Barrette Outdoor Living, Inc. v. Fortress Iron, L.P.

• Docket Number: Civil Action 3:21-CV-2008-E
• Decision Date: 25 August 2023
• Parties: BARRETTE OUTDOOR LIVING, INC., Plaintiff, v. FORTRESS IRON, LP, and FORTRESS FENCE PRODUCTS, LLC Defendants.
• Court: U.S. District Court — Northern District of Texas

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BARRETTE OUTDOOR LIVING, INC., Plaintiff,
v.
FORTRESS IRON, LP, and FORTRESS FENCE PRODUCTS, LLC Defendants.

Civil Action No. 3:21-CV-2008-E

United States District Court, N.D. Texas, Dallas Division

August 25, 2023

MEMORANDUM OPINION AND ORDER

ADA BROWN UNITED STATES DISTRICT JUDGE

On April 20, 2023, the Court held a hearing to determine the proper construction of the disputed claim terms in U.S. Patent No. 8,413,332 (the “'332 Patent”); U.S. Patent No. 8,413,965 (the “'965 Patent”); U.S. Patent No. 9,551,164 (the “'164 Patent”); and U.S. Patent No. 9,963,905 (the “'905 Patent”) (collectively “Asserted Patents”). Having reviewed the arguments made by the parties at the hearing and in their claim construction briefing (ECF. Nos. 23, 48, 30, 50)^[1], having considered the intrinsic evidence, and having made subsidiary factual findings about the extrinsic evidence, the Court hereby issues this Claim Construction Memorandum and Order. See Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc); see also Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015).

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TABLE OF CONTENTS

I. BACKGROUND .........................................................................................3

II. APPLICABLE LAW ...................................................................................4

III. LEVEL OF ORDINARY SKILL IN THE ART .........................................9

IV. THE PARTIES' STIPULATED TERMS ....................................................11

V. CONSTRUCTION OF DISPUTED OR IDENTIFIED TERMS .................11

A. “boss” Terms............................................................................................... 11

B. “series of axles” ........................................................................................... 23

C. “boss includes at least one rib” ......................................................................25

D. “assemble to and connect” ........................................................................... 27

E. “leading, inner edge of each rail is beveled to facilitate”................................... 29

F. “degree” Terms ............................................................................................ 32

G. “picket openings” ..........................................................................................36

H. “sliding” Terms ............................................................................................. 40

I. “causes” Terms ..............................................................................................48

J. “pivotal range” Terms ....................................................................................53

VI. CONCLUSION ........................................................................................59

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I. BACKGROUND

Plaintiff Barrette Outdoor Living, Inc. (“Barrette” or “Plaintiff”) alleges that Defendants, Fortress Iron, LP, and Fortress Fence Products, LLC (collectively “Fortress” or “Defendants”) infringes the '332 Patent, the '965 Patent, the '164 Patent, and the '905 Patent. Shortly before the start of the April 20, 2023 Hearing, the Court provided the parties with preliminary constructions with the aim of focusing the parties' arguments and facilitating discussion.

The Assert Patents share a common specification and are titled “Fence/Rail Assembly with Concealed Sliding, Pivotal Connection, and Manufacturing Method Therefor.” The Asserted Patents claim priority to Provisional Patent Application No. 61/151,122, which was filed on February 9, 2009. The specifications of the Asserted Patents state that the “present invention in general relates to fencing and railing systems, and in particular relates to connectors for fencing and railing systems.” See, e.g., '332 Patent at 1:18-20. More specifically, the specification summarizes a first exemplary embodiment as follows:

[I]n a first example embodiment the present invention relates to a fencing/railing assembly adapted to be positioned between a pair of posts and mounted thereto. The assembly includes a plurality of pickets, a plurality of rails extending transverse to the pickets, and a connection between the pickets and the rails. The picket/rail connection is slidably mounted to the rail and pivotally connected to the picket to permit a sliding, pivotal motion. The sliding pivotal connection allows the pickets to be oriented at greater angles relative to the rails (i.e., it allows the assembly to rack to a greater degree, thereby allowing the fencing/raining to follow more steeply changing terrain or contours)

Id. at 1:24-35.

Claim 1 of the '332 Patent is an illustrative claim and recites the following elements (disputed or identified terms in italics):

1.A method of manufacturing a fencing/railing assembly to be positioned between a pair of posts and mounted thereto, the method comprising the steps of:

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providing one or more vertical pickets, each picket having an upper end and a lower end opposite the upper end, and having at least one pivot hole formed therein between the upper and lower end;

providing at least one connector strip, each connector strip having one or more connector bosses formed on a first side thereof and a sliding surface formed on a second side thereof opposite the first side;

pivotably connecting the at least one connector strip to the one or more pickets by aligning and inserting a respective one of the one or more connector bosses into the at least one pivot hole formed in each of the one or more pickets;

providing an elongate rail with a first end and an opposing second end, the elongate rail comprising at least an upper wall and a side wall, and further comprising picket openings spaced longitudinally along the upper wall; and slipping the elongate rail over the one or more pickets so that the one or more pickets extend through the picket openings, and further slipping the elongate rail over the at least one connector strip so that the sliding surface of the at least one connector strip is slidably engaged with an inner surface of the side wall of the elongate rail and the at least one connector strip is concealed between the side wall and the picket;

whereby pivoting an upper end of one of the one or more pickets towards the first end of the elongate rail causes the at least one connector strip to slide along the inner surface of the side wall of the rail towards the second end of the elongate rail, and vice versa.

II. APPLICABLE LAW

A. Claim Construction

“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., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by considering the intrinsic evidence. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc'ns Grp., Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the

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specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at 861. The general rule-subject to certain specific exceptions discussed infra-is that each claim term is construed according to its ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d at 1312-13; Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (quotation marks omitted) (“There is a heavy presumption that claim terms carry their accustomed meaning in the relevant community at the relevant time.”) cert. granted, judgment vacated, 135 S.Ct. 1846 (2015).

“The claim construction inquiry . . . begins and ends in all cases with the actual words of the claim.” Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). “[I]n all aspects of claim construction, ‘the name of the game is the claim.'” Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998)) overruled on other grounds by Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015). First, a term's context in the asserted claim can be instructive. Phillips, 415 F.3d at 1314. Other asserted or unasserted claims can also aid in determining the claim's meaning, because claim terms are typically used consistently throughout the patent. Id. Differences among the claim terms can also assist in understanding a term's meaning. Id. For example, when a dependent claim adds a limitation to an independent claim, it is presumed that the independent claim does not include the limitation. Id. at 1314-15.

“[C]laims ‘must be read in view of the specification, of which they are a part.'” Id. (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). “[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'” Id.

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(quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own terms, give a claim term a different meaning than the term would otherwise possess, or disclaim or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor's lexicography governs. Id.

The specification may also resolve ambiguous claim terms “where the...