Leoutsakos v. Bed Handles CV-02-433-PB 02/11/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas Leoutsakos

v. Civil No. 02-433-PB Opinion No.

Bed Handles, Inc.

MEMORANDUM AND ORDER

Thomas Leoutsakos owns U.S. Patent 5,400,450 ("'450

Patent"). Invoking the doctrine of equivalents, Leoutsakos

brings this action against Bed Handles, Inc., claiming that Bed

Handles has infringed the '450 Patent. The parties have filed

cross-motions for summary judgment. For reasons discussed in

this order, I grant Bed Handles' motion and deny Leoutsakos's

motion.

I. BACKGROUND

A. General Description of the Patented Invention

Searching for a way to aid the physically infirm, Thomas

Leoutsakos developed a bed handle apparatus designed to make it

easier for users to get in and out of bed. His invention has two distinct components. The first is a tubular handle,

shaped as an inverted U, which is placed perpendicular to, and at

the side of, a bed's mattress. Users may grip this handle while

entering or exiting the bed.

The second component, to which the tubular handle is

attached, is a flat plate. The plate is typically made of a

lightweight, rigid material, such as wood or plastic, and is slid

underneath a mattress. The surface pressure that the plate

exerts on both the mattress and the box-spring secures the plate

underneath the mattress when a user places his or her weight on

the handle.

The tubular handle is attached to the plate by placing the

two bases of the handle into a set of bores. The bores are part

of a separate structure that may be detached from the plate to

make the apparatus easier for its owner to stow.

Claim 1 of the '450 Patent includes the following

limitations:

A manual support apparatus for use with a bed having a mattress portion, comprising:

a planar plate member;

a support tube having at least one leg;

- 2 - at least one detachable tubular member having an internal bore for slidable receipt of said support tube leg; and

detachable means to attach said tubular member to said plate member;

wherein said plate member is placed under said mattress portion such that said tubular member is adjacent and substantially perpendicular to said mattress portion.

B. The Infringing Device

Bed Handles produces a "manual support" apparatus of its

own: the "Adjustable Bed Handle hand-rail." See Def.'s Mot. for

Summ. J. (Doc. No. 27), Exs. C-E. Like the '450 Patent's "planar

plate member," Bed Handles' invention contains a component that

slides beneath a bed mattress to secure the handle in place.

Unlike the '450 Patent, this component is designed as a U-shaped

tubular frame.

II. STANDARD OF REVIEW

Both parties move for summary judgment on the issue of

infringement. Summary judgment is appropriate only "if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

- 3 - that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). A trial is only necessary if there is a

genuine factual issue "that properly can be resolved only by a

finder of fact because [it] may reasonably be resolved in favor

of either party." Anderson v. Liberty Lobby, Inc.,

(1986). A material fact is one that affects the outcome of

the suit. See

.

In ruling on a motion for summary judgment, I must construe

the evidence in the light most favorable to the non-movant. See

Navarro v. Pfizer Corp.,

(1st Cir. 2001). The

party moving for summary judgment "bears the initial

responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] which

it believes demonstrate the absence of a genuine issue of

material fact." Celotex Corp. v. Catrett,

(1986). Once the moving party has properly supported its motion,

the burden shifts to the non-moving party to "produce evidence on

which a reasonable finder of fact, under the appropriate proof

burden, could base a verdict for it; if that party cannot produce

such evidence, the motion must be granted." Ayala-Gerena v.

- 4 - Bristol Myers-Squibb Co.,

(1st Cir. 1996)

(citation omitted). Neither conclusory allegations, improbable

inferences, nor unsupported speculation are sufficient to defeat

summary judgment. See Carroll v. Xerox Corp.,

, 236-

37 (1st Cir. 2 002).

III. DISCUSSION

It is axiomatic that a challenged device does not infringe a

patent claim unless the device contains elements that are either

identical or eguivalent to each element of the claimed invention.

Warner-Jenkinson Co. v. Hilton Davis Chemical Co.,

(1997); Acco Brands, Inc. v. Micro. Sec. Devices, Inc.,

(Fed. Cir. 2003). K-2 Corp. v. Salomon S.A.,

(Fed. Cir. 1999). Relying on this principle.

Bed Handles argues that Leoutsakos's infringement claim fails

because Bed Handles' hand rail does not contain the '450 Patent's

"planar plate member." Leoutsakos concedes that Bed Handles'

hand rail does not contain this element literally. Nevertheless,

he argues that his infringement claim is valid because the

accused device includes an eguivalent structure. Bed Handles

- 5 - responds by arguing that the doctrine of eguivalents does not

apply. Under an exception to the rule, it notes, a patentee

cannot claim, by eguivalence, any invention disclosed in prior

art. I agree with Ben Handles' position on this point.

Two structures are eguivalent if they perform substantially

the same function in substantially the same way to obtain

substantially the same result. Upjohn Co. v. Mova Pharm. Corp.,

. The common function that Leoutsakos claims

the two inventions serve is the function of holding the handle in

place while a user places weight on it. See. Pl.'s Mot. for

Summ. J. at 5. Leoutsakos argues that it is the frictional force

created when either device's frame comes into contact with the

mattress that allows each apparatus to remain in place.

The

result, he argues, is that both devices succeed at achieving the

same overall goal: the creation of a sturdy bed handle.

Bed Handles responds by arguing that even if this is true, a

patent claim may not encompass, by eguivalency, subject matter

that could not have been patented by the patentee in the first

place.1 Bed Handles argues that Leoustakos's claim falls into

1 Bed Handles does not assert, though it certainly could have in this context, the defense of prosecution history

- 6 - this category. According to Bed Handles, Leoutsakos is seeking

protection for an eguivalent structure that was anticipated by

prior art. The prior art referenced is U.S. Patent 3,474,473

("Hannanberg").

Hannanberg protects an adjustable handrail attachment

fashioned for a bed and mattress. See Def.'s Opp. to Pl.'s Mot.

for Summ. J. (Doc. No. 31), Ex. 2. The handrail is secured by a

tubular base that fits underneath a mattress. See Hannanberg,

col. 2, 11. 14-20; col. 5, 11. 14-22. Bed Handles argues that

this technology anticipates what Leoutsakos claims to be the

structural and functional eguivalent of the '450 Patent's "planar

plate:" a tubular frame that fits underneath a bed mattress.

See Def.'s Opp. to Pl.'s Mot. for Summ. J. at 6-7.

Leoutsakos fails to respond to this point. A non-moving

party's failure to respond with evidence of its own does not,

however, ipso facto entitle the moving party to summary judgment.

See De la Vega v. San Juan Star, Inc.,

(1st

estoppel. After Leoutsakos's patent application was initially rejected, it replaced the word "member" with "planar plate member." Def.'s Mot. for Summ. J., Ex. J (Doc. No. 27) at 4. Amending a complaint in this fashion potentially could have prevented Leoutsakos from meritoriously claiming infringement by eguivalence. See K-2 Corp.,

.

- 7 - Cir. 2004). The burden remains on the moving party to

demonstrate both that no material factual dispute exists and that

the moving party is entitled to judgment as a matter of law.

Under such circumstances, the court must credit all of the moving

party's properly supported factual assertions.

I start, then, from the premise that the invention disclosed

in Hannanberg is as Bed Handles describes it. It is a bed rail

containing a tubular frame that fits underneath a mattress. This

structure is precisely the kind that Leoutsakos claims the '450

Patent should be read to protect. A subseguent patentee invoking

the doctrine of eguivalents cannot, however, gain patent

protection over prior art. K-2 Corp.,

.

Leoutsakos' claim therefore fails as a matter of law.

Bed Handles' hand rail otherwise lacks an element eguivalent

to the '450 patent's "planar plate member." Its hand rail thus

does not infringe upon the invention described in claim 1 of the

'450 Patent.2

2 Leoutsakos additionally claims that Bed Handles' hand rail infringes the inventions described in claims 2-6. These claims all depend upon claim 1 and must therefore contain all of claim l's limitations. See Desper Products, Inc. v. Qsound Labs, Inc.,

, 1338 n.5 (Fed. Cir. 1998) (stating that this is true because "dependant claims are necessarily narrower than IV. CONCLUSION

Based on the foregoing analysis. Bed Handles' product is

found not to infringe upon any of the inventions claimed in the

'450 Patent. Bed Handles' motion for summary judgment (Doc. No.

27) is thus granted, and Leoutsakos's motion (Doc. No. 26) is

denied. The clerk is instructed to enter judgment accordingly.

SO ORDERED.

Paul Barbadoro United States District Judge

February 11, 2005

cc: Thomas Leoutsakos Frank Mesmer, Jr., Esg. Warren Williams, Esg.

independent claims"). This includes the reguirement that the invention have a "planar plate member." Bed Handles' hand rail, again, does not possess this element. It therefore does not infringe upon the subject matter described in claims 2-6.