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Sorrell Holdings, LLC v. Infinity Headwear & Apparel, LLC

United States District Court, W.D. Arkansas, Texarkana Division

September 12, 2018

SORRELL HOLDINGS, LLC PLAINTIFF
v.
INFINITY HEADWEAR & APPAREL, LLC DEFENDANT

          CLAIM CONSTRUCTION MEMORANDUM AND ORDER

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE

         Before the Court is Plaintiff Sorrell Holdings, LLC ("Sorrell") Opening Claim Construction Brief (ECF No. 50), [1] Defendant, Infinity Headwear & Apparel, LLC ("Infinity") Response Brief (ECF No. 51), Sorrell's Reply Brief (ECF No. 53), and Infinity's Sur-Reply Brief (ECF No. 54).

         The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 33. The Court, having reviewed the pleadings, presentation materials, other papers, and case law, finds no hearing necessary and finds the disputed terms of the patents-in-suit should be construed as set forth herein.

         I. Background:

         Plaintiff Sorrell alleges Infinity's product line, the MascotWear Mascot Bath Loofahs (“Product”), infringes on United States Patent No. 6, 887, 007 (“007 Patent”). Specifically, Sorrell alleges the Product infringed on the 007 Patent's eleventh claim (“Claim 11"). Claim 11 covers a washing device comprising:

a scrubber made of a foraminous material and gathered to form a pleated ball; a figurative handle coupled to the scrubber; and a cinch for binding the foraminous material into the pleated ball and forming a loop extending around at least a portion of said handle to secure the handle to the scrubber.

ECF No. 50-2, Pg. 15, col.6, 11. 27-35.

         II. Applicable Law:

         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). Claim terms are given their ordinary and customary meaning to one of ordinary skill in the art at the time of the invention, unless there is clear evidence in the patent's specification or prosecution history that the patentee intended a different meaning. Id. at 1312-1313. Claim construction is informed by the intrinsic evidence: the patents' specifications and file histories. Id. at 1315-1317. Courts may also consider evidence such as dictionary definitions and treatises to aid in determining the ordinary and customary meaning of claim terms. Id. at 1322.

         “The claim construction inquiry . . . begins and ends in all cases with the actual words of the claim.” Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). “[I]n all aspects of claim construction, ‘the name of the game is the claim.'” Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998)). First, a term's context in the asserted claim can be instructive. Phillips, 415 F.3d at 1314. Other asserted or unasserted claims can also 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 1314-1315.

         “[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) (en banc)). “[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). However, “‘[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)); see also Phillips, 415 F.3d at 1323.

         A court should “avoid the danger of reading limitations from the specification into the claim[s].” Phillips, 415 F.3d at 1323. For example, “although the specification often describes very specific embodiments of the invention, [the Federal Circuit has] repeatedly warned against confining the claims to those embodiments.” Id. The Federal Circuit has “expressly rejected the contention that if a patent describes only a single embodiment, the claims of the patent must be construed as being limited to that embodiment.” Id. This is not only because of the requirements of § 112 of the Patent Act, but also because “persons of ordinary skill in the art rarely would confine their definitions of terms to the exact representations depicted in the embodiments.” Id. Limitations from the specification should only be read into the claims if the patentee “acted as his own lexicographer and imbued the claim terms with a particular meaning or disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction.” E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003) (citations omitted); Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1367 (Fed. Cir. 2012).

         The prosecution history is another tool to supply the proper context for claim construction because, like the specification, the prosecution history provides evidence of how the PTO and the inventor understood the patent. Phillips, 415 F.3d at 1317. However, “because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes.” Id. at 1318; see also Athletic Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution history may be “unhelpful as an interpretive resource”).

         Although extrinsic evidence can also 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 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)). 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 not helpful to a court. Id. Extrinsic evidence is “less reliable than the patent and its prosecution history in determining how to read claim terms.” Id.

         Many other principles of claim construction, though not addressed in Phillips, remain significant in guiding this Court's charge in claim construction. The Court is mindful that there is a “heavy presumption” in favor of construing claim language as it would be plainly understood by one of ordinary skill in the art. Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed. Cir. 1999); cf. Altiris, Inc., v. Symantec Corp., 318 F.3d 1364, 1372 (Fed. Cir. 2003) (“[S]imply because a phrase as a whole lacks a common meaning does not compel a court to abandon its quest for a common meaning and disregard the established meaning of the individual words.”). The same terms in related patents are presumed to carry the same meaning. See Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1334 (Fed. Cir. 2003) (“We presume, unless otherwise compelled, that the same claim term in the same patent or related patents carries the same construed meaning.”) “Consistent use” of a claim term throughout the specification and prosecution history provides “context” that may be highly probative of meaning and may counsel against “[b]roadening of the ordinary meaning of a term in the absence of support in the intrinsic record indicating that such a broad meaning was intended . . . .” Nystrom v. TREX Co., 424 F.3d 1136, 1143-1146 (Fed. Cir. 2005).

         Claim construction is not meant to change the scope of the claims but only to clarify their meaning. Embrex, Inc. v. Serv. Eng'g Corp., 216 F.3d 1343, 1347 (Fed. Cir. 2000) (“In claim construction the words of the claims are construed independent of the accused product, in light of the specification, the prosecution history, and the prior art. . . . The construction of claims is simply a way of elaborating the normally terse claim language[] in order to understand and explain, but not to change, the scope of the claims.”) (citations and internal quotations omitted). Regarding claim scope, the transitional term “comprising, ” when used in claims, is inclusive or open-ended and “does not exclude additional, unrecited elements or method steps.” CollegeNet, Inc. v. ApplyYourself, Inc., 418 F.3d 1225, 1235 (Fed. Cir. 2005) (citations omitted). Finally, claim constructions that read out a preferred embodiment are rarely, if ever, correct. Vitronics, 90 F.3d at 1583-84.

         III. Agreed Terms:

         In their June 1, 2018 Joint Construction and Prehearing Statement (ECF No. 49), their briefing, and their August 15, 2018 Joint Claim Construction Chart (ECF No. 55), the ...


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