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Liqwd, Inc. v. L'Oreal USA, Inc.

United States District Court, D. Delaware

May 2, 2019

LIQWD, INC. and OLAPLEX LLC, Plaintiffs,
v.
L'ORÉAL USA, INC., L'ORÉAL USA PRODUCTS, INC., L'ORÉAL USA S/D, INC., and REDKENS 5TH AVENUE, NYC, L.L.C., Defendant.

          MEMORANDUM AND ORDER CLAIM CONSTRUCTION

          Joseph F. Bataillon, Senior United States District Judge.

         This matter is before the Court on the objections by defendants, D.I. 620, to the report and recommendation of the magistrate judge, D.I. 602. Liqwd filed its claim construction chart. D.I. 404. The parties filed numerous briefs. Plaintiffs oppose defendants' objections. D.I. 646. In this patent infringement action filed by plaintiffs Liqwd, Inc. and Olaplex LLC (together, "Olaplex") against defendants L'Oreal USA, Inc., L'Oreal USA Products, Inc., L'Oreal USA S/D, Inc., and Redken 5th Avenue NYC, LLC (collectively, "L'Oreal"), Olaplex alleges infringement of United States Patent Nos. 9, 498, 419 ("the '419 patent") and 9, 668, 954 ("the '954 patent") (D.I. 262 at ¶¶ 90-138).

         I. STANDARD OF REVIEW

         The standard of review is governed by 28 U.S.C. § 636(b)(1)(C) and Federal Rule of Civil Procedure 72(b). The district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made” and “may also receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C). Similarly, Rule 72(b)(3) requires de novo review of any recommendation that is dispositive of a claim or defense of a party. The Court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         The Supreme Court has construed the statutory grant of authority conferred on magistrate judges under 28 U.S.C. § 636 to mean that nondispositive pretrial matters are governed by § 636(b)(1)(A) and dispositive matters are covered by § 636(b)(1)(B). Gomez v. United States, 490 U.S. 858, 873-74 (1989); see alsoFed. R. Civ. P. 72(a). Under subparagraph (B), a district court may refer a dispositive motion to a magistrate judge “to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition.” 28 U.S.C. § 636(b)(1)(B); see EEOC v. City of Long Branch, 866 F.3d 93, 99-100 (3d Cir. 2017). The product of a magistrate judge, following a referral of a dispositive matter, is often called a “report and recommendation.” Id.“Parties ‘may serve and file specific written objections to the proposed findings and recommendations' within 14 days of being served with a copy of the magistrate judge's report and recommendation.” Id. (quoting Fed.R.Civ.P. 72(b)(2)).

         “If a party objects timely to a magistrate judge's report and recommendation, the district court must ‘make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.'” EEOC, 866 F.3d at 99 (quoting 28 U.S.C. § 636(b)(1)).

         Claim construction determinations in an R&R are reviewed de novo. See St. Clair Intellectual Prop. Consultants, Inc. v. Matsushita Elec. Indus. Co., 691 F.Supp.2d 538, 542 (D. Del. 2010); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). Claim construction falls “exclusively within the province of the court, ” not that of the jury. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 837 (2015) (quoting Markman, 517 U.S. at 370). It is proper for courts to “treat the ultimate question of the proper construction of the patent as a question of law in the way that [courts] treat document construction as a question of law.” Id. at 837, 841 (noting that when the 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, however, underlying factual determinations are reviewed for clear error).

         The claims of a patent define the scope of the patent. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). The claims of a patent are of primary importance in determining what is patentable and the function and purpose of a claim is to “delimit the right to exclude.” Id. The purpose of claim construction is to “determin[e] the meaning and scope of the patent claims asserted to be infringed.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). A claim construction order will dictate how the court will instruct the jury regarding a claim's scope. O2 Micro Int'l Ltd. v. Beyond Innovation Technology Co., Ltd., 521 F.3d 1351, 1359 (Fed. Cir. 2008).

         The process of construing a claim term begins with the words of the claims. Phillips, 415 F.3d at 1312-14; Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Absent contravening evidence from the specification or prosecution history, plain and unambiguous claim language controls the construction analysis. DSW, Inc. v. Shoe Pavilion, Inc., 537 F.3d 1342, 1347 (Fed. Cir. 2008). However, the claims “must be read in view of the specification, of which they are a part.” Phillips, 415 F.3d at 1315 (quoting Markman, 52 F.3d at 979); see Tempo Lighting, Inc. v. Tivoli, LLC, 742 F.3d 973, 977 (Fed. Cir. 2014) (stating in claim construction, the court “gives primacy to the language of the claims, followed by the specification”). Additionally, the prosecution history, while not literally within the patent document, serves as intrinsic evidence for purposes of claim construction. Id.

         If a claim term remains ambiguous after an examination of intrinsic evidence, the court may resort to extrinsic evidence. Interactive Gift Express, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001). Extrinsic evidence includes expert and inventor testimony, dictionaries, and learned treatises. Phillips, 415 F.3d at 1317. Extrinsic evidence is less reliable and less persuasive than intrinsic evidence since such evidence is not part of the patent and was not created concurrently with the prosecution of the patent. Id. at 1317-19; Summit 6, LLC v. Samsung Electronics Co., 802 F.3d 1283, 1290 (Fed. Cir. 2015) (“Although courts are permitted to consider extrinsic evidence, like expert testimony, dictionaries, and treatises, such evidence is generally of less significance than the intrinsic record”). “Extrinsic evidence may not be used ‘to contradict claim meaning that is unambiguous in light of the intrinsic evidence.'” Summit 6, LLC, 802 F.3d at 1290 (quoting Phillips, 415 F.3d at 1324).

         “[A] district court is not obligated to construe terms with ordinary meanings, lest trial courts be inundated with requests to parse the meaning of every word in the asserted claims.” O2 Micro Int'l Ltd., 521 F.3d at 1360. However, when the parties raise an actual dispute regarding the proper scope of these claims, the court, not the jury, must resolve that dispute. Id.

         The 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 in question at the time of the invention. Phillips, 415 F.3d at 1313. The inquiry into how a person of ordinary skill in the art understands a term provides an objective baseline for which to begin claim interpretation. Id.“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.” Id. at 1314.

         “‘There are only two exceptions to the general rule [that claim terms are given their plain and ordinary meanings to one of skill in the art]: 1) when a patentee sets out a definition and acts as his own lexicographer, or 2) when the patentee disavows the full scope of the claim term either in the specification or during prosecution.'” Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d 1362, 1365 (Fed. Cir. 2014) (quoting Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)). “To act as its own lexicographer, a patentee must ‘clearly set forth a definition of the disputed claim term' other than its plain and ordinary meaning.” Thorner, 669 F.3d at 1365-66 (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)). “It is not enough for a patentee to simply disclose a single embodiment or use a word in the same manner in all embodiments, the patentee must ‘clearly express an intent' to redefine the term.” Id. at 1366 (quoting Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008)). The inventor's written description of the invention is relevant and controlling insofar as it provides clear lexicography. Id.

         The court is guided in the claim construction endeavor by several “canons of claim construction” or guideposts. Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc.,246 F.3d 1368, 1376 (Fed. Cir. 2001). Under the doctrine of claim differentiation, a dependent claim has a narrower scope than the claim from which it depends, and an independent claim has a broader scope than the claim that depends from it. Free Motion Fitness, Inc. v. Cybex Int'l, Inc.,423 F.3d 1343, 1351 (Fed. Cir. 2005). Also, ordinarily, claims are not limited to the preferred embodiments disclosed in the specification. Phillips, 415 F.3d at 1323. Different words in a patent have different meanings and the same words have the same meaning. Innova/Pure Water, Inc., v. Safari Water Filtration Systems, Inc.,381 F.3d 1111, 1119-20 (Fed. Cir. 2004). Use of the open-ended term of art, “comprising, ” allows the addition of other elements so long as the named elements, which are essential, are included. SeeGenentech, Inc. v. Chiron Corp.,112 F.3d 495, 501 (Fed. Cir. 1997). Generally, a preamble is not limiting. Summit 6, LLC, 802 F.3d at 1292 (noting, for example that preamble language that merely states the purpose or intended use of an invention is generally not treated as limiting the scope of the claim). “When the applicant adds a claim or otherwise amends his specification after the original filing date, . . . the new claims or other added material must find support in the original specification.” T ...


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