GUM CREEK CUSTOMS LLC v. TROPHY HUNTING PRODUCTS INC

Filing 31

CLAIM CONSTRUCTION ORDER. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 7/17/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GUM CREEK CUSTOMS LLC,
Plaintiff,
v.
TROPHY HUNTING PRODUCTS, INC.

Defendant.

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CIVIL ACTION NO. 5:16-cv-114(MTT)

ORDER
In this patent infringement action, the Court convened a claim construction hearing
on April 19, 2017, and the parties have thoroughly briefed the relevant issues. Docs. 21;
24; 25; 28; 29; 30. The parties contest four terms, all from the following portion of Claim 1
of the patent:
a first attachment means attached at said first end of said
adjustable tension strap and co-axial to central axis A, said
first attachment means capable of being received in a gap in a
vehicle interior positioned below and adjacent a steering wheel
column of said vehicle,
a second attachment means attached to said distal end of said
adjustable tension strap and co-axial to central axis A, said
second attachment means capable of being received in a
lower gap between dash plates in the vehicle interior
positioned below said first attachment means . . . .
Doc. 1-1 at 15-16.
As discussed below, the four disputed terms are constructed as follows:
(1) a hook-shaped device attached to one end of an adjustable
tension strap and having a common axis with the tension
strap’s central axis (central axis A)

(2) this first hook-shaped device capable of being received in a
gap in a vehicle interior positioned below and adjacent to the
vehicle’s steering wheel column
(3) a hook-shaped device attached to the other end of the
adjustable tension strap and having a common axis with the
tension strap’s central axis (central axis A)
(4) this second hook-shaped device capable of being received
in a lower gap between dash plates in the vehicle interior
positioned below the first hook-shaped device to allow tension
to secure the holster vehicle mount
I. BACKGROUND
A brief description of the parties’ claims and respective products is appropriate.
The Plaintiff, Gum Creek Customs, LLC, alleges that the Defendant, Trophy Hunting
Products, Inc., infringed on the Plaintiff’s patent for a vehicle gun mount. Doc. 1 at 3, 7.
The Defendant denies the Plaintiff’s allegation and counterclaims that the Plaintiff’s patent
is invalid. Doc. 8 at 8.
Both the Defendant’s gun mount and the Plaintiff’s patent for a gun mount have a
strap that attaches to the interior of a vehicle below the vehicle’s steering column. A
pistol holster can then be affixed to the strap. Both gun mounts have a hook at the end of
the strap further from the steering wheel that is inserted in a gap in the vehicle dashboard
(the second attachment means). In the Defendant’s product, the first attachment means,
at the end of the strap closer to the steering wheel, is a strap that loops around the
steering wheel itself. However, as discussed below, the parties disagree about the scope
of the first attachment means in the Plaintiff’s patent. For both gun mounts, the means of
attachment at the ends of the strap create tension, and the tension secures the mount in
place. One product derived from the Plaintiff’s patent is marked below as Defendant’s

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Exhibit 1, and the Defendant’s product is marked as Defendant’s Exhibit 2.

Before a patent infringement matter may be decided by a factfinder, the meaning
of the words in the allegedly infringed patent claims must be determined by the Court.
Markman v. Westview Instruments, Inc., 517 U.S. 370, 391 (1996). The Court must
construe claims according to “their ordinary and customary meaning,” and “the ordinary
and customary meaning of a claim term is the meaning that the term would have to a

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person of ordinary skill in the art in question at the time of the invention.” Phillips v. AWH
Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (citations omitted). When construing
claims, the Court must primarily consider the patent’s intrinsic evidence: the claims
themselves, the patent specification, and the prosecution history. Id. at 1317.
By statute, patents may express claim elements “as a means or step for
performing a specified function without the recital of structure, material, or acts in support
thereof, and such claim shall be construed to cover the corresponding structure, material,
or acts described in the specification and equivalents thereof.” 35 U.S.C. § 112(f).1
Using this type of means-plus-function claim allows “an applicant [to] describe an element
of his invention by the result accomplished or the function served, rather than describing
the term or elements to be used . . . .” Warner-Jenkinson Co. v. Hilton Davis Chem. Co.,
520 U.S. 17, 27 (1997). The word “means” in the claim “invokes a rebuttable presumption
that § 112, ¶ 6 applies,” and the absence of the word invokes a rebuttable presumption
that § 112, ¶ 6 does not apply. Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364, 137172 (Fed. Cir. 2003) (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1369
(Fed. Cir. 2002)). The presumption that a claim term is means-plus-function “can be
rebutted where the claim, in addition to the functional language, recites structure sufficient
to perform the claimed function in its entirety.” Altiris, Inc. v. Symantec Corp., 318 F.3d
1363, 1375 (Fed. Cir. 2003) (citation omitted).
Here, the parties have identified four claim terms to be construed. Doc. 21 at 1.
All four disputed terms are located in a section of Claim 1 of the patent. Doc. 1-1 at 1516. The parties agree that all four claims are means-plus-function claims. See Doc. 24 at

1

Congress recently re-organized the statute so that 35 U.S.C. § 112(f) replaced the previous 35 U.S.C. §
112, ¶ 6, but this change did not alter the provision’s substance.

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5 (“The ‘first attachment means’ [which appears in the first and second disputed terms]
and the ‘second attachment means’ [which appears in the third and fourth disputed terms]
should be construed under Section 112, Paragraph 6, to include all the corresponding
structures described in the specification (and equivalents thereof) that perform the
functions recited in the claims.”); Doc. 25 at 12 (“All four of the claim terms at issue are
‘means plus function’ claim terms.”). The Court agrees. Each claim defines either a “first
attachment means” or a “second attachment means,” and this use of the term “means”
creates a rebuttable presumption that the claims are means-plus-function. The parties
have not argued that any evidence rebuts this presumption, and the Court identifies no
rebutting evidence; the patent does not “recite[] structure sufficient to perform the claimed
function in its entirety.” Altiris, Inc., 318 F.3d at 1375 (citation omitted). Accordingly, the
Court’s task is to identify the function of each disputed claim term and determine the
corresponding structure or structures in the written description necessary to perform that
function. Id. (citations omitted).
II. DISCUSSION
The Court construes each claim term in turn, addressing the parties’ requested
constructions and adding small clarifying changes.
A.

First Term
The first term in dispute is “a first attachment means attached at said first end of

said adjustable tension strap and co-axial to central axis A.” Doc. 21 at 1. Claim 1 goes
on to provide that “said first attachment means capable of being received in a gap in a
vehicle interior positioned below and adjacent a steering wheel column of said vehicle.
Doc. 1-1 at 15. The Plaintiff requests the following construction: “a first attachment
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means having a first axis passing near its center, wherein said first attachment means is
attached at said first end of said adjustable tension strap and wherein said first axis is
generally co-axial to central axis A.” Id. at 2. The Defendant requests instead: “A hookshaped device attached to the first end of the adjustable tension strap in line with the
central axis of the tension strap.” Id.
The Plaintiff roots its proposed means-plus-function construction of the first
attachment means in three functions identified in Claim 1: “(1) being attached to the
adjustable strap[,] (2) being ‘capable of being received’ in a gap, and (3) being under
tension and co-axial with the adjustable gap.” Doc. 24 at 5. The Plaintiff argues that “at
least three” structures correspond to these functions: “(1) a generally hook-shaped
structure, (2) a steering column strap, and (3) a steering column strap connected by a Dshaped ring to the adjustable strap.” Id. The Defendant argues that “part of the function”
of the first attachment means “is to use the gap identified in the claim.” Doc. 25 at 15.
The first of the Plaintiff’s proposed corresponding structures—the hook—performs this
function, but the other two—the straps—do not.
The Plaintiff points to the described embodiment of Figure 2 of the patent, which
shows a steering column strap rather than a hook as the attachment means. Doc. 24 at
13; Doc. 1-1 at 2. Similarly, the Plaintiff notes the described embodiment Figures 7A and
7B, which show a steering column strap connected to the holster vehicle mount. Doc. 24
at 13; Doc. 1-1 at 7. But the Court agrees with the Defendant: Figure 2 “appears to be
illustration of Claim 5.” Doc. 25 at 5. The same is true of Figures 7A and 7B. The patent
specification reads:
FIG. 2 illustrates another exemplary embodiment holster
vehicle mount 10 in place in a vehicle. In this exemplary
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vehicle installation there is either no gap, too small of a gap, or
the user elected to install holster vehicle mount 10 in an
installation in which instead of utilizing an upper gap, a strap
or other device, such as steering column strap 80, is affixed to
steering column 16 such that the upper portion of holster
vehicle mount 10 is affixed to the strap, or a component
thereof.
Doc. 1-1 at 13. Likewise Figures 7A and 7B:
FIGS. 7A-7B illustrate various exemplary embodiment steering
column straps 80. FIG. 7A illustrates steering column strap 80
having a “D” ring 82 attached thereto. FIG. 7B illustrates
steering column strap 80 having a ring 84 positioned in-line
with the strap. These straps may be elastic, or secured about
steering wheel column 16 by means known to those in the art
including, but not limited to, buckles, snaps, hooks and loops,
zippers, gluing, welding and bonding.
Id. at 15. Claim 5 of the patent claims part of the invention as: “The holster vehicle mount
of claim 1, further comprising a steering column strap shaped and sized to fit around a
steering column of a vehicle.” Id. at 16. The Court agrees with the Defendant that “[t]he
use of the term ‘further comprising’ in Claim 5 supports the construction that the steering
column strap is in addition to the ‘first attachment means’ (which is already specified in
Claim 1) and not another structure for that ‘first attachment means.’” Doc. 25 at 5.
Accordingly, the Court reads Figures 2, 7A, and 7B as preferred embodiments of Claim 5,
not Claim 1. The portion of Figure 2 which relates to Claim 1 is only the holster vehicle
mount 10, which is attached to but is separate and distinct from the steering column strap
80.2
Therefore, while the Plaintiff’s patent clearly contemplated using steering column
straps, the latter two of the Plaintiff’s proposed corresponding structures—the straps—
relate to Claim 5 of the Plaintiff’s patent, not Claim 1. Indeed, the challenge the Plaintiff
2

Indeed, throughout the patent specification, preferred embodiments of Claim 1 are identified as “10.” See
Doc. 1-1 at 1-3, 11-15.

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faces with its urged construction of the first attachment means in Claim 1 became evident
at the claim construction hearing. Doc. 30. At the hearing, the Court noted its difficulty
understanding the Plaintiff’s explanation of how steering column straps are “capable of
being received in a gap,” pursuant to Claim 1. Eventually, the Court asked Plaintiff’s
counsel to draw what he was trying to explain. That drawing is marked as Plaintiff’s
Exhibit 1, below.

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For the Plaintiff, the fact that the steering column strap crosses the plane of the gap
opening would meet the requirement that the first attachment means be “capable of being
received in a gap.” But the Court is not at all convinced the steering column strap
accomplishes the function of being received in a gap, as understood by a person of
ordinary skill in the art. Instead, of the patent’s written descriptions, only a hook-shaped
structure is capable of being (1) attached at the first end of the adjustable strap, (2)
received in a gap, and (3) under tension and co-axial with the adjustable gap, as Claim 1
describes the first attachment means.
Indeed, the function limitation “capable of being received in a gap in a vehicle
interior” was added by the Plaintiff specifically as part of an effort to “further narrow[] the
claims and place[] the application in better condition for allowance,” and it accomplished
that goal. Doc. 25-1 at 41, 42, 231. The Plaintiff’s prior patent application had stated “a
first attachment means attached at said first end of said adjustable tension strap and coaxial to central axis A,” without reference to “capable of being received in a gap in a
vehicle interior.” Id. at 65. The United States Patent Office rejected that application “as
being anticipated by” an already-existing patent for a gun mount. Id. at 76.
Consequently, the Plaintiff supplemented its application to add the phrase “said first
attachment means capable of being received in a gap in a vehicle interior positioned
below and adjacent a steering wheel column of said vehicle.” Id. at 41. The Patent Office
then allowed the patent’s supplemented claims. Id. at 39.3 The changes from a rejected
patent application to an accepted patent are accorded “weight, for the patentability of the
claims hinged upon their presence in the claim language.” Jansen v. Rexall Sundown,
3

The Plaintiff added a similar change regarding the second attachment means. See Doc. 25-1 at 42
(“[S]aid second attachment means capable of being received in a lower gap between dash plates in the
vehicle interior positioned below said first attachment means.”).

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Inc., 342 F.3d 1329, 1333 (Fed. Cir. 2003). Granting the latter two of the Plaintiff’s
proposed corresponding structures would deny weight to the added limitation of Claim 1,
“capable of being received in a gap.”
The Plaintiff also argues that adding the word “generally” before “co-axial” would
remove ambiguity and “prevent the Defendant . . . from later asserting that the bare term
‘co-axial’ should be understood as requiring an absolute or perfect co-axial orientation
between elements.” Doc. 24 at 7-8. But the Plaintiff identifies no support for this
broadening construction in the patent, the patent specification, or the prosecution history,
and the Court finds none. Although the Plaintiff argues that “the inventors did not specify
that the co-axial limitation required an absolute or perfect co-axial orientation,” they did
specify “co-axial to central axis A,” without a qualifying term such as “generally.” Doc. 24
at 7; Doc. 1-1 at 15.
The Plaintiff also requests that the Court add “having a first axis passing near its
center.” Doc. 21 at 2. It argues that such a construction is necessary because “[a]ll of the
corresponding structures described in the specification . . . may have an axis and it may
pass near its center.” Doc. 24 at 7. But, as with “generally,” nothing in the patent, patent
specification, or prosecution history justifies adding this language, which confuses, rather
than clarifies, the claim to be construed.
As to the term “co-axial,” the Court uses the construction suggested by the
Defendant, “having a common axis,” which would be known to a person of common
understanding in the art at the time of the patent. Doc. 28 at 5. As the Plaintiff notes, the
patent specification does not identify a special meaning for “coaxial,” so construing the
term by its dictionary definition is appropriate. Doc. 24 at 6; see also Vitronics Corp. v.
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Conceptronic, Inc., 90 F.3d 1576, 1584 n.6 (Fed. Cir. 1996) (“Judges . . . may also rely on
dictionary definitions when construing claim terms, so long as the dictionary definition
does not contradict any definition found in or ascertained by a reading of the patent
documents.”).
The Court also agrees with describing the “central axis A” of the disputed term as
belonging to the tension strap, as the Defendant proposes. However, the Court agrees
with the Plaintiff that reference to “central axis A” is still necessary, because the portion of
Claim 1 immediately preceding the first contested term is “an adjustable tension strap
having a first surface, second surface, thickness T, first end and distal end and a central
axis A.” Doc. 1-1 at 15.
Accordingly, the Court construes the first disputed term as follows: “a hook-shaped
device attached to one end of an adjustable tension strap and having a common axis with
the tension strap’s central axis (central axis A).”
B.

Second Term
The second disputed claim term is “said first attachment means capable of being

received in a gap in a vehicle interior positioned below and adjacent a steering wheel
column of said vehicle.” Doc. 21 at 1. The Plaintiff requests instead: “wherein at least a
portion of said first attachment means is capable of being received in a gap in a vehicle
interior positioned below and adjacent a steering wheel column of said vehicle.” Id. at 4.
The Defendant requests: “the first hook-shaped device capable of fitting into a gap in a
vehicle interior positioned below and adjacent a steering column of the vehicle to allow
tension to be applied to hold the holster mount in place.” Id.

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The Plaintiff requests adding “wherein at least a portion of” and “is” because the
functions are accomplished by a structure which places only a portion of the first
attachment means in a gap, and placing the entire first attachment means in a gap would
make the functions impossible. Doc. 24 at 9-10. The Court agrees that “nothing in the
specification or file history provides any grounds for requiring that all parts of the ‘first
attachment means’ structure must be capable of being received in a gap.” Doc. 24 at 9
(emphasis in original). But the Court finds that the Plaintiff’s proposed construction
muddles a point that is already clear; a person of ordinary skill in the art would not
construe “capable of being received in a gap” to require complete immersion in a gap.
Rather, the existing language clearly shows that the first attachment means is “capable of
being received in a gap” in the same way that a key is “capable of being received in a
lock” or a phone charger is “capable of being received in an electrical outlet.”
The Defendant argues that the Court should change the phrase “capable of being
received in a gap” to “capable of fitting into a gap.” Doc. 21 at 4. According to the
Defendant, this change is necessary to clarify the meaning of the word “receive” and to
“emphasize[] that the attachment means are used to hold the tension strap in the
respective gaps.” Doc. 28 at 7. But “[i]f the claim language is clear on its face, then our
consideration of the rest of the intrinsic evidence is restricting to determining if a deviation
from the clear language of the claims is specified.” Interactive Gift Express, Inc. v.
Compuserve Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001). Here, “capable of being
received” is clear, and, as discussed immediately below and in the section regarding the
fourth disputed claim, other claim constructions make clear that the attachment means
are used to hold the tension strap.
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The Defendant also requests adding “to allow tension to be applied to hold the
holster mount in place.” Doc. 21 at 4. The Defendant’s preferred construction is
consistent with all of the structures identified in the patent’s written descriptions and
preferred embodiments capable of “(1) being attached to the adjustable strap[,] (2) being
‘capable of being received’ in a gap, and (3) being under tension and co-axial with the
adjustable gap.” Doc. 24 at 5. The Plaintiff has not identified, and the Court cannot find,
a structure capable of those three functions of Claim 1 which does not use the vehicle
gap to create tension. However, this reasoning also applies to the similar fourth disputed
claim, and the tension function is clear if used in either construed term. Therefore the
Court only adds this requested construction to the fourth disputed term, as discussed
below, and not the second.
Accordingly, the Court construes the second disputed term as follows: “this first
hook-shaped device capable of being received in a gap in a vehicle interior positioned
below and adjacent to the vehicle’s steering wheel column.”
C.

Third Term
The third claim term for the Court to construe is “a second attachment means

attached to said distal end of said adjustable tension strap and co-axial to central axis A.”
Doc. 21 at 1. The Plaintiff requests: “a second attachment means having a second axis
passing near its center, wherein said second attachment means is attached to said distal
end of said adjustable tension strap and wherein said second axis is generally co-axial to
central axis A.” Id. at 4. The Defendant requests instead: “A hook-shaped device
attached to the other end of the adjustable tension strap in line with the central axis of the
tension strap.” Id.
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The language of this contested term largely tracks the language of the first
disputed term. The Plaintiff and the Defendant’s arguments for claim construction also
echo their arguments regarding the first disputed term. See Doc. 24 at 11 (“The ‘second
attachment means’ performs the same first function as the ‘first attachment means’
except it is attached to the distal end of the adjustable tension strap. For all the same
reasons discussed as to the ‘first attachment means,’ the court should adopt [the
Plaintiff]’s proposed construction for the ‘second attachment means’ because it comports
with the plain and ordinary meaning of the claims as understood by someone of skill in
the art.”); Doc. 25 at 14 (“Moreover, Terms 1 and 3 have essentially the same wording,
both in the patent and in the proposed constructions, except that they refer to different
ends of the tension strap. The same is true for Terms 2 and 4, except one refers to the
gap adjacent to the steering wheel and the other refers to the gap below that gap.”).4
Accordingly, the Court construes the third disputed term similarly to the first, for the
reasons discussed in that section: “a hook-shaped device attached to the other end of the
adjustable tension strap and having a common axis with the tension strap’s central axis
(central axis A).”
D.

Fourth Term
The fourth and final term in dispute is “said second attachment means capable of

being received in a lower gap between dash plates in the vehicle interior positioned below
said first attachment means.” Doc. 21 at 1. The Plaintiff requests: “wherein at least a
4

The Plaintiff argues that the three structures it identified relating to the first attachment means should also
apply to the second attachment means. Doc. 24 at 11. But the Plaintiff elsewhere concedes that “the
specification discloses a generally hook-shaped structure” for the second attachment means. Id. at 5.
Indeed, even if, contrary to the Court’s construction of the first and second claim terms as discussed above,
the item marked 10 in Figure 2 were different from other 10s throughout the patent specification and the first
attachment means did not require a hook-shaped structure, all of the written descriptions and preferred
embodiments relating to Claim 1 or Claim 5 clearly contemplate a hook attachment as the second
attachment means. See, e.g., Doc. 1-1 at 2.

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portion of said second attachment means is capable of being received in a lower gap
between dash plates in the vehicle interior positioned below said first attachment means.”
Id. at 6. The Defendant requests instead: “the second hook-shaped device capable of
fitting into a gap between the dash plates in a vehicle interior positioned below the gap
that is adjacent to the steering column to allow tension to be applied to hold the holster
mount in place.” Id.
The language of the fourth disputed term closely tracks the language of the second
disputed term. Neither party contests the language which distinguishes the second and
fourth terms: “being received in a gap in a vehicle interior positioned below and adjacent a
steering wheel column of said vehicle” versus “being received in a lower gap between
dash plates in the vehicle interior positioned below said first attachment means.” Id. The
parties’ disagreements are limited to the portions which are common to both the second
and the fourth disputed term. Doc. 21 at 4-6. For the reasons discussed in the section
regarding the second disputed term, the Court construes the fourth term similarly.
However, as discussed in that section, the Court finds that the language addressing the
hook-shaped devices’ design to create tension is necessary in order to construe the
patent specification’s corresponding structures to Claim 1, but adding the language to
both disputed terms would be redundant. The Court therefore adds it to the fourth term
and not the second.
Accordingly, the Court construes the fourth disputed term as follows: “this second
hook-shaped device capable of being received in a lower gap between dash plates in the
vehicle interior positioned below the first hook-shaped device to allow tension to secure
the holster vehicle mount.”
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III. CONCLUSION
The claims are construed as discussed above.
SO ORDERED, this 17th day of July, 2017.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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