CANVS Corporation v. Nivisys, LLC
Filing
73
ORDER re 57 the Parties' Joint Claim Construction Pre-Hearing Statement filed on July 27, 2015; Plaintiff CANVS Corporation's Opening Claim Construction Brief 39 filed on December 1, 2014; and Defendant Nivisys, LLC's Brief on Claim Construction 46 filed on July 7, 2014. SEE ORDER FOR DETAILS. Signed by Judge Sheri Polster Chappell on 10/29/2015. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CANVS CORPORATION,
Plaintiff,
v.
Case No: 2:14-cv-99-FtM-38MRM
NIVISYS, LLC,
Defendant.
/
ORDER1
This matter comes before the Court on the Parties’ Joint Claim Construction PreHearing Statement (Doc. #57) filed on July 27, 2015; Plaintiff CANVS Corporation’s
Opening Claim Construction Brief (Doc. #39) filed on December 1, 2014; and Defendant
Nivisys, LLC’s Brief on Claim Construction (Doc. #46) filed on July 7, 2014. A Markman2
hearing was held on September 22, 2015 (Doc. #69). The matter is ripe for review.
Background
This action arose from the alleged infringement of United States Patent No.
6,911,652 (“‘652 Patent” or “Patent”), entitled “Low Light Imaging Device.” Stated in the
simplest terms, the Patent describes a device that combines the benefits of night vision
and thermal technology to create an enhanced image that gives the user a tactical
1
Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These
hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in
CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse,
recommend, approve, or guarantee any third parties or the services or products they provide on their
websites. Likewise, the Court has no agreements with any of these third parties or their websites. The
Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.
2
Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995), aff’d, 517 U.S. 3780 (1996).
advantage in low light environments. ‘652 Patent. Nivisys manufactures and sells
Thermal Acquisition Clip-on System (“TACS-M”) products that, when attached to certain
models of night vision devices, also create a device that combines night vision and
thermal technology. (Doc. #1 at 3-4). CANVS believes these TACS-M products induce
infringement and contribute to the direct infringement of several claims asserted in the
Patent. (Doc. #1 at 5-7). Nivisys, however, believes there is a stark difference between
the Patent and the device created from the attachment of its TACS-M products because
the former performs image fusion, whereas the latter does not. (Doc. #11 at 4-7). The
parties now ask the Court to construe six claim terms from the Patent that are in dispute.
Standard
A “bedrock principle” of patent law is 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) (citations omitted). The Court must construe a
claim “to accord [it] the meaning it would have to a person of ordinary skill in the art at the
time of the invention.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381
F.3d 1111, 1116 (Fed. Cir. 2004).
To do so, the Court first considers three sources of
intrinsic evidence: the claims themselves, the specification, and the prosecution history
(if it is in evidence). Markman, 52 F.3d at 979.
The claim language itself provides the starting point, “for that is the language the
patentee has chosen to particularly point out and distinctly claim the subject matter which
the patentee regards as his invention.”
Innova/Pure Water, Inc., 381 F.3d at 1116
(alterations and citations omitted). But this language must also “be read in view of the
specification, of which [it is] a part.” Markman, 52 F.3d at 979. The specification includes
2
a written description of the invention that “may act as a sort of dictionary, . . . explain[ing]
the invention and . . . defin[ing] terms used in the claims.” Id. And, if it is in evidence, the
Court must also consider the patent’s prosecution history.
See id at 980.
This
“undisputed public record of proceedings in the Patent and Trademark Office is of primary
significance in understanding the claims.” Id. (citation omitted).
If necessary, the Court may also consider extrinsic evidence, consisting of “all
evidence external to the patent and the prosecution history. . . .” Id. This includes “expert
and inventor testimony, dictionaries, and learned treatises.” Id. Such evidence “may be
helpful to explain scientific principles, the meaning of technical terms, and terms of art
that appear in the patent and prosecution history.” Id. It may also “demonstrate the state
of the prior art at the time of the invention,” and be useful “to show what was then old, to
distinguish what was new, and to aid the Court in the construction of the patent.” Id.
(citations omitted).
Discussion
The Court will construe each disputed claim term in turn.3
2. “an optical input structured to define a line of sight”
No.
2.
Term
CANVS’
Proposed
Alternative Construction
“an optical input The entrance aperture(s) that
structured to define determine(s) the line of sight
a line of sight”
between the low light imaging
device and external objects.
3
Nivisys’
Proposed
Construction
A single optical input
structured to define a single
straight
line
of
sight
extending from the optical
input to the scene being
observed.
Although the parties ultimately agreed on many terms originally in dispute, the Court will use the original
term numbers.
3
The parties’ first dispute is over the term “an optical input structured to define a line
of sight,” found in Claims 44 and 5. ‘652 Patent col. 7 ll. 19-22, 25. CANVS believes no
construction of this term is necessary, but proposes an alternative construction that
provides, “[t]he entrance aperture(s) that determine(s) the line of sight between the low
light imaging device and external objects.” (Doc. #39 at 9-14). Nivisys proposes a
construction that provides, “[a] single optical input structured to define a single straight
line of sight extending from the optical input to the scene being observed.” (Doc. #46 at
4-9). For the reasons set forth below, the Court finds a construction is necessary, but
declines to adopt either proposed construction.
The Court agrees, for the most part, with CANVS’ primary contention that no
construction of this term is necessary. That said, Nivisys makes one argument that the
Court finds persuasive: this term must be construed to reflect a single line of sight. Neither
party contests that ‘a’ or ‘an’ typically “carries the meaning of ‘one or more’ in open-ended
claim containing the traditional phrase ‘comprising.’” Free Motion Fitness, Inc. v. Cybex
Int'l, Inc., 423 F.3d 1343, 1350 (Fed. Cir. 2005). There is an exception to this rule,
however, “[w]hen the claim language and specification indicate that ‘a’ means one and
only one.” Harari v. Lee, 656 F.3d 1331, 1341 (Fed. Cir. 2011). Turning to this case, the
Court finds both the rule and exception apply.
Both Claims 4 and 5 are open-ended claims containing “comprising.” This means
any use of “a” or “an” in these claims typically means “one or more.” For “an optical input,”
this rule holds true. Contrary to Nivisys’ position, there is no explicit support in the
specification or claim language to conclude the claims should be limited to a single optical
4
Because Claim 4 is a dependent claim, each disputed term is read into Claim 4 through independent
Claim 1.
4
input. Rather, the specification provides it is “preferably a single optical input which
defines a line of sight.” ‘652 Patent col. 2 ll. 49-50. The word “preferably” is not sufficient
evidence to indicate that “a” means one and only one. That said, the exception to the
rule comes into play for “a line of sight.” The specification discusses “this line of sight,” a
singular description. Id. at col. 2 l. 51. The specification also teaches, and the claim
language reflects, that the thermal imaging assembly and the image intensification
assembly operate on the same line of sight to generate their respective images. Again,
a singular description for “a line of sight.” These clear indications that “a line of sight”
means one and only one warrant applying the exception to the rule for this part of the
term.
The Court therefore construes “an optical input structured to define a line of sight”
as “an optical input structured to define a single line of sight.”
3. “thermal image”
No.
Term
3. “thermal image”
CANVS’
Proposed
Alternative Construction
An image representative of
the relative intensity of
infrared radiation emitted by
and/or reflected from objects
in a scene.
Nivisys’
Proposed
Construction
An image that is a visible
light representation of only
thermal radiation signatures
from a scene.
The parties’ second dispute is over the term “thermal image,” found in Claims 4
and 5. CANVS believes no construction of this term is necessary, but proposes an
alternative construction that provides, “[a]n image representative of the relative intensity
of infrared radiation emitted by and/or reflect from objects in a scene.” (Doc. #39 at 1415). Nivisys proposes a construction that provides, “[a]n image that is a visible light
5
representation of only thermal radiation signatures from a scene.” (Doc. #46 at 10-15).
For the reasons set forth below, the Court adopts Nivisys’ proposed construction.
The specification teaches that “[t]he low light imaging device . . . includes a thermal
imaging assembly.” ‘652 Patent col. 2 ll. 54-55. This thermal imaging assembly is
“structured to generate a thermal image that is representative of the perceived radiation
signatures.” Id. at col. 2 ll. 57-58. The low light imaging device also includes an image
intensification assembly. Id. at col. 2 ll. 61-62. Similar to the thermal imaging assembly,
this image intensification assembly “is structured to amplify the perceived photons in order
to generate an enhanced photon based image that is viewable by the user of the device.”
Id. at col. 2-3 ll. 67-2. Both the thermal imaging assembly and image intensification
assembly have corresponding adjustment assemblies structured to adjust the intensity of
their respective images. Id. at col. 6 ll. 45-53, col. 8 ll. 33-38. These images are eventually
combined in the output image generation assembly, generating a single output image.
Id. at col. 6 ll. 57-60, col. 8 ll. 1-4.5
Nivisys asserts its proposed construction is proper because it incorporates two
important aspects into the “thermal image” term that are found throughout the
specification and claims – (1) the thermal image contains only radiation signatures and
no part of the enhanced photon based image and (2) the thermal image is a “visible light
representation” because the term “image” is used throughout the Patent to refer to a user
visible image. For its part, CANVS argues that (1) a thermal image can include visual
elements separate from the radiation signatures and still be a thermal image and (2) there
is no reason the thermal image could not be in a non-visible portion of the light spectrum,
5
Both Claims 4 and 5, the claims at issue, possess every limitation set out in this paragraph.
6
“as long as it was combinable to form a final visible image.” The Court will address each
issue in turn.
As to the first issue, it is clear the thermal image and enhanced photon based
image are separate and distinct images generated by separate and distinct image
assemblies. These separate and distinct images are not combined until they reach the
output image generation assembly, and therefore cannot incorporate aspects of each
other until that time. Importantly, the initial use of the term “thermal image” in the claims
refers to only the image generated by the thermal imaging assembly – an image that is
“representative of [] radiation signatures.” Id. at col. 6 ll. 39-42, col. 7 ll. 26-29. Any
subsequent use of “thermal image” in the claims is prefaced with “said,” rendering them
anaphoric phrases that refer to the initial antecedent use of this term. See Baldwin
Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1343 (Fed. Cir. 2008).
Nivisys’
proposed construction mirrors the claim language by describing the term as an image
that only contains radiation signatures. The Court therefore adopts this portion of Nivisys’
proposed construction and finds CANVS’ unsupported argument on this issue
unpersuasive.
The second issue – whether “visible light representation” should be read into the
term – is a closer call. Nivisys asserts that “visible light representation” should be read
into the construction to denote the thermal image is viewable to the user once it is
generated by the thermal imaging assembly. Nivisys bases this argument on the fact that
all three image assemblies generate “images,” and the enhanced photon based image
and output image are viewable to the user once generated. If “visible light representation”
was excluded from the construction, then the word “image” would be used inconsistently
7
throughout the claim – two uses of “image” in the claim would refer to user-visible images,
while the third would not. CANVS disagrees and avers the construction should not include
visible light representation because there are situations where the output from the thermal
imager is not directly viewed, and thus could “be in a non-visible portion of the [light]
spectrum as long as it was combinable to form a final visible image.”
It is well established that “[a] word or phrase used consistently throughout a claim
should be interpreted consistently.” Epcon Gas Sys., Inc. v. Bauer Compressors, Inc.,
279 F.3d 1022, 1031 (Fed. Cir. 2002) (citation omitted). There is an exception to this rule,
however, where the term is “used in two contexts with a subtle but significant difference.”
Id. Then, the term “should not necessarily be interpreted to have the same meaning in
both phrases.” Id. Turning to this case, the Court finds the rule, rather than the exception,
applies.
The term image is used in the claims only three times – to describe (1) the thermal
image from the thermal imaging assembly; (2) the enhanced photon based image from
the image intensification assembly; and (3) the output image from the output image
generation assembly. It is undisputed that two of these images – the output image and
enhanced photon based image – are viewable to the user once generated. ‘652 Patent
col. 3 ll. 4-6 (“The optical output is structured to provide the output image to be viewed by
a user of the present invention in a readily viewable format.”), col. 2-3 ll. 66-2 (“[T]he
image intensification assembly is structured to amplify the perceived photons in order to
generate an enhanced photon based image that is viewable by a user of the device.”).
The third image – the thermal image – is not explicitly described in the specification as
being viewable once generated. But “image” is used consistently throughout the claim,
8
with no subtle differences.6 Interpreting the term “image” consistently therefore requires
the Court to construe “thermal image” with some user-viewable aspect too. Accordingly,
the Court adopts “visible light representation” into the “thermal image” construction.
The Court therefore construes the term “thermal image” as “an image that is a
visible light representation of only thermal radiation signatures from a scene.”
4. “enhanced photon based image”
No.
Term
4. “enhanced
based image”
CANVS’
Proposed
Alternative Construction
photon A photon based image of the
environment based upon
amplification of the visible
and near infrared light waves
(i.e., photons) that increases
the quantity of photons
viewable by the user.
Nivisys’
Proposed
Construction
An image composed of
intensified visible light of
non-thermal
photonic
signatures directly from a
scene and not including
light from a previously
generated image.
The parties’ third dispute is over the term “enhanced photon based image,” found
in Claims 4 and 5. CANVS believes no construction of this term is necessary, but
proposes an alternative construction that provides, “[a] photon based image of the
environment based upon amplification of the visible and near infrared light waves (i.e.,
photons) that increases the quantity of photons viewable by the user.” (Doc. #39 at 1517). Nivisys proposes a construction that provides, “[a]n image composed of intensified
visible light of non-thermal photonic signatures directly from a scene and not including
light from a previously generated image.” (Doc. #46 at 10-15). For the reasons set forth
6
This is further confirmed by how the corresponding image adjustment assemblies operate. The
thermal imaging assembly has a corresponding thermal image adjustment assembly that “is structured to
adjust an extent to which the thermal image defines the viewed output image.” ‘652 Patent col. 3 ll. 13-15.
Likewise, the image intensification assembly has a corresponding image adjustment assembly that “is
structured to adjust an extent to which the enhanced photon based image defines the output.” ‘652 Patent
col. 3 ll. 16-18. Again, both thermal image and enhanced photon based image are used in the same context
with no subtle differences.
9
below, the Court finds a modified version of CANVS’ proposed construction is
appropriate.
In its brief, CANVS points to several aspects of Nivisys’ proposed construction that
it believes would cause further confusion, such as “non-thermal photonic signatures,”
“directly from a scene,” and “not including light from a previously generated image.”
Nivisys responded to this argument at the hearing by noting it was not advocating that the
Court must adopt its construction exactly as proposed. Rather, it principally wanted to
make sure the Court included two important aspects of this term found throughout the
specification and claim language – 1) the enhanced photon based image is viewable by
the user and 2) the thermal image and enhanced photon based image are separate and
distinct images. The Court has already noted the enhanced photon based image and
thermal image are separate and distinct images, and incorporated this aspect into the
previous term. With that being the case, the Court finds good cause to incorporate this
aspect into this term too. The second aspect – viewable by the user – is already
incorporated into CANVS’ proposed construction. It appears the best way to ensure both
aspects are incorporated into the construction of this term – while avoiding any possible
confusion that may arise with Nivisys’ proposed construction – is to adopt CANVS’
proposed construction and add the separate and distinct aspect into it.
The Court therefore construes “enhanced photon based image” as “[a] photon
based image of the environment based upon amplification of the visible and near infrared
light waves (i.e., photons) that increases the quantity of photons viewable by the user,
which does not include any aspect of the thermal image.”
10
7(a). “an output image generation assembly structured to combine said thermal image
and said enhanced photon based image to generate a real-time, direct view output
image”
No.
7(a).
Term
“an
output
image
generation
assembly
structured to combine
said thermal image and
said enhanced photon
based
image
to
generate a real-time,
direct
view
output
image”
CANVS’
Proposed
Alternative Construction
An
assembly
which
generates a [sic] image for
viewing by a user that
includes information from the
thermal image that is
optically
combined
with
information
from
the
enhanced
photon-based
image, and which is directly
viewable by the user without
significant delay between the
actual event and the view
provided to the user.
Nivisys’
Proposed
Construction
An output image generation
assembly structured to
optically
combine
two
already-formed
separate
and distinct thermal and
enhanced photon based
images to create at [sic]
third image that is a
combined image composed
of the thermal image and
the enhanced photon based
image.
The parties’ fourth dispute is over the term “an output image generation assembly
structured to combine said thermal image and said enhanced photon based image to
generate a real-time, direct view output image,” found in Claim 4. CANVS believes no
construction of this term is necessary, but proposes an alternative construction that
provides, “[a]n assembly which generates a [sic] image for viewing by a user that includes
information from the thermal image that is optically combined with information from the
enhanced photon-based image, and which is directly viewable by the user without
significant delay between the actual event and the view provided to the user.” (Doc. #39
at 19-20). Nivisys proposes a construction that provides, “[a]n output image generation
assembly structured to optically combine two already-formed separate and distinct
thermal and enhanced photon based images to create at [sic] third image that is a
combined image composed of the thermal image and the enhanced photon based
11
image.”7 (Doc. #46 at 15-23). For the reasons set forth below, the Court finds a modified
version of Nivisys’ proposed construction is appropriate.
The principal differences between the parties’ proposed constructions are whether
the thermal image and enhanced photon based image are created separately and
whether the output image generation assembly combines those images or just
information from them. Nivisys asserts that “the entire structure of the claim clearly
requires the combination of already-formed images.” CANVS, however, contends that
the output image generation assembly “is not restricted to combining before after or
during formation of either image so long as it generates a single output image of both
thermal and intensified. The combined image can be generated within the thermal imager
or within the image intensifier as long as it includes relative amount of both images.” The
Court agrees with Nivisys.
The Court has already detailed how the thermal imaging assembly and image
intensification assembly work to generate two separate and distinct images – the thermal
image and the enhanced photon based image, respectively. While CANVS avers these
images can combine and use “information” from one another before reaching the output
image generation assembly, the specification and claims provide otherwise. The claim
language provides that a thermal imaging assembly is structured to generate a thermal
image and an image intensification assembly is structured to generate an enhanced
photon based image. ‘652 Patent col. 6 ll. 39-44. The output image generation assembly
is “structured to combine said thermal image and said enhanced photon based image to
At the Markman hearing, Nivisys averred that “via image fusion” and “only” should not have been included
in its proposed construction. CANVS had no objection to the removal of these phrases. The Court therefore
considers Nivisys’ proposed construction without the phrases “via image fusion” and “only” included, as
presented at the hearing.
7
12
generate a real-time, direct view output image.” Id. at col. 6 ll. 57-60 (emphasis added).
There is no mention or indication that the output image generation assembly uses
“information” from the thermal image or enhanced photon based image to create the
output image. Nor is there any indication or mention that these images combine at any
time prior to reaching the output image generation assembly. The language is clear – the
thermal image and enhanced photon based image are created by their respective
assemblies, and it is not until they reach the output image generation assembly that these
two already-formed, separate images are combined to form the output image.8
The Court therefore construes “an output image generation assembly structured
to combine said thermal image and said enhanced photon based image to generate a
real-time, direct view output image” as “[a]n output image generation assembly structured
to optically combine an existing, separate and distinct thermal image and an existing,
separate and distinct enhanced photon based image to create a third image that is a
combined image composed of the thermal image and the enhanced photon based
image.”
At the Markman hearing, CANVS averred that adopting Nivisys’ proposed construction would render this
claim a method claim even though there is no basis for doing so. The Court disagrees. Indeed, there is no
temporal limitation as to whether the thermal image or enhanced photon based image, if any, is formed
first. Nor is there is such a limitation as to which one of these images, if any, reaches the output image
generation assembly first. But it is clear these images must be formed before the output image generation
assembly generates the output image. Otherwise, without the “said thermal image” or “said enhanced
photon based image,” there would be nothing for the output image generation assembly to combine to
generate the output image.
8
13
7(b). “an output image generation assembly structured to combine said thermal image
and said enhanced photon based image to generate a single output image”
No.
Term
“an
output
image
assembly
7(b). generation
structured to combine
said thermal image and
said enhanced photon
based
image
to
generate a single output
image”
CANVS’
Proposed
Alternative Construction
An
assembly
which
generates a single output
image,
that
includes
information from the thermal
image that is optically
combined with information
from the enhanced photonbased image.
Nivisys’
Proposed
Construction
An output image generation
assembly structured to
optically
combine
two
already-formed
separate
and distinct thermal and
enhanced photon based
images to create at [sic]
third image that is a
combined image composed
of the thermal image and
the enhanced photon based
image.
The parties’ fifth dispute is over the term “an output image generation assembly
structured to combine said thermal image and said enhanced photon based image to
generate a single output image,” found in Claim 5. CANVS believes no construction of
this term is necessary, but proposes an alternative construction that provides, “[a]n
assembly which generates a single output image, that includes information from the
thermal image that is optically combined with information from the enhanced photonbased image.” (Doc. #39 at 19-20). Nivisys once again proposes a construction that
provides, “[a]n output image generation assembly structured to optically combine two
already-formed separate and distinct thermal and enhanced photon based images to
create at [sic] third image that is a combined image composed of the thermal image and
the enhanced photon based image.” (Doc. #46 at 15-23).
Even though this term is from a different claim, the parties present the same
arguments for this term as they did for the last term. The Court’s analysis on these
arguments remains the same.
That said, the Court construes “an output image
14
generation assembly structured to combine said thermal image and said enhanced
photon based image to generate a single output image” as “[a]n output image generation
assembly structured to optically combine an existing, separate and distinct thermal image
and an existing, separate and distinct enhanced photon based image to create a third
image that is a combined image composed of the thermal image and the enhanced
photon based image.”
8. “a first image adjustment assembly and a second image adjustment assembly,
said first and second image adjustment assemblies being operable to adjust said
first and second imaging assemblies so as to adjust an intensity of said thermal
image and said enhanced photon based image generated thereby”
No.
Term
first
image
8. “a
adjustment
assembly
and a second image
adjustment assembly,
said first and second
image
adjustment
assemblies
being
operable to adjust said
first and second imaging
assemblies so as to
adjust an intensity of
said thermal image and
said enhanced photon
based image generated
thereby”
CANVS’
Proposed
Alternative Construction
First and second controls
which are each capable of
automatic
or
manual
adjustment of an aspect of an
image, the first control is
structured to adjust the
quantity of the thermal image
as a portion of the output
image and the second control
is structured to adjust the
quantity of the photon based
image as a portion of the
output image.
Nivisys’
Proposed
Construction
Two manually adjustable
image
adjustment
assemblies that operate to
adjust an intensity of the
thermal and enhanced
photon based images to
control, from 0% to 100%,
the amount of each of the
thermal and enhanced
photon based images in a
direct-view fused image
composed of a direct view of
the thermal image and a
direct view of the enhanced
photon based image.
Alternative Construction:
First and second controls
which are each capable of
automatic
or
manual
adjustment of an aspect of
an image, the first control is
structured to adjust only the
quantity of the thermal
image as a portion of the
output image and the
15
second control is structured
to adjust only the quantity of
the photon based image as
a portion of the output
image.
The parties’ final dispute is over the term “a first image adjustment assembly and
a second image adjustment assembly, said first and second image adjustment
assemblies being operable to adjust said first and second imaging assemblies so as to
adjust an intensity of said thermal image and said enhanced photon based image
generated thereby,” found in Claim 5. CANVS believes no construction of this term is
necessary, but proposes an alternative construction that provides, “first and second
controls which are each capable of automatic or manual adjustment of an image, the first
control is structured to adjust the quantity of the thermal image as a portion of the output
image and the second control is structured to adjust the quantity of the photon based
image as a portion of the output image.” (Doc. #39 at 20-21). In its brief and at the
Markman hearing, Nivisys agreed to CANVS’ proposed alternative construction, provided
the Court makes two changes. (Doc. #46 at 24-30).
First, Nivisys asks the Court to place “only” before both “the quantity of the thermal
image” and “the quantity of the photon based image” to reflect that the controls operate
separately and independently from one another. Second, Nivisys asks the Court to
remove “automatic” from the construction, as the specification teaches the controls are
manually, not automatically, adjusted by the user. CANVS did not present an argument
supporting its proposed construction in its brief. But at the hearing, CANVS took issue
with these requests. CANVS averred there is nothing in the Patent requiring the controls
16
to be manually operated. Rather, CANVS likened the controls to an auto white balance
on a camera, where the user pushes a button, but the white balance function is still
automatically completed. CANVS also took issue with placing “only” in the two locations
specified, contending this placement would cause confusion. The Court finds a modified
version of CANVS’ proposed construction is appropriate.
CANVS conceded at the hearing that the prosecution history shows it distinguished
prior art by pointing out its first and second image adjustment assemblies are separately
and independently controlled, and thus it is bound to this limitation. (Doc. #46-8 at 9-10;
Doc. #46-5 at 3-4; Doc. #46-6 at 3-4). With that being the case, the Court agrees with
Nivisys that separately and independently should be incorporated into CANVS’ proposed
construction. See Fenner Investments, Ltd. v. Cellco P'ship, 778 F.3d 1320, 1323 (Fed.
Cir. 2015) (explaining that the prosecution history assists in “captur[ing] the scope of the
actual invention that is disclosed, described, and patented”). To qualm CANVS’ concerns
that incorporating this limitation into the construction by using “only” would cause
confusion, the Court will instead use “separately and independently” in the locations
where Nivisys requested “only” be inserted.
Moving onto the next issue, the Court sees no reason to incorporate “automatic”
or “manual” into the construction.
While CANVS attempts to analogize the image
adjustment assemblies to other automated devices or functions, there is not substantial
support in the Patent for this position. Nor is there substantial support to conclude the
image adjustment assemblies are only manually operated, as Nivisys proposes. The
specification teaches only that these image adjustment assemblies “allow the user to
modify the output image to correspond the [sic] needs of a particular tactical
17
environment.” ‘652 Patent col. 3 ll. 9-11. This language fails to illustrate the manner in
which the modification/adjustment is accomplished.
Without substantial support for
either position, reading these terms into the construction would be improper.
The Court therefore construes “a first image adjustment assembly and a second
image adjustment assembly, said first and second image adjustment assemblies being
operable to adjust said first and second imaging assemblies so as to adjust an intensity
of said thermal image and said enhanced photon based image generated thereby” as
“first and second controls which are each capable of adjusting an aspect of an image, the
first control is structured to separately and independently adjust the quantity of the thermal
image as a portion of the output image and the second control is structured to separately
and independently adjust the quantity of the photon based image as a portion of the output
image.”
Accordingly, it is now
ORDERED:
The disputed language from Claims 4 and 5 shall be constructed as follows:
Court’s Construction:
Term No.:
Term:
2.
“an optical input structured to “an optical input structured to define a
define a line of sight”
single line of sight”
“thermal image”
“an image that is a visible light
representation of only thermal radiation
signatures from a scene”
“enhanced
photon
based “a photon based image of the
image”
environment based upon amplification
of the visible and near infrared light
waves (i.e., photons) that increases the
quantity of photons viewable by the
user, which does not include any
aspect of the thermal image”
“an output image generation “an output image generation assembly
assembly
structured
to structured to optically combine an
3.
4.
7(a).
18
combine said thermal image
and said enhanced photon
based image to generate a
real-time, direct view output
image”
7(b).
“an output image generation
assembly
structured
to
combine said thermal image
and said enhanced photon
based image to generate a
single output image”
8.
“a first image adjustment
assembly and a second image
adjustment assembly, said first
and second image adjustment
assemblies being operable to
adjust said first and second
imaging assemblies so as to
adjust an intensity of said
thermal image and said
enhanced photon based image
generated thereby”
existing, separate and distinct thermal
image and an existing, separate and
distinct enhanced photon based image
to create a third image that is a
combined image composed of the
thermal image and the enhanced
photon based image”
“an output image generation assembly
structured to optically combine an
existing, separate and distinct thermal
image and an existing, separate and
distinct enhanced photon based image
to create a third image that is a
combined image composed of the
thermal image and the enhanced
photon based image”
“first and second controls which are
each capable of adjusting an aspect of
an image, the first control is structured
to separately and independently adjust
the quantity of the thermal image as a
portion of the output image and the
second control is structured to
separately and independently adjust
the quantity of the photon based image
as a portion of the output image”
DONE and ORDERED in Fort Myers, Florida, this 28th day of October, 2015.
Copies: All Parties of Record
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