Graco Children's Products Inc. v. Kids II, Inc.

Filing 106

OPINION and CLAIMS CONSTRUCTION ORDER. Signed by Judge Thomas W. Thrash, Jr on 11/28/2016. (jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GRACO CHILDREN’S PRODUCTS
INC.,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:13-CV-1183-TWT

KIDS II, INC.,
Defendant.

OPINION AND ORDER

This is a patent infringement lawsuit. It is before the Court for a Claims
Construction Order regarding four disputed claim terms in U.S. Patent No. 6,735,796
(“the ‘796 Patent”).
I. Background
The Plaintiff Graco Children’s Products, Inc. (“Graco”) is a manufacturer of
children’s products. It is seeking to enforce its rights under a patent for an infant play
pen. Specifically, the ‘796 Patent describes a combination folding play pen with a
bassinet and changing table that are removable. The Defendant Kids II, Inc. is also a
manufacturer of children’s products, including play pens. Kids II seeks a narrower

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construction of three of the disputed terms and contends that one of the disputed terms
is indefinite.
II. Legal Standard
The construction of claims in a patent case is a matter of law for the Court.1 In
construing patent claims, the Court looks first to the intrinsic evidence. The intrinsic
evidence consists of the patent itself, the claim terms, the specification (or written
description), and the patent prosecution history, if in evidence.2 However, not all
intrinsic evidence is equal.3 First among intrinsic evidence is the claim language.4 A
“bedrock principle” of patent law is that the claims of the patent define the patentee’s
invention.5 Thus, the Court’s focus must “begin and remain centered on the language
of the claims themselves, for it is that language that the patentee chose to use to
particularly point out and distinctly claim the subject matter which the patentee

1

Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996).

2

Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1346 (Fed. Cir.

2004).
3

Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed. Cir.

1998).
4

Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed.

Cir. 1999).
5

Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc).

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regards as his invention.”6 When reading claim language, terms 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 at the time of the invention.7
As a result, an objective baseline from which to begin claims construction is to
determine how a person of ordinary skill in the relevant art would understand the
terms.8 Although “the claims of the patent, not its specifications, measure the
invention,”9 the person of ordinary skill in the art is deemed to read the claim terms
in the context of the entire patent, including the specification, rather than solely in the
context of the particular claim in which the disputed term appears.10 For instance, the
patentee may act as his own lexicographer and set forth a special definition for a claim
term.11

6

Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1370 (Fed. Cir.
2005) (quoting Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1331
(Fed. Cir. 2001)); see also Markman v. Westview Instruments, Inc., 52 F.3d 967, 980
(Fed. Cir. 1995) (“The written description part of the specification itself does not
delimit the right to exclude. That is the function and purpose of claims.”).
7

Phillips, 415 F.3d at 1313-14.

8

Id. at 1313.

9

Smith v. Snow, 294 U.S. 1, 11 (1935).

10

Phillips, 415 F.3d at 1313.

11

Id. at 1316.

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Claims are part of a “fully integrated written instrument” and, therefore, “must
be read in view of the specification, of which they are a part.”12 In fact, the
specification is “the single best guide to the meaning of a disputed term” and is often
dispositive.13 “It is therefore entirely appropriate for a court, when conducting claim
construction, to rely heavily on the written description for guidance as to the meaning
of the claims.”14 Nevertheless, the Court must be careful not to read a limitation into
a claim from the specification.15 In particular, the Court cannot limit the invention to
the specific examples or preferred embodiments found in the specification.16 In
addition to the specification, the prosecution history may be used to determine if the
patentee limited the scope of the claims during the patent prosecution.17 The

12

Id. at 1315.

13

Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582
(Fed. Cir. 1996)).
14

Id. at 1317.

15

Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir.

2004).
16

Phillips, 415 F.3d at 1323; see also Resonate Inc. v. Alteon Websystems,
Inc., 338 F.3d 1360, 1364-65 (Fed. Cir. 2003) (“[A] particular embodiment appearing
in the written description may not be read into a claim when the claim language is
broader than the embodiment.”).
17

Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed. Cir.

1995).
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prosecution history helps to demonstrate how the patentee and the Patent and
Trademark Office (“PTO”) understood the patent.18 However, because the prosecution
history represents the ongoing negotiations between the PTO and the patentee, rather
than a final product, it is not as useful as the specification for claim construction
purposes.19
Extrinsic evidence – such as expert and inventor testimony, dictionaries, and
learned treatises – is only considered when the claim language remains genuinely
ambiguous after considering all of the patent’s intrinsic evidence.20 Although less
reliable than the patent and prosecution history in determining construction of claim
terms, extrinsic evidence may be used to help the Court understand the technology or
educate itself about the invention.21 In particular, because technical dictionaries collect
accepted meanings for terms in various scientific and technical fields, they can be
useful in claim construction by providing a better understanding of the underlying
technology and the way in which one skilled in the art might use the claim terms.22

18

Phillips, 415 F.3d at 1317.

19

Id.

20

Tegal Corp. v. Tokyo Electron America, Inc., 257 F.3d 1331, 1342 (Fed.

Cir. 2001).
21

Phillips, 415 F.3d at 1317; Vitronics Corp., 90 F.3d at 1584.

22

Phillips, 415 F.3d at 1318.

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But extrinsic evidence, including dictionary definitions, cannot be used to vary or
contradict the terms of the patent claims.23
III. Discussion
A. “upper frame assembly”
The parties first dispute the meaning of the phrase “upper frame assembly.”
Kids II contends that it means “a collection of interconnected parts that define the
upper perimeter of the playard.” Graco argues that no construction is necessary
because the phrase is sufficiently clear. If a construction is necessary, Graco asserts
that the phrase means “frame assembly above a midway point.” The Court finds that
a construction is necessary. “Claim construction is a matter of resolution of disputed
meanings and technical scope, to clarify and when necessary to explain what the
patentee covered by the claims, for use in the determination of infringement.”24
“[W]hen a district court concludes that a disputed term requires no construction it may
err if the disputed term has several ordinary meanings or failing to construe the term

23

Tegal Corp., 257 F.3d at 1342; see also Vitronics Corp., 90 F.3d at 1584
n.6 (courts are free to consult dictionaries “so long as the dictionary definition does
not contradict any definition found in or ascertained by a reading of the patent
documents”); Phillips, 415 F.3d at 1322-23.
24

U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir.

1997).
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leaves the parties’ dispute unresolved.”25 The Court would be committing error if it
did not construe the term “upper frame assembly.” The parties dispute the scope of the
term. Kids II requests a narrower construction, contending it only encompasses the
collection of parts making up the upper perimeter of the play pen. Seeking a broader
construction, Graco opines that it encompasses every part of the frame assembly
above a midway point. Thus, the Court must construe the term to resolve the parties’
genuine dispute over the scope of the claim term.
The Court finds that the claim language and the specification indicate that Kids
II’s definition is more appropriate. Claim 1 defines the upper perimeter of the play pen
by referencing the “upper frame assembly.” Specifically, claim 1 provides “said
changing table assembly including a changing table surface locatable within a
perimeter defined by said upper frame assembly.”26 This claim language is repeated
in two other claims.27 Furthermore, the claim language employs the term “assembly”
in regard to “upper frame.” Because the ‘796 Patent does not provide a novel
definition for the term “assembly,” the Court finds that a person of ordinary skill in

25

Kason Indus., Inc. v. Component Hardware Grp., Inc., 3:13-cv-12-TCB,
2014 WL 10588312, at *5 (N.D. Ga. January 31, 2014) (citing 02 Micro Int’l Ltd. v.
Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008)).
26

‘796 Patent; 7:31-33.

27

Id. at 10:31-34, 10:41-43.

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the art would understand “assembly” in this context to mean a collection of parts that
form a complete unit.28 Thus, the claim term “upper frame assembly” defines the
upper perimeter of the invention and it forms a complete unit.
The specification reinforces this interpretation of the claim term. The
specification states that the changing table surface is “supported slightly below the
upper frame assembly of the play pen, and significantly higher than the floor of the
bassinet assembly” so as to provide “a changing and dressing surface at a height
convenient for those purposes.”29 This demonstrates the “upper frame assembly”
serves as a perimeter at the top of the play pen. The specification also provides that
the “upper frame assembly [is] comprised of two pair of parallel collapsible rail
assemblies which are supported by corner leg assemblies.”30 Thus, the specification
clarifies that the “upper frame assembly” is a complete unit of interconnected parts.
Graco’s proposed construction – that the “upper frame assembly” is any part of the
frame above the midway point – runs counter to its own specification. Under that
28

See Kegel Co. v. AMF Bowling, 127 F.3d 1420, 1427 (Fed. Cir. 1997)
(“When used in the context in which it appears in claim 7, ‘assembly’ ordinarily
means a ‘collection of parts so assembled as to form a complete machine, structure,
or unit of a machine.” (quoting Webster’s Third New International Dictionary 131
(1986))); Safe Bed Techs. Co. v. KCI USA, Inc., No. 02 C 0097, 2004 WL 2044277,
(N.D. Ill. Sept. 8, 2004) (same).
29

‘796 Patent; 3:9-16.

30

Id. at 1:66-2:2.

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construction, the changing table surface would be located at an inconvenient height
for changing or dressing the child. In addition, the “assembly” would include only a
portion of the vertical struts.31 This is inconsistent with the plain meaning of the term
“assembly,” as the Court discussed above. As a result, the Court will construe “upper
frame assembly” as “a collection of interconnected parts that define the upper
perimeter of the play pen.”32
B. “[in] side-by-side relationship [to]”
Kids II argues that the term “[in] side-by-side relationship [to]” is indefinite
under 35 U.S.C. § 112 while Graco contends the term does not require construction.
“[A] patent is invalid for indefiniteness if its claims, read in light of the specification
delineating the patent, and the prosecution history, fail to inform, with reasonable
certainty, those skilled in the art the scope of the invention.”33 The Supreme Court has

31

At the Markman hearing, Graco argued that because the Cheng ‘570
patent, which claims the vertical leg as a part of the upper frame assembly, is fully
incorporated by reference into the ‘796 Patent, its construction of “upper assembly
frame” better reflects the inventor’s intent. See [Doc. 102] at 7. But Graco’s proposed
construction does not include the complete vertical leg; it only includes a portion of
the vertical leg. Thus, the Cheng ‘570 patent is not conclusive evidence in support of
Graco’s construction.
32

The Court declines to substitute the term “playard” for “play pen.” “Play
pen” is the primary term used to describe the invention, and Kids II has failed to
provide a reason as to why “playard” is more appropriate than “play pen.”
33

Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2124 (2014).

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emphasized three principles when evaluating indefiniteness: (1) that definiteness is to
be determined by someone skilled in the relevant art; (2) that definiteness should be
assessed in light of the patent’s specification and prosecution history; and (3) that
definiteness is measured at the time the patent was filed.34
Kids II contends the term is indefinite in the context of claims 1, 34, and 35
because the ‘796 Patent fails to define the scope of the term. Specifically, Kids II
contends that the term does not define:
(i) the distance, if any, between the bassinet assembly and the changing
assembly that would fall within or outside the scope of this term;
(ii) the different orientations . . . between the bassinet assembly and the
changing table assembly that would fall within or outside the scope of this
term;
(iii) the extent to which an intervening object between the bassinet assembly
and the changing table assembly would eliminate the “in side-by-side
relationship to”; and
(iv) the extent to which the height between the floor of the bassinet
assembly and changing table surface may differ while still achieving the “in
side-by-side relationship to.”35
Kids II contends its argument is reinforced by a patent examiner who concluded that
the metes and bounds of the claim term were unclear, making the claim term indefinite
for the ‘796 Patent’s parent application, the ‘690 patent. After the examiner rejected

34

Id. at 2128.

35

Kids II Opening Br., at 16.

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the claim term, Graco canceled it. Thus, according to Kids II, “Graco should not have
been permitted to recapture a claim that was previously found to be indefinite.”36
Graco responds by contending that the term provides a person of ordinary skill
in the art with reasonable certainty. At the Markman hearing, Graco pointed to Biosig
Instruments, Inc. v. Nautilus, Inc.37 in support of its argument. There, the term “spaced
relationship” was used to describe the distance between the electrodes of a heart rate
monitor.38 The Federal Circuit found that the term “spaced relationship” was
reasonably certain based on intrinsic evidence, including the claim language,
specification, and figures.39 The Federal Circuit noted that “the distance between the
live electrode and the common electrode cannot be greater than the width of a user’s
hands because claim 1 requires the live and common electrodes to independently
detect electrical signals at two distinct points of a hand.”40 Graco contends that, like
the intrinsic evidence in Biosig, the intrinsic evidence here proves the claim term is
reasonably certain. It points to the specification, which provides the bassinet and

36

Kids II Response Br., at 13.

37

783 F.3d 1374 (Fed. Cir. 2015).

38

Id. at 1379.

39

Id. at 1382-84.

40

Id. at 1383.

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changing table are “directly adjacent,” and to the claim language, which states the
bassinet and changing table must be supported by the upper frame assembly.41 Thus,
according to Graco, the structural limitations here are more definite than in Biosig.
The Court agrees with the Defendant. The intrinsic evidence adequately
demonstrates the metes and bounds of the claim term. The claim language provides that
the changing table surface and the bassinet are both supported by the upper frame
assembly.42 Because the upper frame assembly defines the upper perimeter of the
invention, the distance between the bassinet and the changing table surface is limited
by the perimeter of the upper frame assembly. This is similar to the electrodes in
Biosig, which were limited in distance by the confines of a hand. Moreover, by stating
that the bassinet and changing table surface are “directly adjacent,” the specification
provides further evidence of the boundaries of the term.43 Both Figures 1 and 2 in the
specification reinforce the “directly adjacent” description by showing the limited
distance between the bassinet and changing table.44

41

‘796 Patent; 7:1-4, 27-34.

42

Id. at 7:27-34.

43

Id. at 7:1-4

44

Id. at 3:30-36.

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The Court disagrees with Kids II that the prosecution history demonstrates the
term is indefinite. First, Kids II’s argument regarding the cancellation of the term fails
to acknowledge that the cancellation was made without prejudice or disclaimer.45 For
a patentee to disclaim a term, he must have “unequivocally disavowed a certain
meaning to obtain his patent.”46 Thus, by cancelling the term without prejudice, Graco
has not unequivocally disavowed the term. Moreover, when Graco reintroduce the
claim term in the instant patent, the patent examiner eventually came to understand the
scope of the term. Examiner Fredrick Conley initially rejected the claim that contained
the term “side-by-side relationship,” finding it to be unpatentable over U.S. Patent No.
5,778,465 to Meyers.47 However, Graco amended the claim so that the claim term
provided the changing table assembly was locatable within the perimeter of the upper
frame assembly.48 Indeed, throughout the patent history, the term “side-by-side

45

Kids II Opening Br., Ex. 2, at 125.

46

Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir.

2003).
47

Kids II Opening Br., Ex. 3, at 104.

48

Id. at 126-27.

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relationship” was used by the inventors to differentiate the prior art.49 In the end, the
Examiner did not reject the claim. Accordingly, the Court rejects Kids II’s argument.
Even though the Court finds the term is reasonably certain, the parties’ dispute
over the scope of the term still must be resolved.50 Thus, the Court will construe the
term. Kids II proposed construction is “directly adjacent” while Graco’s proposed
construction is “adjacent” or “beside.” The specification provides only one
embodiment of the “side-by-side relationship” of the bassinet assembly and the
changing table assembly. It states that “[t]he side-by-side relationship of the bassinet
assembly 31 and the changing table assembly 32 facilitates convenient changing and
dressing of a baby before and after naps, as the changing table surface is directly
adjacent to the napping location.”51 This “directly adjacent” description is reinforced
by a functional limitation of the patent. Specifically, the changing table assembly “is
supported . . . at the other two corners by the adjacent hub adaptors of the bassinet

49

Id. at 115, 126-27.

50

See Kason Indus., Inc. v. Component Hardware Grp., Inc., 3:13-cv-12TCB, 2014 WL 10588312, at *5 (N.D. Ga. January 31, 2014) (citing 02 Micro Int’l
Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008)).
51

‘796 Patent; 7:1-4.

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assembly.”52 Thus, in order for the assemblies to be in a “side-by-side relationship,”
the hub adaptors must be used to support the changing table assembly.
In response, Graco states that qualifying “adjacent” with “directly” would
improperly eliminate an embodiment of the ‘796 Patent. Graco points to language in
the summary of the invention that states the “changing table assembly that is
removably supported on a portion of the upper frame assembly adjacent to the bassinet
assembly.”53 This argument is without merit. The language in the specification
indicates that when it refers to an “adjacent” bassinet assembly, it is referencing the
same embodiment that describes the “side-by-side relationship” as “directly adjacent.”
Indeed, the “directly adjacent” description in the preferred embodiment precedes the
description that states the bassinet assembly is “adjacent” to the changing table
assembly.54 Graco then argues that “directly adjacent” would improperly read out the
embodiments in claims 16 and 33. Graco states that “[t]he telescoping feature recited
in Claims 16 and 33 allows the side assemblies to be adjustable, and would thus allow
‘space’ in the ‘side-by-side relationship’ of the bassinet and changing table.”55 But this
52

Id. at 3:5-8; see also id. at 7:7-9.

53

Id. at 2:43-46.

54

Id. at 7:1-10.

55

Graco Opening Br., at 17.

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argument ignores the functional limitation discussed above. If the changing table
assembly and the bassinet assembly are in a “side-by-side relationship,” the changing
table assembly must be “cooperatively supported by . . . the adjacent bassinet
assembly.”56 The only way this occurs is if the two assemblies are “directly adjacent.”
Graco fails to point to any intrinsic evidence that supports its idea that space between
the two assemblies is possible when both are supported on the upper frame assembly.
Accordingly, the Court will construe the term “side-by-side relationship” to mean
“directly adjacent.”57
C. “changing table surface”
The next dispute concerns the term “changing table surface.” Graco contends
that the term does not require construction because the term is used according to its
plain and ordinary meaning and is non-scientific in nature. In the event the Court
determines that construction is necessary, Graco seeks to define the term as the “outer
or exterior surface of the changing table.” Kids II seeks to define the term as the
“surface on which the child is placed to change his/her diaper.” According to Kids II,

56

‘796 Patent; 7:7-10.

57

Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc)
(“The 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.”).

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the specification informs the meaning of the term and demonstrates that the changing
table surface is used for dressing or changing the child. For example, Kids II points to
language in the specification that states “the changing table assembly facilitates
convenient changing and dressing of a baby before and after naps, as the changing
surface is directly adjacent to the napping location.”58
The Court agrees with Graco. There is no reason to deviate from the plain and
ordinary meaning of the term “changing table surface.”59 The language in claim 1 of
‘796 provides sufficient context for interpreting the term: “said changing table
assembly including a changing table surface locatable within a perimeter defined by
said upper frame assembly.”60 In other words, the changing table surface is an outer
surface of the changing table which may be located within the perimeter of the upper
frame assembly. Further clarification of the term is unnecessary. In addition, Kids II’s
proposed construction is problematic. By insisting that the term include language
regarding the placement of the baby while changing his/her diaper, Kids II

58

‘796 Patent; 7:2-4.

59

Thorner v. Sony Computer Entm’t America LLC, 669 F.3d 1362, 1367
(Fed. Cir. 2012) (“Claim terms must be given their plain and ordinary meaning to one
of skill in the art.”).
60

‘796 Patent; 7:31-33.

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impermissibly seeks to read functional limitations into the claim term.61 The
embodiments described in the specification do not restrict the function of the changing
table surface to just changing a child’s diaper. For example, one embodiment states that
“the changing table assembly 32 facilitates convenient changing and dressing of a baby
before and after naps, as the changing surface is directly adjacent to the napping
location.”62 Thus, the changing table surface may have functions beyond changing a
child’s diaper. The Court rejects Kids II’s construction and adopts the plain and
ordinary meaning of the term “changing table surface.”
D. “span”
Finally, the parties dispute the meaning of the term “span.” Like the previous
claim terms, Graco insists that no construction is required. If the Court decides to
construe the term, Graco proposes “span” to mean “connect at least two portions of.”
Kids II’s proposed definition is “to cover the entire space between supports.” The
Court finds that construction is necessary for the claim term. As previously discussed,
“[w]hen the parties present a fundamental dispute regarding the scope of a claim term,

61

See Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed.
Cir. 2014 (“[W]e do not read limitations from the embodiments in the specification
into the claims.”).
62

‘792 Patent; 7:1-4.

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it is the court’s duty to resolve it.”63 Because the parties dispute the scope of the term
“span,” the Court will construe the claim term. The Court finds that Graco’s
construction is more appropriate. The claim term “span” is used in claims 2 and 19,
both of which state that “the changing table assembly includes a rectangular frame, and
means for securing said changing table surface to span said rectangular frame.”64 When
describing the preferred embodiment, however, the specification uses the term “span”
in a broader fashion. The preferred embodiment provides that “[t]he outer end of each
tube 72 is joined to a keyed elbow connector 76, and a lateral tube 77 is joined to the
keyed elbow connectors 76 to span the sides of the play pen 21.”65 In other words, the
tubes connect the two sides of the play pen, but do not “cover the entire space between
supports.” Thus, Kids II’s proposed definition improperly restricts the claim term.
Because the claims should at the very least encompass examples in the specification,

63

02 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362
(Fed. Cir. 2008).
64

‘796 Patent; 7:35-38, 9:7-9.

65

Id. at 5:42-45

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the Court finds that Graco’s definition is more appropriate.66 Accordingly, the Court
will construe “span” to mean “connect at least two portions of.”
IV. Conclusion
For the reasons set forth above, the Court construes the disputed terms as
follows:
Term

Construction

“upper frame assembly”

“a collection of interconnected parts
that define the upper perimeter of the
play pen.”

“[in] side-by-side relationship [to]”

“directly adjacent”

“changing table surface”

Plain and ordinary meaning

“span”

“connect at least two portions of”

SO ORDERED, this 28 day of November, 2016.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

66

See SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d 1278, 1285 (Fed.
Cir. 2005) (“A claim construction that excludes a preferred embodiment, moreover,
is ‘rarely, if ever, correct.’”).

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