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Rodger K. Carreyn (Bar No. 210432)

rcarreyn@perkinscoie.com
Christopher G. Hanewicz (pro hac vice)
chanewicz@perkinscoie.com
Gabrielle E. Bina (pro hac vice)
gbina@perkinscoie.com
David R. Pekarek Krohn (pro hac vice)
dpekarekkrohn@perkinscoie.com
PERKINS COIE LLP
One East Main Street, Suite 201
Madison, WI 53711
Telephone: 608-663-7460
Facsimile: 608-663-7499

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Joseph P. Hamilton (Bar No. 211544)

jhamilton@perkinscoie.com
PERKINS COIE LLP
1888 Century Park East, Suite 1700
Los Angeles, CA 90067-1721
Telephone: 310-788-9900
Facsimile: 310-788-3939
Attorneys for Plaintiff and Counter-Defendant,
Easton Baseball/Softball Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Easton Baseball/Softball Inc.,

Case No. 2:15-cv-09221-R-GJS

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Plaintiff,

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v.
Wilson Sporting Goods Co.,
Defendant.

PLAINTIFF EASTON
BASEBALL/SOFTBALL INC.S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION FOR PARTIAL
SUMMARY JUDGMENT
DATE:
TIME:

October 3, 2016
10:00 a.m.

PLACE: Courtroom 8
JUDGE: Hon. Manuel L. Real

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Complaint Filed: November 30, 2015

Trial Date: November 29, 2016

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And Related Counterclaims

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES ..................................................................................... ii

I.
INTRODUCTION ........................................................................................... 1
II.
FACTUAL BACKGROUND ......................................................................... 1
A.
Background of the Technology ............................................................. 1
B.
The Inventions Described in the Patents-in-Suit .................................. 6
III. LEGAL STANDARDS ................................................................................... 7
IV. ARGUMENT .................................................................................................. 9
A.
The Court Should Adopt Eastons Proposed Construction of the
Term Sweet Spot ............................................................................. 10
B.
Wilsons Infringement of the Patents-in-Suit ..................................... 16
1.
Infringement of the 519 Patent ................................................ 17
2.
Infringement of the 108 Patent ................................................ 19
V.
CONCLUSION ............................................................................................. 25

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-i-

TABLE OF AUTHORITIES

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Page(s)
CASES
Abbott Labs. v. Syntron Bioresearch, Inc.
334 F.3d 1343 (Fed. Cir. 2003) ............................................................................. 9
Acumed LLC v. Stryker Corp.
483 F.3d 800 (Fed. Cir. 2007) ............................................................................... 8
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (1986) .......................................................................................... 7, 8
Athletic Alternatives, Inc. v. Prince Mfg.
73 F.3d 1573 (Fed. Cir. 1996) ............................................................................... 8
C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc.
911 F.2d 670 (Fed. Cir. 1990) ............................................................................... 8
Celotex Corp. v. Catrett
477 U.S. 317 (1986) .......................................................................................... 7, 8
Cybor Corp. v. FAS Technologies, Inc.
138 F.3d 1448 (Fed. Cir. 1998) ............................................................................. 8

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Markman v. Westview Instruments, Inc.

52 F.3d 967 (Fed. Cir. 1995) (en banc), affd, 517 U.S. 370 (1996) .................... 8
Phillips v. AWH Corp.
415 F.3d 1303 (Fed. Cir. 2005) (en banc) ................................................. 9, 10, 16
Thorner v. Sony Computer Entmt Am. L.L.C.
669 F.3d 1362 (Fed. Cir. 2012) ............................................................................. 9
U.S. Philips Corp. v. Iwasaki Elec. Co.
505 F.3d 1371 (Fed. Cir. 2007) ............................................................................. 8
Vasudevan Software, Inc. v. MicroStrategy, Inc.
782 F.3d 671 (Fed. Cir. 2015) ............................................................................. 16

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OTHER AUTHORITIES

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Fed. R. Civ. P. 56 .................................................................................................... 7, 8

-ii-

I.

INTRODUCTION

This case is about improvements to baseball bats. In particular, it is about a

novel design invented by plaintiff Easton Baseball/Softball Inc. (Easton) that

enables a bat to provide optimal performance without running afoul of rigorous

industry standards regulating such performance. Eastons arch-competitor in the

market for baseball bats, Defendant Wilson Sporting Goods Co. (Wilson), is

using Eastons patented innovations without Eastons permission, and Easton

brought this lawsuit to stop Wilsons infringement. The question of Wilsons

infringement is ripe for determination on summary judgment because Wilsons

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noninfringement defense rests entirely on a single question of claim construction:

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how does the patent define the term sweet spot as recited in each of the asserted

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claims?

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Fortunately, this is not a case where the Court will need to pick between

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competing dictionary definitions of sweet spot.

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confusion arising from the myriad possible definitions of that term, Eastons

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inventors expressly defined the term sweet spot in the asserted patents, and, under

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that definition, there can be no reasonable dispute that Wilson infringes those

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patents. Cognizant of this, Wilson ignores the teachings of the patents and resorts

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to an unsupportable definition of sweet spot that is nonsensical in the context of

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the patents. The Court should reject Wilsons litigation-driven attempt to avoid

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culpability for its infringement and, consistent with Federal Circuit precedent,

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construe the term sweet spot as it is expressly defined in the patents. Under such

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a construction, summary judgment that Wilson infringes Eastons asserted patents

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is appropriate.

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26

II.
A.

To the contrary, to avoid

FACTUAL BACKGROUND

Background of the Technology

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Until the 1970s, nearly all baseball bats were made out of a solid piece of

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wood, which meant that they would perform fairly consistently. Expert Report of
1

Stephen B. Fitzgerald Regarding Infringement (Fitzgerald Infringement Report)

16, attached to the Appendix of Evidence (App.) as Ex. 3. Thus, if a ball was

hit farther or faster, that performance would be due primarily to the skill of the

batter rather than the properties of the bat.

susceptible to breaking during play, however, manufacturers began making bats out

of metal. Id. These metal bats (and later, composite bats) were much more durable

than the wooden bats, and offered performance benefits over wooden bats. Id. 17.

Baseball and softball governing bodies thus began regulating bats by requiring bats

to follow performance standards. Id.

Id.

Because wooden bats were

10

Regardless of the material used, a baseball bat relies on momentum to propel

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a ball. Id. 18. When a baseball or softball strikes a bat, a significant amount of

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energy is lost as the ball is deformed during impact. Id. 22. The amount of

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energy returned to the ball after the collision (referred to as the Coefficient of

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Restitution or COR) is defined as the measure of impact efficiency, which is

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calculated as the relative speed of the objects after impact divided by the relative

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speed of the objects before impact. Id. 22-23.

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Bats also have other features that help propel the ball. Id. 24. For example,

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metal and composite bats are hollow, meaning that they are typically lighter than

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wooden bats, allowing them to be swung faster. Id. In addition, the generally thin

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wall of the barrel in metal and composite bats deforms slightly upon collision with

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the ball, which transfers energy back to the ball and allows it to travel farther and

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faster (sometimes referred to as the trampoline effect). Id.

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In fact, without regulation, metal and composite bats can significantly

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outperform wooden bats. Id. 24. In order to regulate batted ball speeds, baseball

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and softball governing bodies have imposed various bat performance standards. Id.

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25. Ball-bat designers typically account for these performance standards by

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adjusting the performance, or ball-bat coefficient of restitution (BBCOR), of the

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bats barrel. Id. The BBCOR standard adopted by governing bodies regulates how
2

much energy is lost during the bats contact with the baseball. Id. 26. The

NCAA and NFHS have set the maximum BBCOR value at 0.50, which is a level

that allows very little trampoline effect. Id.

One method of controlling BBCOR in a bat is simply to thicken the barrel

wall. Id. 27. Thickening the barrel wall, however, generally increases the bats

swing weight, (also referred to as moment of inertia or MOI), 1 which

measures how difficult it is to swing the bat. Id. 27-28. An increase in MOI is

undesirable because it makes it harder to swing the bat, and therefore reduces the

swing speed. Id. 31. In a composite bat, BBCOR may also be adjusted by

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selecting specific materials and fiber angles to increase the barrels radial stiffness,

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or by molding in geometry that acts as a stiffening element. Id. 27.

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Energy is lost in several ways when a ball strikes a bat. Id. 32. Two

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significant causes of energy loss are (1) ball compression and (2) bat-bending

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vibrations. Id. The compression of the ball on impact causes energy to be lost by

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internal friction. Id. The impact of the ball also causes the bat to vibrate in

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bending, and energy is lost when the vibrations are absorbed by the batters hands,

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and/or by internal damping in the bat. Id.

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The amount of bat vibration caused by the collision with the ball is heavily

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dependent on where along the length of the bat the ball strikes. Id. 33. There is a

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point on the barrel where impacts cause minimal vibration. Id. Impacts at this

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location, often referred to as the sweet spot, tend to feel good to batters because

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there is little vibration transferred to their hands. Id. Impacts away from this

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location tend to cause the bat to vibrate much more than impacts near it, and the

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Swing weight is different from the actual weight (or dead weight) of the bat.
Under current regulations, most adult baseball bats have the same dead weight at a
given length. However, the dispersion of the weight along the length of the bat will
impact the difficulty in swinging it. Fitzgerald Infringement Report 28-31 (App.
Ex. 3).
3

batters hands tend to feel more vibration or sting. Id.

When engineers determine a bats tendency to vibrate, they often use a

technique called modal analysis. Id. 34. This involves decomposing the bending

vibrations into fundamental mode shapes, each of which has a corresponding

fundamental modal frequency. Id. Mode shapes describe the shape of the bat

when it bends during vibration at the corresponding modal frequency. Id. When

the effects of all mode shapes are determined, they can be combined

mathematically to determine the total vibration of the bat.

unlimited number of mode shapes at sequentially higher frequencies but, in the case

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of a bat, the majority of the vibrational energy can be accounted for by considering

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just the first three fundamental mode shapes.

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magnified views of the vibrating shape of the first three bending modes of a typical

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baseball bat. Id.

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Id.

Id.

There are an

The figures below show

Mode 1

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Mode 2

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Mode 3

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A mode shape plot is like a map that indicates how much energy will be

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transferred to that mode of vibration when the bat is impacted at any given location

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along the bat. Id. 35. Where the mode shape is most extreme is where impacts

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cause the most vibration. Id. Very little vibration occurs from an impact at a point

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where the mode shape crosses zero. Id. These points of minimal vibration are

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called nodes.

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superimposed onto one another to show the relative positions of the nodes on the

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barrel:

The figure below shows the three mode-shape curves above

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1
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Id. 36.2 As can be seen from the above graph, there is a region of the bat where

the first three barrel nodeswhere vibration is minimalare located.

When a ball impacts a bat, the bat recoils, as any object does during a

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collision. Id. 37. The entire bat tends to move, or translate, away from the

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pitcher. Id. Since a bat is long and slender, it also tends to rotate when struck near

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the end, causing the handle to move towards the pitcher. Id. If struck at the right

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location, these two effects tend to cancel each other out and there is less tendency

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for the handle to move suddenly, thus avoiding unpleasant forces on the batters

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hands. Id. The point where the translation and rotation cancel each other out, and

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the handle moves very little is called the center of percussion or COP. Id.

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When a batter hits a ball and it feels good they say they hit it on the sweet

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spot. Id. 38. The reason the hit feels so good (sometimes described as soft) is

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because they have found the impact location where feedback to their hands from the

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combination of bending vibrations and bat recoil is minimal.

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sometimes, but not always, the maximum performance location on the barrel. Id.

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The reason it is not always at the maximum performance location is that, with

Id.

This is

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The node on the barrel for mode 3 (shown in red) is closest to the end cap (and
farthest from the handle), the barrel node for mode 2 (shown in dark blue) is farther
from the end cap, and the barrel node for mode 1 (shown in teal) is farthest from the
cap (and closest to the handle). Fitzgerald Infringement Report 36 (App. Ex. 3).
The region containing these nodes is a region of relatively low magnitude for all
three modes, which is consistent with the sweet spot being located within this
region. Id.
5

hollow bats, composite materials, and/or localized barrel stiffeners, engineers have

been able to reduce the performance locally at the sweet spot in order to pass the

BBCOR test, while still keeping the performance relatively high along the

remainder of the barrel. Id.

B.

The Inventions Described in the Patents-in-Suit

United States Patent Nos. 8,480,519 (the 519 patent) and 8,795,108 (the

108 patent) (collectively, the patents-in-suit or asserted patents) are generally

directed to ball bats (e.g., baseball and softball bats) that include a stiffening

element strategically located in the barrel. See generally 519 patent (App. Ex. 1)

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& 108 patent (App. Ex. 2). 3

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discovered that inclusion of this stiffening element provided a significant reduction

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in BBCOR without causing a substantial increase in the bats swing weight as

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occurs with thickening the barrel wall. Fitzgerald Infringement Report 39. Thus,

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the inventions claimed in the patents-in-suit allow for superior performance while

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still complying with the BBCOR regulations of governing bodies. Id.

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As described in these patents, the inventors

The asserted claims of the 519 patent are claims 1, 2, 3, and 6. Independent
claim 1 recites as follows:

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1. A ball bat, comprising:

a barrel including a sweet spot;
a handle attached to or continuous with the barrel; and
a stiffening element that is generally L-shaped in cross-section, comprising:
a substantially cylindrical first portion positioned along an inner
circumference of the barrel; and
a second portion projecting radially inwardly from the first portion, with
the second portion including a radially inner surface defining a radially
central opening through the second portion, wherein the second portion is
positioned adjacent to the sweet spot between the sweet spot and the
handle.

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3

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The application for the 108 patent was a continuation of the application for the
519 patent, which in turn was a continuation of Application No. 12/343,323, filed
December 23, 2008, now U.S. Patent No. 8,298,102.
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The asserted claims of the 108 patent are claims 1, 2, 4, 5, 16, and 17.
Independent claim 1 recites as follows:
1. A ball bat, comprising:
a barrel including a sweet spot;
a handle attached to or continuous with the barrel; and
a stiffening element, comprising:
a substantially cylindrical first portion positioned along an inner
circumference of the barrel; and
a second portion projecting radially inwardly from the first portion and
positioned between the sweet spot and the handle, and closer to the sweet
spot than to the handle, wherein the stiffening element includes a radially
central opening.
Independent claim 16 of the 108 patent recites as follows:

11

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16. A ball bat, comprising:

a barrel including a sweet spot;
a handle attached to or continuous with the barrel; and
a stiffening element, comprising:
a substantially cylindrical first portion positioned along an inner
circumference of the barrel; and
a second portion projecting radially inwardly from the first portion and
positioned adjacent to the sweet spot between the sweet spot and the
handle, wherein the stiffening element includes a radially central opening.

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As discussed below, each of these elements (as well as the elements set forth

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16

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in the asserted dependent claims) are met by the accused products.

III.

LEGAL STANDARDS

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Summary judgment is proper where the moving party establishes that there is

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no genuine issue of material fact and that it is entitled to judgment as a matter of

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law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Material facts are those facts that might affect the outcome of the suit, and a

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material fact is genuine if a reasonable finder of fact could find in favor of the

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nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Summary judgment is appropriate where a party has failed to make a showing

28
7

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. Celotex, 477 U.S. at 322.

A party opposing summary judgment may not rest upon the mere allegations or

denials of the adverse partys pleading, but must set forth specific facts showing

that there is a genuine issue for trial. Anderson, 477 U.S. at 248; see also Fed. R.

Civ. P. 56(c); Fed. R. Civ. P. 56(e)(2) (allowing court to consider the fact

undisputed for purposes of the motion if a party fails to properly address another

partys assertion of fact). Summary judgment is as appropriate in a patent case as

it is in any other case, C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc., 911

10

F.2d 670, 672 (Fed. Cir. 1990), and [s]ummary judgment on the issue of

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infringement is proper when no reasonable jury could find that every limitation

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recited in a properly construed claim either is or is not found in the accused device

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either literally or under the doctrine of equivalents. U.S. Philips Corp. v. Iwasaki

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Elec. Co., 505 F.3d 1371, 1374-75 (Fed. Cir. 2007) (citation and quotation

15

omitted).

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In determining whether a patent is infringed, the claims must be construed by

17

the court as a matter of law. Markman v. Westview Instruments, Inc., 52 F.3d 967,

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979 (Fed. Cir. 1995) (en banc), affd, 517 U.S. 370 (1996). The construed claims

19

must then be compared to the accused product to determine whether all of the claim

20

limitations are present. Acumed LLC v. Stryker Corp., 483 F.3d 800, 804 (Fed. Cir.

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2007) (citing Markman, 52 F.3d at 976). Because claim construction is a matter of

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law to be determined exclusively by the judge, Cybor Corp. v. FAS Technologies,

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Inc., 138 F.3d 1448, 1453 (Fed. Cir. 1998), where the structure of the accused

24

product is not in dispute, the question of literal infringement collapses to one of

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claim construction and is thus amenable to summary judgment.

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Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1578 (Fed. Cir. 1996).

Athletic

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In construing claims, the starting point is the intrinsic evidence, namely, the

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claims themselves, followed by the specification and the prosecution history. See
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Phillips v. AWH Corp., 415 F.3d 1303, 1312-17 (Fed. Cir. 2005) (en banc). Courts

first look to the claim terms, which generally are given their ordinary and

customary meaning, that is, the meaning that the term would have to a person of

ordinary skill in the art in question at the time of the invention. Id. at 1312-13. A

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. Id. at 1313. Usually, [the

specification] is dispositive; it is the single best guide to the meaning of a disputed

term. Id. at 1315 (internal quotations omitted). A court must also consider the

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prosecution history, which provides evidence of how the PTO and the inventor

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understood the patent. Id. at 1317.

12

The law is clear, however, that a patentee may be his own lexicographer,

13

and assign a meaning to a claim term that may be other than its customary meaning.

14

Abbott Labs. v. Syntron Bioresearch, Inc., 334 F.3d 1343, 1354 (Fed. Cir. 2003);

15

see also Thorner v. Sony Computer Entmt Am. L.L.C., 669 F.3d 1362, 1365 (Fed.

16

Cir. 2012) (To act as its own lexicographer, a patentee must clearly set forth a

17

definition of the disputed claim term other than its plain and ordinary meaning.).

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To do so, the patentee must state its definition with reasonable clarity,

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deliberateness, and precision . . . . Abbott, 334 F.3d at 1355.

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IV.

ARGUMENT

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The parties only dispute over whether Wilson infringes the patents-in-suit

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boils down to how the patents define the term sweet spot and, in particular, where

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the patents describe the sweet spots location. Wilson does not, and cannot, dispute

24

that its accused products include each and every element in Eastons asserted

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claims. Instead, Wilson argues that the stiffening element in its accused bats is

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not located in the various positions claimed in the asserted patents (e.g., between

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the sweet spot and the handle and/or adjacent to the sweet spot). See generally

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Expert Report of Frank Garrett Rebutting the Infringement Opinions of Stephen

9

Fitzgerald (Garrett Rebuttal Report) (App. Ex. 6). To support this argument,

however, Wilson must ask the Court to ignore the express teachings of the patent as

to where the claimed sweet spot is located, and, in so doing, to violate well-

established Federal Circuit precedent. See, e.g., Phillips, 415 F.3d at 1316 ([T]he

specification may reveal a special definition given to a claim term by the patentee

that differs from the meaning it would otherwise possess.

inventors lexicography governs.).

In such cases, the

The location of a bats sweet spot has been the subject of much debate, and

has garnered a range of meanings in the art of bat design. Indeed, Wilsons own

10

expert opined that, during the relevant time period, there were at least eight

11

different acceptable definitions for the term sweet spot. Garrett Rebuttal Report

12

at 3 (App. Ex. 6); see also id. at Exhibits A-B (compiling various possible

13

definitions of sweet spot). To avoid confusion about which of these potential

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definitions might apply in the context of the asserted patents, Eastons inventors

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expressly defined what sweet spot meant in those patents, including where the

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sweet spot was located. Wilson inexplicably ignores this express definition in the

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patent, instead cherry-picking from other possible sweet spot definitions that best

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suit Wilsons noninfringement defenses. Wilson resorts to this tactic because, other

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than challenging the construction of sweet spot, it has no defense to infringement.

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A.

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The Court Should Adopt Eastons Proposed Construction of the Term

Sweet Spot
Eastons Proposed Construction

the location of the intersection (i.e., the

average) of the bats center of
percussion (COP) and its first three
fundamental nodes of vibration on the
barrel

Wilsons Proposed Construction

the maximum performance location or
sweet spot

All of the asserted claims of the patents-in-suit require a barrel including a

sweet spot. 108 patent at claims 1, 2, 4, 5, 16, 17 (App. Ex. 2); 519 patent at

10

claims 1, 2, 3, 6 (App. Ex. 1). Consistent with the express teachings in the patents,

and with the understanding of one of ordinary skill in the art,4 Easton proposes that

the term sweet spot should be construed to mean the location of the intersection

(i.e., the average) of the bats center of percussion (COP) and its first three

fundamental nodes of vibration on the barrel.

52-60 (App. Ex. 3). Wilsons proposed construction of sweet spotwhich it

changed during the course of discovery in this caseis the maximum performance

location of the bat.5

Fitzgerald Infringement Report

Wilsons construction, while superficially appealing, suffers from a fatal

10

flaw. While, as recognized in the patent, the sweet spot commonly resides at the

11

maximum performance location of a bat before a stiffening element is added, once

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a stiffening element is added at or near the sweet spotfor the specific purpose of

13

reducing the bats performance at this maximum performance locationthe

14

performance at the sweet spot is significantly reduced such that the maximum

15

performance location no longer resides at the sweet spot.6 That is the whole point

16

of the claimed inventions. Thus, a person of ordinary skill in the art would not have

17

read the term sweet spot in the claims of the patents-in-suit as meaning the

18

maximum performance location in a bat that includes a stiffening element. Id. 58.

19

Further, contrary to the understanding of those skilled in the art, Wilsons

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4

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26
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A person of ordinary skill in the art as of the effective filing date of the patentsin-suit would have a degree in a relevant technical, physics, or engineering field and
at least two years of experience designing ball bats. Fitzgerald Infringement Report
49 (App. Ex. 3). Alternatively, one could be considered a person of ordinary skill
in the art without the relevant technical degree with at least five years of experience
designing ball bats. Id. As discussed below, Wilsons proffered expert is not a
person of ordinary skill in the art.
5
Wilson initially proposed a construction of sweet spot as [t]he ball impact
location where the transfer of energy from the bat to the ball is maximal, while the
transfer of energy to a players hands is minimal. Wilsons Second Amended
Answers to Eastons First Set of Interrogatories at 5 (App. Ex. 9).
6
See discussion of Figure 21 of the patents-in-suit, infra.
11

new proposed construction ignores the vital role that vibration plays in defining

where the sweet spot is located in a ball bat.

3
4
5
6
7
8
9
10

The specification of the patents-in-suit describes the sweet spot as follows:

A bat barrel 14 generally includes a maximum performance
location or sweet spot, which is the impact location where the
transfer of energy from the bat 10 to a ball is maximal, while the
transfer of energy to a players hands is minimal. The sweet spot
is generally located at the intersection of the bats center of
percussion (COP) and its first three fundamental nodes of
vibration. This location, which is typically about 4 to 8 inches
from the free end of the barrel 14, does not move when the bat is
vibrating in its first (or fundamental) bending mode.

11

519 patent at col. 5, lines 3-13 (emphasis added) (App. Ex. 1); 108 patent at col.

12

5, lines 5-15 (emphasis added) (App. Ex. 2). The inventors, acting as their own

13

lexicographers, instructed that in Eastons asserted patents, the sweet spot is

14

generally located at the intersection of the bats center of percussion (COP) and its

15

first three fundamental nodes of vibration. In so doing, they expressly did not

16

define the claimed sweet spoti.e., the sweet spot in a bat including a stiffening

17

elementas the maximum performance location. Rather, they focused on a

18

location of minimal vibration, which is what any person of ordinary skill in the

19

artor anyone who has ever hit a baseball or softball, for that matterwould

20

understand the sweet spot to be.

21

Each of the nodes of vibration and the COP are single points along the length

22

of a bat, and thus do not physically overlap or meet. Fitzgerald Infringement

23

Report 55 (App. Ex. 3).

24

specification would thus understand that the specifications reference to the

25

intersection of the bats center of percussion (COP) and its first three

26

fundamental nodes of vibration must be the average location of those four points on

27

the barrel, i.e., the location where the contributions of those four points intersect.

A person of ordinary skill in the art reading the

28
12

Id.

independent of the express teachings of the asserted patents, to use the average of

two or more of these points to identify the location of the sweet spot. Expert

Report of Stephen B. Fitzgerald Regarding Validity 72 (App. Ex. 5).

inventors in this case explained exactly which four points must be averaged to meet

their definition of sweet spot, which is where the sweet spot will generally be

found in any bat.

As Eastons expert explained, it is common for those of skill in the art,

The

The term generally as used in the specification is simply recognition that

the location of the sweet spot results from the contributions of the various bat

10

nodes, its COP, its geometry, and so forth, and there is thus no way to precisely

11

define the location of minimum vibration across all bats. Thus, the inventors

12

crafted a definition that reflects the best approximation of the sweet spots location

13

in any given bat.

14

Notably, Wilsons proffered expert had no problem determining the location

15

of the sweet spot in asserted prior-art bats under Eastons proposed construction.

16

See, e.g., Expert Report of Frank Garrett Regarding Invalidity (Garrett Invalidity

17

Report) at 17 (App. Ex. 4). Wilsons own conduct further demonstrates that those

18

of skill in the art have little difficulty understanding the location of the sweet spot

19

as claimed in Eastons asserted patents. Wilsons corporate designee testified that,

20

after Wilson learned of the earliest of Eastons asserted patentswhich claims a

21

stiffening element that is L-shaped in cross-sectionWilson did not rely on the

22

location of its stiffening ring as being outside the scope of the claims. Wilson

23

instead changed the shape of that stiffening element. See Thurman Dep. 70:10-24,

24

73:17-20, 203:14-205:4, Jun. 22, 2016 (App. Ex. 7); see also 519 patent at claim 1

25

(App. Ex. 1) (reciting a stiffening element that is generally L-shaped in cross-

26

section).

27

In addition to expressly identifying the location of the sweet spot as

28

claimed in these patents, the common specification of the patents-in-suit instructs

13

that the location of the sweet spot differs between bats with stiffening elements

i.e., those claimed in the asserted patentsand those without such elements.

Wilsons construction ignores this distinction.

patents-in-suit shows a significant decrease in performance (measured in BBCOR)7

of a bat at the sweet-spot location after the stiffening element is added to the bat at

a location approximately six inches from the cap-end of the bat (i.e., just to the

handle side of the previous maximum BBCOR location):

To illustrate, Figure 21 of the

8
9
10
11
12
13
14
15
16
17

108 patent at col. 5, lines 57-64 & Fig. 21 (App. Ex. 2); 519 patent at col. 5, lines

18

55-62 & Fig. 21 (App. Ex. 1). As seen above, the triangles represent the original

19

bat, without any stiffening element, while the circles represent the modified bat,

20

with a stiffening element.

21

reducedparticularly at and near what was previously the maximum performance

22

locationafter the introduction of the stiffening element. Id. Figure 21 thus makes

23

clear that, when using the stiffening element claimed in these patents, it is

24

demonstrably incorrect to define the sweet spot as the maximum performance

25

location because the stiffening element is specifically designed to reduce

Id.

The performance of the bat is significantly

26
27
28

The higher the BBCOR, the higher the performance of the bat. Fitzgerald
Infringement Report 26 (App. Ex. 3).
7

14

performance at that location. Fitzgerald Infringement Report 58-59 (App. Ex.

3).

To the extent Wilson is arguing that the sweet spot is the new maximum

performance location after the stiffening element is introduced, this position would

also be incorrect. Indeed, when a ball strikes the maximum performance location

of a bat including a stiffening element, significant vibration may be induced in the

bat (depending on the location of the stiffening element, the bats geometry, and so

forth). Fitzgerald Infringement Report 60 (App. Ex. 3). This location may even

be on the handle side of a stiffening element positioned toward the tapered region

10

of the bat. Id. No person of ordinary skill in the art would consider such a location

11

the bats sweet spot. Id.

12

In evaluating the parties dispute over how one of ordinary skill in the art

13

would determine the location of the sweet spot claimed in the patents, it is

14

important to note that Wilsons proffered expert, Frank Garrett, has not identified

15

any experience he has designing or engineering bats. Garrett Rebuttal Report at 4

16

(App. Ex. 6) (stating only that he has supervised engineers that designed and

17

developed bats and that he has personally witnessed the manufacture of baseball

18

bats). He further fails to identify any experience he has even testing bats outside

19

of his work in this litigation. Mr. Garrett is not one of ordinary skill in the art, and

20

thus his opinions about how such a person would interpret the asserted patents

21

should be rejected. 8 In contrast, Eastons expert, Stephen Fitzgerald, has been

22

designing and testing bats for decades. Fitzgerald Infringement Report 3 (App.

23

Ex. 3).

24

Rather than looking to the teachings of the patents themselves, Wilsons

25

purported expert relies upon the parties marketing definitions and related patents

26
27
28

For this and other reasons, Easton intends to file in the near future a motion to
exclude Mr. Garretts expert testimony in its entirety.
15

in this field of art to support Wilsons proposed construction. Garrett Invalidity

Report at 12 (App. Ex. 4). This extrinsic evidence is entitled to little or no weight

in the face of clear guidance in the patent itself. See, e.g., Vasudevan Software, Inc.

v. MicroStrategy, Inc., 782 F.3d 671, 678 (Fed. Cir. 2015) (marketing materials of

scant import, as [l]anguage used in marketing materials directed to potential

customers can mean something quite different from the language used in a patent

directed to persons skilled in the art) (internal citation omitted). In addition, claim

terms are to be given the meaning that they would have to a person of ordinary skill

in the art in question at the time of the invention. Phillips, 415 F.3d at 1312-13.

10

Thus, statements from the parties current marketing materials are simply irrelevant

11

to the construction of the claims.

12

In summary, the location of the claimed sweet spot is the intersection, i.e.,

13

average, of the bats center of percussion (COP) and its first three barrel nodes of

14

vibration.

15

stiffening elements to govern performance at and near the sweet spot, a person of

16

ordinary skill in the art at the relevant time would not have understood the term

17

sweet spot in the sense it is given in traditional bats without stiffening elements.

18

Rather, reading the specifications guidance regarding sweet spot as a whole, a

19

person of ordinary skill in the art would have understood it to have the meaning

20

proposed by Easton.

21

B.

Given that the patents-in-suit are specifically directed to bats with

Wilsons Infringement of the Patents-in-Suit

22

Mr. Garrett opines that [e]ach of the non-Vexxum Accused Products does

23

not infringe the 519 Patent or the 108 Patent because in each bat the stiffening

24

element is not located between the sweet spot or maximum performance location

25

and the handle. Garrett Rebuttal Report at 12 (App. Ex. 6). Notably, Wilson does

26

not offer any evidence or expert testimony that it does not infringe either of the

27

patents-in-suit under Eastons proposed construction of sweet spot. Nor can it,

28

as Eastons expert confirmed that the stiffening element was located between the
16

sweet spot (i.e., the intersection of the bats center of percussion (COP) and its first

three barrel nodes of vibration) and the handle of each accused bat. See, e.g.,

Fitzgerald Infringement Report 84 (App. Ex. 3) (table of results). Thus, if the

Court adopts Eastons proposed construction, infringement of both patents-in-suit is

a foregone conclusion.9

1.

Easton has accused Wilsons Vexxum VNC13 bats of infringing the 519

patent. Fitzgerald Infringement Report 73 (App. Ex. 3). Wilson has not offered

any evidence or expert opinion that the Vexxum bats do not infringe this patent

10

under any construction of sweet spot. Instead, Wilsons only non-infringement

11

opinion is that the Vexxum Accused Products had negative sales during the

12

applicable infringement period. Garrett Rebuttal Report at 13 (App. Ex. 6). This,

13

of course, is no defense to infringement.

14

infringement of the 519 patent under any claim construction.10

Infringement of the 519 Patent

As such, Wilson has conceded

15

Even without such waiver, however, Wilson cannot survive summary

16

judgment of infringement of the 519 patent. As summarized below and set forth in

17

the detailed claim chart provided as Exhibit E to the Fitzgerald Infringement Report

18

(App. Ex. 3 at 179-83), each and every claim element of the asserted claims of the

19

519 patent is satisfied by the accused Vexxum bats:

20
9

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26
27
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While Wilson raised additional arguments in interrogatory responses regarding

non-infringement early on in the case, it has not provided any evidence or expert
opinions in support of such arguments and has not otherwise developed such
arguments in any meaningful way. Wilsons First Amended Answers to Eastons
First Set of Interrogatories at Appendices F & G (App. Ex. 8). Eastons expert
squarely addressed these non-infringement arguments in his expert report
(Fitzgerald Infringement Report 94-103 (App. Ex. 3)), but Wilsons expert
offered no rebuttal on any of these points. As such, Wilson has waived any such
arguments.
10
While Wilsons expert goes on to discuss non-Vexxum Accused Products, no
such products are accused of infringing the 519 patent. His opinions should be
disregarded.
17

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519 Patent Claim

Location in Vexxum (VNC13)

1. A ball bat, comprising:

a barrel including a sweet
spot;
a handle attached to or
continuous with the
barrel; and
a stiffening element that
is generally L-shaped in
cross-section,
comprising:
a substantially cylindrical
first portion positioned
along an inner
circumference of the
barrel; and
a second portion
projecting radially
inwardly from the first
portion, with the second
portion including a
radially inner surface
defining a radially central
opening through the
second portion, wherein
the second portion is
positioned adjacent to the
sweet spot between the
sweet spot and the
handle.
2. The ball bat of claim 1
wherein the second
portion is positioned
closer to the sweet spot
than to the handle.

As seen in the upper image above, the second portion

is positioned closer to the sweet spot than to the
handle.

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2
3
4
5
6
7
8

3. The ball bat of claim 1

wherein the first portion
of the stiffening element
is affixed to the inner
circumference of the
barrel.

As seen in the lower image above, the first portion of

the stiffening element is affixed to the inner
circumference of the barrel.

6. The ball bat of claim 1

wherein the stiffening
element is made of a
metal material.

As seen in the lower image above, the stiffening

element is made of a metal material (aluminum).

As Wilson has not contested the presence of each of these limitations in the

10

accused Vexxum bats under any construction, summary judgment of infringement

11

of the 519 patent is warranted.

12

2.

13

Easton has accused Wilsons VDC14, VDCV14, VDC15, VDC16, CFC14,

14

CFC15, and CFC16 bats of infringing the 108 patent. Fitzgerald Infringement

15

Report 74-75 (App. Ex. 3). Wilson does not challenge Eastons experts test

16

data or conclusions that these accused products infringe the 108 patent under

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Eastons proposed construction. See Garrett Rebuttal Report at 12-14 (App. Ex. 6).

18

Rather, Wilson only contests infringement under its own construction, offering a

19

table of Max Performance Location for certain bats. Id. at 13.11

Infringement of the 108 Patent

20

As set forth below and in the claim chart provided as Exhibit F to the

21

Fitzgerald Infringement Report (App. Ex. 3 at 185-98), each and every element of

22

claims 1, 2, 4, 5, 16, and 17 of the 108 patent is satisfied by the accused CFC14,

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24
25
26
27
28

11

Notably, however, this table only includes Voodoo 16 and CF 16 bats,

providing no information whatsoever for any of the other accused models (CFC14,
CFC15, VDC14, VDCV14, and VDC 15). As such, Wilson has provided no
evidence or expert testimony that these models do not infringe under any proposed
construction of sweet spot. Nor can it, as shown below.
19

CFC15, and CFC16 bats12:

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16
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18
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108 Patent Claim

Location in CFC14, CFC15, and CFC16

1. A ball bat, comprising:

a barrel including a sweet
spot;
a handle attached to or
continuous with the barrel;
and
a stiffening element,
comprising:
a substantially cylindrical
first portion positioned
along an inner
circumference of the
barrel; and
a second portion
projecting radially
inwardly from the first
portion and positioned
between the sweet spot
and the handle, and closer
to the sweet spot than to
the handle, wherein the
stiffening element includes
a radially central opening.

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21
22
23
24
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The accused CFC14, CFC15, and CFC16 bats correspond to Wilsons CF6,
CF7, and CF8 BBCOR model lines, respectively. See Fitzgerald Infringement
Report (App. Ex. 3), at Ex. F, footnote 1.
12

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2. The ball bat of claim 1

wherein the first portion of
the stiffening element is
affixed to the inner
circumference of the
barrel.

As seen in the lower images above for each model,

the first portion of the stiffening element in the
accused products is affixed to the inner circumference
of the barrel.

4. The ball bat of claim 1

wherein the stiffening
element is made of a
different material than the
barrel.

As seen in the above images, the stiffening element in

the accused bats is made of a different material than
the barrel. Specifically, the stiffening element in the
accused bats is made of aluminum, while the barrel of
the accused bats is made of a composite material.
Fitzgerald Infringement Report 81, 90; Thurman
Dep.120:2-6 (App. Ex. 7).

25

5. The ball bat of claim 1

wherein the stiffening
element is made of a metal
material.

The stiffening element in the accused bats is made of

a metal material (aluminum). Fitzgerald Infringement
Report 90 (App. Ex. 3); Thurman Dep. 120:2-6
(App. Ex. 7).

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16. A ball bat, comprising: See analysis for claim 1, supra.

14
15
16
17
18
19
20
21
22
23
24

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a barrel including a sweet In addition, as seen in the images above for claim 1,
the second portion is positioned adjacent to the sweet
21

spot;

a handle attached to or
continuous with the barrel;
and

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6
7
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15
16
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18
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spot between the sweet spot and the handle.

a stiffening element,
comprising:
a substantially cylindrical
first portion positioned
along an inner
circumference of the
barrel; and
a second portion
projecting radially
inwardly from the first
portion and positioned
adjacent to the sweet spot
between the sweet spot
and the handle, wherein
the stiffening element
includes a radially central
opening.
17. The ball bat of claim
16 wherein the stiffening
element is made of a
different material than the
barrel.

See analysis for claim 4, supra.

20
21

Similarly, as set forth below and in the claim chart provided as Exhibit F to

22

the Fitzgerald Infringement Report (App. Ex. 3 at 199-215), each and every element

23

of claims 1, 2, 5, and 16 of the 108 patent is satisfied by the accused Voodoo

24

VDC14, VDCV14, VDC15, and VDC16 bats13:

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26
27
28

The accused VDC14, VDCV14, VDC15, and VDC16 bats correspond to

Wilsons Voodoo, Voodoo Overlord, Voodoo Overlord FT and Voodoo Raw
BBCOR models, respectively. See Fitzgerald Infringement Report (App. Ex. 3), at
Ex. F, footnote 1.
13

22

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12
13
14
15
16
17
18
19
20

108 Patent Claim

Location in VDC14, VDCV14, VDC15, and VDC16

1. A ball bat,
comprising:
a barrel including a
sweet spot;
a handle attached to or
continuous with the
barrel; and
a stiffening element,
comprising:
a substantially
cylindrical first portion
positioned along an
inner circumference of
the barrel; and
a second portion
projecting radially
inwardly from the first
portion and positioned
between the sweet spot
and the handle, and
closer to the sweet spot
than to the handle,
wherein the stiffening
element includes a
radially central
opening.

21
22
23
24
25
26
27
28
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
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22
23
24
25
26
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2. The ball bat of claim

1 wherein the first
portion of the stiffening
element is affixed to
the inner circumference

As seen in the lower images above for each model, the

first portion of the stiffening element in the accused
products is affixed to the inner circumference of the
barrel.

28
24

of the barrel.

5. The ball bat of claim

1 wherein the stiffening
element is made of a
metal material.

As seen in the images above, the stiffening element in

the accused bats is made of a metal material (aluminum).
Fitzgerald Infringement Report 90 (App. Ex. 3);
Thurman Dep 120:2-4 (App. Ex. 7).

16. A ball bat,

comprising:

See analysis for claim 1, supra.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

As seen in the images above for claim 1, the second

a barrel including a portion is positioned adjacent to the sweet spot between
sweet spot;
the sweet spot and the handle.
a handle attached to or
continuous with the
barrel; and
a stiffening element,
comprising:
a substantially
cylindrical first portion
positioned along an
inner circumference of
the barrel; and
a second portion
projecting radially
inwardly from the first
portion and positioned
adjacent to the sweet
spot between the sweet
spot and the handle,
wherein the stiffening
element includes a
radially central
opening.
V.

CONCLUSION

25

For the foregoing reasons, Easton respectfully requests that the Court adopt

26

its proposed construction of sweet spot, and grant its Motion for Summary

27

Judgment of Infringement in its entirety.

28
25

DATED: August 19, 2016

PERKINS COIE LLP

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5
6

By: /s/ Rodger K. Carreyn

Rodger K. Carreyn (Bar No. 210432)
rcarreyn@perkinscoie.com
Attorneys for Plaintiff and Counter-Defendant,
Easton Baseball/Softball Inc.

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