Pure Fishing Inc v. Normark Corporation
OPINION and ORDER (partial Claim Construction ruling). Signed by Honorable Cameron McGowan Currie on 10/26/2011. (cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
PURE FISHING, INC.,
an Iowa Corporation,
a Minnesota Corporation, d/b/a RAPALA, )
C/A NO. 3:10-cv-2140-CMC
OPINION and ORDER
(partial Claim Construction ruling)
This matter is before the court for construction of specified terms of two patents, the rights
to which are owned by Plaintiff, Pure Fishing, Inc. (“Pure Fishing”). Pure Fishing alleges that
Defendant, Normark Corporation (“Normark”) infringes these patents through products it
manufactures and/or distributes. Having reviewed the parties’ memoranda, the court has determined
that the disputed terms of one of the two patents (U.S. Patent No. 5,749,214 (the “Cook Patent”))
may be construed based on the written submissions. The court, therefore, issues this order
addressing the disputed terms of the Cook Patent, leaving construction of the disputed terms of the
remaining patent (U.S.Patent No. 6,174525 B1 (the “Kelley Patent”)) for the hearing scheduled for
November 9, 2011.
Terms in Dispute (Cook Patent). The disputed terms are included in independent Claim
1, and dependent Claims 4 and 5 of the Cook Patent. Claim 1 claims the following:
A process for increasing tenacity in a twisted or braided fishing line made of
gel spun polyolefin yarns, said process comprising
stretching a braided or twisted line of 3-64 gel spun polyolefin yarns,
wherein each yarn is within the range from about 20 denier to about 1000
denier, at a temperature within the range from about 110E C. to about 150E
C. and at total draw ratio within the range from about 1.0 to about 2.0.
Dkt. No. 74-1 at 10 (Cook Patent 15:28-35) (emphasis added). The differences in interpretation
relate to the use of the term “about” in both phrases emphasized above.1
Meaning of “about.” As the Federal Circuit Court of Appeals has explained “[t]he use of
the word ‘about,’ avoids a strict numerical boundary to the specified parameter.” Pall Corp. v.
Micron Separations, Inc., 66 F.3d 1211, 1217 (Fed. Cir. 1995); see also Patent Law and Practice,
Sixth Ed., § 5.II.A.3.d.7. (BNA 2008) (stating, in summarizing claim construction guideposts, that
“absent broadening language, numerical ranges are construed exactly as written” ). When faced
with such a term, the court should interpret the range “in its technologic and stylistic context.” Pall
Corp., 66 F.3d at 1217 (noting this interpretation is “a matter of claim construction” for the court).
As the Pall Corp. court explained, the court should
consider how the term [in dispute] was used in the patent specification, the
prosecution history, and other claims. It is appropriate to consider the effects of
varying that parameter, for the inventor’s intended meaning is relevant. Extrinsic
evidence of meaning and usage in the art may be helpful in determining the
criticality of the parameter, and may be received from the inventor and others skilled
in the field of the invention.
Id. Despite this general directive, the Federal Circuit has, in some instances, done no more than give
the term “about” its ordinary (and unclarified) meaning of “approximately.” See Merck & Co., Inc.,
v. Teva Pharmaceuticals USA, Inc., 395 F.3d 1364, 1369-70 (Fed. Cir. 2005).
Use of “about” in temperature range. The parties take quite divergent positions as to the
meaning of “about” as used in the clause “a temperature within the range from about 110E C. to
about 150E C.” Normark argues that“about” should be construed to allow for a deviation of no more
than one degree beyond the specified range. Pure Fishing argues, first, that no construction is
Claims 4 and 5 modify the draw ratio ranges by narrowing them to a point that no further
construction is needed. Thus, as to Claims 4 and 5, only the temperature range (incorporated from
independent Claim 1) requires interpretation.
needed. In the alternative, Pure Fishing argues that the upper end of the range should be construed
to allow “temperatures beyond 150E C that are within 10E C of the yarn’s melting point.”2 For
reasons explained below, the court is not persuaded by either party’s proposed construction because
neither finds sufficient support in the record. This leaves the court unable to offer any construction
beyond the marginally helpful clarification that “about” means “approximately,” which allows for
some degree of variation.
First, the court rejects Pure Fishing’s position that no construction is necessary. Given the
parties significantly divergent positions as to the proper construction, and the directives in Pall and
Merck, the court concludes that it should provide as much clarification of the term as is supported
by the record.
The court also rejects Pure Fishing’s proposed alternative construction because it ignores the
language Cook chose to use and the upper limit he placed on the claim (“about 150E C.”) in favor
of an open-ended, functionally-defined limitation. The language in the specification on which Pure
Fishing relies suggests that the claim might have been written with broader, open ended language.
This is not, however, enough where the inventor, instead, chose to word the limitation more
Moreover, as Normark argues, accepting Pure Fishing’s interpretation could
encompass temperatures so far beyond 150E C. that they could not be considered within an
“approximate” range under even the most generous interpretation.3
Pure Fishing does not seek any construction relevant to how “about” should be construed
at the lower end of the range.
Pure Fishing refers to language in the Cook Patent specification as well as language in an
incorporated patent which would allow its proposed interpretation to reach at least 159E C.
Normark notes language which might go much higher. Even the nine degree variation raises
concerns as it represents a nearly 22% expansion of the specified 110-150E range (on the upper end
of the range) and double that if “about” is construed (as it should be) to mean the same thing on both
Pure Fishing also relies on an incorporated patent (U.S. Patent No. 4,413,110 (“Kavesh
Patent”)) in arguing that, by incorporation, Cook discloses use of temperatures greater than 150E.
While the invention described in Kavesh is related to the invention in Cook, and its terms are
incorporated, it remains a different invention.4 It follows that temperatures referenced in the
Kavesh Patent do not necessarily fall within the “approximate” range claimed in the Cook Patent.
See Dkt. No. 79 at 6 (arguing that Claim 1 of Cook’s Patent discloses temperatures above 150E C.
because the incorporated Kavesh Patent “discloses a range of draw temperatures above 150E C and
approaching 155E C.”). In any event, the temperatures referenced there would not support the openended interpretation Pure Fishing now seeks.
Pure Fishing’s argument that case law supports allowing variances of at least 5-10E is also
not persuasive. See Dkt. No. 79 at 8-9 (discussing Fisher-Barton Blades, Inc. v. Blount, Inc., 2006
WL 6274603 (E.D. Wis. 2006). In Fisher-Barton, the court considered temperature ranges relating
to the processing of metal and held that a 5-10E variation was allowed by use of the word
“approximately” as it related to the following three temperatures: 300E F., 500EF., and 1560E F.
In reaching this determination, the court considered extrinsic evidence (a “handbook”) which
ends of the range. While such a broad interpretation might be possible, it is not supported by
anything in the present record.
The Kavesh Patent focuses is directed to the production of fibers, and claims a process for
strengthening those fibers by stretching them at increased temperatures. See Dkt No. 74-3 at 2
(Kavesh Patent Abstract – referring to production but not stretching at increased temperatures); id.
at 12 (Kavesh Patent 6:35-39 – referring to stretching at temperatures between about 120E C. and
about 160E C.) While the Cook Patent also uses stretching at increased temperature to increase the
tenacity of fibers, its focus is on strengthening a bundle of braided or twisted fibers (presumably
fibers previously produced under processes such as those discussed in the Kavesh Patent). Given
this distinction, it would not be apparent that every temperature used, tested or claimed by the
Kavesh Patent in the stretching portion of its process should be read into the Cook Patent’s claimed
range of temperatures for stretching braided or twisted bundles of multiple fibers.
addressed the effect of temperatures (and temperature variations) on metals. No similar evidence
is offered in this case and the court sees no basis for assuming that the significance of temperature
variations in the production of metal products would be the same for processes involving polyolefin
Normark’s arguments fare no better. Normark focuses, in part, on the accuracy of
commercial ovens which, it maintains, are accurate within a single degree. While such ovens are
a technology used by the patented invention, this does not make them the technology to which the
invention is addressed. The issue is not whether the ovens can be set with single-degree accuracy,
but at what point variations in temperature are sufficiently significant in the processing of polyolefin
fibers (as described in the Cook Patent) that the variation falls outside of the specified range as
modified by “about.”
Normark also relies on intrinsic evidence including the variations in temperatures disclosed
in the examples found in the Cook Patent’s specification.
Some of the examples involve
comparative tests in which the heat settings varied by only one or two degrees. Normark argues that
this demonstrates that such a small variation is “significant” and, consequently, sets an outer limit
on the degree of variation allowed. While this is one possible interpretation, it is not the only one,
particularly as many examples involve much greater variations in temperature between test batches.
Thus, this intrinsic evidence does not persuade the court that the permissible variation should be
limited to a single degree of variation. That no example involves a temperature of more than 150E
Even if the court accepted that, as a general rule, the use of the term “approximately”
authorizes a five to ten degree variation from 300 degrees Fahrenheit, regardless of the industry at
issue, it would not support allowing the same numerical variation from 150 degrees Celcius. This
is because 300E F. translates to 148.9EC., while temperature variations of 5-10E F. translate ( using
a 5/9 factor) to variations of roughly 2.8 to 5.6E C.
C. is somewhat more persuasive, but only that the upper limit should not deviate significantly from
that limit. What constitutes a significant deviation remains an open issue.
In short, what intrinsic evidence is available is not sufficient to give any greater meaning to
“about” than is supported by general case law, that “about” means “approximately.” Some of the
intrinsic evidence may suggest that variations as small as one or two degrees are significant, while
other intrinsic evidence may suggest a variation of at least five degrees or more is necessary for a
temperature variation to be significant. Under these circumstances, some extrinsic evidence, such
as the industry handbook offered in Fisher-Barton would be necessary to provide a more specific
definition. As no such evidence is offered, the court defines the disputed term by replacing “about”
Use of “about” with reference to total draw ratio. The evidence as to the meaning of
“about” as it modifies the range for the total draw ratio is more helpful and supports the
interpretation offered by Pure Fishing. Normark argues that the range of “about 1.0 to about 2.0”
should be read to include precisely 1.0, which would place the range in conflict with the requirement
for stretching. While this may seem reasonable looking at the clause in isolation, it makes no sense
in the context of the full claim, the first word of which requires stretching. Thus, the court declines
to accept Normark’s construction.
As with the temperature range, Pure Fishing argues no construction is necessary, but
alternatively argues that the court should construe the term as requiring stretching at a ratio of at
least 1.01. This would be consistent with the requirement for stretching. It also reflects an earlier
statement in the specification which reveals the same error in understanding as to what is meant by
a ratio of 1.0. Specifically, under the “Detailed Description of the Invention,” Cook states as
follows: “Such stretching is performed at a total draw ratio within the range from about 1-100% (i.e.,
draw ratio of 1.0-2.0)[.]” Cook Patent 2:66-3:1. Reading the claim language “stretching . . . at a
total draw ratio within the range from about 1.0 to about 2.0” in light of this description, the court
concludes that the minimum draw ratio intended by “about 1.0” requires stretching of at least 1%
(or a ratio of 1.01).
For the reasons set forth above, the court construes the use of “about” in defining
temperature to mean “approximately,” and finds no basis in the record for any further clarification.
The term “about 1.0 to about 2.0” in defining total draw ratio is construed as “about 1.0, but no less
than 1.01, to about 2.0.”
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
October 26, 2011
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