Quality Innovative Products, LLC v. Brand 44, LLC

          ORDER ON CLAIM CONSTRUCTION

          Nina Y. Wang United States Magistrate Judge.

         This 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.

         BACKGROUND

         Plaintiffs 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”)^[1] issued June 30, 2015; and 9, 415, 316 (the “'316 Patent”), ^[2] 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].

         The 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].^[3] 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].

         To 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].

         (Image Omitted)

         Additionally, 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:

         (Image Omitted)

         [#26-2 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. [#26-5; #26-7].

         Pursuant to the Scheduling Order, ^[4] 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 for adjudication.

         LEGAL STANDARD

         “[T]he 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. 1999)).

         When 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.^[5] 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).

         Courts 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 added).

         Finally, 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 arguments.

         ANALYSIS

         The 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].^[6] The court construes the disputed terms and/or phrases as follows.

         I.“Peripheral Groove”

         The 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 ribs.

         Brand 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.”^[7] [#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].

         Plaintiffs 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].

         As 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.

         Because 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”).

         In 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.

         And 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 ...