Interdent Corp. v. United States, 55-73.

Citation531 F.2d 547
Decision Date17 March 1976
Docket NumberNo. 55-73.,55-73.
PartiesINTERDENT CORPORATION et al. v. The UNITED STATES.
CourtCourt of Federal Claims

Sherman Levy, Washington, D. C., attorney of record, for plaintiffs.

A. David Spevack, Washington, D. C., with whom was Asst. Atty. Gen. Rex E. Lee, Washington, D. C., for defendant.

Before COWEN, Chief Judge, and KUNZIG and BENNETT, Judges.

OPINION

PER CURIAM:

This case comes before the court on defendant's motion, filed December 5, 1975, moving that the court adopt as the basis for its decision in this case the recommended decision filed October 10, 1975, by Trial Judge Joseph V. Colaianni pursuant to Rule 134(h), plaintiffs having failed to file any notice of intention to except thereto and the time for so filing pursuant to the rules of the court having expired. Upon consideration thereof, without oral argument, since the court agrees with the recommended decision, as hereinafter set forth,* it hereby grants defendant's motion and adopts and affirms the said decision as the basis for its judgment in this case. It is therefore concluded that plaintiffs are not entitled to recover and the petition is dismissed.

OPINION OF TRIAL JUDGE

COLAIANNI, Trial Judge:

In this patent suit, brought pursuant to 28 U.S.C. § 1498, plaintiffs, Interdent Corp., Gertrude Rieff, Michael Kabnick, Robert Kabnick, and Garrison Trupp, seek "reasonable and entire compensation" for the alleged unauthorized use by the Government of plaintiffs' patented invention.1 The parties agreed that the issue of infringement of the patent by defendant would be first determined. The parties further agreed that the amount of plaintiffs' recovery, if any, would be deferred until after a final ruling by the court on the question of infringement.

The patent in suit, United States Patent No. 2,733,713, hereinafter referred to as the "Kabnick" or "713" patent, issued on February 7, 1956, to Herbert H. Kabnick for an invention entitled "Oral Irrigator." Plaintiff, Interdent Corp., is the present owner of all right, title, and interest in the patent.2

Defendant moved to dismiss the original petition, filed on February 7, 1973, on the ground that the then sole plaintiff, Interdent Corp., sought recovery for unauthorized use by Government facilities operating on nonappropriated funds. Interdent Corp., on October 15, 1973, amended its petition to allege unauthorized use by appropriated funds facilities. The court thereafter treated defendant's motion as one for partial summary judgment, and granted it to the extent that Interdent was seeking to recover for alleged use by nonappropriated fund facilities. The remainder of the case was remanded to the trial division for further proceedings. Interdent Corp. v. United States, 488 F.2d 1011, 203 Ct.Cl. 296 (1973).

As originally framed by the pleadings, this case presented the usual issues of patent validity and infringement. However, during the pretrial proceedings, defendant agreed not to contest the validity of the Kabnick patent, but to rely solely upon the defense of noninfringement.3 The Kabnick patent contains 6 claims, but plaintiffs urge the use and/or manufacture by or for defendant of the invention covered by claim 3 alone.

The Patent in Suit

The Kabnick patent describes an electrically powered irrigating device which has a variety of applications in the field of dentistry, medicine, and the veterinary sciences in situations where it is desired to irrigate or cleanse with a treating fluid. In a teeth-cleaning operation, the irrigator produces a high velocity jet of fluid which, inter alia, stimulates the tissues and cleans the interdental spaces of the mouth.

Structurally, the irrigator includes a covered fluid receptacle. An electric motor is mounted on top of the cover member, with the receptacle being detachably secured to its bottom side. A pump is housed inside of the fluid receptacle such that upon attachment of the receptacle cover member, the pump can be driven by the electric motor. Fluid is transferred by operation of the pump from the receptacle to a flexible discharge conduit and nozzle for application. In addition, a composite switch and valve assembly to simultaneously selectively open the flexible conduit to fluid flow and actuate the motor to run the pump or close the flexible conduit to fluid flow and deactuate the motor to stop the pump is provided.

The Patent Claim

Claim 3, the only claim of the '713 patent allegedly infringed by the defendant, provides:

3. An irrigator comprising, a selectively actuated electric motor; a pump drivingly connected to said motor to be driven thereby; a receptacle cover member mounted on said motor; a receptacle for a treating fluid; means detachably securing said receptacle to said cover member; inlet means connecting said pump to said receptacle whereby fluid is drawn from said receptacle; outlet means in said pump for directing fluid therefrom; a selectively opened and closed conduit operatively connected to said outlet for directing outlet fluid from said pump; a nozzle on said conduit for controlling the stream of fluid flowing from the conduit; and a composite switch and valve operatively connected to said electric motor and conduit for selectively simultaneously actuating said motor and opening said conduit to fluid flow and stopping said motor and closing said conduit to fluid flow.
Infringement

Plaintiffs argue that defendant's use of the Water Pik,4 the Model 100 Surgical Jet Lavage, and the Model 200 Surgical Jet Lavage (hereinafter the "Water Pik," "Model 100," and "Model 200," respectively) infringes the structural combination defined by claim 3 of the '713 patent. Since the Government admits use of these 3 accused devices during the relevant accounting period and since, as previously explained, defendant has dropped its defense of invalidity of claim 3, the sole question to be answered is whether or not the accused devices, and structural equivalents, are covered by the claim 3 combination of the patent in suit.

After careful consideration of each party's contentions, and for reasons which will be explained hereinbelow, it is concluded that none of the accused devices infringe claim 3 of the Kabnick patent.

As a first step toward resolving the above question, it becomes necessary to determine the scope and breadth of claim 3.

It is axiomatic that the metes and bounds of an invention are defined by the claims and not by the drawings or specification of a patent. Strumskis v. United States, 474 F.2d 623, 627, 200 Ct.Cl. 668, 675-76, cert. denied, 414 U.S. 1067, 94 S.Ct. 576, 38 L.Ed.2d 472 (1973). Equally long established is the interpretive process of looking to the patent specification to ascertain the scope of the claimed invention. Seymour v. Osborne, 11 Wall. 516, 78 U.S. 516, 547, 20 L.Ed. 33 (1870); United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 15 L.Ed.2d 572, 148 USPQ 479, 482 (1966). However, in order to prevent a fraud on a patent, the scope of a claim is not exclusively limited to the specific embodiments shown by the specification. Rather, the structural limitations of a claim may be expanded to include equivalent embodiments that perform substantially the same function in substantially the same way to produce substantially the same result as the disclosed invention. This is so even though the elements of the combination differ in name, form or shape. Graver Tank & Mfg. Co. v. Linde Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 1102, 85 USPQ 328, 330 (1950).

This doctrine is no stranger to patent litigation generally or to patent litigation in this court specifically. Indeed, the interplay between this doctrine on the one hand and file wrapper estoppel on the other was succinctly explained by this court in Tate Engineering, Inc. v. United States, 477 F.2d 1336, 1340-41, 201 Ct.Cl. 711, 719-20 (1973):

The range of equivalents to be accorded will depend upon whether the invention is a pioneer invention or merely a small advance over the prior art. If the former, a broad range of equivalents applies commensurate with the patentee's contribution to the art. McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381, 401, 145 USPQ 6, 22 (10th Cir. 1965), cert. denied, 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966); Prieve & Sons Co. v. Hunt, 188 F.2d 880, 881, 89 USPQ 299, 300 (8th Cir. 1951), appeal dismissed per stipulation, 342 U.S. 801, 72 S.Ct. 92, 96 L.Ed. 607 (1951). If the latter, only a narrow range of equivalents applies. Soundscriber Corp. v. United States, 360 F.2d 954, 961, 175 Ct.Cl. 644, 652, 149 USPQ 640 (1966); Trusty v. United States, 132 F.Supp. 340, 344, 132 Ct.Cl. 192, 199-201, 105 USPQ 474, 477 (1955), cert. denied, 350 U.S. 975 (1956); Richardson v. United States, 72 Ct.Cl. 51, 65 (1930), 7 USPQ 194, 197, cert. denied, 285 U.S. 543, 52 S.Ct. 393, 76 L.Ed. 935 (1931). Furthermore, the range of equivalents may be limited under the doctrine of file wrapper estoppel if the patentee has narrowed his claims in order to avoid the prior art. Graham v. John Deere Co., 383 U.S. 1, 33, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ 459, 473 (1966). Or, as this court has said in connection with an earlier consideration of these doctrines, "The doctrine of equivalence is subservient to file wrapper estoppel." * * *

Defendant, after pointing to the precise language used in claim 3, the prior art, and the prosecution history of the application, argues that certain of the elements of the claim at bar are entitled to only a narrow range of equivalents. For reasons which follow, this contention is sound.

Looking to claim 3, defendant specifically contends that the recitation—

* * * a composite switch and valve operatively connected to said electric motor and conduit for selectively simultaneously actuating said motor and opening said conduit to fluid flow and stopping said motor and closing said conduit to fluid flow * * *

should be literally construed.

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