CONTOUR HARDENING, INC. v. VANAIR MANUFACTURING, INC.

Filing 80

ORDER. The definitions set forth in this Order will control the interpretation of the patent-in-suit going forward, and the Clerk is directed to TERMINATE the pending motion for Markman construction. [Filing No. 68.] The Court requests that the assigned Magistrate Judge assist the parties in the development of a Phase II Uniform Patent Case Management Plan. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 9/2/2015. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CONTOUR HARDENING, INC.,
Plaintiff,
vs.
VANAIR MANUFACTURING, INC.,
Defendant.
______________________________________
VANAIR MANUFACTURING, INC.,
Counter-Claimant,
vs.
CONTOUR HARDENING, INC.,
Counter-Defendant.

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No. 1:14-cv-00026-JMS-MJD

ORDER
Plaintiff/Counter-Defendant Contour Hardening, Inc. (“Contour”) has filed this patentinfringement action against Defendant/Counter-Claimant Vanair Manufacturing, Inc. (“Vanair”).
[Filing No. 1.] Before the Court can consider the question of infringement, it must determine the
scope and meaning of the parties’ disputed claims from U.S. Patent No. 7,057,303 (the “‘303
patent” or the “patent-in-suit”). The Court held a Markman hearing on August 25, 2015, to address
the parties’ arguments regarding the claims in dispute. [Filing No. 77.]
I.
BACKGROUND
Contour is the owner of the ‘303 patent, which was issued on June 6, 2006. [Filing No.
47-1 at 1.] The invention set forth therein relates to a vehicle-mounted alternating current (“AC”)
electrical generator system. [Filing No. 47-1 at 12.] It addresses the “long-felt need for an AC
1

electrical power source in locations not served by electrical utilities” such as construction sites or
where an electrical power grid has not yet been extended. [Filing No. 47-1 at 12.] Although
addressing that problem was not a new concept, the patent-in-suit provides that prior inventions
had utilized inverters, direct current (“DC”) voltage, and alternators to produce a pseudo-AC wave,
resulting in an expensive complex electrical control system that was “relatively incapable of
sustaining maximum or above maximum output for any length of time and lack[ing] reserve
capacity to achieve really heavy-duty current output. . . .” [Filing No. 47-1 at 12.]
The present invention “consists of applying a readily available, highly commercially
developed and relatively inexpensive AC generator to a vehicle instead of the overly complicated
DC generators and inverters previously applied to such vehicles.” [Filing No. 47-1 at 13.] An
advantage of the AC generator is that it “produces a perfect sine wave which replicates the sine
wave produced by utility companies as opposed to the modified or mock sine wave produced by
standard inverters on the market.” [Filing No. 47-1 at 13.] Because AC generators are very robust,
they can “easily handle high continuous current loadings as would be experienced in typical
construction site activities . . . .” [Filing No. 47-1 at 13.]
In January 2014, Contour filed this action against Vanair. [Filing No. 1.] In relevant part,
Contour alleges that sometime around 2007, Vanair began manufacturing, selling, and offering for
sale a vehicle-mounted AC generator system that infringes on Contour’s ‘303 patent. [Filing No.
1 at 4-6.] Vanair denies those allegations, [Filing No. 22 at 4], and asserts counterclaims against
Contour for non-infringement and patent invalidity, [Filing No. 22 at 9-11].

2

Presently pending before the Court are the parties’ briefs regarding various disputed claim
terms. [Filing No. 68; Filing No. 69; Filing No. 70.]1 The Court held a Markman hearing on
August 25, 2015, [Filing No. 77], and the parties confirmed at the hearing that only two disputed
claim terms remain that necessitate the Court’s construction. Both parties presented handouts to
the Court illustrating and explaining their various positions, and those were made part of the
record. [Filing No. 78; Filing No. 79.]
II.
GENERAL CLAIM CONSTRUCTION STANDARDS2
A patent holder has the right to exclude others in the United States from making, using,
selling, or attempting to sell the patented invention. 35 U.S.C. § 154(a)(1). Patents serve an
important public notice function whereby “the public learns which innovations are the subjects of
the claimed invention, and which are in the public domain.” PSC Computer Prods., Inc. v.
Foxconn Int’l, Inc., 355 F.3d 1353, 1361 (Fed. Cir. 2004). “[T]he public is entitled to notice of
what the inventor has claimed and the Patent and Trademark Office has agreed should be the
subject of a patent’s limited right to exclude.” Univ. of Rochester v. G.D. Searle & Co., Inc., 358
F.3d 916, 922 n.5 (Fed. Cir. 2004).
A patent has two chief parts:
First, it contains a specification describing 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.” Second, a patent includes one or more “claims,” which “particularly

This is the second set of Markman briefs that the parties filed because the Court granted Vanair’s
motion for claim construction of an additional disputed term that arose during the first round of
briefing. [Filing No. 63.]

1

2

Federal Circuit precedent (to the extent not inconsistent with Supreme Court precedent) controls
issues “intimately involved in the substance of enforcement of the patent right.” Sulzer Textil A.G.
v. Picanol N.V., 358 F.3d 1356, 1362-63 (Fed. Cir. 2004). If the issue is not unique to patent law,
the law of the regional circuit applies (here, the Seventh Circuit). Id.
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poin[t] out and distinctly clai[m] the subject matter which the applicant regards as
his invention.” . . . The claim defines the scope of a patent grant.
Markman v. Westview Instruments, 517 U.S. 370, 373-74 (1996) (quoting 35 U.S.C. § 112, but all
other quotations, citations, and alterations omitted). “A patent is indefinite 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 about the scope of the invention.” Teva Pharm. USA,
Inc. v. Sandoz, Inc., 789 F.3d 1335, 1340-41 (Fed. Cir. 2015). That said, some “modicum of
uncertainty” must be taken into account due to the “inherent limitations of language.” Id.
“‘It is a bedrock principle of patent law that the claims of a patent define the invention to
which the patentee is entitled the right to exclude.’” Aventis Pharm. Inc. v. Amino Chemicals Ltd.,
715 F.3d 1363, 1373 (Fed. Cir. 2013) (quoting Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.
Cir. 2005) (en banc)). Thus, there is a “heavy presumption that claim terms are to be given their
ordinary and customary meaning.” Aventis Pharm. Inc., 715 F.3d at 1373.
Before the Court can consider the question of infringement, it must “determine[] the scope
and meaning of the asserted patent claims.” Innovention Toys, LLC v. MGA Entm’t, Inc., 637 F.3d
1314, 1318 (Fed. Cir. 2011). Claim construction is a matter of law, Markman, 517 U.S. at 981,
although underlying factual findings—such as when the Court resolves a dispute between
experts—are reviewed for clear error, Teva Pharm., 135 S. Ct. at 841-43.
“To ascertain the scope and meaning of the asserted claims, [the Court] look[s] to the words
of the claims themselves, the specification, the prosecution history, and any relevant extrinsic
evidence.” Retractable Technologies, Inc. v. Becton, Dickinson & Co., 653 F.3d 1296, 1303 (Fed.
Cir. 2011). Generally, claim terms should be given their ordinary and customary meaning from
the perspective of a person having ordinary skill in the art at the time of the effective date of the
patent application. Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc).
4

Sometimes the ordinary meaning of claim language is readily apparent and the Court may decline
to provide any further construction. O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d
1351, 1360 (Fed. Cir. 2008). In many cases, however, “the meaning of a claim term as understood
by persons of skill in the art is not readily apparent.” Id.
The “claim construction process entails more than viewing the claim language in isolation,”
and “[c]laim language must always be read in view of the written description.” Retractable
Technologies, 653 F.3d at 1305. The specification “is always highly relevant to the claim
construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a
disputed term.” Phillips, 415 F.3d at 1315. There is “no magic formula or catechism for
conducting claim construction.” Id. at 1324. Instead, “[t]he 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.” Id. at 1316 (citation omitted). The Court will set forth additional
interpretative canons as necessary to address the parties’ arguments regarding the disputed claim
terms.
III.
CONSTRUCTION OF THE CLAIM TERMS AT ISSUE
Although the parties initially disputed additional claim terms, they agreed at the Markman
hearing that after briefing, only two terms remain that require the Court’s construction. The Court
will separately address each disputed term and the parties’ arguments thereon.

5

A. “Mechanical Power Input Connection Means”
Term

Contour’s Proposal

Vanair’s Proposal

Court’s
Construction

“mechanical
“A power takeoff output “the AC generator the AC generator
power
input of the transmission”
input shaft”
input shaft
connection means” [Filing No. 79 at 11]
[Filing No. 47-1 at
[Filing No. 69 at 20]
15 (claim 1)]
The disputed portion of claim 1 of the patent-in-suit was narrowed during the parties’
briefing to the term “mechanical power input connection means.” The parties agree that meansplus-function analysis applies pursuant to 35 U.S.C. 112 ¶ 6, and that the function to be performed
by the disputed term is “to receive power from said prime mover for driving said AC electrical
generator to produce electricity.” [Filing No. 69 at 7; Filing No. 70 at 4.] The parties disagree,
however, about the corresponding structure that enables that function. [Filing No. 70 at 4.]
Contour proposes construing “mechanical power input connection means” as “[a] power
takeoff output of the transmission.”3 [Filing No. 70 at 12; Filing No. 79 at 11.] Contour contends
that the disputed term must be part of the invention’s power takeoff (“PTO”) unit because
according to Contour, the specification makes it clear to one of ordinary skill in the art that the
PTO output of the transmission is what enables the auxiliary generator to draw power from the
engine. [Filing No. 70 at 5.] Contour claims that Vanair’s proposed construction “would distort
claim 1 so that it fails to cover any of the disclosed embodiments in the ‘303 Patent,” which
Contour emphasizes is rarely the correct construction. [Filing No. 70 at 6.]

3

Contour proposed various constructions of the disputed term, possibly because the disputed
portion of claim 1 narrowed throughout briefing. The Court will only address Contour’s final
proposed construction of the disputed term.
6

Vanair proposes construing “mechanical power input connection means” as “the AC
generator input shaft.” [Filing No. 69 at 20.] Vanair points out that the disputed term is used for
the first time in claim 1 as part of the limitation—“an AC electrical generator positioned in said
vehicle and having a mechanical power input connection means to receive power from said prime
mover for driving said AC electrical generator to produce electricity.” [Filing No. 69 at 6 (citing
Filing No. 47-1 at 15 (claim 1)).] Vanair emphasizes that the word “having” in the limitation
precedes the disputed term and immediately follows the AC electrical generator. Vanair contends
that given the plain and ordinary meaning of the word “having,” the disputed term must be part of
the AC electrical generator, which Vanair argues the specification confirms. [Filing No. 69 at 89.] Vanair also emphasizes various discovery responses from Contour, which it contends confirm
that the disputed term is part of the AC generator, not the PTO unit. [Filing No. 69 at 11-12.]
In its reply, Contour points to a portion of the specification that it claims “makes clear to
one of skill in the art that it is the power takeoff output or PTO 50 of the transmission which
enables the auxiliary generator to draw power from the engine.” [Filing No. 70 at 5 (referencing
Filing No. 47-1 (col. 6, lines 12-15)).] Contour disputes Vanair’s interpretation of the word
“having” in the limitation to claim 1, noting that it does not necessarily mean that one thing is
included in another but can also mean that something stands in a certain relationship with
something else. [Filing No. 70 at 6.] Finally, Contour argues that Vanair mischaracterizes
Contour’s interrogatory responses, [Filing No. 70 at 7], although Contour retreated from that
position at the Markman hearing.
Use of the word “means” creates a presumption that means-plus-function analysis applies.
Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349-52 (Fed. Cir. 2015) (citing to 35 U.S.C.
112 ¶ 6). “Construing a means-plus-function claim term is a two-step process. The court must

7

first identify the claimed function. Then, the court must determine what structure, if any, disclosed
in the specification corresponds to the claimed function.” Id. A structure disclosed in the
specification “qualifies as ‘corresponding structure’ if the intrinsic evidence clearly links or
associates that structure to the function recited in the claim.” Id. However, “if a person of ordinary
skill in the art would be unable to recognize the structure in the specification and associate it with
the corresponding function in the claim, a means-plus-function clause is indefinite.” Id.
The parties agree that the function to be performed by the “mechanical power input
connection means” is “to receive power from said prime mover for driving said AC electrical
generator to produce electricity.” [Filing No. 69 at 7; Filing No. 70 at 4.] Contour contends that
transmission accessory drive gear 158 and axially displaceable spur gear 168, which are depicted
as part of the PTO unit, perform that function. [Filing No. 79 at 9 (highlighting structures in Figure
7, which is an enlarged longitudinal fragmentary section view of the PTO unit).] Vanair contends
that mechanical power input 46, which is part of the AC electrical generator, performs that
function. [Filing No. 69 at 7.]
Claim 1 discloses “an AC electrical generator positioned in said vehicle and having a
mechanical power input connection means to receive power from said prime mover for driving
said AC electrical generator to produce electricity.” [Filing No. 47 at 15 (claim 1) (emphasis
added).] While the parties dispute the meaning of the word “having,” the Court agrees with Vanair
that there is no indication that anything other than the plain and ordinary meaning of that term
applies—i.e., that the mechanical power input connection means is part of the AC generator, not
just that the two “stand[] in a specified relationship” but are not necessarily connected, as Contour
contends. [Filing No. 70 at 6.] This construction is bolstered by the specification in the patent-in-

8

suit, which describes the structure performing the agreed-upon function as something that the AC
generator “has”:

[Filing No. 47-1 at 13 (col. 3, lines 38-46).] Given this description, the Court agrees with Vanair
that “mechanical power input 46” is the structure that performs the agreed-upon function of the
mechanical power input connection means and is part of the AC generator, not the PTO unit.
Additionally, the specification consistently uses language describing mechanical power
input 46 as something related to AC generator 44, not PTO unit 50. For example:

[Filing No. 47-1 at 14 (col. 5, lines 1-2).]

[Filing No. 47-1 at 14 (col. 5, lines 31-35).]

[Filing No. 47-1 at 14 (col. 6, lines 23-28).]
The figures in the patent-in-suit also confirm the Court’s construction. Figure 1 is a
“schematic drawing of a vehicle and an AC electrical generator system embodying the present

9

invention.” [Filing No. 47-1 at 12.] It depicts mechanical power input 46 with AC generator 44,
not PTO unit 50:

[Filing No. 47-1 at 4.]

Likewise, Figure 3 is “a schematic diagram showing an alternate

embodiment of the present invention adaptable for provision of electrical power while a vehicle is
moving.” [Filing No. 47-1 at 12.] The alternate embodiment also depicts mechanical power input
46 with AC generator 44, not PTO unit 50:

10

[Filing No. 47-1 at 6.]
By contrast, the diagram to which Contour directed the Court at the hearing shows a greatly
enlarged longitudinal section view of the PTO unit. [Filing No. 79 at 9]. Contour contends that
accessory drive gear 158 and axially displaceable spur gear 168 perform the agreed-upon function
from inside the PTO unit:

[Filing No. 47-1 at 10 (Figure 7 of ‘303 patent).] AC generator 44 is not visible in Figure 7.
The Court concludes that Contour’s proposed construction—placing the means to perform
the agreed-upon function inside the PTO unit—is inconsistent with the language of claim 1 itself,
as confirmed by the specification and applicable figures in the patent-in-suit. Contour’s proffered
construction is also inconsistent with its discovery responses, as Vanair has pointed out. [Filing
No. 69 at 9-13.] Although Contour argued during briefing that Vanair’s characterization of
Contour’s discovery responses was misleading, [Filing No. 70 at 7-8], Contour admitted the
inconsistency at the Markman hearing. Contour further admitted that it has not sought to amend
the discovery responses at issue, despite an ongoing obligation to do so. See Fed. R. Civ. Pro.
11

26(e) (imposing an obligation to supplement discovery “in a timely manner if the party learns that
in some material respect the disclosure or response is incomplete or incorrect . . .”); see also O2
Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1365 (Fed. Cir. 2006) (emphasizing
that “discovery is designed to allow the defendant to pin down the plaintiff’s theories of liability
and to allow the plaintiff to pin down the defendant’s theories of defense, thus confining discovery
and trial preparation to information that is pertinent to the theories of the case”).
Specifically, in its Disclosure of Asserted Claims and Preliminary Infringement
Contentions, Contour stated that Vanair’s accused system infringed on the now-disputed portion
of claim 1 because

[Filing No. 71 at 12.] And in response to Vanair’s interrogatory request for Contour to indicate
the structure corresponding to the claim limitation where the term “mechanical power input
connection means” is first used, Contour cited a portion of the specification referencing the AC
generator. [Filing No. 69 at 12 (citing Filing No. 69-3 at 14 (referencing Filing No. 47-1 at 13
(col. 3, lines 13-46))).] This confirms that, at least initially, Contour construed the “mechanical
power input connection means” as related to the AC generator, not the PTO unit.
For the reasons stated herein, the Court concludes that the proper construction of the claim
term “mechanical power input connection means” is “the AC generator input shaft.”

12

B. “A Relay Device …”
Term

Contour’s
Proposal

“a
relay
device
receiving inputs from
said engine control
module and said
transmission control
module for enabling
operation of said AC
electrical generator
when certain control
parameters exist in
said engine control
module and said
transmission control
module”

“a relay device
receiving
inputs
from each of the
engine
control
module and the
transmission
control module for
enabling operation
of
said
AC
electrical generator
when
certain
control parameters
exist in each of the
engine
control
module
and
[Filing No. 47-1 at 15
transmission
(claim 10)]
control module”

Vanair’s Proposal

Court’s
Construction

“a
relay
actually
receiving inputs from the
engine control module
and transmission control
module and that these
inputs enable operation
of the AC generator
when certain parameters
exist in both the engine
control module and
transmission
control
module”

“a relay device
receiving inputs from
each of the engine
control module and
the
transmission
control module for
enabling operation
of said AC electrical
generator
when
certain
control
parameters exist in
each of the engine
control module and
transmission control
module”

[Filing No. 69 at 21]

[Filing No. 68 at
17]
The parties’ positions regarding the necessity for and proper construction of claim 10 have
changed throughout the litigation. [See Filing No. 33-2 (currently disputed portion of claim 10 not
included on parties’ disputed claim chart).] The Court granted Vanair’s Motion for Additional
Claim Construction to allow the parties to brief a subsequent dispute over the proper construction
of claim 10. [Filing No. 63.] Because additional briefing has narrowed the dispute, the Court will
only address the disputed portion of claim 10 as it was presented at the Markman hearing.
The parties dispute the portion of claim 10 beginning with “a relay device receiving
inputs . . . .” [Filing No. 47-1 at 15.] They agree that the disputed claim does not include technical
or unusual terms, [Filing No. 68 at 13; Filing No. 69 at 17], and they have stipulated to the
following meaning of the terms “engine control module” (“ECM”) and “transmission control
module” (“TCM”):
13

[Filing No. 46 at 3.] The parties request the Court’s construction, however, to determine whether
claim 10 provides an apparatus claim (Contour’s position) or an improper method step within an
apparatus claim (Vanair’s position).
“[A]pparatus claims cover what a device is, not what a device does.” Paragon Solutions,
LLC v. Timex Corp., 566 F.3d 1075, 1090 (Fed. Cir. 2009) (citing Hewlett-Packard Co. v. Bausch
& Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990)). When a single patent claim recites “both an
apparatus and a method of using that apparatus,” the claim is indefinite. IPXL Holdings, L.L.C. v.
Amazon.com, Inc., 430 F.3d 1377, 1384 (Fed. Cir. 2005). This is because “as a result of the
combination of two separate statutory classes of invention, a manufacturer or seller of the claimed
apparatus would not know from the claim whether it might also be liable for contributory
infringement because a buyer or user of the apparatus later performs the claimed method of using
the apparatus.” Id. The rule is “well recognized” by the United States Patent and Trademark
Office. Id. (citing Manual of Patent Examination Procedure, § 2173.05(p)(II) (1999) (“A single
claim which claims both an apparatus and the method steps of using the apparatus is indefinite
under 35 U.S.C. § 112, second paragraph.”)).
When claim language from an apparatus claim is directed to user actions, not system
capabilities, it signifies an improper method step. In re Katz Interactive Call Processing Patent
Litig., 639 F.3d 1303, 1318 (Fed. Cir. 2011). Language such as “wherein said user completes” or
“wherein said user selects” within an apparatus claim indicates an improper method limitation that
renders the claim indefinite. See H-W Tech., L.C. v. Overstock.com, Inc., 758 F.3d 1329, 1336
14

(Fed. Cir. 2014) (affirming district court’s decision finding apparatus claim indefinite for
containing method limitation with language “wherein said user completes” and “wherein said user
selects”) (citing IPXL Holdings, 430 F.3d at 1384 (“the user uses the input means . . .”) and In re
Katz, 639 F.3d at 1318 (“wherein . . . callers digitally enter data” and “wherein . . . callers provide
. . . data”)). An apparatus claim is not necessarily indefinite for using functional language.
Microprocessor Enhancement Corp. v. Texas Instruments Inc., 520 F.3d 1367, 1375 (Fed. Cir.
2008).
The parties do not dispute that the opening portion of claim 10 conveys that it is an
apparatus claim. [Filing No. 47-1 at 15 (claim 10) (“Apparatus as claimed in claim 9 wherein said
prime mover has an [ECM], and a [TCM] and . . .”)).] Vanair argues, however, that the disputed
portion of the claim results in an improper method step because “the word ‘receiving’ is the present
participle of the verb ‘receive’ . . . and indicates an action . . . .” [Filing No. 69 at 18 (citing Filing
No. 47-1 at 15 (claim 10) (“a relay device receiving inputs from said [ECM] and said [TCM] for
enabling operation . . .”)).] As Contour points out in reply, Vanair cites no caselaw that an
apparatus claim is improperly converted into a method claim simply because it utilizes the present
participle of a verb. [Filing No. 70 at 10-11.] Instead, Vanair generally cites two cases from the
Federal Circuit Court of Appeals without pinpointing or quoting the specific portion of those cases
on which it relies. [Filing No. 69 at 18.] A brief review of those cases reveals that they do not
stand for the broad position for which Vanair advocates. See Rembrandt Data Technologies, LP
v. AOL, LLC, 641 F.3d 1331, 1339 (Fed. Cir. 2011) (summarily affirming a district court’s decision
without elaboration that a portion of a claim utilizing the word “transmitting” rendered the claim
indefinite); Microprocessor Enhancement Corp. v. Texas Instruments Inc., 520 F.3d 1367, 1375
(Fed. Cir. 2008) (holding that functional language does not necessarily render an apparatus claim

15

indefinite). In fact, Contour relies on Microprocessor to support its position, [Filing No. 70 at 11],
and pointed out at the Markman hearing that the portion of the claim at issue in Rembrandt Data
Technologies is distinguishable because it recited a separate element that was a method step on its
own, [see Filing No. 78 at 18 (“transmitting the trellis encoded frames” set forth as independent
clause of claim at issue therein)].
The Court agrees with Contour that the disputed word “receiving” in claim 10 of the patentin-suit does not convey a method step rendering the claim indefinite. Claim 10 is an apparatus
claim in which the word “receiving” conveys the system capabilities. [Filing No. 47-1 at 15 (“a
relay device receiving inputs from said [ECM] and said [TCM] . . .”).] Unlike apparatus claims
that have been found to contain an improper method step, claim 10 does not reference the user or
direct user actions. See H-W Tech., 758 F.3d at 1336 (holding that language referencing the user
within an apparatus claim indicates an improper method step). Accordingly, the Court rejects
Vanair’s position that claim 10 contains a method step rendering it indefinite.
The parties agree that the disputed claim does not include technical or unusual terms.
[Filing No. 68 at 13; Filing No. 69 at 17.] Thus, the only remaining dispute between the parties’
proposed constructions is whether the relay device receives inputs from “each of” the ECM and
the TCM (Contour’s position), [Filing No. 68 at 17; Filing No. 70 at 12], or from “both” the ECM
and the TCM, (Vanair’s position), [Filing No. 69 at 19]. This appears to be a distinction without
a difference. Given that Vanair was willing to concede that “each of” was the proper construction
in its proposed surreply, [Filing No. 72-1 at 19], the Court will adopt that. The Court rejects
Vanair’s addition of the word “actually” before “receiving,” as that appears to be an attempt to
render “receiving” an improper method step, which the Court has already rejected.

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For the reasons stated herein, the Court concludes that the proper construction of the
disputed portion of claim 10 is “a relay device receiving inputs from each of the engine control
module and the transmission control module for enabling operation of said AC electrical generator
when certain control parameters exist in each of the engine control module and transmission
control module.”
IV.
CONCLUSION
The definitions set forth above will control the interpretation of the patent-in-suit going
forward, and the Clerk is directed to TERMINATE the pending motion for Markman
construction. [Filing No. 68.] The Court requests that the assigned Magistrate Judge assist the
parties in the development of a Phase II Uniform Patent Case Management Plan.
_______________________________
Date: September 2, 2015

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via CM/ECF:
Steven G. Cracraft
BRANNON SOWERS & CRACRAFT PC
[e-mail]
John C. McNett
WOODARD EMHARDT MORIARTY MCNETT & HENRY, LLP
[e-mail]
William A. McKenna
WOODARD EMHARDT MORIARTY MCNETT & HENRY, LLP
[e-mail]

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