United States District Court, D. Delaware
F. Connolly, Esq., David W. Marston Jr., Esq., Jody C.
Barillare, Esq., Morgan, Lewis & Bockius LLP, Wilmington,
Del.; Thomas B. Kenworthy, Esq. (argued), Morgan, Lewis &
Bockius LLP, Philadelphia, Pa.; Raymond R. Moser, Esq., Moser
Taboada, Shrewsbury, N.J., attorneys for Plaintiff.
W. Poff, Esq., Pilar G. Kraman, Esq., Young, Conaway Stargatt
& Taylor LLP, Wilmington, Del.; Douglas J. Nash, Esq.
(argued), John T. Gutkoski, Esq., Barclay Damon, LLP,
Syracuse, N.Y., attorneys for Defendant.
Andrews, U.S. District Judge
Ansell Healthcare Products LLC sued Defendant Reckitt
Benckiser LLC for infringement of U.S. Patents No. 8, 087,
412; No. 8, 464, 719; No. 9, 074, 027; and No. 9, 074, 029.
These patents relate to making latex condoms and gloves. The
parties submitted a joint claim construction brief (D.I. 124)
and I held a Markman hearing on March 1, 2017.
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) (internal
quotation marks omitted). '"[T]here is no magic
formula or catechism for conducting claim construction.'
Instead, the court is free to attach the appropriate weight
to appropriate sources 'in light of the statutes and
policies that inform patent law."' SoftView LLC
v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4,
2013) (quoting Phillips, 415 F.3d at 1324)
(alteration in original). When construing patent claims, a
court considers the literal language of the claim, the patent
specification, and the prosecution history. Markman v.
Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed.
Cir. 1995) (en banc), aff'd, 517 U.S. 370
(1996). Of these sources, "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." Phillips, 415 F.3d at 1315
(internal quotation marks omitted).
words of a claim are generally given their ordinary and
customary meaning. . . . [Which is] the meaning that the term
would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the
effective filing date of the patent application."
Id. at 1312-13 (citations and internal quotation
marks omitted). "[T]he ordinary meaning of a claim term
is its meaning to [an] ordinary artisan after reading the
entire patent." Id. at 1321 (internal quotation
marks omitted). "In 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 claim
construction in such cases involves little more than the
application of the widely accepted meaning of commonly
understood words." Id. at 1314.
court relies solely upon the intrinsic evidence-the patent
claims, the specification, and the prosecution history-the
court's construction is a determination of law. See
Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct.
831, 841 (2015). The court may also make factual findings
based upon consideration of extrinsic evidence, which
"consists of all evidence external to the patent and
prosecution history, including expert and inventor testimony,
dictionaries, and learned treatises." Phillips,
415 F.3d at 1317-19 (internal quotation marks omitted).
Extrinsic evidence may assist the court in understanding the
underlying technology, the meaning of terms to one skilled in
the art, and how the invention works. Id. Extrinsic
evidence, however, is less reliable and less useful in claim
construction than the patent and its prosecution history.
claim construction is persuasive, not because it follows a
certain rule, but because it defines terms in the context of
the whole patent." Renishaw PLC v. Marposs
Societa'per Azioni, 158 F.3d 1243, 1250 (Fed. Cir.
1998). It follows that "a claim interpretation that
would exclude the inventor's device is rarely the correct
interpretation." Osram GMBH v. Int'l Trade
Comm'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007)
(citation and internal quotation marks omitted).
Construction Of Disputed Terms
primary dispute in the claim construction brief and at the
Markman hearing was whether several of the claim
terms are indefinite. As I stated in open court, I am
declining to rule that any of the claim terms are indefinite
at this point. While claim construction is an appropriate
time to rule on some sorts of indefiniteness arguments, I do
not think it is for the issues Defendant raises. Defendant is
free to renew its indefiniteness arguments later in the
constructions were offered by at least one party on several
terms.My construction of those terms are as
"synthetic polyisoprene particles that are
a. Plaintiffs proposed construction: "Synthetic
polyisoprene particles that have had some amount of
cross-linking prior to the dipping of a former into the latex
b. Defendant's proposed construction:
"Particles subjected to a pre-vulcanization process
that, among other things, applies a temperature that is in
excess of 22 degrees Celsius."
c. Court's construction: "synthetic
polyisoprene particles that have had some amount of
intraparticle cross-linking prior to the dipping of a former