Denis Cimaf, Inc. v. Fecon, Inc.

Filing 36

ORDER on Claim Construction: The Court finds that no construction is necessary for Term 1 "cutting tooth mounting blocks"; the Court finds that no construction is necessary for Term 2 "cutting tooth"; The Court finds no construct ion on Term 3 "detachably mounted on each block" is necessary and it is to be given its plain and ordinary meaning; the Court finds that Cimaf's proposed construction is consistent with the plain and ordinary meaning of the claim langu age of Term 4 "each guard projecting radially outwardly from the surface at a distance at least equal to the height of the block but less that the height of the cutting edge from the surface" should be adopted.. Signed by Judge Timothy S. Black on 4/22/2019. (ss)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DENIS CIMAF, INC.,
Plaintiff,
vs.
FECON, INC.,
Defendant.

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Case No. 1:17-cv-820
Judge Timothy S. Black

ORDER ON CLAIM CONSTRUCTION
Plaintiff Denis Cimaf, Inc. (“Cimaf”) filed a complaint alleging that Defendant
Fecon, Inc., (“Fecon”) has infringed and continues to infringe U.S. Patent No. 6,764,035,
entitled “Brush Cutter” (the “‘035 Patent”). (Doc. 1). Defendant Fecon filed a
counterclaim seeking declaratory judgment that it has not infringed and it is not
infringing on the ‘035 Patent. (Doc. 5)
This matter is now before the Court for construction of the ‘035 Patent pursuant
to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc),
aff’d, 517 U.S. 370 (1996). The parties exchanged the claim terms that are in dispute and
submitted to the Court a Joint Claim Construction and Prehearing Statement, pursuant to
Local Patent Rule 105.2(d). (Doc. 27). The parties submitted briefs in support of their
proposed claim constructions. (Docs. 28, 29, 32, 33). The Court held a Markman
hearing on March 19, 2019 during which counsel for the parties presented arguments in
support of their respective construction of claims at issue. (Doc. 35).
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Relying on the parties’ briefs, evidence, and oral arguments, the Court will
construe each of the disputed terms.
I.

THE PATENT AT ISSUE

The ‘035 Patent, dated July 20, 2004 and naming Cimaf as the assignee, discloses
inventions related to brush cutters that attach to vehicles for mulching purposes. The
abstract of the ‘035 Patent describes the claimed brush cutter invention as follows:
A brush cutting head having a cylindrical, tubular, support base. A
plurality of cutting tooth mounting blocks are fixedly mounted on
the cylindrical outer surface of the base, the blocks extending
transverse to the longitudinal axis of the base, each block having a
front face and sides. A cutting tooth is provided for each mounting
block, each cutting tooth made from a plate having a uniform
thickness with an inner surface and an outer surface. Each tooth has
a straight, relatively long, base section and a straight, relatively
short, cutting section bent from one end of the base section toward
the inner surface to form an obtuse angle between the inner surface
of the base section and the inner surface of the cutting section. Each
tooth is mounted on the block with the base section of the tooth
adjacent the front face of the block and the base section extending
outwardly from the base, and with the cutting section above the
block and extending forwardly from the base section of the tooth.
(Doc. 27-2 at 2).
The parties’ current dispute concerns the construction of four terms in two of the
‘035 Patent’s claims (Claims 20 and 21).
Claim 20 provides:
A brush cutting head having a cylindrical, tubular, base; a plurality
of cutting tooth mounting blocks fixedly mounted on the outer
cylindrical surface of the base; a cutting tooth detachably mounted
on each block, each tooth having a cutting edge, the cutting edge
located radially outwardly past the block; and a protective guard
associated with each block, the guard mounted on the cylindrical
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surface of the base in front of the block and extending forwardly
from the block in a circumferential direction about a portion of the
base; each guard projecting radially outwardly from the surface a
distance at least equal to the height of the block but less than the
height of the cutting edge from the surface, the guard preventing the
block from being struck by an object while allowing the tooth to cut
when the cutting head is rotated to cut brush.
(Id. at 12).
Claim 21 provides:
A cutting head as claimed in claim 20 wherein the protector is in the
form of a narrow, broken, ring that extends substantially
circumferentially about the surface of the base, transverse to the
longitudinal axis of the base, the protector terminating a short
distance in front of the block to provide a clearance space in front of
the block, and the cutting tooth on the block, for the chips produced
by the tooth.
(Id.).
The parties dispute the construction of the following four terms or phrases in
Claims 20 and 21 of the ‘035 Patent: (1) “cutting tooth mounting blocks”; (2) “cutting
tooth”; (3) “detachably mounted on each block”; and (4) “each guard projecting radially
outwardly from the surface a distance at least equal to the height of the block but less
than the height of the cutting edge from the surface.” The Court will construe each
disputed term/phrase in turn.
II.

STANDARD OF REVIEW

Claim construction is a matter of law to be decided exclusively by the Court.
Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed. Cir. 1995) (en banc),
aff’d, 517 U.S. 370. “[T]he claims of a patent define the invention to which the patentee

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is entitled the right to exclude.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys.,
Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004).
Claim terms are “generally given their ordinary and customary meaning.” Phillips
v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005). “The ordinary and customary
meaning of a claim term is the meaning that the term would have to a person of ordinary
skill in the art in question at the time of the invention, i.e., as of the effective date of the
patent application.” Id. at 1313. Absent an express intent to the contrary, a patentee is
presumed to have intended the ordinary meaning of a claim term. York Prods. v. Cent.
Tractor Farm & Family Ctr., 99 F.3d 1568, 1572 (Fed. Cir. 1996). The Court must also
consider the specification “to determine whether the inventor has used any terms in a
manner inconsistent with their ordinary meaning.” Id. Finally, the Court may consider
“the prosecution history of the patent, if in evidence.” Vitronics Corp. v. Conceptronic,
Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). If these documents unambiguously define the
scope of the patented invention, there is no need for the Court to consider any extrinsic
evidence. Id. at 1583.
In construing claims, the Court determines whether or not a term requires
construction. U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997).
The Court is not required to accept a construction of a term, even if the parties have
stipulated to it, but instead may arrive at its own construction of claim terms, which may
differ from the constructions proposed by the parties. Pfizer, Inc. v. Teva Pharms., USA,
Inc., 429 F.3d 1364, 1376 (Fed. Cir. 2005). “The appropriate starting point [...] is always

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with the language of the asserted claim itself.” Comark Commc’ns, Inv. v. Harris Corp.,
156 F.3d 1182, 1186 (Fed. Cir. 1998). Generally, the terms of a patent should be
construed consistently throughout the patent. Phillips, 415 F.3d at 1314; Rexnord Corp.
v. Laitram Corp., 274 F.3d 1336, 1342 (Fed. Cir. 2001) (“[A] claim term should be
construed consistently with its appearance in other places in the same claim or in other
claims of the same patent.”). “When the specification explains and defines a term used in
the claims, without ambiguity or incompleteness, there is no need to search further for the
meaning of the term.” Multiform Desiccants, Inc. v. Medzam Ltd., 133 F.3d 1473, 1478
(Fed. Cir. 1998).
The general rule is that terms in the claim are to be given their ordinary and
accustomed meaning. Reinshaw v. Marposs Societa’ Per Azioni, 158 F.3d 1243, 1249
(Fed. Cir. 1998). General descriptive terms will ordinarily be given their full meaning;
modifiers will not be added to broad terms standing alone. See, e.g., Virginia Panel
Corp. v. MAC Panel Co., 133 F.3d 860, 865-66 (Fed. Cir. 1997). A court must presume
that the terms in the claim mean what they say and, unless otherwise compelled, give full
effect to the ordinary and accustomed meaning to skilled artisans of claim terms. See,
e.g., Nike Inc. v. Wolverine World Wide, Inc., 43 F.3d 644, 646 (Fed. Cir. 1994).
In order to overcome this heavy presumption in favor of the ordinary meaning
of claim language, it is clear that “a party wishing to use statements in the written
description to confine or otherwise affect a patent’s scope must, at the very least, point to
a term or terms in the claim with which to draw in those statements.” Renishaw, 158

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F.3d at 1248. That is, claim terms cannot be narrowed by reference to the written
description or prosecution history unless the language of the claims invites reference to
those sources. See, e.g., McCarty v. Lehigh Valley R.R., 160 U.S. 110, 116 (1895) (“If
we once begin to include elements not mentioned in the claim in order to limit such
claim …, we should never know where to stop”).
Courts have available to them a number of canons of construction which aid in
construing patent claims. Among them are:
1) Each claim in a patent has a different scope. A dependent claim has a narrower
scope than the claim upon which it depends.
2) Claims are not limited to the preferred embodiment disclosed in the
specification.
3) Ordinarily, different words in a patent have different meanings.
4) Ordinarily, the same word in a patent has the same meaning.
5) Ordinarily, the meaning should align with the purpose of the patented
invention.
6) Ordinarily, general descriptive terms are given their full meaning.
7) If possible, claims should be construed so as to preserve their validity.
8) Ordinarily, absent broadening language, numerical ranges are construed exactly
as written.
9) Ordinarily, absent recitation of order, steps of a method are construed to have a
particular order.
10) Absent highly persuasive evidentiary support, a construction should literally
read on the preferred embodiment.
Patent Law and Practice, Fifth Edition, Herbert F. Schwartz at 134-136.

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Courts may also consider the patent’s prosecution history, if in evidence. The
prosecution history limits the interpretation of claim terms so as to exclude any
interpretation that was disclaimed during prosecution. Southwall Techs., Inc. v. Cardinal
IG Co., 54 F.3d 1570, 1576 (Fed. Cir. 1995). The prosecution history “constitutes a
public record of the patentee’s representations concerning the scope of and meaning of
the claims, and competitors are entitled to rely on those representations when ascertaining
the degree of lawful conduct.” Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1369
(Fed. Cir. 2005).
In most circumstances, analysis of the intrinsic evidence alone will resolve claim
construction disputes. See Vitronics, 90 F.3d at 1583. Courts must first look to intrinsic
evidence (i.e., the claim itself, specifications, prosecution history and prior art cited in the
patent) to resolve any ambiguities. Id. at 1582. Extrinsic evidence may be considered, as
it “‘can shed light on the relevant art,’ but is less significant than the intrinsic record in
determining 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) (quoting Vanderlande Indus.
Nederland BV v. Int’l Trade Comm’n, 366 F.3d 1311, 1318 (Fed. Cir. 2004)).
Dictionaries and technical treaties, which are extrinsic evidence, hold a “special place”
and may sometimes be considered along with the intrinsic evidence when determining the
ordinary meaning of claim terms. Id. at 1267. However, the Federal Circuit cautions
against the use of nonscientific dictionaries, lest dictionary definitions be converted into

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technical terms of art having legal, not linguistic, significance. Id. 1
III.

THE COURT’S CONSTRUCTION OF THE CLAIMS

A. Term 1: “cutting tooth mounting blocks” (claim 20)
Disputed Term/Phrase
“cutting tooth mounting
blocks”
(claim 20)

Plaintiff Cimaf's Proposed
Construction
No construction necessary.
This term should be given its
plain and ordinary meaning.

Defendant Fecon's Proposed
Construction
Cutting tooth mounting blocks,
each of which has a corner
formed by a front surface and a
bottom mounting surface.

Cimaf contends that no construction of the term “cutting tooth mounting blocks” is
required and the term should be given its plain and ordinary meaning.
Fecon, on the other hand, contends that its proposed construction of “cutting tooth
mount blocks” is necessary because Cimaf has purportedly disavowed a broader claim
scope. Fecon seeks to add “each of which has a corner formed by a front surface and a
bottom mounting surface” to the term “cutting tooth mounting blocks.” Fecon contends
that Cimaf explicitly disavowed the broader claim scope of “cutting tooth mounting
blocks” by using terms such as “the invention” or “the present invention” in the ‘035
Patent. See Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1372 (Fed. Cir. 2014)
(“we have held that disclaimer applies when the patentee makes statements such as ‘the
present invention requires . . .’ or ‘the present invention is.’”).
Fecon points to language in the ‘035 Patent that states “The step 31 [of the
mounting block] has a top abutment surface 33 which forms, with the bottom of the front

1

Here, neither party relies on extrinsic evidence and the Court finds that extrinsic evidence is
unnecessary to construe the disputed terms/phrases.
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surface 25, an interior corner 35. In accordance with the present invention, the front
surface 25 is angled slightly forwardly from a radial line RL of the inner surface 23
which line passes through the interior corner 35.” (Doc. 27-2 at 9). Because the ‘035
Patent uses the term “the present invention,” Fecon contends that Cimaf has disavowed a
broader claim scope. This argument lacks merit.
There are only two exceptions to the general rule that claim terms are given their
plain and ordinary meaning: “1) when a patentee sets out a definition and acts as his own
lexicographer, or 2) when the patentee disavows the full scope of the claim term either in
the specification or during prosecution.” Thorner v. Sony Computer Entm't Am.
LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).
A closer look at Hill-Rom demonstrates that disavowal may occur when a patentee
makes statements such as “the present invention requires”, “the present invention is” or
“all embodiments of the present invention are.” Hill-Rom, 755 F.3d at 1372 (emphasis
added). However, the ‘035 Patent merely states “in accordance with the present
invention.” (Doc. 27-2 at 9) (emphasis added). The Hill-Rom court specifically found
that a patent including the language “in accordance with the present invention” did not
disavow a broader scope of a claim. Hill-Rom, 755 F.3d at 1377 (“The fact that the
specification indicates that in one embodiment, messages are sent to the wall interface
unit “in accordance with the present invention,” does not mean that a wall interface unit
must be present in all embodiments of the invention. . .. There is no lexicography or
disavowal that would support importing this structural limitation from the specification

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into the claims.”).
Here, the Court finds that Cimaf has not disavowed the full scope of the term
“cutting tooth mounting blocks” by using the phrase “in accordance with the present
invention.” (Doc. 27-2 at 8). As noted, claims are not limited to the preferred
embodiment disclosed in the specification. Moreover, the Court agrees with Cimaf that
Fecon’s proposed claim term construction attempts to “cherry pick particular words from
particular examples in the specification and elevate them as meeting the standard of
‘clear disavowal’ of claim scope.” (Doc. 32 at 6). The ‘035 patent does not repeatedly
and uniformly describe the “cutting tooth mounting blocks” with the additional language
in Fecon’s proposed construction. See ICU Med., Inc. v. Alaris Med. Sys., Inc., 558 F.3d
1368, 1374–75 (Fed. Cir. 2009) (finding that importing limitations from the specification
into the claims may be proper where the specification “repeatedly and uniformly
describes the spike as a pointed instrument for the purpose of piercing a seal inside the
valve.”) Therefore, it is inappropriate to import Fecon’s proposed limitations into Claim
20 of the ‘035 Patent.
Accordingly, because the Cimaf has not disavowed the broader claim scope of the
term “cutting tooth mounting blocks” and has not repeatedly and uniformly described
“cutting tooth mounting blocks” in any other way, the Court finds that no construction is
necessary.

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B. Term 2: “cutting tooth” (claims 20, 21)
Disputed Term/Phrase

Plaintiff Cimaf's Proposed
Construction

“cutting tooth”

No construction necessary.
Cutting tooth that is made
This term should be given its from a plate with a
plain and ordinary meaning. uniform thickness, where the
tooth has a straight
cutting section and the
remainder of the tooth is a
straight base section, such that
the cutting section
is bent toward the inner
surface of the base
section to form an obtuse
angle, and where the
entirety of the base section is
fastened to the
block.

(Claims 20, 21)

Defendant Fecon's Proposed
Construction

Next, Cimaf contends that no construction of the term “cutting tooth” is required
and the term should be given its plain and ordinary meaning.
Fecon argues that the term “cutting tooth” must be construed to limit it only to the
description consistent with the specification. Fecon contends that the cutting tooth is
always described as “(1) being made from a plate with a uniform thickness, (2) having a
straight cutting section, (3) having a remaining straight base section, (4) having a cutting
section that is bent toward the inner surface of the base section to form an obtuse angle,
and (5) having the entirety of the base section fastened to the block.” (Doc. 33 at 10).
Therefore, Fecon proposes adding all of those additional descriptions to the term “cutting
tooth” because a person of skill in the art “could only understand ‘cutting tooth’ to have
the meaning proposed by Fecon.” (Id.).

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While Fecon is correct that the specification must be considered in evaluating a
disputed term during claim construction, Fecon’s proposed construction is contrary to the
well-established rule that limitations from particular embodiments in the specification
should not be imported into the claims themselves. Phillips, 415 F.3d at 1323. As the
Federal Circuit has explained, it is “not enough that the only embodiments, or all of the
embodiments, contain a particular limitation to limit a claim term beyond its ordinary
meaning.” Aventis Pharma S.A. v. Hospira, Inc., 675 F.3d 1324, 1330 (Fed. Cir. 2012).
“[E]ven if a specification has only one embodiment, its claims will not be confined to that
example ‘unless the patentee has demonstrated a clear intention to limit the claim scope
using words or expression of manifest exclusion or restriction.’” Aria Diagnostics, Inc.
v. Sequenom, Inc., 726 F.3d 1296, 1301 (Fed. Cir. 2013) (quoting Liebel–Flarsheim Co.
v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004)).
The Federal Circuit provided the following guidance to determine whether a
patentee has demonstrated a clear intention to limit the claim scope:
To avoid importing limitations from the specification into the
claims, it is important to keep in mind that the purposes of the
specification are to teach and enable those of skill in the art to make
and use the invention and to provide a best mode for doing
so. See Spectra–Physics, Inc. v. Coherent, Inc., 827 F.2d 1524, 1533
(Fed. Cir. 1987). One of the best ways to teach a person of ordinary
skill in the art how to make and use the invention is to provide an
example of how to practice the invention in a particular case. Much
of the time, upon reading the specification in that context, it will
become clear whether the patentee is setting out specific examples of
the invention to accomplish those goals, or whether the patentee
instead intends for the claims and the embodiments in the
specification to be strictly coextensive. See [SciMed Life Sys., Inc. v.
Advanced Cardiovascular Sys., Inc., 242 F.3d, 1337, 1341 (Fed. Cir.
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2001)]. The manner in which the patentee uses a term within the
specification and claims usually will make the distinction
apparent. See Snow v. Lake Shore & M.S. Ry. Co., 121 U.S. 617,
630, 7 S.Ct. 1343, 30 L.Ed. 1004[ ] (1887) (it was clear from the
specification that there was “nothing in the context to indicate that
the patentee contemplated any alternative” embodiment to the one
presented).
In the end, there will still remain some cases in which it will be hard
to determine whether a person of skill in the art would understand
the embodiments to define the outer limits of the claim term or
merely to be exemplary in nature. While that task may present
difficulties in some cases, we nonetheless believe that attempting to
resolve that problem in the context of the particular patent is likely
to capture the scope of the actual invention more accurately than
either strictly limiting the scope of the claims to the embodiments
disclosed in the specification or divorcing the claim language from
the specification.
Phillips, 415 F.3d at 1323–24.
As discussed supra, Cimaf’s use of the phrase “in accordance with the present
invention” does not explicitly disavow the broader scope of the term “cutting tooth” in
Claims 20 and 21. As with the term “cutting tooth mounting blocks,” Fecon again picks
and chooses from different descriptions of “cutting tooth” found in the specification to
attempt to limit the scope of “cutting tooth” in Claims 20 and 21. However, the
additional 60 words that Fecon states are necessary to properly construe “cutting tooth”
are not repeatedly and uniformly used to describe “cutting tooth” throughout the
specification. Therefore, upon the review of the ‘035 Patent’s specifications, the Court
finds that Cimaf did not expressly intend for the term “cutting tooth” in Claims 20 and 21
to be limited by the descriptions in the specification.

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Accordingly, because the Cimaf has not disavowed the broader claim scope of the
term “cutting tooth”, and has not repeatedly and uniformly described “cutting tooth” in
any other way, the Court finds that no construction is necessary.
C. Term 3: “detachably mounted on each block” (claim 20)
Disputed Term/Phrase

Plaintiff Cimaf's Proposed
Construction
“detachably mounted on each No construction necessary.
block”
This term should be given its
plain and ordinary meaning.
(Claim 20)

Defendant Fecon's Proposed
Construction
Detachably mounted on each
block such that the base
section of the tooth is flush
with the block's front surface
and fits snugly into the block's
corner.

Again, Cimaf contends that no construction of the term “detachably mounted on
each block” is required and the term should be given its plain and ordinary meaning.
Fecon argues that the term “detachably mounted on each block” must be limited
with respect to how a tooth mounts onto a “mounting block.” Fecon contends that the
term must be construed to clarify that the tooth “(1) mounts ‘flush’ with the block’s front
surface and (2) fits snugly into the block’s corner.” (Doc. 33 at 11). Fecon states that
“Fecon’s proposed construction are present in every description of the invention.” (Id.
at 12 (emphasis in original)). However, as Cimaf notes “Fecon relies on the ‘035 Patent
at column 2, lines 2-5, but this passage does not define ‘detachably mounted on each
block’ as meaning or requiring the tooth to fit ‘flush’ or ‘snugly’ with the block. In fact,
those words do not appear at all in that passage.” (Doc. 32 at 8). The Court agrees with
Cimaf.

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For the same reasons as stated supra, the Court again finds that Fecon has failed to
show that Cimaf expressly intended to disavow the broader scope of the term “detachably
mounted on each block.” Upon review of the ‘035 Patent, Fecon’s argument that the
patent repeatedly and uniformly describes the tooth as mounting “flush” or fitting
“snugly” is without merit. The Court finds that it is inappropriate to insert additional
limitations on the term “detachably mounted on each block.” Accordingly, no
construction on this term is necessary and “detachably mounted on each block” is to be
given its plain and ordinary meaning.
D. Term 4: “each guard projecting radially outwardly from the surface at a
distance at least equal to the height of the block but less than the height of
the cutting edge from the surface” (claim 20)
Disputed Term/Phrase

Plaintiff Cimaf's Proposed
Construction

Defendant Fecon's Proposed
Construction

“each guard projecting radially No construction necessary other Each guard projecting radially
outwardly from the surface a than the following phrases:
outwardly from the surface a
distance at least equal to the
distance at least equal to the
height of the block but less than 1) “each guard projecting
greatest distance that the block
the height of the cutting edge radially from the surface a
projects radially outwardly
from the surface”
distance,” which is measured at from the surface but less than
location “H”: the distance
the least distance that the
(claim 20)
measured radially from the base cutting edge projects radially
to the outer surface of the guard outwardly from the surface.
along the axis that is
perpendicular to the axis along
which “h” is measured; and
2) “height of the block,” which
is measured at location “h”: the
distance measured radially from
the base to the outer surface of
the block behind the mounting
bolt.

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The last disputed claim phrase relates to the protective guard (or “protective
collar”) that protects the mounting block, and how to measure the height of the protective
guard and the height of the block. For this phrase, both parties assert that claim
construction is necessary.
Cimaf contends that that the term “height” in Claim 20 requires construction and
refers to Figure 2 and the specification of the ‘035 Patent to support its proposed
construction. The below shows Figure 2 from the Patent.

(Doc. 27-2 at 3). In this figure, “H” refers to the height of the protective guard/collar and
“h” refers to the height of the block. The specification goes on to describe the height of
“H” and “h”: “Each collar 77 has a height ‘H’ equal to, or slightly greater than, the height
‘h’ of the block.” (Id. at 5:56–57). Therefore, Cimaf emphasizes that the inventor has
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specifically defined the guard/collar height to be measured at “H” on Figure 2, and the
height of the block should be measured at “h” on Figure 2. Cimaf notes that these height
definitions are clear and definitive and not couched with terms such as “for example” or
“may have” (Doc. 28 at 17), and, therefore, Figure 2 is not a preferred embodiment.
Cimaf argues that the inventor thus has been his own “lexicographer” and defined the
guard/collar height (“H”) and block height (“h”) in the specification. See Markman, 52
F.3d at 980 (“a patentee is free to be his own lexicographer”).
Fecon argues that Cimaf’s proposed construction is improper because Figure 2
only shows a preferred embodiment, which is insufficient to support a conclusion that
Cimaf acted as its own lexicographer. When a patentee merely describes a figure
showing a preferred embodiment, the patentee is not acting as his/her own lexicographer.
See Laryngeal Mask Co. Ltd. V. Ambu, 618 F.3d 1367, 1372 (Fed. Cir. 2010). Fecon also
argues that Cimaf’s proposed construction is inappropriate because it ignores the stated
purpose of the invention and renders the patent invalid as indefinite.
On the other hand, Fecon contends that its proposed construction is consistent with
the phrase’s plain and ordinary meaning. Fecon argues that the claim language should
be construed in light of a patent’s stated purpose and benefits. See Renishaw PLC v.
Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998) (reasoning that a
claim interpretation that aligns with the purpose of the invention is likely to be correct).
Fecon asserts that the stated purpose and benefit of the protective guard is “to keep the
mounting blocks from being directly struck by rocks or trees while allowing cutting teeth

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to extend past the guard and cut.” (Docs. 33 at 13; 27-2 at 2:14–16, 5:65–6:2). Fecon
contends that its proposed construction aligns with this stated purpose.
Yet Cimaf argues that Fecon’s proposed construction ignores the fact that the
guard/collar and block have different heights at different locations and that Cimaf’s
proposed construction clarifies where height should be measured. (Doc. 28 at 18). For
example, looking near point 9 on Figure 2, the collar tapers down to make it closer to the
block. Additionally, at point 73, the block is clearly higher than at is at position “h.”
Finally, Cimaf criticizes Fecon’s proposed construction language because Fecon’s
additional proposed language appears nowhere in the claim language, the specification,
or the prosecution history.
A court may depart from a term or phrase’s plain meaning if a patentee has acted
as a lexicographer. Phillips, 415 F.3d at 1316. When a patentee acts as a lexicographer,
the specification is particularly relevant because “the specification may reveal a special
definition given to a claim term by the patentee that differs from the meaning it would
otherwise possess.” Id. at 1316 (citing CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d
1359, 1366 (Fed. Cir. 2002)).
Here, the Court finds that, upon considering the specification (Doc. 27-2 at 5:57–
58) and Figure 2, the ‘035 Patent inventor was acting as his own lexicographer by
expressly defining the height of the guard/collar “H” and the height of the block “h.” See
Int’l Rectifier Corp. v. IXYS Corp., 361 F.3d 1363, 1373 (Fed. Cir. 2004) (finding that an
inventor had acted as his own lexicographer based on figures and accompanying text in

18

the specification). Figure 2 is not merely a preferred embodiment as the specification
clearly and definitely defines the height of the guard/collar “H” and the height of the
block “h” and there is no language that suggests that these elements of the invention are
preferred embodiments or examples. Because the specification clarifies the scope of the
phrase “each guard projecting radially outwardly from the surface a distance at least
equal to the height of the block but less than the height of the cutting edge from the
surface” by defining the height of the guard and the height of the block, the Court finds
that Cimaf’s proposed construction is consistent with the plain and ordinary meaning of
the claim language and should be adopted. Moreover, the Court does not find that
Cimaf’s proposed construction is at odds with the stated purpose of the invention.
Accordingly, the term “each guard projecting radially outwardly from the surface
a distance” is construed as being measured at location “H”: the distance measured
radially from the base to the outer surface of the guard along the axis that is perpendicular
to the axis along which “h” is measured. Additionally, the term “height of the block” is
to be construed as being measured at location “h”: the distance measured radially from
the base to the outer surface of the block behind the mounting bolt.
IV.

CONCLUSION

Therefore, the parties shall construe the contested terminology of the ‘035 Patent
as set forth in this Order. IT IS SO ORDERED.
Date:

4/22/19

Timothy S. Black
United States District Judge

19