OPTOLUM INC. v. CREE INC.
Filing
152
CLAIM CONSTRUCTION MEMORANDUM AND OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 08/22/2018, as set out herein. (Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
OPTOLUM, INC.,
Plaintiff,
v.
CREE, INC.,
Defendant.
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1:17CV687
CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This matter is before the court for claim construction of
terms in U.S. Patents Nos. 6,831,303 (“the ‘303 Patent”) and
7,242,028 (“the ‘028 Patent”). 1,2 The parties, Plaintiff OptoLum,
Inc. (“Plaintiff”) and Defendant Cree, Inc. (“Defendant”) agree
with respect to construction of several claim terms and the
court adopts those agreed-upon constructions. (Joint Claim
Construction Statement (Doc. 106) at 1-2.) The parties disagree,
1
The ‘028 Patent is a continuation of the ‘303 Patent. ‘028
Patent col. 1, lines 5-9. While a few differences exist between
the two patents, both parties agree that they are largely the
same for purposes of claim construction. (See Def.’s Mem. in
Supp. of its Claim Construction (“Def.’s Mem.”) (Doc. 115) at 7
& n.1; OptoLum’s Opening Mem. in Supp. of Claim Construction
(“Pl.’s Mem.”) (Doc. 118) at 10 & n.2.)
2
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
however, as to construction of eight terms in the ‘303 and ‘028
Patents and submitted proposed constructions of those terms.
(Id. at 2-3.) Both parties submitted claim construction briefs,
(Doc. 115 (Defendant); Doc. 118 (Plaintiff)), and responsive
briefs, (Doc. 127 (Defendant); Doc. 128 (Plaintiff)). The court
held a claim construction hearing on January 16, 2018, at which
time the court took this matter under advisement. On May 29,
2018, this court requested supplemental briefing, (Doc. 139),
which the parties thereafter filed, (Doc. 140 (Plaintiff); Doc.
141 (Defendant)). On June 19, 2018, this court requested
responses to the supplemental briefing, (Text Order 06/19/2018),
which the parties thereafter filed, (Doc. 144 (Defendant); Doc.
146 (Plaintiff)).
I.
LEGAL STANDARD
In Markman v. Westview Instruments, Inc., 517 U.S. 370
(1996), the Supreme Court clarified which issues in a patent
trial are properly reserved for the jury, and which are
questions of law to be determined by the court. Specifically,
the Court held that interpretation of language in patent claims
“is an issue for the judge, not the jury[.]” Id. at 391. The
Federal Circuit has provided further guidance on how to
interpret patent claims, stating that, in general, courts are to
give the words of a claim “their ordinary and customary meaning”
– 2 –
as understood by “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) (citations
omitted).
In construing claim terms, courts are directed to consult
several specific types of evidence to discern what a person of
ordinary skill in the art would understand the term to mean.
Because the meaning of a claim term as understood by
persons of skill in the art is often not immediately
apparent, and because patentees frequently use terms
idiosyncratically, the court looks to “those sources
available to the public that show what a person of
skill in the art would have understood disputed claim
language to mean.” Those sources include “the words of
the claims themselves, the remainder of the
specification, the prosecution history, and extrinsic
evidence concerning relevant scientific principles,
the meaning of technical terms, and the state of the
art.”
Id. at 1314 (citations omitted).
First, “the claims themselves provide substantial guidance
as to the meaning of particular claim terms.” Id. (citation
omitted). “To begin with, the context in which a term is used in
the asserted claim can be highly instructive.” Id. Federal
Circuit case law “provide[s] numerous . . . examples in which
the use of a term within the claim provides a firm basis for
construing the term.” Id. (citations omitted).
Other claims of the patent in question, both
asserted and unasserted, can also be valuable sources
of enlightenment as to the meaning of a claim term.
– 3 –
Because claim terms are normally used consistently
throughout the patent, the usage of a term in one
claim can often illuminate the meaning of the same
term in other claims. Differences among claims can
also be a useful guide in understanding the meaning of
particular claim terms. For example, 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.
Id. at 1314-15 (citations omitted). “The words of a claim are
generally given their ordinary and customary meaning as
understood by a person of ordinary skill in the art when read in
the context of the specification and prosecution history.”
Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365
(Fed. Cir. 2012) (citation omitted).
The second type of evidence the court should consider is
the specification, which “contains a written description of the
invention that must enable one of ordinary skill in the art to
make and use the invention.” See Markman v. Westview
Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc),
aff’d, 517 U.S. 370 (1996); see also Phillips, 415 F.3d at 1315.
“Claims must be read in view of the specification, of which they
are a part.” Markman, 52 F.3d at 979 (citations omitted). The
claims define the invention, but “the specification ‘is always
highly relevant to the claim construction analysis. Usually, it
is dispositive; it is the single best guide to the meaning of a
disputed term.’” Phillips, 415 F.3d at 1315 (citation omitted).
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“For claim construction purposes, the description may act as a
sort of dictionary, which explains the invention and may define
terms used in the claims.” Markman, 52 F.3d at 979 (citation
omitted). “[A] patentee is free to be his own
lexicographer[, but] . . . any special definition given to a
word must be clearly defined in the specification.” Id. at 980
(citations omitted). “[C]laims are not to be interpreted by
adding limitations appearing only in the specification.
.
.
.
[P]articular embodiments appearing in a specification will not
be read into the claims when the claim language is broader than
such embodiments.” Electro Med. Sys., S.A. v. Cooper Life Scis.,
Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994) (citations omitted). A
limitation from the specification should only be read into the
claims when the specification requires that limitation. See id.
The third type of evidence that a court should consider is
the patent’s prosecution history. See Phillips, 415 F.3d at
1317; see also Markman, 52 F.3d at 980; Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). “This
‘undisputed public record’ of proceedings in the Patent and
Trademark Office is of primary significance in understanding the
claims.” Markman, 52 F.3d at 980 (citation omitted). “The
prosecution history limits the interpretation of claim terms so
as to exclude any interpretation that was disclaimed during
– 5 –
prosecution. Claims may not be construed one way in order to
obtain their allowance and in a different way against accused
infringers.” Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d
1570, 1576 (Fed. Cir. 1995) (citations omitted).
There are two relevant exceptions to the general rule that
claim terms “are generally given their ordinary and customary
meaning as understood by a person of ordinary skill in the
art[.]” Thorner, 669 F.3d at 1365 (citation omitted).
First, the claim term will not receive its ordinary
meaning if the patentee acted as his own lexicographer
and clearly set forth a definition of the disputed
claim term in either the specification or prosecution
history. Second, a claim term will not carry its
ordinary meaning if the intrinsic evidence shows that
the patentee distinguished that term from prior art on
the basis of a particular embodiment, expressly
disclaimed subject matter, or described a particular
embodiment as important to the invention.
CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366–67
(Fed. Cir. 2002) (citations omitted); see also Thorner, 669 F.3d
at 1365.
The redefinition of a claim term must be clear “so as to
put one reasonably skilled in the art on notice that the
patentee intended to so redefine the claim term.” Bell Atl.
Network Servs., Inc. v. Covad Commc’ns Grp., Inc., 262 F.3d
1258, 1268 (Fed. Cir. 2001) (citations omitted). However,
redefinition need not be explicit. Id. “[T]he specification may
define claim terms ‘by implication’ such that the meaning may be
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‘found in or ascertained by a reading of the patent documents.’”
Id. (citation omitted); see also Trs. of Columbia Univ. v.
Symantec Corp., 811 F.3d 1359, 1364 (Fed. Cir. 2016).
“The party seeking to invoke prosecution history disclaimer
bears the burden of proving the existence of a ‘clear and
unmistakable’ disclaimer that would have been evident to one
skilled in the art.” Mass. Inst. of Tech. v. Shire Pharm., Inc.,
839 F.3d 1111, 1119 (Fed. Cir. 2016) (citation omitted); see
also Omega Eng’g, Inc., v. Raytek Corp., 334 F.3d 1314, 1324
(Fed. Cir. 2003) (stating that a disclaimer occurs where the
“patentee has unequivocally disavowed a certain meaning to
obtain his patent”). Said disavowal must be clear and may not be
“too vague or ambiguous[.]” Omega Eng’g, 334 F.3d at 1325
(citation omitted).
Evidence from sources other than the claims, the
specification, and the prosecution history is extrinsic and
generally should be relied upon only when the intrinsic evidence
fails to resolve any ambiguity in a disputed term. See
Vitronics, 90 F.3d at 1583; see also Phillips, 415 F.3d at 131819. Extrinsic evidence includes “expert and inventor testimony,
dictionaries, and learned treatises.” Markman, 52 F.3d at 980. A
court may use extrinsic evidence to aid its understanding of a
patent, but “not for the purpose of varying or contradicting the
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terms of the claims.” Id. at 981 (citations omitted).
Accordingly, the Federal Circuit has stated that “expert
testimony, whether it be of an attorney, a technical expert, or
the inventor, on the proper construction of a disputed claim
term . . . . may only be relied upon if the patent documents,
taken as a whole, are insufficient to enable the court to
construe disputed claim terms.” Vitronics, 90 F.3d at 1585
(emphasis omitted). In such “rare instances,” prior art
documents and dictionaries are preferable to expert testimony
because they are objective, reliable, and “accessible to the
public in advance of litigation.” Id. With these guiding
principles in mind, the court proceeds to construe the claim
terms at issue.
I.
DISCUSSION
A.
“carried on”
Claim Term
“carried on” (all
claims)
Plaintiff’s
Construction
“supported on”
Defendant’s
Construction
“in direct contact
with, and supported
by”
The court starts by considering the claim term itself and
the ordinary meaning that would be attributed to the term by a
person skilled in the relevant art. This term appears in
multiple claims. Claim 1, for example, references “a plurality
of solid state light sources carried on said elongate member
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outer surface[.]” Patent ‘028 col. 4, lines 34-35. Taken in
isolation, this claim term is self-explanatory and appears to be
in need of no special construction.
Next, this court reads the claim term in light of the ‘028
Patent’s specification. The specification of the ‘028 Patent
discloses a “heat conducting epoxy” between the tube and the
light-emitting diodes (“LEDs”) that aids in the transmission of
heat between the tube and the LEDs. ‘028 Patent col. 3, lines
47-49. Defendant advocates for a construction of “carried on”
that is more limited than the term’s plain meaning and which
requires direct contact between the solid state light sources
and the elongate member’s outer surface. Unless an exception
applies, it is generally error to adopt a construction which
excludes a preferred embodiment. See, e.g., MBO Labs., Inc. v.
Becton, Dickinson & Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007);
On-Line Techs., Inc. v. Bodenseewerk Perkin-Elmer GMBH, 386 F.3d
1133, 1138 (Fed. Cir. 2004). Because the specification contains
a preferred embodiment which does not require direct contact, a
person skilled in the relevant art would understand “carried on”
to mean “supported on.”
Next, the court looks to the prosecution history of the
patents at issue. It is here that Defendant contends that the
applicant disclaimed the contention “that the claimed invention
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covers a device having an intervening structure between the LEDs
and the ETCM [elongate thermally conductive member].” (Def.’s
Mem. in Supp. of its Claim Construction (“Def.’s Mem.”) (Doc.
115) at 14.) While claims will normally not be interpreted in a
way that excludes an embodiment disclosed in the specification,
an exception to this rule is when a clear disclaimer is made
during prosecution. Oatey Co. v. IPS Corp., 514 F.3d 1271, 1277
(Fed. Cir. 2008); N. Am. Container, Inc. v. Plastipak Packaging,
Inc., 415 F.3d 1335, 1345–46 (Fed. Cir. 2005). Here, Defendant,
the party seeking to invoke a prosecution history disclaimer,
carries the burden. See Shire Pharm., 839 F.3d at 1119. It must
establish that the applicant unequivocally disclaimed that the
invention covers a device where a structure intervenes between
the LEDs and the elongate thermally conductive member. See Omega
Eng’g, 334 F.3d at 1324-25.
In the prosecution of the ‘028 Patent, the applicant made
statements responsive to the examiner’s initial rejection of the
invention as anticipated by U.S. Patent 6,848,819 (“the ‘819
Patent”). (Decl. of Lynne A. Borchers (“Borchers Decl.”), Ex. E,
‘028 File History Amendment (Doc. 117-5) at 20 (“The ‘819 patent
teaches away from Applicant’s novel structures.”).) Generally
discussing the ‘819 Patent, the applicant stated:
[T]he structures of the ‘819 patent require that the
LEDs are carried on copper solder pads on one surface
– 10 –
of a circuit board and heat transfer is via solder
pads through the circuit board to a metallization
layer on the opposite surface of the circuit board and
then to the cooling member via an adhesive layer.
The LEDs are not carried by the cooling member.
(Id. at 21.) Later, when arguing that the examiner incorrectly
applied the standard for anticipation, the applicant referenced
figures from the ‘819 Patent and distinguished it from the
invention at issue, stating:
It is clear from the drawings that the thermally
conductive member 3 does not carry its LEDs 2 on its
outer surface. Rather, the thermally non-conductive
printed circuit board 1 carries the LEDs 2. The
Examiner’s attention is again directed to the
reproduced portions of the reference above which
clearly state that the LEDs are carried on the printed
circuit board 1 and not on the structure 3.
It is clear from a plain reading of the
descriptions of the structures in the ‘819 patent that
the printed circuit board 1 carries LEDs 2 on one
surface and carries the heat sink 3 (thermally
conductive member) on its opposite surface.
In other words, the ‘819 patent teaches away from
the novel structures of applicant’s claimed invention
which set forth structure in which the LEDs, solid
state light sources, radiation emitting semiconductor
devices, and radiation emitting solid state devices
are carried on an elongate thermally conductive
member.
(Id. at 27.) While applicant certainly used the term “carried
on” during the patent prosecution, the statements at issue were
not made with respect to whether direct contact was required but
instead with respect to which structure within the ‘819 patent
– 11 –
supported various other parts of the invention. Here, nothing in
the prosecution record amounts to a clear and unambiguous
disavowal. See SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d
1278, 1287 (Fed. Cir. 2005) (“There is no ‘clear and
unmistakable’ disclaimer if a prosecution argument is subject to
more than one reasonable interpretation, one of which is
consistent with a proffered meaning of the disputed term.”
(citation omitted)).
Extrinsic evidence only serves to further support this
conclusion. The court finds the following dictionary definitions
of “carry” to be helpful in educating it as to possible ordinary
meanings of this claim term: “to bear the weight of,” Webster’s
New World Dictionary (3d College ed. 1989), and “to hold or be
capable of holding,” Webster’s II New College Dictionary (2001);
see also Phillips, 415 F.3d at 1319 (“[B]ecause extrinsic
evidence can help educate the court regarding the field of the
invention and can help the court determine what a person of
ordinary skill in the art would understand claim terms to mean,
it is permissible for the district court in its sound discretion
– 12 –
to admit and use such evidence.”). 3 The court has also considered
whether expert testimony could further educate it as to possible
ordinary meanings. Looking to expert testimony provided as to
this term, however, is unhelpful in further educating the court
at this point in its analysis as the experts are in disagreement
as to how such a person would understand the term. (Compare
Decl. of Leah R. McCoy, Ex. 3, Expert Decl. of A. Brent York on
Claim Construction (“York Decl.”) (Doc. 119-3) ¶ 54, with
Supplemented Decl. of Dr. Eric Bretschneider (“Bretschneider
Suppl. Decl.”) (Doc. 116) ¶¶ 50-52.) Because the court cannot
evaluate the credibility of the experts based on their
declarations alone, it will refrain from weighing the testimony
at this juncture and rely on the outcome clearly supported by
the intrinsic evidence.
Having considered the claim term, the specification, the
prosecution history, and for the purpose of educating the court,
extrinsic evidence, this court finds that a person of ordinary
skill in the art would construe “carried on” as “supported on.”
3
These definitions are consistent with other courts’ plain
meaning construction of “on” or “carried on” to require support
but not direct contact. See Spectralytics, Inc. v. Cordis Corp.,
576 F. Supp. 2d 1030, 1038, (D. Minn. 2008), aff’d, 649 F.3d
1336 (Fed. Cir. 2011); IPS Corp. v. WCM Indus., Inc., No. 2:12CV-02694-JPM, 2014 WL 8508558, at *13 (W.D. Tenn. Sept. 18,
2014); Produits Berger S.A. v. Schemenauer, No. CIVA 2:06CV002,
2007 WL 809611, at *9 (E.D. Tex. Feb. 27, 2007).
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Accordingly, this court will adopt Plaintiff’s construction of
this term.
B.
“a plurality of solid state light sources”
Claim Term
“a plurality of
solid state light
sources” (‘028
Patent, claims 1-3,
5-8, 14, & 16-17)
Plaintiff’s
Construction
“two or more
packages, each of
which comprise a
thermally conductive
back and a solid
state light source”
Defendant’s
Construction
“two or more
packages, each of
which comprise a
solid state light
source”
The court starts by considering the claim term itself and
the ordinary meaning that would be attributed to the term by a
person skilled in the relevant art. Claim 1 of the ‘028 Patent,
for example, describes “a plurality of solid state light sources
carried on said elongate member outer surface[.]” ‘028 Patent
col. 4, lines 33-37. 4 Here, the parties agree that “plurality”
should be construed as “two or more,” (Joint Claim Construction
Statement (Doc. 106) at 2), consistent with its plain and
ordinary meaning, see York Prods., Inc. v. Cent. Tractor Farm &
Family Ctr., 99 F.3d 1568, 1575 (Fed. Cir. 1996). The parties’
narrow disagreement with respect to this term is whether a
4
The “solid state light source” terminology reflects a
difference between the ‘028 Patent and the ‘303 Patent. The
earlier ‘303 Patent references “LEDs” while the ‘028 Patent
references “solid state light sources” in an otherwise identical
Claim 1. Compare ‘303 Patent col. 4, lines 29-30, with ‘028
Patent col. 4, lines 34-35.
– 14 –
“thermally conductive back” is necessarily included in this
definition. Taken in isolation, this claim term does not appear
to be limited to packages with a thermally conductive back.
Next, the court considers this claim term in light of the
‘028 Patent’s specification. The ‘028 Patent’s specification,
however, does not describe “solid state light sources” and
refers exclusively to “LEDs.” See generally ‘028 Patent cols.
1-4. Although the parties agreed to construe “a plurality of
light emitting diodes” as “two or more packages, each of which
comprise a thermally conductive back and a diode that emits
light[,]” (Joint Claim Construction Statement (Doc. 106) at 1),
the specification does not make clear how LEDs differ from solid
state light sources. Further, both parties agree that LEDs are a
subset of solid state light sources, but neither points to
compelling material within the intrinsic evidence to explain how
they differ. (See OptoLum’s Opening Mem. in Supp. of Claim
Construction (“Pl.’s Mem.”) (Doc. 118) at 29; Def.’s Mem. (Doc.
115) at 14.) The specification provides that “[f]lexible printed
circuit 113 has mounting holes 134 for receiving LEDs 109 such
that the backs of LEDs 109 are in thermal contact with the tube
surface 107.” ‘028 Patent col. 3, lines 45-51. Because the
difference between LEDs and solid state light sources with
respect to this invention is unclear, however, the court cannot
– 15 –
conclude from the specification that solid state light sources
likewise require thermally conductive backs. “[C]laims are not
to be interpreted by adding limitations appearing only in the
specification. . . . [P]articular embodiments appearing in a
specification will not be read into the claims when the claim
language is broader than such embodiments.” Electro Med. Sys.,
34 F.3d at 1054; see also GE Lighting Solutions v. AgiLight,
Inc., 750 F.3d 1304, 1310 (Fed. Cir. 2014).
Next, the court looks to the prosecution history. Here, the
court does not find any evidence relevant to this claim term.
Having considered the claim term, the specification, and the
prosecution history, the court concludes that a “thermally
conductive back” limitation should not be read into this claim
term. The extrinsic evidence only serves to further support the
court’s conclusion. While the parties’ witnesses disagree with
respect to their ultimate conclusion as to this term, only the
Defendant’s expert discusses how an LED and a solid state light
source differ and how such differences might affect the
construction of this term. (Compare York Decl. (Doc. 119-3)
¶¶ 78-79 (stating that a person of ordinary skill in the art
would understand that the package includes a thermally
conductive back but not going into why this is necessarily the
case for all solid state light sources as compared to just
– 16 –
LEDs), with Bretschneider Suppl. Decl. (Doc. 116) ¶¶ 76-84
(stating that solid state light sources encompass LEDs and that
“the full scope of the SSLS [solid state light source] phrase is
indeterminate. This is because neither the patent specification
nor its prosecution history explain or refer to the [solid state
light source] phrase and it is not apparent to a POSA [person of
ordinary skill in the art] what other structures which fall
within the plain meaning of the phrase but which may or may not
be suitable to be incorporated in the overall structure
described in the ‘028 patent.”). Here, the only expert witness
that directly engages this issue shares the court’s concern
about how LEDs and solid state light sources differ in scope.
Accordingly, this court will adopt Defendant’s proposed
construction of the term “a plurality of solid state light
sources” as “two or more packages, each of which comprise a
solid state light source.”
– 17 –
C.
“disposed in a second plane not coextensive with said
first plane”
Claim Term
“disposed in a
second plane not
coextensive with
said first plane”
(all claims)
Plaintiff’s
Construction
“arranged in a
second flat surface
not having the same
spatial boundaries
as the first flat
surface”
Defendant’s
Construction
“disposed in a
second plane that is
not the same as the
first plane wherein
the plurality of
LEDs are not
disposed in a single
plane perpendicular
to the axis of the
elongate thermally
conductive member”
The court starts with the claim term itself and the
ordinary meaning that would be attributed to the term by a
person skilled in the relevant art. This term appears, for
example, in Claim 1 of the ‘028 Patent, which describes:
[A] plurality of solid state light sources carried on
said elongate member outer surface at least some of
said solid state light sources being disposed in a
first plane and others of said solid state light
sources being disposed in a second plane not
coextensive with said first plane[.]
‘028 Patent col 4, lines 33-38.
The court next considers this claim term in light of the
‘028 Patent’s specification. See Markman, 52 F.3d at 979. Within
the summary of the invention, Patent ‘028 describes “[a]
plurality of light emitting diodes is carried on the elongate
member outer surface. At least some of the light emitting diodes
are disposed in a first plane and others of said light emitting
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diodes are disposed in a second plane not coextensive with the
first plane.” ‘028 Patent col 1, lines 49-53. Similarly worded
to Claim 1, above, the use of the term in the specification does
not provide much insight.
Next, the court turns to the prosecution history. See
Markman, 52 F.3d at 980; see also Vitronics, 90 F.3d at 1582. It
is here that Defendant contends that, in distinguishing the ‘028
Patent from the ‘819 Patent, the applicant disclaimed “the
circumstance in which LEDs are placed in a single plane
perpendicular to the axis of the elongate heat sink.” (Def.’s
Mem. (Doc. 115) at 20.) Defendant, the party seeking to invoke a
prosecution history disclaimer, carries the burden of proving
that there was a “clear and unmistakable” disclaimer that would
have been evident to a person of ordinary skill in the art. See
Shire Pharm., 839 F.3d at 1119 (citation omitted). In the
prosecution of what became the ‘028 Patent, applicant made
statements in response to the examiner rejecting the application
as anticipated by the ‘819 patent. (‘028 File History Amendment
(Doc. 117-5) at 23.) Statements relevant to the disputed claim
terms centered around the below-pictured figure from the ‘819
Patent, also contained in applicant’s amendment/response:
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(Id. at 26.) Applicant stated in relevant part:
[T]he Examiner points to FIG. 2B as showing solid
state light sources that are in a first plane and a
second plane not coextensive with the first plane. The
Examiner is mistaken. All the LEDs shown in FIG. 2B
are in the same plane, i.e., the plane defined by the
drawing sheet.
(Id. at 27.) Plaintiff contends that no such disavowal was made,
pointing out that the ‘028 Patent refers to LEDs being
“disposed” in a plane whereas the prosecution history references
LEDs being “in” the same plane defined by the drawing sheet.
(Pl.’s Suppl. Mem. in Supp. of Claim Construction (“Pl.’s Suppl.
Mem.”) (Doc. 140) at 8-9.) Plaintiff further contends that the
“clear and unmistakable standard” was not met because the
statements at issue were made with respect to a two-dimensional
drawing and could be interpreted as highlighting an evidentiary
defect in the Examiner’s initial refusal. (Id. at 10 & n.4.)
– 20 –
This court is unpersuaded by Plaintiff’s arguments.
Applicant’s statements made during patent prosecution were in
response to the Examiner’s statement that Figure 2B in the ‘819
Patent illustrated “solid state light sources that are in a
first plane and a second plane not coextensive with the first
plane.” (‘028 File History Amendment (Doc. 117-5) at 27.) This
issue was raised in relation to the Examiner’s initial position
that the claimed invention was anticipated by prior art, the
‘819 Patent. Applicant responded to the Examiner’s position by
contending that “[a]ll the LEDs shown in FIG. 2B are in the same
plane, i.e., the plane defined by the drawing sheet[,]” thereby
distinguishing the claimed invention from the ‘819 Patent. (See
id.) This statement carries more significance than merely
“highlighting an evidentiary defect” as Plaintiff contends, and
was made in an effort to refute the Examiner’s position as to
anticipation. This court finds such a statement to amount to a
– 21 –
clear and unequivocal disclaimer. See Shire Pharm., 839 F.3d at
1119; Omega Eng’g, 334 F.3d at 1324. 5
The disclaimer that was made is extremely narrow, however.
Applicant distinguished the claimed invention from one in which
5
Plaintiff contends that because the above-discussed
argument made by applicant with respect to the ‘819 Patent was
rejected by the Examiner that it cannot serve as the basis of a
disclaimer. To support this contention, Plaintiff cites to
TriVascular, Inc. v. Samuels, 812 F.3d 1056, 1064 (Fed. Cir.
2016). (Pl.’s Mem. (Doc. 118) at 26; Pl.’s Suppl. Mem. (Doc.
140) at 10.) TriVascular does not directly support Plaintiff’s
argument. As explained by a Northern District of Illinois court
in Not Dead Yet Manufacturing Inc. v. Pride Solutions, LLC, 265
F. Supp. 3d 811, 831-32 (N.D. Ill. 2017), reconsideration
denied, No. 13 C 3418, 2018 WL 688324 (N.D. Ill. Feb. 2, 2018),
the patentee in TriVascular attempted to distinguish prior art
by proposing an amendment with a new limitation, but later
changed their positions on the need for the amendment
[and] the examiner thus deleted the amendment and
approved the claims without the . . . limitation. Thus
because the proposed amendment was not ultimately
adopted and there appeared to be change of position by
both the examiner and the patentee after the amendment
was proposed, it was “difficult to see how a skilled
artisan could interpret the proposed amendment as a
disclaimer required for patentability.”
Id. at 832 (citing TriVascular, 812 F.3d at 1064). Similarly, in
this case, there is no evidence that Plaintiff changed its
position such that any person of ordinary skill in the art would
have reason to believe that it withdrew the arguments made in
distinguishing prior art. See id. As reasoned by the Northern
District of Illinois court, “[a]n assertion made during
prosecution may create an estoppel ‘whether or not [it was]
actually required to secure allowance of the claim . . . because
the relevant inquiry is whether a competitor would reasonably
believe that the applicant had surrendered the relevant subject
matter.’” Id. at 831 (quoting PODS, Inc. v. Porta Stor, Inc.,
484 F.3d 1359, 1367 (Fed. Cir. 2007)).
– 22 –
LED placement may be described as being in a single plane
perpendicular to the axis of the elongate thermally conductive
member. In other words, the two plane limitation is tied to the
elongate nature of the elongate thermally conductive member such
that Plaintiff’s proffered explanation of Figure 2 of the ‘028
and ‘303 Patents and Figure 2B of the ‘819 Patent meeting the
two plane limitation, pictured below, is unavailing:
(Pl.’s Suppl. Mem. (Doc. 140) at 7.) Instead, this court is
convinced that Defendant’s proffered conceptualization of the
two plane limitation, pictured below, is in keeping with the
patent’s teachings and prosecution history:
– 23 –
(Def.’s Suppl. Mem. in Resp. to Ord. of Court and in Supp. of
its Claim Construction (“Def.’s Suppl. Mem.”) (Doc. 141) at 7.)
In accordance with the overall teachings of the patent, this
court will adopt Defendant’s proposed construction: “disposed in
a second plane that is not the same as the first plane wherein
the plurality of LEDs are not disposed in a single plane
perpendicular to the axis of the elongate thermally conductive
member.”
– 24 –
D.
“plane”
Claim Term
“plane” (all claims)
Plaintiff’s
Construction
“a flat surface”
Defendant’s
Construction
plain and ordinary
meaning 6
The court starts with the claim term itself and the
ordinary meaning that would be attributed to the term by a
person skilled in the relevant art. Closely related to the prior
term, “plane” likewise appears, for example, in Claim 1 of the
‘028 Patent, which describes:
[A] plurality of solid state light sources carried on
said elongate member outer surface at least some of
said solid state light sources being disposed in a
first plane and others of said solid state light
sources being disposed in a second plane not
coextensive with said first plane[.]
‘028 Patent col 4, lines 33-38. Plaintiff advocates for “plane”
to be construed as “a flat surface.” (York Decl. (Doc. 119-3)
¶ 61 (claiming that a person of ordinary skill in the art would
understand “plane,” in the context of the OptoLum patents, to
require “a flat surface on which to arrange the LEDs”). On the
other hand, Defendant first advocated for “plane” to be given
its plain and ordinary meaning, while contending that
6
In Defendant’s supplemental memorandum, it proposed the
following alternative construction, which mirrors language
referenced by its expert in prior filings: “a spatial
relationship concerning certain identified locations on the
elongate heat sink and having the specific mathematical
description of a plane.” (Def.’s Suppl. Mem. (Doc. 141) at 12.)
– 25 –
Plaintiff’s proposed “flat surface” construction would not be in
keeping with said plain and ordinary meaning. (Bretschneider
Suppl. Decl. (Doc. 116) ¶ 64 (“‘[P]lane’ in this context is
understood by a POSA [person of ordinary skill in the art] to be
a spatial relationship concerning certain identified locations
on the elongate heat sink and having a specific mathematical
description, i.e., that of a plane. In the context of the
patents, the term ‘plane’ is not a physical ‘surface’ nor does
it include the inaccurate descriptor of ‘flat.’”).) A finding
that the plain and ordinary meaning of the claim term should be
adopted would be inadequate because it would “not resolve the
parties’ dispute[,]” specifically whether “plane” should be
construed as referring to physical, flat surfaces alone. See O2
Micro Int’l v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362
(Fed. Cir. 2008). Accordingly, in its supplemental briefing,
Defendant proposed the following alternative construction of
“plane”: “a spatial relationship concerning certain identified
locations on the elongate heat sink and having the specific
mathematical description of a plane.” (Def.’s Suppl. Mem. (Doc.
141) at 12.) Plaintiff protests that this proposed construction
is too lengthy and “circular.” (Pl.’s Resp. Mem. in Supp. of
Claim Construction (Doc. 146) at 4-6.)
– 26 –
The court next considers this claim term in light of the
‘028 Patent’s specification. See Markman, 52 F.3d at 979. Within
the summary of the invention, Patent ‘028 describes “[a]
plurality of light emitting diodes is carried on the elongate
member outer surface. At least some of the light emitting diodes
are disposed in a first plane and others of said light emitting
diodes are disposed in a second plane not coextensive with the
first plane.” ‘028 Patent col 1, lines 48-53. It is here that
Plaintiff contends that the specification ties “disposed in a
. . . plane” to a flat surface. (Pl.’s Suppl. Mem. (Doc. 140) at
11.) While the specification and abstract mention LEDs being
mounted on the elongate member’s outer surface, “plane” is used
to describe the fashion in which the LEDs are arranged and it is
not necessarily linked with the physical flat elongate member’s
outer surface.
Next, the court turns to the prosecution history. See
Markman, 52 F.3d at 980; see also Vitronics, 90 F.3d at 1582.
First, applicant’s usage of the term within the prosecution
history is consistent with the term not being limited to
physical flat surfaces, as it was used to describe a “plane
defined by the drawing sheet.” (‘028 File History Amendment
(Doc. 117-5) at 27.) Second, with respect to applicant’s abovediscussed disclaimer, the “plane” of the invention implicated by
– 27 –
the disclaimer – the plane perpendicular to the axis of the
elongate thermally conductive member – is likewise not tied to
the physical, flat surfaces thereof. Construing claim terms
consistently with their usage in the patent’s intrinsic
evidence, Nystrom v. TREX Co., 424 F.3d 1136, 1145 (Fed. Cir.
2005), this court adopts Defendant’s proffered construction of
“plane”: “a spatial relationship concerning certain identified
locations on the elongate heat sink and having the specific
mathematical description of a plane.”
E.
“heat dissipation protrusion”
Claim Term
“heat dissipation
protrusion” (all
claims)
Plaintiff’s
Construction
“projection from a
surface designed to
convect heat”
Defendant’s
Construction
plain and ordinary
meaning
The court starts with the claim term itself and the
ordinary meaning that would be attributed to the term by a
person skilled in the relevant art. Considering this term as it
appears within the claims alone does not provide much guidance.
For example, Claim 1 of the ‘028 Patent references the term,
stating, “said elongate thermally conductive member comprises
one or more heat dissipation protrusions, at least one of said
heat dissipation protrusions being carried on said elongate
member outer surface.” ‘028 Patent col. 4, lines 47-50.
– 28 –
While this claim term appears in claims within both the
‘028 and ‘303 patents, it only appears in the specification of
the ‘028 patent. Compare ‘028 Patent col. 3, lines 4-9
(referring to “heat dissipating protrusions”), with ‘303 Patent
col. 2, line 67 - col. 3, line 2 (referring to “heat dissipating
fins”). The detailed description within the specification of the
‘028 Patent provides:
To improve the heat dissipative properties of light
source 100, elongate heat sink 101 is configured to
provide convective heat dissipation and cooling. As
more clearly seen in FIG. 2, tubular heat sink 101 is
hollow and has an interior cavity 103 that includes
one or more heat dissipating protrusions 105.
Protrusions 105 are shown as being triangular shaped
fins but may take on other shapes. Protrusions or fins
105 are integrally formed on the interior of elongate
heat sink 101. Each pair of fins 105 defines a channel
105a. In the illustrative embodiment convective
cooling is provided by movement of a medium 102
through the channel formed by elongate heat sink 101.
The medium utilized in the illustrative embodiment is
air, but may in some applications be a fluid other
than air to provide for greater heat dissipation and
cooling.
‘028 Patent, col. 3, lines 1-17. Here, “fins” and “heat
dissipating protrusions” are used interchangeably, as fins are
one form protrusions may take. The summary of the invention of
the ‘028 Patent, referring to “fins,” provides in part:
the elongate thermally conductive member transfers
heat from the light emitting diodes to a medium within
said elongate thermally conductive member. In the
illustrative embodiment of the invention, the medium
is air.
– 29 –
In accordance with another aspect of the
invention, the elongate thermally conductive member
has one or more fins to enhance heat transfer to the
medium.
‘028 Patent, col. 1, line 65 - col. 2, line 5. Defendant
contends that Plaintiff’s proposed construction is inaccurate
because the fins themselves do not convect heat, but the medium
(i.e., air) inside the elongate heat sink does. (Def.’s Mem.
(Doc. 115) at 21-22.) Plaintiff, on the other hand, insists that
the concept of convection is broad enough to encompass the
transfer of heat from the surface of the protrusions in question
to the fluid inside the elongate member. (Pl.’s Resp. to Cree’s
Claim Construction Br. (“Pl.’s Resp.”) (Doc. 128) at 26.)
Plaintiff further suggests that the definition appropriately
uses the phrase “designed to” in accordance with this
understanding of heat convection. (Id. at 26.) Nothing within
the prosecution history runs contrary to this understanding of
the term.
Finally, the court looks to dictionary definitions of
“dissipation” and “protrusion” to further aid in its
understanding of possible plain meanings of said terms. The
court finds the following definition of “dissipate” to support
its understanding of the intrinsic evidence: “to cause to lose
(e.g., heat) irreversibly.” Webster’s II New College Dictionary
(2001). The court likewise finds the following definition of
– 30 –
“protrude” instructive: “to jut out.” Id. Looking to expert
testimony as to this term, however, is unhelpful in further
educating the court at this point in its analysis as the experts
are in disagreement as to what a person of ordinary skill in the
art would understand the term to mean. (Compare York Decl. (Doc.
119-3) ¶ 72, with Bretschneider Suppl. Decl. (Doc. 116)
¶¶ 68-69.)
Because a person of ordinary skill in the art would
understand the patent to teach that the heat dissipation
protrusions, or fins, serve to increase convection by increasing
the surface area within the elongate member from which heat is
transferred to the air, (see ‘028 Patent, col. 2, lines 3-5
(“[T]he elongate thermally conductive member has one or more
fins to enhance heat transfer to the medium.”)), this court will
adopt Plaintiff’s proposed construction.
F.
“contained”
Claim Term
“contained” (all
claims)
Plaintiff’s
Construction
plain and ordinary
meaning 7
Defendant’s
Construction
“enclosed by”
The court starts with the claim term itself and the
ordinary meaning that would be attributed to the term by a
7
Plaintiff argues in the alternative that, to the extent a
construction is warranted, the term can be properly understood
as “found within.” (See Pl.’s Resp. (Doc. 128) at 28.)
– 31 –
person skilled in the relevant art. Claim 1 of the ‘028 Patent
reads in relevant part, “said elongate thermally conductive
member being configured to conduct heat away from said solid
state light sources to fluid contained by said elongate
thermally conductive member[.]” ‘028 Patent col. 4, lines 43-46
(emphasis added). In this instance, a finding that the term at
issue should retain its plain and ordinary meaning alone would
not resolve the underlying dispute between the parties. See O2
Micro Int’l, 521 F.3d at 1362. Defendant advocates for a
construction of “enclosed by,” which this court understands to
mean total enclosure, or containment on all sides, see, e.g.,
Webster’s II New College Dictionary (2001) (“to surround on all
sides”); Webster’s New World Dictionary (3d College ed. 1989)
(“to shut in all around; hem in; fence in; surround”), whereas
Plaintiff advocates for a construction of “found within,” which
does not require total enclosure.
The court next looks to the specification. While the
specification does not use the phrase “contained,” it further
explains the context surrounding its usage in above-quoted Claim
1. First, the summary of the invention generally explains that,
“the elongate thermally conductive member transfers heat from
the light emitting diodes to a medium within said elongate
thermally conductive member.” ‘028 Patent col. 1, line 65 - col.
– 32 –
2, line 1. The specification goes on to teach that, “[i]n the
illustrative embodiment convective cooling is provided by
movement of a medium 102 through the channel formed by elongate
heat sink 101.” Id. at col. 3, lines 10-13 (emphasis added).
Similarly, it explains “convection cooling by flow of air
through tubular heat sink 101 is utilized such that cool or
unheated air enters tubular heat sink 101 at its lower end and
exits from the upper end as heated air.” Id. at col. 4, lines
4-7 (emphasis added). Considering the patent’s teachings within
the specification, because this court understands Defendant’s
proposed construction to imply that the fluid is surrounded on
all sides, it runs contrary to how a person of ordinary skill in
the art would understand the teachings of the patent. The
invention teaches the free movement of a medium through the
elongate member, suggesting that Plaintiff’s alternative
construction “found within” is more appropriate.
Next, the court looks to the prosecution history of the
patent. Here, Defendant contends that the ‘536 Patent, a
predecessor to the patents at issue, was amended to replace
“within” with “contained.” (Def.’s Resp. Mem. (Doc. 127) at 22.)
Defendant does not argue, however, that this amendment amounts
to a prosecution history disclaimer. This court likewise does
– 33 –
not find that such an amendment amounts to an unequivocal
disclaimer. See Omega Eng’g, 334 F.3d at 1324-25.
This court’s review of the extrinsic evidence only serves
to further support this conclusion. Both parties’ expert
witnesses agree that the elongate member has an opening at the
top and bottom. (York Decl. (Doc. 119-3) ¶ 67; Bretschneider
Suppl. Decl. (Doc. 116) ¶¶ 72-73.) Nonetheless, Defendant
contends that unless the medium (i.e., air) is enclosed within
the elongate member, the cooling feature of the invention is
lost. (Def.’s Mem. (Doc. 115) at 23.) Because the overwhelming
intrinsic evidence supports Plaintiff’s preferred construction,
the court will adopt “found within” with respect to this term.
G.
“channel”
Plaintiff’s
Construction
“channel” (‘303
“the space defined
Patent claim 9; ‘028 by a pair of heat
Patent claims 8 &
dissipation
22)
protrusions”
Claim Term
Defendant’s
Construction
“a hollow extruded
extended structure”
The court starts with the claim term itself and the
ordinary meaning that would be attributed to the term by a
person skilled in the relevant art. The terms within the claims
at issue read:
A light source in accordance with claim 1, wherein:
said elongate thermally conductive member comprises a
channel.
– 34 –
‘303 Patent, col. 4, line 65-67; ‘028 Patent, col. 5, Lines 1-3
(identical phrasing).
A radiation emitting source in accordance with
claim 19 wherein:
said elongate thermally conductive member
comprises a channel.
‘028 Patent, col. 6, lines 13-16.
The court next looks to the specification. The
specification provides in relevant part that
[A] light source 100 in accordance with the invention
includes an elongate thermally conductive member or
heat sink 101. Elongate heat sink 101 is formed of a
material that provides excellent thermal conductivity.
Elongate heat sink 101 in the illustrative embodiment
of the invention is a tubular aluminum extrusion. To
improve the heat dissipative properties of light
source 100, elongate heat sink 101 is configured to
provide convective heat dissipation and cooling. As
more clearly seen in FIG. 2, tubular heat sink 101 is
hollow and has an interior cavity 103 that includes
one or more heat dissipating protrusions 105.
Protrusions 105 are shown as being triangular shaped
fins, but may take on other shapes. Protrusions or
fins 105 are integrally formed on the interior of
elongate heat sink 101. Each pair of fins 105 defines
a channel 105a. In the illustrative embodiment
convective cooling is provided by movement of a medium
102 through the channel formed by elongate heat sink
101.
‘028 Patent, col. 2, line 63 – col. 3, line 13 (emphasis
added). Figure 2 is pictured below.
– 35 –
(Id. fig. 2.) The specification goes on to explain:
Fins 105 may vary in number and location depending on
particular LED layouts and wattage. In some instances,
fins may be added to the exterior surface of tubular
heat sink 101, such as shown in FIGS. 4 and 5 by fins
or protrusions 501, 503 which also define a channel
505.
. . . .
Although light source 100 is shown as comprising
an elongate tubular heat sink, other extruded elongate
members may be used such as channels.
(Id. col. 3, line 56 - col. 4, line 3 (emphasis added).) Figures
4 and 5 are pictured below.
– 36 –
(Id. figs. 4 & 5.) A patentee has acted as their own
lexicographer when they have “clearly set forth a definition of
the disputed claim term in . . . the specification[.]” CCS
– 37 –
Fitness, 288 F.3d at 1366-67 (citation omitted). Here, this
court finds that the patentee acted as a lexicographer by
clearly defining “channel” within the specification. See
Markman, 52 F.3d at 980. As the specification makes evident,
“[e]ach pair of fins . . . defines a channel[.]” ‘028 Patent
col. 3, line 10. The use of “fins” within this definition may be
understood, in light of the entire patent, to refer to “heat
dissipating protrusions” more generally. (See Patent ‘028 col.
3, lines 4-6 (“As more clearly seen in FIG. 2, tubular heat sink
101 is hollow and has an interior cavity 103 that includes one
or more heat dissipating protrusions 105. Protrusions 105 are
shown as being triangular shaped fins, but may take on other
shapes.”); Patent ‘028 col. 3, lines 58-61 (“In some instances,
fins may be added to the exterior surface of tubular heat sink
101, such as shown in FIGS. 4 and 5 by fins or protrusions 501,
503 which also define a channel 505.”).) Further, nothing within
the prosecution history contradicts applicant’s definition of
this term within the specification.
With respect to the parties’ expert witnesses, both contend
that the specification clearly defines the term in question (See
York Decl. (Doc. 119-3) ¶ 74; Bretschneider Suppl. Decl. (Doc.
116) ¶ 99.) However, the experts disagree as to whether a
channel must be “extruded” and “elongate.” Because the
– 38 –
specification clearly teaches that the elongate member “may
comprise an extrusion,” and does not require that it be an
extrusion, ‘028 Patent, col. 2, lines 15-18, this court will not
allow Defendant’s expert testimony to contradict the intrinsic
evidence to the contrary. Accordingly, this court will adopt
Plaintiff’s proposed construction of “channel.”
H.
“some” and “others”
“some” (all claims)
Plaintiff’s
Construction
“one or more”
“others” (all
claims)
“one or more
different”
Claim Term
Defendant’s
Construction
“more than one of a
group”
plain and ordinary
meaning
The court starts with the claim terms themselves and the
ordinary meaning that would be attributed to the terms by a
person skilled in the relevant art. Both “some” and “others”
appear in Claim 1 of the ‘028 Patent, which states in part:
[A] plurality of solid state light sources carried on
said elongate member outer surface at least some of
said solid state light sources being disposed in a
first plane and others of said solid state light
sources being disposed in a second plane not
coextensive with said first plane[.]
‘028 Patent, col. 4, lines 33-38 (emphasis added).
Because a person of ordinary skill in the art reads the
claim term not only in the context of the particular claim but
also in the context of the entire patent, Phillips, 415 F.3d at
1313, the court also considers how the parties agreed to
– 39 –
construe other terms not at issue. Here, the parties stipulated
to construe “plurality” as “two or more.” (Joint Claim
Construction Statement (Doc. 106) at 2.) A stipulated
construction, once adopted by the court, is binding on the
parties just the same as any other claim construction. See Dig.Vending Servs. Int’l, LLC v. Univ. of Phoenix, Inc., 672 F.3d
1270, 1278 (Fed. Cir. 2012); see also Versata Software, Inc. v.
SAP Am., Inc., 717 F.3d 1255, 1262 (Fed. Cir. 2013) (holding
that a party “cannot now collaterally attack the claim
construction it has agreed to”).
Reading this agreed-upon construction for “plurality” into
Claim 1 of the ‘028 Patent provides:
[Two or more] of solid state light sources carried on
said elongate member outer surface at least some of
said solid state light sources being disposed in a
first plane and others of said solid state light
sources being disposed in a second plane not
coextensive with said first plane[.]
‘028 Patent, col. 4, lines 33-38 (emphasis added). In this
claim, “plurality of light emitting diodes” is the antecedent
basis for “said light emitting diodes.” Cf. Baldwin Graphic
Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342–43 (Fed. Cir.
2008) (stating that subsequent use of “said” is understood to
refer back to the same claim term). It logically follows that
“some” of “two or more” must be one or more and “others” of said
“two or more” must likewise be one or more. Nothing in the
– 40 –
specification or prosecution history justifies a different
outcome. Accordingly, this inescapable conclusion leads the
court to adopt Plaintiff’s proposed construction of “some.”
Likewise, with respect to “others,” because the firstreferenced “plurality of solid state light emitting diodes” is
the antecedent basis of both “some” and “others” it naturally
follows that “others” would include different light emitting
diodes from the initially mentioned plurality. Again, nothing in
the specification or prosecution history warrants a different
outcome. Accordingly, the court will adopt Plaintiff’s proposed
construction of “others.”
III. CONCLUSION
For the foregoing reasons, the court construes the disputed
terms as follows:
Claim Term
Court’s Construction
“carried on” (all claims)
“supported on”
“a plurality of solid state
light sources” (‘028 Patent,
claims 1-3, 5-8, 14, & 16-17)
“disposed in a second plane
not coextensive with said
first plane” (all claims)
“two or more packages, each of
which comprise a solid state
light source”
“disposed in a second plane
that is not the same as the
first plane wherein the
plurality of LEDs are not
disposed in a single plane
perpendicular to the axis of
the elongate thermally
conductive member”
– 41 –
“a spatial relationship
concerning certain identified
locations on the elongate heat
sink and having the specific
mathematical description of a
plane.”
“plane” (all claims)
“heat dissipation protrusion”
(all claims)
“projection from a surface
designed to convect heat”
“contained” (all claims)
“found within”
“channel” (‘303 Patent claim
9; ‘028 Patent claims 8 & 22)
“the space defined by a pair
of heat dissipation
protrusions”
“some” (all claims)
“one or more”
“others” (all claims)
“one or more different”
IT IS SO ORDERED.
This the 22nd day of August, 2018.
____________________________________
United States District Judge
– 42 –
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