Blazer v. Chrisman Mill Farms LLC

Filing 108

OPINION & ORDER: the Court preliminarily ADOPTS the preceding claim constructions. 1. The Court ADOPTS deadlines established in 26 at 6, 8(d), for expert discovery and dispositive motion practice. 2. parties file joint status report (not to exceed 3 pages) within 10 days. 3. The Court SETS ASIDE the DE 43, 10 private mediation limitation; 4. The Court DIRECTS the Clerk to assign this matter to an appropriate United States Magistrate Judge for this Division (MAS) for managing expert discovery and conducting a settlement conference. Signed by Judge Robert E. Wier on 4/17/2020.(STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
BRIAN ROBERT BLAZER, d/b/a
CARPENTER BEE SOLUTIONS,
Plaintiff,
v.
CHRISMAN MILL FARMS, LLC,
Defendant.

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No. 5:17-CV-430-REW
OPINION & ORDER

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Plaintiff Brian Blazer, a carpenter bee trap inventor and patentee, accuses Defendant
Chrisman Mill Farms (“CMF”) of selling (or at least attempting to sell) infringing traps. CMF,
among other counterclaims, seeks a judgment declaring its traps non-infringing or Blazer’s patents
invalid. The matter is currently before the Court for claim construction.
I.

BACKGROUND
Chief Judge Reeves, then assigned to this case, has ably summarized the factual backdrop:
Blazer owns U.S. Patent No. 8,375,624 (“the ’624 Patent[”]) which covers an insect
trap meant for carpenter bees. In December 2015, CMF began selling traps that
unknown to it allegedly infringed Blazer’s patent. In light of the allegations of
infringement, CMF obtained a license under the ’624 Patent and began selling traps
under the license on December[ ] 29, 2015. The duration of the agreement was one
year, ending in December 2016. Blazer sought to negotiate more favorable terms
for a new contract but was unsuccessful. As a result, the business relationship ended
and CMF designed a new trap which it believed did not infringe the ’624 Patent.
CMF notified Blazer of its intent to begin marketing the new trap[ ] and provided
Blazer the opportunity to object and provide reasons why he believed the new trap
infringed on his patent. From the record before the Court, it appears that Blazer
never articulated to CMF why the trap infringed his patent and instead filed this
suit.
Blazer contacted several online retailers in February 2017, alleging CMF’s new
trap infringed the ’624 Patent. He contacted Amazon and asserted that CMF’s new

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trap infringes the claims of the ’624 Patent, which caused Amazon to contact CMF
and notify it of the allegations. Amazon indicated to CMF that attempts to relist the
new trap prior to resolving the allegations of patent infringement may result in the
removal of CMF’s selling privileges on Amazon. In Blazer’s original infringement
contentions to Amazon, he wrongly indicated that the roof of the new trap extended
past the top of the trap to the shelter the entrance. He later amended his infringement
contentions to correctly note that the roof does not extend past the top and modified
his contentions further.
Blazer also contacted Etsy.com, Bonanzo.com, and Houzz.com, alleging that the
new trap infringes his patent. Subsequently, all of the retailors notified CMF of the
allegations and indicated any further attempt to relist the new trap prior to resolving
the allegations of patent infringement would result in the loss of selling privileges.
The ’624 Patent was reissued as RE46,421 [ ] on June 6, 2017. The reissue patent
retains claims 1-12 without amendment, and adds reissue claims 13-21. Blazer has
alleged that CMF’s trap infringes claims 1-4, 7-8, 10, 13-17, and 20-21 of the
patent.
DE 67 (Mem. Op. & Order) at 1–3 (internal citations omitted); see also DE 3-1 (‘624 Patent); DE
52-2 (RE46,421). For present purposes, the Court sees no need to detail the circuitous procedural
path this matter has taken (of which the parties and Court are well-familiar). The current operative
pleadings are Blazer’s Amended Complaint (DE 3), CMF’s Amended Counterclaims (DE 18), and
Blazer’s Counterclaim Answer (DE 23). Plaintiff pleads infringement of the ‘624 Patent (Count I)
and breach of contract (Count II). DE 3 at ¶¶ 37–55. Of the eight surviving1 counterclaims, three
of CMF’s declaratory judgment requests pertain to the current claim construction inquiry. CMF
seeks declarations that its “Wood Bee Gone” (Count 1) and “Wood Bee Gone II” (Count 2)
carpenter bee traps do not infringe either of Blazer’s patents and that both the ‘624 and RE46,421
patents are invalid or unenforceable (Count 3). DE 18 at ¶¶ 76–105.
Pursuant to Judge Reeves’s claim construction briefing schedule (DE 43 at 2), the parties
submitted a Joint Claim Construction Statement (DE 65) and exhaustively briefed the disputed

Judge Reeves dismissed CMF’s ninth counterclaim—which sought an inequitable-conduct-based
declaration of invalidity concerning RE46,421 (DE 18 at ¶¶ 161–164)—with prejudice. DE 67 at
7–8, 14.
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constructions. DE 68 (Blazer’s Opening Brief); DE 73-1 (Response); DE 77 (Reply); DE 90
(Surreply). The matter, now before the undersigned, stands ripe for review.
II.

APPLICABLE LAW
Claim Construction
Under the Patent Act, inventors seeking protection for their creations must provide a

specification containing:
[A] written description of the invention, and of the manner and process of making
and using it, in such full, clear, concise, and exact terms as to enable any person
skilled in the art to which it pertains, or with which it is most nearly connected, to
make and use the same, and shall set forth the best mode contemplated by the
inventor or joint inventor of carrying out the invention.
35 U.S.C. § 112, ¶ 1. Further, the specification must “conclude with one or more claims particularly
pointing out and distinctly claiming the subject matter which the [inventor] . . . regards as his
invention.” 35 U.S.C. § 112, ¶ 2. “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.’” Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (2005) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration
Systems, Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). For patent cases, as former Chief Judge Rich
put it: “The name of the game is the claim.”2
Accordingly, the Court must construe contested “material claim terms” to the extent
necessary to resolve the parties’ dispute, to provide an intelligible foundation for jury instructions
“should the case go to trial[,]” and to establish a basis for “meaningful appellate review.” AFG
Indus., Inc. v. Cardinal IG Co., 239 F.3d 1239, 1247 (Fed. Cir. 2001). “Claim construction is a
matter of resolution of disputed meanings and technical scope, to clarify and when necessary to

2

Giles S. Rich, The Extent of the Protection and Interpretation of Claims—American Perspectives,
21 Int’l Rev. Indus. Prop. & Copyright L., 497, 499 (1990).
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explain what the patentee covered by the claims, for use in the determination of infringement.”
U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). “The proper
construction of a patent’s claims is an issue” this Court resolves under “Federal Circuit law[.]”
Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129 (Fed. Cir. 2011).3
Unsurprisingly, claim construction begins “with the words of the claim.” Nystrom v. TREX
Co., 424 F.3d 1136, 1142 (Fed. Cir. 2005). The Court must typically assign claim terms the
“ordinary and customary meaning” they would have to “a person of ordinary skill in the art in
question” (a POSITA). Phillips, 415 F.3d at 1313; see id. (The relevant temporal lens is the “time
of the invention, i.e., . . . the effective filing date of the patent application.”).4 Two exceptions
pertain: “1) when a patentee sets out a definition and acts as his own lexicographer, or 2) when the
patentee [clearly and unmistakably] disavows the full scope of a claim term either in the
specification or during prosecution.” Unwired Planet, LLC v. Apple, Inc., 829 F.3d 1353, 1358
(Fed. Cir. 2016) (citation and quotation marks omitted).
In pursuit of the proper construction, context is key. See Markman v. Westview Instruments,
Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (Claims “must be read in view of the specification, of which
they are a part.”), aff’d, 116 S. Ct. 1384 (1996). “The specification acts as a dictionary when it
expressly defines terms used in the claims or when it defines terms by implication.” Vitronics
Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Thus, “the specification is

The Supreme Court’s ubiquitous Markman v. Westview Instruments, Inc. decision established
the proper division of labor for the “two elements of a simple patent case, construing the patent
and determining whether infringement occurred[.]” 116 S. Ct. 1384, 1393 (1996). “The first is a
question of law, to be determined by the court”; “[t]he second is a question of fact, to be submitted
to a jury.” Id. (citation and quotation marks omitted).
4
Id. (noting the “well-settled understanding that inventors are typically persons skilled in the field
of the invention and that patents are addressed to and intended to be read by others of skill in the
pertinent art.”).
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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.” Id.
Also in the category of so-called “intrinsic evidence[,]” the Court may “consider the
prosecution history of the patent[.]” Id. at 1582–83. This “complete record of all the proceedings
before the Patent and Trademark Office” (PTO), “is often of critical significance” as it may include
“express representations made by the applicant regarding the scope of the claims.” Id. at 1582.
However, “because the prosecution history represents an ongoing negotiation between the PTO
and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the
specification and thus is less useful for claim construction purposes.” Phillips, 415 F.3d at 1317.5
Last, the “prior art cited in a patent or cited in the prosecution history of the patent constitutes
intrinsic evidence.” Kumar v. Ovonic Battery Co., 351 F.3d 1364, 1368 (Fed. Cir. 2003).
“If upon examination of this intrinsic evidence the meaning of the claim language is
sufficiently clear, resort to ‘extrinsic’ evidence, such as treatises and technical references, as well
as expert testimony when appropriate, should not be necessary.” Digital Biometrics, Inc. v. Identix,
Inc., 149 F.3d 1335, 1344 (Fed. Cir. 1998). Indeed, “[r]elying on extrinsic evidence to construe a
claim is proper only when the claim language remains genuinely ambiguous after consideration of
the intrinsic evidence.” Interactive Gift Exp., Inc. v. Compuserve Inc., 256 F.3d 1323, 1332 (Fed.
Cir. 2001) (citation and quotation marks omitted) (collecting cases).6

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The record includes the prosecution history of the relevant patents at DE 18-2, 18-3 & 18-4. Only
CMF (and then, only once) seeks to leverage that history in support of its claim construction
argument. See DE 73-1 at 23 (citing DE 18-2 at 42).
6
But see id. (“Extrinsic evidence may always be consulted, however, to assist in understanding
the underlying technology.” Though it “may never be used for the purpose of varying or
contradicting the terms in the claims.” (citation and quotation marks omitted)).
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Ultimately, “[c]laim construction must begin and remain centered on the claim language.”
Skedco, Inc. v. Strategic Operations, Inc., 685 F. App’x 956, 959 (Fed. Cir. 2017). With that focus
in mind, the preceding framework guides the Court’s interpretive inquiry.
Infringement
To further set the stage for the claim construction analysis, a brief discussion of
infringement (a pillar of the underlying dispute) pertains. Per the Federal Circuit:
Infringement is defined in 35 U.S.C. § 271(a) as the unlicensed making, using, or
selling of a patentee’s claimed invention. Recognizing frailties of language and
limitations on human foresight, the law acknowledges that one may appropriate
another’s patented contribution not only with a product precisely described in a
patent claim (literal infringement) but also with a product that is not quite so
described but is in fact “substantially the same thing, used in substantially the same
way, to achieve substantially the same result” (doctrine of equivalents).
SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1123 (Fed. Cir. 1985). Thus, the
essential inquiry: “Does the accused product or process contain elements identical or equivalent to
each claimed element of the patented invention?” Warner-Jenkinson Co. v. Hilton Davis Chem.
Co., 117 S. Ct. 1040, 1054 (1997).
For purposes of infringement, “the claims of the patent, not its specifications, measure the
invention.” Smith v. Snow, 55 S. Ct. 279, 283 (1935). Thus, claim construction marks a critical
“first step” in any infringement analysis. Duncan Parking Techs., Inc. v. IPS Grp., Inc., 914 F.3d
1347, 1360 (Fed. Cir. 2019) (citation omitted). “The second step is comparing the properly
construed claims to the device accused of infringing.” Id. The burden of persuasion for
infringement (as well as non-infringement counterclaims) is the patentee’s. See Medtronic, Inc. v.
Mirowski Family Ventures, LLC, 134 S. Ct. 843, 849 (2014).
Notably, infringement requires proof of duplication or equivalence as to each element of
an independent claim. “One may infringe an independent claim and not infringe a claim

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dependent on that claim. The reverse is not true.” Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d
1546, 1552 n.9 (Fed. Cir. 1989). [A claim “presented in dependent form” refers back to and further
limits “another claim or claims in the same application.” 37 C.F.R. § 1.75(c). Such dependent
claims are “construed to include all the limitations of the claim incorporated by reference into the
dependent claim.” Id.]
With these principles in mind, the Court turns to the patents-in-suit.
III.

DISCUSSION
a. The Independent Claims
As Blazer acknowledges, “Claims 1-12 of the ‘624 Patent are identical to Claims 1-12 of

RE46,421.” DE 23 at ¶ 78.7 Thus, the Court will refer to RE 46,421, which fully incorporates,
expands on, and supersedes the ‘624 Patent, as the “Patent” for claim construction purposes. The
Patent recites two independent claims. The first claims:
1. A carpenter bee trap comprising:
a trap entrance unit forming a plenum being made of wood or a wood substitute;
said trap entrance unit having at least one hole drilled there-through and sized to
mimic a natural carpenter bee nest tunnel so as to provide a primary attractant;

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The USPTO, by granting the reissue, legally acknowledged that the claims added in RE 46,421
could (and should) have properly been included in the ‘624 Patent. See 35 U.S.C. § 251(a)
(authorizing reissue when a “patentee claim[s] . . . less than he had a right to claim in the patent”
but forbidding introduction of “new matter . . . into the application for reissue”); 37 C.F.R. §
1.176(a) (“A reissue application will be examined in the same manner as a non-reissue . . . and
will be subject to all the requirements of the rules related to non-reissue applications.”); Grant v.
Raymond, 31 U.S. 218, 244 (1832) (finding that a reissued patent is not “independent of the”
original, that “communication of the discovery to the public has been made” in the original patent
“with the intent to exercise a privilege which is the consideration paid by the public for the future
use of the machine[,]” and that “[i]f, by an innocent mistake, the instrument introduced to secure
this privilege fails in its object, the public ought not to avail itself of this mistake, and to appropriate
the discovery without paying the stipulated consideration”). On reissuance, the original patent is
effectively surrendered but “every reissued patent shall have the same effect and operation in law
. . . as if the same had been originally granted in such amended form[.]” 35 U.S.C. § 252.
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said hole extending from the outside of the trap unit to a plenum interior; said hole
being configured to extend substantially horizontally or at an upward angle; a
means to shelter an entrance to said hole is provided to reduce the admittance of
ambient light;
said trap unit further comprising a receptacle adapter being substantially located at
the bottom of said trap unit and being configured to receive a clear or translucent
receptacle;
a receptacle received by said adapter situated to allow ambient light to enter through
said bottom into said plenum interior, thereby providing a secondary attractant; said
receptacle further being provided to receive trapped bees.
DE 52-2 at col. 7, ll. 40–60 (Claim 1). The second claims:
13. A carpenter bee trap, comprising:
a trap entrance unit formed of wood or a wood substitute, wherein at least one side
of the trap entrance unit has at least one entrance hole that extends from outside the
trap entrance unit to an interior of the trap entrance unit, wherein the at least one
entrance hole extends substantially horizontally or at an upward angle with a size
and shape configured to provide a primary attractant for carpenter bees, and
wherein the trap entrance unit further comprises an exit opening for providing an
exit path from the interior of the trap entrance unit; and
a receptacle adapter located at the exit opening of the trap entrance unit, wherein
the receptacle adapter is adapted to receive at least one receptacle and is adapted so
as to allow at least some ambient light to enter the interior of the trap entrance unit
via the exit opening, thereby providing a secondary attractant for carpenter bees.
Id. at col. 8, ll. 24–41 (Claim 13). The Patent further recites eleven claims dependent on
independent Claim 1, and eight claims linked to independent Claim 13. See id. at col. 7, ll. 61–67
& col. 8, ll. 1–23 (Claims 2–12); id. at col. 8, ll. 42–67 & col. 9, ll. 1–2 (Claims 14–21). Plaintiff
alleged or alleges infringement of both independent and most dependent claims, excepting only
Claims 5–6, 9, 11–12, 18–19. See DE 56 at 3 (asserting Claims “1-4, 7-8, 10, 13-17 and 20-21”).
The claim terms are the foundational target of the present interpretive inquiry.

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b. The POSITA
To complete the claim construction footing, the Court must determine the appropriate lens
through which to read the claims. Because the “objective baseline” is “how a person of ordinary
skill in the art understands a claim term[,]” this inquiry boils down to a single question: Who is
the applicable POSITA? See Phillips, 415 F.3d at 1313. The patent-in-suit “relates to the general
field of flying insect traps and the specific field of carpenter bee traps.” DE 52-2 at col. 1, ll. 12–
13; see Phillips, 415 F.3d at 1313 (The POSITA provides the “starting point” because “inventors
are typically persons skilled in the field of the invention and . . . patents are addressed to and
intended to be read by others of skill in the pertinent art.”). Thus, the Court finds that the relevant
interpretive fountainhead is a person with working skill and knowledge of flying insect traps. Cf.
Eidos Display, LLC v. AU Optronics Corp., 779 F.3d 1360, 1361, 1365 (Fed. Cir. 2015) (defining,
for a patent “directed toward manufacturing processes for an electro-optical device such as liquid
crystal display (LCD)[,]” the POSITA as “someone with knowledge of LCD manufacturing”).
With the groundwork laid, the Court turns to the specific claim terms.
c. Terms Requiring No Construction
Initially, the Court addresses several claims that—though listed in the initial claim
construction statement (DE 65)—do not require Court construction. “Article III tribunals have no
jurisdiction to render [advisory] opinions.” Superior Indus., Inc. v. Masaba, Inc., 553 F. App’x
986, 989 (Fed. Cir. 2014). Thus, this Court lacks jurisdiction to construe claims if such
“construction does not affect the issue of infringement.” TomTom, Inc. v. Adolph, 790 F.3d 1315,
1322 (Fed. Cir. 2015). Again, the parties’ dispute encompasses, at most, claims 1–4, 7–8, 10, 13–
17, and 20–21 of RE46,421. DE 56 at 3. Claim 5, addressing a “receptacle [ ] configured to provide

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a friction fit with said bottom of said plenum,” is not in issue. DE 52-2 at 17; see also DE 65 at 7.
Thus, the Court declines an advisory construction of this element.
The parties agree that the phrase “receptacle is configured to be screwed into said bottom
of said plenum” (from Claim 4) needs no construction and that its “[p]lain and ordinary meaning
should prevail.” DE 73-1 at 26; see DE 68 at 17–18. Similarly, CMF does not challenge Blazer’s
contention that “with a size and shape configured to provide a primary attractant for carpenter
bees” (from Claim 13) “require[s] no construction.” DE 68 at 13.8 “Claim construction is a matter
of resolution of disputed meanings and technical scope, to clarify and when necessary to explain
what the patentee covered by the claims, for use in the determination of infringement.” U.S.
Surgical, 103 F.3d at 1568 (emphasis added). The Court’s construction duty hinges on the parties
presenting a “fundamental dispute regarding the scope of a claim term[.]” O2 Micro Int’l Ltd. v.
Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008); see id. (“[D]istrict courts are
not (and should not be) required to construe every limitation present in a patent’s asserted claims.”)
(emphasis in original); see also Polara Eng’g Inc v. Campbell Co., 894 F.3d 1339, 1352 (Fed. Cir.
2018) (“The court resolved the only dispute presented to it by adopting [defendant’s] proposal to
instruct the jury on plain and ordinary meaning.”). The Court, for now, sees no need to construe
these undisputed terms.
d. Agreed Definitions
The parties fully concur on definitions for four terms within the claims. See DE 65 at 3.
Per the Joint Claim Construction Statement:
1) “receptacle adapter” is “[a] connector for joining a receptacle to the trap”;

Plaintiff, replying, pointed out this evident waiver. See DE 77 at 3. Defendant’s surreply did not
dispute the point. See generally DE 90.
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2) “ambient light” is “[t]he light surrounding a trap”;
3) & 4) “entrance hole” and “entrance opening” both mean “[a] hole through which
carpenter bees enter the trap.”
Id. Notwithstanding the parties’ concurrence, the Court retains “an independent obligation to
determine the meaning of the claims[.]” Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d
1553, 1555 (Fed. Cir. 1995). The Court has fully reviewed the intrinsic evidence and finds the first
three agreed definitions reasonable and appropriate. However, the parties’ identical construction
of the distinct terms, “entrance hole” and “entrance opening,” gives the Court pause. See Chi. Bd.
Options Exch., Inc. v. Int'l Sec. Exch., LLC, 677 F.3d 1361, 1369 (Fed. Cir. 2012) (applying a
“general presumption that different [claim] terms have different meanings”).
The presumption that distinct usage connotes different meaning applies “[i]n the absence
of evidence to the contrary[.]” CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG, 224
F.3d 1308, 1317 (Fed. Cir. 2000). The specification—i.e. the “single best guide[,]” Vitronics, 90
F.3d at 1582—does not use “entrance opening” and “entrance hole” interchangeably. Indeed, the
‘624 Patent wholly omits the phrase “entrance opening,” see DE 3-1; it appears for the first time
in the final sentence (Claim 21) of RE46,421. See DE 52-2 at col. 9, ll. 1–2. Dependent Claim 21
describes an “entrance opening” by spatial reference to an “exit opening[.]” Id. The underlying
independent claim (13), provides for an “entrance hole that extends from outside the trap entrance
unit to an interior of the trap entrance unit . . . substantially horizontally or at an upward angle with
a size and shape configured to provide a primary attractant for carpenter bees[.]” Id. at col. 8, ll.
27–32. The specification teaches that carpenter bee nests “consist of tunnels ½ inch in diameter
and 6 to 10 inches deep” and notes that the “entrance” to such tunnels commonly “slope[s] upward”
and features a “near vertical opening[.]” Id. at col. 1, ll. 26–30.

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From the intrinsic evidence, the Court arrives at several conclusions. First, the claimed
“entrance hole” has a measurable if indeterminate length and extends from the exterior of the “trap
entrance unit” to the interior. Second, the “entrance hole” has both an entrance opening outside the
unit and a passage to the unit interior. Third, the “entrance opening” refers to a distinct portion of
the “entrance hole”; namely, the opening at the trap entrance unit face. Thus, to square the distinct
term with the agreed and reasonable “entrance hole” definition, the Court construes “entrance
opening” as the opening of the hole, at the trap entrance unit face, through which carpenter bees
enter the trap.
a. Disputed Constructions
Before analyzing the disputed terms, a few preliminary items. First, portions of CMF’s
briefing rely on the views of purported POSITA Timothy R. Pennington. See DE 73-1 at 10, 12,
15, 25 (discussing Pennington opinions); see also id. at 33 (Pennington Decl.). Judge Reeves
excluded that proof, and Judge Boom (also previously assigned to this matter) denied CMF’s
motion for reconsideration. DE 89 (Mem. Op. & Order excluding); DE 97 (Order denying
reconsideration). Accordingly, the Court omits substantive consideration of Pennington-linked
discussion. Second, Blazer spends much of its reply criticizing CMF’s response for arguing
constructions distinct from the joint-statement proposals. See, e.g., DE 77 at 2, 9, 11–17. Per
Blazer, this conduct violated Judge Reeves’s scheduling order. Id. at 2. CMF’s change in tack may
have violated the spirit of that order, but Judge Reeves did not expressly mandate a responsive
brief that hewed to the joint-statement proposals. More importantly, Blazer fails to identify any
authority suggesting that the Court may abdicate its construction duty and ignore a clearly
presented dispute on term scope “when a party does not comply with a scheduling order.” Steyr
Arms, Inc. v. Beretta USA Corp., No. 2:15-CV-1718-MHH, 2018 WL 1876345, at *5 (N.D. Ala.

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Apr. 19, 2018) (citing O2 Micro, 521 F.3d at 1362). Thus, the Court assesses the proposals
presented. Third, the Court notes that prior claim constructions (or, indeed, this Opinion) do not
unalterably fix the construction of claims for the full life of the matter. As the Federal Circuit has
recognized, “district courts may engage in a rolling claim construction, in which the court revisits
and alters its interpretation of the claim terms as its understanding of the technology evolves.”
Pfizer, Inc. v. Teva Pharm., USA, Inc., 429 F.3d 1364, 1377 (Fed. Cir. 2005).9 Thus, the Court
may, upon any appropriate basis, modify any prior constructions.
Means-Plus-Function Claiming
The parties dispute whether several Patent elements are so-called “means-plus-function”
claims under 35 U.S.C. § 112, ¶ 6.10 This provision allows:
patentees to express a claim limitation by reciting a function to be performed rather
than by reciting structure for performing that function, while placing specific
constraints on how such a limitation is to be construed, namely, by restricting the
scope of coverage to only the structure, materials, or acts described in the
specification as corresponding to the claimed function and equivalents thereof.
Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1347 (Fed. Cir. 2015) (en banc). For claim
construction purposes, the Court first determines whether § 112, ¶ 6 applies to a given limitation.
Several considerations pertain. First, the presence or absence of the word “means” creates a
rebuttable presumption. If a claim element references “means,” § 112, ¶ 6 presumptively applies;
the converse is also true. Williamson, 792 F.3d at 1348. Concerning rebuttal, absent the word
“means,” § 112, ¶ 6 “will apply if the challenger demonstrates that the claim term fails to recite

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See also Utah Med. Prods., Inc. v. Graphic Controls Corp., 350 F.3d 1376, 1381–82 (Fed. Cir.
2003) (finding no error in district court’s amendment of claim construction during oral arguments
for pretrial motions nearly two years after the original construction).
10
Paragraph 6 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.” Id.
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sufficiently definite structure or else recites function without reciting sufficient structure for
performing that function.” Id. (quotation marks and alterations omitted). Ultimately, “[t]he
standard is whether the words of the claim are understood by persons of ordinary skill in the art to
have a sufficiently definite meaning as the name for structure.” Id. at 1349. Put differently, “[w]hat
is important is not simply that [the relevant element] is defined in terms of what it does, but that
the term [used], as the name for structure, has a reasonably well understood meaning in the art.”
Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1583 (Fed. Cir. 1996).
—

“sized to mimic a natural carpenter bee nest tunnel”

CMF argues the following (bolded portion) from Claim 1 should be construed under the §
112, ¶ 6 mechanics: “at least one hole drilled there-through and sized to mimic a natural
carpenter bee nest tunnel so as to provide a primary attractant[.]” DE 52-2 at col. 7, ll. 44–46.
See DE 73-1 at 18–24. The relevant phrase does not use the word “means.” Thus, the contrary
presumption applies. For the following reasons, CMF’s rebuttal effort wholly fails.
The relevant structure is the “at least one hole[.]” CMF does not explain why a POSITA
might find this term insolubly indefinite. Defendant, though reciting the relevant standards at
length, offers less than a paragraph of case-specific argument on this topic. DE 73-1 at 22–23.
Essentially, CMF notes that the specification and prosecution history provide somewhat limited
examples concerning the parameters of a typical nest tunnel. See, e.g., DE 52-2 at col. 1, ll. 26–27
(“½ inch in diameter and 6 to 10 inches deep”). One problem: Defendant skipped the critical
analysis. CMF does not argue that a “hole,” as structure, lacks a “reasonably well understood
meaning” to a POSITA. Greenberg, 91 F.3d at 1583. The Court fails to see how additional clarity
concerning the size of the envisioned hole might flummox an insect-trapping artisan. Put

14

differently, a limitation on a well-known structural term does not render that term indefinite.11 The
presumption stands.
Alternatively, CMF argues that the Court should construe the “sized to mimic” language
as limiting the “hole” to a diameter between ½ and ¾ inches. DE 73-1 at 24. Defendant’s proposal
is far too limiting.
First, CMF’s interpretation violates the doctrine of claim differentiation by rendering
dependent Claim 7 superfluous. Though not a “hard and fast rule[,]” this doctrine erects “a
presumption that each claim in a patent has a different scope.” Comark Commc’ns, Inc. v. Harris
Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998). Claim 7 explicitly limits the Claim 1 trap to one with
a hole diameter “between ½ inch to ¾ inch.” DE 52-2 at col. 8, ll. 7–8. Thus, CMF’s reading of
the “sized to mimic” limit would make Claim 7 hollow. Defendant fails to justify such a
“disfavored” construction. CytoLogix Corp. v. Ventana Med. Sys., Inc., 424 F.3d 1168, 1173 (Fed.
Cir. 2005).12

See TEK Glob., S.R.L. v. Sealant Sys. Int’l, Inc., 920 F.3d 777, 786 (Fed. Cir. 2019) (finding that
dependent claims which added “limitations that either describe particular structural features or
flesh out whether the term has a particular structural meaning” indicate that “§ 112, ¶ 6 does not
govern”); Phillips, 415 F.3d at 1311 (finding § 112, ¶ 6 treatment of “steel baffles” in the phrase
“means disposed inside the shell for increasing its load bearing capacity comprising internal steel
baffles extending inwardly from the steel shell walls” inappropriate as the claim recited sufficiently
definite structure).
12
CMF argues that the prosecution history “defines the hole of claim 1 as having a diameter
between ½ inch and ¾ inch.” DE 73-1 at 23. Defendant’s reading of the cited history is incomplete.
The relevant statement is characterizing the hole described “in claims 1 and [then] 13[.]” DE 182 at 42 (emphasis added). What was claim 13 at that stage of the prosecution became Claim 7 in
the patents-in-suit. See DE 18-2 at 39. Essentially, the cited verbiage amounts to little more than a
statement that the Claim 1 trap as limited by current Claim 7 would have at least one entrance hole
between ½ and ¾ inches in diameter. That remains true, and undisputed. The Court finds no novel
interpretive value in the subject statement. See Grober v. Mako Prod., Inc., 686 F.3d 1335, 1341
(Fed. Cir. 2012) (“[T]he doctrine of prosecution disclaimer only applies to unambiguous
disavowals.”); Netcraft Corp. v. eBay, Inc., 549 F.3d 1394, 1401 (Fed. Cir. 2008) (concluding that
“the cited prosecution history . . . lacks the clarity of the specification regarding the meaning of
the claim terms at issue here, thus rendering it less useful for claim construction purposes”).
11

15

Second, “when a claim term is expressed in general descriptive words,” courts do not
“ordinarily limit the term to a numerical range that may appear in the written description or in
other claims.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir.
1998). However, this rule bears exceptions. Amazin’ Raisins Int’l, Inc. v. Ocean Spray
Cranberries, Inc., 306 F. App’x 553, 557 (Fed. Cir. 2008). And, in any event, the Court finds it
only partly applicable here. The “mimic” modifier is key. This is a general descriptive word that
forecloses, in the Court’s view, the type of exacting numerical construction that CMF posits. That
said, the Court finds “natural carpenter bee tunnel” non-general and necessary to construe.13
The Patent pegs typical tunnel diameter at half an inch. DE 52-2 at col. 1, ll. 26. The
specification-cited prior art estimates nest tunnel diameters ranging from 5∕16 to ¾ inches. See
Electronic Carpenter Bee Trap, U.S. Patent No. 7,757,432 col. 1, ll. 22–23 (filed Jul. 9, 2006)
(hereinafter “Gunderman Patent”) (“The carpenter bees bore a hole of up to ¾ inch in
diameter[.]”); Carpenter Bee Trap, U.S. Patent No. 6,766,611 col. 1, ll. 34–37 (filed March 27,
2001) (hereinafter “Prince Patent”) (describing a “hole having about the same size as holes
normally made by carpenter bees” as ranging “from about 5∕16 inch”).14 The Court finds that these

The Court is cognizant of dueling construction canons: “(a) one may not read a limitation into a
claim from the written description, but (b) one may look to the written description to define a term
already in a claim limitation, for a claim must be read in view of the specification of which it is a
part.” Renishaw, 158 F.3d at 1248. Inherent ambiguity in the concept of a “natural carpenter bee
nest tunnel” requires resort to the intrinsic evidence to divine that term’s meaning. Further, given
the “sized” antecedent, the Court finds that a sound construction necessitates reference to some
specific figures. [The Court might, at the bottom-end of the range, construe the term as requiring
a hole large enough to permit entry of a carpenter bee. But such an interpretation would likely
import even greater ambiguity. Relevant questions might include: What age carpenter bee? How
large, exactly, is a carpenter bee?]
14
The specification cites each of these prior art references. See DE 52-2 at 2–3. “When prior art
that sheds light on the meaning of a term is cited by the patentee, it can have particular value as a
guide to the proper construction of the term, because it may indicate not only the meaning of the
term to persons skilled in the art, but also that the patentee intended to adopt that meaning.” Arthur
A. Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042, 1045 (Fed. Cir. 2000).
13

16

intrinsic evidentiary teachings approximate what a POSITA would come up with for a “natural
tunnel” baseline range, prior to evaluating the flexible “mimic” modifier.
Thus, the Court construes “hole . . . sized to mimic a natural carpenter bee nest tunnel” as
a hole sized to mimic a natural carpenter bee tunnel, with a diameter of around 5∕16 to ¾ inches.15
—

“hole . . . configured to extend substantially horizontally or at an upward
angle”

Next, CMF ineffectively seeks to inject complexity into a straightforward holeconfiguration limitation. DE 73-1 at 24–25. Per Defendant, “substantially horizontally” and “at an
upward angle” are mutually exclusive geometries. Id. at 25. The Court disagrees. A hole drilled
with 5° upward slope—an option the specification expressly contemplates, see DE 52-2 at col. 6,
ll. 38–40—is a configuration both substantially horizontal and at an upward angle. Both parties
agree that the plain and ordinary meaning to a POSITA controls. Further, the solid-block
embodiments (DE 52-2 at Figs. 3 & 5) feature a tunnel-type plenum formed by entrance holes that
may extend both, depending on the interval, at an upward angle and substantially horizontally.
The Court finds no basis for a definition that excludes anything other than holes extending (from
the exterior) at a substantially downward angle.16 Liquid Dynamics Corp. v. Vaughan Co., 355

Prior art observes that a “manmade hole” sized from “about 5∕16 to 7∕8 inch . . . would entice a
carpenter bee[.]” Gunderman Patent at col. 2, ll. 65–68. A predecessor trap patentee—after noting
the critical importance of the “shape of the entry hole” for “effectiveness”—specified an entry hole
with a diameter “from about ¼ inch to about 1 inch.” Id. at col. 3, ll. 31–32. However, RE46,421
does not provide for explicit boundaries concerning the potential size range for valid mimicry.
Thus, the Court finds it appropriate to retain the flexibility inherent in the “mimic” term. Further,
the use of “around” in this construction respects the patentee’s choice not to explicitly limit the
tunnel diameter. See Skedco, 685 F. App’x at 959 (“Absent a clear disavowal or lexicography by
a patentee, however, he or she is free to draft a claim broadly and expect the full claim scope.”);
Abbott Labs. v. Baxter Pharm. Prod., Inc., 471 F.3d 1363, 1368 (Fed. Cir. 2006) (declining to
construe a “phrase with numerical exactitude” when such precision was unnecessary to resolve the
parties’ dispute).
16
In Acumed LLC v. Stryker Corp.—after the district court defined the term “curved shank” as a
“shank that has a bend or deviation from a straight line without sharp corners or sharp angles[,]”
15

17

F.3d 1361, 1368 (Fed. Cir. 2004) (“The term ‘substantial’ is a meaningful modifier implying
‘approximate,’ rather than ‘perfect.’”); Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc.,
340 F.3d 1298, 1310–11 (Fed. Cir. 2003) (“[W]ords of approximation, such as ‘generally’ and
‘substantially,’ are descriptive terms commonly used in patent claims to avoid a strict numerical
boundary to the specified parameter.” (some quotation marks omitted)).
Defendant, based in part on the failed mutual exclusivity theory, also argues that because
the specification discloses only holes drilled at a constant angle, the claim must be construed to
include that restriction. DE 73-1 at 25. The Court sees no support in the claim for the proposed
“linear” hole limit and thus declines to read in the unclaimed constraint. See Acumed, 483 F.3d at
805 (rejecting “an attempt to import a feature from a preferred embodiment into the claims.”). [For
one example, a “substantially horizontal” hole might be, in part, wholly horizontal and, in part,
upward sloping.] Thus, the Court concludes that “configured to extend substantially horizontally
or at an upward angle” means configured to extend at an angle not materially downward.17
—

“means to shelter an entrance to said hole is provided to reduce the
admittance of ambient light”

The parties broadly agree that this is a means-plus-function claim. Given the presumptive
effect of “means” usage, and on this record, the Court agrees. The parties’ proposed constructions
otherwise diverge.

483 F.3d 800, 804 (Fed. Cir. 2007) (quotation marks omitted)—the Federal Circuit rejected the
Defendant’s argument that failure to define “how ‘sharp’ is too sharp” rendered the “construction
insufficiently definite[.]” Id. at 806. “[A] sound claim construction need not always purge every
shred of ambiguity.” Id. Per Acumed, any imprecise zone of the lower court’s (“correct”)
construction was irrelevant because the there was “no danger” of the accused infringing product
“falling within that area.” Id.
17
Cf. Playtex Prod., Inc. v. Procter & Gamble Co., 400 F.3d 901, 907 (Fed. Cir. 2005) (“The
district court mistakenly assumed that a surface having less curvature than another surface is
necessarily curved, and cannot be flat.”).
18

CMF insists that separately construing “entrance to said hole” is a necessary predicate for
a sound construction of the § 112 claim. See DE 73-1 at 13–14. Defendant raises the fair point that
“entrance hole” and “entrance to said hole” should not be construed synonymously (this was, of
course, the Court’s view on “entrance hole” and “entrance opening”). See Chi. Bd. Options Exch.,
677 F.3d at 1369 (applying a “general presumption that different [claim] terms have different
meanings”). CMF argues that, the purpose of using “entrance” in the “claim phrase “entrance to
said hole”” is to describe “that the hole has an entrance.” DE 73-1 at 14. The Court agrees, as a
matter of fact and logic, that part of the claimed “hole” is an “entrance.” See id. However, the
Court differs as to CMF’s follow-on claim that the entrance “must be construed to be a separate
structure from the” hole. Id. at 15 (emphasis added); cf. Skedco, 685 F. App’x at 959–60 (“In
short, we agree with the district court that a ‘pump’ is not a ‘valve,’ but nothing in the claims or
specification prohibits a valve from residing within a pump.”).
Tellingly, Defendant’s own argument belies the theory. CMF asserts that the hole “has an
entrance.” Id. at 14 (emphasis added). As that contention suggests, the described entrance is part
of the hole.18 Further, CMF’s interpretation of the full claim phrase demonstrates the absurd result
of its unduly convoluted reading of “entrance to said hole.” CMF reads the phrase “means to shelter
[an] entrance to said hole is provided to reduce the admittance of ambient light” as requiring “a
structure that can prevent light from entering the entrance hole through the entrance to the
entrance hole.” DE 73-1 at 16 (emphasis added). The Court sees no evidence counseling such a
tortured construction. Schoenhaus v. Genesco, Inc., 440 F.3d 1354, 1357 (Fed. Cir. 2006)

The Court further notes the inconsistency between CMF’s agreement regarding the
interchangeability of “entrance hole” and “entrance opening” and its theory regarding “entrance
to said hole.” The Court rejected the parties’ agreement on that topic, but CMF’s insistence
regarding structural separateness of the “entrance” remains logically incompatible with failure to
press for a like construction of “opening.”
18

19

(rejecting a proposed construction that would have rendered the claim “nonsensical”). Defining a
portion of a given structure as an entirely distinct structure is neither plain nor ordinary. See
Skedco, 685 F. App’x at 959 (assigning error to construction of “‘at least one valve in fluid
communication with said pump’ to require the pump and valve to be physically separate
structures”). The claim text, supported by the full specification, shows that the “entrance” is a subpart of the hole. Specifically, the portion of the hole extending from “the outside of the trap[.]” See
DE 52-2 at col. 7, ll. 47–48 (describing a hole “extending from the outside of the trap unit to a
plenum interior” (emphasis added)).
Further, two pieces of intrinsic evidence convince the Court that the “entrance to said hole”
is a subsection of the “entrance hole” with measurable length. First, the specification describes the
“entrance hole” as itself serving the relevant sheltering function. See id. at col. 5, ll. 29–30 (“[T]he
sheltered entrance hole also prevents ambient light from directly entering the entrance hole[.]”).
CMF’s view of the “entrance” as limited to the infinitesimal boundary between the trap and its
surroundings is thus inconsistent with the specification. Why? Under Defendant’s construction of
“entrance,” the hole could not perform the sheltering function because the entrance hole “does not
lie between the ambient light and” its own threshold. DE 73-1 at 16. Again, the specification
envisions the angular roof of the entrance hole itself acting to shelter its “entrance.” See, e.g. DE
52-2 at col. 6, ll. 38–41 (describing upward sloping bores “to provide sheltered entrance holes”);
id. at ll. 52–54 (same). The fact that CMF’s construction would read out specification-identified
sheltering structures strongly indicates that the defense’s interpretation is incorrect. See Accent
Packaging, Inc. v. Leggett & Platt, Inc., 707 F.3d 1318, 1326 (Fed. Cir. 2013) (“[A] claim
interpretation that excludes a preferred embodiment from the scope of the claim is rarely, if ever,

20

correct.” (citation and quotation marks omitted));19 Oatey Co. v. IPS Corp., 514 F.3d 1271, 1276–
77 (Fed. Cir. 2008) (“At leas[t] where claims can reasonably [be] interpreted to include a specific
embodiment, it is incorrect to construe the claims to exclude that embodiment, absent probative
evidence on the contrary.”).20
Second, the specification describes bees as still “entering” the entrance hole while inside
the hole and able to perceive overhead light within the trap plenum. See id. at col. 6, ll. 14

CMF notes an exception to this general principle for “unambiguous” claim language. See DE
73-1 at 16 (citing Lucent Techs., Inc. v. Gateway, Inc., 525 F.3d 1200, 1215 (Fed. Cir. 2008)).
However, this is hardly a circumstance where “claim language expressly requires” CMF’s
proposed limitation with no contraindication in the specification. See Lucent, 525 F.3d at 1216.
Even if “entrance to said hole” could be described as unambiguous—a dubious premise in the
context of confounding proximate claim elements like “entrance hole” and “entrance opening”—
that phrase certainly does not manifestly compel the interpretation Defendant poses. Ultimately,
this element is, in the Court’s view, hardly perspicuous; thus, the general presumption favoring
construction consistent with embodiments persists.
20
CMF also tries to make hay with the Patent’s casting of the trap entrance unit as “preferably
hollow[.]” DE 52-2 at col. 3, ll. 39–41. Per Defendant, this means the solid-block configurations
depicted in Figures 3a–5c are not “preferred” embodiments. See DE 73-1 at 19. This theory does
not advance CMF’s interpretive aims. First, Defendant cites no supportive precedent. Second, the
argument ignores (A) the patentee’s prefacing disclaimer, see DE 52-2 at col. 2, ll. 34–42, (B) the
description of the figures as depicting 5 coequal “embodiment[s] of a carpenter bee trap according
to the present invention[,]” id. at col. 4, ll. 15–40, and (C) that inclusion of a drawing (given the
effort necessary) is, itself, some persuasive evidence that an embodiment is preferred. Outside the
Box Innovations, LLC v. Travel Caddy, Inc., 695 F.3d 1285, 1310 (Fed. Cir. 2012) (Newman, J.,
concurring) (“The patent drawings illustrate the invention, and generally represent preferred
embodiments of the invention.”) (citing Primos, Inc. v. Hunter’s Specialties, Inc., 451 F.3d 841,
848 (Fed. Cir. 2006)). Third, an inventor may describe multiple preferred embodiments. Gillette
Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1371 (Fed. Cir. 2005) (“Nevertheless, a patentee
typically claims broadly enough to cover less preferred embodiments as well as more preferred
embodiments, precisely to block competitors from marketing less than optimal versions of the
claimed invention.”). Fourth, even if a solid-block construction is somewhat “less preferred,” the
Federal Circuit has not strictly limited the presumption against reading out disclosed embodiments
to configurations with a “preferred” label explicitly attached. See, e.g., Oatey, 514 F.3d at 1276–
77 (“We normally do not interpret claims in a way that excludes embodiments disclosed in the
specification.”); Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1305 (Fed. Cir.
2007) (same). Last, Figure 1 (which CMF accepts as preferred) likewise, and consistent with the
Court’s reading, includes an upward angled “sheltered entrance hole[.]” DE 52-2 at col. 5, ll. 29–
30 & Figs. 1A, 1B; see also id. at col. 2, ll. 49–51 (“the roof of the trap entrance unit . . . provides
added shelter” (emphasis supplied)).
19

21

(describing “bees entering entrance hole 31 are immediately attracted by the light” reflected
upward into the trap plenum from the exit opening). That is, the written description treats the
“entrance” as a portion of the entrance hole’s passage where bees can be (physically); sort of an
apian threshold or vestibule.21 This too contradicts CMF’s conception of a hairline, liminal
“entrance.” Vitronics, 90 F.3d at 1582 (The specification is usually “dispositive; it is the single
best guide to the meaning of a disputed term.”).
Based on the intrinsic record, the Court finds that the “entrance to said hole” is a segment
of the “entrance hole.” Accordingly, the Court construes “entrance to said hole” as the portion of
the entrance hole around the trap entrance unit face, through which carpenter bees enter the trap.22
Next, the Court turns to construction of the full § 112, ¶ 6 claim: “means to shelter an
entrance to said hole is provided to reduce the admittance of ambient light[.]” DE 52-2 at col. 7,
ll. 50–51. Per the Federal Circuit:
The first step in construing such a limitation is a determination of the function of
the means-plus-function limitation. The next step is to determine the corresponding
structure described in the specification and equivalents thereof.
Medtronic, Inc. v. Advanced Cardiovascular Systems, Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001).
In determining function, the Court must hew to the claim language. The construction must neither
narrow function beyond the claim terms nor ignore clearly included limitations. Lockheed Martin

Cf. DE 52-19 (Windsor Patent App.) at 9, col. 2 (“Entryways for the insects are created that
extend from either a side surface or front surface of the wood-boring insect trap to the longitudinal
passage.” (emphasis added)); DE 52-2 at col. 2, ll. 14 (describing the Windsor Application as
featuring “entry hole geometry that closely mimics natural carpenter bee nest holes”).
22
See Eon Corp. IP Holdings v. Silver Spring Networks, 815 F.3d 1314, 1318 (Fed. Cir. 2016)
(“[A] court need not attempt the impossible task of resolving all questions of meaning with
absolute, univocal finality. Such an endeavor could proceed ad infinitum, as every word—whether
a claim term itself, or the words a court uses to construe a claim term—is susceptible to further
definition, elucidation, and explanation.”); cf. Abbott Labs, 471 F.3d at 1368 (declining to construe
a “phrase with numerical exactitude” when such precision was unnecessary to resolve the parties’
dispute).
21

22

Corp. v. Space Sys./Loral, Inc., 324 F.3d 1308, 1319 (Fed. Cir. 2003). The parties’ proposals
diverge. Per Blazer, the function is “to shelter an entrance to said hole.” DE 77 at 11. Per CMF,
the function is “to reduce the amount of light entering the entrance hole through its entrance.” DE
73-1 at 13. The Court lands in the middle. Blazer’s proposal would “improperly broaden[ ] the
scope of the claimed function by ‘reading out’ [a] limitation[ ] contained in the claim language.”
Lockheed Martin Corp., 324 F.3d at 1319. Clearly, the relevant function is not shelter from just
anything (e.g., shelter from precipitation where a translucent shield might do). Rather, the shelter
must reduce admittance of ambient light. Per the specification, this is the purpose of the shelter
and the function it must serve.
On the other hand, CMF’s proposed reading—premised on its rejected interpretation of
“entrance to said hole”—is unduly restrictive. Defendant proposes a locational limit on the ambient
light reduction that the claim does not include. Micro Chem., Inc. v. Great Plains Chem. Co., 194
F.3d 1250, 1258 (Fed. Cir. 1999) (“The statute does not permit limitation of a means-plus-function
claim by adopting a function different from that explicitly recited in the claim.”). Essentially, CMF
reads the claim as: Means to shelter is provided to reduce admittance of ambient light passing
directly through the entrance opening. That is not the function claimed. The element requires a
structure that shelters the entrance to reduce admittance of ambient light. There is no express
limitation on the locus or trajectory for such reduction.23 It may well be that a structure that shelters

The specification does include a line that “the sheltered entrance hole also prevents ambient
light from directly entering the entrance hole[.]” DE 52-2 at col. 5, ll. 29–31. However, this oneoff remark, describing a single embodiment, hardly amounts to an act of controlling lexicography.
“To act as its own lexicographer, a patentee must clearly set forth a definition of the disputed claim
term other than its plain and ordinary meaning.” Thorner v. Sony Computer Entm’t Am. LLC, 669
F.3d 1362, 1365 (Fed. Cir. 2012) (citation and quotation marks omitted); see also id. at 1366
(“[E]ven where a particular structure makes it ‘particularly difficult’ to obtain certain benefits of
the claimed invention, this does not rise to the level of disavowal of the structure. It is likewise not
enough that the only embodiments, or all of the embodiments, contain a particular limitation. We
23

23

the entryway to reduce admittance of ambient light will reduce admittance directly through the
entryway. However, the Court sees no basis for reading an unclaimed spatial or directional
limitation into that function. See Skedco, 685 F. App’x at 959 (“Absent a clear disavowal or
lexicography by a patentee, however, he or she is free to draft a claim broadly and expect the full
claim scope.”); Pisony v. Commando Constr., Inc., No. W-17-CV-00055-ADA, 2019 WL 928406,
at *4 (W.D. Tex. Jan. 23, 2019) (“The Court finds that Defendants are improperly attempting to
add a directional limitation to Claim 1 that is unnecessary to properly construe this claim term.”).
The Court construes the function simply as sheltering the entrance to reduce the admittance of
ambient light.
The role of light is important to the efficacy of the trap, and the entrance hole design
supports that role. The carpenter bee uses ambient light to navigate. See DE 52-2 at col. 2, ll. 66–
67. Per the specification and Patent text, the hole geometry and design first draw the bee to the
trap. Once in the entrance hole, the relative, brightening light in the plenum (coming from the exit
side) draws the bee through the plenum toward the receptacle—the darker entrance yields to the
attraction of the brighter exit. “[I]nsects entering the trap follow a path of increasing intensity of
ambient light that leads them to the receptacle.” DE 52-2 at 2 (abstract); see also id. at col 2, ll.
61–62 (noting comparatively greater light from receptacle as “admitted in excess of other sources
of light within the trap entrance unit plenum”). The reverse is true. When the bee is in the plenum

do not read limitations from the specification into claims; we do not redefine words.”). Thus, plain
and ordinary meaning controls, and the subject, localized statement likewise fails to persuade the
Court that a POSITA would read the relevant claim (addressed to “ambient (i.e., surrounding)
light” reduction) as inherently limited to direct entry. Cf. ACTV, Inc. v. Walt Disney Co., 346 F.3d
1082, 1088, 1090–91 (assigning error to district court’s limiting of “means for receiving . . .
uniform resource locators” to “absolute URLs” where “the written descriptions . . . lack[ed] an
indication of the patentee’s clear intent to limit the term” in that fashion and surrounding claim
terms suggested a broader interpretation).
24

or receptacle, it does not try to backtrack because the ambient light around the receptacle is brighter
than the darkness of the plenum and the entrance to the entrance hole. Id. at col. 3, ll. 1–3 (“[B]ees
. . . only try to escape through the transparent walls of the receptacle and do not attempt to return
to the dimly lit trap entrance unit plenum.”). This illustrates the importance of the sheltered
entrance hole. As the specification well describes, the “sheltered entrance hole [ ] prevents ambient
light from directly entering the entrance hole and bees within the trap will not identify the entrance
hole as an exit.” Id. at col. 5, ll. 29–32. The point of the sheltering is reduction of light admittance
into the trap entrance unit. The Patent designs the passage to be one-way; the bee enters the
entrance hole and “never leave[s]” through the trap entrance. See The Eagles, Hotel California
(Asylum Records 1976).
Next, the Court must “identify the structure described within the specification as
performing the claimed function.” Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316,
1324 (Fed. Cir. 2001). Several corresponding structures apply. However, given the alleged
infringing products “Wood Be Gone I & II” (see DE 3-2 at 1 & 3-4 at 1), and CMF’s concessions
as to claim scope,24 the Court finds only limited construction necessary for purposes of this dispute.
Essentially, the Court must determine whether the specification describes the ceiling of the
entrance hole as a structure that performs the claimed function. Here, the written description and
attached drawings obviously identify that structure as, in some embodiments, performing the
sheltering role. See, e.g., DE 52-2 at figs. 4B & 5B. Nonetheless, CMF contends that the “walls”
of the hole “cannot be the means to shelter because the hole does not lie between the entrance and

CMF acknowledges that both a “roof overhanging the face of the trap having an entrance to an
entrance hole” and a trap body, as described in Figure 4B, that “shelter[s] the entrance to the hole
from the admittance of ambient light because the sides of the trap entrance unit that possess holes
are tapered toward the bottom of the trap by angle β” fall within the claim scope. DE 73-1 at 13,
18.
24

25

the ambient light[.]” DE 73-1 at 18 (emphasis in original). Defendant is mistaken. The primary
flaw in CMF’s analysis stems from reliance on its unduly restrictive “entrance to said hole”
construction. Nonetheless, assuming CMF would press the argument notwithstanding the
“entrance” construction adopted, the Court would reject it for three reasons.
First, Defendant’s basic claim is, given prior constructions, factually and logically inapt.
Consider a drinking straw, comprising a hole25 with opaque plastic boundaries; such “walls”
(whether deemed part of the hole or part of the straw) surely serve to reduce admission of ambient
light to the straw’s interior. Second, CMF seeks to distinguish the substance of the entrance hole’s
circumference from the body of the trap unit. Yet, it is the trap body that forms the boundaries of
the entrance hole. Put differently, there could be no entrance hole without the trap “walls,” but
such “walls” are part of the trap entrance unit, not the entrance hole. Third, Defendant ignores that
the claim calls for a shelter that “reduce[s]” ambient light admission; it does not require a structure
that entirely blocks light. See, e.g., DE 52-2 at col. 3, ll. 3–4 (describing a “dimly lit trap entrance
unit plenum”) (emphasis added); id. at col. 5, ll. 29–31 (“[T]he sheltered entrance hole also
prevents ambient light from directly entering the entrance hole[.]”) (emphasis added). All this is
to say that the Court sees no (evidentiary or logical) reason why the “walls”—i.e., the trap unit
exterior panel containing the subject entrance hole—“cannot be the means to shelter[.]” DE 73-1
at 18. Indeed, Figure 4B and the related written description provide for just that. See DE 52-2 at
col. 6, ll. 36–40 (“The end surfaces of trap entrance unit 4 are cut at angle a between 10 and 60
degrees from vertical and bores 42 are made at angle b between 5 and 90 degrees from horizontal
to provide sheltered entrance holes 41.”); compare also id. at col. 2, ll. 46–49 (“The upward sloping

25

Per at least one mathematician, only one hole. See Kevin Knudson, Drinking Straws: How Many
Holes?, Forbes (Jan. 29, 2018, 3:55 p.m.), https://www.forbes.com/sites/kevinknudson/2018/01/2
9/drinking-straws-how-many-holes/#2641ddfd74d1.
26

entrance mimics the preferred entrance style of a natural bee nest while reducing the amount of
ambient light entering the entrance hole.”), with id. at ll. 49–51 (describing an overhanging roof
as providing “added shelter”). The specification as to Figure 5 continues this theme: “As depicted
in FIG. 5b, entrance holes 511 are bored at angle b between 10 and 60 degrees from horizonal to
provide sheltered entrance holes.” Id. at col. 66, ll. 52–54. The sheltering (the reduction in
admittance of ambient light) comes from the configuration and angled bore of the hole itself, which
thus is a specified structure in the Patent. The claim and specification well support this
construction.
The corresponding structure for performing the claimed function26 includes, with reference
to hole geometry, bores made at an angle between 5 and 90 degrees from horizontal and
equivalents.
—

“means to mount”

The parties’ joint-statement proposals for § 112, ¶ 6 construction of the Claim 10 & 11
term “means to mount” substantially aligned. See DE 65 at 7–8. The sole exception was CMF’s
desire to include “summary language at the beginning of its proposed construction.” See DE 68 at
9. Defendant withdrew its request for such a preamble. See DE 73-1 at 27. The Court finds Blazer’s
proposal consistent with the intrinsic evidence and § 112, ¶ 6 principles. See DE 65 at 7–8.27 Thus,
the Court construes the relevant function as to mount the trap and—finding that the structures

26

Again, sheltering the entrance to reduce the admittance of ambient light.
The Court notes that Defendant’s response, though stating that the “Parties appear to essentially”
agree, offers a revised function and proposed structure listing for this term. Compare DE 65 at 7–
8, with DE 73-1 at 27. CMF offers no argument to support a shift from the previously agreed
means-plus-function construction (as to either the modified function definition or corresponding
structures). As the Court previously stated, the defense was free to modify its proposed
construction. However, the opportunity for revision did not relieve CMF of the duty to explain the
basis for its proposal. The Court sees none. Indeed, the full specification supports Blazer’s
proposal, which precisely tracks the various mounting structures identified in the specification.
27

27

identified in Blazer’s initial construction accurately map the corresponding Patent structures—
adopts Plaintiff’s proposed structure listing. See id.
—

“wood or a wood substitute”

Plaintiff initially argued that “wood substitute” is properly understood as “synthetic wood.”
See DE 65 at 4. Defendant countered that wood substitute means “a non-wood organic material
which is similar to wood.” Id. Blazer’s opening brief noted amenability to CMF’s construction
with one exception. DE 68 at 3. Plaintiff argued there was no basis for importing an “organic”
limitation not found in the specification. Id. CMF’s response shifted gears to argue that the “wood
substitute” claim was indefinite.
Section 112, ¶ 228 sets the definiteness requirement:
[W]e read § 112, ¶ 2 to require that a patent’s claims, viewed in light of the
specification and prosecution history, inform those skilled in the art about the scope
of the invention with reasonable certainty. The definiteness requirement, so
understood, mandates clarity, while recognizing that absolute precision is
unattainable. The standard we adopt accords with opinions of this Court stating that
the certainty which the law requires in patents is not greater than is reasonable,
having regard to their subject-matter.
Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129 (2014) (citation and quotation
marks omitted). To invalidate a claim under this theory, a challenger must clearly and convincingly
prove indefiniteness. Sonix Tech. Co. v. Publications Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir.
2017); see also 35 U.S.C. § 282, ¶ 1 (“A patent shall be presumed valid. . . . The burden of
establishing invalidity of a patent or any claim thereof shall rest on the party asserting such
invalidity.”).

35 U.S.C. § 112, ¶ 2 (“The specification shall conclude with one or more claims particularly
pointing out and distinctly claiming the subject matter which the inventor or a joint inventor
regards as the invention.” (emphasis added)).
28

28

CMF fails in its burden and does not show that the intrinsic evidence would insufficiently
guide a POSITA regarding the scope of the “wood substitute” claim. First, the Court notes, again,
that CMF itself initially found the term sufficiently definite to provide a proposed definition. See
DE 65 at 4.29 The specification provides direction for a POSITA seeking an effective substitute.
See DE 52-2 at col. 1, ll. 44–46 & 59 (“Sound, undecayed wood without paint or bark is usually
selected for nests. . . . They avoid most harder woods.”); id. at col. 3, ll. 46–47 (“[T]he trap entrance
unit may be made from a solid piece of wood or similar material[.]”); id. at 2 (providing that the
plenum-forming material should admit less ambient light than the receptacle);30 see also Prince
Patent at col. 1, ll. 39–43 (“The exterior surface of the solid wall around the hole preferably has a
light color, and walls of housing are preferably opaque so that the hole appears dark from outside
the housing.”). Further, the prior art teaches that a POSITA would be well-familiar with the
concept of a wood substitute. See, e.g., DE 52-19 at 10 (“It should be noted that the carpenter bee
trap [ ] need not necessarily be created of wood.”); Prince Patent at col. 2, ll. 20–21 (disclosing a
“carpenter bee trap that is essentially a rectangular plastic housing”); Gunderman Patent at col. 3,
ll. 28–31 (“The housing [ ] may also be made from recycled wood composite, plastic, aluminum,
masonry, or any other material that is not repugnant to carpenter bees.”).
The use of the word “substitute” is somewhat akin to a term of degree. Claims including
such terms “will fail for indefiniteness” if they fail to “provide objective boundaries for those of
skill in the art when read in light of the specification and the prosecution history.” Liberty

29

To be sure, CMF was not, for the reasons previously discussed, bound to its initial construction
proposal. However, it is quite another thing for Defendant, itself a purveyor and evident designer
of carpenter bee traps, to shift from offering a proposed construction to arguing that a POSITA
would be non-plussed when confronted with a term that it initially found definite.
30
See Hill-Rom Co. v. Kinetic Concepts, Inc., 209 F.3d 1337, 1341 n.* (Fed. Cir. 2000) (describing
the patent abstract as a “potentially helpful source of intrinsic evidence as to the meaning of
claims”).
29

Ammunition, Inc. v. United States, 835 F.3d 1388, 1396 (Fed. Cir. 2016) (quotation marks
omitted). Here, the claim itself provides one such objective boundary, i.e., the substitute replaces
wood. If this were not enough, the specification provides further non-subjective contours, e.g.
opaque,31 bark-less, unpainted. The prior art teaches that POSITAs might deem a broad array of
materials proper substitutes for wood in a trap body. But that fact does not render the claim
indefinite; “breadth is not indefiniteness.” BASF Corp. v. Johnson Matthey Inc., 875 F.3d 1360,
1367 (Fed. Cir. 2017). At bottom, CMF’s argument falls well short of clearly and convincingly
proving that the legal scope of “wood substitute” is “not clear enough that a [POSITA] could
determine whether a particular [material] infringes or not.” Geneva Pharm., Inc. v.
GlaxoSmithKline PLC, 349 F.3d 1373, 1384 (Fed. Cir. 2003). Thus, “wood substitute” is not
indefinite.
Nonetheless, a question lingers: how to construe “wood substitute”? The Court rejects
CMF’s initial effort to read an “organic” limitation into this claim. DE 65 at 4. Defendant does
not press this limitation in its response brief, and the Court sees no basis for it in the specification.
Renishaw, 158 F.3d at 1249 (“Where a specification does not require a limitation, that limitation
should not be read from the specification into the claims.”) (internal citations and quotation marks
omitted). Given the specification background concerning carpenter bee habits, see DE 52-2 at col.
1, and the preferred embodiments, see id. at col. 4, ll. 66–67, col. 5, ll. 1–2, the Court finds that a

31

The Patent does not explicitly identify opacity as a marker. Nonetheless, that characteristic is
clearly an implicit requirement for the entrance-unit corpus. See, e.g., col. 2 at 58–62 (“[T]he
material of the at least one receptacle and optionally the area surrounding the at least one receptacle
has a degree of transparency such that ambient light is admitted in excess of other sources of
light within the trap entrance unit plenum.” (emphasis added)). If a material possessing merely
“a degree” of transparency permits more ambient light entry than the claimed entrance unit, then
the unit must surely be crafted from an opaque substance. Further, and more broadly, the Patent’s
functionality depends on targeted light attraction. A trap body formed from a non-opaque material
would thwart that enabling concept.
30

POSITA would read “wood substitute” as requiring sufficient similarity to wood to achieve like
habitat mimicking benefits.
In this vein, the Court finds Plaintiff’s proposed “synthetic wood” construction overnarrow. The two keys, per the specification, are appearance and opacity. Thus, the Court construes
“wood substitute” as a non-wood material with appearance, opacity, and hardness similar to that
of undecayed, unpainted, debarked wood.32
—

“hole”

Blazer argues the term “hole” requires no independent construction. CMF contends “hole”
means “a tunnel extending through the side or bottom of the trap entrance unit.” DE 73-1 at 11.
The Court largely agrees with Blazer.
The claim language itself partly refutes CMF’s proposed construction. The claim describes
the hole as “mimic[king]” a tunnel. DE 52-2 at col. 7, ll. 45. There would be no need for mimicry
if the hole was, itself, a tunnel (a term that CMF does not attempt to define). The Court agrees that
the described hole “must logically have an entrance and an exit” (DE 73-1 at 11); not because the
patent defines it as a tunnel, but because the claim says so: “said hole extending from outside of
the trap unit to a plenum interior[.]” DE 52-2 at col. 7, ll. 47–48. The from/to description means
that the entrance begins at the exterior of the trap unit; the exit terminates in the described plenum.
A construction duplicating definitional elements that the claim already provides is unnecessary.

See Skedco, 685 F. App’x at 959 (“Absent a clear disavowal or lexicography by a patentee,
however, he or she is free to draft a claim broadly and expect the full claim scope.”); cf. Anchor
Wall, 340 F.3d at 1311 (“[T]erms such as ‘approach each other,’ ‘close to,’ ‘substantially equal,’
and ‘closely approximate’ are ubiquitously used in patent claims and [ ] such usages, when serving
reasonably to describe the claimed subject matter to those of skill in the field of the invention and
to distinguish the claimed subject matter from the prior art, have been accepted in patent
examination and upheld by the courts[.]”) (describing/quoting Andrew Corp v. Gabriel Elecs. Inc.,
847 F.2d 819, 821–22 (Fed. Cir. 1988)).
32

31

Further, CMF offers nothing more than conclusory assertions for any locational limitation,
i.e., “extending through the side or bottom of the trap entrance unit.” DE 73-1 at 11–12. The patent
claims define “hole” at length: The “hole” must be drilled “through” the “trap entrance unit”; it
must be “sized to mimic a natural carpenter bee nest tunnel”; it must “extend[ ] from the outside
of the trap unit to” the plenum interior; finally, it must be “configured to extend substantially
horizontally or at an upward angle[.]” DE 52-2 at col. 7, ll. 47–48. The Court already construed
many of these defining descriptors. The claim text does not support CMF’s efforts to insert
additional limitations. Phillips, 415 at 1314 (“[T]he claims themselves provide substantial
guidance as to the meaning of particular claim terms.”); see also Unwired Planet, 829 F.3d at 1358
(finding district court erred in reading an unexpressed limitation on “the manner in which voice is
to be transmitted” into the term “voice input[,]” even though “the only embodiments disclosed”
utilized that transmission method). The Court sees no need to provide (and CMF fails to justify) a
more granular interpretation of a term the full claim (as construed here) so thoroughly defines. See,
e.g., W.E. Hall Co. v. Atlanta Corrugating, LLC, 370 F.3d 1343, 1350 (Fed. Cir. 2004) (“‘Single
piece’ is sufficiently clear to make even resort to the dictionary unnecessary.”); U.S. Surgical, 103
F.3d at 1568 (Claim construction “is not an obligatory exercise in redundancy.”). “Hole” is a
“commonly used term[,]” and CMF has failed to show it has any “special meaning in the art”
(independent of the already defined surrounding terms). Summit 6, LLC v. Samsung Elecs. Co.,
802 F.3d 1283, 1291 (Fed. Cir. 2015). Accordingly, the Court finds the “plain and ordinary
meaning . . . clear” and declines further construction. Id.33 The parties’ agreement that a hole is
equivalent to an opening adds further confirmatory context.

33

Of course, if at some point construction appears necessary to resolve the underlying dispute, the
Court may revisit this topic. See GPNE Corp. v. Apple Inc., 830 F.3d 1365, 1372 (Fed. Cir. 2016)
(“In O2 Micro, we held that “[w]hen the parties present a fundamental dispute regarding the scope
32

—

“configured to receive a clear or translucent receptacle”

The parties agreed that a “receptacle adapter” is “[a] connector for joining a receptacle to
the trap[,]” and the Court has adopted the joint construction. DE 65 at 3. Given that definition,
Blazer contends the phrase “configured to receive a clear or translucent receptacle” (DE 52-2 at
col. 7, ll. 54–55) needs no further construction. CMF contends the subject language further defines
receptacle adapter as being “affixed to the bottom of the trap which receives and holds a
receptacle.” DE 73-1 at 26. CMF fails to explain why the receptacle adapter need be “affixed[,]”
rather than, for instance, part and parcel of the trap unit. Cf. In re Papst Licensing Digital Camera
Patent Litig., 778 F.3d 1255, 1262 (Fed. Cir. 2015) (finding district court erred in relying on the
phrase “[‘]attached’ to an interface device” to foreclose “permanently attached” devices).
The language preceding the disputed phrase provides the locational limitation CMF
attempts to read into the subject clause. See DE 52-2 at col. 7, ll. 52–55. The “receives” portion of
CMF’s proposal supplies nothing not already included in the text. As to “holds,” that limitation is
neither inherent nor implicit in the claim text. Skedco, 685 F. App’x at 959 (“Claim construction
must begin and remain centered on the claim language.”). Dependent Claims 4 & 5 address
holding limitations. See Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 910 (Fed. Cir. 2004)
(“As this court has frequently stated, the presence of a dependent claim that adds a particular
limitation raises a presumption that the limitation in question is not found in the independent
claim.”). The Court rejects CMF’s proposed construction as “erroneously read[ing] limitations into
the claims[.]” ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc., 694 F.3d 1312, 1326 (Fed.

of a claim term, it is the court’s duty to resolve it.” 521 F.3d at 1362. . . . This duty, however, is
not without limit. Where a district court has resolved the questions about claim scope that were
raised by the parties, it is under no obligation to address other potential ambiguities that have no
bearing on the operative scope of the claim.”).
33

Cir. 2012). Further, in light of the agreed receptacle adapter construction, the Court concludes that
the “configured” phrase terms “have plain meanings that do not require additional construction.”
Id. That resolves the parties’ dispute on the scope of this limitation. See id.34
—

“receptacle adapter . . . is adapted so as to allow at least some ambient light to
enter the interior of the trap entrance unit via the exit opening”

Concerning the already defined “receptacle adapter”—again, a connector for joining a
receptacle to the trap—CMF argues that the Claim 13 subsequent limitation “adapted so as to allow
at least some ambient light to enter the interior of the trap entrance unit via the exit opening”
renders the full phrase a means-plus-function claim. Given the absence of the word “means,” §
112, ¶ 6 “will apply if the challenger demonstrates that the claim term fails to recite sufficiently
definite structure or else recites function without reciting sufficient structure for performing that
function.” Williamson, 792 F.3d at 1348 (quotation marks and alterations omitted). Put differently,
and to repeat, “[m]eans-plus-function claiming applies only to purely functional limitations that
do not provide the structure that performs the recited function.” Phillips, 415 F.3d at 1311. The
subject claim recites a structure with an agreed definition. CMF, however, argues that the relevant
structure is a “modified receptacle adapter.” DE 73-1 at 28. Defendant’s argument is baseless.
First, the word “modified” does not appear in the claim. Second, the balance of the claim
simply defines a function the subject “receptacle adapter” performs. CMF fails to explain why the
added functional description divests the receptacle adapter of its otherwise undisputedly definite
structure. See Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1349 (Fed. Cir.

34

Notably, CMF agrees that this term should be construed consistent with its plain and ordinary
meaning. See DE 73-1 at 26. Thus, this is not a scenario like O2 Micro, where the parties dispute
“not the meaning of the words themselves, but the scope that should be encompassed by this
language[,]” 521 F.3d at 1361; quite the opposite. The Court rejects Defendant’s proposed
interpretation as entirely divorced from plain and ordinary meaning.
34

2012) (“In common parlance, the phrase ‘adapted to’ is frequently used to mean ‘made to,’
‘designed to,’ or ‘configured to,’ but it can also be used in a broader sense to mean ‘capable of’ or
‘suitable for.’”). The claim identifies definite structure; the fact that it also provides a function that
structure must, in context, accomplish does not render it a standalone functional claim. Phillips,
415 F.3d at 1311 (“Means-plus-function claiming applies only to purely functional limitations that
do not provide the structure that performs the recited function.”).
CMF next argues that the specification lacks discussion of any modifications to the
receptacle adapter. See DE 73-1 at 29. Defendant then rebuts its own argument by identifying three
specified iterations of the adapter structure. Id. Logically, at least two of these receptacle adapters
are “modified” from another version. The Court cannot discern CMF’s point. In any event,
Defendant, with this desultory contention, plainly fails to show that this claim lacks a definite
structure. CMF’s final argument—concerning the need for distinct constructions for “exit
opening” and “receptacle adapter”—is, in the context of the overarching § 112, ¶ 6 theory, off
topic and warrants no further discussion.
The failed § 112, ¶ 6 argument eliminates CMF’s sole proposed construction of the subject
limitation. Plaintiff argues no construction is required. The included terms “ambient light” and
“receptacle adapter” have been construed. In this context and for now, the Court declines further
construction.35
Hearing Necessity

See Pisony, 2019 WL 928406, at *5 (rejecting defendants’ proposed construction, declining
further construction, and distinguishing 02 Micro: “The situation is different here, the Court is
simply rejecting Defendants’ proposed construction (which substitutes twenty-nine words in an
effort to better explain a claim term that is eleven words) rather than refusing to decide between
two competing proposed constructions.”).
35

35

Judge Reeves previously reserved ruling on the need for a Markman hearing. DE 43 at 2.
Per the Federal Circuit:
Markman does not require a district court to follow any particular procedure in
conducting claim construction. It merely holds that claim construction is the
province of the court, not a jury. To perform that task, some courts have found it
useful to hold hearings and issue orders comprehensively construing the claims in
issue. Such a procedure is not always necessary, however. If the district court
considers one issue to be dispositive, the court may cut to the heart of the matter
and need not exhaustively discuss all the other issues presented by the parties.
District courts have wide latitude in how they conduct the proceedings before them,
and there is nothing unique about claim construction that requires the court to
proceed according to any particular protocol. As long as the trial court construes
the claims to the extent necessary to determine whether the accused device
infringes, the court may approach the task in any way that it deems best.
Ballard Med. Prod. v. Allegiance Healthcare Corp., 268 F.3d 1352, 1358 (Fed. Cir. 2001). The
Court, for now, sees no need for a claim construction hearing. Instead, the Court finds that any
further disputes concerning proper construction would be more efficiently addressed in the context
of summary judgment briefing. See City of Aurora, Colo. ex rel. Aurora Water v. PS Sys., Inc.,
No. CIVA07CV-02371WYDBNB, 2008 WL 2811789, at *1 (D. Colo. July 18, 2008) (explaining
that Markman hearings “are not required by the Federal Rules of Civil Procedure or even
the Markman decision,” and noting that “such procedures can create a great deal of unnecessary
work for the Court and parties”).
IV.

CONCLUSION
For the reasons, to the extent, and on the terms stated the Court preliminarily ADOPTS

the preceding claim constructions. The Court notes that fact discovery has long been closed in this
matter. See DE 43 (adopting, in significant part, DE 26). To put this case on track for resolution
and establish a clear scheduling baseline, the Court ORDERS as follows:

36

1. The Court ADOPTS the deadlines established in DE 26 at ¶¶ 6, 8(d), for expert
discovery and dispositive motion practice (these deadlines attach relative to this
Order’s filing date);
2. The Court ORDERS the parties to file a joint status report (not to exceed 3 pages)
within 10 days addressing, at minimum, the following topics:
a. The parties’ estimate of the time necessary to file pretrial motions following the
Court’s resolution of any dispositive motions;
b. The parties’ belief(s) as to whether the matter is suitable for some form of
alternative dispute resolution and any proposed timing; and
c. The parties’ estimate as to the likely length of trial and dates mutually
convenient for trial.
3. The Court SETS ASIDE the DE 43, ¶ 10 private mediation limitation;
4. The Court DIRECTS the Clerk to assign this matter to an appropriate United States
Magistrate Judge for this Division and docket for purposes of;
a. Generally managing expert discovery, including resolving all discovery
disputes (subject to DE 43, ¶ 2’s resolution protocol); and
b. Conducting a settlement conference, if warranted, in the view of the Magistrate
Judge, by (1) the parties’ joint motion indicating a desire for a court-conducted
settlement conference instead of a private mediation, (2) the economics and
particulars of the case, and (3) the likelihood of an efficient resolution.
This the 16th day of April, 2020.

37