The opinion of the court was delivered by: Baylson, J.
MEMORANDUM ON CLAIM CONSTRUCTION
Plaintiffs Greenkeepers, Inc. and Greenkeepers of Delaware, LLC (collectively, "Greenkeepers" or "Plaintiffs"), allege, inter alia, that Softspikes, LLC ("Softspikes"), Pride Manufacturing, LLC ("Pride"), Taylor Made Golf Company, Inc. ("Taylor Made"), Callaway Golf Company ("Callaway"), and ECCO USA, Inc. ("ECCO," collectively with Softspikes, Pride, Taylor Made, and Callaway, "Defendants") infringed upon Greenkeepers' U.S. Reissued Patent Number RE40, 047 (filed Mar. 11, 2004) ("'047 Patent") on small removable golf cleats by selling golf cleats purportedly covered by the '047 Patent. Presently before the Court are the parties' briefs on claim construction pursuant to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir.1995) (en banc), aff'd 517 U.S. 370. On January 21, 2010, the Court heard oral argument on claim construction.
Generally, a claim term is given its "ordinary and customary meaning," that being the definition given by "a person of ordinary skill in the art in question at the time of the invention." Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir . 2005) (en banc). The Federal Circuit has explained that the claim construction inquiry begins by looking at the intrinsic evidence: the language of the claims, the specification, and the prosecution history.
"[T]he claims themselves"-that is "the use of a term within the claim," "[o]ther claims of the patent in question, both asserted and asserted," and "[d]ifferences among claims"- "provide substantial guidance as to the meaning of particular claim terms." Id. at 1314. "[I]t is [also] appropriate for a court . . . to rely heavily" on the specification, the patentee's written description, for guiding as to the meaning of the claims." Id. at 1314. In fact, "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 a disputed term.'" Id. at 1315 (quoting Vitrionics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). Additionally, the court "should also consider the patent's prosecution history, if it is in evidence." Markman, 52 F.3d at 980. Though "less useful" and "often lack[ing] the clarity of the specification," "the prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim's scope narrower than it would otherwise be." Phillips, 415 F.3d at 1317.
Apart from intrinsic evidence, the court is also authorized to rely on extrinsic evidence, that being "'evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises.'" Id. (quoting Markman, 52 F.3d at 980). Such evidence, through "shed[ding] useful light on the relevant art," is "less significant than the intrinsic record in determining the legally operative meaning of claim language," and "is unlikely to result in a reliable interpretation of patent claim scope unless considered in the context of the intrinsic evidence." Id. at 1317, 1319 (internal quotation marks omitted).
The parties dispute the construction of several terms: (A) "outwardly angled," (B) "teeth" and "traction teeth," (C) "low profile," (D) "lateral stability and traction through the plane of a golf swing," (E) "enhanced" or "to enhance" lateral stability and traction, (F) "axis ALT," and (G)"shoe mounting" or "attachment member." The Court will address each in turn.
A. "Outwardly Angled Traction Surface"
Claim Terms Plaintiffs' Construction Defendants' Construction "outwardly angled traction "a surface facing away from "a surface facing away from surface" (Claim 7) the axis AL that provides the axis AL that provides "outer traction surface having an traction, having an outward traction, having an outward outward angulation" (Claims 9, angle relative to the axis AL angle relative to the axis AL 19-23) that is predetermined" that is predetermined, such that the angle does not change "outer traction surface extending in use" from said main body in a direction away from and at an angle to said axis AL" (Claims 12-14, 17-18) The '047 Patent describes the covered golf cleats as having a traction surface that is "outwardly angled." '047 Patent, col. 5 l.50; see also id. col.5, ll.66-67, col.7, ll.1, 14-15, 30-32, & col. 8, l.1. The parties agree as to the first part of the definition, that being, "a surface facing away from the axis AL that provides traction, having an outward angle relative to the axis AL," but disagree as to the second part respecting whether the angle can change in use.
1. The Parties' Contentions
Greenkeepers contend that the '047 Patent's intrinsic evidence indicates that the outward angle "is predetermined," which means that the angle is settled in advance and "maintain[s] the desired angle . . . throughout the life of the cleat," '047 Patent, col.2, ll. 12-14, not that the angle will not change in use. (Pls.' Resp. 2-3, Softspikes, Docket No. 70, Taylor Made, Docket No. 68.) Greenkeepers aver that the claim language and patent specification provide that the cleats are made of "resilient and flexible material," '047 Patent, col.6, l.28; see also id. col.1, ll.56-57, that is, polyurethane material that may have the hardness of a tire and may flex slightly under load. (Pls.' Opening 8-11, Softspikes, Docket No. 61, Taylor Made, Docket No. 56.)
Defendants respond that the patent specification shows that the cleats were designed to not flex. (Defs.' Opening 11-12, Softspikes, Docket No. 57.)*fn1 According to Defendants, Greenkeepers expressly disavowed claim coverage of flexible cleats during the patent's prosecution history,*fn2 by characterizing their cleats as having the "hardness of a bowling ball," and by distinguishing cleats covered by a prior Dassler patent that had outwardly angled teeth, on the basis that because such the angle of such teeth change under load, the teeth are not suitable for golf cleats because any bending may interfere with a golfer's swing. (Defs.' Opening 12-14 (internal quotation marks omitted).) Defendants aver that Greenkeepers have not presented extrinsic evidence showing that virtually all golf cleats bend or flex under load. (Defs.' Reply 3-6, Softspikes, Docket No. 77, Taylor Made, Docket No. 79.)
Greenkeepers reply that even the hardness of a bowling ball permits some flexing, and that they differentiated Dassler cleats on the basis that such cleats had an angle that changed greatly under load, not that the cleats' angle changed at all. (Pls.' Reply 3-6, Softspikes Docket No. 78, Taylor Made, Docket No. 89.)
The primary question for the Court is whether Greenkeepers disclaimed coverage of cleats for which the outward angle changes under load. "The doctrine of prosecution disclaimer is well established in Supreme Court precedent, precluding patentees from recapturing through claim interpretation specific meanings disclaimed during prosecution." Omega Eng'g, Inc, v. Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003). "[W]here the patentee has unequivocally disavowed a certain meaning to obtain his patent, the doctrine of prosecution disclaimer attaches and narrows the ordinary meaning of the claim congruent with the scope of the surrender." Id. at 1325. The Federal Circuit, however, requires statements to be "both so clear as to show reasonable and deliberateness" and "so unmistakable as to be unambiguous evidence of disclaimer" before applying the doctrine. Id. at 1325; see also id. at 1324-25 (describing and comparing cases involving an ambiguous claim disavowal with those involving a clear disavowal). Such a requirement aims "[t]o balance the importance of public notice with the right of patentees to seek broad patent coverage." Id. at 1325.
The prosecution history indicates that Greenkeepers differentiated prior art Dassler cleats whose angle changed greatly under load: Greenkeepers stated that because the Dassler cleats' angle "change[s] because of the great flexibility thereof" and "varies on load application," they are not "adaptable to use in golf cleats," since bending, "minute that it may be, may interfere with the golfer's swing." (Defs.' Resp., Ex. J at SS_00006013, SS_00006015-16, Ex. I, at SS_00006033.). As a result, Greenkeepers "expressly disclaimed" coverage of golf cleats whose outward angle substantially changes under load, and prosecution disclaimer applies. Omega Eng'g, 334 F.3d at 1323.
On the other hand, the Court is not convinced that Plaintiff's disavowal is so broad as to cover golf cleats with an outward angle that does not change at all under load, because the patent language repeatedly emphasizes that the cleats are to be made of a "flexible" material, '047 Patent, col.6, l.28; see also id. col.1, ll.56-57. Moreover, examination of a sample of the '047 Patent at the January 21, 2010 oral argument confirmed that the cleats can bend, however slightly, when pressure is applied. (Oral Arg. Tr. 44:7-22, Jan. 21, 2010, Softspikes, Docket No. 88, Taylor Made, Docket No. 83.) Rather than accepting either of the parties' proposed constructions, the Court, therefore, finds that the intrinsic evidence indicates that the outward angle referenced in the patent may permit some bending under load, albeit not significant bending, which Greenkeepers previously disclaimed. The parties, in their post-argument supplemental briefing, did not expressly object to the Court's construction. (Pls.' Supp. Br. 1-2, Softspikes, Docket No. 92, Taylor Made, Docket No. 86; Defs.' Supp. Br. 1-2, Softspikes, Docket No. 93, Taylor Made, Docket No. 87.) Accordingly, the Court construes "outwardly angled traction surface," "outer traction surface having an outward angulation," and "outer traction surface extending from said main body in a direction away from and at an angle to said axis AL," as "a surface facing away from the axis AL that provides traction, having an outward angle relative to the axis AL that is predetermined, such that it does not change significantly in use."
B. "Teeth" and "Traction Teeth"*fn3
Claim Terms Plaintiffs' Defendants' Defendant ECCO's Construction Construction Additional Construction
"traction tooth" or "outwardly angled "structure that provides "protrusions that provide "traction teeth" elongated projections traction by reaching traction by reaching (Claims 3, 7, 9, 10, for engaging grass through the grass to bite through the grass to bite 12-15, 17-19, 24) and/or turf" into the ground below into the ground below and and does not bend either do not bend either "teeth" (Claims 20- upwardly or upwardly or downwardly 24) downwardly with load" under load"
The parties dispute whether "traction tooth" and "traction teeth," see '047 Patent, col.4, ll.58, 60-61, col.5, ll.47, 49, 54, 62, & 64, col.6, 10, 12, 27, 29-30, 35, 38, 41, 49, 51, 64, & 66, & col.8, ll.11&13, and "teeth," see id. col.7, 11, 18 & 22, col. 8, ll.2, 21, refer to structures or projections that "bite into the ground" and bend under load. The Court's subsequent summary of the parties' contentions excludes their arguments respecting the flexibility of the teeth, because these have been detailed supra.
1. The Parties' Contentions
According to Greenkeepers, the patent specification indicates that the teeth, rather than biting into the ground, aim to "reduce damage to putting green surfaces," '047 Patent, col.2, l.2, and that Defendants' constructions exclude the patent's preferred embodiments. (Pls.' Opening 11-13.) Greenkeepers further aver that teeth need not "bite," as human and animal teeth do, because under their dictionary definition, they also encompass protrusions on combs, gears, or saws. (Pls.' Resp. 10-11.)
In response, Defendants aver that Greenkeepers repeatedly referred to the teeth in the covered cleats as "biting" into the ground, and distinguished prior art Curley cleats as not having true "teeth," because their protrusions did not pierce the ground. (Defs.' Resp. 10.) Defendant ECCO then takes issue with Greenkeepers' inclusion of "outwardly angled" in their proposed construction of "teeth" and "traction teeth," because the specification often describes the "teeth" or "traction teeth" as ...