Motorola Mobility, Inc. v. Apple, Inc.

Filing 158

NOTICE by Apple, Inc., Motorola Mobility, Inc. of Filing Supplemental Authority on Claim Construction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Giuliano, Douglas)

Exhibit 4

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Only the Westlaw citation is currently available.
United States District Court,
D. Oregon.
SECURITY CHAIN COMPANY, a division of
Burns Bros. Inc., an Oregon corporation, Plaintiff,
v.
QUALITY CHAIN CORPORATION, an Oregon
corporation, Defendant.
No. CV 10–1257–PK.
May 13, 2011.
Devon Zastrow Newman, Johnathan E. Mansfield,
Matthew R. Wilmot, Schwabe Williamson &
Wyatt, PC, Portland, OR, for Plaintiff.
Janet Marie Schroer, Richard J. Kuhn, Hoffman
Hart & Wagner, LLP, J. Peter Staples, Robert N.
Lyman, Chernoff Vilhauer McClung & Stenzel,
LLP, Portland, OR, for Defendant.
OPINION AND ORDER
PAPAK, United States Magistrate Judge.
*1 Plaintiff Security Chain Company
(“Security Chain”) filed this action against defendant Quality Chain Corporation (“Quality Chain”)
arising from a dispute over the advertising and production of tire chains. Security Chain alleges patent
infringement in violation of 35 U.S.C. §§ 271, 281,
283 – 285; false advertising, trade dress infringement, unfair competition, and false designation of
origin in violation of the Lanham Act, 15 U.S.C. §§
1051 et seq .; trade dress infringement in violation
of Oregon common law; and passing off and creating a likelihood of confusion in violation of the
Oregon Unlawful Trade Practices Act, Or.Rev.Stat.
646.608. Quality Chain asserts counterclaims for
false patent marking pursuant to 35 U.S.C. § 292.
Now before the court are the parties' claim construction briefs (# 65, 66, 79, 80, 89, 90) pertaining
to Security Chain's patent infringement claims. The
single disputed term is construed below.

APPLICABLE LAW
“A determination of infringement requires a
two-step analysis. First, the court determines the
scope and meaning of the patent claims asserted,
and then the properly construed claims are compared to the allegedly infringing device.” Abraxis
Bioscience, Inc. v. Mayne Pharma Inc., 467 F.3d
1370, 1375 (Fed.Cir.2006). Claim construction is a
matter of law. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 970–71 (Fed.Cir.1995) (
en banc ).
I. When to Construe Claim Terms
Although district courts need not construe
every limitation in a patent's claims, they should interpret the scope of any term where parties present
a “fundamental disagreement.” O2 Micro Int'l Ltd.
v. Beyond Innovation Tech Co., Ltd., 521, F.3d
1351, 1362 (Fed.Cir.2008) (even though parties
agreed that phrase “only if” had a well-understood
meaning capable of application without judicial interpretation, district court erred by failing to construe the term because the parties disputed the
scope of the claim based on the phrase)
II. Sources of Evidence
To construe the claims of a patent, the district
court looks primarily to three sources: the claims,
the specification, and, if entered into evidence, the
prosecution history. See Unique Concepts, Inc. v.
Brown, 939 F.2d 1558, 1561 (Fed.Cir.1991). In
some cases, the court may rely on other, extrinsic
evidence (including expert testimony), in interpreting these sources of intrinsic evidence. Fonar Corp.
v. Johnson & Johnson, 821 F.2d 627, 631
(Fed.Cir.1987). However, “[i]n most situations, an
analysis of the intrinsic evidence alone will resolve
any ambiguity in a disputed claim term. In such circumstances, it is improper to rely on extrinsic evidence.” Vitronics Corp. v. Conceptronic, Inc. ., 90
F.3d 1576, 1583 (Fed.Cir.1996).
III. Claim Language
When construing claims, the analysis begins

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with, and must focus on, the language of the claims
themselves. See Interactive Gift Express, Inc. v.
Compuserve Inc., 256 F.3d 1323, 1331
(Fed.Cir.2001). The words of a claim “are generally
given their ordinary and customary meaning,” that
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.” Phillips v. AWH Corp., 415
F.3d 1303, 1312–1313 (Fed.Cir.2005) (en banc )
(citations omitted). “In some cases, the ordinary
meaning of claim language as understood by a person of skill in the art may be readily apparent even
to lay judges, and claim construction in such cases
involves little more than the application of the
widely accepted meaning of commonly understood
words.” Id. at 1314.
*2 If the claim language is clear on its face,
then the rest of the intrinsic evidence is considered
only for whether any deviation from the plain
meaning is specified. See Interactive Gift, 256 F.3d
at 1331. Deviation may be warranted if, for example, the patentee has “chosen to be his own lexicographer,” or if the patentee has disclaimed a certain portion of the claim scope that would otherwise
be afforded by the plain meaning. Id. (citations
omitted). Where the claim language is not clear,
other intrinsic evidence may be considered to resolve the lack of clarity. See id.
Where the ordinary meaning of a claim term is
not be readily apparent, the context in which a word
appears in a claim will inform the construction of
that word. See Phillips, 415 F.3d. at 1314. Similarly, other claims of the patent in question “can also
be valuable sources of enlightenment as to the
meaning of a claim term.” Id. Because claim terms
are normally used consistently throughout the patent, “the usage of a term in one claim can often illuminate the meaning of the same term in other
claims.” Id. 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 1315.

common meaning, the patent disclosure “serves to
point away from the improper meanings and toward
the proper meanings.” Brookhill–Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1300
(Fed.Cir.2003) (citation omitted). If more than one
definition is consistent with the usage of a term in
the claims, the term may be construed to encompass
all consistent meanings. See Texas Digital Systems,
Inc. v. Telegenix, Inc., 308 F.3d 1193, 1203
(Fed.Cir.2002).
Where a claim uses different terms, the terms
are presumed to have different meanings. See, e.g.,
CAE Screenplates Inc. v. Heinrich Fiedler GmbH &
Co. KG, 224 F.3d 1308, 1317 (Fed.Cir.2000) (“In
the absence of any evidence to the contrary, we
must presume that the use of ... different terms in
the claims connotes different meanings.”); Applied
Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d
1324, 1333 n. 3 (Fed.Cir.2006) (“the use of two
terms in a claim requires that they connote different
meanings....”).
IV. Specification
Patent claims must be read in light of the specification. See Markman, 52 F.3d at 979. The specification “is the single best guide to the meaning
of a disputed term.” Vitronics, 90 F.3d at 1582.
Where a claim term has multiple, yet potentially
consistent, definitions, the rest of the intrinsic record, beginning with the specification, can provide
further guidance. See Brookhill–Wilk, 334 F.3d at
1300. If the patentee acted as his own lexicographer
by explicitly defining a claim term in the specification, the term is construed according to the
provided definition rather than the ordinary meaning of the term. See CCS Fitness v. Brunswick
Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002).
Moreover, the specification may define a term by
implication. See Phillips, 415 F.3d at 1321. The
specification may also function to limit the claims'
scope by indicating that the invention and all of its
embodiments fall within only a narrow portion of
the potentially broader meaning of a claim term.
See SciMed Life Sys. v. Advanced Cardiovascular

In addition, where a term has more than one

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Sys., 242 F.3d 1337, 1343–44 (Fed.Cir.2001).
*3 It is error, however, to impute to the claim a
limitation merely inferred from the embodiments
described
in
the
specification.
See
Liebel–Flarsheim Co. v. Medrad, Inc., 358 F.3d
898, 905 (Fed.Cir.2004). Without more, an embodiment disclosed in the specification may not limit
the claims. Id. at 906. Even when the specification
describes only a single embodiment, the claims of
the patent are not to be construed as restricted to
that embodiment unless the patentee demonstrates a
clear intention to limit the claim scope using
“words or expressions of manifest exclusion or restriction.” Teleflex, Inc. v. Ficosa N. Am. Corp.,
299 F.3d 1313, 1327 (Fed.Cir.2002). Absent clear
statements of scope, courts are constrained to follow the language of the claims and not that of the
written description provided by the specification,
See id. at 1328; see also Specialty Composites v.
Cabot Corp., 845 F.2d 981, 987 (Fed.Cir.1988). Indeed, it is well settled that “a claim must explicitly
recite a term in need of definition before a definition may enter the claim from the written description. This is so because the claims define the scope
of the right to exclude; the claim construction inquiry, therefore, begins and ends in all cases with
the actual words of the claim.” Renishaw PLC v.
Marposs Societa' per Azioni, 158 F.3d 1243, 1248
(Fed.Cir.1998). The Renishaw court stated, further,
that:
a party wishing to use statements in the written
description to confine or otherwise affect a patent's scope must, at the very least, point to a term
or terms in the claim with which to draw in those
statements. Without any claim term that is susceptible of clarification by the written description, there is no legitimate way to narrow the
property right.
Id.; see also id. at 1249 (“If we need not rely
on a limitation to interpret what the patentee meant
by a particular term or phrase in a claim, that limitation is “extraneous” and cannot constrain the
claim”).

Absent extraordinary circumstances, by contrast, claims should be construed so as to include
within their scope any preferred embodiment described in the specification. See, e.g., Vitronics, 90
F.3d at 1583 (“an interpretation [pursuant to which
the preferred embodiment falls outside the scope of
the claims] is rarely, if ever, correct and would require highly persuasive evidentiary support”);
Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d
1575, 1581 (Fed.Cir.1996) (“it is unlikely that an
inventor would define the invention in a way that
excluded the preferred embodiment, or that persons
of skill in this field would read the specification in
such a way”).
BACKGROUND
Security Chain sells tire chain products used
for passenger vehicles, emergency vehicles, light
trucks/SUVs, and commercial trucks. Quality Chain
also sells tire chains for all types of vehicles. Security Chain and Quality Chain are direct competitors
in the tire chain industry.
*4 On April 5, 1994, Joseph Maresh obtained
U.S. Patent No. 5,299, 613 (the “'613 Patent”) for
“Tire Chain Cross Member Assemblies and Tire
Chains Using the Same,” which he assigned to Security Chain's parent company, At issue in this case
is the “split-bushing” described in the '613 Patent
used in conjunction with a connector that joins the
zig-zag-shaped cross member (cable extending
across the tire tread to provide traction) to the
hoop-shaped side member (cable keeping the chain
affixed to the tire).
The abstract for the '613 Patent describes the
invention in part as follows:
A cross member assembly of a tire chain comprises a flexible cable having double bushings at
each of its ends. Each double bushing includes an
outer bushing and an inner bushing spaces longitudinally of the cable and connected by a bridge.
The outer bushing securely grips the cable, and
the inner bushing embraces the cable without
gripping it. Each double bushing is attached to a

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plate for connecting the cable to a side member
of the tire chain.... Tire chains using the cross
member assemblies have substantially increased
endurance.
(Newman Decl., # 67, Ex. A at 1) (hereinafter
“'613 Patent”) (disputed term italicized).
The patent contains three independent
claims—claim 1, claim 11, and claim 12—each
containing instances of the term for which the
parties seek construction. Claim 1 describes:
A cross member assembly for a tire chain,
comprising[:]
[1] a flexible cable having a double bushing at
least at one end of the cable, the double bushing including an outer bushing located at a
distal end of the cable and an inner bushing
spaced inward longitudinally along the cable
and joined to the outer bushing by a bridge, the
outer bushing securely gripping the cable end
therein, and the inner bushing embracing the
cable without gripping the cable [;] and [2] a
connector adjacent to the end of the cable for
connecting the cable to a side member of a tire
chain, the connector including a plate having
an opening therein through which the outer
busing is inserted, the plate having a bent-over
tab extending from a body of the plate and
trapping the inserted outer bushing between the
tab and the plate body, with the inner bushing
located exteriorly of the opening and with the
bridge located in the opening.
'613 Patent, 6:21–37 (disputed term emphasized). Claim 11 similarly describes:
A tire chain cross member assembly comprising a
flexible cable and a double bushing, the double
bushing including an outer bushing located at a
distal end of the cable and an inner bushing
spaced inward longitudinally along the cable and
joined to the outer bushing by a bridge, the outer
bushing securely gripping an end of the cable,
and the inner bushing embracing the cable

without gripping the cable.
'613 Patent, 7:1–8 (disputed term emphasized).
Claim 12 describes a tire chain—not just the cross
member assembly—but still describes each cross
member as employing an outer bushing “securely
gripping a corresponding cable” and an inner bushing “embracing a corresponding cable without gripping it. ” '613 Patent, 8:25–28 (disputed term emphasized). The parties generally agree that the
single term or phrase that the court must now construe is “embracing the cable without gripping the
cable” and its closely related variant “embracing a
FN1
corresponding cable without gripping it.”
FN1. Security Chain also requests that the
court define “securely gripping” as an intermediate step in reaching an appropriate
construction of “embracing the cable
without gripping the cable.”
CONSTRUCTION
*5 The parties offer drastically different constructions of “embracing the cable without gripping
the cable.” I reject both parties' proposed constructions and ultimately construe “embracing the cable
without gripping the cable” as “embracing the cable
without compressing the cable strands within the
bushing.”
On the one hand, Security Chain contends that
“embracing the cable without gripping the cable”
should be construed in reference to “securely gripping.” Security Chain notes that the specification of
the '613 Patent describes the outer bushing and inner bushing as having opposing functions, compelling those terms to be understood in opposition to
one another. In particular, Security Chain argues
that the outer bushing keeps the cable inside the
connector while the inner bushing moves the flex
point of the cable away from the relatively stiff region near the connector eyelet to a relatively flexible region where the cable exits the inner bushing.
According to Security Chain's argument, this transfer of the flex point to a relatively flexible part of
the cable is at the core of the invention claimed by

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the '613 Patent. Security Chain reasons that
“embracing without gripping” refers to any conformation of the inner bushing that permits more
flexibility in the cable than the outer bushing,
which securely grips the cable. Thus, Security
Chain argues, “embracing without gripping” essentially means “embracing without securely gripping.” Security Chain contends that the '613 Patent
specification identifies compression of the cable
fibers as the primary characteristic of “securely
gripping” and thus construes “securely gripping” as
“permanent deformation producing compression of
the cable within the bushing so that under intended
use conditions there is no longitudinal movement of
the cable fibers .” Consequently, Security Chain
urges the court to construe “embracing without
gripping” as “supporting the cable without permanent deformation producing compression of the cable
within the bushing so that under intended use conditions there is no longitudinal movement of the
cable fibers. (Newman Decl., # 91, Ex. A.)
(emphasis added).
Quality Chain rejects Security Chain's binary
conception of “securely gripping” and “embracing
without gripping,” instead envisioning a continuum
of grip strength along which these terms should be
located. Quality Chain contends that “embracing
without gripping” sits at the absolute bottom of that
continuum, since “without gripping” implies no
grip strength whatsoever. “Gripping,” a term not
used in the '613 Patent, connotes an intermediate
grip strength. “Securely gripping” is yet a stronger
grip, one which is sufficient to retain the cable in
the outer bushing under the conditions in which the
tire chains are intended to be used. Quality Chain
also identifies key characteristics of the inner bushing from the '613 Patent specification, including
that the inner bushing can be slipped over the cable,
is not crimped, deformed, or closed, has an inner
diameter slightly greater than the outer diameter of
the cable, and does not contact the cable until the
cable bends. Based on these characteristics, Quality
Chain proposes construing “embracing the cable
without gripping the cable” as something like

“loosely containing the cable without gripping the
FN2
cable.”
Quality Chain admits that the term
“loosely” is not found within the specification, but
argues nevertheless that its construction captures
the relationship between the inner bushing and
cable described in the claims, specification, and file
history. Alternatively, Quality Chain proposes a
construction employing language found within the
specification, where “embracing the cable without
gripping the cable” means “the cable is contained
within the bushing and the inner diameter of the
bushing is greater than the outer diameter of the
cable.”
FN2. I paraphrase because Quality Chain's
proposed construction is grammatically
problematic. Quality Chain construes “the
inner bushing embracing the cable” as “the
cable is loosely contained within the inner
sleeve” while giving “without gripping the
cable” its plain and ordinary meaning.
Thus, to apply Quality Chain's proposed
construction to the entire phrase
“embracing the cable without gripping the
cable” would require replacing that phrase
with the declarative sentence “The cable is
loosely contained within the inner sleeve
without gripping the cable.” That result is
ungrammatical, with the subject of the sentence shifting between the cable and the inner bushing.
*6 Security Chain's primary proposed construction is incorrect because it significantly alters the
meaning of the claim language. Security Chain's
construction reads “securely” out the claims by essentially interpreting “without gripping” as
“without securely gripping.” Where a claim uses
different terms, the terms are presumed to have different meanings. See, e.g., CAE Screenplates Inc. v.
Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308,
1317 (Fed.Cir.2000) (“In the absence of any evidence to the contrary, we must presume that the use
of ... different terms in the claims connotes different meanings.”); Applied Med. Res. Corp. v. U.S.

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Surgical Corp., 448 F.3d 1324, 1333 n. 3
(Fed.Cir.2006) (“the use of two terms in a claim requires that they connote different meanings....”).
The patentee could have chosen to claim that the inner bushing embraced the chain without securely
gripping it, but he did not. Thus, I cannot construe
the patent's claims in contradiction to their explicit
language, which fundamentally determines the
scope of the patent. See Phillips, 415 F.3d at 1312
(“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”) (internal
quotations and citations omitted). Therefore,
“without gripping” cannot be read as “without securely gripping.”
Moreover, this case is unlike Power Mosfet,
cited by Security Chain as an example of a court
determining that an adverbial modifier does not
change the meaning of a claim term. Power Mosfet
Techs., LLC v. Siemens AG, 378 F.3d 1396,
1409–10 (Fed.Cir.2004) (holding that “contact ...
directly” means the same as “contact” because in
the context of the patent the word “directly” imposed no additional restrictions). In that case, two
claims included the term “directly” while a third
claim lacked that term. Id. at 1409. The Court observed that since “contacting” required an aspect of
physical contact, the adverb “directly” was irrelevant, Id. 1409. Thus, Power Mosfet reiterated that
different terms may be construed identically only
where “neither the plain meaning nor the patent itself commands a difference in scope between two
terms....” Id. at 1410. Here, unlike in Power Mosfet,
the '613 Patent consistently uses the term “securely
gripping,” never using the term “gripping” alone.
Further, there is no indication from the patent language or the nature of the invention that the adverb
“securely” is redundant like “directly” was in
Power Mosfet. In sum, Security Chain's construction contradicts the language of the patent claims.
At the same time, I also find Quality Chain's
proposed constructions to be lacking. Quality
Chain's primary construction essentially replaces

“embracing without gripping” with “loosely containing without gripping.” By leaving “gripping”
undefined, this phrasing remains just as ambiguous
as the original claim language that it seeks to clarify and fails to delineate the scope of the claims for
the jury. Moreover, while Quality Chain's alternative construction draws its operative language from
the '613 Patent specification, it focuses too narrowly on the dimensions of the inner bushing and
cable in the preferred embodiment without necessarily speaking to the essence of the invention.
Therefore, a different construction is necessary.
*7 Fortunately, key sections of the specification provide concrete insight into the meaning of
“embracing without gripping.” First, I derive meaning from the way the '613 Patent differentiates
between the outer and inner bushing in the preferred embodiment. The specification states that the
outer bushing is crimped or deformed so that it
“securely grips the cable end, compressing the
cable strands within the outer bushing.” '613 Patent,
4:20–21. By contrast, the inner bushing is not
closed or deformed, and “thus it embraces, but does
not grip the cable.” '613 Patent, 4:23–26. Thus, the
specification suggests that, unlike the outer bushing, the inner bushing does not compress the cable.
Second, the specification's discussion of the invention's improvement over the prior art also clarifies the nature of the inner bushing, See Phillips,
415 F.3d at 1316 (“the interpretation to be given a
term can only be determined and confirmed with a
full understanding of what the inventors actually invented and intended to envelop with the claim.”)
(internal quotation and citation omitted); see also
Inpro II Licensing, S.A.R.L. v. T–Mobile USA, Inc.
450 F.3d, 1354–55 (Fed.Cir.2006) (construction
properly in part based on specification's emphasis
of particular feature in solving problems of the prior art). The patent emphasizes that the prior art
chains had a single crimped bushing that “tightly
compacted” the cable strands, causing the cable to
be stiff inside and adjacent to the bushing. '613 Patent, 5:12–14. This cable stiffness at the point of re-

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petitive flexing near the connector plate caused
metal fatigue and, ultimately, cable breakage. '613
Patent, 5:18–21. By contrast, the patent explained
that “[w]hen double bushings are used in accordance with the invention,” the cables do not bend
near the openings of the connector plates. '613 Patent, 5:26–29. Instead, the inner bushing moves the
flex point from the relatively stiff area of the cable
where the cable strands are tightly compacted to “a
region where the cross cable is relatively flexible,”
ostensibly near the inner bushing. '613 Patent,
5:29–31. Thus, the specification highlights the essence of the invention, which is shifting the flex
point from a region of rigid, compressed cable
strands (near the single bushing of the prior art) to a
region of flexible cable strands (near the inner
bushing of the current invention). Accordingly, a
person of ordinary skill in the art would likely read
the patent language describing the inner bushing as
“embracing the cable without gripping the cable” to
mean “embracing the cable without compressing
the cable within the bushing” in order to give effect
to the patent's explanation that the cable must retain
FN3
its flexibility around the inner bushing.
FN3. Quality Chain objects that while discussion of flex points and cable flexibility
may be proper in addressing a potential
dispositive motion based on the doctrine of
equivalents, it has no place in claim construction, which focuses on literal infringement. I disagree. Understanding the nature
of the invention and the ways it improved
over prior art is crucial to the contextual
approach to claim construction embraced
by the Federal Circuit. See Phillips, 415
F.3d at 1316 (“the interpretation to be given a term can only be determined and confirmed with a full understanding of what
the inventors actually invented and intended to envelop with the claim.”) Here, the
invention's explicit shifting of the flex
point—and corresponding change in cable
flexibility at that point—lies at the heart of
the patentee's improvement over prior art.

Third, other aspects of the specification comport with this construction. The description of the
preferred embodiment notes that “the inner diameter of the inner bushing is slightly greater than the
outer diameter of the wrapped cable.” '613 Patent,
4:29–31. Thus, some amount of space exists,
however minute, between the inner bushing and the
cable. Additionally, in the discussion of the improvement on the prior art, the specification states
that the cable can bend “until it contacts a corresponding inner bushing....” ' 613 Patent, 5:32–33.
This again implies that the cable has some degree
of mobility within the inner bushing. Any compression of the cable at the inner bushing would be inconsistent with these two descriptions of the relationship between the inner bushing and the cable.
*8 Finally, this Court's construction provides a
fixed, unambiguous, and legally operative meaning
to “embracing the cable without gripping the
cable.” See Chimie v. PPG Indus., 402 F.3d 1371,
1377 (Fed.Cir.2005). An expert could easily test
whether the inner bushing of an allegedly infringing
tire chain compresses the cable strands by measuring the compression of the cable within the inner
bushing and comparing those to similar measurements elsewhere along the cable. If there is any
measurable compression of the cable within the inner bushing, the inner bushing is not “embracing
the cable without gripping the cable.”
CONCLUSION
For the foregoing reasons, “embracing the
cable without gripping the cable” means
“embracing the cable without compressing the
cable strands within the bushing” and “embracing a
corresponding cable without gripping it” means
“embracing a corresponding cable without compressing its strands within the bushing.”
D.Or.,2011.
Security Chain Co. v. Quality Chain Corp.
Slip Copy, 2011 WL 1838883 (D.Or.), 2011 Markman 1838883
END OF DOCUMENT

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