Radar Industries, Inc. v. Cleveland Die & Manufacturing Company and Cleveland Die of Mexico

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
RADAR INDUSTRIES, INC.,
Plaintiff-Appellant,
v.
CLEVELAND DIE & MANUFACTURING COMPANY
AND CLEVELAND DIE OF MEXICO,
Defendants-Appellees.
__________________________
2010-1335
__________________________
Appeal from the United States District Court for the
Eastern District of Michigan in case no. 08-CV-12338,
Senior Judge Lawrence P. Zatkoff.
__________________________
Decided: March 30, 2011
_________________________
M ICHAEL F. WAIS , Howard & Howard Attorneys
PLLC, of Royal Oak, Michigan, for plaintiff-appellant. Of
counsel were G REGORY D. DEGRAZIA and M ICHAEL O.
FAWAZ .
ROBERT C.J. TUTTLE, Brooks Kushman P.C., of South-
field, Michigan for defendants- appellees. With him on
the brief were ROBERT C. BRANDENBURG and JOHN E.
NEMAZI.

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RADAR INDUSTRIES v. CLEVELAND DIE 2
__________________________
Before LOURIE, LINN , and DYK , Circuit Judges.
D YK , Circuit Judge.
Radar Industries, Inc. (“Radar”) sued Cleveland Die &
Manufacturing Co. and Cleveland Die of Mexico (collec-
tively “Cleveland Die”) for infringing U.S. Patent Nos.
5,435,661 (“’661 patent”) and 5,559,810 (“’810 patent”),
which are both directed to “Clevis Link” technologies.
The allegedly infringing clevis links were manufactured
by Cleveland Die for Standard Products, Inc. (“Standard
Products”). The district court granted summary judgment
for Cleveland Die on the ground that Radar was fore-
closed from any claim for damages under 35 U.S.C. §
287(a) for failing to give notice with respect to the alleg-
edly infringing clevis links that were produced “for or
under” a have made license agreement that Radar
granted to Standard Products. Radar Indus., Inc. v.
Cleveland Die & Mfg. Co., No. 08-CV-12338, 2010 WL
777077, at *4–7 (E.D. Mich. Oct. 4, 2010). Because we
conclude that a license existed that enabled Cleveland Die
to make the allegedly infringing clevis links for Standard
Products, Cleveland Die did not infringe the ’661 and ’810
patents, rendering any lack of notice irrelevant. Accord-
ingly, we affirm judgment for defendants.
BACKGROUND
Radar owns the asserted ’661 and ’810 patents, both
of which are directed to “clevis links.” Clevis links are
used in a variety of manufacturing contexts, including in
automobile manufacturing where they connect the auto-
motive radiator to the engine. The patented clevis links
are considered an improvement over the prior art because
they are stamped from a single piece of sheet metal rather
than forged from heavier metals, making them more

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RADAR INDUSTRIES v. CLEVELAND DIE 3
economical and lightweight. As depicted below, a clevis
link 10 connects with a tie bar 18 to form a linkage as-
sembly 12:
In the early-1990s, General Motors contracted with
Standard Products to produce a linkage assembly, consist-
ing of a tie bar and a clevis link. Standard Products
awarded a contract for the production of the tie bar to
Radar, but awarded a contract for the production of the
clevis link to Cleveland Die’s predecessor, Tool Producers.
In 1994, Tool Producers began supplying clevis links to
Standard Products.
Around 1995, Radar’s Vice President and owner,
Mark Zmyslowski, notified Standard Products that the
’661 patent covered Tool Producers’ clevis links. However,
Gary O’Keefe, Standard Products’ buyer, informed Zmys-
lowski that if he ever asserted the patent, Radar would
lose the more profitable tie bar business. Radar then
allegedly granted Standard Products a “Right to Have
Made” license (“Have Made license”) to have the clevis
links of the ’661 patent and later the ’810 patent manu-
factured on its behalf. In return, Standard Products
allegedly assured Radar that it would be given the first
opportunity to replace Tool Producers if Tool Producers
ever ceased production of the clevis links. This agreement

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RADAR INDUSTRIES v. CLEVELAND DIE 4
was never memorialized in writing, and the parties now
dispute whether an agreement was ever reached.1
In 2001, Cleveland Die purchased the assets of Tool
Producers from National City Bank in foreclosure pro-
ceedings. These assets included the “contract, records
and tooling for making a clevis link for [Standard Prod-
ucts].” J.A. 152. Soon after, Cleveland Die succeeded
Tool Producers in supplying links to Standard Products.
Cleveland Die ceased production of the accused clevis
links when Standard Products found another supplier for
the links around July 2007. Apparently, early in 2008,
Radar lost the contract for providing the tie bars to Stan-
dard Products. On May 31, 2008, Radar sued Cleveland
Die, alleging infringement of the ’661 and ’810 patents.
On August 20, 2009, Cleveland Die moved for sum-
mary judgment that the accused links were not properly
marked under 35 U.S.C. § 287(a), which requires a patent
holder to mark all patented articles sold “for or under” it
in order to obtain infringement damages.2 Cleveland Die
1 Apparently, in 1999, Standard Products was ac-
quired by a company called Cooper Standard. For conven-
ience, we refer to Standard Products as the entity in
question.
2 35 U.S.C. § 287(a) provides, in relevant part:
Patentees . . . making, offering for sale, or selling . . . any
patented article for or under them . . . may give notice. . .
that the same is patented, either by fixing thereon the
word “patent” or the abbreviation “pat.”, together with the
number of the patent . . . . In the event of failure so to
mark, no damages shall be recovered by the patentee in
any action for infringement, except on proof that the
infringer was notified of the infringement and continued
to infringe thereafter, in which event damages may be
recovered only for infringement occurring after such
notice.

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RADAR INDUSTRIES v. CLEVELAND DIE 5
contended that Standard Products (and accordingly
Cleveland Die) was licensed by Radar under the alleged
Have Made license. Radar, on the other hand, contended
that neither Standard Products nor Cleveland Die sold
clevis links “for or under” Radar because, contrary to its
earlier position, a Have Made agreement never in fact
existed. The district court granted summary judgment on
March 4, 2010, concluding that Standard Products was
licensed and that the patent notice statute foreclosed any
claim for damages in recovery of all relief sought in the
infringement action. Radar, 2010 WL 777077, at *7. In
addition, the district court denied Radar leave to amend
its complaint to add additional clevis links that it believed
were infringing. Radar Indus., Inc. v. Cleveland Die &
Mfg. Co., No. 08-CV-12338, slip op. at 1 (E.D. Mich. Jan.
15, 2010) [hereinafter Denial of Discovery Motions and
Motion for Leave]. It also denied several discovery mo-
tions, denying Radar leave to engage in additional discov-
ery after the passage of the discovery deadline. Id. Radar
timely appealed, and we have jurisdiction under 28 U.S.C.
§ 1295(a)(1).
We review grants of summary judgment de novo.
Nartron Corp. v. Schukra U.S.A. Inc., 558 F.3d 1352, 1355
(Fed. Cir. 2009). A denial of a motion to amend is re-
viewed for abuse of discretion. Total Benefits Planning
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552
F.3d 430, 437 (6th Cir. 2008).
35 U.S.C. § 287(a) (emphasis added). Persons make or
sell patented articles “for or under” a patentee when the
patentee has expressly or impliedly authorized them to do
so. See Amsted Indus. Inc. v. Buckeye Steel Castings Co.,
24 F.3d 178, 185 (Fed. Cir. 1994).

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RADAR INDUSTRIES v. CLEVELAND DIE 6
D ISCUSSION
I
The arguments of the parties in this case are unusu-
ally convoluted. The question of whether Radar was
obligated to mark the clevis links under § 287(a) depends
entirely on whether Radar authorized Standard Products
to produce the clevis links (i.e. whether Standard Prod-
ucts had an express or implied license). If Standard
Products was authorized, there is no need to address the
notice issue. An express or implied license is a defense to
infringement. See Carborundum Co. v. Molten Metal
Equip. Innovations, Inc., 72 F.3d 872, 878 (Fed. Cir.
1995).
The district court did not err in finding that there was
a license. In De Forest Radio Telephone & Telegraph Co.
v. United States, 273 U.S. 236, 241 (1927), the Supreme
Court held that a patent license did not require a formal
written agreement:
No formal granting of a license is necessary in or-
der to give it effect. Any language used by the
owner of the patent or any conduct on his part ex-
hibited to another, from which that other may
properly infer that the owner consents to his use
of the patent in making or using it, or selling it,
upon which the other acts, constitutes a license,
and a defense to an action for a tort.
Here, the undisputed facts establish that Radar licensed
Standard Products to have another party manufacture
the asserted clevis links. In a March 2010 response brief,
Radar stated that “[Plaintiff] offered its stamped clevis
links covered by its patent application to Standard Prod-
ucts” and that “[u]ltimately, [Plaintiff] reached an agree-
ment with Standard Products wherein [Plaintiff] granted
Standard Products a right to have made . . . the patented
clevis links.” J.A. 21. In his August 2009 deposition

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RADAR INDUSTRIES v. CLEVELAND DIE 7
testimony, Radar’s Vice President and owner, Zmys-
lowski, confirmed this:
A. [When I told Standard Products about the
’661 patent], Gary got very upset and . . .
said if you try to enforce your patent I will
pull the . . . tie bar from you, which was
worth much more money than the clevis
link. . . . I agreed to allow them to run the
clevis as designed, as long as the initial
clevis link would only be run by Tool Pro-
ducers and if for any reason . . . it ceased
to be produced by Tool Producers or they
wanted to pull the business from Tool
Producers, that I would be able to run . . .
the clevis link.
Q. And that was agreed to by Mr. O’Keefe [Stan-
dard Products’ buyer]?
A. Yes.
. . . .
A. I allowed Standard Products to let Tool
Producers produce the clevis link . . .
Q. Okay. And the reason you allowed that
was because of the threat to pull the tie
bar bracket business?
A. That is correct.
J.A. 1073–74 (emphases added).3 Indeed, both parties
performed as though such an agreement existed. Tool
Producers produced the asserted clevis links for Standard
Products, and Radar never again asserted its patents
against Standard Products until the commencement of
3 Even in its appellate brief, Radar stated that, it
“reached what Radar believed was an agreement with
Standard Products . . . .” Appellant’s Br. 9.

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RADAR INDUSTRIES v. CLEVELAND DIE 8
this action. In return, Radar enjoyed substantial consid-
eration from the sales of the more profitable tie bar busi-
ness. See, e.g., DDB Techs., L.L.C. v. MLB Advanced
Media, L.P., 517 F.3d 1284, 1292 (Fed. Cir. 2008)
(“[W]hen a contract is ambiguous, conduct of the parties
which indicates the construction that the parties them-
selves placed on the contract may . . . be considered in
determining the parties' true intent.”) (quotation marks
and citations omitted); Sanchez v. Eagle Alloy, Inc., 658
N.W.2d 510, 517 (Mich. Ct. App. 2003) (stating that,
under the applicable contract law of Michigan, a meeting
of the minds “can be found from performance and acquies-
cence in that performance”); see also Restatement (Sec-
ond) of Contracts § 202(5) (1981) (noting the import of the
parties' course of performance and course of dealing to an
agreement).
II
Radar nonetheless contends that genuine issues of
material fact remain as to whether a Have Made license
agreement existed, arguing that (1) a declaration from a
Standard Products engineer, Bernie Rice, shows no meet-
ing of the minds occurred; (2) Cleveland Die previously
took a contradictory position that no agreement existed;
and (3) a September 2009 declaration from Zmyslowski
states that no agreement ever existed and that, even if
one did exist, it would only have covered one clevis link
model. As we now discuss, none of these assertions raises
a genuine issue of material fact.
First, Radar contends that no meeting of the minds
occurred because Cleveland Die, in a motion on laches,
submitted a declaration from an employee named Bernie
Rice, which stated:
Because of my relationship with this product and
the investigation I undertook for Standard Prod-
ucts regarding [the ’661 patent], I should be aware

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RADAR INDUSTRIES v. CLEVELAND DIE 9
of any communications and agreements regarding
the clevis link supply and Radar’s claims to have
patent coverage of the clevis link. I have reviewed
the Declaration of Mark Zmyslowski. Standard
Products made no assurance, as alleged in para-
graph 5 of the declaration, that “if Tool Producers
ever ceased to manufacture the stamped clevis link
for Standard Products that Radar would be of-
fered the opportunity to [replace Tool Producers].”
The reason this is not correct is covered in my let-
ter of March 30, 1996 where it is clear that [Tool
Producers’ part did not infringe].4
J.A. 542 (emphases added). The district court erroneously
dismissed this declaration and did not give it “evidentiary
weight” because of its “unsworn” nature. Radar, 2010 WL
777077, at *5. In fact, because the declaration was made
“under penalty of perjury,” it is equivalent to an affidavit
and can support or oppose a motion for summary judg-
ment. 28 U.S.C. § 1746. The declaration, nonetheless,
does not raise a genuine issue of fact. Rice only disputed
the accuracy of paragraph 5 of Zmyslowski’s statement,
which stated: “I was assured by Standard Products if Tool
Producers ever ceased to manufacture the stamped clevis
link for Standard Products[,] that Radar would be offered
the opportunity to provide the stamped clevis link de-
signed and developed at Radar.” J.A. 422. Therefore,
Rice’s declaration only bears on whether Radar had a
right to replace Tool Producers in the event Tool Produc-
ers ceased production of the clevis links. It does not
refute the existence of a Have Made license agreement.
The declaration thus fails to create a genuine issue of fact
as to whether a license agreement actually existed.
4 The March 30, 1996, letter, which was written in
response to Radar’s assertion of the ’611 patent, con-
cluded that “none of [the claims of the ’661 patent]
appl[ies] to the Tool Producers part.” J.A. 1621.

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RADAR INDUSTRIES v. CLEVELAND DIE 10
Second, Radar points out that Cleveland Die previ-
ously took the position that no license agreement existed.
In support of its April 14, 2009, laches motion, Cleveland
Die stated that “there is no proof of [an] agreement,
merely hearsay.” J.A. 532 (emphasis added). We agree
with the district court that this statement does not raise a
genuine issue of fact. This statement merely restates a
legal theory developed during an early stage of litigation
and was submitted months before the close of discovery.
Cleveland Die was not an original signatory to the agree-
ment. Moreover, Cleveland Die’s denial of an agreement
preceded Zmyslowski’s August 6, 2009, deposition testi-
mony in which he repeatedly stated that there was an
agreement. Under these circumstances, we think the
district court properly declined to find that Cleveland
Die’s earlier legal position raised a genuine issue of
material fact. See, e.g., Vivid Techs., Inc. v. Am. Sci. &
Eng’g, Inc., 200 F.3d 795, 812 (Fed. Cir. 1999) (“Factual
assertions by counsel in motion papers, memoranda,
briefs, or other such ‘self-serving’ documents, are gener-
ally insufficient to establish the existence of a genuine
issue of material fact at summary judgment.”) (quoting
Nieves v. Univ. of P.R., 7 F.3d 270, 276 n.9 (1st Cir.
1993)).
Third, Radar points to Zmyslowski’s September 2009
declaration as evidence that no agreement existed. There,
Zmyslowski stated that “Radar has never offered a license
to any party to produce clevis links covered by the ’661
Patent.” J.A. 1607. However, Zmyslowski’s September
2009 declaration directly contradicts his August 2009
deposition testimony and his March 2009 declaration in
which he affirmed the existence of a license agreement.
J.A. 422, 1073–76. Under applicable Sixth Circuit law,
“[a] party may not create a factual issue by filing an
affidavit, after a motion for summary judgment has been
made, which contradicts [his] earlier deposition testi-
mony.” Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460

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RADAR INDUSTRIES v. CLEVELAND DIE 11
(6th Cir. 1986). Thus, Zmyslowski’s declaration does not
raise a genuine issue of fact.
Finally, Radar maintains that any agreement it made
pertained only to a single clevis link and did not extend to
(1) two infringing links identified by Cleveland Die in its
interrogatories (“Two Interrogatory Links”); or (2) later-
discovered additional links that were made for entities
other than Standard Products (“Other Links”). Radar’s
only evidence for this assertion is Zmyslowski’s Septem-
ber 2009 declaration, which states that the agreement
“related to one single clevis link.” J.A. 1607. However,
Radar offers no other evidence that the agreement per-
tained to only a single clevis link. It is well-settled law
that a party opposing summary judgment “must point to
an evidentiary conflict created on the record; mere denials
or conclusory statements are insufficient.” SRI Int’l v.
Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed.
Cir. 1985). Here, we conclude that Zmyslowski’s declara-
tion was wholly conclusory and insufficient to raise a
factual dispute as to whether the agreement covered the
Two Interrogatory Links or the Other Links.5
5 Radar may suggest that the Have Made license
lapsed because Standard Products breached the agree-
ment by allowing Tool Producers’ successor-in-interest
(Cleveland Die) to supply the clevis links to Standard
Products, rather than allowing Radar to supply the links
when Tool Products ceased production. If so, this issue
has not been sufficiently briefed to preserve it. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d
1312 (Fed. Cir. 2006) (citing United States v. Dunkel, 927
F.2d 955, 956 (7th Cir.1991) (“A skeletal ‘argument,’
really nothing more than an assertion, does not preserve a
claim. . . . Especially not when the brief presents a passel
of other arguments . . . . Judges are not like pigs, hunting
for truffles buried in briefs.”)); see also Anderson v. City of
Boston, 375 F.3d 71, 91 (1st Cir. 2004) (“When a party
includes no developed argumentation on a point, . . . we
treat the argument as waived under our well established

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RADAR INDUSTRIES v. CLEVELAND DIE 12
Because we hold that Standard Products had a Have
Made license, its suppliers, including Cleveland Die,
cannot be sued for infringement with respect to any
accused products made for Standard Products.
III
Radar also challenges the denial of several discovery
motions and its motion for leave to amend its complaint.
These motions were all filed in response to Radar’s belief
that Cleveland Die was intentionally withholding infor-
mation about additional, allegedly-infringing clevis links.
In response to an interrogatory asking it to “[i]dentify by
make, internal designation, part number and/or model
number each and every Clevis Link sold or offered for sale
by You,” Cleveland Die disclosed model numbers for the
accused models made for Standard Products. J.A. 929–
30. However, during a deposition on July 22, 2009, Cleve-
land Die’s President acknowledged that it still sold clevis
links to other companies that shared similar characteris-
tics to the invention of the patents-in-suit. Because
Radar believed that Cleveland Die deliberately withheld
information about these Other Links, it filed several
motions, including motions for discovery sanctions, to
compel discovery, and to extend discovery to uncover more
information about these Other Links. Radar also sought
to amend its complaint to add the Other Links. The
district court, nonetheless, dismissed Radar’s discovery
motions, stating that:
. . . Plaintiff knew since the outset of this litiga-
tion that Defendants produced additional clevis
rule.”); Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.
2001) (“It is a ‘settled appellate rule that issues adverted
to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.”) (quot-
ing United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).

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RADAR INDUSTRIES v. CLEVELAND DIE 13
links. Defendants’ 2007 website contained a pic-
ture featuring clevis links other than those men-
tioned in its response to Plaintiff’s interrogatory,
including those mentioned by [Cleveland Die’s
President] in his deposition. Plaintiff was aware
of this picture in 2007. . . . Despite this knowl-
edge, Plaintiff failed to challenge the sufficiency of
Defendants’ December 2, 2008, interrogatory re-
sponse until August 6, 2009. Based on this evi-
dence, Plaintiff has failed to show that despite its
diligence, it could not meet the original discovery
deadline.
Denial of Discovery Motions and Motion for Leave, slip op.
at 6. The district court also denied the motion to amend
the complaint on the grounds that: “Amending the com-
plaint after the close of discovery and after the dispositive
motion deadline, and requiring Defendants to respond to
entirely new and distinct claims, would be unfairly preju-
dicial to Defendants and unduly delay trial.” Id., slip op.
at 8–9. We see no error in the district court’s rulings.6
AFFIRMED
6 Radar also challenges the district court’s grant of
partial summary judgment for Cleveland Die, dismissing
Counts IV and VI of Radar’s complaint, related to in-
fringement of the ’810 patent. During the course of litiga-
tion, it was discovered that the ’810 patent listed an
incorrect priority date. Radar thus filed a certificate of
correction. The district court nonetheless dismissed the
claims because it found that “the [’810] clevis link was
sold more than one year prior to its effective filing date
and . . . the certificate of correction for which Plaintiff has
applied would only have prospective application.” Radar
Indus., Inc. v. Cleveland Die & Mfg. Co., 632 F. Supp. 2d
686, 694 (E.D. Mich. 2010). In view of our holding that a
Have Made license agreement existed and applied to the
’810 patent, we need not address whether the dismissal of
Counts IV and VI was proper.

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