DCT
9:18-cv-00034
Concrete Log Systems Inc v. Better Than Logs Inc
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Concrete Log Systems Inc. d/b/a Everlog Systems (Montana)
- Defendant: Better Than Logs, Inc. (Montana)
- Plaintiff’s Counsel: Holland & Hart LLP
- Case Identification: 9:18-cv-00034, D. Mont., 02/15/2018
- Venue Allegations: Venue is alleged to be proper in the District of Montana because the Defendant was incorporated in the district and maintains its principal place of business there.
- Core Dispute: Plaintiff alleges that Defendant’s concrete siding products infringe a patent related to simulated log siding, and separately brings claims for false advertising under the Lanham Act.
- Technical Context: The technology concerns building materials, specifically siding designed to replicate the appearance of traditional log construction while using more durable and fire-resistant cementitious composites.
- Key Procedural History: The patent-in-suit is a continuation of a series of prior applications and patents. The complaint does not mention any prior litigation or post-grant proceedings involving the patent.
Case Timeline
| Date | Event |
|---|---|
| 2007-03-15 | ’598 Patent Priority Date (Provisional Application Filing) |
| 2014-01-01 | Approximate date Defendant allegedly began receiving shipments of accused products from China |
| 2016-04-25 | ’598 Patent Application Filing Date |
| 2017-07-04 | ’598 Patent Issue Date |
| 2018-02-15 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 9,695,598 - "Simulated Log Siding," issued July 4, 2017
The Invention Explained
- Problem Addressed: The patent addresses the high cost, maintenance requirements, and vulnerability to fire, water, and insect damage associated with traditional log home construction (’598 Patent, col. 1:21-28). Prior alternatives like cement siding often lacked a realistic appearance or required skilled, on-site labor, making them unsuitable for mass production or do-it-yourself installation (’598 Patent, col. 1:28-38).
- The Patented Solution: The invention is a siding member made from an "engineered cementitious composite" that is cast in a mold taken from a real structural log to replicate its texture (’598 Patent, col. 2:50-55). The siding piece is formed as a hollow "open trough" with at least one flange along its edge, which allows for easy, mass-produced application to a building's surface to simulate the look of a log cabin (’598 Patent, col. 5:14-19).
- Technical Importance: This approach provides a siding product that is economical, durable, fire-resistant, and realistic, while also being suitable for mass production and installation by non-specialists (’598 Patent, col. 3:58-63).
Key Claims at a Glance
- The complaint asserts independent claim 1 and dependent claims 2-3, 5, and 9-12 (Compl. ¶19).
- Independent Claim 1 requires:
- A molded, horizontally elongated siding member.
- An exterior convex surface and an interior concave surface.
- The exterior convex surface is cast in a mold to replicate a structural log's texture.
- At least one flange along an edge to attach the member to a structure.
- The member is cast from an "engineered cementitious composite."
- The member is an "open trough."
- The member contacts the structure along its edges and the flange.
III. The Accused Instrumentality
Product Identification
- The accused products are engineered siding products sold by Defendant under names including Board and Batten 12" (BB12), Half-Round 12" Log Siding (HR12), Hand-Hewn 12" Log Siding (HH12WF and HH12NF), and Shiplap 12" and 8" (SL12 and SL8) (Compl. ¶13).
Functionality and Market Context
- The complaint describes the accused products as "elongated, concrete 'logs' that have a generally C-shaped cross-section" (Compl. ¶14). The exterior is convex and "patterned to look like a real wooden log," while the interior is concave, forming a "channel or trough" when mounted on a building (Compl. ¶14).
- These products are alleged to compete directly with Plaintiff's patented products (Compl. ¶13). The complaint also notes Defendant’s use of a "Made in Montana USA" certification mark in its advertising (Compl. p. 9), which is the subject of separate false advertising claims. The complaint provides an image of this certification mark, which it alleges is used deceptively (Compl. p. 9).
IV. Analysis of Infringement Allegations
’598 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A molded horizontally elongated siding member ... to simulate log construction | Defendant's products are described as "elongated, concrete 'logs'" used as siding. | ¶14 | col. 5:3-5 |
| an exterior convex surface and an interior concave surface | The products allegedly have an "exterior portion that is generally convex" and an "inner portion that is generally concave." | ¶14 | col. 5:8-9 |
| the exterior convex surface cast in a reverse mold of a structural log to replicate the texture of a structural log | The exterior is allegedly "patterned to look like a real wooden log." | ¶14 | col. 5:11-13 |
| at least one flange along at least one of the edges to attach the member to the structure | The complaint does not contain specific allegations regarding a flange, stating only that the product is "mounted" on a surface. | ¶14 | col. 5:14-16 |
| the siding member is cast of engineered cementitious composite | The products are described as being made of "concrete." | ¶14 | col. 5:17-18 |
| and is an open trough | The concave inner portion allegedly "forms a channel or trough." | ¶14 | col. 5:18-19 |
| wherein the siding member contacts the structure at least along one of the first edge, the second edge, and the at least one flange | The complaint does not allege specific points of contact, stating only that the product is "mounted" on a surface. | ¶14 | col. 5:19-22 |
- Identified Points of Contention:
- Technical Questions: A primary evidentiary question is how the accused products are attached to a structure. The complaint does not allege facts to support the presence of the claimed "flange," a key structural element for attachment. The infringement analysis will depend on whether discovery reveals a structure on the accused products that meets this limitation.
- Scope Questions: The case may raise a claim construction question regarding the scope of "engineered cementitious composite." The analysis will need to determine if the "concrete" material of the accused products (Compl. ¶14) falls within the meaning of this term as used in the patent.
V. Key Claim Terms for Construction
The Term: "at least one flange"
Context and Importance: This term is critical because it defines the claimed mechanism for attaching the siding member to a structure. Infringement will hinge on whether the accused products, which the complaint only describes as being "mounted" (Compl. ¶14), incorporate a structure that can be defined as a "flange." The absence of specific allegations on this point in the complaint suggests it will be a central point of dispute.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification mentions that "the flange can include special brackets or tabs to attach the siding to the structure," which could support an argument that the term is not limited to a feature integrally molded with the siding piece (’598 Patent, col. 3:55-57).
- Evidence for a Narrower Interpretation: The preferred embodiments depict flanges that are either "embedded in the ECC material" or "formed by the ECC material" as an integral extension of the siding member, which may support a narrower construction limited to such integrated features (’598 Patent, col. 3:42-47, col. 3:60-62).
The Term: "engineered cementitious composite"
Context and Importance: This term defines the material of the claimed invention. Its construction is important because the accused products are described as being made of "concrete" (Compl. ¶14). The dispute may turn on whether "concrete" is necessarily an "engineered cementitious composite."
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent does not provide a specific definition for the term, which may support giving it a broad, plain, and ordinary meaning that could encompass various types of concrete mixtures used in building products.
- Evidence for a Narrower Interpretation: The specification notes the need for sufficient "flexural strength" for the siding pieces, which could imply a material with specific performance characteristics beyond standard concrete (’598 Patent, col. 3:35-39). This might be used to argue for a definition that requires specific engineering for strength and weight properties suitable for siding.
VI. Other Allegations
- Willful Infringement: The complaint alleges that Defendant had "knowledge of the Patent-in-Suit" and continued its infringing acts "despite an objectively high likelihood that its actions constituted infringement" (Compl. ¶23). This allegation is based on alleged pre-suit knowledge of the patent.
VII. Analyst’s Conclusion: Key Questions for the Case
- A primary issue will be evidentiary and technical: does the accused concrete siding, which the complaint states is "mounted" to a surface, possess the specific "flange" structure for attachment as required by Claim 1? The complaint's lack of specific factual allegations on this point makes it a central vulnerability in the infringement theory presented.
- The case will also likely involve a core question of claim construction: can the term "engineered cementitious composite", as used in the patent, be interpreted to read on the "concrete" material allegedly used in the accused products? The resolution of this definitional dispute will be critical in determining the scope of the patent's coverage.