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Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC

United States District Court, D. Delaware

August 28, 2019

SUNOCO PARTNERS MARKETING & TERMINALS L.P., Plaintiff,
v.
POWDER SPRINGS LOGISTICS, LLC, AND MAGELLAN MIDSTREAM PARTNERS, L.P., Defendants. Term Plaintiffs Proposed Construction Defendants' Proposed Construction Term Plaintiffs Proposed Construction Defendants' Proposed Construction Term Plaintiffs Proposed Construction Defendants' Proposed Construction

          REPORT AND RECOMMENDATION

          CHRISTOPHER J. BURKE, UNITED STATES MAGISTRATE JUDGE

         In this 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").[1] Presently before the Court is the matter of claim construction. The Court recommends that the District Court adopt the constructions as set forth below.

         I. BACKGROUND AND STANDARD OF REVIEW

         The 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.

         The 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).

         "[A] 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 908.

         Like 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).[2]

         II. DISCUSSION

         The 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 and Recommendation.

         A. "vapor pressure"

         The 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:

Term
Plaintiffs Proposed Construction
Defendants' Proposed Construction

"vapor pressure"

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.

         1. Why Defendants' Proposed Limitations Are Not Appropriate

         Is "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."

         Rather, 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"))

         Relatedly, 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."

         In 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 117)

         But 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.

         With 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 explains that:

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))[3] 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") (emphasis added))[4]

         The '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 meaning[.]").

         Therefore, 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.[5]

         Lastly, 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.

         Certain 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)

         2. The Proper Construction for the Term

         With 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.

         Defendants 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))[6] Thus, the parties seem to have similar understandings with respect to what "vapor pressure" actually is.

         Therefore, the Court recommends that "vapor pressure" be construed to mean "pressure exerted by the vapor of a liquid when in ...


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