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PAVE TECH v. SNAP EDGE CORP.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


July 2, 1996

PAVE TECH, INC. and STEPHEN JONES, Plaintiffs,
v.
SNAP EDGE CORPORATION, FRED STROBL, ALBERT L. LITWIN, JACK GLATT and BRADLEY LEGARE, Defendants.

The opinion of the court was delivered by: ASHMAN

REPORT AND RECOMMENDATION

 Plaintiffs, Pave Tech, Inc. and Stephen Jones (hereinafter collectively referred to as "Pave Tech"), seek judgment as a matter of law concerning the interpretation of certain patent claims which it contends have been infringed. In an Amended Complaint filed April 26, 1991, Pave Tech seeks injunctive and monetary relief resulting from Defendants', Snap Edge Corporation, Fred Strobl, Albert L. Litwin, Jack Glatt and Bradley LeGare (hereinafter collectively referred to as "Snap Edge"), alleged infringement of United States Reissue Patent No. 33,550 entitled, "Restraint Edge for Paving Members" ("'550 Reissue Patent"). *fn1" Pave Tech alleges that Snap Edge has infringed, induced others to infringe or contributed to the infringement of others in violation of 35 U.S.C. §§ 271 and 281. *fn2" Snap Edge contends that the '550 Reissue Patent is invalid and, in the alternative, that their product and actions do not infringe. Since a jury has been requested in this case, the sole issue in this motion is the construction of certain claims in the '550 Reissue Patent: Independent claim 115, with corresponding dependent claims 116, 117, 128, 130 and 139, and independent claim 144, with corresponding dependent claims 145, 146, 147, 150, 157, 158, 159, 164, 165 and 167.

 On August 2, 1995, this Court held a hearing to determine the proper construction of claims in this case pursuant to the holding in Markman, et al. v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995), aff'd by 116 S. Ct. 1384 (1996) ("in a case tried to a jury, the court has the power and the obligation to construe as a matter of law the meaning of language used in the patent claim."). In briefs and at the hearing, the parties presented their interpretations of the claims based on their reading and analysis of the claim specifications, the prosecution history and extrinsic evidence. However, on September 29, 1995, this Court stayed its decision on this issue in light of the U.S. Supreme Court grant of certiorari in Markman. On April 23, 1996, the Supreme Court affirmed the decision in Markman, expressly holding that the construction of a patent's claims, including terms of art contained therein, is exclusively within the province of the court. Markman, et al. v. Westview Instruments, Inc., et al., 134 L. Ed. 2d 577, 116 S. Ct. 1384 (1996). Based on this holding, the Court now enters the following Report and Recommendation regarding construction of certain claims at issue in this infringement suit.

 I. Relevant Facts

 Pave Tech, Inc. ("Pave Tech") is a Minnesota corporation with principal place of business in Bloomington, Minnesota. Stephen Jones ("Jones") is President of Pave Tech and is the owner of the '550 Reissue Patent. Pave Tech is a licensee under the '550 Reissue Patent. Snap Edge Corporation ("Snap Edge") is an Illinois corporation with principal place of business in Chicago. Fred Strobl ("Strobl") is a director and President of Snap Edge; Jack Glatt ("Glatt") is a director and Secretary/Treasurer of Snap Edge; and Bradley LeGare ("LeGare") is a director and Vice President of Snap Edge.

 In 1989, Jones obtained Patent '307 for a plastic edge restraint for paving stones. During the patent application and examination process, Jones produced and sold his edge restraint throughout the United States and Canada. In December, 1989, Snap Edge was incorporated and began manufacturing plastic edge restraints. In January, 1990, Strobl met with Jones to obtain a license under Patent '307, but Jones did not grant any license to Snap Edge. Subsequently, Jones discovered Snap Edge promoting a plastic edge restraint at an industry trade show and Jones filed the instant infringement action.

 In April, 1990, Jones sought reissue of Patent '307 pursuant to 35 U.S.C. § 251. *fn3" Following the examination process, the PTO reissued the patent with several new claims as '550 Reissue Patent in March 1991. In its subsequently filed Amended Complaint, Pave Tech alleges infringement of '550 Reissue Patent.

 The '550 Reissue Patent contains 119 claims and 3 drawing sheets and provides for an edge restraint "for maintaining hard surfaces such as paving stones within a predetermined boundary." ('550 Reissue Patent, Col. 1, lns. 17-19). The Background section of the '550 Reissue Patent chronicles the history of existing patented edge restraints and the attendant problems with each: From masonry or concrete restraints which are costly and inflexible, to steel panel restraints which are inflexible and subject to corrosion, to aluminum panel restraints which are either weak and flexible or heavy and inflexible. ('550 Reissue Patent, Col. 1, lns. 35-70; Col. 2, lns. 1-35). The '550 Reissue Patent also notes that "none of these [patented restraints] address converting the horizontal force applied from the paving stones into a vertical force down into the ground." (Reissue Patent, Col. 2, lns. 43-45). Finally, the '550 Reissue Patent identifies a need for "a lightweight edge material which uses the ground around it to provide increased strength for preventing horizontal shifting of paving stones" ('550 Reissue Patent, Col. 3, lns. 30-33) and suggests that this invention satisfies that need.

 II. Discussion

 A. Standard of Law - Claim Construction

 A patent is a government grant of rights and its claims provide the metes and bounds of those rights which allow the patentee to exclude others from making, using, or selling the invention as claimed. 35 U.S.C. § 154; see also Corning Glass Works v. Sumitomo Elec. USA, Inc., 868 F.2d 1251 (Fed. Cir. 1989). There are two types of claims in a patent: Independent claims and dependent claims. An independent claim stands on its own and does not refer to any other claim in the patent; thus, it must be read separately from the other claims when determining its scope. A dependent claim includes a reference to at least one other claim in the patent and must be interpreted to encompass each element of as well as any additional elements. However, the additional limitations of a dependent claim must not be read or implied into an independent claim if said independent claim does not contain the same limitation. See D.M.I., Inc. v. Deere & Co., 755 F.2d 1570 (Fed. Cir. 1985). In other words, "the dependent claim tail cannot wag the independent claim dog." North Am. Vaccine, Inc. v. American Cyanamid Co., 7 F.3d 1571, 1577 (Fed. Cir. 1993).

 To establish infringement, a plaintiff must prove that every limitation in a given patent claim is found in the accused product exactly or by its substantial equivalent. Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed. Cir. 1991). Thus, an infringement analysis entails two steps. First, the meaning and scope of the claims in issue must be determined by a study of all relevant patent documents and evidence. Second, these claims must be read on (or compared) to the device accused of infringing. Markman, 52 F.3d at 976; Autogiro Co. of Am. v. U.S., 181 Ct. Cl. 55, 384 F.2d 391, 401 (Ct. Cl. 1967). In light of the recent Supreme Court affirmance of Markman, the first step is unquestionably an issue of law for the court to decide, while the second step is a question of fact. Markman, 116 S. Ct. at 1393. In this Report and Recommendation, this court confines itself solely to the issue of law regarding construction of certain claims at issue, and will not address issues of patent validity or infringement.

 In construing a claim, the court essentially defines the federal legal rights created by the patent document, and must neither narrow nor broaden the scope of a claim to give the patentee something different than what he has set forth. E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir.), cert. denied, 488 U.S. 986, 102 L. Ed. 2d 572, 109 S. Ct. 542 (1988). Claim interpretation requires consideration of the claims, the specification, and the prosecution history as well as testimony from experts or those skilled in the art as to their interpretations. Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1561 (Fed. Cir. 1991).

 A patent's specification (the written description, the drawings, and other claims in the patent) must describe the invention in such a way as to enable one of ordinary skill in the art to make and use the invention. Markman, 52 F.3d at 979. The specification must conclude with "one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." 35 U.S.C. § 112. Claims are, therefore, part of the specification and must be read and interpreted as such. Ultimately, however, the claim measures the invention and the fundamental difference between a specification and a claim is that "claims are infringed, not specifications." SRI Intern. v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985). Consequently, not everything in a specification must be read into a claim, and the court cannot read into a claim a limitation that appears in the specification, but not in the claim. Minnesota Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d 1559, 1566 (Fed. Cir. 1992); SRI Intern. 775 F.2d at 1121. In other words, simply because "claims are interpreted in light of the specification does not mean that everything expressed in the specification must be read into all the claims." Raytheon Co. v. Roper Corp., 724 F.2d 951, 957 (Fed. Cir. 1983). In addition, references to a preferred embodiment, such as those in the specifications or drawings, *fn4" are not claim limitations. Laitram Corp. v. Cambridge Wire Cloth Co., 863 F.2d 855, 865 (Fed. Cir. 1988), cert. denied, 490 U.S. 1068, 104 L. Ed. 2d 634, 109 S. Ct. 2069 (1989).

 Most importantly for claim interpretation purposes, the description in the specification can act as a dictionary explaining the invention and defining terms critical to the claims. Markman, 52 F.3d at 979. For this reason, the specification has generally been considered "the primary basis for construing the claims" of a patent. Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985). While the words of a claim generally mean what one skilled in the art would ordinarily expect them to mean; sometimes a claim's words may not have the ordinary meaning since a "patentee is free to be his own lexicographer." Markman, 52 F.3d at 930, citing Autogiro, 384 F.2d at 397. However, any special definitions must be set forth in the specification, and words of the claim should be given their ordinary and accustomed meaning, unless it appears that the inventor used them differently. ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1579 (Fed. Cir. 1988).

 Another source relevant to claim construction is the prosecution history as detailed in the file wrapper. The prosecution history contains the entire record of proceedings in the Patent and Trademark Office ("PTO") including express representations made by or on behalf of the applicant to induce the granting of the patent. Often among those representations are amendments and arguments made to convince the patent officer that the claimed invention complies with the statutory requirements of novelty, utility and nonobviousness. The prosecution history, therefore, can provide a record of the applicant's disclaimed or disavowed interpretations which can be excluded by the court in any subsequent claim interpretation. See Standard Oil Co., 774 F.2d at 452. However, just as with the specification, the prosecution history should be used to understand the meaning of the claim language, but cannot alter the limitations contained in the claims. Markman, 52 F.3d at 980.

 Extrinsic evidence provides a final source of information helpful for claim interpretation. Extrinsic evidence encompasses all material external to the patent and prosecution history, including expert testimony. Such evidence cannot vary or contradict the terms of the claims but can help to explain scientific principles, the meanings of technical terms and terms of art which may appear in the patent or prosecution history. In other words, while expert testimony can provide evidence as to the meaning of claim language from which the Court can then determine claim construction, experts cannot provide testimony as to the actual construction of the claim itself. See Markman, 52 F.3d at 980, 981.

 B. Claims at Issue

 In this case, the '550 Reissue Patent claims in issue include independent Claim 115 with dependent Claims 116, 117, 128, 130, 139 and independent Claim 144 with dependent Claims 145, 146, 147, 150, 157, 158, 159, 164, 165 and 167.

 Claim 115 is an independent claim in '550 Reissue Patent which provides:

 

Support apparatus for restraining a hard surface means in a given position comprising:

 

substantially vertical strip restraining means for defining a boundary around said hard surface means, said vertical strip restraining means having an upper region, a lower region, an inner surface facing toward said hard surface means for receiving substantially horizontal forces from said hard surface means, and an outer surface facing award from said hard surface means;

 

base strip extension means extending out from said outer surface of said vertical strip retraining means in said lower region for receiving vertical forces relative to the ground surface; and

 

force converting means for converting said horizontal forces received by said vertical strip restraining means into vertical forces against said base strip extension means thereby restraining said hard surface means in said boundary, said force converting means including connecting strip means for connecting said vertical strip restraining means to said base strip extension means, said force converting means further including reinforcing means for said connecting strip means;

 

wherein said connecting means, a portion of said vertical strip restraining means and a portion of said base extension means form a triangular cross section, said connecting means forming a longest side of said triangular cross section;

 

wherein said vertical strip restraining means and said base strip extension means are connected to one another at said lower region of the vertical strip restraining means; and

 

wherein said connecting means, a portion of said vertical strip restraining means and a portion of said base extension means form a triangular cross section, said connecting strip means and said base strip extension means each including an aperture therethrough for receiving a stake, said apertures of said connecting strip means and said base strip extension means being aligned around a common axis parallel to said vertical strip restraining means.

 ('550 Reissue Patent, Col. 23, lns. 22-62).

 Claim 144 is also an independent claim in '550 Reissue Patent which provides:

 

A paving installation, comprising: (i) paving surface means for accommodating traffic which is use experiences substantial horizontal forces at its lateral edge and which is located on top of a substantially level base surface, and (ii) edge restraint means for receiving said horizontal forces and maintaining the paving surface means in position, said edge restraint means being at least partially disposed below local ground level and including:

 

(a) an upright member engaged with lateral edges of the paving surface means and having sufficient flexibility to accommodate irregular shaped boundaries along said lateral edges with said upright member exhibiting a first surface abuttingly engaging the lateral edges of the paving surface means, a second surface opposed to the first surface, and a top surface;

 

(b) an extension member disposed laterally of the upright member and including a bottom surface portion located on the base surface; and

 

(c) force converting means operatively arranged between the upright member and the extension member for transferring the substantial horizontal forces imparted to the first surface of the upright member via the paving surface to the base surface, said edge restraint means including anchoring means engaged into the base surface.

 ('550 Reissue Patent, Col. 25, lns. 47-70; Col. 26, lns. 1-3).

 C. "Means Plus Function" Analysis

 Snap Edge contends that essential elements of these claims must be evaluated under a "means plus function" analysis pursuant to 35 U.S.C. § 112(6) (" § 112(6)"). *fn5" Section 112(6) permits an element of a claim for a combination to be expressed as a means for performing a function without recital of structure in support thereof. Valmont Industries, Inc. v. Reinke Mfg. Co., Inc., 983 F.2d 1039, 1042 (Fed. Cir. 1993). But, in order to avoid a completely open-ended interpretation, a claim limitation using means plus function language is construed to include only the structure, material, or acts (and their equivalents) that are described in the patent's specification as the means for performing the claimed function. Herbert F. Schwartz, Patent Law and Practice 80 (2d ed. 1995). "Therefore, if one employs means-plus-function language in a claim, one must set forth in the specification an adequate disclosure showing what is meant by that language." In re Donaldson Co., Inc., 16 F.3d 1189, 1195 (Fed. Cir. 1994). In effect, Section 112(6) operates like a reverse doctrine of equivalents because it restricts the coverage of literal claim language. Valmont, 983 F.2d at 1042.

 Pave Tech initially agreed that means plus function analysis applied to these claims; however, it has since changed its position. (Transcript at 16-19). Currently, Pave Tech contends that the term 'means' as used in most of the claims is superfluous and that means plus function analysis is improper since many elements are "structural claims with attendant functional language added." (Report of David Melton ("Melton Report"), at 6-7).

 The Court is not persuaded by Pave Tech's newly minted position and finds, from a plain reading of the '550 Reissue Patent, that essential elements of Claims 115 and 144 are set out with means plus function language and must be evaluated as such. *fn6" Once means plus function terms are discovered in a patent's claims, the Court must identify the structure in the specification. Means plus function claims must be interpreted in light of the entire invention as a whole. Once that structure is identified, the issue of infringement depends on whether the single means in the accused device which performs the function stated in the claim is the same as or an equivalent of the corresponding structure described in the patentee's specification as performing that function. D.M.I., Inc. v. Deere & Co., 755 F.2d at 1575.

 For those elements of the claims which are not means plus function terms, Section 112(6) necessarily does not apply and the claim is to be construed by giving each word its common, ordinary meaning unless otherwise noted in the specification. McGill, Inc. v. John Zink Co., 736 F.2d 666, 674 (Fed. Cir. 1984), cert. denied, 469 U.S. 1037, 83 L. Ed. 2d 404, 105 S. Ct. 514. As Pave Tech points out, means plus function analysis only applies where no structure has been identified in the claim; therefore, where the claim uses the word means but structure is recited, Section 112(6) necessarily does not apply. See Laitram Corp v. Rexnord, Inc., 939 F.2d at 1536. In other words, where a claim recites structure which only specifies what a means does and not what a means is, that element falls under Section 112(6). The Court finds that both Claim 115 and Claim 144 contain means plus function elements and non-means plus function elements which will be construed appropriately.

 D. Claim Construction

 Claim 115 provides for the combination of various integral elements to create a "support apparatus for restraining a hard surface means in a given position." The resulting product is intended for use in the paving industry. Claim 144 sets forth a process for creating a "paving installation." It is also a combination claim comprised of various elements, including the apparatus detailed in Claim 115, each of which is considered essential and equal to the others. There being no specific disputes over the construction of the dependent claims at issue, the Court will confine its analysis to the independent claims.

  1. Independent Claim 115

 The essential elements of Claim 115 are:

 a. Vertical strip restraining means

 Claim 115 requires a means to define a boundary around the paving stones and to receive "substantially horizontal forces" from those stones. Pave Tech suggests that means plus function analysis is not necessary because the claim specifies a structure: An upper region, a lower region, an inner surface and an outer surface. However, the Court does not agree because the description provided in the claim is so vague as to essentially encompass any structure with four sides. The recited structure, as it stands, merely describes what the strip does, not what it is structurally.

 This element, therefore, appears ripe for means plus function interpretation. Examining the specification reveals a more detailed description of the vertical strip. The Court finds that the vertical restraining strip refers to an upright member as described in the specification or a structural equivalent thereof. (As depicted in Figs. 1 and 2, # 20). As delineated in the specifications, the vertical strip is substantially vertical with a height dependent upon the size of the paving stones and the magnitude of the forces to which the restraint will be subjected. ('550 Reissue Patent, Col. 5, lns. 44-54). The vertical strip is to be thicker than either the base strip, the connecting strip or the cross strip, but be shorter than the base strip, for optimum force conversion. ('550 Reissue Patent, Col. 6, lns. 1-10, 65-70).

 b. Base strip extension means

 Another integral element of Claim 115 is a means for "receiving vertical forces" which extends from the outer surface of the vertical restraining means element discussed above. Once again, Pave Tech contends that this element is not subject to means plus function interpretation; and, once again, the Court disagrees. Simply reciting that the base strip extension extends from the vertical strip in the lower region hardly provides the type of definite structure required. The Court finds that this refers to a horizontal member or a structural equivalent thereof. (As depicted in Figs. 1 and 2, # 28). The specifications detail a base strip extending perpendicular from the vertical strip, which is thinner than the vertical strip, and longer than the vertical strip is high for optimum force conversion and flexibility. ('550 Reissue Patent, Col. 5, lns. 55-70; Col 6, lns. 5-10, 65-70).

 c. Force converting means

 This element is comprised of the "connecting strip means" and a "reinforcing means." Each of these elements tell what they do rather than what they are and are thus subject to Section 112(6) interpretation. The connecting strip means, as described in the claim, connects the vertical strip restraint and the base strip extension to form a triangular cross section, for which the connecting strip is the longest side. The restraining means is also a means plus function element. The specification details a reinforcement element called a cross-strip which is described on the specification as extending from the juncture of the vertical strip and the base strip to the connecting strip (as depicted at Figs. 1-3 as # 42).

 The Court finds that the '550 Reissue Patent specification sufficiently describes and details the invention claimed in Claim 115. In sum, Claim 115 describes an edge restraint for maintaining paving stones within a fixed, though sometimes uneven, border. The restraint is triangular in shape and includes an upright component ("vertical strip restraining means", a base component ("base strip extension means"), and a component called a "force converting means" which includes a "connecting strip" and a "reinforcing means." The longest side of the triangle is formed by the connecting component, the next longest side is formed by the base component and the shortest length is formed by the upright component. The "force converting means" serves as a brace against the horizontal forces of the paving stones and is located within the triangle formed by the upright, base and connecting components. Furthermore, the connecting component, cross strip component and base component contain a hole through which a stake may be driven parallel to the upright component for added stability.

 2. Independent Claim 144

 The essential elements of Claim 144 are:

 a. Paving surface means

 One integral part of Claim 144 is the paving surface means. There is no dispute that this element only explains what it does rather than what it is and is clearly a means plus function element. The specifications establish that the paving surface means are interlocking paving stones intended to support pedestrian to heavy truck traffic which are located atop a level base surface. ('550 Reissue Patent, Col. 1, lns. 20-24; Col. 5, lns. 50-51).

 b. Edge restraint means

 The second element of Claim 144 refers to the support apparatus described in Claim 115 and includes an upright member, an extension member, a force converting means and an anchoring means.

 i. Upright member

 The upright member serves the same purpose as the "vertical restraint means" detailed in Claim 115. It engages the lateral edge of the paving stones and forms a boundary for the paving surface.

 ii. Extension member

 The extension member corresponds to the "base strip extension means" identified in Claim 115. It connects to the base of the upright member and extends away from the paving stones and sits on the base surface.

 iii. Force converting means

 There is no dispute that the force converting means is the exact same component as referred in Claim 115 and includes a connecting strip and a cross strip. It is axiomatic that claim terms must be interpreted consistently throughout a patent. Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1579 (Fed. Cir. 1995). Thus, the interpretation made in Claim 115 serves as the interpretation for this element.

 iv. Anchoring means

 Included in the edge restraint means is an anchoring means engaged in the base surface. As detailed in the specifications these anchoring means are stakes which can be driven parallel to the upright member, through apertures in the connecting strip, cross strip and base strip. This element is intended to add further support and to help convert forces. ('550 Reissue Patent, Col. 7, lns. 10-30).

 D. Specific Disputes

 Snap Edge makes three specific arguments regarding certain elements of Claims 115 and 144. First, Snap Edge argues that the force conversion referenced throughout the patent should be interpreted to require conversion of most, if not all, horizontal forces into vertical forces. Second, Snap Edge asserts that the term "substantial" as used in Claim 144 is indefinite. Finally, Snap Edge contends that term strip as used in Claim 115 and Claim 144 must be interpreted to mean continuous.

 Force conversion is a ubiquitous concept in the '550 Reissue patent from the Abstract through the specifications through numerous claims. Essentially, Claim 115 purports to detail a means for converting the horizontal forces, which act upon the paving stones and can cause shifting, into vertical forces in order to use the ground to keep the pavers in place. This purported force conversion is accomplished using a connecting strip and a restraining means. Snap Edge argues that this term must be interpreted to require that most if not all horizontal forces received by the vertical restraint strip be converted into vertical forces. The Court does not agree. Nowhere in the specification is a set amount of horizontal force required to be converted into vertical force. The Court finds that there is no mandate that all horizontal force, or even most of it, be transferred via the force converting means into vertical forces. Whether any conversion actually occurs in these elements, and more importantly, whether any conversion occurs in the Snap Edge product, is a question of fact not properly before the Court at this time.

 Snap Edge's second argument concerns the term "substantial" as used in Claim 144 to describe the "horizontal forces" experienced at the lateral edges of the "paving surface means." According to Claim 144, these forces are initially received by the "edge restraint means" and subsequently transferred by the "force converting means" and the "anchoring means" to the base surface. *fn7" It is undisputed that the term "substantial" is only used in Claim 144 and its dependent Claim 155.

 Snap Edge suggests that, because "substantial" is nowhere defined in the '550 Reissue Patent or the file wrapper and because its meaning is so indefinite and ambiguous, Claim 144 is invalid pursuant to 35 U.S.C. § 112(2). *fn8" Pave Tech counters that "substantial" as used in Claim 144 would sufficiently inform one skilled in the art of paving installations about the claim.

 Section 112(2) requires that:

 

The specification; shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.

 The Federal Circuit has consistently held that when evaluating a claim for particularity and distinctness, its terms must be understandable to one skilled in the art. Markman, 52 F.3d at 986; see also Amgen, Inc. v. Chugai Pharmaceutical Co., Ltd., 927 F.2d 1200 (Fed. Cir. 1991). In Amgen, the Federal Circuit held that the term "about" as used in the phrase "at least about 160,000" was indefinite and rendered the claims invalid. Amgen, 927 F.2d at 1217. However, the amgen court was quick to caution that its holding applied only to the facts of that case and that the term "about" "may be acceptable in appropriate fact situations." Amgen, 927 F.2d at 1217.

 Snap Edge urges the same result here, arguing that the term "substantial" renders the meaning of Claim 144 in doubt. In support of its position, Snap Edge argues that Pave Tech's own technical expert, Dr. Matthew W. Witczak ("Dr. Witczak") has provided inconsistent opinions in his 1993 deposition and recent affidavit as to the meaning of the term "substantial." Further, Snap Edge suggests that Pave Tech's reliance for this motion on the very general dictionary definition of "substantial" improperly negates the meaning of the word it modifies: "Forces." *fn9" Ultimately, Snap Edge suggests that "substantial" cannot be sufficiently defined and that, therefore, Claim 144 must be invalid.

 The Court disagrees with Snap Edge's conclusions and finds that the term "substantial" as used in the context of paving installations described in the '550 Reissue Patent is sufficiently precise to inform one skilled in the art. Dr. Witczak, as one with "extraordinary" *fn10" skill in the art of pavements, has testified that in the context of paving installations like those described in the '550 Reissue Patent which can be subjected to a wide variety of loads, it is understood that no explicit quantification can be made for such forces. Thus, the term "substantial" cannot be interpreted to mean a specific quantity; rather it describes a range of loads from pedestrian to vehicular to occasional heavy truck. (Witczak Dep. at 135-146; Witczak Aff., PP 32-34). *fn11" Dr. Witczak further testified that while tractor-trailers and commercial aircraft would certainly produce "substantial" forces, it is understood from the patent that this invention would not be applied in installation subject to such forces. (Witczak Aff., P 35). *fn12" In addition, the Court finds that Pave Tech's reference to a dictionary definition of "substantial" does not violate claim interpretation rules. The definition is consistent with Dr. Witczak's interpretation and helps to explain that Claim 144 relates to a range of forces and distinguishes this invention from other restraints used strictly in landscaping as discussed in the specification.

 The Court finds that the term "substantial," when considered in the light of the entire claimed invention, is as accurate as the subject matter permits and provides sufficient guidance to one skilled in the art of paving stone installations. See Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (finding that the term "so dimensioned" to be sufficiently accurate given the various types of automobiles to which the invention applied). Given that pedestrians and vehicles come in a myriad of shapes and sizes, it would be impossible to set forth every possible specific force. Thus, the use of the term "substantial forces" adequately explains that walkways and driveways which incorporate this interlocking paving installation can be subjected to a limited range of forces - from pedestrians up to heavy trucks.

 Finally, Snap Edge maintains that "force converting means" and "base strip extension means" of Claim 115 and the "force converting means" and "extension member" of Claim 144 must be construed as including a continuous strip extending the length of the "vertical restraint means" or "upright member." Snap Edge reasons that since Claims 142 and 143 and Claims 183 and 184 refer to cut out portions of the "base strip extension means," the "extension member" and the "force converting means," and since force conversion purportedly occurs along most of the length of the edge restraint; these elements must be continuous otherwise cut outs would be unnecessary and force conversion would not be possible along most of the length of the restraint. The Court finds that Snap Edge's conclusions are based upon improper claim interpretation.

 Critically, Snap Edge ignores the fact that the '550 Reissue Patent contains several embodiments of the invention, including a continuous solid version (see Fig. 1), a segmented version (see Fig. 5) and a continuous cut out version (see Fig. 3). In addition, Snap Edge defines independent Claim 115 and 144 by placing on them limitations from dependent claims. As stated earlier "the dependent claim tail cannot wag the independent claim dog." North Am. Vaccine, 7 F.3d at 1577. Considering the patent as a whole, including the specifications, the drawings and the other claims, this Court finds that one of the major claims is that of flexibility and the ability to define uneven paving areas. To that end, the '550 Reissue Patent provides for several different embodiments of the claimed invention some of which require a solid, continuous edge restraint, and others which require cut outs, depending on the shape of the paved surface. The Court will not confine these claims to one embodiment as suggested by Snap Edge and will not interpret the term strip to be continuous.

 E. Dependent Claims Interpreted

 Snap Edge has presented no additional specific disputes over the interpretation of the dependent claims at issue in this case, and, therefore, the Court adopts Pave Tech's interpretations as follows, for the sake of completeness.

 1. Dependent Claim 116

 The edge restraint is situated in such a way that the force converting component, including the connecting component and the reinforcement component, are at least partly, but not necessarily completely, below ground level.

 2. Dependent Claim 117

 The paving stones must be able to be placed on a prepared base layer or foundation, such as compacted gravel, which is below ground level.

 3. Dependent Claim 128

 The upright and base components of the edge restraint are joined or united together at the lower end of the upright component.

 4. Dependent Claim 130

 The upright and the base components of the edge restraint are a single piece of plastic.

 5. Dependent Claim 139

 The base of the edge restraint measures about three to four inches from the point where it is joined at the upright to its outer end and the upright measures about one to two inches in height. The dimensions can vary depending on circumstances such as the projected weight of the traffic, the magnitude of the lateral forces to which the edge restraint will be subjected, the size of the pavers, and the type of material used in the pavers.

 6. Dependent Claim 145

  The so-called "force converting" component of the edge restraint includes a reinforcement, i.e., a brace that goes from the upright component toward the base surface on which the restraint is resting. The same component in Claim 115 is referred to as a "connecting strip."

  7. Dependent Claim 146

  An anchor, such as a spike or a stake, extends downward from a point between the ends of the reinforcement component and into the foundation underneath the edge restraint.

  8. Dependent Claim 147

  The anchor for the edge restraint includes a spike which goes through the base component of the restraint.

  9. Dependent Claim 150

  The upright and reinforcement components of the edge restraint are made of a single piece of plastic.

  10. Dependent Claim 158

  The upright, base and reinforcement components of the edge restraint are all connected, as the base component is completely united to the upright component (at the lower end of the upright), and the reinforcement component joins the upright component to the base component.

  11. Dependent Claim 159

  The edge restraining is triangular in shape, i.e., three-sided, with the reinforcing component being the longest of the three sides.

   12. Dependent Claim 164

  The base of the edge restraint measures approximately three to four inches from the point where it is joined at the upright to its outer end, and the upright member measures about one to two inches in height. The dimensions can vary depending on circumstances such as the projected weight of the traffic, the magnitude of the lateral forces to which the edge restraint will be subjected, the size of the pavers, and the type of material used in the pavers.

  13. Dependent Claim 165

  The reinforcement component of the edge restraint extends between the outer end of the base component (opposite the upright) and the upper region of the upright component at a point approximately three-quarters of its height.

  14. Dependent Claim 167

  The top of the upright component of the edge restraint is at or below ground level.

  Conclusion

  For the aforementioned reasons, the Court finds the various elements of Claim 115 and Claim 144 are means plus function components which the Court has interpreted accordingly, and recommends that the claims at issue be interpreted as set forth above.

  Dated: July 2, 1996.

  MARTIN C. ASHMAN

  United States Magistrate Judge


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