Plantronics, Inc. v. ALIPH, INC. et al

Filing 142

CLAIM CONSTRUCTION ORDER. Signed by Magistrate Judge Bernard Zimmerman on 10/6/2011. (bzsec, COURT STAFF) (Filed on 10/6/2011)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 PLANTRONICS, INC., 12 Plaintiff(s), 13 14 v. ALIPH, INC., et al., 15 Defendant(s). 16 ) ) ) ) ) ) ) ) ) ) ) No. C09-1714 BZ CLAIM CONSTRUCTION ORDER 17 On September 21, 2011, the court held a hearing for the 18 purpose of construing disputed terms in the claims of United 19 States Patent No. 5,712,453 (“the ‘453 patent”).1 20 Initially, the parties sought to have 13 terms construed. 21 After reviewing the papers, the court issued a tentative claim 22 construction order. 23 stated that they would accept some of the tentative 24 constructions but wished to contest others. 25 discussed in this order will be construed in accordance with 26 the tentative claims construction order filed September 19, At the September 21 hearing, the parties Terms not 27 1 28 All parties have consented to my jurisdiction for all proceedings including entry of final judgment, pursuant to 28 U.S.C. § 636(c). 1 1 2011. 2 1. Disputed Term One: “dimensioned to cover a portion 3 4 of the receiver” CLAIM TERM OR PLANTRONICS’ PHRASE 5 ALIPH’S PROPOSED CONSTRUCTION PROPOSED 6 7 CONSTRUCTION 1, 10 “dimensioned to cover a portion of the receiver” fashioned to have a spatial extent that ensures coverage of part but not all of the receiver plain meaning 1 “dimensioned to fit within an upper concha” fashioned to have a spatial extent that ensures fit within an upper concha plain meaning 10 “dimensioned to contact an upper concha between an antihelix and a crux of a helix” fashioned to have a spatial extent that ensures touching an upper concha between an antihelix and a crux of a helix plain meaning 8 9 10 11 12 13 14 15 16 17 18 At the hearing Aliph amended its proposed construction 19 with respect to claim 1 to read, “fashioned to ensure coverage 20 of part but not all of the receiver” and with respect to claim 21 10 to read, “fashioned to ensure touching an upper concha 22 between an antihelix and a crux of a helix.” 23 Plantronics argues the words of the terms are plain and 24 understandable on their face and that no construction is 25 necessary. 26 “a portion” require construction, citing C&C Jewelry Mfg. v. 27 Trent West, 2010 U.S. Dist. LEXIS 77062, 2010 WL 2681921 (N.D. 28 Cal. July 6, 2010). Aliph argues that the terms “dimensioned to” and 2 1 I continue to believe that these phrases should be 2 construed in accordance with their plain meaning. Judge 3 Fogel’s ruling in C&C Jewelry is distinguishable. Since the 4 patent in that case involved jewelry, a person skilled in that 5 art would construe the terms “configured and dimensioned to 6 receive a person’s finger” to mean that the structure 7 contemplated by the patent must be dimensioned in such a way 8 to properly fit a finger, as opposed to simply being large 9 enough to permit a finger to pass through. Here there is no 10 suggestion that the term “dimensioned to” could be interpreted 11 in a manner that would cause the claimed invention to be 12 confused with entirely different product. 13 proposed construction of “dimensioned to” as meaning 14 “fashioned to” appears to be a distinction without a 15 difference. 16 notion that the component at issue is “sized” in a particular 17 manner. 18 Moreover, Aliph’s In either case, the construction results in the I disagree with Aliph that the term “a portion,” should 19 be construed to mean “part but not all.” 20 portion” will have to be construed in the context of the 21 different claims in which it appears, for the purposes of 22 claims 1 and 10, to a person skilled in the art, the phrase 23 would not necessarily mean “part but not all.”2 24 differently, a person skilled in the art would not necessarily While the phrase “a Said 25 2 26 27 28 The court agrees with Aliph that a “person of ordinary skill in the art” in this field would have either (1) an engineering or design degree that covered mechanical design and materials science, or (2) considerable work experience in the audio, telecommunications, or hearing industries that involved researching or developing devices designed to interact with the human ear. 3 1 conclude that the term “a portion,” as used in these claims, 2 means that the ear cushion could cover 99% of the receiver, 3 but not 100% of the receiver. 4 v. Tritech Microelectronics Int'l, 246 F.3d 1336, 1347 (Fed. 5 Cir. 2001). 6 2. 7 CLAIM TERM OR PHRASE ALIPH’S PROPOSED CONSTRUCTION PLANTRONICS’ PROPOSED CONSTRUCTION 1,11, 21,30 “concha stabilizer pad” a piece of soft thick material that protects the upper concha soft structure that contacts the upper concha 8 9 10 11 12 See Crystal Semiconductor Corp. Disputed Term Two: “concha stabilizer pad” Both parties agree that the concha stabilizer pad is 13 “soft.” 14 troubled by a construction that would utilize “contacts” in 15 lieu of “protects” or vice versa. 16 dispute appears to be whether the concha stabilizer pad must 17 be its own discrete structure, or whether it can be one and 18 the same with the stabilizer support. 19 At the hearing, neither party seemed particularly The heart of the parties’ Aliph argues that claims 1 and 11 identify three 20 discrete, separate elements: (1) an ear cushion, (2) a 21 stabilizer support, and (3) a concha stabilizer pad. 22 further contends that its proposed construction utilizes the 23 same definition of “pad” that Plantronics gave the PTO during 24 reexamination of the ‘453 patent, and that Plantronics’ 25 proposed construction should fail because it eliminates the 26 distinction required by the claims as between the “stabilizer 27 support” and the “concha stabilizer pad,” rendering the latter 28 “superfluous” in violation of Innova/Pure Water, Inc. v. 4 Aliph 1 Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1119 (Fed. 2 Circ. 2004). 3 amended its proposed construction at the hearing, asserting 4 that the term should be construed as “a distinct/separate/ 5 discrete soft structure that [protects or contacts] the upper 6 concha.” Consistent with its argument, Aliph again 7 Plantronics argues that the ‘453 patent instructs that 8 the “stabilizer support” and the “concha stabilizer pad” do 9 not need to be distinct from one another, as evidenced by both 10 the description of the preferred embodiment (column 3:19-34), 11 as well as by claims 21 and 30, which state that the 12 “stabilizer support” and the “concha stabilizer pad” can be 13 formed from the same material and can comprise a single piece. 14 Whether the “concha stabilizer pad” and the “stabilizer 15 support” are two discrete structures is an argument more 16 appropriate for summary judgment. 17 construe “concha stabilizer pad” to mean “a soft structure 18 that protects the upper concha.” 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 5 Accordingly, I will 1 3. Disputed Term Three: “the receiver having a tragus 2 contact point, and an antitragus contact point 3 disposed substantially opposite to the tragus 4 contact point” 5 CLAIM TERM OR PHRASE 10 “the receiver having a tragus contact point, and an antitragus contact point disposed substantially opposite to the tragus contact point” 6 ALIPH’S PROPOSED CONSTRUCTION PLANTRONICS’ PROPOSED CONSTRUCTION 7 8 9 10 11 12 13 the receiver having two points, substantially opposite to one another, that directly touch the tragus and the antitragus the receiver having portions that can contact, directly or through the ear cushion, the tragus and antitragus 14 The center of the parties’ dispute as to this term is 15 whether the patent instructs that “the receiver” must directly 16 touch the tragus and the antitragus, or whether “the receiver” 17 can indirectly touch the tragus and antitragus through the ear 18 cushion. 19 “the receiver” to indirectly contact the tragus and 20 antitragus, and that Aliph’s proposed construction unduly 21 limits the claimed invention. 22 patent instructs that the ear cushion “fit[s] snugly” onto the 23 receiver (see column 3:6-9), and that the receiver, which then 24 goes into the ear, therefore “contacts” the tragus and the 25 antitragus, albeit through indirect touching. 26 further asserts that the meaning of “contact” is broad enough 27 to cover “being in immediate proximity to” and that the claim 28 should not therefore be limited to “direct” touching. Plantronics argues that the patent claims permit Plantronics asserts that the 6 Plantronics 1 Aliph argues that the claim “means what it says,” citing 2 to Chef America, Inc v. Lamb-Weston, Inc., 358 F.3d 1371 (Fed. 3 Cir. 2004). 4 specifically states that “the receiver” (not the “ear 5 cushion”) must touch the tragus and the antitragus, and that 6 to the extent the patent intended for the “ear cushion” to 7 contact something, it so stated, as evidenced by column 3, 8 lines 9-11, which states that the “ear cushion ... contacts” 9 the tragus and the antitragus (as compared to the language in Aliph therefore contends that the claim language 10 claim 10, which states that “the receiver ... contacts” the 11 tragus and antitragus). 12 terms that pertain to the “ear cushion,” the ear cushion could 13 be designed in such a way that it does not cover the entire 14 receiver, in which case the receiver itself could directly 15 contact the tragus or antitragus (for example, if the ear 16 cushion was designed in a cross shape). 17 Aliph asserts that as per the claim The court concludes that a person of ordinary skill in 18 the art would not necessarily conclude that “the receiver” 19 must, as Aliph contends, directly touch the tragus and the 20 antitragus. 21 with the plain meaning of the term “contact,” as well as with 22 the preferred embodiment, Aliph’s proposed construction 23 introduces a new concept to the claim, namely, that the claim 24 uses the term “contact” and that “contact” requires “direct 25 touching.” The term “contact” has a broader meaning than the 26 term “touch.” 27 Edition, offers three definitions of “contact:” 28 1. While Plantronics’ construction is consistent Webster’s New World Dictionary, College “the act of touching or meeting” 7 1 2. “the state of being in touch or association (with)” and 2 3. “connection” 3 A person skilled in the art, reading a patent about “an 4 apparatus for stabilizing a headset” and a claim about how a 5 receiver is positioned within the inner ear, would construe 6 the term contact point in the broader sense as a point where 7 the receiver is stabilized at specified contact points, and 8 not in the narrower sense as requiring the receiver to touch 9 the contact points directly and not through the ear cushion. 10 Aliph does not claim that Plantronics’ proposed definition 11 would undermine the stability of the receiver. 12 Accordingly, Aliph’s construction is not consistent with 13 the plain meaning of the term “contact” and a person skilled 14 in the art would not conclude that the receiver has to 15 “directly touch” the tragus and antitragus in order to 16 “contact” 17 more appropriate for an infringement analysis, but for the 18 purposes of claim construction, the court adopts the following 19 construction: “the receiver having two points, substantially 20 opposite to one another, that contact the tragus and the 21 antitragus.” 22 4. 23 CLAIM TERM OR PHRASE 10 “concha stabilizer” those parts of the ear. Disputed Claim Four: “concha stabilizer” 24 25 26 27 28 Aliph’s arguments seem ALIPH’S PROPOSED CONSTRUCTION PLANTRONICS’ PROPOSED CONSTRUCTION a column extending from the upper surface of an ear cushion that stabilizes a headset structure, a portion of which contacts the upper concha 8 1 In the court’s tentative claim construction order, the 2 court construed the term “stabilizer support,” as “an 3 elongated structure that extends from the ear cushion to the 4 concha stabilizer pad and stabilizes the headset.” 5 contends that the court should add the word “elongated” to its 6 tentative construction of the term “concha stabilizer” as 7 well, so that the construction reads “an elongated stabilizing 8 structure, which extends between the ear cushion and the upper 9 concha.” Aliph Both parties seem to agree that the patent describes 10 a “stabilizer” in one embodiment as including a member that is 11 “elongated and flexible.” 12 13.) 13 mean “an elongated stabilizing structure, which extends 14 between the ear cushion and the upper concha.” 15 Dated: October 6, 2011 (See, Pl.’s Opening Brief at pp. 8, The court therefore construes “concha stabilizer” to 16 17 Bernard Zimmerman United States Magistrate Judge 18 G:\BZALL\-BZCASES\PLANTRONICS V. ALIPH\CLAIMS CONSTRUCTION ORDER V.2.bzwpd.wpd 19 20 21 22 23 24 25 26 27 28 9

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