McGinley et al v. Luv N Care Ltd
Filing
428
MEMORANDUM AND OPINION on Claim Construction. Signed by Judge Terry A Doughty on 6/23/2023. (crt,Crawford, A)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
MICHAEL L. McGINLEY, ET AL.
CASE NO. 3:17-CV-00821 LEAD
VERSUS
JUDGE TERRY A. DOUGHTY
LUV N’ CARE, LTD., ET AL.
MAG. JUDGE KAYLA D. MCCLUSKY
SECOND MEMORANDUM OPINION AND ORDER ON CLAIM CONSTRUCTION
On February 24, 2023, the Court granted in part Defendants’ motion for a Claim
Construction Hearing (Doc. No. 388) 1 to determine the proper construction of two additional claim
terms in United States Patent No. 8,636,178 (“the ’178 Patent”). Having considered the arguments
in the parties’ briefing (Doc. Nos. 406, 417, 423), having considered the intrinsic evidence, and
having made subsidiary factual findings about the extrinsic evidence, the Court hereby issues this
Second Claim Construction Memorandum and Order. See Phillips v. AWH Corp., 415 F.3d 1303,
1314 (Fed. Cir. 2005); Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015).
The Court’s Order stated that it would consider the claim construction briefing and then
determine if a hearing is necessary. [Doc. No. 388 at 3]. The Court has considered the briefing and
determines that a Markman hearing is unnecessary.
1
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TABLE OF CONTENTS
I.
BACKGROUND ................................................................................................................ 3
II.
APPLICABLE LAW .......................................................................................................... 5
III.
LEVEL OF ORDINARY SKILL IN THE ART ................................................................ 9
IV.
CONSTRUCTION OF DISPUTED TERMS ................................................................... 10
1. “flexible panel” ............................................................................................. 10
2. “generally smooth inward surface for unobstructed fluid flow” .................. 11
V.
CONCLUSION ................................................................................................................. 19
Page 2 of 20
I.
BACKGROUND
The ’178 Patent was filed on October 22, 2008, issued on January 28, 2014, and is directed
to a container or pitcher “having a flexible side wall portion and rim portion . . . which can conform
to the shape of an object.” ’178 Patent at Abstract. The specification indicates that the primary
purpose of the container is for rinsing shampoo or soap from the head of a child. Id. at 2:57–63.
Figures 3 and 6 illustrates different embodiments of the container with and without divider 40.
Id. at Figs. 3 & 6. The specification states that the container has continuous sidewalls 12 with one
of the sidewalls having a sidewall portion 24 with a flexible panel portion 28. Id. at 4:4–61. The
specification further states that the flexible panel portion is constructed of a thin flexible plastic or
a flexible rubber panel that is capable of conforming to the shape of the head of a child. Id. at
4:43–61. In operation, the flexible panel portion is pressed against the front of the head above the
eyes and the rinse water pours over the top of the head. Id. at 2:57–63. The specification indicates
that the flexible panel portion prevents the rinse water from flowing into the child’s eyes or face.
Id.
As illustrated above, the specification discloses embodiments of the container without a
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divider (Figure 3) and with a divider (Figure 6). Id. at 3:29–34, 3:42–46, Figs. 3 & 6. The
specification states that the divider is provided so that the rinse water flows over the head more
evenly. Id. at 7:11–18. Figure 9 illustrates an embodiment having a sidewall section that is shown
to be flat with a flat flexible panel 28 flexed slightly inward.
Id. at Fig. 9. As illustrated in Figure 9, this embodiment also includes “a generally curved divider
panel 50 which separates container 10 into two fluid holding compartments.” Id. at 6:58–59. The
specification discloses that “that the curvature of panel 50 thereby directs the fluid contained in
second compartment 44 generally onto the center of the head of the child and avoids even
distribution of the water across the width of curved divider panel 50 as the water is being poured
out of second compartment 44.” Id. at 7:6–12.
Claim 1 of the ’178 Patent recite the following elements (disputed terms for this Order in
italics):
1. A container comprising:
a generally continuous sidewall terminating in an upper sidewall
end and a lower sidewall end and defining an inward fluid
holding space bounded by said continuous sidewall, said
continuous sidewall having a flexible portion thereof that
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defines a generally flat sidewall section and a generally non
flexible portion joined on either end to the flexible portion,
a bottom closing said lower sidewall end with said upper sidewall
generally flat sidewall section end being generally open,
a generally flat inwardly flexible panel forming a portion of said
generally flat sidewall section and extending to form at least
a portion of said upper sidewall end, the flexible panel
facing outwardly and being sized, shaped and sufficiently
pliable to matingly mold to the head of a person during use;
said flexible panel having a generally smooth inward
surface for unobstructed fluid flow out of said open upper
sidewall end, and
a handle located on the non flexible portion opposite the flexible
panel to allow a user to lift and pour the container when
filled with liquid.
II.
APPLICABLE LAW
A.
Claim Construction
“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
(Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc.,
381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by
considering the intrinsic evidence. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d
858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc., 262 F.3d
1258, 1267 (Fed. Cir. 2001).
The intrinsic evidence includes the claims themselves, the
specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at
861. The general rule—subject to certain specific exceptions discussed infra—is that each claim
term is construed according to its ordinary and accustomed meaning as understood by one of
ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d
at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure
Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (“There is a heavy presumption
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that claim terms carry their accustomed meaning in the relevant community at the relevant time.”)
(vacated on other grounds).
“The claim construction inquiry . . . begins and ends in all cases with the actual words of
the claim.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998).
“[I]n all aspects of claim construction, ‘the name of the game is the claim.’” Apple Inc. v. Motorola,
Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed.
Cir. 1998)). First, a term’s context in the asserted claim can be instructive. Phillips, 415 F.3d at
1314. Other asserted or unasserted claims can also aid in determining the claim’s meaning,
because claim terms are typically used consistently throughout the patent. Id. Differences among
the claim terms can also assist in understanding a term’s meaning. Id. For example, when a
dependent claim adds a limitation to an independent claim, it is presumed that the independent
claim does not include the limitation. Id. at 1314–15.
“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id. (quoting
Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). “[T]he
specification ‘is always highly relevant to the claim construction analysis.
Usually, it is
dispositive; it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics
Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am.
Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). But, “‘[a]lthough the specification may aid the court
in interpreting the meaning of disputed claim language, particular embodiments and examples
appearing in the specification will not generally be read into the claims.’” Comark Commc’ns, Inc.
v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced MicroDevices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. “[I]t is
improper to read limitations from a preferred embodiment described in the specification—even if
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it is the only embodiment—into the claims absent a clear indication in the intrinsic record that the
patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d
898, 913 (Fed. Cir. 2004).
The prosecution history is another tool to supply the proper context for claim construction
because, like the specification, the prosecution history provides evidence of how the U.S. Patent
and Trademark Office (“PTO”) and the inventor understood the patent. Phillips, 415 F.3d at 1317.
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.” Id. at 1318; see also Athletic
Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution
history may be “unhelpful as an interpretive resource”).
Although extrinsic evidence can also be useful, it is “‘less significant than the intrinsic
record in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at
1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a
court understand the underlying technology and the manner in which one skilled in the art might
use claim terms, but technical dictionaries and treatises may provide definitions that are too broad
or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert
testimony may aid a court in understanding the underlying technology and determining the
particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
assertions as to a term’s definition are entirely unhelpful to a court. Id. Generally, extrinsic
evidence is “less reliable than the patent and its prosecution history in determining how to read
claim terms.” Id. The Supreme Court recently explained the role of extrinsic evidence in claim
construction:
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In some cases, however, the district court will need to look beyond the patent’s
intrinsic evidence and to consult extrinsic evidence in order to understand, for
example, the background science or the meaning of a term in the relevant art during
the relevant time period. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546 (1871)
(a patent may be “so interspersed with technical terms and terms of art that the
testimony of scientific witnesses is indispensable to a correct understanding of its
meaning”). In cases where those subsidiary facts are in dispute, courts will need to
make subsidiary factual findings about that extrinsic evidence. These are the
“evidentiary underpinnings” of claim construction that we discussed in Markman,
and this subsidiary factfinding must be reviewed for clear error on appeal.
Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015).
B.
Departing from the Ordinary Meaning of a Claim Term
There are “only two exceptions to [the] general rule” that claim terms are construed
according to their plain and ordinary meaning: “1) when a patentee sets out a definition and acts
as his own lexicographer, or 2) when the patentee disavows the full scope of the claim term either
in the specification or during prosecution.”2 Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d
1362, 1365 (Fed. Cir. 2014) (quoting Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362,
1365 (Fed. Cir. 2012)); see also GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304, 1309
(Fed. Cir. 2014) (“[T]he specification and prosecution history only compel departure from the
plain meaning in two instances: lexicography and disavowal.”).
The standards for finding
lexicography or disavowal are “exacting.” GE Lighting Solutions, 750 F.3d at 1309.
To act as his own lexicographer, the patentee must “clearly set forth a definition of the
disputed claim term,” and “clearly express an intent to define the term.” Id. (quoting Thorner, 669
F.3d at 1365); see also Renishaw, 158 F.3d at 1249. The patentee’s lexicography must appear
“with reasonable clarity, deliberateness, and precision.” Renishaw, 158 F.3d at 1249.
Some cases have characterized other principles of claim construction as “exceptions” to the
general rule, such as the statutory requirement that a means-plus-function term is construed to
cover the corresponding structure disclosed in the specification. See, e.g., CCS Fitness, Inc. v.
Brunswick Corp., 288 F.3d 1359, 1367 (Fed. Cir. 2002).
2
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To disavow or disclaim the full scope of a claim term, the patentee’s statements in the
specification or prosecution history must amount to a “clear and unmistakable” surrender. Cordis
Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009); see also Thorner, 669 F.3d at
1366 (“The patentee may demonstrate intent to deviate from the ordinary and accustomed meaning
of a claim term by including in the specification expressions of manifest exclusion or restriction,
representing a clear disavowal of claim scope.”). “Where an applicant’s statements are amenable
to multiple reasonable interpretations, they cannot be deemed clear and unmistakable.” 3M
Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013); see also Avid
Tech., Inc. v. Harmonic, Inc., 812 F.3d 1040, 1045 (Fed. Cir. 2016) (“When the prosecution history
is used solely to support a conclusion of patentee disclaimer, the standard for justifying the
conclusion is a high one.”).
Although a statement of lexicography or disavowal must be exacting and clear, it need not
be “explicit.” See Trs. of Columbia Univ. v. Symantec Corp., 811 F.3d 1359, 1364 (Fed. Cir. 2016)
(“a patent applicant need not expressly state ‘my invention does not include X’ to indicate his
exclusion of X from the scope of his patent”). Lexicography or disavowal can be implied where,
e.g., the patentee makes clear statements characterizing the scope and purpose of the invention.
See On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1340 (Fed. Cir. 2006)
(“[W]hen the scope of the invention is clearly stated in the specification, and is described as the
advantage and distinction of the invention, it is not necessary to disavow explicitly a different
scope.”). Nonetheless, the plain meaning governs “[a]bsent implied or explicit lexicography or
disavowal.” Trs. of Columbia Univ., 811 F.3d at 1364 n.2.
III.
LEVEL OF ORDINARY SKILL IN THE ART
The Court previously determined that a person of ordinary skill in the art would have either:
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(1) a Bachelor’s degree in Mechanical Engineering or equivalent thereof, and at least two years of
experience designing consumer products, or (2) familiarity with plastic, rubber, foam and other
flexible materials, and at least five years of experience designing consumer products. [Doc. Nos.
233 at 8-10; 234 at 1]3.
IV.
CONSTRUCTION OF DISPUTED TERMS
The parties’ dispute focuses on the meaning and scope of two terms/phrases of the ’178
Patent.
1. “flexible panel”
Disputed Term
“flexible panel”
Plaintiffs’ Proposal
Plain and ordinary or,
alternatively, “a bendable or
pliable portion of the sidewall
that conforms to the shape of a
forehead during use”
Defendants’ Proposal
Plain and ordinary meaning.
a) Analysis
The parties originally contended that the meaning of the term “flexible panel” was
disputed. Plaintiffs argued that “Defendants cannot credibly argue that the term ‘flexible panel’
should be given any technical or restricted meaning.” [Doc. No. 406 at 7]. Defendants responded
that they now agree that the term “flexible panel” should be given its plain and ordinary meaning.
[Doc. No. 417 at 2]. Thus, the parties agree that there is not a fundamental dispute regarding the
scope of the claim term “flexible panel.” See O2 Micro Int'l v. Beyond Innovation Tech., 521 F.3d
1351, 1362-63 (Fed. Cir. 2008) (“When the parties present a fundamental dispute regarding the
scope of a claim term, it is the court’s duty to resolve it.”). Accordingly, the term “flexible panel”
will be given its plain and ordinary meaning.
Citations are to the filing’s number in the docket [Doc. No.] and pin cites are to the page numbers
assigned through ECF.
3
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b) Court’s Construction
The term “flexible panel” is given its plain and ordinary meaning.
2. “generally smooth inward surface for unobstructed fluid flow”
Disputed Term
“generally smooth inward
surface for unobstructed
fluid flow”
Plaintiffs’ Proposal4
Plain and ordinary or,
alternatively, “a surface that
does not obstruct, block or
constrict the flow of fluid from
the container’s upper sidewall
end during use”
Defendants’ Proposal5
“mostly smooth inward surface
devoid of corrugations, ridges,
or ribs extending the width and
depth of the inner surface of
the flexible panel”
a) Analysis
To begin the analysis, the Court first turns to the language of the claims, as it provides
“substantial guidance as to the meaning of particular claim terms.” Phillips, 415 F.3d at 1313
(citing Vitronics Corp., 90 F.3d at 1582). The phrase “generally smooth inward surface for
unobstructed fluid flow” appears in claims 1 and 6 of the ’178 Patent. The Court finds that the
phrase is used consistently in the claims and is intended to have the same general meaning in each
claim.
Claims 1 and 6 recite that the “inward surface” of the flexible panel must be “generally
smooth.” The claims further recite that the surface allows “for unobstructed fluid flow” out of the
container. In other words, the “inward surface” of the flexible panel must be “generally smooth”
such that the fluid is not “obstructed” as it flows out of the container. Figure 7 illustrates an
example of fluid flowing out of a container unobstructed.
4
5
Doc. No. 224 at 1.
Doc. No. 223 at 2.
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’178 Patent at Figure 7.
Regarding the term “generally smooth” in the disputed phrase, the Court finds that it should
be construed to mean “mostly smooth.” The term “generally” is recited multiple times in the
claims, and the Court presumes that “the same terms appearing in different portions of the claims
should be given the same meaning unless it is clear from the specification and prosecution history
that the terms have different meanings at different portions of the claims.” Fin Control Sys. Pty,
Ltd. v. OAM, Inc., 265 F.3d 1311, 1318 (Fed. Cir. 2001). The Federal Circuit recently determined
that “generally” in the context of the ’178 Patent should be construed to mean “mostly.”
Specifically, the Federal Circuit construed the term “generally flat” to mean “mostly flat and not,
as a whole, V-shaped, round, or cylindrical.” [Doc. No. 258 at 13] (emphasis added).
The Court further finds that the prosecution history of related U.S. Patent No. 7,441,675
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(“the ’675 Patent”) is relevant intrinsic evidence that informs the meaning of the disputed phrase.6
See Phillips, 415 F.3d at 1317 (the prosecution history “can often inform the meaning of the claim
language by demonstrating…whether the inventor limited the invention in the course of
prosecution, making the claim scope narrower than it would otherwise be.”). During prosecution
of the ’675 Patent, the examiner rejected pending claims 1 and 7 for anticipation (35 U.S.C. §
102(b)) based on the prior art Perock Patent (U.S. Patent 4,756,439). The Perock Patent disclosed
a “container having a flexible panel area 17 that is designed to [be] flexible and is covering at least
a portion of the side panel.” [Doc. No. 417-2 at 5].
The Court previously summarized the relationship of the ’675 Patent to the ’178 Patent as
follows:
6
The ’178 Patent was based on a continuation-in-part (“CIP”) application Serial No.
12/255,797 (“the ’178 Application”), filed on October 22, 2008. [Doc. No. 13611]. The ’178 Application was a CIP of Application Serial No. 10/770,325 (“the
’675 Application”) filed on February 2, 2004. [Doc. No. 136-22]. The ’675
Application issued as United States Patent No. 7,441,675 (the ’675 Patent) with all
claims directed to a flexible panel pitcher or container with a divider. The ’675
Application was a CIP of Application Serial No. 10/357,651 filed on February 4,
2003 (“the Original Application”). [Doc. No. 158-6]. After the ’675 Application
was filed and assigned a serial number, the patentee abandoned the Original
Application. [Doc. 158-6 at 48].
[Doc. No. 235 at 2].
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[Doc. No. 406-6 at Figure 1]. As shown in Fig. 1 of the Perock Patent, the inner surface of the
flexible panel area 17 includes a series of corrugations (23).7
The examiner equated the recited “flexible panel” with the corrugated sidewall and multisided spout of the “integral washboard” disclosed by the Perock Patent. [Doc. No. 417-2 at 5]
(“Perock shows a container having a flexible panel area 17 that it is designed to [be] flexible and
is covering at least a portion of the side panel.”). In response to the rejection, the patentee amended
claims 1 and 7 to recite that the “flexible panel” had “a generally smooth inward surface for
unobstructed fluid flow,” as shown below:
The Perock Patent further states that in a preferred embodiment “[t]he corrugations are
continuous for the whole width and depth of wall 17.” [Doc. No. 406-6 at 2:13–15].
7
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[Doc. No. 417-3 at 5,6] (highlight added).8 Regarding the claim amendments, the patentee argued
as follows:
8
The claim amendments are depicted by the underlined text and highlight.
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[Doc. No. 417-3 at 12-13]. As indicated, the patentee distinguished the Perock Patent by arguing
that it did not disclose “an inwardly flexible panel,” and did not disclose “a generally smooth
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inward surface for unobstructed fluid flow.” Regarding the “generally smooth inward surface for
unobstructed fluid flow,” the patentee argued that the “device of Perock is provided with a
washboard 16 having corrugations 23 on wall 17 which would obstruct the flow of fluid out of the
container being used to provide moderated flow of rinse water to a child’s head.” Id. at 12. Thus,
the patentee clearly and unmistakably disclaimed an inward surface that includes corrugations that
obstruct the flow of fluid out of the container. See, e.g., Anchor Wall Sys. v. Rockwood Retaining
Walls, 340 F.3d 1298, 1307 (Fed. Cir. 2003) (“During prosecution, an inventor may surrender
coverage of material that would otherwise be covered by a claim; however, the surrender must be
clear and unmistakable.”). Indeed, the patentee explicitly argued that “Perock does not contain the
structural limitations now set forth particularly in claims 1, 7 and 20.” Id. Accordingly, the Court
finds that the phrase “generally smooth inward surface for unobstructed fluid flow” should be
construed to mean “mostly smooth inward surface that does not include corrugations that obstruct
fluid flow.”
Turning to the parties’ constructions, Plaintiffs contend that the phrase should be given it
plain and ordinary meaning. In the alternative, Plaintiffs argue that the phrase should be construed
to mean “a surface that does not obstruct, block or constrict the flow of fluid from the container’s
upper sidewall end during use.” Given the prosecution history, the phrase cannot be given its “plain
and ordinary” meaning, because the patentee disclaimed certain “structural limitations.” As
discussed, the patentee’s narrowing claim amendment and accompanying statements to avoid the
Perock Patent indicates that he disavowed coverage of a flexible panel incorporating corrugations
that obstruct the flow of fluid. Therefore, adopting Plaintiffs’ construction could allow them to
recapture this disavowed claim scope.
Plaintiffs’ construction also impermissibly reads “generally smooth” out of the claim or
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renders it superfluous with “unobstructed fluid flow.” The patentee clearly and unmistakably
identified the corrugations disclosed in the Perock Patent as falling outside the scope of the claims.
Accordingly, the Court rejects Plaintiffs’ proposals.
Turning to Defendants’ construction, Defendants propose construing the phrase to mean
“mostly smooth inward surface devoid of corrugations, ridges, or ribs extending the width and
depth of the inner surface of the flexible panel.” As discussed, the Court agrees that the “generally
smooth inward surface for unobstructed fluid flow” cannot include “corrugations” that obstruct
the flow of fluid out of the container. However, the prosecution history does not mention “ridges
or ribs.” Instead, the ’178 Patent discloses an embodiment having a divider and/or “fluid directing
ridges 52 provided on the inside surface of flexible panel 28.” ’178 Patent at 3:50–52; 7:33–51.
’178 Patent at Figure 8 (highlight added). The specification states that “ridges 52 are, in a preferred
embodiment, molded of the same material which flexible panel 28 is constructed … however, it
is desirable that ridges 52 do not obstruct the flexibility of panel 28 as it should be readily
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shapeable or moldable against the contours of the forehead of a child.” Id. at 7:38–51. The
specification further states that the “ridges 52, in conjunction with the curvature of panel 50, will
generally increase the amount of water flow from compartments 42, 44 which is directed towards
the center of the head of a child.” Id. at 7:48–51. This indicates that ridges on the inside surface of
the flexible panel do not automatically fall outside the scope of the claims. Instead, it is a material
issue of fact of whether a “ridge” is a “corrugation” that obstructs the flow of fluid outside of the
container. Likewise, there was no discussion by the patentee about the “corrugations” being “the
width and depth of the inner surface of the flexible panel.” Accordingly, the Court rejects this
wording proposed by Defendants. Finally, in reaching its conclusion, the Court has considered the
extrinsic evidence submitted by the parties, and given it its proper weight considering the intrinsic
evidence.
b) Court’s Construction
The Court construes the phrase “generally smooth inward surface for unobstructed
fluid flow” to mean “mostly smooth inward surface that does not include corrugations that
obstruct fluid flow.”
V.
CONCLUSION
The Court adopts the above constructions. The parties are ordered to not refer, directly or
indirectly, to each other’s claim construction positions in the presence of the jury. Likewise, the
parties are ordered to refrain from mentioning any part of this opinion, other than the definitions
adopted by the Court, in the presence of the jury. However, the parties are reminded that the
testimony of any witness is bound by the Court’s reasoning in this order but any reference to claim
construction proceedings is limited to informing the jury of the definitions adopted by the Court.
It is SO ORDERED.
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MONROE, LOUISIANA, this 23rd day of June, 2023.
Terry A. Doughty
United States District Judge
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