Opinion
Case No. 1:00-CV-322
September 18, 2001
ORDER AND PARTIAL JUDGMENT
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Plaintiff American Seating Company's Motion for Partial Summary Judgment as to Defendant Transportation Seating, Inc.'s Counter-Claim alleging patent infringement of U.S. Patent No. 6,113,325 (Dkt. No. 68) is GRANTED and the Court determines as a matter of law, pursuant to Federal Rule of Civil Procedure 56, that Plaintiff's products described in this suit have not infringed U.S. Patent No. 6,113,325.
IT IS FURTHER ORDERED that Defendant's Motion for Partial Summary Judgment as to its counterclaim for patent infringement of U.S. Patent No. 6,113,325 (Dkt. No. 66) is DENIED.
IT IS FURTHER ORDERED that Defendant's Motion for Partial Summary Judgment as to breach of contract claims (Dkt. No. 70) is GRANTED IN PART AND DENIED IN PART as stated in the Court's Opinion.
IT IS FURTHER ORDERED that Plaintiff's Motion for Reconsideration (Dkt. No. 92) is DENIED.
OPINION
Pending before the Court are the following four motions of the parties: (1) Defendant and Counter-Plaintiff Transportation Seating, Inc. (hereafter "Transportation Seating") and Counter — Plaintiff Richard D. Craft's (hereafter "Craft") Motion for Partial Summary Judgment as to their claims of patent infringement against Plaintiff and Counter-Defendant American Seating Company (hereafter "American Seating") relating to U.S. Patent No. 6,113,325 (hereafter "`325 patent"); (2) American Seating's Motion for Partial Summary Judgment as to Counter-Plaintiffs' claims of patent infringement relating to the `325 patent; (3) Transportation Seating's Motion for Partial Summary Judgment as to American Seating's breach of contract claims (Counts I and II of Amended
Complaint); and (4) American Seating's Motion for Reconsideration of the Court's Opinion and Order of August 8, 2001 granting partial summary judgment to Transportation Seating concerning American Seating's patent infringement claims relating to U.S. Patent No. 5,088,038 (hereafter "`038 patent"). Because of the Court's thorough familiarity with these issues from the briefing and from previous decisions in this case, the Court dispenses with oral argument as unnecessary and reaches the rulings stated below.
FACTS
A. `325 Patent
Parties to this action have filed competing summary judgment briefs which disclose their disputes concerning the `325 patent. They have also filed extensive claim construction briefs with exhibits.
On September 29, 1997, Richard D. Craft, President of Transportation Seating, filed his application for letters patent with the United States Patent and Trademark Office (hereafter "USPTO"). The Application contained some 29 claims, all of which recited a bulkhead as an element of each of the claims. After American Seating's allegedly infringing products were placed on the market, Defendant Craft presented a preliminary amendment adding claims which did not recite a bulkhead as an element of the claims (claims 30-36). (Preliminary Amendment of April 30, 1998; Dkt. No. 52, Exhibit B, tab 4.) These latter claims were rejected by the examiner for being unpatentable over Transportation Seating's `038 patent (referred to in the rejection as the Ditch patent, since invented by James A. Ditch). (U.S.P.O. Office Action Summary of April 21, 1999, Dkt. No. 52, Exhibit B, tab 5.) Craft then presented a Supplementary Declaration under 37 C.F.R. § 1.131 for the purpose of showing that Craft had invented the bulkhead embodiment prior to the filing date of the Ditch patent. (Supplementary Declaration, Dkt. No. 52, Exhibit B, tab 12.)
Counsel for Craft then conduct interviews with the Examiner discussing the Ditch patent. (Dkt. No. 52, Exhibit B, tabs 13 and 17.) Following these interviews, Craft cancelled claims 30-36 and submitted new claims 37-40, which recited a bulkhead and which were renumbered as claims 31-35. (Preliminary Amendment, Dkt. No. 52, Exhibit B, tab 18.)
On September 5, 2000, the USPTO issued the `325 patent. The `325 patent contains all the various claims which are the subject of the Counter-Claim, including claim numbers 24, 25, 26, 28, 29, 31, 32, and 35. These various claims relate to Transportation Seating's wheelchair restraint system, which differs somewhat from American Seating's prior patent, the `038 patent.
The `325 patent regards a wheelchair tie-down system for use in buses. According to the patent, the objective of this invention is, in part, "is to provide a three-point wheelchair restraint system wherein the anchor member structures may be stored out of sight when not in use to provide a safe and easy to use environment." (`325 patent at col. 1.) Thus, the drawings of the invention depict a bulkhead of substantial size for the stowage of the anchoring device. (`325 patent at Figures 1-7A.) The specification language describing the preferred embodiment of the invention describes the front bulkhead with reference to Assembly D of Figure 3, which also depicts a substantial bulkhead which completely encloses the anchor structures as part of the assembly when not deployed. (`325 patent at columns 4-5 and Figure 3.) The specification language describes the anchor member as completely stowed within the front bulkhead when the restraint devices are not deployed. (`325 patent at columns 4-5 and Figures 1-3.) According to the specification language, when the housing which receives the anchor device is in its stored position, the anchor and belt assemblies are securely stowed, within the bulkhead, clearly out of a position in which passengers may trip upon them. (`325 patent at column 5.)
Central to the instant Counter-Claim are the parties' warring interpretations of claims 24 and 31. The language of claim 24 reads as follows:
While other claims are also the subject of the suit, the briefing of the parties essentially agree that those other claims rise and fall with the interpretations of claims 24 and 31 since they employ the same crucial terminology.
A wheelchair restraint system for a mass transportation vehicle having a longitudinal vehicle axis, said vehicle having a securement area for a wheelchair which includes at least one flip seat, said system compromising:
a barrier carried at a rear portion of said securement area and disposed generally transverse to the longitudinal vehicle axis;
a rear wheelchair attachment assembly earned by said rear barrier for anchoring said wheelchair to said barrier;
a personal securement belt assembly for securing a seated wheelchair occupant to said wheelchair in said securement area;
a front bulkhead extending generally transverse to the longitudinal vehicle axis at a front portion of said securement area;
a front wheelchair attachment assembly for anchoring said wheelchair to said bulkhead;
said front bulkhead providing a first anchor location; and said front bulkhead including an extendable anchor member which extends transverse relative to the longitudinal vehicle axis providing a second anchor location, said anchor member being extendable between a stored position in which said anchor member is stowed retracted in a non-operating position and a deployed position wherein said anchor member is extended from said bulkhead; and
said front wheelchair attachment assembly securing said wheelchair to said first anchor location on said bulkhead and to said second anchor location on said extendable anchor member when said anchor member is in said deployed position.
(`325 patent at columns 9-10.)
Claim 31 reads as follows:
A wheelchair restraint system for a mass transit vehicle having a vehicle axis comprising:
a securement area in said vehicle for receiving a wheelchair;
a first wheelchair attachment assembly carried by said vehicle adjacent a first boundary of said area for attachment to first portions of said wheelchair;
a bulkhead assembly located near a secondary boundary of said area opposite said first boundary, said bulkhead assembly including a stationary housing and a movable anchor, said anchor being movable along a longitudinal axis thereof substantially transversely of said vehicle axis between an operative position spaced from said housing and a retracted position substantially within said housing;
a second wheelchair attachment assembly including a first retractable belt assembly carried by said stationary housing and a second retractable belt assembly carried by said anchor for attachment to second portions of said wheelchair opposite said first wheelchair portions; whereby,
a wheelchair may be positioned in said area, said first wheelchair attachment assembly may be attached to said first portions of said wheelchair, said anchor may be moved from said retracted position to said operative position, said first and second retractable belt assemblies may be engaged with said second portions of said wheelchair securing said wheelchair by said first and second retractable belt assemblies within said area.
(`325 patent at columns 10-11.)
Most of the parties' briefing focuses a comparison of the claim language from the `325 patent to figures 8A and 8B of the `038 patent. There is apparent agreement that figures 8A and 8B of the earlier `038 patent illustrate the manufacture of the allegedly infringing American Seating products. These American Seating products are described more particularly in the Declaration of John Adelsperger of June 11, 2001 and Supplementary Declaration of John Adelsperger of June 15, 2001. John Adelsperger is a director of engineering for a products group of American Seating. His Declaration and Supplementary Declaration more particularly describe the allegedly infringing American Seating products (which are sold under the trademark "the A.R.M."). According to Adelsperger's Declaration, there are two versions of the A.R.M. product. (Adelsperger Declaration at ¶¶ 5-7.) The first version is depicted in figures 8A and 8B of the `038 patent which shows a movable securing element extending from a fixed outer tube. ( Id. at ¶ 6.) The movable element extends from the tube three and one-half inches in its fully retracted position. ( Id.) In the second version, the movable element extends from the outer tube one-half inch in its fully retracted position. ( Id. at ¶ 7.) In both versions, a large mounting plate is employed at the end of the movable securing element and the plate extends outside the outer tube. ( Id. at ¶ 8.) In both versions, the presence of the mounting plate and retractor housing outside of the outer tube pose a tripping hazard when deployed in certain positions. ( Id. at ¶ 8.) According to Adelsperger, the term "bulkhead" when used in transportation refers to a compartment created by barriers or partitions and the A.R.M. products in question are not of sufficient vertical or horizontal extent to be deemed a bulkhead. ( Id. at ¶ 11.)
According to Adelsperger's Supplementary Declaration, in both versions of the A.R.M. the fixed outer tube is to be mounted three-quarters of an inch above the bus floor. (Suppl. Decl. at ¶ 2.) In both versions, the outer tube has two and one-half inches of vertical height and the movable securing element has two inches of vertical height. ( Id.) The extended length of the system is approximately 26-27 inches and the retracted length of the system is approximately 16 inches. ( Id.)
2. Breach of Contract
Transportation Seating filed a lawsuit in the United States District Court for the Middle District of Georgia in 1990 seeking a declaratory judgment that it had not infringed American Seating's U.S. Patents Nos. 4,252,341 and 3,873,155, Canadian Patent No. 1,112,146, and American Seating's trademark rights relating to those patents. While that lawsuit was eventually dismissed without prejudice sua sponte by the district court, the parties reached a Settlement Agreement and Licensing Agreement in July 1991 for the purpose of avoiding future disputes. (Defendant's Motion for Partial Summary Judgment, Dkt. No. 70, attachment A.) Under the Agreement, Transportation Seating was required to pay royalties to American Seating when Transportation Seating's net sale of the specified products (Transportation Seating's Model No. 1111) per royalty year exceeded 16,000 units and a graduated scale for licensing payments was designed depending on the extent of the net sales. ( Id. at § 3.2) According to the Affidavit of Larry George, who is the Financial Officer for Transportation Seating, and his later Declaration, these sales limits have never been met and the obligation to pay royalties under the Agreement has not been triggered. (See George Affidavit at ¶ 7 and attached chart; George Declaration at ¶ 5 and attached chart.)
In 1992, American Seating sued Transportation Seating in the United States District Court for the Western District of Michigan, Case No. 1:92-CV-790, claiming patent infringement of United States Patents Nos. 4,917,931 and 5,061,539 and Canadian Patent No. 612,154. In 1993, the suit was settled by means of a Settlement Agreement and License. (Dkt. No. 70, attachment C.) The Settlement Agreement related to Transportation Seating's sale of its "Super Tough" seat inserts (identified in the Agreement as Class I Licensed Products) and other seat inserts which have a bond strength of equal or greater to American Seating's VR50 seat insert (identified as Class II Licensed Products) as well as other products substantially identical to those products in bond strength. ( Id. at §§ 2.14 and 2.15.) As to Class I Products, the Agreement called for Transportation Seating to pay $3.24 per unit sold more than 7,500 per royalty year. As to Class II Products, the Agreement called for a simple royalty of $3.24 per unit sold per royalty year. ( Id. at §§ 4.00 and 4.01.) Under Section 4.01 of the Agreement, a yearly accounting was to be completed by Transportation Seating within 30 days of the end of each royalty year and the payment of royalties due was to be made at the time of the accounting. Section 5.2 of the Agreement also allowed American Seating the right to terminate the Agreement in the event that Transportation Seating had not paid royalties in arrears within 45 days of notice of those royalties. ( Id. at § 5.02.) Apparently, no written notification of the amount due under the Agreement was provided to Transportation Seating in advance of this suit. As to the 1993 Agreement, Larry George of Transportation Seating has determined that royalties are due in the total amount of $26,406.09 based on relevant Transportation Seating sales as adjusted by Producer Price Index figures in accordance with the Agreement. (George Declaration at ¶¶ 6-9 and attached chart.)
American Seating's Vice-President of Sales, David McLaughlin, has provided his Affidavit in opposition to Transportation Seating's Motion. The McLaughlin Affidavit states that the information contained in the George Affidavit is mistaken in that it makes false assumptions about the number of Transportation Seating sales which fall within the licensing agreements. McLaughlin believes that George Affidavit substantially understates Transportation Seating sales covered under the Agreement and that a correct calculation would result in significantly larger royalty figures. (See McLaughlin Affidavit at ¶ 5.) McLaughlin also attacks the George Affidavit for failing to provide sufficient supporting data to justify the conclusions as to sales subject to the licensing agreement. One of American Seating's attorneys, Conrad Clark, has also estimated that the George Affidavit substantially understates royalties due under both Agreements based upon other data learning in discovery including production planning sheets and Gator Stamping invoices. (See Clark Affidavit at ¶¶ 12-18.)
3. `038 Patent Infringement
Facts pertinent to the Motion for Reconsideration relating to this Court's grant of summary judgment as to the `038 patent infringement claims are not repeated here. Those facts are sufficiently stated in the Court's Opinion of August 8, 2001, which discussion is incorporated here by reference, as amplified by the further discussion below.
STANDARD FOR SUMMARY JUDGMENT
These cross-motions are brought pursuant to Federal Rule of Civil Procedure 56. Under the language of Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show 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. The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden then shifts to the non-movant to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). If, after adequate time for discovery on material matters at issue, the nonmovant fails to make a showing sufficient to establish the existence of a material disputed fact, summary judgment is appropriate. Celotex Corp., 477 U.S. at 323.
Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences are jury functions. Adams v. Metiva, 31 F.3d 375, 382 (6`" Cir. 1994). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor. Celotex Corp., 477 U.S. at 323 (quoting Anderson, 477 U.S. at 255). The factual record presented must be interpreted in a light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Rule 56 limits the materials the Court may consider in deciding a motion under the rule: "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir. 1995) (quoting Federal Rule of Civil Procedure 56(c)). Moreover, affidavits must meet certain requirements:
[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
Fed.R.Civ.P. 56(e). The Sixth Circuit has held "that documents submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded." Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993). Thus, in resolving a Rule 56 motion, the Court should not consider unsworn or uncertified documents, Id., unsworn statements, Dole v. Elliot Travel Tours, Inc., 942 F.2d 962, 968-969 (6th Cir. 1991), inadmissible expert testimony, North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1280 (6th Cir. 1997), or hearsay evidence, Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996); Wiley, v. United States, 20 F.3d 222, 225-226 (6th Cir. 1994).
Of course, summary judgment is proper under Rule 56 only if a party has had a reasonable opportunity for discovery. For this reason, Rule 56(f) contains a procedure for requesting that the Court continue the consideration of a summary judgment motion pending necessary discovery. The Rule provides in pertinent part:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the parties' opposition, the Court may refuse the application or order a continuance to permit . . . discovery to be had . . . .
F. R. Civ. Proc. 56(f). The Sixth Circuit Court of Appeals has interpreted this provision as requiring an affidavit which states that the party cannot presently present facts to oppose the motion, that the party expects to uncover material facts in additional discovery, and an explanation why those facts have not been uncovered earlier. Cacevic v. City of Hazel Park, 226 F.3d 483, 489 (6th Cir. 2000). Rule 56(f) is not intended to benefit those injured by their own lack of a diligence and a lack of diligence by trial counsel in timely seeking discovery does not warrant relief under the Rule. Berkeley v. Home Insurance Co., 68 F.3d 1409, 1414 (D.C. Cir. 1995).
SUMMARY JUDGMENT MOTIONS
1. `325 Patent
American Seating argues in its Motion and other briefing that the `325 patent is not infringed by its A.R.M. products because: (a) none of its products have a "bulkhead" as that term is commonly used in the transportation trade; (b) none of its products have an anchor member which is stowed within a bulkhead; (c) none of its products have a housing capable of receiving an anchor member substantially within it. Transportation Seating argues in its Motion and other briefing that the `325 patent, and more particularly claims 24 and 31 are infringed by American Seating's recently produced products in that figures 8A and 8B meet each of the required elements of the claim language of claims 24 and 31. These competing arguments were made at length in both the summary judgment briefing and the claim construction briefing by the parties relating to the `325 patent.
Of course, the patent claims define the patentee's property rights in the claimed invention not unlike a property description in a deed defines a land owner's right to possess real property. In re Vamco Machine and Tool, Inc., 752 F.2d 1564, 1577 n. 5 (Fed. Cir. 1985). Construction of the patent claim language is a matter of law for the courts to determine and explicate on the record. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1994) (en banc), aff'd, 517 U.S. 370 (1996); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1581-82 (Fed. Cir. 1996). In the now famous Vitronics decision, the Federal Circuit sought to explain the proper legal methods for making this determination. In making this determination,
It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history. . . . Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.
First, we look to the words of the claims themselves, both asserted and non-asserted, to define the scope of the patented invention. . . . Although words in a claim are generally given their ordinary and customary meaning, a patentee may choose to be his own lexicographer and use terms in a manner other than their ordinary meaning, as long as the special definition of the term is clearly stated in the patent specification or file history . . . .
Thus, second, it is always necessary to review the specification to determine whether the inventor has used any terms in a manner inconsistent with their ordinary meaning. The specification acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication. . . . As we have repeatedly stated, "[c]laims must be read in view of the specification, of which they are a part." . . . The specification contains a written description of the invention which must be clear and complete enough to enable those of ordinary skill in the art to make and use it. Thus, the specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.
Third, the court may also consider the prosecution history of the patent, if in evidence. . . . This history contains the complete record of all the proceedings before the Patent and Trademark Office, including any express representations made by the applicant regarding the scope of the claims. As such, the record before the Patent and Trademark Office is often of critical significance in determining the meaning of the claims . . . .
In most situations, an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term. In such circumstances, it is improper to rely on extrinsic evidence. . . . In those cases where the public record unambiguously describes the scope of the patented invention, reliance on any extrinsic evidence is improper. The claims, specification, and file history, rather than extrinsic evidence, constitute the public record of the patentee's claim, a record on which the public is entitled to rely. In other words, competitors are entitled to review the public record, apply the established rules of claim construction, ascertain the scope of the patentee's claimed invention and, thus, design around the claimed invention. . . . Allowing the public record to be altered or changed by extrinsic evidence introduced at trial, such as expert testimony, would make this right meaningless. . . . The same holds true whether it is the patentee or the alleged infringer who seeks to alter the scope of the claims.
Vitronics, 90 F.2d at 1581-83 (citations omitted). The Vitronics Court then went on to reverse a trial court holding which relied upon expert testimony in construing claim language determined to be unambiguous in light of the specification language.
Construction of all of the patented claims turns on a construction of the term "bulkhead." Transportation Seating contends that a "bulkhead" refers to any boxlike structure and that because American Seating's A.R.M. products contain a boxlike structure for receiving the anchor mechanism that the products fall within the claim language describing a "bulkhead." American Seating contends that the term "bulkhead" refers to a boxlike structure of substantial horizontal and vertical length which functions as a partition. The specification language at issue did not employ any definition of the term "bulkhead." However, it explained that term by referring to assembly D, which was marked on the various drawings contained in the patent. Assembly D, within those drawings, depicts a bulkhead of substantial size which acts as a partition. The specification also explained the term "bulkhead" in referring to one of the chief purposes of the patent — which was to prevent tripping hazards associated with the exposed mechanisms of the prior art (which included an exposed mounting plate, anchor and retractor housing) when the mechanisms were not deployed. The suggestion that the "bulkhead" and "bulkhead" assembly could be as small as the exposed mechanisms utilized in the prior art would defeat the purpose of the invention because it would substitute tripping over and tangling in the bulkhead for tripping over and tangling in the prior art's exposed mechanisms, including the anchor member, retractor housing and mounting plate. This construction of the term "bulkhead" is also confirmed by the file history. The file history, as explained in this Opinion, shows that deliberate changes were made to the claim language for the purpose of distinguishing the patent claims from the claims in the Ditch patent. The point of this distinction was the function of this invention in preventing tripping by concealing previously open anchor and locking mechanisms within a bulkhead. Given this file history, the prosecution history confirms American Seating's reading of the term "bulkhead" as referring to a structure of substantial, three-dimensional size which defeats tripping by enclosing in a partitioned manner the front locking mechanisms including anchor member and belt assemblies.
While the above construction is unambiguous and does not require reference to extrinsic evidence, the Court also determines that the extrinsic evidence on record supports this construction of the term "bulkhead." Of the dictionary definitions proffered by the parties, the most pertinent definitions are those definitions utilized within the transportation sectors, which definitions support American Seating's understanding of the term as meaning a bulkhead of substantial three-dimensional size which functions as a partition. The expert testimony of John Adelsperger, contained in his Declaration and Supplementary Declaration, also supports this interpretation of the term "bulkhead" by American Seating and further supports the conclusion that the A.R.M. products do not utilize a "bulkhead" as so defined.
Similarly, the meaning of the terms "stowed" and "retracted position substantially within said housing" is unambiguous and may be determined from the intrinsic evidence of record, including the claim language, specification and prosecution history. American Seating understands the term "stowed" to mean that the anchoring mechanism is put completely out of the way of passengers, such as by use of a bulkhead, when not deployed. Transportation Seating understands the term "stowed" to mean that the anchoring mechanism is put sufficiently out of the way of passengers to prevent usual tripping. The A.R.M. products manufactured by American Seating do not completely stow their anchoring mechanisms as indicated in the Adelsperger Declarations and the drawings depicting the products. The specification language of the patent states that the anchor and belt assemblies are to be stowed "clearly out of a position in which a regular passenger may trip over the structure." (`325 patent, at col. 5, lines 10-12.) Given also the prosecution history, which tends to show that the application was modified to make clear that the bulkhead feature posed less of a tripping hazard then the prior art in that the relevant assemblies were completely stowed, the Court determines as a matter of law that the patent language means that the anchoring mechanism is completely stowed within the bulkhead and is completely out of the way of passengers.
The above construction of the term "stowed" also recommends a similar construction of the terms "substantially within it" used in the claim language in referring to the positioning of the anchor member when the anchor member is in its retracted position. The prosecution history of the patent similarly dictates that the anchor member be, in all material parts, within the bulkhead housing to prevent tripping. This reading is also confirmed by the specification language which refers to this element of the claim by referencing drawings showing that the anchor member is entirely enclosed in the housing and shut within a door so that no material portion of the anchor member and belt assemblies are seen by passengers. (`325 patent at col. 5, lines 10-15, figures 2 and 7.) The function of the door makes it physically impossible for material parts of the anchor member to extend from the housing when in the retracted position. Finally, the descriptions of the allegedly infringing A.R.M. products in drawings and in the Adelsperger Declarations make clear that the products do not function as described in this claim language since a significant portion of the anchoring device is not retracted in both models of the A.R.M. product.
As such, for all of the reasons stated, the Court determines as a matter of law that American Seating is entitled to summary judgment on Transportation Seating's counterclaim asserting infringement of the `325 patent.
2. 1991 and 1993 Settlement Agreements
With respect to the 1991 Agreement, Transportation Seating has argued that it is entitled to summary judgment because there is no sufficient evidence supporting the proposition that royalty provisions of the Agreement were called into play by more than 16,000 net sales of the licensed products per royalty year. With respect to the 1993 Agreement, Transportation Seating has argued that it is entitled to summary judgment because notification of past royalties by American Seating is a condition precedent to suit.
Upon inspection of the evidence of record and the pertinent contracts, the Court determines that Transportation Seating is entitled to summary judgment as to the 1991 Agreement, but is not entitled to summary judgment as to the 1993 Agreement except in one respect. The issue surrounding the 1991 Agreement, since there are no disputes as to the contract terms relating to the licensing payment obligations, turns on the sufficiency of the evidence offered by the opposing parties. Before addressing these issues, the Court must address the question of whether American Seating is entitled to a continuance under Rule 56(f) because Transportation Seating allegedly failed to timely answer document requests and because the parties have stipulated to a continuation of discovery until September 15, 2001. It is noteworthy that the Affidavit of Conrad Clark does not meet the literal requirements of Rule 56(f) in that it does not state that additional discovery is necessary to defend the summary judgment motion. Even assuming that the Affidavit implies such, which it does not because it wishes to leave the implication that American Seating's evidence is sufficient, the Affidavit does not justify a further delay in the motion practice of this case in light of other facts of record. As indicated in Transportation Seating's Reply Brief, American Seating received all of the documents underlying George's accounting in December 2000. (Defendant's Reply, Dkt. No. 85, at 6 and Exhibit 2.) American Seating could have intelligently conducted the deposition of George any time between August 9, 2000 (the commencement of discovery) and the motion filing deadline of June 15, 2001. American Seating has offered no sufficient reason for failure to conduct that deposition before the motion filing deadline. As such, the Court determines that American Seating has not met the requirements of Rule 56(f), that American Seating has already had more than an adequate opportunity for discovery, and that a further continuance would be unjust to Transportation Seating given its own reliance on the scheduling in this suit.
With that said, the evidence filed by the parties is distinctly one-sided as to the breach of contract claim relating to the 1991 Agreement. Transportation Seating's Declarant, Larry George, is the Financial Officer for Transportation Seating. He has prepared his Affidavit and Declaration based on his personal knowledge of Transportation Seating's production gleaned from his preparation and review of relevant company accounting records. While the Affidavit and Declaration are somewhat suspect because supporting documentation was not filed with them, they nevertheless support the proposition that the royalties were not triggered under the 1991 Agreement given the Declarant's knowledge of those records garnered from his performance of his official duties. On the other hand, neither David McLaughlin nor Conrad Clark have any personal knowledge to support their conclusions that the George figures are understated. Their statements reveal that they are making conjectures and guesses based upon incomplete information about the quantity of relevant product sales for the competing company. Such affidavits do not meet the personal knowledge requirement of Rule 56(e) and must be wholly disregarded. See Dole, 942 F.2d at 968. As such, summary judgment will be granted as to the 1991 Agreement since the only reliable information of record supports that no royalties were due under this Agreement.
As to the claim for breach of the 1993 Agreement, Transportation Seating's argument depends on its legal interpretation that the language in the Agreement relating to notice by American Seating required American Seating to provide notice of royalty arrears as a condition precedent to suit. As the Michigan courts have stated continually and for many years, the object of contract interpretation is to give effect to the words of the contract and not to re-write contracts in the guise of interpretation. Upjohn Co v. New Hampshire Ins. Co., 476 N.W.2d 392, 397 (Mich. 1991); Virgil v. Badger Mutual Ins. Co., 109 N.W.2d 793, 795 (Mich. 1961). When a contract is unambiguous, the courts are required to simply give effect to those unambiguous terms. In this instance, the contract is not ambiguous and simply contains no requirement that notice be given as a precondition to suit. The normal payment process anticipated by the Agreement, as stated in Section 4.01 of the Agreement, does not rely upon notice by American Seating, but rather contemplates that Transportation Seating will conduct yearly accountings to determine royalties and that payments will be made in accordance with the accountings. There are no provisions of the Agreement requiring notice as a precondition of suit and there is no sufficient reason apparent from the Agreement for reading the termination provision as imposing that requirement.
As such, summary judgment will be denied Transportation Seating as to the claim for the alleged breach of the 1993 Agreement except in one respect. This exception concerns Transportation Seating's request, in the alternative, that damages for breach of the Agreement be limited to delinquent royalty payments. This alternative request was not responded to by American Seating and is precisely the intent of the Agreement. By fashioning a license agreement, the parties intended that, in the absence of the termination of the agreement in which case all sorts of judicial remedies would be available, that American Seating would be limited to the royalty payments from Transportation Seating for the use of the licensed technology. Accordingly, summary judgment will be granted to the extent that damages for non-payment of royalties will be limited to the unpaid royalties due under the 1993 Agreement plus statutory interest.
MOTION FOR RECONSIDERATION
Under Local Rule 7.4(d), reconsideration is mandated only in those instances where there is "a palpable defect by which the Court and the parties have been mislead . . . ." Such defects must be plain from the initial papers filed and not supplementary papers which a party determines to belatedly file. See Sault St. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (stating that motions under Fed.R.Civ.P. 59(e) "are aimed at re-consideration, not initial consideration"); United States v. A.F.F., 144 F. Supp.2d 809, 811-812 (E.D.Mich. 2001) (stating that reconsideration must be based on errors plain from the previous record and not based on supplementary materials).
In this case, Plaintiff has not shown an obvious error by which this Court was misled. This is particularly true since the Supplementary Declaration of Keith McDowell is new to these proceedings. Nevertheless, even considering the Supplementary Declaration and the other arguments made by Plaintiff, the Court believes that its previous decision granting summary judgment was proper for the reasons identified in its previous Opinion and the reasons previously argued by Transportation Seating. As such, the Motion for Reconsideration will be denied.
CONCLUSION
In accordance with this Opinion, an Order and Partial Judgment shall enter resolving the pending motions as stated above.