DCT
1:18-cv-04754
Kimberly Clark Corp v. Extrusion Group LLC
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Kimberly-Clark Corporation (Delaware) and Kimberly-Clark Global Sales, LLC (Wisconsin)
- Defendant: Extrusion Group, LLC, et al. (Georgia)
- Plaintiff’s Counsel: Gibson, Dunn & Crutcher LLP; Troutman Sanders LLP
- Case Identification: 1:18-cv-04754, N.D. Ga., 10/15/2018
- Venue Allegations: Venue is alleged to be proper as the Defendant entities are organized under Georgia law, maintain regular and established places of business in the district, and reside in the district.
- Core Dispute: Plaintiff alleges that Defendant’s coform nonwoven material, and the process for making it, infringes a patent related to fibrous nonwoven structures, and further alleges trade secret misappropriation and breach of contract by former employees now working for Defendant.
- Technical Context: The lawsuit concerns the manufacturing technology for "coform" nonwoven fabrics, which combine meltblown polymer fibers with fibrous materials like wood pulp to create absorbent, soft materials used in products such as diapers and wipes.
- Key Procedural History: The complaint alleges that on May 17, 2017, the parties held a meeting where Plaintiff raised concerns about Defendant's potential use of its proprietary technology, but Defendant declined to provide specific design details for its equipment and processes.
Case Timeline
| Date | Event |
|---|---|
| 2006-08-31 | Defendant Michael Cook, a former engineer, leaves Kimberly-Clark. |
| 2008-03-17 | Earliest Priority Date for U.S. Patent No. 8,017,534. |
| 2009-07-01 | Defendant Michael Houston, a former technical leader, leaves Kimberly-Clark. |
| 2011-09-13 | U.S. Patent No. 8,017,534 is issued. |
| 2011-11-01 | Former employees Houston and Cook join Extrusion Group. |
| 2017-05-17 | Pre-suit meeting between Kimberly-Clark and Extrusion Group. |
| 2018-01-01 | Kimberly-Clark receives alleged "China Coform Sample" in 2018. |
| 2018-10-15 | Complaint is filed. |
| 2019-01-01 | Anticipated start of commercial production by Defendant's customer Nanning. |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Patent No. 8,017,534, "Fibrous Nonwoven Structure Having Improved Physical Characteristics and Method of Preparing," issued September 13, 2011 (’534 Patent) (Compl. ¶36).
U.S. Patent No. 8,017,534 - "Fibrous Nonwoven Structure Having Improved Physical Characteristics and Method of Preparing"
The Invention Explained
- Problem Addressed: The patent describes a need to improve the physical characteristics of nonwoven fibrous structures, such as those used in wet wipes. Specifically, it seeks to improve properties like formation (uniformity), fiber size, tensile strength, and reduce lint, which were limitations in existing materials (Compl. ¶3; ’534 Patent, col. 1:12-51).
- The Patented Solution: The invention is a "coform" nonwoven material created by merging streams of thermoplastic meltblown microfibers with a secondary stream of fibrous material, such as wood pulp. The patent details a manufacturing apparatus and process parameters where these streams combine in a turbulent "formation zone" before being collected on a forming surface. This process creates a coherent web with improved physical properties, such as a high "formation index" indicating uniformity (’534 Patent, col. 1:52-65, Fig. 1).
- Technical Importance: The technology aimed to produce a nonwoven fabric with an optimal balance of softness, strength, and absorbency at lower basis weights, making it more efficient to manufacture and better suited for consumer products like wipes (’534 Patent, col. 1:41-51).
Key Claims at a Glance
- The complaint asserts independent claims 1 (a product claim) and 28 (a process claim) (Compl. ¶¶ 214, 218).
- Independent Claim 1 (Product): Its essential elements are:
- A fibrous nonwoven structure comprising at least one meltblown fibrous material (with an average diameter of about 0.5 to 40 µm) and at least one secondary fibrous material.
- A weight ratio of the secondary fibrous material to the meltblown fibrous material between about 40/60 to about 90/10.
- A basis weight of the structure in a range of about 20 gsm to about 500 gsm.
- A formation index of the structure greater than 70.
- Independent Claim 28 (Process): Its essential elements are:
- Providing a first and second stream of meltblown fibrous materials from a meltblown die having a machine direction width of less than 16 cm, with the materials having an average diameter of about 0.5 to 40 µm.
- Providing a stream of natural fibers that meets the meltblown streams at a formation zone to form a product stream.
- Collecting the product stream on a forming wire.
- Wherein the resulting fibrous nonwoven structure has a formation index between about 70 to 135.
- The complaint does not explicitly reserve the right to assert other claims but seeks relief for infringement of the ’534 Patent generally (Compl. ¶¶ 221-223).
III. The Accused Instrumentality
Product Identification
The accused instrumentalities are coform nonwoven material samples ("China Coform Samples") and any "substantially similar" material manufactured and/or sold by Defendant Extrusion Group, collectively referred to as the "Infringing Coform Material" (Compl. ¶211). The complaint also accuses the process used by Extrusion Group to make these materials (Compl. ¶218).
Functionality and Market Context
The complaint alleges that the Infringing Coform Material is a fibrous nonwoven structure created by combining meltblown fibrous material with a secondary fibrous material (wood pulp) (Compl. ¶216). This material was allegedly manufactured by Extrusion Group in the United States and provided to a customer in China, Nanning Qiaohong New Materials Co., Ltd. ("Nanning"), for applications including wipes (Compl. ¶¶ 172, 175, 209). The complaint presents a schematic of a general meltblown manufacturing process, which includes a polymer hopper, extruder, and a die body that extrudes a fiber web onto a forming wire (Compl. ¶32). It then provides a more specific diagram of the coforming process, showing two angled meltblowing dies directing polymer streams toward a central forming zone where they are combined with a vertical stream of fiberized pulp before collection on a rolling surface (Compl. ¶33).
IV. Analysis of Infringement Allegations
Claim Chart Summary
’534 Patent Infringement Allegations (Claim 1)
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A fibrous nonwoven structure comprising: at least one meltblown fibrous material, the at least one meltblown fibrous material having an average diameter of about 0.5 to 40 µm; | The China Coform Samples are a fibrous nonwoven structure containing a meltblown fibrous material with a tested average diameter of 4.82 µm. | ¶216 | col. 4:1-8 |
| at least one secondary fibrous material, wherein a weight ratio of the at least one secondary fibrous material to the at least one meltblown fibrous material is in between about 40/60 to about 90/10; | The samples contain a secondary fibrous material (wood pulp), with a tested weight ratio of secondary to meltblown material of 2.0. | ¶216 | col. 4:11-24 |
| wherein a basis weight of the fibrous nonwoven structure is in a range of about 20 gsm to about 500 gsm; | The samples have a tested basis weight of 61 gsm. | ¶216 | col. 4:25-33 |
| and wherein the formation index of the fibrous nonwoven structure is greater than 70. | The samples have a tested formation index of 73. | ¶216 | col. 5:15-24 |
’534 Patent Infringement Allegations (Claim 28)
| Claim Element (from Independent Claim 28) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| providing a first and second stream of meltblown fibrous materials with a meltblown die, the meltblown fibrous materials having an average diameter of about 0.5 to 40 µm... wherein the meltblown die has a machine direction width of less than 16 cm; | Extrusion Group allegedly uses a process that provides two streams of meltblown materials with an average diameter of 4.82 µm using a meltblown die with a machine direction width of less than 16 cm. | ¶219 | col. 6:1-31; col. 6:45-50 |
| providing a stream of natural fibers meeting the first stream and the second stream at the formation zone and forming into a product stream; | The accused process allegedly provides a third stream of natural fibers (wood pulp) that meets the meltblown streams at a formation zone. | ¶219 | col. 6:32-41 |
| collecting the product stream on a forming wire as a mixture of meltblown fibrous materials and natural fibers; | The accused process allegedly collects the resulting product stream on a forming wire. | ¶219 | col. 6:41-44 |
| and wherein the formation index of the fibrous nonwoven structure is between about 70 to 135. | The material produced by the accused process allegedly has a formation index of 73. | ¶219 | col. 5:15-24 |
Identified Points of Contention
- Technical Questions: A primary issue will be evidentiary. The complaint's infringement allegations rely on Plaintiff's own testing of the "China Coform Samples" (Compl. ¶215). This raises the question of whether Defendant will challenge the methodology and results of that testing, particularly for the "formation index," which is determined by a specific test described in the patent (’534 Patent, col. 11:40-12:21).
- Scope Questions: The claims use the term "about" for several numerical limitations (e.g., "about 0.5 to 40 µm," "about 40/60 to about 90/10"). A point of contention may be the proper scope of "about" in the context of the patent's disclosure and the nonwoven manufacturing field. The complaint's allegation of a 2.0 weight ratio for Claim 1 also raises the question of how the claimed ratio range "40/60 to about 90/10" will be interpreted by the court.
V. Key Claim Terms for Construction
The Term: "formation index"
- Context and Importance: This term is a quantitative measure of material uniformity and is a required limitation in both asserted independent claims (1 and 28). The infringement case hinges on whether the accused product and process result in a material meeting the claimed numerical threshold for this index. Practitioners may focus on this term because its value is determined by a specific, multi-step test procedure detailed in the patent itself, making any deviation from that procedure a potential point of dispute. The complaint alleges testing yielded a formation index of 73, which is just above the required threshold of 70, making the precise definition and measurement protocol critical (Compl. ¶216).
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The term is not a common dictionary word, so its meaning is likely confined to the patent's definition. A party might argue that minor, insubstantial deviations from the test protocol should not preclude a finding of infringement.
- Evidence for a Narrower Interpretation: The patent provides a highly detailed, step-by-step test method for measuring the "formation index," including the specific commercial equipment (PAPRICAN Micro-Scanner), software versions, and lighting conditions to be used (’534 Patent, col. 11:40-12:21). A party would argue this detailed definition acts as its own lexicon and must be strictly followed to determine infringement.
The Term: "a weight ratio ... is in between about 40/60 to about 90/10"
- Context and Importance: This limitation in Claim 1 defines the core composition of the coform material. The unusual "X/Y to X/Y" format, combined with "about," creates ambiguity that is central to the scope of the claim.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A party could argue the format simply defines a numerical range from approximately 0.67 (40/60) to 9.0 (90/10), and that "about" should be interpreted broadly in light of the specification's preferred range of 25/75 to 40/60, which translates to a ratio of 0.33 to 0.67 (’534 Patent, col. 4:20-24). This discrepancy between the claim language and the specification's preferred embodiment may be used to argue for a wider interpretation of what the inventors considered their invention.
- Evidence for a Narrower Interpretation: A party could argue the explicit numerical ranges in the claim should be given their plain meaning, and that "about" should only account for minor experimental variance. The specification's discussion of a more desirable range from 25/75 to 40/60 could be argued to be a narrower, preferred embodiment that does not redefine the broader scope explicitly set forth in the claim itself (’534 Patent, col. 4:20-24).
VI. Other Allegations
- Indirect Infringement: The complaint alleges inducement of infringement under 35 U.S.C. § 271(b). The basis for this claim is the allegation that Extrusion Group provides designs and instructions to third-party manufacturers for making the Infringing Coform Material, which allegedly shows specific intent to encourage direct infringement (Compl. ¶221).
- Willful Infringement: The complaint alleges Extrusion Group had knowledge of the ’534 Patent "at least as of the filing of this Complaint" (Compl. ¶220). It further alleges that an "objectively high likelihood exists that Extrusion Group's continued actions constitute infringement" and that this infringement is "known to Extrusion Group or is so obvious that Extrusion Group should have known about this infringement," supporting a claim for willful infringement (Compl. ¶¶ 223-224).
VII. Analyst’s Conclusion: Key Questions for the Case
- A central issue will be one of evidentiary proof and claim construction: Can Plaintiff's testing of the accused samples withstand scrutiny and prove that the material's "formation index" meets the specific numerical threshold required by the claims, especially given that the test is defined by a detailed protocol within the patent itself? The outcome may depend on which party's expert testimony regarding testing methodology and the interpretation of "about" proves more persuasive.
- A key narrative question for the fact-finder will be the interplay between patent infringement and the alleged trade secret misappropriation: While legally distinct, the complaint extensively argues that the defendants are former Kimberly-Clark employees who used confidential know-how to develop their competing technology. This raises the question of whether the alleged infringement was the result of independent innovation or the exploitation of proprietary information, a distinction that could significantly influence the analysis of intent for willfulness and the overall equities of the case.
- A final question will be one of process equivalence: Does the accused manufacturing process, which allegedly uses Kimberly-Clark's trade secrets, function in the same way to achieve the same result as the process claimed in the ’534 patent? The defense may argue that even if the final product has similar characteristics, it is achieved through a technically distinct process that falls outside the scope of the asserted process claim.