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Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp.

United States District Court, W.D. Tennessee, Western Division

February 9, 2017

MULTILAYER STRETCH CLING FILM HOLDINGS, INC., Plaintiff,
v.
BERRY PLASTICS CORPORATION, Defendant.

          ORDER ON CLAIM CONSTRUCTION FOR “WHEREIN EACH OF SAID TWO OUTER LAYERS AND EACH OF SAID FIVE INNER LAYERS HAVE DIFFERENT COMPOSITIONAL PROPERTIES WHEN COMPARED TO A NEIGHBORING LAYER”.

          JON P. McCALLA UNITED STATES DISTRICT COURT JUDGE.

         This action arises from allegations by Plaintiff Multilayer Stretch Cling Film Holdings, Inc. (“Multilayer”) against Defendant Berry Plastics Corporation (“Berry”) for patent infringement of U.S. Patent No. 6, 265, 055, entitled Multilayer Stretch Cling Film (“the ‘055 Patent”). This case comes before the Court on remand from the United States Federal Circuit Court of Appeals. Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp., No. 2015-1420, 2016 WL 4137673 (Fed. Cir. Aug. 4, 2016).

         I. BACKGROUND

         Before the Court is the parties' request for claim construction pursuant to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc). On October 17, 2012, the Court consolidated four patent-infringement actions for the purpose of claim construction and set a consolidated claim construction schedule.[1] (Multilayer Stretch Cling Film Holdings, Inc. v. MSC Marketing & Technology, Inc. d/b/a Sigma Stretch Film, No. 2:12-cv-2112-JPM-tmp, ECF No. 49 at PageID 378; see also id., ECF No. 95 at PageID 3353 n.1.)[2] On November 20, 2013, the Court entered its Order Following Claim Construction Hearing. (ECF No. 95 at PageID 3350.) In that Order, the Court did not construe the disputed term “wherein each of said two outer layers and each of said five inner layers have different compositional properties when compared to a neighboring layer, ” a term found in Claim 1 and Claim 28 of the '055 Patent. (See '055 Patent, Second Ex Parte Reexamination Certificate (Apr. 7, 2009), ECF No. 1-4 at PageID 25; Certificate of Correction (Apr. 7, 2009), ECF No. 1-4 at PageID 22.) In a separate Order filed on November 8, 2013, the Court entered its Proposed Construction for “wherein each of said two outer layers and each of said five inner layers have different compositional properties when compared to a neighboring layer” and “Compositional Properties.” (ECF No. 96.) The parties were required to submit supplemental briefing on the Court's proposed construction within fourteen (14) days. (Id. at PageID 3476.) The parties did not file such briefs in this case; rather, they submitted briefs in the parallel action in response to the same order. (See ECF Nos. 98-99.)

         On October 19, 2016, after the Federal Circuit's remand, the Court held a telephonic scheduling conference. (No. 12-2108, ECF No. 176.) During the conference, the parties requested that the Court construe “wherein each of said two outer layers and each of said five inner layers have different compositional properties when compared to a neighboring layer” and “compositional properties”, which the Court did not finalize prior to the appeal to the Federal Circuit. On October 21, 2016, the Court ordered the parties to file responsive briefs to its November 2013 proposed construction. (ECF No. 179.) The parties filed timely briefs on October 28, 2016. (ECF Nos. 181-82.)

         For the reasons stated herein, the Court construes the claim terms as follows:[3]

CLAIM TERM

COURT'S CONSTRUCTION

Wherein each of said two outer layers and each of said five inner layers have different compositional properties when compared to a neighboring layer

“wherein each of said two outer layers and each of said five inner layers has a different composition and end-use properties than each immediately adjacent layer”

Compositional property

“an end-use property after processing the combined resin(s) and/or resin(s) and resin additive(s)”

         CLAIM TERMCOURT'S CONSTRUCTION

         Wherein each of said two “wherein each of said two outer outer layers and each of layers and each of said five said five inner layers inner layers has a different have different composition and end-use compositional properties properties than each immediately when compared to a adjacent layer” neighboring layer “an end-use property after processing the combined resin(s) Compositional property and/or resin(s) and resin additive(s)”

         II. CLAIM CONSTRUCTION STANDARD

         “In conducting an infringement analysis, a court must first determine the meaning of any disputed claim terms and then compare the accused device to the claims as construed.” Proveris Sci. Corp. v. Innovasystems, Inc., 739 F.3d 1367, 1371-72 (Fed. Cir. 2014) (citing Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009)); accord Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc). Regarding the first step, claim construction is a question of law with “evidentiary underpinnings” to be determined by the court. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 835, 838 (2015); Markman v. Westview Instruments, Inc., 517 U.S. 370, 390 (1996)). Where terms or phrases are “not commonly understood, ” a court may make subsidiary findings of fact based on evidence extrinsic to the patent to assist the court in its task of claim interpretation. See Teva Pharm., 135 S.Ct. at 837-38. These factual determinations precede the court's ultimate legal construction of the patent's claims. Id.

         A. Claims

         Patent claims generally fall into two broad categories: product claims and method claims. A product claim describes the invention of a physical product, such as a machine or pharmaceutical tablet. A method claim describes a series of steps, or processes, constituting the claimed invention. In construing patent claims, courts “must generally take care to avoid reading [method] limitations into [product] claims . . . because the process by which a product is made is irrelevant to the question of whether that product infringes a pure [product] claim.” Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1344 (Fed. Cir. 2008). That being said, some patent claims describe a product by the process used to achieve it. See Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1291 (Fed. Cir. 2009). Additionally, an applicant may disclaim products created using certain processes if the applicant “overcomes a rejection against [both] product and process claims by indicating that the process is necessary to produce the claimed product” and, in doing so, fails to “limit the disclaimers to [only] the process claims.” AstraZeneca LP v. Breath Ltd., 542 F.App'x 971, 977 (Fed. Cir. 2013), as amended on reh'g in part (Dec. 12, 2013). Such “product-by-process” claims should be read to require use of the claimed process. Baldwin, at 1294.

         Claim construction begins with the language of the claims themselves. Braintree Labs., Inc. v. Novel Labs., Inc., 749 F.3d 1349, 1354-55 (Fed. Cir. 2014) (citing Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001)). Claim terms in the patent “are generally given their ordinary and customary meaning, which is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention.” Ethicon Endo-Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1323 (Fed. Cir. 2015) (citing Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc)). This general rule has two known exceptions: (1) “when a patentee sets out a definition and acts as his own lexicographer, ” or (2) “when the patentee disavows the full scope of the claim term either in the specification or during prosecution.” Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014) (quoting Thorner v. Sony Comput. Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)). Where a claim term has more than one “ordinary” meaning, or when reliance on a term's “ordinary” meaning does not resolve the parties' dispute, a determination that a claim term “needs no construction” or has the “plain and ordinary meaning” may be inadequate. O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008).

         “To determine the scope and meaning of a claim, we examine the claim language, written description, prosecution history, and any relevant extrinsic evidence.” InTouch Techs., Inc. v. VGO Commc'ns, Inc., 751 F.3d 1327, 1339 (Fed. Cir. 2014) (citing Phillips, 415 F.3d at 1315-19); Markman, 52 F.3d at 978-79.

Apart from the claim language itself, the specification is the single best guide to the meaning of a claim term. And while the prosecution history often lacks the clarity of the specification, it is another established source of intrinsic evidence. After considering these three sources of intrinsic evidence, a court may also seek guidance from extrinsic evidence. However, extrinsic evidence may be less reliable than the intrinsic evidence.

Vederi, LLC v. Google, Inc., 744 F.3d 1376, 1382 (Fed. Cir. 2014) (citations and internal quotation marks omitted).

         B. Intrinsic Record

         1. Specification

         “The specification is fundamental to claim construction, as it is the single best guide to the meaning of a disputed term.” Trading Techs. Int'l, Inc. v. Open E Cry, LLC, 728 F.3d 1309, 1319 (Fed. Cir. 2013) (quoting Phillips, 415 F.3d at 1315). In determining the meaning to be given to claim terms, a court must read the terms in the context of the specification as it is the patent specification which, by statute, must contain a “full, clear, concise, and exact” description of the invention. 35 U.S.C. § 112(a); accord Phillips, 415 F.3d at 1311. Consequently, “claim terms must be construed in light of the specification and prosecution history, and cannot be considered in isolation.” GE Lighting Sols., 750 F.3d at 1308-09 (citing Phillips, 415 F.3d at 1313).

         Although claim terms are normally given their ordinary and customary meaning, a patentee may depart from this rule by acting as his own lexicographer or by disavowing the claim scope in the specification. Phillips, 415 F.3d at 1316. “Idiosyncratic language, highly technical terms, or terms coined by the inventor are best understood by reference to the specification.” 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1321 (Fed. Cir. 2013) (citing Phillips, 415 F.3d at 1315-16). To use a special definition of a claim term, the patentee must “clearly” redefine the term and have an “express intent” to do so within the patent. Thorner, 669 F.3d at 1365- 66; Elekta Instrument S.A. v. O.U.R. Sci. Int'l, Inc., 214 F.3d 1302, 1307 (Fed. Cir. 2000).

         Courts must “not read limitations from the embodiments in the specification into the claims.” Hill-Rom, 755 F.3d at 1371 (citing Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir. 2004)). This requirement prevents a court from limiting the scope of the claims to only the preferred embodiment or specific examples disclosed in the specification. Epos Techs. Ltd. v. Pegasus Techs. Ltd., 766 F.3d 1338, 1341 (Fed. Cir. 2014) (“[I]t is improper to read limitations from a preferred embodiment described in the specification-even if it is the only embodiment-into the claims absent a clear indication in the intrinsic record that the patentee intended the claims to be so limited.” (quoting Liebel-Flarsheim, 358 F.3d at 913)). “By the same token, the claims cannot ‘enlarge what is patented beyond what the inventor has described in the invention.'” Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009) (quoting Biogen, Inc. v. Berlex Labs., Inc., 318 F.3d 1132, 1140 (Fed. Cir. 2003)).

         2. Prosecution History

         “A court should also consider the patent's prosecution history, if it is in evidence. The prosecution history consists of the complete record of the proceedings before the [U.S. Patent and Trademark Office].” InTouch Techs., 751 F.3d at 1341 (citations and internal quotation marks omitted). “[P]rosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be.” Plantronics, Inc. v. Aliph, Inc., 724 F.3d 1343, 1350 (Fed. Cir. 2013) (alteration in original) (quoting Phillips, 415 F.3d at 1317). A court “does not rely on the prosecution history to construe the meaning of the claim to be narrower than it would ...


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