Plastic Omnium Advanced Innovation and Research v. Donghee America Inc. et al

Filing 199

MEMORANDUM OPINION re claim construction. Signed by Judge Leonard P. Stark on 11/6/17. (ntl)

INTHE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PLASTIC OMNIUM ADVANCED
INNOVATION AND RESEARCH,
Plaintiff,
C.A. No. 16-187-LPS

v.

DONGHEE AMERICA, INC. and
DONGHEE ALABAMA, LLC,
Defendap.ts.
Chad S.C. Stover and Regina S.E. Murphy, BARNES & THORNBURG LLP, Wilmington, DE
Robert C. Mattson, Eric W. Schweibenz, Frank J. West, Vincent K. Shier, Christopher Ricciuti,
and Katherine D. Cappaert, OBLON, McCLELLAND, MAIER & NEUSTADT, L.L.P.,
Alexandria, VA
Attorneys for Plaintiff.

Philip A. Rovner and Jonathan A. Choa, POTTER ANDERSON & CORROON LLP,
Wilmington, DE
Alyssa Caridis, ORRICK, HERRINGTON & SUTCLIFFE LLP, Los Angeles, CA
Nicholas H. Lam, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, NY
Attorneys for Defendants.

MEMORANDUM OPINION

November 6, 201 7
Wilmington, Delaware

Plaintiff Plastic Omnium Advanced Innovation and Research ("Plastic Omnium" or
"Plastic") brought this patent infringement suit against Defendants Donghee America, Inc. and
Donghee Alabama, LLC (together, "Donghee"), alleging that Donghee's manufacture and sale of
certain automotive fuel tanks infringes Plastic's U.S. Patent Nos. 6,814,921 (the '"921 patent");
6,866,812 (the '"812 patent"); 7,166,253 (the "'253 patent"); 8,122,604 (the '"604 patent") 1;
8,163,228 (the '"228 patent"); 9,079,490 (the "'490 patent"); 9,399,326 (the "'326 patent"); and
9,399,327 (the '"327 patent"). (See generally D.l. 1, 14) The asserted patents generally relate to
methods for manufacturing automotive fuel tanks; they describe and claim processes "known in
the industry as 'twin-sheet blow molding' or 'TSBM."' (D.I. 14 at 3)
Presently before the Court is the issue of claim construction. The parties submitted
technology tutorials (see D.I. 81, 86), and claim construction briefs (see D.I. 84, 85, 102, 105).
The Court held a claim construction hearing on September 6, 201 7, at which both sides presented
oral argument. (See D.I. 184 ("Tr."))

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., 135 S. Ct. 831, 837 (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 e;xclude."
Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (internal quotation marks omitted).

1

Perthe parties' recent stipulation (see D.I. 195), the '604 patent has been dismissed froin
this case.
1

"[T]here is no magic formula or catechism for conducting claim construction." Id. at
1324. Instead, the court is free to attachthe 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."
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

"~he

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

2

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
using words or expressions of manifest exclusion or restriction." Hill-Rom Servs., Inc. v. Stryker
Corp., 755 F.3d 1367, 1372 (Fed. Cir. 2014) (quoting Liebel-Flarsheim Co. v. Medrad, Inc., 358

F.3d 898, 906 (Fed. Cir. 2004)) (internal quotation marks omitted).
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), aff'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 1317. "[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 extrinsi.c 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,
3

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
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 GmbH v. 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)).
4

II.

CONSTRUCTION OF DISPUTED TERMS
A.

Parison Terms
(1) "extruded parison of closed cross section"2
(2) "extruding a [multilayered] parison" 3

Plastic Omnium
(1) "an extruded plastic body having a closed cross section"
(2) "extruding a [multilayered] plastic body having a closed cross section"

Donghee
(1) "a plastic tube with a closed cross section formed by forcing plastic through a die"
(2) "forcing plastic through a die head to form a plastic tube [of multiple layers] with a closed
cross section"

Court
(1) "a tubular preform with a closed cross-section that has been forced through a die, and is cut
or split as it exits the die or at some time thereafter"
(2) "a [multilayered] tubular preform with a closed cross-section that has been forced through
a die, and is. cut or split as it exits the die or at some time thereafter"
There is no disagreement between the parties as to the "ordinary and customary" meaning
of the term "parison." (See, e.g., D.I. 85 at 5-6, D.I. 105 at 2) As Plastic states, the term refers to
a "hollow plastic-tube exiting the die of an extrusion head." (D.I. 105 at 2) Donghee, citing the
two patents' disclosures, as well as technical encyclopedias and dictionaries, contends that this
definition should play a prominent role here. (See D.I. 85 at 4-6) In Plastic's view, however,
Donghee "conflat[es] the use of the term 'parison' in conventional blow molding with the use of
the term 'parison' in Plastic Omnium's improved and novel ... process." (D.I. 84 at 3) Plastic

2

This term appears in claims 1, 2-5, 8, and 9 of the '921 patent.

3

This term appears in claims 16, 25, 27, 30-32, 39, 41, 44, and 45 of the '812 patent.
5

urges the Court to find that the "conventional definition of 'parison' does not apply to the
asserted patents." (D.I. 105 at 2)
More specifically, Plastic argues that here the term "parison" should not be construed to
·require that "a traditional, plastic test-tube like.structure ... be formed outside of the extrusion
head/die." (D.I. 84 at 3) Instead, according to Plastic, the relevant technology "uses a traditional
extrusion head to form a parison that is split or cut into two sheets of plastic as it is being

extruded." (Id.) (emphasis added) Thus, the "extruded parison" here "refers to the preform
shape that is intended to be split or cut into two sheets." (D.I. 105 at 5)
"To act as its own lexicographer, a patentee must clearly set forth a definition of the
disputed claim term other than its plain and ordinary meaning." Aventis Pharma S.A, v. Hospira,

Inc., 675 F.3d 1324, 1330 (Fed. Cir. 2012) (internal quotation marks omitted). This "clear
expression" may be "inferred from clear limiting descriptions of the invention in the specification
or prosecution history." Id.; see also Phillips, 415 F.3d at 1313 ("Importantly, the person of
ordinary skill in the art is deemed to read the claim term not only in the context of the particular
claim in which the disputed term appears, but in the context of the entire patent, including the
specification.").
The Court agrees with Plastic that the '921 and '812 patents do not use the term "parison"
is its conventional, plain and ordinary meaning. Instead, among other things, the patents specify
that the "parison" is cut in two as it leaves the die at the end of the extrusion head. (See, e.g.,
'921 patent at 3:24-27; '812 patent at 2:46-47) In this context, this "parison" cannot be strictly
limited to a fully-formed tubular structure existing in its entirety outside the extrusion head/die.
Having coneluded that the term "parison" as used in the asserted claims is not to be given

6

its plain and ordinary meaning, the principal disagreements between the parties seem to be
identifying the point at which the molten plastic within the extrusion head becomes a "parison,"
and identifying the location of the die.
While the Court agrees with Plastic that "the claimed 'parison' may be split ... at the exit
of the extrusion head/die, ... or ... even after a plastic tube has exited the extrusion head/die"
(D.I. 84 at 4; see also '921 patent at 3:24-27 (describing splitting of tubular structure right as it
leaves extrusion head)), the Court finds no support for Plastic's additional contention that its
claimed process includes the splitting of molten plastic "within the extrusion head/die" (D.I. 84
at 4) (emphasis added). There is no disclosure in the patents' specifications that contemplates the
splitting of the tubular preform at any stage earlier than right as the previously tubular structure
leaves the die/extrusion head. Thus, the Court agrees with Donghee that the construction of the
"extruded parison" terms should not include molten plastic (or a tubular preform) present inside
the die/extrusion head. (See generally D.l. 85 at 5) ("Nowhere in the patents is an extruded
parison described as the molten plastic inside of the machine.") The Court further agrees with
Donghee that Plastic is incorrect in its contention that the die can be located anywhere. (See
generally Tr. at 24; D.I. 105 at 3) 4
Accordingly, the Court will construe the term "parison" as referring to a plastic tube with
a closed cross section that is shaped by - and has reached the end of - a die, and is split either
immediately upon exiting the die or at some point thereafter.

4

Both patents specify that the "die" is located at the "extrusion head['s]" "lowest point."
('921 patent at 3:4-5; see also '812 patent at 2:37-38 (referring to "extruder whose head is
terminated by the die"); see also Tr. at 24-25 (identifying location of extrusion head or die as
important dispute))
7

(3) "split or at least hvo part parison" 5
Plastic Omnium
Plain and ordinary meaning.
If an express construction is deemed necessary: "a plastic body for blow-molding that is split
or made into two parts"

Donghee
"a plastic tube with a closed cross section formed by forcing plastic through a die, which is
then cut"
Court
"a tubular preform with a closed cross-section that has been forced through a die, and is cut or
split as it exits the die or at some time thereafter"
· The parties appear to agree that the Court's construction of this term follows from its
construction of the first two ''parison" terms. (See, e.g., D.I. 84 at 6) ("The disputed term 'split
or at least two part parison' raises similar issues as the 'parison' terms recited in the '921 and
'812 patents.") As Donghee notes, "the '327 patent expressly incorporates, by reference, the
European counterpart of the '812 patent ... and the PCT parent of the '921 patent ... in
explaining how to make a split or at least two-part parison." (D.I. 85 at 6-7) The Court finds no
basis on which to construe the term "split or at least two part parison" in a manner distinct from
its preceding constructions above.

(4)

"extruded tubular parison" 6

Plastic Omnium
"extruded tubular preform intended to form the wall of the fuel tank after molding"

5

This term appears in claims 1, 7, 9, and 15 of the '327 patent.

6

This term appears in claim 2 of the '228 patent.
8

Donghee
"tubular preform intended to form the wall of the fuel tank after molding, formed by forcing
plastic through a die"
Court
"a tubular preform with a closed cross-section that has been forced through a die, and is cut or
split as it exits the die or at some time thereafter"

Similarly here, there is no basis for the Court's construction of this term to differ from its
construction of the "parison" terms construed above, and the parties' arguments with respect to
this term refer back to their contentions regarding the earlier terms. (See, e.g., D.I. 84 at 8) ("As
before, the dispute between the parties is whether the term 'extruded tubular parison' should be
... narrowed to require a plastic tube to exit an extrusion/die head before it is cut into two
sheets.")
B.

Molding Terms
(1) "during the operation of molding the shell" and "during molding" 7
(2) "at the same time as said tank is manufactured by moulding with a
mould" 8
(3) "at the time of manufacture of the tank when moulding" 9

Plastic Omnium
Plain and ordinary meaning. If an express construction is deemed necessary:

(1) "during the processing of forming the tank shell and before joining the shells"
(2) & (3) "during the blow molding process"

7

These terms appear in claims 5 and 9 of the '921 patent.

8

This term appears in claims 1, 2, 7, 8, and 12-14 of the '490 patent.

9

This term appears in claims 1 and 7 of the '327 patent.
9

Donghee
(1) "while the sheet is being compression and/or blow molded to form the shell"

(2) & (3) "while the plastic is being thermoformed or blow molded to form the tank"
Court
(1) "during the process of forming the tank shell and before joining the shells, until the plastic
is no longer molten and pliable"

(2) & (3) "during the blow molding process, until the plastic is no longer molten and pliable"
Donghee characterizes the parties' dispute as "one of timing and ambiguity." (D.I. 85 at
9) Donghee contends that these terms are limited to the attachment of components during the
period of time when the tank plastic "is actually being shaped" - that is, at some point before the
plastic "has taken the shape of the mold." (Id. at 11-12) In support of its position, Donghee
argues that "[t]he verb 'molding' (or 'moulding') has a well understood meaning - it refers to the
act of shaping material." (Id. at 9)
Plastic responds that Donghee' s proposals are "nonsensical" because they would require
"accessory attachment to occur ... simultaneously with the molten plastic being forced against
the mold cavity to give the fuel-tank walls their shape." (D.I. 105 at 9) Plastic says this would
be a "technical nightmare, if not an outright impossibility." (Id.) Plastic also refers to certain
intrinsic evidence that it argues supports its view that the relevant period extends beyond the
literal shaping process (see id. at 10-12); it contends that these "molding'' terms contemplate the
installation of accessories in a manner that utilizes the "flow" or "pliable" nature of molten
plastic (id. ·at 10).
The Court is not persuaded that Donghee' s narrow view is consistent with the ordinary
and customary meaning of these terms as a skilled artisan would perceive them. The Court

10

agrees with Plastic that the relevant "process" lasts as long as "the plastic is still molten and
pliable." (Id. at 14)

C.

"preassembled structure" 10

Plastic Omnium
Plain and ordinary meaning.
If an express construction is deemed necessary: "a premade structure"

Donghee
"a set of multiple parts previously joined into a single arrangement that attaches to at least
several accessories"
Court
"a set of multiple parts previously joined into a single arrangement that is capable of
attachment to at least one accessory"
Emphasizing claim language specifying that the relevant "accessor[ies]" are "supported
by a preassembled structure" ('253 patent at claim 1), and noting that the word "preassembled"
implies "a structure previously assembled from multiple parts" (D.I. 85 at 15), Donghee argues .
that "preassembled structures" are distinct structures that attach to accessories (and are not
themselves accessories), and are not merely "premade" but, rather, comprise multiple parts that
are joined at some earlier point in time. Plastic counters that "the specification requires only that
the 'preassembled structure' be produced in a separate process from the blow-molded fuel tanki.e., it is a 'premade structure."' (D.I. 105 at 15)
The Court agrees with Donghee that the term "preassembled structure" here refers to a
structural feature comprising at least two parts, which is initially distinct from the accessory or
accessories that it "supports" and can then be joined with the relevant accessor(ies). This is

10

This term appears in claims 40 and 41 of the '812 patent as well as claims 1, 2, 3, 11,
12, and 14 of the '253 patent.
11

consistent with the patents' disclosure that the structure: is "preassembled" (which the Court
does not understand to merely mean "premade," as Plastic suggests); it "support[ s]" the "inserted .
accessory" or accessories (' 25 3 patent at 4: 12-16); it "comprises at least one device configured to
anchor said preassembled structure to an internal wall" ('253 patent at claim 1); and that the
"preassembled structure" can be inserted "independently of the ... insertion of accessories ... to
the internal wall of the hollow body" ('253 patent at 4:23-26).
The Court finds insufficient support, however, for Donghee's assertion that any given
"preassembled structure must attach to 'at least several accessories' for the invention to make
sense" (D.I. 85 at 16), or that it must at least be capable of attaching to several accessories.
Donghee's proposal would result, improperly, in importing a limitation from the specification.
The claims may be satisfied so long as the "preassembled structure" is capable of attaching to at
least one accessory.

D.

"orifice" 11

Plastic Omnium
Plain and ordinary meaning.
If an express construction is deemed necessary: "hole"

Donghee
"a hole that passes through the accessory [or support for an accessory]"
Court
"hole"
The parties' disagreement here is whether the term requires the claimed "orifice" to
extend fully through the relevant accessory or only some portion of the accessory. Donghee,

11

This term appears in claims 1, 13, 25-27, 33, 34, and 44 of the '326 patent.
12

pointing to the '326 patent's disclosure, argues that the invention is limited to "'a method for
stake-fastening an accessory in a plastic fuel.tank whereby the accessory is equipped with at least
one orifice which passes right through the accessory."' (D.I. 85 at 17) (quoting '326 patent at
2:15-18) Donghee also points out that the claims explicitly require that the relevant accessory
have a "wall portion," and an "orifice" which "passes through the wall portion of the accessory."
(E.g., '326 patent at claim 1)
Plastic responds that the plain and ordinary meaning of the term "orifice" is simply
"hole," and further cites to the patent's disclosure, which indicates that the two words are ·
synonymous. (See '326 patent at 3:34) Plastic also argues that Donghee's construction would be
redundant, as the "claims themselves define the precise structural relationship of the 'orifice' or
'hole' with respect to the claimed wall portion of the accessory." (D.I. 84 at 20)
The Court agrees with Plastic. Although the patent refers to an "orifice" or "hole" that
"passes right through [the accessory's] wall" ('326 patent at 3:34 (emphasis added); see also,
e.g., id. at claim 1) - rather than into the accessory wall - this disclosure is not sufficient to make
Donghee's proposed construction correct. See generally Thorner v. Sony Computer Entm 't Am.
LLC, 669 F.3d 1362, 1366 (Fed. Cir. 2012) (explaining that "standard for disavowal of claim
scope is . . . exacting").

13

E.

Shaping terms
(1) "shaping the protruding molten plastic" 12
(2) "the protrusion having been shaped" 13
c

Plastic Omnium
These claim terms are definite.

If an express construction is deemed necessary:
(1) "shaping the top of the protruding molten plastic to provide a self-formed plastic rivet"
(2) "the top of the protruding molten plastic having been shaped to overhang the at least one
orifice"
Donghee
Indefinite.

If not:
(1) "applying a counterform to deform the protruding molten plastic"
(2) "the protrusion having been deformed by the application of a counterform"
Court
(1) "shaping the protruding molten plastic to provide a self-formed plastic rivet"

(2) "the protruding molten plastic having been shaped to overhang the at least one orifice"
As Donghee contends that these "shaping" terms are indefinite, it bears the burden of
,showing, by clear and convincing evidence, that this claim language, "viewed in light of the
specification and prosecution history," fails to "inform those skilled in the art about the scope of
the invention with reasonable certainty." Biosig Instruments, Inc. v. Nautilus, Inc., 783 F.3d

12

This term appears in claims 1 and 13 of the '326 patent and claims .1, 7, 9, and 15 of the
'3 2 7 patent.
13

This term appears in claims 25-27, 33-34, and 44 of the '326 patent.
14

1374, 1378 (Fed. Cir. 2015) (quoting Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120,
2129 (2014)). In particular, Donghee asserts that the claims are "impermissibly ambiguous," and
therefore invalid, because they are "internally inconsistent or nonsensical." (D.I. 85at18)
Donghee points to the method claims' reference to a "self-formed plastic rivet." A rivet made by
"deliberately shaping the plastic," Donghee says, "is, by definition, not self-formed." (Id. at 18
(emphasis omitted); see also '326 patent at claim 1) Similarly, Donghee suggests that the
apparatus claims are ambiguous because they can be read to include both "active[]" shaping or
"shap[ing] by the law of nature whereby molten plastic takes on some form." (D.I. 85 at 18; see

also, e.g., '326 patent at claim 25)
Donghee has failed to prove indefiniteness. Plastic explains that the method claims'
reference to "self-formed" is to the rivet's formation from "some of the plastic of which the wall
of the tank is made" (D.I. 105 at 18) (internal quotation marks omitted), rather than "a separate
rivet inserted into or through the fuel-tank's wall" (id.).
Alternatively, Donghee seeks a construction that would limit the terms to active shaping
through use of a counterform. Donghee argues this is necessary because (1) "passive shaping [is]
not described in the patents," and (2) the relevant claims' "shaping" step is preceded by a
"forcing" step, which results in the formation of "molten plastic protruding through the orifice of
the accessory.". (D.I. 102 at 9) (emphasis and internal quotation marks omitted) In Donghee's
view, a "construction that encompasses passive shaping would render superfluous" the "shaping"
step, because the "forcing" step already "requires plastic to flow through the orifice and form a
protrusion on the opposite side." (Id.)
The Court is not persuaded. While it is clear that the "forcing" step would necessarily

15

produce "molten plastic protruding through the orifice" ('326 patent at claim 1), there is nothing
to suggest that every type of "protru[ sion]" will necessarily take on the shape of a rivet. The
Court further agrees with Plastic that requiring the use of a counterform would, under the
circumstances, improperly "limit[] the claims to a preferred embodiment." (D.I. 105 at 18)
Accordingly, the Court will adopt Plastic's proposed construction, except without
including language requiring that the "shaping" occur at the "top" of the "protruding molten
plastic," as such a restriction is not supported.

F.

"stretched" 14

Plastic Omnium
Plain and ordinary meaning.
If an express construction is deemed necessary, the term "bend which is stretched" means:
"bend which is elongated relative to its relaxed state"

Donghee
"extended in length by pulling"
Court
"extended in length relative to a relaxed state"
The precise contours of the parties' disputes with respect to this term are not entirely
clear. To the extent the parties disagree as to whether what is being "stretched" is only the
"pipe," and not also the "bend" in the pipe, the Court agrees with Donghee that it is the pipe that
is being stretched. (See '228 patent at 3:52-55) (explaining that claimed process uses "pipe"
which features "bend," and that "bend" is "any deformation that allows the pipe to be lengthened
when·stretched") (emphasis added) To the extent the parties dispute whether the only manner by
which stretching may be accomplished is by pulling, the Court agrees with Plastic that no such

14

This term appears in claims 1-4 and 7-9 of the '228 patent.
16

limitation is warranted. To the extent the parties disagree as to what it means to be "extended,"
the Court again agrees with Plastic that "extended" requires a length greater than when the pipe is
in its relaxed (unstreteched) state.

III.

CONCLUSION

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

17