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0912139 B.C. Ltd v. Rampion USA Inc.

United States District Court, W.D. Washington, Seattle

July 30, 2019

0912139 B.C. LTD, et al., Plaintiffs,
v.
RAMPION USA INC., et al., Defendants.

          CLAIM CONSTRUCTION ORDER

          JAMES L. ROBART, U.S. DISTRICT COURT JUDGE

         I. INTRODUCTION

         This is a claim construction order in a patent infringement case involving two related patents: U.S. Patent No. 9, 687, 030 (“the '030 Patent”) and U.S. Patent No. 10, 034, 496 (“the '496 Patent”) (collectively, “the Patents”). Plaintiffs 0912139 B.C. Ltd. (“B.C. Ltd.”) and Pakage Apparel Inc. (d/b/a BN3TH) (“Pakage”) (collectively, “Plaintiffs”) allege that Defendants Rampion USA Inc. and Rampion Enterprises Ltd. (collectively, “Defendants”) have infringed the Patents. (Compl. (Dkt. # 1) ¶¶ 32-61.) The parties dispute the construction of 10 claim terms. (See Jt. Cl. Chart (Dkt. # 47-1) at 1-94.) The court has reviewed the parties' joint prehearing statement and claim construction chart (Jt. Stmt. (Dkt. # 47); Jt. Cl. Chart), their claim construction briefs (Pl. Br. (Dkt. # 49); Def. Br. (Dkt. # 48); Pl. Resp. (Dkt. # 51); Def. Resp. (Dkt. # 50)), the materials filed in support of the claim construction briefs, the relevant portions of the record, and the applicable law. The court also heard from counsel at a Markman hearing[1]on July 12, 2019. (7/12/19 Min. Entry (Dkt. # 52); see also Tr. (Dkt. # 56).) Being fully advised, the court construes the disputed terms as set forth below.

         II. BACKGROUND

         The Patents are directed to an undergarment for men that “include[s] [a] pouch to receive the wearer's genitalia” (“the Invention”). (See Compl. ¶ 20, Ex. 4 (“'030 Patent”) at 2:29-30; see also Id. ¶ 19, Ex. 3 (“'496 Patent”) at 2:27-29.) The Invention comprises “a body including a front portion and having leg openings for a wearer's legs, ” as well as a “stretch panel attached to the body inside the front portion.” (See '030 Patent at 8:17-18, 23-24; '496 Patent at 8:14-15, 20-21.) The Invention also claims a “crotch panel” between the leg openings. ('030 Patent at 19-20; '496 Patent at 15-16.) The stretch panel, which is “resiliently elastic, ” is smaller than the front portion. ('030 Patent at 8:25-42; '496 Patent at 8:31-38.) Accordingly, the stretch panel works to “gather[]” the front portion “from side-to-side and top-to-bottom, ” creating “a three-dimensional pouch.” ('030 Patent at 8:42-44; '496 Patent at 8:38-40.) The wearer of the // undergarment inserts his genitals through an opening in the stretch panel, and the pouch supports the genitals. ('030 Patent at 8:31, 45-47; '496 Patent at 8:27-28, 40-44.)

         Figures 1 and 6, which appear in both Patents, illustrate a preferred embodiment. The drawings show the garment's waistband [12], body [14], front portion [18], stretch panel [22], and the opening in the stretch panel [30].

         (Image Omitted)

         ('030 Patents, Figs. 1, 6; '496 Patent, Figs. 1, 6.)

         The '496 Patent is a continuation of the '030 Patent (see '496 Patent at 1:6-11), and the Patents share a substantially identical specification (compare '030 Patent, with '496 Patent). The primary difference between the Patents concerns the locations where the stretch panel attaches to the front portion of the garment's body. (See Pl. Br. at 3-4.) Claim 1 of the '030 Patent discloses a stretch panel with a top edge attached to the front portion at the “waistband seam” and a bottom edge attached to the front potion at the “first seam”-that is, the seam where the crotch panel meets the front portion. ('030 Patent at 8:15-17, 23-27.) In contrast, claim 1 of the '496 Patent discloses a stretch panel with a top edge attached to the front portion at a “top location, ” rather than the waistband seam, and a bottom edge attached to the front portion at a “bottom location, ” rather than the first seam. ('496 Patent at 8:20-24.)

         The parties dispute the meaning of 10 claim terms:[2] (1) “front portion”; (2) “stretch panel”; (3) “crotch panel”; (4) “top location”; (5) “bottom location”; (6) “substantially continuously along either side of the front portion”; (7) “gathered from side-to-side and top-to-bottom by the stretch panel”; (8) “asymmetrical stretch characteristics”; (9) “rectangular”; and (10) “a dart seam stitched along a bottom portion of the pouch.” (See generally Jt. Cl. Chart.)

         III. DISCUSSION

         A. Law on Claim Construction

         The court is solely responsible for construing patent claims. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996). The court construes claims as a matter of law, although the court may make subsidiary factual findings regarding extrinsic evidence. Teva Pharm. USA, Inc. v. Sandoz, Inc., __U.S.__, 135 S.Ct. 831, 836-38, 840-42 (2015). In practice, executing the Markman mandate means following rules that rank the importance of various sources of evidence that disclose the “true” meaning of claim terms.

         The Federal Circuit summarized its view of proper claim construction in Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). Intrinsic evidence, which includes the patent and its prosecution history, is the primary source from which to derive a claim's meaning.[3] Id. at 1314. The court's task is to determine the “ordinary and customary meaning” of the terms of a claim in the eyes of a person of ordinary skill in the art on the filing date of the patent. Id. at 1313 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). In its review of intrinsic evidence, the court should begin with the language of both the asserted claim and other claims in the patent. Phillips, 415 F.3d at 1314; see also Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004) (“[C]laim construction analysis must begin and remain centered on the claim language itself.”).

         The court must read claim language in light of the remainder of the patent's specification. Phillips, 415 F.3d at 1316 (explaining that “the specification necessarily informs the proper construction of the claims”). The specification acts as a “concordance” for claim terms and is thus the best source beyond the claim language for understanding those terms. Id. at 1315. The inventor is free to use the specification to define claim terms as he or she wishes, and the court must defer to the inventor's definitions. Id. at 1316 (“[T]he inventor's lexicography governs.”). The court should “rely heavily” on the specification in interpreting claim terms. Id. at 1317. The court should not, however, commit the “cardinal sin” of claim construction-impermissibly reading limitations from the specification into the claims. Id. at 1320 (citing SciMed Life Sys. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1340 (Fed. Cir. 2001)). Although a court should limit the meaning of a claim where the “specification makes clear at various points that the claimed invention is narrower than the claim language might imply, ” the court must not read particular embodiments and examples appearing in the specification into the claims unless the specification requires it. Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1370 (Fed. Cir. 2003); Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988). Additionally, although figures illustrating the invention may be used in construing claims, “the mere fact that the patent drawings depict a particular embodiment of the patent does not operate to limit the claims to that specific configuration.” Prima Tek II, L.L.C. v. Polypap, S.A.R.L., 318 F.3d 1143, 1148 (Fed. Cir. 2003).

         The Federal Circuit has continued to emphasize the importance of reading the claims in the context of the specification and prosecution history.[4] Laryngeal Mask Co. Ltd. v. Ambu, 618 F.3d 1367, 1370 (Fed. Cir. 2010) (“The words of a claim are generally given their ordinary and customary meaning as understood by a person of ordinary skill in the art in question at the time of the invention when read in the context of the specification and prosecution history.”). Although the patent's prosecution history is also intrinsic evidence, it is generally “less useful for claim construction purposes” than the specification. Phillips, 415 F.3d at 1317.

         Finally, the court can consider extrinsic evidence, “including expert and inventor testimony, dictionaries, and learned treatises.” Id. (quoting Markman, 52 F.3d at 980) (internal quotation marks omitted). For a variety of reasons, extrinsic evidence is usually “less reliable than the patent and its prosecution history” as a source for claim interpretation. Id. at 1318. The court need not admit extrinsic evidence but may do so at its discretion. Id. at 1319.

         B. Disputed Terms

         1. front portion

         The claim term “front portion” appears in claims 1, 5, 9, and 11 of the '030 Patent and claims 1, 5, 9, 11, and 12 of the '496 Patent. ('030 Patent at 8:18, 21, 24, 29-30, 39, 41-42, 45, 58; id. at 9:1-2, 13; '496 Patent at 8:14, 17, 20-21, 26-27, 35, 37-38, 41, 55-56, 66-67; id. at 9:12, 15-16.) Illustratively, claim 1 of the '030 Patent recites: “[a] male garment comprising: a body including a front portion and having leg openings for the wearer's legs, the body including a crotch panel extending between the leg openings and joined to the front portion along a first seam.” ('030 Patent at 8:17-21; see also '496 Patent at 8:13-17.)

         The parties propose the following constructions of the claim term “front portion”:

         Plaintiffs' Proposed Construction: “region of the garment's body that is situated in front of the wearer when the garment is worn and to which the stretch panel is attached to form a concave space between the front portion and the stretch panel capable of receiving the wearer's genitals.” (Pl. Br. at 4.)

         Defendants' Proposed Construction: “the outermost layer of fabric of the body of the male garment bounded by the side seams, waistband seam, and first seam.” (Def. Br. at 2.)

         The parties agree that the front portion is part of the garment's body and is situated in front of the wearer when the Invention is worn. (See Pl. Br. at 4; Def. Br. at 2.) However, the parties dispute two issues concerning the front portion: (1) whether the front portion consists only of the Invention's outermost layer of fabric, and (2) whether the front portion is bounded laterally by the side seams and longitudinally by the first seam and the waistband seam. (See Pl. Resp. at 2-6; Def. Resp. at 1-7.) The court addresses these issues in turn.

         Defendants argue that the front portion necessarily consists of the “the outermost layer of the undergarment's body.” (Def. Br. at 2 (emphasis omitted).) As Defendants acknowledge, the words “outermost” and “layer” do not appear in the claim language or the specification. (See Tr. at 10:14-11:8; see generally '030 Patent; '496 Patent.) Defendants premise their proposed construction on the drawings in the specification and an episode of prosecution history. (See Def. Br. at 2-4.)

         As to the drawings, Defendants argue that Figures 5 through 7, which appear in both Patents, “depict the front panel no differently than the rest of the undergarment's body-as a single sheet of fabric . . . .” (Id. at 2-3; see also '030 Patent at Figs. 5-7; '496 Patent at Figs. 5-7.) That assertion is speculative. The court finds it impossible to determine whether the drawings depict the front portion as having one layer or multiple layers of fabric. (See '030 Patent at Figs. 5-7; '496 Patent at Figs. 5-7.) In any event, the drawings merely illustrate a preferred embodiment. (See '030 Patent at 2:32-33 (noting that the Figures depict “undershorts . . . according to an example embodiment”).) Even assuming the drawings show the front portion as consisting of a single layer of fabric, the court would contravene a fundamental principle of claim construction were it to import that limitation into its construction of “front portion.” See Philips, 415 F.3d at 1320 (explaining that the court must refrain from reading into the claim limitations drawn from an embodiment).

         Defendants' reliance on the prosecution history is also unavailing. During the prosecution of the application that issued as the '030 Patent, the Patent and Trademark Office (“PTO”) examiner suggested that the applicant “possibly include language that defined the seam structure of the stretch panel to the outer pouch such that there is no opening on the outermost layer.” (Jt. Cl. Chart, Ex. 4 (Dkt. # 47-6) at 43.[5]) Defendants argue that the applicant “followed the examiner's instruction and added additional structural language defining the contours of the ‘outer pouch' or ‘outermost layer'-i.e., the front portion . . . .” (Def. Br. at 3.) Specifically, Defendants point to a submission to the PTO in which the patentee stated that, “as suggested by the Examiner, claim 1 now recites that side edges of the stretch panel are ‘attached to the body at side seams extending substantially continuously along either side of the front portion from the first seam to the waistband.'” (Id. (quoting Jt. Cl. Chart, Ex. 4 at 30).) According to Defendants, because the applicant “never disputed the ‘outermost layer' language” employed by the examiner, the court must incorporate that limitation into its construction of “front portion.” (See Tr. at 12:15-20.)

         Defendants fail to show that this episode of prosecution history is relevant to their argument that the front portion necessarily consists of the outermost layer of fabric. The language the applicant added to claim 1 appears to have been intended to distinguish the application that issued as the '030 Patent from prior art. (See Jt. Cl. Chart, Ex. 4 at 30.) Indeed, the applicant expressly explained that claim 1 was amended to recite that the side edges of the stretch panel are “attached to the body at side seams extending substantially continuously along either side of the front portion . . .” in an effort to “distinguish[] the Reis references [U.S. Patent No. 2, 235, 849] which require non-continuous side seams to provide a fly.” (Id.) It would be a leap too far to find that, in clarifying the attachment of the stretch panel to the front portion, the applicant implicitly adopted as a claim limitation the examiner's reference to the “outermost layer” of the pouch. See, e.g., Pitney Bowes, Inc. v. Hewlett-Packard Co., 69 F.Supp.2d 309, 316 (D. Conn. 1998) (declining to define a limitation pursuant to a “single comment” the examiner made during the patent prosecution). The court thus rejects Defendants' proposed “outermost layer” limitation as unfounded.[6]

         The parties also dispute the lateral and longitudinal parameters of the garment's front portion. Plaintiffs contend that Defendants' proposal to define “front portion” as “bounded by the first seam, waistband seam, and side seams” is inconsistent with the claim language, specification, and “plain meaning” of the claim term, none of which limit “front portion” to the part of the garment between the four specific seams Defendants emphasize. (Pl. Br. at 8; see also Tr. at 9:7-15.) Defendants assert that Plaintiffs'proposed construction would sweep in any portion of the garment forward of the wearer and is thus overbroad. (Def. Br. at 3-4.)

         To support their contention that the sides of the front portion are bounded by the side seams, Defendants rely primarily on claim language that describes the way the stretch panel attaches to the front portion. (See Def. Resp. at 5.) Claim 1 of both Patents discloses “a stretch panel . . . having . . . side edges attached to the body at side seams extending substantially continuously along either side of the front portion . . . .” ('030 Patent at 8:24-34; '496 Patent at 8:21-27.) According to Defendants, in light of this claim language, the side edges of the stretch panel necessarily define the boundaries of the front portion: “If the front [portion] were to extend beyond the side seams, the side seams connecting the stretch panel would not ‘extend[] substantially continuously along either side of the front portion.'” (Def. Resp. at 5-6 (quoting '030 Patent at 8:29-30) (emphasis omitted).)

         The court is not convinced. Although the claim language specifies the lateral boundaries of the stretch panel, it does not specify the lateral boundaries of the front portion. Notably, the Patents refer to “the side edges” of the stretch panel but do not refer to the “side edges” of the front portion; rather, the Patents explain that the side edges of the stretch panel run along “either side of the front portion.” (See '030 Patent at 8:28-30; '496 Patent at 8:24-26.) Had the inventor wanted to specify that the front portion is bounded by the side seams, the inventor could have disclosed a stretch panel having side edges attached to the body along the side edges of the front potion. Cf. Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1333 n.3 (Fed. Cir. 2006) (“[T]he use of two terms in a claim requires that they connote different meanings.”). The inventor did not so specify, and the court declines to adopt that unspoken limitation here.

         Defendants also argue that the front portion must extend longitudinally from the first seam-the seam where the crotch panel meets the front portion-to the waistband seam. The limitation regarding the first seam is already expressed in the surrounding claim language and need not be reiterated in the construction of “front portion.” (See '030 Patent at 8:18-20 (claiming “a crotch panel . . . joined to the front portion along a first seam”); '496 Patent at 8:15-17); see also CAAS Techs., LLC v. Envision Telephony, Inc., No. C15-0624JLR, 2016 WL 3199540, at *10 (W.D. Wash. June 6, 2016) (rejecting a proposed construction because it “seeks to incorporate context that is expressly included in the claim's language”). Moreover, although the drawings in the specification support the notion that the top of the front portion extends to the waistband seam, the claim language discloses no such limitation. (See generally '030 Patent; '496 Patent.) The court thus declines to construe “front portion” to extend longitudinally from the first seam to the waistband seam.

         Defendants appear to contend that any construction of “front portion” that does not delineate the front portion's “boundaries” as commensurate with the stretch panel is overbroad. (See Tr. at 14:4-10.) But, as discussed above, the court finds no grounds in the claim language that supports so precise a delineation of the front portion's boundaries. Nor does the court find a basis in the claim language to otherwise delimit the length and breadth of the front portion.

         Having disposed of the two limitations integral to Defendants' construction of “front portion, ” the court finds that the claim term does not require construction. The court is not to make a construction that “contribute[s] nothing but meaningless verbiage to the definition of the claimed invention.” Harris Corp. v. IXYS Corp., 114 F.3d 1149, 1152 (Fed. Cir. 1997). Claim construction is required only “when the meaning or scope of technical terms and words of art is unclear . . . and requires resolution in order to determine” the issue. U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). Accordingly, “[i]f the claim language is clear on its face, then [the court's] consideration of the rest of the intrinsic evidence is restricted to determining if a deviation from the clear language of the claims is specified.” Interactive Gift Express, Inc. v. Compuserv Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001). Here, neither party has provided evidence that “front portion” has a special meaning in the art of the Patents. (See generally Pl. Br.; Def. Br.; Pl. Resp.; Def. Resp.) Nor does the court's review of the intrinsic evidence suggest that the claim term carries something other than its plain and ordinary meaning “in common parlance.” See Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 1283, 1291 (Fed. Cir. 2015). The court thus declines to construe the claim term “front portion.”

         2. stretch panel

         The claim term “stretch panel” appears in claims 1-5, 7, 9, 11, 13, and 14 of the '030 Patent and claims 1-5, 7, 9, 11, 13, and 14 of the '496 Patent. (See '030 Patent at 8:23-24, 35, 37, 44-45, 48-50, 53-56, 60, 64-65; id. at 9:7, 12-13, 15, 20-22; '496 Patent at 8:20, 31, 33, 39-41, 44-46, 49-52, 57, 61-62; id. at 9:1, 4-5, 10-11, 13, 21, 22-23.) Claim 1 of the '030 Patent claims:

a stretch panel attached to the body inside the front portion, the stretch panel comprising a sheet of elastically resilient four-way stretch material having a top edge attached to the body at the waistband seam, a bottom edge attached at the first seam, side edges attached to the body at side seams extending substantially continuously along either side of the front portion from the first seam to the waistband seam and an opening for receiving the wearer's genitals . . . .

('030 Patent at 8:23-31.) Likewise, claim 1 of the '496 Patent discloses “a stretch panel attached to the body inside the front portion.” ('496 Patent at 8:20-21.) In contrast to the '030 Patent, the '496 Patent claims a stretch panel with a top edge attached to the body “at a top location” and a bottom edge attached to the body “at a bottom location.” (Id. at 8:22-24.)

         The parties propose the following constructions of the claim term “stretch panel”:

         Plaintiffs' Proposed Construction: “four-way stretch material separate from and joined to the inside of the garment's body that includes an opening for the wearer's genitals.”

         Defendants' Proposed Construction: Plain and ordinary meaning. The parties dispute whether the court should construe this claim term. Defendants argue that, given the extensive claim language surrounding “stretch panel, ” a juror would readily understand the meaning of the claim term as would a person of ordinary skill in the art. (Def. Br. at 21-22.) Plaintiffs, in contrast, argue that Defendants' position that “stretch panel” need not be construed conceals a dispute about whether the stretch panel is “separate” from the garment's body. (Pl. Br. at 9.)

         Plaintiffs' proposed construction would expressly specify that the stretch panel is “separate from and joined to the inside of the garment's body.” (See id.) But there is no need to construe the claim to include that limitation. The surrounding claim language makes clear that the stretch panel is not part of the body of the garment but rather constitutes a panel of fabric that is itself attached to the front portion. Claim 1 of the Patents recites a “stretch panel comprising a sheet of . . . material having a top edge . . ., a bottom edge . . ., [and] side edges . . . .” ('030 Patent at 8:24-28; '496 Patent at 8:21-25.) In other words, the stretch panel contains at least one discrete piece of material with four distinct edges. Additionally, claim 1 of the Patents explains that the stretch panel is “attached to the body inside the front portion.” ('030 Patent at 8:23-24; '496 Patent at 8:20-21.) Plaintiffs' integration of the limitation “separate from and joined to the inside of the garment's body” into the claim term is therefore redundant, and the court declines to adopt it. See Symantec Corp. v. Acronis, Inc., No. C-11-5310 EMC, 2013 WL 752472, at *2 (N.D. Cal. Feb. 27, 2013) (rejecting a party's proposed construction as “redundant given the surrounding words of the claim”); see also CAAS, 2016 WL 3199540, at *10.

         Plaintiffs' proposed construction articulates two additional limitations: (1) the stretch panel must “include[] an opening for the wearer's genitals, ” and (2) the stretch panel must comprise “four-way stretch material.” (Pl. Br. at 8-10.) Again, these limitations appear in the surrounding claim language. First, claim 1 of each Patent provides that the stretch panel has “an opening for receiving a wearer's genitals.” ('030 Patent at 8:31; '496 Patent at 8:27-28.) Second, the Patents explain that the stretch panel comprises “a sheet of elastically resilient four-way stretch material.” ('030 Patent at 8:24-25; '496 Patent at 8:21-22.) The court sees no need to construe “stretch panel” in a way that merely restates what the surrounding claim language clarifies.

         The court agrees with Defendants that it need not construe the claim term “stretch panel.” Neither party suggests that the claim term carries anything other than its plain and ordinary meaning in the context of the asserted claims, and the intrinsic evidence is consistent with that meaning. See Ethicon, Inc., 103 F.3d at 1568; Samsung Elecs., 802 F.3d at 1291. Moreover, the parties present no substantive disagreement about the scope of the claim term.[7] At the Markman hearing, counsel for Defendants agreed that “the stretch panel is a piece-or . . . pieces-of fabric distinct from the body of the garment.” (Tr. at 18:8-12.) Likewise, counsel for Plaintiffs suggested that affording “stretch panel” its plain and ordinary meaning “would be adequate, ” as long as the court acknowledges that the ...


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