United States District Court, D. Delaware
REPORT AND RECOMMENDATION
CHRISTOPHER J. BURKE, UNITED STATES MAGISTRATE JUDGE
action filed by Plaintiff Sunoco Partners Marketing &
Terminals L.P ("Sunoco" or "Plaintiff) against
Powder Springs Logistics, LLC ("Powder Springs")
and Magellan Midstream Partners, L.P. ("Magellan"
and collectively with Powder Springs,
"Defendants"), Sunoco alleges infringement of
United States Patent Nos. 6, 679, 302 (the "'302
patent"), 7, 032, 629 (the "'629 patent"),
9, 207, 686 (the '"686 patent"), 9, 494, 948
(the '"948 patent) and 9, 606, 548 (the
'"548 patent" and collectively with the other
patents, "the asserted patents"). Presently before
the Court is the matter of claim construction. The Court
recommends that the District Court adopt the constructions as
set forth below.
BACKGROUND AND STANDARD OF REVIEW
Court hereby incorporates by reference the summary of the
background of this matter set out in its July 26, 2019 Report
and Recommendation ("July 26 R&R"). (D.I. 321
at 1- 2) It additionally incorporates by reference the legal
principles regarding claim construction set out in the July
26, 2019 R&R. (Id. at 2-5) Because Defendants
contend that certain of the disputed claim terms addressed
herein are indefinite, (see, e.g., D.I. 171 at
17-20), the Court further includes below the applicable
standard for definiteness.
primary purpose of the definiteness requirement is to ensure
that patent claims are written in such a way that they give
notice to the public of what is claimed, thus enabling
interested members of the public (e.g., competitors of the
patent owner) to determine whether they infringe. All
Dental Prodx, LLC v. Advantage Dental Prods., Inc., 309
F.3d 774, 779-80 (Fed. Cir. 2002). Put another way, "[a]
patent holder should know what he owns, and the public should
know what he does not." Festo Corp. v. Shoketsu
Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 731 (2002).
Even so, the Supreme Court of the United States has
recognized that "absolute precision is
unattainable" and not required. Nautilus, Inc. v.
Biosig Instruments, Inc., 572 U.S. 898, 910 (2014).
patent is invalid for indefiniteness if its claims, read in
light of the specification delineating the patent, and the
prosecution history, fail to inform, with reasonable
certainty, those skilled in the art about the scope of the
invention." Id. at 901. definiteness is to be
evaluated from the perspective of a person of ordinary skill
in the art at the time the patent was filed. Id. at
claim construction, definiteness is a question of law for the
court. H-W Tech, L.C. v. Overstock.com, Inc., 758
F.3d 1329, 1332 (Fed. Cir. 2014); Pi-Net Int'l Inc.
v. JPMorgan Chase & Co., 42 F.Supp.3d 579, 586 (D.
Del. 2014). The United States Court of Appeals for the
Federal Circuit has stated that "[a]ny fact critical to
a holding on indefiniteness . . . must be proven by the
challenger by clear and convincing evidence." Intel
Corp. v. VIA Techs., Inc., 319 F.3d 1357, 1366 (Fed.
Cir. 2003); see also Tech. Licensing Corp. v. Videotek,
Inc., 545 F.3d 1316, 1338 (Fed. Cir.2008).
parties had claim construction disputes regarding five terms
or sets of terms (hereinafter, "terms"). The Court
has addressed one of these terms in a previously-issued
Report and Recommendation. (D.I. 321) The Court addresses
three of the four remaining terms herein; the final term
("gasoline") will be addressed in a separate Report
claim term "vapor pressure" appears in claims of
all five asserted patents. (D.I. 166, ex. A at 3-4) The
parties' competing proposed constructions for "vapor
pressure" are set out in the chart below:
Plaintiffs Proposed Construction
Plain and ordinary meaning, or alternatively, "a
physical property of volatile liquids"
"volatility of gasoline or butane, including as
measured by Reid vapor pressure, true vapor pressure,
and vapor/liquid ratio"
(D.I. 171 at 13) The parties have two main disputes with
respect to this term: (1) whether "vapor pressure"
means the same thing as "volatility" (and
relatedly, whether measuring vapor/liquid ratio qualifies as
a way to measure vapor pressure); and (2) whether the
construction should require a measurement. (See,
e.g., Tr. at 95-96, 109-10; D.I. 188 at 8, 10)
Defendants believe that the answer to both questions is
"yes," as is reflected in their proposal. The Court
will first explain why it does not agree, and will then
consider the appropriate construction for the term.
Why Defendants' Proposed Limitations Are Not
"vapor pressure" the exact same thing as
"volatility," as Defendants' construction
suggests? In the Court's view, the answer (pursuant to
the intrinsic record) is "no."
the specification of the '302 patent explains with
respect to volatility that "[a] significant physical
property of gasoline is its volatility, or its ability to
combust[, ]" and that measuring the vapor pressure of
gasoline is a way to assess the volatility of the
gasoline. ('302 patent, col. 1:28-34) To that end, the
specification states that:
There are two principle methods for assessing the
volatility of gasoline: (1) measuring the vapor-liquid ratio,
and (2) measuring the vapor pressure. The Reid method is the
standard test for measuring the vapor pressure of petroleum
products. Reid vapor pressure (sometimes "RVP") is
related to true vapor pressure, but is a more accurate
assessment for petroleum products because it considers sample
vaporization as well as the presence of water vapor and air
in the measuring chamber.
(Id., col. 1:29-37 (emphasis added)) With respect to
the relationship between vapor pressure and volatility, this
portion of the specification conveys that "[t]he Reid
vapor pressure of gasoline affects the ease with which
gasoline is combusted[, ]" (id., col. 1:38-40
(emphasis added)), and that gasoline marketers blend agents
including butane into gasoline "to increase the Reid
vapor pressure and volatility of the gasoline[,
]" (id., col. 1:44-48 (emphasis added)). This
all suggests that, according to the patents, while vapor
pressure is something that, when measured, can help one
assess the volatility of gasoline, vapor pressure and
volatility are not the same thing. (D.I. 315
("Tr.") at 100-01, 123 (Defendants' counsel
acknowledging that measuring vapor pressure is a
"method of measuring volatility"))
does measuring "vapor/liquid ratio" qualify as a
way to measure "vapor pressure" and are
"vapor/liquid ratio" and "vapor pressure"
the same thing (as Defendants suggest)? Again, in the
Court's view, the answer is "no."
support of their position to the contrary, Defendants point
to a portion of the '302 patent specification that they
contend "[e]xpressly define[s]" the term vapor
pressure as reflected in their proposal. (D.I. 171 at 13
(emphasis omitted); see also D.I. 188 at 8; Tr. at
104-05) That portion of the specification states that:
In the description of the embodiments of the invention and
the claims that follow, measuring the vapor pressure will
refer generally to the volatility of the gasoline or butane.
Indeed, the term vapor pressure is meant to encompass both
Reid vapor pressure as measured by applicable ASTM
procedures, and other measures of vapor pressure such as true
vapor pressure and vapor/liquid ratio.
('302 patent, col. 5:47-53) Defendants' counsel
asserts that this description tells us that when the patentee
uses "vapor pressure" in the claims, the patentee
is "referring to all three of those volatility
measurements [i.e., vapor/liquid ratio, Reid vapor pressure,
and true vapor pressure]." (Tr. at 102; see also
Id. at 103 ("I think generally [with respect to the
term] vapor pressure, [the patentee] equate[s] it to
volatility and volatility can be measured [in these three
ways].")) And the Court acknowledges that this portion
of the specification, read in isolation, is helpful to
Defendants' position. Indeed, even Sunoco concedes that
the above sentence "is perhaps confusing" with
respect to the definition of vapor pressure. (Id. at
ultimately, the Court agrees with Sunoco that when the entire
intrinsic record is considered, that record demonstrates that
"vapor pressure" and "vapor/liquid ratio"
do not mean the same thing. This is seen by examining other
portions of the patent specifications as well as certain of
the patents' claims.
regard to the patent specifications, it is for example
notable that in the very next sentences following the
'302 patent excerpt referenced above, the patentee
It should be understood that vapor pressure measurements
can also include a measurement of the vapor-liquid ratio at a
certain temperature. In certain embodiments of the
present invention measurements may be taken for both
vapor pressure and vapor-liquid ratio.
('302 patent, col. 5:53-58 (emphasis
added)) If "vapor pressure" and
"vapor/liquid ratio" meant the exact same thing,
and if measuring "vapor pressure" and measuring
"vapor/liquid ratio" described the exact same
process, then these sentences would not make sense. (Tr. at
116-18 ("[I]f vapor pressure was the same as vapor to
liquid ratio, why would you say include a measurement of the
vapor to liquid ratio [at] certain temperatures with vapor
pressure measurement.")) Moreover, the '302 patent
and '548 patent specifications explain that "[i]n an
alternative embodiment of the invention, the vapor-liquid
ratio of the gasoline may be measured instead of or
in conjunction with the vapor pressure, to assess the
volatility of the gasoline. Other embodiments of the
invention may measure other physical characteristics to
determine the volatility of the gasoline." ('302
patent, col. 11:12-17 (emphasis added); '548 patent, col.
16:52- 57 (emphasis added); see also '302
patent, col. 3:23-31 (noting that the ratio of gasoline and
butane to be blended can be varied to "achieve any
desired vapor pressure or vapor/liquid ratio")
'302 patent's claims also indicate that "vapor
pressure" and "vapor/liquid ratio" are not the
same thing. (D.I. 176 at 9-10; D.I. 191 at 7) For example,
independent claim 27 of the '302 patent recites,
inter alia, "[a] method for blending butane and
gasoline using a processor" that includes
"receiving a gasoline volatility measurement at
the processor." ('302 patent, col. 15:54-65
(emphasis added)) Claim 33 then recites "[t]he method of
claim 27 wherein the gasoline volatility measurement is
the vapor-liquid ratio of the gasoline."
(Id., col. 16:14-15 (emphasis added)) Claim 34 then
recites "[t]he method of claim 27 wherein the
gasoline volatility measurement is the vapor pressure of
the gasoline." (Id., col. 16:17-18 (emphasis
added)) The Court agrees with Sunoco that these claims
indicate that "while 'volatility' includes
'vapor-liquid ratio' and 'vapor pressure,'
the term 'vapor pressure' does not include
'vapor-liquid ratio.'" (D.I. 176 at 10); see
also, e.g., Aspex Eyewear, Inc. v. Marchon Eyewear,
Inc., 672 F.3d 1335, 1349 (Fed. Cir. 2012) ("The
fact that the two adjacent claims use different terms in
parallel settings supports the district court's
conclusion that the two terms were not meant to have the same
in the Court's view, the patents as a whole convey that:
(1) vapor pressure and vapor/liquid ratio are two physical
characteristics of gasoline; and (2) measuring these physical
characteristics constitutes two separate, principle methods
of assessing the volatility of gasoline.
the Court further agrees with Sunoco that Defendants'
proposal wrongly includes a limitation that the "vapor
pressure" must be "measured." Defendants fail
to show that the term "vapor pressure" alone
imposes a requirement that an actual measurement be
performed; rather, the term, standing alone, appears to
simply describe a particular physical property of volatile
liquids. (D.I. 176 at 9 & ex. A at ¶ 5.1) Of course,
the intrinsic record makes clear that "vapor
pressure" is something that can be measured.
For example, the specification of the '302 patent
explains that one of the principle methods for assessing the
volatility of gasoline is "measuring the vapor
pressure." ('302 patent, col. 1:29-31) It is just
that the use of the term "vapor pressure" itself
does not inherently require a measurement.
claims of the asserted patents also bear this out. For
instance, claim 14 of the '302 patent recites a method
for blending gasoline and butane at a tank farm "wherein
the blend ratio is determined from a vapor pressure
of the gasoline stream and a vapor pressure of the
butane stream." (Id., col. 14:19-21 (emphasis
added)) This claim does not expressly recite a requirement
that the vapor pressure actually be measured. (See
D.I. 191 at 9) Meanwhile, in contrast, claim 15 of the
'302 patent recites a method for blending gasoline and
butane at a tank farm wherein a vapor pressure of the
gasoline stream and a vapor pressure of the butane are
"determined" by "drawing a sample of gasoline
[and] measuring the vapor pressure of the sample of
gasoline" (and doing the same for the sample of butane).
('302 patent, col. 14:22-31) When the claims require an
actual measurement of vapor pressure, they make that clear
through the use of express measurement limitations.
(See D.I. 176 at 11)
The Proper Construction for the Term
all of the above established, the Court must now consider the
proper construction for "vapor pressure."
Sunoco's proposal, "a physical property of volatile
liquids," addresses the meaning of vapor pressure at a
very high level, but fails to explain what vapor pressure
actually is-.i.e., what physical property of such
liquids is vapor pressure describing? (See D.I. 188
at 10) It would be helpful to a factfinder to have some
substantive explanation on that front.
have described vapor pressure as constituting "the
pressure exerted by vapor as it evaporates." (D.I. 179,
Slide 110) And the American Society for Testing and Materials
("ASTM") Standard Test Method for Vapor Pressure of
Petroleum Products, cited by Sunoco in its brief, defines
vapor pressure as '"pressure exerted by the vapor of
a liquid when in equilibrium with the liquid.'"
(D.I. 176 at 9 (quoting id., ex. A at ¶
3.1.5)) Thus, the parties seem to have similar
understandings with respect to what "vapor
pressure" actually is.
the Court recommends that "vapor pressure" be
construed to mean "pressure exerted by the vapor of a
liquid when in ...