The opinion of the court was delivered by: William W. Caldwell United States District Judge
Presently before the court are the defendants' and plaintiff's proposed construction of the disputed claim terms in this patent infringement action. Based on the following, we will enter an order pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384 (1996).
This action encompasses eleven patents-in-suit related to disposable absorbent products such as infant and adult diapers. The claim terms at issue are found in KC's U.S. Patent Nos. 5,286,543 (the "Ungpiyakul Patent"); 6,702,798 (the "Christoffel Patent"); 5,745,922 to Rajala et al., 6,098,203 to Rajala et al., 6,260,211 to Rajala et al., 7,000,260 to Rajala et al. (collectively the "Rajala Patents"); 5,940,887 to Rajala et al.; 5,147,343 (the "Kellenberger Patent"); and 5,601,542 (the "Melius Patent"); 5,154,902 to Pieper et al.; and 5,496,298 (the "Kuepper Patent").
This controversy originally began in February 2009 when defendants filed a complaint in this court seeking declaratory judgment of invalidity and noninfringment of the Kuepper Patent. See First Quality Baby Prods., LLC v. Kimberly-Clark Worldwide, Inc., Case No. 09-354. KC moved for dismissal arguing that we lacked subject matter jurisdiction. We agreed and dismissed the case. See First Quality Baby Prods., LLC v. Kimberly-Clark Worldwide, Inc., No. 09-0354, 2009 WL 1675088 (M.D. Pa. June 15, 2009). Prior to our dismissal, however, KC filed a patent infringement action in the United States District Court for the Northern District of Texas. On August 31, 2009, KC's infringement action was transferred to this court. Subsequently on June 9, 2010, we held a claim construction hearing where both parties set forth their positions on the proper interpretation for the disputed claim terms. Based on the parties arguments and our independent review of the record, we will now address each of the disputed claim terms.*fn1
Claim construction is a matter of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995)(en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384 (1996). "It is a 'bedrock principle' of patent law that 'the claims of a patent define the invention to which a patentee is entitled the right to exclude.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005)(quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). The words of a claim are generally given their "ordinary and customary meaning." Id. (quoted case omitted). "[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art...at the time of the invention." Id. at 1313. We determine this meaning primarily through intrinsic evidence, i.e. the claim language, the specification and the prosecution history. See Power-One, Inc. v. Artesyn Technologies, Inc., 599 F.3d 1343, 1348 (Fed. Cir. 2010); see also Phillips, 415 F.3d at 1312-17 (defining intrinsic evidence); Arlington Indus., Inc. V. Bridgeport Fittings, Inc., No. 01-0485, 2008 WL 542966, at *1 (M.D. Pa. Feb. 25, 2008). We may also consider extrinsic evidence, such as dictionaries, treatises, and expert testimony, to shed light on claim construction, but such evidence "is less significant than the intrinsic record" and "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 1317-19.
In some instances, 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 claim construction...involves little more than the application of the widely accepted meaning of commonly understood words." Id. at 1314. A patentee, however, "may choose to be his own lexicographer and use terms in a manner other than their ordinary meaning, as long as the special definition of the term is clearly stated in the patent specification or file history." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Thus, it is necessary for a court to review the specification to determine whether a patentee has used any terms in a manner different from their ordinary meaning. Id. Nonetheless, a court must avoid the danger of importing limitations from the specification into the claim. Phillips, 415 F.3d at 1323. "[T]he line between construing terms and importing limitations can be discerned with reasonable certainty and predictability if [a] court's focus remains on understanding how a person of ordinary skill in the art would understand the claim terms." Id. Although a specification may describe certain embodiments of an invention, the Federal Circuit cautions against confining the claims to those embodiments. Id. Nevertheless, the Federal Circuit makes clear that if a claim term is construed in a manner that would render the preferred embodiment outside the scope of the patent claim such an interpretation would "rarely, if ever," be correct and would "require highly persuasive evidentiary support." Vitronics, 90 F.3d at 1583. Likewise, claims cannot "enlarge what is patented beyond what the inventor has described as the invention." Abbott Lab. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009)(citations omitted).
The Ungpiyakul Patent is directed towards an absorbent article containing certain registered graphics. The patent discloses an article having certain layers of material including a patch of web material. This patch is secured to the backsheet of an article and contains graphics of a non-random design. The patch also contains a "reference marker" that allows manufacturing equipment to determine where to cut each patch so that it may be attached to an absorbent article.
First Quality argues that the phrase "backsheet layer" found in Claim 1 of this patent means "a layer of material which substantially blocks the passage of liquid." (doc. 168 at 25.) In contrast, KC proposes that we construe the phrase to mean "a layer of the outer cover." (doc. 150 at 45.) In arguing for its construction, First Quality relies on the specification and expert testimony. It contends that the specification shows that "backsheet" and "backsheet layer" are used interchangeably, and indicates that said layer is substantially liquid impermeable. (doc. 168 at 25-27.) First, we must determine whether the intrinsic evidence supports First Quality's argument that "backsheet" and "backsheet layer" are used interchangeably in the patent. Then, we will determine whether the evidence supports KC or First Quality's construction.
We conclude the evidence supports First Quality's contention that "backsheet" and "backsheet layer" are used interchangeably in the patent. Claim 1 states that one part of a finished article is "a backsheet layer." U.S. Patent No. 5,286,543, Claim 1. The specification further provides, referencing Figure 3A, that the "article generally includes a backsheet layer 236, and a substantially liquid permeably topsheet layer 239 which is disposed in an adjacent facing relation with the backsheet layer." Id. at col.6, ll.10-14 (emphasis added). The specification continues stating "[i]n the shown embodiment, the topsheet and backsheet are substantially coextensive and relatively larger than the absorbent pad." Id. at col.6, ll.15-17. Indeed, a "[b]ackseet 236 typically comprises a substantially liquid impermeable polymer film, such as a polyethylene film." Id. at col. 6, ll.61-63 (emphasis added). In addition, the specification includes numerous other references where "backsheet 236" is in place of "backsheet layer." Based on the preceding, we are compelled to conclude that "backsheet" and "backsheet layer" are interchangeable in the Ungpiyakul patent.
In support of its proposed construction, First Quality relies on two embodiments described in the specification. In one embodiment, the specification, as previously cited, provides that a "[b]acksheet 236 typically comprises a substantially liquid impermeable polymer film, such as polyethylene film" and that "the backsheet may comprise a non-woven material which has been imparted with a desired level of liquid impermeability." U.S. Patent No. 5,286,543 at col.6, ll. 61-63; col.6, ll. 68-col.7, ll.1-2. In another embodiment indicated in Figure 3, the specifications states that "substrate 36 is a moving layer composed of a substantially liquid impermeable backsheet material, such as polyolefin film layer." Id. at col.5, ll.59-63. In contrast, KC principally relies on what it believes is a distinction between backsheet and backsheet layer. As we have indicated, we are not persuaded by KC's argument. Instead, we agree with First Quality's contention that the proposed limitation is supported by the claim language and the specification. Nevertheless, we believe that First Quality's construction fails to closely adhere to the language of the specification, which is readily understandable. Thus, we conclude that the intrinsic evidence neither supports First Quality nor KC's construction of the disputed claim term. We believe a person of ordinary skill in the art based on the claim language and the specification would understand "backsheet layer" to mean "a layer of substantially liquid impermeable material." Therefore, we will construe "backsheet layer" to mean "a layer of substantially liquid impermeable material."
2. "A Relatively Smaller Patch Of Web Material"
First Quality argues that "a relatively smaller patch of web material" found in Claim 1 of the Ungpiyakul Patent should be construed to mean "a piece of material that is smaller than the absorbent pad, topsheet layer, and backsheet layer."KC offers that the phrase means "a piece of material that is at least somewhat smaller than the backsheet layer."
After review, we find that the intrinsic evidence supports KC's proposed construction. The specification provides, in relevant part:
The article generally includes a backsheet layer 236, and a substantially liquid permeable topsheet layer 239 which is disposed in an adjacent facing relation with the backsheet layer. An absorbent pad 54 is sandwiched between the topsheet and backsheet layers...Accordingly, marginal portions of the topsheet and backsheet extend beyond the periphery of the absorbent pad to form front and rear waistband edges and lateral side edges. A relatively smaller patch of web material 228 is secured to an inward or outward facing surface of the backsheet layer.
U.S. Patent No. 5,286,543 at col.6, ll. 10-23 (emphasis added). Likewise, Claim 1 specifies that "[a]n article comprising: a backsheet layer; a substantially liquid permeable topsheet layer...An absorbent pad sandwiched between said topsheet and backsheet layers; and a relatively smaller patch of web material secured to an inward or outward facing surface of the said backsheet." U.S. Patent No. 5,286,543, Claim 1. Each of these pieces of evidence indicate that a small patch of web material must be attached to the inward or outward facing surfaces of the backsheet. It follows that in order to be attached to the backsheet the web material must be smaller than said backsheet. Furthermore, the only term appearing in the same clause as a "relatively smaller patch of web material" is the word "backsheet." This indicates that the web material must be relatively smaller than the backsheet in order to be attached to said backsheet. Contrary to First Quality's argument, KC's construction does not impermissibly expand nor limit the ...