Innovative Display Technologies LLC v. Acer Inc. et al
Filing
101
CLAIM CONSTRUCTION MEMORANDUM AND ORDER. Signed by Magistrate Judge Roy S. Payne on 08/26/2014. (nkl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
INNOVATIVE DISPLAY
TECHNOLOGIES LLC
v.
ACER INC., et al.
§
§
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§
§
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CASE NO. 2:13-CV-522-JRG
(LEAD CASE)
CLAIM CONSTRUCTION
MEMORANDUM AND ORDER
On July 30, 2014, the Court held a hearing to determine the proper construction of the
disputed claim terms in United States Patents No. 6,755,547, 7,300,194, 7,384,177, 7,404,660,
7,434,974, 7,537,370, and 8,215,816. After considering the arguments made by the parties at the
hearing and in the parties’ claim construction briefing (Dkt. Nos. 69, 75, and 82),1 the Court
issues this Claim Construction Memorandum and Order.
1
Citations to documents (such as the parties’ briefs and exhibits) in this Claim Construction
Memorandum and Order refer to the page numbers of the original documents rather than the
page numbers assigned by the Court’s electronic docket unless otherwise indicated. Defendants
are Acer Inc., Acer America Corp., Huawei Device USA Inc., Huawei Technologies Co., Ltd.,
Huawei Investment and Holding Co. Ltd., Microsoft Corp., Blackberry Ltd., Blackberry Corp.,
Dell Inc., and Hewlett-Packard Co.
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Table of Contents
BACKGROUND ........................................................................................................................... 3
LEGAL PRINCIPLES ................................................................................................................. 4
THE PARTIES’ STIPULATED TERMS................................................................................... 6
CONSTRUCTION OF DISPUTED TERMS ............................................................................. 6
A. “pattern of deformities” and “pattern of light extracting deformities” ................................. 7
B. “continuous side walls” ....................................................................................................... 11
C. “transition region” ............................................................................................................... 18
D. “at least some of the light extracting deformities on or in one of the sides are of a
different type than the light extracting deformities on or in the other side of the panel
member”.............................................................................................................................. 23
E. “an air gap therebetween” and “an air gap between the film, sheet, plate or substrate
and the panel member” ....................................................................................................... 30
F. “desired light output,” “desired light output distribution,” “desired light output
distribution or effect,” and “desired light output color or uniformity” ............................... 36
G. “predetermined” .................................................................................................................. 38
H. “posts, tabs, or other structural features that provide a mount” .......................................... 42
I. “well defined optical elements or deformities” and “optical elements or deformities of
well defined shape” ............................................................................................................. 43
J. “a pattern of deformities on one side of the sheet or film having a width and length that
is quite small in relation to the width and length of the sheet or film” ............................... 47
K. “pass through a liquid crystal display with low loss” ......................................................... 51
L. “to [suit/fit] a particular application” .................................................................................. 54
CONCLUSION ........................................................................................................................... 57
APPENDIX A .............................................................................................................................. 58
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BACKGROUND
Plaintiff brings suit alleging infringement of United States Patents No. 6,755,547 (“the
‘547 Patent”), 7,300,194 (“the ‘194 Patent”), 7,384,177 (“the ‘177 Patent”), 7,404,660 (“the ‘660
Patent”), 7,434,974 (“the ‘974 Patent”), 7,537,370 (“the ‘370 Patent”), and 8,215,816 (“the ‘816
Patent”). All seven of the patents-in-suit are titled “Light Emitting Panel Assemblies” and relate
to backlighting for liquid crystal displays (“LCDs”).
The Abstract of the ‘547 Patent is generally representative and states:
Light emitting panel assemblies include a sheet, film or plate overlying a light
emitting member. The sheet, film or plate has a pattern of deformities on one or
both sides that may vary or be random in size, shape or geometry, placement,
index of refraction, density, angle, depth, height and type for controlling the light
output distribution to suit a particular application. Also the sheet, film or plate
may have a coating or surface treatment for causing the light to pass through a
liquid crystal display with low loss.
All of the patents-in-suit claim priority to a common ancestor patent and bear an earliest
priority date of June 27, 1995. The parties submit, at least for purposes of the present claim
construction proceedings, that the patents-in-suit share a common written description and
figures. Dkt. No. 69 at 1; Dkt. No. 75 at 1. For convenience, this Claim Construction
Memorandum and Order refers to the specification of only the ‘547 Patent unless otherwise
indicated.
Finally, although Plaintiff submitted an expert declaration with its opening claim
construction brief (see Dkt. No. 69, Ex. B, 6/16/2014 Declaration of Kenneth I. Werner), the
Court granted Defendants’ motion to strike that expert declaration. See Dkt. No. 85, 7/11/2014
Order. Therefore, in construing the disputed terms, the Court does not consider the expert
declaration.
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LEGAL PRINCIPLES
“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
to which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303,
1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys.,
Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start
by considering the intrinsic evidence. See id. at 1313; see also C.R. Bard, Inc. v. U.S. Surgical
Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns
Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims
themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R.
Bard, 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as
understood by one of ordinary skill in the art at the time of the invention in the context of the
entire patent. Phillips, 415 F.3d at 1312-13; accord Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d
1361, 1368 (Fed. Cir. 2003).
The claims themselves provide substantial guidance in determining the meaning of
particular claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim
can be very instructive. Id. Other asserted or unasserted claims can aid in determining the
claim’s meaning because claim terms are typically used consistently throughout the patent. Id.
Differences among the claim terms can also assist in understanding a term’s meaning. Id. For
example, when a dependent claim adds a limitation to an independent claim, it is presumed that
the independent claim does not include the limitation. Id. at 1314-15.
“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
at 1315 (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995)
(en banc)). “[T]he specification ‘is always highly relevant to the claim construction analysis.
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Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.’” Phillips,
415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.
1996)); accord Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This
is true because a patentee may define his own terms, give a claim term a different meaning than
the term would otherwise possess, or disclaim or disavow claim scope. Phillips, 415 F.3d
at 1316. In these situations, the inventor’s lexicography governs. Id. The specification may also
resolve the meaning of ambiguous claim terms “where the ordinary and accustomed meaning of
the words used in the claims lack sufficient clarity to permit the scope of the claim to be
ascertained from the words alone.” Teleflex, 299 F.3d at 1325. But, “[a]lthough the
specification may aid the court in interpreting the meaning of disputed claim language, particular
embodiments and examples appearing in the specification will not generally be read into the
claims.” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998)
(quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988));
accord Phillips, 415 F.3d at 1323.
The prosecution history is another tool to supply the proper context for claim
construction because a patent applicant may also define a term in prosecuting the patent. Home
Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
specification, a patent applicant may define a term in prosecuting a patent.”). “[T]he prosecution
history (or file wrapper) limits the interpretation of claims so as to exclude any interpretation that
may have been disclaimed or disavowed during prosecution in order to obtain claim allowance.”
Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985).
Although extrinsic evidence can be useful, it is “less significant than the intrinsic record
in determining the legally operative meaning of claim language.” Phillips, 415 F.3d at 1317
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(citations and internal quotation marks omitted). Technical dictionaries and treatises may help a
court understand the underlying technology and the manner in which one skilled in the art might
use claim terms, but technical dictionaries and treatises may provide definitions that are too
broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly,
expert testimony may aid a court in understanding the underlying technology and determining
the particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
assertions as to a term’s definition are entirely unhelpful to a court. Id. Generally, extrinsic
evidence is “less reliable than the patent and its prosecution history in determining how to read
claim terms.” Id.
THE PARTIES’ STIPULATED TERMS
The parties have reached agreement on constructions for certain terms, as stated in their
May 5, 2014 P.R. 4-3 Joint Claim Construction and Prehearing Statement (Dkt. No. 61), their
briefing, and their July 14, 2014 P.R. 4-5(d) Joint Claim Construction Chart (Dkt. No. 89). The
parties’ agreements are set forth in Appendix A to this Claim Construction Memorandum and
Order.
CONSTRUCTION OF DISPUTED TERMS
Shortly before the start of the July 30, 2014 hearing, the Court provided the parties with
preliminary constructions for some of the disputed terms with the aim of focusing the parties’
arguments and facilitating discussion as to those terms. Those preliminary constructions are set
forth below, within the discussion for each term as to which the Court provided a preliminary
construction.
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A. “pattern of deformities” and “pattern of light extracting deformities”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
“a pattern of deformities that can be an
ordinary pattern, random placement pattern, or
a variable pattern”2
Plain and ordinary meaning (using the agreed
definition of “deformities”)
Alternatively:
“a pattern of deformities, which may
include a random placement pattern or a
variable pattern”
Dkt. No. 69 at 5; Dkt. No. 75 at 2; Dkt. No. 82 at 1; Dkt. No. 86 at 3. The parties submit that the
first of these disputed terms appears in Claim 1 of the ’547 Patent and Claims 1 and 33 of the
’660 Patent. Dkt. No. 61 at 3. The parties further submit that the second of these disputed terms
appears in Claims 1, 7 and 13 of the ‘974 Patent, Claims 1, 13, 29 and 47 of the ‘370 Patent, and
Claim 1 of the ‘816 Patent. Id. at 9.
Shortly before the start of the July 30, 2014 hearing, the Court provided the parties with
its preliminary proposal that these disputed terms mean: “a pattern of deformities, which may
include a random placement pattern or a variable pattern.”
(1) The Parties’ Positions
Plaintiff argues that “Defendants’ argument for ‘plain and ordinary’ meaning is an
attempt [to] exclude certain ‘patterns of deformities’ specifically described in the preferred
embodiments of the specification,” such as “variable patterns” and “random placement patterns.”
Dkt. No. 69 at 6. Plaintiff also cites dependent Claim 19 of the ‘547 Patent, quoted below. Id.
at 7.
2
Plaintiff previously proposed that “pattern of deformities” means “an arrangement or placement
of deformities” and that “pattern of light extracting deformities” means “an arrangement or
placement of light extracting deformities.” Dkt. No. 61 at 3 & 9.
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Defendants respond that because the parties agree on the meaning of “deformities” and
because “‘[p]attern’ is not . . . a term of art, . . . construing this common word would not help
clarify its meaning to the jury.” Dkt. No. 75 at 2. Defendants argue that Plaintiff’s proposal
“does not promote clarity because it requires a pattern of deformities to be one of three distinct
things,” which are each set forth using the word “pattern” and “without explaining what any of
these three terms mean or what the difference between them is.” Id. at 3-4.
Plaintiff replies that its proposal of the phrase “ordinary pattern” is readily
understandable but, alternatively, Plaintiff proposes construing the disputed terms to mean “a
pattern of deformities, which may include a random placement pattern, or a variable pattern.”
Dkt. No. 82 at 1. Plaintiff further argues that “random placement pattern” and “variable pattern”
will be readily understandable to a jury, particularly when “guided by expert testimony.” Id.
(2) Analysis
Claim 1 of the ‘547 Patent is representative and recites (formatting modified; emphasis
added):
1. A backlight assembly comprising
a light emitting member having at least one light emitting area that emits
light that is internally reflected within the light emitting member,
a separate transparent sheet or film overlying the light emitting area with
an air gap therebetween,
a pattern of deformities on one side of the sheet or film having a width and
length that is quite small in relation to the width and length of the sheet or film,
the deformities varying at different locations on the sheet or film to direct
the light that is emitted by the[] light emitting member in different directions to
produce a desired light output distribution such that the light will pass through a
liquid crystal display with low loss.
The parties have agreed that the term “deformities” means “any change in the shape or
geometry of a surface and/or coating or surface treatment that causes a portion of the light to be
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emitted.” Dkt. No. 61 at 2. As to the significance of the word “pattern,” the specification
discloses:
In accordance with another aspect of the invention, the light emitting panel
members include a pattern of light extracting deformities or disruptions which
provide a desired light output distribution from the panel members by changing
the angle of refraction of a portion of the light from one or more light output areas
of the panel members.
***
FIG. 4a is an enlarged plan view of a portion of a light output area of a panel
assembly showing one form of pattern of light extracting deformities on the light
output area.
***
FIG. 4a schematically shows one such light surface area 20 on which a pattern of
light extracting deformities or disruptions 21 is provided. As used herein, the
term deformities or disruptions are [sic] used interchangeably to mean any change
in the shape or geometry of the panel surface and/or coating or surface treatment
that causes a portion of the light to be emitted. The pattern of light extracting
deformities 21 shown in FIG. 4a includes a variable pattern which breaks up the
light rays such that the internal angle of reflection of a portion of the light rays
will be great enough to cause the light rays either to be emitted out of the panel
through the side or sides on which the light extracting deformities 21 are provided
or reflected back through the panel and emitted out the other side.
***
Additionally, the deformities may vary in shape and/or size along the length
and/or width of the panel members. Also, a random placement pattern of the
deformities may be utilized throughout the length and/or width of the panel
members.
‘547 Patent at 1:49-54, 2:18-20, 4:40-53 & 5:51-55 (emphasis modified). Figure 4a of the
patents-in-suit is reproduced here (modified by shrinking the label “Fig. 4a” and by removing an
overlapping portion of Fig. 4d):
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To whatever extent Defen
T
ndants’ prop
posal of “plai meaning” suggests th a “pattern
in
”
hat
n”
cannot va or canno be random any such suggestion is hereby expr
ary
ot
m,
s
ressly reject particula
ted,
arly
in light of the disclos
o
sure of Fig. 4a as illustra
4
ating a “patte
ern.” ‘547 P
Patent at 4:40
0-53; see
Vitronics 90 F.3d at 1582-83 (no
s,
oting that a claim interpr
c
retation in w
which the onl embodime
ly
ent
or a prefe
erred embod
diment “wou not fall within the sco of the pa
uld
w
ope
atent claim . . . is rarely, if
ever, corr and wou require highly persua
rect
uld
h
asive eviden
ntiary suppor
rt”). Further Claim 19 o
r,
of
the ‘547 Patent, whic depends from Claim 1 (quoted ab
ch
f
bove), recites (emphasis added): “Th
s
he
y
w
ary
ment
m.”
assembly of claim 1 wherein the deformities randomly va in placem on the sheet or film
Clarification is nonethele warranted to explain that a “patte
C
ess
d
ern” in the pa
atents-in-sui can
it
include “random plac
“
cement.” Be
ecause this meaning is se
m
eemingly at odds with th ordinary,
he
everyday meaning of the word “p
y
f
pattern,” con
nstruction is appropriate. See Power
r-One, Inc. v
v.
- 10 -
Artesyn Techs., Inc., 599 F.3d 1343, 1348 (Fed. Cir. 2010) (“The terms, as construed by the
court, must ensure that the jury fully understands the court’s claim construction rulings and what
the patentee covered by the claims.”) (citation and internal quotation marks omitted).
At the July 30, 2014 hearing, Defendants raised a concern that Plaintiff’s alternative
proposed construction might leave the finder of fact with an impression that a “pattern of
deformities” must be either a random placement pattern or a variable pattern. Instead,
Defendants urged, the Court should construe the disputed terms to have their plain and ordinary
meaning, and the Court could explain in its analysis that the disputed terms encompass random
placement patterns and variable patterns. Plaintiff maintained that a construction of the disputed
terms would be clearer. Ultimately, both sides were amenable to a construction conveying that
the disputed terms include, but are not limited to, random placement patterns and variable
patterns.
The Court accordingly hereby construes “pattern of deformities” and “pattern of light
extracting deformities” to mean “a pattern of deformities, including, but not limited to, a
random placement pattern or a variable pattern.”
B. “continuous side walls”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
“uninterrupted walls that are free of breaks on
the side of the tray”
In the alternative only, if the Court determines
that this term should be construed:
“side walls that completely surround”3
3
Plaintiff previously proposed only “side walls that completely surround,” without any proposal
of plain and ordinary meaning. Dkt. No. 61 at 10.
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Dkt. No. 69 at 8; Dkt. No. 75 at 5. The parties submit that this disputed term appears in Claims 1
and 15 of the ‘177 Patent. Dkt. No. 61 at 10.
Shortly before the start of the July 30, 2014 hearing, the Court provided the parties with
its preliminary proposal that this disputed term has its plain meaning.
(1) The Parties’ Positions
Plaintiff argues that Defendants are attempting to read in limitations from the preferred
embodiments. Dkt. No. 69 at 8. Plaintiff also argues that Defendants’ proposed reference to
“the side of the tray” “adds even more confusion to the term.” Id. at 9. Plaintiff urges that the
plain meaning of this disputed term is clear, particularly in light of surrounding claim language
reciting that the continuous side walls “form a hollow cavity or recess completely surrounded by
the side walls.” Id.
Defendants respond that “[i]f the reflective walls are not continuous, i.e., have
interruptions or gaps, light can escape the assembly, increasing the amount of light lost.” Dkt.
No. 75 at 6. Defendants conclude that their proposal “is true to the purpose of the side walls and
the intrinsic evidence,” such as the illustration of uninterrupted side walls in Figure 6 of the
patents-in-suit. Id. Defendants also submit that during prosecution, when the patentee added the
term “continuous side walls” to the claims, the patentee distinguished the “Kitazawa” reference
as disclosing side walls that were interrupted or broken by indentations. Id. at 7. Further,
Defendants cite an extrinsic dictionary definition of “continuous,” quoted below. Id. Finally,
Defendants argue that because Plaintiff’s alternative proposal of “that completely surround” “is
already addressed by a handful of words later in the claim,” Plaintiff’s proposal improperly reads
out the word “continuous.” Id.
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Plaintiff replies that even in Figure 6 of the patents-in-suit, cited by Defendants, “the
continuous side walls are interrupted by secondary reflector 38, yet still completely surround
cavity 36.” Dkt. No. 82 at 3. Plaintiff also argues: “At most, the prosecution history merely
confirms that element 12 [in Kitazawa] is not a tray and that even so, its walls do not form a
completely-surrounded, hollow cavity. That statement does not equate to a construction that
requires a tray with ‘uninterrupted walls’ ‘that are free of breaks.’” Id. at 4.
(2) Analysis
Claim 1 of the ‘177 Patent is representative and recites (formatting modified; emphasis
added):
1. A light emitting assembly comprising
a tray having a back wall and continuous side walls that form a hollow
cavity or recess completely surrounded by the side walls,
at least one light source located, mounted or positioned in the cavity or
recess, and
at least one sheet, film or substrate overlying the assembly for controlling
the light emitted from the assembly to fit a particular application,
wherein the tray acts as at least one of a back, side edge, and end edge
reflector and has one or more secondary flat, angled, faceted or curved reflective
or refractive surfaces to redirect at least a portion of the light emitted by the light
source in a predetermined manner within the cavity or recess.
The Summary of the Invention states:
In accordance with another aspect of the invention, the panel assemblies may
include reflective or refractive surfaces for changing the path of a portion of the
light, emitted from the light source, that would not normally enter the panel
members at an acceptable angle that allows the light to remain in the panel
members for a longer period of time and/or increase the efficiency of the panel
members.
‘547 Patent at 1:41-47. The specification further discloses the desirability of reflecting or
refracting light that would otherwise be lost:
FIG. 2 shows another form of light emitting panel assembly 5 in accordance with
this invention including a panel light transition area 6 at one end of the light
emitting panel 7 with sides 8, 9 around and behind the light source 3 shaped to
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more efficien reflect an
m
ntly
nd/or refract and focus th light emit from the light
t
he
tted
e
so
ource 3 that impinges on these surfaces back thr
n
rough the lig transition area 6 at
ght
n
an acceptable angle for en
n
e
ntering the li
ight input su
urface 18 at o end of th light
one
he
em
mitting pane 7.
el
Id. at 3:2
21-29 (empha added). This object of increa
asis
tive
ased efficien does not however,
ncy
t,
compel in
nterpreting “continuous” as requirin uninterrup side wal See Lieb
“
”
ng
pted
lls.
bel-Flarshei
im
Co. v. Medrad, Inc., 358 F.3d 898, 908 (Fed. Cir. 2004) (
Me
.
(“The fact th a patent a
hat
asserts that a
an
invention achieves se
n
everal object
tives does no require that each of th claims be construed as
ot
he
limited to structures that are capa of achie
o
t
able
eving all of t objective
the
es.”).
Defendants have cited Fig
D
gure 6 of the patents-in-suit as illust
e
trating uninte
errupted side
e
walls, as formed by “tray 35 havi a cavity or recess 36 ‘547 Pate at 6:66. Figure 6 is
“
ing
6.”
ent
reproduced here:
Although this illustration may be help in under
A
s
pful
rstanding the claimed in
e
nventions, “p
patent
coverage is not neces
e
ssarily limite to inventi
ed
ions that look like the on in the fig
k
nes
gures. To ho
old
otherwise would be to import lim
e
t
mitations [i]n the claim from the specificatio which is
nto
m[s]
e
on,
fraught with danger.” MBO Labs Inc. v. Bec
w
”
s.
cton, Dickins & Co., 4 F.3d 132 1333 (Fe
son
474
23,
ed.
Cir. 2007
7).
- 14 -
As for the pro
A
osecution his
story, the pa
atentee added the term “c
d
continuous s walls,” a
side
as
well as th phrase “completely su
he
urrounded by the side w alls,” in resp
y
ponse to a re
ejection base on
ed
United States Patent No. 5,070,431 (“Kitazaw
wa”). See D No. 75, E H, 1/22/
Dkt.
Ex.
/2008 Reply to
Office Action of October 3, 2007 at 2 (p. 56 of 94 of Ex H). The pa
7,
6
x.
atentee state “[I]t is
ed:
respectfu submitte that the so
ully
ed
o-called tray 12 of Kitaza does no have a bac wall and
awa
ot
ck
continuou side walls that form a hollow cav or recess completely surrounded by the side
us
s
vity
s
y
d
walls in which at leas one light source is loc
w
st
s
cated, mount or positio
ted
oned as recit in claims 1
ted
s
and 16 as amended.” Id. at 8 (p. 62 of 94 of Ex. H). Fig
s
gure 2 of Kita
azawa is rep
produced her
re:
Because the “light guide plate 12” of Kitazawa (s Kitazawa at 2:27-3:4 includes
B
“
p
f
see
a
45)
“recesses 12a and 12 (see id. at 3:15-20) th are illustr
s
2b”
a
hat
rated as bein completel open-ende
ng
ly
ed,
the paten
ntee’s statem
ments distingu
uishing Kita
azawa cannot be fairly re as requir
t
ead
ring that
“continuo
ous” side wa must be uninterrupte as Defend
alls
ed,
dants here p
propose. See Omega Eng v.
e
g’g
Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir 2003) (“As a basic prin
C
r.
s
nciple of cla
aim
interpreta
ation, prosec
cution discla
aimer promot the publi notice fun
tes
ic
nction of the intrinsic
- 15 -
evidence and protects the public’s reliance on definitive statements made during prosecution.”)
(emphasis added); see also id. at 1325-26 (“[F]or prosecution disclaimer to attach, our precedent
requires that the alleged disavowing actions or statements made during prosecution be both clear
and unmistakable”) (emphasis added).
As to extrinsic evidence, Defendants have cited a dictionary definition of “continuous” as
meaning: “Uninterrupted in time, sequence, substance, or extent.” Dkt. No. 75, Ex. I, The
American Heritage Dictionary of the English Language 408 (3d ed. 1996). The same dictionary,
however, includes another definition of “continuous” as meaning: “Attached together in repeated
units: [e.g.,] a continuous form fed into a printer.” Id. (emphasis modified). Presumably, units
could still be “repeated” even if they included openings. See id. Further, “heavy reliance on the
dictionary divorced from the intrinsic evidence risks transforming the meaning of the claim term
to the artisan into the meaning of the term in the abstract, out of its particular context, which is
the specification.” Phillips, 415 F.3d at 1321.
In sum, nothing in the specification, prosecution history, or extrinsic evidence demands
an “uninterrupted” limitation or a “free of breaks” limitation such as Defendants have proposed.
At the July 30, 2014 hearing, Defendants further urged that the patentee’s use of
“continuous,” as a limitation separate from the phrase “completely surrounded,” means that if the
side walls are made up of separate segments, then the side walls are not continuous, even if the
segments are in contact with one another. Defendants submitted that only if such segments were
bonded or glued together would the side walls be “continuous.” Plaintiff responded that the
claims recite no “one piece” limitation. On balance, issues such as whether the side walls could
be composed of segments and, if so, whether such segments must be bonded or fused, are
ultimate factual issues that must be evaluated with reference to particular accused
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instrumentalities. In other words, Defendants’ arguments about segmentation and bonding relate
to factual issues of infringement rather than legal issues for claim construction. See PPG Indus.
v. Guardian Indus. Corp., 156 F.3d 1351, 1355 (Fed. Cir. 1998) (noting that “the task of
determining whether the construed claim reads on the accused product is for the finder of fact”).
Finally, at the July 30, 2014 hearing, Plaintiff argued that Defendants’ proposal of the
phrase “on the side of the tray” is unclear. Defendants responded that this phrase was an effort
to define “side walls.” Defendants were amenable to withdrawing this phrase, thus submitting
that the constituent term “side walls” does not require construction.
For all of these reasons, Defendants’ proposed construction is hereby expressly rejected,
and no further construction is necessary. See U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d
1554, 1568 (Fed. Cir. 1997) (“Claim construction is a matter of resolution of disputed meanings
and technical scope, to clarify and when necessary to explain what the patentee covered by the
claims, for use in the determination of infringement. It is not an obligatory exercise in
redundancy.”); see also O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351,
1362 (Fed. Cir. 2008) (“[D]istrict courts are not (and should not be) required to construe every
limitation present in a patent’s asserted claims.”); Finjan, Inc. v. Secure Computing Corp., 626
F.3d 1197, 1207 (Fed. Cir. 2010) (“Unlike O2 Micro, where the court failed to resolve the
parties’ quarrel, the district court rejected Defendants’ construction.”).
The Court accordingly hereby construes “continuous side walls” to have its plain
meaning.
- 17 -
C. “transition region”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
“a region that spreads and transmits light”
In the alternative only, if the Court determines
that this term should be construed:
“an area used to make the transition from
the light source to the light emitting area of the
panel member [’370 patent] / optical conductor
[’660 patent]”
Dkt. No. 69 at 10; Dkt. No. 75 at 8. The parties submit that this disputed term appears in
Claims 1, 3, 10, and 33 of the ‘660 Patent and Claims 13 and 47 of the ‘370 Patent. Dkt. No. 61
at 15.
Shortly before the start of the July 30, 2014 hearing, the Court provided the parties with
its preliminary proposal that this disputed term means: “a region that transmits light.”
(1) The Parties’ Positions
Plaintiff argues that “[r]equiring that the ‘transition region’ both spread and transmit light
is an apparent attempt to read a limitation from the abstract of the ’660 patent into the claims.”
Dkt. No. 69 at 10. Plaintiff also argues claim differentiation as to Claim 2 of the ‘660 Patent,
quoted below. Id. at 11.
Defendants respond that “[w]hereas Defendants’ construction tells the jury what the
transition region is, Plaintiff’s construction merely states where the transition region is,” even
though the claim language already recites the location of the transition region. Dkt. No. 75 at 9.
Defendants also submit that “transition region” appears in the patents-in-suit only once, in the
Abstract of the ‘660 Patent. Id. at 8. Further, Defendants argue that Plaintiff’s alternative
proposed construction is unhelpful because it uses the word “transition,” which is the term in
- 18 -
dispute. Id. at 10. Finally, Defendants argue that Plaintiff’s claim differentiation argument fails
“because ‘configured to’ [in Claim 2 of the ‘660 Patent], like all claim terms, must have
meaning, making claim 2 distinct from Defendants’ construction and thereby differentiating the
two claims.” Id.
Plaintiff replies that claim differentiation applies because the recital of “configured to” in
Claim 2 is indistinguishable from Defendants’ proposal of the word “that.” Dkt. No. 82 at 5.
Plaintiff also argues that Defendants’ proposal is improper because it reads a use limitation into
apparatus claims. Id. at 4-5.
At the July 30, 2014 hearing, Defendants responded that because they are not proposing
that the transition region must actively do anything, Plaintiff’s concern regarding reading in a use
limitation is unfounded. Plaintiff nonetheless submitted that if Court is inclined to construe the
term, then the term should be construed as a region “capable of” transmitting light or “configured
to” transmit light.
Finally, Defendants also reiterated their argument that the phrase “configured to” in
Claim 2 differentiates that claim from Claim 1. Defendants explained that because light
naturally spreads as it travels, the phrase “configured to” refers to increasing the spreading of
light beyond what would occur normally.
(2) Analysis
Plaintiff has argued claim differentiation as between Claims 1 and 2 of the ‘660 Patent,
which recite (emphasis added):
1. A light emitting panel assembly comprising:
a generally planar optical conductor having at least one input edge with a
greater cross-sectional width than thickness; and
a plurality of light sources configured to generate light having an output
distribution defined by a greater width component than height component, the
- 19 -
light sources positioned adjacent to the input edge, thereby directing light into the
optical conductor;
the optical conductor having at least one output region and a
predetermined pattern of deformities configured to cause light to be emitted from
the output region,
the optical conductor having a transition region disposed between the light
source and the output region.
2. The assembly of claim 1 wherein the transition region is configured to spread
and transmit the light generated by the light sources to the output region.
A limitation of “transmit[ting] . . . light generated by the light sources to the output
region” (as recited in Claim 2) is already apparent in Claim 1, so the doctrine of claim
differentiation weighs against limiting the “transition region” to being “configured to spread and
transmit light” as recited in Claim 2. See SanDisk Corp. v. Kingston Tech. Co., Inc., 695 F.3d
1348, 1361 (Fed. Cir. 2012) (“Where . . . the sole difference between the independent claim and
the dependent claim[] is the limitation that one party is trying to read into the independent claim,
the doctrine of claim differentiation is at its strongest.”) (citation and internal quotation marks
omitted). Finally, despite their argument to the contrary, Defendants’ proposal of “that spreads
and transmits light” is substantively indistinguishable from the recital in Claim 2 of “configured
to spread and transmit light.” The doctrine of claim differentiation therefore weighs against
Defendants’ proposed construction. See id.
Outside of the claims, the term “transition region” appears only in the Abstract of the
‘660 Patent, which states (emphasis added):
Light emitting assemblies include a generally planar optical conductor having at
least one input edge with a greater cross-sectional width than thickness and at
least one light source having a light output distribution with a greater width
component than height component positioned adjacent to the input edge for
directing light into the optical conductor and emission of the light from at least
one output region of the optical conductor. A transition region is disposed
between the light source and output region that is configured to spread and
transmit the light by the light source to the output region. A plurality of faceted
- 20 -
su
urfaces in close proximit to the ligh source ma
ty
ht
aximize or ot
therwise cha
ange the
li
ight emitted from the ligh source.
ht
The specifica
T
ation does, ho
owever, disc
close a “ligh transition m
ht
member or a 4” that
area
transmits light from a light sourc to a light emitting pan
s
ce
e
nel:
Referring now in detail to the drawings, and initia to FIG. 1, there is
R
w
o
ally
sc
chematically shown one form of ligh emitting p
y
ht
panel assemb 1 in acco
bly
ordance
with this inve
w
ention includ
ding a transp
parent light e
emitting pane 2 and one or more
el
e
li
ight sources 3 which emi light in a predetermine pattern in a light tran
it
p
ed
n
nsition
member or ar 4 used to make the tr
m
rea
o
ransition fro the light s
om
source 3 to t light
the
em
mitting pane 2, as well known in the art. The li
el
k
ight that is tr
ransmitted b the
by
li
ight transitio area 4 to the transpare light emi
on
ent
itting panel 2 may be em
mitted
al
long the enti length of the panel or from one o more light output area along
ire
f
r
or
t
as
th length of the panel as desired to produce a des
he
p
sired light ou
utput distrib
bution to
fi a particula application
it
ar
n.
‘547 Pate at 2:62-3 (emphasi added).
ent
3:7
is
Also, the part have add
A
ties
dressed Figu 7, which is reproduce here:
ure
ed
First, althoug Figure 7 il
gh
llustrates tra
ansition regio that spre light from relatively
ons
ead
m
narrow areas to a rela
atively wider area, “pate coverage is not neces
ent
ssarily limite to inventions
ed
- 21 -
that look like the ones in the figures. To hold otherwise would be to import limitations [i]nto the
claim[s] from the specification, which is fraught with danger.” MBO Labs., 474 F.3d at 1333.
Second, the Summary of the Invention refers to a “transition area for mixing . . . multiple
colored lights” (id. at 1:60-61), and the specification discloses, with reference to Figure 7, “light
transition areas (mixing areas) 43”:
FIG. 7 is a schematic illustration of still another form of light emitting panel
assembly 40 in accordance with this invention including a panel member 41
having one or more light output areas 42 and one or more light transition areas
(mixing areas) 43 containing a plurality of light sources 3 at one or both ends of
the panel. Each transition area mixes the light from one or more light sources
having different colors and/or intensities. In this particular embodiment, each of
the light sources 3 desirably employs three colored LEDs (red, blue, green) in
each transition mixing area 43 so that the light from the three LEDs can be mixed
to produce a desired light output color that will be emitted from the light output
area 42. Alternatively, each light source may be a single LED having multiple
colored chips bonded to the lead film. Also, two colored LEDs or a single LED
having two colored chips may be used for a particular application. By varying the
intensities of the individual respective LEDs, virtually any colored light output or
white light distribution can be achieved.
Id. at 7:13-31 (emphasis added). The specification thus discloses that a transition region could
be used for “mixing” rather than necessarily for spreading.
On balance, adopting Defendants’ proposal that a “transition region” “spreads and
transmits light” would improperly limit the disputed term to a preferred embodiment. See
Comark, 156 F.3d at 1187 (“[The specification] simply details how the video delay circuit is to
be used in a single embodiment of the invention.”).
Thus, based on the above-quoted disclosures, as well as the doctrine of claim
differentiation as applied to Claims 1 and 2 of the ‘660 Patent, the Court rejects Defendants’
proposed construction.
The Court therefore hereby construes “transition region” to mean “a region configured
to transmit light.”
- 22 -
D. “at least some of the light extracting deformities on or in one of the sides are of a
different type than the light extracting deformities on or in the other side of the panel
member”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
“at least some of the deformities on or in one
side of the panel member are different than the
deformities on or in the other side of the panel
member in characteristics other than shape”
Dkt. No. 69 at 12; Dkt. No. 75 at 11. The parties submit that this disputed term appears in
Claims 1 and 13 of the ‘370 Patent. Dkt. No. 61 at 21.
Shortly before the start of the July 30, 2014 hearing, the Court provided the parties with
its preliminary proposal that this disputed term has its plain meaning.
(1) The Parties’ Positions
Plaintiff argues that “Defendants’ proposed construction appears to rest on an incorrect
interpretation of the prosecution history that ‘type’ and ‘shape’ are mutually exclusive.” Dkt.
No. 69 at 12. Plaintiff argues that “[i]f the inventor thought ‘type’ did not encompass ‘shape,’ he
would have also removed the shape adjectives, ‘prismatic’ and ‘lenticular’ from . . . claims [16
and 17].” Id. at 14.
Defendants respond that their proposed construction “mak[es] clear that the ‘different
types’ of deformities on the ‘panel member’ differ in characteristics other than shape,” as
required by the prosecution history. Dkt. No. 75 at 11. Specifically, Defendants argue that “[the
patentee] [h]aving removed ‘different . . . shape’ from the scope of the claim, [Plaintiff] cannot
reclaim that scope through its construction of the term ‘type.’” Id. at 11-12. Further, Defendants
argue, the ‘370 Patent repeatedly refers to “type or shape,” thus demonstrating that “type” and
“shape” are, in Defendants’ words, “separate, non-overlapping properties.” Id. at 12. Finally, as
- 23 -
to Claims 16 and 17, Defendants respond that “nothing in the specification supports a shapelimited definition for these terms [‘prismatic’ and ‘lenticular’].” Id. at 12-13. To the contrary,
Defendants argue, the specification does not use “lenticular” outside of the claims and uses
“prismatic” to characterize a deformity “with regard to its basic nature, not its shape.” Id. at 13.
Defendants conclude that “‘prismatic’ and ‘lenticular’ are not shapes.” Id.
Plaintiff replies that a “plain reading of the claims 16 and 17 . . . shows that ‘type’
encompasses ‘shape.’” Dkt. No. 82 at 5. Plaintiff further argues that although the patentee
deleted the phrase “or shapes” from the claims, “[a]fter that deletion, the inventor intentionally
kept the shape terms ‘prismatic’ and ‘lenticular’ and associated them with the ‘type’ of
deformity.” Id.
At the July 30, 2014 hearing, Defendants urged that the term “prismatic” is a functional
term and that many shapes can act as a “prism.”
(2) Analysis
Originally, application claims 1 and 15 (which issued as Claims 1 and 13, respectively)
recited deformities of “a different type or shape,” but during prosecution the patentee deleted the
phrase “or shape.” See Dkt. No. 75, Ex. J, 1/15/2009 Reply to Office Action of October 15,
2008, at 2 & 4-5 (pp. 69 & 71-72 of 203 of Ex. J). For example, the patentee amended Claim 1
as follows (formatting modified; claim amendments shown as in original, with additions
underlined and deletions in strikethrough; italics added):
1. (currently amended): A light emitting panel assembly comprising
at least one light source,
an optical panel member having at least one input edge for receiving light
from the at least one a light source,
the panel member having front and back sides and a greater cross sectional
width than thickness,
- 24 -
both the front and back sides having a pattern of light extracting
deformities that are projections or depressions on or in the sides to cause light to
be emitted from the panel member in a predetermined output distribution,
where the pattern of light extracting deformities on or in at least one of the
sides varies along at least one of the length and width of the panel member and at
least some of the light extracting deformities on or in one of the sides are of a
different type or shape than the light extracting deformities on or in the other side
of the panel member, and
at least one film, sheet or substrate overlying at least a portion of one of
the sides of the panel member to change the output distribution of the emitted
light such that the light will pass through a liquid crystal display with low loss.
Id. at 2 (p. 69 of 203 of Ex. J).
As a threshold matter, “we must presume that the use of . . . different terms in the claims
connotes different meanings.” CAE Screenplates, Inc. v. Heinrich Fiedler GmbH & Co. KG, 224
F.3d 1308, 1317 (Fed. Cir. 2000); accord Primos, Inc. v. Hunter’s Specialties, Inc., 451 F.3d
841, 848 (Fed. Cir. 2006) (“[T]he terms ‘engaging’ and ‘sealing’ are both expressly recited in the
claim and therefore ‘engaging’ cannot mean the same thing as ‘sealing’; if it did, one of the
terms would be superfluous.”); Chi. Bd. Options Exch., Inc. v. Int’l Sec. Exch., LLC, 677 F.3d
1361, 1369 (Fed. Cir. 2012) (noting “[t]he general presumption that different terms have
different meanings”).
The specification reinforces that the term “type” is not synonymous with the term
“shape.” See ‘370 Patent at Abstract (“The pattern of light extracting deformities on or in one
side may have two or more different types or shapes of deformities and at least one of the types
or shapes may vary along the length or width of the panel member.”) (emphasis added); see also
‘547 Patent at 5:1-4 (“By varying the density, opaqueness or translucence, shape, depth, color,
area, index of refraction, or type of deformities 21 on an area or areas of the panels, the light
output of the panels can be controlled.”) (emphasis added). Indeed, the parties appear to agree
that “type” and “shape” are not synonyms.
- 25 -
Rather, the dispute is whether, in light of the above-noted deletion of “or shape” during
prosecution, deformities of different “type” must differ in some characteristic other than shape.
The patentee’s deletion of “or shape” at least somewhat supports interpreting the
amended claims such that a difference in shape, alone, does not satisfy the “different type”
limitation at issue. See Purdue Pharma L.P. v. Endo Pharm. Inc., 438 F.3d 1123, 1136 (Fed.
Cir. 2006) (“Under the doctrine of prosecution disclaimer, a patentee may limit the meaning of a
claim term by making a clear and unmistakable disavowal of scope during prosecution.”); see
also Rheox, Inc. v. Entact, Inc., 276 F.3d 1319, 1326-27 (Fed. Cir. 2002) (“We cannot agree that
Rheox only disclaimed coverage of compounds with solubility over 5.0g/100mL, but still
retained coverage of TSP or monocalcium orthophosphate. Rheox tried to claim TSP, but had to
delete all reference to it to gain patentability. The deletion of only two words: ‘triple
superphosphate [TSP]’ from original claim 18, now claim 8, is telling. If Rheox wanted only to
distinguish [the] O’Hara [reference] based on 5.0g/100mL solubility, it would not have deleted
TSP, one of its preferred embodiments, from the claims.”) (square brackets in original);
Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 220-21 (1940) (“It is a rule of patent
construction consistently observed that a claim in a patent as allowed must be read and
interpreted with reference to claims that have been cancelled or rejected and the claims allowed
cannot by construction be read to cover what was thus eliminated from the patent.”).
Defendants have nonetheless failed to demonstrate that the patentee attributed any
relevant significance to the deletion of “or shape.” See Dkt. No. 75, Ex. J, 1/15/2009 Reply to
Office Action of October 15, 2008 (pp. 68-82 of 203 of Ex. J). Defendants have likewise failed
to show any statement by the patentee that the deletion of “or shape” was made to overcome a
rejection or that “type” does not include “shape.” Instead, an equally plausible explanation is
- 26 -
that the patentee made the deletion after having decided that “shape” is entirely encompassed
within “type,” such that the recitation of “shape” was superfluous. On balance, the prosecution
history cited by Defendants does not rise to the level of a disclaimer. See Golight, Inc. v. WalMart Stores, Inc., 355 F.3d 1327, 1332 (Fed. Cir. 2004) (“Because the statements in the
prosecution history are subject to multiple reasonable interpretations, they do not constitute a
clear and unmistakable departure from the ordinary meaning of the term ‘rotating.’”); see also
Omega Eng’g, 334 F.3d at 1324 (“As a basic principle of claim interpretation, prosecution
disclaimer promotes the public notice function of the intrinsic evidence and protects the public’s
reliance on definitive statements made during prosecution.”) (emphasis added); id. at 1325-26
(“[F]or prosecution disclaimer to attach, our precedent requires that the alleged disavowing
actions or statements made during prosecution be both clear and unmistakable”) (emphasis
added); id. at 1330 (“[T]here is more than one reasonable basis for the amendment, rendering the
intent underlying the amendment ambiguous and thus negating the possibility of the disclaimer
being unmistakable.”).
Further, Claims 16 and 17 of the ‘370 Patent, which depend from independent Claim 15,
recite (emphasis added):
16. The assembly of claim 15 wherein at least one of the types of deformities is
prismatic.
17. The assembly of claim 15 wherein at least one of the types of deformities is
lenticular.
Although these claims depend from independent Claim 15 of the ‘370 Patent, which
evidently Plaintiff is not asserting against Defendants (see Dkt. No. 86), Claim 15 recites
(emphasis added): “the pattern of light extracting deformities on or in the at least one side has at
least two different types of light extracting deformities.” See Phillips, 415 F.3d at 1314 (“Other
- 27 -
claims of the patent in question, both asserted and unasserted, can also be valuable sources of
enlightenment as to the meaning of a claim term. Because claim terms are normally used
consistently throughout the patent, the usage of a term in one claim can often illuminate the
meaning of the same term in other claims.”) (citation omitted).
Claims 16 and 17 thus strongly suggest that a “prismatic” deformity, for example, is a
“type” of deformity. If the terms “prismatic” and “lenticular” refer to shape rather than to some
other characteristic, then Claims 16 and 17 weigh against Defendants’ proposal that the
“different type” limitation cannot be satisfied by differences in shape alone.
The word “lenticular” does not appear outside of the claims of the patents-in-suit, but the
specification illustrates “prismatic surfaces 23” in Figure 4b and “prismatic or other reflective or
refractive surfaces 25” in Figure 4d. See ‘547 Patent at 6:4-8. The accompanying description
further discloses:
In addition to or in lieu of the patterns of light extracting deformities 21 shown in
FIG. 4a, other light extracting deformities including prismatic surfaces,
depressions or raised surfaces of various shapes using more complex shapes in a
mold pattern may be molded, etched, stamped, thermoformed, hot stamped or the
like into or on one or more areas of the panel member. FIGS. 4b and 4c show
panel areas 22 on which prismatic surfaces 23 or depressions 24 are formed in the
panel areas, whereas FIG. 4d shows prismatic or other reflective or refractive
surfaces 25 formed on the exterior of the panel area. The prismatic surfaces,
depressions or raised surfaces will cause a portion of the light rays contacted
thereby to be emitted from the panel member. Also, the angles of the prisms,
depressions or other surfaces may be varied to direct the light in different
directions to produce a desired light output distribution or effect. Moreover, the
reflective or refractive surfaces may have shapes or a pattern with no specific
angles to reduce moiré or other interference effects.
‘547 Patent at 5:65-6:7 (emphasis added).
The best reading of the ‘370 Patent as a whole, particularly in light of the above-quoted
disclosures of “prismatic surfaces” and “prisms,” is that the term “prismatic” refers to shape.
- 28 -
Above-quoted Claims 16 and 17 therefore weigh against Defendants’ proposal that differences in
shape alone cannot satisfy the “different type” limitation.
Finally, at the July 30, 2014 hearing, Defendants re-emphasized the above-cited SchriberSchroth decision of the Supreme Court of the United States. 311 U.S. 211. First, ScriberSchroth predates Markman and Phillips and is therefore of somewhat reduced weight in light of
the substantial body of post-Markman claim construction law. 52 F.3d 967; 415 F.3d 1303.
Second, Schriber-Schroth involved an amendment that clearly changed the claim scope. See 311
U.S. at 220-23. Here, by contrast, the patentee’s deletion of “shape” from the limitation of
“different type or shape” did not clearly broaden or narrow the scope of the claims, particularly
in light of the reasonable interpretation, set forth above, that “shape” is entirely encompassed
within “type.” Because “shape” is not a disputed term, the Court need not make any explicit
finding in that regard, but the fact that the prosecution history lends itself to such a reading
provides support for finding Scriber-Schroth inapplicable.
In sum, based on Claims 16 and 17 and the specification, and based on the Court’s
rejection of Defendants’ prosecution disclaimer argument, above, Defendants’ proposed
construction is hereby expressly rejected. No further construction is necessary. See U.S.
Surgical, 103 F.3d at 1568; see also O2 Micro, 521 F.3d at 1362; Finjan, 626 F.3d at 1207.
The Court accordingly hereby construes “at least some of the light extracting
deformities on or in one of the sides are of a different type than the light extracting
deformities on or in the other side of the panel member” to have its plain meaning.
- 29 -
E. “an air gap therebetween” and “an air gap between the film, sheet, plate or substrate
and the panel member”
“an air gap therebetween”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
“a continuous layer of air between the separate
transparent sheet or film and the light emitting
area such that they have no direct physical
contact”
“an air gap between the film, sheet, plate or substrate and the panel member”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
“a continuous layer of air between the sheet,
film, plate or substrate and the panel member
such that they have no direct physical contact”
Dkt. No. 69 at 14; Dkt. No. 75 at 13. The parties submit that the first of these disputed terms
appears in Claim 1 of the ‘547 Patent. Dkt. No. 61 at 29. The parties further submit that the
second of these disputed terms appears in Claim 1 of the ‘194 Patent. Id. at 33.
Shortly before the start of the July 30, 2014 hearing, the Court provided the parties with
its preliminary proposal that these disputed terms have their plain meaning.
(1) The Parties’ Positions
Plaintiff argues that “[o]ne of ordinary skill in the art would have understood that an air
gap would exist between a film and a panel member even if they touch in some parts.” Dkt.
No. 69 at 16.
Defendants respond that “[t]he term ‘gap’ indicates separateness, not contact.” Dkt.
No. 75 at 13. Defendants submit, for example, that in Figure 5 of the patents-in-suit, “[i]f the
light emitting panel 14 touched the back reflector 26 or sheet or film 27, there would be no air
- 30 -
gap between them (indeed, no gap at all).” Id. at 14. Defendants also cite prosecution history
wherein the patentee distinguished the “Hou” reference, which Defendants submit disclosed an
intermittent air gap. Id. at 15. Finally, Defendants cite extrinsic dictionary definitions of “gap”
and “between,” quoted below. Id. at 16.
Plaintiff replies that Defendants are attempting to limit the claims to a preferred
embodiment. Dkt. No. 82 at 6. Moreover, Plaintiff argues, a spacer inserted in the middle of the
air gap, for example, would not eliminate the air gap but rather would give rise to two air gaps.
Id.
At the July 30, 2014 hearing, Defendants argued that if their proposed construction is not
adopted, then Plaintiff may interpret the “air gap” terms so narrowly so as to effectively read
them out of the claims. Plaintiff responded that it will not argue, for example, that the incidental
presence of one oxygen molecule between two layers amounts to an “air gap therebetween.”
(2) Analysis
Claim 1 of the ‘547 Patent is representative and recites (formatting modified; emphasis
added):
1. A backlight assembly comprising
a light emitting member having at least one light emitting area that emits
light that is internally reflected within the light emitting member,
a separate transparent sheet or film overlying the light emitting area with
an air gap therebetween,
a pattern of deformities on one side of the sheet or film having a width and
length that is quite small in relation to the width and length of the sheet or film,
the deformities varying at different locations on the sheet or film to direct
the light that is emitted by the[] light emitting member in different directions to
produce a desired light output distribution such that the light will pass through a
liquid crystal display with low loss.
The specification discloses “air gaps 30” between panel member 14 and back
reflector 26, as well as between panel member 14 and transparent sheet or film 27:
- 31 -
As best seen in the cross sectional vie of FIG. 5 a back refl
A
i
ew
5,
lector (includ
ding
tr
rans reflector 26 may be attached or positioned against one side of the panel
rs)
b
o
d
e
member 14 of FIG. 3 usin a suitable adhesive 28 or other m
m
ng
e
8
method in ord to
der
im
mprove light output effic
t
ciency of the panel assem
e
mbly 11 by r
reflecting the light
e
em
mitted from that side bac through the panel for emission th
ck
r
hrough the op
pposite
si * * * Mo
ide.
oreover, a tr
ransparent sh or film 2 may be a
heet
27
attached or positioned
ag
gainst the sid or sides of the panel member from which ligh is emitted using a
de
o
m
m
ht
d
su
uitable adhesive 28 (see FIG. 5) or other method in order to produce a d
o
d
desired
ef
ffect.
***
If adhesive 28 is used to adhere the back reflector 26 and/or s
f
8
a
r
sheet or film 27 to the
m
panel, the adh
hesive is preferably appl only alo ng the side e
lied
edges of the panel,
an if desired the end edg opposite the light tran
nd
d
ge
t
nsition areas 12, but not over the
en
ntire surface area or area of the pan because o the difficu in consis
e
as
nel
of
ulty
stently
ap
pplying a un
niform coatin of adhesiv to the pan
ng
ve
nel. Also, th adhesive c
he
changes
th internal cr
he
ritical angle of the light in a less con
ntrollable ma
anner than th air
he
gaps 30 (see FIG. 5) whic are forme between t respectiv panel surf
F
ch
ed
the
ve
faces and
th back refle
he
ector 26 and/ sheet or film 27 when only adher along the
/or
f
n
red
peripheral ed
dges. Additionally, longer panel mem
mbers are ac
chievable wh air
hen
gaps 30 are used. If adhe
u
esive were to be used ov the entire surface, the pattern
o
ver
e
e
of deformities could be ad
djusted to ac
ccount for th additional attenuation in the
he
l
n
li
ight caused by the adhesive.
b
‘547 Pate at 6:17-5 (emphasis added). At the heart of Defendants proposed c
ent
54
s
t
f
s’
construction is
ns
that if the is an “air gap” betwe two surfa
ere
r
een
faces, then th
here must be “no direct p
physical cont
tact”
between those surfac
ces. Figure 5 of the paten
nts-in-suit, w
which appea to illustra sheets tha are
ars
ate
at
eir
n
quoted passa is reprod
age,
duced here:
only in contact at the edges, as described in the above-q
The only othe disclosure of “air gap in the wr
T
er
es
ps”
ritten descrip
ption refer to bonding a light
o
source to a light trans
o
sition area so as to “elim
o
minate any ai gaps”:
ir
- 32 -
In accordance with another aspect of the invention, the light source is desirably
embedded, potted or bonded to the light transition area to eliminate any air gaps,
decrease surface reflections and/or eliminate any lens effect between the light
source and light transition area, thereby reducing light loss and increasing the
light output from the panel assembly.
***
The light sources 3 may be mechanically held in any suitable manner in slots,
cavities or openings 16 machined, molded or otherwise formed in the light
transition areas of the panel assemblies. However, preferably the light sources 3
are embedded, potted or bonded in the light transition areas in order to eliminate
any air gaps or air interface surfaces between the light sources and surrounding
light transition areas, thereby reducing light loss and increasing the light output
emitted by the light emitting panels.
‘547 Patent at 1:34-40 & 3:56-64 (emphasis added).
On balance, the specification does not support Defendants’ proposed “no direct physical
contact” limitation. In particular, although Figure 5 illustrates air gaps between sheets that are
joined only at their peripheral edges (see id. at 6:47-50), “patent coverage is not necessarily
limited to inventions that look like the ones in the figures.” MBO Labs., 474 F.3d at 1333.
Turning to the prosecution history, the patentee distinguished United States Patent No.
6,129,439 (“Hou”), stating:
In Hou et al (‘439) the reflecting means 18 (including the spacer 82 that separates
the microlenses 80 and microprisms 28) is optically coupled to the wave guide 16
(column 4, lines 14-17 and column 6, lines 61 and 62). Thus there is no air gap in
Hou et al between the light emitting area of a light emitting member and a
separate transparent sheet or film as claimed.
Dkt. No. 75, Ex. K, 8/5/2003 Reply to Office Action of May 8, 2003, at 11 (p. 14 of 28 of
Ex. K). Figure 3 of Hou is reproduced here:
- 33 -
As Plaintiff has pointed out, the paten did not argue that th is no air gap betwee
h
A
ntee
r
o
here
en
w
elements 82 and 26, which borde the appare empty spaces betwee microprism 28. Inste
ent
ms
er
en
ead,
ntee’s remark were direc to the absence of an air gap betw
the paten
ks
cted
a
n
tween elemen 16 and 18—
nts
element 18 including as shown in Figure 3, microprisms 28 as well as “optional adhesion
l
g,
i
m
s
ng
promotin layer 26.” See Hou at 4:18-19. Defendants’ a
”
t
D
argument tha the patent disclaime an
at
tee
ed
ent
intermitte air gap is therefore not a fair cha
aracterization of the pate
s
n
n
entee’s remar
rks. Althoug
gh
nts
Defendan emphasiz at the Ju 30, 2014 hearing that Hou’s layer 26 is disclo
osed as being
zed
uly
t
r
g
optional, Figure 3 of Hou include the layer 26. On bala
f
es
2
ance, Defend
dants have failed to
rate
a
g,
at
demonstr a clear and unmistak
imer. See Om
kable disclai
mega Eng’g 334 F.3d a 1324, 1325
5-26.
As to extrinsi evidence, Defendants have submit
A
nary definiti of “gap” as
ion
ic
tted a diction
meaning “an opening or a “susp
,
bster’s II Ne
g”
pension of co
ontinuity.” D No. 85, Ex. M, Web
Dkt.
ew
Riverside University Dictionary 519 (1984). Defendants have also s
e
submitted de
efinitions of
s
n”
“between as requirin separation. Id. at 169 (“In the int
sition separa
ating”); id.,
ng
9
terval or pos
N
Ex. N, Webster’s II Ninth New Collegiate Di
W
2
me,
ictionary 146 (1988) (“2 a : in the tim space, o
or
C
6
interval that separates; “[2] b : in an intermed
t
.
definitions d
diate space o interval”). The cited d
n
or
do
- 34 -
not affect the Court’s analysis, however, because the definitions do not address whether the
presence of a “gap” between two surfaces precludes any contact between those surfaces.
On balance, Defendants have failed to identify any persuasive reason for finding that a
point of contact defeats the existence of an air gap. Instead, as Plaintiff has argued, points of
contact may indeed facilitate maintaining an air gap. Defendants’ proposal of “continuous” is
likewise hereby expressly rejected because, for example, as Plaintiff has persuasively argued,
inserting a spacer across the middle of an air gap at best merely divides the air gap into two air
gaps.
In sum, Defendants have failed to support their proposed “continuous” and “no direct
physical contact” limitations with any persuasive intrinsic or extrinsic evidence. See Omega
Eng’g, 334 F.3d at 1322 (finding that a proposed “additional negative limitation finds no anchor
in the explicit claim language” and that there was no “express disclaimer or independent
lexicography in the written description that would justify adding th[e proposed] negative
limitation”); see also Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed.
Cir. 2012) (“The words of a claim are generally given their ordinary and customary meaning as
understood by a person of ordinary skill in the art when read in the context of the specification
and prosecution history.”).
Defendants’ proposed constructions are therefore hereby expressly rejected. No further
construction is necessary. See U.S. Surgical, 103 F.3d at 1568; see also O2 Micro, 521 F.3d
at 1362; Finjan, 626 F.3d at 1207.
The Court accordingly hereby construes “an air gap therebetween” and “an air gap
between the film, sheet, plate or substrate and the panel member” to have their plain
meaning.
- 35 -
F. “desired light output,” “desired light output distribution,” “desired light output
distribution or effect,” and “desired light output color or uniformity”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
“desired light output” means “a specific preidentified output”
“distribution,” “distribution or effect,” and
“color or uniformity” should be understood to
have their plain and ordinary meaning
Dkt. No. 69 at 16-17; Dkt. No. 75 at 16-17. The parties submit that the term “desired light
output” appears in Claim 1 of the ‘547 Patent, Claim 23 of the ‘194 Patent, and Claim 15 of the
‘177 Patent. Dkt. No. 61 at 43. Both sides propose that the constituent terms “distribution,”
“distribution or effect,” and “color or uniformity” should be given their plain and ordinary
meaning. See Dkt. No. 69 at 16-17; see also Dkt. No. 75 at 16-17; Dkt. No. 86 at 6.
Shortly before the start of the July 30, 2014 hearing, the Court provided the parties with
its preliminary proposal that “desired light output” has its plain meaning and that the remainder
of these disputed terms require no further construction.
(1) The Parties’ Positions
Plaintiff argues that “[t]he word ‘desired’ is a word easily understood by laypeople and
those of ordinary skill alike; it means what it says.” Dkt. No. 69 at 17. Plaintiff also argues that
the specification passages and extrinsic dictionary definition cited by Defendants do not support
their proposed construction. Id. at 18.
Defendants respond that according to the specification, “a specific output is pre-identified
in order for other structures to perform the function of the alleged invention.” Dkt. No. 75 at 17.
More specifically, Defendants argue that “the application is understood before manufacture and a
light output is pre-identified with an eye towards that application.” Id. Defendants conclude that
- 36 -
construction is necessary “to clarify that it [(‘desired’)] does not and cannot mean any resulting
output, which would render ‘desired’ meaningless.” Id. at 18.
Plaintiff replies that the patents-in-suit contain no lexicography that would warrant
limiting the disputed term as Defendants have proposed. Dkt. No. 82 at 7.
At the July 30, 2014 hearing, Defendants urged that Plaintiff’s interpretation of these
disputed terms improperly substitutes the concept of “desirable” for the term “desired.”
(2) Analysis
Claim 1 of the ‘547 Patent is representative and recites (formatting modified; emphasis
added):
1. A backlight assembly comprising
a light emitting member having at least one light emitting area that emits
light that is internally reflected within the light emitting member,
a separate transparent sheet or film overlying the light emitting area with
an air gap therebetween,
a pattern of deformities on one side of the sheet or film having a width and
length that is quite small in relation to the width and length of the sheet or film,
the deformities varying at different locations on the sheet or film to direct
the light that is emitted by the[] light emitting member in different directions to
produce a desired light output distribution such that the light will pass through a
liquid crystal display with low loss.
The specification uses the terms “as desired” and “desired light output” but does not
imbue those terms with any temporal requirement:
The light that is transmitted by the light transition area 4 to the transparent light
emitting panel 2 may be emitted along the entire length of the panel or from one
or more light output areas along the length of the panel as desired to produce a
desired light output distribution to fit a particular application.
‘547 Patent at 3:2-7 (emphasis added).
Defendants have cited Datamize, LLC v. Plumtree Software, Inc. for the statement that
“the term ‘desired’ . . . requires foreknowledge and even intent on the part of the person
practicing the invention.” 417 F.3d 1342, 1355-56 (Fed. Cir. 2005) (discussing Koito Mfg. Co.,
- 37 -
Ltd. v. Turn-Key-Tech, LLC, 381 F.3d 1142, 1150 n.2 (Fed. Cir. 2004), abrogated on other
grounds by Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120 (2014). Because Datamize
involved a different disputed term and a different patent-in-suit, Defendants’ citation of
Datamize is unpersuasive.
In sum, Defendants have failed to identify any persuasive intrinsic or extrinsic support for
finding that “desire” requires a determination made in advance. Defendants’ proposed
constructions are therefore hereby expressly rejected.
As to whether construction is required, the term “desired light output” appears only as
part of the larger disputed terms here at issue. On balance, the meaning of “desired light output”
is sufficiently clear in the context of those larger terms, and no further construction is necessary.
See U.S. Surgical, 103 F.3d at 1568; see also O2 Micro, 521 F.3d at 1362.
The Court accordingly hereby construes “desired light output,” “desired light output
distribution,” “desired light output distribution or effect,” and “desired light output color
or uniformity” to have their plain meaning.
G. “predetermined”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
“chosen in advance”
Dkt. No. 69 at 18; Dkt. No. 75 at 18. The parties submit that this disputed term appears in
Claims 1, 13, 29, and 47 of the ‘370 Patent, Claim 1 of the ‘177 Patent, and Claims 1 and 33 of
the ‘660 Patent. Dkt. No. 61 at 43.
Shortly before the start of the July 30, 2014 hearing, the Court provided the parties with
its preliminary proposal that this disputed term means: “chosen in advance.”
- 38 -
(1) The Parties’ Positions
Plaintiff argues that Defendants’ proposed construction “improperly imports a process
limitation into apparatus claims.” Dkt. No. 69 at 18. Plaintiff also submits that “[t]he words
‘chosen in advance’ or any variant thereof do not appear once in the specification of the patentsin-suit.” Id. at 19.
Defendants respond that their proposal is consistent with the specification as well as
dictionary definitions and legal precedent. Dkt. No. 75 at 18 (citing IGT v. Bally Gaming Int’l,
Inc., 659 F.3d 1109, 1118 (Fed. Cir. 2011) (affirming construction of “predetermined event” as
meaning “the occurrence of one or more conditions chosen in advance”)). Defendants also urge
that their proposal “properly recognizes that the patentee ‘chose to limit its claims with a scienter
requirement.’” Id. at 19 (citing Koito Mfg., 381 F.3d at 1150 n.2).
Plaintiff replies, as to the IGT case cited by Defendants, that Plaintiff “cannot be held [to]
a different term’s construction in a different case on different technology.” Dkt. No. 82 at 7.
Plaintiff also notes that none of the dictionaries cited by Defendants state that “predetermined”
means “chosen in advance.” Id. at 8.
At the July 30, 2014 hearing, Plaintiff submitted that the term “predetermined” is used
differently in differently claims. Plaintiff argued that Defendants’ proposed construction would
introduce ambiguity as to who “chooses” and “in advance” of what. Further, Plaintiff urged,
what is claimed as being “predetermined” simply follows from the laws of physics in
combination with other claim limitations. Plaintiff concluded that although “predetermined”
may refer to something being fixed or known, it does not require anything to be “in advance” of
anything else.
- 39 -
(2) Analysis
Claim 1 of the ‘177 Patent is representative and recites (formatting modified; emphasis
added):
1. A light emitting assembly comprising
a tray having a back wall and continuous side walls that form a hollow
cavity or recess completely surrounded by the side walls,
at least one light source located, mounted or positioned in the cavity or
recess, and
at least one sheet, film or substrate overlying the assembly for controlling
the light emitted from the assembly to fit a particular application,
wherein the tray acts as at least one of a back, side edge, and end edge
reflector and has one or more secondary flat, angled, faceted or curved reflective
or refractive surfaces to redirect at least a portion of the light emitted by the light
source in a predetermined manner within the cavity or recess.
The specification uses “predetermined” but does not define or explain the term:
Referring now in detail to the drawings, and initially to FIG. 1, there is
schematically shown one form of light emitting panel assembly 1 in accordance
with this invention including a transparent light emitting panel 2 and one or more
light sources 3 which emit light in a predetermined pattern in a light transition
member or area 4 used to make the transition from the light source 3 to the light
emitting panel 2, as well known in the art.
***
The deformities 21 may also be used to control the output ray angle distribution of
the emitted light to suit a particular application. For example, if the panel
assemblies are used to provide a liquid crystal display backlight, the light output
will be more efficient if the deformities 21 cause the light rays to emit from the
panels at predetermined ray angles such that they will pass through the liquid
crystal display with low loss.
***
[O]ne or more secondary reflective or refractive surfaces 38 may be provided on
the panel member 33 and/or tray 35 to reflect a portion of the light around one or
more corners or curves in a nonrectangular shaped panel member 33. These
secondary reflective/refractive surfaces 38 may be flat, angled, faceted or curved,
and may be used to extract a portion of the light away from the panel member in a
predetermined pattern.
***
- 40 -
[A] separate cavity or recess 56 may be provided in the panel member 51 for
receipt of a correspondingly shaped light transition area 57 having one or more
light sources 3 embedded, bonded, cast, insert molded, epoxied, or otherwise
mounted or positioned therein and a curved reflective or refractive surface 58 on
the transition area 57 and/or wall of the cavity or recess 56 to redirect a portion of
the light in a predetermined manner.
‘547 Patent at 2:62-3:2, 5:23-30, 7:3-10 & 7:48-55 (emphasis added).
As to extrinsic evidence, Defendants have cited dictionary definitions of “predetermined”
as meaning something determined “in advance,” “before it happens.” Dkt. No. 75, Ex. P,
Longman Dictionary of Contemporary English 1107 (1995) (“if something is predetermined, it
has been formed or arranged before it happens, and does not happen by chance”); id., Ex. Q,
Oxford Advanced Learner’s Encyclopedic Dictionary 704 (1992) (“predetermine”: “decide or fix
. . . in advance; prearrange”) (emphasis added); id., Ex. R, The American Heritage Dictionary
652 (3d ed. 1994) (“predetermine”: “To determine or decide in advance.”); id., Ex. I, The
American Heritage Dictionary of the English Language 1426 (3d ed. 1996) (“predetermine”:
“To determine, decide, or establish in advance.”).
Plaintiff has cautioned that “[c]ourts must generally take care to avoid reading process
limitations into an apparatus claim . . . because the process by which a product is made is
irrelevant to the question of whether that product infringes a pure apparatus claim.” Research
Corp. Techs., Inc. v. Microsoft Corp., 627 F.3d 859, 873 (Fed. Cir. 2010) (quoting Baldwin
Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1344 (Fed. Cir. 2008)) (ellipsis in original).
Defendants’ proposal of “chosen in advance,” however, is not a process limitation. Instead, in
above-quoted Claim 1 of the ‘177 Patent, for example, “predetermined” refers to the recited
elements being configured so as to redirect light in a particular manner.
- 41 -
Further, Plaintiff does not dispute that “predetermined” is a limitation, and in general all
limitations should be given meaning. See Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed.
Cir. 2006) (“[C]laims are interpreted with an eye toward giving effect to all terms in the claim.”).
On balance, although extrinsic dictionary definitions are given less weight than the
intrinsic evidence when construing claims (see generally Phillips, 415 F.3d 1303), here the
submitted definitions are essentially consistent with the claim language and the other intrinsic
evidence, set forth above. See Power-One, 599 F.3d at 1348 (“The terms, as construed by the
court, must ensure that the jury fully understands the court’s claim construction rulings and what
the patentee covered by the claims.”) (citation and internal quotation marks omitted).
As to the appropriate construction, however, Plaintiff properly objects that the word
“chosen” may raise issues as to who does the choosing. Likewise, the phrase “in advance” may
raise issues as to “in advance” of what. Nonetheless, the above-quoted dictionary definitions
suggest that “predetermined” means “fixed,” and at the July 30, 2014 hearing, Plaintiff was
amenable to such a construction, at least in principle. Further, such a construction gives meaning
to the prefix “pre-” by requiring a degree of immutability that the word “determined” might not
by itself demand.
The Court therefore hereby construes “predetermined” to mean “fixed.”
H. “posts, tabs, or other structural features that provide a mount”
The parties submit that this disputed term appears in Claims 1 and 7 of the ‘974 Patent.
Dkt. No. 61 at 86.
In their briefing, the parties reached agreement that this disputed term should be given its
“plain and ordinary meaning.” Dkt. No. 69 at 19; Dkt. No. 75 at 19. The parties’ agreement in
this regard is set forth in Appendix A to this Claim Construction Memorandum and Order.
- 42 -
I. “well defined optical elements or deformities” and “optical elements or deformities of
well defined shape”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
This term is indefinite under 35 U.S.C.
§ 112(2)
In the alternative only, if the Court determines
that this term should be construed:
“optical elements or deformities having
clearly distinguishable limits, boundaries, or
features”
Dkt. No. 69 at 21; Dkt. No. 75 at 22-23. The parties submit that the first of these disputed terms
appears in Claims 1, 16, and 31 of the ‘194 Patent. Dkt. No. 61 at 55. The parties further submit
that the second of these disputed terms appears in Claim 28 of the ‘194 Patent. Id. at 61.
Shortly before the start of the July 30, 2014 hearing, the Court provided the parties with
its preliminary proposal that “well defined” means “distinct.”
(1) The Parties’ Positions
Plaintiff argues that “[t]he specification gives one of ordinary skill in the art ample
guidance to understand what was meant by ‘well defined optical elements or deformities.’” Dkt.
No. 69 at 21. Plaintiff also argues that “Defendants’ contention that one of ordinary skill in the
art would be unable to distinguish a ‘well-defined deformity’ from a ‘poorly defined [deformity]’
fails to give any credit to the abilities of those of skill in the art.” Id. at 23. Further, Plaintiff
argues, during prosecution of the ‘194 Patent “the Examiner specifically discussed prior art that
he believed showed ‘well-defined optical elements.’” Id.
Defendants respond that “[t]he patent specification does not inform one of ordinary skill
in the art with ‘reasonable certainty’ as to what constitutes ‘well defined deformities’ versus just
‘deformities.’” Dkt. No. 75 at 23. Defendants note that Claim 1 of the ‘547 Patent recites
- 43 -
“deformities” without reciting “well defined.” Id. Defendants also note that the specification
passages relied upon by Plaintiff are directed to “deformities” and not to “well defined
deformities.” Id. at 23-24.
As to the prosecution history, Defendants respond that “the examiner’s statement that a
prior art reference disclosed a film, sheet, or plate with an example of well-defined optical
elements does not mean that one of ordinary skill would know the boundaries of what constitutes
‘well defined deformities.’” Id. at 24. Defendants further observe that “[e]very patent that a
court invalidates as indefinite is one that a Patent Office examiner allowed initially.” Id.
Finally, Defendants argue that “Plaintiff cannot supplement the deficient disclosure of the
patents in the context of optical technology with generic extrinsic dictionary evidence.” Id.
Plaintiff replies by reiterating its opening arguments and by noting that Defendants
“provide no expert opinion on whether one of ordinary skill . . . in the art would understand the
reasonable scope of these terms.” Dkt. No. 82 at 8-9.
At the July 30, 2014 hearing, Defendants reiterated their argument that “well defined”
requires an unknown degree of definition, thereby rendering the disputed term indefinite.
(2) Analysis
The Supreme Court of the United States has recently “read [35 U.S.C.] § 112, ¶ 2 to
require that a patent’s claims, viewed in light of the specification and prosecution history, inform
those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus, 134
S. Ct. at 2129. “A determination of claim indefiniteness is a legal conclusion that is drawn from
the court’s performance of its duty as the construer of patent claims.” Datamize, 417 F.3d
at 1347 (citations and internal quotation marks omitted).
- 44 -
Claims 1 and 28 of the ‘194 Patent are representative and recite (formatting modified;
emphasis added):
1. A light emitting assembly comprising
at least a light emitting panel member having a light emitting surface,
at least one light source,
at least one film, sheet, plate or substrate positioned near the light emitting
surface through which light from the panel member is emitted, and
an air gap between the film, sheet, plate or substrate and the panel
member,
wherein at least one surface of the film, sheet, plate or substrate has one or
more reflective or refractive surfaces, and
at least one of the reflective or refractive surfaces has well defined optical
elements or deformities for controlling the emitted light such that at least some of
the light is redirected to pass through a liquid crystal display with low loss.
***
28. A light emitting assembly comprising
at least one light source and
at least one transparent film, sheet, plate or substrate having top and
bottom surfaces,
a plurality of optical elements or deformities of well defined shape on or in
the top and bottom surfaces, at least some of the optical elements or deformities
on or in at least one of the top and bottom surfaces having one or more reflective
or refractive surfaces for controlling the emitted light such that at least some of
the light is redirected to pass through a liquid crystal display with low loss.
“When a word of degree is used[,] the district court must determine whether the patent’s
specification provides some standard for measuring that degree.” Datamize, 417 F.3d at 1351
(citation and internal quotation marks omitted). The specification discloses:
Print patterns of light extracting deformities 21 may vary in shapes such as dots,
squares, diamonds, ellipses, stars, random shapes, and the like, and are desirably
0.006 square inch per deformity/element or less. Also, print patterns that are 60
lines per inch or finer are desirably employed, thus making the deformities or
shapes 21 in the print patterns nearly invisible to the human eye in a particular
application thereby eliminating the detection of gradient or banding lines that are
common to light extracting patterns utilizing larger elements.
***
- 45 -
In addition to or in lieu of the patterns of light extracting deformities 21 shown in
FIG. 4a, other light extracting deformities including prismatic surfaces,
depressions or raised surfaces of various shapes using more complex shapes in a
mold pattern may be molded, etched, stamped, thermoformed, hot stamped or the
like into or on one or more areas of the panel member. FIGS. 4b and 4c show
panel areas 22 on which prismatic surfaces 23 or depressions 24 are formed in the
panel areas, whereas FIG. 4d shows prismatic or other reflective or refractive
surfaces 25 formed on the exterior of the panel area. The prismatic surfaces,
depressions or raised surfaces will cause a portion of the light rays contacted
thereby to be emitted from the panel member. Also, the angles of the prisms,
depressions or other surfaces may be varied to direct the light in different
directions to produce a desired light output distribution or effect. Moreover, the
reflective or refractive surfaces may have shapes or a pattern with no specific
angles to reduce moiré or other interference effects.
‘547 Patent at 5:41-50 & 5:65-6:16.
The best reading of the claims, in light of the above-quoted passages from the
specification, is that the patentee used “well defined” to mean “distinct.” See Phillips, 415 F.3d
at 1314 (“In some cases, the ordinary meaning of claim language as understood by a person of
skill in the art may be readily apparent even to lay judges, and claim construction in such cases
involves little more than the application of the widely accepted meaning of commonly
understood words.”). At the July 30, 2014 hearing, Plaintiff stated that it accepted and agreed
with the Court’s preliminary construction in this regard. Such a construction gives proper
meaning to “well defined” in the context of the claims by distinguishing deformities from, for
example, a gradual change in thickness (or some other property) across the entire claimed panel
or plate.
Such a construction also comports with the extrinsic dictionary definitions cited by
Plaintiff, which define “well-defined” as meaning “having clearly distinguishable limits or
boundaries.” Dkt. No. 69, Ex. C, The Merriam-Webster Dictionary 599 (1998); see id., Ex. D,
Merriam-Webster’s Collegiate Dictionary 1338 (10th ed. 2002) (“having clearly distinguishable
limits, boundaries, or features”).
- 46 -
Finally, as to the examiner’s use of the term “well defined” in the context of a prior art
rejection, the examiner did not explain the meaning of the term, so the examiner’s remark is of
limited weight. See Dkt. No. 75, Ex. S, 4/10/2007 Office Action at 3-4 (pp. 39-40 of 87 of
Ex. S).
Nonetheless, the examiner’s use of the term without objection provides further support
for finding that “well defined” has a readily understandable meaning in the context of the claims
and the specification. See Am. Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1359
(Fed. Cir. 1984) (patent examiners are “assumed . . . to be familiar from their work with the level
of skill in the art”), abrogated on other grounds, Therasense, Inc. v. Becton, Dickinson & Co.,
649 F.3d 1276 (Fed. Cir. 2011); see also PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299,
1304 (Fed. Cir. 2008) (citing American Hoist); Salazar v. Procter & Gamble Co., 414 F.3d 1342,
1347 (Fed. Cir. 2005) (“Statements about a claim term made by an Examiner during prosecution
of an application may be evidence of how one of skill in the art understood the term at the time
the application was filed.”).
The Court accordingly hereby construes “well defined” to mean “distinct,” and the
Court otherwise construes the terms “well defined optical elements or deformities” and
“optical elements or deformities of well defined shape” to have their plain meaning.
Defendants’ indefiniteness argument is hereby expressly rejected.
J. “a pattern of deformities on one side of the sheet or film having a width and length that
is quite small in relation to the width and length of the sheet or film”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
This term is indefinite under 35 U.S.C.
§ 112(2)
- 47 -
Dkt. No. 69 at 25; Dkt. No. 75 at 24. The parties submit that this disputed term appears in
Claim 1 of the ‘547 Patent. Dkt. No. 61 at 62.
(1) The Parties’ Positions
Plaintiff submits that “the term itself states that [the] pattern of deformities is quite small
‘in relation to the width and length of the sheet or film.’” Dkt. No. 69 at 25-26. Plaintiff also
cites disclosure in the specification as well as a rejection by the examiner during prosecution of
the ‘547 Patent. Id. at 26.
Defendants respond that the specification fails to provide the necessary guidance because
the example cited by Plaintiff, in which deformities are “desirably 0.006 square inch per
deformity/element or less” and “print patterns are 60 lines per inch or finer” (‘547 Patent
at 5:42-53), “never mentions a sheet or film,” “never uses the term ‘quite small,’ never states
whether 60 lines per inch would be ‘quite small,’ and never gives any standard for determining
whether something is ‘quite small.’” Dkt. No. 75 at 25 (citing, e.g., Advanced Display Techs. of
Tex., LLC v. AU Optronics Corp., No. 6:11-CV-11, -391, 2012 WL 2872121, at *12 (E.D. Tex.
July 12, 2012) (Davis, J.) (“The [patent-in-suit] . . . fails to provide a standard for measuring the
difference between a mere modulated surface and a highly modulated surface.”); id. at *14-*15
(similar as to “smooth bumps”)).
Moreover, Defendants argue, even if this disclosure could be relied upon, “a single
example does not inform one of ordinary skill in the art as to where ‘quite small’ begins and
ends.” Id. As to the prosecution history, Defendants respond that “[e]ven if the Examiner found
in [the] Nakamura [reference] something that he [(the examiner)] subjectively believed to be
‘quite small,’ that does not define the boundaries of ‘quite small’ to one of ordinary skill in the
art with the ‘reasonable certainty’ necessary to avoid the ‘zone of uncertainty’ that the Supreme
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Court found impermissible.” Id. at 26 (citing Nautilus, 134 S.Ct. at 2129-30). Defendants
conclude that “Plaintiff did not propose an alternative construction because it could not.” Dkt.
No. 75 at 20.
Plaintiff replies by reiterating its opening arguments and by noting that “Defendants cite
no expert opinion on whether one of ordinary skill . . . in the art would have understood the
reasonable scope of this term.” Dkt. No. 82 at 9.
(2) Analysis
Claim 1 of the ‘547 Patent recites (formatting modified; emphasis added):
1. A backlight assembly comprising
a light emitting member having at least one light emitting area that emits
light that is internally reflected within the light emitting member,
a separate transparent sheet or film overlying the light emitting area with
an air gap therebetween,
a pattern of deformities on one side of the sheet or film having a width and
length that is quite small in relation to the width and length of the sheet or film,
the deformities varying at different locations on the sheet or film to direct
the light that is emitted by the[] light emitting member in different directions to
produce a desired light output distribution such that the light will pass through a
liquid crystal display with low loss.
“When a word of degree is used[,] the district court must determine whether the patent’s
specification provides some standard for measuring that degree.” Datamize, 417 F.3d at 1351
(citation and internal quotation marks omitted). The specification discloses:
Print patterns of light extracting deformities 21 may vary in shapes such as dots,
squares, diamonds, ellipses, stars, random shapes, and the like, and are desirably
0.006 square inch per deformity/element or less. Also, print patterns that are 60
lines per inch or finer are desirably employed, thus making the deformities or
shapes 21 in the print patterns nearly invisible to the human eye in a particular
application thereby eliminating the detection of gradient or banding lines that are
common to light extracting patterns utilizing larger elements. Additionally, the
deformities may vary in shape and/or size along the length and/or width of the
panel members.
’547 Patent at 5:42-53.
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On one hand, during prosecution, the examiner used the phrase “quite small” when
referring to United States Patent No. 5,467,417 (“Nakamura”): “[F]igure 2 [of Nakamura] shows
that the deformities are quite small in relation to the width and length of the substrate.” Dkt.
No. 75, Ex. K, 5/5/2003 Office Action at 5 (p. 23 of 28 of Ex. K).
On the other hand, neither the examiner nor the patentee provided any indication of the
significance of the term “quite small” or of the difference between “quite small” and simply
“small.”
In the absence of any objective criteria for evaluating what on its face is a purely
subjective term, the disputed term is indefinite. See Nautilus, 134 S. Ct. at 2129 (“[C]laims,
viewed in light of the specification and prosecution history, [must] inform those skilled in the art
about the scope of the invention with reasonable certainty.”); see also Datamize, 417 F.3d
at 1350 (“The scope of claim language cannot depend solely on the unrestrained, subjective
opinion of a particular individual purportedly practicing the invention.”).
Moreover, at the July 30, 2014 hearing, a disagreement arose as to whether what is “quite
small,” in the disputed term, is it each deformity or is it instead the “pattern of deformities.” Plaintiff
submitted it had been operating under an understanding that the deformities are “quite small.”
As quoted above, the patent examiner evidently had the same understanding. Defendants
submitted that the disputed term, on its face, recites that the “pattern of deformities . . . is quite
small . . . .” Further exacerbating this confusion, the term “pattern of deformities” is itself a
disputed term, addressed above, that the parties have substantially agreed relates to the positions
of deformities. How the positions of deformities can have a size, such as “quite small,” is
unclear. In light of the indefiniteness finding already set forth in this subsection, above, the
Court need not attempt to resolve these issues that crystalized at the July 30, 2014 hearing, but
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this confusion is noteworthy as reinforcing the Court’s conclusion that the scope of the claim is
not “reasonabl[y] certain[].” Nautilus, 134 S. Ct. at 2129
The Court accordingly finds that “a pattern of deformities on one side of the sheet or
film having a width and length that is quite small in relation to the width and length of the
sheet or film” is indefinite and that, as a result, Claim 1 of the ‘547 Patent is invalid.
K. “pass through a liquid crystal display with low loss”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
This term is indefinite under 35 U.S.C.
§ 112(2)
In the alternative only, if the Court determines
that this term should be construed:
“efficiently conducts light through a liquid
crystal display”
Dkt. No. 69 at 27; Dkt. No. 75 at 26. The parties submit that this disputed term appears in
Claims 1, 16, and 28 of the ‘194 Patent, Claims 1 and 29 of the ‘370 Patent, and Claim 1 of the
‘547 Patent. Dkt. No. 61 at 67.
(1) The Parties’ Positions
Plaintiff argues that based on disclosure in the specification, “one of ordinary skill in the
art would have understood the scope of the term ‘passing through a liquid crystal display with
low loss’ to cover the situation when a more efficient light output is created by using deformities
to cause light rays to emit at predetermined ray angles from the backlight panel.” Dkt. No. 69
at 28. Plaintiff also submits that “[a]ny person of ordinary skill in the art of LCD backlights
would have been aware of the concept of low loss; without low loss, the backlight would
unnecessarily waste power and battery life and would not direct bright light through the LCD.”
Id. at 28 (citing ‘547 Patent at 1:64-67).
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Defendants respond that “the patent specification provides no standard and provides no
public notice as to what would constitute ‘low loss’ versus ‘moderate loss’ or ‘high loss.’” Dkt.
No. 75 at 27. Defendants submit that the passages relied upon by Plaintiff “do[] not mention
‘low loss,’ and shed[] no light on the issue of when loss is ‘low’ versus any other degree of loss.”
Id. Defendants further submit that the prosecution history provides no guidance. Id. at 28.
Plaintiff replies by reiterating its opening arguments and by noting that “Defendants
provide no expert testimony in support of their indefiniteness arguments” for this term. Dkt.
No. 82 at 10.
(2) Analysis
Claim 1 of the ‘547 Patent recites (formatting modified; emphasis added):
1. A backlight assembly comprising
a light emitting member having at least one light emitting area that emits
light that is internally reflected within the light emitting member,
a separate transparent sheet or film overlying the light emitting area with
an air gap therebetween,
a pattern of deformities on one side of the sheet or film having a width and
length that is quite small in relation to the width and length of the sheet or film,
the deformities varying at different locations on the sheet or film to direct
the light that is emitted by the[] light emitting member in different directions to
produce a desired light output distribution such that the light will pass through a
liquid crystal display with low loss.
As to the prosecution history of the ‘370 Patent, the term “low loss” originally appeared
in dependent claims. See Dkt. No. 75, Ex. J at pp. 185, 187 & 189 of 203. The patentee then
amended the independent claims to include the “low loss” limitation, but the patentee did so
without any relevant accompanying remarks. See id., 1/15/2009 Reply to Office Action of
October 15, 2008, at 2 & 9 (pp. 69 & 76 of 203 of Ex. J). The prosecution histories of the ‘547
Patent and the ‘194 Patent likewise provide no guidance. See id., Ex. K, 8/5/2003 Reply to
Office Action at 4 & 6 (pp. 7 & 9 of 28 of Ex. K) (introducing new claims reciting “low loss”);
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see also id., Ex. S, 7/9/2007 Reply to Office Action of April 10, 2007, at 1-8 (pp. 22-29 of 87 of
Ex. S).
Nonetheless, the specification reveals that the disputed term is a statement of an objective
of the claimed invention. The Background of the Invention states:
Light emitting panel assemblies are generally known. However, the present
invention relates to several different light emitting panel assembly configurations
which provide for better control of the light output from the panel assemblies and
for more efficient utilization of light, which results in greater light output from the
panel assemblies.
’547 Patent at 1:21-25 (emphasis added). The Summary of the Invention states:
The various light emitting panel assemblies of the present invention are very
efficient panel assemblies that may be used to produce increased uniformity and
higher light output from the panel members with lower power requirements, and
allow the panel members to be made thinner and/or longer, and/or of various
shapes and sizes.
Id. at 1:64-2:2 (emphasis added). The specification discloses:
The deformities 21 may also be used to control the output ray angle distribution of
the emitted light to suit a particular application. For example, if the panel
assemblies are used to provide a liquid crystal display backlight, the light output
will be more efficient if the deformities 21 cause the light rays to emit from the
panels at predetermined ray angles such that they will pass through the liquid
crystal display with low loss.
Id. at 5:23-30 (emphasis added).
Generally, “claims are interpreted with an eye toward giving effect to all terms in the
claim.” Bicon, 441 F.3d at 950. Nonetheless, “surplusage may exist in some claims.”
Decisioning.com, Inc. v. Federated Dep’t Stores, Inc., 527 F.3d 1300, 1312 n.6 (Fed. Cir. 2008);
accord ERBE Elektromedizin GmbH v. Canady Tech. LLC, 629 F.3d 1278, 1286 (Fed. Cir.
2010). In particular, “[a] ‘whereby’ clause that merely states the result of the limitations in the
claim adds nothing to the patentability or substance of the claim.” Tex. Instruments Inc. v. U.S.
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Int’l Trade Comm’n, 988 F.2d 1165, 1172 (Fed. Cir. 1993); accord Lockheed Martin Corp. v.
Space Sys./Loral, Inc., 324 F.3d 1308, 1319 (Fed. Cir. 2003).
Here, above-quoted Claim 1 of the ‘547 Patent recites that deformities are configured “to
produce a desired light output distribution.” The additional clause “such that the light will pass
through a liquid crystal display with low loss” merely states a result of the claim limitations and
adds nothing to the substance of the claim. Claims 1 and 29 of the ‘370 Patent are similar.
Likewise, in Claims 1, 16, and 28 of the ‘194 Patent, deformities are configured “such that at
least some of the light is redirected to pass through a liquid crystal display,” and the additional
phrase “with low loss” merely states a beneficial result of such a configuration.
The Court therefore concludes that the “low loss” term is analogous to a whereby clause
and does not limit the claims in which it appears. Cf. Tex. Instruments, 988 F.2d at 1172;
Lockheed, 324 F.3d at 1319. Based on this finding, the Court rejects Defendants’ indefiniteness
argument, and no further construction is necessary.
L. “to [suit/fit] a particular application”
Plaintiff’s Proposed Construction
Defendants’ Proposed Construction
Plain and ordinary meaning
This term is indefinite under 35 U.S.C.
§ 112(2)
Dkt. No. 69 at 29; Dkt. No. 75 at 28. The parties submit that this disputed term appears in
Claim 31 of the ‘194 Patent, Claim 5 of the ‘974 Patent, and Claims 1, 14, and 15 of the ‘177
Patent. Dkt. No. 61 at 76.
Shortly before the start of the July 30, 2014 hearing, the Court provided the parties with
its preliminary proposal that this disputed term has its plain meaning.
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(1) The Parties’ Positions
Plaintiff argues that the scope of “particular applications” is “LCD back lighting or
lighting in general, decorative and display lighting, automotive lighting, dental lighting,
phototherapy or other medical lighting, membrane switch lighting, and sporting goods and
apparel lighting or the like.” Dkt. No. 69 at 29-30 (quoting ‘194 Patent at 9:1-12).
Defendants respond: “Without any . . . standard in the specification to reference, the
infringement analysis would depend impermissibly on the subjective mindset of the accused
infringer to determine whether the accused product ‘suit[s]’ or ‘fit[s]’ the application.” Dkt.
No. 75 at 29. Defendants argue that the list of examples of applications disclosed in the
specification, relied upon by Plaintiff, is insufficient because “[n]either the specification nor the
relevant file histories identify a finite list of the possible applications that may be used, and in
any case Plaintiff cannot improperly read embodiments into the claims in an attempt to save
them.” Id. Moreover, Defendants argue, Plaintiff cannot overcome the “failure to provide any
standard to determine when the light is controlled in a way ‘suit[ed]’ or ‘fit[ted]’ to an
application, whether one of the examples Plaintiff points to or otherwise.” Id. at 29-30.
Plaintiff’s reply, in full, is as follows:
Defendants do not have any expert declarations to support their argument because
no expert would testify to a lack of understanding of the reasonable scope of this
term. The claims give specific examples of the particular applications for which
the patents-in-suit are intended. One of ordinary skill in the art would obviously
read the claims with those applications in mind, and thus would have understood
the scope of these terms with reasonable certainty.
Dkt. No. 82 at 10 (footnotes omitted).
(2) Analysis
Claim 31 of the ‘194 Patent is representative and recites (formatting modified; emphasis
added):
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31. A light emitting assembly comprising
at least a tray that forms a cavity or recess,
at least one light source positioned within the cavity or recess,
at least one film, sheet, plate or substrate positioned over the cavity or
recess through which light from the light source is emitted,
wherein at least one surface of the film, sheet, plate or substrate has one or
more reflective or refractive surfaces that are well defined optical elements or
deformities for controlling the light output ray angle distribution of the light
emitted to suit a particular application.
The specification discloses examples of applications:
The various light emitting panel assemblies disclosed herein may be used for a
great many different applications including for example LCD back lighting or
lighting in general, decorative and display lighting, automotive lighting, dental
lighting, phototherapy or other medical lighting, membrane switch lighting, and
sporting goods and apparel lighting or the like. Also the panel assemblies may be
made such that the panel members and deformities are transparent without a back
reflector. This allows the panel assemblies to be used for example to front light
an LCD or other display such that the display is viewed through the transparent
panel members.
‘547 Patent at 8:66-9:10 (emphasis added).
On balance, the claim language adequately explains that the recited apparatus must be
tailored for an application, regardless of what that application may be. Notably, neither side
truly contends that they do not understand this limitation. Instead, the crux of Defendants’
argument is that every device they manufacture would meet this limitation, and it is thus not
much of a limitation at all. Whether or not this language, as a practical matter, has a substantial
impact on the breadth of the claims is immaterial to the definiteness of the claims as long as the
scope is clear. See, e.g., Ultimax Cement Mfg. v. CTS Cement Mfg., 587 F.3d 1339, 1352.
Defendants have not identified any authority to the contrary.
Defendants’ indefiniteness argument is accordingly hereby expressly rejected. No further
construction is necessary. See U.S. Surgical, 103 F.3d at 1568; see also O2 Micro, 521 F.3d
- 56 -
at 1362. The Court accordingly hereby construes “to [suit/fit] a particular application” to
have its plain meaning.
CONCLUSION
The Court adopts the constructions set forth in this opinion for the disputed terms of the
patents-in-suit.
.
As further set forth above regarding the term “a pattern of deformities on one side of the
sheet or film having a width and length that is quite small in relation to the width and length of
the sheet or film,” the Court finds that Claim 1 of the ‘547 Patent is invalid as indefinite.
The parties are ordered that they may not refer, directly or indirectly, to each other’s
claim construction positions in the presence of the jury. Likewise, the parties are ordered to
refrain from mentioning any portion of this opinion, other than the actual definitions adopted by
the Court, in the presence of the jury. Any reference to claim construction proceedings is limited
to informing the jury of the definitions adopted by the Court.
SIGNED this 3rd day of January, 2012.
SIGNED this 26th day of August, 2014.
____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
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APPENDIX A
Parties’ Agreement
Term
“deformities”
(’547 Patent, Claims 1, 2 & 41;
’194 Patent, Claims 1, 16, 28 & 31;
’660 Patent, Claims 1 & 33;
’974 Patent, Claims 1, 7 & 13;
’370 Patent, Claims 1, 4, 8, 13, 29 & 47;
’816 Patent, Claim 1;
’177 Patent, Claim 14)
“posts, tabs, or other structural features that
provide a mount”
“any change in the shape or geometry of a
surface and/or coating or surface treatment that
causes a portion of the light to be emitted”
Plain and ordinary meaning
(‘974 Patent, Claims 1 & 7)
Dkt. No. 61 at 2; Dkt. No. 75 at 19; Dkt. No. 86 at 2.
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