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Baltimore Aircoil Co., Inc. v. SPX Cooling Technologies, Inc.

United States District Court, D. Maryland.

August 22, 2016

BALTIMORE AIRCOIL COMPANY, INC.
v.
SPX COOLING TECHNOLOGIES, INC., et al.

          MEMORANDUM

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE

         Baltimore Aircoil Company, Inc. (“BAC”) filed this lawsuit against SPX Cooling Technologies, Inc., Sanderson Farms, Inc., and Eagle Mountain International Church Inc. (collectively, “SPX”), asserting infringement of U.S. Patent No. 7, 107, 782 (“the ‘782 patent”) and U.S. Patent No. 6, 820, 685 (“the ‘685 patent”), both of which relate to heat exchanger technology used in industrial cooler systems. BAC is a worldwide manufacturer and marketer of heat transfer and ice thermal storage products. SPX is a competitor in the industry related to fluid coolers. It manufactures and sells the accused product, the Marley MH Fluid Cooler. Defendants Eagle Mountain International Church and Sanderson Farms each purchased a Marley MH Fluid Cooler from SPX.

         Several motions are now pending before the court. SPX has filed (1) a motion to strike BAC’s expert report with respect to the doctrine of equivalents; (2) a motion for summary judgment of non-infringement of claims 16-18, 21-23 and 26 of the ‘782 patent and that BAC is not entitled to an earlier invention date for claims 22, 23, or 26; (3) a motion to exclude portions of the expert reports of Jeffrey K. Welch; (4) a motion to exclude the testimony of Ryan Herrington; (5) a motion for partial summary judgment of unenforceability due to laches, no willful infringement, and no entitlement to lost profits; and (6) a motion to strike the declarations of Kavita Vallabhaneni and Ryan Herrington. BAC has filed (1) a motion to strike SPX’s late-produced documents and its reliance on those documents in expert reports; (2) a motion to exclude opinions of Kimberly J. Schenk; (3) a motion to exclude opinions of James D. Wright; (4) a motion for summary judgment of no invalidity under 35 U.S.C. § 102(g); and (5) a motion for summary judgment of infringement. For the reasons that follow, BAC’s motion for summary judgment of infringement, (ECF No. 148), will be granted in part and denied in part; BAC’s motion for summary judgment of no invalidity, (ECF No. 146), will be denied; SPX’s motion for summary judgment of noninfringement, (ECF No. 133), will be granted in part and denied in part; BAC’s motion to exclude the opinions of James Wright, (ECF No. 144), will be denied; SPX’s motion to exclude portions of the expert reports of Jeffrey K. Welch, (ECF No. 134), will be granted in part and denied in part; SPX’s motion to strike the portions of Mr. Welch’s expert report regarding the doctrine of equivalents, (ECF No. 120), will be granted; BAC’s motion to strike late produced documents, (ECF No. 140), will be granted in part and denied in part; SPX’s motion to strike the declarations of Kavita Vallabhaneni and Ryan Herrington, (ECF No. 184), will be denied; BAC’s motion to exclude the opinions of Kimberly J. Schenk, (ECF No. 142), will be granted; SPX’s motion to exclude portions of the opinions of Ryan Herrington, (ECF No. 136), will be granted in part and denied in part; and SPX’s motion for summary judgment on the issue of laches and no lost profits, (ECF No. 138), will be denied.

         I. BAC’s Motion For Summary Judgment of Infringement of Claim 22

         BAC moves for summary judgment of infringement of claim 22 of the ‘782 patent. “A determination of infringement involves two steps: First, the court determines the scope and meaning of the asserted patent claims. The court then compares the properly construed claims to the allegedly infringing device to determine whether all of the claim limitations are present, either literally or by a substantial equivalent.” Innovention Toys, LLC v. MGA Entm't, Inc., 637 F.3d 1314, 1318-19 (Fed. Cir. 2011). Claim construction is a question of law whereas the second step, whether the accused product actually infringes the patent, is a question of fact. Id. at 1319. Accordingly, the court may grant BAC’s motion if no reasonable jury could conclude the MH Fluid Cooler is missing at least one limitation from Claim 22. See id. Claim 22 covers:

         A method of exchanging heat comprising the steps of

[1] providing a heat exchange apparatus having a direct evaporative section and an indirect evaporative section,
[2] the direct evaporative section comprising a plurality of fill sheets,
[3] the indirect evaporative section comprising a plurality of circuits each conducting a fluid stream,
[4] spraying an evaporative liquid generally downwardly through the direct evaporative section,
[5] moving air generally across the direct evaporative section,
[6] collecting the evaporative liquid that passes through the direct evaporative section in a respray tray,
[7] spraying the collected evaporative [liquid] through a plurality of re-spray nozzles downwardly onto the indirect evaporative section,
[8] and moving air generally downwardly and across the indirect evaporative section.

(Pl.’s Mot. Summ. J. Infringement, Ex. A, ‘782 col. 9 I. 5-20, ECF No. 149-3).[1]

         As an initial matter, SPX concedes the accused device is a “method of exchanging heat” and that several of claim 22’s limitations apply to the MH Fluid Cooler; namely, limitations 1, 2, 3, 5, and 7. (Pl.’s Mot. Summ. J. Infringement, Ex. FF, Stratman Dep. 438:15-452:4, ECF No. 149-35).[2] Accordingly, to obtain summary judgment of infringement, BAC must establish that limitations 4, 6, and 8 also apply to the MH Fluid Cooler. For the reasons discussed below, these limitations do apply to the accused product, and BAC is entitled to summary judgment of infringement of claim 22.[3]

         A. [4] “spraying an evaporative liquid generally downwardly through the direct evaporative section”

         SPX contends the limitation “spraying an evaporative liquid generally downwardly through the direct evaporative section” does not apply to the MH Fluid Cooler. The only component of this limitation addressed in the court’s Markman order is the term “generally, ” which the court did not construe because “it is a common word whose plain and ordinary meaning is clear on its face.” (Memorandum 7, ECF No. 113). The parties now dispute the construction of the limitation as a whole.

         SPX contends the word “through” should be afforded its plain and ordinary meaning. They argue for a claim construction that requires evaporative liquid to be “sprayed in one end or side of the direct evaporative section of the MH Fluid Cooler and [sprayed] out through the other.” (Opp’n Pl.’s Mot. Summ. J. Infringement 40, ECF No. 156). Pointing to other claims in the ‘782 patent referencing evaporative liquid being sprayed “across” or “onto” the direct evaporative section, SPX cites the proposition that “[i]n the absence of any evidence to the contrary, [the Court] must presume that the use of . . . different terms in the claims connotes different meanings.” Id. at 41 (quoting CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed. Cir. 2000)). That is, spraying liquid across the direct evaporative section cannot mean the same thing as spraying liquid through the direct evaporative section.

         SPX’s argument fails because this presumption is “overcome where, as here, the evidence indicates that the patentee used the [differing] terms interchangeably.” Baran v. Med. Device Techs., Inc., 616 F.3d 1309, 1316 (Fed. Cir. 2010). Namely, the specification shows that the SPX’s proposed interpretation is nonsensical in light of the intended operation and function of the direct evaporative section.[4] In describing the direct evaporative section, the specification states, “There are numerous such fill sheets in a heat exchange apparatus, with appropriate spacing to allow evaporative liquid to run downwardly across the fill sheets . . . .” (‘782 Patent col. 3 I. 53-56, ECF No. 149-3) (emphasis added). It further states, “Evaporative liquid falling downwardly and exiting direct evaporative section is collected on re-spray tray.” Id. col. 4 I. 1-2 (emphasis added). SPX’s proposed construction is irreconcilable with the preferred embodiments of the specification. “[A] construction that excludes a preferred embodiment ‘is rarely, if ever, correct and would require highly persuasive evidentiary support.’” Starhome GmbH v. AT & T Mobility LLC, 743 F.3d 849, 857 (Fed. Cir. 2014) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996)). SPX has offered no such evidentiary support. The only reasonable interpretation of this limitation is that the evaporative liquid must be sprayed generally downwardly onto or across the fill sheets and then travel through the direct evaporative section by running downwardly across the fill sheets.

         The court next looks to whether the limitation is present in the MH Fluid Cooler. SPX concedes that evaporative liquid is sprayed onto the “top of the fill sheets and then flows down over the surface of the fill sheets by gravity during operation of the MH Fluid Cooler.” (Opp’n Pl.’s Mot. Summ. J. Infringement 15, ECF No. 156). The limitation, as construed in this opinion, clearly applies to the MH Fluid Cooler.

         B. [6] “collecting the evaporative liquid that passes through the direct evaporative section in a respray tray”

         SPX also contends the MH Fluid Cooler does not have a “respray tray” as required by the limitation “collecting the evaporative liquid that passes through the direct evaporative section in a respray tray.” The court construed the term “respray tray” to mean “a tray located between the direct and indirect evaporative cooling sections for collecting unevaporated coolant and redistributing the liquid without the use of a pump.” (Memorandum 3-4, ECF No. 113). BAC points to the MH Fluid Cooler’s intermediate redistribution basin to show this limitation applies. The redistribution basin is located between the direct and indirect evaporative sections, collects unevaporated coolant, and redistributes that liquid without the use of a pump. The only dispute is whether the redistribution basin is a “tray.”

         SPX contends the intermediate redistribution basin is not a tray, arguing that “[a] tray is flat with a small lip and may not have four walls whereas a basin has deeper sides and has four walls.” (Opp’n Pl.’s Mot. Summ. J. Infringement 38, ECF No. 156). BAC points to language in U.S. Patent No. 7, 332, 116 (“the ‘116 patent”), a patent on the MH Fluid Cooler, describing the redistribution basin as a tray. SPX disputes the relevance of the ‘116 patent, arguing the current MH Fluid Cooler does not practice the ‘116 patent. In particular, they note the design of the MH Fluid Cooler was revised shortly after it was first released to remove a “thermal equalizer tray.”

         SPX’s arguments are unavailing. The ‘116 patent is relevant in analyzing the MH Fluid Cooler because, as SPX’s corporate representative conceded, the ‘116 patent “is a patent on the MH Fluid Cooler.” (Brenneke Dep. 510:4-6, ECF No. 149-34). When asked to identify the differences between the ‘116 patent and the current MH Fluid Cooler, SPX’s representative noted that the earlier model’s redistribution basin had a top cover, and this top cover was subsequently removed. Id. at 512:3-513:25. SPX’s representative, however, did not identify any other changes to the design or operation of the redistribution basin when asked if there were “any other differences between the MH Fluid Cooler and the device depicted in . . . the ‘116 patent.” (Brenneke Dep. 513:21-514:2, ECF No. 149-34).[5] SPX’s own expert concedes that the bottom of the redistribution basin, as described in the ‘116 patent, is in the form of a tray. (Reply Pl.’s Mot. Summ. J. Infringement, Ex. 8, Wright Dep. 260:7-263:8, ECF No. 183-9). Accordingly, there is no genuine dispute that this limitation applies to the MH Fluid Cooler.

         C. [8] “moving air generally downwardly and across the indirect evaporative section”

         The final point of contention regarding claim 22 is whether the limitation “moving air generally downwardly and across the indirect evaporative section” applies to the MH Fluid Cooler. The court construed this limitation to mean “moving air in a generally downward direction and generally cross-current to the flow of evaporative liquid through the indirect evaporative section.” (Memorandum 10, ECF No. 113). BAC points to SPX’s marketing materials, the ‘116 patent, and computational fluid dynamics (“CFD”) models as evidence that the limitation applies. SPX disputes the relevance of the marketing materials and the ‘116 patent, and they claim the CFD models show airflow that is generally co-current rather than generally cross-current, noting that any horizontal flow is through only a small area of the indirect section.

         SPX’s argument relies on a claim construction already rejected by this court: that generally means primarily. The limitations do not require air to flow through a certain percentage of the indirect section to be considered “generally” flowing in a particular direction; rather, they simply contemplate something more than a de minimis flow in the specified direction. Indeed, the court specifically rejected that “generally” means “primarily.” Having rejected a “primarily” interpretation, only two readings of the limitation are feasible. First, air travels through part of the indirect section in a downward direction and part of the section in a horizontal (cross-current) direction. Alternatively, air travels downward at a clear angle, exiting the indirect section to the left or right of where it entered. Both scenarios apply to the MH Fluid Cooler.[6]

         As shown below, the CFD models[7] portray air entering the indirect evaporative section of the MH Fluid Cooler from both the top and right side.[8] The air entering the right side travels in a horizontal direction before sloping downward towards the left side, exiting from the bottom or the bottom portion of the left side. The air entering through the top travels generally downward and diagonally towards the left side of the section before exiting the bottom or the bottom portion of the left side. The CFD model for the MHF7103 Tall Fill 12 Row Coil provides a clear example of the MH Fluid Cooler’s air flow pattern conforming to this limitation:

         (Image Omitted)

(Opp’n Pl.’s Mot. Summ. J. Infringement, Ex. 39, CFD Models at SPX 136274, ECF No. 156-40)

         Even the models of MH Fluid Coolers with minimal airflow entering through the right side, due to an inlet baffle extending to just below the top of the coil, have sufficient horizontal and diagonal air movement to consider this limitation applicable.[9] The CFD model for the MHF7107 Short Fill 8 Row Coil 10HP serves as a good example:

         (Image Omitted)

(CFD Models at SPX 136294, ECF No. 156-40).

         These CFD models show that no reasonable jury could find the limitation inapplicable to the MH Fluid Cooler. In each model, air at least travels at a distinct downward diagonal angle. Because the SPX has not introduced any evidence supporting its position beyond conclusory statements disclaiming cross-flow, no genuine dispute of fact exists. See Schwing GmbH v. Putzmeister Aktiengesellschaft, 305 F.3d 1318, 1326 (Fed. Cir. 2002) (“[Expert’s] conclusory statement is insufficient to raise a genuine evidentiary dispute for trial.”). Accordingly, BAC is entitled (except as to the MHF 7105 model) to summary judgment of infringement of claim 22.

         II. BAC’s Motion for Summary Judgment of No Invalidity

         BAC seeks summary judgment of no invalidity for the ‘782 patent under 35 U.S.C. § 102(g)(2).[10] It contends SPX has relied on a single date of purported conception, November 2, 1998, throughout this litigation and should therefore be prohibited from advancing invalidity arguments premised on alternative dates of conception. BAC further argues that SPX has not identified corroborating evidence of conception because it only offers (1) the testimony of interested witnesses and (2) documents that do not disclose all of the relevant claim limitations of the ‘782 patent. For the reasons discussed below, a genuine dispute of material fact precludes summary judgment for BAC.

         A. Relevant Law

         Section 102(g) provides that “[a] person shall be entitled to a patent unless . . . before such person's invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.” 35 U.S.C. § 102(g)(2) (2000). “Anticipation under § 102 requires ‘the presence in a single prior art disclosure of all elements of a claimed invention arranged as in that claim.’” Sandt Tech., Ltd. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350 (Fed. Cir. 2001) (discussing section 102(g) and quoting Carella v. Starlight Archery & Pro Line Co., 804 F.2d 135, 138 (Fed. Cir. 1998)). SPX may rely on multiple sources to establish conception;[11] however, for an invention to qualify as “prior art” that may anticipate the ‘782 patent under section 102(g), SPX must also establish a reduction to practice in which the “invention [was] sufficiently tested to demonstrate that it [worked] for its intended purpose.” Kimberly-Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1445 (Fed. Cir. 1984).

         Conception is a term of art subject to long-settled federal law:

The definition of conception in patent law has remained essentially unchanged for more than a century. It is the “‘formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice.’” Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376 (Fed. Cir. 1986) (quoting 1 Robinson on Patents 532 (1890)). At that point, “all that remains to be accomplished, in order to perfect the art or instrument, belongs to the department of construction, not creation.” 1 Robinson 532. Based on that definition, we have held that “[c]onception is complete only when the idea is so clearly defined in the inventor's mind that only ordinary skill would be necessary to reduce the invention to practice, without extensive research or experimentation, ” and that “[a]n idea is definite and permanent when the inventor has a specific, settled idea, a particular solution to the problem at hand, not just a general goal or research plan he hopes to pursue.” Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1228 (Fed. Cir. 1994). Moreover, “[b]ecause it is a mental act, courts require corroborating evidence of a contemporaneous disclosure that would enable one skilled in the art to make the invention.” Id.

Dawson v. Dawson, 710 F.3d 1347, 1352 (Fed. Cir. 2013). While SPX will bear the burden at trial of proving both conception and timely reduction to practice by clear and convincing evidence, see Novo Nordisk A/S v. Caraco Pharm. Labs., Ltd., 719 F.3d 1346, 1352 (Fed. Cir. 2013), BAC’s motion focuses on the issue of conception.[12] Accordingly, the court addresses only that issue.

         B. Multiple Possible Dates of Conception

         The court declines to limit SPX to a November 2, 1998, date of conception. BAC correctly notes that SPX repeatedly refers to November 2, 1998, as the earliest possible date of conception. BAC argues SPX should not be allowed to raise other conception dates because it failed to do so in its amended invalidity contentions. It further challenges the sufficiency of SPX’s purported corroborative evidence. BAC also characterizes SPX’s position as impermissibly relying on a “time period” because conception occurs at a single moment in time.

         As to its first argument, BAC ignores key disclosures made throughout the course of this litigation. SPX, in responding to BAC’s interrogatories, disclosed multiple alternative dates on which the court could find conception had occurred, specifically referencing steps taken in 1999 and 2003 to create a prototype for a commercial fluid cooler purportedly containing all of the asserted claims of the ‘782 patent (Opp’n Pl.’s Mot. Summ. J. No Invalidity, Ex. 12, SPX’s Second Suppl. Resp. Interrog. 6-7, ECF No. 152-20). Indeed, even SPX’s invalidity contentions state that November 2, 1998, was the earliest possible date of conception and specifically reference the March 2003 time period to establish a reduction to practice.[13] (Opp’n Pl.’s Mot. Summ. J. No Invalidity, Ex. 11, Initial Invalidity Contentions 8-9, ECF No. 152-19). These disclosures provided BAC with sufficient notice that SPX was not relying solely on the November 2, 1998, date and that any invalidity claims could involve conception on a later date. Further, BAC has not identified any binding precedent requiring SPX to advance a single date of conception.[14] SPX was not required to name only a single date of conception, and the court declines to create such a requirement.

         C. Conception Containing the Limitation “moving air generally downwardly and across the indirect evaporative section”

         The parties’ remaining arguments focus on the sufficiency of SPX’s corroborative evidence, primarily as it pertains to a November 2, 1998, conception. BAC contends that none of the non-testimonial evidence (e.g. Mr. Stratman’s notebook and November 2, 1998, memorandum) reveals a conception encompassing all of the claimed limitations of the ‘782 patent. See Singh v. Brake, 317 F.3d 1334, 1340 (Fed. Cir. 2003) (“A conception must encompass all limitations of the claimed invention . . . .”). The court agrees with BAC’s position regarding the 1998 notebook and memorandum. Neither reveal a conception encompassing the step of “moving air generally downwardly and across the indirect evaporative section, ” a limitation required by claims 22, 23 and 26 of the ‘782 patent. As previously noted, the court construed this limitation to mean “moving air in a generally downward direction and generally cross-current to the flow of evaporative liquid through the indirect evaporative section.” (Memorandum 10, ECF No. 113). The diagrams on which SPX relies show baffle sheets completely covering the left and right sides of the indirect section:

         (Image Omitted)

         (Pl’s. Mot. Summ. J. No Invalidity, Ex. E, Stratman Notebook at SPX 005881, ECF No. 147-7; Ex. F, Memorandum Dated Nov. 2, 1998 at SPX 000847, ECF No. 147-8). These diagrams suggest Mr. Stratman did not conceive of a general cross-current flow through the indirect section. The notebook excerpt accompanying these drawings makes no reference to crosscurrent airflow: “The air flows downward through the coil bundle and exits at the coil bottom. . . . The air flow is co-current with the spray flow and parallel with the water flowing through the coil bundle.” (Stratman Notebook at SPX 005883, ECF No. 147-7). Even Mr. Yang, whose CFD models SPX relies on elsewhere in this litigation, offered a similar characterization of airflow through a coil section when both sides are blocked. (Pl’s. Mot. Summ. J. No Invalidity, Ex. N, Yang Dep. 89:13-20, ECF No. 147-16).

         SPX contends the 1998 drawings reflect cross-current airflow under the “broad” definition of “generally across” advanced by BAC in its infringement motion. That is, SPX contends any amount of cross-current flow encompasses the limitation as interpreted by BAC. To accept that air entering only through the top and exiting only through the bottom of the indirect section could be construed as “generally cross-current” would render the limitation meaningless.[15] This is not the construction the court adopted in its Markman order, nor does it follow from the court’s analysis of BAC’s infringement motion. SPX relies only on attorney argument and conclusory assertions that airflow would be cross-current. The 1998 documents do not alone establish a conception encompassing all of the claimed limitations of the ‘782 patent.

         In contrast to the 1998 evidence, SPX has pointed to specific documents from 2003 that establish a genuine dispute of fact appropriate for resolution at trial. In particular, they identify instructions from February 2003 for building a cooler prototype with different coil configurations.[16] One of these configurations has baffle sheets that do not completely block both sides of the indirect section:

         (Image Omitted)

         (Opp’n Pl’s. Mot. Summ. J. No Invalidity, Ex. 41, Test Matrix at SPX000322, ECF No. 152-49). As discussed above, when airflow enters an indirect section through the top and the side, as contemplated by the diagram above, it may travel a measurable distance horizontally before moving downward and out the bottom or other side of the indirect section. At a minimum, the February 2003 instructions and drawing are sufficient to create a genuine dispute over whether Mr. Stratman and others conceived of a cooler containing the limitation “moving air generally downwardly and across the indirect evaporative section.”

         D. Other Limitations

         BAC has not identified other limitations missing from SPX’s purported conception; it offers only generalized and conclusory assertions that the device described in the 2003 instructions would not encompass all of the claimed limitations of the ‘782 patent. While SPX will ultimately bear the burden of proof in establishing invalidity, at this stage, it only need address BAC’s specific contentions. BAC cannot rely on conclusory assertions in its summary judgment motion; it must identify the “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’” that reveal an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Exigent Tech., Inc. v. Atrana Sols., Inc., 442 F.3d 1301, 1308-09 (Fed. Cir. 2006) (requiring, in the filing of a summary judgment motion, a statement “that the patentee had no evidence of infringement and pointing to the specific ways in which accused systems did not meet the claim limitations”). SPX has satisfactorily addressed the only limitation specifically raised by BAC; accordingly, BAC is not entitled to summary judgment.

         III. SPX’s Motion for Summary Judgment of Non-infringement

         SPX moves for summary judgment on three issues: First, that SPX does not infringe claims 16, 17, 18, 21, 22, 23, or 26 of the ‘782 patent because the MH Fluid Cooler does not perform the step of “spraying water generally downwardly through the direct evaporative section”; second, that BAC cannot demonstrate an invention date prior to July 12, 2004 for claims 22, 23, and 26; and third, that SPX does not infringe claims 16, 17, 18, or 21 of the ‘782 patent “because air does not flow in a generally upward direction through the direct evaporative section of the Marley MH Fluid Cooler.” (Mem. Supp. Defs.’ Mot. Summ. J. Non-Infringement 1, ECF No. 133-1). For the reasons discussed below, SPX’s motion will be granted in part and denied in part.

         A. Non-Infringement of Claims 16, 17, 18, 21, 22, 23, or 26 of the ‘782 Patent

         The court’s analysis of BAC’s motion for summary judgment of infringement establishes that the MH Fluid Cooler performs the step of spraying water generally downwardly through the direct evaporative section. Accordingly, SPX’s motion for summary judgment of non-infringement of claims 16, 17, 18, 21, 22, 23, or 26 of the ‘782 patent will be denied.

         B. Invention Date for Claims 22, 23, and 26 of the ‘782 Patent

         SPX seeks summary judgment setting BAC’s invention date for claims 22, 23, and 26 of the ‘782 patent as July 12, 2004 (the application date of the ‘782 patent). SPX ultimately will bear the burden of proof if they seek to establish invalidity via prior conception.[17] To avoid summary judgment on the issue of its own conception date, however, BAC must identify some evidence that would allow a jury to conclude it envisioned a device containing all of the relevant limitations at a date earlier than July 12, 2004. In particular, BAC must address SPX’s contention that it lacks evidence to corroborate consideration of cross-flow through the direct section prior to the inclusion of that limitation in the ‘782 patent application.

         In August 2002, BAC began developing a new line of induced draft evaporative condensers. These efforts were known as the IDC program. (Opp’n Defs.’ Mot. Summ. J. Non- Infringement, Ex. 6, IDC Objectives and Results Memorandum, ECF No. 163-7). Key to these efforts was Thomas Carter, the named inventor of the ‘782 patent. (Opp’n Defs.’ Mot. Summ. J. Non-Infringement, Ex. 23, Carter Decl. ¶1, ECF No. 163-28). The early IDC designs contemplated using counterflow fill in the direct section. Id. ¶ 20. BAC already had a model on the market that used crossflow fill. Id. ¶ 35. In the process of designing a new unit, BAC calculated the amount of counterflow fill necessary to replace crossflow fill. (Opp’n Defs.’ Mot. Summ. J. Non-Infringement, Ex. 8, IDC Evaluation at BAC041186, ECF No. 163-9). From December of 2002 until March of 2003, BAC developed an IDC prototype using counterflow fill. (Carter Decl. ¶¶ 17, 22, ECF No. 163-28). It was the prototype using counterflow fill to which Mr. Carter decided to add a respray tray on March 17, 2003. Id. ¶¶ 24-28. For the next several months, BAC continued work on the IDC counterflow prototype. Id. ¶ 29. BAC abandoned the IDC project in August of 2003. Id. ¶ 37. On July 12, 2014, BAC filed the application for the ‘782 patent, including an embodiment which called for cross-flow airflow through the direct section.

         BAC contends the conception date for claims 22, 23 and 26 was as early as March 17, 2003, the date on which Mr. Carter contemplated adding a respray tray to his invention. While BAC concedes the respray tray was added only to a counter-flow prototype, it argues for a March 17, 2003, conception date for the claims requiring cross-flow because BAC had other models on the market with cross-flow fill arrangements and had specifically contemplated the relationship between counter-flow and cross-flow fill when engineering the IDC prototype. SPX contends that Mr. Carter’s own testimony shows he had not conceived of a device containing both cross-flow fill and all of the other limitations of claims 22, 23 and 26 on March 17, 2003, and that the only documentary evidence identified by BAC predates the March 17, 2003, decision to add a respray tray-a required limitation-to the cooler.

         The evidence offered by BAC merely shows that Mr. Carter and the team working on the IDC prototype were familiar with cross-flow fill; it does not, as BAC contends, show they conceived of-that is, reached “a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice”-a cooler in which air flowed generally across the direct section along with all other limitations of claims 22, 23 and 26 in March of 2003. In his deposition testimony, Mr. Carter conceded that BAC was not using a cross-flow arrangement when Mr. Carter added the respray tray, a necessary limitation. (Pl.’s Mot. Summ. J. No Invalidity, Ex. J, Carter Dep. 113:3-19, ECF No. 147-12). He contends the team working on the IDC prototype was familiar with the ability to switch out fill arrangements and that, at the time he added the respray tray and conceived of the invention, “it would have been consistent with us to envision all types of . . . fill arrangements.” Id. at 117:1-12. He also asserted, however, that there “would have been a written document” showing the first time someone wrote down that his new design with a respray tray could be used with a crossflow fill arrangement. Id. at 117:13-17. No such document has been produced.

         BAC’s proffered evidence does not corroborate conception. BAC has not identified any document, beyond the ‘782 patent application itself, showing that Mr. Carter or another member of the IDC team had a definite and permanent idea of using cross-flow fill in a device with a respray tray and all of the other limitations of claims 22, 23, and 26. Instead, the documentary evidence only shows that the inventors were aware that cross-flow fill was commonly used in fluid coolers. To corroborate conception, more is required than showing an idea would or should have been obvious to the inventor. “For conception, [the court] look[s] not to whether one skilled in the art could have thought of the invention, but whether the alleged inventors actually had in their minds the required definite and permanent idea.” Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1232 (Fed. Cir. 1994). Absent corroboration, Mr. Carter’s self-serving testimony[18] is insufficient to create a genuine dispute of fact. BAC’s invention date for claims 22, 23, and 26 is therefore July 12, 2014, the application date of the ‘782 patent. SPX’s motion for partial summary judgment on BAC’s invention date will be granted.

         C. Non-Infringement of Claims 16, 17, 18 and 21 of the ‘782 Patent

         SPX seeks summary judgment of non-infringement of claims 16, 17, 18 and 21 of the ‘782 patent because the MH Fluid Cooler does not perform the limitation of “moving air generally upwardly through the direct evaporative section, ” which the court construed to mean “moving air in a generally upward direction through the direct evaporative section.” (Memorandum 7, ECF No. 113). This motion will be denied. There is, at minimum, a genuine dispute as to whether airflow in the direct section of the MH Fluid Coolers travels in a generally upward direction.

         SPX argues that any upward flow is incidental to the crossflow of air through the direct section and cannot reasonably be considered to be moving in a “generally upward direction.” They challenge BAC’s evidence: namely, marketing documents for the MH Fluid Cooler, a figure from the ‘116 patent, and tests conducted by Mr. Welch on a modified MH Fluid Cooler. SPX disputes the relevance or accuracy of each.

         SPX does not dispute, however, that air exits the MH Fluid Cooler at an angle of approximately 45 degrees as a result of passing through mist eliminators. (Mem. Supp. Defs.’ Mot. Summ. J. Non-Infringement 47, ECF No. 133-1). SPX contends BAC can at best show that air exits “the last few inches” of the fill sheet at ¶ 45 degree angle, which does not necessarily reflect “the overall direction of air travel through the direct evaporative section.” Id. This fact, however, is fatal to SPX’s request for summary judgment. To rule for SPX, the court would have to find that either (a) a 45 degree angle does not reflect airflow that is “generally upward” or (2) the upward airflow does not traverse enough of the indirect section to constitute flowing through it. Neither position is tenable. SPX “would not dispute that air moving through the direct section at an angle, like 45 degrees above the horizontal, could be considered both generally upward and generally across.” (Reply Defs.’ Mot. Summ. J. Non-Infringement 16, ECF No. 174).[19] Additionally, the court has already ruled that for air to flow “generally upwardly through the direct evaporative section, ” it need not move throughout the entire section. (Memorandum 8, ECF No. 113).

         SPX also points out that airflow through most of the direct section is across rather than up, and that air actually enters the direct section at a downward angle. That the air starts at a downward angle does not preclude a reasonable jury from finding that the airflow is generally upward in light of the height and angle at which it exits the direct section.[20] That airflow may also move generally across a majority of the section does not preclude application of this limitation.[21] Accordingly, SPX’s motion for partial summary judgment of non-infringement of claims 16, 17, 18 and 21 of the ‘782 Patent will be denied.

         IV. Motion to Exclude the Opinions of James D. Wright

         BAC moves to exclude the opinions of SPX’s expert witness, James D. Wright, pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702, which governs the admissibility of expert testimony, states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

         The party seeking to introduce expert testimony has the burden of establishing its admissibility by a preponderance of the evidence. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592 n. 10 (1993). A district court is afforded “great deference . . . to admit or exclude expert testimony under Daubert.” TFWS, Inc. v. Schaefer, 325 F.3d 234, 240 (4th Cir. 2003) (citations and internal quotation marks omitted); see also Daubert, 509 U.S. at 592- 95 (“The inquiry envisioned by Rule 702 is . . . a flexible one . . . .”). “In applying Daubert, a court evaluates the methodology or reasoning that the proffered scientific or technical expert uses to reach his conclusion; the court does not evaluate the conclusion itself, ” Schaefer, 325 F.3d at 240, although “conclusions and methodology are not entirely distinct from one another.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). In essence, the court acts as gatekeeper, only admitting expert testimony where the underlying methodology satisfies a two-pronged test for (1) reliability and (2) relevance. See Daubert, 509 U.S. at 589.

         BAC contends Mr. Wright’s opinions fail to satisfy Daubert and all four requirements of Rule 702 because he (1) analyzed issues using claim construction positions already rejected by the court;[22] (2) used flawed methodology to perform his own claim construction analysis; and (3) admitted his lack of expertise. The evidence identified by BAC does not compel the exclusion of Mr. Wright’s opinions. The isolated discrepancies in Mr. Wright’s testimony do not indicate to the court that his methods, or the facts on which they are based, are flawed. In contrast to the out-of-context excerpts cited by BAC, Mr. Wright’s reports show he has clear knowledge of how the court construed the claims of the ‘782 patent.[23] The court does not read Mr. Wright’s testimony or opinions as suggesting he would offer an improper claim construction argument in front of the jury.

         In any event, in ruling on the parties’ dispositive pre-trial motions, the court has determined that the MH Fluid Cooler performs the claim limitations of “moving air generally downwardly across the indirect section, ” “spraying an evaporative liquid generally downwardly through the direct evaporative section, ” and “collecting the evaporative liquid that passes through the direct evaporative section in a respray tray.” Accordingly, BAC’s challenges to Mr. Wright’s opinions on these matters are moot. To the extent SPX relies on Mr. Wright’s opinions regarding other limitations, BAC may challenge his conclusions through cross-examination. See Daubert, 509 U.S. at 596 (‚ÄúVigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but ...


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