Equistar Chemicals, LP et al v. Westlake Chemical Corporation

Filing 63

MEMORANDUM AND OPINION, and ORDER re 51 Markman Hearing. Signed by Magistrate Judge K. Nicole Mitchell on 6/23/2015. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
EQUISTAR CHEMICALS, LP, et al.
vs.
WESTLAKE CHEMICAL
CORPORATION

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CIVIL ACTION NO. 6:14CV68

MEMORANDUM OPINION AND ORDER
Plaintiffs Equistar Chemicals, LP and MSI Technology, LLC allege infringement of U.S.
Patent No. 7,064,163 (the “ ‘163 Patent”), by Defendant Westlake Chemical Corporation. The
undersigned conducted a Markman hearing on January 29, 2015.

This Memorandum Opinion

construes the disputed claim terms in the ‘163 Patent.
BACKGROUND
The ‘163 Patent, entitled “Polyolefin-based Adhesive Resins and Method of Making
Adhesive Resins” relates to a method of making polyolefin-based adhesive resins, which are
used for bonding to or bonding together polyolefins and polar materials. ‘163 Patent, col. 1, ll.
16–19. The ‘163 patent discloses a process to make adhesive resins by mixing an un-pelletized
polyolefin with a graft polymer in a heated mixing device. The Abstract of the ‘163 patent
recites:
A method for producing polyolefin-based adhesive resins having improved
physical and optical properties and the improved adhesive resins thereby
produced, eliminates at least one reheating and melting of polyolefin polymer,
comprises polymerizing a monomer composition of at least one olefin, mixing the
polymerization product without pelletizing the polyolefin polymer with at least
one graft polymer or copolymer in a heated mixing device at a temperature above
the melting point of the components, and recovering the resulting polyolefinbased adhesive resin.
1

Claim 1 of the ‘163 patent states:
A method for producing improved polyolefin-based adhesive resin, comprising:
a. polymerizing a monomer composition of at least one olefin to a pelletizable
polyolefin;
b. mixing with shear mixing, while minimizing cross-linking, at least 50% by weight
based on the polyolefin-based adhesive resin of the polymerization product
following polymerization without first pelletizing the pelletizable polyolefin with
at least one graft polymer or copolymer in a heated mixing device at a room
temperature above the melting point of the components; and
c. recovering the resulting polyolefin-based adhesive resin.
APPLICABLE LAW
“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)). The Court examines a patent’s intrinsic evidence to
define the patented invention’s scope. Id. at 1313–1314; Bell Atl. Network Servs., Inc. v. Covad
Commc’ns Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). Intrinsic evidence includes the
claims, the rest of the specification and the prosecution history. Phillips, 415 F.3d at 1312–13;
Bell Atl. Network Servs., 262 F.3d at 1267. The Court gives claim terms their ordinary and
customary meaning as understood by one of ordinary skill in the art at the time of the invention.
Phillips, 415 F.3d at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir.
2003).
Claim language guides the Court’s construction of claim terms. Phillips, 415 F.3d at
1314. “[T]he context in which a term is used in the asserted claim can be highly instructive.” Id.
Other claims, asserted and un-asserted, can provide additional instruction because “terms are
normally used consistently throughout the patent.” Id. Differences among claims, such as
additional limitations in dependent claims, can provide further guidance. Id.
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“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995), aff’d, 517
U.S. 370, 116 S.Ct. 1384, 134 Led.2d 577 (1996)). “[T]he specification ‘is always highly
relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to
the meaning of a disputed term.’” Id. (quoting Vitronics Corp.v. Conceptronic, Inc., 90 F.3d
1576, 1582 (Fed. Cir. 1996)); Teleflex. Inc. v.Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed.
Cir. 2002). In the specification, a patentee may define his own terms, give a claim term a
different meaning that it would otherwise possess, or disclaim or disavow some claim scope.
Phillips, 415 F.3d at 1316. Although the Court generally presumes terms possess their ordinary
meaning, this presumption can be overcome by statements of clear disclaimer. See SciMed Life
Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1343–44 (Fed. Cir. 2001). This
presumption does not arise when the patentee acts as his own lexicographer. See Irdeto Access,
Inc. v. EchoStar Satellite Corp., 383 F.3d 1295, 1301 (Fed. Cir. 2004).
The specification may also resolve 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, Inc., 299 F.3d at 1325. For
example, “[a] claim interpretation that excludes a preferred embodiment from the scope of the
claim ‘is rarely, if ever, correct.” Globetrotter Software, Inc. v. Elam Computer Group Inc., 362
F.3d 1367, 1381 (Fed. Cir. 2004) (quoting Vitronics Corp., 90 F.3d at 1583). But, “[a]lthough
the specification may aid the court in interpreting the meaning of disputed language in the
claims, particular embodiments and examples appearing in the specification will not generally be
read into the claims.” Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir.
1988); see also Phillips, 415 F.3d at 1323.

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The prosecution history is another tool to supply the proper context for claim
construction because a patentee may define a term during prosecution of 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.”).

The well-

established doctrine of prosecution disclaimer, “preclud[es] patentees from recapturing through
claim interpretation specific meanings disclaimed during prosecution.” Omega Eng’g Inc. v.
Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003). The prosecution history must show that the
patentee clearly and unambiguously disclaimed or disavowed the proposed interpretation during
prosecution to obtain claim allowance. Middleton Inc. v. 3M Co., 311 F.3d 1384, 1388 (Fed. Cir.
2002); see also Springs Window Fashions LP v. Novo Indus., L.P., 323 F.3d 989, 994 (Fed. Cir.
2003) (“The disclaimer . . . must be effected with ‘reasonable clarity and deliberateness.’”)
(citations omitted)). “Indeed, by distinguishing the claimed invention over the prior art, an
applicant is indicating what the claims do not cover.” Spectrum Int’l v. Sterilite Corp., 164 F.3d
1372, 1378–79 (Fed. Cir. 1988) (quotation omitted).

“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.”
Omega Eng’g, Inc., 334 F.3d at 1324.
Although, “less significant than the intrinsic record in determining the legally operative
meaning of claim language,” the Court may rely on extrinsic evidence to “shed useful light on
the relevant art.” Phillips, 415 F.3d at 1317 (quotation omitted). Technical dictionaries and
treatises may help the Court understand the underlying technology and the manner in which one
skilled in the art might use claim terms, but such sources may also provide overly broad
definitions or may not be indicative of how terms are used in the patent. Id. at 1318. Similarly,

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expert testimony may aid the Court in determining the particular meaning of a term in the
pertinent field, but “conclusory, unsupported assertions by experts as to the definition of a claim
term are not useful.” Id. Generally, extrinsic evidence is “less reliable than the patent and its
prosecution history in determining how to read claim terms.” Id.
DISCUSSION
I.

Agreed Terms

The parties have agreed to the construction of the following terms:
Term

Agreed Construction

“pelletizable”

“capable of being formed into pellets”

“shear mixing”

“employing extrusion equipment to mechanically
generate significant frictional shear forces such that
the components melt and combine”

II.

Disputed Terms
a. “while minimizing cross-linking, . . . following polymerization without
first pelletizing the pelletizable polyolefin” (Claims 1 and 17)
Term

Plaintiffs’
Proposed Construction
See entire disputed phrase.

Defendant’s
Proposed Construction
“reducing to the smallest extent
or degree of cross-linking”

“following
polymerization”

See entire disputed phrase. [“in
an in line process”]

“next in order after
polymerization”

“without first pelletizing
the pelletizable
polyolefin”

See entire disputed phrase.

“polyolefin in the form of
powder, granules, fluff, slurry,
molten, virgin, and other nonpellet form”

“minimizing crosslinking”

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“while minimizing crosslinking, … following
polymerization without
first pelletizing the
pelletizable polyolefin”

“while minimizing crosslinking,…in an in line process
without first pelletizing the
pelletizable polyolefin”

See constituent terms.

Plaintiffs assert that the phrase should be construed as a single, connected phrase and
should include the insertion of “in an in line process” for the phrase “following polymerization.”
Defendant seeks to break it down into three separate terms.
Regarding “minimizing cross-linking,” the dispute revolves around the meaning of
“minimizing.” Defendant argues that “minimizing cross-linking” means that all or nearly all
crosslinking should be removed from the claimed process. Plaintiffs assert that elimination of
crosslinking is impossible and the specification teaches that the disclosed process results in “less
crosslinking.”

See ‘163 Patent, col. 4, ll 1–4 (“Polyolefin-based adhesive resins produced

according to the invention have less degradation, less crosslinking and better (whiter) color than
conventional polyolefin-based adhesive resins having more extensive heat histories.”).
Defendant’s construction of “minimizing cross-linking” excludes the preferred embodiment of
the ‘163 Patent and is inconsistent with the specification.
Defendant further argues that the prosecution history shows the Applicant analogizes
“minimizes” with “eliminates,” “avoids,” and “absence of.”

ECF 43, p. 13.

The Court

disagrees. Instead, the Applicant proposed, but did not adopt, alternative amendments to the
claims instead of the word “minimizing,” such as requiring an “absence of cross-linking” and
“avoiding cross-linking.” See, e.g., January 20, 2005 Amendment and Response at p. 10. That
the Applicant chose “minimizing” as opposed to “absence of cross-linking” and “avoiding crosslinking” supports Plaintiffs’ position that it should not be limited in that manner and that these
terms have different meanings. In contrast to Defendant’s proposal, “minimizing” does not
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require or mean “reducing to the smallest extent or degree.” “Minimizing” is a simple term that
is readily understood to a jury.
The disagreement concerning “following polymerization” revolves around whether “in an
in line process” should be added. Plaintiffs argue that the specification is consistent with an inline process and includes a disclaimer limiting it to an in-line process. Specifically, Plaintiffs
point to two places in the specification:
•

“The process of the invention reduces the number of melt extrusion and
pelletizing steps for the ungrafted polyolefin portion of the adhesive from
two to one. The only melt extrusion and pelletizing seen by the polyolefin
occurs in the reactor’s existing in-line mixing device after synthesis of the
polyolefin, after it is blended with the graft copolymer.” ‘163 Patent, col.
3, ll. 58–62.

•

“The LLDPE polymerization product with a density of 0.918 g/cc was
then discharged from the reactor in the form of a powder and fed into an
accumulator bin in line with the reactor . . .” ‘163 Patent, col. 5, ll. 60–63.

According to Plaintiffs, rather than having multiple production lines, the invention puts the
process together into an in-line process. Plaintiffs concede, however, that “in-line” does not
appear in the claims or in the prosecution history. Markman Hr’g, Tr. 22:23–24, Jan. 29, 2015,
ECF 52.
The portions of the specification cited by Plaintiffs do not amount to a clear disclaimer
that would require a departure from the plain meaning of the term. See CCS Fitness, Inc. v.
Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002). The claims also do not reveal that the
alleged invention is directed only to an in-line process. Indeed, while the term “in-line” appears
twice in the specification, the specification never uses the phrase “in-line process” and there is no
clear meaning or guidance concerning the meaning of “in-line” in the specification. Much of
Plaintiffs’ arguments and figures in the claim construction briefing and hearing on this issue have
no support in the patent. Plaintiffs’ construction seeks to import a perceived limitation from the
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specification into the claims. “[I]t is improper to read a limitation from the specification into the
claims.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 903 (Fed. Cir. 2004) (citing
Arlington Indus., Inc. v. Bridgeport Fittings, Inc., 345 F.3d 1318, 1327 (Fed. Cir. 2003); Gart v.
Logitech, Inc., 254 F.3d 1334, 1343 (Fed. Cir. 2001)). The Court must “interpret claims ‘in view
of the specification’ without unnecessarily importing limitations from the specification into the
claims.” E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003); accord Tex.
Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1204–05 (Fed. Cir. 2002). Therefore, the
Court rejects Plaintiffs’ insertion of the phrase “in an in line process.” Defendant’s construction
of “next in order after polymerization” is also rejected, as it attempts to place a meaning on the
easily understood term of “following,” but also impermissibly requires it to be “next in order.”
“Following” is an easily understood term and does not need construction.
The final portion of the phrase is “without first pelletizing the pelletizable polyolefin.”
The plain meaning here is that pellets are not made. The alleged invention eliminates the first
cooling step of making pellets. The parties do not dispute that “without first pelletizing the
pelletizable polyolefin” can mean powder.

Defendant’s concern is that the jury will not

understand that it includes powder. Defendant’s proposed construction, however, which includes
“other non-pellet forms” is unnecessary and merely provides examples of non-pellets. The term
should be given its plain and ordinary meaning.
The Court rejects Plaintiffs’ and Defendant’s proposed constructions. Instead, the Court
construes “while minimizing cross-linking, . . . following polymerization without first pelletizing
the pelletizable polyolefin” to have its plain meaning. Because this resolves the dispute between
the parties, the term requires no further construction. 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

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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.”) (citing U.S. Surgical, 103 F.3d at 1568).
b. “improved” (Claims 1 and 17)
Term
“improved”

Plaintiffs’
Proposed Construction
No construction required; plain
and ordinary meaning

Defendant’s
Proposed Construction
“having better optical
properties”

Plaintiffs argue that this term, appearing only in the preamble to the claims, needs no
construction because the preamble of the asserted claims is not limiting, the specification
contains no special definition or lexicography that changes the plain and ordinary meaning of
this term, and the term “improved” does not affect the claim language. More specifically,
Plaintiffs submit that it “does not recite essential structure or give necessary meaning to the
remainder of the claim language.” ECF 38, p. 22. At the hearing, Plaintiffs did not dispute that
the term includes optical improvements, but asserted that it does not have to be an optical
improvement. It could be any of the other factors mentioned in the patent, including physical
improvement, optical improvement, less expense, and less degradation. Markman Hr’g Tr.
65:22–25, Jan. 29, 2015, ECF 52; see also ‘163 Patent, col. 4, ll. 1–9.
Defendant asserts that “improved” is limiting because it describes and provides an
antecedent basis for the polyolefin-based adhesive resin in Claims 1 and 17.

The term

“polyolefin-based adhesive resin” appears in both the preamble and the body of Claims 1 and 17.
Defendant further argues that its construction of “improved” as “having better optical properties”
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is consistent with the specification. Defendant points to four places in the specification that refer
to better optical properties:
•

“A method for producing polyolefin-based adhesive resins having improved
physical and optical properties and the improved adhesive resins thereby
produced …” ‘163 Patent, Abstract.

•

“Another object of this invention is to provide a process for producing polyolefinbased adhesive resins that improves properties, such as optical properties in thin
films of the produced adhesive resin as compared to polyolefin-based adhesive
resins produced by heretofore conventional processes.” ‘163 Patent, col. 2, ll. 33–
38.

•

“Polyolefin-based adhesive resins produced according to the invention have less
degradation, less crosslinking and better (white) color than conventional
polyolefin-based adhesive resins having more extensive heat histories.” ‘163
Patent, col. 4, ll. 1–4.

•

after describing five tests, the specification explains “[t]he above tests
demonstrate the improvements in the reduction of imperfections and degradation
upon producing polyolefin-based adhesive resins in accordance with the process
of the present invention, as well as the improvement in the optical properties of
the films of the adhesive, as compared to polyolefin-based adhesive resins
produced according to heretofore known conventional methods.” ‘163 Patent,
col. 8, ll. 11–18.

Defendant stated at the hearing that it does not oppose adding physical properties to the meaning
of the term, but argued that the meaning requires an improvement to “at least optical properties.”
Markman Hr’g Tr. 61:23–24, 65:22, Jan. 29, 2015, ECF 52.
Whether a preamble will be treated as a limitation of the claims is “determined by the
facts of each case in light of the overall form of the claim, and the invention as described in the
specification and illuminated in the prosecution history.” Applied Materials, Inc. v. Advanced
Semiconductor Materials Am., Inc., 98 F.3d 1563, 1572-73 (Fed. Cir. 1996). A preamble is
generally found to be limiting if it is “ ‘necessary to give life, meaning, and vitality’ to the
claims.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999)
(quoting Kropa v. Robie, 38 CCPA 858, 187 F.2d 150, 152 (1951)). In addition, “dependence on
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a particular disputed preamble phrase for antecedent basis may limit claim scope because it
indicates a reliance on both the preamble and claim body to define the claimed invention.”
Catalina Marketing Int’l, Inc. v. Coolsavings, com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002)
(citing Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 620
(Fed. Cir. 1995). If the patentee “defines a structurally complete invention in the claim body and
uses the preamble only to state the purpose or intended use for the invention,” however, the
preamble is not limiting. Rowe v. Dror, 112 F.3d 473, 478 (Fed. Cir. 1997).
The use of “improved” in the preamble is not a limitation. Nothing in the body of the
claim refers to or clarifies the term “improved.” In addition, there is nothing showing that the
term is necessary or provides essential structure or life to the claim. Instead, the body of the
claim defines a structurally complete invention. The preamble merely sets forth the intended
purpose of the claimed method and should not be given a limiting meaning.
Even if the preamble and/or the term “improved” is a limitation, Defendant’s arguments
fare no better. In addition to optical improvements, the specification discloses multiple nonoptical improvements such as physical and cost improvements. For example, the specification
discloses adhesive resins with “improved physical . . . properties,” “less degradation,” “less
crosslinking,” “less gels,” a “reduction of imperfections,” and that are less expensive to
manufacture. ‘163 Patent, Abstract; col. 4, ll. 1-9; col. 4, ll. 8-10. Another object of the alleged
invention that the specification discloses is “to provide an improved process for producing
polyolefin-based adhesive resin that reduces the time, energy and equipment required to produce
the adhesives as compared to conventional processes for such production.” ‘163 Patent, col. 2,
ll. 39–43. The specification does not support construction of the term “improved” to mean only

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“having better optical properties” or “at least optical properties” as proposed by Defendant. The
Court rejects Defendant’s construction as an impermissible limitation.
The term “improved” is simple and readily understood to the jury and it should have its
plain and ordinary meaning. Because this resolves the dispute between the parties, the term
requires no further construction. See U.S. Surgical, 103 F.3d at 1568; see also O2 Micro, 521
F.3d at 1362.
c. “adhesive resin” (Claims 1, 2 and 17)
Term
“adhesive resin”

Plaintiffs’
Proposed Construction
No construction required; plain
and ordinary meaning

Defendant’s
Proposed Construction
“tie-layer resins used to bond
materials together that would
otherwise have poor adhesion to
each other”

Plaintiffs argue that this term is self-evident to a person of ordinary skill in the art as it is
used in the asserted claims and it does not need construction.

Plaintiffs contend that the

specification and prosecution history did not deviate from this meaning or provide another
definition. According to Plaintiffs, the ‘163 Patent describes conventional adhesive resins, but
does not limit the invention solely to conventional resins. Plaintiffs deny that the prosecution
history gives rise to a clear, unmistakable disclaimer that would limit the claimed invention to a
sub-class of tie-layer adhesive resins. Plaintiffs submit that a person of ordinary skill in the art
would understand the claims to cover a variety of adhesive resins.
Defendant argues that the prosecution history reveals that the applicant repeatedly
disclaimed the prior art that did not have the adhesive properties of the alleged invention for
bonding to dissimilar materials, and stated that the disclosed adhesive resin in the invention was

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directed to tie layer adhesives. Defendant asserts that Plaintiffs cannot claim a broader scope
here than was represented to the USPTO to overcome prior art.
At the hearing, the parties focused the argument on whether the term is limited to resins
bonding materials together or can include bonding to a single substrate, such as a coating. The
claim language and specification support finding that “adhesive resin” contemplates both
bonding to materials and bonding materials together.

The specification provides that

“[c]onventional polyolefin-based adhesive resins for bonding to or bonding together polyolefins
and polar materials such as nylon, ethylene vinyl alcohol copolymer, metals and the like, are
made using multiple step processes.” ‘163 Patent, col. 1, ll. 16–19 (emphasis added). The
specification also mentions that “[t]he polyolefin-based, grafted copolymer adhesive resin
obtained by the process of the present invention is particularly useful in a variety of applications,
particularly for bonding to materials or bonding materials together . . .” ‘163 Patent, col. 4, ll.
10–13 (emphasis added).

The independent claims do not provide clarification but several

dependent claims describe bonding the adhesive to one substrate. See ‘163 Patent, col. 9, ll. 13–
15 (“14. A fabrication process comprising bonding a polyolefin-based adhesive resin producing
according to claim 1 to a substrate.”); col. 10, ll. 29–31 (“29. A fabrication process comprising
bonding a polyolefin-based adhesive resin produced according to claim 17 to a substrate.”); and
col. 10, ll. 41–43 (“31. A fabrication process comprising bonding a polyolefin-based adhesive
resin produced according to claim 28 to a substrate.”). Overall, the specification and claims
support Plaintiffs’ position.
Defendant’s proposed construction requires dual substrates bonding together and
forecloses resins bonding to a single substrate. Defendant’s construction is not consistent with
the specification or claims.

The dependent claims and the specification both support a

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conclusion that “adhesive resin” includes bonding to a single substrate in addition to bonding
materials together. Defendant’s arguments are largely based on the prosecution, and Defendant
points to several places in the prosecution history stating that the resins are used to bond
“materials together that otherwise would have poor adhesion to each other.” ECF 43, p. 27. The
prosecution history, however, does not expressly disclaim the use of single substrate bonds.
Further, Defendant’s proposed term of “tie-layer” is not found in the claims or specification, has
an unclear meaning, and is not necessary. That the prosecution history suggests an adhesive may
be used to bond materials that similar or dissimilar or references a tie-layer adhesive does not
expressly disclaim the use of single substrate bonds as argued by Defendant. To establish a
prosecution history disclaimer, the prosecution history must show that the patentee clearly and
unambiguously disclaimed or disavowed the proposed interpretation during prosecution to obtain
claim allowance. Middleton Inc. v. 3M Co., 311 F.3d at 1388.

There is no such disclaimer in

this instance to foreclose single substrate bonds.
The Court therefore construes “adhesive resin” to mean “resins for bonding to materials
or bonding materials together.”
d. “heated mixing device”
Term
“heated mixing device”

Plaintiffs’
Proposed Construction
No construction required; plain
and ordinary meaning

Defendant’s
Proposed Construction
“mixing device with heat
applied during mixing”

Plaintiffs argue that this term needs no construction because “heated mixing device” is
evident to one of ordinary skill in the art and the intrinsic record did not deviate from the
ordinary meaning of the term. Plaintiffs assert that a person of ordinary skill would understand
the ‘163 Patent to encompass a heated mixing device where the necessary heat may have already
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been applied prior to mixing or where the heat is generated during the mixing itself. The
specification discloses, for example, that a “heated extruder” may be used to accomplish the
claimed heated mixing and that, in a preferred embodiment in the form of test runs, “LLDPE
powder and the graft copolymer were heated to a temperature of approximately 400–450 degrees
F and subjected to shear mixing.” ‘163 Patent at 5:67–6:3. Plaintiffs contend that Defendant’s
construction, requiring heat applied during mixing, improperly narrows the meaning of the
phrase.
Defendant argues that Plaintiffs’ construction improperly renders claim language
superfluous, ignores the context in which the term is used, and improperly rewrites the claims.
Plaintiffs’ construction that encompasses heat generated during the shear mixing process would
render “heated mixing device” superfluous because the claim specifies both shear mixing and a
heated mixing device. Defendant contends that the specification teaches that heat must be
applied during mixing. Specifically, Defendant points to three places in the specification:
•

“The pelletized polymer or polymers are next mixed with graft and heated to
above the melting point of the components under high shear. A heated extruder
may be used to accomplish the latter step, and the melt mixed product can be
recovered in the form of pellets.” ‘163 Patent, col. 1, ll 60–64 (emphasis added).

•

The process comprises polymerizing an olefin . . . and mixing the polymerization
product with a graft and either with or without another component . . . in a heated
extruder or other heated mixing device at a temperature above the melting point
of the components to obtain the desired grafted polyolefin-based adhesive resin.
‘163 Patent, col. 3, ll. 13–25 (emphasis added).

•

“The process comprises polymerizing an olefin, mixture of olefins or mixture of
olefins and other monomers, where preferably the olefin or olefins have from
about 2 to 8 carbon atoms, for example by polymerizing at least one olefin
monomer mixture using a conventional reactor process, and mixing the
polymerization product with a graft and either with or without another
component, such as an adhesion promoting resin, preferably elastomer, and more
preferably a thermoplastic elastomer, or a metallocene catalyzed polyolefin, in a
heated extruder or other heated mixing device at a temperature above the melting

15

point of the components to obtain the desired grafted polyolefin-based adhesive
resin.” ‘163 Patent, col. 3, ll. 12–17 (emphasis added).
Claims 1 and 17 recite: “b. mixing with shear mixing, while minimizing cross-linking, at
least 50% by weight based on the polyolefin-based adhesive resin of the polymerization product
following polymerization without first pelletizing the pelletizable polyolefin with at least one
graft polymer or copolymer in a heated mixing device at temperature above the melting point of
the components.” ‘163 Patent, col. 8, ll. 32–38; col. 9, ll. 44–50. The use of the term “heated
mixing device” in the context of the claims does not describe heated materials passing through a
mixing device or heat generated by shear mixing. Instead, the use of that term implies active
heat applied to the mixing device.
Construing the term as including heat that has already been applied to the materials prior
to entry into the device or that is generated merely by mixing would render “heated” in “heated
mixing device” unnecessary. The well-established rule is that “claims are interpreted with an
eye toward giving effect to all terms in the claims.” Bicon, Inc. v. Straumann Co., 441 F.3d 945,
950 (Fed. Cir. 2006). The claim refers to a “heated mixing device,” which strongly implies that
not all mixing devices are heated. See Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir.
2005) (en banc).

Further, the fact the claim separately requires shear mixing supports

Defendant’s construction that a heated mixing device is not the result of simply mixing.
However, the Court is not convinced that Defendant’s proposed requirement of applied heat
during mixing is necessary, as the claim language potentially allows a situation where the heated
mixing device is heated prior to entry of materials into the device.
Plaintiffs’ assertion that the plain and ordinary meaning of “heated mixing device”
includes heat applied prior to the mixing device or heat generated by mixing is not supported by

16

the claim language or the specification. The Court therefore construes “heated mixing device” to
mean “mixing device with applied heat.”
CONCLUSION
For the foregoing reasons, the Court hereby ADOPTS the claim constructions as set forth
above.

For ease of reference, the Court’s claim interpretations are set forth in a table in

Appendix A.

So ORDERED and SIGNED this 23rd day of June, 2015.

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APPENDIX A

Terms, Phrases, or Clauses

Court’s Construction

“while minimizing cross-linking, … following
polymerization without first pelletizing the
pelletizable polyolefin”

plain meaning

“improved”

plain meaning

“adhesive resin”

“resins for bonding to materials or bonding
materials together”

“heated mixing device”

“mixing device with applied heat”

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