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Dasso International, Inc. v. Moso North America, Inc.

United States District Court, D. Delaware

May 16, 2019

DASSO INTERNATIONAL, INC. and EASOON USA, LLC, Plaintiffs,
v.
MOSO NORTH AMERICA, INC. and MOSO INTERNATIONAL BV, Defendants.

          Sean 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.

          David 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.)

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Presently 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.")).

         I. BACKGROUND

         The '578 Patent relates to "bamboo scrimber[1] 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).

         The Parties dispute terms in claims 1, 8, and 16 of the '578 Patent. Claim 1 is representative:

         A 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)).

         The 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)).

         The Parties agree on constructions for three additional terms. (D.I. 106 at 14).

         II. LEGAL STANDARD

         "It 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).

         "[T]he 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.

         When a 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. Id.

         "A 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).

         III. CONSTRUCTION OF DISPUTED TERMS

         A. "modified through heat-treatment so that at least apart of hemicelluloses in said bamboo ...


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