Cloud Farm Associates LP v. Volkswagen Group of America Inc. et al

Filing 340

MEMORANDUM OPINION re claim construction. Signed by Judge Leonard P. Stark on 8/10/15. (ntl)

IN THE UNITED STATES DISTRICT COURT
·FOR THE DISTRICT OF DELAWARE
CLOUD FARM ASSOCIATES, L.P.,
Plaintiff,
C.A. No. 10-502-LPS

v.
VOLKSWAGEN GROUP OF
AMERICA, INC. and ZF SACHS AG,
·Defendants.

Joseph C. Schoell, DRINKER BIDDLE & REATH LLP, Wilmington, DE .
Wilson M. Brown III, DRINKER BIDDLE & REATH LLP, Philadelphia, PA
Patrick J. Kelleher, DRINKER BIDDLE & REATH LLP, Chicago, IL
Attorneys for Plaintiff Cloud Farm Associates, L.P.

James D. Taylor, Jr., SAUL EWING LLP, Wilmington, DE
Michael J. Lennon, Georg C. Reitboeck, KENYON & KENYON, New York, NY
Attorneys for Defendant Volkswagen Group of America, Inc.

Steven J. Balick, Tiffany Geyer Lydon, Andrew C. Mayo, ASHBY & GEDDES, Wilmington,
DE
Martin B. Pavane, Lisa A. Ferrari, Marilyn Neiman, COZEN O'CONNOR, New York, NY
Attorne)'.'s ·for Defendant ZF Sachs AG

MEMORANDUM OPINION

August 10, 2015
Wilmingto~, Delaware

On June 9, 2010, Plaintiff Cloud Farm Associates, L.P. ("Cloud Farm" or "Plaintiff')
filed suit against Volkswagen Group of America, Inc. ("Volkswagen") and ZF Sachs AG ("ZF
Sachs") (collectively, "Defendants") alleging infringement of U.S. Patent Nos. 5,437,354 (the
"'354 patent") and 5,529, 153 (the"' 153 patent''). (D.I. 1)
The parties completed claim construction briefing for the '354 and '153 patents on March ,
2, 2012 (see D.I. 115) and submitted technology tutorials (D.I. 136, 138). The Court conducted a

1

hearing on May 29, 2012 (see D.I. 155) and construed disputed claim terms of the '354 and '153 '
patents in its claim construction Order of July 27, 2012 (D.I. 164).
On July 31, 2012, pursuant to the Court's Order (D.I. ·162), Cloud Farm filed its Third
Amended Complaint (D.I. 165), adding infringement allegations with respect to U.S. Patent Nos.
5,971,115 (the "'115patent") and 5,979,616 (the '"616 patent") (collectively, with the '354 and
'153 patents, the "patents-in-suit"). 1 The parties completed briefing on claim construction for the
'115 and '616 patents on June 13, 2013 (see D.I. 255) and submitted technology tutorials (D.I.
274, 275, 276).
In light of the parties' agreement, the Court ordered the case stayed before construing
terms in the '115 and '616 patents (see D.I. 284), and all of the patents-in-suit underwent ·
reexamination proceedings in the U.S. Patent and Trademark Office (D.I. 290). The stay was
lifted on December 9, 2014 (D.I. -306), and the Court ordered supplemental claim construction
briefing for all of the patents-in-suit in light of the reexaminations, "which may have created

1

Plaintiff asserts the '354, '153, and '115 patents against both defendants. Plaintiff
asserts the '616 patent against Volkswagen only.

1

additional, pertinent prosecution history" (D.I. 309). The parties completed supplemental
briefing on March 30, 2015. (See D.l. 311) The Court held a hearing on April 22, 2015 for all
pending claim construction disputes. (See D.l. 339 ("Tr."))
The patents-in-suit generally relate to "a technology for suppressing vehicular rolling
motion, i.e., the tendency of the vehicle to tilt when the vehicle turns a comer or is driven around
a sharp curve." ('153 patent at 1:16-19; '354 patent at 1:10-13) The '115 patent discloses an
improved design of the technology which divides the single unit disclosed int.he' 153 and '354
patents into a shock absorbing component and a tilt controlling component. (See '115 patent at
Fig. 1) The '616 patent is directed to various means, i.e., sensors and the like, for detecting when
the tilt-controlling technology should be activated. (See '616 patent at 3:31-5:32)

I.

LEGAL STANDARDS
The ultimate question of the proper construction of a patent is a question oflaw. See Teva

Pharm. USA, Inc. v. Sandoz, Inc., 13 5 S. Ct. 831, 83 7 (2015) (citing Markman v. Westview
Instruments, Inc., 517 U.S. 370, 388-91 (1996)). "It is a bedrock principle of patent law that the
claims of a patent define the invention to which the patentee is entitled the right to exclude."
Phillips v~ AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (internal quotation marks omitted).
"[T]here is no magic formula or catechism for conducting claim construction." Id. at 1324.
Instead, the court is free to attach the appropriate weight to appropriate sources "in light of the
statutes and policies that inform patent law." Id.
"[T]he words of a claim are generally given their ordinary and customary meaning ...
[which is] the meaning that the term would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the effective filing date of the patent application."

2

Id. at 1312-13 (internal citations and quotation marks omitted). "[T]he ordinary meaning of a

claim term is its meaning to the ordinary artisan after reading the entire patent." Id. at 1321
(internal quotation marks omitted). The patent specification "is always highly relevant to the
claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of
a disputed term." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
While "the claims themselves provide substantial guidance as to the meaning of particular
claim terms," the context of the surrounding words of the claim also must be considered..
Phillips, 415 F.3d at 1314. Furthermore, "[o]ther claims of the patent in question, both asserted

·and unasserted, can also be valuable sources of enlightenment ... [b]ecause claim terms are
normally used consistently throughout the patent .... " Id. (internal citation omitted).
It is likewise true that "[d]ifferences among claims can also be a useful guide .... For

example, the presence of a dependent claim that adds a particular limitation gives rise to a
presumption that the limitation in question is not present in the independent claim." Id. at 131415 (internal citation omitted). This "presumption is especially strong when the limitation in
dispute is the only meaningful difference between an independent and dependent claim, and one
party is urging that the limitation in the dependent claim should be read into the independent
claim." SunRace Roots Enter. Co., Ltd. v. SRAM Corp., 336 F.3d 1298, 1303 (Fed. Cir. 2003).

it' is also possible that "the specification may reveal a special definition given to a claim
term by the patentee that differs from the meaning it would otherwise possess. In such cases, the
inventor's lexicography governs." Phillips, 415 F.3d at 1316. It bears emphasis that "[e]ven
when the specification describes only a single embodiment, the claims of the patent will not be
read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope
3

using words or expressions of manifest exclusion or restriction." Liebel-Flarsheim Co. v.

Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (internal quotation marks omitted), ajf'd, 481
F.3d 1371 (Fed. Cir. 2007).
In addition to the specification, a court "should also consider the patent's prosecution

history, if it is in evidence." Markman v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir.
1995), ajf'd, 517 U.S. 370 (1996). The prosecution history, which is "intrinsic evidence,"
"consists of the complete record of the proceedings before the PTO [Patent and Trademark
Office] and includes the prior art cited during the examination of the patent." Phillips, 415 F .3d
at 131 7. "[T]he prosecution history can often inform the meaning of the claim language by
demonstrating how the inventor understood the invention and whether the inventor limited the
invention in the course of prosecution, making the claim scope narrower than it would otherwise
. be." Id.
In some cases, "the district court will need to look beyond the patent's intrinsic evidence

and to consult extrinsic evidence in order to understand, for example, the background science or
the meaning of a term in the relevant art during the relevant time period." Teva, 135 S. Ct. at
841. Extrinsic evidence "consists of all evidence external to the patent and prosecution history,
including expert and inventor testimony, dictionaries, and learned treatises." Markman, 52 F.3d
at 980. For instance, technical dictionaries can assist the court in determining the meaning of a
term to those of skill in the relevant art because such dictionaries "endeavor to collect the
accepted meanings of terms used in various fields of science and technology." Phillips, 415 F .3d
at 1318. In addition, expert testimony can be useful "to ensure that the court's understanding of
the technical aspects of the patent is consistent with that of a person of skill in the art, or to
4

establish that a particular term in the patent or the prior art has a particular meaning in the
pertinent field." Id. Nonetheless, courts must not lose sight of the fact that "expert reports and
testimony [are] generated at the time of and for the purpose of litigation and thus can suffer from
bias that is not present in intrinsic evidence.'' Id. Overall, while extrinsic evidence "may be
useful" to the court, it is "less reliable" than intrinsic evidence, and its consideration "is unlikely
to result in a reliable interpretation of patent claim scope unless considered in the context of the
intrinsic evidence." Id. at 1318-19. Where the intrinsic record unambiguously describes the
scope of the patented invention, reliance on any extrinsic evidence is improper. See Pitney
Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1308 (Fed. Cir. 1999) (citing Vitronics, 90

F.3d at 1583).
Finally, "[t]he construction that stays true to the claim language and most naturally aligns
with the patent's description of the ,invention will be, in the end, the correct construction."
Renishaw PLC v. Marposs Societa 'per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows

that "a claim interpretation that would exclude the inventor's device is rarely the correct
interpretation." Osram GmbHv. Int'! Trade Comm'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007)
(quoting Modine Mfg. Co. v. U.S. Int'! Trade Comm'n, 75 F,.3d 1545, 1550 (Fed. Cir. 1996)).
II.

CONSTRUCTION OF DISPUTED TERMS
For certain terms, the parties either agree upon a construction or agree that no

construction is required. The Court will only .construe terms that are disputed by the parties. See
MBO Laboratories, Inc. v. Becton, Dickinson &Co., 474 F.3d 1323, 1331 (Fed. Cir. 2007)

("[W]e are reviewing only certain disputed terms ... and lack the power to construe other terms
not disputed by the parties."); see also 02 Micro Int'! Ltd. v. Beyond Innovation Tech. Co., Ltd.,

5

521F.3d1351, 1362-63 (Fed. Cir. 2008) ("[W]hen the parties present a fundamental dispute
regarding the scope of a claim term, it is the court's duty to resolve it," but "district courts are not
(and should not be) required to construe every limitation present in a patent's asserted claims.").
Moreover, because the patents-in-suit are all related and share identical portions of their
specifications, the Court will not construe de novo any terms that the Court already construed in
its prior claim construction Order (D.I. 164), with the exception of terms for which the parties
have presented new constructions based on new evidence or arguments. See In re Rambus Inc.,
694 F.3d 42, 48 (Fed. Cir. 2012) ("[U]nless otherwise compelled ... the same claim term in the
same patent or related patents carries the same construed meaning.") (emphasis added).
In addition, the Court declines to formally construe the terms "prevent ... tilting" and

''tilting . . . is prevented" in claim 1 of the '115 patent and claim 1 of the '616 patent,
respectively. These terms are discussed in the parties' supplemental claim construction briefing,
and Volkswagen asks the Court to construe them in light of new prosecution history from the
reexamination proceedings. (D.I. 321 at 7-8; D.I. 327 at 5-6) Although these terms are not
identical to similar terms construed in the Court's prior claim construction Order, the Court
determines that these terms do not require separate construction. (See D.I. 164 at 2; see also
IpLearn, LLC v. Kenexa Corp., 2013 WL 5730610, at *2 (D. Del. Oct. 22, 2013) ("[T]here is no
ambiguity which would require the Court to further construe this term."))

"remotely mounted"2
Cloud Farm
"located some measurable distance away from the first chamber"

2

This term appears in claim 1 of the '115 patent.
6

Volkswagen
"mounted at a distance as a separate structural element"

ZFSachs
"A second chamber that is mounted on the vehicle, spaced apart from, and not in physical
contact with, said first chamber". (construing "a second chamber ... remotely mounted from
said first chamber")

Court
"mounted at a distance"
This term relates to the "first and second chambers" recited in claim 1 of the '115 patent.
The parties dispute (1) how far away the first and second chambers must be spaced apart and (2)
whether the first and second chambers must be separate structural elements. (See, e.g., Tr. at 13,
45) The Court concludes that the plain and ordinary meaning of "remotely mounted," in light of
the intrinsic evidence, requires that the first and second chambers be "mounted at a distance."
The Court agrees with Volkswagen that the plain and ordinary meaning of the words "at a
distance" implies "a comparatively great distance." (See Tr. at 45)
While the term "remotely mounted" is clearly related to the relative distance between the
locations where the chambers are mounted, the term is not clearly related to whether the two
chambers are separate "structural elements." Because the Court does not believe that a
separateness limitation is necessarily embedded in the plain and ordinary meaning of the words
"remotely mounted," and because none of the intrinsic evidence shows a clear intent to require a
separateness limitation, the Court declines to include the "as a separate structural element"
language in its construction of this term. See Liebel-Flarsheim Co., 358 F.3d at 906.
In their briefing, Volkswagen and ZF Sachs ·point to the "flexible hose" used to connect

openings in the first and second chambers and argue that this is evidence of separateness.
However, the flexible hose limitation only requires that the openings, not the chambers
7

themselves, be separate. Moreover, the connection using a flexible hose could be interpreted as
evidence that the first and second chambers are not "separate" in an absolute sense, since the
hose physically links the two chambers such that, even if they were previously separate, they
could be viewed as a single structural element when connected. As such, the "structural
element" language may confuse a jury.
In addition, it is unclear, and therefore potentially confusing to a jury, whether bolting the
first and second chambers to the same structural element or allowing them to touch in any way
would mean that the chambers are no longer separate structural elements. (See Tr. 13) In
addition, the phrase "not in physical contact with," proposed by ZF Sachs, may confuse a jury
and is not necessarily embedded in the "remotely mounted" limitation, because it is unclear
whether the chambers would be "in physical contact" when connected via the flexible hose.
Volkswagen points to part of the specification that recites "two separate but
communicating units" as evidence that the first and second chambers must be separate structural
elements. ('115 patent at 5:34-35) But "patent coverage is not necessarily limited to inventions
that look like the ones in the figures. . . . To hold otherwise would be to import limitations onto
the claim_from the specification, which is fraught with danger." MBO Labs., Inc. v. Becton,

Dickinson & Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007) (internal quotation marks omitted).
Moreover, other parts of the specification show that the two chambers need not be completely
separate. (See, e.g., '115 patent at 3:56-61) (describing first and second chambers that are
"mounted remotely from, but in direct communication" with each other)
In light of the above, the Court will construe the disputed phrase according to
Volkswagen's proposed construction but without the "as a separate structural element" language.

8

"a second chamber ... remotely mounted from said first chamber"3
Cloud Farm
"located some measurable distance away from the first chamber" (construing "remotely
mounted")
Volkswagen
"mounted at a distance as a separate structural element" (construing "remotely mounted")
ZF Sachs
"A second chamber that is mounted on the vehicle, spaced apart from, and not in physical
contact with, said first chamber"
Court
Previously construed as "mounted at a distance" (construing "remotely mounted")

The Court finds it redundant and unnecessary to construe the term "remotely mounted"
again in its entire context. See lpLearn, 2013 WL 5730610, at *2. The other language that ZF
Sachs asks the Court to construe is unambiguous in light of its plain and ordinary meaning. A
district court is not obligated to construe terms with ordinary meanings. See, e.g., Biotec
Biologische Naturverpackungen GmbH & Co. KG v. Biocorp, Inc., 249 F.3d 1341, 1349 (Fed.
Cir. 2001) (finding no error in non-construction of"melting"); Mentor HIS, Inc. v. Med. Device
Alliance, Inc., 244 F.3d 1365, 1380 (Fed. Cir. 2001) (finding no error in Court's refusal to
construe "irrigating" and "frictional heat"). Therefore, the Court will decline to construe this
claim language.
"bottom end"4
Cloud Farm
"the lowest part, as measured along the fluid flow path"

3

This term appears in claim 1 of the '115 patent.

4

This term appears in claim 1 of the '115 patent.
9

Volkswagen
"lowest part"
ZF Sachs
"lowest part"
Court
"lowest part"
The parties agree that "bottom end" must be construed to include the words "lowest part,"
but Cloud Farm asks the Court to add the phrase "as measured along the fluid flow path." Cloud
· Farm argues that the fluid flow path "is the context in which the claimed invention is presented,
because fluid flow is what matters in the claimed invention." (See D.I. 264 at 6) The Federal
Circuit, however, has "rejected a claim construction process based on the 'essence' of an
invention." Ormco Corp. v. Align Tech., Inc., 498 F.3d 1307, 1322 (Fed. Cir. 2007) (quoting

Allen Eng'g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1345 (Fed. Cir. 2002) ("It is well settled
that there is no legally recognizable or protected essential element, gist, or heart of the invention
.... ")(internal quotation marks omitted)).
Cloud Farm further cites Figs. 2 and 3 in the '115 patent as purportedly showing an
opening at the "lowest part" of one of the chambers and suggests that one could simply tum the
chamber sideways and avoid infringement. (D .I. 264 at 6-7) As Volkswagen points out,
however, the figures cited by Cloud Farm support Defendants' construction to at least the same
extent as they support Cloud Farm's construction (since the figures show an opening at a point
that qualifies as the "lowest part" in an absolute sense and as measured along the fluid flow
path). (D.I. 265 at 9) The Court will adopt Defendants' construction, which comports with the
plain and ordinary meaning of the claim language and is supported by the specification of the
' 115 patent.
10

"means for communicating between the openings in said first and second
chambers" 5
Cloud Farm
Function: "provide a flow path for fluid to move between the first and second chambers"
Structure: "flexible high pressure hose, or an equivalent thereof'
Volkswagen
Function: "communicating between the openings in said first and second chambers"
Structure: "flexible high pressure hose, or an equivalent thereof'
ZF Sachs
Function: "connecting the openings in the first and second chambers"
Structure: "flexible high pressure hose, and equivalents thereof'
Court
Function: "communicating between the openings in said first and second chambers"
Structure: "flexible high pressure hose, or an equivalent thereof'

. The parties agree that this term should be construed pursuant to 35 U.S.C. § 112, ,~ 6. 6
The parties also agree upon the structure for this means-plus-function limitation. The parties
disagree, however, about the corresponding function.
Cloud Farm proposes a construction that is broader than the claim language. As
Volkswagen argues, "Cloud Farm's construction ignores that the fluid communication must be
'between the openings in said first and second chamber,' which is distinctly narrower than Cloud
Farm's construction ...." (D.I. 273 at 6) The Court agrees with this analysis and will reject
Cloud Farm's proposal.
ZF Sachs proposes a construction based on quoted language from the specification. (D .I.
272 at 4) ("According to the specification, '[a] flexible high pressure hose 22 is connected at the

5

This term appears in claim 1 of the ' 115 patent.

The parties agree as to the applicability of 35 U.S. C. § 112, ·~ 6 for all of the disputed
means-plus-function terms in the patents-in-suit.
6

11

opening in the top surface of the chamber of the shock unit 15 and extends to the openings in the
bottom surface of the chamber of the tilt-control unit 21."') (quoting '115 patent at 5:57-60)
However, as discussed in Liebel-Flarsheim Co., 358 F.3d at 906, claims should not be construed
as limited by an embodiment from the specification ''unless the pat~ntee has demonstrated a clear
intention to limit the claim scope using words or expressions of manifest exclusion or
restriction."
Volkswagen's definition of the term's function adopts the exact claim language of the
disputed term. The Court agrees with Volkswagen that the word "communicating" in the
disputed claim language is unambiguous and properly identifies the function. Therefore, the
Court will adopt Volkswagen's construction.

"lockplate"7
Cloud Farm
"a plate affixed to the side of the chamber"
Volkswagen
"plate immovable within said chamber"
ZF Sachs
"A lockplate fixedly mounted to the walls of the second chamber such that there is no relative
movement between said lockplate and said walls" (construing "a lockplate mounted within and
attached to the walls of said second chamber")
Court
"plate immovable within said chamber"
Cloud Farm cites no evidence other than "[p]lain meaning" for its construction. (D.I. 253
at 13) Volkswagen cites claim language (e.g., "attached to the walls of said second chamber")
and portions of the specification to support its construction. (Id. at 13-14) For example,

7

This term appears in claims 1 and 4 of the '115 patent.
12

Volkswagen points out that claim 1 contains language suggesting that, when the "sealing means"
seals the opening in the lockplate, "further movement of said piston in said first chamber and
further tilting of said body of said vehicle" is prevented. (See D .I. 265 at 11) (citing '115 patent
at 9:25-33) Volkswagen further argues that the specification requires that the lockplate's
opening be sealable in order to prevent any further flow of hydraulic fluid (and in order to halt
additional tilting). (See id.) (citing '115 patent at 7:5-12) Allowing the lockplate to be movable,
Volkswagen argues, would not allow the invention to operate as claimed. (See id.) "[A] claim
interpretation that would exclude the inventor's device is rarely the correct interpretation."
Osram, 505 F.3d at 1358. Hence, the Court agrees with Volkswagen.

"a lockplate mounted within and attached to the walls of said second chamber"8
Cloud Farm
"a plate affixed to the side of the chamber" (construing "lockplate")
Volkswagen
"plate immovable within said chamber" (construing "lockplate")
ZF Sachs
"A lockplate fixedly mounted to the walls of the second chamber such that there is no relative
movement between said lockplate and said walls"
Court
Previously construed as a "plate immovable within said chamber" (construing "lockplate")
For the same reasons given above with respect to the term "a second chamber ...
remotely mounted from said first chamber," the Court finds it unnecessary to construe the term
"lockplate" again.

8

This term appears in claim 1 of the '115 patent.
13

''sealing means" 9
Cloud Farm
Previously construed (see D.I. 163 at 14): ,
Function: "sealing"
Structure: "seal or shut-off valve and equivalents thereof'
Volkswagen
'115, '354, and '153 patents:
Function: "sealing"
Structure: The specification does not describe structure performing the claimed function.
'616 patent:
Function: "sealing"
Structure: "a plate covering openings or an equivalent of the foregoing structure"
ZF Sachs
Previously construed (see D.I. 163 at 14):
Function: "sealing"
Structure: "seal or shut-off valve and equivalents thereof'
Court
'354, and '153 patents
Previously construed (see D .I. 163 at 14):
Function: "sealing"
Structure: "seal or shut-off valve and equivalents thereof'
'115 patent
Function: "sealing"
Structure: "seal, as shown and described in Figs. 2 and 3 and accompanying text in the
specification, or equivalents"
· '616 patent
Function: "sealing"
Structure: "seal, sealing means, plate, or sealing plate, as shown and described in Figs. 2, 2A,
2B, 2C, and 2D and accompanying text in the specification, or equivalents"

The parties agree as to the function of this means-plus-function term. Volkswagen has
not presented any new arguments or facts as to why the Court should change its construction of

9

This term appears in claim 1 of the '115 patent; claim 1 of the '616 patent; claim 1 of
the '153 patent; and claims 1, 8, and 16 of the '354 patent.
14

this term's structure for the '354 or '153 patents. (See D.I. 163 at 13-14) (construing term in
'354 and '153 patents as having function of "sealing" and structure of"seal or shut-off valve and
equivalents thereof') Thus, the Court will not revisit its prior construction of this term for the
'354 and '153 patents.
The '115 and '616 patents contain disclosures of the structure associated whh this term
that are different from the structure disclosed in the '354 and '153

patents~

"Sealing means" are

disclosed in Figs. 2 and 3 and accompanying text in the specification of the '115 patent and in
Figs. 2, 2A, 2B, 2C, and 2D and accompanying text in the specification of the '616 patent, all of
which are similar to the "sealing means" disclosed in Fig. 2 of the '354 patent (which the Court
found sufficient to disclose a structure corresponding to this term). The Court will construe the
corresponding structures in the '115 and '616 patents as they are disclosed in their respective
specifications. See Ta Instruments, Inc. v. Perkin-Elmer Corp., 250 F.3d 756 (Fed. Cir. 2000)
(construing means-plus-function term's structure as corresponding to embodiments shown in
figures from patent's specification).

"means for sensing the tilting movement" 10
Cloud Farm
Previously construed (see D.I. 163 at 15-16):
Function: "sensing tilting movement of the vehicle"
Structure: "a tube in the shape of a wide shallow U and mounted crosswise of the vehicle, with
(1) two sets of electrical contacts at the opposite ends of the tube to be engaged by mercury,
and (a) a pool of mercury within the tube, or (b) two balls of mercury, each within a glass
envelope at each end of the U-shaped tube; or (2) two crimped portions to the left and right of
the center of the tube which are each parts of two electrical circuits, and a ball bearing free to
roll within the tube, which can complete the electrical circuit at one of the crimped portions, or
an equivalent of any of the foregoing structures"

10

This term appears in claim 1 of the ' 115 patent.
15

Volkswagen
Function: "sensing sideways tilting of the vehicle body toward the vehicle axle, excluding the
sensing of lateral acceleration exerted on the vehicle body''
Structure: "mercury switches in a tube in the shape of a wide shallow U and mounted
crosswise of the vehicle, or an equivalent of the foregoing structure, but excluding lateral
acceleration sensors for monitoring lateral acceleration exerted on the vehicle body''
ZF Sachs
Previously construed (see D .I. 163 at 15-16):
Function: "sensing tilting movement of the vehicle"
Structure: "a tube in the shape of a wide shallow U and mounted crosswise of the vehicle, with
(1) two sets of electrical contacts at the opposite ends of the tube to be engaged by mercury,
and (a) a pool of mercury within the tube, or (b) two balls of mercury, each within a glass
envelope at each end of the U-shaped tube; or (2) two crimped portions to the left and right of
the center of the tube which are each parts of two electrical circuits, and a ball bearing free to
roll within the tube, which can complete the electrical circuit at one of the crimped portions, or
an equivalent of any of the foregoing structures"
Court
Function: "sensing tilting movement of the vehicle"
Structure: "a sensing unit, including a mercury switch, mounted crosswise of the vehicle, or.
equivalent"

Cloud Farm and ZF Sachs ask the Court to adopt the same construction of this meansplus-function term that was adopted in the Court's first claim construction Order. (See D.I. 164
at 2-3) Volkswagen advocates a different construction, arguing that the '115 patent's
specification is materially different from the specifications of the '354 and '153 patents. (See
D .I. 265 at 28-29) The Court agrees that the '115 patent's specification is materially different
with regard to this disputed term. While the '115 patent discloses "means shown in my previous
patents, e.g., a mercury switch or the like ... " (' 115 patent at 7:37-38), "material incorporated by
reference cannot provide the corresponding structure necessary to satisfy the definiteness
requirement for a means-plus-function clause," Default Proof Credit Card Sys., Inc. v. Home
Depot USA., Inc., 412 F.3d 1291, 1301 (Fed. Cir. 2005). Thus, the Court will not rely on
disclosures incorporated by reference from the other patents as support for this term.
16

The '115 patent includes other disclosures of the structure associated with this term,
however. (See '115 patent at Fig. 1, 5:44-47,

7:1~2,

7:37-38) (disclosing "a mercury switch" as

part of"sensing unit") In particular, the '115 patent discloses a "sensing unit" with a "mercury
switch" that is mounted crosswise of the vehicle. (See '115 patent at Fig. 1, 5:44-47, 7:1-2, 7:3738) In light of this disclosure, the Court will construe the structure associated with this term as
"a sensing unit, including a mercury switch, mounted crosswise of the vehicle, or equivalent."

(See id.)
Volkswagen proposes language that further defines the corresponding structure as
"excluding lateral acceleration sensors for monitoring lateral acceleration exerted on the vehicle
body." This language was rejected by the Court for the '153 and '354 patents in its first claim
construction Opinion. (See D.I. 163 at 16-17) Volkswagen provides no new arguments or
evidence as to why the Court should include this language in its construction of the structure of
this.term for the '115 patent. For the reasons stated in the Court's prior claim construction
Opinion, this language is rejected. See In re Rambus Inc., 694 F.3d at 48.
Regarding the corresponding function, Volkswagen asks the Court to reconsider the
Court's previous construction but provides no new arguments or evidence in support. (See D.I.
163 at 15) (construing function as "sensing tilting movement of the vehicle") Unlike the
corresponding structure, the term's function appears to be the same as the function disclosed in
the '354 and '153 patents. (Compare '115 patent at Fig. 1 with '354 patent at Fig. 1) (showing
diagrammatically similar "means for sensing") Because the function is similarly disclosed in the
claims and specifications of the '115, '354, and '153 patents, and in light of the plain and
ordinary meaning of this term, the Court will adopt the same function as it did for the '3 54 and

17

'153 patents.

"a fixed plate within said chamber" 11
Cloud Farm
"a plate fixed within the chamber"
Volkswagen
"plate disposed and immovable within said chamber, separate froip. the piston"
Court
"a plate fixed and immovable within the chamber, distinct from the piston"
"a plate within said chamber having a substantially central opening separating said
fluid within the chamber into a lower portion and an upper portion" 12
Cloud Farm
Previously construed (see D .I. 163 at 11):
"a plate disposed in the chamber having a substantially central opening in the plate, the plate
separates said fluid within the chamber into a lower portion and an upper portion"
Volkswagen
"a plate disposed in the chamber, separate from the piston, having a substantially central
opening in the plate, the plate separates said fluid within the chamber into a lower portion and
an upper portion" (emphasis added to show proposed amendment to the Court's earlier
construction; see D.l. 163 at if 7)
Court
"a plate disposed in the chamber, distinct from the piston, having a substantially central
opening in the plate, the plate separates said fluid within the chamber into a lower portion and
an upper portion"
"a plate within said chamber having at least one opening separating the fluid within
the chamber into two portions" 13

11

This term appears in claim 1 of the '616 patent.

12

This. term appears in claim 1 of the '3 54 patent.

13

This term appears in claim 8 of the '354 patent and claim 1 of the '153 patent.

18

Cloud Farm
Previously construed (see D.I. 163 at 12):
"a plate disposed in the chamber with at least one opening in the plate, through which fluid
may pass from one portion of the chamber to the other"
Volkswagen
"a plate disposed in the chamber, separate from the piston, with at least one opening in the
plate, through which fluid may pass from one portion of the chamber to the other" (emphasis
added to show proposed amendment to the Court's previous construction; see D.I. 163 atif 8)
Court
"a plate disposed in the chamber, distinct from the piston, with at least one opening in the
plate, through which fluid may pass from one portion of the chamber to the other"
"means within said chamber to separate said fluid within the chamber into two
portions" 14
Cloud Farm
Previously construed (see D.I. 163 at 13):
"a plate within said chamber, and equivalents thereof'
Volkswagen·
"a plate within said chamber, separate from the piston, and equivalents thereof' (emphasis
added to show proposed amendment to the Court's previous construction; see D.I. 163 at if 9)
Court
"a plate within said chamber, distinct from the piston, and equivalents thereof'
Volkswagen argues that the "piston" and "plate" elements claimed in the '153, '354, and
'616 patents must be "separate" and cites the reexamination history of the '153 patent as support
for this argument. (See D.I. 321 at 10-11) Specifically, Volkswagen argues that Cloud Farm
narrowed the scope of the claims when it stated that "claim 1 [of the '153 patent] positively
recites two distinct elements: 'a movable piston at one end of said chamber' and 'a plate within
said chamber."' (See id.) (emphasis added) The Court agrees that Cloud Farm gave up claim
scope for all three of the '-153, '354, and '616 patents by clarifying that the piston and plate

14

This term appears in claim 16 of the '354 patent.

19

elements are distinct as claimed in the '153 patent. See In re Rambus Inc., 694 F.3d at 48.
However, the Court disagrees with Volkswagen's characterization of the claim scope
given up by Cloud Farm. Cloud Farm stated that the plate and piston must be "distinct" from
one another, not separate. The plain and ordinary meaning of the word "separate" is not the same
as "distinct." For example, Cloud Farm argued, in support of this proposition: "A hip bone and a
leg bone are 'two distinct elements,' but they are not 'separate.' They are in contact." (D.I. 327
at 8) The Court agrees. As such, the Court rejects Volkswagen's proposed construction and will
adopt the exact word ("distinct") which was used by Cloud Farm during reexamination of the
'153 patent.

"sensing means within said steering column to sense rotation of said steering wheel
and a pre-set minimum speed of said vehicle, such that when rotation of said
steering wheel is below about 20 degrees or beyond about 160 degrees, at or above
said pre-set minimum speed, said sensing means will send a signal to said sealing
means" 15
Cloud Farm
Function: "detecting rotation of the steering column and an input corresponding to vehicle
speed, and sending an electrical current to the sealing means at a point when steering wheel
rotation is at or below 20 degrees from a point measured along a horizontal chord"
Structure: "a copper protrusion located on the steering column, arranged to touch and form an
electrical connection with two copper protrusions located on the inside of the housing of the
steering column at a predetermined steering angle; or optical, Hall-effect, magnetic reed,
inductive, or capacitive sensors, or· equivalents thereof, and a computer or microprocessor that
combines the steering angle signal with a signal corresponding to the speed of the vehicle"

15

This term appears in claim 1 of the '616 patent.
20

Volkswagen
Function: "sensing rotation of said steering wheel and a pre-set minimum speed of said
vehicle, such that said sensing means will send a signal to said sealing means when rotation of
said steering wheel is below about 20 degrees or beyond about 160 degrees, at or above said
pre-set minimum speed· (whereby the pre-set minimum speed is greater than a very low speed
associated with parking maneuvers)"
Structure: The specification does not describe structure performing the claimed function

Court
Function: "sensing rotation of said steering wheel and a pre-set minimum speed of said
vehicle, such that said sensing means will send a signal to said sealing means when rotation of
said steering wheel is below about 20 degrees or beyond about 160 degrees, at or above said
pre-set minimum speed"
Structure: The specification does not describe structure performing the claimed function
·The Court agrees with most ofVolkswag~n's proposed construction for the function of
this means-plus-function term. The Court disagrees, however, with the following language
proposed by Volkswagen: "whereby the pre-set minimum speed is greater than a very low speed
associated with parking maneuvers." Volkswagen argues that Cloud Farm disclaimed this
functionality during prosecution. (See D.I. 265 at 17-18) Inspection of the prosecution history
cited by Volkswagen reveals that Cloud Farm was merely describing a preferred embodiment and
was not distinguishing any prior art or describing a limitation of claim 1 of the '616 patent. (See
id.) Therefore, the Court will not include this language in its construction.

The Court agrees with Volkswagen that a person of ordinary skill in the art would be
unable to recognize, in the specification of the '616 patent, any structure associated with the
function of "sensing ... a pre-set minimum speed of said vehicle." The only structure cited by
Cloud Farm as implementing this function is "a computer or microprocessor that combines the
steering angle signal with a signal corresponding to the speed of the vehicle." (D.I. 271 at 8)
However,·Cloud Farm does not point to any structure capable of generating the "signal

21

corresponding to the speed of the vehicle," and the rest of Cloud Farm's recited structure has
nothing to do with sensing vehicle speed, which is what the claimed function requires.
In light of the above, claim 1 of the '616 patent fails to disclose any structure capable of

sensing vehicle speed. See Noah Sys., Inc. v. Intuit1nc., 675 F.3d 1302, 1312 (Fed. Cir. 2012)
("[A] means-plus-function clause is indefinite if a person of ordinary skill in the art would be
unable to recognize the structure in the specification and associate it with the corresponding
function in the claim.").

"means for controlling the suspension system" 16
Cloud Farm
Function: "altering suspension damping"
Structure: "dampers containing internal valving controlled via a solenoid to prevent or
moderate the flow of fluid, and equivalents thereof'

Volkswagen
Function: "controlling the suspension system"
Structure: The specification does not describe .structure performing the claimed function

Court
Function: "controlling the suspension system"
Structure: The specification does not describe structure performing the claimed function
The Court agrees with Volkswagen that the plain arid ordinary meaning of the function
associated with this term is "controlling the suspension system." The specification of the '616
patent refers to control of a vehicle's entire suspension system in multiple places. (See, e.g., '616
patent at 1:28, 3 :62-67, 4:4-6, 12:49-52) Thus, it would be improper to change the claimed
function to "altering" of "suspension damping." The word "altering" is materially different from
"controlling," as the latter implies an ability to dictate how the entire suspension system operates

16

This term appears in claim 5 of the '616 patent.
22

whereas the former requires only influencing the suspension system.
In addition, "suspension damping" is not the same as "suspension" in the context of the

'616 patent, which discloses aspects of suspension aside from suspension damping, including, for
example, "mechanical, electrical, pneumatic, or fluidic means" used in "shock or suspension
systems." ('616 patent at 6:3-7) Cloud Farm has been unable to point to any part of the
specification as evidence that merely "altering" one part of the "suspension damping" is what
claim 5 means by "con~olling the suspension system." (See Tr. at 18-19)
Cloud Farm conceded at the hearing that the '616 patent does not disclose a structure for
controlling the entire suspensfon of a vehicle. (See Tr. at 19) The Court is unable to locate such
a structure in the specification. "[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." B. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424
(Fed. Cir. 1997) (emphasis added). Therefore, because the function for this term is "controlling
the suspension system," the Court concludes that claim 5 of the '616 patent fails to disclose a
structure that corresponds to the claimed function. See Noah Sys., 675 F.3d at 1312.

"means for continuously sensing angular or steering movement" 17
Cloud Farm
Function: "detecting on a continuous basis the angular movement of the vehicle or the
vehicle's steering wheel"
Structure: "optical, Hall-effect, magnetic reed, inductive, or capacitive sensors, or equivalents
thereof'

17

This term appears in claim 5 of the '616 patent.
23

Volkswagen
Function: "sensing the turning angle of the wheels, or the angle of rotation of the steering
wheel, without interruption (excluding checking the steering wheel position periodically, such
as, for example, in cycles of 20 milliseconds)"
Structure: "(1) A wheel.angle sensor containing a spring-loaded sensors placed at the front and
back of the front axle, which can travel inward but not outward, and activators on the wheel
hub, whereby at a certain turning angle, (i) loss of contact between a sensor and an activator
will occur and thereby activate the sensor, or (ii) contact between a sensor and activator and
sufficient compression of the spring-loaded sensor will occur and thereby activate the sensor;
(2) a wheel angle sensor containing Hall-effect, magnetic reed, or inductive sensors; (3) a
steering wheel angle sensor containing two copper protrusions located horizontally on the
steering column, adapted to touch, and therefore connect electrically, two copper protrusions
located on the inside of the housing of the steering column; or (4) a steering wheel angle
sensor containing optical, Hall-effect, magnetic reed, inductive, or capacitive sensors; or an
equivalent of any of the foregoing structures"
Court
Function: "sensing the turning angle of the wheels, or the angle of rotation of the steering
wheel, without interruption (excluding checking the steering wheel position periodically, such
as, for example, in cycles of 20 milliseconds)"
Structure: "(l) A wheel angle sensor containing spring-loaded sensors placed at the front and
back of the front axle, which can travel inward but not outward, and activators on the wheel
hub, whereby at a certain turning angle, (i) loss of contact between a sensor and an activator
will occur and thereby activate the sensor, or (ii) contact between a sensor and activator and
sufficient compression of the spring-loaded sensor will occur and thereby activate the sensor;
(2) a wheel angle sensor containing Hall-effect, magnetic reed, or inductive sensors; (3) a
steering wheel angle sensor containing two copper protrusions located horizontally on the
steering column, adapted to touch, and therefore connect electrically, two copper protrusions
located on the inside of the housing of the steering column; or (4) a steering wheel angle
sensor containing optical, Hall-effect, magnetic reed, inductive, or capacitive sensors; or an
equivalent of any of the foregoing structures"

Cloud Farm states that the parties are in agreement regarding Volkswagen's proposed
construction of the function ofthis means-plus-function term, with the exception of the
"exclusion" in parentheses in Volkswagen's proposed construction. (D.I. 271 at 9) The Court
agrees with Volkswagen that the parenthetical exclusion is proper, because it clarifies that certain
claim scope was given up during prosecution of the '616 patent. (See D.l. 265 at 23)
Specifically, the Court finds that Cloud Farm gave up coverage of functionality recited in the
24

Sugasawa reference, which covered checking steering wheel position periodically. (See id. at Ex.
B-18)
The Court finds that Volkswagen's proposed structure accurately enumerates the various
embodiments of this term that are recited in the specification. (See '616 patent at 4:44-48, 4:585:8, 5:24-32, 12:39-52, 12:59-13:10) By contrast, Cloud Farm's proposed construction fails to
recite the copper protrusions or spring-loaded sensors recited in the specification. Therefore, the
Court will adopt Volkswagen's proposed construction of this term, with the minor change of
pluralizing "sensors" in place of "a spring-loaded sensors [sic]" to reflect the disclosures in Figs.
5-7 and accompanying text showing multiple spring-loaded wheel sensors (and to comport with
·recital of sensors "at the front and back of the front axle" in the Court's construction).

"means for activating said means for controlling said suspension system at a· pre-set
angle of movement of said vehicle depending upon the speed of the vehicle in
accordance with the Table set forth below:

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,~C:~ivitre.'Su~peiisi{)n

Veb~clc ~peea

Svsiem.:cantrbl'.

(rniksihom0

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'·.1

100

80

,3
'6
7~

60
40
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10

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.l3~1$.

to convert the normally fast rate of movement of the body toward said axle to. a
slower rate of movement of said body toward said axle." 18

18

This term appears in claim. 5 of the '616 patent.
25

Cloud Farm
Function: "sending to the suspension-controlling means an electrical signal or current at a
vehicle steering angle and road speed as described in the table"
Structure: "a microprocessor and electrical circuit, or equivalents thereof'
Volkswagen
Function: "activating said means for controlling said suspension system at a vehicle wheel
turning angle of
·• 1 degree ifthe vehicle speed is 120 miles per hour,
• 2 degrees if the vehicle speed is 100 miles per hour,
• 3 degrees if the vehicle speed is 80 miles per hour,
• 6 degrees ifthe vehicle speed is 60 miles per hour,
• 7-8 degrees if the vehicle speed is 40 miles per hour,
• 9-10 degrees if the vehicle speed is 20 miles per hour,
and
• 13-15 degrees, if the vehicle speed is 10 miles per hour,
to convert the normally fast rate of movement of the body toward said axle to a slower rate of
movement of said body toward said axle, whereby the rate of movement of the body toward
the axle becomes a constant"
Structure: The specification does not describe structure performing the claimed function
Court
Function: "activating said means for controlling said suspension system at a vehicle wheel
turning angle of
• 1 degree ifthe vehicle speed is 120 miles per hour,
• 2 degrees if the vehicle speed is 100 miles per hour,
• 3 degrees ifthe vehicle speed is 80 miles per hour,
• 6 degrees ifthe vehicle speed is 60 miles per hour,
• 7-8 degrees if the vehicle speed is 40 miles per hour,
• 9-10 degrees if the vehicle speed is 20 miles per hour,
and
• 13-15 degrees, if the vehicle speed is 10 miles per hour,
to convert the normally fast rate of movement of the body toward said axle to a slower rate of
movement of said body toward said axle"
Structure:· The specification does not describe structure performing the claimed function

The Court agrees with Volkswagen that this term's function is directed to activating the
means for controlling the suspension at certain wheel turning angles, as clf)rified during
reexamination of the '616 patent. (See D.l. 321 Ex. B-57 at VWGOA 31182) (Cloud Farm's
September 9, 2014 Interview Summary) Cloud Farm does not appear to dispute this point. (See

26

D.I. 327 at 10) ("The table in claim 5, unlike Yokoya, provides correlations between turning

(tire) angle and velocity.") (emphasis in original) The Court also agrees with Volkswagen that
"sending ... an electrical signal or current" to the suspension-controlling means is ·not the same
as "activating" the suspension-controlling means. (See Tr. at 32-33) ("Activating captures the
· concept that the system is inactive until certain angles and speeds are reached. And once that
happens, the system is activated, and that is perfectly captured by the claim term the claim uses.")
The Court disagrees, however, with Volkswagen's inclusion of the following language in
its proposed construction for the function of this term: "whereby the rate of movement of the
body toward the axle becomes a constant." The Court finds that Cloud Farm did not clearly
disclaim functionality such that this additional language is required. As the prosecution history
cited by Cloud Farm shows, Cloud Farm argued that the ''piston velocity'' is eventually confined
to a relatively narrow range but does not necessarily become "constant." (See D .I. 327 at 16-17) ·
Other than the "whereby ..." language, however, the Court agrees with Volkswagen's
construction of the term's function, including direct quotation of the cited table in the function's
construction and the other language reciting (mostly verbatim) language from the claim.
Regarding the claimed structure, the Court agrees with Volkswagen that the specification
of the '616 patent fails to disclose a structure corresponding to the claimed function. In
particular, the Court finds that the '616 patent discloses nothing, other than a "microprocessor,"
that could implement the claimed function of this term. As held in Aristocrat Technologies

Australia Pty Ltd. v. Int'! Game Tech., 521F.3d1328, 1333 (Fed. Cir. 2008), "[i]n cases
involving a computer-implemented invention in which the inventor has invoked
means-plus-function claiming, [the Federal Circuit] has consistently required that the structure

27

disclosed in the specification be more than simply a general purpose computer or
microprocessor." Cloud Farm has pointed only to a general purpose microprocessor, and the
. Court can find nothing else in the specification that would carry out this term's function. Thus,
claim 5 of the '616 patent fails to recite a structure that corresponds to the claimed function. See
Noah Sys., 675 F.3d at 1312.

III.

CONCLUSION

The Court construes the disputed terms as explained above. An appropriate Order
follows.

28