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Mintz v. Dietz & Watson

February 13, 2009

NEIL MINTZ, ET AL., PLAINTIFFS,
v.
DIETZ & WATSON, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

CLAIM CONSTRUCTION ORDER

This matter came on for claim construction hearings in accordance with Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996).

FACTUAL BACKGROUND

Plaintiffs hold United States Patent Number 5,413,148 (the '148 patent) entitled "Casing Structure for Encasing Meat Products" that has a total of eight claims. The patent issued on January 6, 1994. This patent is intended to facilitate the cooking and/or smoking process of meat products by way of an encasement that integrates a knitted stockinette and knitted netting arrangement. The netting arrangement provides a visual appearance, a checkerboard, that is integrally formed with the stockinette member, which is intended to compress the meat and to prevent the meat from pressing through the netting arrangement, to form a one-piece tubular meat encasement. Plaintiffs allege defendants have infringed the '148 patent.

APPLICABLE PATENT LAW

There is patent infringement if any one of a patent's claims covers the alleged infringer's product or process. SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 889 (Fed. Cir. 1988). Before determining whether a patent covers an alleged infringing device, it is necessary to conduct a claim construction hearing to determine what the terms of the claim mean. Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995)(en banc), aff'd, 517 U.S. 370 (1996); see also, Novartis Pharms. Corp. v. Abbott Labs., 375 F.3d 1328, 1332 (Fed. Cir. 2004); SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 874 (Fed. Cir. 2004). "A claim in a patent provides the metes and bounds of the right which the patent confers on the patentee to exclude others from making, using, or selling the protected invention." Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed. Cir. 1989). "'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.'" Terlep v. Brinkmann , 418 F.3d 1379, 1381 (Fed. Cir. 2005) (quoting Embrex, Inc. v. Serv. Eng'g Corp., 216 F.3d 1343, 1347 (Fed. Cir. 2000)).

Under Markman, the court as a matter of law must construe the claims of the patent at issue. Markman, 52 F.3d at 979; Terlep, 418 F.3d at 1381-82. "Words of a claim are generally given their ordinary and customary meaning, which is the meaning a term would have to a person of ordinary skill in the art after reviewing the intrinsic record at the time of the invention." O2 Micro Intern. Ltd. v. Beyond Innovation Technology Co., Ltd., 521 F.3d 1351, 1359 (Fed. Cir. 2008) (citing Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) en banc)). "In some cases, the ordinary meaning of claim language . . . may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words." Phillips, 415 F.3d at 1314. The plain and ordinary meaning defines the scope of the claim unless the patentee has explicitly disclaimed or clearly disavowed this meaning in the specification or prosecution history. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (requiring "words or expressions of manifest exclusion or restriction" before broad terms in a claim will be read narrowly in light of a narrow specification).

DISCUSSION

I. Claims at Issue

The parties dispute several terms used in Claim 1, the only independent claim, and dependent Claim 4. The claims read as follows:

1. An elongated tubular casing structure for encasing meat products, said elongated structure having a longitudinal direction and a transverse lateral direction, said casing structure comprising: a stockinette member comprising a closely knit tubular member formed of closely knit threads and having a first stretch capacity; a knitted netting arrangement having a second stretch capacity and comprising a first plurality of spaced strands extending in said longitudinal direction and a second plurality of spaced strands extending in said lateral direction; the longitudinal and lateral strands of said netting arrangement each intersecting in locking engagement with one another to form a grid-like pattern comprising a plurality of four-sided shapes; said strands of said netting arrangement being knit into the threads of said stockinette member, whereby said netting arrangement and said stockinette member are integrally formed so that said casing structure comprises an integrally formed structure; said first stretch capacity being greater than said second stretch capacity; WHEREBY when a meat product is stuffed into said casing structure under pressure, said meat product forms a bulge within each of said four-sided shapes to thereby define a checker-board pattern on the surface thereof, said stockinette member forming a shield to prevent the adherence of adjacent meat product bulges over said strands of said netting arrangement.

4. A casing structure as defined in claim 3 wherein each loop is interlaced with an adjacent preceding loop and an adjacent following loop; whereby to form a plurality of aligned interlaced loops; each longitudinal strand comprising one of said aligned interlaced loops.

(Patent)

The parties dispute the construction of the following terms: "integrally formed", stockinette member", "netting arrangement", "strand", "thread", "longitudinal strand", "latitudinal strand", "locking engagement" and "checkerboard pattern".*fn1

1. Integrally Formed

Plaintiffs provide an ordinary and customary construction of the term "integrally formed": "formed as a unit." As plaintiffs pointed out during the Markman hearing, "that is the plain meaning of this language." (Markman Tr. at 45.)

Defendants assert that plaintiffs' plain meaning of the term is too simplistic and not reflective of the "claim language, specification and drawings, the prosecution history and the plaintiffs' own brief." Id. at 62. In contrast to the plain meaning definition, defendants' proposed construction of "integrally formed" is "the strands of the netting arrangement are knit into the physically divisible stockinette member to form a unit." Defendants first point to Figure 1 of the patent which shows a netting arrangement standing alone. With their proposed construction, defendants further contend they are relying on the claim itself which indicates that the strands of the netting arrangement are to be knit into the threads of the stockinette member to create an integrally formed structure. Id. at 62-63. But defendants' proposed construction does not take into account the patent's second preferred embodiment which demonstrates that two separate structures are unnecessary.

Here, plaintiffs have not demonstrated an intent to deviate from the ordinary and customary meaning of "integrally formed" by redefining the term. Based on claim language, the Court construes "integrally formed" as "formed as a unit."

2. Stockinette Member

Plaintiffs' proposed construction of "stockinette member" is "a closely knit tubular member formed of closely knit threads." Defendants would modify plaintiffs' construction to include: "closely knit threads forming rows of regular loops and having a closer knit and smaller opening than the netting arrangement."

Plaintiffs contend that defendants "agree that the proposed definition offered by the plaintiffs is found in the claims" (Plaintiff's response to defendants' opening brief at 7) but by inserting additional language in their construction, defendants are attempting to impermissibly narrow the construction and interject language used exclusively in a prior art, the '057 Lombardi patent. The dispute surrounding the construction is the "terminology of forming rows of regular loops, having a closer knit and smaller openings than the netting arrangement." (Markman Tr. at 66. (emphasis added)) Plaintiffs argue that the only limitations contained within the claim are that the stockinette member be (1) knit, (2) closely knit, and (3) have a first-stretch, i.e., greater stretch capacity, than the netting arrangement. (Markman Tr. at 30.) The Court agrees. The unambiguous language of the claim does not require "regular loops" or any particular stitch be used in the stockinette member.

But defendants contend that the term "rows of regular knit" is necessary for the proper construction of the term "stockinette member" based on the prosecution history wherein plaintiffs distinguished their invention over the prior art of Lombardi. Plaintiffs' Office Action Response, dated August 9, 1994, states with reference to Figure 4 that "the top of the long loop of yarn 42 in wale 3, row 25, being separated from the special yarn [the netting arrangement] in row 27 by one row 26 of regular loops (i.e., loops of the regular yarn)." (Defendants' Exh. B 151.) Based on this language, defendants ...


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