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Delta Frangible Ammunition, LLC v. Sinterfire

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


April 23, 2008

DELTA FRANGIBLE AMMUNITION, LLC, PLAINTIFF,
v.
SINTERFIRE, INC., DEFENDANT.

The opinion of the court was delivered by: Judge McVerry

Magistrate Judge Caiazza

ORDER

The Defendant's Motions for partial summary judgment (Docs. 57 & 62) will be denied without prejudice pending the court's Markman rulings.

At the very least, Sinterfire's summary judgment Motions are informed by the claims construction arguments advanced at the Markman hearing. Compare, e.g., Def.'s Br. regarding patent invalidity (Doc. 58) at 3 ("SinterFire bullets are not 'sintered' as that term is used in the . . . patent [in suit, or 'PIS'], but are heat treated at a temperature below which sintering occurs") with Joint Disputed Claims Construction Chart (Doc. 45) at 2 (parties dispute whether "sintering" means "heating" "at a temperature ranging from 1400 to 1900§F"); Def.'s Br. at 11 (conceding that factual issue remains regarding definition of "bronze") with Chart at 8 (disagreement regarding meaning of phrase "powder is bronze"); Def.'s Br. at 13, 18-23 (obviousness inquiry involves "differences, if any, between the invention and the prior art") with Markman hearing Tr. (basing claims construction arguments on lengthy prosecution history, which included comparisons between prior art and PIS); compare also, e.g., Def.'s Br. regarding non-infringement (Doc. 63) at 2-3, 7 (arguing that Defendant's manufacture does not involve "sintering" because process uses lower temperatures than PIS) with Chart cited supra (highlighting disputes regarding whether PIS's "sintering" includes restrictive temperature range); Def.'s Br. at 8 (Plaintiff cannot avail itself to doctrine of equivalents because of "prosecution history estoppel") with discussion supra (noting Defendant's extensive reliance on prosecution history at Markman hearing).

Placing the Defendant's summary judgment arguments ahead of claims construction is of little utility, and would create the potential for unnecessary adjudicative risk. Only once the court has considered the evidence and testimony presented at the Markman hearing, and ruled on claims construction, will it be equipped to address the Defendant's summary judgment arguments with care and consistency.*fn1

For all of these reasons, the Defendant's Motions for partial summary judgment (Docs. 57 & 62) are denied without prejudice to renewal after claims construction.

IT IS FURTHER ORDERED that the Plaintiff's deadline for responding to summary judgment is VACATED, and the court's deadlines for Markman submissions remain unaffected.


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