Waterton Polymer Products USA et al v. Edizone

Filing 39

MEMORANDUM DECISION AND ORDER ON CLAIM CONSTRUCTION. Signed by Judge Ted Stewart on 12/20/13. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
WATERTON POLYMER PRODUCTS
USA, INC. (formerly known as
WATERTON POLYMER PRODUCTS
USA, LLC), and WATERTON POLYMER
PRODUCTS, LTD.,

MEMORANDUM DECISION AND
ORDER ON CLAIM CONSTRUCTION

Plaintiffs,
v.

Case No. 2:12-CV-17 TS

EDIZONE, LLC,

District Judge Ted Stewart
Defendant.

This matter is before the Court for claim construction. The parties request construction
of the following terms: longitudinal axis, length, buckling, elastomeric material, comprising, and
copolymer. The Court held a Markman hearing on December 16, 2013. Having considered the
arguments of the parties and the materials provided, the Court construes the terms as follows.
I. BACKGROUND
Plaintiffs Waterton Polymer Products USA, Inc. (formerly known as Waterton Polymer
Products USA, LLC), and Waterton Polymer Products, Ltd. (collectively “Plaintiffs”) brought
this action against Defendant EdiZONE, LLC (“Defendant”) seeking a declaratory judgment of
patent non-infringement. Defendant filed a counterclaim seeking a determination of
infringement. The parties have now submitted briefs seeking construction of the above-listed
claims.

1

II. STANDARD OF REVIEW
The Supreme Court, in Markman v. Westview Instruments, Inc.,1 held that claim
construction is a matter exclusively within the province of the court.2 Claim terms are generally
given their ordinary and accustomed meaning as understood by one of ordinary skill in the art.3
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. In such circumstances,
general purpose dictionaries may be helpful.4
A patentee may choose, however, “to be his own lexicographer and use terms in a manner other
than their ordinary meaning, as long as the special definition of the term is clearly stated in the
patent specification or file history.”5 “Thus, second, it is always necessary to review the
specification to determine whether the inventor has used any terms in a manner inconsistent with
their ordinary meaning.”6 “Third, the court may also consider the prosecution history of the
patent, if in evidence.”7
III. DISCUSSION
A.

LONGITUDINAL AXIS AND LENGTH
The parties first seek construction of the terms “longitudinal axis” and “length” as used in

Defendant’s Patent Nos. 5,749,111 (the “‘111 Patent”) and 6,026,527 (the “‘527 Patent”).
1

517 U.S. 370 (1996).

2

Id. at 372.

3

Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).

4

Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc).

5

Vitronics Corp., 90 F.3d at 1582.

6

Id.

7

Id.

2

Plaintiffs propose a definition of “longitudinal axis” as an axis corresponding to the greatest
dimension of the column and “length” as the greatest dimension of the column. Defendant
proposes a definition of “longitudinal axis” as the axis that extends along the length of the
column from the column top to the column bottom or from one end of the column to the other
end of the column, and not across the column from a column wall to the opposite column wall
even if that measurement across the column is greater than the measurement of the length of the
column from the top (one end) to the bottom (other end) and “length” as the vertical dimension
or height, and not the width, of a column when it is in the position it is typically used to support a
load.
The term “axis” is defined as an imaginary straight line in the center of an object.8
“Longitudinal” is defined as running lengthwise.9 Thus, the definition of “longitudinal axis” is a
straight line running lengthwise through the center of an object. As set forth above, both parties
seek to add language to the definition of “longitudinal axis” to correspond with their respective
definitions of “length.” Thus, to properly construe “longitudinal axis,” the Court must determine
how to construe “length.”
Plaintiffs rely on a dictionary definition to define “length” as the greatest dimension of
the column. Plaintiffs argue that length should simply be given its common sense meaning.
However, the term “length” is not so easily defined. For example, length can be “the extent of a
garment in a vertical direction when worn.”10 In such situations, the length of an article of
clothing may not, in fact, be the greatest dimension of that object. Rather, the length is tied to

8

New Oxford American Dictionary 114 (3d ed. 2010) (“An imaginary straight line passing
through the center of a symmetrical solid . . . .”).

9

Id. at 1030.

10

Id. at 999.

3

the orientation of the object. Further, the Court must consider the term “length” as it is used
here, which concerns the length of a column. Defendant correctly points out that the customary
meaning of the term length when referring to a column is its vertical measurement, not its width.
As the general use of the term “length” does not conclusively resolve this question, it is helpful
to turn to the patent specifications.
The specifications provide that the columns have a longitudinal axis “which is preferred
to be oriented in the invented cushion parallel to the direction of the longitudinal axis of a
column which should be the direction that the cushioned object sinks into the cushion.”11 As a
result, the column top is at the side of the cushion that contacts the cushioned object and the
column bottom faces the ground.12 When a cushioned object is placed on top of the cushioning
material, the column walls buckle outward allowing “the column . . . to decrease in length along
its longitudinal axis.”13
This language supports a conclusion that the length of the longitudinal axis corresponds
to a vertical measurement, or height, rather than width. For example, when the pressure is
applied from the top of a vertical column, the column will buckle outwardly resulting in a
shortened length along the longitudinal axis. If length corresponded to a horizontal axis because
it was the longest dimension, the length of the axis would not diminish when pressure is applied
from the top. As will be discussed, the claim language specifically directs that the cushioned
object contact the top of the cushioning element. In the case of a horizontal axis, pressure would
need to be applied from the sides, not the top, to allow the longitudinal axis to decrease in length.
Thus, the specifications support Defendant’s proposed construction.
11

‘111 Patent col. 11, l. 3–6; ‘527 Patent col. 13, l. 55–58.

12

‘111 Patent col. 11, l. 7–9; ‘527 Patent col. 13, l. 59–61.

13

‘111 Patent col. 11, l. 32–33; ‘527 Patent col. 14, l. 17–18.

4

The language of the claims also compels the conclusion that the length of the longitudinal
axis corresponds to its vertical dimension. The ‘111 Patent and ‘527 Patent generally cover gel
cushioning media. The media has a top, bottom, and outer periphery. The cushioning media will
deform under the compressive force of a cushioned object. The cushioning media is itself made
up of “columns having a longitudinal axis along its length.”14 The columns have a wall that
defines a column interior and each column has a top and a bottom.
The cushioning elements are designed “to have a cushioned object placed in contact with
said cushioning element top.”15 Where the cushioned object meets the cushioned element is
important in determining the definitions of “longitudinal axis” and “length” because the patents
state that the “column’s longitudinal axis is located generally parallel to the direction of a
compressive force exerted on the cushioning element by a cushioned object in contact with said
column top.”16
Under this language, the cushioned object will be placed upon the top of the cushioning
media. The column axes are generally parallel to the compressive force exerted on the
cushioning element by the cushioned object. Thus, it only makes sense that the longitudinal axis

14

‘111 Patent col. 32, l. 48–49; ‘527 Patent col. 74, l. 16–17; ‘527 Patent col. 76, l. 64–65.

15

‘111 Patent, col. 32, l. 52–54; see also ‘527 Patent col. 74, l. 20–21 (“wherein the cushioning
element is adapted to have a cushioned object placed in contact with said top”); ‘527 Patent col.
77, l. 1–3 (“wherein the cushioning element is adapted to have a cushioned object placed directly
or indirectly in contact with said top”).

16

‘111 Patent, col. 32, l. 58–61; ‘527 Patent, col. 74, l. 24–29 (“at least one of said columns is
positioned within said cushioning element such that said column axis is positioned generally
parallel to the direction of a compressive force exerted on the cushioning element by a cushioned
object in contact with said cushioning medium”); ‘527 Patent col. 77, l. 6–11 (“a plurality of said
columns are positioned within said cushioning medium such that said column axes are positioned
generally parallel to the direction of a compressive force exerted on the cushioning element by a
cushioned object in contact with said cushioning medium”).

5

of the columns goes from the top of the column to the bottom of the column, because that would
be parallel to the force being applied from the top.
Plaintiffs argue that Defendant’s definition is not supported by the prosecution history
and that Defendant specifically disclaimed any such definition when it attempted to distinguish
the ‘527 Patent from the Bickett Patent. The Bickett Patent relates to rubber pads for use
primarily as sleeping pads or mattresses. During reexamination of the ‘527 Patent, Defendant
stated that the structure of the Bickett Patent “would not meet the elements and limitations of an
amended claim 1.”17
Defendant stated that “[t]he columns of Bickett extend longitudinally in a horizontal
direction through the Bickett pad from one side thereof toward another, opposite side thereof.
The columns of Bickett do not extend longitudinally between the top and bottom surfaces of the
Bickett pad.”18 Plaintiffs interpret this to mean that Defendant “admitted the underlying premise
that the term ‘longitudinal axis’—as set forth in the claim language—is the axis for the longer
dimension of whatever hollow object or column is at issue.”19 By doing so, Plaintiffs argue that
Defendant “cannot now argue for a contrary claim that the claimed ‘longitudinal axis’ could be
an axis for one of the shorter dimensions of a hollow object or column.”20 Plaintiff goes on to
state that “[h]ad this contrary position been articulated by the patentee during prosecution, then
Bickett would have been invalidating prior art and EdiZONE’s patents could not have issued.”21

17

Docket No. 32, Ex. I at 18.

18

Id.

19

Docket No. 33, at 7 (emphasis omitted).

20

Id. (emphasis omitted).

21

Id. at 8.

6

Plaintiffs read too much into the statements Defendant made concerning the Bickett
patent during reexamination. At no point did Defendant limit the definition of longitudinal axis
to the longest dimension. Rather, Defendant distinguished the columns in the Bickett Patent
from its own columns because those columns ran horizontally instead of vertically.
Further, Plaintiffs assert that Defendant’s patents would not have issued because Bickett
would have been invalidating prior art. However, the difference in the orientation of the
columns was only one of the reasons Defendant put forward in distinguishing the ‘527 Patent
from the Bickett Patent. Defendant also argued that “while a lateral axis of the Bickett columns
may be defined that extends between the top and the bottom of the Bickett pad, this lateral axis is
not straight since the columns of Bickett are specifically shaped so that each has a tendency to
bend or buckle under a compressive load.”22 Defendant pointed to language from the Bickett
patent explaining that the upper half of the Bickett column is slightly inclined from the vertical,
while the lower half of each Bickett column is similarly inclined in the opposite direction.
Defendant explained that “the axis of the columns of Bickett that extends between the top and
the bottom of the Bickett pad are bent at the middle of the Bickett columns, and do not have ‘a
straight longitudinal axis extending along its length from [the] top to [the] bottom of [the Bickett
pad] in an undeformed condition,’ as recited in amended independent claim 1.”23 Based upon
this, it is not necessarily true that Defendant’s patent would not have issued but for its earlier
distinction.
In light of the foregoing, the Court will adopt Defendant’s definitions of “longitudinal
axis” and “length” with slight modifications. The Court construes “longitudinal axis” as the
straight line running along the length of the column vertically from the column top to the column
22

Docket No. 32, Ex. I at 18.

23

Id.

7

bottom or from one end of the column to the other end of the column. “Length” is construed as
the vertical dimension or height of a column when it is in the position it is typically used to
support a load. These definitions are consistent with the ordinary use of these terms, as well as
the specifications, claim language, and prosecution history.
B.

BUCKLING
The parties also seek construction of the term “buckling” as used in the ‘111 Patent and

the ‘527 Patent. The Court previously construed this term in Edizone, LC v. Cloud Nine, LLC.24
In that case, the Court construed “buckling” as “the planned failure or collapse of a column wall
resulting in redistribution or lessening of the load carried by the column.”25
Plaintiffs seek to refine this construction such that “buckling” is a significant distortion in
the length of the column wall resulting in redistribution or lessening of the load carried by the
column.26 Defendant also seeks a slight modification of the Court’s previous construction.
Defendant seeks to construe “buckling” as the planned failure or collapse of a column wall
resulting in redistribution or lessening of the load carried by the column when the pressure is
applied to the top of the column wall.
Plaintiffs argue that their construction is supported by the patent specification. Plaintiffs
point to language in the specification that states: “the column walls buckle radially outward
orthogonally from the longitudinal axis of the column. This permits the column 1101 to decrease
in total length along its longitudinal axis and thereby conform to the . . . cushioned object.”27
Nothing in this language, however, requires a “significant distortion.” Rather, as Defendant

24

No. 1:04-CV-117 TS, Docket No. 365 (D. Utah Sept. 21, 2006).

25

Id. at 6.

26

Docket No. 33, at 9–10.

27

‘111 Patent col. 11, l. 30–34.

8

correctly argues, buckling can occur in varying degrees. Figure 3 of the ‘111 Patent provides an
excellent example where some columns have buckled to a significant degree, while others have
buckled to a much lesser degree.
Plaintiffs further argue that buckling should be distinguished from collapsing. Plaintiffs
rely on language from the ‘111 Patent specification, which states that
[i]f a cushioned object travels a substantial distance sideways in the cushion, the
hollow portion of the columns may be eliminated by opposing column walls
collapsing to meet each other rather than either substantially compressing the
cushioning media or by buckling as depicted in FIGS. 13 and 14. This would not
provide the desired cushioning effect as it would result in collapsed columns
within the cushion (rather than buckled columns).28
This language does not support Plaintiffs’ proposed construction. This language
discusses an instance where pressure is being applied to the columns from the side, as opposed to
pressure being applied from the top of the column. In an instance where pressure is applied from
the side, the columns may collapse, rather than buckle. This is not the same as when pressure is
applied from the top. As Defendant notes, “[c]olumns are not designed to support side pressure
and simply compress into a pile of gel.”29
Plaintiffs also cite to Jakks Pacific, Inc. v. Imperial Toy Corp.,30 to support their proposed
construction. The court in Jakks construed “buckling” “to require a significant distortion of the
length of the column wall when pressure is applied to the top of the column. That is, an almost
imperceptible yielding to pressure from the top of the column wall would not constitute
buckling.”31

28

Id. col. 10, l. 43–52.

29

Docket No. 37, at 10.

30

No. CV 05-3228 SVW (C.D. Cal. Jan. 26, 2006).

31

Docket No. 32 Ex. F, at 24.

9

This language is not inconsistent with the Court’s earlier construction. While the court in
Jakks stated that buckling required a “significant distortion,” it was quick to explain that this
required something more than “an almost imperceptible yielding.” The Jakks court seemed to
recognize that buckling can occur in varying degrees. This Court’s prior construction is
consistent with this limitation.
Based on the above, the Court will construe “buckling” as the planned failure or collapse
of a column wall resulting in redistribution or lessening of the load carried by the column when
the pressure is applied to the top of the column wall.
C.

ELASTOMERIC MATERIAL, COMPRISING, AND COPOLYMER
The parties seek construction of three terms in Defendant’s Patent No. 6,797,765 (the

“‘765 Patent”). The basic dispute is whether the ‘765 Patent discloses a product claim or
whether it discloses a process or product-by-process claim. The definitions proposed by the
parties reflect this disagreement.
Plaintiffs suggest that “elastomeric material” should be defined as an elastomeric
composition of matter (i.e., not an elastomeric product produced by a process). Plaintiffs define
“comprising” as containing the matter listed thereafter (i.e., the enumerated plasticizer,
copolymer, and gel) and, potentially, other matter. Finally, Plaintiffs would define “copolymer”
as the copolymer contained in the elastomeric material (i.e., not the copolymer ingredient to the
elastomeric material).
Defendant argues that “elastomeric material” should be defined as matter that yields
elastically to pressure. Defendant defines “comprising” as including the limitations that follow
without excluding other elements. Defendant defines “copolymer” as the limiting copolymer
ingredient enumerated in the claim before and after it is mixed with the limiting plasticizer.

10

Turning first to “elastomeric material,” Plaintiff argues that this is a product, not a
process and not a product produced by a process. However, the Court finds that the ‘765 Patent
discloses more than merely a product, it discloses either a process or a product created by a
process.
Claim 1 of the ‘765 Patent describes a process for creating the resultant elastomeric
material. The elastomeric material comprises a plasticizer and a SEEPS triblock copolymer.
The elastomeric material is created when “the plasticizer and copolymer are mixed to form a
gel.”32 As will be discussed in more detail below, the claim terms require that the “triblock
copolymer has a measurable percent elongation at break” and that the “plasticizer tends to
increase the present elongation at break of said SEEPS triblock copolymer.”33 Further, the
“triblock copolymer has a rigidity measurable on the Gram Bloom scale” and the “plasticizer
tends to decrease the Gram Bloom rigidity of said SEEPS triblock copolymer.”34 All of this
language indicates that the patent covers something more than the final product as asserted by
Plaintiffs.
Further, Plaintiffs’ proposed definition adds language which is not contained in the patent
claims or specification. Plaintiffs define “elastomeric material” as “an elastomeric composition
of matter.” The word “composition” is not contained in the claim and is not supported by the
language of the patent.
Defendant defines “elastomeric material” as matter that yields elastically to pressure.
This definition is consistent with the plain and ordinary meaning of the words and the claim
language. Therefore, the Court will adopt this definition.
32

‘765 Patent col. 7, l. 56–57.

33

Id. col. 8, l. 3–6.

34

Id. col. 8, l. 7–10.

11

The Court next considers the term “comprising.” “‘Comprising’ is a term of art used in
claim language which means that the named elements are essential, but other elements may be
added and still form a construct within the scope of the claim.”35 Plaintiffs’ proposed definition
is similar, but contains limiting language that is not supported by the claim language. Plaintiffs
argue that comprising should be construed as “containing the matter listed thereafter (i.e., the
enumerated plasticizer, copolymer, and gel).” This language is problematic because, under the
terms of Claim 1, the plasticizer and copolymer are mixed to form a gel. Plaintiffs’ definition
would require the gel, which is the resulting elastomeric material after the plasticizer and
copolymer are combined, be included as an element of the final product. Thus, the resulting gel
would have to be added to itself to create the elastomeric material. Such a limitation is not
present in the patent and would render the patent language nonsensical. Therefore, Plaintiffs’
definition must be rejected.
Defendant’s definition is consistent with the use of “comprising” as a term of art.
Therefore, Defendant’s definition will be adopted.
Turning to the term “copolymer,” the parties disagree as to whether it is the copolymer
that is contained in the elastomeric material or whether it is the copolymer ingredient before and
after it is mixed with the plasticizer. The language of the specification and claim support the
latter.
The language from Claim 1 provides for an “elastomeric material comprising” “a
plasticizer” and “a SEEPS triblock copolymer” “wherein the plasticizer and copolymer are
mixed to form a gel”—the resulting elastomeric material. This language suggests that the
copolymer is not just a component of the final product, as Plaintiffs argue, but is also an

35

Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997).

12

ingredient. The mixing of the copolymer with the plasticizer is what creates the elastomeric
material.
Other language in the patent specification supports this conclusion. For example, the
Detailed Description states that “gels may be fabricated using an A-B-A triblock copolymer
plasticized with a plasticizing agent, such as an oil.”36 The Detailed Description goes on to
discuss a specific SEEPS triblock copolymer, Septon 4044, which has a lower molecular weight
and lower solution viscosity compared to other triblock copolymers. When Septon 4044 was
combined with a plasticizer, it was discovered that the resulting gel, referred to as the 4044 gel,
had certain properties providing advantages over other inventions in the field. Thus, the
specification discusses both the properties of the copolymer prior to its combination with the
plasticizer and the benefits of the gel after the copolymer is combined with the plasticizer.
The claims themselves discuss both the properties of the copolymer before it is combined
with the plasticizer and the properties after. For example, Claim 1 requires that the copolymer
have an “average molecular weight of about 125,000 to 175,000.”37 This is the same molecular
weight range that Septon 4044 possesses. Similarly, the copolymer must have a certain solution
viscosity, which Septon 4044 also contains.
Claim 1 goes on to state that when the copolymer is combined with the plasticizer, “the
plasticizer tends to increase the percent elongation at break of said SEEPS triblock copolymer”
and “tends to decrease the Gram Bloom rigidity of said SEEPS triblock copolymer.”38 Thus, the
claim language requires the copolymer to have certain properties before it is mixed with the
plasticizer and also discusses how the copolymer changes when mixed with the plasticizer.
36

‘765 Patent col. 1, l. 66–col. 2 l. 1.

37

Id. col. 7, l. 63–64.

38

Id. col. 8, l. 5–11.

13

Plaintiffs’ proposed construction, limiting copolymer to the copolymer contained in the
elastomeric material and not the copolymer ingredient, ignores the claim language and the
information contained in the specification.
Plaintiffs rely on Exxon Chemical Patents, Inc. v. Lubrizol Corp.,39 in support of their
position that the ‘765 Patent discloses a product claim.
The patent at issue in Exxon was
directed to [a] lubricating oil composition suitable as a crankcase lubricant in
internal combustion engines comprising (1) a major amount of lubricating oil, (2)
an ashless dispersant (i.e. one that neither contains nor is complexed with metal)
in specified amounts of about 1 to 10 wt. %, (3) from about 0.01 to 5.0 parts by
weight of oil soluble ZDDP, (4) 5 to 500 parts per million by weight of added
copper in the form of an oil soluable copper compound, and (5) magnesium or
calcium detergent.40
Exxon argued that its patent claimed “a ‘recipe’ of ingredients that extends to any product
made by using the claimed ingredients, even if the product itself—as a result of chemical
complexing—fails to include one of the claimed ingredients.”41 The trial court agreed with this
interpretation and instructed the jury accordingly. The Federal Circuit disagreed.
The Federal Circuit found that “Exxon’s claims are drawn to a specific product which has
particularly defined ingredients. Nothing in the claims, the specification, or the prosecution
history suggests that Exxon’s claims are not drawn to a product that contains particular
ingredients.”42

39

64 F.3d 1553 (Fed. Cir. 1995).

40

Id. at 1556 (internal quotation marks omitted).

41

Id. at 1555.

42

Id. at 1557.

14

The court noted that the title of the patent was “Lubricating Oil Compositions Containing
Ashless Dispersant, [ZDDP], Metal Detergent and a Copper Compound.”43 The court further
noted that the text of the patent specification included “over twenty references to ‘containing’ in
reference to the ingredients claimed in the composition.”44 Finally, the court stated that during
the prosecution history “Exxon repeatedly emphasized that the genius of its invention lay in the
previously unknown synergism of this material [copper] with ZDDP in the presence of an ashless
dispersant of the type described in the application . . . .”45
In sum, a review of the claims, the specification, and the prosecution history all
point to the conclusion that Exxon claims a product, not merely a recipe for
making whatever product results from the use of the recipe ingredients. This
conclusion respects that which is claimed, namely a chemical composition. The
chemical composition exists at the moment the ingredients are mixed together.
Before creation of the mixture, the ingredients exist independently. The particular
proportions specified in the claims simply define the characteristics of the claimed
composition.46
Based upon this, the court held that “Exxon’s claims are to a composition that contains
the specified ingredients at any time from the moment at which the ingredients are mixed
together.”47 Under this interpretation, the jury should “have been asked to find whether Exxon
had proved by a preponderance of the evidence that Lubrizol’s products at some time contained
each of the claimed recipe ingredients in the amounts specifically claimed.”48
Plaintiffs argue that under Exxon, “the term ‘comprising’ refers to actually containing the
matter listed thereafter (the enumerated plasticizer, copolymer and resulting gel), and the term

43

Id.

44

Id. (internal quotation marks omitted).

45

Id.

46

Id. at 1557–58.

47

Id. at 1558.

48

Id.

15

‘copolymer’ refers to the copolymer contained in the elastomeric material (not the copolymer
ingredient used to make the elastomeric material).”49 This is so, Plaintiffs argue, “because the
claim, correctly construed as a product claim, encompasses the resultant material composition,
not the ingredients to that material.”50
Exxon is distinguishable from this case. While in Exxon, the claims, the specification,
and prosecution history all pointed to the conclusion that Exxon was claiming a product, the
evidence discussed above describes not only a final product, but also the steps and material
required to create that product. As it relates specifically to the copolymer, the claim and
specification describe the properties of that copolymer ingredient before it is mixed with the
plasticizer and how it changes after it is combined. Therefore, the Court must reject Plaintiffs’
arguments.
Based on the above, the Court construes copolymer as the limiting copolymer ingredient
enumerated in the claim before and after it is mixed with the limiting plasticizer.
IV. CONCLUSION
The Court construes the terms at issue as follows:
Longitudinal Axis - the straight line running along the length of the column vertically from the
column top to the column bottom or from one end of the column to the other end of the column
Length - the vertical dimension or height of a column when it is in the position it is typically
used to support a load
Buckling - the planned failure or collapse of a column wall resulting in redistribution or
lessening of the load carried by the column when the pressure is applied to the top of the column
wall
49

Docket No. 33, at 10.

50

Id. (emphasis omitted).

16

Elastomeric Material - matter that yields elastically to pressure
Comprising - including the limitations that follow without excluding other elements
Copolymer - the limiting copolymer ingredient enumerated in the claim before and after it is
mixed with the limiting plasticizer
Pursuant to the Scheduling Order dated December 13, 2012, the parties are directed to
file an attorney planning meeting report and proposed scheduling order within fourteen (14) days
of this Order.
Dated this 20th day of December, 2013.
BY THE COURT:

Ted Stewart
United States District Judge

17