Mintz, et al v. Dietz and Watson Inc, et al

Filing 134

Claim Construction ORDER. Signed by Judge M. James Lorenz on 2/13/2009. (All non-registered users served via U.S. Mail Service).(mjj)

1 2 3 4 5 6 7 8 9 10 11 NEIL MINTZ, et al., 12 13 v. 14 DIETZ & WATSON, INC., et al., 15 16 17 Defendants. Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) Civil No. 05-CV-1470-L(CAB) CLAIM CONSTRUCTION ORDER UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

This matter came on for claim construction hearings in accordance with Markman v.

18 Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 19 (1996). 20 21 FACTUAL BACKGROUND Plaintiffs hold United States Patent Number 5,413,148 (the `148 patent) entitled "Casing

22 Structure for Encasing Meat Products" that has a total of eight claims. The patent issued on 23 January 6, 1994. This patent is intended to facilitate the cooking and/or smoking process of 24 meat products by way of an encasement that integrates a knitted stockinette and knitted netting 25 arrangement. The netting arrangement provides a visual appearance, a checkerboard, that is 26 integrally formed with the stockinette member, which is intended to compress the meat and to 27 prevent the meat from pressing through the netting arrangement, to form a one-piece tubular 28 meat encasement. Plaintiffs allege defendants have infringed the `148 patent.
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APPLICABLE PATENT LAW There is patent infringement if any one of a patent's claims covers the alleged infringer's

3 product or process. SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 889 (Fed. 4 Cir. 1988). Before determining whether a patent covers an alleged infringing device, it is 5 necessary to conduct a claim construction hearing to determine what the terms of the claim 6 mean. Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995)(en banc), aff'd, 7 517 U.S. 370 (1996); see also, Novartis Pharms. Corp. v. Abbott Labs., 375 F.3d 1328, 1332 8 (Fed. Cir. 2004); SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 874 (Fed. Cir. 2004). 9 "A claim in a patent provides the metes and bounds of the right which the patent confers on the 10 patentee to exclude others from making, using, or selling the protected invention." Corning 11 Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed. Cir. 1989). "`The 12 construction of claims is simply a way of elaborating the normally terse claim language in order 13 to understand and explain, but not to change, the scope of the claims.'" Terlep v. Brinkmann 14 Corp., 418 F.3d 1379, 1381 (Fed. Cir. 2005) (quoting Embrex, Inc. v. Serv. Eng'g Corp., 216 15 F.3d 1343, 1347 (Fed. Cir. 2000)). 16 Under Markman, the court as a matter of law must construe the claims of the patent at

17 issue. Markman, 52 F.3d at 979; Terlep, 418 F.3d at 1381-82. "Words of a claim are generally 18 given their ordinary and customary meaning, which is the meaning a term would have to a 19 person of ordinary skill in the art after reviewing the intrinsic record at the time of the 20 invention." O2 Micro Intern. Ltd. v. Beyond Innovation Technology Co., Ltd., 521 F.3d 1351, 21 1359 (Fed. Cir. 2008) (citing Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) 22 (en banc)). "In some cases, the ordinary meaning of claim language . . . may be readily apparent 23 even to lay judges, and claim construction in such cases involves little more than the application 24 of the widely accepted meaning of commonly understood words." Phillips, 415 F.3d at 1314. 25 The plain and ordinary meaning defines the scope of the claim unless the patentee has explicitly 26 disclaimed or clearly disavowed this meaning in the specification or prosecution history. 27 Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (requiring "words or 28 expressions of manifest exclusion or restriction" before broad terms in a claim will be read
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1 narrowly in light of a narrow specification). 2 3 4 I. Claims at Issue DISCUSSION

The parties dispute several terms used in Claim 1, the only independent claim, and

5 dependent Claim 4. The claims read as follows: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (Patent) 25 The parties dispute the construction of the following terms: "integrally formed", 26 "stockinette member", "netting arrangement", "strand", "thread", "longitudinal strand", 27 28
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1. An elongated tubular casing structure for encasing meat products, said elongated structure having a longitudinal direction and a transverse lateral direction, said casing structure comprising: a stockinette member comprising a closely knit tubular member formed of closely knit threads and having a first stretch capacity; a knitted netting arrangement having a second stretch capacity and comprising a first plurality of spaced strands extending in said longitudinal direction and a second plurality of spaced strands extending in said lateral direction; the longitudinal and lateral strands of said netting arrangement each intersecting in locking engagement with one another to form a grid-like pattern comprising a plurality of four-sided shapes; said strands of said netting arrangement being knit into the threads of said stockinette member, whereby said netting arrangement and said stockinette member are integrally formed so that said casing structure comprises an integrally formed structure; said first stretch capacity being greater than said second stretch capacity; WHEREBY when a meat product is stuffed into said casing structure under pressure, said meat product forms a bulge within each of said foursided shapes to thereby define a checker-board pattern on the surface thereof, said stockinette member forming a shield to prevent the adherence of adjacent meat product bulges over said strands of said netting arrangement. 4. A casing structure as defined in claim 3 wherein each loop is interlaced with an adjacent preceding loop and an adjacent following loop; whereby to form a plurality of aligned interlaced loops; each longitudinal strand comprising one of said aligned interlaced loops.

1 "latitudinal strand", "locking engagement" and "checkerboard pattern".1 2 3

1.

Integrally Formed

Plaintiffs provide an ordinary and customary construction of the term "integrally

4 formed": "formed as a unit." As plaintiffs pointed out during the Markman hearing, "that is the 5 plain meaning of this language." (Markman Tr. at 45.) 6

Defendants assert that plaintiffs' plain meaning of the term is too simplistic and not

7 reflective of the "claim language, specification and drawings, the prosecution history and the 8 plaintiffs' own brief." Id. at 62. In contrast to the plain meaning definition, defendants' 9 proposed construction of "integrally formed" is "the strands of the netting arrangement are knit 10 into the physically divisible stockinette member to form a unit." Defendants first point to Figure 11 1 of the patent which shows a netting arrangement standing alone. With their proposed 12 construction, defendants further contend they are relying on the claim itself which indicates that 13 the strands of the netting arrangement are to be knit into the threads of the stockinette member to 14 create an integrally formed structure. Id. at 62-63. But defendants' proposed construction does 15 not take into account the patent's second preferred embodiment which demonstrates that two 16 separate structures are unnecessary. 17 Here, plaintiffs have not demonstrated an intent to deviate from the ordinary and 18 customary meaning of "integrally formed" by redefining the term. Based on claim language, the 19 Court construes "integrally formed" as "formed as a unit." 20 21 2. Stockinette Member

Plaintiffs' proposed construction of "stockinette member" is "a closely knit tubular

22 member formed of closely knit threads." Defendants would modify plaintiffs' construction to 23 include: "closely knit threads forming rows of regular loops and having a closer knit and smaller 24 opening than the netting arrangement." 25 26
1

27 subsequently have been withdrawn from construction consideration, viz. "for encasing meat
"interlaced". (Joint Claim Construction Statement at 3. [doc. #44]) 4

In the initial joint claim construction statement, certain terms were included that

28 products", tubular", "closely knit", "stretch capacity", "knitted", "intersecting", "whereby", and
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Plaintiffs contend that defendants "agree that the proposed definition offered by the

2 plaintiffs is found in the claims" (Plaintiff's response to defendants' opening brief at 7) but by 3 inserting additional language in their construction, defendants are attempting to impermissibly 4 narrow the construction and interject language used exclusively in a prior art, the `057 Lombardi 5 patent. The dispute surrounding the construction is the "terminology of forming rows of regular 6 loops, having a closer knit and smaller openings than the netting arrangement." (Markman Tr. 7 at 66. (emphasis added)) Plaintiffs argue that the only limitations contained within the claim are 8 that the stockinette member be (1) knit, (2) closely knit, and (3) have a first-stretch, i.e., greater 9 stretch capacity, than the netting arrangement. (Markman Tr. at 30.) The Court agrees. The 10 unambiguous language of the claim does not require "regular loops" or any particular stitch be 11 used in the stockinette member. 12 But defendants contend that the term "rows of regular knit" is necessary for the proper

13 construction of the term "stockinette member" based on the prosecution history wherein 14 plaintiffs distinguished their invention over the prior art of Lombardi. Plaintiffs' Office Action 15 Response, dated August 9, 1994, states with reference to Figure 4 that "the top of the long loop 16 of yarn 42 in wale 3, row 25, being separated from the special yarn [the netting arrangement] in 17 row 27 by one row 26 of regular loops (i.e., loops of the regular yarn)." (Defendants' Exh. B 18 151.) Based on this language, defendants contend that the stockinette member must be made of 19 regular loops of regular yarn in order to differentiate the stockinette member from the netting 20 arrangement. 21 Defendants are attempting to impermissibly narrow the plain and ordinary meaning of the

22 claim term. Plaintiffs have not explicitly disclaimed the plain meaning of "stockinette member" 23 in the specification or prosecution history. See Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 24 898, 906 (Fed. Cir. 2004) (requiring "words or expressions of manifest exclusion or restriction" 25 before broad terms in a claim will be read narrowly in light of a narrow specification (quoting 26 Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002)). 27 With respect to the phrase "closer knit and smaller openings than the netting

28 arrangement," defendants note that in order for the stockinette member to have a greater stretch
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1 capacity and to form a shield as set forth in the "whereby" portion of Claim 1, the stockinette 2 must have a closer knit and smaller openings than the netting arrangement. The claim language 3 requires that the stockinette member be "closely knit" ­ a term that is not ambiguous. Further, 4 there is nothing in the claim language or specifications to suggest that smaller openings are 5 necessary for the stockinette member to function as intended. 6 7 8 The Court construes "stockinette member" as "a closely knit tube." 3. Netting Arrangement

Plaintiffs proposed construction of the term "netting arrangement" is "lateral and

9 longitudinal strands that intersect in locking engagement to form a grid-like pattern." Although 10 quite similar, defendants seek construction of the term as "longitudinal and lateral strands that 11 intersect in locking engagement with one another to form a grid-like pattern and having not as 12 close a knit and larger opening than the stockinette member." Defendants' construction is the 13 flip side of their construction for "stockinette member." In other words, if the construction of 14 "stockinette member" includes "having a closer knit and smaller opening than the netting 15 arrangement," the netting arrangement must have a less close knit and a larger opening that the 16 stockinette. As discussed above, this is an impermissibly narrow construction. 17 The term "netting arrangement" has a discernable plain and ordinary meaning.

18 Accordingly, the Court construes "netting arrangement"as "longitudinal and lateral strands that 19 intersect in locking engagement to form a grid-like pattern with less stretch capacity than the 20 threads of the stockinette member." 21 22 4. Strand

Plaintiffs' proposed construction of "strand" is "a yarn or yarns used in forming the

23 lateral and longitudinal structures of the netting arrangement." Defendants' construction of 24 "strand" is "elasticized or non-elasticized materials including yarn that is heavier than the yarn 25 used to form the stockinette member and having a longitudinal member and a lateral member." 26

Plaintiff asserts that there is nothing in the claim language or specifications that suggests

27 that the yarn used to form the netting arrangement must be heavier than the thread found in the 28 stockinette member. According to plaintiffs the term "strand" refers to the location of the yarn
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1 only, i.e., "strand" relates solely to the netting arrangement rather than the stockinette member. 2

By adding defendants' proposed language of "heavier than the yarn used to form the

3 stockinette member," plaintiffs properly contend defendants are limiting the claim to a preferred 4 embodiment while ignoring the second preferred embodiment that actually demonstrates the 5 composition of the yarn used to form the netting arrangement and the stockinette can be the 6 same material, i.e., yarn of the same weight instead of heavier for the netting arrangement and 7 lighter for the stockinette member. 8 The Court adopts plaintiffs' construction of the term "strand": "a yarn or yarns used in 9 forming the lateral and longitudinal structures of the netting arrangement." 10 11 5. Thread

"Thread" was not one of the terms sought to be construed by either party in the opening

12 claim construction brief; however, defendants now contend it must be construed. Plaintiffs 13 responded to defendants' proposed construction in its responsive brief and at the Markman 14 Hearing. 15 Plaintiffs construe "thread" as "a yarn or yarns used in forming the stockinette member."

16 It is undisputed that throughout the patent, "thread" is associated with the yarn used for forming 17 the stockinette member. Defendants suggest that "thread" be construed as "yarn comprising 18 cotton, polyester, nylon or other suitable materials, that is finer than the yarn used to form the 19 netting arrangement," contending this construction falls within the "ordinary and customary 20 meaning" of the term within the context of the specification, and is supported by plaintiffs' 21 expert. 22 As noted in the above discussion of the term "strand," plaintiffs contend that the terms

23 "strands" and "threads" are intended to do nothing more than describe the location of the yarns. 24 "Strand" or "strands" refer to the netting arrangement; "thread" or "threads" refer to the 25 stockinette member. Plaintiffs state they acted as their own lexicographers, which is 26 permissible. But when acting as its own lexicographer, the patentee must set forth an explicit 27 definition of the term different from its ordinary and customary meaning. Phillips, 415 F.3d at 28 1316. Plaintiffs have not done so here.
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Under the ordinary and customary meaning to a person of ordinary skill in the art in

2 question at the time of the invention, "thread" would likely be considered a finer gauge yarn than 3 a strand. This is borne out by plaintiffs' expert's testimony that the threads of the stockinette are 4 finer than the strands of the netting arrangement: 5 6 7 Q. A. Q. A. So, I believe you're indicating that a thread and a strand are both yarns, is that correct? Yes, sir. So how are they different? To me, a thread is finer, a light yarn, a thin yarn.

8 (Defendants' Exh. F, Mademann Depo. at 66). 9 Only if plaintiffs made clear they were defining "thread" differently than its ordinary and

10 customary meaning would "thread" not connote a finer gauge yard. Nevertheless, there is no 11 requirement in the claim language or the specifications that require the yarns used to make the 12 netting arrangement be heavier than those used to make the stockinette member which is clear in 13 reference to the second preferred embodiment: "the strands of the netting arrangement are knit 14 into the stockinette of the same threads which form the stockinette." 15 The Court construes "thread" as "a yarn or yarns used in forming the stockinette

16 member." 17 18 6. Longitudinal Strand

Plaintiffs seek to have the Court construe the term "longitudinal strand" as "strand or

19 strands which run in the length-wise direction of the netting structure." Defendants propose the 20 term be defined as "strands forming the netting arrangement extending in the longitudinal 21 direction which do not include any stitch loops and are not immediately next to another parallel 22 longitudinal loop."2 23 Plaintiffs base their definition on the plain and ordinary meaning because "the term has

24 no special meaning." (Plaintiffs' Opening Claim Construction at 16.) Defendants contend that 25 26
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27 strand" differ from that found in the joint claim construction statement, their responsive claim 28 construction brief and their opening claim construction brief. As a result, their arguments
concerning the these terms are found in the Markman hearing transcript. 8
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Defendants' latest construction of the terms "longitudinal strand" and "lateral

1 plaintiffs provide no support for their construction, either intrinsic or extrinsic. (Defendants' 2 Responsive Claim Construction at 15.) But according to plaintiffs, defendants' construction is 3 premised on a preferred embodiment. A particular embodiment appearing in the written 4 description may not be read into a claim when the claim language is broader than the 5 embodiment. Electro Med. Sys. S.A. v. Cooper Life Sci., Inc., 34 F.3d 1048, 1054 (Fed. Cir. 6 1994). 7 In explaining why the definition of "longitudinal strand" should not include any stitch

8 loops, defendants state that stitch loops are "the little loops in the lateral strands that connect to 9 the regular loops of the stockinette." (Markman Tr. at 73.) "When the meat product is stuffed 10 into the netting, the heavy yarn will be pulled tight, causing these little loops to disappear so that 11 the heavy yarn with be firmly pressed against the product. So if these lateral strands disappear 12 when the meat goes in there, we don't think they should be construed as a longitudinal strand." 13 Id. Defendants do not "feel that a stitch loop can contribute to a four-sided shape when it 14 disappears ­ when its longitudinal component disappears when it is stretched." Id. at 74. 15 Defendants provide no intrinsic or extrinsic evidence to support their belief and the Court finds 16 none in the claim language, specifications or prosecution history. As a result, the construction of 17 "longitudinal strand" does not require the inclusion of "which do not include any stitch loops" 18 language. 19 Defendants also seek to include language that the netting arrangement strands are "not

20 immediately next to another parallel longitudinal loop" based upon the claim language which 21 provides that the netting arrangement is comprised of a "first plurality of spaced strands" in the 22 longitudinal direction. The dispute becomes whether a strand is a single yarn or whether a 23 strand can be composed of several yarns. Plaintiffs argue that "[a] strand is a very broad concept 24 and doesn't refer to one individual filament or 2 or 3 or 20, or however many you wanted to use. 25 The strand is the structure itself; it's not the components of the structure." (Markman Tr. at 88.) 26 Plaintiffs' interpretation is based on how the term "strand" is used in Claim 1 and how it is used 27 throughout the patent. The Court agrees. Although the claim language requires that the 28 longitudinal strands be spaced in order to create the checkerboard pattern, defendants seek to
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1 limit longitudinal strands to a single component, i.e., an individual strand, by including language 2 that strands are "not immediately next to another parallel longitudinal loop." Defendants point 3 to Figure 12 which "basically shows no spacing between the longitudinal strands and basically 4 cannot create a checkerboard pattern." (Markman Tr. at 74.) It appears defendants are using the 5 term "strand" as a component rather than as a structure. When "longitudinal strands" are 6 considered as a structure, the claim language requiring that those strands be spaced needs no 7 further definition of the kind defendants suggest. Defendants have not offered any intrinsic or 8 extrinsic evidence to support this construction. 9 The Court construes "longitudinal strand" as "strand or strands which run in the length-

10 wise direction of the tubular casing." 11 12 7. Lateral Strand

The proper construction of "lateral strand" according to plaintiffs is "strand or strands

13 which run perpendicularly to longitudinal strand(s) around the circumference of the tube of the 14 netting structure." In contrast, defendants construe the term as "strands forming the netting 15 arrangement extending in the lateral direction which does not form rows of regular loops and are 16 not immediately next to another parallel lateral strand." 17 Like their definition of "longitudinal strand," plaintiffs rely on a plain and ordinary

18 meaning for the term "lateral strand", which defendants assert is unsupported. (Defendants' 19 Responsive Claim Construction at 15-16.) But as previously noted, "claim terms take on their 20 ordinary and accustomed meanings unless the patentee demonstrated an intent to deviate from 21 the ordinary and accustomed meaning of a claim term by redefining the term or by 22 characterizing the invention in the intrinsic record using words or expressions of manifest 23 exclusion or restriction, representing a clear disavowal of claim scope." Teleflex, 299 F.3d at 24 1327. 25 Defendants point to the prosecution history where plaintiffs distinguished their invention

26 from the Lombardi prior art to support their definition of "lateral strand" as not formed with 27 rows of regular loops. (Markman Tr. at 71-72.) As defendants explain, because the stockinette 28 member is formed of rows of regular loops, the lateral strand, being a component of the netting
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1 structure, cannot form rows of regular loops. Id. "If the lateral strands did form rows of regular 2 loops, we don't see how a checkerboard pattern could result in a meat product." Id. at 71-72. 3 The Court disagrees. When "strand" is construed without regard to the weight of the yarn, and 4 the stockinette member is not required to be comprised of rows of regular loops, a lateral strand 5 would function in a manner that would create the netting arrangement's intended pattern and 6 would not become part of the stockinette member shield. 7 Defendants' proposed inclusion of language that the netting arrangement strands are "not

8 immediately next to another parallel lateral strand" is based upon the claim language which 9 provides that the netting arrangement is comprised of a "second plurality of spaced strands" in 10 the lateral direction. But as with defendants' argument concerning their proposed construction 11 of longitudinal strands, i.e., they are "not immediately next to another parallel longitudinal 12 loop," defendants are using the term "strand" as a component rather than as a structure. As set 13 forth in the claim language, the structure of lateral strands is spaced. Defendants have not 14 offered any intrinsic or extrinsic evidence that shows plaintiffs intended to deviate from the plain 15 and ordinary meaning of the term. Accordingly, no additional defining terms are needed. 16

The Court construes "lateral strand" as "strand or strands which run perpendicularly to
8. Locking Engagement

17 longitudinal strand(s) around the circumference of the tubular casing." 18 19

Plaintiffs propose the proper construction of "locking engagement" as "the intersection of

20 the longitudinal and lateral structures to form a netting arrangement." Defendants' proposed 21 construction is: "each longitudinal strand of the netting arrangement is interlaced with an 22 adjacent preceding longitudinal strand of the netting arrangement and an adjacent following 23 longitudinal strand of the netting arrangement wherein the longitudinal strands of the netting 24 arrangement are not separated from one another by a row of regular loops." 25 "Intersection" or "intersecting" is not a term that is subject to construction here: "Both

26 Plaintiffs and Defendants have agreed that the term `intersecting' should be defined as having, as 27 two geometrical loci, one or more points in common: intersecting strands." (Defendants' 28 Opening Claim Construction at 21.) As noted above, plaintiffs' proposed construction of
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1 "locking engagement" is the mere intersection of the lateral and longitudinal strands ­ the 2 strands of the netting arrangement having one or more points in common. This definition does 3 not suggest that the intersection of strands is fixed in making the netting arrangement. Claim 1 4 speaks of the longitudinal and lateral strands of the netting arrangement "each intersecting in 5 locking engagement"; therefore, "locking engagement" is the "how" the strands are meant to 6 intersect, and not the intersection itself. As plaintiffs assert: "All we say is locking engagement 7 means the intersection of longitudinal and lateral structures to form a netting arrangement. They 8 have to be locked at the corners in order to be a net by definition." (Markman Trans. at 43. 9 (emphasis added)) Plaintiffs' proposed construction does not define or even reference that the 10 intersection of the netting arrangement strands is fixed or locked in any manner. Consequently, 11 plaintiffs' construction is rejected. 12 Nevertheless, "locking engagement" has a plain and ordinary meaning within this patent,

13 i.e., at the intersection of the lateral and longitudinal strands, the strands are fixed so as to 14 prevent the strands from shifting. Relying on a "plain and ordinary meaning" may be inadequate 15 when a term has more than one "ordinary" meaning but in the present case the term is not 16 ambiguous nor have plaintiffs restricted the term in the specifications. See Teleflex, Inc. v. 17 Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002) (requiring "words or expressions of 18 manifest exclusion or restriction" before broad terms in a claim will be read narrowly in light of 19 a narrow specification"). 20 The term "locking engagement" was defined for the first time in the prosecution history

21 and according to defendants, "[i]n order to more clearly distinguish Applicant's claimed 22 invention over Henricus and Lombardi." (Defendants' Exh. B 148.) Plaintiffs amended what 23 was then claim 15 "to specify that the longitudinal and lateral strands of the netting arrangement 24 each intersect in locking engagement with one another to form a grid-like pattern comprising a 25 plurality of four-sided shapes." Id. 26 27 28 Plaintiff further stated in the prosecution history: As it is apparent from Figs. 1 and 2 of the present application, the longitudinal strands of 5 and the lateral strands of 7 each intersect with one another to form a grid-like pattern comprising a plurality of four-sided shapes. Each loop 9 of the
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lateral strands 7 is interlaced with an adjacent preceding loop and an adjacent following loop to thereby provide a locking engagement between the longitudinal and lateral strands at their point of intersection, the longitudinal stands 5 being formed by the interlaced aligned loops 9 . . .

4 (Defendants' Exh. B 148-149. (emphasis added)) 5 Citing this amendment, defendants contend that their proposed construction of the term

6 "locking engagement" is what plaintiffs explicitly defined in their amendment to claim 15, 7 which became independent Claim 1: an interlacing of an adjacent preceding loop and an adjacent 8 following loop of the longitudinal and lateral strands at their intersection. But the term 9 "interlacing" is a means of creating a locking engagement but not necessarily the only means of 10 creating a locking engagement and the first and second preferred embodiments do not 11 demonstrate an interlacing of an adjacent preceding loop and an adjacent following loop 12 Defendants also contend that plaintiffs affirmatively stated what the term "locking

13 engagement" did not include ­ rows of regular loops separating the "locking engagements" of 14 the longitudinal strands. Defendants point to the prosecution history where plaintiffs 15 distinguished their invention over Lombardi. 16 17 18 19 20 21 In Lombardi, each loop of special yarn [the netting arrangement] extending in the longitudinal direction does not intersect in locking engagement with each special yarn extending in the lateral direction to form a grid-like pattern. This is also apparent from Fig. 6 of Lombardi, where the aligned long loops of special yarn are each separated from one another by a row of regular loops [the stockinett member]. Accordingly, there is no teaching or suggestion whatsoever in Lombardi in respect of providing a knitted netting arrangment comprising a first plurality of spaced strands extending in the longitudinal direction and a second plurality of spaced strands extending in the lateral direction, wherein the longitudinal and lateral strands each intersect in locking engagement with one another to form a grid-like pattern, as in Applicant's claimed invention.

22 (Defendants' Exh. at B 151. (underlining in original; italic added)) 23 Once again, defendants are attempting to read a feature of the third preferred embodiment

24 into the claim as a limitation while ignoring the first and second preferred embodiments. 25 Based on the unambiguous meaning of the term, the Court construes "locking

26 engagement" as "fixed at each intersection." 27 28 9. Checkerboard Pattern

The parties are in substantial agreement concerning the phase "checkerboard pattern":
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1 "parallel vertical and horizontal impressions and crossing at right angles which results in a four 2 sided impression." But defendants contend the phrase "approximately equidistant" should be 3 added to the definition. This argument is based on the plain and ordinary meaning of 4 "checkerboard pattern" and on defendants' expert's testimony that such a shape is square. 5 Plaintiffs argue that adding "approximately equidistant" improperly narrows the construction in 6 that a checkerboard pattern is not limited to perfect squares. Because of the second-stretch 7 capacity of the netting arrangement, the indentations may not appear on the meat products as 8 perfect squares but the basic shape of the netting arrangement is an approximate square. The 9 plain and ordinary meaning of the term "checkerboard pattern" includes "approximately 10 equidistant". 11 The Court construes "checkerboard pattern" as: "parallel vertical and horizontal 12 impressions approximately equidistant and crossing at right angles which result in a four-sided 13 impression." 14 IT IS SO ORDERED.

15 DATED: February 13, 2009 16 17 18 COPY TO: 19 HON. CATHY ANN BENCIVENGO UNITED STATES MAGISTRATE JUDGE 20 21 ALL PARTIES/COUNSEL 22 23 24 25 26 27 28
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M. James Lorenz United States District Court Judge