Days Corporation v. Lippert Components Inc
Filing
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OPINION AND ORDER: The disputed claim terms in the patents-in-suit are construed by the Court as set forth in this Opinion and Order. Signed by Judge Philip P Simon on 7/15/19. Associated Cases: 3:17-cv-00208-PPS-MGG, 3:17-cv-00327-PPS-MGG(ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAYS CORPORATION,
Plaintiff,
vs.
LIPPERT COMPONENTS, INC. and
INNOVATIVE DESIGN
SOLUTIONS, INC.
Defendants.
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CAUSE NO. 3:17CV208-PPS /MGG
consolidated with
INNOVATIVE DESIGN
SOLUTIONS, INC.,
Plaintiff,
vs.
DAYS CORPORATION,
Defendant.
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CAUSE NO. 3:17CV327-PPS/MGG
OPINION AND ORDER
In these consolidated cases, rival manufacturers square off concerning their
leveling systems for use on recreational vehicles, motorhomes, trailers, and other
structures often parked on uneven ground. Days Corporation has a patent (No.
6,619,693 or the ’693 patent) for an Apparatus and Method for Automatically Leveling
an Object. Innovative Design Solutions, Inc. and/or Lippert Components, Inc. hold two
similar patents: the first is Patent No. 6,584,385 (or the ’385 patent) for a Vehicle
Leveling Assembly, and the second is Patent No. 6,885,924 (or the ’924 patent) for a
Vehicle Attitude Adjustment Assembly. The ownership of defendants’ patents is
currently in dispute. But we can set that issue to the side for the time being because the
issue now before me is claims construction. There are a number of claims from all three
patents that need to be construed.
I held a Markman hearing to flesh out the various issues in dispute. That moniker
comes the seminal U.S. Supreme Court decision Markman v. Westview Instruments, Inc.,
517 U.S. 370 (1996) where the court observed that the rights of a patentholder to exclude
others from making, using or selling the patented invention are granted in exchange for
the “full disclosure” of the invention. This means that “a patent must describe the exact
scope of an invention and its manufacture to ‘secure to [the patentee] all to which he is
entitled, [and] to apprise the public of what is still open to them.’” Id. at 373, quoting
McClain v. Ortmayer, 141 U.S. 419, 424 (1891). These requirements are met by the
“specification” of the patent, which describes the invention “in such full, clear, concise,
and exact terms as to enable any person skilled in the art…to make and use the same,”
and by the patent’s “claims,” which “particularly poin[t] out and distinctly clai[m] the
subject matter which the applicant regards as his invention.” 35 U.S.C. §112(b).
The claims of a patent define the patent’s scope. Markman, 517 U.S. at 373.
Someone bringing an allegation of infringement must show that a patent’s claim
“’covers the alleged infringer’s product or process,’ which in turn necessitates a
determination of ‘what the words in the claim mean.’” Id. at 374, quoting H. Schwartz,
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Patent Law and Practice 1, 80 (2d ed. 1995). The two steps of an infringement analysis
are therefore: (1) “determining the meaning and scope of the patent claims asserted to
be infringed,” and (2) “comparing the properly construed claims to the device accused
of infringing.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995).
See also Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115
(Fed. Cir. 2004).
Step one -- claims construction -- is a matter for the court. What this means is that
where the meaning of claim terms is disputed, the court resolves the dispute to “clarify
and explain what the claims cover.” Baxter Int’l, Inc. v. CareFusion Corp., 2019 WL
1897063, at *1 (N.D. Ill. Apr. 29, 2019), citing Terlep v. Brinkmann Corp., 418 F.3d 1379,
1382 (Fed. Cir. 2005). See also Markman, 517 U.S. at 373. “Claim construction seeks to
ascribe the ‘ordinary and customary meaning’ to claim terms as a person of ordinary
skill in the art would have understood them at the time of invention.” Sumitomo
Dainippon Pharma Co., v. Emcure Pharm. Ltd., 887 F.3d 1153, 1157 (Fed. Cir. 2018). “As a
general rule, the ordinary and customary meaning controls unless ‘a patentee sets out a
definition and acts as his own lexicographer, or … the patentee disavows the full scope
of a claim term either in the specification or during prosecution.’” Id, quoting Thorner v.
Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).
As the Federal Circuit teaches in Sumitomo, “[t]he plain claim language marks the
starting point for our analysis.” 887 F.3d at 1157. But applying the understanding of a
person of ordinary skill in the art requires consideration of the disputed term “not only
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in the context of the particular claim in which the disputed term appears, but in the
context of the entire patent, including the specification.” Phillips v. AWH Corp., 415 F.3d
1303, 1313 (Fed. Cir. 2005). “[T]he context in which a term is used in the asserted claim
can be highly instructive.” Phillips, 415 F.3d at 1314. The specification is “always highly
relevant to the claim construction analysis,” and is usually dispositive as “it is the single
best guide to the meaning of a disputed term.” Vitronics Corp. v. Conceptronic, Inc., 90
F.3d 1576, 1582. (Fed. Cir. 1996). See also Phillips, 415 F.3d at 1315.
Claim to be Construed in the Days ‘693 Patent
There is only one disputed claim term in Days’ ‘693 patent, namely “reference
level plane” as used in Claims 12 and 13. To see the disputed language in its context, I
will highlight the claim term within the full text of Claims 12 and 13.
Reviewing these
claims in their entirety also offers a helpful snapshot of how the leveling systems
generally work.
12. An apparatus for automatically leveling a vehicle, comprising:
a plurality of legs each of which is mounted to the vehicle;
wherein each of the legs is movable between a retracted stowed position and an
extended use position; and
wherein each of the legs is moved to the retracted stowed position to allow the
vehicle to travel and each of the legs is moved to the extended use position to engage a
ground surface prior to leveling the vehicle;
a sensor mounted to the vehicle to sense pitch and roll of the vehicle relative to a
reference level plane;
wherein the sensor produces an orientation signal representing the vehicle pitch
and roll; and
a controller coupled to each [of] the legs and the sensor;
wherein the controller monitors the orientation signal received from the sensor
and in response to that signal the controller causes at least one of the legs to both extend
to move the vehicle upwardly and retract to move the vehicle downwardly relative to
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the ground surface, until the orientation of the vehicle reaches the reference level plane
within a tolerance.
13. An apparatus for automatically leveling a vehicle, comprising:
a plurality of legs each of which is mounted to the vehicle;
wherein each of the legs is movable between a retracted stowed position and an
extended use position; and
wherein each of the legs is moved to the retracted stowed position to allow the
vehicle to travel and each of the legs is moved to the extended use position to engage a
ground surface prior to leveling the vehicle;
a sensor mounted to the vehicle to sense pitch and roll of the vehicle relative to a
reference level plane;
wherein the sensor produces an orientation signal representing the vehicle pitch
and roll; and
a controller coupled to each of the legs and the sensor;
wherein the controller monitors the orientation signal received from the sensor
and in response to that signal the controller causes at least one of the legs to move the
vehicle relative to the ground surface until the orientation of the vehicle reaches the
reference level plane within a tolerance; and
wherein the controller includes a memory for storing data corresponding to the
reference level plane and is configured to write data representing an orientation signal
to the memory to replace the reference level plane data with orientation signal data.
Days’ contention is that “reference level plane” should be interpreted as “a plane
chosen by the user as level.” Lippert, by contrast, advocates for the following
construction: “a reference plane that extends through the mounting locations of the four
legs on the vehicle frame where the interior of the vehicle is at true level relative to the
horizontal.” The dispute sets up a contrast between a subjective and flexible definition
(Days’) and a fixed objective definition (Lippert’s). Lippert argues that, to have any
meaning, “reference level plane” needs to be defined by a geometric relationship to the
vehicle. But this is so only if the concept must necessarily be a fixed plane determinable
from prescribed points. The specification instead suggests that a “reference level plane”
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is a user-determined plane set as the reference for determining when “level” is achieved
by the system.
Both parties point to the specification’s explanation that “the reference level
plane generally corresponds to a vehicle orientation which results in the interior of the
vehicle feeling at true level relative to the horizontal.” ‘693 patent, col. 7, ll. 35-38. The
specification also indicates that when the vehicle “is in the reference level plane…or a
plane which is parallel to the plane…[the] vehicle 10 is preferably at true level.” ‘693
patent, col. 7, ll. 64-66. The qualifiers “generally,” “feeling at” and “preferably” support
Days’ subjective reading of “reference level plane.” The initial setting of the reference
level plane is recommended to be “as close to true level as possible.” ‘693 patent, col. 10,
ll. 11-12. The specification also describes how the reference level plane can be
recalibrated or reset by the operator to account for heavy loads, “such that the vehicle
feels or measures level from the inside of the vehicle.” ‘693 patent, col. 10, ll. 19-20
(emphasis added). The setting of the reference level plane is accomplished manually by
an operator according to his or her preference.
I understand the presumption that for most contemplated usages, having the
vehicle interior at roughly true level will be desired. But I see no basis for a construction
of “reference level plane” that would limit the term to “true level” as Lippert argues. I
also find persuasive Days’ observation that Lippert’s construction links the plane to
“the four legs on the vehicle frame” when Claims 12 and 13 prescribe only “a plurality
of legs,” which, as the parties agree [DE 57 at 3], simply means “more than one.”
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Finally, I note that the use of the indefinite article “a” in the term “a reference level
plane” supports Days’ more flexible interpretation. If “reference level plane” is
understood as Lippert proposes, then it is a fixed concept of true level measured
through the plane of the legs. Being a fixed measure, it would properly be referred to as
“the reference level plane” because it is always the same.
I therefore construe “reference level plane” in Claims 12 and 13 of the ‘693 patent
to mean “a plane chosen by the user as level,” as contended by Days. This interpretation
is supported by the plain language, which uses the indefinite article “a” and makes no
reference to an absolute or objective standard of “true level.” Instead, the specification
speaks to a flexible reference level plane capable of being set and recalibrated by the
operator to his or her preference, whether or not to true level for the vehicle’s interior.
Claims to be Construed in the Lippert ‘385 Patent
There are seven claims to be construed from the Lippert ‘385 Patent. In
addition, one of the claim terms -- the term “zero mode” -- is included in both the ‘385
and the ‘924 patents. I will take up each of these claim terms next.
1. “Located Anywhere in the Structure”
The term “located anywhere in the structure” is part of Claim 1 of Lippert’s ‘385
patent. Days argues that the phrase is invalid for indefiniteness and for lack of
enablement. Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898 (2014). Lippert’s
position is that “located anywhere in the structure” means what its plain language
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suggests, and no claim construction is required. Here is how it reads in the context of
the claim:
1. An assembly for correcting the attitude of any selected portion of structure, the
assembly comprising:
a controller configured to connect to and control one or more jacks operable to
change the attitude of a structure; and
a proportional two-axis tilt sensor connected to the controller and configured to
be supported on the structure, the tilt sensor being configured to provide analog signals
to the controller, which represent the degree of longitudinal pitch and lateral roll of the
portion of the structure the sensor is supported on, the controller being additionally
configured to move a selected portion of the structure into a desired attitude by
commanding movement of the entire structure into an attitude where the tilt sensor
signals match a preselected reference value corresponding to the desired attitude of the
selected portion of the structure, thereby allowing any portion of the structure to be
corrected to any desired attitude within a range of attitudes despite the location of the
tilt sensor and allowing the tilt sensor to be located anywhere in the structure.
Because 35 U.S.C. §112 requires a patent holder to “particularly” and “distinctly”
disclose the subject matter that is the patented invention, a claim can be challenged for
lacking specificity. “A claim is invalid for indefiniteness if its language, when read in
light of the specification and the prosecution history, ‘fail[s] to inform, with reasonable
certainty, those skilled in the art about the scope of the invention.’” Biosig Instruments,
Inc. v. Nautilus, Inc., 783 F.3d 1374, 1377 (Fed. Cir. 2015), quoting Nautilus, Inc. v. Biosig
Instruments, Inc., 572 U.S. 898, 901 (2014).
Because under 35 U.S.C. §282, a patent is presumed to be valid, a challenge on
invalidity grounds must be proved by clear and convincing evidence. Biosig, 783 F.3d at
1377. Days argues indefiniteness without any evidence supporting the conclusion that
one skilled in the art would not reasonably understand that this invention allows the tilt
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sensor to be “located anywhere in the structure.” I’m at a loss to understand what is
indefinite about this. And just saying that a phrase is indefinite, as Days claims, does
not make it so.
For starters, the specification of the ‘385 patent explains that: “The tilt sensor 32 is
connected to the controller 30 and may be mounted at any point on a vehicle to be
leveled.” ‘385 patent, col. 8, ll. 8-9. After explaining the function of the sensor and the
controller to which the sensor sends signals describing the structure’s pitch and roll, the
specification also provides that “a motor vehicle leveler constructed according to the
invention allows a user or installer to determine which portion of the vehicle will be
level relative to gravity despite the location of the tilt sensor 32,” so that the sensor
“may, therefore, be located anywhere in the vehicle.” ‘385 patent, col. 8, ll. 15-20. Earlier
in Claim 1 than the challenged language, the sensor is said to be “supported on the
structure,” and to provide signals of the pitch and roll “of the portion of the structure
the sensor is supported on.” ‘385 patent, col. 17, ll. 10-14. The assembly described in
Claim 1 is able to “allow[] any portion of the structure to be corrected to any desired
attitude within a range of attitudes despite the location of the tilt sensor.” ‘385 patent,
col. 17, ll. 21-23.
As I said at the Markman hearing, “located anywhere in the structure” is broad,
but I am not persuaded that it can be called “indefinite.” The term does not describe an
indefinite measure, as has sometimes (but not always) been found to be indefinite for
patent purposes. See Biosig, 783 F.3d at 1382-83 (finding the “spaced relationship”
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between electrodes sufficiently definite). Days relies on Dow Chem. Co. v. Nova Chemicals
Corp. (Canada), 803 F.3d 620, 635 (Fed. Cir. 2015), arguing that “located anywhere in the
structure” lacks “objective boundaries.” [DE 59 at 14.] To the contrary, the boundary set
by the disputed term is within the structure. That any number of locations within the
structure might be within the claim -- if the placement of the sensor can achieve the
other elements of the claim -- does not render the claim indefinite, but merely broad as
to the parameter of location. The Federal Circuit has several times underscored that
breadth is not the same as indefiniteness. BASF Corp. v. Johnson Matthey Inc., 875 F.3d
1360, 1367 (Fed. Cir. 2017); SmithKline Beechham Corp. v. Apotex Corp., 403 F.3d 1331, 1341
(Fed. Cir. 2005).
The context in Dow Chemical was a patent for a type of plastic, and the indefinite
terminology was “the slope of strain hardening.” 803 F.3d at 624. The Federal Circuit
noted that the degree of uncertainty tolerated under the definiteness requirement for
patents is narrower “where different approaches to measurement are involved.” Id. at
630. Because there were four possible methods for calculating the slope, each producing
different results, and no guidance in the patent or the prosecution history as to which
should be used, the claims containing the disputed term were found to be indefinite. Id.
at 634-35. See also Teva Pharm. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335, 1338, 1341 (Fed.
Cir. 2015) (involving three possible measures for “molecular weight”). Unlike Dow
Chemical and Teva, the disputed term “located anywhere in the structure” does not
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prescribe a measurement or computation as to which reasonable precision or exactness
is required in order to understand what is claimed.
Particularly in view of the specification’s detailed description of preferred
embodiments in which the tilt sensor and its function is described as I set out earlier,
the claim for a tilt sensor meeting the half-dozen other criteria of Claim 1 but located
anywhere in the structure is sufficient to enable a skilled artisan to understand with
reasonable certainty the scope of the invention. The claim term “located anywhere in
the structure” is not void for indefiniteness.
I’ll now consider the issue of enablement. “Under the enablement requirement,
‘the specification of a patent must teach those skilled in the art how to make and use the
full scope of the claimed invention without undue experimentation.’” Amgen Inc. v.
Sanofi, 872 F.3d 1367, 1375 (Fed. Cir. 2017), quoting Genentech, Inc. v. Novo Nordisk A/S,
108 F.3d 1361, 1365 (Fed. Cir. 1997). Like indefiniteness, lack of enablement is an
invalidity contention that “must be shown by clear and convincing evidence.” Trustees
of Bos. Univ. v. Everlight Elecs. Co., 896 F.3d 1357, 1361 (Fed. Cir. 2018).
To satisfy enablement, the specification is not required to “expressly spell out
every possible iteration of every claim.” Trustees of Bos. Univ., 896 F.3d at 1364 (finding
that “epitaxially growing a monocrystalline layer directly on an amorphous layer
would have required undue experimentation”). Especially for patents such as the ‘385
patent “in the mechanical or electrical arts, a single embodiment provides broad
enablement because once imagined, other embodiments may be fashioned without
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undue experimentation.” Penda Corp. v. United States, 29 Fed. Cl. 533, 556 (1993). This is
because the mechanical and electrical arts involve “predictable factors,” unlike “arts
involving unpredictable factors, such as chemistry and physiology,” where the
“requisite scope of enablement varies inversely with the degree of unpredictability of
the factors involved.” Id. The court in Penda Corp. observed that the design of pallets
involves largely predictable factors, so that the disclosure of one embodiment was
adequate to enable a claim that did not teach certain particulars about the design of a
pallet “having fused portions in the leg sidewall.” Id. at 556-557.
Claim 1 specifies that the controller is “configured to connect to…one or more
jacks” but does not otherwise specify the location of the controller within the structure.
‘385 patent, col. 17, ll. 6-7. As to the tilt sensor, Claim 1 states that although the tilt
sensor is “connected to the controller and configured to be supported on the structure,”
the tilt sensor can “be located anywhere in the structure” and still perform its role to
detect the structure’s tilt, and to convey signals representing that pitch and roll to the
controller. The description of the sensor’s function in Claim 1 and in the specification
are not shown to require undue experimentation to determine the placement of either
the controller or the tilt sensor within the structure.
A contrasting example of lack of enablement is found in In re Marquez, 738 F.
App’x 1012 (Fed. Cir. 2018). There the Federal Circuit affirmed the Patent Trial and
Appeal Board’s rejection of a patent application for lack of enablement. The patent
related to methods for creating artificial glands using membranes made up of cellular
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components. Id. at 1013, 1014. Because the application did “not provide guidance for
how to form cellular components into a membrane capable of surrounding a bioreactor” and its “only working examples of artificial glands use cells rather than cellular
components,” the court concluded that creating the artificial glands covered by
challenged claims would require undue experimentation and failed for lack of
enablement. Id. at 1014-15. That the ‘385 patent does not specify where in a structure the
tilt sensor is situated is a far cry from the undue experimentation required by the
invalid claims of In re Marquez. “ The placement of the tilt sensor is not an essential
element of the sensor’s operation, and the specification makes that plain.
Just like Day’s argument for indefiniteness, I find that the argument for lack of
enablement is unpersuasive, and certainly is not supported by clear and convincing
evidence (as no evidence is offered in support). With the detailed description of the
function of the tilt sensor in both the specification and Claim 1 of the ‘385 patent, the
indication that the tilt sensor can be located anywhere in the structure is not shown to
require undue experimentation to replicate the claimed invention. Days does not
establish that a person of skill in the art would be unable to make or use the invention
of Claim 1 due to the tilt sensor being “located anywhere in the structure.”
2. “Infer Jack Ground Contact” & “Detect Jack Ground Contact”
The next two disputed terms have common elements and are treated together by
the parties. Lippert’s patents call “jacks” what the Days’ patent calls the “legs” of the
leveling system. The ‘385 patent contains two claims that refer to the leveling system’s
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controller being “configured to infer jack ground contact.” The first of these is in Claim
7. It reads that the “controller is configured to infer jack ground contact based on
dynamic information received from the tilt sensor and indicating jack loading.” ‘385
patent, col. 17, ll. 44-46. The second is Claim 15’s reference to “the controller being
configured to infer jack ground contact based on tilt angle changes sensed by the tilt
sensor.”
The similar expression “detect jack ground contact” is used in three later claims
in these contexts:
•
“the controller is configured to detect jack ground contact from a change in tilt
angle” (Claim 33, ‘385 patent, col. 21, ll. 14-16);
•
“the controller being additionally configured to use signals from the tilt sensor to
detect jack ground contact” (Claim 34, ‘385 patent, col. 22, ll. 6-8); and
•
“detecting jack ground contact through tilt sensor indications of a change in the
attitude of the structure resulting from jack ground contact” (Claim 35, ‘385
patent, col. 22, ll. 16-18).
The parties dispute the correct interpretation of “infer” or “detect” jack ground contact
within the meaning of these claims.
Days contends that the terms “infer jack ground contact” and “detect jack
ground contact” implicitly require a determination “that a jack has contacted the
ground by detecting a change in tilt angle of the structure.” [DE 59 at 15.] Days argues
that this interpretation is “consistent with the specification, which discloses a method of
inferring ground contact from changes in the tilt angle.” [Id.] Lippert would construe
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the disputed term more generally, to mean “determine that ground contact has been
made by the jack based on data received from the tilt sensor” without a limiting
reference to a change in tilt angle. [DE 60 at 17.]
First, I note that all 5 appearances of these related terms are in the context of the
function of the tilt sensor. So any construction of the disputed terms that incorporates
an explicit reference to the tilt sensor is inherently redundant. For instance, Lippert’s
proposed construction (in bold) would create a redundancy in Claim 7 to read:
“…configured to determine that ground contact has been made by the jack based on
data received from the tilt sensor based on dynamic information received from the tilt
sensor….” This redundancy requires rejection of Lippert’s proposed construction for
Claim 7. Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1237, 1238 (Fed. Cir. 2016) (a patent
claim should not be redundantly construed to include features already expressly recited
in the claim). On the other side, I can reject Days’ construction as to Claims 15 and 33
because Days’ language referring to “tilt angle” would be redundant and add nothing
to those two claims, which already expressly include the phrases “based on tilt angle
changes” (‘385 patent, col. 18, l. 37) and “from a change in tilt angle” (‘385 patent, col.
21, ll. 15-16), respectively.
Aside from these issues of redundancy, the parties’ dispute boils down to
whether, as Days contends, tilt angle changes should be read into the broader language
of Claims 7, 34 and 35. Days contends that the patent’s specification teaches no method
of determining ground contact other than from changes in the tilt angle. [DE 59 at 16.]
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To that point, Lippert cites portions of the specification teaching that other data besides
tilt angle may inform the controller’s determination that the jack has made contact with
the ground: “The adaptive filtering algorithm allows the controller 30 to recognize
ground contact by looking at specific output characteristics received from the tilt sensor
32. The output characteristics that the algorithm looks at are noise, rate of change, scale
factor and temperature.” ‘385 patent, col. 7, ll. 44-49. But the only algorithm disclosed in
detail in the specification measures tilt angle only, not these other “output
characteristics.” ‘385 patent, col. 6, l. 46-col. 7, l. 40.
Courts performing claim construction are “to rely heavily on the written
description for guidance as to the meaning of the claims.” Phillips, 415 F.3d at 1317. The
meaning of claim terms should be ascertainable by reference to the description of the
invention set forth in the specification, and the “terms and phrases used in the claims
must find clear support or antecedent basis in the description.” Id. at 1317-18, quoting
37 C.F.R. §1.75(d)(1). At the same time, claim language is to be given its ordinary
meaning and it is improper to impose a construction that would “add a limitation
appearing in the specification and the drawings, but not appearing in the unambiguous
language of the claim.” Gart v. Logitech, Inc., 254 F.3d 1334, 1343 (Fed. Cir. 2001). And
the Federal Circuit has repeatedly warned against limiting a claimed invention to a
preferred embodiment or to particular examples offered in the specification. See Varco,
L.P. v. Pason Sys. USA Corp., 436 F.3d 1368, 1375 (Fed. Cir. 2006) (and cases cited
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therein). These principles of claim construction defeat Days’ attempt to construe the
“jack ground contact” terms to be based only on detection of tilt angle changes.
The case cited by Days, Gentry Gallery Inc. v. Berkline Corp., 134 F.3d 1473, 1480
(Fed. Cir. 1998), actually appears to support Lippert’s position, in that it teaches that a
patent holder is entitled to claims as broad as the disclosure and the prior art allow, and
that a claim may be broader than the specific embodiment disclosed in the patent’s
specification. Here, the ‘385 patent describes a tilt sensor that reads characteristics other
than tilt angle to allow the controller to recognize ground contract. ‘385 patent, col. 7, ll.
44-49. Even in the absence of a detailed embodiment of such a tilt sensor, claims such as
7, 34 and 35, whose plain language does not limit ground contact recognition to tilt
angle, are not required to be so limited. Based on the plain language, I construe the
terms “infer jack ground contact” and “detect jack ground contact” as used in Claims 7,
15, 33, 34, and 35 to mean “determine that ground contact has been made by the jack.”
3. “Indicating Jack Loading”
Claim 7 of the ‘385 patent refers to the determination of jack ground contact
“based on dynamic information received from the tilt sensor and indicating jack
loading.” ‘385 patent, col. 17, ll. 44-46. Days argues that the term “indicating jack
loading” is invalid for indefiniteness, noting that the phrase does not appear in the
patent’s specification. [DE 59 at 16-17.] Both in Days’ briefing and at the Markman
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hearing, it became apparent that the challenge to the term is fundamentally
grammatical.
For starters, the fact that the term is not found in the specification is not critical to
its validity. So holds Univ. of Rochester v. G.D. Searle & Co.: “this court and its
predecessor have repeatedly held that claimed subject matter ‘need not be described in
haec verba’ in the specification to satisfy the written description requirement.[.]” 358
F.3d 916, 922-23 (Fed. Cir. 2004), quoting In re Smith, 481 F.2d 910, 914 (C.C.P.A. 1973).
Nor am I persuaded that the term “indicating jack loading” is indefinite because it
defies construction, as Days suggests, relying on Praxair, Inc. v. ATMI, Inc., 543 F.3d
1306, 1319 (Fed. Cir. 2008). “A claim will be found indefinite only if it ‘is insolubly
ambiguous, and no narrowing construction can properly be adopted…’” Id., quoting
Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir. 2001).
Acknowledging the slightly awkward syntax of Claim 7, I can readily construe
the language to clarify the intended meaning, by reading the term “indicating jack
loading” as a second modifier of “dynamic information,” along with the first modifier
“received from the tilt sensor.” In other words, the disputed portion of Claim 7 is
construed to mean “…based on dynamic information that is both received from the tilt
sensor and indicating jack loading.” As to the meaning of the words “indicating jack
loading,” I find that no construction is required, and Days does not specifically argue
that the phrase itself is ambiguous.
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4. “Pre-Selected Reference Value”
Claims 1 and 29 of the ‘385 patent refer to “the controller being additionally
configured to move a selected portion of the structure into a desired attitude by
commanding movement of the entire structure into an attitude where the tilt sensor
signals match a pre-selected reference value corresponding to the desired attitude of
the selection portion of the structure.” ‘385 patent, col. 17, ll. 14-20; ‘385 patent, col. 20, l.
63-col. 21, l. 4 (emphasis added). Days contends that the term “pre-selected reference
value” should be construed to mean “a sensor signal value chosen by the user or
installer.” [DE 59 at 18.] Lippert made clear at the Markman hearing that it is not
persuaded the term requires construction, and I agree. This is an instance in which “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…involves little more than
the application of the widely accepted meaning of commonly understood words.”
Phillips, 415 F.3d at 1314.
The “dispute” about this claim term is not really a challenge to the meaning of
the words used in the claim. Instead, Days’ proposal attempts to define how the
reference value is pre-selected, but Days fails to establish why that must be further
defined within the claim. As I indicated at the Markman hearing, I am unpersuaded that
the term “pre-selected reference value” requires construction. I conclude that as the
term is used in Claims 1 and 29, the term’s ordinary and customary meaning would be
readily understood by a person of ordinary skill in the art.
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5. “Dynamic Information”
By now this portion of Claim 7 is familiar: the “controller is configured to infer
jack ground contact based on dynamic information received from the tilt sensor and
indicating jack loading.” ‘385 patent, col. 17, ll. 44-46. Days challenges the term
“dynamic information” as indefinite, noting that the phrase does not appear in the
specification. For the same reason as before, I find that the term’s failure to appear in
the specification does not, without more, invalidate the term or the claim. Univ. of
Rochester, 358 F.3d at 923. But is the ordinary and customary meaning of the term
“dynamic,” as used in the context of Claim 7, readily understood by a person of
ordinary skill in the art?
In construing the term, I must start with the plain meaning of the words. I also
consider the context of the term within the claim and any help the specification
provides in understanding the term. In addition, “it bears remembering that all issued
patent claims receive a statutory presumption of validity” under 35 U.S.C. §282. CLS
Bank Int’l v. Alice Corp. Pty., 717 F.3d 1269, (Fed. Cir. 2013). See also Christy, Inc. v. United
States, 141 Fed. Cl. 641, 651 (2019). “Dynamic” is commonly understood (and would be
by those skilled in the art of designing or constructing a leveling system) as referring to
something that changes, or is changeable, as opposed to static or unchanging. And the
context in which “dynamic” appears in Claim 7 is information received from a sensor,
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which by definition has the ability to sense changes. So far, the plain meaning of the
term plus the context appear to yield a reasonably understandable meaning of the term.
What’s more, the specification offers confirmation of this conclusion. For
instance, the specification provides that “[w]hen the tilt sensor 32 is attempting to detect
ground contact during initial grounding of the levelers as shown in FIGS. 21 and 22, the
sensor 32 must be very sensitive to changes in movement.” ‘385 patent, col. 6, ll. 29-32.
Also “the controller 30…recognize[s] ground contact by looking at specific output
characteristics received from the tilt sensor 32” including “noise, rate of change, scale
factor and temperature.” ‘385 patent, col. 7, ll. 45-49. Operation of the controller is
described as “sens[ing] ground contact when it receives signals from the tilt sensor 32
indicating a change in tilt angle.” ‘385 patent, col. 9, ll. 40-41. These examples from the
specification provide additional support for a plain meaning construction of “dynamic
information” in Claim 7 as espoused by Lippert to mean “a change in information.”
“[T]he failure of the specification to specifically mention a limitation that later appears
in the claims is not a fatal one when one skilled in the art would recognize upon reading
the specification that the new language reflects what the specification shows has been
invented.” All Dental Prodx, LLC v. Advantage Dental Prod., Inc., 309 F.3d 774, 779 (Fed.
Cir. 2002). Days has not satisfied its burden of demonstrating Claim 7’s invalidity by
clear and convincing evidence. Microsoft Corp. v. I4I Ltd. P’ship, 564 U.S. 91, 95 (2011)
(quoting 35 U.S.C. §282(a)).
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6. “Selectively Extended”
The preamble to Claim 15 describes “[a]n assembly for correcting the attitude of
a structure by operating jacks that extend from the structure to contact a support
surface before being selectively extended to correct the attitude of the structure[.]” ‘385
patent, col. 18, ll. 23-26. Days contends that the term “selectively extended” must be
read to mean “extended in pairs.” [DE 59 at 19.] Lippert argues that the disputed term
has a plain and ordinary meaning and requires no construction, and that Days
improperly attempts to read a limitation from the specification into the claim. [DE 60 at
24-25.]
Initially, I observe that there is nothing about the phrase “selectively extended”
that connotes extension in pairs, as opposed to singly or in groups of 3 or more. Neither
does the plural “jacks” earlier in the preamble necessarily support Days’ construction.
There the context of “jacks” is the extension of presumably all legs initially “to contact a
support surface,” which occurs “before being selectively extended” to level the
structure as desired. The concept of selective extension suggests that fewer than all the
jacks may be extended, but implies nothing about the number of jacks selected for
further extension in the leveling process.
Days cites several portions of the specification in support of its preferred
construction of “selectively extended” to mean pairs of jacks. The first is the explanation
that “[t]he controller 30 levels a vehicle by extending the jacks in pairs parallel to
longitudinal pitch and lateral roll vehicle axes.” ‘385 patent, col. 5, ll. 61-63. Days also
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cites the specification’s description of the system’s automatic adjustment of vehicle
attitude if found to be out-of-level too long: “No individual leveler needs to be actuated
during this sequence, only pairs of devices are activated at any one time.” ‘385 patent,
col. 9, ll. 8-10. Lippert responds with citations of its own, to portions of the specification
expressly referring to extension of one jack at a time. “Each individual leveler is then
extended in the order (LF, RF, RR, LR) until each leveler contacts the ground” (‘385
patent, col. 9, ll. 42-44), and “[t]he controller 30 then activates the appropriate levelers in
a predetermined leveling sequence to adjust vehicle attitude until the vehicle is level”
(‘385 patent, col. 9, ll. 50-52.) The specification further describes: “The step of extending
each individual leveler is repeated for any other axis that requires leveling….” ‘385
patent, col. 10, ll. 9-11.
Because the specification does not disclose only extending jacks in pairs, as Days
contends, its construction of “selectively extended” to mean “extended in pairs” is
rejected. Instead, the term “selectively extended” as it appears in Claim 7 presents a
plain and ordinary meaning, namely that any number of the “operating jacks that
extend from the structure” may be extended as needed to correct the attitude of the
structure.
7. “Zero Mode” in Lippert ‘385 and Lippert ‘924 Patents
As was noted at the outset, the term “Zero Mode” is used in both the Lippert ‘385
patent (in Claims 26, 27 and 28), and in the Lippert ‘924 patent (in Claim 19). The most
complete description of the term is found in Claim 26 of the ‘385 patent and Claim 19 of
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the ‘924 patent: a “controller programmed to include a zero mode in which the
controller is ready to receive a signal that will instruct the controller to recognize signal
values being received from the tilt sensor as indicating that a selected portion of the
structure is in a desired attitude.” ‘385 patent, col. 20, ll. 26-30; ‘924 patent, col. 20, ll. 2429. Because the term is defined by this language within the claims themselves, I see no
need to impose any additional claim construction. The specifications of both patents
also reiterate definitional language virtually identical to that in these two claims. ‘385
patent, col. 3, ll. 29-33 and ‘385 patent, col. 13, ll. 31-35; ‘924 patent, col. 13, ll. 61-65.
The parties’ dispute over the term, both in their briefing and at the Markman
hearing, seems to fizzle in the face of this same recognition. Days’ proposal to construe
“zero mode” to mean “a condition of the controller in which it is ready to receive and
recognize a signal” is redundant of the more detailed definitional language in Claim 26
and Claim 19. No claim construction is required of the term “zero mode.”
8. “Analog Signal”
Claim 1 of the ‘385 patent describes “the tilt sensor being configured to provide
analog signals to the controller….” ‘385 patent, col. 17, ll. 11-12. The parties agree that as
used in Claim 1, “analog signals” are “output signals of the sensor.” [DE 59 at 20; DE 60
at 26.] Days proposes a further construction of “analog signal” to mean “output signal
of the sensor that is not a digital signal,” an interpretation that highlights the ordinarily
understood distinction between analog and digital signals. [DE 59 at 21.] Besides the
customary meaning of the word “analog” as used in Lippert’s Claim 1, Days cites the
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repeated use of the term “analog signal” seven times in the specification of the ‘385
patent. [DE 59 at 21-22.] The tilt sensor’s output of “analog” as opposed to digital
signals is a limitation that is clearly expressed in both the specification and the claim,
and Claim 1 is reasonably construed to mean what it plainly says. Further supporting
Days’ position is the prosecution history of the ‘385 patent, in which Lippert relied on
the invention’s use of analog signals to distinguish prior art that did not teach the use of
analog signals. [DE 59-1 at 109, 146, 149, 156, 199, 216.]
In opposition, the first point Lippert urges is that “analog” in the context of
Claim 1 distinguishes the signal format from that of a purely binary on/off “limit”
switch. That kind of switch is described in the specification as “digital”: “The tilt sensor
32 is used instead of limit type switches so that, instead of having the controller 30 wait
for digital inputs that indicate level state, the tilt sensor 32 continuously supplies analog
values to the controller 30.” ‘385 patent, col. 8, ll. 23-26. To my mind, this language from
the specification enforces the distinction between an analog and a digital output from
the tilt sensor, and confirms that, of the two types of signals, the tilt sensor supplies
analog values.
Lippert also points to the specification’s description of the preferred
embodiment, in which the analog signal output of the tilt sensor is “digitized” to be
transmitted to the controller in a format the controller can process: “The dual axis tilt
sensor 32 and the appropriate analog to digital converter hardware are shown in FIG.
4.” ‘385 patent, col. 15, ll. 25-26. Lippert contends that “[a] person of ordinary skill in the
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art would understand that the output analog signal produced by the proportional twoaxis tilt sensor would need to be conditioned into a digitized format so that the analog
values of the sensor output can be received and processed by the microcontroller.” [DE
58 at 3.] Lippert’s expert, Dr. Massoud S. Tavakoli, expresses the view that: “The
specification of the ‘385 patent teaches that the analog signal produced by the
proportional two-axis tilt sensor may be delivered to the microcontroller in a digitized
format.” [DE 58 at ¶9.] Even accepting these statements as true, they again reinforce
that the output of the tilt sensor is in analog format, not digital.
I accept Days’ construction of the term to mean “output signal of the sensor that
is not a digital signal” because it is supported by the plain and ordinary meaning of the
words “analog signal,” by the repeated references to the “analog” output of the tilt
sensor throughout the specification, and by the prosecution history of the ‘385 patent.
Lippert does not appear to dispute (nor could it, really) that the tilt sensor’s output is
correctly described as an analog signal.
One last thing: Although I agree with Days that Claim 1’s use of “analog signal”
must mean what it plainly says, I don’t agree, at least not at this stage of the
proceedings, that “Days’ proposed construction forecloses all digitization.” [DE 60 at
28.] Whether or not the signal produced by the tilt sensor is later digitized, or must be
digitized, for the invention to work is a matter that goes beyond construction of the
term “analog signal” as used in Claim 1. Whether the larger phrase “configured to
provide analog signals to the controller,” as construed to refer to output signals that are
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not in digital format, may encompass digitization occurring between the tilt sensor and
the controller is also beyond the scope of the claim construction dispute now before me.
ACCORDINGLY:
The disputed claim terms in the patents-in-suit are construed by the court as set
forth above.
SO ORDERED.
ENTERED: July 15, 2019.
/s/ Philip P. Simon
Philip P. Simon, U.S. District Judge
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