Precision Links, Inc. v. USA Products Group Inc. et al

Filing 71

ORDER granting Defendant's 52 Motion for Construction of Claims of U.S. Patent No. 5,673,464 ; granting Plaintiff's 55 Motion for Claim Construction to the extent that the disputed claim terms of U.S. Patent No. 5,673,464 as stated in this Order. Signed by District Judge Martin Reidinger on 6/17/2010. (tmg)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA C H AR L O TTE DIVISION C IV IL CASE NO. 3:08cv576

P R E C IS IO N LINKS INCORPORATED, ) ) P l a i n t if f , ) ) vs . ) ) U S A PRODUCTS GROUP, INC. and ) H O M E DEPOT U.S.A., INC., ) ) D e fe n d a n ts . ) __________________________________ )

ORDER

THIS MATTER is before the Court on the parties' respective motions [D o c s . 52, 55] for the construction of certain claim language in U.S. Patent N o . 5,673,464 ("the `464 Patent"). The Court held a claim construction h e a rin g on June 10, 2010.

I.

PROCEDURAL HISTORY O n December 15, 2008, the Plaintiff Precision Links Incorporated

("P re c is io n Links" or "Plaintiff") filed this action for patent infringement a g a in s t the Defendants USA Products Group, Inc. ("USA Products") and H o m e Depot USA, Inc. ("Home Depot") (collectively "Defendants"). [Doc.

1 ]. The Defendants filed their Answer and Counterclaim on April 8, 2009, d e n yin g infringement and asserting a claim of invalidity. [Doc. 20]. Thereafter, the Court entered a Pretrial Order and Case Management Plan [D o c . 24], setting certain scheduling deadlines and establishing a claim c o n s tru c tio n schedule. O n May 19, 2009, the Plaintiff filed a Motion for Preliminary Injunction [D o c . 25], but this motion was stricken due to its failure to comply with the typ e requirement and page limitation set forth in the Pretrial Order and C a s e Management Plan. [Doc. 37]. The Plaintiff subsequently re-filed its m o tio n in conformity with the type requirement and page limitation on June 1 6 , 2009. [Doc. 38]. The Court denied the Plaintiff's request for p re lim in a ry injunctive relief on September 22, 2009. [Doc. 46]. O n October 9, 2009, the parties filed a Joint Claim Construction and P re h e a rin g Statement. [Doc. 47]. Thereafter, on December 18, 2009, the D e fe n d a n ts filed their motion for claim construction. [Doc. 52]. After re c e ivin g an extension of time to do so, the Plaintiff filed its claim c o n s tru c tio n motion on December 21, 2009. [Doc. 55]. The parties' re s p e c tive responses were filed on January 15, 2009 [Docs. 63, 65], and re p lie s were filed on January 29, 2010 [Docs. 66, 67]. On March 15, 2010,

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th e Court entered an Order consolidating this matter with Precision Links In c o rp o ra te d v. True Value Company, No. 3:09cv205, for the purposes of c la im construction only. [Doc. 69]. The Plaintiff voluntarily dismissed this la tte r action, however, on March 24, 2010 [No. 3:09cv205, Doc. 20]. Thereafter, the Court scheduled the claim construction hearing in the p re s e n t case to take place on June 10, 2010. H a vin g been fully briefed and argued, the issue of claim construction is now ripe for disposition.

II.

FACTUAL BACKGROUND T h e invention disclosed in the

`4 6 4 Patent relates to a "Cargo S e c u r e m e n t System and Tie Down S tr a p ," which is essentially a tie-down s tra p of the type used to restrain cargo d u rin g transport. One of the central features of the claimed invention is a s e t of openings in the main body of the strap that allows the body of a s e c o n d identical strap to pass through and be redirected. See `464 Patent, F ig . 10 (reproduced above).

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It is alleged that the Plaintiff is the record owner of the `464 Patent . [Doc. 1 at ¶8]. It is further alleged that the Plaintiff and its licensees have s o ld these tie-down straps in various retail outlets throughout the United S ta te s , including Home Depot. [Id. at ¶12]. T h e Defendant USA Products is the manufacturer and/or importer of th e CARGO BOSS Cargo Control Rubber Tarp Strap ("the Accused S tra p "). [Doc. 1 at ¶15; Doc. 20 at ¶15]. It is alleged that USA Products s e lls the Accused Strap to Home Depot, which has offered and continues to offer the Accused Strap for sale in several of its stores, including stores in this district. [Doc. 1 at ¶15]. There are three independent claims within the `464 Patent. Independent Claim 1 of the `464 Patent provides as follows: 1 . A tie down strap extendable between attachment lo c a tio n s in at least intermittent abutment with cargo to restrain movement of the cargo, comprising: two end portions and an elongateable linearly e xte n d in g elastic main body portion disposed th e r e b e tw e e n , m e a n s formed in at least a first said end portion th e re o f for attaching said main body portion to an a tta c h m e n t location, and a plurality of openings integrally formed within and e xte n d in g in a sequential manner linearly aligned
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a lo n g said linearly extending main body portion in te rm e d ia te said end portions, each said opening b e in g dimensioned for the passage therethrough of a m a in body portion of a second identical tie down strap fo r the redirection of the second identical tie down s tra p when the elastic main body portion defining said o p e n in g is elongated. `4 6 4 Patent, Col. 6, line 55 to Col. 7 line 4. Independent Claim 6 provides as follows: 6. A cargo securement system for restraining m o ve m e n t of cargo, comprising: a plurality of elongateable straps, each said strap h a vin g two end portions [a n ] elongateable linearly extending main body portion d is p o s e d therebetween, and h o o k means disposed on each said end portion for re m o va b ly attaching said end portions to attachment lo c a tio n s , said hook means having engaging portions, e a c h said main body portion comprising two side m e m b e rs extending in spaced parallel relation b e twe e n said two end portions and bridge portions th a t are sequentially arranged along said main body p o rtio n and that extend between and secure in p a ra lle l relation said two side members, said side m e m b e rs and said bridge portions thereby defining a p lu ra lity of openings integrally formed within and e xte n d in g in a sequential manner linearly along said lin e a r-e xte n d in g main body portion. e a c h said strap of the cargo securement system c o o p e ra tin g with other said straps to restrain
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m o ve m e n t of the cargo, said bridge portions of each s a id strap being configured to be received within said e n g a g in g portions of said hook means of each said s tra p in substantially continuous contact therewith for p ro vid in g attachment locations for said strap, said o p e n in g s of each said strap being dimensioned for th e passage therethrough of a main body portion of a n o th e r said strap for the redirection of said strap e xte n d e d therethrough. Id . at Col. 7, line 33 to Col. 8, line 18. In d e p e n d e n t Claim 8 provides as follows: 8 . A cargo securement system, comprising a plurality o f elongateable straps, each strap comprising: two end portions and an elongateable linearly e xte n d in g elastic main body portion disposed th e re b e twe e n having a plurality of openings, said m a in body portion including two side members e x te n d in g in spaced parallel relation between said two e n d portions and bridge portions which are s e q u e n tia lly arranged along said main body portion a n d which extend between and secure in parallel re la tio n said two side members, said bridge portions a n d said side members thereby defining said o p e n in g s , wh e re in said openings are dimensioned for the p a s s a g e therethrough of one of said plurality of straps fo r the redirection of said one strap extended th e r e th r o u g h . Id. at Col. 8, lines 26-40. Claims 2, 3, 4, and 7 are dependent claims of C la im s 1, 6, and 8. The Plaintiff alleges literal infringement of Claims 1, 2,

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a n d 4 by a single Accused Strap and of Claims 1, 2, 3, 4, 6, 7, and 8 by the u s e of two Accused Straps together. [Doc. 1 at ¶¶ 17, 18].

III.

PRINCIPLES OF CLAIM CONSTRUCTION "T h e determination of infringement is a two-step process. First, the

c o u rt construes the claims to correctly determine the scope of the claims. Second, it compares the properly construed claims to the accused device." Bell Atlantic Network Services, Inc. v. Covad Communications Group, Inc., 2 6 2 F.3d 1258, 1267 (Fed. Cir. 2001). The first step in this process, the c o n s tru c tio n of claims, is a question of law for the Court. Markman v. W e s tvie w Instruments, Inc., 517 U.S. 370, 372, 116 S.Ct. 1384, 134 L .E d .2 d 577 (1996); Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (F e d . Cir. 1998) (en banc). The second step, the comparison of the p ro p e rly construed claims to the accused device, is typically a question of fa c t for the jury. See Bell Atlantic, 262 F.3d at 1267. " It is well-settled that, in interpreting an asserted claim, the court s h o u ld look first to the intrinsic evidence of record, i.e., the patent itself, in c lu d in g the claims, the specification and, if in evidence, the prosecution h is to ry. Such intrinsic evidence is the most significant source of the legally

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o p e ra tive meaning of disputed claim language." Vitronics Corp. v. C o n c e p tr o n ic , Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996) (citation omitted). T h e Court should give the disputed claim terms "their ordinary and a c c u s to m e d meaning as understood by one of ordinary skill in the art." Bell A tla n tic , 262 F.3d at 1267. A person of ordinary skill in the art is deemed to re a d the claim terms not only in the context of the particular claims in which th e disputed terms appear, but also in the context of the entire patent, in c lu d in g the specification and the prosecution history. See Phillips v. A W H Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005). The claims of the patent "themselves provide substantial guidance as to the meaning of particular claim terms." Id. at 1314. Specifically, the c o n te xt in which a term is used within the claim, as well as the usage of th a t term in other claims of the patent, can be valuable in ascertaining the m e a n in g of a particular claim term. Id. Of course, the claims of the patent c a n n o t be viewed in a vacuum. The Court also "must look at the ordinary m e a n in g in the context of the written description and the prosecution h is to ry." Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed. C ir. 2005) (quoting DeMarini Sports, Inc. v. Worth, 239 F.3d 1314, 1324 (F e d . Cir. 2001)).

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T h e specification of the patent can be highly instructive in construing th e patent claims. As the Federal Circuit has noted, the specification "is a lwa ys highly relevant to the claim construction analysis." Vitronics, 90 F .3 d at 1582. In fact, the specification is usually dispositive, as "it is the s in g le best guide to the meaning of a disputed term." Id.; Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985) ("The s p e c ific a tio n is ... the primary basis for construing the claims."). As such, th e Federal Circuit has stated that it is "entirely appropriate for a court, wh e n conducting claim construction, to rely heavily on the written d e s c rip tio n for guidance as to the meaning of the claims." Phillips, 415 F .3 d at 1317. In some cases, the inventor may provide within the s p e c ific a tio n a special definition of a claim term which differs from the te rm 's usual meaning. "In such cases, the inventor's lexicography g o ve rn s ." Id. at 1316. The inventor also may disclaim or disavow claim s c o p e within the specification. Where "the inventor has dictated the correct c la im scope, ... the inventor's intention, as expressed in the specification, is re g a rd e d as dispositive." Id. In addition to consulting the specification, the Court also may e xa m in e the patent's prosecution history in construing the terms of the

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c la im s . Markman v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. C ir. 1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). "Like the specification, the prosecution history provides evidence of how th e PTO and the inventor understood the patent." Phillips, 415 F.3d at 1 3 1 7 . The prosecution history also may be helpful in determining whether th e inventor disclaimed any particular interpretation during the prosecution o f the patent. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1384 (Fed. C ir. 2005). While it can be helpful in some respects, the prosecution h is to ry "often lacks the clarity of the specification and thus is less useful for c la im construction purposes." Phillips, 415 F.3d at 1317. In addition to examining the intrinsic evidence, the Court is also a u th o riz e d to consider certain extrinsic evidence, "including expert and in ve n to r testimony, dictionaries, and learned treatises." Markman, 52 F.3d a t 980. Specifically with respect to expert testimony, the Federal Circuit h a s noted that such testimony "can be useful to a court for a variety of p u rp o s e s , such as to provide background on the technology at issue, to e xp la in how an invention works, to ensure that the court's understanding of th e technical aspects of the patent is consistent with that of a person of skill in the art, or to establish that a particular term in the patent or the prior art

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h a s a particular meaning in the pertinent field." Phillips, 415 F.3d at 1318. The Federal Circuit has cautioned, however, that "conclusory, unsupported a s s e rtio n s by experts as to the definition of a claim term are not useful to a c o u rt." Id. The Court must disregard any expert testimony "that is clearly a t odds with ... the written record of the patent." Key Pharms. v. Hercon L a b s . Corp., 161 F.3d 709, 716 (Fed. Cir. 1998). While extrinsic evidence may be useful in "shed[ding] useful light on th e relevant art," it is "less significant than the intrinsic record in d e te rm in in g the `legally operative meaning of disputed claim language.'" C .R . Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004) (q u o tin g in part Vanderlande Indus. Nederland BV v. Int'l Trade Comm'n, 3 6 6 F.3d 1311, 1318 (Fed. Cir. 2004)). "In sum, extrinsic evidence may be u s e fu l to the court, but it is unlikely to result in a reliable interpretation of p a te n t claim scope unless considered in the context of the intrinsic e vid e n c e ." Phillips, 415 F.3d at 1319. With these principles of claim construction in mind, the Court now tu rn s to the claims at issue in the patent-in-suit.

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IV .

CLAIM CONSTRUCTION A. C o n s tru c tio n of Claim Terms on Which the Parties Agree

T h e parties have identified the construction of several claim terms a n d phrases upon which they agree, including "tie down strap," "to restrain m o ve m e n t of," "elongated," "cargo securement system," "plurality of o p e n in g s ," "said plurality of straps for the redirection of said one strap," " c o n tr a c t," "relaxed," "hook," and "`S' hook," "cargo," and "elongateable." [Doc. 47 at 2-4; Doc. 56 at 1]. Having reviewed the language of the claims, a s well as the intrinsic evidence, the Court agrees with the parties' c o n s tru c tio n of these claim terms and therefore will adopt the construction o f such terms as proposed by the parties. B. D is p u te d Claim Terms, Phrases and Clauses 1. " d im e n s io n e d for the passage therethrough"

The parties agree that the question of infringement in this case will lik e ly turn on the Court's construction of the phrase "dimensioned for the p a s s a g e therethrough," which appears in independent Claims 1, 6, and 8. Accordingly, the Court will address this particular claim limitation first.

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a.

Th e "Dimensioned" Element in Claim 1

C la im 1 of the `464 Patent provides for a tie down strap with a p lu ra lity of openings, "each said opening being dimensioned for the p a s s a g e therethrough of a main body portion of a second identical tie down s tra p for the redirection of the second identical tie down strap when the e la s tic main body portion defining said opening is elongated." `464 Patent, C o l. 6, line 66 to Col. 7, line 4 (emphasis added). In its Order denying the P la in tiff's motion for preliminary injunction, the Court offered a preliminary c o n s tru c tio n of this language, construing it to mean as follows: [U ]p o n elongation of the first tie down strap, the p lu ra lity of openings in the strap become dimensioned fo r the passage therethrough of a main body portion o f a second identical tie down strap, thus permitting re d ire c tio n of the second identical tie down strap. [D o c . 46 at 17]. The Defendants contend that the Court should again adopt th is construction. [Doc. 52-1 at 13-15]. The Plaintiff contends, however, th a t the Court should construe this claim language to require that each of th e openings must be large enough so that the main body portion of a s e c o n d strap may be pulled through when the first strap is elongated, even if some deformation of the first strap must occur as the main body portion o f the second strap passes through. The Plaintiff argues that requiring the

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s tra p to be properly dimensioned only upon elongation improperly imports a limitation from the specification into the claim. [Doc. 56 at 10-11]. T h e Court begins its analysis with the claim language itself. The c o m m o n ly accepted meaning of the term "dimensioned" is "form[ed] to the re q u ire d dimensions." Merriam-Webster Online Dictionary, h ttp ://www.m e rria m -we b s te r.c o m /d ic tio n a ry/d im e n s io n e d (last visited June 1 0 , 2010). Thus, the claim describes a series of openings that are "fo rm [e d ] to the dimensions required" for the passing through of a second s tra p . The claim further describes each of the openings in the main body p o rtio n of the tie down strap as "being dimensioned. . . when the elastic m a in body portion defining said opening is elongated." `464 Patent, Col. 6, lin e 66 to Col. 7, line 4 (emphasis added). The plain meaning of this claim la n g u a g e suggests that the first strap must achieve the dimensions re q u ire d for the passage therethrough of the main body of a second strap b y the act of elongation. The plain language of Claim 1 does not support the Plaintiff's c o n te n tio n that passage of the second strap may be accomplished by d e fo rm a tio n of the strap opening during the passage itself. The claim p ro vid e s that each opening is "dimensioned for the passage therethrough"

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o f the main body portion of a second strap. Notably, the claim does not re c ite that the opening is dimensioned by the passage therethrough of a s e c o n d strap. Indeed, if the strap opening was not properly dimensioned p rio r to the second strap passing through, such that deformation of the s tra p opening was required to allow the second strap to pass through, then th e opening was not properly "dimensioned" by the elongation of the strap a n d therefore would not be encompassed by the plain language of this c la im . The specification makes clear that the strap is "dimensioned for" the p a s s a g e therethrough of the main body portion of a second strap by the e lo n g a tio n of the first strap. See `464 Patent Abstract ("The openings ... a re dimensioned to receive therethrough a main body portion of another s tra p when the main body portion defining the opening is elongated."); Col. 2 , lines 26-29 ("each opening being dimensioned for the passage th e re th ro u g h of a main body portion of a tie down strap when the elastic m a in body portion defining the openings is stretched or otherwise e lo n g a te d "); Col. 2, lines 53-54 ("each opening is stretchable to a c c o m m o d a te the passage therethrough by another strap"); Col. 5, lines 57 ("Hence, upon elongation of the strap 10, each opening 20 becomes

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d im e n s io n e d for receipt therethrough of a like but unstretched strap a c c o rd in g to the present invention."); Col. 5, lines 12-14 ("the strap of the p re s e n t invention features openings which are dimensioned upon e lo n g a tio n of the strap for receipt therethrough of another like strap"); Col. 5 , lines 39-42 ("each one of the openings in the main body portion of each s tra p is dimensioned so that, upon elongation of its respective strap, a m a in body portion of another strap may pass therethrough"). U n d e r the Plaintiff's proposed construction of the "dimensioned" e le m e n t, some "minor deformation" of the strap's opening would be p e rm itte d as the main body portion of the second strap passes through the o p e n in g , but any "substantial deformation" would not. [See Doc. 66 at 4]. This proposed construction finds no support in any of the intrinsic evidence. No reference is made in the claim language to any deformation of the s tra p , whether "minor" or "substantial." Moreover, there is nothing in the s p e c ific a tio n which would support the Plaintiff's reading of this claim la n g u a g e . Accordingly, the Plaintiff's construction must be rejected. The statements made by the Applicant in distinguishing prior art d u rin g the prosecution of the `464 Patent also support a finding that Claim 1 requires the dimensioning of the strap's openings to be created by the

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e lo n g a tio n of the strap. [See Doc. 53-2 at 57 ("in order for the holes (18) to b e sufficiently elongateable to allow a main body portion of an identical s tra p to pass therethrough, which is not disclosed by Hartman, the te a c h in g s of Hartman that the longitudinal stretch of the strap should be lim ite d must be completely disregarded"); Id. at 59 ("One of ordinary skill in th e art at the time of the invention would be taught by Hartman the benefits a n d techniques for drastically limiting the degree to which a tie down strap c a n be stretched, i.e., to the point where the tie down strap is just s tre tc h a b le enough for facilitating hooking and unhooking of S-shaped h o o k s through anchor holes in the strap, which is substantially less than th e degree of stretching required for the main body portion of a strap to p a s s through an anchor hole.")]. The Plaintiff contends that Claim 1 merely requires that "the openings a re large enough to allow the second strap through without excessively lo a d in g the first strap" and the "recommended stretching tolerance of the [fir s t] strap is not exceeded." [Doc. 56 at 10]. This construction, however, is not supported by any intrinsic evidence. Nothing in the specification re fe rs to "excessively loading" the strap or the "recommended stretching to le ra n c e " of such strap. Nor does the prosecution history cited by the

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P la in tiff support this proposed construction. In the passage cited by the P la in tiff [Doc. 53-2 at 57], the Applicant urged for the allowance of Claim 1 b y expressly arguing that the elongateability of the claimed strap permits it to be dimensioned for the passage therethrough of another strap. Nothing in this section of the prosecution history refers to "excessive loading" or a "re c o m m e n d e d stretching tolerance" as the reason for the claimed "d im e n s io n e d " limitation. Contrary to the Plaintiff's argument, the limitation that the strap o p e n in g s become dimensioned by the elongation of the strap does not im p ro p e rly import claim limitations from the preferred embodiment of the s p e c ific a tio n . Rather, dimensioning by elongation is the only construction s u p p o rte d by the plain language of the claim and the intrinsic evidence of re c o rd . Accordingly, the phrase "each said opening being dimensioned for th e passage therethrough of a main body portion of a second identical tie d o wn strap for the redirection of the second identical tie down strap when th e elastic main body portion defining said opening is elongated" as used in C la im 1 shall be construed to mean that by the elongation of the first tie d o wn strap, the plurality of openings in said strap become dimensioned for th e passage therethrough of a main body portion of a second identical tie

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d o w n strap, thus permitting redirection of the second identical tie down s tr a p . b. Th e "Dimensioned" Element in Claims 6 and 8

Claim 6, which provides for a type of cargo securement system c o n s is tin g of a plurality of elongateable straps with openings, contains a s im ila r limitation to that contained in Claim 1: s a id openings of each said strap being dimensioned fo r the passage therethrough of a main body portion o f another said strap for the redirection of said strap e xte n d e d therethrough. `4 6 4 Patent, Col. 8, lines 15-18. Claim 8, which also provides for a type of c a rg o securement system containing a plurality of elongateable straps with o p e n in g s , has similar language as well: wh e re in said openings are dimensioned for the p a s s a g e therethrough of one of said plurality of straps fo r the redirection of said one strap extended th e r e th r o u g h . Id . at Col. 8, lines 38-40. Notably, neither Claim 6 nor Claim 8 recites that th e openings are dimensioned for passage through of a second strap "wh e n . . . elongated," as is recited in Claim 1. The plain language of Claim 6 and Claim 8 requires that the openings b e dimensioned for the passage through of another strap. In other words,

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th e plain language of Claims 6 and 8 do not require the act of elongation in o rd e r to achieve the required dimensions for passage; rather, the openings m u s t be dimensioned such that a second strap can pass through, even with o u t the main body portion of the strap being elongated. Thus, unlike C la im 1, wherein the dimensions required for the passing through of a n o th e r strap are created by elongation of the strap, Claims 6 and 8 e n c o m p a s s a strap wherein the openings are already dimensioned for p a s s a g e of a second strap before the strap is ever elongated. There is no lim ita tio n in either Claim 6 or Claim 8 requiring that the dimensioning occur u p o n elongation of the strap, and the Court will not read such limitation into th e claim.1 T h u s , the Court will construe the phrase "said openings of each said s tra p being dimensioned for the passage therethrough of a main body p o rtio n of another said strap for the redirection of said strap therethrough" a n d "wherein said openings are dimensioned for the passage therethrough o f one of said plurality of straps for the redirection of said one strap e xte n d e d therethrough" as used in Claim 6 and Claim 8, respectively, to

This is not to say that by elongating the strap, the openings are no longer dimensioned for the passing through of a second strap. Presumably, if the openings were dimensioned for such passage before elongation, they would maintain such dimensioning when the strap is elongated. 20

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m e a n that even before the strap is elongated, the plurality of openings in th e strap are dimensioned for the passage therethrough of a main body p o rtio n of a second identical tie down strap, thus permitting redirection of th e second identical tie down strap. 2. " e n d portions" (1,4,6,8)

C la im 1 provides for a tie down strap comprising, among other things "two end portions." `464 Patent, Col. 6, line 58. Claims 4, 6, and 8 recite a s im ila r limitation. Id. at Col. 7, line 20; Col. 7, line 36; Col. 8, line 28. The D e fe n d a n t contends that the term "end portions" should be construed to m e a n the terminal portions of a tie down strap that extend beyond the outer e d g e s of the first and last openings of a tie down strap and that are a tta c h e d to the main body portion of a tie down strap. [Doc. 52-1 at 22]. The Plaintiff contends that this term should be construed as the extremities o f the linear strap where the hooks or other attachment means connect to th e strap. [Doc. 55 at 1]. T h e specification makes clear that the end portions are distinct from th e main body portion of the strap. See `464 Patent, Figs. 1, 2; Col. 2, lines 1 0 - 1 1 ("The main body portion of the strap is disposed between the two e n d portions . . . ."); Col. 3, lines 51-52 ("The main body portion 12 is

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d is p o s e d between two end portions 14 . . . ."); Col. 3, lines 54-56 ("As c o n te m p la te d by the present invention, the main body portion 12 is a tta c h e d to but reference thereto is not intended to include the end portions 1 4 . . . ."). Plaintiff's construction of "end portions" refers only to the u n d e fin e d "extremities of the claimed strap and fails to specify where the c la im e d strap's main body portion ends and its end portions begin. Because the `464 Patent specifies that the end portions extend beyond the o u te r edges of the first and last openings of the claimed strap, these b o u n d a rie s should be included in the construction of the term "end p o r ti o n s . " The Plaintiff urges the Court to include in its construction the "fu n c tio n " of the end portions, which the Plaintiff contends is "where the h o o k s or other attachment means connect to the strap." [Doc. 56 at 12]. The term "end portions" is not a means-plus-function term, however, and th u s the inclusion of this alleged function in its construction is not wa rra n te d . In any event, the hook or other attachment means in the end p o rtio n s of the strap is addressed by separate claim language, "means fo r m e d in," which is construed below.

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A fte r reviewing the specification, the Court concludes that the term "e n d portions" should be construed to mean the terminal portions of a tie d o wn strap that extend beyond the outer edges of the first and last o p e n in g s of a tie down strap and that are attached to the main body portion o f a tie down strap. 3. " a n elongateable linearly extending elastic main body p o rtio n disposed therebetween"

C la im 1 provides for a tie down strap comprising, among other things, "two end portions and an elongateable linearly extending elastic main body p o rtio n disposed therebetween . . . ." `464 Patent, Col. 6, lines 58-59 (e m p h a s is added). Claim 8 recites a similar limitation. Id. at Col. 8, lines 2 7 -3 0 . The Plaintiff contends that this phrase should be construed as a wh o le to mean any strap body which is capable of being stretched a useful a m o u n t in the linear direction, that is located between the end portions of th e strap. [Doc. 55 at 1-2]. The Defendants contend, on the other hand, th a t the terms "elongateable," "elastic," and "main body portion" should be c o n s tru e d separately, as these terms are used not only in connection with th is phrase but also in connection with distinctly different phrases that a p p e a r throughout the multiple claims. [Doc. 63 at 21]. The Plaintiff c o n c e d e s that there does not appear to be any substantive differences
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b e twe e n the parties' proposed construction of these terms and does not o b je c t to the Court construing these terms as proposed by the Defendants. [Doc. 56 at 12]. Accordingly, the term "elongateable" is construed to mean c a p a b le of being stretched; the term "elastic" is construed to mean e lo n g a te a b le and having a tendency to return to its original shape upon e lo n g a tio n ; and the term "main body portion" is construed to mean the p o rtio n of a tie down strap that extends between the outer edges of the first a n d last openings of a tie down strap. 4. " m e a n s formed in"

C la im 1 of the `464 Patent provides for a tie down strap comprising, a m o n g other things, "means formed in at least a first said end portion th e r e o f for attaching said main body portion to an attachment location ...." `464 Patent, Col. 6, lines 60-62 (emphasis added). The parties agree that th is is a means-plus-function claim element. See 35 U.S.C. §112, ¶6. T h e construction of a means-plus-function limitation involves two s te p s . First, the Court must determine the claimed function. Second, the C o u rt must identify the corresponding structure in the written description th a t performs that function. JVW Enters., Inc. v. Interact Accessories, Inc., 4 2 4 F.3d 1324, 1330 (Fed. Cir. 2005) (citations omitted).

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In the present case, the parties agree that the function of this claim e le m e n t is attaching the main body portion of the tie down strap to an a tta c h m e n t location. The parties disagree, however, as to the structure. The Defendants contend that the only structure identified in the written d e s c rip tio n that is "formed in" the end portion and that performs the re q u ire d function is the securement member that is formed as part of the e n d portion and is not removable therefrom. [Doc. 63 at 23]. The Plaintiff, o n the other hand, contends that the underlying structure includes both (1) a securement member that is formed as part of the end portion and is not re m o va b le therefrom and (2) a hook that can be releasably secured in an e n d portion by any conventional means such as by extending the hook th ro u g h a hole. [Doc. 56 at 12-13]. T h e parties both identify Column 4, lines 10 through 15 as describing th e underlying structure of this claim element: T h e end portions 14 each include a securement m e m b e r that is preferably a hook 22 having an e n g a g in g portion 24 for engagement with virtually any typ e of attachment location. Preferably, the engaging p o rtio n 24 is "U"-shaped. If desired, each hook 22 c a n be releasably secured in an end portion 14 by a n y conventional means such as by extending the h o o k 22 through a hole (not shown), but preferably th e hook 22 is formed as part of the end portion 14 a n d is not removable therefrom.
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`4 6 4 Patent, Col. 4, lines 7-15 (emphasis added). T h e Defendants are correct that the only structure identified in the writte n description that is "formed in at least a first said end portion," as re q u ire d by Claim 1, and that performs the required function, is the "s e c u re m e n t member that is formed as part of the end portion and is not re m o va b le therefrom." The Plaintiff fails to explain how a hook that is "re le a s a b ly secured in an end portion" is "formed in" the end portion, as e xp lic itly required by Claim 1. If the applicant had intended the attachment m e a n s in Claim 1 to cover both embodiments disclosed in the specification, th e applicant could have claimed a "means for attaching." Instead, h o we ve r, the applicant limited the "means" covered by this claim to those "fo rm e d in" the end portion, thereby excluding a "releasably secured" hook e xte n d e d through a hole. For these reasons, the Court concludes that the s tru c tu re for the means of this claim element is limited to a securement m e m b e r that is formed as part of the end portion and is not removable t h e r e f r o m .2

The Plaintiff further contends that the underlying structure includes equivalents of these described structures. [Doc. 55 at 3]. As set forth in 35 U.S.C. § 112, ¶6, the structure of a means-plus-function claim element also includes "equivalents thereof." Thus, it is not necessary for the Court to include the term "equivalents" in its construction of this claim element. 26

2

5.

" r e d ir e c t io n "

C la im 1 provides, in pertinent part, that the tie down strap has "a plurality of openings . . . each said opening being dimensioned for the p a s s a g e therethrough of a main body portion of a second identical tie down s tra p for the redirection of the second identical tie down strap . . . ." `464 P a te n t, Col. 6, line 63 to Col. 7, line 3 (emphasis added). Claims 6 and 8 re c ite a similar limitation. Id. at Col. 8, lines 16-18; Col. 8, lines 38-40. The D e fe n d a n ts contend that the term "redirection" should be construed to m e a n the redirection of the linear tension in the second identical tie down s tra p . [Doc. 52-1 at 26]. The Plaintiff contends that the term should be c o n s tru e d to mean the act of positioning a second strap, once through an o p e n in g in a first strap, in one direction on one side of the opening and in a d iffe re n t direction on the other side of the opening. [Doc. 55 at 2]. In its o p e n in g brief, however, the Plaintiff concedes that there is not a s u b s ta n tive difference between the constructions proposed by the parties, a n d thus it does not object to the Court adopting either construction. [Doc. 5 6 at 13]. T h e specification supports a construction of this term which includes re fe re n c e to the redirection of the linear tension of the second strap. See

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`4 6 4 Patent, Col. 2, lines 58-60 ("the opening [of the strap] thus becomes a n intermediate attachment location for the strap passing therethrough that re d ire c ts the linear tension of the strap"). Further, in responding to the P a te n t Office's initial rejection of Claim 1, the Applicant stated, "The o p e n in g s in the strap of the present invention are the catalytic feature re s u ltin g in the unique interaction exhibited in securing cargo . . . . [B]y p a s s in g a strap through an opening of another strap, the strap (and the lin e a r tension extending through the strap) can be redirected." [Doc. 53-2 a t 55]. A c c o rd in g ly, the Court concludes that the term "redirection" should be c o n s tru e d to mean the redirection of the linear tension in the second id e n tic a l tie down strap. 6. " s id e members" and "bridge portions"

C la im 2 provides for a tie down strap according to Claim 1, wherein th e main body portion of the strap comprises two side members extending in spaced p a ra lle l relation between said two end portions, and fu r th e r comprising bridge portions that are s e q u e n tia lly arranged along said main body portion a n d extend between and secure in parallel relation s a id two side members, said bridge portions and said s id e members thereby defining said openings.

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`4 6 4 Patent, Col. 7, lines 6-12. Claims 2, 3, 4, 6, 7, 8 also provide for tie d o wn straps with side members and bridge portions. Id. at Col. 7, lines 131 8 ; Col. 7, lines 19-27; Col. 7, line 33 to Col. 8, line 8; Col. 8, lines 19-25; C o l. 8, lines 26-40. The Defendants contend that the term "side members" s h o u ld be construed to mean the two side pieces of the tie down strap that d e fin e the width dimension of each opening, and that the term "bridge p o r tio n s " should be construed to mean the discrete pieces of the tie down s tra p that bridge the two side members of the tie down strap and define the le n g th dimension of each opening of the tie down strap. [Doc. 52-1 at 27]. The Plaintiff objects to the Defendants' proposed construction of these te rm s , arguing that the Defendants' proposals are based on a comparison to the dimensions of the invention's preferred embodiments. The Plaintiff c o n te n d s that these terms should be construed instead according to their a c tu a l structure. Accordingly, the Plaintiff contends that the term "side m e m b e r s " should be construed as the parts of the main body that are p a ra lle l along the longest dimension of the strap and are separated by a s p a c e or opening, and that the term "bridge portions" should be construed a s those areas of the strap, arranged sequentially, which traverse the s p a c e between the side members and, together with the side members,

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fo rm the perimeter of the openings integrally formed in the main body of the s tra p . [Doc. 55 at 2-3; Doc. 56 at 13-14]. T h e specification makes clear that the claimed strap's side members a n d bridge portions are discrete pieces of the strap that define the length a n d width of each of the strap's opening. This is not just a preferred e m b o d im e n t, but is the structure of the claimed straps. `464 Patent, Col. 2, lin e s 37-38 ("[T]he two side members and bridge portions thereby define th e plurality of openings."); Id. at Col. 3, lines 61-64 ("side members 16 and b rid g e portions 18 thereby define a plurality of openings 20 integrally fo rm e d in a linearly sequential manner along the length of the main body p o rtio n 12"). Contrary to the Plaintiff's argument, the Defendants' proposed c o n s tru c tio n of these terms does not incorporate dimensions of the p re fe rre d emobodiment of the invention, but rather defines the actual s tru c tu re of the side members and bridge portions of the claimed strap. See `464 Patent Abstract ("the main body portion comprises two side m e m b e rs that extend between the two end portions in spaced parallel r e la tio n and a plurality of bridge portions that extend between and secure th e two side members in their parallel relation"); Id. at Col. 3, lines 50-60 ("T h e main body portion 12 . . .comprises two side members 16 that extend

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in spaced parallel relation between the two end portions 14 . . . . Bridge p o rtio n s 18 are sequentially arranged along the length of the main body p o rtio n 12 and extend in the widthwise direction to secure the two side m e m b e rs 16 together . . . ."). For these reasons, the Court concludes that th e s e terms should be construed as proposed by the Defendants. Thus, th e term "side members" shall be construed as the two side pieces of the tie down strap that define the width dimension of each opening, and the te rm "bridge portions" shall be construed as the discrete pieces of the tie d o wn strap that bridge the two side members of the tie down strap and d e fin e the length dimension of each opening of the tie down strap. 7. " e n g a g in g portion"

C la im 4 of the `464 Patent provides, in pertinent part, for "[a] tie down s tra p . . . wherein said attaching means includes a hook at each said end p o rtio n having an engaging portion configured to receive therein one of s a id bridge portions for substantially continuous contact therebetween ...." `464 Patent, Col. 7, lines 19-23 (emphasis added). Claim 6 recites a claim for a cargo securement system comprising, a m o n g other things, a "hook means disposed on each said end portion for re m o va b ly attaching said end portions to attachment locations, said hook

31

m e a n s having engaging portions ...." Id. at Col. 7, lines 39-42 (emphasis a d d e d ). Claim 7 similarly recites a claim for a cargo securement system "c o m p ris in g two straps and a plurality of `S'-hooks having engaging p o rtio n s ...." Id. at Col. 8, lines 19-21 (emphasis added). T h e Defendants contend that the term "engaging portion" should be c o n s tru e d as an engaging surface configured to correspond to the e n g a g in g surface of the bridge portions of a tie down strap for substantially c o n tin u o u s and secure engagement therebetween. [Doc. 52-1 at 28]. The P la in tiff objects to the Defendants' proposed construction, arguing that s u c h construction improperly imports a limitation from the specification into th e claim. The Plaintiff proposes that the term should be construed to m e a n the end of the hook that is attached to the anchor point, the cargo, or th e load. [Doc. 55 at 3, Doc. 56 at 14]. The specification provides that the preferred embodiment of the in ve n tio n has hooks with engaging portions that correspond to the shape of th e corresponding bridge portion such that the engaging portion and bridge p o rtio n s form a substantially continuous and secure engagement. For e xa m p le , Figures 3 and 4 show a U-shaped engaging portion in continuous a n d secure engagement with a cylindrical bridge portion, and Figure 5

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s h o ws an engaging portion with a 90-degree angle in continuous and s e c u re engagement with a bridge portion that has the same 90-degree a n g le . `464 Patent, Figs. 3, 4, and 5. The secure engagement created b e twe e n the engaging portion of the hook and the corresponding bridge p o rtio n s is described through the detailed description of the preferred e m b o d im e n t. See `464 Patent, Col. 4, lines 2-10, 16-22, 25-31. The specification also provides, however, that the engaging portion of th e hook or other securement member allows for "engagement with virtu a lly any type of attachment location." Id. at Col. 4, lines 9-10. And wh ile Claim 4 recites that the engaging portion of the hook must be c o n fig u re d so as to create "substantially continuous contact" with the c o rre s p o n d in g bridge portion, id. at Col. 7, line 22, Claim 6 merely recites a h o o k means for removably attaching the end portions to "attachment lo c a tio n s ," id. at Col. 7, lines 40-41, and Claim 7 recites a hook that can re c e ive a bridge portion of a strap within its engaging portions, id. at Col. 8, lin e s 24-25. There is no limitation in either Claim 6 or Claim 7 that requires th e engaging portion of the hook to correspond to either the shape of the a tta c h m e n t location or the bridge portion of the strap and to achieve

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s u b s ta n tia lly continuous contact therewith. Accordingly, the Defendants' p ro p o s e d construction of this term must be rejected. T h e Court cannot accept the Plaintiff's proposed construction, h o we ve r, as it is unclear what is meant by "end of the hook." The "end" of a hook could be a reference to the tip of the hook or, for example, in the c a s e of a "U" shaped hook, it could be a reference to the "U"-shaped p o rtio n of the hook which makes contact with the attachment location. As s u c h , the Court must devise its own construction of this claim term. Based o n the plain language of the claims and the intrinsic evidence found in the writte n description, the Court construes the term "engaging portion" to m e a n the part of the hook or other securement member that is in contact with the attachment location when the hook or other securement member is e n g a g e d with the attachment location or that is in contact with the bridge m e m b e r when the hook or other securement member is engaged with the b rid g e member.

ORDER IT IS, THEREFORE, ORDERED that the Defendants' Motion for C o n s tru c tio n of Claims of U.S. Patent No. 5,673,464 [Doc. 52] and the

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P la in tiff's Motion for Claim Construction [Doc. 55] are GRANTED to the e x te n t that the disputed claim terms of U.S. Patent No. 5,673,464 are h e re b y construed as follows: (1 ) T h e term "tie down strap" is construed to mean a strap abutting a n d restraining the movement of cargo. (2) T h e phrase "to restrain movement of" is construed to mean to p re ve n t change of position due to directional changes, vibrations, win d , and/or other forces. (3) (4) T h e term "elongated" is construed to mean stretched. T h e term "cargo securement system" is construed to mean a s ys te m employing a plurality of tie down straps used in a c o o p e r a tin g relationship to abut and restrain the movement of c a rg o . (5) T h e term "plurality of openings" is construed to mean more than o n e opening. (6) T h e terms "said plurality of straps" and "said one strap" as used in the phrase "said openings are dimensioned for the passage th e re th ro u g h of one of said plurality of straps for the redirection of

35

s a id one strap extended therethrough" is construed to mean the m a in body portion of one of said plurality of tie down straps. (7) (8) T h e term "contract" is construed to mean to shorten. T h e term "relaxed" is construed as being free or relieved of te n s io n . (9) T h e term "hook" is construed to mean a curved or angular piece o f metal or other hard substance, for catching, pulling, holding or s u s p e n d in g something. (10) T h e term "`S' hook" is construed as a metal or other solid material, in the shape of the letter "S," used as a hook. (1 1 ) T h e term "cargo" is construed to mean items or stacks of items tra n s p o rte d by truck, automobile, or other vehicle. (12) T h e term "elongateable" is construed to mean capable of being s tr e tc h e d . (13) T h e phrase "each said opening being dimensioned for the p a s s a g e therethrough of a main body portion of a second identical tie down strap for the redirection of the second identical tie down s tra p when the elastic main body portion defining said opening is e lo n g a te d " as used in Claim 1 is construed to mean that by the

36

e lo n g a tio n of the first tie down strap, the plurality of openings in s a id strap become dimensioned for the passage therethrough of a main body portion of a second identical tie down strap, thus p e rm ittin g redirection of the second identical tie down strap. (1 4 ) T h e phrase "said openings of each said strap being dimensioned fo r the passage therethrough of a main body portion of another s a id strap for the redirection of said strap extended therethrough" a n d "wherein said openings are dimensioned for the passage th e re th ro u g h of one of said plurality of straps for the redirection of s a id one strap extended therethrough" as used in Claim 6 and C la im 8, respectively, is construed to mean that even before the s tr a p is elongated, the plurality of openings in the strap are d im e n s io n e d for the passage therethrough of a main body portion o f a second identical tie down strap, thus permitting redirection of th e second identical tie down strap. (1 5 ) T h e term "end portions" is construed to mean the terminal p o rtio n s of a tie down strap that extend beyond the outer edges o f the first and last openings of a tie down strap and that are a tta c h e d to the main body portion of a tie down strap.

37

(1 6 ) T h e term "elastic" is construed to mean elongateable and having a tendency to return to its original shape upon elongation. (1 7 ) T h e term "main body portion" is construed to mean the portion of a tie down strap that extends between the outer edges of the first a n d last openings of a tie down strap. (1 8 ) T h e phrase "means formed in" is construed as a means-plusfu n c tio n limitation, with the function of this claim element being for a tta c h in g the main body portion of the tie down strap to an a tta c h m e n t location, and the structure being a securement m e m b e r that is formed as part of the end portion and is not re m o va b le therefrom. (1 9 ) T h e term "redirection" is construed to mean the redirection of the lin e a r tension in the second identical tie down strap. (2 0 ) T h e term "two side members" is construed to mean the two side p ie c e s of the tie down strap that define the width dimension of e a c h opening. (21) T h e term "bridge portions" is construed to mean the discrete p ie c e s of the tie down strap that bridge the two side members of

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th e tie down strap and define the length dimension of each o p e n in g of the tie down strap. (2 2 ) T h e term "engaging portion" is construed to mean the part of the h o o k or other securement member that is in contact with the a tta c h m e n t location when the hook or other securement member is engaged with the attachment location or that is in contact with th e bridge member when the hook or other securement member is engaged with the bridge member. IT IS SO ORDERED.
Signed: June 17, 2010

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