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Nexans Inc. v. General Cable Technologies Corp. and General Cable Industries

December 11, 2008


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.



This is an action brought by Nexans Inc. for a Declaratory Judgment of Non-Infringement, Invalidity and Unenforceability of General Cable's U.S. Patent No. 5,767,441 entitled "Paired Electrical Cable Having Improved Transmission Properties and Method for Making the Same" (the "'441 Patent").

Nexans is a manufacturer of copper and fiber optic cable products. These cable products are used for high speed data and voice transmissions, such as, in Local Area Networks or "LANs".

In the year 2006 General Cable brought the '441 patent to Nexans attention. Nexans contends that it does not use the technology disclosed in the '441 patent for the manufacture of its communication cables and instead uses technology which it claims pre-dates the invention of the '441 patent. According to Nexans, General Cable has refused to withdraw its allegations of infringement, prompting Nexans to bring this declaratory judgment action in order to remove the uncertainty caused by General Cable's claims.


The '441 Patent Application was filed on January 4, 1996 and issued on June 16, 1998. The '441 patent "relates generally to paired electrical cables used for transmitting digital and analog data and voice information signals. . . ." ('441 patent at col. 1, lines 7-9.) As noted in the '441 patent, the increased use of computer and telecommunications networks has made it "imperative that the highest quality be achieved in the transmission and voice information signals over ever increasing distances." (Id. at col. 1, lines 23-25.) Accordingly, the "[t]he ability to transmit such information at the highest possible rate and with a minimum number of errors" are identified as "two critically important features" of paired electrical cables used in "any high quality analog or digital signal transmission system." (Id. at col. 1, lines 23-29.)

The ability of paired electrical cables to transmit high frequency signals with minimum error is directly related to their conductor-to-conductor spacing. As illustrated below, conductor-to-conductor spacing - identified by the dimension "S"- refers to the relative distance of the conductors from one another at any given point along the length of the cable:

"[I]n order to achieve the optimum electric performance the conductor-to-conductor spacing must be constant and non-changing throughout the cables length." (Id. at col. 4, lines 51-53.) Variations in conductor-to-conductor spacing along the length of the cable give rise to signal reflections which adversely affect the transmission parameters of the cable such as "structural return loss" and "cross talk". (See, e.g., Id. at col. 2, lines 7-22, col. 8, line 28, col. 9, line 18.)

Paired electrical cables used for transmission of digital and voice information signals are typically comprised of insulated copper wires which have been twisted together. (Id. at col. 1, lines 31-34.) The transmission properties of these cables, however, can be limited due to imperfections introduced "during the fabrication of the individual insulated wires. . . ." (Id. at col. 1, lines 41-49.) These include "asymmetrical imperfections such as ovality of the surrounding insulation, out-of roundness or eccentricity of the wire cross section and lack of perfect centering of the wire within the insulation. . . ." (Id. at col. 1, lines 35-49.) When the insulated wires are combined together to form a cable, these imperfections naturally give rise to conductor-to-conductor spacing variations which may "limit their ability to transmit data without an insignificant amount of error." (Id. at col. 1, lines 40-41.)


"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), cert. denied, 546 U.S. 1170 (2006) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 RF.3d 1111, 1115 (Fed. Cir. 2004)). The starting point for construing the claims is the patent's intrinsic evidence, which includes the claim language itself, the patent specification, and the corresponding prosecution history of the patent. See, Phillips, 415 F.3d at 1312, 1314; C.R. Bard, Inc. v. United States 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); Ad in the Hole Int'l Inc. v. Napex, 1999 U.S. Dist. LEXIS 2073, at *3-4 (E.D. Pa. February 25, 1999) (Ludwig, J.).

"[T]he claims are 'of primary importance, in the effort to ascertain precisely what it is that is patented.'" Phillips, 415 F.3d at 1312, quoting Merrill v. Yeomans, 94 U.S. 568, 570 (1876). To begin, claim terms are to be construed with their "ordinary and accustomed" meaning as viewed by one of ordinary skill in the art at the time of the invention. Moba v. Diamond Automation, 325 F.3d 1306, 1315 (Fed. Cir. 2003), on remand at 2004 U.S. Dist. LEXIS 17722 (E.D. Pa. Aug. 31, 2004) ("[T]he best indicator of claim meaning is its usage in context as understood by one of skill in the art at the time of invention."). The patent's intrinsic record supplies the technological and temporal context. See, Nazomi Commc'ns, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1368 (Fed. Cir. 2005); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).

"When different words or phrases are used in separate claims, a difference in meaning is presumed." Tandon Corp. v. United States Int'l Trade Comm'n, 831 F.2d 1017, 1023 (Fed. Cir. 1987). Additionally, terms in a patent claim should not be construed such that they render other terms in the claims superfluous. Texas Instruments v. United States Int'l Trade Comm'n, 988 F.2d 1165, 1171 (Fed. Cir. 1993). "Courts can neither broaden nor narrow the claims to give the patentee something different than what he has set forth." Autogiro Co. of Am. v. United States, 384 F.2d 391, 396 (Ct. Cl. 1967); see also Texas Instruments, 988 F.2d at 1171 (refusing to adopt a proposed construction that rendered other claim language superfluous).

Claims are often written in a hierarchy, with independent claims as the broadest claims and a series of dependent claims having more narrow scope. See, 35 U.S.C. § 112, fourth paragraph (2007). Differences among the claim terms may aid in interpreting the claims. Tessera, Inc. v. Micron Tech., Inc., 423 F.Supp. 2d 624, 627 (E.D. Tex. 2006) (citing Phillips, 415 F.3d at 1314).

The doctrine of claim differentiation creates a presumption that, where a dependent claim is more specific than the independent claim from which it depends, the independent claim must be broader and not limited to the specifics of the dependent claim. This doctrine arises from "the common sense notion that different words or phrases used in separate claims are presumed to indicate that the claims have different meanings and scope." Seachange Int'l, Inc . v. C-Cor Inc., 413 F.3d 1361, 1368 (Fed. Cir. 2005). "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." Tessera, 423 F.Supp. 2d at 627 (citing Phillips, 415 F.3d at 1314-15). As a general rule, the presence of a dependent claim that adds a particular limitation creates a presumption that the limitation in question is not part of the independent claim. Wenger Mfg., Inc. v. Coating Mach. Sys., Inc., 239 F.3d 1225, 1233 (Fed. Cir. 2001)); Seachange, 413 F.2d at 1368. This presumption is especially strong where the only meaningful difference between the independent claim and the dependent claim is the limitation at issue. D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1574 (Fed. Cir. 1985); Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 910 (Fed. Cir. 2004). Moreover, if "some claims are broad and others narrow, the narrow claim limitations cannot be read into the broad whether to avoid invalidity or to escape infringement." Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1054-55 (Fed. Cir. 1988); Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 770 (Fed. Cir. 1983), overruled on other grounds by SRI Int'l v. Matsushita Elec. Corp., 775 F.2d 1107 (Fed. Cir. 1985).

While the specification is the primary source to be consulted during claim construction, it may not be used to limit the claims unless it includes words or expressions of manifest exclusion or explicit disclaimers. Howmedica Osteonics Corp. v. Tranquil Prospects, Ltd., 401 F.3d 1367, 1375 (Fed. Cir. 2005). Moreover, claims should not be construed such that they are "limited to devices which operate precisely as the embodiments described in detail in the patent." Virginia Panel Corp. v. MAC Panel Co., 133 F.3d 860, 866 (Fed. Cir. 1997). Although 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); see also, Phillips, 415 F.3d at 1323.

As a general rule, claims should be construed, if possible, to sustain their validity. ACS Hos. Sys., Inc. v. Montefiore Hospital, 732 F.2d 1572, 1577 (Fed. Cir. 1984); Carman Indus., Inc. v. Wahl, 724 F.2d 932, 937 n.5 (Fed. Cir. 1983); Klein v. Russell, 86 U.S. 433, 466 (1874); Turrill v. Michigan S. & N.I. R.R., 68 U.S. 491, 510 (1864). Consequently, where claimed elements are known to exist in the prior art, the claims should be construed in view of that prior art. Amhil Enter. Ltd. v. Wawa, Inc., 81 F.3d 1554, 1562 (Fed. Cir. 1996).


The parties have agreed on the construction of several terms of the '441 patent. The terms not agreed to are set forth and discussed in detail below.

General Cable has accused Nexans of infringing Claims 12-14 and 22-24 of the '441 patent.

Assert Claim 12 recites:*fn1

An individually twisted balanced cable pair suitable for long line data transmission, comprising:

(a) a first insulated wire that is pre-twisted around it own longitudinal axis at a predetermined lay length;

(b) a second insulated wire that is pre-twisted around its own longitudinal axis at the same predetermined lay length as said first insulated wire; and

(c) said first and second insulated wires being twisted together, thereby forming a cable pair.

Claim 13 of the '441 patent recites:

The cable pair as recited in claim 12, wherein said first and second insulated wires are pre-twisted in one rotational direction, then twisted together in the direction opposite the direction of said pre-twisting, thereby forming a cable pair.

Claim 14 of the '441 patent recites:

The cable pair as recited in claim 13, wherein said first and second insulated wires are pre-twisted at the same lay length. Claim 22 of the '441 patent recites:

An individually twisted balanced cable pair suitable for long line data transmission, comprising:

(a) a first insulated wire that is uniformly pre-twisted around its own longitudinal axis ...

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