United States District Court, D. Delaware
DASSO INTERNATIONAL, INC. and EASOON USA, LLC, Plaintiffs,
MOSO NORTH AMERICA, INC. and MOSO INTERNATIONAL BV, Defendants.
T. O'Kelly, O'KELLY ERNST & JOYCE, LLC,
Wilmington, DE; Gerard M. O'Rourke (argued), O'ROURKE
LAW OFFICE, LLC, Wilmington, DE; Scott R. Hoopes, MILLS &
HOOPES, LLC, Lawrenceville, GA. Attorneys for Plaintiffs.
E. Moore, Bindu A. Palapura, & Stephanie E. O'Byrne,
POTTER ANDERSON & CORROON LLP, Wilmington, DE; Thomas G.
Pasternak (argued) & John M. Schafer, AKERMAN LLP,
Chicago, IL; Evelina Gentry, AKERMAN LLP, Los Angeles, CA.
Attorneys for Defendants.)
ANDREWS, U.S. DISTRICT JUDGE.
before the Court is the issue of claim construction of
multiple terms in U.S. Patent No. 8, 709, 578 ('"578
patent"). I have considered the Parties' Joint Claim
Construction Brief. (D.I. 106). I heard oral argument on
April 25, 2019. (D.I. 127 ("Tr.")).
'578 Patent relates to "bamboo
scrimber including a plurality of pressure-pressed
bamboo strips impregnated with an adhesive and modified
through heat-treatment and a method of manufacturing such
bamboo scrimber." ('578 Patent at 1:20-24).
Parties dispute terms in claims 1, 8, and 16 of the '578
Patent. Claim 1 is representative:
bamboo scrimber comprising:
a plurality of pressure-pressed bamboo strips impregnated
with an adhesive and modified through heat-treatment so
that at least a part of hemicelluloses in said bamboo strips
is pyrolysized, wherein each of said bamboo strips is formed
with a plurality of slots penetrating through said bamboo
strip substantially in a direction of thickness defined
by said bamboo strip and a substantially longitudinal
direction defined by said slots is substantially consistent
with a substantially longitudinal direction defined by fibers
of said bamboo strip.
('578 Patent, claim 1 (disputed terms italicized)).
Parties dispute a term that appears in claims 13 and 17 of
the '578 Patent. Claim 13 is representative:
A method of manufacturing a bamboo scrimber as set forth in
claim 8, wherein the heat-treatment includes steps of heating
the bamboo strips to absolute dryness and cooling
the pyrolysized bamboo strips.
('578 Patent, claim 13 (disputed term italicized)).
Parties agree on constructions for three additional terms.
(D.I. 106 at 14).
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, 415F.3datl315
(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
TevaPharm. 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
"modified through heat-treatment so that at least apart
of hemicelluloses in said bamboo ...