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

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

CASE NO. C18-1464JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

July 30, 2019

CLAIM CONSTRUCTION ORDER

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 hearing¹ 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 materials not available for display.

FIG. 1

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FIG. 6

('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.)

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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 intrinsicevidence, 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 thepatent 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.

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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...