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ALLURE HOME CREATION CO. v. ZAK DESIGNS

United States District Court, D. New Jersey


August 10, 2005.

ALLURE HOME CREATION CO., Inc., a New Jersey corporation Plaintiff,
v.
ZAK DESIGNS, INC., a Washington corporation Defendant.

The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District

OPINION

On July 29, 2004, this Court conducted a hearing for the purpose of construing the claims of U.S. Patent No. 6,155,411, the focus of the present infringement action between the parties. After receiving proposed findings of fact and conclusions of law and replies from each side, and after reviewing the record and exhibits herein, the Court issues the present opinion.

  This Court acknowledges and applies the following rules of law regarding the construction of claims issue. In doing so, the Court quotes liberally from the standards as expressed recently by the Honorable Judge William G. Bassler of this Court in Daiichi Pharm. Co., Ltd. v. Apotex, Inc., 03-937 (WGB) (Opinion August 8, 2005).*fn1

  I. Legal Framework

  A patent infringement action involves two steps: (1) the claims must be properly construed in order to determine their scope and meaning, and (2) the claims as properly construed must be compared to the accused device or process. See CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 1146, 1152 (Fed. Cir. 1997), cert. denied, 522 U.S. 1109 (1998). The first step is a threshold issue of law for this Court to decide. See Markman v. Westview Instr., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). At this juncture in this case, only the first step will be addressed.

  "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., No. 03-1269, 03-1286, 2005 WL 1620331, at *4 (Fed. Cir. July 12, 2005) (internal quotation marks omitted). Accordingly, a court, in construing the terms of a patent, should look first to the language of the claim itself. Vitronics Corp. v. Conceptronics, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).

  The words of a claim "are generally given their ordinary and customary meaning." Phillips, 2005 WL 1620331, at *5 (internal quotation marks omitted). "[T]he ordinary and customary meaning of a claim term 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.

  The ordinary meaning of a term cannot, however, be construed in a vacuum; rather, a court must "must look at the ordinary meaning in the context of the written description and the prosecution history." Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed. Cir. 2005). The court does so to "determine whether the inventor used any terms in a manner inconsistent with their ordinary meaning." Vitronics, 90 F.3d at 1582.

  Recently, the Federal Circuit clarified the importance of using the specification and other intrinsic evidence to determine the meaning of a claim. See Phillips, 2005 WL 1620331, at *13 (stating that "the specification acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication"). Similarly, a patent's prosecution history may clarify the meaning of a claim, particularly in light of exchanges between the patent applicant and the PTO. See Northern Telecom, Ltd. v. Samsung Elec. Co., 215 F.3d 1281 (Fed. Cir. 2000). Thus, the claim language, the specification, and the patent prosecution history — collectively referred to in patent law as the "intrinsic record" — are the foundation of claim construction analysis and will, in most instances, resolve any dispute regarding the interpretation of a claim term. Vitronics, 90 F.3d at 1582-83 ("Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.")

  Only in the rare circumstance in which there is still doubt as to the meaning of a claim after the court has examined the intrinsic record, should a court look to extrinsic evidence such as treatises, technical references, and expert testimony, to resolve any doubts or ambiguities. Id. at 1583.

  II. Analysis

  In this case at bar, the Court has determined that examination of the claims (particularly Claim 1 which serves as a basis for all claims) and the specification within Patent 6,155,411 ("the '411 patent") is adequate to construe that patent. Although in the Markman hearing the Court received extrinsic evidence, it has determined that it is unnecessary to resort to that evidence in reaching its decision.

  The Court annexes to this Opinion, and incorporates by reference, copies of PM2 (altered to reflect the Court's decision) and PM3, an enlargement of Figure 1A to the patent, the most significant drawing. PM2 has been altered to reflect the Court's adoption of the construction of the Claims in suit as tendered by the parties.*fn2 All undisputed constructions are adopted. In some instances the Court has adopted Plaintiff's construction and in other cases the Defendant's, where those constructions vary.

  The crux of the present dispute is whether, under the '411 patent, the two vessels are preformed and then assembled ("fused") into one product or whether the patent also encompasses a product produced as a single entity. The Court concludes that the claims of the patent are limited to a product assembled from two preformed vessels.

  Claim 1 speaks of a first vessel and a second vessel "wherein the material of the first vessel is fused with the material of the second vessel," thereby strongly implying the existence of two separate objects prior to the fusion process. Figure 1A, as color coded and offered by Plaintiff itself as Exhibit PM3 (attached), shows the fusion of the bottom of the first vessel and the top of the second. Even if the first vessel were preconstructed without a bottom and then fused to the top cover of the second vessel, each vessel would begin life as a separate object. So too if the covered bottom of the first vessel were fused to an open second vessel thereby providing a top for the latter. Finally, several excerpts from the '411 patent specification also supports the conclusion that separate vessels are fused together to create the patented product:

"Thus the invention can relate to a container comprising a first open vessel and a second sealed vessel." '411 Patent, 1:47-48.
"The second vessel can be a top closure for the first vessel, either removable therefrom or affixed thereto; or the second vessel can be a base attached to the first vessel." Id. at 1:52-54.
". . . it is believed that heretofore a tumbler and/or container has not been combined with such sealed container." Id. at 2:9-11.
"Thus the invention can provide a container comprising a first vessel and second vessel wherein the first and second vessels are connected." Id. at 2:59-61.
  The Court realizes that the specification cannot be employed to limit a patent claim; however, the Court has not done that here. The specification enhances the plain meaning and permissible conclusion that the '411 patent speaks to a product resulting from the "fusing" of two separately constructed vessels not a container produced as a single piece from the outset.*fn3

  An Order reflecting the claims construction, also employing attached Exhibit PM2, accompanies this Opinion.

  JOINT CLAIM CONSTRUCTION STATEMENT `411 Claim Language Stipulated Construction Allure's Proposed Construction Zak's Proposed Construction

 

1. A container comprising: A "container" is a thing that contains something.
a first vessel The container includes first and A separate preformed vessel such as a second vessels for holding something. standard tumbler.
 
and a second vessel, A preformed sealed vessel enclosing a first liquid and a second liquid that is a fluid including air and an insoluble structure floating on the first liquid.
wherein the first vessel is The first vessel is open and liquids or A separate preformed vessel such as a hollow with an opening for solids can be put into and taken out of standard tumbler. receiving a solid or a liquid, the first vessel. and removably containing the solid or liquid, and

 the second vessel is a sealed The second vessel is closed. A preformed sealed vessel enclosing a vessel containing first liquid and a second liquid that is a fluid including air and an insoluble structure floating on the first liquid.

 

a first liquid, The second vessel contains two fluids A fluid. and at least one solid object.
a second liquid, A liquid that is a fluid such as air.

 

at least one structure, An insoluble structure floating on the first liquid.
wherein the structure is The solid object does not insoluble in both the first and dissolve in the two fluids. second liquids,

 

and floats on the first liquid, The density of the solid object is such that it floats on one of the fluids.
the first and second liquids The two fluids do not mix. are immiscible,

 the first and second liquids The densities of the fluids are have densities such that the such that the fluids are first liquid is beneath the distinguishable from one second liquid, another.

 and the first vessel is The bottom surface of the first vessel The first vessel is moved into vertical positioned contiguously covers the top surface of alignment with respect to the second the second vessel and the vessels are vessel prior to being fused the second positioned so that the contents of the vessel. completely above the second second vessel can be seen. The first vessel in its entirety is above vessel, the second vessel such that all points of the first vessel are above all points of the second vessel.

 whereby the second vessel is The second vessel forms a base that Ordinary meaning. The second vessel a base support of the supports the container. is a base support of the container. container,

Allure objects to Zak's previously Zak objects to Allure's previously unsubmitted interpretation. unsubmitted interpretation.
and, wherein the material of The material at the bottom of the first The first vessel is joined with the the first vessel is fused with vessel is blended by melting together second vessel. the material of the second and united by heating with the vessel. material of the top of the second vessel.

 3. The container of claim 1, The solid object has an wherein the structure is ornamental function. decorative.

 12. The container of claim 1, The first fluid may be wherein the first liquid is colored, i.e., the liquid is of a optionally colored. type that can be colored.

 13. The container of claim 1, The second fluid may be wherein the second liquid is colored, i.e., the liquid is of a optionally colored. type that can be colored.

 14. The container of claim 1, Both the first and second wherein the first and the fluids may be colored, i.e., second liquids are optionally both liquids are of types that colored. can be colored.

 15. The container as claimed The first vessel forms a drinking Ordinary meaning. The first vessel is in claim I, wherein the first glass. a cup without a handle and with a flat vessel is a tumbler. bottom.

 16. The container as claimed Claim not at issue. Ordinary meaning. A lid for the in claim 1, wherein the first opening in the first vessel, which is vessel is a tumbler with a provided with an aperture configured cover capable of receiving a to receive the handle of a standard toothbrush. toothbrush.

 21. The container as claimed Claim not at issue. Ordinary meaning. The first vessel in claim 1, wherein the first includes a cover that can be removed. vessel includes a removable cover.

 22. The container as claimed The first vessel includes a in claim 1, wherein the first cover that can be opened so vessel containing means that the first vessel can be defining an opening, and a filled or refilled. closure therefore, allowing for filling or refilling of the first vessel.

 23. The container as claimed Claim not at issue. A three dimensional object arranged in claim 1, wherein the sealed to surround the inside of a sealed vessel has a decorative three-dimensional vessel. object positioned within it in surrounding relationship to an interior of the sealed vessel.

 24. The container of claim 1, Claim not at issue. The fusing of the first vessel to the wherein the first vessel is second sealed vessel is a welded welded to the sealed vessel. fusing.

 25. The container of claim 1, Claim not at issue. The fusion of the first vessel to the wherein the first vessel is second sealed vessel is accomplished permanently attached to the by microwave radiation. sealed vessel by way of microwave fusion

 26. The container of claim 1, Claim not at issue. The fusion of the first vessel to the wherein the first vessel is second sealed vessel is accomplished fused with the sealed vessel by radiowave radiation. by radiowave fusion.

 27. The container of claim 1, The first vessel includes a wherein the first vessel cover that can be removed. includes a removable cover.

 28..... permanently Claim not at issue. Fused. attached ...

 

... the sealed vessel.... A preformed sealed vessel enclosing a first liquid and a second liquid that is a fluid including air and an insoluble structure floating on the first liquid.
FIG. 1A


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