Furminator, Inc. v. Kim Laube & Co. (758 F. Supp. 2d 797, 2010)

Citations

758 F. Supp. 2d 797

Full opinion text

MEMORANDUM AND ORDER

RICHARD E. WEBBER, Senior District Judge.

This matter comes before the Court on Plaintiffs Motion to Strike Table 1 from the August 14, 2009 Rebuttal Declaration of Christopher Ramsay, Ph.D. [doc. #291]; FURminator’s Motion for Summary Judgment of Infringement as to the Accused Laube Tools [doc. # 322]; FURminator’s Amended Motion for Summary Judgment of Validity over Kim Laube & Co., Inc.’s Asserted References under 35 U.S.C. §§ 102 and 103 and 35 U.S.C. § 112 [doc. # 324]; FURminator’s Amended Motion for Summary Judgment on Counts V through X of Kim Laube & Co., Inc.’s Complaint [doc. # 326]; Plaintiffs Motion for Summary Judgment on Count IV of Kim Laube & Co., Inc.’s Complaint Alleging Inequitable Conduct [doc. # 328]; Plaintiffs Amended Combined Motion and Memorandum to Exclude Testimony of Edward Renner [doc. #330]; Plaintiffs Amended Combined Motion and Memorandum to Exclude Testimony of Kim Laube Based on the Court’s December 21, 2009 Order and Because Mr. Laube’s Testimony Does Not Meet the Requirements of DaubeH [doc. # 331]; Plaintiffs Amended Combined Motion and Memorandum to Exclude Testimony of Pamela Lauritzen Based on the Court’s December 21, 2009 Order and Because Ms. Lauritzen’s Testimony Does Not Meet the Requirements of Daubert [doc. # 332]; Plaintiffs Amended Motion to Exclude or Limit Testimony of Robert O. Schick and Memorandum in Support [doc. # 333]; Plaintiffs Amended Motion to Exclude or Limit Testimony of Shawn Fox and Memorandum in Support [doc. # 334]; Plaintiffs Motion to Exclude or Limit Testimony of Dr. Christopher Ramsay and Memorandum in Support [doc. # 335]; Defendant Kim Laube & Co., Inc.’s Motion for Partial Summary Judgment Relating to No Evidence of Infringement [doc. # 341]; Plaintiffs Amended Motion and Memorandum in Support to Strike or in the Alternative to Exclude Paragraph 7 from the July 30, 2009 Supplemental Declaration of Pamela Lauritzen [doc. # 343]; Defendant’s Motion In Li-mine to Exclude Testimony from Plaintiffs Retained Expert David H. Judson [doc. # 344]; Kim Laube & Co.’s Motion [to] Strike Untimely Replies [doc. # 382]; and Kim Laube & Co., Inc.’s Motion and Memorandum for Sanctions Based on Plaintiffs Knowing and Willful Filing of False Statements [doc. # 384].

I. BACKGROUND

On February 26, 2008, FURminator, Inc. filed suit against Munchkin, Inc. and Kim Laube & Co., Inc., in the Eastern District of Texas. The lawsuit involved allegations of infringement of United States Patent 7,334,540 (“the '540 Patent”). The '540 Patent protects the alleged invention of David R. and Angela L. Porter, specifically a pet grooming tool that quickly and effectively removes loose hair from pets, such as dogs and cats, to reduce shedding. The '540 Patent is the fourth patent in a series of related patents, the first of which was United States Patent 6,782,846 (“the '846 Patent”).

Shortly after FURminator, Inc. filed its lawsuit in the Eastern District of Texas, Munchkin, Inc. and Kim Laube & Co., Inc. filed this lawsuit against FURminator, Inc. and PorterVision, Inc., in the Eastern District of Missouri. Munchkin, Inc. and Kim Laube & Co., Inc.’s lawsuit sought declaratory judgments for noninfringement and invalidity of the '540 Patent, and also alleged various non-patent claims. FURminator, Inc. and PorterVision, Inc. filed a motion with this Court, seeking to have the Missouri case transferred to the Eastern District of Texas, but the motion was denied. Thereafter, the Parties agreed that FURminator, Inc. would voluntarily transfer its Texas case to the Eastern District of Missouri, to be consolidated with this pending case. The Parties were also realigned so that FURminator, Inc. and PorterVision, Inc. would be the plaintiffs in this case, and Munchkin, Inc. and Kim Laube & Co., Inc. would be the defendants in this case. On October 8, 2009, 2009 WL 3261855, PorterVision, Inc. was dismissed from the case, without prejudice, leaving FURminator, Inc. (“Plaintiff’) as the sole plaintiff in this case. On December 7, 2009, this Court entered final judgment for Plaintiff and against Munchkin, Inc., pursuant to a consent motion filed by Plaintiff and Munchkin, Inc. Thus, Kim Laube & Co., Inc. (“Defendant”) remains as the sole defendant in this case.

The pending motions were all filed between December 4, 2009 and July 8, 2010. Before the Court was able to rule any of the motions, on July 29, 2010, Defendant filed a Suggestion of Filing Bankruptcy. As a result, the Court automatically stayed the case on August 2, 2010, pending the conclusion of bankruptcy proceedings, and temporarily termed the pending motions. Subsequently, on September 20, 2010, Plaintiff filed a Notice of Bankruptcy Order Granting Relief from the Automatic Stay, which included a copy of an order from the United States Bankruptcy Court for the Central District of California, granting a motion filed by Plaintiff for relief from the automatic stay under 11 U.S.C. § 362. This Court then lifted the stay and reinstated all termed motions on October 28, 2010, 2010 WL 4366845.

The motions currently pending before the Court consist of several motions for summary judgment (four filed by Plaintiff and one filed by Defendant), and numerous motions to exclude evidence or testimony. The Court will consider the motions for summary judgment in full, and will address the remaining motions as needed.

II. LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment only if all of the information before the court shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those “that might affect the outcome of the suit under the governing law,” and a genuine material fact is one “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the non-moving party has failed to “make a showing sufficient to establish the existence of an element essential to that party’s case, ... there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

The initial burden of proof on a motion for summary judgment is placed on the moving party to establish “that no genuine dispute exists over a material fact.” Meyers v. Asics Corp., 974 F.2d 1304, 1306-07 (Fed.Cir.1992). Once this burden is discharged, if the record does in fact bear out that no genuine dispute exists, the burden shifts to the non-moving party to set forth affirmative evidence and specific facts showing there is a genuine dispute on that issue. See Anderson, 477 U.S. at 250, 106 S.Ct. 2505; Fed.R.Civ.P. 56(e)(2). When the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but, by affidavits and other evidence, must set forth specific facts showing that a genuine issue of material fact exists. See Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed.Cir.2002); Fed.R.Civ.P. 56(e)(1). The non-moving party does not need to produce “evidence in a form that would be admissible at trial in order to avoid summary judgment,” rather, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

To meet its burden and survive summary judgment, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must show there is sufficient evidence favoring the non-moving party which would enable a jury to return a verdict for it. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Celotex, 477 U.S. at 384, 106 S.Ct. 2548. If the nonmoving party is unable to do so, summary judgment is proper. Lockheed Martin Corp. v. Space Sys./Loral, Inc., 324 F.3d 1308, 1318 (Fed.Cir.2003).

III. MOTIONS FOR SUMMARY JUDGMENT ON INFRINGEMENT

Plaintiff and Defendant each filed separate motions for summary judgment regarding Plaintiffs infringement claims. Plaintiff filed FURminator’s Motion for Summary Judgment of Infringement as to the Accused Laube Tools [doc. # 322], while Defendant filed Defendant Kim Laube & Co., Inc.’s Motion for Partial Summary Judgment Relating to No Evidence of Infringement [doc. # 341]. Plaintiff requests that the Court find that the Laube Qwik-Change tool, the Laube Lazor Adjustable Blade Rake tool, and the Laube iVac tool (collectively, “Accused Tools”) infringe the '540 Patent. Defendant requests that the Court find that the Accused Tools do not infringe the '540 Patent.

A. STATEMENT OF FACTS

Before the Court begins its recitation of the facts relevant to the motions for summary judgment on infringement, it is important to note that Federal Rule of Civil Procedure 56(c) requires that

[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record ... or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Additionally, the Local Rules of this Court provide:

A memorandum in support of a motion for summary judgment shall have attached a statement of uncontroverted material facts, set forth in a separately numbered paragraph for each fact, indicating whether each fact is established by the record, and, if so, the appropriate citations. Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists. Those matters in dispute shall be set forth with specific references to portions of the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from movant’s listing of facts. All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.

Local Rule 7-4.01(E). Local rules such as this are implemented in order to prevent district courts from having to “scour the record looking for factual disputes.” Nw. Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 725 (8th Cir.2003).

In this case, Defendant did not include a statement of uncontroverted material facts with its Motion for Summary Judgment, nor did Defendant properly respond to Plaintiffs statement of uncontroverted material facts, filed in conjunction with its Motion for Summary Judgment. As a result, Defendant did not specifically controvert any of the facts set forth by Plaintiff in either of its statements of fact (one was offered in support of Plaintiffs Motion for Summary Judgment, while the other was offered in support of Plaintiffs opposition to Defendant’s Motion for Summary Judgment). Pursuant to the Local Rules of this Court, the Court will deem admitted each fact contained within Plaintiff FURminator’s Statement of Uncontroverted Material Facts Concerning its Motion for Partial Summary Judgment of Infringement as to the Laube Accused Products [doc. # 323-1], and each fact contained within Plaintiff FURminator’s Statements of Uncontested Fact in Support of its Memorandum in Opposition to Kim Laube & Co.’s Motion for Partial Summary Judgment Relating to No Evidence of Infringement [doc. # 349-1]. This determination is made only for the purpose of the Court’s consideration of Plaintiff FURminator’s Motion for Summary Judgment of Infringement as to the Accused Laube Tools [doc. # 322] and Defendant Kim Laube & Co., Inc.’s Motion for Partial Summary Judgment Relating to No Evidence of Infringement [doc. # 341].

Turning now to the facts of this case, Plaintiff is an innovative St. Louis-based company formed by Angela and David Porter in 2002. Plaintiff imports and sells a variety of pet grooming products, including FURminator pet grooming tools (“FURminator DeShedding Tools”). In the 1990s, Angela Porter owned a dog groomer salon and experienced on a day to day basis the tedious and difficult task of removing shedding hair from dogs. In the late 1990s, David and Angela Porter conceived of an invention for quickly and effectively removing unwanted loose hair from dogs and cats to reduce shedding. They developed prototypes of their invention and ultimately filed a patent application in 2000. The application eventually issued as U.S. Patent 6,782,846 (“the '846 Patent”), which is owned by Plaintiff. Plaintiff also owns U.S. Patent 7,334,540 (“the '540 Patent”), which is a patent related to the '846 Patent. The FURminator DeShedding Tools have been enormously successful and are now sold around the world to pet groomers and non-groomers alike.

The '540 Patent has 78 claims. Of the 78 claims, seven are independent claims. Claim 1 of the '540 Patent is an independent claim that requires:

1. For use with a furry pet such as a dog or cat having loose hair and non-loose hair, a pet grooming tool for removing the loose hair from the pet, the grooming tool comprising:

a handle portion, the handle portion having a recess;

a pet engageable portion secured to the handle portion, the pet engageable portion including a blade portion and a plurality of teeth, the blade portion comprising a leading surface and a trailing surface defining a blade edge, at least one of the teeth extending from the blade edge, the pet engageable portion being partially positioned within the recess of the handle portion;

the blade edge being adapted to engage the loose hair of the pet and pull it from the pet without cutting or pulling the non-loose hair from the pet as the pet engageable portion is moved in a first direction while the pet engageable portion is in engagement with the pet, the first direction being a direction in which the trailing surface trails the leading surface.

Claim 63 of the '540 Patent is also an independent claim that requires:

63. For use with a furry pet such as a dog or cat having loose hair and non-loose hair, a pet grooming tool for removing the loose hair from the pet, the grooming tool comprising:

a handle portion;

a pet engageable portion secured to the handle portion, the pet engageable portion including a blade portion and a plurality of teeth, the blade portion comprising a leading surface and a trailing surface defining a blade edge, at least one of the teeth extending from the blade edge, the handle portion surrounding a portion of the pet engageable portion;

The '540 Patent contains both apparatus and method claims. Both Claim 1 and Claim 63 are apparatus claims. Each of the apparatus claims of the '540 Patent, including Claim 1 and Claim 63, require:

Defendant currently sells at least three Accused Tools: the Laube Qwik-Change tool, the Laube Lazor Adjustable Blade Rake tool, and the Laube iVac tool. The Qwik-Change tool is sold with several different-sized pet engageable portions (small, medium, and large), that are all similar in design. The only significant difference between the various sizes is the width of the pet engageable portions. Otherwise, the design of the pet engageable portion on each of the different sizes appears to be the same. Each of the Accused Tools has a handle portion, which is a portion of the tool that the user holds. Each of the Accused Tools also has a pet engageable portion, which is a metal portion that is used to engage the pet, that has more than one tooth and a leading surface and a trailing surface that meet to form a blade edge. The pet engageable portion on the Qwik-Change tool is secured within a portion of the handle portion. In both the iVac and the Lazor Blade tools, the pet engageable portions are fixed to the handle portions by screws. As to the Qwik-Change and Lazor Blade tools, securing the metal pet engageable portion to the handle portion results in a portion of that metal pet engageable portion being surrounded by the handle portion. As to the iVac tool, the device is adapted to receive a metal pet engageable portion in a recess or indentation in the handle. When a pet engageable portion is placed in the recess of the iVac tool, such a pet engageable portion is partially positioned within the recess of the handle. For each of the Accused Tools, the teeth of the metal pet engageable portion project or extend from the blade edge. When in use, the pet engageable portion of each of the Accused Tools is designed to be pressed against the fur of the pet. The user then pulls the Accused Tools in the direction the handle is pointing. When pulled in the direction the handle is pointing, the leading surface leads the trailing surface of the blade portion. Defendant’s advertisements admit that the Accused Tools are designed to be used with shedding breeds of dogs and cats to remove loose hair, and that the Accused Tools are all deshedding tools or “de-shedders.”

Pets such as dogs and cats have active and growing hair, also known as anagen hairs, and inactive and not growing hairs, also known as telogen hairs. Most dogs and cats are considered to be telogen dominant, meaning that under normal circumstances those animals possess more hair that is in the telogen phase of the hair cycle. Plaintiffs veterinary dermatologist, Dr. Helen Globus, tested each of the Accused Tools. Dr. Globus conducted two tests: 1) she tested the tools on furry pets that were patients in her clinic and inspected hairs removed to determine if the Accused Tools pulled active and growing anagen hair; and 2) she used the Accused Tools on human hair (as a proxy for pet hair) to determine whether the tools cut active and growing anagen hair. Based on her testing, Dr. Globus determined that, when used according to the directions, the blade edge of the Accused Tools do not cut or pull anagen hairs.

For the first test, Dr. Globus examined hairs removed from numerous test cases. She used the Accused Tools to remove hair, collected that hair, mounted the slides under a microscope, and examined the hair under a microscope. A pulled hair is likely to have an intact root, and an examination of the hairs with intact roots is the only way to determine the condition of the hairs pulled from the pet (i.e., where those hairs are in the hair life cycle). Dr. Globus discovered five hairs at most that could not be positively identified as telogen hairs, but she ultimately determined that these five hairs had no effect on her conclusions. She explained that there are several reasons why a few anagen hairs may be present in the samples. One such reason is that animals self-groom (lick, bite, scratch, etc.), and may pull out hairs on their own without the aid of the Accused Tools or similar products. Dr. Globus also reasoned that if tools like the Accused Tools were pulling out anagen hairs, she would expect to see many anagen hairs pulled out with every stroke. Thus, based on the results of this first test, Dr. Globus concluded that the Accused Tools pull telogen hairs, but do not pull anagen hairs.

Having determined that the Accused Tools do not pull out anagen hairs, Dr. Globus next set out to determine whether the Accused Tools cut anagen hairs. While testing the Accused Tools on furry pets, she observed none of the usual signs of cutting hair, such as cutting noises or cutting lines in the animal’s coat. In order to test her theory that the Accused Tools do not cut hair, she had to employ a different test than the test described in the preceding paragraph because cut or broken hairs are commonly found on pets. There are numerous reasons why cut hairs might be found in samples collected from pets. As noted above, furry pets have a tendency to self-groom their hair, potentially resulting in broken hairs that would not be attributable to the Accused Tools. Broken hairs may also be caused by poor nutrition or the prior use of grooming devices like electric clippers. Alternatively, pets may come into contact with objects such as bushes that cause cut or broken hairs. Both parties’ experts were largely in agreement as to the potential causes for cut hairs.

So, to determine whether the Accused Tools cut hair, Dr. Globus drew the Accused Tools through hair on a human head that was of similar length to a dog or cat’s hair. Human scalp hair is predominately anagen, meaning that most of the hair on a human head at any one time is in the anagen phase of the growth cycle. The structure of human hair is similar to that of a dog or cat, but human hair lacks a secondary undercoat. Dr. Globus recognized that differences exist between human hair and dog or cat hair, but she found these differences to be immaterial for the purpose of determining whether the Accused Tools cut hair. She reasoned that if multiple draws through the same portion of human hair (more than one draw may be necessary because loose hairs may be present) resulted in no hairs removed, then the tool cannot be cutting hairs, anagen or otherwise. Dr. Globus observed that multiple draws through human hair ultimately resulted in no hairs removed. This observation, coupled with her observation that the Accused Tools do not cause cut lines or cutting noises, permitted Dr. Globus to conclude that the Accused Tools do not cut anagen hairs.

Defendant’s expert Dr. Robert O. Schick also conducted an analysis of the Accused Tools. Dr. Schick’s cutting analysis was based on tests similar to Dr. Globus’s pulling test. Dr. Schick was not in a position to exclude external factors for cut or broken hairs because he did not personally witness the testing. Additionally, Dr. Schick did not discuss the testing with those individuals who collected samples, Pamela Lauritzen and Kim Laube, nor did he personally observe the condition of the animals prior to testing. Dr. Schick also could not obtain a “patient” history, checking for complicating medical factors. Dr. Schick merely examined the samples provided to him without any other information for reference beyond the sample identification on the outside of the envelope.

B. EVIDENTIARY ISSUES

As previously mentioned, in conjunction with the filing of the pending motions for summary judgment, the parties also filed a series of motions to exclude evidence or testimony, which the Court will address as needed. Before proceeding to the analysis of the motions for summary judgment on infringement, it is necessary for the Court to address Plaintiffs Amended Motion to Exclude or Limit Testimony of Robert O. Schick and Memorandum in Support [doc. # 333].

In support of its Motion to Exclude, Plaintiff argues that Dr. Schick’s testimony should be excluded as a result of this Court’s December 21, 2009 Order, 2009 WL 5176562, which imposed the following sanctions on Defendant:

1) All testimony of Mr. Kim Laube, given as an expert or layperson, is stricken.

2) All documents and tools that Mr. Laube has relied on are excluded.

3) All other expert testimony that relies on Mr. Laube’s testimony, documents, or tools is excluded.

4) Defendant is prevented from otherwise relying on any of the above listed materials in any way in this matter.

(Order, doc. # 313, p. 8). Plaintiff argues that some of the hair samples that Dr. Schick used in his testing were provided by Mr. Laube, and that the tools that were used by Pam Lauritzen to gather hair samples (that were later provided to Dr. Schick for testing) were also provided by Mr. Laube.

The Court agrees that Dr. Schick’s opinions based on any hair samples collected by Mr. Laube should be excluded, but it is not entirely clear that Mr. Laube actually collected hair samples for Dr. Schick. Plaintiff cites paragraphs 31 and 32 of the July 30, 2009 Report of Dr. Schick [doc. # 342-29] in support of its assertion that Mr. Laube provided hair samples to Dr. Schick. However, this portion of the Report merely states that Dr. Schick examined hair samples that were removed from Mr. Laube’s dog, Kodi. While it seems likely that Mr. Laube was the person who collected the samples, the Court cannot reach this conclusion with certainty. Additionally, the Court is unable to verify Plaintiffs assertion that Mr. Laube provided the tools used by Pam Lauritzen to gather hair samples. Plaintiff cites paragraphs 26-30 of the July 30, 2009 Report of Dr. Schick in support of this assertion, but the Court reviewed this portion of the Report and was unable to locate any language that supports the assertion. The source of the tools is not discussed at all in any of Dr. Schick’s three reports (the July 30, 2009 Report, the August 10, 2009 Supplemental Report, or the August 14, 2009 Rebuttal Report). Thus, the Court is not inclined to exclude Dr. Schick’s opinions on this basis alone.

Plaintiff also argues that Dr. Schick’s opinions should be excluded under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), because they are unreliable and untrustworthy. Federal Rule of Evidence 702 sets forth the standards for determining if expert opinion testimony is admissible:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Thus, “Daubert requires the district court [to] ensure that any scientific testimony ‘is not only relevant, but reliable.’ ” i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 852 (Fed.Cir.2010) (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786).

The initial question of whether expert testimony is sufficiently reliable is to be determined by the court, as part of its gatekeeper function. Daubert, 509 U.S. at 593, 113 S.Ct. 2786 (citing Fed.R.Evid. 104(a)). The Supreme Court provided a number of factors a court is to consider in determining whether expert testimony should be presented to the jury, including: 1) whether the theory or technique can be, and has been, tested, 2) whether the theory has been subjected to peer review and publication, 3) the known or potential rate of error, and 4) whether the theory or technique is generally accepted in the relevant community. Id. at 593-94, 113 S.Ct. 2786. Additionally, as recognized in the 2000 Advisory Committee Notes to Federal Rule of Evidence 702,

[cjourts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact. These factors include: (1) Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.

(2) Whether the expert has unjustifiably-extrapolated from an accepted premise to an unfounded conclusion.

(3) “Whether the expert has adequately accounted for obvious alternative explanations.

(4) “Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting.

(5) “Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

All of these factors remain relevant to the determination of the reliability of expert testimony under the Rule as amended. Other factors may also be relevant.

Fed.R.Evid. 702 advisory committee’s note (internal quotations and citations omitted).

Plaintiff has asked this Court to act as gatekeeper and exclude Dr. Schick’s testimony as not sufficiently reliable. The main issue with Dr. Schick’s opinion is with respect to his conclusion that the Accused Tools and the FURminator DeShedding Tools all cut non-loose hair from furry pets. Dr. Schick opined that these tools all cut pet ham based on his observation that a number of cut or fractured hairs were present in the samples he tested. (Expert Report, doc. # 342-29, p. 9 ¶ 37). However, Dr. Schick’s opinion does not properly account for the presence of cut or fractured hairs that were caused by circumstances not related to the use of the tools at issue in this case. All of the proposed experts involved in this case agree that cut or fractured hairs can be found on furry pets for numerous reasons, including: self-grooming, rubbing against certain objects like bushes, poor nutrition, and past use of certain grooming devices.

Dr. Schick’s opinion that the tools cut hair was based on tests he performed on pet ham samples that were mostly provided by counsel for Defendant. It is undisputed that Dr. Schick was not present when the samples were collected and that he did not have the opportunity to personally observe the animals, or the condition of their coats, prior to testing. He also did not have a “patient” history for the pets that might have revealed medical conditions that could affect the testing. Additionally, for the few samples that Dr. Schick personally did obtain, he did not give any indication that he took steps to eliminate pre-existing cut or fractured hairs from the pet’s coat before taking the sample. Thus, Dr. Schick did not effectively eliminate alternative explanations, which is a significant factor for this Court to consider when screening for reliable expert testimony. See Fed.R.Evid. 702 advisory committee’s note (noting that in performing role as gatekeeper, district court can consider “whether the expert has adequately accounted for obvious alternative explanations”).

Additionally, Dr. Schick’s explanation for his opinion was insufficient. At first, Dr. Schick admitted that he was not able to distinguish a hair that was cut or fractured by one of the tools at issue as opposed to a hair that was cut or fractured due to other reasons. (Schick Deposition, doc. # 342-8, p. 34 1. 10-15). However, he later changed his testimony to state that it can be “difficult to differentiate the two,” but generally he can determine the cause of a cut or fractured hair based on whether there is a clean cut or apparent trauma. Dr. Schick was questioned about existing support for his theory, but he was unable to cite to any. (Schick Deposition, doc. #342-8, p. 78 1. 21-p. 80 1. 25). There does not appear to be any existing support whatsoever for Dr. Schick’s theory, and there is no suggestion that the theory has been tested or challenged by peer review or publication. Both of these are considerations for the Court in making a reliability determination. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786 (noting that in determining whether expert testimony should be presented to the jury, a court should consider whether the theory has been tested and whether the theory has been subjected to peer review and publication). Moreover, based on the sources cited by Plaintiff in its Motion to Exclude, which were not rebutted by Defendant, it appears that Dr. Schick’s opinions are unreliable.

Defendant does not specifically oppose any of the arguments Plaintiff made in support of its argument that this Court should exclude Dr. Schick’s opinions under Daubert; rather, Defendant merely argues that Plaintiffs arguments go “to the weight of the evidence, not the admissibility of the evidence.” (Response, doc. # 354, p. 2). This Court disagrees. Defendant’s argument fails to recognize “that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to ‘ensure that any and all scientific testimony ... is not only relevant, but reliable.’ ” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citing Daubert, 509 U.S. at 589, 113 S.Ct. 2786). This Court is obligated to engage in an initial review of the proposed expert testimony, and that is precisely what Plaintiffs Motion is requesting that this Court do.

Thus, the Court concludes that Dr. Schick’s opinions as to whether any of the relevant tools cut pet hair are not sufficiently reliable. To the extent that Dr. Schick offers opinions on other topics, the Court need not reach these topics at this time.

C. LEGAL ANALYSIS

“Determination of patent infringement requires a two-step analysis: 1) the scope of the claims must be construed; and 2) the allegedly infringing device must be compared to the construed claims.” Mars, Inc. v. H.J. Heinz Co., L.P., 377 F.3d 1369, 1373 (Fed.Cir.2004). The Court construed the claims of the '540 Patent in its Memorandum and Order dated November 9, 2009, 2009 WL 3805564 [doc. #228]. Thus, to resolve the pending motions for summary judgment as to infringement, the Court must compare the Accused Tools to the construed claims of the '540 Patent. “To establish literal infringement, every limitation set forth in a claim must be found in an accused product, exactly.” Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed.Cir.1995). “Application of the claim to the accused device is a question of fact.” Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1345 (Fed.Cir.2001).

Plaintiff argues that the Laube iVac tool infringes Claim 1 of the '540 Patent, and that the Laube Qwik-Change tool and the Laube Lazor Adjustable Blade Rake tool each infringe Claim 63 of the '540 Patent. The Court will compare each of these Accused Tools to the applicable claim in the sections that follow.

1. Laube iVac Tool — Claim 1

As set forth above, Claim 1 of the '540 Patent requires:

1. For use with a furry pet such as a dog or cat having loose hair and non-loose hair, a pet grooming tool for removing the loose hair from the pet, the grooming tool comprising: a handle portion, the handle portion having a recess;

For ease of analysis, the Court will break the claim up into individual limitations, and determine whether the iVac tool possesses each of those limitations.

The first limitation is: “For use with a furry pet such as a dog or cat having loose hair and non-loose hair, a pet grooming tool for removing the loose hair from the pet.” Several of the terms in this limitation were previously construed by this Court as follows:

1) “A furry pet” means “a pet having fur.”

2) “Loose hair” means “hair that is inactive and not growing.”

3) “Non-loose hair” means “hair that is active and growing.”

4) “Removing the loose hair from the pet” requires no definition.

(Order on Claim Construction, doc. # 228, p. 39). It is undisputed that Defendant’s advertisements for the Accused Tools, including the iVac tool, reveal that they are designed to be used with shedding breeds of dogs and eats to remove loose hair. Thus, the Court finds that the iVac tool possesses this first limitation.

The second limitation is: “a handle portion.” The Court previously construed “handle portion” to mean, “portion of the grooming tool that the user holds and that secures the pet engageable portion.” (Order on Claim Construction, doc. #228, p. 39). It is undisputed that each of the Accused Tools, including the iVac tool, has a handle portion, which is a portion of the tool that the user holds. Thus, the Court finds that the iVac tool possesses this second limitation.

The third limitation contains a description of the handle portion discussed in the previous paragraph: “the handle portion having a recess.” The Court previously construed “the handle portion having a recess” to mean “the handle portion having an indentation.” (Order on Claim Construction, doc. # 228, p. 39). It is undisputed that the iVac tool is adapted to receive a metal pet engageable portion in a recess or indentation in the handle. Thus, the Court finds that the iVac tool possesses this third limitation.

The fourth limitation is: “a pet engageable portion secured to the handle portion.” Two of the terms previously construed by this Court are relevant to this limitation:

1) “Pet engageable portion” means “portion of the grooming tool having a blade portion and more than one tooth.”

2) “A pet engageable portion secured to the handle portion” means “a pet engageable portion fixed to the handle portion.”

(Order on Claim Construction, doc. # 228, p. 39). It is undisputed that each of the Accused Tools, including the iVac tool, has a pet engageable portion, which is a metal portion that is used to engage the pet, that has more than one tooth. It is also undisputed that the pet engageable portion of the iVac tool is fixed to the handle portion of the tool by screws. Thus, the Court finds that the iVac tool possesses this fourth limitation.

The fifth limitation describes the pet engageable portion: “the pet engageable portion including a blade portion and a plurality of teeth, the blade portion comprising a leading surface and a trailing surface defining a blade edge.” Several of the terms previously construed by this Court are relevant to this limitation:

1) “Blade portion” means “portion of the pet engageable portion comprising a leading surface and a trailing surface defining a blade edge.”

2) “The blade portion comprising a leading surface and a trailing surface defining a blade edge” requires no definition.

3) “Plurality of teeth” means “more than one tooth.”

4) “The pet engageable portion including a blade portion and a plurality of teeth” means “the pet engageable portion including a blade portion and more than one tooth.”

5) “Leading surface” means “surface of the blade portion that leads the trailing surface as the handle portion is pulled generally along the handle axis.”

6) “Trailing surface” means “surface of the blade portion that trails the leading surface as the handle portion is pulled generally along the handle axis.”

7) “Blade edge” means “the union of the leading and trailing surfaces.”

(Order on Claim Construction, doc. #228, p. 40). It is undisputed that each of the Accused Tools, including the iVac tool, has a pet engageable portion that has more than one tooth and a leading surface and a trailing surface that meet to form a blade edge. It is also undisputed that when a user pulls one of the Accused Tools in the direction the handle is pointing, the leading surface leads the trailing surface of the blade portion. Thus, the Court finds that the iVac tool possesses this fifth limitation.

The sixth limitation further describes the pet engageable portion, particularly the teeth aspect: “at least one of the teeth extending from the blade edge.” Again, several of the terms previously construed by this Court are relevant to this limitation:

1) “Teeth extending from the blade edge” means “teeth projecting from the blade edge.”

2) “At least one of the teeth extending from the blade edge” means “one or more of the teeth projecting from the blade edge.”

(Order on Claim Construction, doc. # 228, p. 40). It is undisputed that for each of the Accused Tools, including the iVac tool, the teeth of the metal pet engageable portion project or extend from the blade edge. Thus, the Court finds that the iVac tool possesses this sixth limitation.

The seventh limitation continues to describe the pet engageable portion, this time focusing on its position in the tool: “the pet engageable portion being partially positioned within the recess of the handle portion.” The Court previously construed “pet engageable portion being partially positioned within the recess of the handle portion” to mean “a portion of the pet engageable portion is located within the indentation of the handle portion.” (Order on Claim Construction, doc. #228, p. 40). It is undisputed that when a pet engageable portion is placed in the recess of the iVac tool, such a pet engageable portion is partially positioned within the recess of the handle. Thus, the Court finds that the iVac tool possesses this seventh limitation.

The final limitation appears in each of the apparatus claims in the '540 Patent, which include Claim 1 and Claim 63: “the blade edge being adapted to engage the loose hair of the pet and pull it from the pet without cutting or pulling the non-loose hair from the pet as the pet engageable portion is moved in a first direction while the pet engageable portion is in engagement with the pet, the first direction being a direction in which the trailing surface trails the leading surface.” Several of the claim terms previously construed by this Court are relevant to this limitation:

1) “Engage” requires no definition.

2) “The blade edge being adapted to engage the loose hair of the pet and pull it from the pet” requires no definition.

3) “Without cutting or pulling the non-loose hair” requires no definition.

4) “First direction” means “direction in which the trailing surface trails the leading surface.”

5) “As the pet engageable portion is moved in a first direction” means “as the pet engageable portion is moved, the trailing surface trails the leading surface.”

6) “In engagement with the pet” means “in contact with the pet.”

7) “While the pet engageable portion is in engagement with the pet” means “while the pet engageable portion is in contact with the pet.”

8) “The first direction being a direction in which the trailing surface trails the leading surface” means “as the pet engageable portion is moved, the trailing surface trails the leading surface.”

(Order on Claim Construction, doc. # 228, p. 40-41). This limitation has two main components: the absence of cutting or pulling non-loose hair and the direction in which the pet engageable portion is moved. The latter is easily addressed because it is undisputed that to use any of the Accused Tools, including the iVac tool, one pulls the tool in the direction that the handle is pointing. It is also undisputed that when pulled in the direction that the handle is pointing, the leading surface leads the trailing surface of the blade portion. Thus, the Court finds that the Accused Tools, including the iVac tool, possess the movement direction aspect of this limitation.

The absence of cutting or pulling non-loose hair component of this final limitation requires more analysis. It is undisputed that Plaintiffs veterinary dermatologist, Dr. Helen Globus, determined that the Accused Tools, including the iVac tool, do not cut or pull anagen (active or growing) hairs. The extensive testing procedure that Dr. Globus followed to reach these conclusions is set out in full in the Statement of Facts section above, and the Court need not recite it here a second time. The undisputed evidence thus supports the conclusion that the Accused Tools, including the iVac tool, do not cut or pull anagen hairs.

However, although Defendant did not dispute any of the facts set forth by Plaintiff regarding Dr. Globus’s tests, Defendant does dedicate much of its Motion for Summary Judgment and its responsive briefs to arguing that Plaintiff is unable to prove that the Accused Tools remove loose hair without cutting or pulling non-loose hair. Although Defendant argues that Plaintiff has not offered any evidence that the Accused Tools remove loose hair without cutting or pulling non-loose hair, its argument focuses solely on the lack of evidence that the Accused Tools do not cut hair. Defendant first argued that Dr. Globus did not consider or make any conclusions as to whether any hair, loose or non-loose, had been cut. Then, presumably after Plaintiff pointed out that Dr. Globus did test for cutting and found that the Accused Tools did not cut hair, Defendant began criticizing Dr. Globus’s cutting test because it was performed on human hair. These criticisms are not persuasive. Dr. Globus recognized that the pulling test alone was not sufficient to determine whether the Accused Tools cut hair because cats and dogs normally have a number of broken or cut hairs. Thus, Dr. Globus designed a test that would isolate the ability of the Accused Tools to cut or not cut anagen hairs. In order to do so, Dr. Globus needed to use a subject that had primarily anagen hair, such as a human. It is undisputed that Dr. Globus recognized that there are some differences between human hair and dog or cat hair, but she found these differences to be immaterial for the purpose of the cutting test. Defendant has repeatedly criticized Dr. Globus’s cutting test for the sole reason that it was performed on humans instead of cats or dogs, but it has not cited to a single authority in support of its criticism. Defendant’s bald assertions that the tests are not reliable are insufficient to create a genuine issue of material fact in this case. See S. Bravo Sys., Inc. v. Containment Techs. Corp., 96 F.3d 1372, 1376 (Fed.Cir.1996) (noting that “unsupported assertions of infringement” do not create a genuine issue of material fact). Defendant also relies on the opinions of Dr. Robert O. Schick to support its argument that Plaintiff cannot establish that the Accused Tools do not cut anagen hair, but Dr. Schick’s opinions have been excluded. Thus, Dr. Globus’s tests stand undisputed, and the Court finds them sufficient to establish that the Accused Tools remove loose telogen hair without cutting or pulling non-loose anagen hair.

The Court finds that the Accused Tools, including the iVac tool, possess the second component of the final limitation, the absence of cutting or pulling non-loose hair. Having concluded that the iVac tool possesses each of the limitations of Claim 1 of the '540 Patent, the Court finds that, unless Defendant is able to establish a valid defense, the iVac tool infringes Plaintiffs '540 Patent.

2. Laube Qwik-Change Tool and Laube Lazor Adjustable Blade Rake Tool — Claim 63

As set forth above, Claim 63 of the '540 Patent requires:

For use with a furry pet such as a dog or cat having loose hair and non-loose hair, a pet grooming tool for removing the loose hair from the pet, the grooming tool comprising:

a handle portion;

a pet engageable portion secured to the handle portion, the pet engageable portion including a blade portion and a plurality of teeth, the blade portion comprising a leading surface and a trailing surface defining a blade edge, at least one of the teeth extending from the blade edge, the handle portion surrounding a portion of the pet engageable portion;

Again, for ease of analysis, the Court will divide the claim into individual limitations, and determine whether the Qwik-Change tool and the Lazor Blade tool possess each of those limitations.

1) “A furry pet” means “a pet having fur.”

2) “Loose hair” means “hair that is inactive and not growing.”

3) “Non-loose hair” means “hair that is active and growing.”

4) “Removing the loose hair from the pet” requires no definition.

(Order on Claim Construction, doc. # 228, p. 39). It is undisputed that Defendant’s advertisements for the Accused Tools, including the Qwik-Change tool and the Lazor Blade tool, reveal that they are designed to be used with shedding breeds of dogs and cats to remove loose hair. Thus, the Court finds that the Qwik-Change tool and the Lazor Blade tool both possess this first limitation.

The second limitation is: “a handle portion.” The Court previously construed “handle portion” to mean, “portion of the grooming tool that the user holds and that secures the pet engageable portion.” (Order on Claim Construction, doc. #228, p. 39). It is undisputed that each of the Accused Tools, including the Qwik-Change tool and the Lazor Blade tool, has a handle portion, which is a portion of the tool that the user holds. Thus, the Court finds that the Qwik-Change tool and the Lazor Blade tool both possess this second limitation.

The third limitation is: “a pet engageable portion secured to the handle portion.” Two of the terms previously construed by this Court are relevant to this limitation:

1) “Pet engageable portion” means “portion of the grooming tool having a blade portion and more than one tooth.”

2) “A pet engageable portion secured to the handle portion” means “a pet engageable portion fixed to the handle portion.”

(Order on Claim Construction, doc. # 228, p. 39). It is undisputed that each of the Accused Tools, including the Qwik-Change tool and the Lazor Blade tool, has a pet engageable portion, which is a metal portion that is used to engage the pet, that has more than one tooth. It is also undisputed that the pet engageable portion on the Qwik-Change tool is secured within a portion of the handle portion, and the pet engageable portion on the Lazor Blade tool is fixed to the handle portion of the tool by screws. Thus, the Court finds that the Qwik-Change tool and the Lazor Blade tool both possess this third limitation.

The fourth limitation describes the pet engageable portion: “the pet engageable portion including a blade portion and a plurality of teeth, the blade portion comprising a leading surface and a trailing surface defining a blade edge.” Several of the terms previously construed by this Court are relevant to this limitation:

1) “Blade portion” means “portion of the pet engageable portion comprising a leading surface and a trailing surface defining a blade edge.”

2) “The blade portion comprising a leading surface and a trailing surface defining a blade edge” requires no definition.

3) “Plurality of teeth” means “more than one tooth.”

4) “The pet engageable portion including a blade portion and a plurality of teeth” means “the pet engageable portion including a blade portion and more than one tooth.”

5) “Leading surface” means “surface of the blade portion that leads the trailing surface as the handle portion is pulled generally along the handle axis.”

6) “Trailing surface” means “surface of the blade portion that trails the leading surface as the handle portion is pulled generally along the handle axis.”

7) “Blade edge” means “the union of the leading and trailing surfaces.”

(Order on Claim Construction, doc. # 228, p. 40). It is undisputed that each of the Accused Tools, including the Qwik-Change tool and the Lazor Blade tool, has a pet engageable portion that has more than one tooth and a leading surface and a trailing surface that meet to form a blade edge. It is also undisputed that when a user pulls one of the Accused Tools in the direction the handle is pointing, the leading surface leads the trailing surface of the blade portion. Thus, the Court finds that the QwikChange tool and the Lazor Blade tool both possess this fourth limitation.

The fifth limitation further describes the pet engageable portion, particularly the teeth aspect: “at least one of the teeth extending from the blade edge.” Again, several of the terms previously construed by this Court are relevant to this limitation:

1) “Teeth extending from the blade edge” means “teeth projecting from the blade edge.”

2) “At least one of the teeth extending from the blade edge” means “one or more of the teeth projecting from the blade edge.”

(Order on Claim Construction, doc. # 228, p. 40). It is undisputed that for each of the Accused Tools, including the QwikChange tool and the Lazor Blade tool, the teeth of the metal pet engageable portion project or extend from the blade edge. Thus, the Court finds that the QwikChange tool and the Lazor Blade tool both possess this fifth limitation.

The sixth limitation continues to describe the pet engageable portion, this time focusing on its position in the tool with respect to the handle portion: “the handle portion surrounding a portion of the pet engageable portion.” The Court previously determined that the term “the handle portion surrounding a portion of the pet engageable portion” did not require any construction. (Order on Claim Construction, doc. # 228, p. 44). It is undisputed that, with respect to both the Qwik-Change tool and the Lazor Blade tool, securing the metal pet engageable portion to the handle portion results in a portion of that metal pet engageable portion being surrounded by the handle portion. Thus, the Court finds that the QwikChange tool and the Lazor Blade tool both possess this sixth limitation.

The final limitation is the limitation that appears in each of the apparatus claims in the '540 Patent (which includes Claim 1 and Claim 63): “the blade edge being adapted to engage the loose hair of the pet and pull it from the pet without cutting or pulling the non-loose hair from the pet as the pet engageable portion is moved in a first direction while the pet engageable portion is in engagement with the pet, the first direction being a direction in which the trailing surface trails the leading surface.” The analysis set forth in the preceding section regarding the absence of cutting or pulling non-loose hair and the direction in which the pet engageable portion is moved applies with equal force with respect to the Qwik-Change tool and the Lazor Blade tool. Thus, the Court concludes that the Qwik-Change tool and the Lazor Blade tool both possess the two components of the final limitation, and therefore, both possess each of the limitations of Claim 63 of the '540 Patent. Unless Defendant is able to establish a valid defense, the Qwik-Change tool and the Lazor Blade tool both infringe Plaintiffs '540 Patent.

3. Covenant Not to Sue

Defendant argues that the Court cannot find infringement because the Accused Tools are subject to a release and a covenant not to sue. However, the covenant not to sue relied upon by Defendant in support of this argument was specifically issued with respect to U.S. Patent No. 6,782,846 and U.S. Patent No. 7,077,076 only. This case involves a dispute regarding the '540 Patent, which was not included in the covenant not to sue. To the extent Defendant argues that the '540 Patent should be included in the covenant not to sue, this argument has already been rejected by United States District Judge Rodney W. Sippel in a related case. See FURminator, Inc. v. Kim Laube & Co., Inc., 2009 WL 3305759, No. 4:06CV01314 RWS (E.D.Mo. Oct. 14, 2009). Moreover, just because the '540 Patent is a continuation of the patents that were subject to the covenant not to sue is of no importance. “By statutory and common law, each patent establishes an independent and distinct property right.” Kearns v. General Motors Corp., 94 F.3d 1553, 1555 (Fed.Cir. 1996). The '540 Patent is individual and distinct from the patents at issue in the covenant not to sue, and the Court rejects Defendant’s attempt to include the '540 Patent in the covenant not to sue.

Having found that the Accused Tools infringe the '540 Patent, the Court finds it appropriate to enter summary judgment in favor of Plaintiff on the infringement claims.

IV. MOTION FOR SUMMARY JUDGMENT OF VALIDITY

Defendant has asserted invalidity arguments regarding the '540 Patent, under 35 U.S.C. §§ 102 and 103. Defendant has also asserted invalidity arguments under 35 U.S.C. § 112. Plaintiff now seeks summary judgment on Defendant’s invalidity claims, and thus filed FURminator’s Amended Motion for Summary Judgment of Validity Over Kim Laube & Co., Ine.’s Asserted References Under 35 U.S.C. §§ 102 and 103 and 35 U.S.C. § 112 [doc. # 324],

Defendant’s invalidity arguments are based on 120 alleged prior art references, set forth in full in the Prior Art for Preliminary Invalidity Contentions supplement to Defendant’s Preliminary Invalidity Contentions [doc. # 121-5]. However, these 120 references have been excluded as a result of this Court’s December 21, 2009 Order, which imposed the following sanctions on Defendant:

1) All testimony of Mr. Kim Laube, given as an expert or layperson, is stricken.

2) All documents and tools that Mr. Laube has relied on are excluded.

3) All other expert testimony that relies on Mr. Laube’s testimony, documents, or tools is excluded.

4) Defendant is prevented from otherwise relying on any of the above listed materials in any way in this matter.

(Order, doc. # 313, p. 8). Mr. Kim Laube specifically stated in his Declaration dated July 2, 2009 that he “reviewed the Preliminary Invalidity Contentions of Munchkin and Laube in this matter” and that he “also reviewed the prior art cited therein.” He then went on to state that, “I agree that the prior art references, either alone or in combination, contain each and every feature required in the claims of the '540 Patent____” (Declaration, doc. # 342-24, p. 4 ¶ 17). Additionally, Mr. Laube attached to his Declaration a list of material reviewed, which included each of the 120 alleged prior art references. (Exhibit A to Declaration, doc. # 121-4, p. 13-18). It is clear that Mr. Laube reviewed and relied on all 120 of the alleged prior art references and they thus must be excluded under paragraph two of the Court’s sanctions Order.

In its response to Plaintiffs Motion for Summary Judgment of Validity, Defendant argues that “it was wholely [sic] unnecessary to impose such draconian sanctions on them as a result of [Kim Laube & Company, Inc.]’s attorneys’ conduct.” (Response, doc. # 359, p. 6). Although the Court is not obligated to reiterate its basis for imposing sanctions against Mr. Laube, the Court finds it necessary to do so in light of this misstatement by Defendant. In the December 21, 2009 Order [doc. #313], this