Agrizap, Inc. v. Woodstream Corp.

Decision Date12 May 2006
Docket NumberCivil Action No. 04-3925.
Citation431 F.Supp.2d 518
PartiesAGRIZAP, INC., Plaintiff, v. WOODSTREAM CORPORATION, et al., Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

Kate M. Neiswender, K.M. Neiswender Law Office, Ventura, CA, Thomas S. Farnish, Larrimore & Famish, LLP, Philadelphia, PA, for Plaintiff.

Abraham C. Reich, Theodore H. Jobes, David H. Colvin, Fox, Rothschild, O'Brien & Frankel LLP, Philadelphia, PA, Harvey B. Jacobson, Jr., Michael R. Slobasky, Philip L. O'Neill, Jacobson Holman PLLC, Washington, DC, for Defendants.

MEMORANDUM

ROBERT F. KELLY, Senior District Judge.

Plaintiff Agrizap, Inc. ("Agrizap") alleges that Defendant Woodstream Corporation ("Woodstream") infringed on its U.S. Patent No. 5,949,636 entitled "portable pest electrocution device with resistive switch trigger" ("636 patent" or "Rat Zapper"). Presently pending before this Court are: (1) the claim construction of the 636 patent; and (2) Woodstream's Motion for Partial Summary Judgment of patent unenforceability and invalidity. For the following reasons, Woodstream's Motion for Partial Summary Judgment is denied.

I. BACKGROUND

The relationship between Agrizap and Woodstream began in 2000. Woodstream contacted Agrizap about the possibility of the two parties entering into a marketing agreement for Agrizap's Rat Zapper Product. The Rat Zapper is a consumer product that consists of a plastic canister with a metal plate at the bottom and an electrical charge which ultimately kills the rodent. An oral marketing agreement was established between the two parties whereby Agrizap would manufacture and deliver Rat Zappers to Woodstream. The products, however, would use Woodstream labels.

According to Agrizap's Second Amended Complaint, in early 2004, Agrizap discovered that Woodstream was manufacturing and marketing its own electronic rat trap. Agrizap asserts that confusion in the retail market developed because of Woodstream's branding of the Agrizap Rat Zapper and because of Woodstream's newly introduced rat zappers. Agrizap asserts that if this continued, Woodstream would effectively undermine Agrizap's ability to sell its goods in the market. The Second Amended Complaint contains the following five counts against Woodstream: Violation of California's Unfair Business Practices Laws & Professions Code (Count I); Breach of an Oral Contract (Count II); Patent Infringement (Count III); Intentional Misrepresentation (Count IV); and Trade Disparagement (Count V).

With respect to the patent infringement count, Agrizap alleges that patent claims 1, 2, 3, 5, 10, and 16 of the 636 patent were infringed by Woodstream. Both parties have set forth proposed patent claim constructions for these claims at issue. Woodstream has also requested that this Court schedule a Markman hearing, including testimony from the parties' technical experts, concerning the technical subject matter at issue in the claim constructions.

On February 23, 2006, Woodstream filed its Motion for Partial Summary Judgment. Woodstream argues that summary judgment on the patent infringement claim is appropriate on the grounds of patent unenforceability and invalidity. It believes that the facts material to these matters are not genuinely disputed.

This memorandum encompasses both the claim construction issues and Woodstream's Motion for Partial Summary Judgement. Section II will address the claim constructions for the claims of the 636 patent at issue. Section III will address Woodstream's Motion for Partial Summary Judgment.

II. CLAIM CONSTRUCTION
A. Relevant Case Law

"[T]he 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). When the meaning or scope of a patent claim is in dispute, the Court must determine the claim's proper construction. Vivid Technologies, Inc. v. Am. Sci. and Engineering, Inc., 200 F.3d 795, 804 (Fed.Cir. 1999). The United States Court of Appeals for the Federal Circuit has emphasized that claim construction of disputed patent claims is strictly within the purview of the Court to decide. Markman v. Westview Instruments, Inc., 52 F.3d 967, 983-84 (Fed.Cir.1995)(en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996).

The words of a patent claim are generally given their ordinary and customary meaning. Phillips, 415 F.3d at 1312. The 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. Id. at 1313. "[T]he person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification." Id.

Thus, the Court will first look to the words of the claims themselves to define the meaning and scope of the patented invention. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). Then, the Court will examine the specification and the patent's prosecution history, which are collectively referred to as intrinsic evidence. Id. The specification is the part of the patent that "`describe[s] the manner and process of making and using' the patented invention." Phillips, 415 F.3d at 1315. The specification is always highly relevant and "is the single best guide to the meaning of a disputed term." Id. The patent's prosecution history consists of the complete record of the proceedings before the Patent and Trademark Office ("PTO") and of the prior art cited during the examination of the patent. Id. at 1317. "Like the specification, the prosecution history provides evidence of how the PTO and the inventor understood the patent;" however, because the prosecution history is not a final product, it lacks the clarity and usefulness of the specification for claim construction purposes. Id.

Lastly, the Court may look to extrinsic evidence if necessary. Vitronics, 90 F.3d at 1583. Extrinsic evidence "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. "In most situations, an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term." Vitronics, 90 F.3d at 1583. Thus, when the Court can construe a claim solely based on intrinsic evidence, it is improper to rely on extrinsic evidence. Id.

B. 636 Patent's Claim Construction

The claims at issue are Claims 1, 2, 3, 5, 10, and 16 of the 636 patent. After reviewing both parties' proposed claim constructions, along with the 636 patent itself, this Court has come to the following claim constructions.1

1. Claim 1

Terms and phrases within subsections (b), (d), and (e) of Claim 1 require construction. Claim 1(b) states:

triggering the activation of a high voltage and current generator in response to said sensed presence, said generator coupled between said high voltage electrode and said reference electrode, said triggered generator being activated for a predetermined time period. There are two terms in Claim 1(b) that require construction: "triggering" and "predetermined time period."

With respect to the "triggering" term, Agrizap argues that triggering is defined as "any manner of initiating, actuating or causing activation of a high voltage and current generator in response to the sensed presence, such as through hardware, software or any combination thereof." (Agrizap's Reply Br., at 8). Woodstream argues that Agrizap's definition of "triggering" is unsupported by the patent and does not consider the term in the context of Claim 1(b). Woodstream's proposed construction is: "the sensed presence of a pest results in an immediate and irreversible triggering of the high voltage and current generator without regard to any verification of the sensed presence." (Woodstream's Reply Br., at 7). In response, Agrizap argues that the triggering is neither immediate nor irreversible because after the pest makes contact, the invention allows for a delay to prevent triggering based on the momentary presence of a pest. According to the specification, when a pest makes contact, a voltage drop on the triggering mechanism occurs and there is a delay of the rising voltage to ensure that the timer is not activated by a momentary presence of a pest. (636 patent, col. 8, lines 21-36).

This Court will construe the "triggering" term as:

the sensed presence of a pest results in an immediate and irreversible triggering of the high voltage and current generator.

As Woodstream argued, the triggering is immediate and irreversible upon sensing the pest. The specification supports this conclusion. See Phillips, 415 F.3d at 1315 (stating that specification is single best guide for determining meaning of disputed term). The specification states that "[g]ood contact must be established before [the] current will be large enough to trigger a timing circuit." (636 patent, col. 4, lines 32-36). Furthermore, the specification states that after the voltage drop, "Capacitor 10 creates a time constant which delays the rising voltage on TTRIG 99 to ensure that the timer is not activated by a momentary presence of a pest." (636 patent, col. 8, lines 32-36). Thus, the triggering of the activation of the generator does not occur until after the delay of the rising voltage in the triggering mechanism. Once this delay has occurred, the generator is triggered immediately and there is no indication in the patent that it can be reversed.

The second term within Claim 1(b) that requires construction is "predetermined time period." According to Claim 1(b), the triggered generator is activated for a "predetermined time period." Agrizap contends that "predetermined time period" means "a time period...

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