United States District Court, W.D. Arkansas, Texarkana Division
CLAIM CONSTRUCTION MEMORANDUM AND ORDER
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
the Court is Plaintiff Sorrell Holdings, LLC
("Sorrell") Opening Claim Construction Brief (ECF
No. 50), 
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).
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.
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
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.
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.
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.
‘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.
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.
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”).
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.
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).
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.
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 ...