Exmark Manufacturing Company Inc. v. Briggs & Stratton Power Product Group

Filing 156

MEMORANDUM AND ORDER on claim construction (Markman). Ordered by Chief Judge Joseph F. Bataillon. (SMS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EXMARK MANUFACTURING
COMPANY INC.,
Plaintiff,
v.
BRIGGS & STRATTON POWER
PRODUCTS GROUP, LLC, and
SCHILLER GROUNDS CARE, INC.,
Defendants.

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8:10CV187

MEMORANDUM AND ORDER

This action is before the court for resolution of issues of claim construction after a
hearing pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996).
Exmark filed this action for patent infringement. Exmark generally contends that the claims
of the patent in question define the invention in clear and simple terms that a jury can
understand. Defendants disagree and contend that this court should construe a number
of the terms and phrases. The court has carefully reviewed all submissions and pleadings
by the parties, and in particular those submissions relating to the claim constructions,
listened to oral argument, and reviewed the relevant caselaw. The court makes the
following findings.
BACKGROUND
Plaintiff Exmark Manufacturing Co., Inc. (“Exmark”) is a manufacturer of high quality
lawnmowers based in Beatrice, Nebraska. Under the terms of an acquisition dated
November 25, 1997, Exmark is a wholly-owned subsidiary of the Toro Company (“Toro”).

Exmark is the owner of U.S. Patent 5,987,863 (the ‘863 patent”), entitled “Lawn
Mower Having Flow Control Baffles and Removable Mulching Baffles.” On May 12, 2010,
Exmark filed a complaint for infringement of the ‘863 patent against Briggs & Stratton
Power Products Group, LLC (“Briggs”) and Schiller Grounds Care, Inc. (“Schiller”).
The ‘863 patent is part of a family of patents that can be traced back to a parent
patent application, Ser. No. 08/559,575, that was filed November 16, 1995, and later
abandoned. Goggin Ex. 2. The other patents in this family (“the Related Patents”) include
U.S. Patent 5,845,475 (“the ‘475 patent”), U.S. Patent 5,816,033 (“the ‘033 patent”), and
U.S. Patent 5,865,020 (“the ‘020 patent”).
The ‘475 patent application was filed on January 17, 1997, as a continuation in part
of the abandoned application. The ‘863 patent application was thereafter filed on August
18, 1998, as a continuation of the ‘475 patent application.
Exmark is the sole owner of the ‘863 patent. Filing No. 15, Ex. 1. Issued on
November 23, 1999, the patent is for a multi-blade lawn mower that can be converted from
a conventional side discharge mower to a mulching mower. Id. Exmark alleges that
defendants are knowingly and actively engaging in the manufacture and sale of similar
mowers that are covered by the ‘863 patent. Filing No. 14 at 2-4. Exmark contends it has
complied with the statutory requirement of placing a notice of the ‘863 patent on all mowers
it makes that use the patented design. Id. at 2. Lastly, Exmark claims defendants knew
or should have known of the ‘863 patent and that the sale of the mowers in question would
infringe upon the ‘863 patent. Id. at 4.

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Defendant Schiller admits that Exmark is the owner of the ‘863 patent, but denies
any infringement. Filing No. 57 at 2-3. Both parties admit that an “immediate, real, and
justiciable controversy exists” with respect to the validity of at least one claim of the ‘863
patent. Id. at 9; Filing No. 33 at 2.
DISCUSSION
A. Law
The claims of a patent define the scope of the patent. Phillips v. AWH Corp., 415
F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). The claims of a patent are of primary
importance in determining what is patentable and the function and purpose of a claim is
to “delimit the right to exclude.” Id. at 1312. The purpose of claim construction is to
“determin[e] the meaning and scope of the patent claims asserted to be infringed.”
Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff'd,
517 U.S. 370 (1996). The construction of the terms in a patent is a matter of law reserved
entirely for the court. Markman, 517 U.S. at 372. A claim construction order will dictate
how the court will instruct the jury regarding a claim’s scope. O2 Micro Int’l Ltd. v. Beyond
Innovation Technology Co., Ltd., 521 F.3d 1351, 1359 (Fed. Cir. 2008). “A district court
is not obligated to construe terms with ordinary meanings, lest trial courts be inundated
with requests to parse the meaning of every word in the asserted claims.” Id. However,
when the parties raise an actual dispute regarding the proper scope of these claims, the
court, not the jury, must resolve that dispute. Id. at 1360.
The words of a claim are generally given their ordinary and customary meaning,
which is the meaning a term would have to a person of ordinary skill in the art in question

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at the time of the invention. Phillips, 415 F.3d at 1313. The inquiry into how a person of
ordinary skill in the art understands a term provides an objective baseline for which to
begin claim interpretation. Id. Importantly, a person of ordinary skill in the art is deemed
to read the claim term not only in the context of the particular claim in which the disputed
claim appears, but in the context of the entire patent, including the specification. Id. (noting
that a court does not look to the ordinary meaning of the term in a vacuum; it must look at
the ordinary meaning in the context of the written description and the prosecution history).
Absent contravening evidence from the specification or prosecution history, plain and
unambiguous claim language controls the construction analysis. DSW, Inc. v. Shoe
Pavilion, Inc., 537 F.3d 1342, 1347 (Fed. Cir. 2008).
“In some cases, the ordinary meaning of claim language . . . may be readily
apparent even to lay judges, and claim construction in such cases involves little more than
the application of the widely accepted meaning of commonly understood words.” Phillips,
415 F.3d at 1314. However, in many cases, the meaning of a claim term as understood
by persons of skill in the art is not readily apparent. Id. In cases that involve “little more
than the application of the widely accepted meanings of commonly understood words,”
general purpose dictionaries may be helpful, but in many cases, determining the ordinary
and customary meaning of the claim requires examination of terms that have a particular
meaning in a field of art and the court “must look to those sources that are available to the
public that show what a person of skill in the art would have understood the disputed claim
language to mean.” Id. at 1314. “Those sources include ‘the words of the claims
themselves, the remainder of the specification, the prosecution history, and extrinsic

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evidence concerning relevant scientific principles, the meaning of technical terms, and the
state of the art.’” Id. (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Systems,
Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)).
The claims themselves provide substantial guidance as to the meaning of particular
claim terms, quite apart from the written description and the prosecution history. Phillips,
415 F.3d at 1314. The context in which a term is used is highly instructive—other claims
of the patent in question can also be “valuable sources of enlightenment as to the meaning
of a claim term,” as can differences among claims. Id. (also noting that the usage of term
in one claim can often illuminate the meaning of the same term in other claims).
Because the claims do not stand alone, but are part of a fully integrated written
instrument, the specification is usually the best guide to the meaning of a disputed term.
Id. The specification may reveal a special definition given to a claim term by the patentee
that differs from the meaning it would otherwise possess; in such cases, the inventor’s
lexicography governs. Id. The patent’s prosecution history, if it is in evidence, should also
be considered, second in importance to the patent’s specification. Id. at 1317 (noting,
however, that because it represents an ongoing negotiation, the prosecution history “often
lacks the clarity of the specification and is thus less useful for claim construction
purposes”).
When looking at a specification in the patent, the court adheres to two axioms.
Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir. 2004). “On the one
hand, claims ‘must be read in view of the specification, of which they are a part.’” Id.
(quoting Markman, 52 F.3d at 976, aff'd, 517 U.S. 370 (1996). On the other hand, a court

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may not read a limitation from the specification into the claims. Innovad Inc. v. Microsoft
Corp., 260 F.3d 1326, 1332 (Fed. Cir. 2001) (noting that the “interpretative process forbids
importing limitations from the specification into the defining language of the claims.”). The
distinction between using the specification to interpret the meaning of a claim and
importing limitations from the specification into the claim can be difficult to apply in practice.
Phillips, 415 F.3d 1323. The purposes of the specification are to teach and enable those
of skill in the art to make and use the invention and to provide a best mode for doing so,
and “[o]ne of the best ways to teach a person of ordinary skill in the art how to make and
use the invention is to provide an example of how to practice the invention in a particular
case.” Id. On reading the specification in that context, it will often become clear whether
the patentee is setting out specific examples of the invention to accomplish those goals,
or whether the patentee instead intends for the claims and the embodiments in the
specification to be strictly coextensive. Id. (noting also that “there will still remain some
cases in which it will be hard to determine whether a person of skill in the art would
understand the embodiments to define the outer limits of the claim term or merely to be
exemplary in nature.”) A construction which excludes the preferred embodiment of a
pantent is “rarely, if ever, correct.” Adams Respiratory Therapeutics, Inc. v. Perrigo Co.,
616 F.3d 1283, 1290 (Fed. Cir. 2010).
Although intrinsic evidence is preferred, courts are also authorized to rely on
extrinsic evidence “which consists of all evidence external to the patent and prosecution
history including expert and inventor testimony, dictionaries and learned treatises.” Phillips,
415 F.3d 1323 (noting that “extrinsic evidence is less significant than the intrinsic record
in determining the ‘legally operative meaning of claim language.’”). Id.

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The court is guided in its endeavor by several “canons of construction” or
guideposts. Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368, 1376 (Fed.
Cir. 2001). Under the doctrine of claim differentiation, a dependent claim has a narrower
scope than the claim from which it depends and an independent claim has a broader scope
than the claim that depends from it. Free Motion Fitness, Inc. v. Cybex Int’l, Inc., 423 F.3d
1343, 1351 (Fed. Cir. 2005). Also, ordinarily, claims are not limited to the preferred
embodiments disclosed in the specification. Phillips, 415 F.3d at 1323. Different words
in a patent have different meanings and the same words have the same meaning.
Innova/Pure Water, Inc., 381 F.3d at 1119-20. Use of the open-ended term of art,
“comprising,” allows the addition of other elements so long as the named elements, which
are essential, are included. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed.
Cir. 1997); Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 1271 (Fed. Cir. 1986)
(noting that “comprising” opens a method claim to the inclusion of additional steps, but
does not affect the scope of the structure recited within the steps). If possible, claims
should be construed so as to preserve the claim’s validity, but that maxim is limited “to
cases in which ‘the court concludes, after applying all the available tools of claim
construction, that the claim is still ambiguous.’” Phillips, 415 F.3d at 1327 (quoting
Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 911 (Fed. Cir. 2004)). When a
document is “incorporated by reference” into a host document, such as a patent, the
referenced document becomes effectively part of the host document as if it were explicitly
contained therein. Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1329
(Fed. Cir. 2001).

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B. Claim Construction
The court has carefully reviewed the patent at issue and the intrinsic evidence. The
court’s claim construction is generally guided by the language of the claims, in the context
of the other claims of the patent and the specifications. The intrinsic evidence of record
provided a sufficient foundation for the court’s claim construction.
1. Claim Term One - Involves Claims 1, 2, 6 and 7
During the Markman hearing, the parties informed the court that they have now
agreed to the construction of “first flow control baffle” and this court need not make any
constructions in this regard.
The court will note, however, that it has determined that the use of the term “first,”
as in “first flow . . . ,” throughout the list of claim terms and proposed constructions is
construed by the court as the word “front.” In other words, each time the word “first” is
used in the term/phrase in Claim Term numbers 1 through 12, the court is going to
construe that term as “front” hereinafter. Likewise, each time the word “second” is used,
the court is going to change the construction of the word “second” to the word “rear.”
2. Claim Term 2 - Claims 1, 2, 6, and 7
Exmark argues that no construction is required for the phrase “said front flow control
baffle extending substantially continuously from the front location adjacent the interior
surface of said second side of wall to a second location adjacent the interior surface of said
front side wall.” Briggs and Schiller both propose a construction that would require
language stating “said first front control baffle is in contact with or abutting the interior

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surface of the second side wall and the interior surface of the first side wall, namely from
side to side across the deck as shown in Fig. 4 of the ‘863 patent.”
The court finds no support for defendants’ proposed construction and finds no
construction of this term is necessary. The meaning is relatively clear in the context of the
patent as a whole. The word “adjacent” refers to parts that are near one another, but it
does not require touching. There is a presumption that words in a claim mean the same
thing. See PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1366 (Fed. Cir. 2007). The word
“adjacent” is used throughout the specification to mean “near.” There is nothing in the
prosecution history that justifies a change from the ordinary meaning of adjacent, and the
court will not do so.
3. Claim Term 3 - Claims, 1, 2, 6, and 7
Schiller requests that the phrase “and adjacent the forward end of said discharge
opening” be construed to mean “and in contact with or abutting the forward end of said
discharge opening.” Exmark contends that no construction is required. The court agrees
and finds that this language needs no construction and does not require contacting or
abutting the forward end of the discharge opening. Again, as discussed above with Term
2, the word “adjacent” refers to parts that are near one another, but it does not require
touching.
4. Claim Term 4 - Claims, 1, 2, 6 and 7
The disputed phrase is “a front arcuate baffle portion that ‘extends from the interior
surface of said second side wall.’” Exmark argues no construction is needed. Briggs and
Schiller argue for the following construction: “extends from a point in contact with or

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abutting the interior surface of said second side wall.”

Again, the court finds no

construction is required. The court agrees with Exmark that this language does not require
that the first arcuate baffle portion contact or abut the second side wall. See Duhn Oil
Tool, Inc. v. Cooper Cameron Corp., 474 F. Supp.2d 1148, 1168 (E.D. Cal. 2007) (rejecting
the contention that “extending from” required the structures to mechanically or structurally
connected). The jury will be able to determine what “extends” means in this context, and
the court finds no reason to read a limitation into this phrase as requested by defendants.
5. Claim Term 5 - Claims, 1, 2, 6, and 7
The phrase in question is “substantially straight.”

Exmark argues that no

construction is required. Briggs argues that the construction should be “with no apparent
curvature.”

Schiller did not propose any construction.

The court agrees that no

construction is needed. The jury can clearly determine what “substantially straight” means.
See Streck, Inc. v. Research & Diagnostic Sys., Inc., 2008 WL 4891132 *8 (D. Neb. 2008)
(“A jury can be expected to understand that the word ‘substantially’ does not mean ‘fully’
or ‘totally.’”).
6. Claim Term 6 - Claims 1, 2, 6 and 7
The phrase in question is “a front elongated and substantially straight baffle portion,
having first and second ends, extending from said second end of said front arcuate baffle
portion.” Defendants request a construction that states: “a first baffle portion, having a first
and second ends, extending from a point in contact with or abutting said second end of
said first arcuate baffle portion, and being at least as long as said first arcuate baffle
portion.” The court agrees that no construction is required, for much the same reasons as

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set forth in Claim 4. This language does not require the first elongated and substantially
straight baffle portion contact or abut the first arcuate baffle portion. The court agrees with
Exmark that this language does not require that the first arcuate baffle portion contact or
abut the second side wall. The jury will be able to determine what “extends” means in this
context. Further, the reliance by the defendant on the perspective view is not accurate.
The more accurate view is of Figure 2 of the Patent. The jury will likewise be able to
determine what “elongated” means. No additional construction is needed.
7. Claim Term 7 - Claims 1, 2, 6 and 7
The phrase in question states: “said front elongated and substantially straight baffle
portion being angularly disposed with respect to the said circle defined by the blade tip path
of said second cutting blade in a chord-like fashion.” Exmark contends that the word
“chord” is a geometry term and refers to a line joining any two points of a circle. Exmark
proposes the following language: “the front elongated and substantially straight baffle
portion is oriented such that the line corresponding to that baffle portion intersects the
circle defined by the blade tip path of the second cutting blade at two points.” This
language does not require the first elongated and substantially straight baffle portion
physically extend into or underneath the circle defined by the blade tip path of the second
cutting blade. The defendants propose the following construction: “a front elongated and
substantially straight baffle portion intersects and extends into a circle defined by a blade
tip path of a second cutting blade across at least one point.”
The court agrees with Exmark’s proposed construction in part. The court finds that
“‘the front elongated and substantially straight baffle portion is oriented such that the line

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corresponding to that baffle portion intersects the circle defined by the blade tip path of the
second cutting blade at two points” accurately construes the language in question. The
defendants requested language is not supported by the claim language. Further, the court
agrees that were it to construe the language as requested by the defendants, such
construction would be inconsistent with the requirement that the baffle be “between” the
cutting blades and the front wall. The court will not adopt the remaining language offered
by Exmark or the language offered by the defendants.
The court realizes that the examiner, on reexamination, used the words “is not
disposed in the circle” when stating his reasons for the allowance. The court does not
agree with the defendants that these words require the straight baffle portion to extend into
the blade tip path. This interpretation does not make sense with Exmark’s preferred
embodiment. Regardless, the statements of an examiner in reasons for allowance are not
binding on subsequent disputes over claim interpretation. Salazar v. Procter & Gamble
Co., 414 F.3d 1342, 1345 (Fed. Cir. 2005).
8. Claim Term 8 - Claims, 1, 2, 6 and 7
The term or phrase in question is “second flow control baffle.” Exmark proposes:
“a structure within the walls of the mower deck that controls the flow of air and grass
clippings.” The defendants propose: “a flow control baffle that is separate and distinct
from the first flow control baffle.”
The court will adopt the construction proposed by Exmark with one exception. The
construction will now read: “a second rear structure within the walls of the mower deck that
controls the flow of air and grass clippings.” The proposed constructions of the defendants

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are denied. There is no support for the claim of the defendants that the rear flow control
baffle must be “separate and distinct from” the front flow control baffle. Two separate
components can in fact be attached together. The jury can understand these terms.
9. Claim 9 - Claims, 1, 2, 6 and 7
The phrase in question is “semi-circular baffle portions.” Exmark proposes that the
court construe the phrase to mean “baffle portions that are shaped like a portion or part of
a circle. There is no requirement that a semi-circular baffle portion be half of a circle.”
Briggs proposes that the court construe the phrase as a “curved baffle portions that form
half a circle.” Schiller offers no construction.
The court agrees with the construction offered by Exmark in part. The court will
construe the phrase “semi-circular baffle portions” to mean “baffle portions that are shaped
like a portion or part of a circle.” The court will not adopt the second half of Exmark’s
construction or the construction suggested by Briggs. It is clear from Figure 4, Filing No.
116 at 41, page ID # 1771, that the sections in questions are a portion of a circle, but are
not half of a circle. To construe the phrase any other way would also be contrary to the
preferred embodiment. Exmark’s construction is also consistent with the prosecution
history.
10. Claim Term 10 - Claims 1, 2, 6, and 7
The phrase in question is “said front and rear flow control baffles defining a plurality
of open throat portions which are positioned between adjacent cutting blades.” Exmark
contends that no construction is required. Defendants ask this court for the following

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proposed construction: “a plurality of open throat portions, as defined by the front and rear
baffles, are disposed between each pair of adjacent cutting blades.”
The court finds no construction is required. There is no showing that the language
requires two open throat portions as described by the defendants. The court finds that the
construction suggested by Exmark is the preferred embodiment, and defendants’
construction would exclude the preferred embodiment.
11. Claim Term 11 - Claims 6 and 7
The phrase in dispute is “a rear elongated and substantially straight baffle portion,
having front and rear ends, extending from said rear end of said rear arcuate baffle
portion.” Exmark contends that there is no construction required, as “this language does
not require that the second elongated and substantially straight baffle portion contact or
abut the second arcuate baffle portion.” The defendants offer the following proposed
construction: “a second baffle portion, having first and second ends, extending from a
point in contact with or abutting said second end of said second arcuate baffle portion, and
being at least as long as said second arcuate baffle portion.”
The court agrees with Exmark that no construction is needed, and this construction
is virtually the same issue as Term 6. The court agrees with Exmark that this language
does not require that the first arcuate baffle portion contact or abut the second side wall.
The jury will be able to determine what “extends” means in this context.
12. Claim Term 12 - Claims 6 and 7
The phrase in dispute states: “said rear elongated and substantially straight baffle
portion being disposed with respect to the said circle defined by the blade tip path of said

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third cutting blade in a chord-like fashion.” Exmark proposes “the second elongated and
substantially straight baffle portion is oriented such that the line corresponding to that baffle
portion intersects the circle defined by the blade tip path of the gird cutting blade at two
points.” The defendants propose the following construction: “a second elongated and
substantially straight baffle portion intersects and extends into a circle defined by a blade
tip path of a third cutting blade across at least one point.”
The court agrees with Exmark’s proposed construction and will adopt the same and
notes that these issues are virtually the same as Term 7. The court agrees with Exmark
that “the [phrase] language does not require that the second elongated and substantially
straight baffle portion physically extend into or underneath the circle defined by the blade
tip path of the third cutting blade.”
THEREFORE, IT IS ORDERED that the court adopts the following claim
constructions:
1. All Claims: Each time the word “first” is used in the term/phrase in Claim Term
numbers 1 through 12, the court is going to construe that term as “front.” Likewise, each
time the word “second” is used, the court is going to change the construction of the word
“second” to the word “rear.”
2. Claim 2: The court finds that the phrase “said front flow control baffle extending
substantially continuously from the front location adjacent the interior surface of said
second side of wall to a second location adjacent the interior surface of said front side wall”
needs no construction.
3. Claim 3: The court finds the phrase “and adjacent the forward end of said
discharge opening” needs no construction.
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4. Claim 4: The court finds the phrase “a front arcuate baffle portion that ‘extends
from the interior surface of said second side wall’” needs no construction.
5.

Claim 5:

The court finds the phrase “substantially straight” needs no

construction.
6. Claim 6: The court finds the phrase “a front elongated and substantially straight
baffle portion, having first and second ends, extending from said second end of said front
arcuate baffle portion” needs no construction.
7. Claim 7: The court finds the phrase “said front elongated and substantially
straight baffle portion being angularly disposed with respect to the said circle defined by
the blade tip path of said second cutting blade in a chord-like fashion” shall be construed
to mean that “the front elongated and substantially straight baffle portion is oriented such
that the line corresponding to that baffle portion intersects the circle defined by the blade
tip path of the second cutting blade at two points.”
8. Count 8: The court finds the phrase “second flow control baffle” shall be
construed to mean “a second rear structure within the walls of the mower deck that controls
the flow of air and grass clippings.”
9. Count 9: The court finds the phrase “semi-circular baffle portions” shall be
construed to mean “baffle portions that are shaped like a portion or part of a circle.”
10. Count 10: The court finds the phrase “said front and rear flow control baffles
defining a plurality of open throat portions which are positioned between adjacent cutting
blades” needs no construction.

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11. Count 11: The court finds the phrase “a rear elongated and substantially
straight baffle portion, having front and rear ends, extending from said rear end of said rear
arcuate baffle portion” needs no construction.
12. Count12: The court finds the phrase “said rear elongated and substantially
straight baffle portion being disposed with respect to the said circle defined by the blade
tip path of said third cutting blade in a chord-like fashion” is construed to mean “the rear
elongated and substantially straight baffle portion is oriented such that the line
corresponding to that baffle portion intersects the circle defined by the blade tip path of the
gird cutting blade at two points.”
DATED this 29th day of November, 2011.
BY THE COURT:

s/ Joseph F. Bataillon
Chief District Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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