Kimberly-clark Worldwide Inc. And v. First Quality Baby Prod.S LLC
| Decision Date | 20 January 2011 |
| Docket Number | Case No. 09-C-916 |
| Parties | KIMBERLY-CLARK WORLDWIDE, INC. and KIMBERLY-CLARK GLOBAL SALES LLC, Plaintiffs, v. FIRST QUALITY BABY PRODUCTS, LLC, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
This patent infringement action is before the Court for claim construction following briefing and a Markman hearing. In the underlying action Plaintiffs Kimberly-Clark Worldwide, Inc., and Kimberly-Clark Global Sales, LLC, (collectively "K-C") claims that Defendants First Quality Baby Products, LLC, and First Quality Retail Sales, LLC (collectively "First Quality") have infringed various K-C patents relating to refastenable training pants and the process used to manufacture them. Though there are ten patents in suit, each containing multiple claims, the parties have agreed on many terms in need of construction and have asked the Court to resolve the disputes that remain over the following seventeen claim terms or phrases. Before addressing the disputed claim terms and phrases, I will first set forth the legal standards that must govern claim construction.
A patent includes both a written description of the invention and claims. The written description, which usually includes figures, is often referred to as the "specification" of the patent.
The specification ends with one or more numbered sentences that are the patent's "claims." These claims describe the invention and set forth the metes and bounds of the patent.
Claim construction is an issue of law for the Court. If a material issue in the case, such as infringement or validity, involves a dispute about the meaning of certain claim language, the Court needs to construe that disputed claim language. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). The only claim language that needs to be construed is the language "in controversy, and only to the extent necessary to resolve the controversy." Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
Claim construction begins with and focuses on the words of the claim. See Bell Commc'ns Research, Inc. v. Vitalink Commc'ns Corp., 55 F.3d 615, 619-20 (Fed. Cir. 1995). How a person of ordinary skill in the art understands those claim terms provides an objective baseline for claim construction. Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc). In attempting to determine the meaning of disputed claim language, the Court must look to "those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean." Id. at 1314. "Those sources include the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art." Id. (internal quotation marks omitted). Extrinsic evidence includes sources such as the testimony of experts and knowledgeable technical witnesses, dictionaries, and learned treatises. Id. at 1317-18. Extrinsic evidence is "less significant" and "less reliable" than the intrinsic record in determining the meaning of the claim language. Id. Thus, to the extent that the Court considersextrinsic evidence, it does so in the context of the intrinsic evidence and is cognizant of "the flaws inherent" in such evidence. Id. at 1319.
and is not limited "to his preferred embodiment" and the court will not "import a limitation from the specification into the claims." Kara Tech. Inc. v. Stamps.com Inc., 582 F.3d 1341, 1348 (Fed. Cir. 2009); Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (). Even where "a patent describes only a single embodiment, the claims should not be construed as limited to that embodiment" absent a clear disavowal of claim scope. Phillips, 415 F.3d at 1323; see Linear Tech. Corp. v. ITC, 566 F.3d 1049, 1057-58 (Fed. Cir. 2009) ().
The Court may also consider the patent's prosecution history, including reexamination proceedings. Phillips, 415 F.3d at 1317. The prosecution history, which is part of the "intrinsic evidence, " consists of the "complete record of the proceedings before the USPTO and includes the prior art cited during the examination of the patent." Id. "[T]he prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be." Id. The prosecution history includes any arguments or amendments made by the applicant in securing patent rights and these arguments and amendments may be considered during the claim construction process. Southwall Techs. Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed. Cir. 1995). The correct claim construction must be consistent with the arguments the applicant made to overcome a prior art rejection. See id.
As a preliminary matter I adopt all of the "Agreed Constructions" as set forth in the parties' Joint Submission of Agreed and Disputed Claim Constructions. (Dkt. 328 at 2-4.) I now turn to the disputed constructions, which will be addressed sequentially below. For clarity and ease of reference, I have incorporated the claim chart submitted by K-C prior to the Markman hearing which sets forth the disputed claim language and the proposed constructions of the respective parties. I have added a column for the construction adopted by the Court.
The '067 patents describes a disposable training pant with side seams that are easy to open and can be refastened. The parties have disputes over the meaning of three terms or phrases used in Claim 8.
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|K-C's Proposed |First Quality's Proposed| |
| | |Court's Construction |
|Construction |Construction | |
|--------------------|------------------------|-------------------------------|
| | |an article capable of being |
| | | |
|refastenable article| |repeatedly fastened and |
| | |unfastened |
|capable of being |refastenable article | |
|pulled |capable |which, when fastened, can be |
| | | |
|on and off over the |of being repeatedly |pulled on and off over the hips|
|hips | |like |
| |fastened, unfastened and| |
|like a pant and | |underwear briefs and, when |
|applied |refastened | |
| | |unfastened, can be placed on a |
|like a diaper | | |
| | |child and fastened like a |
| | |diaper. |
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Construction of the phrase "refastenable pant" requires definition of the words "refastenable" and "pant." First Quality's proposed construction omits entirely any definition of the word "pant" and instead substitutes the word "article." K-C's proposed construction is more appropriate, but I have added elements to bring greater clarity to both the term "refastenable" and "pant." Both words should be defined to provide clarity to the meaning of the phrase. I agree that the word "refastenable" means capable of being repeatedly fastened and unfastened. The word "pant" can be defined with greater specificity than the word "article" offers, however. "Pant" as used in the specification, means an article capable of being pulled on and off over the hips like underwear briefs. And when unfastened, it can be placed on a child and fastened like a diaper. Accordingly, the phrase "refastenable pant" is construed to mean "an article capable of being repeatedly fastened and unfastened which, when fastened, can be pulled on and off over the hips like underwear briefs and, when unfastened, can be placed on a child like a diaper." This construction is based on the plain meaning of the phrase and is supported by the specification.
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|K-C's Proposed |First Quality's Proposed | |
| | |Court's Construction |
|Construction |Construction | |
|------------------------|--------------------------|------------------------|
|extending substantially | |extending substantially |
|the | |the |
| |extending the entire | |
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