Tama Plastic Industry v. Pritchett Twine & Net Wrap, LLC et al

Filing 308

MEMORANDUM AND ORDER wherein the Court adopts certain claim constructions regarding "Longitudinal Polyolefin Ribbons," "Calculated Ribbon Length," "Knitted with" terms, "Reduced Lateral Shrinkage," "Each o f Said Triangles Having a Base Dimension and a Height Dimension," "Height Dimension Defining a Distance Between Said Adjacent Longitudinal Ribbons," and "Calculating Ribbon Length which is Based on Said Height Dimension." Ordered by Senior Judge Lyle E. Strom. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TAMA PLASTIC INDUSTRY,

)
)
Plaintiff,
)
)
v.
)
)
PRITCHETT TWINE & NET WRAP,
)
LLC, and JOSEPH JERALD
)
PRITCHETT,
)
)
Defendants.
)
______________________________)

8:12CV324

MEMORANDUM AND ORDER

This matter is before the Court for the construction of
patent claim terms in accordance with Markman v. Westview
Instruments, Inc., 517 U.S. 370 (1996).

In this case, Tama

Plastic Industry (“Tama”) alleges infringement of United States
Patent Number 6,521,551 (“the ‘551 Patent”) by Pritchett Twine
& Net Wrap and Joseph Jerald Pritchett (collectively “Pritchett”
or “Pritchett defendants”).

The parties have submitted proposed

claim constructions, opening and responsive briefs, and
corresponding indices of evidence, and the Court heard oral
arguments on May 20, 2014.

After consideration of the briefs,

evidence, oral argument, and relevant law, the Court will rule as
follows.
I.

Background and Procedural History
There are three United States Patent and Trademark

Office (“PTO”) documents related to the this case.

The first is

United States Patent 5,256,353 (the “Lieber patent”).

Yuval

Lieber filed his application in 1991 and received his patent
October 26, 1993.

Filing No. 273-8, at 2.

The Lieber patent is

entitled “METHOD OF MAKING ELASTIC PLASTIC NETTING MADE OF
ORIENTED STRANDS.”

Id.

Second, Yuval Lieber filed a United States Patent
Application, 08/978,235 (“Parent application”), on November 25,
1997.

Filing No. 273-14, at 2.

The Parent application was

entitled “MODIFIED SHUSS KNITTED NETTING.”

Id. at 4.

The PTO

rejected the Parent application as anticipated by the Lieber
patent.

Id. at 8-9.
Third, Tama filed the application for the ‘551 patent.

The ‘551 is also entitled “MODIFIED SHUSS KNITTED NETTING” and
was issued February 18, 2003 (Filing No. 273-1) from an
application filed August 21, 2000, with the PTO.

During the

prosecution process, the PTO rejected all of Tama’s claims.
Filing No. 273-7, at 154-56.

A major issue, in the eyes of the

PTO, was whether the ‘551 patent was distinct from a “Reduced

-2-

Distance Net.”1

Id. at 165.

After Tama made certain amendments,

the PTO allowed the ‘551 patent.
The ‘551 patent abstract describes the invention.
A knitted netting includes
longitudinal polyolefin ribbons and
lateral polyolefin ribbons knitted
with the longitudinal polyolefin
ribbons to form knitted netting.
The lateral polyolefin ribbons of
the knitted netting have an actual
shuss length more than 110% of a
calculated shuss length for the
knitted netting. The actual shuss
length being in excess of 110% of
the calculated shuss length of the
knitted netting prevents transverse
shrinkage of the netting.

1

The defendants offer the following definition:
“Reduced Distance Net” . . . is
netting that exhibits slack in one
or more lateral polyolefin ribbon
of greater than 10% because it was
manufactured in a conventional
manner at a width which is greater
than the width at which the net is
subsequently placed on a roll for
subsequent sale and/or use. For
any given roll width “Reduced
Distance Net” can be distinguished
from a net made according to the
claimed invention as the “Reduced
Distance Net” will have more
longitudinal ribbons when both nets
are made using the same needle
spacing for the needles which
knitted the longitudinal ribbons
into the netting.

Filing No. 272, at 54.
-3-

Filing No. 273-1, at 1.

Essentially, the invention is an elastic

net used for wrapping hay.

The elasticity of the net allows the

net to stretch across the bail without shrinking the net.
The following is a diagram showing a “knitted Raschel
netting in accordance with the invention,” Figure 2 of the ‘551
patent.

Filing No. 273-1, at 3.

“Raschel” refers to a machine

which performs mass needle-and-stitch work.

Number 18 is

directed toward a line on the diagram called a “Schuss,” which is
a German word meaning “shoot.”

Number 20 is directed toward a

line called the “Franse,” which is a German word meaning
“fringe.”

The Franse and Schuss are manufactured into this

pattern to create the net.

-4-

Tama filed this action against the Pritchetts and other
defendants in the Southern District of Indiana in June 2011.
There, Tama alleged that the defendants manufactured goods in
China in violation of its patent and then shipped those goods to
Nebraska, among other places.

Filing No. 189, at 1.

Several

defendants were terminated from this action and now the suit is
exclusively between Tama and the Pritchett defendants.

Id. at 2.

Despite opposition from both parties, the Indiana Court
transferred the action to Nebraska, the residence of the
Pritchetts.
In Nebraska, Pritchett was granted a partial stay in
litigation pending a reexamination of patent ‘551.
236, at 11.

Filing No.

On August 6, 2013, the PTO issued a Notice of Intent

to Issue an Ex-Parte Reexamination Certificate, confirming the
patentability of all the claims in question.
1.

Filing No. 245, at

Thereafter, the parties began motion practice for the Markman

hearing, which was held May 20, 2014.
II.

Legal Standard
“It is, of course, ‘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.’”

Medegen MMS, Inc.

v. ICU Medical, Inc., 317 Fed. Appx. 982, 986 (Fed. Cir. 2008)
(citing Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir.
-5-

2005) (en banc)) (internal quotations omitted).

In construing a

claim term, the Court must give, to the extent possible, each
term its “ordinary and customary meaning, as [it] would be
understood by one of ordinary skill in the art in question at the
time of the invention.”

Intervet Inc. v. Merial Ltd., 617 F.3d

1282, 1287 (Fed. Cir. 2010) (citing Phillips, 415 F.3d at 131213).
The Court’s construction of these terms considers
“sources available to the public that show what a person of skill
in the art would have understood disputed claim language to
mean.”

Phillips, 415 F.3d at 1314 (quoting Innova/Pure Water,

Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116
(Fed. Cir. 2004)).

These sources include:

(1) the patent claims

themselves; (2) the remainder of the patent’s specification; (3)
the patent’s prosecution history; and (4) extrinsic evidence
pertaining to relevant scientific principles, such as a technical
term’s meaning and the state of the art.

Phillips, 415 F.3d at

1314.
First, the Court begins with the words of the claims to
define the scope of the patented invention.

See Vitronics Corp.

v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).

“The

written description part of the specification itself does not
delimit the right to exclude. That is the function and purpose of
-6-

claims.”

Markman v. Westview Instruments, Inc., 52 F.3d 967, 980

(Fed. Cir. 1995), aff’d, 517 U.S. 370 (1996).
The meaning of a term in one claim illustrates the
meaning of that word in other claims.
1314-15.

See Phillips, 415 F.3d at

“Where claims use different terms, those differences

are presumed to reflect a difference in the scope of the claims.”
Forest Labs., Inc. v. Abbott Labs., 239 F.3d 1305, 1310 (Fed.
Cir. 2001).
Second, the Court uses specifications to analyze the
terms.

Specifications are “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.”

Phillips,

415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582).
“Importantly, the 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 term appears, but in the context of
the entire patent, including the specification.”
F.3d at 1313.

Phillips, 415

Specifications contain a written description of

the invention, the manner and process of making and using it, and
the best mode contemplated by the inventor of carrying out the
invention.

See 35 U.S.C. § 112(a).
Because “the specification often describes very

specific embodiments of the invention, we have repeatedly warned
-7-

against confining the claims to those embodiments.”
415 F.3d at 1323.

Phillips,

While the specification may shed contextual

light on the plain and ordinary meaning, they cannot be used to
narrow a claim term to deviate from the plain and ordinary
meaning unless the inventor acted as his own lexicographer or
intentionally disclaimed or disavowed claim scope.

See Aventis

Pharm. Inc. v. Amino Chem. Ltd., 715 F.3d 1363, 1373 (Fed. Cir.
2013).

Thus “[t]he longstanding difficulty is the contrasting

nature of the axioms that (a) a claim must be read in view of the
specification and (b) a court may not read a limitation into a
claim from the specification.”

Innova, 381 F.3d at 1117.

Third, the Court looks to the prosecution history of
the patent to ascertain the true meaning of language used in the
patent claims.

See Markman, 52 F.3d at 980.

“This history

contains the complete record of all the proceedings before the
[PTO], including any express representations made by the
applicant regarding the scope of the claims.

Thus, the record

before the [PTO] is often of critical significance in determining
the meaning of the claims.”

Vitronics, 90 F.3d at 1582.

“[T]he

prosecution history can often inform the meaning of the claim
language by demonstrating how the inventor understood the
invention and whether the inventor limited the invention in the

-8-

course of prosecution, making the claim scope narrower than it
would otherwise be.”

Phillips, 415 F.3d at 1317.

“The public notice function of a patent and its
prosecution history requires that a patentee be held to what he
declares during the prosecution of his patent.”

Springs Window

Fashions LP v. Novo Indus., L.P., 323 F.3d 989, 995 (Fed. Cir.
2003).

“A patentee may not state during prosecution that the

claims do not cover a particular device and then change position
and later sue a party who makes that same device for
infringement.”

Id.

“‘The purpose of consulting the prosecution

history in construing a claim is to exclude any interpretation
that was disclaimed during prosecution.’”

Chimie v. PPG Indus.,

Inc., 402 F.3d 1371, 1384 (Fed. Cir. 2005).
III. Claim Construction
Generally, the issue before the Court is the effect of
the various encounters with the ‘551 patentees and the PTO office
to determine whether the patentees disclaimed certain aspects of
the patent.

The defendants’ definitions assume the disclaimers

occurred and therefore limit the patent.

Tama insists that no

disclaimers occurred and that plain meaning controls.

The Court

notes the parties agreed at oral arguments that the term “at
least 10% greater than” should be given its plain, ordinary

-9-

meaning, and, therefore, the Court defers to the parties’
agreement.
A. "Longitudinal Polyolefin Ribbons" (Claims 1, 13, 24, and 29)
Tama’s Proposed Construction

Pritchett’s Proposed Construction

Ribbons of polyolefin that
run in the lengthwise
direction in a knitted
netting. Also, "Franze"
ribbons.

“Longitudinal ribbons, made of
polyolefin, which will stretch
more than about 20% before they
break.”

At oral arguments, the parties referred to these
ribbons as Franze, vertical ribbons, and longitudinal ribbons.
For clarification of the record, these various terms describe
item 20 on Figure 2.
1. The Claim Language.
Tama states the plain, ordinary meaning of
"Longitudinal Polyolefin Ribbons" because it is clear on its
face.

Pritchett claims that the invention requires elastic

polyolefin, able to stretch more than 20% before breaking.

The

term “Longitudinal Polyolefin Ribbons” appears throughout the
patent claims and figures.

-10-

2. Specification Disclosure.
Where the specification makes clear
that the invention does not include
a particular feature, that feature
is deemed to be outside the reach
of the claims of the patent, even
though the language of the claims,
read without reference to the
specification, might be considered
broad enough to encompass the
feature in question.
Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1366
(Fed. Cir. 2012) (quoting SciMed Life Sys., Inc. v. Advanced
Cardiovascular Sys., Inc., 242 F.3d 1337, 1341 (Fed. Cir. 2001)).
“Generally, a claim is not limited to the embodiments described
in the specification unless the patentee has demonstrated a clear
intention to limit the claim’s scope with words or expressions of
manifest exclusion or restriction. . . . By the same token, not
every benefit flowing from an invention is a claim limitation.”
i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 843 (Fed. Cir.

-11-

2010) (quotation and citation omitted), aff’d, 131 S. Ct. 2238
(2011).
According to Pritchett, a specification requires an
addition of a 20% stretch requirement into this claim’s
construction.

The ‘551 patent reads “[t]he preferred amount of

elongation of the shuss length depends upon the particular
netting application.

For elastic pallet wrapping, the preferred

actual shuss length is about 135% of the calculated shuss length
for the netting.

For conventional wrapping netting with an

elongation at break of about 20%, a modified shuss is not needed
because such netting only elongates about 1—3% in normal use and
does not exhibit transverse shrinkage.”
line 19-26.

‘551 patent, col. 3,

Pritchett reads this language to require

longitudinal polyolefin ribbons to stretch more than 20% before
breaking.

This reading cannot withstand scrutiny.

The language

of the specification is far from the clear intention required to
limit the scope of the modified shuss claims.

See Liebel-

Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir.
2004), Epistar Corp. v. Int'l Trade Comm'n, 566 F.3d 1321, 1337
(Fed. Cir. 2009).

The specification qualifies its language with

words such as “preferred amount of elongation” and “not needed.”
It does not follow that a modified shuss could not be used with
less elasticity, even though it may not be preferred or needed.
-12-

Therefore, the specifications do not clearly require the
longitudinal polyolefin ribbons to stretch 20% before breaking
and the Court will give this term its plain, ordinary meaning.
The Court adopts Tama’s construction.
B. "Calculated Ribbon Length" (Claims 1, 13, 24, and 29)
Tama’s Proposed Construction

Pritchett’s Proposed Construction

A lateral (shuss) ribbon in
a knitted netting in the
context of a triangle
pattern wherein calculated
ribbon length is defined as
the "calculated shuss
length" in the '551 Patent
at column 3, lines 27-64 and
in Figure 3c.

The length of lateral ribbon
which is needed for a given
knitting pattern with two
adjacent longitudinal ribbons so
that the lateral ribbon is taut
when the adjacent longitudinal
ribbons are also taut and spaced
apart at the distance they were
at the time of manufacture of the
netting, which is the spacing of
the adjacent knitting needles on
the Raschel knitting machine that
knitted the longitudinal ribbons
into the netting.

1. Specification Disclosure.
The specification, column 3, lines 27-64, defines the
term “Calculated Ribbon Length.”

Essentially, the method of

calculating the ribbon length is the Pythagorean theorem (A2
= C2).

-13-

+

B2

Patent ‘551 first requires the measurement of the
average length of the roll on which the netting sits (O in Figure
3a) and the length of the entire netting from the two extreme
franzes (L in Figure 3a).

The length measurement must then be

divided by the number of franzes, minus one, in order to
calculate the average length between the franzes (H in Figure
3c).

-14-

Second, the ‘551 patent calls for the unrolling of the
netting to allow for the measure of ten bases (10A in Figure 3b).
A base, in this sense, is the length of the Franze between two
Shusses.

The total measurement of the ten bases is then divided

by ten to calculate an average base (A in Figure 3c).
From these averaged lengths of the distances between
Franzes (H in Figure 3a) and Shusses (A in Figure 3c), the patent
finally gives the following algebraic formula to calculate the
ribbon length (S/2 in Figure 3c): S = 2 /((A/2)2 + H2).

The

parties agree, in spirit if not form, with these underlining
mathematic principles.
The parties diverge on the issue of “Reduced Distance
Net.”

In the prosecution of the ‘551 patent, the examiner

rejected Tama’s claims in its application because “actual ribbon
length that is at least 10% greater than a calculated ribbon
length” was indefinite and lacked a specified tension.
No. 273-7, at 154.

Filing

Without a constant tension, the examiner

reasoned, the measurement of the shuss could be manipulated.
By way of example, the Pritchett defendants have
supplied the following image to illustrate the examiner’s
position.
bottom.

It shows different net lengths on the top and the
At the top, the netting is just coming out of the

Raschel machine; this length is the “manufacture length.”
-15-

At the

bottom, the netting is wrapped around a roll which has a width
less than that of the Raschel machine; this length is the “roll
length.”

-16-

The examiner postulated that all netting whose roll
length was less than its manufacture length was effectively
“scrunched” and its “calculated ribbon length” from the roll
would be 10% greater than the actual shuss length.

Therefore,

the calculations defining a modified shuss could also include a
“Reduced Distance Net.”

Without a tension basis, the examiner

declared the calculation indefinite.

Tama then persuaded the

examiner to change her position through an amendment to the
patent.
The issue is whether Tama made statements to the
examiner constituting a “clear and unmistakable” disclaimer.
Cordis Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir.
2009).

The Pritchett defendants have not satisfied the legal

requirement that such evidence be clear and unmistakable.

The

defendants cannot point to a statement which disclaims “reduced
distance netting” but instead infers a disclaimer because the PTO
changed its opposition to the patent.

The record specifically

explains the PTO relented because of Tama’s amendments and the
record offers no other clear explanation.
9.

Filing No. 270-11, at

This lack of substantive support of the defendants’ position

is fatal and the Court cannot establish a disclaimer without such
evidence.

Therefore, the Court adopts the plaintiff’s definition

of “calculated ribbon length” -- “[a] lateral (shuss) ribbon in a
-17-

knitted netting in the context of a triangle pattern wherein
calculated ribbon length is defined as the ‘calculated shuss
length’ in the '551 Patent at column 3, lines 27-64 and in Figure
3c.”
C. "Knitted with" terms (Claims 1, 13, 24, and 29)
Tama’s Proposed Construction

Pritchetts’ Proposed Construction

Netting having a plurality
of lateral polyolefin
ribbons and longitudinal
polyolefin ribbons, where a
lateral polyolefin ribbon is
interconnected with a
longitudinal polyolefin
ribbon with at least one
loop. The netting is not
limited by the specific
knitting machine or
processes used to produce
the netting.

Each of the phrases means
longitudinal polyolefin ribbons
knitted with lateral polyolefin
ribbons on a Raschel knitting
machine having a modified trick
plate to form a netting that
could not have otherwise been
made on a Raschel knitting
machine having a conventional
trick plate.

+ "lateral polyolefin
ribbons" are ribbons of
polyolefin that have some
lateral path in a knitted
netting.
+ "Raschel" modifies
"knitted netting" and refers
to a netting in a warp
knitted configuration.

"Knitted" in the above means the
lateral polyolefin ribbons are
interlocked with the longitudinal
polyolefin ribbons in an
interlooped configuration.
"Interlooped" means a lateral
ribbon forms a loop that is
interlocked with a loop formed by
a longitudinal ribbon.

The parties disagree whether the words “knitted with”
should define the method the longitudinal and lateral ribbons are
connected.

Tama states the ‘551 patent does not require one

ribbon to be knitted with the other.

-18-

Filing No. 269, at 23.

The

Pritchett defendants believe the Court should apply the plain,
ordinary meaning of “knitted with” to a person of ordinary skill
in the art.
The plain, ordinary meaning to a person of ordinary
skill in the art of “knitted with” will control.
broaden the verb “to knit” into “to connect.”

Tama tries to

According to Tama,

knitting is not a limitation as to whether or how the ribbons in
the claims or specifications are to be connected.
284, at 23.

Filing No.

Though Tama admits that claims require the ribbons

to connect and become part of the netting, Tama asserts “knitted
with” does not require that one ribbon be knitted to the other.
Id. at 23.
Tama instead explains “knitted with” refers to the
“pillar stitches”2 of the longitudinal ribbons.

Essentially,

Tama’s definition of “knitted with” includes whenever a nonknitted ribbon is connected to a knitted (pillar stitch) ribbon,
because the pillar stitch is actually knitted.

Tama cites the

specifications to assert “the lateral ribbons are in contact with
the longitudinal ribbons, and the longitudinal ribbons are
‘knitted’ with or in the presence of lateral ribbons, which

2

The parties agree that pillar stitches are knitting, but
the Pritchett defendants do not agree that the existence of
pillar stitches satisfies the “knitted with” language. Filing
No. 273-4, at 6-7.
-19-

result in knitted netting.”

Id. at 24.

These arguments lack

merit.
The Court begins with the standard and heavy
presumption that the Court must give the term its ordinary and
customary meaning, when practicable, as understood by one of
ordinary skill in the art.

See Intervet Inc., 617 F.3d at 1287.

According to the Pritchett defendants’ expert, Don Ward, knitting
is “the process of interlocking loops formed by one or more
threads to produce a product.”

Filing No. 273-4, at 4-5.

The

Pritchett defendants submitted a textbook, Knitting Technology.
In that book, there are three principal methods of mechanically
manipulating yarn into textile fabrics:

interweaving,

intertwining, and interlooping.

Id.

“Knitting is the most

common method of interlooping.”

Interlooping is defined as

forming yarn “into loops each of which is typically only released
after a succeeding loop has been formed and intermeshed with it
so that a secure ground loop structure is achieved.”

Id.

Tama admits that a laid-on ribbon, the method by which
Tama connects the longitudinal and lateral ribbons in its
preferred embodiment, may not itself be “knitted.”
284, at 25.

Filing No.

Laying-in is a method where a “ground structure of

knitted (overlapped) threads which hold in position other nonknitted threads which were incorporated (laid in) into the
-20-

structure during the same knitting cycle.”
5.

Filing No. 273-4, at

A person of ordinary skill in the art understands the

distinction between “laying-in” and knitting one ribbon with
another.
Tama attacks the Pritchett defendants’ definition of
“knitted with” because it would exclude its preferred embodiment
of its netting.

Filing No. 284, at 26 (citing MBO Labs. Inc. v.

Becton, Dickinson & Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007)).
However, the Pritchett defendants did not create the definition
of “knitted with” out of full cloth.

It was the very language

Tama used in its claims and its ordinary and customary meaning as
understood by one of ordinary skill in the art.

Miken Composites

L.L.C. v. Wilson Sporting Goods Co., 515 F.3d 1331, 1337 (Fed.
Cir. 2008) (citing Hoganas AB v. Dresser Indus., Inc., 9 F.3d
948, 951 (Fed. Cir. 1993)).

The Court will not allow Tama to

recreate its patent anew.
The Court analyzed whether the term necessitates the
use of a Raschel device.

The Court concludes that the

specifications cannot be read to limit the ‘551 patent to use
only on Raschel machines.
The Court reviewed the ‘551 patent to determine whether
Tama acted as its own lexicographer, but there is no clear or

-21-

explicit definition in the specifications to redefined “knitted
with” to include all forms of connection.
The Court adopts the following definitions.

“Knitted

with” means “the connection of the longitudinal polyolefin
ribbons with lateral polyolefin ribbons by interlocking the
lateral polyolefin ribbons with the longitudinal polyolefin
ribbons in an interlooped configuration.”

"Interlooped" means a

“lateral ribbon forms a loop that is interlocked with a loop
formed by a longitudinal ribbon.”
D. "Reduced Lateral Shrinkage" (Claims 1, 13, 24, and 29)
Tama’s Proposed Construction

Pritchett’s Proposed
Construction

-22-

Subject netting has a reduced lateral
shrinkage (% elongation v. %
shrinkage) where it exhibits less
lateral shrinkage than a relative
netting (a) produced with an actual
ribbon length equal to the calculated
ribbon length (with respect to claims
1, 24, and 29) or (b) produced
without said modified ribbon (with
respect to claim 13), when the
subject netting and relative netting
are longitudinally stretched up to
100% of their original lengths.
Any other differences between the
subject netting and the relative
netting that impact lateral shrinkage
characteristics are minimized.
"Actual ribbon length" is a measured
length for a lateral (shuss) ribbon
in a knitted netting of a triangle
pattern, and is defined as "the
actual shuss length" (ASL) in the
definition of a "calculated shuss
length" in the '551 Patent, which is
defined at column 3, lines 52-57.

The netting always has a
lateral shrinkage less
than the lateral
shrinkage of netting
produced with an actual
ribbon length equal to
the calculated ribbon
length when both
nettings are
longitudinally stretched
from above 3% to 100% of
their original length,
provided that the two
comparative nettings are
otherwise identical,
including the same
longitudinal and lateral
ribbons, polyolefin
material, configuration,
sizing and method of
manufacture.

The Pritchett defendants have provided a demonstration
of lateral shrinkage in their brief.

Below is a graph depicting

the invention in three stages as it is stretched longitudinally
(elongated).

In stage A, there is no elongation.

In stage B,

elongation of the invention stretches the longitudinal distance
and shrinks the lateral distance.

In stage C, the continued

elongation of the invention incrementally stretches the
longitudinal distance and shrinks the lateral distance.

-23-

Longitudinal stretching of nets causes lateral shrinkage.

See

Filing No. 272, at 16.

The measurement of lateral shrinkage is another
characteristic of the ‘551 patent.

Elongated ribbon measurements

are calculated to compare lateral shrinkage of the modified
ribbon compared to netting produced without a modified ribbon.
Filing No. 273-1, at 11.
Two issues arise from this term.

First, the parties

contest whether the modified shuss netting and the non-modified

-24-

shuss netting must be identical or comparable.
parties
1.

Second, the

contest the meaning of “elongation up to 100%.”
Netting Differences Minimized v. Identical Netting
The claims and the specifications do not require

identical netting for comparing the nettings.

The Pritchett

defendants argue Tama disclaimed Reduced Distance Netting and
agreed to edit its claims in order to receive its patent.
The defendants again try to infer a disclaimer without
clear evidence of such disclaimer.

Tama filed a response to the

PTO’s rejection of the Parent application.
178.

Filing No. 273-7, at

Tama said it agreed with the PTO examiner to would amend

claims 9 and 31 to include the phrase “reduced lateral shrinkage
relative to netting produced without a modified ribbon upon
elongation up to 100%”, or something “very similar.”
Substantively, this phrase is in the ‘551 patent.
amendment in the ‘551 patent.
patentable.

Tama made the

The PTO found that amendment

The defendants’ evidence is insufficient for the

Court to modify the plain, ordinary meaning of these claims.
2.

Up to 100% Elongation
The Court finds this term shall have its plain,

ordinary meaning.

The term does not include 100% elongation.

Therefore, the Court adopts the plaintiff’s construction of these
terms.
-25-

E. "Each of Said Triangles Having a Base Dimension and a Height
Dimension" (Claim 29)
Tama’s Proposed Construction

Pritchett’s Proposed Construction

"Said triangles" means "a
pattern of triangles between
adjacent longitudinal
ribbons."

“[T]hese terms do not require
construction, but rather are
consistent with the base and
height of the Raschel triangle
described [in the defendant’s
proposed construction of] the
term ‘calculated ribbon length’.”
Filing No. 272, at 50.

The base dimension of a
triangle of the netting is a
measured length in the
netting and is part of the
definition of "calculated
shuss length" in the '551
Patent at column 3, lines
41-47, and is shown as "A"
in Figure 3c.
The height dimension of a
triangle is a measured
length in the netting and
part of the definition of
"calculated shuss length"
the '551 Patent at column
lines 36-40, and is shown
"H" in Figure 3c.

is
in
3,
as

The parties’ arguments are contingent upon the Court’s
construction of “calculated ribbon length.”

Because the Court

adopted Tama’s construction of calculated ribbon length, the
Court adopts Tama’s construction of this term.

-26-

F. "Height Dimension Defining a Distance Between Said Adjacent
Longitudinal Ribbons" (Claim 29)
Tama’s Proposed Construction

Pritchett’s Proposed Construction

A measured length in the
netting and is part of the
definition of "calculated
shuss length" in the '551
Patent at column 3, lines
36-40, and is shown as "H"
in Figure 3c.

The distance, at the time of the
manufacture of the netting,
between longitudinal ribbons,
which is spacing of the adjacent
knitting needles on the Raschel
knitting machine that knitted
them into the netting.

The plain language of the claim and the specifications
support the plaintiff’s proposed construction.
269, at 32-33.

See Filing No.

The defendants seek to introduce additional

concepts from the specifications, including “the Raschel
Triangle,” into the construction of this claim.

Filing No. 272,

at 44; Filing No. 281, at 25; Filing No 273-1, at 11.

The ‘551

patent’s claims cannot be reworded because of the specifications.
Innova, 381 F.3d at 1117 (quoting White v. Dunbar, 119 U.S. 47,
51-52 (1886)).

Tama and the PTO were aware of the defendants’

method of calculating measurements directly from a Raschel
machine’s needle settings at the time the patent was issued;
however, the patent did not include the defendants’ method and
clearly requires a different method.
Also, the Court does not adopt the defendants’
purported disclaimers.

Therefore, the Court will not adopt the

defendants’ construction which necessitates the use of a Raschel
-27-

machine.

Because of the language in the specifications and

claims, the Court adopts the plaintiff’s definition of this term.
G. "Calculating Ribbon Length which is Based on Said Height
Dimension" (Claim 29)
Tama’s Proposed Construction

Pritchett’s Proposed
Construction

The height dimension of a
triangle in the netting means
a measured length in the
netting and is part of the
definition of "calculated
shuss length" in the '551
Patent at column 3, lines 3640, and is shown as "H" in
Figure 3c.

“[T]he proper construction of
the term “calculated ribbon
length’ discussed above, should
also apply to its use in claim
29.” Filing No. 281, at 25.

The parties’ arguments are contingent upon the Court’s
construction of “calculated ribbon length.”

Because the Court

adopted Tama’s construction of calculated ribbon length, the
Court adopts Tama’s construction of this term.
IT IS ORDERED:
The Court adopts the following claim constructions:
A. "Longitudinal Polyolefin Ribbons" (Claims 1, 13, 24, and 29)
Ribbons of polyolefin that run in the lengthwise direction in a
knitted netting. Also, "Franze" ribbons.

-28-

B. "Calculated Ribbon Length" (Claims 1, 13, 24, and 29)
A lateral (shuss) ribbon in a knitted netting in the context of
a triangle pattern wherein calculated ribbon length is defined
as the "calculated shuss length" in the '551 Patent at column
3, lines 27-64 and in Figure 3c.
C. "Knitted with" terms (Claims 1, 13, 24, and 29)
“Knitted with” means “the connection of the longitudinal
polyolefin ribbons with lateral polyolefin ribbons by
interlocking the lateral polyolefin ribbons with the
longitudinal polyolefin ribbons in an interlooped
configuration.”
"Interlooped" means a “lateral ribbon forms a loop that is
interlocked with a loop formed by a longitudinal ribbon.”
D. "Reduced Lateral Shrinkage" (Claims 1, 13, 24, and 29)
Subject netting has a reduced lateral shrinkage (% elongation
v. % shrinkage) where it exhibits less lateral shrinkage than a
relative netting (a) produced with an actual ribbon length
equal to the calculated ribbon length (with respect to claims
1, 24, and 29) or (b) produced without said modified ribbon
(with respect to claim 13), when the subject netting and
relative netting are longitudinally stretched up to 100% of
their original lengths.
Any other differences between the subject netting and the
relative netting that impact lateral shrinkage characteristics
are minimized.
"Actual ribbon length" is a measured length for a lateral
(shuss) ribbon in a knitted netting of a triangle pattern, and
is defined as "the actual shuss length" (ASL) in the definition
of a "calculated shuss length" in the '551 Patent, which is
defined at column 3, lines 52-57.

-29-

E. "Each of Said Triangles Having a Base Dimension and a Height
Dimension" (Claim 29)
"Said triangles" means "a pattern of triangles between adjacent
longitudinal ribbons."
The base dimension of a triangle of the netting is a measured
length in the netting and is part of the definition of
"calculated shuss length" in the '551 Patent at column 3, lines
41-47, and is shown as "A" in Figure 3c.
The height dimension of a triangle is a measured length in the
netting and is part of the definition of "calculated shuss
length" in the '551 Patent at column 3, lines 36-40, and is
shown as "H" in Figure 3c.
F. "Height Dimension Defining a Distance Between Said Adjacent
Longitudinal Ribbons" (Claim 29)
A measured length in the netting and is part of the definition
of "calculated shuss length" in the '551 Patent at column 3,
lines 36-40, and is shown as "H" in Figure 3c.

G. "Calculating Ribbon Length which is Based on Said Height
Dimension" (Claim 29)
The height dimension of a triangle in the netting means a
measured length in the netting and is part of the definition of
"calculated shuss length" in the '551 Patent at column 3, lines
36-40, and is shown as "H" in Figure 3c.
DATED this 11th

day of June, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

-30-