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McGowan v. Church & Dwight Co.

December 12, 2008

KIMBERLY F. MCGOWAN, PLAINTIFF,
v.
CHURCH & DWIGHT CO., INC., DEFENDANT



The opinion of the court was delivered by: Gene E.K. Pratter, J.

MEMORANDUM AND ORDER

Kimberly F. McGowan claims patent infringement by Church & Dwight Co. ("C&D") of her U.S. Patent No. 6,346,143 ("the '143 Patent").*fn1 The '143 Patent is entitled "Odor Adsorptive Filter for Refrigerators and Freezers." The Court now considers the issue of the proper construction of claims of the '143 Patent pursuant to Markman v. Wastview Instruments, Inc. 517 U.S. 370 (1996). The Court held a Markman hearing on November 19, 2008.

I. Standard

Patent infringement cases typically involve a two-part analysis. First, the meaning and scope of any disputed claims*fn2 must be determined. Thereafter, the properly constructed claims are compared to the device or method they are accused of infringing. Vivid Techs., Inc. v. American Science & Eng'g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999). The first step, known as "claim construction," "is a matter of resolution of disputed 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." U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). "Claim construction is a matter of law to be determined by the court." Synthese (U.S.A.) v. Howmedica Osteonics Corp., 2008 U.S. Dist. LEXIS 23291, at *3 (E.D. Pa. March 24, 2008) (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).

In the claim construction process, the Court must "determine the ordinary and customary meaning of undefined claim terms as understood by a person of ordinary skill in the art at the time of the invention." Cohesive Techs., Inc. v. Waters Corp., 2008 U.S. App. LEXIS 21013, at *11 (Fed. Cir. Oct. 7, 2007). "[T]he court looks to those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean." The Court considers four main sources: (1) the words of the claims themselves, (2) the specification,*fn3 (3) the prosecution history, and, if necessary, (4) "extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art." Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir 2005) (internal quotation marks and citations omitted). "Claim construction must begin and remain centered on the claim language itself."

Innova/Pure Water, Inc. v. Safari WaterFiltration Sys., Inc. 381 F.3d 1111, 1116 (Fed. Cir. 2004).

Patent claim construction often engenders trepidation. However, "[i]n 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 the claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words." Id. at 1314. This is not always possible, of course, and when "the meaning of a claim term as understood by persons of skill in the art is...not immediately apparent," the court may look to "those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean." Id. (citations omitted). Such sources include, the words of the claims themselves, the specification, the prosecution history, and extrinsic evidence. Id.

"The specification 'is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of the disputed term.'" Id. (quoting Vitronics, 90 F.3d at 1582). However, "although the specification often describes very specific embodiments of the invention, [courts] have repeatedly warned against confining the claims to those embodiments." Id. at 1323. The Court must balance between appropriate limits and excessive limits. "[T]he line between construing terms and importing limitation can be discerned with reasonable certainty and predictability if the court's focus remains on understanding how a person of ordinary skill in the art would understand the claim terms. [A]lthough the specification often describes very specific embodiments of the invention, [the Federal Circuit has] repeatedly warned against confining the claims to those embodiments." Id. at 1323. However, if a "specification makes clear at various points that the claimed invention is narrower than the claim language might imply, it is entirely permissible and proper to limit the claims." Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1370 (Fed. Cir. 2003). According to the Court of Appeals for the Federal Circuit, "[u]ltimately, the interpretation to be given a term can only be determined and confirmed with a full understanding of what the inventors actually invented and intended to envelop with the claim. The construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." Phillips 415 F.3d at 1316.

Phillips resolved certain conflicting precedents by holding that the specification of a patent is the best guide to the meaning of the claim terms, and that it is improper to elevate dictionary definitions above the specification. In particular, Phillipsreaffirmed that the specification is the "single best guide" to the meaning of disputed claim language. Id. at 1321 (citing Vitronics, 90 F.3d at 1582). It remains proper to give claim language its ordinary and customary meaning, so long as the meaning aligns with the description of the invention in the patent. Id. at 1312-13 (citations omitted).

However, if the prosecution history is provided (as it is in Ms. McGowan's case), the Court may consider it. Id. at 1317. "The prosecution history...consists of the complete record of the proceedings before the PTO and includes the prior art cited during the examination of the patent." Id. "The prosecution history may provide further explanation of the patent and explain how the PTO and inventor understood the patent." Synthese, 2008 U.S. Dist. LEXIS 23291, at *7. "Yet 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." Phillips, 415 F.3d at 1317.

Finally, the Court may consider is extrinsic evidence, which "consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Markman, 52 F.3d at 980. However, the Vitrionics opinion warns that extrinsic evidence should be considered only if necessary. 90 F.3d at 1583. In short, "extrinsic evidence may be useful to the court, but it is unlikely to result in a reliable interpretation of patent claim scope unless considered in the context of the intrinsic evidence." Phillips, 415 F.3d at 1319.

With this understanding of the applicable standards for the ensuing analysis, the Court turns to the dispute at hand.

II. Discussion

During claim construction analysis, "only those terms need be construed that are in controversy, and only to the extent necessary to resolve the controversy." Vivid Techs, 200 F.3d at 803. Here, the parties dispute the construction of six terms or phrases of the claims-in-suit, as discussed individually below.

A. Disputed Claim Terms/Phrases -- Non-Mean-Plus-Function

1. Disputed Claim Term/Phrase 1 -- Filter Housing

Ms. McGowan argues that the term "filter housing" should be defined to mean: "a container for a filter element." Plaintiff's Memo. at 9. C&D asserts that the term "filter housing" should be defined to mean: "a housing for containing a filter element," but sensibly agrees that "there is very little practical difference" between the two, so that "either formulation of the term 'filter housing' would be acceptable." Def. Memo. at 13. Accordingly, the Court concludes that disputed claim term 1, to wit, "filter housing," means: "a container for a filter element."

2. Disputed Claim Term/Phrase 2 -- "Front Panel" and "Rear Panel"

Next, Ms. McGowan contends that the term "front panel" should be defined to mean: "a front piece forming a part of the surface of a filter housing used to hold a filter element," and that the term "rear panel" should be defined to mean: "a rear piece forming a part of the surface of a filter housing used to hold a filter element." Plaintiff's Memo. at 11. C&D argues that the term "front panel" should be defined to mean: "a flat, rectangular piece on the front of the housing," while the term "rear panel" should be defined to mean: "a flat, rectangular piece on the rear of the housing that is opposite to the front panel." Def. Memo. at 13-14.

The terms "front panel" and "back panel" are used in claims 1 and 8 in the following context: "a filter housing having at least a front panel, a rear panel opposite said front panel, and an interior for holding a filter element therein; said front panel and said rear panel including at least one air circulation passage therethrough, for circulation of air through said interior of said filter housing...." '143 Patent at col.7 l.65-col.8 l3; col.8 l.36-42. Although the specification does not define the term "panel" as used in the '143 Patent, it does provide the following preferred embodiment of front and rear panels:

The front elevation view of FIG.2 clearly illustrates the front panel 18 of the housing 12. The front panel 18 essentially comprises an open frame with a grid 20 disposed thereacross, to provide a series of air circulation passages 22 therethrough for the filter element 14 to communicate with the ambient air. The filter element 14 is retained behind the front panel 18 of the housing 12 by an inwardly facing lip 24 about the periphery of the front panel 18, and the grid structure 20 disposed across the front panel 18.

The side elevation view in section of FIG. 3 illustrates further details of the present invention. In FIG. 3, the rear panel 28 is clearly shown opposite the front panel 18, with the two panels 18 and 28 defining a housing interior 30 therebetween for holding the filter element 14 therein. The rear panel 28 also includes at least one air circulation passage 32 therethrough. '143 Patent at col.5 l.30-46. Accordingly, Ms. McGowan argues that "a preferred embodiment of the invention discloses that the front and rear panels may be 'an open frame with a grid disposed thereacross.'" Plaintiff's Memo. at 12. The descriptions of the preferred embodiments do not endeavor to limit the shape of the panels.*fn4

C&D asserts that Ms. McGowan's proposed construction is "vague and ambiguous" because it "fails to provide any more meaning or precision to the disputed terms...than the original claim language." Def. Memo. at 14. C&D argues that the claim language, specification, opinion of a person of ordinary skill in the art of air filtration, and numerous dictionary references all lead to defining "front panel" to mean "a flat, rectangular piece on the front of the housing," and defining "rear panel" to mean "a flat, rectangular piece on the rear of the housing that is opposite to the front panel."

C&D justifies its proposed definitions by emphasizing that "the claim language expressly described the spatial configuration of the two panels as being opposite to one another. Such an orientation teaches to one of ordinary skill in the art of filtration that the panels are flat and are arranged so as to face directly opposite each other." Def. Memo. at 14. While the claim language does specify that the panels are opposite one another, it nowhere states that the panels could not be curved or convex. Each of the eight figures disclosed in the '143 Patent shows a device with outer housing comprised of two flat, rectangular panels that lie opposite of each other, see '143 Patent at figs.1-8, and Ms. McGowan's prototypes of the invention used housing panels made from flat, rectangular pieces of material with rounded corners that lay opposite to one another. See Def. Memo., Ex. E (K000398 & KM000400). However, Ms. McGowan notes that such preferred embodiments were "[m]erely examples of what a panel is, not restrictions of what a panel is." Hrg. Tr. 11/19/08 at 14:20-21. There is no basis for concluding that only a rectangular shape is available.

C&D urges the Court to consider extrinsic evidence from dictionary definitions and expert testimony. However, where the intrinsic evidence is sufficient to resolve any ambiguity in a claim term, "it is improper to rely on extrinsic evidence," Vitronics, 90 F.3d at 1583. The Court concludes that the ordinary and customary meaning of the terms "front panel" and "rear panel" aligns with the description of the invention in the patent in such a manner that consideration of extrinsic evidence would be improper. Accordingly, the disputed claim term "front panel" means "a front piece forming a part of the surface of a filter ...


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