at 1). But the
Federal Circuit did not itself make any factual findings—it instead adopted the ITC’s factual
findings. Solomon did not appeal those factual findings, though many were subject to dispute
before the ITC. Instead, Solomon focused its appeal on legal errors in, for example, claim
construction that would have rendered those factual findings irrelevant if Solomon had prevailed.
Under well-settled precedent, factual findings by the ITC are not binding precedent and
are not entitled to a stare decisis effect. See, e.g., Fuji Photo Film Co., 173 F. Supp. 2d at 274 n.
2 (“Nor is the analysis in Texas Instruments limited to legal findings. Consequently, this Court .
. . affords both the factual and legal findings of the ITC and the appeal thereof persuasive value
only.”); see also 3M, 117 F. Supp. 2d at 88-90 (the court independently assessing infringement).
Toyota asserts, however, that Solomon was required to challenge the ITC’s factual findings in its
appeal, or waive its right to do so in this action. Toyota cites no authority whatsoever for such a
result and such a result simply makes no sense. Under Toyota’s theory, a party could only
appeal an ITC decision at its peril, because any issue not raised in the appeal would be
considered waived and admitted for purposes of any future district court proceeding.
As described in Section IV below, there are also numerous fact issues precluding
summary judgment. Toyota’s stare decisis argument quite simply does not apply at all to those
issues, making Toyota’s motion futile.
III. If the Court Agrees with Solomon that the “Power Conversion Means” Limitation is
NOT a Means-Plus-Function Limitation, Then the Federal Circuit Decision
Regarding that Limitation is Inapplicable Here
The ITC and Federal Circuit determined that Toyota’s accused vehicles were missing the
“power conversion means” limitation on the sole basis of construing it as a means-plus-function
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limitation under 35 U.S.C. § 112, ¶ 6. They did so because Solomon’s previous counsel never
raised the issue of whether 35 U.S.C. § 112, ¶ 6 was applicable—but, instead, relied upon the
presumption that terms expressed as a “means for” performing a specified function, such as the
“power conversion means” limitation, are construed under § 112, ¶ 6. That presumption,
however, is subject to an important exception, which, as explained below, is indisputably
applicable here. Under Texas Instruments, the Court must consider Solomon’s argument that
that exception applies. If the Court agrees that it does, then the Federal Circuit’s decision
regarding the “power conversion means” is no longer applicable.
A. The “Power Conversion Means” Limitation Should Not Be Construed as a
Means-Plus-Function Limitation
Under 35 U.S.C. § 112, ¶ 6, “[a]n element in a claim for a combination may be expressed
as a means or step for performing a specified function without the recital of structure, material,
or acts in support thereof, and such claim shall be construed to cover the corresponding structure,
material, or acts described in the specification and equivalents thereof.” The Federal Circuit has
explained that “f a claim element contains the word ‘means’ and recites a function,” there is a
presumption that the “element is a means-plus-function element under 35 U.S.C. § 112, ¶ 6.”
See Envirco Corp. v. Clestra Cleanroom, Inc., 209 F.3d 1360, 1364 (Fed. Cir. 2000). However,
that presumption “falls . . . if the claim itself recites sufficient structure to perform the claimed
function.” Envirco, 209 F.3d at 1364; see also Cole v. Kimberly-Clark Corp., 102 F.3d 524, 531
(Fed. Cir. 1996) (in order to invoke 35 U.S.C. § 112, ¶ 6, “the alleged means-plus-function claim
element must not recite a definite structure which performs the described function.”); TriMed,
Inc. v. Stryker Corp., 514 F.3d 1256, 1259 (Fed. Cir. 2008) (“If, in addition to the word ‘means’
and the functional language, the claim recites sufficient structure for performing the described
functions in their entirety, the presumption of § 112, ¶ 6 is overcome-the limitation is not a
means-plus-function limitation.”). Accordingly, if a claim element recites sufficient structure,
then notwithstanding the use of the word “means,” that element is not a means-plus-function
element and “is not limited to the structure corresponding to the claimed function as ‘described
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in the specification and equivalents thereof.’” Envirco, 209 F.3d at 1365. Rather, the court must
construe the claim element using “standard claim construction rules.” Id.
As such, the Federal Circuit has, on numerous occasions, construed claim terms
containing the word “means” to not be means-plus-function elements where the claim recites
sufficient structure for performing the claimed function. See, e.g., Cole, 102 F.3d at 531
(“perforation means … for tearing” was not a means-plus-function element because the claim
not only “describes the structure supporting the tearing function (i.e., perforations),” but also “its
location (extending from the leg band to the waist band) and extent (extending through the outer
impermeable layer).”); see also TriMed, 514 F.3d at 1259, 1260 (the term “said holes in said
plate providing means for allowing the pin to slide axially therein but preventing compression
across the fracture, and stabilizing said near end of the pin against displacement in the plane of
the plate” does not come within the scope of § 112, ¶ 6, because “the claim articulates the
structure for performing the claimed functions-the holes.”) (emphasis added).
Here, claim 7 of the ‘932 patent plainly recites sufficient structure for the “power
conversion means” to take it outside the scope of § 112, ¶ 6. Indeed, the vast majority of claim 7
recites the structure of the “power conversion means.” In particular, claim 7 specifies that the
“power conversion means” includes a “mechanical power transmission unit,” which in turn has
“two inputs” and “an output.” It further specifies that the “power conversion means” includes
two “respective integral combination[s] of a respective electric motor element and an element
of [the mechanical power] transmission unit.” The “mechanical power transmission unit,”
“electric motor element[s],” “inputs” and “output” of the transmission unit, and the “integral
combination[s]” are all structural elements of the “power conversion means.”
Further, the structural relationship of those elements are specified in the claim—in
particular, that each integral combination involves one of said two respective elements thereof
being at least to a large extent within an envelope containing the other,” that each integral
combination has “a compact structure,” and that the two integral combinations are located
closely adjacent each other.”
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Plainly, the “power conversion means” limitation does not recite a means for performing
a specified function “without the recital of structure,” as is required for a claim element to be a
means-plus-function element under 35 U.S.C. § 112, ¶ 6. (See Declaration of Professor Ali
Emadi (“Emadi Decl.”), ¶¶ 11-18; Declaration of Jonathan Rollin Edwards (“Edwards Decl.”),
¶¶ 6- 7; Declaration of Robert Alexander Pesiridis (“Pesiridis Decl.”), ¶¶ 5-6 – all declarations
are concurrently filed herewith). In addition, the recited structure is sufficient to perform the
specified function. (Id.). Accordingly, the “power conversion means” element should not be
construed as a means-plus-function element under 35 U.S.C. § 112, ¶ 6.
B. Solomon Has the Right to Have This Court Determine Whether the “Power
Conversion Means” Limitation is a Means-Plus-Function Limitation
Toyota argues that Solomon cannot have this Court consider whether or not the “power
conversion means” is a means-plus-function element because Solomon’s prior counsel did not
challenge the presumption that it was such an element during the earlier ITC proceedings. (See
Toyota’s Brief at 15). Toyota is wrong. The Federal Circuit has held, in no uncertain terms, that
a party may raise new arguments in a district court action that that party did not raise during
related ITC proceedings. See Texas Instruments, Inc., 90 F.3d at 1569. Accordingly, this Court
must consider Solomon’s “power conversion means” argument.
Notably, Toyota does not dispute that if this Court actually considers this issue, the Court
will agree with Solomon. As explained above, claim 7 plainly recites sufficient structure for the
“power conversion means” to take it outside the scope of § 112, ¶ 6. In short, Solomon’s goal
here is simple—to get things right. If prior mistakes were made regarding the law or the facts,
they should be corrected.5
5 Toyota asserts that the Federal Circuit would have necessarily considered the means-plus-function issue
on appeal as part of its de novo claim construction. (Toyota’s Brief at 12-13 and 16-17). But that
misapprehends the role of the Federal Circuit in reviewing lower court decisions. While the Federal
Circuit reviews claim construction de novo, it does not as a general rule consider issues that have not been
raised in the lower court. See, e.g., Finnigan Corp. v. ITC, 180 F.3d 1354, 1363 (Fed. Cir. 1999) (“That
this court may review a lower tribunal’s claim construction de novo . . . does not require us to consider
claim construction arguments that were not raised before the Commission.”). Indeed, as the Federal
Circuit has explained:
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IV. There are Fact Issues, Precluding Summary Judgment,
Under the Federal Circuit’s Prior Claim Construction
Even if the Court adopts the Federal Circuit’s prior construction without any modification
or clarifications, there are numerous issues of material fact that preclude summary judgment.
This Court cannot grant summary judgment in the presence of such disputed factual issues.
Crown Packaging Tech., Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1315 (Fed. Cir. 2009)
(“because [the opposing party] provided evidence [in the form of an expert report] in support of
its position . . . and because we must resolve any reasonable factual inferences in favor of the
nonmoving party, we conclude that there is a material issue of fact.”). Quite Simply, this Court
cannot grant summary judgment on the record before it.
A. Issues of Fact Pertaining to the “Power Conversion Means” Limitation
The Federal Circuit determined that Toyota’s accused vehicles do not meet the “power
conversion means” limitation based on the following factual determinations: (i) that the structure
in Toyota’s accused vehicles that corresponds to the “disk” in the ‘932 patent is solely the rotor
This is an appellate court. By and large, it is our place to review judicial decisionsincluding
claim interpretations and grants of summary judgment-reached by trial courts.
No matter how independent an appellate court’s review of an issue may be, it is still no
more than that - a review. With a few notable exceptions, such as some jurisdictional
matters, appellate courts do not consider a party’s new theories, lodged first on appeal.
If a litigant seeks to show error in a trial court's overlooking an argument, it must first
present that argument to the trial court. In short, this court does not “review” that which
was not presented to the district court.
(Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997)). Accordingly, Toyota’s
argument that the Federal Circuit would have necessarily considered the means-plus-function issue is
incorrect.
Toyota further asserts that Solomon cannot now contest the construction of the “power
conversion means” after stipulating to a construction in the ITC, citing Applied Med. Res. Corp. v. U.S.
Surg. Corp., 448 F.3d 1324 (Fed. Cir. 2006), MyMail v. Am. Online, 476 F.3d 1372 (Fed. Cir. 2007),
LizardTech, Inc. v. Earth Res. Mapping, Inc., 424 F.3d 1336 (Fed. Cir. 2005), and Seal-Flex, Inc. v.
Athletic Track and Court Const., 172 F.3d 836 (Fed. Cir. 1999). (Toyota’s Brief, pp. 15-16). But none of
those cases involved a situation, as here, in which a district court considered the effect of positions taken
by a party during an ITC proceeding. In that situation, the Federal Circuit has held that a party may raise
any arguments it “believes are justified.” See Texas Instruments, 90 F.3d at 1569. Moreover, the issue of
whether a limitation is a means-plus-function element is a separate and distinct issue from what structure
in the specification corresponds to the limitation assuming it is such a limitation. Solomon had only
agreed to the latter in the ITC, not the former, which is the issue here.
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shaft, as opposed to the entire rotor assembly; and (ii) that the “rotor shaft” in Toyota’s vehicles
is not part of the motor.
As to (i), if the “power conversion means” limitation is treated as a means-plus-function
limitation (which, as explained above, would be wrong), infringement is assessed by comparing
the structure disclosed in the specification of the ‘932 patent for performing the recited function
to the corresponding structure in the accused devices and determining whether the two structures
are identical or equivalent. See IMS TECH. Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1429-
1430 (Fed. Cir. 2000). Notably, the determination of corresponding structure in the accused
devices is a question of fact. Id. at 1430.
The ITC determined that Toyota’s accused devices do not include a “power conversion
means” by comparing “disks” in the ‘932 patent to the “rotor shaft” in the accused devices.
Solomon contends here, as it did before the ITC, that that comparison is incorrect. Instead, the
proper comparison is between the “disks” in the patent and Toyota’s entire “rotor assembly”—of
which the so-called “rotor shaft” is only one sub-component. The Federal Circuit never
addressed the factual issue of whether the ITC correctly identified the corresponding structure in
the accused devices. Significantly, the Federal Circuit’s reasons for affirming the ITC’s
decision, which was based on comparing a disk to a shaft, does not apply to the entire “rotor
assembly”—which is, in fact, disk-like.6 (Emadi Decl., ¶¶ 19-22).
With respect to (ii), the Federal Circuit held that Solomon disclaimed the use of shafts
and therefore found no error in the ITC’s finding that Toyota’s transaxles did not meet the
“power conversion means limitation” (as construed under 35 U.S.C. § 112, ¶ 6). (See Toyota’s
Brief at 15). The Federal Circuit based that holding on its determination that Toyota uses “rotor
shafts rather than disks” in its accused transaxles. (See id.). In doing so, however, the Federal
Circuit acknowledged that not all shafts in an integral combination had been disclaimed.
6 Toyota asserts that “Solomon did not argue that the Toyota devices have a ‘disk’ structure. (Toyota’s
Brief, p. 13). Toyota misremembers the ITC record—in fact, Solomon had argued that point.
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In particular, in order to reconcile its disclaimer holding with Figure 5 of the ‘932 patent,
which contains a shaft (namely, a sun gear extension) in the integral combination, the Federal
Circuit held that the Figure 5 embodiment was not excluded under its claim construction because
“the patentee understood the sun gear extension to be an element of the transmission unit.”
Solomon, 524 F.3d at 1313-14.7 Accordingly, under the Federal Circuit’s construction, shafts
that are elements of the transmission unit or, similarly, the motor are not disclaimed.
There is, therefore, an issue of fact regarding whether the so-called “rotor shafts” in
Toyota’s accused transaxles are each part of a respective motor. The Federal Circuit never
addressed that particular issue. However, just like the sun gear extension is an element of the
transmission unit, the so-called “rotor shaft” in Toyota’s accused product is, in fact, part of the
motor. (Emadi Decl., ¶¶ 23-24; Pesiridis Decl., ¶¶ 7-8; see also Edwards Decl., ¶¶ 8-9. There is
simply no reasonable debate on that point. In any event, there is, at the very least, a fact issue,
precluding summary judgment, regarding whether the so-called “rotor shafts” in Toyota’s
accused products are part of the motor and therefore not subject to disclaimer. 8
Solomon disputes the above factual determinations by the ITC and has submitted the
Declarations of Professor Emadi, Mr. Pesiridis, and Mr. Edwards in support of its position.
Accordingly, even under the Federal Circuit’s construction, this Court cannot rule on summary
7 Contrary to Toyota’s assertion (at Toyota’s Brief, p. 21), the Federal Circuit never found that the sun
gear extension is “not a shaft.” Nor could it—even Toyota’s expert admitted in the ITC that the sun gear
extension is a shaft. (FID at 83; see also Emadi Decl., ¶ 23).
8 Toyota asserts that it cannot infringe under the Federal Circuit’s construction, because “the Federal
Circuit held that Solomon claims a disk, not a shaft, and that ‘based on the use of shafts rather than disks,
the Toyota transaxles are not structurally equivalent to the structure disclosed in the specification of the
‘932 patent.’” (Toyota’s Brief, p. 17). Toyota is wrong. The Federal Circuit did not hold that Solomon
“claims a disk, not a shaft.” Instead, the Federal Circuit held that a disk is not structurally equivalent to a
shaft (excluding shafts like the sun gear extension in Figure 5 of the ‘932 patent) in a one-to-one
comparison. The Federal Circuit never addressed the issue of whether a disk is structurally equivalent to
a structure containing many components, one of which being identified as a shaft. There is no basis
whatsoever for concluding that the Federal Circuit would have reached the same conclusion regarding no
structural equivalence had it compared the disk shown in the ‘932 patent to the entire rotor assembly in
the accused products.
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judgment that the “power conversion means” limitation is missing from Toyota’s accused
vehicles.
B. Issues of Fact Pertaining to the “Integral Combination” Limitation
The Federal Circuit determined that Toyota’s accused vehicles did not meet the “integral
combination” limitation based on numerous factual determinations by the ITC. Most of those
determinations were, in fact, rendered irrelevant by the Federal Circuit’s claim construction—yet
the Federal Circuit nonetheless relied upon them in affirming infringement.
First, the ITC based its finding of non-infringement on its factual determination that the
element in Toyota’s accused transaxles that corresponds to the “motor element” in the “integral
combination” was solely the respective rotating magnets in motors of the accused transaxles.
(ALJ’s Final Initial and Recommended Determinations (Dkt. 29-2) (“FID”) at 114-15). See IMS
TECH, 206 F.3d at 1430. However, as explained below in connection with the “envelope”
limitation, the Federal Circuit plainly did not limit the motor elements in the integral
combination to the motor’s magnets. Under the Federal Circuit’s construction, the element in the
accused transaxles that correspond to the “motor element” in the “integral combination” is, in
fact, the entire rotor assembly. (Emadi Decl., ¶¶ 28-30). The Federal Circuit never considered
whether the “integral combination” limitation is met when the “rotor assembly,” as opposed to
just the magnets, is identified as the motor element in the integral combination.
Second, the ITC based its finding of non-infringement on its factual determination that
there is a “shaft” (namely, the “rotor shaft”) between the electric motor element and the
transmission unit element in the accused transaxles. (FID 114-15). But, in so doing, the ITC
looked only at the rotor shaft, instead of the entire rotor assembly. When the entire rotor
assembly is considered, and not just the “rotor shaft” subcomponent, it is, in fact, disk-like.
(Emadi Decl., ¶¶ 19-22). Again, the Federal Circuit never considered whether Toyota’s accused
transaxles infringe when the entire rotor assembly is considered, not just the rotor shaft.
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Third, as discussed above in connection with the “power conversion means,” the Federal
Circuit never addressed the factual issue of whether the “rotor shafts” in Toyota’s accused
vehicles are each actually part of a motor and, therefore, not subject to disclaimer under the
Federal Circuit’s decision. Again, Solomon contends that that they are part of the motor and has
provided factual support for that contention. (Emadi Decl., ¶¶ 23-24; Pesiridis Decl., ¶¶ 7-8; see
also Edwards Decl., ¶¶ 8-9).
In view of the factual issues above, even under the Federal Circuit’s construction, this
Court cannot rule on summary judgment that the “integral combination” limitation is missing
from Toyota’s accused vehicles.9
C. Issues of Fact Pertaining to the “Envelope” Limitation
The Federal Circuit determined that Toyota’s accused vehicles did not meet the
“envelope” limitation based on the ITC’s consideration of the “envelope” in Toyota’s accused
vehicles as limited to the volume in space swept out by the magnets in Toyota’s motors. (FID
115-16). The Federal Circuit, however, clearly disagreed with the proposition that the claimed
“envelope” was limited to the sweep of the magnets and expressly held that other elements could
define the envelope—specifically, certain “cylindrical masses” which the Federal Circuit
misidentified as motor elements.10 The Federal Circuit nonetheless relied upon the ITC’s factual
determination that the “envelope” limitation was not met under the ITC’s narrower definition of
envelope.
Neither the Federal Circuit nor the ITC has ever considered the issue of whether the
envelope limitation is met when the sweep of other elements in Toyota’s motors is considered,
9 As set forth in the Joint Report (Dkt. 58 at 40), Solomon disagrees with Toyota’s characterization (at
Toyota’s Brief, p. 18) of the Federal Circuit’s construction of the “integral combination” limitation.
10 In particular, the Federal Circuit held that masses 28 and 38 in Figure 6 are motor elements in an
integral combination that define the respective envelopes in the Figure 6 embodiment. See Solomon
Techs., Inc. v. Int’l Trade Comm’n, 524 F.3d at 1316. That assumption, which the Federal Circuit came
up with entirely on its own, is contrary to the positions of both parties (FID at 117) and is incorrect.
(Emadi Decl., ¶ 26; Edwards Decl., ¶¶ 10-11; Pesiridis Decl., ¶¶ 10-11). Nonetheless, it establishes that
the Federal Circuit did not construe the term envelope, as the ITC had, to be limited to the volume in
space swept out by the rotation of the magnets alone.
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not just the magnets. According to Dr. Emadi, however, that limitation is met. (Emadi Decl., ¶¶
25-27). Accordingly, even under the Federal Circuit’s construction, this Court cannot rule on
summary judgment that the “envelope” limitation is missing from Toyota’s accused vehicles.
V. This Court Must Independently Consider Solomon’s Arguments
Regarding Why there are Compelling Reasons to Modify or Clarify
the Federal Circuit’s Claim Construction
Solomon also believes that there are compelling reasons for revisiting the ITC’s claim
construction, as modified by the Federal Circuit. See, e.g., PCTEL, Inc., 2006 WL 734385, at
*8. With respect to the “envelope” limitation, the Federal Circuit based its ruling on a rationale
that it raised sua sponte and which was contrary to the arguments of both parties, as Toyota does
not dispute.11 With respect to the “integral combination” limitation (and the “power conversion
means” limitation), the Federal Circuit’s conclusion that the patentee had disclaimed shafts was
inconsistent with its rulings that other features that were similarly treated during prosecution
were not disclaimed. Also, the Federal Circuit’s construction of “integral combination” does not
clearly differentiate between shafts that are not disclaimed, such as the sun gear extension in
Figure 5, from those that are.
Solomon believes there are compelling reasons, therefore, for modifying or clarifying the
Federal Circuit’s claim construction. Contrary to Toyota’s position, this Court must
independently construe those terms. Indeed, Solomon submits it would be a violation of its due
process rights for the Court to grant summary judgment without independently considering
Solomon’s claim construction arguments. Since claim construction issues are not framed by
Toyota’s summary judgment motion, which rests solely on stare decisis, Toyota’s motion must
11 Toyota asserts that Solomon’s “sua sponte’ argument” is erroneous because the Federal Circuit is
“entitled to adopt any construction it sees fit on appeal.” Solomon’s point however is that the Federal
Circuit’s construction was based on a fundamental misunderstanding of the technology in the patent (i.e.,
that the masses are not motor elements) that Solomon never had an opportunity to address. (Emadi Decl.,
¶ 26).
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be denied so that Solomon can fully present its claim construction arguments at the appropriate
time, as set by the Court.12
VI. Solomon Requires Additional Discovery Under Rule 56(f)
Before granting summary judgment, the Court must first ensure that there is no
reasonable version of the material, disputed facts under which the non-movant could prevail and
that judgment is correct as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). Because of the dispositive nature of such motions, courts have noted the critical
importance of the need for discovery in the context of summary judgment motions. See, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To that end, in order to protect parties
against judges swinging the summary judgment axe too hastily, Fed. R. Civ. P. 56(f) provides
parties with a safety valve where they are genuinely in need of further time to marshal the facts
essential to oppose a motion for summary judgment. See, e.g., Stout v. St. Amour’s Lawn Care,
LLC, No. 6:07-cv-1882, 2008 WL 816818, at *2 (M.D. Fla. 2008).
Here, there are several, critical topics that were not fully investigated during discovery in
the earlier ITC proceedings. (See Declaration of Kenneth L. Stein, concurrently filed herewith).
Those topics include at least: (1) whether Toyota (or its suppliers) considers the “rotor shafts” in
Toyota's accused vehicles to be like the sun gear extension shown in Figure 5; (2) whether
Toyota considers the “rotor assembly” to be disk-like; (3) whether Toyota considers the volume
in space created by the rotation of all the motor elements in Toyota's accused vehicles, including
the rotor assembly, to include, to a large extent, a transmission element or vice versa; (4) whether
Toyota considers the structural elements of the “power conversion means” recited in claim 7 to
be sufficient to perform the recited function of the power conversion means; (5) the criticality
12 For the Court’s reference, Solomon has previously explained why the Federal Circuit’s construction of
envelope must be modified in the Joint Report (Dkt. 58) at 49-52, and why its construction of “integral
combination” must be modified or clarified in the Joint Report (Dkt. 58) at 35-38. Solomon has
explained above why the construction of “power conversion means” applied by the Federal Circuit was
incorrect. Again, since Toyota’s motion does not ask the Court to independently construe the claims,
Solomon does not present its detailed claim construction arguments here, which would include an
analysis of the patent, prosecution history and other evidence. Solomon, however, requests the
opportunity to present those arguments and evidence at the appropriate time.
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and importance of Solomon's patented technology to Toyota's accused hybrid vehicles; and (6)
whether Toyota willfully infringed Solomon’s patent by adopting Solomon’s patented
technology after Solomon disclosed its technology to Toyota.
Solomon believes that discovery on these topics will provide factual support for its
claims of infringement, while simultaneously contradicting and disproving Toyota’s assertions of
non-infringement, as explained in detail in the concurrently filed Declaration of Kenneth L.
Stein. Given the foregoing numerous topics of discovery that have not been fully explored and
the importance of factual determinations that will emanate therefrom, Solomon respectfully
submits that it would be a violation of due process if this Court were to grant Toyota’s motion
for summary judgment on this record.
VII. Conclusion
For the foregoing reasons, Toyota’s motion for summary judgment should be denied.
Respectfully submitted,
Dated: August 17, 2009 /s/ Kenneth L. Stein
Joseph Diamante
Kenneth L. Stein
Richard H. An
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, N.Y. 10038
Tel: (212) 806-5400
Fax: (212) 806-6006
Katherine C. Donlon
Florida Bar No.: 0066941
FOWLER WHITE BOGGS P.A.
501 E. Kennedy Blvd, Suite 1700
Tampa, Florida 33602
Direct: 813 222 2072
Tel: (813) 228-7411
Fax: (813) 229-8313
Attorneys for Plaintiff Solomon
Technologies, Inc.
Case 8:05-cv-01702-MAP Document 79 Filed 08/17/2009 Page 24 of 25
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing pleading was forwarded this date to all
counsel of record by ECF.
Dated: August 17, 2009 /s/ Richard H. An
Richard H. An
Case 8:05-cv-01702-MAP Document 79 Filed 08/17/2009 Page 25 of 25
Fivestar,
Bravo!!!
Not sure why your passing the torch but
I promise to try not to burn anything with it..
I left you a PM by the way.
Kip
U.S. ARMY
Randy218,
Fivestar, had a pretty good interpretation
of the documents, if I remember correctly.
Kip
U.S. ARMY
Fivestar,
I sent you a private message via this website,
with some questions..
Kip
U.S. ARMY
Ben-Jonson,
Thanks for the compliment.
Yeah, some of the other forums
can get really wierd, an no real
knowledge is ever passed.. just
a bunch of little pissing matches going on.
I figure we (the investors) are
all in this (particular stock) together so we might
as well help each other have a
full and complete understanding of
the stock as much as we possibly can.
I prefer to be in the know...
Kip
U.S. ARMY
Does anyone know if there are actually any
Naked Shorts around?
There has been an awful lot of activity,
which only serves to confuse.. as there
doesnt seem to be any ryhm or reason for it.
I am holding mine, and hoping for the best.
Kip
U.S. ARMY
Ben-Johnson,
What?!?! I have no idea what I am doing...
But thanks for the compliment..
Not saying I couldnt learn.. I have only
been investing since Feb. and I still dont
know my butt from a whole in the ground..
I just believe in this company (SOLM) and have
been buying as many shares of SOLM as possible..
Oh, and "CBAI" as well, I really
have high hopes for them too...October will be exciting!!
Not sure whats involved with moderating though..
Hey, Would that give me the ability to kick people
out of the forum?? like all the spammers???
Kip
U.S. ARMY