SOP SERVICES, INC. et al v. VITAL HUNTING GEAR, INC.

Filing 95

ENTRY ON CLAIM CONSTRUCTION - The purpose of this order is to construe the claims placed in issue, and more specifically, the terms highlighted by the parties. This being done, the parties may proceed accordingly with the underlying infringement suit. Signed by Judge Richard L. Young on 6/5/2013. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

SOP SERVICES, INC.,
BEAR ARCHERY, INC.,

)
)
)
Plaintiffs,
)
)
vs.
)
)
VITAL HUNTING GEAR, INC.,
)
ABBAS BEN AFSHARI,
)
)
Defendants.
)
)
______________________________________ )
)
ABBAS BEN AFSHARI,
)
)
Counter Claimants,
)
)
vs.
)
)
BEAR ARCHERY, INC.,
)
ESCALADE INCORPORATED,
)
JACK BOWMAN,
)
)
Counter Defendants.
)

3:11-cv-00112-RLY-WGH

ENTRY ON CLAIM CONSTRUCTION
Bear Archery, Inc., and Vital Hunting Gear, Inc., are direct competitors in the sale
of fiber optic sights and arrow rests in the archery industry. Bear Archery and SOP

1

Services, Inc.1 filed a complaint against Vital Hunting Gear and Ben Afshari, the owner
and President of the same, for trademark infringement of Bear Archery’s WHISKER
BISCUIT trademark and for patent infringement based upon patents owned by Bear
Archery related to fiber wrapped archery bow sights. After Afshari allegedly accused
representatives of Bear Archery that its Revolution® Arrow Rest violated United States
Patent No. 6,948,488 (“the ‘488 patent”), of which Afshari is the sole named inventor,
Bear Archery and SOP Services amended their complaint to add a claim for declaratory
judgment against Afshari personally, seeking a declaration that Bear Archery’s
Revolution Arrow Rest does not infringe Afshari’s ‘488 patent. Afshari thereafter filed a
counterclaim against Bear Archery, its manufacturer and distributor, Escalade
Incorporated, and its Vice President, Jack Bowman, alleging that Bear Archery’s
Revolution® Arrow Rest infringes his patent.
Bear Archery asks the court to construe five terms found in independent claim 25
and dependent claim 30 of the ‘488 patent. Afshari, pro se, asks the court to construe two
terms found in independent claim 25 of the ‘488 patent. This Entry provides the court’s
construction of those contested terms.
I.

Background of the Invention
The purpose of an arrow rest is to hold the arrow in position and to support the

arrow until the arrow is fired. Traditional arrow rests suffered from the fact that, when
fired, the arrow shaft or its fletchings were prone to contact the rest, thereby deflecting

1

According to the parties’ Case Management Plan, SOP Services is a holding company
which owns certain intellectual property rights exclusively licensed to Bear Archery.

2

the arrow from its target. Accordingly, an improvement called a “fall away” arrow rest
was eventually developed. At full draw, the arrow rest and the arrow are raised into a
firing position; when the bow is released, the arrow rest falls quickly down and out of the
path of the arrow.
The ‘488 patent, entitled “Shaft Clamping Arrow Rest,” is a type of “fall away”
arrow rest. It addresses a problem inherent to these “fall away” rests — that being, the
arrow falling off prematurely due to a sudden movement of the bow or due to an archer’s
decision not to shoot after the bow has been in full draw. (‘488 patent, col. 2, ll:45-51).
The ‘488 patent addresses this problem by utilizing a “clamping mechanism that grasps
the shaft of the arrow when the support arm is in the resting position.” (Id., col. 3, ll:2831). “As the support arm moves to the pre-launch position, the clamping mechanism
releases the shaft of the arrow so that the arrow can be freely launched from the support
arm without interference from the clamping mechanism.” (Id., col. 3, ll:32-35).
Conversely, “[a]s the support arm moves from the pre-launch position to the resting
position, the clamping mechanism closes relative to the support arm so as to be able to
grasp the shaft of an arrow.” (Id., col. 3, ll:38-41).
II.

The Law of Claim Construction
“‘[T]he claims of a patent define the invention to which the patentee is entitled the

right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (quoting
Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1115
(Fed. Cir. 2004)). The purpose of claim construction is to determine the meaning and
scope of the claims that are the subject of an infringement action. 02 Micro Int’l Ltd. v.
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Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1360 (Fed. Cir. 2008). When the
parties raise a genuine dispute regarding the proper scope of an asserted patent claim, the
court resolves the dispute as a matter of law. Id.
The claim construction process “‘begins and ends in all cases with the actual
words of the claim.’” Teleflex, Inc. v. Ficosa North America Corp., 299 F.3d 1313, 1324
(Fed. Cir. 2002) (quoting Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243,
1248 (Fed. Cir. 1998)). In the absence of a contrary intent, the words in a claim are given
their ordinary and customary meaning from the perspective of one of ordinary skill in the
pertinent art at the time of the invention. Phillips, 415 F.3d at 1313; Johnson Worldwide
Assoc., Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed. Cir. 1999) (“[A] court must presume
that the terms in the claim mean what they say, and, unless otherwise compelled, give full
effect to the ordinary and accustomed meaning of claim terms.”). “[T]he person of
ordinary skill in the art is deemed to read the claim term not only in the context of the
particular claim in which the disputed claim appears, but in the context of the entire
patent, including the specification” and the prosecution history. Id.; Medrad, Inc. v. MRI
Devices Corp., 401 F.3d 1303, 1312-13 (Fed. Cir. 2005).
The Federal Circuit describes the patent specification as “the single best guide to
the meaning of a disputed term.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1582 (Fed. Cir. 1996). The patent specification may “act[] as a dictionary when it
expressly defines terms used in the claims or when it defines terms by implication.” Id.
(citing Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995)). The
court may not, however, read limitations from the specification into the claims absent a
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clear intention by the patentee to do so. MySpace, Inc. v. GraphOn Corp., 672 F.3d
1250, 1255-56 (Fed. Cir. 2012) (citing Teleflex, Inc. v. Ficosa North Am. Corp., 299 F.3d
1313, 1326 (Fed. Cir. 2002)).
In addition, other claims of the patent “can also be valuable sources of
enlightenment as to the meaning of a claim term.” Phillips, 415 F.3d at 1314. “Because
claim terms are normally used consistently throughout the patent, the usage of a term in
one claim can often illuminate the meaning of the same term in other claims.” Id.
Lastly, if necessary, the court may examine extrinsic evidence to assist in
determining the meaning of the disputed claim language. Vitronics, 90 F.3d at 1584.
Extrinsic evidence, such as expert testimony, inventor testimony, and dictionaries, “may
be used only to help the court come to the proper understanding of the claims; it may not
be used to vary or contradict the claim language.” Id. The Federal Circuit explained that
“[u]ndue reliance on extrinsic evidence poses the risk that it will be used to change the
meaning of claims in derogation of the ‘indisputable public records consisting of the
claims, the specification and the prosecution history,’ thereby undermining the public
notice function of patents.” Phillips, 415 F.3d at 1319 (quoting Southwall Tech., Inc. v.
Cardinal IG Co., 54 F.3d 1570, 1578 (Fed. Cir. 1995)).
III.

The Court’s Claim Construction
Independent claim 25, from which claim 30 depends, reads as follows:
25.

An apparatus for supporting an arrow relative to a bow, comprising:

a mounting member for coupling to a bow;

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an arrow rest coupled to said mounting member and being moveable
relative thereto between a first resting position and a second resting
position, said arrow rest configured for supporting a shaft of an arrow
relative thereto;
at least one shaft retaining member coupled to said arrow rest and
extending above the shaft of the arrow when said arrow rest is in said first
resting position for preventing the shaft of the arrow from falling from said
arrow rest when said arrow rest is in said first resting position, said at least
one shaft retaining member being biased away from the shaft of an
arrow; and
a linkage mechanism coupled between said arrow rest and a cable of a
bow for actuating said arrow rest between said first resting position
and said second position.
Bear Archery moves for construction of the following claim terms from independent
claim 25 (indicated in bold above): (1) “moveable thereto between a first resting
position and a second position”; (2) “at least one shaft retaining member coupled to said
arrow rest”; (3) “said at least one shaft retaining member being biased away from the
shaft of an arrow”; (4) “a linkage mechanism coupled between said arrow rest and a cable
of a bow for actuating said arrow rest between said first reading position and a second
position”; and, from dependent claim 30: (5) “a biasing member for biasing said
pivotable member relative to said mounting member.” Afshari moves for construction of
two terms in claim 25 (also in bold): (6) “a mounting member” and (7) “apparatus”.
A.

moveable thereto between a first resting position and a second
position

Bear Archery
capable of moving from a first resting
(i.e., non-firing) position to a second
raised pre-launch position.

Afshari
that portion of arrow rest with built in
arrow retaining member that moves from
1st to 2nd position

6

The disputed claim language, “moveable thereto between a first resting position
and a second position,” is found in the second full clause of claim 25. The parties agree
that the claimed “first position” is a “resting position,” but disagree on the meaning of
“second position.” Bear Archery’s interpretation of the claim term “second position” is
based upon the embodiments described in the specification. For example, the first
embodiment shown, in Figs. 1A-3, is described as showing, “the distal end of a clamping
arrow rest . . . in accordance with the principles of the present invention . . . in a first
resting position (Fig. 2A) and a second pre-launch position (Fig. 2B”). (‘488 patent, col.
7, ll:47-51). Similarly, in a second embodiment, shown in Fig. 4, the arrow rest is
described as “clamping the shaft of an arrow relative thereto and releasing the shaft of the
arrow when the arrow is in a position to be launched.” (Id., col. 8, ll: 46-50).
Afshari argues that “[i]f Bear Archery believes that one of these position [sic]
must be prelaunch position, then Revolution Arrow Rest incorporates this position.”
(Resp. at 16). The issue before the court is claim construction. Afshari’s arguments
regarding Bear Archery’s alleged infringement of the ‘488 patent is not only premature,
but improper, as the “claims may not be construed with reference to the accused device.”
NeoMagic Corp. v. Trident Microsystems, Inc., 287 F.3d 1062, 1074 (Fed. Cir. 2002); see
also Vitronics, 90 F.3d at 1581-82 (noting that a patent infringement analysis involves
two steps; first, claim construction and second, “a determination as to whether the
accused . . . product infringes the asserted claim as properly construed”).
Afshari also argues that claim 25 does not limit the second position’s
“whereabouts.” (Resp. at 16). For example, the second position could be “(up-down),
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(open-close), (pivot up-pivot down), (circle in circle out), (at rest-prelaunch), (prelaunchdown) and many other combinations.” (Id.). Afshari does not cite the court to any
portion of the intrinsic evidence to support this new construction or to refute Bear
Archery’s construction. To the extent Afshari is attempting to assert that the arrow rest
can move to some second position other than a raised, pre-launch position, Afshari’s
proposed construction must be rejected. The ‘488 patent does not describe or teach any
“second position” other than the raised pre-launch firing position.
Accordingly, the court construes “moveable relative thereto between a first resting
position and a second position” as “capable of moving from a first lowered non-firing
position to a second raised pre-launch position.”
B.

at least one shaft retaining member coupled to said arrow rest

Bear Archery
a shaft retaining member and a separate
arrow rest are “coupled”, meaning they
are fastened, linked, or associated
together, either directly or indirectly

Afshari
the shaft retaining member and the arrest
rest are “joined together”

Bear Archery’s support for its construction of “at least one shaft retaining member
coupled to said arrow rest,” found in the third full clause of claim 25, is found in the
specification of the ‘488 patent. As taught in Fig. 2A and Fig. 3, the shaft retaining
member is a wholly separate piece linked such that the shaft retaining member can move
relative to the arrow rest. For example, the first and primary embodiment, depicted in
Figs. 1A-3, includes a clamping member that is “rotably coupled to” the base portion
indirectly with “a threaded fastener 164 that extends through the clamping member 162
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and threadedly engages the arm 152.” (‘488 patent, col. 7, ll:54-55, col. 8, ll:37-40).
The arrow supporting member 156 is in turn attached to arm 152. Other embodiments,
see, e.g. Fig. 4, of the invention feature the clamping member as a separate piece from the
arrow rest and linked with the arrow rest.
Afshari, the named inventor of the ‘488 patent, originally agreed that the term
“coupled to” should be construed to mean “2 or more items joined together.” (Docket #
82, Ex. B). He later changed his mind, contending now, in reliance on the dictionary
meaning of “couple,” that “coupled to” means “joined in one piece” as in an “injection
molding process.” (See Docket # 86 at 22-25). Afshari’s proposed construction is not
supported by the specification nor his own dictionary definition, which reflects that
“couple” means “something that joins or connects two things together; a link.” (Id. at 23
(citing Webster’s Dictionary, but failing to include edition or page number)).
Accordingly, the court construes “at least one shaft retaining member coupled to
said arrow rest” to mean “a shaft retaining member and a separate arrow rest are
‘coupled,’ meaning they are fastened, linked, or associated together, either directly or
indirectly.”
C.

said at least one shaft retaining member being biased away from the
shaft of an arrow

Bear Archery
the shaft retaining member [is] biased
[relative to the arrow rest] away from
the shaft of an arrow

Afshari
that portion of the apparatus that retains the
shaft of the arrow [sic] moves out of the way
of the arrow by force

The disputed claim language is also found in the third clause of claim 25:
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at least one shaft retaining member coupled to said arrow rest and
extending above the shaft of the arrow when said arrow rest is in said first
resting position for preventing the shaft of the arrow from falling from said
arrow rest when said arrow rest is in said first resting position, said at least
one shaft retaining member being biased away from the shaft of an
arrow;
The clause discloses two elements that are coupled together: a shaft retaining
member and an arrow rest. The function of the shaft retaining member is to hold the
shaft of the arrow in place so as to prevent it from falling from the arrow rest. The
challenge here is to determine what is meant by the term “biased.”
Bear Archery’s construction is supported by the intrinsic evidence. As argued by
Bear Archery, the specification describes a bias of the shaft retaining member relative to
something else. For example, the specification’s description of the distal end of an arrow
rest as depicted in Figs. 2A and 2B, provides that the arrow rest 100 includes “a pivotable
clamping member 106 that is rotably coupled to the base portion 104 and biased relative
to the base portion 104 in a direction to encourage rotation of the clamping member 106
from its position shown in Fig. 2A [closed] to its position in Fig. 2B [open].” (‘488
patent, col. 7, ll: 51-57). Moreover, in Fig. 3, a cross-sectional side view of an arrow rest
arm, a coil spring is mounted on a threaded fastener between the arrow rest/supporting
member and the clamping/shaft retaining member:
A biasing member 166, such as a coil spring, is positioned on the shaft of
the threaded fastener 164 and biases the clamping member 162 relative to
the supporting member 156, to encourage clamping of the shaft of an arrow
relative to the supporting member 156.

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(Id., col. 8, ll:41-45). In this manner, the “biasing member,” a coil spring, provides the
force necessary to “encourage clamping of the shaft of the arrow relative to the
supporting member.” (Id.).
Finally, for the shaft retaining member to be biased, it only makes sense
mechanically if there are two separate pieces arranged so that the shaft retaining member
is biased relative to something else — here, the arrow rest.
Afshari proposes that the claim term should mean “that portion of the apparatus
that retains the shaft of the arrow [sic] moves out of the way of the arrow by force.”
(Docket # 82, Ex. A). Afshari does not support his construction with any citation to the
intrinsic evidence. Moreover, Afshari’s proposed construction fails to explain how
“moves” defines “biased” relative to something else. Instead, as noted above, he attempts
to construe the claim in light of the accused product. NeoMagic Corp., 287 F.3d at 1074.
Accordingly, the court construes “said at least one shaft retaining member being
biased away from the shaft of an arrow” as “the shaft retaining member [is] biased
[relative to the arrow rest] away from the shaft of an arrow.”
D.

a linkage mechanism coupled between said arrow rest and a cable of a
bow for actuating said arrow rest between said first resting position
and said second position

Bear Archery
an elastic cord, cable, or adjustable
length member which transmits a
pulling force to cause the arrow rest to
rise from its first resting position to its
second pre-launch position as the bow
is drawn

Afshari
a connection device connecting the arrow
rest to the cable of a bow by joining them
together, as the cable of the bow moves, the
movement activates an action from position
1 to position 2

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The disputed claim language is the final clause of claim 25. Bear Archery
contends that a “linkage mechanism” “for actuating” the arrow rest should be construed
using “means-plus-function” language. In general terms, a “means-plus-function” claim
recites a “means” for performing a precisely stated function, but does not identify any
particular structure, material, or acts of the claimed invention. The statute provides:
An element in a claim for a combination may be expressed as a means or
step for performing a specified function without the recital of structure,
material, or acts in support thereof, and such claim shall be construed to
cover the corresponding structure, material, or acts described in the
specification and equivalents thereof.
35 U.S.C. § 112, ¶ 6. Thus, the scope of a means-plus-function claim is strictly limited to
the “corresponding structure, material or acts” described in the specification, and
equivalents” of that structure. Id.; Mettler-Toledo, Inc. v. B-Tek Scales LLC, 671 F.3d
1291, 1296 (Fed. Cir. 2012) (“[A] ‘means-plus-function’ claim limitation is limited to the
structures disclosed in the specification and equivalents.”); Mas-Hamilton Group v.
LaGard, Inc., 156 F.3d 1206, 1211 (Fed. Cir. 1998) (“The ‘means’ term in a means-plusfunction limitation is essentially a generic reference for the corresponding structure
disclosed in the specification.”) (quoting Chiuminatta Concrete Concepts v. Cardinal
Indus., Inc., 145 F.3d 1303, 1308 (Fed. Cir. 1998))).
The disputed clause is presumptively not subject to “means-plus-function”
treatment because it does not use the term “means.” Mass. Inst. of Tech. v. Abacus
Software, 462 F.3d 1344, 1353 (Fed. Cir. 2006) (citation omitted). “However, a
limitation lacking the term ‘means’ may overcome the presumption against means-plusfunction treatment if ‘the claim term fails to recite sufficiently definite structure or else
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recites functions without reciting sufficient structure for performing that function.’” Id.
(internal quotation marks and citation omitted). The presumption against means-plusfunction treatment “is a strong one” that may only be overcome by a “showing that the
limitation essentially is devoid of anything that can be construed as structure.” Flo
Healthcare Solutions, LLC v. Kappos, 697 F.3d 1367, 1374 (7th Cir. 2012). Thus, the
court “will not apply §112, ¶ 6 if the limitation contains a term that ‘is used in common
parlance or by persons of skill in the pertinent art to designate structure.’” Id. (quoting
Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1359 (Fed. Cir. 2004)).
Bear Archery contends the presumption is rebutted because the clause at issue recites
function without reciting sufficiently definite structure to perform that function.
“[T]he generic term ‘mechanism’ standing alone may connote no more structure
than the term ‘means.’” Id. (quoting Mass. Inst. of Tech., 492 F.3d at 1354). However,
“claim language further defining the mechanism can add sufficient structure to avoid a §
112, ¶ 6 construction.” Id.
Here, the term “linkage” modifies “mechanism,” and is the only term in that
clause that could impart any structure. The only designated evidence submitted bearing
on the definition of the term “linkage” is Bear Archery’s Merriam-Webster’s Dictionary
definition of the term “linkage”: “(1): the manner or style of being united;” “(2): the
quality or state of being linked” or “(3): a system of links.” (Docket # 82, Ex. D). This
term, alone or in combination with the term “mechanism,” fails to impart structure.
In response to Bear Archery’s claim construction, Afshari alleges that “[a]ll
persons in the ordinary art of archery know what a linkage is when it is used as a link
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between the fall away arrow rest and the cables of the bow.” (Resp. at 29). There are
two problems with this statement. First, it is not supported by any facts or evidence of
record. Second, to simply state that the term “linkage” has meaning when “used as a
link” does nothing to clarify the meaning of “linkage.” In sum, Afshari presents no
evidence that the term “linkage mechanism” has a well-understood structural meaning in
the art of archery. Flo Healthcare, 697 F.3d at 1374.
The court therefore finds that one of skill in the art would read “a linkage
mechanism . . . for actuating said arrow rest between said first resting position and said
second position” as “a linkage means . . . for actuating said arrow rest between said first
resting position and said second position.” The court’s construction is supported by
Figure 15 of the ‘488 patent, which the patent describes as “an alternative embodiment of
a means for linking the arrow rest of the present invention to the cable system of a bow in
accordance with the principles of the present invention.” (‘488 patent, col. 4, ll:54-57)
(emphasis added). Accordingly, the construction of a “linkage mechanism” is limited to
the structural embodiments disclosed in the patent specification and equivalents thereof.
Mettler-Toledo, Inc., 671 F.3d at 1296.
The specification of the ‘488 patent speaks of the following structures associated
with the terms “means for linking,” “linkage mechanism,” “linkage device,” “linkage
member,” and “linkage,” which the patent uses somewhat synonymously with one
another:
(1)

an elastic cord 66 mounted to a post 70 or threaded fastener on a
cable slide 50 (‘488 patent, Fig. 1C, col. 6, ll:66 – col. 7, l: 10);
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(2)

a cable 506 or 602 secured to a cable slide 500 or 600 (id., Figs. 7-9,
col. 10, ll:3-39);

(3)

an adjustable length linkage member with a cable slide (id., Figs. 910, col. 10, ll:47-52); or

(4)

a linkage cable attached with a clamping device to a bow cable span
(Id., Fig. 15, col. 12, ll:6-11).

The specification teaches that the “linkage mechanism” is pulled due to a transaction of a
cable slide or bow cable as the bow is drawn, and accordingly it transmits a pulling force
to the arrow rest, such that the pulling force causes the arrow rest to rise to its second prelaunch position. The court therefore finds that the claim term “a linkage mechanism
coupled between said arrow rest and a cable of a bow for actuating said arrow rest
between the first resting position and said second position” encompasses only (1) an
elastic cord, cable, or adjustable length member, which (2) transmits a pulling force to
cause the arrow rest to rise from its first resting position to its second pre-launch position
as the bow is drawn.
E.

a biasing member for biasing said pivotable member relative to said
mounting member

Bear Archery
one or more coil springs positioned
between the pivotable member and the
mounting member to return the arrow
rest to its first resting position

Afshari
the one member of the apparatus that rotates
in relation to the mounting member

Dependent claim 30 requires “a biasing member for biasing said pivotable
member relative to said mounting member.” To better understand the terms used in
claim 30, it is necessary to read dependent claims 26 and 28:
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26.

The apparatus of claim 25, further comprising an elongate shaft
rotably coupled to the mounting member and attached to the arrow
rest whereby rotation of said elongate shaft causes pivotal movement
of said arrow rest relative to said mounting member.

28.

The apparatus of claim 25, further comprising a pivotable member
fixedly attached to said shaft and coupled to said linkage mechanism
whereby movement of said linkage mechanism causes rotation of
said pivotable member and rotation of said shaft relative to said
mounting member.

As noted by Bear Archery, the claim term “a biasing member for biasing” recites
no structure. The term “member” is too generic to impart structure. Aspex Eyewear, Inc.
v. Altair Eyewear, Inc., 288 Fed.Appx. 697, 703 (Fed. Cir. 2008) (“The generic terms
‘mechanism,’ ‘means,’ ‘element,’ and ‘device’ typically do not connote sufficiently
definite structure.” (internal quotations and citation omitted)). The term “biasing” is the
only other term that could provide structure, but, as used in the patent, the term is purely
functional. The court must therefore construe this claim limitation in accordance with 35
U.S.C. § 112, ¶6.
The function of a biasing member is explained in the ‘488 patent specification as,
“The second biasing member 30 is provided to cause arm 34 to move to the resting
position as shown where the cable slide 50 is also in the resting position.” (‘488 patent,
Fig. 1C, col. 7, ll:24-27). The description of a “biasing member” for accomplishing this
function is found in column 7, lines 22-47, where the “biasing member” is described as
being “one or more coil springs” and “engag[ing] the posts 68 and 72 to create a bias
between the mounting bracket 24 and the pivotable member 28. The spring force of the
second biasing member [is configured] . . . to pull the cable slide toward the riser as the
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cable is released when launching an arrow,” thereby returning the arrow rest to its first
resting position. (Id., col. 7, ll: 22-47). Afshari provides no meaningful response against
this construction. Accordingly, the court finds the claim term “a biasing member for
biasing said pivotable member relative to said mounting member” means “one or more
coil springs positioned between the pivotable member and the mounting member to
return the arrow rest to its first resting position.”
F.

a mounting bracket/mounting member

Bear Archery
the term does not need construction

Afshari
a bracket and not 2 or 3 or 4, [sic] a
mounting member cant [sic] be another bow
or another device with a [sic] many parts of
it’s [sic] own

Bear Archery noted that the term “a mounting bracket” does not appear in the
claims asserted by Afshari. In his response, Afshari now asserts that he meant for the
court to construe the term “mounting member” in claim 25. In relevant part, the claim
provides, “An apparatus for supporting an arrow relative to a bow, comprising: a
mounting member for coupling a bow.”
Citing no evidence in support of his proposed construction, Afshari contends that
the term should be construed as “a bracket and not 2 or 3 or 4,” and that “a mounting
member cant [sic] be another bow or another device with a [sic] many parts of it’s [sic]
own.” (Docket # 86 at 32).
The term “mounting member” is modified by the transitional term “comprising,”
“which is synonymous with ‘including,’ ‘containing,’ or ‘characterized by,’ [and] is
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open-ended and does not exclude additional, unrecited elements or method steps.” Mars,
Inc. v. H.J. Heinz Co., L.P., 377 F.3d 1369, 1376 (Fed. Cir. 2004) (quoting MPEP, 8th
ed., rev. 1 § 2111.03 (2003)); Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed.
Cir. 1997) (“Comprising” is a term of art used in claim language which means that the
named elements are essential, but other elements may be added and still form a construct
within the scope of the claim.”). Consequently, claim 25’s requirement of a “mounting
member” requires that any device have at least one mounting member. Afshari’s attempt
to limit his claim to only a single mounting member, and no more, is contrary to its
appearance in claim 25 after the transitional term “comprising.”
Bear Archery contends the term does not need to be construed because its ordinary
meaning as understood by one of ordinary skill in the art is “readily apparent,” and thus,
its construction “involves little more than the application of the widely accepted
meaning” of those “commonly understood words.” Phillips, 415 F.3d at 1314. The court
agrees with Bear Archery, and finds that the term “mounting member” needs no
construction.
G.

apparatus

Bear Archery
the term does not need construction

Afshari
a fall away arrow rest with built in arrow
retaining member capable of moving out of
the way of the fletching of the arrow that is
linked to cables of a bow with a linkage
mechanism, this fall away arrow rest
includes a bracket which is used to mount
the fall away arrow rest to the riser of the
bow either above the cable guard or below
the cable guard location of the riser of the
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bow

Afshari asks the court to construe the term as noted above because “it is absolutely
necessary for the court and the jury and a person in the art to understand that the
apparatus isn’t a sight or stabilizer or some other accessory for the bow.” (Docket # 86 at
33). A plain reading of claim 25, which requires “an arrow rest” and “a shaft retaining
member,” ensures that the claimed apparatus is not an archery sight or a bow stabilizer.
In short, the court agrees with Bear Archery, and finds that the term “apparatus” needs no
construction.
IV.

Conclusion
The purpose of this order is to construe the claims placed in issue, and more

specifically, the terms highlighted by the parties. This being done, the parties may
proceed accordingly with the underlying infringement suit.

IT IS SO ORDERED this 5th day of June 2013.

__________________________________
________________________________

RICHARD L. YOUNG, JUDGE
RICHARD L. YOUNG, CHIEFCHIEF JUDGE
United States States District Court
United District Court
Southern District of IndianaIndiana
Southern District of

Distributed Electronically To Registered Counsel of Record.

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