Case 2:13-cv-01920-GW-JCG Document 77 Filed 01/03/14 Page 1 of 1 Page ID #:1944

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. Title CV 13-1920-GW(JCGx) Elite Lighting v. DMF, Inc., et al. Date January 3, 2014

Present: The Honorable Javier Gonzalez Deputy Clerk

GEORGE H. WU, UNITED STATES DISTRICT JUDGE None Present Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: None Present PROCEEDINGS (IN CHAMBERS):

Attorneys Present for Defendants: None Present RULING ON MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE PATENTS IN SUIT [63]

Attached hereto is the Courts Final Ruling. Defendants Motion for Summary Judgment is GRANTED. Defense counsel will prepare a proposed judgment forthwith. A status conference is set for January 16, 2013 at 8:30 a.m. to discuss future scheduling in this case. The parties can appear telephonically with advance notice to the clerk.

: Initials of Preparer
CV-90 (06/04) CIVIL MINUTES - GENERAL

JG
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Elite Lighting v. DMF, Inc., et al., Case No. CV 13-1920-GW (JCGx) Ruling on Motion for Summary Judgment of Non-Infringement

I.

Background A. Procedural Background Plaintiff Elite Lighting (Plaintiff or Elite) filed suit in this Court against Defendants DMF, Inc., and that companys officers, Morteza Danesh and Fariba Danesh (collectively, Defendants or DMF) in March 2013. See Compl., Docket No. 1. The Complaint alleged that DMF sold lighting fixtures that infringe U.S. Utility Patent No. 7,597,460 (the 460 Patent) and U.S. Design Patent D551,384 (the D384 Patent), both of which are assigned to Elite. Id. The Court held a claim construction hearing on November 12, 2013. Docket No. 62. The Court held that in the phrase the bottom baffle having a hole through which connecting electrical wires may reach and interconnect with the lightbulb socket residing therein, the hole through which connecting electrical wires may reach can be the mouth formed by the lower rim of the bottom baffle, or can be a hole in the side wall of the baffle. Docket No. 62 at 9. Defendants filed their Motion for Summary Judgment of Non-Infringement on December 3, 2013. Docket No. 63. Plaintiff filed its opposition on December 12, 2013. Docket No. 71. Defendants filed their reply on December 19, 2013. Docket No. 75. B. Factual Background Elite and DMF both sell lighting fixtures. Compl. 20, 22. The 460 Patent claims a certain type of lighting fixture called a tri-baffle ceiling fixture. Id. 12. The 460 Patents abstract states that the invention is: An improvement in lightbulb housings which is the addition of a third baffle that extends beyond and behind the length of a standard baffle which generally ends at the tip or beginning of a socket. By adding a third baffle that goes beyond and behind the socket, a snapper assembly, which has been correspondingly elongated, may be affixed, bolted, riveted, or screwed onto this third baffle. That portion of the affixation, bolt, rivet, or screw that resides in the interior of the light housing is attached along the side of the socket and behind the face of the light bulb so that the affixation will not be seen when the housing is in place. 460 Patent at Abstract. The 460 Patents figure 2 illustrates a prior art two-baffle reflector, while figure 3B illustrates an embodiment of the patented three-baffle reflector:

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The D384 Patent claims the ornamental design for a one-piece baffle trim for recessed light housing, as shown and described. The D384 Patent presents seven views of the claimed design, which is very similar to the views shown in the 460 Patent. Figure 1 is a perspective view, figure 2 is a top plan view, and figure 3 is a bottom plan view. Figures 1 through 3 are reproduced here:

II.

Legal Standard A. Summary Judgment Summary judgment shall be granted when a movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In other words, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that partys case, and on which that party will bear the burden of proof at trial. Parth v. Pomona Valley Hosp. 2

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Med. Ctr., 630 F.3d 794, 798-99 (9th Cir. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Further, [i]f the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact, the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment[, but instead] must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Assn , 809 F.2d 626, 630 (9th Cir. 1987) (internal citations and quotation marks omitted). The Federal Circuit reviews the district courts grant or denial of summary judgment under the law of the regional circuit. Lexion Med., LLC v. Northgate Technologies, Inc., 641 F.3d 1352, 1358 (Fed. Cir. 2011). At the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence, and views all evidence and draws all inferences in the light most favorable to the non-moving party. See id. at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)) . As applied in the context of a patent infringement claim, a mere disagreement between experts is not sufficient to raise a triable issue of fact; rather, an experts opinion must present sufficient detail for the court to determine whether that factual foundation would support a finding of infringement under the claim construction adopted by the court, with all reasonable inferences drawn in favor of the non-movant. Rambus Inc. v. Hynix Semiconductor Inc., 628 F. Supp. 2d 1114, 1122 (N.D. Cal. 2008) (quoting Arthur A. Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042, 1046-48 (Fed. Cir. 2000)). B. Rule 56(d) In response to a summary judgment motion, a nonmoving party may obtain relief pursuant to Fed. R. Civ. P. 56(d) (Rule 56(d)) if it shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition. A party seeking relief under Rule 56(d) in the Ninth Circuit must show: (1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment. Family Home and Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). The party must also show that it diligently pursued its previous discovery opportunities, and . . . demonstrate that allowing additional discovery would . . . preclude[ ] summary judgment. Bank of Am., NT & SA v. PENGWIN , 175 F.3d 1109, 1118 (9th Cir. 1999); Brocade Commns Sys., Inc. v. A10 Networks, Inc., 843 F. Supp. 2d 1018, 1027 (N.D. Cal. 2012). Analysis A. Non-Infringement of the 460 Patent a. The Three-Baffle Limitation Defendants argue that they do not infringe because the460 Patent covers a recessed light reflector composed of three baffles, and the accused products only have two baffles. Defs. Mem. In Supp. of Mot. for Summ. J. (Defs. Mem.), Docket No. 64 at 1. Plaintiff has three responses. First, Plaintiff argues that what defines a division between a baffle is a question that 3 III.

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Defendants should have raised during claim construction. Second, Plaintiff argues that the accused product does have three distinct baffles. Third, Plaintiff argues that claim 13 of the 460 Patent does not require three baffles. Pl.s Oppn, Docket No. 71 at 8-10. Plaintiffs argument that Defendant did not seek to have the claim construed is curious, because Plaintiff likewise did not seek to have the claim construed. If claim construction were required to count the number of baffles in a reflector, it is unclear how Plaintiff expected a fact finder to compare Defendants products to the elements of the asserted claims without a construction of the term. [T]he determination whether a claim has been infringed requires a two-step analysis. First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process. Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed. Cir. 1993). As shown by the fact that neither party requested a construction, it is apparent that neither party believed that the term needed to be construed. Nonetheless, the parties now seem to dispute the scope of baffle. When the parties present a fundamental dispute regarding the scope of a claim term, it is the courts duty to resolve it. O2 Micro Intl Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008). The term baffle is not expressly defined in the specification. The 460 Patent teaches that the illustrated embodiment has: three wall or baffle sections which includes a standard upper baffle 203, an added middle or rounded baffle 204 and a lower generally cylindrical bottom baffle 205, all of which are connected together to form a one piece structure where the upper baffle 203 extends to and is connected to the middle or rounded baffle 204 and the middle or rounded baffle 204 extends to and is connected to the bottom baffle 205. 460 Patent 6:2-8. The specification thus teaches that the baffles are sections of the reflector, and that they are distinguishable by their geometry. As taught by the specification, the purpose of the 460 Patents improvement over the prior art: is to create an extension or bottom baffle into which the fixture attachment is attached. In the prior art, the attachment was connected to a lower portion of the upper baffle and to a second baffle positioned below the upper primary baffle. The connection was visible through both baffles. With the present invention, an additional extension is provided which extends from the second baffle so that the attachment means is affixed to the wall of the extension bottom baffle which lies in the area of the socket receiving the lightbulb. 460 Patent at 2:2-11.1 Thus, the point of this additional third baffle is that the lightbulb, and/or the middle or second baffle will conceal the unsightly attachment. 460 Patent 2:21-22. In order for this to occur, the second and third baffles need to have different geometries. This reinforces the conclusion that to a person having ordinary skill in the art reading the term in the

Plaintiffs counsel argued at the hearing that three-baffle reflectors were known in the prior art, but that the 460 Patents innovation was the removal of the lip for holding an incandescent bulb socket present in Defendants prior art D630WAT-OR reflector. That proposition finds no support in the specification, which instead directly refutes it. See e.g. 460 Patent Fig. 1, illustrating a prior art reflector with no lip in the lower baffles opening.

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context of the specification, baffles are segments of the one-piece reflector distinguishable by their different geometries.2 Defendants argue that the accused product has the identical two-baffle structure as Figure 2 of the 460 Patent, reproduced above, which illustrates the prior art. Defs. Mem., Docket No. 64 at 2. Defendants provide the following photograph of the accused product, shown next to figure 2 of the 460 patent, which illustrates a prior art two-baffle reflector:

Defs. Mem., Docket No. 64 at 3 (citing Decl. of Michael Danesh in Supp. of Defs. Mot. (Danesh Decl.), Ex. C, Docket No. 66 at 52) (cropped), 460 Patent, Fig. 2. Defendants also argue that the accused product is identical in size and shape to reflector shown in the prior art United States Patent No. 5,673,997 (Akiyama), figure 2 of which is reproduced here:

Decl. of Dennis G. Martin In Supp. of Defs. Mem., Ex. 4 at 41, Docket No. 65. Defendants presented a number of photographs of the accused product:

The baffles discussed above and recited in the claim are distinct from the ridges or circumferential grooves that the patent also refers to as baffles. 460 Patent at 4:57-63.
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Danesh Decl. Ex. C, Docket No. 66 at 46, 54 (cropped). Defendants photographs were not of high quality in either the electronic or paper (chambers copy) submissions, but Defendants also lodged physical exemplars with the Court. Defs. Notice of Lodging, Docket No. 69. The 460 Patent teaches that its figure 2, illustrating the prior art, shows two baffles, while figure 3B, illustrating the patented invention, shows three baffles. 460 Patent at 1:20-60, 4:6-43. Those figures are reproduced again here:

From the submitted photographic, video, and physical exemplar evidence, it can be seen that the 6

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accused product has only two baffles, like the prior art shown and described in the 460 Patent. Through the submission of this evidence, Defendants have pointed out the absence of a genuine issue of material fact concerning whether the accused product has three baffles. The burden thus shifts to Plaintiff to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Plaintiff argues that the presence of ridges or grooves on one part of the accused reflectors upper baffle, while the other part is smooth, means that the accused products upper baffle is in fact two baffles, so that it has three in total. Pl.s Oppn, Docket No. 71 at 10. As shown by a comparison of figures 3B, 4B, and 5B all of which the 460 Patent describes as having the same three baffles the presence or absence of ridges or grooves does not demarcate a baffle:

The text of the specification also confirms that the presence of ridges or grooves does not mark the boundary of a baffle: the improvement can be used with any type of reflector having an upper baffle that has a wall surface comprising grooves throughout, has a smooth surface throughout, or has a surface which has grooves in a portion and a smooth section in a remaining portion. 460 Patent 2:27-30. Additionally, the claims themselves show that the presence of ridges or circumferential grooves do not define the baffles. Claim 3 is [a] reflector in accordance with claim 1 wherein said upper baffle has a wall further comprising a multiplicity of circumferential grooves within the wall extending for the entire upper baffle . . . . Claim 4 requires that the upper baffle of claim 1 has a wall that is a smooth surface for the entire upper baffle. Claim 5 requires that the baffle of claim 1 have a multiplicity of circumferential grooves within the wall extending for a portion of the upper baffle. Like claim 5, the accused products upper baffle has grooves extending for only a portion of the baffle. As in claim 5 and in the embodiment illustrated in figure 5B, being partially-ridged does not convert the ridged portion into a separate baffle. Therefore, the Court holds that the accused product does not have three baffles, and does not infringe independent claims 1, 7, 18, or any of those claims dependent claims. Plaintiff argues that unlike claims 1, 7, 18, claim 13 does not require three baffles. Claim 13 is: An improved reflector for use with a ceiling fixture having a canister containing a socket assembly for a lightbulb, the lightbulb socket having an upper end, the canister having at last one retaining member, the improved reflector comprising: 7

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a. an upper generally hollow baffle extending into at least one second baffle assembly having an elongated bottom portion having a wall with a bottom end, the upper baffle adjacent a trim; b. at least one connector assembly having a connector retainer having attaching means by which the connector retainer is affixed into the wall of the elongated bottom portion, the at least one connector retainer supporting a connector; and c. the reflector retaining itself within the canister by a connector retainer received within a connector retainer in the canister so that the lightbulb socket is positioned entirely within the bottom baffle to conceal the attaching means by which the connector retainer is affixed into the wall of the elongated bottom portion, and the upper baffle ending and the second baffle beginning at a point approximately near the upper end of the lightbulb socket, the bottom baffle extending backwardly away from the trim, the bottom baffle having a hole through which connecting electrical wires may reach and interconnect with the lightbulb socket residing therein. 460 Patent, claim 13 (emphasis added). Defendants argue that because part (c) of claim 13 recites an upper, second, and bottom baffle, it requires three baffles, just like the other claims. Defs. Reply, Docket No. 75 at 6. Defendants further argue that a two-baffle understanding of claim 13 would contradict the Courts claim construction because the Court observed in its claim construction Order that the specification and prosecution history taught that the distinguishing feature of the 460 Patent was the addition of the third baffle. Id. at 7 (quoting Mins. of Claim Construction Hrg, Docket No. 62 at 8). Defendants reasoning goes too far, as Defendant did not ask the Court to construe this aspect of claim 13, and courts should not generally import limitations from the specification into the claims. Phillips, 415 F.3d at 1323. Nonetheless, claim 13 appears to describe a configuration very much like the three-baffle configuration of the other claims, although it is worded somewhat confusingly. Nonetheless, assuming arguendo that Plaintiff is correct such that claim 13 requires only two baffles, the bottom baffle would still require an elongated bottom portion. The accused products bottom baffle does not have an elongated bottom portion. Therefore, the Court holds that the accused product does not infringe claim 13 or any of its dependent claims. b. The Entirely Enclose the Socket Limitation The requirement that the bottom baffle entirely enclose the socket is found in clause c of each independent claim, as follows: 1c: the reflector retaining itself within the canister by a respective connector retainer received within a respective connector retainer in the canister so that the lightbulb socket is positioned entirely within the bottom baffle to conceal the means by which each snapper is affixed into the wall of the bottom baffle, and wherein the middle baffle ending and the bottom baffle beginning at a point approximately near the upper end of the lightbulb socket, the bottom baffle extending backwardly away from the trim, the bottom baffle having a hole through which connecting electrical wires may reach and interconnect with the lightbulb socket residing therein. 8

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7c: the reflector retaining itself within the canister by a respective snapper connector received within a respective snapper retainer in the canister so that the lightbulb socket is positioned entirely within the bottom baffle to conceal the means by which each snapper is affixed into the wall of the bottom baffle, and the middle baffle ending and the bottom baffle beginning at a point approximately near the upper end of the lightbulb socket, the bottom baffle extending backwardly away from the trim, the bottom baffle having a hole through which connecting electrical wires may reach and interconnect with the lightbulb socket residing therein. 13c: the reflector retaining itself within the canister by a connector retainer received within a connector retainer in the canister so that the lightbulb socket is positioned entirely within the bottom baffle to conceal the attaching means by which the connector retainer is affixed into the wall of the elongated bottom portion, and the upper baffle ending and the second baffle beginning at a point approximately near the upper end of the lightbulb socket, the bottom baffle extending backwardly away from the trim, the bottom baffle having a hole through which connecting electrical wires may reach and interconnect with the lightbulb socket residing therein. 19c: the reflector retaining itself within the canister by a respective snapper connector received within a respective snapper retainer in the canister so that the lightbulb socket is positioned entirely within the bottom baffle to conceal each rivet of a snapper assembly, and the middle baffle ending and the bottom baffle beginning at a point approximately near the upper end of the lightbulb socket, the bottom baffle extending backwardly away from the trim, the bottom baffle having a hole through which connecting electrical wires may reach and interconnect with the lightbulb socket residing therein. 460 Patent 8:65-12:12 (emphasis added). Plaintiff argues that [t]he socket is not a claimed element of the patent, and only appears in the preamble to the independent claims. Pl.s Oppn, Docket No. 71 at 11. That argument is directly contradicted by the text of the claims: the socket appears in limitation (c) of each of the independent claims, as quoted above. As a threshold matter, it is difficult to even determine what kind of claim limitations these are. Taken literally, these claims either require a canister and socket (i.e., a complete lighting fixture assembly), which Plaintiff has not accused, or are invalid combined apparatus and method of use claims.3 Understood most charitably, the independent claims are apparatus claims that only require the capability of housing a socket entirely within the bottom baffle. Defendants provided a video demonstrating a cut-away view of their reflector when

Claims that cover both an apparatus and a method of using are invalid because, as a result of the combination of two separate statutory classes of invention, a manufacturer or seller of the claimed apparatus would not know from the claim whether it might also be liable for contributory infringement because a buyer or user of the apparatus later performs the claimed method of using the apparatus. IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1384 (Fed. Cir. 2005) (citing Ex parte Lyell, 17 USPQ2d 1548 (BPAI 1990)). Such a claim is ambiguous and properly rejected under section 112, paragraph 2. Id.
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installed in a canister in connection with a socket. The video shows that not only is the socket not housed entirely within the bottom baffle, it is entirely outside of the reflector assembly:

Danesh Decl., Docket No. 66 at 14, Ex. D., Video Demonstration, Docket No. 69, at 0:52. The canister shown in the video is the only one that Defendants sell for use with accused Products. Reply Decl. of Michael Danesh, Docket No. 73 at 2. Plaintiff produces no evidence to the contrary. Nor has Plaintiff produced any evidence of infringement using any other canister and socket. As such, the Court enters summary judgment of non-infringement as to all claims on the additional and alternate ground that the lightbulb socket is positioned entirely within the bottom baffle is not met in the accused product. The Hole Through Which Connecting Electrical Wires May Reach and Interconnect with the Lightbulb Socket Residing Therein Limitation For the same reasons that the Court finds that the accused device lacks a socket entirely within the lower baffle, it finds that there is no hole through which connecting electrical wires may reach to interconnect with that socket. Indeed, as the Court discussed in its claim construction order, the patentee distinguished the 460 Patent during prosecution over the Akiyama prior art patent precisely because in Akiyama, the socket was partially outside of the baffle, so the wires did not need to reach inside the baffle to interconnect with the socket: The present invention [contains] . . . at least one opening to permit wires from the socket to extend through. Akiyama does not have this element, not even impliedly, because Akiyama merely comes up to the tip of the socket right near where the lightbulb screws in. There is no need for Akiyama to make special 10 c.

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accommodations for wires to access the socket because that portion of the socket is outside the area of Akiyama. If the Examiner is suggesting that the through hole 18 of Akiyama fulfills the element of at least one opening to permit wires from the socket to extend through, the Examiner is mistaken and misunderstandding Akiyama. The through-hole 18 of Akiyama is merely where the tip of the socket enters the lamp shade. The wires of the socket still remain outside the bounds, as well as the scope, of Akiyama. Mins. of Claim Construction Hrg, Docket No. 62 at 7-8 (quoting Prosecution History, Docket No. 55-3 at 63:23-64:7). For the same reason articulated by the applicant during prosecution, the wires of the socket are outside the bounds of the accused reflector and outside the scope of the 460 Patent. d. Infringement Under the Doctrine of Equivalents When a defendant establishes its entitlement to summary judgment of no literal infringement, the plaintiff then has the burden of producing particularized testimony and linking argument on a limitation-by-limitation basis that create[s] a genuine issue of material fact as to equivalents. AquaTex Indus., Inc. v. Techniche Solutions, 479 F.3d 1320, 1328-29 (Fed. Cir. 2007) (affirming grant of summary judgment of noninfringement where plaintiff failed to demonstrate a genuine issue of material fact in applying the doctrine of equivalents; in opposing summary judgment, plaintiff provided only lawyer argument and generalized testimony about the accused product). Plaintiff fails to present particularized testimony and linking argument on a limitationby-limitation basis that create[s] a genuine issue of material fact as to equivalents, and instead, offers a single paragraph arguing that the question of whether the accused product has the same socket placement as Akiyama is a material question that remains in dispute.4 Pl.s Oppn, Docket No. 71 at 12. To avoid summary judgment of non-infringement under the doctrine of equivalents, a patentee must do more than raise the possibility that infringement may be found under the doctrine; it must present facts to show a genuine issue for trial. Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1210 (Fed. Cir. 2001) (Because [plaintiff] bears the burden of proving equivalence at trial, summary judgment against [plaintiff] is appropriate . . . . The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent.) (citation omitted). Because Plaintiff has failed to satisfy its burden of coming forward with evidence showing infringement under the doctrine of equivalents, the Court grants summary judgment that the accused products do not infringe under the doctrine of equivalents.

B. Non-Infringement of the D384 Patent A design patent is infringed if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as

Defendants argue that the accused product cannot infringe under the doctrine of equivalents because the patentee surrendered claim scope during prosecution to overcome a rejection over Akiyama by specifically limiting the placement of the socket to a position entirely within the bottom baffle. Defs. Mem., Docket No. 64 at 7, Decl. of Dennis G. Martin in Supp. of Defs. Mot., Docket No. 65, Ex. 5 (Prosecution History) at 43-44.

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to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other. Gorham Mfg. Co. v. White, 81 U.S. 511, 528 (1871). In some instances, the claimed design and the accused design will be sufficiently distinct that it will be clear without more that the patentee has not met its burden of proving the two designs would appear substantially the same to the ordinary observer, as required by Gorham. In other instances, when the claimed and accused designs are not plainly dissimilar, resolution of the question whether the ordinary observer would consider the two designs to be substantially the same will benefit from a comparison of the claimed and accused designs with the prior art, as in many of the cases discussed above and in the case at bar. Egyptian Goddess, 543 F.3d at 678.5 Here, the prior art includes Defendants own D630WAT-OR reflector, which is identical to the accused D630WAT-OR-UN reflector except that the OR trip has a lip protruding inwardly from the circular rim at the mouth of the bottom baffle that forms a notched aperture that fits the shape of a standard medium-based screw-in socket for an incandescent light bulb. Danesh Decl., Docket No. 66 at 12. Defendants were selling the D630WAT-OR reflector in the United States no later than 2004, which is more than one year before the D384 Patents February 21, 2006 filing date. Id. at 9, Reply Decl. of Michael Danesh in Supp. of Defs. Mot., Docket No. 73 at 3, Ex. B (DMF 2004 catalog). It is thus prior art for purposes of this comparison. See 35 U.S.C. 102(b) (2006). While Plaintiff disputes that the D630WAT-OR reflector was on sale more than one year before the D384 Patents filing date, it offers no evidence to the contrary. Pl.s Statement of Genuine Disputed Facts, Docket No. 7-1 at 5. In accordance with Egyptian Goddess, Defendants present the following three-way comparison between the patented design, the accused product, and the prior art:

Courts need not construe design patents: the preferable course ordinarily will be for a district court not to attempt to construe a design patent claim by providing a detailed verbal description of the claimed design. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008). That is because a design is better represented by an illustration than it could be by any description and a description would probably not be intelligible without the illustration. Id. (quoting Dobson v. Dornan, 118 U.S. 10, 14 (1886)).

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Defs. Mem., Docket No. 64 at 10. Viewing the facts in the light most favorable to Plaintiff, Defendants have demonstrated the absence of a genuine issue of material fact regarding infringement. In light of the prior art design, an ordinary observer would not be deceived into believing that the accused product is the patented design. See Gorham, 81 U.S. at 528. The patented design has three baffles, while the accused product and the prior art only have two. As articulated by Defendants, the accused products upper baffle is a continuously curved bell shape, while the patented designs middle baffle forms a bulge in the profile of the device. Defs. Mem., Docket No. 64 at 9. The upper baffle of the patented design is grooved over its entirety, whereas the upper baffle of the accused product and the prior art is only grooved part of the way. The patented design has a cylindrical bottom baffle, while the accused product and the prior art have a conical, or frustum-shaped, bottom baffle. The patented design has the snapper support attached to the top of the bottom bracket by a single rivet, whereas the accused product and prior art have the snapper arm attached to the bottom bracket positions approximately 1/3 and 2/3 away from the ends of the baffle by two rivets. While both the patented design and the accused product lack the prior arts lip for holding a standard incandescent socket, that difference, even if considered, would not negate the overall dissimilarity in light of the prior art between the patented design and the accused product. However, the lip is not properly considered in the analysis at all. That is because it is undisputed that the lip exists to fit the shape of a standard medium-based screw-in socket for an incandescent light bulb, and conversely, the absence of the lip in the accused product and patented design is so that those reflectors will work[] with a socket for either an incandescent or fluorescent lamp. Danesh Decl., Docket No. 66 at 12. Functional aspects of a design are properly factored out when considering whether the overall appearance of a product to an ordinary observer is the same as that of a claimed design. Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1293-94 (Fed. Cir. 2010) (when the design also contains ornamental aspects, it is entitled to a design patent whose scope is limited to those aspects alone and does not extend to any functional elements of the claimed article.) Therefore, the Court grants summary judgment of non-infringement of the D384 Patent. C. Plaintiffs Procedural Objections Plaintiff argues that the Court should postpone the hearing on the motion to allow 13

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Plaintiff time to obtain discovery pursuant to Rule 56(d). Pl.s Oppn, Docket No. 71 at 4, Decl. of Don A. Hernandez in Supp. of Oppn, Docket No. 71-2 at 14. A party seeking relief under Rule 56(d) must show: (1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment. Family Home and Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp ., 525 F.3d 822, 827 (9th Cir. 2008). Plaintiff has not done so here. Nor is it clear what facts Plaintiff could hope to elicit. This case involves simple products, and the question of whether they infringe can be answered on the present record. While Plaintiff argued at the hearing that Defendants had frustrated its efforts to obtain discovery about the canisters and light bulbs sold with the accused baffles, Defendant did not identify any specific discovery requests directed to these issues. Further, the products at issue are available for purchase. Plaintiff is now complaining that it does not have information that, if important to the question of infringement, it could and should have gathered in the course of its pre-suit investigation. Plaintiff argues that Defendants failed to adequately comply with Local Rule 7-3s meet and confer requirement. Oppn at 2. Plaintiff argues that during the November 14, 2013 meet and confer call, Defendants identified its grounds for summary judgment as (1) noninfringement of [Plaintiffs] patents and two other grounds. Id. Plaintiff argues that none of these are the ground for Defendants motion. Id. But in fact, non-infringement of [Plaintiffs] patents is in fact the sole ground for the motion. Plaintiff objects to the product demonstration videos submitted by Defendants, arguing that they are ex parte. Pl.s Oppn, Docket No. 71 at 3, 6. The videos are no more ex parte than any declarations submitted to the Court in connection with summary judgment motions.6 The Court does not address the remainder of Plaintiffs objections, none of which are material, and some of which are frivolous such as objections to the consideration of the patents-in-suit on the ground that they were submitted as exhibits to Defendants counsels declaration, and Defendants counsel is not an employee, agent, or representative of the USPTO. Pl.s Oppn, Docket No. 71-1 at 5. IV. Conclusion For the reasons stated above, the Court grants summary judgment of non-infringe-ment as to both the 460 and D384 Patents.

See also Voice Technologies Grp., Inc. v. VMC Sys., Inc., in which the district court disregarded a video demonstration of a device in operation during claim construction in response to the plaintiffs objections, but included it in the summary judgment record. 164 F.3d 605, 611 (Fed. Cir. 1999). The Federal Circuit found the video demonstration to be important evidence. Id. at 615.

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