Dow Chemical Co. v. Nova Chemicals Corp. (Canada), Civil Action No. 05-737-JJF.
| Citation | 629 F.Supp.2d 397 |
| Decision Date | 25 June 2009 |
| Docket Number | Civil Action No. 05-737-JJF. |
| Parties | The DOW CHEMICAL COMPANY, Plaintiff, v. NOVA CHEMICALS CORPORATION (CANADA), and Nova Chemicals Inc. (Delaware), Defendants. |
| Court | U.S. District Court — District of Delaware |
Jenner & Block LLP, Chicago, IL, Rodger D. Smith II, Esquire of Morris, Nichols, Arsht & Tunnel LLP, Wilmington, DE, for Plaintiff, The Dow Chemical Company.
Ford F. Farabow, Jr., Esquire; Ronald A. Bleeker, Esquire; Joann M. Neth, Esquire; Martin I. Fuchs, Esquire; Mark J. Feldstein, Esquire; Jeffrey W. Abraham, Esquire Troy A. Petersen, Esquire and Ken Motolenich-Salas, Esquire of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., Washington, D.C., H. Woodruff Turner, Esquire; Thomas A. Donovan, Esquire; Robert D. Yeager, Esquire and Brian P. Anderson, Esquire of Kirkpatrick & Lockhart Preston Gates Ellis LLP, Pittsburgh, PA, Richard L. Horwitz, Esquire and David E. Moore, Esquire of Potter Anderson & Corroon LLP, Wilmington, DE, for Defendants, NOVA Chemicals Corporation (Canada) and NOVA Chemicals Inc. (Delaware).
This is a patent infringement case brought by The Dow Chemical Company ("Dow") against NOVA Chemicals Corporation (Canada) and NOVA Chemicals, Inc. (Delaware) (collectively, "NOVA") alleging infringement of United States Patent Nos. 5,847,053 ("the '053 patent") and 6,111,023 ("the '023 patent"), which pertain to specific ethylene/α-olefin blends comprising (1) at least one homogeneously branched ethylene/α-olefin interpolymer and (2) a heterogeneously branched ethylene/α-olefin interpolymer. ('053 patent at 1:25-35.) The parties briefed their respective positions on claim construction, and the Court conducted a Markman hearing on the disputed terms. This Memorandum Opinion provides constructions for five of the six disputed terms.
The patents-in-suit relate "to compositions comprising specific ethylene/α-olefin polymer blends." ('053 patent at 1:25-27.) In particular, the patents pertain to polymer blends comprising an "(A)" component consisting of at least one "homogeneously branched" ethylene/α-olefin interpolymer and a "(B)" component consisting of at least one "heterogeneously branched" ethylene polymer. According to the specification, the combination of these two types of polymers results in a composition having "synergistically enhanced physical properties," including both high tensile strength and high impact strength. (Id. at 1:38-2:5.)
Claim construction is a question of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-78 (Fed.Cir.1995), aff'd, 517 U.S. 370, 388-90, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). When construing the claims of a patent, a court considers the literal language of the claim, the patent specification and the prosecution history. Markman, 52 F.3d at 979. Of these sources, the specification is Phillips v. AWH Corporation, 415 F.3d 1303, 1312-17 (Fed.Cir.2005)(quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). However, "[e]ven when the specification describes only a single embodiment, the claims of the patent will not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using `words or expressions of manifest exclusion or restriction.'" Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898 906 (Fed.Cir.2004)(quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed.Cir.2002)).
A court may consider extrinsic evidence, including expert and inventor testimony, dictionaries, and learned treatises, in order to assist it in understanding the underlying technology, the meaning of terms to one skilled in the art and how the invention works. Phillips, 415 F.3d at 1318-19; Markman, 52 F.3d at 979-80. However, extrinsic evidence is considered less reliable and less useful in claim construction than the patent and its prosecution history. Phillips, 415 F.3d at 1318-19 ().
In addition to these fundamental claim construction principles, a court should also interpret the language in a claim by applying the ordinary and accustomed meaning of the words in the claim. Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 759 (Fed.Cir.1984). If the patent inventor clearly supplies a different meaning, however, then the claim should be interpreted according to the meaning supplied by the inventor. Markman, 52 F.3d at 980 (). If possible, claims should be construed to uphold validity. In re Yamamoto, 740 F.2d 1569, 1571 (Fed.Cir.1984).
Dow asserts that NOVA infringes all 16 claims of the '053 patent and all 16 claims of the '023 patent. The following is an illustrative independent claim from the '053 patent, with the disputed terms emphasized:
1. A film made from an ethylene polymer composition, wherein the composition comprises (A) from about 10 percent (by weight of the total composition) to about 95 percent (by weight of the total composition) of at least one homogeneously branched linear ethylene/α-olefin interpolymer having:
(v) a single melting peak as measured using differential scanning calorimetry, and
(vi) a slope of strain hardening coefficient greater than or equal to 1.3; and
(B) from about 5 percent (by weight of the total composition) to about 90 percent (by weight of the total composition) of at least one heterogeneously branched linear ethylene polymer having a density from about 0.93 g/cm3 to about 0.965 g/cm3.
('053 patent at 15:31-54.) The following is an illustrative independent claim from the '023 patent, again with the disputed terms emphasized:
1. An ethylene polymer composition comprising (A) from about 10 percent (by weight of the total composition) to about 95 percent (by weight of the total composition) of at least one ethylene interpolymer having:
(i) a density from about 0.89 grams/cubic centimeter (g/cm3) to about 0.935 g/cm3,
(ii) a melt index (12) from about 0.001 grams/10 minutes (g/10 min.) to about 10 g/10 min (iii) a slope of strain hardening coefficient greater than or equal to 1.3, and
(iv) a Composition Distribution Branch Index (CDBI) greater than 50 percent; and
(B) from about 5 percent (by weight of the total composition) to about 90 percent (by weight of the total composition) of at least one ethylene polymer characterized as having a density from about 0.93 g/cm3 to about 0.965 g/cm3 and comprising a linear polymer fraction, as determined using a temperature rising elution fractionation (TREF) technique.
('023 patent at 15:59-16:39.) Both the claims of the '053 patent and '023 patent are directed to polymer compositions consisting of at least two polymers, an "(A)" polymer and a "(B)" polymer. The claims of the two patents differ with respect to the physical properties used to describe the "(A)" and "(B)" components of the polymer blend.
The claim construction dispute that the parties emphasize the most concerns the definition of one such physical property. Specifically, according to NOVA, the claim term "slope of strain hardening coefficient of greater than or equal to 1.3" is indefinite because the specification fails to both adequately specify the units for the "slope of strain hardening coefficient" and set forth a method for measuring this physical parameter. In these circumstances, NOVA contends that one of skill in the art, upon reading the specification, would be unable to determine whether an accused polymer composition falls within the scope of the claims.
A second key claim construction dispute between the parties pertains to the meaning of the well-known transitional phrase "comprising." NOVA contends that, in this case, the term "comprising" requires a special construction to guard against a possible attempt by Dow to creatively read its claims onto non infringing products. Briefly, NOVA contends that Dow may attempt to artificially decompose indivisible components of noninfringing products into fictitious sub-components, one or more of which Dow would then characterize as meeting a claim limitation while the remaining components Dow would characterize as mere additional elements allowed under the "comprising" transitional phrase.
The remaining claim construction disputes between the parties are typical, generally relating to disagreements over the interplay between the claim language on one side, and the specification and prosecution history on the other. For the reasons that follow, the Court construes the disputed terms as follows.
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Dow's Construction NOVA's Construction
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The slope of strain hardening This claim term is
multiplied by the melt indefinite
index raised to the 0.25
power must be greater than
or equal to 1.3
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The dispute between the parties has...
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