Terrie Banhazl v. The American Ceramic Society et al

Filing 46

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. The claim terms at issue will be construed for the jury and for all other purposes in this litigation in a manner consistent with the above rulings of the Court. For ease of reference, the C ourt's constructions are reproduced below in Appendix A.(See Attached Order) Within seven days of this Order, the parties shall submit a joint status report stating their mutual or respective positions concerning whether the scheduling order in this matter [ECF No. 21 ] should be amended. Unless the Court issues a new scheduling order, the existing deadlines for fact discovery, expert discovery, and dispositive motions control. SO ORDERED.(McDonagh, Christina)

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS TERRIE BANHAZL, doing business as HEIRLOOM CERAMICS, Plaintiff and CounterDefendant, v. THE AMERICAN CERAMIC SOCIETY, Defendant and CounterClaimant. * * * * * * * * * * * * Civil Action No. 16-cv-10791-ADB MEMORANDUM AND ORDER ON CLAIM CONSTRUCTION BURROUGHS, D.J. Inventor Terrie Banhazl (“Plaintiff” or “Banhazl”) brings this patent infringement action against the American Ceramic Society (“Defendant” or “ACS”) and alleges that Defendant’s dissemination of how-to tutorials, step-by-step instructions, and instructional videos infringes all claims of U.S. Patent No. 7,622,237 (“’237 Patent”).1 [ECF No. 1 ¶ 48]. The ’237 Patent is entitled “System, Apparatus, and Method for the Permanent Transfer of Images onto Glossy Surfaces” and claims a method for permanently transferring an image to a ceramic or glass piece. [ECF No. 1-1 (“’237 Patent”)]. Plaintiff, through her business Heirloom Ceramics, sells “multisurface transfer paper with detailed instructions to create custom ceramic, porcelain, stoneware, and glass pieces using laser printer/photocopied images” following her patented methodology as well as books describing the patented methodology. [ECF No. 1 ¶ 2]. 1 The complaint named two other defendants, Justin Rothshank, a ceramic decal artist, and Bel, Inc., a company selling decal paper. See [ECF No. 1 ¶¶ 26–39]. Claims against both defendants have since been dismissed. See [ECF Nos. 7, 8]. The parties filed claim construction briefs concerning eight disputed terms, and the Court conducted a hearing on December 12, 2017 at which the parties presented their proposed constructions. See [ECF Nos. 30–31, 34–35, 44]. The Court construes the terms as set forth below. I. APPLICABLE LAW Claim construction is the first stage of a patent infringement analysis and requires the Court to determine “the scope and meaning of the patent claims asserted.” Clearstream Wastewater Sys., Inc. v. Hydro-Action, Inc., 206 F.3d 1440, 1444 (Fed. Cir. 2000). Claim construction is a question of law for the court, Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996), to be resolved with an eye toward the fact that the Court’s adopted construction “becomes the basis of the jury instructions, should the case go to trial” on the issue of infringement, see AFG Industries, Inc. v. Cardinal IG Co., 239 F.3d 1239, 1244, 1247 (Fed. Cir. 2001). The Federal Circuit has provided a framework governing claim construction. In general, a court must give claim terms their “ordinary and customary meaning,” which the Federal Circuit has deemed to be “the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc). “[W]here the ordinary meaning of claim language as understood by a person of skill in the art is not readily apparent,” courts generally consider a “hierarchy of sources to aid in claim construction.” Skyline Software Sys., Inc. v. Keyhole, Inc., 421 F. Supp. 2d 371, 375 (D. Mass. 2006). These sources include intrinsic evidence—including “the words of the claims themselves, the remainder of the specification, [and] the prosecution history” of the patent—and “extrinsic evidence concerning relevant scientific principles, the meaning of 2 technical terms, and the state of the art.” Phillips, 415 at at 1314 (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)). The claim language itself is where claim construction “must begin and remain centered” because “the claims of a patent define the invention to which the patentee is entitled the right to exclude.” Innova/Pure Water, 381 F.3d at 1115–16. Second, the specification “is always highly relevant to the claim construction analysis” and “[u]sually . . . is dispositive.” Phillips, 415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). In the specification, a patentee may define her own terms, act as her own lexicographer, or disavow certain meanings. Id. at 1316. The Federal Circuit, however, has “warned against importing limitations from the specification into the claims absent a clear disclaimer of claim scope.” Andersen Corp. v. Fiber Composites, LLC, 474 F.3d 1361, 1373 (Fed. Cir. 2007). Third, the prosecution history may provide insight into how the inventor and the patent examiner understood the claim terms. See Phillips, 415 F.3d at 1317. Finally, courts may consider extrinsic evidence, such as inventor testimony, dictionaries, or learned treatises, but must “keep in mind the flaws inherent in each type of [extrinsic] evidence and assess that evidence accordingly.” Id. at 1317, 1319. II. CLAIM CONSTRUCTION The parties present eight disputed claim terms for construction: (1) “permanently,” (2) “glossy surface/substrate having a glossy surface,” (3) “film covered transfer paper” or “transfer paper,” (4) “having the image printed” or “image is printed,” (5) “transferring the film to the glossy surface” or “transferring the film with the image onto the glossy surface,” (6) “evaporate,” (7) “embed(s),” and (8) “laser printing device.” [ECF No. 43-1]. The eight terms are emphasized in the following representative claims: 3 1. A method of permanently transferring an image to a substrate having a glossy surface, including: providing a sheet of film-covered transfer paper having the image printed on the film side of the transfer paper, wherein the image is printed with an ironoxide based toner; transferring the film to the glossy surface; and heating the substrate with the film to a temperature sufficient to evaporate the film and to embed the image into the glossy surface. .... 8. A method of permanently transferring an image to a substrate having a glossy surface, including: printing the image onto the film side of a sheet of transfer paper using a laser printing device using an iron-oxide based toner; transferring the film with the image onto the glossy surface; heating the substrate with the film to a temperature such that the film evaporates and the image embeds into the glossy surface. ’237 Patent, Claims 1, 8. A. Person of Ordinary Skill in the Art “[T]he words of a claim ‘are generally given their ordinary and customary meaning.’” Phillips, 415 F.3d at 1312–13 (quoting Vitronics, 90 F.3d at 1582). The “ordinary and customary meaning” is understood to be “the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention . . . .” Id. at 1313. The parties agree that “the art” is ceramics but disagree on who a person of ordinary skill is. See [ECF No. 31 at 6; ECF No. 35 at 2–3]. Defendant defines a person of ordinary skill in the art as “an individual with a four-year college degree in the field of ceramics or pottery, or alternatively . . . an individual with a two-year associate’s degree or its equivalent with at least one apprenticeship or internship working intensively in the field of ceramics.” [ECF No. 31 at 6]. Defendant’s expert adds that: 4 one the patent protects.” Eaton Corp. v. Rockwell Intern. Corp., 323 F.3d 1332, 1339 (Fed. Cir. 2003) (citations omitted). Similarly, “[w]hen limitations in the body of the claim rely upon and derive antecedent basis from the preamble, then the preamble may act as a necessary component of the claimed invention.” Id. By contrast, “if the body of the claim sets out the complete invention, then the language of the preamble may be superfluous.” Id. (quoting Schumer v. Lab. Comp. Sys., Inc., 308 F. 3d 1304, 1310 (Fed. Cir. 2002)). In addition, “where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation.” Rowe v. Dror, 112 F.3d 473, 478 (Fed. Cir. 1997). “The determination of whether preamble recitations are structural limitations or mere statements of purpose or use can be resolved only on review of the entirety of the patent to gain an understanding of what the inventors actually invented and intended to encompass by the claim.” Id. (quoting Corning Glass Works v. Sumnitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed. Cir. 1997)); see Am. Med. Sys., Inc. v. Biolitec, Inc., 618 F.3d 1354, 1358 (Fed. Cir. 2010) (“Whether to treat a preamble term as a claim limitation is ‘determined on the facts of each case in light of the claim as a whole and the invention described in the patent.’” (quoting Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 831 (Fed. Cir. 2003))). The Federal Circuit has recognized, however, that preambles of method claims typically employ the following standard language pattern: “‘a method for a purpose or intended use comprising,’ followed by the body of the claim, in which the claim limitations describing the invention are recited.” TomTom, Inc. v. Adolph, 790 F.3d 1315, 1323–24 (Fed. Cir. 2015). As an initial matter, the parties do not dispute that the portions of the preamble that provide antecedent basis for the claim (i.e. the terms “an image,” “a substrate,” and “a glossy 6 surface”) are limiting. Accordingly, the Court considers only whether the term “permanently” is limiting. Plaintiff contends that the preamble is not limiting. See [ECF No. 30 at 7–8]. Based on case law holding that “[a] preamble generally is not limiting if deletion of the preamble phrase does not affect the structure or steps of the claimed invention,” Plaintiff argues that removing the term “permanently” from the preamble does not affect the structure or steps of the claimed invention. [Id. at 8 (citing IMS Tech., Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1434 (Fed. Cir. 2000))]. Plaintiff further asserts that the preamble is comprised of two distinct portions: (i) a general description of the method (“a method of permanently transferring”) and (ii) “what is being transferred to where” (“an image to a substrate having a glossy surface”). [ECF No. 35 at 3–4]. She identifies the first portion as “merely describ[ing] the outcomes of the invention” rather than a separate claim limitation. [Id. at 4]. Defendant argues that the preamble must be limiting because it is necessary to explain the meaning of the terms “embed” and “transferring” that are used in the claims. [ECF No. 34 at 4]. It asserts that removing the term “permanently” from the preamble alters the meaning of the claim terms in such a way that would allow the claim to cover both permanent and nonpermanent transfers, which is not the inventor’s stated purpose. [Id. at 5]. Defendant also directs the Court to the specification, which repeatedly references permanently transferring an image to a glossy substrate. [ECF No. 31 at 11]. The Court finds that the preamble term “permanently” is limiting because, under the prevailing standard, it is “necessary to give life, meaning, and vitality to the claims.” See Kropa, 187 F.2d at 152. The heart of Plaintiff’s invention, as described in the specification and as demonstrated at the Markman hearing, is a method of permanently transferring an image to a 7 ceramic or glass object.2 While the phrase “a method of permanently transferring” is used in the preamble to state the invention’s purpose, it is also necessary to complete the claims to reflect what Plaintiff “actually invented” because the claim terms do not inherently include the concept of permanence. Cf. Eaton Corp., 323 F.3d at 1339 (noting that claim drafter may opt to use both the preamble and the body of the claim to define the invention); Rowe, 112 F.3d at 478 (instructing courts to review “the entirety of the patent to gain an understanding of what the inventors actually invented” when determining whether a preamble is limiting). Having concluded that the term “permanently” is limiting, the Court will construe the term. Plaintiff asks the Court to construe “permanently” to mean “in a way that lasts or remains unchanged indefinitely,” which is the New Oxford American Dictionary definition of the term. [ECF No. 30 at 7]. Defendant proposes to construe “permanently” as “in a way that exists perpetually.” [ECF No. 31 at 9, 11–12]. The parties’ proposals are largely consistent, and the Court incorporates both proposed definitions by construing the term “permanently” to mean in a way that exists or remains unchanged for the life of the substrate. 2 See, e.g., Patent ’237 at Col. 2, Lns. 62–64 (distinguishing invention from prior art because “in this invention the glazed ceramic piece with image adhered is then fired in a kiln to permanently affix the image”); id. at Col. 4, Lns. 8–9 (defining “functional” as “glossy substrates with images that are permanent, oven proof and dishwasher safe”); id. at Col. 4, Lns. 38–40 (defining “kiln” as “an oven which is capable of reaching temperatures high enough to permanently affix glazes and iron oxide toners to the substrate”); id. at Col. 5, Lns. 52–57 (observing that “[d]uring this firing process, the decal’s film layer, residual adhesive, and the polymer additives of the toner melt and or evaporate leaving just the iron oxide pigment of the print and the color from any colored glazes that were used, permanently affixed to the surface”). 8 The Court adopts Plaintiff’s proposed construction as consistent with the claims and the specification. First, Plaintiff’s construction is common sense and what a person of ordinary skill in the art would understand after reading the specification and claim terms. [ECF No. 30 at 10– 11]. As Plaintiff attests, it is commonly understood among ceramicists that double-glazing an object is not a common practice and gives unpredictable results. [ECF No. 30-3 ¶¶ 8–10]. In contrast, Defendant’s expert did not endorse Defendant’s proposed construction of “substrate having a glossy surface.” See generally [ECF No. 31-2]. He does not express an opinion about double-glazing specifically but nevertheless does not appear to read the ’237 Patent as requiring double-glazing. See [id. at ¶¶ 12–13 (describing bisque and glazed ceramic pieces and “[h]ow an image is transferred to a ceramic or bisque pieces”)]. Second, Defendant’s reading of the claim language as requiring multiple glazes is not supported by the specification. The specification consistently provides examples of objects, such as bisque, being glazed once, or objects being “inherently glossy (i.e. glass or commercially available glazed ceramic pieces).” ’237 Patent at Col. 4, Lns. 25–27. For example, neither Figure 1 nor Figure 2 suggests that a double-glazing process occurs. See id. at Figs. 1, 2. Both Figure 1 and Figure 2 refer to a “preglazed” ceramic item or object. Id. Figure 2 also provides an alternate process whereby a “[b]isque object receives three coats of white ceramic gloss glaze,” “[c]olored ceramic glazes [are] painted around and directly under where image is to be placed,” and the “[o]bject is fired in a kiln” to the glaze manufacturer’s specifications. Id. at Fig. 2. The exemplary embodiment of the invention described in the specification also does not suggest that a double-glazing process occurs. Id. at Col. 5, Lns. 24–59. It describes glazing a glossy surface . . . .” [ECF No. 35 at 6–7 (emphasis added)]. In light of its construction, the Court declines to make any corrections to the words of the specification to further resolve the dispute between the parties. 10 shelf imaging devices”); id. at Col. 4, Lns. 33–37 (defining “Imaging Device” as “any black and white laser printer or photocopier containing toner with a greater-than 30% iron oxide content”). Plaintiff rejects Defendant’s proposed reference to “a black and white laser printer or photocopier” as redundant. [ECF No. 35 at 9]. Plaintiff argues convincingly that importing what is essentially the construction of “laser printing device” into this term creates redundancies in claims 6 and 8, which both specifically reference a “laser printing device.” [Id.]. Plaintiff’s argument is further supported by a general rule of claim construction in which dependent claims are assumed to narrow the independent claims that they follow. See Phillips, 415 F.3d at 1315 (observing that “the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim”). A review of claims 1 and 6 illustrate the redundancy caused by Defendant’s proposed construction: 1. A method of permanently transferring an image to a substrate having a glossy surface, including: providing a sheet of film-covered transfer paper having the image printed on the film side of the transfer paper, wherein the image is printed with an ironoxide based toner; transferring the film to the glossy surface; and heating the substrate with the film to a temperature sufficient to evaporate the film and to embed the image into the glossy surface. .... 6. The method of claim 1, wherein the step of providing the transfer paper includes printing the image on the film side of the transfer paper with a laser printing device. ’237 Patent, Claims 1, 6 (emphasis added). If the terms “having the image printed” and “image is printed” in claim 1 are construed to require printing with a “black and white laser printer or photocopier,” then claim 6, which requires printing with a laser printing device, is duplicative of what is claimed in claim 1. Thus, the Court will not import the limitation “black and white” into 13 the term “printed” in order to avoid the redundancy between claims 1 and 6 and 1 and 8 that doing so would cause and in light of the construction of the term “laser printing device,” discussed in Section II.I., infra. Defendant’s proposed description of the device used to print as “a printer or photocopier” is more specific than Plaintiff’s proposed “off the shelf equipment,” and is more consistent with the ’237 Patent’s definition for “imaging device,” which references printers and photocopiers. See [ECF No. 30 at 14–16; ECF No. 31 at 20–21; ECF No. 34 at 13]. In addition, where the specification references “off the shelf equipment,” it generally refers back to an “imaging device,” which is a printer or a photocopier, or describes printers and photocopiers specifically. See, e.g., ’237 Patent at Abstract (stating that “[u]sing off-the-shelf supplies and equipment, a user may print or copy any image to an imaging device utilizing toner with iron oxide to imprint the image onto a film covered transfer agent”); id. at Col. 3, Lns. 25–26 (“The printing technique of this invention uses standard off-the-shelf black and white laser printers or photocopiers[] . . . .”). The specification does not refer to other devices, such as fax machines or scanners, as “off-the-shelf,” and the Court sees no reason to expand the definition of “printed” in that way. See id. at Col. 4, Lns. 52–57. Furthermore, the specification defines “off-the-shelf” to include a variety of equipment, including printers, decal paper, and glazes, whereas the primary equipment necessary for the step of “having the image printed” is printers and photocopiers. See id. Accordingly, the Court construes “printed” to mean reproduced using a printer or photocopier. 14 image, melts or evaporates away”); id. at Col. 5, Lns. 52–57 (“During this firing process, the decal’s film layer, residual adhesive, and the polymer additives of the toner melt and or evaporate . . . .”). Defendant argues for the dictionary definition of “evaporate,” or turning a substance into vapor, which it argues a “skilled artisan” would understand the term “evaporate” to mean. [ECF No. 31 at 16 –17]. Defendant insists—and is correct—that “melting” and “evaporating” are two discrete chemical processes. See [id. at 16]. Defendant contends that a few passing references in the specification cannot redefine the term “evaporate” to mean “melt.” [ECF No. 34 at 10]. The term “evaporate” is used twice in the claims as follows:  Claim 1: “heating the substrate with the film to a temperature sufficient to evaporate the film and to embed the image into the glossy surface”  Claim 8: “heating the substrate with the film to a temperature such that the film evaporates and the image embed into the glossy surface.” ’237 Patent, Claims 1, 8. In both claims, the reference to the film evaporating is used as a benchmark to indicate the appropriate temperature for the kiln when firing the object with the film adhered. See id. Both claims 1 and 8 follow the reference to evaporation with an “and” and then introduce another benchmark for the same temperature: embedding the image into the glossy surface. See id. at Col. 6, Lns. 64–65, Col. 8, Lns. 8–9. The use of the term “and” strongly suggests that the temperature benchmarks provided are equivalents; in other words, the kiln must be hot enough to both “evaporate the film” and “embed the image into the glossy surface.” The specification defines “kiln firing temperatures” as “interior kiln temperatures that are high enough to allow glazes and iron oxide pigments to permanently affix to the selected substrate,” which “is often the same or slightly lower than the firing temperature of the original glaze coating of the glossy substrate so that the surface may soften just enough to allow the print to permanently sink in.” Id. at Col. 4, Lns. 44–51. In the exemplary embodiment of the 17 invention, the ceramic plate is fired to cone 6, or 1855 degrees Fahrenheit. Id. at Col. 5, Ln. 51– 52. When heat is slowly applied to a solid, it typically melts and then, after melting into a liquid, evaporates. Were a solid, such as a film, put into a kiln that was then heated up to 1855 degrees Fahrenheit, it would not simply evaporate, or change into a gas. Instead, it would first melt, and then, those portions that became liquid would evaporate. Defendant’s expert supports this basic science when he attests that he understands the ’237 Patent “to mean that, when following steps of the method, the film evaporates (that is, turns from a solid/liquid into a gaseous substance). [ECF No. 31-2 ¶ 73]. He adds that, in his experience, film burns during firing in a kiln, rather than immediately evaporating. [Id.]. Further, the specification acknowledges that the film must first melt before it evaporates, by referring to “the melting phase of the film.” See id. at Col. 2., Ln. 67–Col. 3, Ln. 4 (“Because the printed image is applied with a layer of film sandwiched between the image and the substrate it is counterintuitive to believe that the image would survive the high firing temperatures of a kiln without being corrupted during the melting phase of the film.”). In light of the foregoing, the Court adopts the following construction for the claim term “evaporate”: to change a material into gas, including any predecessor melting phase. Rather than equating the terms “melt” and “evaporate,” this construction defines evaporation to mean both evaporation and the predecessor phase of melting, which more closely reflects the spectrum of activity that occurs and what a person of ordinary skill in the art would understand when reading the claims in the context of the specification. 18 the definition of “Imaging Device.” ’237 Patent at Col. 4, Lns. 33–37. In addition, nothing in the claims limits the term “printing device” to only printers, and Defendant has not adequately supported adopting such a limitation. Second, the Court reads the limitation “black and white” into the term “laser printing device” based on the definitions for “Toner” and “Imaging Device” in the specification and on the repeated use of the phrase “black and white” in the specification and in the original patent terms. The ’237 Patent defines two key terms related to the concept of “laser printing device”: “Toner” and “Imaging Device.” “Toner” is defined as “a printing medium with 30%+ iron oxide content that is found in certain off-the shelf imaging devices.” ’237 Patent at Col. 5, Lns. 1–3. “Imaging Device” is defined in turn as “any black and white laser printer or photocopier containing toner with a greater-than 30% iron oxide content.” Id. at Col. 4, Lns. 33–37. The predominant feature of printing devices mentioned throughout the specification is that they contain an iron-oxide toner. See, e.g., id. at Abstract (“[A] user may print or copy any image to an imaging device utilizing toner with iron oxide . . . .”); id. at Col. 2, Lns. 15–16 (“With the advent of inexpensive mass marketed, ‘off-the-shelf’ black and white laser printers and copiers equipped with iron oxide containing toners . . . .”); id. at Col. 2, Lns. 49–51 (“In embodiments of the present invention, an iron oxide containing toner, standard in many inexpensive mass marketed ‘off-the-shelf’ laser printers and photocopiers . . . .”); id. at Col. 3, Lns. 25–27 (“The printing technique of this invention uses standard off-the-shelf black and white laser printers or photocopiers[] containing iron oxide based toners . . . .”). Where the term “toner” has been limited by the specification to refer to “imaging devices,” which in turn is limited to “any black 21 and white laser printer or photocopier,” it follows that “printing devices” must be limited to black and white devices as well. See id. at Col. 4, Lns. 33–37; id. at Col. 5, Lns. 1–3. In addition, the phrase “black and white” appears in the original proposed claim terms alongside “imaging device.” See [ECF No. 31-1 at 42, 47 (Patent Application) (“The method as claimed in claim 1, wherein said off the shelf equipment is comprised of black and white reprographic imaging devices.”)]. In the updated claims, the term “imaging device” was replaced with “laser printing device,” though no rationale was provided for the replacement. Compare [ECF No. 31-1 at 47 (referencing “black and white reprographic imaging devices”)], with ’237 Patent, Claims 6, 8 (referencing printing with “a laser printing device”). It is clear from looking at the original application that the inventor intended black and white devices to be used. See [ECF No. 31-1 at 42]. Furthermore, the specification also repeats the phrase “black and white” throughout. See, e.g., ’237 Patent at Fig. 1 (referencing “black and white laser printer” and “black and white photocopier”); id. at Fig. 2 (same); id. at Col. 2, Lns. 15–16 (“With the advent of inexpensive mass marketed, ‘off-the-shelf’ black and white laser printers and copiers . . . .”); id. at Col. 3, Lns. 25–27 (“The printing technique of this invention uses standard off-the-shelf black and white laser printers or photocopiers[]. . . .”). Although it is well-settled that courts may not import limitations from the specification into the claims, in some circumstances, as here, a limitation may be read into the claims based on the usage of a term throughout the specification and how a person of ordinary skill in art would understand the claim term, in light of the specification. See ICU Medical, 558 F.3d at 1375 (quoting Phillips, 415 F.3d at 1321, 1323); Phillips, 415 F.3d at 1320, 1323. Based on the definitions provided in the specification and the references throughout the specification and prosecution history, it seems apparent that a person of ordinary skill in the art would understand 22 the term “laser printing device” to refer to only black and white or monochromatic printers and photocopiers. Accordingly, the Court construes the term “laser printing device” to mean a black and white laser printer or photocopier. III. CONCLUSION Accordingly, the claim terms at issue will be construed for the jury and for all other purposes in this litigation in a manner consistent with the above rulings of the Court. For ease of reference, the Court’s constructions are reproduced below in Appendix A. Within seven days of this Order, the parties shall submit a joint status report stating their mutual or respective positions concerning whether the scheduling order in this matter [ECF No. 21] should be amended. Unless the Court issues a new scheduling order, the existing deadlines for fact discovery, expert discovery, and dispositive motions control. SO ORDERED. July 26, 2019 /s/ Allison D. Burroughs ALLISON D. BURROUGHS U.S. DISTRICT JUDGE 23

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