ConAgra Foods Food Ingredients Company, Incorporated v. Archer Daniels Midland Company

Filing 85

ORDER re 59 Markman Brief filed by Archer Daniels Midland Company, 55 Markman Brief, filed by ConAgra Foods Food Ingredients Company, Incorporated. Signed by District Judge Eric F. Melgren on 6/5/2013. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CONAGRA FOODS FOOD INGREDIENTS
COMPANY, INC.,
Plaintiff,

vs.

Case No. 12-cv-2171-EFM-KGS

ARCHER-DANIELS-MIDLAND
COMPANY,
Defendant.

MEMORANDUM AND ORDER
Plaintiff ConAgra Foods Food Ingredients Company, Inc. (“ConAgra”) and Defendant
Archer-Daniels-Midland Company (“ADM”) are competing manufacturers in the field of
agriculture that sell wheat flour to customers who use the flour to manufacture products sold to
consumers. ConAgra is the owner of U.S. Patent Nos. 8,017,172 (the “ ‘172 Patent”), 8,252,360
(the “ ‘360 Patent”), and 8,404,298 (the “ ‘298 Patent”), all entitled “Whole Grain Flour and
Products Including the Same.” These patents generally claim a whole wheat flour product with
the characteristics of white or “refined” flour.
ConAgra alleges that ADM is infringing its ‘172, ‘360 and ‘298 Patents through the
making, using, selling, and offering for sale of white whole wheat flour products, including
ADM’s Kansas Diamond White Whole Wheat Flour. This matter is currently before the Court

on the parties’ request that the Court construe various terms in the ‘172 and ‘360 Patents’ (the
“Patents’ ”) claims as a matter of law pursuant to Markman v. Westview Instruments, Inc.1 The
Court has thoroughly considered the information submitted in the parties’ briefs as well as the
oral arguments presented at the Markman hearing on May 17, 2013, and construes the disputed
terms as set forth below.
I.

Legal Standard

The first step in a patent infringement action is to determine the meaning and scope of the
asserted patent’s claims.2 Claim construction is an issue of law for the Court to decide.3 Only
after the Court has properly construed a patent’s claims may it determine whether the accused
method or product infringes the claim as properly construed.4
The Federal Circuit Court of Appeals set forth a comprehensive guide for claim
construction in Phillips v. AWH Corp.5 In Phillips, the Federal Circuit reiterated that the claims
of the patent define the patentee’s invention, and to that end, claim construction begins with the
claim language itself.6 The words of a claim “are generally given their ordinary and customary
meaning,”7 and “the ordinary and customary meaning of a claim term is the meaning that the
term would have to a person of ordinary skill in the art in question at the time of the invention,

1

52 F.3d 967 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996).

2

Markman, 52 F.3d at 976.

3

Id. at 979.

4

Id. at 976.

5

415 F.3d 1303 (Fed. Cir. 2005) (en banc).

6

Id. at 1312.

7

Id. (quotation omitted).

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i.e., as of the effective filing date of the patent application.”8

“The claims themselves provide

substantial guidance as to the meaning of particular claim terms.”9 Both “the context in which a
term is used in the asserted claim” and “the [o]ther claims of the patent in question” are helpful
for understanding the ordinary meaning of a term.10
“The claims do not stand alone, but are part of ‘a fully integrated written instrument.’ ”11
Thus, they must be read in view of the specification, which the Federal Circuit has stated is the
primary basis for construing the claims.12 The specification may reveal a special definition that a
patentee has given a claim term that is different from the meaning the term would otherwise
possess.13 In that instance, the patentee’s definition controls. Or, the specification may reveal
“an intentional disclaimer, or disavowal of claim scope” by the patentee.14 In that instance, as
well, the patentee’s intention, as expressed in the specification, is dispositive.15 But, the Federal
Circuit has “expressly rejected the contention that if a patent describes only a single
embodiment, the claims of the patent must be construed as being limited to that embodiment.”16

8

Id. at 1313.

9

Id. at 1314.

10

Id.

11

Id. at 1315 (quotation omitted).

12

Id.

13

Id. at 1316.

14

Id.

15

Id.

16

Id. at 1323.

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A court “should also consider the patent’s prosecution history, if it is in evidence.”17
This consists of “the complete record of the proceedings before the PTO and includes the prior
art cited during examination of the patent.”18 The prosecution history provides “evidence of how
the PTO and the inventor understood the patent.”19 Because, however, the prosecution history is
an on-going negotiation between the patentee and the patent examiner, “it lacks the clarity of the
specification and thus is less useful for claim construction purposes.”20

Regardless, the

“prosecution history can often inform the meaning of the claim language by demonstrating how
the inventor understood the invention and whether the inventor limited the invention in the
course of prosecution, making the claim scope narrower than it would otherwise be.”21
Finally, a court may rely on extrinsic evidence, which consists of “all evidence external
to the patent and prosecution history, including expert and inventor testimony, dictionaries, and
learned treatises.”22

Within this class, dictionaries and treatises may be useful to claim

construction.23 The Federal Circuit has found that technical dictionaries may provide a court a
way “to better understand the underlying technology” and the way in which one of skill in art
might use the claim terms.”24 And, extrinsic evidence in the form of expert testimony can
provide background on the technology at issue, explain how an invention works, or establish that
17

Id. at 1317.

18

Id.

19

Id.

20

Id.

21

Id.

22

Id.

23

Id. at 1318.

24

Id.

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a particular term in the patent or prior art has a particular meaning in the pertinent field.25 But,
“conclusory, unsupported assertions by experts as to the definition of a claim term are not useful
to a court.”26 Overall, although “extrinsic evidence can shed useful light on the relevant art, . . .
it is less significant than the intrinsic record in determining the legally operative meaning of
claim language.”27
II.

Analysis

The parties ask the Court to construe thirteen terms from the ‘360 and ‘172 Patents’
claims.28 The majority of these terms are found in claim 1 of the ‘360 Patent and claim 35 of the
‘172 Patent.
Claim 1 of the ‘360 Patent states:
1. A whole grain wheat flour produced from cleaned wheat kernels comprising:
a coarse fraction including primarily bran and germ;
a fine fraction including primarily endosperm;
a particle size distribution such that at least 98 wt % of the whole grain wheat
flour is less than or equal to 212 µm; and
substantially the same proportions of natural constituents, other than moisture, as
the cleaned wheat kernels.29

25

Id.

26

Id.

27

Id. (quotation omitted).

28

At the Markman hearing, ConAgra informed the Court that it has withdrawn its infringement
contention for claim 1 of the of the ‘172 Patent and its dependent claims, and thus, the Court no longer need to
construe the terms “mixed wheat,” “unclassed wheat,” “homogenously,” “jet sieve,” and “refined flour constituent.”
ADM agreed to this stipulation with the exception of the term “refined flour constituent.” The Court, however, has
not found the term “refined flour constituent” in the remaining claims at issue in the ‘172 Patent or in any of the
claims of the ‘360 and ‘298 Patents, and therefore declines to construe the term.
29

‘360 Patent, Doc. 55-3, p. 26, col. 23, ll. 7-16 (emphasis added).

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Claim 35 of the ‘172 Patent states:
35. A coarse fraction milled from whole grain wheat kernels, the coarse fraction
comprising:
at least 97% by weight bran and germ;
a particle size distribution such that at least about 97% of particles by weight of
the coarse fraction are less than 212 micrometers; and
substantially the same proportions of natural constituents, other than moisture, as
compared to the bran and germ of the whole grain wheat kernels and a measured
ash value that is at least 97% of an expected ash value for the whole grain wheat
kernels.30
The Court has divided the disputed terms into four categories based on the parties’ discussion of
them in their briefs. These categories consist of: (1) terms containing the term “fraction;” (2)
the numerical limitations; (3) the alleged indefinite terms; and (4) the remaining disputed terms.
The Court addresses each term within these categories below.31
A.

“Coarse Fraction,” “Fine Fraction,” and “Fraction”

The parties dispute whether the Court should construe the terms “coarse fraction” and
“fine fraction,” found in claims 1, 14, 27, and 39-42 of the ‘360 Patent, or whether the Court
should construe the singular term “fraction.” ConAgra asserts that the terms “coarse fraction”
and “fine fraction” are defined by the claims themselves and thus should be given their ordinary
and customary meaning. It argues that the real dispute between the parties is the term “fraction”
and proposes that the Court construe this term to mean a portion of something. ADM proposes
that the term “coarse fraction” means a portion of the wheat kernel that is isolated and

30

‘172 Patent, Doc. 55-2, p. 27, col. 26, ll. 19-31(emphasis added).

31

Each term appears in multiple claims within the same patent or patents. The parties have not offered
different constructions depending on the particular claims in which the term is found. Therefore, the Court’s
construction is assigned to each term wherever it appears in the claims at issue.

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separately milled from a fine fraction and that the term “fine fraction” means the endosperm
portion of the wheat kernel that is isolated and separately milled from a coarse fraction and has
a particle size in which not less than 98% passes through a cloth designated 212 micrometers
(U.S. Wire 70).
1.

ADM’s Proposed Processing Limitations

ADM’s proposed constructions for the terms “coarse fraction” and “fine fraction” both
include the processing limitation that a portion of the wheat kernel is isolated and separately
milled. ADM argues that the inclusion of this processing limitation is supported by both the
Patents’ specifications and ‘172 Patent’s prosecution history.

With regard to the Patents’

specifications, ADM argues that the specifications teach separate fine and coarse fractions
because they state in one embodiment that “the coarse fraction being blended with the refined
flour constituent, wherein 98% of the particles by weight of the whole grain flour are less than
212 micrometers”32 and that in an exemplary embodiment “the coarse fraction may be blended
with the refined flour constituent.”33

ADM also cites to a portion of the ‘172 Patent’s

specification describing a two-step milling process (a process where the endosperm is separated
from the bran and germ and the bran and germ are then further milled to reduce particle size):
For example, the present invention may implement a two-stream milling
technique, as shown in FIG. 4, to grind the coarse fraction. In a present
embodiment, after the coarse fraction has been separated from the refined flour,
the coarse fraction is stabilized. Once the coarse fraction is separated and
stabilized, the coarse fraction is then ground through a grinder, preferably a gap
mill, to form a coarse fraction having a particle size distribution less than or equal
to about 500 micrometers.34
32

‘172 Patent, Doc. 55-2, p. 16, col. 3, ll. 17-20.

33

‘172 Patent, Doc. 55-2, p. 17, col. 5, ll. 26-29.

34

‘172 Patent, Doc. 55-2, p. 18, col 8, ll. 6-14.

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ADM also argues that when the Patents describe a single stream milling process, they do not use
the phrase “coarse fraction” or “fine fraction.” These terms are only used when referring to a
two-step milling process.
With regard to the prosecution history, ADM asserts that the inventors argued, on several
occasions, that the claims were limited to a two-step milling process involving a separate,
isolated coarse fraction. ADM cites the inventors’ response to three different office actions in
which the inventors of the ‘172 Patent distinguished their invention from a prior art patent
referred to as Chigurupati I. The office action responses all contain the following language:
[T]he Office Action alleges it would have been within the skill of the ordinary
worker to siphon off the coarse fraction as allegedly disclosed in Chigurpati I as
the bran and germ are removed for further milling to achieve the right particle
size. . . . Applicants do not agree.
Chigurupati I does not disclose or suggest an isolated ultra-fine milled coarse
fraction, separately milling a coarse fraction, bran fraction, and/or germ fraction
to achieve reduced particle size, or that the process is suitable for separately
milling a coarse fraction, bran fraction, and/or germ fraction to achieved reduced
particle size. The coarse fraction in Chigurupati I is always ground with the fine
fraction and contains a significant portion of the milled fine fraction. . . .35
ADM argues that ConAgra cannot tell the patent office that Chigurupati I is distinguishable from
the ‘172 Patent’s claims because it uses a two-step milling process, but then later, during this
litigation, assert that the patent covers a single-stream milling process that does not isolate and
separately mill the coarse fraction.
The Court finds that neither the Patents’ specification nor the ‘172 Patent’s prosecution
history requires the inclusion of ADM’s proposed processing limitation into the meaning of the
terms “coarse fraction” and “fine fraction.” First and most importantly, the statements made
35

Office Action Responses, Doc. 59-1, pp. 22, 50, 89.

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during the prosecution of the ‘172 Patent do not represent the clear and unmistakable disavowal
of claim scope such that the doctrine of prosecution history disclaimer limits the Patent’s claims.
Under the doctrine of prosecution history disclaimer, the ordinary meaning of a claim term is
narrowed when the patentee unequivocally disavowed a certain meaning of that term during
prosecution in order to obtain a patent.36 In other words, the ordinary meaning of the claim term
is narrowed so that it is congruent with the scope of the patentee’s surrender during
prosecution.37 The standard for applying prosecution disclaimer is high.38 Indeed, the Federal
Circuit has stated that “for prosecution disclaimer to attach, our precedent requires that the
alleged disavowing actions or statements made during prosecution be both clear and
unmistakable.”39 The alleged disavowing statement must be clear enough to show “reasonable
clarity and deliberateness” and “so unmistakable as to be unambiguous evidence of
disclaimer.”40
Here, the cited passage from the office action response is not a clear disavowal of a
single-step milling process. The inventors of the ‘172 Patent were distinguishing Chigurupati I
based on the fact that the product claimed in Chigurupati I failed to retain all of the nutrients of
the bran and germ. This distinction does not disavow every one-step milling process. Thus, the
office action response is not “so unmistakeable to be unambiguous evidence of disclaimer” such
that the doctrine of prosecution disclaimer applies.

36

Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1325 (Fed. Cir. 2003).

37

Id.

38

Id.

39

Id. at 1325-26.

40

Id. at 1325.

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Furthermore, the passages cited by ADM from the Patents’ specifications do not support
the imposition of a processing limitation into the claim language. ADM’s reliance on the
Patents’ specifications is limited to descriptions of the preferred embodiments. Both the Federal
Circuit and this Court have found that the mere fact that a specification teaches a particular
embodiment (or even a preferred embodiment) is not sufficient to justify limiting an otherwise
broad claim scope to the particular embodiment taught.41 Here, the language cited by ADM
from the Patents’ specifications states that a two-step milling process is a “preferred
embodiment” and “may” be used to make the present invention. This is not enough to support
ADM’s proposed construction. Moreover, ADM’s proposed processing limitations actually
contradict the Patents’ specifications, which state that “[t]he whole grain flour of the present
invention may be produced via a variety of milling processes”42 and “[i]t is contemplated that the
whole grain flour, coarse fraction and/or grain products of the present invention may be
produced by a number of milling processes . . . .”43 Accordingly, the Court declines to construe
the terms “coarse fraction” and “fine fraction” to require a portion of the wheat kernel to be
isolated and separately milled.
2.

ADM’s Proposed Particle Size Limitation

For the term “fine fraction,” ADM also seeks to impose a particle size limitation. The
second half of ADM’s proposed definition for the term requires a particle size in which not less

41

See Eolas Tech, Inc. v. Microsoft Corp., 399 F.3d 1325, 1336-37 (Fed. Cir. 2005), cert. denied, 546
U.S. 998 (2005) (refusing to limit construction of term “stand-alone computer” even if all embodiments in the
specification described “stand-alone computers”); MGP Ingredients, Inc. v. Mars, Inc., 494 F. Supp. 2d 1231, 123638 (D. Kan. 2007) (finding that claims were not limited to “nonedible” articles even though specification sometimes
described the invention as “nonedible” while other parts were not so limiting).
42

‘360 Patent, Doc. 55-3, p. 20, col. 12, ll. 12-13.

43

‘360 Patent, Doc. 55-2, p. 20, col. 12, ll. 39-41.

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than 98% passes through a cloth designated 212 micrometers (U.S. Wire 70). ADM adopted this
language from the Food and Drug Administration’s regulation defining the term “refined flour.”
ADM contends that the Patents’ specifications show that the term “fine fraction” is synonymous
with the term “refined wheat flour” or “refined flour constituent” and that the inventors
recognized and adopted the FDA’s requirement because the specifications particularly reference
the regulation when they state:
The Food and Drug Administration (FDA) requires flour to meet certain particle
size standards in order to be included in the category of refined wheat flour. The
particle size of refined wheat flour is described as flour in which not less than
98% passes through a cloth having openings not larger than those of woven wire
cloth designated ‘212 micrometers (U.S. Wire 70).44
The Court declines to adopt ADM’s proposed particle size limitation when construing the term
“fine fraction.”

The proposed limitation is redundant with the language of the claims

themselves. Each claim that includes the term “fine fraction” also includes the requirement that
there is “a particle size distribution such that at least 98 wt % of the whole grain wheat flour is
less than or equal to 212 µm.”45 Because this claim limitation is synonymous with ADM’s
proposed particle size distribution limitation, the limitation is unnecessary. Therefore, the Court
declines to include the particle size limitation in the definition of “fine fraction.”
3.

Construction of “Coarse Fraction” and “Fine Fraction”

Although the Court declines to adopt ADM’s proposed constructions for “coarse
fraction” and “fine fraction,” it also cannot give these terms their ordinary and customary
meaning or simply limit construction to the term “fraction” as ConAgra asserts it should. The
Court believes that “coarse fraction” and “fine fraction” are technical terms for which a jury may
44

‘172 Patent, Doc. 55-2, p. 16, col 4, ll. 50-56; ‘360 Patent, Doc. 55-3, p. 16, col. 4, ll. 50-56.

45

‘360 Patent, Doc. 55-3, pp. 26-27, col. 23, ll. 12-13, col. 24, ll. 27-28, col. 25, ll. 39-40.

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not appreciate an “ordinary” meaning.46 At the Markman hearing, upon questioning from the
Court, ConAgra proposed that the term “coarse fraction” be construed to mean a portion of the
wheat kernel that includes primarily bran and germ and that the term “fine fraction” be
construed to mean a portion of the wheat kernel that includes primarily endosperm. The Court
finds that these definitions are consistent with the claim language of the ‘360 Patent and
therefore adopts these constructions for the terms.47
B.

The Numerical Limitations
1.

“At Least 98 Wt %” and “At Least 96 Wt %”

Claims 1, 4, 14, 17, 27, 29, and 39 in the ‘360 Patent contain a limitation requiring that
“at least 98 wt % of the whole grain wheat flour has a particle size less than or equal to [x]
µm.”48 In addition, claim 42 in the ’360 Patent contains a limitation requiring “at least 96 wt %
of the coarse fraction has a particle size less than or equal to 150 µm.”49

ConAgra

asks

the

Court to construe the claim term “at least 98 wt %” to mean 98 wt % or greater, +/- 5% variance
or 93 wt % or greater. ADM argues that the term should be construed to mean 98 wt % or
greater. Similarly, ConAgra asks the Court to construe the claim term “at least 96 wt %” to
mean 96 wt % or greater, +/- 5% variance or 91 wt % or greater. ADM argues that “at least 96
wt %” should mean 96 wt % or greater. Because the parties do not dispute that the term “at

46

See Layne Christensen Co. v. Bro-Tech Corp., 2011 WL 3022445, at *3 (D. Kan. July 22, 2011)
(construing terms after finding that they are “technical and would not be easily or commonly understood by jurors”).
47

See Phillips, 415 F.3d at 1314 (“The claims themselves provide substantial guidance as to the meaning
of particular claim terms.”).
48

‘360 Patent, Doc. 55-3, pp. 26-27, col. 23, ll. 12-13, col. 24, ll. 27-28, ll. 38-39, col. 25, ll. 47-48, col.
26, ll. 47-48 (emphasis added).
49

‘360 Patent, Doc. 55-3, p. 26, col. 26, ll. 55-57 (emphasis added).

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least” means “[X] % or greater,” the Court will focus on the stated percentages, i.e., 98 wt % and
96 wt %, when construing theses terms. 50
ConAgra proposes that the terms “98 wt %” and “96 wt %” should incorporate a variance
of +/- 5%, or a lower limit of 93% and 91% respectively, based on the prosecution history of the
‘172 patent. ConAgra argues that in testing particle size distribution of any flour, there is a
variance due to a number of factors. Although the Patents’ intrinsic record does not explicitly
discuss this variance, ConAgra cites a declaration submitted by the inventor of the ‘172 Patent
(the “Korolchuk Declaration”) that contains a table allegedly stating that the granulation
percentage varies by +/- 5%. Applying this percentage to the “at least 98 wt %” and the “at least
96 wt %” claim terms results in ConAgra’s proposed constructions of 98 wt % or greater, +/5% variance or 93 wt % or greater and 96 wt % or greater, +/- 5% variance or 91 wt % or
greater, respectively.
ConAgra also relies on the Federal Circuit’s decision in Cohesive Technologies, Inc. v.
Waters Corporation,51 in arguing that the Court should include a 5% variance when construing
the terms.

In Cohesive, the Federal Circuit construed the term “greater than about 30

<<mu>>m” to mean “(1) greater than 25.43 <<mu>>m or (2) greater than 23.044 <<mu>>m and
of sufficiently large size to assure that the column is capable of attaining turbulence.”52 The
Federal Circuit found that the district court erred in finding that the term “greater than about 30
<<mu>>m” excluded 29.01 microns because that interpretation read the term “about” out of the
50

In the parties’ Joint Claim Construction Chart (Doc. 52-1), ADM proposed that the term “at least”
should mean “at a minimum.” ADM stated in its Memorandum on Claim Construction (Doc. 59) that it does not see
a substantive difference between the words “at a minimum X%” and “X% or greater” and has adopted ConAgra’s
phrasing for this term.
51

543 F.3d 1351 (Fed. Cir. 2008).

52

Id. at 1371.

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claim.53 The Federal Circuit stated that “[b]ecause the particles are not spherical, not uniformly
shaped, and not precisely measurable, it is not surprising that the patent would claim a low-end
threshold of ‘about 30 <<mu>>,’ rather than precisely ’30 <<mu>>m.’ ”54 The court based its
construction off of two statements in the specification that it said supported the range “about”
was intended to encompass in the patents in suit.55 ConAgra argues that because the products
produced in the Patents also contain irregular particles of varying sizes and the Patents’ intrinsic
record supports such variation, the Federal Circuit’s holding in Cohesive should be applied to the
terms at issue here to include a 5% variance.
The Court finds that neither the Patents’ intrinsic record nor the Cohesive case supports
the inclusion of a +/- 5% variance in the meaning of the terms. First, as ConAgra admits,
nothing in the Patents’ specifications mentions that the 98% and the 96% thresholds are subject
to a 5% variance. Second, the Korolchuk Declaration also does not indicate that such variation
exists. The Korolchuk Declaration was utilized by the ‘172 Patent’s inventors in an office
response to argue that the claimed invention in the ‘172 Patent was distinguishable from the prior
art. Nothing in the Declaration states there is an industry wide 5% variation in particle size
distribution. Furthermore, the specific table referenced in the Korolchuk Declaration refers to a
whole wheat flour product produced from 1983 to 2009 and not the whole wheat flour product
described in the Patents. Third, the claims themselves demonstrate that there is no +/- 5%
variation because, if this was the case, “at least 98 wt %” would extend to 103 wt % under a 5%
variation and “at least 96 wt %” would extend up to 101 wt %. And, finally, Cohesive is not
53

Id. at 1368.

54

Id.

55

Id. at 1369.

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applicable here because in that case, the Federal Circuit focused its construction on the meaning
of the term “about” when construing the disputed terms, and the term “about” is not present in
these terms. Accordingly, the Court construes the term “at least 98 wt %” to mean 98 wt % or
greater and the term “at least 96 wt %” to mean 96 wt % or greater.
2.

“At Least About 98%” and “At Least About 97 %”

Claims 1 and 26 of the ‘172 Patent require “a particle size distribution such that at least
about 98% of particles by weight of the whole grain wheat flour are less than 212
micrometers.”56 In addition, claim 35 of the ‘172 Patent requires “at least about 97% of the
particles by weight of the coarse fraction are less than 212 micrometers.”57 ConAgra proposes
that the term “at least about 98%” mean about 98% or greater, +/- 5% variance or about 93% or
greater.

ADM argues that the term should mean 97.5% or greater.

Similarly, ConAgra

proposes that the term “at least about 97%” mean about 97% or greater, +/- 5% variance or
about 92% or greater. ADM proposes that the term mean 96.5% or greater.
The primary difference between these terms and the “at least 98 wt %” and “at least 96
wt %” terms is the inclusion of the term “about.” The Court, therefore, must construe the
meaning of the term “about.” “The word ‘about’ does not have a universal meaning in patent
claims, and [its] meaning depends on the technological facts of the particular case.”58 “The use
of the word ‘about,’ avoids a strict numerical boundary to the specified parameter. Its range

56

‘172 Patent, Doc. 55-2, pp. 26-27, col. 23, l. 22, col. 25, l. 58 (emphasis added).

57

‘172 Patent, Doc. 55-2, p.27, col. 26, l. 22 (emphasis added).

58

Cohesive, 543 F.3d at 1368 (citations omitted).

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must be interpreted in its technological and stylistic context.”59 The Court must thus “consider
how the term . . . was used in the patent specification, the prosecution history, and other
claims.”60 In determining how far beyond the claimed range the term “about” extends the claim,
the Court must “focus . . . on the criticality of the [numerical limitation] to the invention.”61
ADM argues that the claims, specification, and prosecution history for the ‘172 Patent
“all indicate that ‘about’ allows for a narrow, defined expansion of the percentage.”62 First,
ADM argues that because the ‘172 Patent’s claims include both ranges and precise percentages
this suggests that the percentages in the disputed terms are intended to be precise rather than a
range. In support of this argument, ADM relies on the Federal Circuit’s decision in OrthoMcNeil Pharmaceutical, Inc. v. Caraco Pharmaceutical Laboratories, Ltd.,63 where the Federal
Circuit found that when the disputed term uses a standalone numerical limitation (e.g., about
98%) and other claims use ranges (e.g., about 2% to about 30%), “one of ordinary skill in the art
would understand that the inventors intended a range when they claimed one and something
more precise when they did not.”64
Second, ADM argues that comparison of the different claims suggests a specific range for
the term “about.” Claim 35 of the ‘172 Patent requires “at least about 97%” of the particles to
be 212 microns or smaller, while claim 26 requires “at least about 98%” fit the same profile.
59

Ortho-McNeil Pharm., Inc. v. Caraco Pharm. Labs., Ltd., 476 F.3d 1321, 1326 (Fed. Cir. 2007)
(citations omitted).
60

Id.

61

Cohesive Tech, 543 F.3d at 1368.

62

Def. Memorandum on Claim Construction, Doc. 59, p. 16.

63

476 F.3d 1321 (Fed. Cir. 2007).

64

Id. at 1327.

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ADM argues that because these claims differ by only 1%, then the “wiggle room” afforded by
the term “about” must be less than 1%.
Third, ADM argues that the specification and the file history suggest that “about” permits
little variation. The specification states that an objective of the invention is to create a whole
wheat flour with the “desirable texture and appearance” of refined flour.65

The specification

states that to label flour as “refined flour,” the FDA requires that “not less than 98%”66 of the
particles in the flour be smaller than 212 micrometers. According to ADM, the objective of the
invention was to create a whole wheat flour product that would meet the FDA’s requirements for
refined flour. Because every example in the specification meets the 98% threshold, nothing in
the intrinsic record suggests that the term “about” should be given a broad interpretation.
ADM’s arguments are not persuasive. First, just because the ‘172 Patent contains claims
with expansive ranges and standalone numerical limitations, the Court is not required to apply a
standalone limitation to the claim.

The Ortho-McNeil court ultimately upheld the broad

construction of the term “ratio of about 1:5” to mean “1:3.6 to 1:7.1.”67 Second, ADM’s
comparison of the percentages in claims 35 and 26 of the ‘172 patent is incorrect. The particle
size distribution in claim 35 of “at least about 97%” is for a “course fraction milled from whole
grain wheat kernels”68 while the particle size distribution of “at least about 98%” in claim 26 is
for a “whole grain wheat flour.”69 These are two different things. Finally, the specification does

65

‘172 Patent, Doc. 55-2, p. 15, col 2, ll. 57-67.

66

‘172 Patent, Doc. 55-2, p. 16, col. 4, ll. 50-56.

67

Ortho-McNeil, 476 F.3d at 1328.

68

‘172 Patent, Doc. 55-2, p. 27, col. 26, ll. 19-20.

69

‘172 Patent, Doc. 55-2, p. 27, col. 25, l. 57.

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not state that the objective of the invention is to create a whole wheat flour product that would
meet the FDA’s standards for refined flour. Rather, the specification states that in current
embodiments, the product would be “substantially similar” to refined flour.70
Neither the intrinsic record nor the claims define or disavow the scope of the term
“about.” Furthermore, the term “about” is self-explanatory and thus needs no construction as a
matter of law.71 Accordingly, the Court finds that the term “about” should be given its ordinary
and customary meaning.
ConAgra also contends that because the terms “at least about 98%” and “at least about
97%” read on particle size, a +/- 5% variation should be included in the Court’s construction of
the terms.

ConAgra relies extensively on the Federal Circuit’s decision in Cohesive

Technologies in support of this argument. But, the Federal Circuit’s construction of the term
“about” is distinguishable from this case because in Cohesive, the Court found that the
specification contained relevant statements that supported the range that the term “about” was
intended to encompass in the patents in suit. Here, nothing in the intrinsic evidence supports a
finding that the term “about” included a 5% variation in particle size. Accordingly, the Court
declines to include a 5% variance in the meaning of the terms. The Court finds that the terms “at
least about 98%” and “at least about 97%” should be given their ordinary and customary
meaning.
70

Id. p. 19, col. 9, ll. 4-8; see also id. p. 21, col. 13, ll. 10-14.

71

Phillips, 415 F.3d at 1314 (“In some cases, 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 in such cases involves
little more than the application of the widely accepted meaning of commonly understood words.”); see also Jazz
Pharm., Inc. v. Roxane Labs., Inc., 2012 WL 4103880, at *9 (D.N.J. Sept. 14, 2012) (finding that the term “about”
requires no construction); Freeman v. Gerber Prods. Co., 357 F. Supp. 2d 1290, 1299 (D. Kan. 2005) (finding that
where the written description did not shed light on the term “substantially” that the parties’ proposed constructions
were not helpful and declining to construe the term).

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3.

“At Least 97%” and “At Least 97 Wt %”

Claim 35 of the ‘172 Patent requires “a measured ash value that is at least 97% of an
expected ash value for the whole grain wheat kernels.”72 Similarly, claim 14 of the ‘360 Patent
requires “at least 97 wt % of the ash in the cleaned wheat kernels.”73 Because the parties no
longer dispute the meaning of the term “at least,” the Court construes the term “at least 97%” to
mean 97% or greater and the term “at least 97 wt %” to mean 97 wt % or greater.
C.

The Alleged Indefinite Terms

ADM contends that the terms “expected ash value” and “primarily,” as used in the
Patents, are indefinite. Under 35 U.S.C. § 112, a patent’s specification must “conclude with one
or more claims particularly pointing out and distinctly claiming the subject matter which the
applicant regards as his invention.”74 The purpose of this definiteness requirement “is to ensure
that the claims delineate the scope of the invention using language that adequately notifies the
public of the patentee’s right to exclude.”75
The United States Supreme Court has held that “the statutory requirement of particularity
and distinctness in claims is met only when [the claims] clearly distinguish what is claimed from
what went before in the art and clearly circumscribe what is foreclosed from future enterprise.”76
The definiteness requirement, however, does not compel absolute clarity.77 Only claims that are
72

‘172 Patent, Doc. 55-2, p. 27, col. 26, ll. 30-31 (emphasis added).

73

‘360 Patent, Doc. 55-3, p. 26, col. 24, l. 30 (emphasis added).

74

35 U.S.C. § 112, ¶2.

75

Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005) (citing Honeywell
Int’l, Inc. v. ITC, 341 F.3d 1332, 1338 (Fed. Cir. 2003)).
76

United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 236 (1942).

77

Datamize, 417 F.3d at 1347.

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“not amenable to construction” or “insolubly ambiguous” are indefinite.78 “Because claim
construction frequently poses difficult questions over which reasonable minds may disagree,
proof of indefiniteness must meet ‘an exacting standard.’ ”79 Therefore, “ ‘an accused infringer
must . . . demonstrate by clear and convincing evidence that one of ordinary skill in the relevant
art could not discern the boundaries of the claim based on the claim language, the specification,
the prosecuting history, and the knowledge in the relevant art.’ ”80 Furthermore, just because
construction of a term is difficult does not mean the term is automatically rendered indefinite.81
“If the meaning of a claim term is discernible, even though the task may be formidable and the
conclusion may be one over which reasonable persons will disagree, we have held the claim
sufficiently clear to avoid invalidity on indefiniteness grounds.”82

Along these lines, it is

important to note that an issued patent is entitled to a statutory presumption of validity.83 “By
finding claims indefinite only if reasonable efforts at claim construction prove futile, we accord
respect to the statutory presumption of patent validity.’ ”84
When examining indefiniteness, general principles of claim construction apply.85 Thus,
the standards set forth by the Federal Circuit in Phillips should guide the Court’s construction of
78

Id. (citing Novo Indus., L.P. v. Micro Molds Corp., 350 F.3d 1348, 1350 (Fed. Cir. 2003); Honeywell,
Int’l, 341 F.3d at 1338; Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir. 2001)).
79

Id. (quoting Haemonetics Corp. v. Baxter Healthcare Corp., 607 F.3d 776, 783 (Fed. Cir. 2010)
(internal citations omitted)).
80

Id.

81

Datamize, 417 F.3d at 1347.

82

Exxon Research, 265 F.3d at 1375.

83

Datamize, 417 F.3d at 1347 (citing 35 U.S.C. § 282).

84

Id. (quoting Exxon Research, 265 F.3d at 1375 (citation omitted)).

85

Id. (citing Oakley, Inc. v. Sunglass Hut Int’l, 316 F.3d 1331, 1340-41 (Fed. Circ. 2003)).

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the terms. As prescribed by Phillips, the Court may look to intrinsic evidence, such as the
patent’s specification and prosecution file history, as well as extrinsic evidence. “What matters
is for the court to attach the appropriate weight to be assigned to those sources in light of the
statutes and policies that inform patent law.”86
1.

“Expected Ash Value”

Claim 35 of the ‘172 Patent requires “a measured ash value that is at least 97% of an
expected ash value for the whole grain wheat kernels.”87 ConAgra contends that the term
“expected ash value” should be construed to mean the mineral content in a wheat kernel
determined prior to milling, while ADM contends that this term is indefinite.
According to ConAgra, the ‘172 Patent defines “ash content of flour” as “the
measurement of the minerals present in the flour.”88 It also states that “whole wheat flours will
have a higher ash content than refined flours.”89 However, the Crop Quality Report published by
U.S. Wheat Associates shows that there is no set ash value to determine whether flour is whole
grain, in which the flour contains “substantially the same proportions of natural constituents,
compared to a whole grain wheat kernel.”90 Thus, a flour’s ash must be compared to an original
kernel’s ash to determine if “substantially the same proportions of natural constituents, compared

86

Phillips, 415 F.3d at 1324.

87

‘172 Patent, Doc. 55-2, p. 27, col. 26, ll. 30-31 (emphasis added).

88

‘172 Patent, Doc. 55-2, p. 15, col 7, ll. 15-16.

89

‘172 Patent, Doc. 55-2, p. 15, col. 7, ll. 20-22.

90

‘172 Patent, Doc. 55-2, p. 26, col. 23, ll. 19-21; Crop Quality Report, Doc. 55-10, p. 4.

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to a whole grain wheat kernel”91 from which it was milled have been retained. The ash content
of the wheat kernel is the expected ash value.
ADM argues that the term is indefinite because the term lacks a technical meaning and is
not defined in the specification. ADM asserts that ConAgra’s proposed construction is improper
because it fails to give meaning to the term “expected,” because it lacks support in the
specification, and because it is used inconsistently within the claims. ADM argues that for
claims 1 and 35, the “expected ash value” relates to a wheat kernel, while for claim 32, it relates
to “wheat flour.”
In response, ConAgra argues that although the term does not appear in the specification,
the term is present in the claim language and the prosecution history. ConAgra argues that the
term is present in claim 1 when it states: “the whole grain wheat flour comprises substantially
the same proportions of natural constituents, other than moisture, compared to a whole grain
wheat kernel.”92 And, the term is present in the prosecution history, as shown in one passage
from an office action response:
The table on page 12 of Chigurupati I shows the ash content of the ultra-fine
wheat flour. The expected ash value for intact wheat kernels of hard red spring
wheat is 1.63. The ultra-fine wheat flour disclosed in Chigurupati I had a
significant lower measured ash value (1.378) compared to the expected ash value
of 1.63.93
Another passage from the prosecution history states:
The ash content of wheat kernels was determined prior to milling and compared
to the ash content of the whole grain flour produced by providing whole grain
kernels to the mill. The ash content of the resulting fine while grain glour (1.45)
91

‘172 Patent, Doc. 55-2, p. 26, col. 23, ll. 19-21.

92

‘172 Patent, Doc. 55-2, p. 26, col. 23, ll. 19-21.

93

‘172 Prosecution History, Doc. 55-11, p. 4 (emphasis added).

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compared with the ash of the starting kernel (1.49) confirmed substantial retention
of ash (a relative measure of bran and germ) during milling (retaining about 97%
of starting ash).94
ConAgra contends that the cited passages from the prosecution history reinforce its position that
the term “expected ash value” is not “insolubly ambiguous” or incapable of being construed.
The Court finds that ADM has not met the clear and convincing evidence standard
required to show that the term “expected ash value” is indefinite. Although the term is not
mentioned in the Patents’ specifications, ConAgra has shown that the concept of “expected ash
value” is present in the claim language itself and the prosecution history. The Court therefore
construes the term to mean the mineral content in a wheat kernel determined prior to milling.
2.

“Primarily”

The ‘360 patent uses the term “primarily” in the following limitations in claims 1, 14, and
27:

“a coarse fraction including primarily bran and germ” and “a fine fraction including

primarily endosperm.”95 ADM contends that the term is indefinite in this context, especially
because it replaces the term “at least 97%” from claim 35 of the ‘172 patent. ConAgra contends
that the term is not indefinite and that it should be given its ordinary and customary meaning.
ConAgra argues that the term “primarily” is well-understood to both those having
ordinary skill in the art and laypersons reading the term in context. It admits that the patent does
not explicitly define the term but points to passages in the specification that state that the present
invention contains bran, germ, and endosperm. For example, one of these portions of the

94

‘172 Prosecution History, Doc. 55-12, p. 4.

95

‘360 Patent, Doc. 55-2, p. 26-27, col. 23, ll. 10-11, col. 24, ll. 25-26, col. 25, ll. 37-38 (emphasis

added).

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specification states: “in a current embodiment, the coarse fraction includes at least one of: bran
and germ.”96
ADM argues that the term “primarily” is indefinite because it is a word of degree, and
thus, the specification must provide some standard for measuring that degree. ADM cites the
Federal Circuit’s decision in Exxon Research Engineering Co. v. United States,97 where the court
found the term “to increase substantially” not to be indefinite because the specification included
a specific numerical range and a specific method by which to measure whether a process met the
range.98 ADM argues that the ’360 Patent’s specification only provides the following guidance
regarding the meaning of the term: “Whole grain wheat flour has increased nutritional value
compared to refined wheat flour because it includes the entire wheat kernel, (i.e., includes bran,
germ, and endosperm) rather than primarily just the endosperm . . . .”99 ADM asserts that
because this reference does not provide a numerical range, it is not enough to understand the
scope of ConAgra’s invention.
ADM also asserts that even if the Court finds the term to be definite, the Court should
construe “primarily” to mean “at least 97%.” According to ADM, the term “primarily,” as used
in the quote from the specification above, represents the percentage of wheat flour that is
endosperm, and one skilled in the art might interpret this to mean “at least 97% by weight,”
because it was used in the same context in the ‘172 patent.

96

‘360 Patent, Doc. 55-3, p. 17, col. 5, ll. 4-5.

97

265 F.3d 1371 (Fed. Cir. 2001).

98

Id. at 1374.

99

‘360 Patent, Doc. 55-3, p. 15, col. 1, ll. 56-60.

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The Court disagrees with ADM and finds that the term “primarily” is not indefinite.
Neither the Federal Circuit nor this Court has ever found the term “primarily” to be indefinite. In
fact, the Federal Circuit has held that it is error to impose an exact construction on terms of
degree100 and that terms like “substantially” or “generally” are “meaningful modifier[s] implying
‘approximate,’ rather than perfect.”101 ADM has not met its burden to show by clear and
convincing evidence that the term “primarily” is so ambiguous that it is incapable of
construction. Therefore, the Court does not find the term indefinite.
The Court also rejects ADM’s proposed alternative construction that the term be
construed to mean “at least 97%.” The Court is required to follow the canons of construction
laid out by the Federal Circuit in Phillips v. AWH Corp.,102 and in that case, the Federal Circuit
stated that where the ordinary meaning of a term is “readily apparent even to lay judges, and
claim construction in such cases involves little more than the application of the widely accepted
meaning of commonly-understood words,” a term should have its ordinary and customary
meaning. Here, the meaning of the term “primarily” is readily apparent. Therefore, the Court
finds that the term has its ordinary and customary meaning.

100

See, e.g., Playtex Prods., Inc. v. Procter & Gamble Co., 400 F.3d 901, 907 (Fed. Cir. 2005) (“But the
definition of ‘substantially flattened surfaces’ adopted by the district court introduces a numerical tolerance to the
flatness of the gripping area surfaces of the claimed applicator [which] contradicts the recent precedent of this court,
interpreting such terms of degree.”) citing Cordis Corp. v. Medtronic AVE, Inc., 339 F.3d 1352, 1361 (Fed. Cir.
2003) (refusing to impose a precise numeric constraint on the term “substantially uniform wall thickness”); Anchor
Wall Sys. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1311 (Fed. Cir. 2003) (holding that “the phrase
‘generally parallel’ envisions some amount of deviation from exactly parallel,’ and that “words of approximation,
such as ‘generally’ and ‘substantially,’ are descriptive terms commonly used in patent claims to avoid strict
numerical boundary to the specified parameter.”).
101

Liquid Dynamics Corp. v. Vaughan Co., 355 F.3d 1361, 1368 (Fed. Cir. 2004). .

102

415 F.3d 1303 (Fed. Cir. 2005).

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D.

Remaining Disputed Terms

The parties dispute whether the remaining terms—“wheat kernel” and “whole grain
wheat flour”—require construction by the Court. ConAgra asserts that these terms require no
construction as a matter of law because they are readily understandable, straightforward, and are
not the type of complex or overtly technical terms that would be confusing for a jury to
understand when reading the Patents. ADM asserts that construction of these terms is necessary
because they are terms of art in the wheat industry and that construction would help the jury to
understand them.
The Federal Circuit has provided some guidance regarding when a claim term must be
construed versus given its ordinary and customary meaning. In Phillips, the Federal Circuit
stated that “[i]n some cases, 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 in such
cases involves little more than the application of the widely accepted meaning of commonly
understood words.”103 But, in other cases, “determining the ordinary meaning of a claim term
requires examination of terms that have a particular meaning in a field of art.”104 “Because the
meaning of a claim term as understood by persons of skill in the art is often not immediately
apparent, and because patentees frequently use terms idiosyncratically, the court looks to ‘those
sources available to the public that show what a person of skill in the art would have understood
the disputed claim language to mean.’ ”105 The Federal Circuit has cautioned, however, that
claim construction “is not an obligatory exercise in redundancy” and is only intended to resolve
103

Phillips, 415 F.3d at 1314.

104

Id.

105

Id.

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“disputed meanings and technical scope, to clarify and when necessary to explain what the
patentee covered by the claims.”106
1.

“Wheat Kernel”

The term “wheat kernel” appears in claims 35 of the ‘172 Patent and claims 1-3, 14-16,
27, 28, 39, and 41 of the ‘360 Patent. Claim 1 of the ‘360 patent uses the term as follows: “[a]
whole grain wheat flour produced from cleaned wheat kernels comprising: . . . .”107 ConAgra
asserts that this claim term should be given its ordinary and customary meaning, while ADM
asserts that the Court should construe it to mean the wheat grain, which includes the bran, the
germ, and the endosperm. ADM also proposes a diagram depicting where the bran, germ, and
endosperm are found within a wheat kernel.108
The Court construes the term “wheat kernel” to have its ordinary and customary meaning.
The term is easily understood by laypersons and further construction of this term would not be
helpful to a jury. The Court therefore declines to adopt ADM’s proposed construction.
2.

“Whole Grain Wheat Flour”

The term “whole grain wheat flour” is found in claims 1, 11, 13, 14, 15, 17, 19, 21, 22,
26, 29, 32, and 33 of the ‘172 Patent and claims 1-4, 14-17, and 27-29 of the ‘360 Patent. Claim
1 of the ‘362 Patent uses the term in the preamble of the claim as follows: “1. A whole grain
wheat flour produced from cleaned wheat kernels comprising: . . . .”109 ConAgra asserts that this

106

United States Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997).

107

‘360 Patent, Doc. 55-3, p. 26, col. 23 ll. 8-9 (emphasis added).

108

ADM asserts in its Memorandum on Claim Construction (Doc. 59) that its diagram is not essential to
claim construction. Therefore, the Court disregards the diagram and declines to consider it in its construction of the
term.
109

‘360 Patent, Doc. 55-3, p. 26, col. 23, ll. 8-9.

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term should be given its ordinary and customary meaning, while ADM asserts that it should be
construed to mean a flour made using the wheat kernel, that is, the bran, the germ and the
endosperm, where the proportions of natural constituents in the wheat flour, other than moisture,
remain unaltered as compared to the wheat kernel.
ADM argues that its construction adopts the definition of “whole grain wheat flour” as
defined by FDA regulations and that the Patents’ specifications support the use of this definition
because they state “[i]n whole wheat flour (whole grain wheat flour), the proportions of natural
constituents in the wheat, other than moisture, remain unaltered as compared to the wheat
kernels.”110 ADM also asserts that during the prosecution of the ‘172 Patent, the inventors
repeatedly referenced the requirements of the FDA definition and thus the incorporation of the
definition into the claim language is appropriate.
ConAgra contends that ADM’s proposed language parrots and improperly narrows what
is already stated in the claim language. ConAgra points to the language of claim 1 of the ‘172
Patent, which requires that the whole grain wheat flour comprise “substantially the same
proportions of natural constituents, other than moisture, compared to a whole grain wheat
kernel.”111 ConAgra argues that ADM’s construction copies what is already stated in this
limitation and thus is redundant. It also argues that ADM’s construction improperly narrows the
term to require that natural constituents “remain unaltered” without the use of the term
“substantially.”
The Court declines to construe the term “whole grain wheat flour.” The term appears
consistently throughout the Patents’ claims and specification, is easily understood by laypersons,
110

‘172 Patent, Doc. 55-2, p. 15, col. 1, ll. 51-53; ‘360 Patent, Doc. 55-2, p. 15, col. 1, ll. 50-64.

111

‘172 Patent, Doc. 55-2, p. 26, col. 23, ll. 19-21.

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and thus requires no construction by the Court. Furthermore, as ConAgra asserts, ADM’s
construction is redundant and confusing. The claim language already requires that the whole
grain wheat flour have “substantially the same proportions of natural constituents, other than
moisture, compared to a whole grain wheat kernel”112 and thus, the inclusion of this language in
the term’s definition is unnecessary. Accordingly, the Court gives the term “whole grain wheat
flour” its ordinary and customary meaning.
IT IS ACCORDINGLY ORDERED that the disputed terms of the ‘172 Patent and the
‘360 Patent are construed as set forth in Order on this 5th day of June, 2013.
IT IS SO ORDERED.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

112

‘172 Patent, Doc. 55-2, p. 26, col. 23, l. 19-21; see also ‘360 Patent, Doc. 55-2, p. 26, col. 23, l. 15-16
(“substantially the same proportions of natural constituents, other than moisture, as the cleaned wheat kernels”).

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