Probatter Sports, LLC v. Sports Tutor, Inc

Filing 274

ORDER on the parties' 245 and 247 Motions for Claim Construction. See the attached claim construction ruling. The Court also sets a telephonic status conference for 4/16/2014 at 2:00 PM before Judge Vanessa L. Bryant to discuss the claim c onstruction ruling and the case schedule. The parties are ordered to call Chambers at 860-240-3123 with all parties on the line. In the alternative, the parties may call or email Chambers to distribute a dial-in number to the Court. Signed by Judge Vanessa L. Bryant on 3/31/2014.(Burkart, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

PROBATTER SPORTS, LLC,
Plaintiff,
v.
SPORTS TUTOR, INC.,
Defendant.

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CIVIL ACTION NO.
3:05-CV-01975 (VLB)

March 31, 2014

CLAIM CONSTRUCTION OF DISPUTED TERMS

I.

Introduction

The Plaintiff, Probatter Sports, LLC (“Probatter”), filed this action against the
Defendant, Sports Tutor, Inc. (“Sports Tutor”), alleging patent infringement and
related claims arising out of the Defendant’s alleged infringement of the Plaintiff’s
U.S. Patent Nos. 6,182,649 (the “‘649 Patent”) and 6,546,924 (the “‘924 Patent”), in
violation of 35 U.S.C. §§ 271, 281-85. Pursuant to the Court’s scheduling order
issued on May 31, 2013, the parties submitted claim construction briefs, which
serve as the basis for this order.
II.

Background

The Plaintiff, the owner of the patents at issue in this case, was assigned the
patents on January 16, 2002. [Dkt. 246, Plaintiff’s Original Markman Brief in
Support of its Motion for Claim Construction, p. 1]. These patents are directed to
a unique ball-throwing machine, in particular one that is used as a pitching
machine for baseball, softball, and cricket. The devices in issue are used by
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numerous Major League Baseball teams, college teams, and hundreds of
commercial batting cages and cricket clubs worldwide. [Id.].
This action was originally commenced on December 28, 2005, but was stayed
while the parties pursued separate reexamination proceedings at the United
States Patent and Trademark Office (“PTO”). The PTO issued final rejections of
all claims of both patents in suit in November 2009, but the Plaintiff appealed
these decisions in 2010 to the Board of Patent Appeals and Interferences (the
“Board”). On December 21, 2011, the Board unanimously reversed the PTO
Examiner and held all claims of both patents in issue patentable as amended and
distinguishable over the prior art of record. [Id. at p. 2]. A subsequent
reexamination request was filed, but the PTO Examiner found that the claims of
the patents were patentable as amended. The request for claim construction and
these Markman briefs followed.
III.

Legal Standard

Resolution of a patent infringement case entails a two-step process, the first
of which is claim construction, and the second of which is a comparison of the
patented device or process to the accused device or process applying the terms
as construed. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed. Cir.
1998). Only those terms that are in controversy need to be construed, and the
construction only needs to be to the extent necessary to resolve the controversy.
Vivid Techs., Inc. v. Am. Science & Eng’g, Inc., 200 F.3d 795, 804 (Fed. Cir. 1999).
Claim construction, furthermore, is a question of law, and the Court has the
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exclusive power to construe “the meaning of the language used in the patent
claim.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-79 (Fed. Cir.
1995), aff’d, 517 U.S. 370 (1996); 3M Innovative Props. Co. v. Tredegar Corp., 725
F.3d 1315, 1321 (Fed. Cir. 2013). Accordingly, “[c]laim construction is a legal
statement of the scope of the patent right; it does not turn on witness credibility,
but on the content of the patent documents.” Lighting Ballast Control LLC v.
Philips Elecs. N. Am. Corp., No. 2012-1014, 2014 WL 667499, at *9 (Fed. Cir. Feb.
21, 2014) (en banc).
Procedurally, when constructing patent claims, “claim terms are given their
ordinary and customary meaning, as they would be understood by one of
ordinary skill in the art in question at the time of the invention.” 3M Innovative
Props. Co., 725 F.3d at 1321. However, “[i]diosyncratic language, highly technical
terms, or terms coined by the inventor are best understood by reference to the
specification.” Id.; see also SkinMedica, Inc. v. Histogen Inc., 727 F.3d 1187, 1195
(Fed. Cir. 2013) (“The words of a claim are generally given their ordinary and
customary meaning as understood by a person of ordinary skill in the art when
read in the context of the speciation and prosecution history.” (quoting Thorner
v. Sony Comp. Entm't Am. LLC, 669 F.3d 1362, 1365–67 (Fed. Cir. 2012)).
Accordingly, although claim construction is dependent on the language of the
claims themselves, it requires reading that language “in view of the specification,
of which they are a part.” Pressure Prods. Med. Supplies, Inc. v. Greatbatch Ltd.,
599 F.3d 1308, 1314 (Fed. Cir. 2010) (quoting Phillips v. AWH Corp., 415 F.3d 1303,
1314-15 (Fed. Cir. 2005)). Even though the specification informs the Court as to
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the use of the terms in the claims, “limitations discussed in the specification may
not be read into the claims.” 3M Innovative Props. Co., 725 F.3d at 1321 (citing
Intervet Inc. v. Merial Ltd., 617 F.3d 1282, 1287 (Fed. Cir. 2010)). Similarly, while
the prosecution history is used, as needed, to inform the Court of the use of the
claim terms, courts should not “rely on the prosecution history to construe the
meaning of the claim to be narrower than it would otherwise be unless a patentee
limited or surrendered claim scope through a clear and unmistakable disavowal.”
3M Innovative Props. Co., 725 F.3d at 1321-22 (citing Pass & Seymour, Inc. v. Int’l
Trade Comm’n, 617 F.3d 1319, 1327 (Fed. Cir. 2010); Trading Tech. Int’l, Inc. v.
eSpeed, Inc., 595 F.3d 1340, 1352 (Fed. Cir. 2010)); see also Tempo Lighting, Inc.
v. Tivoli, LLC, 742 F.3d 973 (Fed. Cir. 2014) (“In claim construction, the court
gives primacy to the language of the claims, followed by the specification.
Additionally, the prosecution history, while not literally within the patent
document, serves as intrinsic evidence for purposes of claim construction.”).
An applicant may also express an element of a claim “as a means or step for
performing a specified function . . . and such claim shall be construed to cover
the corresponding structure . . . described in the specification and equivalents
thereof.” 35 U.S.C. § 112(f). Accordingly, “[i]n exchange for the ability to use a
generic means expression for claim limitation, the ‘applicant must indicate in the
specification what structure constitutes the means.’” Ergo Licensing, LLC v.
CareFusion 303, Inc., 673 F.3d 1361, 1363 (Fed. Cir. 2012) (quoting Biomedino,
LLC v. Waters Techs. Corp., 490 F.3d 946, 948 (Fed. Cir. 2007)). “Such structure
‘must be clearly linked or associated with the claimed function.’” Id. (quoting
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Med. Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1219 (Fed.
Cir. 2003)). “If the applicant does not disclose structure for a means-plusfunction term, the claim is indefinite.” Id. When a claim includes the word
“means,” a presumption applies that the means-plus-function analysis should be
used. See Lighting Ballast Control LLC v. Philips Elecs. N. Am. Corp., 498 F.
App'x 986, 991-92 (Fed. Cir. 2013), reh'g en banc granted, opinion vacated sub
nom., 500 F. App'x 951 (Fed. Cir. 2013) and on reh'g en banc sub nom., No. 20121014, 2014 WL 667499 (Fed. Cir. Feb. 21, 2014).
“To determine whether a means-plus-function limitation is definite, a court
applies a two-step analysis. First, the court must identify the particular claimed
function. . . . Second, the court must look to the specification and identify the
corresponding structure, material, or acts that perform that function.” Creative
Integrated Sys. Inc. v. Nintendo of Am., Inc., 526 F. App’x 927, 936 (Fed. Cir. 2013)
(citing HTC Corp. v. IPCom GmbH & Co., KG, 667 F.3d 1270, 1278 (Fed. Cir. 2012)).
Other decisions have also required a third step: the “‘[s]tructure disclosed in the
specification is ‘corresponding’ structure only if the specification or prosecution
history clearly links or associates that structure to the function recited in the
claim.’” Kinzenbaw v. Case LLC, 179 Fed. App’x 20, 24 (Fed. Cir. 2006) (quoting
Altiris, Inc. v. Symantec Corp., 318F.3d 1363, 1375 (Fed Cir. 2003)). “‘[A]
challenge to a claim containing a means-plus-function limitation as lacking
structural support requires a finding, by clear and convincing evidence, that the
specification lacks disclosure of structure sufficient to be understood by one

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skilled in the art as being adequate to perform the recited function.’” Id. (quoting
Budde v. Harley-Davidson, Inc., 250 F.3d 1369, 1376-77 (Fed. Cir. 2001)).
IV.

Analysis
A. Specific Claim Construction Terms

In this case, the Plaintiff is asserting against the Defendant claims 1, 2, 3, 4, 5,
7, 8, 9, 10, 11, 12, 25, 26, 27 and 31 of the ‘649 Patent and claim 1 of the ‘924
Patent. The parties dispute the meaning of several specific terms and means
clauses found in the patent claims. The Court will address the individual terms
issues first.
i. Power Head
The term “power head” is used in most, but not all of the claims. Specifically,
it is used in claims 2, 3, 4, 7, 8, 11, 25, 26, 27, and 31 of the ‘649 Patent. The
parties’ construction of this term diverges on the number of wheels required to
comprise a “power head” and the sufficiency of the term “power head.” The
Plaintiff argues that the proper construction of this term is “a power head
including at least one and, preferably, three coacting wheels.” [Dkt. 249,
Plaintiff’s Original Markman Brief in Support of its Motion for Claim Construction,
p. 7]. The Defendant disagrees that the term can retain its plain meaning and that
a “power head” might have one wheel, but believes this issue is moot because
none of the devices at issue have one wheel.

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Neither the claim nor the specification states that the patented device’s
“power head” must have more than one wheel. Moreover, the specification states
that the “present invention, in brief summary, comprises a ball-throwing machine
of the type having a power head including at least one and, preferably, three
coacting wheels for propelling a ball toward a batter to simulate a pitch.” ‘649
Patent, col. 3, ll. 63-67. The transitional term “including” is not a limiting term and
use of the phrase “at least one” by definition explicitly includes one. Even if it
were a limiting term, it is a preferred embodiment to have “at least two and
preferably three coacting drive wheels.” Courts should be particularly restrained
in reading limitations listed as a preferred embodiment into the patent claims.
See N. Am. Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 1347-48
(Fed. Cir. 2005). However, as the infringing machine has more than one wheel in
the “power head,” the Court need not determine whether a power head can have
only one wheel. Vivid Techs, Inc., 200 F.3d at 804.
The Defendant also argues that the term “power head” should be given the
neutral definition of “assembly” instead of not being defined. [Dkt. 250,
Defendant, Sports Tutor, Inc.’s Response to Plaintiff’s Motion for Claim
Construction, p. 2, 13]. The Court agrees that the term “power head” does not
have an ordinary meaning easily discernable from the claims and should be given
a neutral term that describes its function. The specification describes the
machine as including a “power head having at least two and preferably three
coacting drive wheels 70A, 70B and 70C . . . which serve to propel a ball
introduced into the machine toward a desired location.” ‘694 Patent, col. 5, ll. 417

45. Furthermore, the specification also shows that the “power head” is
comprised of several different components, including, among other things,
coacting wheels. Id. at col. 5, ll. 45-50. Therefore, the Court agrees that the
Defendant’s proposed construction for power head as an “assembly” is correct,
but should be modified slightly to be more descriptive. Accordingly, the Court
adopts the construction “ball-propelling assembly.”
ii. Center Pivot
The term “center pivot” is used in claims 7, 8, 25, 26, 27 and 31 of the ‘649
Patent. The Plaintiff argues that the term “center pivot” does not need to be
defined and should be given its plain meaning because any other definition would
be inappropriately restrictive. [Dkt. 246, p. 7-8]. The Defendant argues that the
Plaintiff has conceded in its prior briefing that the term “center pivot” means “ball
joint” and has used the terms interchangeably in the patent. [Dkt. 250, p. 14].
Accordingly, the Defendant asks the Court to define “center pivot” as a “ball
joint.”
The term “ball joint” first appears in the “Brief Description of the Preferred
Embodiments” section of the ‘649 Patent at col. 6, l. 32. There it states that “[t]he
upper portion 12 of the machine 10 is pivotally mounted to a base plate 30 at a
center ball joint 40.” Later it clarifies that “[t]he power head 20 is adapted to pivot
in a horizontal plane about the center ball joint 40 in order to change the
horizontal position of the power head 20 relative to a center position and,
therefore, the angle at which a ball is delivered to a batter.” ‘649 Patent, col. 6, ll.
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51-55. Similarly, the ‘924 Patent has a “Brief Description of the Preferred
Embodiments” section which also states that “[t]he upper portion 12 of the
machine 10 is pivotally mounted to a base plate 30 at a center ball joint 40.” ‘924
Patent, col. 6, ll. 37-38. The only time the term “ball joint” is used is in reference
to the portion of diagram labeled “40.” However, none of the ‘649 or ‘924 Patent
claims use the term “ball joint,” nor does it appear in the Background or
Summary of the Invention sections in the patents. The term “ball joint” only
appears to be used interchangeably with “center pivot” in the Preferred
Embodiments section. The primacy of the claim language is well established.
Tempo Lighting, Inc., 742 F.3d at 977. The Court, therefore, should not limit a
claim based on the specification “when the claim language is broader than such
embodiments[,]” absent some inherent limitation in the device’s actual design.
KJC Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000); see also
Pressure Prods. Med. Supplies, Inc., 599 F.3d at 1314; 3M Innovative Props. Co.,
725 F.3d at 1321 (“[L]imitations discussed in the specification may not be read
into the claims.”) (citing Intervet Inc. v. Merial Ltd., 617 F.3d 1282, 1287 (Fed. Cir.
2010)). While the preferred embodiment depicted in the diagram may have been a
ball joint, the patent claims are not so limiting so as to exclude other center
pivots. Further, the term “center pivot” is a term of common parlance generally
understood by one of ordinary skill in the art in question at the time of the
invention as any pin, shaft, or ball joint around which objects can rotate or pivot.
Therefore, a “center pivot” can include but is not entirely limited to a “ball joint.”
“Center pivot” is not a highly technical or idiosyncratic term coined by the
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inventor, requiring construction by the Court. 3M Innovative Props. Co., 725 F.3d
at 1321. Accordingly, this term is not ambiguous and needs no description
beyond that already contained in the specification.
iii. Programmable Controller
Both parties agree that the term “programmable controller” should be defined
as Judge Reade defined the term in the Iowa litigation. That court dually-defined
a programmable controller as:
a control device, normally used in industrial control
applications, that employs the hardware architecture of
a computer and a relay ladder diagram language. Also
known as a programmable logic controller.
Programmable controllers . . . Electronic computers that
are used for the control of machines and manufacturing
processes through the implementation of specific
functions such as logic, sequencing, timing, counting,
and arithmetic. They are also known as programmable
logic controllers (PLCs).
[Dkt. 267-1, Joint Claim Construction Claim Chart, p. 26-27]. Seeing no reason to
depart from this definition given the parties’ agreement, the Court adopts that
construction.
iv. Ball and Batter
The parties state that they agree on the construction of these terms, but that
agreement appears to be misleading. The parties agree that “ball” should be
construed as any ball. [Dkt. 247, Sport’s Tutor’s Motion for Claim Construction,
p. 13; Dkt. 253, Plaintiff’s Opposition to Defendant’s Motion for Claim
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Construction, p. 12]. However, the Defendant seems to construe “batter” as “any
player,” while the Plaintiff states that batter should be given its plain meaning,
and be construed as any batter. [Dkt. 247, p. 13; Dkt. 253, p. 12]. The Court
agrees that the term “batter” is unambiguous and clear on its face. The
general rule that the ordinary meaning of an
unambiguous claim term controls is subject to two
limitations. First, a patentee may choose to be his own
lexicographer and use terms in a manner other than
their ordinary meaning, as long as the special definition
of the term is clearly stated in the patent specification. . .
. Second, even where the ordinary meaning of the claim
is clear, it is well-established that the prosecution
history limits the interpretation of claim terms so as to
exclude any interpretation that was disclaimed during
prosecution.
Inverness Med. Switzerland GmbH v. Princeton Biomeditech Corp., 309 F.3d 1365,
1371-72 (Fed. Cir. 2002) (citations and internal quotation marks omitted); see also
Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1329 (Fed. Cir. 2009)
(same). Here, the term batter is unambiguous, and none of the exceptions apply
because the Plaintiff is actually requesting the more limited application of the
term. Batters are by definition not all players, but merely a subset of players.
Even though the specification permits the machine to be used to throw lacrosse
balls and tennis balls, that language is not clear enough to constitute a special
definition of the term batter to include any player of any sport as some sports,
such as lacrosse and tennis, do not have batters. Therefore, the use of the
specification would inappropriately broaden the claims. As stated above, since
the term “batter” is not scientific or a term of engineering art, it does not require
further construction for the jury.
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v. Dynamic Braking
The parties agree that the construction of the term “dynamic braking” should
be “any system that uses a motor as a generator to brake regardless of how the
generated energy is handled” and includes “regenerative braking.” [Dkt. 246, p.
10; Dkt. 255, Sport’s Tutor’s Reply in Support of Motion for Claim Construction, p.
2]. The Court need not construe this term as the parties agree on its
construction.
B. Means Plus Function Terms
The parties have several conflicting constructions related to “means” clauses
in the patents, but they do agree that each qualifies as a means clause under 35
U.S.C. § 112(f). In the context of this case, these clauses require the Court to
conduct the two-step means-plus-function analysis. See Creative Integrated Sys.
Inc., 526 F. App’x at 936 (“First, the court must identify the particular claimed
function. . . . Second, the court must look to the specification and identify the
corresponding structure, material, or acts that perform that function.”).
i.

“dynamic braking means”

The dynamic braking means clause claims “dynamic braking means for
rapidly decelerating the speed” of either “at least one wheel” or “each wheel,”
depending on the claim, and is recited in claims 1, 2, 3, 26, 27, and 31 of the ‘649
Patent and claim 1 of the ‘924 Patent. The function of this clause, as described in
the claim itself, is to rapidly decelerate the speed of the wheel through the use of
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dynamic braking tools. The relevant portion of the specification states “[w]hile
drive motors 80 can be virtually any DC or AC motor with sufficient power to
rotate the wheels 70A-70C at the desired speeds, one of the essential elements of
this machine 10 is the ability to rapidly accelerate and decelerate the coacting
wheels 70A-70C to permit the machine to interchangeably deliver a variety of
different pitches in a relatively short period of time, i.e. less than 7-10 seconds.”
‘649 Patent, col. 8, ll. 40-47. “The DC motors heretofore used by other ballthrowing machines were found to be incapable of achieving the rapid
acceleration and deceleration of the coacting wheels required for such a
machine.” Id. col. 8, ll. 53-57. However, “[i]t has been determined that such rapid
and accurate acceleration and deceleration of the wheels can be easily achieved
by the use of AC motors with companion motor drives including dynamic or
regenerative braking circuits.” Id. col. 8, ll. 64-67. The Defendant argues that the
specification creates no link to DC motors, only to AC motors, but the Plaintiff
maintains that both DC motors and AC motors are incorporated into the patent.
[Dkt. 247, p. 8; Dkt. 253, p. 9-11].
The claims of the ‘649 Patent include both AC and DC motors unless
specifically limited by a transitional limiting term because the term motors is
generally used in the claims. Claim 6 provides for “[t]he ball-throwing machine of
claim 5, wherein said motor is an AC motor.” The transitional term “wherein,”
while not one of the traditional limiting transitional terms, is synonymous with
other commonly used limiting terms and is clearly used here to limit this
dependent claim to machines having an AC motor only. See MPEP § 2111.03
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(discussing various traditional transitional terms and their effect, including that
“‘consisting of’ excludes any element, step, or ingredient not specified in the
claim”); Vehicular Techs. Corp. v. Titan Wheel Intern. Inc., 212 F.3d 1377, 1382
(Fed. Cir. 2000) (“The phrase ‘consisting of’ is a term of art in patent law
signifying restriction and exclusion, while, in contrast, the term ‘comprising’
indicates an open-ended construction.” (citations omitted)); see also Ex parte
Uwe Schümann, Ulrike Wappler, Ralf Hirsch, Andreas Beckmann and Andree
Bernoth, No. 2008-5943, 2009 WL 871152, at *2 (B.P.A.I. March 30, 2009)
(determining that the transitional term “wherein” should be given its plain
meaning in light of the specification). Here the term “wherein” is qualified only
by the verb “is,” such that the device in Claim 6 must have an AC motor serving
as the motor described in Claim 5. The clear import of that transitional phrase,
therefore, is to distinguish Claims 5 and 6, the distinction being that claim 5
includes either an AC or a DC motor, while the dependent claim 6 consists only of
an AC motor. This conclusion is further supported by the fact that none of the
other claims reference any particular type of motor, despite the fact that a motor
is an essential component of the device. Accordingly, all but claim 6 of the ‘649
Patent may be comprised of either AC and DC motors.
Regardless of the foregoing analysis, the means clause at issue here makes a
keen distinction between accelerating and decelerating the wheels. In this means
clause, the correlative function is that which is used to decelerate the wheels
using dynamic tools. As the Plaintiff described, “‘dynamic braking’ is any system
that uses a motor as a generator to brake regardless of how the generated energy
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is handled.” [Dkt. 246, p. 10]. Therefore, what makes the wheels rapidly
decelerate in this device is the use of companion motors with dynamic braking
circuits, which are additions to drive motors, and are used to store or otherwise
use the heat generated from the drive motors when braking occurs. The
specification clearly links the use of virtually any drive motor with sufficient
power to rotate the wheels, albeit DC or AC motor drives, for acceleration.
However, the deceleration component seems to only be tied to the companion
motor drives with dynamic braking circuits. Furthermore, neither the
specification nor the claims specify what type of companion motor drive is
required. This understanding is confirmed later when the specification states
that “[i]t is important that these AC motor drives include a dynamic or
regenerative braking circuit to permit rapid deceleration of the coacting wheels
70A-70C in order to allow the rapid interchangeability of pitches.” Id. at col. 9, ll.
7-10. Accordingly, “companion motor drives with dynamic, including
regenerative, braking circuits” is this structure that is tied to the function in this
means clause. Furthermore, there is no limitation in the specification or in the
claims as to which type of companion motor drives can be employed. Therefore,
the proper structures tied to this means clause are all companion motors drives
with dynamic, including regenerative, braking circuits.
ii.

“means for causing”

There are several “means for causing” clauses found in the ‘649 Patent, which
can be broken down into four groups: means for causing each of said wheels to
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rotate at a predetermined speed, means for causing the power head to assume a
predetermined horizontal position, means for the power head to assume a
predetermined vertical position, and means for causing the power head to rotate
around the center pivot. See ‘649 Patent claims 3, 8, 27, and 31.
1. Rotational speed
The first clause group relates to the rotational speed of the wheels. The
clause claims the “means for causing each of said wheels to rotate at a
predetermined speed.” Id. The parties agree that the function of this means
clause is to accelerate and decelerate the speed of the wheels rapidly and
accurately enough to deliver a variety of different types of pitches with less than
ten second intervals between throws. See ‘649 Patent, col. 8, ll. 35-63.
As discussed previously, the structures related to the dynamic braking
deceleration of the wheels are companion motor drives with dynamic, including
regenerative, braking circuits. Therefore, the remaining structures necessary to
cause acceleration of the wheels are covered by this clause because causing
accurate rotation speed of the wheels, which could require either a faster or
slower speed, requires both rapid acceleration and rapid deceleration to attain
the predetermined speed. The remaining structures identified in the specification
for acceleration are those related to the drive motors. The specification states
that “[t]he coacting wheels 70A-70C are each powered by drive motors. . . . While
drive motors 80 can be virtually any DC or AC motor with sufficient power to
rotate the wheels 70A-70C at the desired speeds, one of the essential elements of
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this machine 10 is the ability to rapidly accelerate and decelerate the coacting
wheels . . . .” ‘649 Patent, col. 8, ll. 35-44. The specification goes on to conclude
that DC motors used previously, impliedly without companion motor drives with
dynamic braking circuits, have been unable to achieve the necessary acceleration
and deceleration to perform the requisite functions of the machine. Id. col. 8, ll.
53-57. Furthermore, “[i]t has been determined that such rapid and accurate
acceleration and deceleration of the wheels can be easily achieved by the use of
AC motors with companion motor drives including dynamic or regenerative
braking circuits.” Id. col. 8, ll. 64-67. The Defendant argues that these excerpts
prove that the specification only links AC motors with this function because the
Plaintiff acknowledged that DC motors were previously incapable of achieving the
necessary rapid acceleration and deceleration for the machine to perform as the
patent requires. [Dkt. 247, 9-11]. The Plaintiff, however, argues that it has
sufficiently linked any drive motor that has sufficient power to generate the
requisite acceleration and deceleration, including AC and DC motors. [Dkt. 246,
p. 14]. As discussed above, the patents encompass both AC and DC motors.
Here, the Plaintiff has concluded that “virtually any” DC or AC motor can be
used to accelerate the wheels if it has sufficient power to do so, but that the DC
motors used by its predecessors were alone incapable of achieving the results of
the patented device. The addition that made the results attainable was not
necessarily the use of an AC drive motor as opposed to a DC drive motor, but the
inclusion of the dynamic braking means discussed supra. Therefore, the proper
reading of the specification is that any drive motor with sufficient power to
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accelerate the wheels can be used to accelerate and decelerate the wheels as
long as companion motor drives with dynamic braking components are included.
The specification continues by stating that the Plaintiff found it relatively easy to
achieve the desired results using an AC motor drive with companion motor drives
with dynamic braking circuits. When read together, it is not clear that the
specification limits the use of motor drives to AC motors; instead, this is merely a
preferred embodiment. Nowhere in the specification does it state, as the
Defendant would like this Court to hold, that DC motors with companion motor
drives including dynamic or regenerative braking circuits cannot achieve the
same results as the preferred embodiment. The Defendant, therefore, is asking
the Court to read a limitation only found in a preferred embodiment into the
patent’s claims, but this Court must be weary of construing a limitation from the
specification not found in the claims into the design of the device. See N. Am.
Container, Inc., 415 F.3d at 1347-48.
The claim differentiation doctrine further supports this Court’s construction.
As discussed previously, an AC motor is never listed as a required component of
the machine until the dependent claim 6, which in turn refers to prior claims that
only generally require a motor and a drive control. See ‘649 Patent claims 3, 5, 6.
Therefore, the later dependent claims are more specific than and do not limit the
prior independent claims. Generally, claim differentiation, a standard maxim for
interpreting patent claims, refers to the “presumption that an independent claim
should not be construed as requiring a limitation added by a dependent claim.”
Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1380 (Fed. Cir.
18

2006). Accordingly here, the later dependent claim requiring the AC drive motor
should not be used to limit the prior independent claims that do not specify what
type of drive motor is required.
However, courts are cautioned that claim differentiation cannot be used to
broaden claims beyond their correct scope. Id. at 1381. Reading the sequence of
claims in the ‘649 Patent along with the details in the specification, the Court is of
the view that the claim differentiation presumption would not broaden the patent
claims because the claims properly provide that any drive motor, including DC
and AC motors, with companion motor drives including dynamic or regenerative
braking circuits can be used to achieve the results of the patented machine.
The Defendant argues that this case should be governed by the court’s logic
in Curtiss-Wright Flow Control Corp. In that opinion, the court ruled that the
district court erred in using the claim differentiation doctrine to give the plain
meaning to the word “adjustable” because it “went too far in completely
eliminating any constraints on the ‘adjustable limitation.’” Curtiss-Wright Flow
Control Corp, 438 F.3d at 1381. Here, however, the ‘649 Patent is not being
interpreted nearly as broadly as in that case. In our case, the specification and
claim differentiation reach the same end: the patent of a device that can use any
motor with sufficient power to rotate all of the wheels with companion motor
drives with dynamic, including regenerative, braking circuits. The claims,
therefore, are not being broadened beyond their scope.

19

The parties also agree that the “programmable controller” is also necessary
for this means clause. [Dkt. 267-1, p. 6-7; Dkt. 250, p. 4]. Absent the parties’
agreement, however, the Court would view the terms “cause” and “control,” used
in the various means clauses, as being substantively different. The Court would
take the view that the “means for causing” clauses and “means for controlling”
clauses would implicate different structures because the functions described are
different, as detailed in the specification and in the claims. For example, several
of the claims use a combination of the “means for controlling” and “means for
causing” clauses. Claim 3 of the ‘649 Patent provides for a machine with the
means for causing each of said wheels to rotate at a
predetermined speed; . . .
means for causing the power head to assume a
predetermined horizontal position;
means for causing the power head to assume a
predetermined vertical position; and
means for controlling the rotational speed of each
wheel, the horizontal position of the power head and the
vertical position of the power head . . . .
Rendering the “means for causing” clauses equivalent to the “means for
controlling clauses” would make this claim redundant and parts of the claim
superfluous because the controlling clauses, which come after the causing
clauses, add nothing to the claim.
The Court’s interpretation is supported by the specification language because
the terms cause and control are not used interchangeably, but are used to define
a specific subset of structures. For example, the specification states that “[t]he
20

ball-throwing machine 10 of the present invention is controlled by a
programmable control unit 200 that is housed in a separate control box . . . [t]he
control unit 200 includes drive motor controls 202A-202C, which are
electronically connected to and control their respective drive motors 80A-80C.”
‘649 Patent, col. 10, ll. 4-17 (emphasis added). The explicit use of the word
“control” as it relates to the programmable control unit and the drive motor
controls helps the Court to identify those structures that are used to control the
various functions of the device as opposed to those that ultimately cause the
result when triggered by the controlling component. The specification, therefore,
separates the structures that “cause” certain functions and those that “control”
those causes.
As related to controlling the machine, the specification generally provides that
“[t]he ball-throwing machine 10 of the present invention is controlled by a
programmable control unit 200 that is housed in a separate control box . . . the
control unit 200 is electrically connected to and provides the controls for the ballthrowing machine 10 of the present invention.” ‘649 Patent, col. 10, ll. 4-13.
Furthermore, “[a] programmable controller 208 is provided to control all of the
various operations of the ball-throwing machine.” Id. at col. 10, ll. 27-29.
Accordingly, the linked structures to control the entire machine are the
programmable control unit that is electrically connected to the machine and a
programmable controller, as defined supra.

21

Aside from the two general control devices, there are also specific controls
related to the rotation speed of the wheels. The function associated with this
clause is the ability to control the amount of acceleration and deceleration of
each wheel to ensure that the device can deliver the desired pitches. The
specification provides that “the control unit 200 includes drive motor controls
202A-202C, which are electrically connected to and control their respective drive
motors 80A-80C." ‘649 Patent, col. 10, ll. 14-17. Evidently, the structures that are
tied to the function of controlling the respective motors that rotate the wheels are
the drive motor controls. Therefore, the construction of the controlling means
clause should be a programmable controller and a control unit with drive motor
controls. In the Courts view, these control structures do not “cause” the wheels
to rotate at a predetermined speed, but are required to “control” the motors that
“cause” the wheels to do so. Therefore, it would not be sufficiently tied to the
function of causing the wheels to rotate to be incorporated into the means for
causing clause.
However, adopting the Court’s preferred construction would result in certain
claims potentially being meaningless because some claims only contain the
controlling means clauses and not the causing means clauses. Therefore, these
claims would encompass structures to control certain functions when the objects
of that control are not incorporated. For example, claim 2 of the ‘649 Patent
provides for a machine with the “means for controlling the rotational speed of
each wheel; . . . [and the] means for controlling the horizontal position of the

22

power head; and means for controlling the vertical position of the power head,”
but never provides for the means to cause such changes.
Nevertheless, since the parties appear to agree that the controlling means
clauses and the causing means clauses should both be construed to include the
structures that cause and control the specified functions, the Court will construe
them accordingly. Therefore, the means for controlling the speed of each wheel
clause will be construed as DC or AC motors with companion motor drives with
dynamic, including regenerative, braking circuits, and drive motor controls, and a
programmable controller.
2. Horizontal position
The second “means for causing” group relates to the horizontal position of
the power head. The patent claims the “means for causing the power head to
assume a predetermined horizontal position.” See ‘649 Patent claims 3, 8, 27,
and 31. The parties agree that the function involved is aiming the power head in
the horizontal plane. The parties’ principle disagreement is whether the structure
necessary for this function is a “horizontal actuator” or a “horizontal linear
actuator.” [Dkt. 267-1, p. 14-15; Dkt. 250, p. 18; Dkt. 246, p. 14]. The Court finds
that the structure tied to this function is the horizontal linear actuator.
The specification provides that
[a]ctual movement of the power head 20 in a horizontal
plane is effected by a horizontal linear actuator . . .
Horizontal linear actuator 50 includes a horizontally
extending shaft 52 which extends from the horizontal
23

linear actuator 50 to the inside surface of the front plate
21. The horizontal linear actuator 50 serves to cause the
power head to pivot in a horizontal direction about the
front center ball joint 40.
‘649 Patent col. 6, ll. 56-64. It is clear from this description that what is required
to cause the power head to move in the horizontal plane is a horizontal linear
actuator. The Defendant’s argument that a rotary actuator can also be used is not
supported by either the specification or the patent claims.
The Defendant also seems to suggest that the construction of this claim
should be limited to pivoting the power head around the central pivot in a
horizontal manner. However, the function in the claim does not contain the
limitation that movement in the horizontal plane be merely around the center
pivot; instead it provides only for moving the power head to a predetermined
horizontal position. The limitation that it merely pivot around the center pivot
only appears as a preferred embodiment and as an explicit limitation in specific
claims.
Finally, the specification also states that “a horizontal actuator control 206 is
provided which is electrically connected to and controls the horizontal linear
actuator 50.” ‘649 Patent, col. 10, ll. 25-27. Accordingly, the Court views it as
appropriate as construing this “means for causing” clause as a “horizontal linear
actuator, a horizontal actuator control, and a programmable controller, causing
the ball-propelling assembly to assume a predetermined horizontal position.”

24

3. Vertical position
The third type of “means for causing” group relates to the vertical position of
the power head. The patent claims the “means for causing the power head to
assume a predetermined vertical position.” See ‘649 Patent claims 3, 8, 27, 31.
The parties agree that the function involved is aiming the power head in the
vertical plane. The parties’ principle disagreement is whether the structure
necessary for this function is a “vertical actuator” or a “vertical linear actuator.”
[Dkt. 267-1, p. 15-16; Dkt. 250, p. 18-19; Dkt. 246, p. 15]. The Court finds that the
structure tied to this function is the vertical linear actuator.
The specification provides that “[a] vertical linear actuator 60 having a
downwardly extending shaft 62 is provided on the outer surface of the rear plate
22. The vertical linear actuator 60 permits the power head 20 to pivot in the
vertical plane about the front center ball joint 40.” ‘649 Patent col. 7, ll. 9-13. It is
clear from this description that what is needed to cause the power head to move
vertically is a vertical linear actuator. The Defendant’s argument that a rotary
actuator can also be used is not supported by either the specification or the
patent claims.
Furthermore, the Defendant again implies that this claim should be limited by
the application of the center pivot. As discussed above, that is inapplicable.
Finally, the specification also states that “[a] vertical actuator control 204 is
provided which is electrically connected to and controls the vertical linear
actuator 60.” ‘649 Patent, col. 10, ll. 23-25. The Court, therefore, construes this
25

clause as a “vertical linear actuator, a vertical actuator control, and a
programmable controller, causing the ball-propelling assembly to assume a
predetermined vertical position.”
4. Center pivot
The final type of “means for causing” clause relates to the pivoting position of
the power head. The patent claims the “means for causing the power head to
rotate about said center pivot to assume a predetermined horizontal/vertical
position.” See ‘649 Patent claims 27, 31. The parties agree that the function
implicated by this clause is pivoting the power head around the center pivot to
aim the power head in both the horizontal and vertical plane. The parties’
principle disagreement is whether the structure necessary for this function is a
“vertical actuator” or a “vertical linear actuator” and a “horizontal actuator” or a
“horizontal linear actuator.” [Dkt. 267-1, p. 14-16; Dkt. 250, p. 18-19; Dkt. 246, p.
14-15]. For the same reasons discussed above, the devices that are linked to
moving the power head in a vertical and horizontal direction are, respectively, the
vertical linear actuator and the horizontal linear actuator. However, in this clause,
the requirement that the power head pivot around the center pivot is explicitly
contained in the claim itself. Therefore, this clause is construed as “a horizontal
linear actuator and horizontal actuator controls or vertical linear actuator and
vertical actuator controls and a programmable controller causing the ballpropelling assembly to rotate about center pivot.”

26

iii. “means for controlling”
There are several “means for controlling” clauses used in the ‘649 Patent
claims, which can be broken down into three main groups: means for controlling
rotational speed of each wheel, means for controlling the horizontal position of
the power head, and means for controlling the vertical position of the power
head. See ‘649 Patent claims 2, 3, 26, and 31.
The Plaintiff and Defendant seem to agree that the “controlling” clauses
should be interpreted identically to the “causing” clauses discussed supra.
Accordingly, those constructions will be adopted.
iv. “means to interchangeably deliver”
The final means clause implicated in this case is the “means to
interchangeably deliver pitches of different types to different locations at different
speeds,” recited in claims 1, 2, and 25 of the ‘649 Patent. This clause really
encompasses the entire function of the patented device, which is described in the
specification as “to provide a machine that can be used to interchangeably throw
a variety of different types of balls . . . with less than ten second intervals
between throws.” ‘694 Patent, col. 3, ll. 32-37. It goes without saying that the
function of this means clause is actually comprised of several subsidiary
functions: the means to throw a variety of pitches at different speeds and the
ability to throw pitches in various directions. Therefore, the means clause is
comprised of the necessary functions to (1) propel the ball at various speeds and
27

styles within ten second intervals and to (2) aim or direct the ball to various
locations.
As discussed above, the specification clearly links the propulsion of the
wheels through drive motors and the use of the dynamic braking circuits to
achieve the ability to propel a ball at various speeds and throw various pitches
within ten second intervals. Therefore, based on the discussion above, the
necessary structures to achieve the ability to deliver pitches of various styles and
speeds are any drive motors, including AC or DC motors, with drive controls and
companion motor drives with dynamic, including regenerative, braking circuits.
Furthermore, the necessity to deliver such pitches within 10 second intervals
requires the control mechanisms for those functions, so that programmable
information can be preloaded into the system. Therefore, the programmable
controller also appears to be required to produce the function covered by this
means clause.
The second function is the ability to propel the ball to various locations. This
has been defined previously to require a power head assembly to be repositioned
in both the vertical and horizontal planes, which has been linked to the horizontal
linear actuator and horizontal actuator controls and the vertical linear actuator
and vertical actuator controls. Furthermore, since the power head needs to be
repositioned in a short time frame, the control mechanisms, namely the
programmable controller, is also required to accomplish this task.

28

Accordingly, this means clause requires any motor drive, including AC or DC
motors, with drive controls and companion motor drives including dynamic or
regenerative braking circuits, a horizontal linear actuator and horizontal actuator
controls and a vertical linear actuator and vertical actuator controls, all controlled
by a programmable controller.
C. Claim Construction of Patent Claims 
The claims at issue in this case have been construed, but set forth below is a
recitation of the claims as construed in the interests of clarity and efficiency.
i. Claim 1 of the ‘649 Patent
“A ball-throwing machine including means to interchangeably deliver pitches
of different types to different locations at different speeds, said machine
including at least one rotating wheel for propelling a ball toward a batter and
dynamic braking means for rapidly decelerating the speed of said at least one
rotating wheel.” ‘649 Patent, col. 16, ll. 23-28.
The preamble of this claim is “[a] ball throwing-machine.” The parties agree
that this should be given its plain meaning with the clarification that ball means
any type of ball. [Dkt. 267-1, p.1].
The first element, “means to interchangeably deliver pitches of different types
to different locations at different speeds,” has been construed by this Court to
mean a ball-propelling assembly, called a power head, having any motor drive,
including AC or DC motors, with drive motor controls and companion motor
29

drives with dynamic braking circuits, including regenerative braking circuits, a
horizontal linear actuator and horizontal actuator controls and a vertical linear
actuator and vertical actuator controls, all controlled by a programmable
controller.
The parties agree that the second element, “at least one rotating wheel for
propelling a ball toward a batter,” should be given its plain meaning. [Id. at 1-3].
The final element of the first claim, “dynamic braking means for rapidly
decelerating the speed of said at least one rotating wheel,” has been construed
by this Court to mean a companion motor drive with dynamic, including
regenerative, braking circuits for rapidly decelerating the speed of said at least
one rotating wheel.
ii. Claim 2 of the ‘649 Patent
A ball throwing machine of the type having a power
head including at least two coacting wheels for
propelling a ball toward a batter to simulate a pitch, said
machine including:
means for controlling the rotational speed of each
wheel;
dynamic braking means for rapidly decelerating
the speed of each wheel;
means for controlling the horizontal position of
the power head; and means for controlling the
vertical position of the power head;
said machine being able to interchangeably deliver
pitches of different types to different locations at
different speeds with less than ten-second intervals
30

between said pitches of different type, location and
speed.
‘649 Patent, col. 16, ll. 29-43.
The parties agree that the preamble, “[a] ball throwing machine,” should be
given its plain meaning. [Dkt. 267-1, p. 5]. The first element, “a power head” is
construed as a ball-propelling assembly. The parties agree that the remainder of
that element, “including at least two coacting wheels for propelling a ball toward
a batter to simulate a pitch,” is to be given its plain meaning. [Id. at 6].
The second element, “means for controlling the rotational speed of each
wheel,” has been defined by this Court to mean DC or AC motors with companion
motor drives with dynamic, including regenerative, braking circuits, and drive
motor controls, and a programmable controller.
The third element, “dynamic braking means for rapidly decelerating the speed
of each wheel,” has also been defined by the Court as companion motor drives
with dynamic braking, including regenerative braking circuits, for rapidly
decelerating each rotating wheel.
The fourth element, “means for controlling the horizontal position of the
power head,” has been construed by this Court as a horizontal linear actuator
with horizontal actuator controls and a programmable controller.
The fifth element, “means for controlling the vertical position of the power
head,” has similarly been construed to be a vertical linear actuator with vertical
actuator controls and programmable controller.
31

The remaining language, “said machine being able to interchangeably deliver
pitches of different types to different locations at different speeds with less than
ten-second intervals between said pitches of different type, location and speed,”
has been agreed by the parties to retain its plain meaning. [Dkt. 267-11].
iii. Claim 3 of the ‘649 Patent
A ball-throwing machine of the type having a power
head including at least three coacting wheels for
propelling a ball toward a batter to simulate a pitch, said
machine having:
means for causing each of said wheels to rotate at
a predetermined speed;
dynamic braking means for rapidly decelerating
the speed of each wheel;
means for causing the power head to assume a
predetermined horizontal position;
means for causing the power head to assume a
predetermined vertical position; and
means for controlling the rotational speed of each
wheel, the horizontal position of the power head
and the vertical position of the power head; said
machine being able to interchangeably deliver
pitches of different types to different locations at
different speeds with less than ten second
intervals between said pitches.
‘649 Patent, col. 16, ll. 44-63.
The parties agree that the preamble, “[a] ball-throwing machine of the type
having,” should be given its plain meaning. [Dkt. 267-1, p. 11].

32

The first element, “a power head including,” has already been construed and
the same definition will be used throughout: “a ball-propelling assembly.” The
parties’ agree that the next element, “at least three coacting wheels for propelling
a ball toward a batter to simulate a pitch, said machine having,” should be given
its plain meaning except to clarify that it can be any ball and any batter. [Dkt. 2671, p. 11].
The first means clause, “means for causing each of said wheels to rotate at a
predetermined speed,” has already been construed as DC or AC motors with
companion motor drives with dynamic, including regenerative, braking circuits,
and drive motor controls, and a programmable controller which cause the wheels
to rotate at a predetermined speed.
The next means clause, “dynamic braking means for rapidly decelerating the
speed of each wheel,” has been construed in claim 2 and will be construed
identically here. The next means clause, “means for causing the power head to
assume a predetermined horizontal position,” has been construed as a
“horizontal linear actuator with horizontal actuator controls and a programmable
controller causing the ball-propelling assembly to assume a predetermined
horizontal position.”
The next means clause, “means for causing the power head to assume a
predetermined vertical position,” has been construed as a “vertical linear
actuator with vertical actuator controls and a programmable controller causing
the ball-propelling assembly to assume a predetermined vertical position.” The
33

next element, “means for controlling the rotational speed of each wheel, the
horizontal position of the power head and the vertical position of the power
head,” has been construed in claim 2 and the same construction will apply here.
Finally, the parties agree that the remainder of the claim, “said machine being
able to interchangeably deliver pitches of different types to different locations at
different speeds with less than ten second intervals between said pitches,”
should be given its plain meaning. [Dkt. 267-1, p. 19].
iv. Claim 4 of the ‘649 Patent
“The ball-throwing machine of claim 3, wherein said wheels are positioned on
said power head at equal distances relative to the ball being propelled.” ‘649
Patent, col. 16, ll. 63-65.
The parties agree that this should be construed as including at least one
wheel where the wheels are positioned at equal distances and angles relative to
one another. [Dkt. 267-1, p. 20].
v. Claim 5 of the ‘649 Patent
“The ball throwing machine of claim 3, wherein said means for controlling the
rotational speed of each wheel includes a motor and a drive control, wherein said
drive control includes means for rapidly changing the speed of each wheel.” ‘649
Patent, col. 16, l. 67- col. 17, l. 3.
The parties agree that the first three elements of this claim should be given
their plain meaning: “[t]he ball throwing machine of claim 3, wherein said means
34

for controlling the rotational speed of each wheel includes a motor and a drive
control, wherein said drive control includes . . .” [Dkt. 267-1, p. 20]. The
remaining element, “means for rapidly changing the speed of each wheel,”
should be construed identically to the “means for causing each of said wheels to
rotate at a predetermined speed,” because the functions of both clauses are the
same, and the linked structures in the specification are identical. Therefore, the
Court adopts the construction for this means clause as that found in claim 3 for
the means “for causing each of said wheels to rotate at a predetermined speed.”
vi. Claim 7 of the ‘649 Patent
“The ball-throwing machine of claim 3, wherein said power head is pivotably
mounted on a base at a center pivot about which the power head may be pivoted
in both a horizontal and a vertical direction.” ‘649 Patent, col. 17, ll. 6-9. The
parties agree that the preamble and the first element of the claim, “[t]he ballthrowing machine of claim 3, wherein said power head is pivotably mounted on a
base,” should be construed as a power head including at least one wheel
pivotably mounted on a base. [267-1, p. 22]. The parties’ disagreement as to the
remaining element is the definition of center pivot, but this Court has already
construed the center pivot as a center pivot, and that construction will apply here.
vii. Claim 8 of the ‘649 Patent
The ball-throwing machine of claim 7, wherein said
means for causing the power head to move to a
predetermined horizontal position comprises at least
one horizontal linear actuator adapted to cause said
35

power head to rotate in a horizontal plane about a center
pivot and wherein said means for causing the power
head to move to a predetermined vertical position
comprises at least one vertical linear actuator adapted
to cause said power head to rotate in a vertical plane
about said center pivot.
‘649 Patent, col. 17, ll. 9-17.
The parties agree that the first part of this claim, “[t]he ball-throwing machine
of claim 7, wherein said,” should be given its plain meaning. [Dkt. 267-1, p. 22].
Even though the parties disagree as to the construction of the “means for
causing the power head to move to a predetermined horizontal position” clause,
the Court has already construed the means clause claiming the “means for
causing the power head to assume a predetermined horizontal position” in clause
3. Since the only difference between these two clauses is the use of the word
“move” instead of “assume” they should be construed identically. Therefore, the
construction of the means clause in claim 3 applies here.
The parties agree, in large part, that the next element, “at least one horizontal
linear actuator adapted to cause said power head to rotate in a horizontal plane
about a center pivot and wherein said,” should be given its plain meaning except
as to the terms power head and central pivot. [Dkt. 267-1, p. 24]. This Court has
already construed those terms, and the Court’s definitions will be applied here.
The next means clause, “means for causing the vertical power head to move
to a predetermined vertical position comprises,” is construed identically to the
same clause found in claim 3, discussed supra. Finally, the remaining element,
36

“at least one vertical linear actuator adapted to cause said power head to rotate in
a vertical plane about said center pivot,” is to be afforded its plain meaning, as
agreed to by the parties, except for the terms center pivot and power head, which
have been otherwise defined. [Dkt. 267-1, p. 25-26].
viii. Claim 9 of the ‘649 Patent
“The ball-throwing machine of claim 3, wherein said means for controlling
comprises a programmable controller.” ‘649 Patent, col. 17, ll.19-20. The parties
agree that the plain meaning should govern except as to the definition of
programmable controller which should be defined as it was in the Iowa litigation.
[Dkt. 267-1, p. 26-27].
ix. Claim 10 of the ‘649 Patent
“The ball-throwing machine of claim 9, wherein said programmable controller
includes a programmable microprocessor.” ‘649 Patent, col. 17, ll.21-23. The
parties agree that the ball-throwing machine in the claim can throw any ball, and
that the programmable controller should be defined as it was in claim 9. [Dkt.
267-1, p. 27-28]. Furthermore, the Plaintiff argues that the term microprocessor
should be defined as “a device that integrates the functions of the central
processing unit (CPU) of a computer onto one semiconductor chip or integrated
circuit.” See Sci Tech Encyclopedia – Answers.com. It appears that the
Defendant agrees with using this definition for microprocessor. [See Dkt. 267-1,
p. 27]. Other sources confirm the Plaintiff’s plain meaning definition. For
37

example, Oxford English Dictionary defines microprocessor as “[a] very small
processor; spec. one based on one or more chips to serve as the central
processing unit of a calculator or microcomputer.” Accordingly,
“microprocessor” shall be given its ordinary meaning; that is, a device that
integrates the functions of the CPU of a computer onto one semiconductor chip
or integrated circuit.
x. Claim 11 of the ‘649 Patent
The parties are in agreement as to the construction of this claim. [Dkt. 267-1,
p. 28-29].
xi. Claim 12 of the ‘649 patent
The parties are in agreement as to the construction of this claim. [Dkt. 267-1,
p. 29].
xii. Claim 25 of the ‘649 Patent
A ball-throwing machine including means to
interchangeably deliver pitches of different types to
different locations at different speeds, said machine
including a power head having at least one rotating
wheel for propelling a ball toward a batter, wherein at
least one motor for powering at least one rotating wheel
is connected to a motor drive including a dynamic
braking circuit and wherein said power head is pivotably
mounted on a base at a center pivot about which the
power head may be pivoted in both a horizontal and a
vertical direction.
‘649 Patent, as amended, col. 18, l. 63 – col. 19, l. 3 (as amended Dkt. 246-2, col. 2,
ll. 58-67 (italics in original)).
38

The parties agree that the preamble, “[a] ball-throwing machine including,” is
to be given its plain meaning and that a ball can be any ball. [Dkt. 267-1, p. 30].
The next means clause has already been construed by this Court in claim 2, and
the same construction will apply here.
The parties agree that the next element, “said machine including a power head
having at least one rotating wheel for propelling a ball toward a batter,” should be
given its plain meaning and power head should be construed as including at least
one wheel. [Dkt. 267-1, p. 32]. The parties agree to the construction of the
remaining element, “wherein said power head is pivotably mounted on a base at a
center pivot about which the power head may be pivoted in both a horizontal and
a vertical direction,” except for the dispute over the terms power head and center
pivot. Those terms have already been defined by this Court, and those
constructions will apply here.
The Defendant also states, without explanation, in the Claim Construction
Chart that claim 25 need not be construed because it is not part of any valid
patent. For purposes of this claim construction, this Court will rely on the
Reexamination Certificate and will assume, without deciding, that the patent is
valid as amended.
xiii. Claim 26 of the ‘649 Patent
A ball-throwing machine of the type having a power
head including at least two coacting wheels for
propelling a ball toward a batter to simulate a pitch, said
power head being pivotably mounted on a base at a
39

center pivot about which the power head may be pivoted
in both a horizontal and a vertical direction, said
machine including:
means for controlling the horizontal position of
the power head; [and]
means for controlling the vertical position of the
power head; and
dynamic braking means for rapidly decelerating
the speed of said at least one coacting wheel.
‘649 Patent, col. 19, ll. 4-13 (as amended Dkt. 246-2, col. 3, ll. 10-12 (italics in
original)). The parties agree that the preamble, “[a] ball-throwing machine of the
type having,” should be given its plain meaning with the clarification that it can
pertain to any ball. [Dkt. 267-1, p. 3]. The first element, “a power head including
at least two coacting wheels for propelling a ball toward a batter to simulate a
pitch,” is agreed to be given its plain meaning. [Id.]. The parties’ dispute on the
next element, “said power head being pivotably mounted on a base at a center
pivot about which the power head may be pivoted in both a horizontal and a
vertical direction, said machine including,” is limited to the definition of a center
pivot. The Court has already construed that term “center pivot”, and its
construction will be applied here.
The two means clauses for “controlling the horizontal position of the power
head” and for “controlling the vertical position of the power head,” have been
construed by this Court already in claim 2 and will be given the same
construction. The final means clause, “dynamic means for rapidly decelerating
the speed of at least one coacting wheel,” has been construed in claim 2 and will
40

be given the same construction. The Court recognizes that the language varies
slightly in this dynamic braking means clause because it applies to “at least one
coacting wheel,” whereas claim 2 provided for rapidly decelerating the speed of
“each wheel.” However, this variation on the number of wheels does not affect
the underlying function of the clause or the structures that were linked to
performing that function. Therefore, no change in the means-plus-function
analysis originally conducted is required.
xiv. Claim 27 of the ‘649 Patent
A ball-throwing machine of the type having a power
head including at least two coacting wheels for
propelling a ball toward a batter to simulate a pitch, said
power head being pivotably mounted on a base at a
center pivot about which the power head may be pivoted
in both a horizontal and vertical direction, said machine
including:
means for causing the power head to rotate about
said center pivot to assume a predetermined
horizontal position, said means for causing
comprising at least one horizontal linear actuator;
and
means for causing the power head to rotate about
said center pivot to assume a predetermined
vertical position, said means for causing
comprising at least one vertical linear actuator[.];
and
dynamic braking means for powering motors for
the said coacting wheels, said means comprising
a dynamic or regenerative braking circuit.
‘649 Patent, col. 19, ll. 14-27 (as amended Dkt. 246-2, col. 3, ll. 13-28 (italics in
original)). The parties agree that the preamble and the first element of this claim,
41

“[a] ball-throwing machine of the type having a power head including at least two
coacting wheels for propelling a ball toward a batter to simulate a pitch,” should
be given their plain meaning with the clarification that the term “ball” can include
any ball. [Dkt. 267-1, p. 37-38]. The parties’ dispute over the next element, “said
power head being pivotably mounted on a base at a center pivot about which the
power head may be pivoted in both a horizontal and vertical direction, said
machine including,” relates to the definition of center pivot, which this Court has
already construed. The Court’s construction will apply here as well.
The first means clause, “means for causing the power head to rotate about
said center pivot to assume a predetermined horizontal position, said means for
causing comprising at least one horizontal linear actuator,” has been defined by
this Court to be “a horizontal linear actuator with horizontal actuator controls and
a programmable controller causing the ball-propelling assembly to rotate about a
center pivot to assume a predetermined horizontal position.” The next clause,
“means for causing the power head to rotate around said center pivot to assume
a predetermined vertical position, said means for causing comprising at least one
vertical linear actuator,” has been similarly construed by the Court as “a vertical
linear actuator with vertical actuator controls and a programmable controller
causing the ball-propelling assembly to rotate about the center pivot to assume a
predetermined vertical position.” Finally, the remaining means clause, “dynamic
braking means for powering motors for the said coacting wheels, said means
comprising a dynamic or regenerative braking circuit,” has already been
construed by this Court and that construction will apply here.
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xv. Claim 31 of the ‘649 Patent
A ball-throwing machine of the type having a power
head including at least two coacting wheels for
propelling a ball toward a batter to simulate a pitch, said
machine having:
a base including a center pivot on which said
power head is mounted;
means for causing each of said wheels to rotate at
a predetermined speed;
means for causing the power head to rotate about
said center pivot to assume a predetermined
horizontal position;
means for causing the power head to rotate about
said center pivot to assume a predetermined
vertical position; and
means for controlling the rotational speed of each
wheel, the horizontal position of the power head
and the vertical position of the power head; and
dynamic braking means for rapidly decelerating
the speed of each wheel.
‘649 Patent, col. 20, ll. 10-27. All of the elements of this claim have been
previously construed in the other claims at issue and the same constructions will
apply.
xvi. Claim 1 of the ‘924 Patent
“A ball-throwing machine for propelling balls toward a batter, said machine
having at least one propulsion motor for powering the propulsion of said balls
toward said batter and dynamic braking means for rapidly decelerating the speed
of said at least one propulsion motor.” ‘924 Patent, col. 17, ll. 1-5. The parties’
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only dispute in this claim relates to the means clause: “dynamic braking means
for rapidly decelerating the speed of said at least one propulsion motor.” Since
the specifications of the two patents appear to be identical, the means-plusfunction analysis of this means clause mirrors the analysis conducted for the
‘649 Patent. Accordingly, this clause will be construed as “companion motor
drives with dynamic, including regenerative, braking circuits.

IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 31, 2014 

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