United States District Court, D. Colorado
QUALITY INNOVATIVE PRODUCTS, LLC, PLAYMONSTER, LLC, Plaintiffs,
BRAND 44, LLC, Defendant.
ORDER ON CLAIM CONSTRUCTION
Y. Wang United States Magistrate Judge.
matter comes before the court on the Parties'
“Joint Motion for Determinatino [sic] of Claim
Construction, ” filed December 4, 2018 (“Joint
Motion for Claim Construction”). [#56]. This civil
action was referred to the undersigned pursuant to the
consent of all Parties. See [#17]; 28 U.S.C. §
636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. Having reviewed
and considered the Parties' claim construction briefs,
the applicable case law, and the comments and evidence
offered at the December 20, 2018 Markman Hearing,
the court construes certain claims as set forth below.
Quality Innovative Products, LLC (“QIP”) and
PlayMonster, LLC (“PlayMonster”) (collectively,
“Plaintiffs”) initiated this suit for alleged
patent infringement against Defendant Brand 44, LLC
(“Brand 44”), asserting infringement of certain
claims of three United States Patents: U.S. Patent Nos. 8,
454, 450 (the “'450 Patent”), issued June 4,
2013; 9, 067, 146 (the “'146
Patent”) issued June 30, 2015; and 9, 415, 316 (the
“'316 Patent”),  and issued August 16, 2016
(collectively, the “Patents-in-Suit”). [#1]. The
Patents-in-Suit are each entitled “Swing” and
name Gregory Cordray as the inventor and QIP as the assignee.
See [#26-2; #26-5; #26-7]. PlayMonster is the
exclusive Licensee of the Patents-in-Suit. See [#1;
#26 at ¶¶ 22, 37, 55]. According to Plaintiffs,
Brand 44 manufactures, imports, uses, and/or sells the
Slackers® Sky Saucer swing-a swing with a circular
plastic seat suspended from a pivot with tethers to allow for
swinging in several directions-which allegedly infringes
several claims of the Patents-in-Suit. See [#26 at
7-21; #26-1 through #26-9].
Patents-in-Suit explain that swings generally take two forms:
(1) “conventional rectangular rigid swing seats . . .
meant to move on an arc in a back-and-forth motion” or
(2) “tire swings . . . that can twist and swing in any
direction such as diagonal, circular, etc.” [#26-2 at
col. 1, ll. 14-21; #26-5 at col. 1, ll. 16-23; #26-7 at col.
1, ll. 18-24]. The inventions of the Patents-in-Suit aim
to improve the “limited entertainment and
enjoyment” these swings provide to “certain
children and other users that are not capable of maintaining
the proper position . . . and/or . . . controlling the motion
of the swing in the manner intended and required.”
[#26-2 at col. 1, ll. 27- 31; #26-5 at col. 1, ll. 28-33;
#26-7 at col. 1, ll. 30-34]. In addition, the inventions of
the Patents-in-Suit aim to improve the "ease of
manufacture, ease of installation, ease of use, durability,
variety of modes of operation, safety, and other such
attributes" of these two traditional swings. [#26-2 at
col. 1, ll. 34-37; #26-5 at col. 1, ll. 28-40; #26-7 at col.
1, ll. 29-40]. The Patents-in-Suit allow for "swing[ing]
in any direction including back-and-forth, sideways,
diagonal, circular, etc. and such that the swing body can
twist." [#26-2 at col. 3, ll. 9-14; #26-5 at col. 3, ll.
46-51; #26-7 at col. 3, ll. 46-col. 4, 1. 67].
achieve this utility, the Patents-in-Suit each disclose a
swing that has certain structural elements, including a
concave central portion that then attaches to several tethers
or a tether system. See [#26-2 at col. 1, ll. 41 -
col. 2, ll. 44; #26-5 at col. 1, ll. 44-col. 2, ll. 61; #26-7
at col. 3, ll. 46-col. 4, ll. 67]. The body of the swing
includes a smooth upper surface of the body B for maximum
comfort [#26-2 at col. 4, ll. 13-15; #26-5 at col. 4, ll.
50-52; #26-7 at col. 4, ll. 50-52], and a lower surface with
support ribs. [#26-2 at col. 4, ll. 15-21; #26-5 at col. 4,
ll. 52-59; #26-7 at col. 4, ll. 52-59].
the" that accommodates other structural elements. [#26-2
at col. 3, ll. 63-col. 4, ll. 3; #26-5 at col. 4, ll. 33-40;
#26-7 at col. 4, ll. 33-40]. Some preferred embodiments of
the inventions are shown in the figures below:
at Fig. 1A & Fig. IB; #26-5 at Fig. 1A & Fig. IB;
#26-7 at Fig. 1A & Fig. 1B]. The' 146 and '316
Patents contemplate swings that are non-circular in shape.
to the Scheduling Order,  the court set October 3, 2018 as the
deadline for the Parties to submit their Joint Disputed
Claims Terms Chart. See [#24 at 5-6]. The
Parties' Joint Disputed Claim Terms Chart identifies
eight disputed claim terms and/or phrases for the court to
construe. See [#41]. During the briefing associated
with claim construction, the Parties amended certain proposed
constructions. See, e.g., [#49 at 10 n.2; #53 at 5
n.2]. In addition to considering the Parties' claim
construction briefing, see [#49; #53; #54], the
court held a claim construction hearing on December 20, 2018,
see [#59], at which the Parties further adjusted
their claim construction proposals. Therefore, the court
ordered, and the Parties filed, an Amended Joint Disputed
Claim Terms Chart on December 31, 2018. [#60]. The
Parties' Joint Motion for Claim Construction is now ripe
construction of a patent, including terms of art within its
claim, is exclusively within the province of the
court.” Markman v. Westview Instruments, Inc.,
517 U.S. 370, 372 (1996); see also Id. at 384
(“The two elements of a simple patent case [include]
construing the patent and determining whether infringement
occurred . . . . The first is a question of law, to be
determined by the court, [and] [t]he second is a question of
fact, to be submitted to a jury.” (footnote and
internal quotation marks omitted; ellipsis and brackets
added)). “The purpose of claim construction is to
determine the meaning and scope of the patent claims asserted
to be infringed.” O2 Micro Int'l Ltd. v. Beyond
Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir.
2008) (internal brackets and quotation marks omitted).
“In construing patent claims, courts are guided by the
precedent of the Federal Circuit.” Frac Shack Inc.
v. Fuel Automation Station, LLC, 300 F.Supp.3d 1333,
1338 (D. Colo. 2018) (citing SunTiger, Inc. v. Sci.
Research Funding Grp., 189 F.3d 1327, 1333 (Fed. Cir.
construing the words of a claim, courts are to give those
words their ordinary and customary meaning. Phillips v.
AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005). Indeed,
courts “indulge a heavy presumption that a claim term
carries its ordinary and customary.” CCS Fitness,
Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir.
2002) (internal quotation marks omitted). In certain
circumstances, plain and ordinary meaning will control and
the court need not expressly construe the term. This is true
even if the Parties disagree as to the plain and ordinary
meaning, because courts determine the “plain and
ordinary meaning” of a patent term not by stipulation
of the parties but by what a person of ordinary skill in the
art at the time of the invention would understand the term to
mean. Stryker Corp. v. Zimmer, Inc.,
837 F.3d 1268, 1272 (Fed. Cir. 2016) (citing
Phillips, 415 F.3d at 1313). And courts should
consider this meaning “in the context of the entire
patent, including the specification” of which the
claims are a part. See Trustees of Columbia Univ. in City
of NY v. Symantec Corp., 811 F.3d 1359, 1362 (Fed. Cir.
2016). This is because the specifications provide the
“best guide” as to the meaning of a disputed
term, but the court will not “import limitations from
the specification into the claims.” Stumbo v.
Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir.
2007) (internal quotation marks omitted). Exceptions to this
rule apply when (1) “a patentee sets out a definition
and acts as his own lexicographer” or (2) “the
patentee disavows the full scope of a claim term either in
the specification or during prosecution.” Thorner
v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365
(Fed. Cir. 2012).
may employ intrinsic as well as extrinsic evidence when
construing patent claims. Intrinsic evidence includes the
patent, its claims, its specifications, and, if available,
its prosecution history. See Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
Intrinsic evidence “is the most significant source of
the legally operative meaning of disputed claim
language.” Dow Chem. Co. v. Sumitomo Chem.
Co., 257 F.3d 1364, 1372 (Fed. Cir. 2001) (internal
quotation marks omitted). Under certain circumstances, courts
may utilize extrinsic evidence, including expert and inventor
testimony, dictionaries, and treatises. See Takeda Pharm.
Co. Ltd. v. Zydus Pharm. USA, Inc., 743 F.3d 1359, 1363
(Fed. Cir. 2014). But “while extrinsic evidence can
shed useful light on the relevant art, . . . it is less
significant than the intrinsic record in determining the
legally operative meaning of claim language.”
Netcraft Corp. v. eBay, Inc., 549 F.3d 1394, 1397
(Fed. Cir. 2008) (internal quotation marks omitted; ellipsis
a court construes claims without regard to the accused
device. See Optical Disc. Corp v. Del Mar Avionics,
208 F.3d 1324, 1333 (Fed. Cir. 2000). Accordingly, to the
extent that the Parties argue about whether certain elements
of the invention are found within the accused device, see
e.g. [#49 at 1; #53 at 10], this court disregards such
Parties identify eight claim terms and/or phrases for this
court to construe. These include: (1) “peripheral
groove”; (2) “top wall”; (3)
“concave”; (4) “lower surface”; (5)
“tether”; (6) “extends radially
outward” or “extends outwardly” or
“extend . . . radially outward”; (7)
“peripheral edge”; and (8) “an inner
end.” See [#49; #53; #54, #60]. The court
construes the disputed terms and/or phrases as follows.
term “peripheral groove” appears in asserted
claim 22 of the '450 Patent and asserted claims 1 and 18
in the '146 Patent. The Parties do not dispute that
“peripheral” refers to the periphery of the
concave seat portion of the swing. See [#49 at 13
(“In the context of the Patents-in-Suit, the meaning of
‘groove' is an area around the circumference of
the swing seat . . .”) (emphasis added)]. See
also [#26-2 at col. 1, ll. 41-43 (“In accordance
with one aspect of the present development, a swing includes
a body including a concave central portion defining a
recessed seat and a peripheral edge surrounding
the concave central portion”) (emphasis added)].
But the Parties do vigorously contest whether
“groove” requires open regions free from support
44 proposes that the court construe “peripheral
groove” to mean “a space extending around the
circumference of a swing that is bounded by 1) inner and
outer walls on each side and 2) a top wall containing tether
openings. The space contains at least two open regions free
of peripheral edge support between tether openings allowing a
rope/chain/member to extend circumferentially in the
peripheral groove.” [#60 at 2]. Brand 44 contends that the
dictionary definition of “groove” is a
“long narrow channel, ” and in the context of the
Patents-in-Suit a “peripheral groove” is then a
“channel, i.e., open space, extending along the
circumference of the swing.” [#49 at 11]. Brand 44
continues that “peripheral groove” cannot simply
mean a groove surrounding the periphery of the concave
portion as Plaintiff suggests, because the specifications and
claims make clear that an inner and outer wall and a top wall
containing tether openings bound the peripheral groove
12g, which also has two open regions G1, G2 free of
peripheral support ribs 32 between the tether openings O1-O4.
See [id. at 13-15].
counter that “peripheral groove” requires no
construction, and the court should give it its plain and
ordinary meaning. [#60 at 2]. In the alternative to no
construction, Plaintiffs argue that the court should construe
the term as “a groove that surrounds the concave
central portion of the body of the swing” or, in other
words, “a groove that surrounds the periphery of the
concave central portion[.]” [#53 at 5]. Plaintiffs
concede that “one general definition of the word
‘groove'” means a “long narrow channel
or depression” but argue that no definition of
“groove” requires it to be an “open
space” throughout, and the Patents-in-Suit contemplate
that the peripheral groove 12g will have peripheral
support ribs 32 prohibiting an open space. See
[id. at 7-8]. Plaintiffs further argue that Brand 44
attempts to improperly read specification limitations into
the claims by requiring the peripheral groove 12g to
have two open regions G1, G2. They contend that claim
differentiation demonstrates that peripheral groove
12g does not require two open regions G1, G2 because
claims 13 and 14 of '450 Patent progressively limit the
scope of claim 12, which like claim 22, is silent as to the
two open regions G1, G2. See [id. at 9-10].
Relatedly, Plaintiffs assert that Brand 44 improperly reads
limitations into the claims and renders express limitations
superfluous because the claims refer to a peripheral groove
defined adjacent the top wall and outer wall, e.g.,
[#26-2 at col. 7, ll. 16-17; #26-5 at col. 8, ll. 1-2, col.
8, ll. 53-54]; thus, the court does not need to include these
limitations again in the definition of peripheral groove
itself, see [#53 at 10-11].
discussed above, the Parties agree that the “peripheral
groove” is a space surrounding the circumference of the
concave seat portion of the swing. But given the manner in
which the peripheral groove is defined in the specifications
of the Patents-in-Suit and depicted in the figures, the point
of reference is more properly to the swing body rather than
to the concave seat portion. As the specifications disclose,
the peripheral groove is a space that may be defined by
different structural elements, e.g., between the inner and
outer circular walls, e.g., [#26-2 at col. 2, ll.
21-24], or adjacent the top wall and outer wall,
e.g., [#26-5 at col. 1, ll. 59-62], or adjacent to
the top wall, between the top wall, outer wall, and lower
surface, e.g., [id. at col. 6, ll. 29-33].
These elements refer to the swing body itself, not the
concave seat portion.
the swing body is the frame of reference, the court concludes
that the term “circumference” may suggest that
the swing body must be circular. But the specification of the
'146 Patent makes clear that the shape of the swing body
may include other non-circular shapes like an oval, [#26-5 at
Fig. 14], or non-rectangular shapes such as a trapezoid,
pentagon, hexagon, or octagon, [id. at col. 6, ll.
15-23]. And as acknowledged by Plaintiffs, the plain and
ordinary meaning of periphery includes “the perimeter
of a circle or other closed curve; the perimeter of a
polygon; [or] the external boundary or surface of a
body.” [#60 at 3]. Similarly, Defendant argues that
“peripheral” is “something along the
perimeter of a surface.” [#49 at 35]. Therefore, this
court finds that reference to a perimeter, rather than a
circumference, is more appropriate. See Omega Eng'g,
Inc, v. Raytek Corp., 334 F.3d 1314, 1334 (Fed. Cir.
2003) (“[W]e presume, unless otherwise compelled, that
the same claim term in the same patent or related patents
carries the same construed meaning”).
addition, the respective specifications of the
Patents-in-Suit indicate that in various embodiments the
groove must have sufficient space to accommodate a tether
opening and tether, see [#26-2 at col. 2, ll.
20-24], or include two open spaces, see
[id. at col. 2, ll. 27-34], or to house part of the
tether system, see [#26-5 at col. 1, ll. 62-65], or
to accommodate a reinforcement ring, see
[id. at col. 7, ll. 36-39]. But the peripheral
groove is not necessarily defined by any or all of these
elements. Rather, the claims set forth other limitations that
impact the “peripheral groove, ” e.g., that the
peripheral groove includes a tether opening. See
[#26-2 at cl. 1]. To the extent that Brand 44 seeks to define
“peripheral groove” with specific additional
structures, the court respectfully declines to do so. Indeed,
to require the peripheral groove to necessarily include
“space free of peripheral edge support between tether
openings” would run contrary to the portion of the
specification and Fig. 1A which disclose that “[t]he
lower tethers can be defined from multiple lengths of rope or
chain or other flexible materials, ” and “Fig 1A
shows an arrangement in which the respect [sic] lower ends of
the lower tethers LT1-LT4 are each connected to the
swing body B, ” see, e.g., [id. at
col. 3, ll. 22-24 (emphasis added); Fig. 1A], which renders
any open space between tethers unnecessary.
while Plaintiffs are correct that the channel need not be
continuously open all the way around the circumference, they
concede that the plain and ordinary meaning of the term
"groove" connotes a channel. [#53]. That channel,
labelled as I2g in Figures 4, 5, and 6, is not
simply the segment of space bounded by the outer wall, inner
wall, and two radial ribs as suggested by Plaintiff. [#53 at
7]. Rather, it is the entirety of the channel surrounding the
perimeter of the swing, which support ...