DCT

1:09-cv-01685

Kimberly Clark Worldwide Inc v. First Quality Products Inc

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Key Events
Complaint

I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 1:09-cv-01685, N.D. Tex., 03/12/2009
  • Venue Allegations: Plaintiff alleges venue is proper in the Northern District of Texas because Defendants conduct business in the district and the alleged wrongful acts and injury to Plaintiff occurred there.
  • Core Dispute: Plaintiff alleges that Defendant’s recently introduced diaper products and other branded absorbent garments infringe five patents related to the construction, absorbent materials, and manufacturing of disposable absorbent articles.
  • Technical Context: The technology domain is disposable absorbent articles, such as diapers and incontinence products, a highly competitive consumer goods market where innovations in fit, comfort, and absorbency are key commercial differentiators.
  • Key Procedural History: The complaint does not reference any prior litigation, inter partes review proceedings, or licensing history between the parties.

Case Timeline

Date Event
1989-04-10 U.S. Patent No. 5,147,343 Priority Date
1992-09-15 U.S. Patent No. 5,147,343 Issues
1993-02-24 U.S. Patent No. 5,601,542 Priority Date
1993-05-06 U.S. Patent No. 5,286,543 Priority Date
1993-12-28 U.S. Patent No. 5,496,298 Priority Date
1994-02-15 U.S. Patent No. 5,286,543 Issues
1996-03-05 U.S. Patent No. 5,496,298 Issues
1997-02-11 U.S. Patent No. 5,601,542 Issues
2001-08-16 U.S. Patent No. 6,702,798 Priority Date
2004-03-09 U.S. Patent No. 6,702,798 Issues
2009-02-01 First Sale of Accused "Recently Introduced Diaper Product"
2009-03-12 Complaint Filed

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 5,496,298 - "Elastomeric Ears For Disposable Absorbent Article"

  • Technology Synopsis: The patent document was not provided with the complaint for analysis.
  • Asserted Claims: The complaint asserts "one or more claims" of the '298 patent (Compl. ¶8).
  • Accused Features: The complaint accuses First Quality’s "recently introduced diaper product having elastic ears with non-parallel sides for fastening the sides of the diaper" (Compl. ¶8).

U.S. Patent No. 5,286,543 - "Method and Apparatus for Controlling the Cutting and Placement of Components on a Moving Substrate, and Article Made Therewith"

The Invention Explained

  • Problem Addressed: The patent addresses the difficulty in high-speed manufacturing of accurately cutting and placing discrete components, such as patches with graphics, onto a continuously moving web like a diaper backsheet. The significant distance between the optical sensor that reads registration marks on the web and the mechanical cutter that performs the separation creates a time delay, making the system vulnerable to errors from material stretching or variations in printed patterns (Compl. ¶15; ’543 Patent, col. 2:10-22, col. 14:38-55).
  • The Patented Solution: The invention describes a closed-loop feedback control system for manufacturing. A first sensor detects a reference mark on the incoming material before it is cut. Crucially, a second sensor inspects the component’s placement on the substrate after it has been cut and applied. A data processing system compares the actual final placement to the expected placement, generates an error signal, and continuously adjusts the timing ("phasing") of the cutter to correct for misalignments in real-time ('543 Patent, Abstract; col. 4:37-68).
  • Technical Importance: This dynamic feedback control method allows for higher precision and quality control in the high-speed production of disposable goods, reducing waste from misaligned components ('543 Patent, col. 3:9-22).

Key Claims at a Glance

  • The complaint asserts infringement of "one or more claims" of the '543 patent (Compl. ¶16). The patent contains a single claim.
  • Claim 1, an article claim, includes the following essential elements:
    • A standard disposable article structure (backsheet, topsheet, absorbent pad).
    • A smaller patch of web material secured to the backsheet.
    • The patch contains a "predetermined set of graphics which is congruously entire."
    • The patch also has "at least one reference marker portion" that is "constructed to provide for a selected separating" of the graphic set from a larger series of graphics.

U.S. Patent No. 5,601,542 - "Absorbent Composite"

  • Technology Synopsis: The patent document was not provided with the complaint for analysis.
  • Asserted Claims: The complaint asserts "one or more claims" of the '542 patent (Compl. ¶22).
  • Accused Features: The complaint accuses various absorbent garment products, including Walgreens Certainty Ultra Thin Underwear and Pads, and Wal-Mart Assurance Underwear and Male Guards (Compl. ¶22).

U.S. Patent No. 5,147,343 - "Absorbent Products Containing Hydrogels With Ability To Swell Against Pressure"

The Invention Explained

  • Problem Addressed: The patent’s background section explains that while superabsorbent polymers (SAPs) can absorb many times their weight in fluid, their performance degrades under pressure (e.g., from a baby sitting down). This pressure can cause the swollen gel particles to block the pores within the absorbent core's fibrous matrix, a phenomenon known as "gel-blocking," which prevents further fluid distribution and can lead to leaks ('343 Patent, col. 2:40-54; col. 7:19-28).
  • The Patented Solution: The invention is an absorbent composite that uses an SAP with a high "Absorbency Under Load" (AUL), meaning it can absorb fluid even while being subjected to a restraining force. The solution relies on a specific structural relationship: the SAP particles are sized to be larger than the median pore size of the surrounding fibrous matrix when the matrix is wet. As these large particles swell, they push the fibers apart, thereby maintaining open channels for liquid to continue flowing through the core, rather than clogging the existing pores ('343 Patent, Abstract; col. 7:42-55).
  • Technical Importance: This technology enabled the design of thinner and more efficient absorbent cores that are more resistant to leakage under real-world conditions of use, such as wearer movement and pressure ('343 Patent, col. 6:53-58).

Key Claims at a Glance

  • The complaint asserts infringement of "one or more claims" of the '343 patent (Compl. ¶27). The first independent claim is analyzed.
  • Claim 1, a product claim, includes the following essential elements:
    • An absorbent composite comprising a porous fiber matrix and a superabsorbent material.
    • The superabsorbent material must be able to absorb at least 27 ml/g of a specified saline solution while under a restraining pressure of at least 21,000 dynes/cm².
    • When in the form of discrete particles, at least 50% (by weight) of the superabsorbent material has a particle size that is "greater than the median pore size of said porous fiber matrix when wet."

U.S. Patent No. 6,702,798 - "Folded Absorbent Article"

  • Technology Synopsis: The patent document was not provided with the complaint for analysis.
  • Asserted Claims: The complaint asserts "one or more claims" of the '798 patent (Compl. ¶32).
  • Accused Features: The complaint accuses various protective underwear products, including Wal-Mart Assurance Premium Underwear for Women, Walgreens Certainty Extra Absorbency, and CVS Protective Underwear (Compl. ¶32).

III. The Accused Instrumentality

  • Product Identification: The complaint names two categories of accused products: (1) "First Quality's Recently Introduced Diaper Product" and (2) a range of store-brand adult incontinence garments and diapers sold at Walgreens, Wal-Mart, Target, and CVS (Compl. ¶¶ 8, 16, 22, 27, 32).
  • Functionality and Market Context: The complaint provides very limited technical detail on the accused products. The "Recently Introduced Diaper Product" is described as having "elastic ears with non-parallel sides" (Compl. ¶8). For the remaining products, the complaint merely identifies them as absorbent articles such as underwear, pads, and guards, without describing their specific construction, absorbent materials, or manufacturing processes (Compl. ¶¶ 22, 27, 32). The complaint alleges the "Recently Introduced Diaper Product" was first sold in February 2009 (Compl. ¶9, 17). No allegations regarding market positioning are made.

IV. Analysis of Infringement Allegations

The complaint does not provide sufficient detail to construct a claim chart mapping elements of the asserted patents to features of the accused products or methods. The allegations are conclusory, stating that Defendants infringe by "making, using, offering to sell, selling, and/or importing products that are covered by one or more claims" of the patents-in-suit (Compl. ¶¶ 8, 16, 22, 27, 32). No specific facts are alleged regarding the accused manufacturing process for the '543 Patent, or the technical specifications of the absorbent cores for the '343 Patent.

  • Identified Points of Contention:
    • For the ’543 Patent: A central evidentiary question will be whether the process used to manufacture the accused diaper products employs a closed-loop feedback control system as claimed. The complaint's lack of factual allegations on this point suggests that discovery into Defendants' manufacturing lines will be required to determine if they include a second sensor positioned after the component is cut and a control system that adjusts cutter phasing based on that sensor's feedback.
    • For the ’343 Patent: The infringement analysis will likely center on technical testing. The key question will be whether the superabsorbent material used in the accused products meets the two quantitative limitations of claim 1: an Absorbency Under Load (AUL) of at least 27 ml/g under the specified pressure, and a particle size distribution where at least 50% of the particles are larger than the wet matrix's median pore size. This analysis will depend on expert evidence and the results of laboratory testing.

No probative visual evidence provided in complaint.

V. Key Claim Terms for Construction

U.S. Patent No. 5,286,543

  • The Term: "reference marker portion constructed to provide for a selected separating of said predetermined set of graphics from an interconnected plurality of graphic sets" (Claim 1)
  • Context and Importance: This term defines the nature and function of the registration mark that the claimed manufacturing system uses for control. The construction of this term will be critical to determining whether the registration system allegedly used by the Defendant falls within the scope of the claim.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The specification suggests the term is not limited to one specific technology, stating the marker can be a "physical discontinuity such as notch," a "magnetic discontinuity," or an "optical marker" ('543 Patent, col. 9:24-38). This language may support a construction covering a wide range of machine-readable registration marks.
    • Evidence for a Narrower Interpretation: The detailed embodiment describes an optical brightener strip detected by a UV sensor ('543 Patent, col. 9:51-55; col. 10:15-19). A party might argue that the term should be interpreted more narrowly in light of these specific disclosures, potentially limiting the claim to systems that use similar optical marking schemes.

U.S. Patent No. 5,147,343

  • The Term: "a size greater than the median pore size of said porous fiber matrix when wet" (Claim 1)
  • Context and Importance: This phrase captures the core technical principle of the invention for preventing gel-blocking. The entire infringement analysis for this patent will depend on the court's definition of this relative size relationship and the methodologies used to measure its constituent parts.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The claim language itself presents a direct comparison between two physical properties. Plaintiff may argue that any scientifically valid method for measuring SAP particle size and wet pore size that shows the claimed relationship meets the limitation.
    • Evidence for a Narrower Interpretation: The specification references a specific technical paper ("Burgeni, et al.") for determining "equivalent pore diameters" ('343 Patent, col. 17:1-5). A party could argue that this reference incorporates a specific methodology into the claim, thereby narrowing the scope of how "median pore size...when wet" must be determined for infringement purposes.

VI. Other Allegations

  • Willful Infringement: The complaint alleges that Defendants' infringement of the '298 patent was undertaken in "willful disregard" of Plaintiff's patent rights (Compl. ¶12). The complaint makes similar conclusory allegations for the other asserted patents and seeks treble damages in its prayer for relief (Prayer for Relief ¶D). The complaint does not allege any specific facts to support pre-suit knowledge, such as prior correspondence or litigation.

VII. Analyst’s Conclusion: Key Questions for the Case

  • Evidentiary Development: A primary issue will be one of evidentiary development. The complaint provides notice of the patents and products at issue but lacks specific factual allegations linking them. The case will likely turn on whether Plaintiff can, through discovery, uncover technical evidence to demonstrate that Defendants' products and processes meet the specific quantitative and functional limitations of the asserted claims, such as the Absorbency Under Load requirements of the '343 patent and the closed-loop manufacturing control system of the '543 patent.
  • Metrology and Claim Scope: A key technical and legal question will be one of metrology and construction: how will the court define, and how will the parties' experts measure, the critical limitation "a size greater than the median pore size of said porous fiber matrix when wet" from the '343 patent? The resolution of this issue will depend on the court's claim construction and its assessment of competing expert testimony on the appropriate scientific methodologies for testing these properties.