Neles-Jamesbury, Inc. v. Fisher Controls Intern., Civil Action No. 94-40200-NMG.

• Decision Date: 06 January 1998
• Docket Number: Civil Action No. 94-40200-NMG.
• Citation: 989 F.Supp. 393
• Parties: NELES-JAMESBURY, INC., Plaintiff, v. FISHER CONTROLS INTERNATIONAL, INC. and Fisher Service Company, Defendants.
• Court: U.S. District Court — District of Massachusetts

989 F.Supp. 393

NELES-JAMESBURY, INC., Plaintiff, v. FISHER CONTROLS INTERNATIONAL, INC. and Fisher Service Company, Defendants.

Civil Action No. 94-40200-NMG.

United States District Court, D. Massachusetts.

January 6, 1998.

R. Mark Petersen, Worcester, MA, Steven E. Lipman, Arthur I. Neustadt, Steven P. Weihrouch, Oblon, Spivak, McClelland, Maier & Neustadt, P.D., Arlington, VA, for Plaintiff.

Marshall D. Stein, Cherwin & Glickman, Boston, MA, Kenneth B. Herman, Christopher J. Harnett, Robert W. Morris, Robert B. Wilson, Fish & Neave, New York City, for Defendants.

MEMORANDUM OF DECISION

GORTON, District Judge.

In December, 1994, plaintiff Neles-Jamesbury Inc. ("NJI") brought this action against Fisher Controls International, Inc. and Fisher Service Company (collectively "Fisher") for infringement of U.S. Patent No. 4,479,510 ("the '510 Patent") relating to an attenuating rotating valve. NJI asserts that Fisher has infringed four claims of the '510 Patent. Because the parties are unable to agree on the meaning of several terms in the asserted claims, this Court conducted a three-day hearing to construe the disputed terms pursuant to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) ("the Markman hearing").

I. Background

The subject matter claimed in the patent-in-suit is an attenuating rotary valve used to 1) control the flow of fluids (liquids or gases) through pipes and 2) limit the noise in the pipes caused by changes in pressure. Aside from causing discomfort to workers, noise vibrations can cause severe damage to both pipes and valves if no attenuating device is used.

The prior art discloses attenuating valves that distribute pressure and thus successfully reduce noise but that also restrict the flow of fluid when the valve is fully opened. The valve invented by Roger Bey and claimed in the '510 Patent differs from prior inventions in that its attenuating device adjusts with movement of the "closure member" so that 1) the amount of attenuation varies with the opening and closing of the valve and 2) when the valve is fully opened, the attenuator does not significantly limit the flow of fluid.

The '510 patent contains 17 claims including five independent claims. NJI and Fisher dispute the meaning of certain words and phrases in independent claims 2 and 8. Claim 2 recites:

2. An attenuator valve assembly comprising: a valve body having a flow passage formed therethrough; a closure member; means for mounting said closure member in said valve body for rotation about an axis with respect to said valve body between a completely open position wherein said closure member allows passage of fluid therepast through said flow passage, and a completely closed position wherein said closure member blocks all flow through said flow passage; sealing means provided in said valve body flow passage for operatively engaging said closure member for preventing fluid flow through said flow passage past said closure member when said closure member is in said closed position; means for attenuating fluid flowing through said flow passage past said closure member, without significantly restricting flow when said closure member is in said completely open position, said means comprising perforated barrier means mounted with said closure member, said perforated barrier means including continuously open through-extending perforations and comprising a plurality of perforated plates; and means for mounting said perforated plates adjacent said closure member substantially within said valve body for rotation aboutsaid [sic] axis, and spaced from each other in the direction of said flow passage when said closure member is in said closed position so that the attenuating effect of said plates is immediately called into play when said closure member is first opened and the attenuating effect thereof is great during initial opening of said closure member, and diminishes as said closure member is moved toward said completely open position.

'510 Patent at col. 8, ll. 15-46 (disputed terms emphasized). Claim 8 recites:

8. A valve assembly comprising: a valve body having a flow passage formed there-through; a closure member having a regular spherical section curved exterior surface; means for mounting said closure member in said valve body for rotation about an axis with respect to said valve body between open and closed positions, said closure member blocking flow through said flow passage in said closed position; sealing means provided in said valve body flow passage for operatively engaging said closure member for preventing fluid passage through said flow passage past said closure member when said closure member is in said closed position; a plurality of attenuator plates each said plates [sic] including continuously open through-extending perforations; and means for mounting said plates for rotation with said closure member about said axis and spaced from, but adjacent, said closure member to effect attenuation of fluid flowing through said flow passage as said closure member is being moved from said closed to said open position thereof, and vice-versa, and so that said plates are spaced from each other and are generally parallel to each other, and each extends to points substantially on a geometric extension of said regular spherical section curved exterior surface to engage said sealing means to provide that fluid flowing in said flow passage past said closure member, in a partially open position thereof, flows through said plates; and wherein said plurality of attenuator plates are spaced from each other in the direction of said flow passage when said closure member is in said closed position.

Id. at col 9, ll. 7-36 (disputed terms emphasized).

Prior to the Markman hearing, both parties submitted motions to construe all or almost all of the text of the four asserted claims. Although this Court ultimately must construe all of the language in those claims, as it informed the parties at the Markman hearing, this memorandum will construe only those words and phrases actually in dispute.

II. The Legal Standard

The determination of a literal infringement claim requires a two-step analysis. First, the Court must properly construe the asserted claims to determine their scope and meaning. Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 1387, 134 L.Ed.2d 577 (1996). Second, the trier of fact must determine whether the properly construed claims cover the accused device or process. See id. at 517 U.S. ___, 116 S.Ct. at 1393.

Only the first step, claim construction, is currently before this Court. The purpose of claim construction analysis is to determine the meaning given to each disputed term by a person of ordinary skill in the relevant art. Haynes Int'l, Inc. v. Jessop Steel Co., 8 F.3d 1573, 1578 n. 4 (Fed.Cir. 1993). To interpret the claims of a patent, a court must initially consider the intrinsic evidence of record. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir. 1996).

Intrinsic evidence comes from three sources:

1) the claims themselves,

2) the specification, to the extent that it defines terms in a manner inconsistent with their ordinary meaning, and

3) the prosecution history of the patent, to the extent that it contains the patentee's express representations with respect to the scope of the claims.

Id. The specification and prosecution history may only be relied upon insofar as they expressly define the words in the claim because those words are given their ordinary meaning unless the patentee has expressly varied that meaning. Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 620 (Fed.Cir.1995); Markman, 52 F.3d at 979 (stating that "a patentee is free to be his own lexicographer" but that "any special definition given to a word must be clearly defined in the specification").

"In most situations, an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term." Vitronics Corp., 90 F.3d at 1583. In order to better understand the patent, a court also may consider extrinsic evidence such as expert testimony, inventor testimony, dictionary definitions and technical treatises. Id. at 1584. Extrinsic evidence, however, may not be used to vary or contradict the terms of the claims. Markman, 52 F.3d at 981.

III. Claim Construction

In order to better understand the mechanics of attenuating rotary valves and the disputed claim language as it would be understood by a "person of ordinary skill in the art," this Court considered expert and inventor testimony, dictionary definitions and a technical treatise presented by the parties at the Markman hearing. As clarified at that hearing, the words and phrases in dispute are:

1) "plate" as used throughout claims 2 and 8;

2) "barrier means" as used in claim 2;

3) "attenuating effect ... is immediately called into play when said closure member is first opened" as used in claim 2;

4) "attenuating effect thereof is great during initial opening" as used in claim 2; and

5) "points substantially on a geometric extension" as used in claim 8.

A. "plate"

The parties agree that the word "plate" may be used to describe flat or slightly curved disc-like structures. NJI argues that the word "plate" encompasses many other forms including bent plates, curved plates and planar plates. While Fisher acknowledges that "plates" may be bent to form other structures such as "tubes," Fisher contends that the term "plate" comprises only flat or slightly curved structures and that, once plates are combined or a plate is altered to form another structure, that structure can no longer be referred to as a "plate."

The claims of the '510 Patent refer to "plates" generically and to "plates" which are "planar." Clearly the term "plate" in isolation encompasses more than merely "planar" (flat) structures. The...