United States District Court, D. Nevada
LARRY R. HICKS, District Judge.
This is a claim construction order for United States Patent number 5, 624, 122 ("the 122 patent"). The parties have submitted three terms for construction, one that the parties agreed to, and two that are in dispute. The parties submitted their opening claim construction briefs on September 28, 2011, Doc. #43; Doc. #44,  and responses on November 11, 2011. Doc. #51; Doc. #52. After these submissions, Sky Zone declared bankruptcy (Doc. #63), and the Court recognized an automatic stay pursuant to Section 362(a) of the Bankruptcy Code (Doc. #73).
On September 17, 2014, Plaintiff Sky Zone, LLC ("Sky Zone") filed a Notice of Supplemental Authority. Doc. #77. Defendants Jerry Raymond et al. (collectively "Sky High") filed an objection, Doc. #79, to which Sky Zone replied. Doc. #82. On September 23, 2014, Sky Zone filed a Notice of Claim Construction Order. Doc. #80. Sky High filed an objection, Doc. #81, to which Sky Zone replied. Doc. #84.
On September 19, 2014, Sky High filed a Notice of Supplemental Intrinsic Evidence. Doc. #78. Sky Zone filed an objection, Doc. #83, to which Sky High replied. Doc. #85.
The Court held a Markman claim construction hearing on September 30, 2014. At the request of the Court, the parties submitted a Joint List of Claim Construction Exhibits on October 3, 2014. Doc. #87.
I. Facts and Background
Plaintiff Sky Zone is a Nevada limited liability company that owns the 122 patent, which discloses an invention for "a resilient playing field comprised of trampoline panels adjacent to one another on a grid of steel cables." Doc. #43 at 2. The 122 patent explains that "the resilient field enables games where participants can perform jumping feats not possible on ground." Id. A copy of the patent, titled "Sport Game and Field" is attached as Exhibit A to the complaint. Doc. #1, Exhibit A.
Sky High Sports is a limited liability company that provides trampoline centers at numerous locations throughout California, Oregon, and Washington. Doc. #34 ¶6. Prior to opening these trampoline centers, Defendant Jerry Raymond, a managing member of Sky High Sports, visited Sky Zone's facility in Las Vegas and discussed franchising opportunities. Id. ¶7.
On February 25, 2011, Sky Zone filed a complaint against Sky High for patent infringement, alleging that Sky High's facilities infringed claims 1-4 of the 122 patent. Doc. #1 ¶36. In its Answer, filed on April 22, 2011, Sky High asserted six affirmative defenses to Sky Zone's claim of infringement: (1) failure to state facts sufficient to constitute a cause of action; (2) estoppel; (3) waiver; (4) laches; (5) unclean hands; and (6) statute of limitations. Doc. #34 at 5.
Sky High also asserted three counterclaims against Sky Zone: (1) declaratory judgment of noninfringement; (2) declaratory judgment of invalidity; and (3) tortious interference with prospective business relations. Id. at 9-10. In its Answer to Sky High's counterclaims, Sky Zone asserted eleven affirmative defenses: (1) failure to state a claim upon which relief may be granted; (2) unclean hands; (3) valid patent; (4) truthfulness; (5) economic interest; (6) interest as competitor in industry; (7) failure to mitigate damages and/or losses claimed; (8) lack of causation; (9) assumption of risk; (10) good faith; and (11) entitlement to offset. Doc. #36 at 4-5.
Claim 1 of the 122 patent, which includes the terms at issue here, describes:
A supported surface for transitional movement, said surface being formed of:
a. a grid of elongated steel cables disposed above a ground level, said grid being formed of a plurality of first parallel cables spaced from each other, and a plurality of second steel cables disposed transversely of and in abutment with the first cables, said second steel cables being parallel to, and spaced from, each other, said first and second cables defining a plurality of open spaces between the cables;
b. means to support each of said cables at their respective extremities;
c. a plurality of first panels, each of said first panels being formed of a yieldable heavy fabric having edges and each panel being configured to space its edges from ...