Sulfur-Tech Water Systems, Inc. v. Kohlenberg
| Decision Date | 08 June 2001 |
| Docket Number | No. 3:00CV7365.,3:00CV7365. |
| Citation | 162 F.Supp.2d 743 |
| Parties | SULFUR-TECH WATER SYSTEMS, INC., Plaintiff v. Larry KOHLENBERG, et al., Defendants |
| Court | U.S. District Court — Northern District of Ohio |
William D. Arnold, Nathan, Roberts & Arnold, Toledo, OH, David d. Murray, Brinks, Hofer, Gilson & Lione, Ann Arbor, MI, for Larry and Sandra Kohlenberg.
Marshall A. Bennett, Jr., Stephen P. Evans, Michael S. Scalzo, Donald A. Schurr, Marshall & Melhorn, Toledo, OH, for Sulfur-Tech Water Systems, Inc.
This is a patent infringement case in which the parties have requested that I interpret the plaintiff's patent pursuant to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed.Cir.1995) (en banc).
The patent at issue, United States Patent No. 5,744,040, is a methods and apparatus patent relating to the removal of hydrogen sulfide from water. To accomplish this objective, the patented method and apparatus use a manifold into which pressurized air and water are introduced to aerate the water so that it can be atomized and sprayed into a tank, or series of tanks, whereby the hydrogen sulfide is precipitated. (Doc. 25). The water enters the first of two "inlet ports" in the manifold, becomes aerated in an "inlet channel," and passes through the second "inlet port" and the atomizer to precipitate the hydrogen sulfide in the tanks.
The disputed terms of the patent, which are found initially in Claim 1 (describing the method), and are then repeated in Claim 7 (describing the apparatus), are:
A. "a manifold positioned within an open end" of an atomizing tank;
B. "said first inlet port being connected to a source of water containing dissolved hydrogen sulfide";
C. "said inlet channel further being connected to a source of air under pressure"; and
D. "said inlet channel defining means for mixing said water containing dissolved hydrogen sulfide and air under pressure to aerate said water".
In Markman the Federal Circuit held that claim construction is a matter of law for the court to determine. 52 F.3d at 976. This process begins with consideration of intrinsic evidence relating to the claims. Intrinsic evidence consists of the: 1) claims themselves; 2) specification that describes the preferred embodiments of the invention; and 3) prosecution history. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996).
In considering intrinsic evidence, controlling focus is given to the terms used in the claims. Thermalloy, Inc. v. Aavid Engineering, Inc., 121 F.3d 691, 693 (Fed. Cir.1997). The court examines the description of the preferred embodiment to determine if the patentee ascribed particular meaning to claim terms. If not, the ordinary meaning of the terms, as that meaning would be understood by one skilled in the art, controls. York Products, Inc. v. Central Tractor Farm & Family Center, 99 F.3d 1568, 1572 (Fed.Cir.1996). The court can examine the prosecution history for contemporaneous exchanges between the patent applicant and patent examiner to gain additional understanding about the meaning of the claims.
As shown in the figures included in the patent, the atomizer portion of the manifold (20) is inserted into the end of the atomizing tank (12). . Defendants argue that the language of Claims 1 and 7 that states that the manifold is "positioned within an open end" of an atomizing tank means that the manifold must be "actually within" the open end or mouth of the tank.
This interpretation, according to the defendants, is mandated in light of an Amendment filed on April 11, 1997. The original application stated that the manifold was "adjacent" to the atomizing tank. The Amendment substituted the term "within" for "adjacent" to describe the location of the manifold.
The Amendment clarified the location, because "adjacent" does not precisely convey the structure of the invention, which involves injection of aerated water into the atomization tank through a nozzle (40). Atomization can occur only if the aerated water is introduced into the tank, which requires placement of the nozzle portion of the manifold into the tank.
The term "adjacent" describes something that is next to, but not necessarily a part of, an adjoining item, artifact, or structure. Penetration into the atomizing tank, which would not necessarily be described through use of the term "adjacent," is an integral element of the patented method and apparatus. The Amendment, accordingly, clarified the description, and made it more accurate.
The Amendment did not limit the scope of the patent by requiring (as defendants contend) that the manifold be "actually within" the open end or mouth of the tank. (Doc. 27 at 4). Rather, as is clear from a reading of the patent and its figures, the atomizing nozzle and atomizing tank (i.e., outlet) tube (65), both of which are part of the manifold, are located in the open end of the atomizing tank. It is not necessary for any other portion of the manifold to occupy the opening, nor is it necessary that the nozzle and outlet tube take up the entire cavity formed by the opening and the open end of the atomizing tank. The figures clearly show that the cavity is sealed by a cap through which the atomizer and outlet tube are held in place, and the cap contains the actual openings through which each passes. As a result, and as described in Claims 1 and 7, the manifold is "positioned within an open end" of an atomizing tank.
The original patent application referred to the first inlet port (24) as "being in communication with aerated water containing dissolved hydrogen sulfide." The Amendment deleted that language and Claims 1 and 7 of the patent, as issued, refer to the "first inlet port being connected to a source of water containing hydrogen sulfide."
The defendants raise two issues with regard to this language. First, they contend that the inlet port must be connected directly (rather than by means of a pipe) with the source of the water. Second, they argue that the only water that is to pass into the inlet port must be water that has not been aerated before entering the port.
The phrasing ("connected to a source of water") used to describe the relationship between the first inlet port (24) and the source of water is also used to describe the relationship between the second inlet port (26) and the atomizing nozzle (40) ("a one-piece atomizing nozzle ... connected to said second inlet port"). The connection between the second inlet port and the atomizing nozzle, as shown in figure 4, is direct, with the surfaces of the second inlet port and the atomizing nozzle in physical contact with each other.
Because the patent uses the same term ("connected to") to describe the relationship between the first inlet port and the source of water, the defendants argue that there must also be a direct connection between such source and the first inlet port, as there is between the second inlet port and the atomizing nozzle.
I disagree: there is nothing in the phrase "connected to" that, in ordinary usage, requires the two connected items to be joined physically or adjacent to each other. Two items often are located some distance from one another, and yet are connected by means of a line, pipe, or other medium. Indeed, when talking about a liquid, such as water, there would be relatively few instances where the point of its use for mechanical purposes is in direct contact with its source, without intermediate transmission by pipe or similar means. Faucets are far more commonplace than waterwheels.
To read the patent in the manner argued by the defendants would lead to the nonsensical requirement that the method and apparatus could be used primarily, if not only, in sub-marine applications, where water flowed directly into the first inlet port.
Replacement of the term "in communication with" with the term "connected to" clarifies the application's terms, rather than limiting its scope.
The fact, moreover, that the applicant continued to use the term "in communication with" in the specification does not compel adoption of the defendants' reading of the term "connected to.". In each instance, the terms are used with their ordinary meanings, no confusion or ambiguity arises, and the meanings are clear to all, including those skilled in the art.
Support for my interpretation of the term "connected to" is found in Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 93 F.3d 1572, 1575 (Fed.Cir.1996). That case involved a surgical stapler, in which a "lockout mechanism [is] connected to ... longitudinal slots for preventing ... pusher bars from passing more than one time through said longitudinal slots," so that only one staple would be ejected at a time. The allegedly infringing device employed a "cam bar retainer," which was not located at the point of ejection, to prevent multiple ejection of staples.
The patent holder argued that "connected to," as used in the patent, could "be read broadly to include two distant elements which are `connected' by intervening elements." Id. at 1578. The Federal Circuit rejected this contention, stating:
the entire phrase "connected to said longitudinal slots" must be read narrowly. First, in what meaningful sense is it possible to "connect" the restraining member, which is a physical item, with the longitudinal slots, which are hollow passageways, unless "connected to" is understood to mean that the restraining member operatively interacts with the longitudinal slots by blocking them? Second, [the patentee's] argument proves too much. If, as [the plaintiff] argues, "connected to" should be read broadly to include elements...
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