Quality Edge, Inc. v. Rollex Corporation , 709 F. App'x 1000 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
QUALITY EDGE, INC.,
Plaintiff-Appellee
v.
ROLLEX CORPORATION,
Defendant-Appellant
______________________
2017-1005
______________________
Appeal from the United States District Court for the
Western District of Michigan in No. 1:10-cv-00278-JTN,
Judge Janet T. Neff.
______________________
Decided: September 15, 2017
______________________
MATTHEW J. GIPSON, Price Heneveld LLP, Grand Rap-
ids, MI, argued for plaintiff-appellee.
JOSEPH R. LANSER, Seyfarth Shaw LLP, Chicago, IL,
argued for defendant-appellant. Also represented by
MICHAEL ROSS LEVINSON, VINCENT MARK SMOLCZYNSKI;
BRIAN MICHAELIS, Boston, MA.
______________________
2 QUALITY EDGE, INC. v. ROLLEX CORP.
Before NEWMAN, CHEN, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Rollex Corporation appeals the district court’s grant of
summary judgment of infringement of Quality Edge, Inc.’s
U.S. Patent No. 7,137,224. Rollex also appeals the dis-
trict court’s permanent injunction order, dismissal of its
invalidity defenses and counterclaim, and denial of its
discovery and evidentiary motions. Finally, Rollex seeks
reassignment of this case to another district judge on
remand. Because we disagree with the district court’s
claim construction, we vacate the district court’s summary
judgment of infringement, vacate the permanent injunc-
tion, and remand to the district court for further proceed-
ings. We affirm the dismissal of Rollex’s invalidity
defenses and counterclaim, as well as the district court’s
discovery and evidentiary rulings, and deny Rollex’s
request for reassignment.
BACKGROUND
This case concerns soffit panels (“soffits”), which are
used to enclose the eaves of homes and buildings. The
’224 patent provides that “[s]offit panels are generally
well-known in the art, and serve to cover or enclose the
underside of the eaves of homes and other buildings of the
type having roof eaves which extend beyond and hang
over the outside walls of the building.” ’224 patent col. 1
ll. 9–13. The ’224 patent explains that “the soffit is nor-
mally vented to allow outside air to flow into the attic of
the building to equalize the attic temperature and pres-
sure with that of the outside environment.” Id. at
col. 1. ll. 16–19. These prior art soffits have certain
drawbacks, including the presence of “exposed or visible
vents [that] detract[] from the overall appearance of the
structure.” Id. at col. 1 ll. 28–30.
To solve this problem, the ’224 patent purports to pro-
vide “a vented soffit panel . . . which includes a generally
QUALITY EDGE, INC. v. ROLLEX CORP. 3
flat imperforate base portion shaped to enclose at least a
portion of the building soffit when mounted in a generally
horizontal orientation under an eave.” Id. at col. 1 ll. 36–
40. As illustrated in Figure 1 of the ’224 patent, the
“vented soffit panel 1 includes a generally flat imperforate
base portion 2 shaped to enclose at least a portion of the
building soffit . . . when mounted in a generally horizontal
orientation under an eave.” Id. at col. 2 ll. 60–63. “At
least one vent channel 5 . . . protrudes upwardly from the
base portion 2, and has a generally trapezoidal shape
defined by a horizontal imperforate top wall 6, and in-
clined perforate sidewalls 7 . . . that connect with base
portion 2.” Id. at col. 2 l. 63 – col. 3 l. 1. “The perforate
sidewalls 7 are disposed at an acute angle relative to top
wall 6 and base portion 2, such that they are hidden from
view from a position underneath eave 4.” Id. at col. 3
ll. 2–5.
The specification further teaches that, as shown in
Figure 2 below, while “each of the sidewalls 7 is perforate,
and therefore permits air to pass therethrough,” id. at
col. 3 ll. 41–43, “the top wall 6 of vent channel 5 is sub-
stantially imperforate, and therefore does not permit air
to pass therethrough,” id. at col. 3 ll. 33–35.
4 QUALITY EDGE, INC. v. ROLLEX CORP.
The ’224 patent includes two independent claims 1
and 42. 1 Claim 1 is reproduced below with the disputed
claim limitation emphasized.
1. A vented soffit panel for building roofs and
the like of the type having at least one eave with a
soffit thereunder; comprising:
a generally flat, imperforate base portion
shaped to enclose at least a portion of the soffit
when mounted in a generally horizontal orienta-
tion under the eave; and
at least one vent channel portion extending
along said base portion, and protruding upwardly
therefrom; said vent channel portion having a
generally trapezoidal lateral cross-sectional shape
defined by a generally horizontal imperforate top
wall and inclined perforate sidewalls with lower
ends thereof connected with said base portion in a
mutually spaced apart relationship to define a slot
therebetween through which ambient air enters
into said vent channel and flows through said per-
forate sidewalls to vent the eave; said perforate
1 Claim 1 is an apparatus claim and claim 42 is a
method claim. Because both claims contain the same
disputed claim limitation, we only reproduce claim 1 as
representative.
QUALITY EDGE, INC. v. ROLLEX CORP. 5
sidewalls being disposed at a predetermined acute
angle relative to said top wall and said base por-
tion, whereby when said soffit panel is installed in
said generally horizontal orientation, said perfo-
rate sidewalls are hidden from view from a posi-
tion underneath the eave.
Id. at col. 5 ll. 10–31 (emphasis added).
Rollex and Quality Edge are direct competitors in the
soffit industry. Quality Edge sued Rollex, alleging that
Rollex’s Stealth Soffit™ infringed the ’224 patent.
Pursuant to the district court’s local rules, Rollex filed
a request for leave to file an early motion for summary
judgment of noninfringement. Rollex contended it was
entitled to judgment of noninfringement because “[n]o
amount of argument or discovery can change the undis-
puted facts that: (1) each of the claims of the ’224 Patent
requires that the top wall of the vent channel have no
holes, and (2) the top wall of the vent channel in [its]
Stealth Soffit™ has holes.” J.A. 128.
Quality Edge responded that the disputed claim limi-
tation “a generally horizontal imperforate top wall” re-
quired construction. The district court agreed and
adopted Quality Edge’s proposed construction, interpret-
ing the term to mean “[d]efined by a generally horizontal
imperforate top wall, wherein any perforations in the top
wall are hidden from a view underneath the eaves.”
Quality Edge, Inc. v. Rollex Corp., No. 1:10-cv-278, 2012
WL 1790026, at *7 (W.D. Mich. May 16, 2012) (“Claim
Construction Decision”).
Rollex filed a motion for summary judgment of inva-
lidity, arguing that, as construed by the district court, the
claims of the ’224 patent were indefinite because in-
fringement of the “hidden from a view” limitation depend-
ed on an arbitrary location of a viewer, which was not
identified in the ’224 patent.
6 QUALITY EDGE, INC. v. ROLLEX CORP.
Based on its claim construction, the district court
granted summary judgment of infringement in favor of
Quality Edge, finding that the only claim limitation
Rollex challenged—“a generally horizontal imperforate
top wall”—was found in the accused Stealth Soffit™. See
Quality Edge, Inc. v. Rollex Corp., No. 1:10-cv-278, 2013
WL 3283639, at *6–9 (W.D. Mich. June 28, 2013) (“Sum-
mary Judgment Decision”). The district court also denied
Rollex’s cross-motion for summary judgment of indefi-
niteness. Id. at *9–12. The district court also denied
several evidentiary and discovery motions, including
Rollex’s (1) motion for leave to submit an expert declara-
tion in support of its motion for summary judgment on
indefiniteness, (2) motion for leave to conduct discovery,
(3) motion for leave to submit an expert declaration in
opposition to Quality Edge’s summary judgment motion
on infringement and validity, and (4) motion for leave to
supplement its opposition to Quality Edge’s summary
judgment motion on infringement and validity. Id. at
*13–16.
After the district court granted summary judgment of
infringement, Quality Edge moved for a permanent
injunction and for the dismissal of Rollex’s invalidity
defenses and counterclaim. The district court granted the
permanent injunction after finding that each of the fac-
tors set forth in eBay Inc. v. MercExchange, L.L.C., 547
U.S. 388, 391 (2006)—irreparable injury, inadequacy of
monetary damages, balance of hardships, and public
interest—favored injunctive relief. See Quality Edge, Inc.
v. Rollex Corp., No. 1:10-cv-278, 2016 WL 4536327, at *1–
6 (W.D. Mich. Aug. 31, 2016). The district court also held
that Rollex’s invalidity counterclaims failed to meet the
pleadings standards under Ashcroft v. Iqbal, 556 U.S. 662
(2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007). See Quality Edge, Inc. v. Rollex Corp., No. 1:10-cv-
278, 2015 WL 4392980, at *1–2 (W.D. Mich. July 15,
2015) (“Invalidity Defenses Decision”). Likewise, the
QUALITY EDGE, INC. v. ROLLEX CORP. 7
district court held that Rollex’s invalidity defenses failed
under the Sixth Circuit’s “fair notice” pleading standard.
Id. at *3–4. Accordingly, the district court dismissed
Rollex’s invalidity counterclaim and affirmative defenses
without leave to amend.
Rollex appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(1).
DISCUSSION
I.
We begin by addressing claim construction. We con-
clude that the district court erred in construing the claim
phrase “a generally horizontal imperforate top wall” to
mean “[d]efined by a generally horizontal imperforate top
wall, wherein any perforations in the top wall are hidden
from a view underneath the eaves.” Claim Construction
Decision, 2012 WL 1790026, at *7 (alteration in original).
We review the district court’s ultimate claim construc-
tion de novo and review underlying factual findings based
on extrinsic evidence for clear error. See Medgraph, Inc.
v. Medtronic, Inc., 843 F.3d 942, 949 (Fed. Cir. 2016)
(citing Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct.
831, 841 (2015)). Claim construction aims to “ascribe the
‘ordinary and customary meaning’ to claim terms as they
would be understood to a person of ordinary skill in the
art at the time of invention.” Liberty Ammunition, Inc. v.
United States, 835 F.3d 1388, 1395 (Fed. Cir. 2016) (quot-
ing Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir.
2005) (en banc). “[T]he person of ordinary skill in the art
is deemed to read the claim term not only in the context of
the particular claim in which the disputed term appears,
but in the context of the entire patent, including the
specification.” Phillips, 415 F.3d at 1313.
As the district court recognized, the plain and ordi-
nary meaning of “imperforate” is “having no opening or
aperture” and “lacking perforations.” Claim Construction
8 QUALITY EDGE, INC. v. ROLLEX CORP.
Decision, 2012 WL 1790026, at *5 (citing Webster’s Ninth
New Collegiate Dictionary 604, 873 (9th ed. 1988)).
Nonetheless, the district court did not interpret “generally
horizontal imperforate top wall” to require a top wall
without openings or apertures. Instead, the district court
concluded that the term “generally,” which precedes the
term “horizontal,” also modifies “imperforate,” allowing
for some holes in the top wall.
The district court correctly noted that “generally” is a
ubiquitous term in patent claims, used to signal approxi-
mation. The central issue, however, is whether “general-
ly” in the claim phrase modifies only “horizontal” or
whether it modifies both “horizontal” and “imperforate.”
We disagree with the district court’s conclusion that
“generally” modifies both horizontal and imperforate. We
conclude that, in light of the claims and specification of
the ’224 patent, the more reasonable reading of the claim
term “generally horizontal imperforate” is that the term
“generally” only modifies “horizontal” and does not modify
the strict boundary of “imperforate.”
The absolute nature of the claim term “imperforate”
supports our conclusion. It makes little sense as a tech-
nical matter to have a “generally” imperforate wall. A
wall is either perforate (with holes) or imperforate (with-
out holes). Once a wall is “generally” imperforate, it is
actually perforate.
Claim 23, which depends from claim 1, further sup-
ports our construction. As we have recognized,
“[a]lthough each claim is an independent invention,
dependent claims can aid in interpreting the scope of
claims from which they depend.” Laitram Corp. v. NEC
Corp., 62 F.3d 1388, 1392 (Fed. Cir. 1995). Here, depend-
ent claim 23 recites “said imperforate top wall.” ’224
patent at col. 6 ll. 40–41. It does not recite “said generally
imperforate top wall.” This suggests that “generally” in
claim 1 does not modify “imperforate.”
QUALITY EDGE, INC. v. ROLLEX CORP. 9
Our construction is also consistent with the patent
specification, which is “the single best guide to the mean-
ing of a disputed term” and “[u]sually . . . is dispositive.”
Phillips, 415 F.3d at 1315. In all but one instance, the
specification describes “a horizontal imperforate top wall”
without the use of “generally” to modify either term in the
claim phrase. See ’224 patent, Abstract, col. 1 ll. 42–43,
col. 2 l. 66. Only once does the specification use the
phrase “a generally horizontal imperforate top wall.” See
id. at col. 1 l. 59. But the specification more specifically
explains that the top wall has a “generally horizontal
orientation” when installed under an eave. See id. at
col. 3 ll. 39–40. This signals that the inventors intended
the term “generally” in the claims to refer only to the
“horizontal” orientation of the top wall. Nowhere does the
specification describe or depict a top wall with holes or
perforations.
The district court emphasized that the specification
states that the top wall “is substantially imperforate.”
Claim Construction Decision, 2012 WL 1790026, at *6
(citing ’224 patent col. 3 ll. 34–36). The district court
concluded that the specification’s use of the term “sub-
stantially imperforate” “clearly expresses that the top
wall may have perforations” and “[t]o find otherwise
blindly disregards the presence and purpose of the modi-
fiers ‘substantially’ and ‘visually detectable.’” Id. We
respectfully disagree.
Quality Edge and the district court overlook the re-
mainder of this sentence in the specification, which re-
cites that the top wall “is substantially imperforate, and
therefore does not permit air to pass therethrough.”
’224 patent col. 3 ll. 34–35 (emphasis added). The patent
therefore qualifies “substantially imperforate” by stating
that the top wall must not permit air to pass through.
Logically, if the top wall were substantially imperforate
such that it had some holes, as Quality Edge argues, the
10 QUALITY EDGE, INC. v. ROLLEX CORP.
top wall would permit air to pass through, which contra-
dicts the express definition provided in the specification.
Additionally, the beginning of this very sentence ex-
plains that the description that follows describes the
invention as illustrated in Figures 1–3 of the patent. Id.
at col. 3 ll. 33–34 (“In the example illustrated in FIGS. 1–
3, the top wall 6 . . . is substantially imperforate.”). But
as can be seen in each of the figures, the top wall has no
perforations, which is consistent with the specification’s
disclosure of an imperforate top wall. Accordingly, we
conclude that the specification of the ’224 patent more
reasonably supports the conclusion that “imperforate,” as
used in the claims, requires a top wall that has no holes
or perforations.
We also disagree with the grammatical argument ad-
vanced by the district court. The district court empha-
sized that because an earlier limitation in claim 1—“a
generally flat, imperforate base portion”—contains a
comma, the lack of a comma between “horizontal” and
“imperforate” in the disputed claim limitation indicates
that “generally” modifies both “horizontal” and “imperfo-
rate,” such that the top wall is both generally horizontal
and generally imperforate. Claim Construction Decision,
2012 WL 1790026, at *4. As the district court recognized,
however, there is no hard and fast grammatical rule that
placing a comma between two adjectives means that the
adverb does not modify both adjectives. Id. Similarly,
there is no hard and fast grammatical rule that not plac-
ing a comma between two adjectives means that the
adverb modifies both adjectives. This is demonstrated by
the fact that the comma in the phrase “a generally flat,
imperforate base portion” is not used consistently in the
specification. The specification repeatedly uses the same
phrase as the claims, referring to “a generally flat imper-
forate base portion,” but without a comma. See
’224 patent, Abstract, col. 1 ll. 37–38, col. 1 ll. 52–53, col. 2
ll. 60–61. In fact, the only two instances in which the
QUALITY EDGE, INC. v. ROLLEX CORP. 11
comma appears in the phrase are in independent claims 1
and 42. Thus, we conclude that the lack of a comma
between the adjectives “horizontal” and “imperforate”
does not demonstrate that “generally” modifies both
“horizontal” and “imperforate.”
For these reasons, we agree with Rollex that the cor-
rect construction of the phrase is “a top wall that has a
generally horizontal orientation, when the vented soffit
panel is installed under an eave, and does not include any
perforations therein.” J.A. 373.
Because we find that the asserted claims require that
the top wall not include any perforations and there is no
dispute that Rollex’s accused Stealth Soffit™ is inundated
with perforations in its top wall, we vacate the district
court’s summary judgment of infringement and its per-
manent injunction order. We do not reach Rollex’s argu-
ment that the claims as construed by the district court are
indefinite as it is moot in light of our claim construction.
II.
We next turn to Rollex’s arguments regarding the dis-
trict court’s denial of its invalidity counterclaim and
affirmative defenses. We affirm the district court’s rul-
ings.
We apply the law of the regional circuit, in this case
the Sixth Circuit, when reviewing a district court’s ruling
on a motion to dismiss for failure to state a claim or a
motion for leave to amend. See CoreBrace LLC v. Star
Seismic LLC, 566 F.3d 1069, 1072 (Fed. Cir. 2009); Ulti-
max Cement Mfg. Corp. v. CTS Cement Mfg. Corp., 587
F.3d 1339, 1354 (Fed. Cir. 2009). In the Sixth Circuit, a
district court’s decision to grant a motion to dismiss for
failure to state a claim is reviewed de novo, see Agema v.
City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016), and its
denial for leave to amend is reviewed for an abuse of
12 QUALITY EDGE, INC. v. ROLLEX CORP.
discretion, see Glazer v. Chase Home Fin. LLC, 704 F.3d
453, 458 (6th Cir. 2013).
In its Answer to Quality Edge’s Complaint, Rollex as-
serted a defense that “[t]he ’224 Patent . . . is invalid
because it does not comply with the statutory require-
ments of patentability enumerated in, inter alia,
35 U.S.C. §§ 101, 102, 103, 112, 116 and/or 132.” J.A. 237.
Rollex also counterclaimed, alleging that “[t]he ’224
Patent . . . is invalid for failure to satisfy one or more of
the conditions of patentability set forth in Title 35, includ-
ing, inter alia, 35 U.S.C. §§ 101, 102, 103, 112, 116 and/or
132.” J.A. 240 ¶ 12. At no point during the litigation did
Rollex allege any facts in support of its invalidity counter-
claim or defenses.
The district court held that the Twombly/Iqbal plead-
ing standards applied to Rollex’s counterclaims and that
the Sixth Circuit’s “fair notice” standard applied to its
defenses. See Invalidity Defenses Decision, 2015 WL
4392980, at *1. 2 Under these standards, the district court
dismissed Rollex’s counterclaims and defenses, finding
that “[t]he counterclaim provides no further facts or
context to identify the claims of invalidity beyond merely
citing sections of the patent statute” and that its “coun-
terclaim falls far short of the Iqbal and Twombly pleading
standard.” Id. at *1, *2. With respect to its defenses, the
district court found that “Rollex’s barebones, boilerplate
affirmative defenses do not provide Quality Edge ‘fair
notice’ of the nature of the defenses.” Id. at *3. The court
therefore dismissed the counterclaim and defenses with-
out leave to amend because Rollex’s “undue delay, undue
prejudice and futility all weigh[ed] against leave to
2 Rollex does not contest the district court’s ruling
regarding the pleading requirements for its invalidity
counterclaim or defenses, and therefore we need not reach
this aspect of the district court’s decision.
QUALITY EDGE, INC. v. ROLLEX CORP. 13
amend” and because “Rollex’s motion [was] belated,
wasteful of resources, and unduly prejudicial to Quality
Edge.” Id. at *4.
Upon reviewing the record, we find no abuse of discre-
tion in the district court’s dismissal of Rollex’s invalidity
counterclaim and defenses. Rollex’s invalidity counter-
claim merely recites various sections of the patent statute
with no supporting facts, and its defenses are similarly
boilerplate without factual support. We note that the
district court on multiple occasions warned Rollex that its
counterclaim and defenses were insufficient and required
supplementation, but to no avail. At the outset of the
litigation, Rollex pursued only its non-infringement case
and only belatedly asserted indefiniteness after the
district court’s claim construction, which the district court
fortuitously addressed. Despite the district court’s con-
tinued attempts to ascertain Rollex’s other invalidity
positions, Rollex failed to present them or request leave to
further amend its invalidity counterclaim and defenses
until after the district court entered summary judgment
on infringement.
While Federal Rule of Civil Procedure 15(a)(2) pro-
vides that the district court “should freely give leave [to
amend] when justice so requires,” the Sixth Circuit has
recognized that a district court may deny leave due to
“[u]ndue delay in filing, lack of notice to the opposing
party, bad faith by the moving party, repeated failure to
cure deficiencies by previous amendments, undue preju-
dice to the opposing party, and futility of amendment.”
Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir.
1989) (citing Hageman v. Signal L.P. Gas, Inc., 486 F.2d
479, 484 (6th Cir. 1973)). Here, we cannot say that the
district court abused its discretion in concluding that
Rollex’s conduct constitutes undue delay and prejudice,
supporting the district court’s discretion to dismiss its
invalidity counterclaim and defenses without leave to
14 QUALITY EDGE, INC. v. ROLLEX CORP.
amend. Accordingly, we affirm the district court’s dismis-
sal of Rollex’s invalidity counterclaim and defenses.
III.
Lastly, Rollex seeks reassignment of this case to a dif-
ferent district judge on remand. We deny such extraordi-
nary relief.
A request for reassignment is not unique to the patent
laws, but is procedural in nature. We therefore review
such a request under the law of the regional circuit, here
the Sixth Circuit. See Micro Chem., Inc. v. Lextron, Inc.,
318 F.3d 1119, 1122 (Fed. Cir. 2003). The Sixth Circuit
has held that reassignments are “an extraordinary power
and should rarely be invoked . . . [and should be] made
infrequently and with the greatest reluctance.” Armco,
Inc. v. United Steelworkers of Am., AFL-CIO, Local 169,
280 F.3d 669, 683 (6th Cir. 2002) (citation omitted).
Factors relevant to considering reassignment include:
(1) whether the original judge would reasonably
be expected upon remand to have substantial dif-
ficulty in putting out of his or her mind previous-
ly-expressed views or findings determined to be
erroneous or based on evidence that must be re-
jected, (2) whether reassignment is advisable to
preserve the appearance of justice, and (3) wheth-
er reassignment would entail waste and duplica-
tion out of proportion to any gain in preserving
the appearance of fairness.
Id.
Rollex believes that the district court will not be
impartial on remand based on its denial of Rollex’s dis-
covery requests and submission of expert testimony on
summary judgment, its denial of Rollex’s evidence at the
permanent injunction stage, its striking of its invalidity
counterclaim and affirmative defenses, and its chastise-
QUALITY EDGE, INC. v. ROLLEX CORP. 15
ment of Rollex based on its change of its litigation posi-
tions and delay of litigation.
We find no principled reason for reassigning this case.
As the district court properly held, Rollex shaped the
course of this case from the beginning, conceding that the
single dispositive issue was the claim construction of “a
generally horizontal imperforate top wall” and in turn
noninfringement based on this single claim limitation.
Rollex agreed that this issue could be resolved on sum-
mary judgment without discovery. We note that we have
now adopted Rollex’s claim construction, which will be the
proper construction for the infringement analysis on
remand. Rollex also agreed that discovery during the
injunction stage was unnecessary. The district court
merely relied on Rollex’s representations, which formed
the course of the litigation.
Considering Rollex’s concessions, we conclude that the
district court did not abuse its discretion in denying
Rollex’s motions for discovery and additional evidence.
Likewise, for the reasons stated earlier, the district court
did not err in dismissing Rollex’s unsupported invalidity
counterclaim and defenses. Accordingly, we have no
reason to believe that the district judge will have substan-
tial difficulty in disregarding her previous views and
findings on remand. Moreover, reassignment would
entail waste and duplication of the parties’ and the dis-
trict court’s resources in this already prolonged litigation.
We therefore deny Rollex’s request for reassignment.
IV.
We have considered Rollex’s additional arguments
and find them unpersuasive. In sum, we vacate the
district court’s claim construction of “a generally horizon-
tal imperforate top wall” and construe the term to mean
“a top wall that has a generally horizontal orientation,
when the vented soffit panel is installed under an eave,
and does not include any perforations therein.” As a
16 QUALITY EDGE, INC. v. ROLLEX CORP.
result, we vacate the district court’s summary judgment of
infringement and its permanent injunction order. We
affirm the district court’s dismissal of Rollex’s invalidity
counterclaim and defenses and deny Rollex’s request for
reassignment. Finally, we remand to the district court for
further proceedings consistent with this opinion.
AFFIRMED-IN-PART, VACATED-IN-PART,
REMANDED
COSTS
No costs.