Card-Monroe Corp. v. Tuftco Corp.
Filing
220
MEMORANDUM AND OPINION. Signed by District Judge Travis R McDonough on 6/9/2016. (BDG, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
CARD-MONROE CORP.,
Plaintiff,
v.
TUFTCO CORP.,
Defendant.
)
) Case No. 1:14-cv-292
)
) Judge Travis R. McDonough
)
) Magistrate Judge Christopher H. Steger
)
)
)
MEMORANDUM OPINION
On October 7, 2014, Card-Monroe Corp. (“CMC”) filed a Complaint (Doc. 1) against
Tuftco Corp. (“Tuftco”) alleging infringement of three patents (the “Patents”): United States
Patents 8,141,505 (“the ‘505 Patent”), 8,776,703 (“the ‘703 Patent”), and 8,399,989 (“the ‘989
Patent”).1 This matter is before the Court for construction of disputed claim terms pursuant to
Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). The Court identified ten
significant terms for construction on February 10, 2016. (Doc. 170.) The parties conducted
briefing on those terms, and the Court held a hearing on April 19, 2016 (the “Markman
hearing”).
1
The patents appear throughout the docket several times attached to various motions. Rather
than citing to a particular docket number, the Court will cite to each by the last three digits of the
patent number, and then cite to the text of the patent by column and line number where
appropriate, for example (‘989 Patent 1:1–5). The patents initially appear on the docket attached
to the Comp0laint: Docs. 1-1, 1-2, and 1-3.
I.
BACKGROUND
The dispute involves three Patents for carpet-tufting technology. The patented
technology involves the
synchronization of yarn feed control, shifting needle bars, and controlling
movement of the backing material through the tufting machine to enable the
formation of tufts or stiches at an increased, effective stitch rate whereby a greater
number of stitches or tufts of yarns are introduced or presented into the backing
and those tufts not desired or wanted to be shown as part of the pattern being
formed can be pulled low or out of the backing . . . .
(Doc. 173, at 5.) This method enables more precise color placement, which accommodates more
intricate pattern designs while preserving sharpness and definition. (Id.) CMC’s three Patents
cover both the methods and the system used to produce tufted carpets. CMC alleges that
Tuftco—a competing manufacturer of carpet machines—created and markets infringing
technology. (Doc. 1.)
II.
STANDARD OF REVIEW
Claim construction is a question of law for the Court. Markman, 517 U.S. at 391.
However, as part of its claim construction ruling, the Court may make factual findings. Teva
Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 838 (2015). The words of a claim “are
generally given their ordinary and customary meaning . . . .” Vitronics Corp. v. Conceptronic,
Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). But “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.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005).
In determining the meaning of claim terms, all sources of evidence are not equal.
Intrinsic evidence—the patent claims, the specification, and the prosecution history—is given
preference over extrinsic evidence—dictionaries, treatises, and inventor and expert testimony.
See Phillips, 415 F.3d at 1315–18.
2
The words of the claims themselves are the starting point for a construction analysis, and
the words are typically given their ordinary meaning. Vitronics, 90 F.3d at 1582. From the
words of the claim, the Court then proceeds to the claim specification, which “is always highly
relevant” and usually dispositive. Id. at 1582. “[A] patentee may choose to be his own
lexicographer and use terms in a manner other than their ordinary meaning, as long as the special
definition of the term is clearly stated in the patent specification or file history.” Id. Finally,
“the prosecution history can often inform the meaning of the claim language by demonstrating
how the inventor understood the invention and whether the inventor limited the invention in the
course of prosecution, making the claim scope narrower than it would otherwise be” but because
it is an account of the back and forth negotiation, “it often lacks the clarity of the specification
and thus is less useful for claim construction purposes.” Phillips, 415 F.3d at 1317.
If the meaning of the claim term is still ambiguous after considering intrinsic evidence,
the Court may consider extrinsic evidence
for a variety of purposes, such as to provide background on the technology at
issue, to explain how an invention works, to ensure that the court's understanding
of the 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 has a
particular meaning in the pertinent field.
Id. at 1318. Such evidence must be discounted if it conflicts with the construction mandated by
the intrinsic evidence. Key Pharms. v. Hercon Labs. Corp., 161 F.3d 709, 716 (Fed. Cir. 1998).
III.
ANALYSIS
After hearing arguments from both parties at the Markman hearing, the Court noted that
the parties were much closer to agreement on several terms than prior filings reflected. (Doc.
219, at 129.) Based upon the parties’ positions at the hearing, the Court proposed draft
constructions of several terms it thought both parties might find agreeable. (Id.) The parties
3
agreed to all but one of the Court’s proposed term constructions. (Id. at 131.) Accordingly, by
agreement of the parties, those terms are defined as follows:
Effective stitch rate/effective process stitch rate: “The number of tufts of yarn inserted
into the backing per linear inch in the longitudinal direction”
Stitch2 (as a noun): “A tuft of yarn inserted in the backing of the carpet”
Backrobbing: “Feeding little or no yarn to pull one or more tufts of yarn low or out of
the backing”
Desired yarn: “A yarn tuft retained in the face of the pattern in accordance with the
pattern instructions”
(Doc. 212-1.) The Court also proposed a construction of “desired stitch rate,” but Tuftco did not
agree with the Court’s proposed construction. (Doc. 219, at 131–32.) The Court will address the
remaining disputed terms below.
A.
“Desired fabric stitch rate” / “desired stitch rate” / “prescribed stitch rate”
CMC’s Proposed Construction
Tuftco’s Proposed Construction
“the number of yarns or tufts per linear inch
that the carpet designer wants to be visible
in the face of the pattern being tufted.”
(Doc. 173, at 9.)
“the number of tufts of yarns per linear inch
that the carpet design provides are visible in
the face of the pattern, which is the same
number that is entered in the tufting
machine controls or design program.”
(Doc. 182, at 4.)
These terms appear in Claim 8 of the ‘505 Patent, in Claims 1, 22, 27, 28, and 29 of the
‘989 Patent, and in Claims 1, 28, and 29 of the ‘703 Patent. Both parties agree these three terms
should be construed synonymously but disagree slightly on the construction.
2
The parties also agreed “stitch” does not need construction where contained within another
disputed term such as “desired stitch rate” or “effective stitch rate.” (Doc. 219, at 101.)
4
CMC’s proposed construction for these terms is “the number of yarns or tufts per linear
inch that the carpet designer wants to be visible in the face of the pattern being tufted.” (Doc.
173, at 9.) The claims themselves support this construction, as do the specifications. For
example, Claim 8 of the ‘505 Patent provides for a calculation increased “by a desired fabric
stitch rate that comprises a number of stitches per inch desired for the patterned tufted articles.”
The ‘505 Patent’s specification confirms that “the number of high tufts (the colors that are
visible in the tufted article), generally can be matched to the desired stitch rate for the tufting
machine.” (‘505 Patent 9:26–30.) Claim 29 of the ‘703 Patent similarly provides that the tufted
article is formed “so as to form the patterned article with the number of high tufts formed
substantially matching the desired stitch rate . . . .” Finally, the specification of the ‘989 Patent
contains similar language. (See, e.g., ‘989 Patent 6:59–64 (“multiplied by a desired or prescribed
fabric stitch rate or number of retained stitches per inch or pattern density desired to appear on
the face of the tufted article”).)3
Tuftco has proposed two slightly different constructions in its opening and responsive
claim construction briefs. Its opening brief suggests the terms be construed as “the stitch rate set
in the tufting machine controls or design program.” (Doc. 174, at 13.) Its responsive brief
suggests the terms mean “the number of tufts of yarns per linear inch that the carpet design
provides are visible in the face of the pattern, which is the same number that is entered in the
tufting machine controls or design program.” (Doc. 182, at 5.) At the Markman hearing, Tuftco
persisted in the construction embraced in the responsive brief. (Doc. 219, at 72–74.)
3
Though less relevant when intrinsic evidence is strong, this reading is confirmed by expert
testimony. (Doc. 113-12, at 7 (opining that those skilled in the art would understand the terms as
meaning “the desired number of tufts per linear inch to be retained or visible in the backing
material for a pattern being tufted.”).)
5
Tuftco identifies two chief disagreements with CMC’s proposal. First, Tuftco argues
CMC’s definition is unworkable because it treats “yarns” and “tufts” as synonymous while the
rest of the claims do not. (Doc. 182, at 4.) According to Tuftco, unlike tufts, yarns can include
material that does not appear on the face of the carpet. (Id.) Therefore, to use them
synonymously is inappropriate. (See, e.g., 989 Patent, Cl. 22 (describing a process of “feeding a
plurality of yarns to a series of needles carried by a shiftable needle bar”).) Instead, it proposes
“tufts or yarns” be replaced with “tufts of yarn.” (Doc. 182, at 5.) At the Markman hearing,
CMC agreed with this proposed revision. (See Doc. 219, at 24–25.) Second, Tuftco disagrees
that the term should be defined by what the designer “wants” to be shown. (Doc. 182, at 5.)
Tuftco argues there is no objective way to determine what a designer wants, so the term should
be construed as the rate that is actually entered into the control program. (Id.) And, it points to
several places within the Patents themselves that describe the “prescribed” or “desired” rate as
the “programmed” rate. (‘505 Patent 2: 3–6; ‘703 Patent 2:12–15; ‘989 Patent 2:38–40.)
CMC disagrees strongly with Tuftco’s argument that the term be limited to the numerical
value the designer inputs into the control system. (Doc. 186, at 10–11.) Rather, CMC contends
the natural reading of the terms in the context of the claims and specification is that this rate
refers to the stitches desired to be visible. (Id. at 11.) Otherwise, a competitor could practice the
method by calculating the effective stitch rate based on the desired stitch rate but only inputting
the effective stitch rate. (Id.) In fact, this is what Tuftco’s user manuals instruct customers to do.
(See, e.g., Doc. 186-4, iTuft User Manual (“Enter your stitches per inch. This is calculated by
multiplying the desired stitches per inch times the number of colors in the pattern.”).)
At the Markman hearing, the Court proposed that the terms be defined as “the number of
tufts of yarn per linear inch dictated by the pattern design to be visible in the face of the pattern.”
6
(Doc. 212, at 1.) CMC agreed with the proposed definition (see Doc. 212-1; Doc. 219, at 130–
131), but Tuftco insisted on including the limitation that the desired rate actually be entered into
the control system (Doc. 219, at 131–33). Tuftco proposed that the Court’s construction be
modified to “[t]he number of tufts of yarn per linear inch entered into the machine control system
to be visible in the face of the pattern.” (Doc. 212-1, at 2.)
Having considered the parties’ positions and the relevant evidence, the Court concludes
that the Patents do not limit “desired stitch rate” to a particular numerical value entered into the
control system. Case law is clear that the Court should not lightly read limitations from the
specifications into the claims. Kara Tech. Inc. v. Stamps.com Inc., 582 F.3d 1341, 1348 (Fed.
Cir. 2009) (“The patentee is entitled to the full scope of his claims, and we will not limit him to
his preferred embodiment or import a limitation from the specification into the claims.”);
Phillips, 415 F.3d at 1323 (emphasizing the importance of not importing limitations from the
specification into the claims). None of the claims refers to the “desired stitch rate” as the
programmed rate; such language occurs only in the specifications.
Though the specifications refer to the “prescribed rate” as the “programmed rate,” none
of the language suggests that this “programmed” rate must necessarily be a number specifically
entered into the control system. In the ‘505 Patent, for example, the “backing material is fed at a
programmed or prescribed rate of feeding or desired stitch rate,” but the specification does not
say it is fed at a particular numerical rate entered into the control system. (See ‘505 Patent 2:3–
6.) Even the language from the ‘989 Patent on which Tuftco relies makes no suggestion that the
invention is necessarily limited by a particular number entered into the control system: “A
backing material is fed at a programmed or prescribed rate of feeding through the tufting zone
for tufting the yarns therein.” (See ‘989 Patent 2:38–40.)
7
Anyone with a basic understanding of computers—and certainly one skilled in the art of
these complex machines—would understand that not every rate that is “programmed” is directly
entered into the computer. Consider, for example, a Tetris®-type computer game in which
difficulty is determined by the rate at which blocks descend and in which the designer wants to
give players the ability to control the difficulty. This goal could be accomplished in at least two
ways: 1) the program could allow the player to set the difficulty by inputting a particular rate of
blocks per second; or 2) the program could ask the player to input a particular level of
difficulty—on a scale of one-to-ten—which the computer would then convert to a particular rate.
In both of these applications, the rate at which the blocks descend would be a “programmed”
rate, but in only one of these applications is the rate a number actually entered by the user. This
analogy demonstrates that a “programmed” rate is not necessarily entered into a device by the
user.
Tuftco’s user manual demonstrates this distinction in the context of these claims and
confirms that a desired rate could be programmed without a designer actually entering any
particular number into the control system. The manual directs the user to “[e]nter your stitches
per inch. This is calculated by multiplying the desired stitches per inch times the number of
colors in the pattern.” (Doc. 186-4). Thus, the user is directed to enter a number associated with
the effective process stitch rate rather than with the desired stitch rate. Tuftco’s proposed
construction is unsupported by the language of the claims and is an unwarranted invitation to
limit the claims in a way the industry would not.
Accordingly, the Court will decline to read into the Patents the programmed number
limitation urged by Tuftco and will construe “desired fabric stitch rate,” “desired stitch rate,” and
8
“prescribed stitch rate” as “the number of tufts of yarn per linear inch dictated by the pattern
design to be visible in the face of the pattern.”
B.
“Substantially” and “Approximately”
CMC’s Proposed Construction
Tuftco’s Proposed Construction
No Construction needed. (Doc. 173, at 16.)
When used to qualify a numerical value: “a
number that can be rounded to the number
that is qualified.” (Doc. 182, at 7.)
When used as “substantially hidden”: “tufts
that are not visible upon casual inspection
of the tufted article.” (Doc. 182, at 7.)
“Substantially” appears in Claims 8 and 10 of the ‘505 Patent and Claim 29 of the ‘703
Patent. “Approximately” appears in Claims 21, 22, 27, and 28 of the ‘989 Patent and Claim 12
of the ‘505 Patent. Both “substantially” and “approximately” are used as terms of degree, and
both parties agree they can be construed together. (Doc. 173, at 16; Doc. 182, at 7.) The Patents
predominantly use both of these terms in conjunction with particular stitch rates. For example,
in the ‘505 Patent “approximately” appears in Claim 12, which provides for a desired stitch rate
of “approximately ten stitches per inch.” (‘505 Patent 11:8.) Claim 29 of the ‘703 Patent
provides that the machine should be run “so as to form the patterned article with the number of
high tufts formed substantially matching the desired stitch rate . . . .” (‘703 Patent 12:52–54.)
CMC argues no construction of these terms is necessary; rather, CMC asserts the terms should
take their plain ordinary meaning because they are common qualifying words that do not need
additional construction. (Doc. 173, at 16.) Tuftco argues that if “substantially” and
“approximately” are used to modify a numerical value, then they should be construed as “a
number that can be rounded to the number that is qualified.” (Doc. 182, at 7.) If “substantially”
9
is used in context of “substantially hiding/hidden” then it should be construed as “tufts that are
not visible upon casual inspection of the tufted article.” (Id.)
CMC points to extensive case law stating that terms of degree like “approximately” and
“substantially” do not normally need construction. (Doc. 173, at 17–18 (citing Merck & Co. v.
Teva Pharms. USA, Inc., 395 F.3d 1364, 1369–72 (Fed. Cir. 2005) (construing term “about” that
preceded numeric value to mean “approximately”); Ortho-McNeil Pharm.,Inc. v. Caraco Pharm.
Labs., Ltd., 476 F.3d 1321, 1326-28 (Fed. Cir. 2007) (in determining the range encompassed by
the term “about” or “approximately,” one must consider the context of the term as it is used in
the specification and claims of the application; defining ratio of “about 1:5” as part of a stated
range “pointed to a broad range of ratios”); Ecolab, Inc. v. Envirochem, Inc., 264 F.3d 1358,
1367 (Fed. Cir. 2001); Andrew Corp. v. Gabriel Elecs. Inc., 847 F.2d 819, 821 (Fed. Cir. 1988)
(“The criticized words [‘approach each other,’ ‘close to,’ ‘substantially equal,’ and ‘closely
approximate’] are ubiquitous in patent claims. Such usages, when serving reasonably to describe
the claimed subject matter to those of skill in the field of the invention, and to distinguish the
claimed subject matter from the prior art, have been accepted in patent examination and upheld
by the courts.”).)
Furthermore, CMC submitted expert testimony showing why such terms of degree are
especially useful in this field. CMC’s expert explains that the real-world application of these
Patents is necessarily limited by both the imprecision of the machinery at issue and the need for
the machinery to allow for flexibility for designers working with different types of patterns and
yarns.
One of skill in the art would understand that the values recited in the CMC patents
have some leeway or variance, due to a variety of factors, including
manufacturing tolerances, operator adjustments to the machines for forming
various tufted patterns, and yarn size. Carpet tufting machines reciprocate
10
thousands of needles upwards of 1,000 times per minute, and thus the fact that
values recited in the claims have some range or qualifying language is known and
understood in the industry to compensate for such recognized variations or
tolerances.
(Doc. 113-12, at 10.) The intrinsic evidence from the Patents discusses how the stitch rates can
be manipulated at the margins to achieve particular carpet qualities—fabric weight, for example.
(See, e.g., ‘989 Patent 16:9–13 (“As discussed above, this effective or operative process stitch
rate typically is substantially higher than a fabric conventional stitch rate, which is generally
based on machine gauge, though an operator can adjust it as needed to get a desired density
fabric weight.”).) Such instructions confirm that the two stitch rates need only “substantially” or
“approximately” match the ratios set forth in the claims.
Tuftco argues CMC’s proposed construction would render the term indefinite because it
fails to inform one reasonably skilled in the art as to the proper scope of the claimed technology.
(Doc. 219, at 86–87.) Tuftco likens these terms to the term under consideration in Interval
Licensing, a case in which the Federal Circuit found the term “unobtrusive manner” as applied to
a content display was indefinite because it is highly subjective and does not provide any context
from which one skilled in the art could determine its meaning. 766 F.3d 1364, 1370 (Fed. Cir.
2014). In articulating this holding, however, the Federal Circuit contrasted the phrase
“unobtrusive manner” with terms of degree from other cases that were held to be sufficiently
definite. Id. Interestingly, two of those cases involved the word “substantially.” In both, the
court held the term was not indefinite. See, e.g., Eibel Process Co. v. Minnesota & Ontario
Paper Co., 261 U.S. 45, 65–66 (1923) (holding that “substantial pitch” was sufficiently definite
because one skilled in the art “had no difficulty . . . in determining what was the substantial pitch
needed” to practice the invention); Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1335
(Fed. Cir. 2010) (finding that “substantially” was not indefinite). The rationale in Interval
11
Licensing is not particularly persuasive in construing the terms of degree at issue here. As used
in the Patents, both “substantially” and “approximately” have a much more discernible meaning
to one skilled in the art than “unobtrusive manner.”
The other cases Tuftco cites are similarly distinguishable. Some of those cases can be
distinguished because, unlike here, the Patents at issue used much more precise numerical values
expressed with decimal places that strongly suggested increased precision. See, e.g., T.F.H.
Publ’ns, Inc. v. Doskocil Mfg. Co., No. CIV.A. 08-4805 FLW, 2012 WL 715628, at *7 (D.N.J.
Mar. 5, 2012), aff’d (June 5, 2013) (construing “about” in the context of a claim that said “water
content is in the range of about 20.0 to 40.0% by weight with respect to that of said starch”);
Albemarle Corp. v. Great Lakes Chem. Corp., No. CIV.A. 02-505-A, 2007 WL 4589515, at *29
(M.D. La. Dec. 20, 2007) (construing the term “about” in the context of a claim that said
“between about 11.0 and about 18”). Others are clearly premised on the particularities of the
technology at issue. See, e.g., BJ Servs. Co. v. Halliburton Energy Servs., Inc., 338 F.3d 1368,
1372 (Fed. Cir. 2003) (holding, on the basis of expert testimony, that one skilled in the art would
understand the term “about 0.06” to encompass the range of experimental error occurring in the
relevant measurement); Noven Pharm., Inc. v. Watson Labs., Inc., No. 11-CV-5997 DMC MF,
2013 WL 2459925, at *2 (D.N.J. June 6, 2013) (construing the term about 0–70% to mean 0–
70% subject to rounding error in the context of a pharmaceutical patent). Still other cases can be
distinguished because they did not actually construe the term of degree, but, rather, held—on a
summary judgment motion—that the accused product was outside any reasonable construction of
the qualifying term. See, e.g., Rubin v. Scotts Co. LLC, No. 2:09-CV-02419-GMN, 2014 WL
289427, at *5 (D. Nev. Jan. 24, 2014), aff’d, 582 F. App’x 880 (Fed. Cir. 2014).
12
Here, “approximately” and “substantially” are not used to modify numbers that are
specified out to decimal places, and the Court is not yet faced with summary judgment motions.
The only evidence Tuftco has put forth to support the need for heightened precision in the
subject technology is testimony from its expert, Ian Slattery. In his declaration, Slattery states
A person of ordinary skill in the art is aware that tufting machines, including but
not limited to the embodiments of the Asserted Patents, are very precise machines
which permit the stitches per inch, stitch rates, and density to be set in increments
of one-tenths and even one-hundredths of an inch. When an operator of a tufting
machine is instructed to set a desired fabric stitch rate at “approximately” ten
stitches per inch, a person of ordinary skill would interpret that to mean a number
of stitches per inch that can be rounded to ten. In that example, a person of
ordinary skill in the art would understand that the number of stitches per inch
could be set to any number between 9.5 and 10.4 stitches per inch and still be
within the teachings of the Asserted Patents.
(Doc. 208-1, at 14.) But this declaration is somewhat undermined by testimony he gave before
the Patent Trial and Appeal Board. In discussing the ‘505 Patent and prior art, Slattery stated
“the amount of increase [from the desired stitch rate to the effective stitch rate] could vary
significantly depending on the types of yarns and pile heights in a particular pattern.” (Doc. 251, at 37.) This testimony accords with CMC’s expert’s statements regarding why there may be
some degree of leeway in the rates set forth in the Patents and undermines Slattery’s statement
that the stitch rates would be understood to be as subject to only rounding error. The Court
declines to construe “approximately” and “substantially” when modifying a numeric value.
As to the use of “substantially” in the context of “substantially hidden,” the Court
likewise finds it unnecessary to construe this term. While “substantially hidden” may not be
mathematically precise, Tuftco’s proposed construction— “tufts that are not visible upon casual
inspection of the tufted article” (Doc. 182, at 7)—does not meaningfully clarify the term. Casual
inspection can mean dramatically different things to different people. And, furthermore, Tuftco
conceded at the Markman hearing that further construction would not likely be “of any real
13
consequence in the issues in this case . . . .” (Doc. 219, at 91.) The Court is mindful of the
Federal Circuit’s admonition that claim construction not become “an obligatory exercise in
redundancy.” U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). Some
line drawing is properly left for the trier of fact; “claim construction need not always purge every
shred of ambiguity.” Acumed LLC v. Stryker Corp., 483 F.3d 800, 806 (Fed. Cir. 2007). Here,
the Court concludes “substantially hidden” needs no further construction and should take its
plain ordinary meaning.
Accordingly, the Court finds “substantially,” “approximately,” and “substantially hidden”
should take their ordinary meanings and do not need construction.
C.
“Density”
CMC’s Proposed Construction
Tuftco’s Proposed Construction
“the appearance of high or visible tufts of
yarn per linear inch in the face of the tufted
article that substantially matches the desired
stitch rate.” (Doc. 173, at 18.)
“the number of high and low tufts per
square inch in an area of the tufted article.”
(Doc. 182, at 11.)
The term “density” appears in only two of the severed claims. Claim 8 of the ‘505 Patent
provides for a method
wherein the feeding of the yarns to form the high and low tufts tracks the shifting
of the needles so as to substantially maintain density of the tufts of yarns being
formed in the backing material in a direction of the rows of tufts and location of
the high tufts of yarns at desired positions across the backing to form the
patterned tufted articles.
(‘505 Patent, 10:56–61(emphasis added).) Claim 28 of the ‘703 Patent provides “for the feeding
of the backing material for the pattern of the tufted article so as to form the patterned article with
an appearance of an increased density.” (‘703 Patent, 12:28–30 (emphasis added).)
14
CMC proposes “density” be construed as “the appearance of high or visible tufts of yarn
per linear inch in the face of the tufted article that substantially matches the desired stitch rate.”
(Doc. 173, at 18.) Tuftco proposes the term be defined as “the number of high and low tufts per
square inch in the area of the tufted article.” (Doc. 182, at 11.) The two key differences between
Tuftco’s construction and CMC’s construction are (1) Tuftco includes both high and low tufts
while CMC includes only high tufts, and (2) Tuftco calculates density per square inch while
CMC calculates density per linear inch.
The Court rejects Tuftco’s proposed construction and will adopt CMC’s. The linear
construction is supported by both the claims and the specifications of the Patents at issue. For
example, Claim 8 of the ‘505 Patent provides that the feeding and shifting of needles should
“substantially maintain density . . . in a direction of the rows of tufts.” (‘505 Patent, 10:56–59.)
A row is a linear—not a squared—measurement. Similarly, the specification of the ‘703 Patent
teaches, “the present invention further generally will be operated at increased or denser stitch
rates than conventional tufting processes.” (‘703 Patent, 2:67–3:2.) This text confirms the
Patents are focused on linear density rather than squared density, because the specification
speaks of the density of stitch rates—which, both parties acknowledge, are calculated on a perinch, rather than a per-square-inch basis. (See also ‘703 Patent, 5:19–21 (“the backing material
also is generally fed through the tufting machine at an increased or denser stitch rate to achieve a
denser pattern or fill-in of the selected colors for the particular field of the pattern.” (emphasis
added)); ‘703 Patent 5:28–30 (“the operative or effective stitch rate run by the yarn color
placement system will be substantially higher or faster, and thus more dense than typical desired
stitch rates.”).)
15
The claims also make clear “density” refers only to the high or visible tufts rather than
both the high and low tufts. For example, Claim 8 of the ‘505 Patent provides for a method
wherein the feeding of the yarns to form the high and low tufts tracks the shifting
of the needles so as to substantially maintain density of the tufts of yarns being
formed in the backing material in a direction of the rows of tufts and location of
the high tufts of yarns at desired positions across the backing to form the
patterned tufted articles.
(‘505 Patent, 10:56–61.) It is helpful to break the claim language into two parts divided by the
phrase “so as to.” The first part, which discusses the feeding and the shifting of the yarns,
mentions both high and low tufts. The second, the part that discusses substantially maintaining
density, only refers to high tufts, thus making clear that the density to which the claims refer is
the density of high tufts. Claim 8 of the ‘703 Patent similarly provides for a process to form a
patterned article “with an appearance of an increased density.” (‘703 Patent, 12:29–30
(emphasis added).) Though the claim language does not refer expressly to high tufts, the Patents
are clear that the tufts intended to be shown—those that appear—are the high tufts. For example,
the specification of the ‘989 Patent refers to “[t]he desired pattern density, i.e., the desired
number of stitches per inch to appear on the face of the finished patterned tufted article . . . .”
(‘989 Patent 6:59–61.) This confirms “density” refers to the number of stitches desired to appear
on the face of the patterned article—the high tufts.
As support for its position that “density” accounts for both high and low tufts, Tuftco
points to the following passage from the ‘505 Patent, which appears to contemplate accounting
for both:
As a consequence, as the needle bar(s) is shifted during the formation of the
pattern stitches, of each color to be taken out or back-robbed and thus hidden in
the finished pattern article, the increased number of stitches per inch will provide
sufficient enhanced density between the high and low tufts of the finished
patterned tufted article to avoid a missing color or gap being shown or otherwise
appearing in the patterned tufted article.
16
(505 Patent, at 3:3–10.) Tuftco argues this language contemplates that an “‘increased number of
stitches’ placed ‘between high and low tufts’ will create an ‘enhanced density.’” (Doc. 182, at
9.) Though the Court sees how this language could be read in such a manner in isolation, the
language does not overcome the language of the claims themselves. See Straight Path IP Grp.,
Inc. v. Sipnet EU S.R.O., 806 F.3d 1356, 1361 (Fed. Cir. 2015) (noting that where claim
language is clear, it controls over contrary language in the specification); Vitronics, 90 F.3d at
1582 (noting that the starting point for claim construction is the claims themselves). The weight
of intrinsic evidence supports CMC’s reading. Accordingly, the Court will reject Tuftco’s
argument that “density,” as used in the claims at issue, accounts for both high and low tufts. As
to the density-per-square-inch limitation, Tuftco cites no support for this construction, and the
Patent Trial and Appeal Board has previously rejected Tuftco’s attempts to import squared rather
than linear constructions as inconsistent with the ‘505 Patent. (Doc. 129-1, at 8.)
Accordingly, the Court construes the term “density” as “the appearance of high or visible
tufts of yarn per linear inch in the face of the tufted article that substantially matches the desired
stitch rate.”
D.
“Selected”/ “Selectively”
CMC’s Proposed Construction
Tuftco’s Proposed Construction
No construction needed OR “selected or
chosen over another or others.” (Doc. 173,
at 22.)
“chosen by the machine because it is
required by or conforms to the pattern
instructions programmed into the machine
for the tufted article.” (Doc. 182, at 14.)
“Selected”/ “selectively” appears in Claims 22, 24, 27, 28, and 30 of the ‘989 Patent, and
Claims 1, 28, and 29 of the ‘703 Patent. CMC argues no construction is needed, but if one is
given, the term should be construed as “selected or chosen over another or others.” (Doc. 173,
17
at 22.) Tuftco initially did not propose a construction, but argued in its responsive brief that the
term should be defined as “chosen by the machine because it is required by or conforms to the
pattern instructions programmed into the machine for the tufted article.” (Doc. 182, at 14.)
Tuftco argues that because everyone knows “selected” means “chosen,” its definition is more
helpful to the jury because it tells how something is chosen. At the Markman hearing, the Court
asked both parties whether the term “selected”/” selectively” could be construed as “as dictated
by the pattern” or “chosen as dictated by the pattern.” (Doc. 219, at 50, 98.) Tuftco did not
object to the Court’s construction. (Id. at 98.) Although CMC acknowledged that, in effect,
everything “selected” was “dictated by the pattern,” it argued against the Court’s proposal on the
ground that it would unnecessarily read limitations into the claims. (Id. at 50.)
The Court understands the concerns of both parties. The Court is sympathetic to Tuftco’s
complaint that merely saying something is “selected” may give the term too broad a potential
reading. But, consistent with the Court’s construction of “desired stitch rate” (see supra Part
III.A), the Court will reject the part of Tuftco’s proposed definition suggesting the selection must
be programmed into the machine. The Court will not read limitations into the claims that are not
supported by the claim language. See Kara Tech. Inc., 582 F.3d at 1348.
The Court will adopt parts of both parties’ proposals and construe the terms as “chosen in
accordance with the pattern.” This definition makes clear the yarn or tuft or color “selected” is
chosen based on the pattern for the tufted article, while avoiding unduly constraining the term in
a way not contemplated in the intrinsic evidence. The Court’s construction is confirmed by the
claim language itself. For example, Claim 29 of the ‘703 Patent provides for “controlling
feeding of the yarns to the needles in accordance with the shift profile of the pattern for the
article to selectively form a number of high tufts of yarns and to selectively pull back loops of
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yarns to form the pattern.” (‘703 Patent 12:46–50 (emphasis added).) The italicized language
makes clear the selection is dictated by the pattern instructions. Thus, adding the language
regarding the pattern instructions does not import a limitation not supported by the claims
themselves. The construction is also consistent with the dictionary definition of “selected”/
“selectively” cited by CMC. (Doc. 173-7 (defining “selected” as “chosen in preference to
another or others”).) For the reasons stated above, the Court construes the term
selected/selectively to mean “chosen in accordance with the pattern.”
E.
“Stitch Location”
CMC’s Proposed Construction
Tuftco’s Proposed Construction
No construction needed OR “a location in
which one or more tufts of yarn can be
presented into the backing based on the
pattern instructions.” (Doc. 173, at 24.)
“a location in which a tuft of yarn is
inserted into the backing based on pattern
instructions.” (Doc. 182, at 19.)
“Stitch location”4 appears in Claim 30 of the ‘989 Patent. CMC proposes the term
“stitch location” be construed as “a location in which one or more tufts of yarn can be presented
into the backing based on the pattern instructions.” (Doc. 173, at 24.) Tuftco proposes “stitch
location” be defined as “a location in which a tuft of yarn is inserted in the backing based on
pattern instructions.” (Doc. 182, at 19.) The term appears in only one of the severed claims,
Claim 30 of the ‘989 Patent, which states “at each stitch location, controlling feeding of the
4
Both parties agree “stitch” should not be divorced from its context within disputed terms.
(Doc. 219, at 101.)
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series of yarns presented at each stitch location and selectively retaining a desired yarn of the
series of yarns presented at each stitch location based upon the pattern instructions.”
The distinctions between the two proposed constructions for “stitch location” are 1) CMC
refers to any location a stitch can be inserted whereas Tuftco proposes the term be limited to
locations where a stitch actually is inserted, and 2) CMC allows for more than one yarn to be
inserted at a location whereas Tuftco does not.
Tuftco’s proposed construction is inconsistent with the intrinsic evidence, which makes
clear there may be “stitch locations” where no yarn is inserted. For example, the specification of
the ‘989 Patent provides that “double or greater jumps can be used to skip or bypass presentation
of yarns to selected stitch locations, such as locations where no yarn is selected for insertion.”
(‘989 Patent, 8:21–24 (emphasis added).) Other language from the specification confirms this
reading. (See, e.g., ‘989 Patent 9:58–60 (“If no yarns are selected for insertion at a particular
pixel or stitch location, the needle bar further can be shifted to jump or otherwise skip or bypass
presentation of the needles to that pixel or stitch location.”).) The language also confirms that
more than one yarn can be retained at a stitch location. For example, Claim 22 of the ‘989 Patent
states “at selected stitch locations, presenting a number of different yarns for insertion into the
backing material and controlling the yarn feed to the needles so as to retain at least one desired
yarn of the different yarns presented for each selected stitch location . . . .” (‘989 Patent 21:60–
64.) Stating that at least one yarn must be retained in this claim makes clear the Patents
contemplate instances in which more than one yarn might be retained at a particular stitch
location.
20
Accordingly, the Court adopts CMC’s construction. A “stitch location” is “a location in
which one or more tufts of yarn can be presented into the backing based on the pattern
instructions.”
F.
“Controlling”
CMC’s Proposed Construction
Tuftco’s Proposed Construction
“managing, directing, or regulating.” (Doc.
173, at 23.)
“using an electronic computer control
system to govern the operation of various
apparatus such as yarn feed mechanisms,
backing feed, and needle bar shifters in
accordance with pattern instructions.”
(Doc. 182, at 16.)
“Controlling” appears in Claims 8 and 9 of the ‘505 Patent, Claims 21, 22, 24, 27, 28,
and 30 of the ‘989 Patent and Claims 1, 28, and 29 of the ‘703 Patent. CMC suggests no
construction is needed for the term “controlling,” but suggests that if the Court does construe the
term, it should be construed as “managing, directing, or regulating.” (Doc. 173, at 23.) As
support, CMC cites intrinsic evidence from the Patents and the dictionary definition of
“controlling.” (Doc. 173, at 23; Docs. 172-9, 173-10.) Tuftco proposes the term be construed as
“[u]sing an electronic computer control system to govern the operation of the various apparatus
such as the yarn feed mechanisms, backing feed, and needle bar shifters in accordance with
programmed instructions.” (Doc. 182, at 16.) CMC argues that limiting “controlling” to the
controlling done by an electronic computer system is an unnecessary limitation not supported by
the claims. (Doc. 219, at 52.)
The Court agrees with CMC that “managing, directing, or regulating” is the appropriate
construction. This construction accords with the intrinsic evidence. For example, Claim 28 of
the ‘989 Patent states “controlling feeding of the series of yarns presented at each stitch location
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and selectively retaining a desired yarn of the series of yarns presented at each stitch location
based upon the pattern instructions.” (‘989 Patent 24:1–5.) Similarly, the ‘505 Patent
specification teaches “[t]he yarn color placement system further generally will include a pattern
yarn feed mechanism or attachment for controlling the feeding of the yarns to their respective
needles . . . .” (‘505 Patent, 2:26–28.) It is also consistent with the dictionary definition. (See
Doc. 173-9 (defining “control” as “to regulate or operate”).) The language above makes clear
the Patents use the word “controlling” consistently with this dictionary definition.
The Court rejects Tuftco’s proposed construction, because it attempts to import a
limitation that does not appear in the claims. While the ‘505 Patent does provide that “[t]he
tufting machine with the yarn color placement system of the present invention typically will
include a tufting machine control system for controlling the operative elements of this tufting
machine,” (‘505 Patent, 1:65–2:2), the Court is mindful not to “import a limitation from the
specification into the claims,” Kara Tech. Inc., 582 F.3d at 1348.
Accordingly, the Court construes “controlling” as “managing, directing, or regulating”.
IV.
CONCLUSION
For the foregoing reasons, the Court ADOPTS the construction of the terms as stated
above.
SO ORDERED.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE
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