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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 09-10215-RGS NOROTOS, INC. v. OPS-CORE, INC. MEMORANDUM AND ORDER ON MOTION OF OPS-CORE, INC., FOR SUMMARY JUDGMENT OF INVALIDITY OF U.S. PATENT NO. 6,751,810 February 23, 2012 STEARNS, D.J. Defendant Ops-Core, Inc., having been found to infringe claim 22 of United States Patent No. 6,751,810 ('810 patent), moves for summary judgment that claim 22 is invalid for lack of written description. For the reasons stated, Ops-Core's motion will be denied. I. Background This case was initially heard by Judge Gertner, who has since retired. The essential facts are set out in her decision on the parties' cross-motions for summary judgment on competing claims of infringement. See Norotos Inc. v. Ops-Core, Inc., 2011 WL 3157201 (D. Mass. 2011). Some additional facts pertinent to a resolution of the instant motion are recited in this decision.

The '810 patent teaches a "shroud plate for headgear comprising a shell, an insert, a lock and a release mechanism wherein the shell extends around at least a portion of the insert has a smooth surface with rounded edges and corners and is shaped to match the contour of the headgear. Further, the insert is adapted to receive a lock plate, the lock is adapted to secure the lock plate to the insert, and the release mechanism allows for removal of the lock plate from the insert." Col. 2, lls. 1-9. The '810 patent with its 20 claims was originally issued on June, 22, 2004, and assigned to plaintiff Norotos, Inc. After Norotos brought this Complaint against Ops-Core in February of 2009, Ops-Core requested an ex parte reexamination of the claims of the '810 patent by the United States Patent and Trademark Office (PTO). Ops-Core cited prior art that had not been brought to the attention of the PTO during the prosecution of the '810 patent. The PTO granted the request for reexamination. In response to the reexamination, Norotos amended each of the 20 original claims of the '810 patent, and added new claims 21-23. Claim 22 is at issue in this case: A shroud plate for headgear comprising a shell, an insert, a lock and a release mechanism, wherein the shell extends around at least a portion of the insert and has an external surface that faces away from the headgear when the shroud plate
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is attached to the headgear, a back surface that faces toward the headgear when the shroud plate is attached to the headgear and a periphery; wherein the external surface is smooth with rounded edges and corners at the periphery, such that the shell has no projections on which a shroud line may catch and is shaped to match the contour of the headgear; wherein the insert is adapted to receive a lock plate; wherein the lock is adapted to secure the lock plate to the insert; and wherein the release mechanism allows for removal of the lock plate from the insert. In the cross-motions for summary judgment on the issue of infringement, the parties disputed whether the "shroud plate . . . comprising a shell, an insert, a lock and a release mechanism" was embodied in a unitary structure with an affixed lock and release mechanism, or whether it might consist of an assembled structure consisting of a shell and a mount arm, with the mount arm providing the lock and release mechanism. Norotos, 2011 WL 3157201 at *8. Based on her reading of the specification and the prosecution history, Judge Gertner construed "shroud plate" as "an interface that can be either a unitary structure or an assembled device, which attaches headgear

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