DCT
1:20-cv-21350
ILC Dover LP v. Floodbarrier Inc
Key Events
Amended Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: ILC Dover LP (Delaware)
- Defendant: FloodBarrier, Inc. (Florida)
- Plaintiff’s Counsel: Akerman LLP; Fish & Richardson P.C.
- Case Identification: 1:20-cv-21350, S.D. Fla., 06/08/2020
- Venue Allegations: Venue is alleged to be proper in the Southern District of Florida because the Defendant is a Florida corporation incorporated under the laws of Florida.
- Core Dispute: Plaintiff alleges that Defendant’s flexible, deployable flood mitigation products infringe three patents related to deployable flood barrier technology.
- Technical Context: The technology at issue involves large-scale, flexible, deployable barriers designed to protect infrastructure such as building entrances and public transit systems from flooding.
- Key Procedural History: The complaint alleges that Plaintiff provided Defendant with written notice of the asserted patents on or about August 15, 2018, nearly two years before filing suit. It also alleges that a key customer, the Port Authority of New York and New Jersey, has issued specifications requiring either Plaintiff’s products or products that are “comparable” or “equal,” framing the dispute in the context of direct competition for major infrastructure projects.
Case Timeline
| Date | Event |
|---|---|
| 2013-10-08 | U.S. Patent No. 9,303,423 Priority Date |
| 2014-09-18 | U.S. Patent No. 9,453,314 Priority Date |
| 2015-03-31 | U.S. Patent No. 9,453,316 Priority Date |
| 2016-04-05 | U.S. Patent No. 9,303,423 Issued |
| 2016-09-27 | U.S. Patent No. 9,453,314 Issued |
| 2016-09-27 | U.S. Patent No. 9,453,316 Issued |
| 2017-03-02 | Port Authority issues requirements for "Flood Barrier Assemblies" |
| 2018-08-15 | Plaintiff sends letter providing notice of Asserted Patents to Defendant |
| 2019-03-05 | Port Authority issues requirements for "Flexible Membrane Barrier" |
| 2019-05-01 | Alleged job date for an Accused Product installation |
| 2020-06-08 | Amended Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 9,453,314 - “Deployable Flexible Flood Mitigation Wall” (issued Sep. 27, 2016)
The Invention Explained
- Problem Addressed: The patent describes conventional flood mitigation systems like mechanical walls and flood doors as often requiring significant infrastructure modification, costly installation, and remote storage, making them impractical for many applications (’314 Patent, col. 1:40-52).
- The Patented Solution: The invention is a flexible flood wall system designed for point-of-use storage within a below-ground trench. To deploy, a series of rigid posts are manually raised from the trench and inserted into pre-installed receivers on a mounting plate at the trench's base. The flexible wall, which is permanently sealed at its bottom edge within the trench, is then lifted and attached to the posts to form a barrier (’314 Patent, col. 2:26-40, Abstract).
- Technical Importance: This design provides a rapidly deployable, high-reliability flood barrier that is permanently stored at its point of use, minimizing logistical challenges and the need for extensive building modifications (’314 Patent, col. 2:47-60).
Key Claims at a Glance
- The complaint asserts independent claim 1 (Compl. ¶¶ 28, 50).
- Essential elements of independent claim 1 include:
- A membrane flexible wall.
- A series of rigid posts to support the wall.
- A trench and a cover, where the posts are initially contained within the trench.
- The posts have a quadrilateral exterior surface on at least a lower end.
- The trench has a mounting plate at the bottom with a plurality of quadrilateral receivers integral with the plate, sized to receive the lower end of the posts.
- A clamping bar and seal, where the lower end of the flexible wall is attached between the bar and seal to the mounting plate.
- The complaint reserves the right to assert other claims, including dependent claims 2, 4, 5, 7, 8, 12, 13, 15, 24, and 25 (Compl. ¶49).
U.S. Patent No. 9,453,316 - “Extendible Flexible Flood Barrier” (issued Sep. 27, 2016)
The Invention Explained
- Problem Addressed: The patent addresses the need for scalable, flexible flood barriers that can be deployed quickly across openings without the same degree of permanent ground installation (e.g., a trench) required by other systems (’316 Patent, col. 1:13-20).
- The Patented Solution: The invention is a horizontally-extendible barrier featuring a flexible wall made of textile and membrane components. The wall is stored in a container that is integral with a vertical "anchor post" on one side of an opening. For deployment, the wall is extended across the opening and attached to a "receiver post" on the opposite side. The system includes a "ground skirt," an extension of the wall that lays horizontally on the ground to create a seal, which can be enhanced by water pressure or ballast (’316 Patent, Abstract; col. 2:44-55).
- Technical Importance: This technology allows for a self-contained, side-deployed barrier that can be adapted to various opening sizes and ground conditions with less invasive infrastructure requirements than trench-based systems (’316 Patent, col. 2:40-55).
Key Claims at a Glance
- The complaint asserts independent claim 1 (Compl. ¶¶ 31, 96).
- Essential elements of independent claim 1 include:
- A flexible wall with membrane and textile components, attached to a vertical anchor post via a mounting plate.
- A storage container that is integral with the anchor post and holds the flexible wall when stowed.
- A receiver post to which the flexible wall is attached when extended.
- A ground skirt, comprising an extension of the flexible wall, that lays horizontally on the ground when the wall is deployed vertically.
- The complaint reserves the right to assert other claims, including dependent claims 2, 3, 5, 6, 12, and 18 (Compl. ¶95).
U.S. Patent No. 9,303,423 - “Deployable Flexible Flood Mitigation Device” (issued April 5, 2016)
- Technology Synopsis: This patent describes a deployable flood-gate system featuring a flexible door made of textile and membrane materials. The door's edges are designed with a "deadman," an integral sealing section that is larger than the opening in the guide track it runs in. When the door is under hydrostatic pressure, the "deadman" is pulled into the track, deforming to create a broad, effective seal that cannot be pulled out (’423 Patent, Abstract; col. 2:6-26).
- Asserted Claims: Independent claim 1 is asserted (Compl. ¶¶ 34, 134). The complaint also asserts dependent claims 2, 4, 8, 11, 13, 15, 16, 21, and 22 (Compl. ¶133).
- Accused Features: The complaint alleges that certain of Defendant's systems, particularly those for overhead deployment, include a flexible door with an integral "deadman" sealing edge that runs in a guide track, as depicted in Port Authority contract drawings (Compl. ¶¶ 135-142). A technical drawing in the complaint shows a cross-section of an accused system with a "DEADMAN" component within a "GATE GUIDE" track (Compl. ¶138).
III. The Accused Instrumentality
- Product Identification: Defendant’s "Flexible Flood Membrane Systems" (Compl. ¶38).
- Functionality and Market Context: The accused products are described as deployable flood barriers constructed from "Honeywell's Spectra Fiber, a UV Stable lightweight ultra-strong fiber woven to FloodBarrier specifications and coated to ensure a long-term waterproof material" (Compl. ¶38). The complaint, citing Defendant's marketing materials and project-specific drawings, alleges these systems include flexible walls attached to vertical posts, trench-stored versions, and versions with a ground skirt (Compl. ¶¶ 40, 41, 57). A photograph from Defendant's marketing materials shows a deployed system with an extension of the flexible wall lying on the ground, which the complaint identifies as a ground skirt (Compl. ¶41). The complaint alleges that Defendant markets these products as "comparable, equal and equivalent" to Plaintiff's products, positioning them as direct competitors for contracts with customers like the Port Authority of New York and New Jersey (Compl. ¶44).
IV. Analysis of Infringement Allegations
’314 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a membrane flexible wall; the flexible wall comprising at least a lower end thereof | The accused product is a deployable membrane flexible wall for fluid retention, which has a lower end. | ¶53 | col. 4:5-8 |
| a series of rigid posts that support the flexible wall | The accused product uses rigid posts to support the flexible wall when deployed. A photograph shows such posts being installed. | ¶54 | col. 4:19-20 |
| a trench; a cover for the trench | The accused system is installed in a trench with a cover plate, as shown in a Port Authority contract drawing. | ¶¶56, 57 | col. 4:9-10 |
| each of the series of posts being initially contained within the trench and beneath the cover when the posts are in a stowed position | The accused system's posts are stored in the trench beneath a cover plate when in the non-deployed position. A technical drawing shows a "S.S. POST" stored in a trench beneath a "MTL. COVER PLATE" (Compl. ¶57). | ¶¶56, 57 | col. 2:31-33 |
| the trench further comprising a mounting plate at the bottom of the trench; and the mounting plate additionally comprising a plurality of receivers, each receiver being integral with the mounting plate and quadrilateral in shape | Port Authority drawings allegedly show a "S.S. RECEIVER PLATE" at the bottom of the trench with quadrilateral receivers to accept the posts. | ¶¶58-60 | col. 4:10-14 |
| a clamping bar and seal | The accused systems contain a clamping bar and seal to prevent water passage below the flexible wall. | ¶64 | col. 2:38-40 |
| wherein the flexible wall is attached to the posts and the lower end of the flexible wall being attached between the clamping bar and the seal to the mounting plate within the trench | The accused flexible wall is attached to the posts, and its lower end is attached between a "S.S. CLAMP BAR" and a seal to the "S.S. RECEIVER PLATE". | ¶¶62-65 | col. 4:15-18 |
’316 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a flexible wall comprising at least one membrane component and at least one textile component, said flexible wall being attached to a vertical anchor post with a mounting plate | The accused products have flexible walls made of coated textile fiber, which are shown in photographs attached to two vertical posts. | ¶¶98-100 | col. 2:44-47 |
| a storage container that is integral with the anchor post and holds the flexible wall when stowed | Defendant offers systems where the flexible wall is "stored," and these configurations are alleged to include a storage container integral with an anchor post. | ¶102 | col. 2:48-50 |
| a receiver post that the flexible wall is attached to with a mounting plate when extended | The accused product's flexible wall extends from one vertical post and attaches to another. | ¶100 | col. 2:46-47 |
| a ground skirt, said ground skirt comprising an extension of the flexible wall, the ground skirt lays horizontally on the ground when the flexible wall is deployed in a vertical orientation | A photograph in Defendant's marketing materials is alleged to show an extension of the flexible wall lying on the ground, which constitutes a ground skirt. | ¶103 | col. 2:50-53 |
Identified Points of Contention
- Evidentiary Basis: The infringement allegations for the ’314 and ’423 patents rely heavily on third-party technical drawings from a Port Authority contract (Compl. ¶¶ 57, 60, 137). The complaint acknowledges that many details of the accused products are not publicly available (Compl. ¶36). A central issue will be whether discovery confirms that the products Defendant actually manufactures and sells have the specific components and configurations depicted in these drawings.
- Technical Questions: For the ’316 patent, the allegations are based primarily on marketing materials (Compl. ¶¶97-103). A technical question is whether the accused product’s structure and operation meet the specific claim requirements, such as whether a storage mechanism is truly "integral with the anchor post" or is merely a separate component attached to it.
V. Key Claim Terms for Construction
Term: "receiver being integral with the mounting plate" (’314 Patent, Claim 1)
- Context and Importance: The relationship between the post receivers and the mounting plate is a core structural element of the claimed trench-based system. The construction of "integral" will define how closely these two components must be connected. Practitioners may focus on this term because the accused product, as depicted in drawings, shows a "S.S. RECEIVER PLATE" and a "S.S. POST SLEEVE" as distinct callouts, raising the question of whether they constitute an "integral" unit (Compl. ¶60).
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification describes posts being "lifted or rotated into receivers 108 that are fixed to the mounting plate 104" (’314 Patent, col. 4:20-22). This language might support an interpretation where "integral" means securely and permanently attached, rather than being formed from a single piece of material.
- Evidence for a Narrower Interpretation: The choice of the word "integral" in the claim, as opposed to "attached" or "fixed," could suggest an intent to claim a more unified, single-piece construction. A defendant may argue that if the components are merely bolted or welded together, they are not "integral."
Term: "storage container that is integral with the anchor post" (’316 Patent, Claim 1)
- Context and Importance: This term is critical to defining the self-contained nature of the side-deployed barrier. The degree of integration between the container and the post will determine whether a system with a separate, bolted-on container infringes. The complaint alleges this feature exists "in at least some configurations," suggesting it may be a point of dispute (Compl. ¶102).
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent's summary describes the system as comprising a wall, anchor post, receiver post, and "a storage container that is integral with the anchor post & holds the wall when stowed" (’316 Patent, col. 2:48-50). The focus is on the functional relationship, which may allow for separate but functionally integrated components.
- Evidence for a Narrower Interpretation: The claim language explicitly requires the container to be integral with the post. A defendant could argue this requires a purpose-built, unified assembly, and that a generic container simply fastened to a post does not meet this limitation.
VI. Other Allegations
- Indirect Infringement: The complaint alleges both induced and contributory infringement for all three asserted patents. Inducement is based on allegations that Defendant provides "instructions, drawings, and guidelines to the Port Authority and its contractors and sub-contractors to actively induce the installation and use of Accused Products" (Compl. ¶¶ 76, 114, 157). Contributory infringement is based on allegations that the accused products contain material components especially made for infringement that are not staple articles of commerce (Compl. ¶¶ 86-87, 125, 168).
- Willful Infringement: Willfulness is alleged for all infringement counts. The primary basis is Defendant’s alleged continued infringement after receiving actual notice of the asserted patents via a letter dated August 15, 2018 (Compl. ¶¶ 45-46, 67, 78).
VII. Analyst’s Conclusion: Key Questions for the Case
- A central issue will be one of evidentiary proof: The complaint's allegations, particularly for the ’314 and ’423 patents, depend heavily on third-party Port Authority contract drawings to describe the accused products' inner workings. A key question for the court will be whether discovery shows that the products FloodBarrier actually sold and installed correspond to the specific structural details in those drawings, or if there is a material difference between the plans and the as-built reality.
- The case will also turn on a question of definitional scope: The construction of the term "integral" in both the ’314 patent (“receiver being integral with the mounting plate”) and the ’316 patent (“storage container that is integral with the anchor post”) will be critical. The court’s determination of whether "integral" requires a monolithic, single-piece construction versus a permanent-but-bolted-together assembly could be dispositive for infringement.
- Finally, a key question for damages will be market causation: The complaint frames the dispute as one of direct competition, alleging that FloodBarrier markets its products as "comparable" to ILC Dover's for projects where customers require such products (Compl. ¶¶ 21-22, 44). This sets up a battle over lost profits, which will depend on whether ILC Dover can prove that, but for the infringement, it would have made the sales captured by FloodBarrier.