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)

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