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March 14, 2000


The opinion of the court was delivered by: Milton I. Shadur, Senior District Judge


Maytag Corporation ("Maytag") brought this patent infringement action against Whirlpool Corporation ("Whirlpool"), alleging that Whirlpool infringed Maytag's United States Patent No. 5,205,419 *fn1 for a "Dishwasher Racking System." Whirlpool then counterclaimed, alleging that Maytag has infringed United States Patent Nos. 5,165,433 and 5,803,100, which relate to a dishwasher pump and soil separator system.*fn2

This opinion takes the first of the two steps required to determine whether claims of the `419 Patent have been infringed: conducting a Markman analysis (Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), aff'g 52 F.3d 967 (Fed. Cir. 1995) (en banc)) to construe the claims to determine their scope and meaning. To that end the parties have exchanged claim charts, and each side has submitted a full set of claim construction memoranda, *fn3 enabling this Court to address each of the disputed claim elements as a matter of law.*fn4 But first a brief review of claim construction principles will obviate the need for needless repetition in the discussion that follows.*fn5

Claim Interpretation

Because a major purpose of patent law is to provide notice of what has been removed from the public domain for the life of the patent, the interpretive process is essentially limited to intrinsic evidence: the claim, the specification and the prosecution history (see, e.g., Burke, Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed. Cir. 1999)). While "it is improper to rely on extrinsic evidence" such as expert testimony where no ambiguity exists or where such intrinsic evidence resolves any disputed ambiguity (Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996)), a judge "may also rely on dictionary definitions when construing claim terms, so long as the dictionary definition does not contradict any definition found in or ascertained by a reading of the patent documents" (id. at 1584 n. 6). Vitronics, id. at 1582 also teaches that courts should construe claim language from the point of view of a person of ordinary skill in the field at the time of the invention.

Moreover, as Vitronics, id. explains, the words of a claim should first be considered to assess the text's "ordinary and customary meaning." But a "patentee may choose to be his own lexicographer and use terms in a manner other than their ordinary meaning, as long as the special definition of the term is clearly stated in the patent specification or file history" (id.) (emphasis added).*fn6 In other words, "[t]he specification acts as a dictionary when it expressly defines terms or when it defines terms by implication" (id.). *fn7 Finally, because "[t]he specification contains a written description of the invention which must be clear and complete enough to enable those of ordinary skill in the art to make and use it, . . . the specification is highly relevant to the claim construction analysis (id.).

Means-Plus-Function Limitations

Another central issue as to a number of the claims is the extent to which they are governed by Section 112 § 6:

An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

"Means-plus-function" claims thus define an invention's scope by function rather than by structure.

Al-Site Corp. v. VSI Int'l, Inc., 174 F.3d 1308, 1318 (Fed. Cir. 1999) prescribes, for purposes of Section 112 § 6 coverage or noncoverage, that "if the word "means' appears in a claim element in combination with a function, it is presumed to be a means-plus-function element. . . ." That presumption is overcome (1) if "a claim element that uses the word "means'. . . recites no function corresponding to the means" or (2) "if the claim element . . . recites sufficient structure or material for performing [the claimed] function" (Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1302 (Fed. Cir. 1999)). As the final variant, Micro Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1257 (Fed. Cir. 1999) (citations omitted) teaches that the presumption that a claim element without the word "means" falls outside of Section 112 § 6 "can collapse" if the element "nonetheless relies on functional terms rather than structure or material to describe performance of the claimed function."

As those formulations suggest, a key factor in the analysis is the ascertainment of what structure is necessary to perform the function specified in the claim element under consideration. Personalized Media Communications, LLC v. International Trade Comm'n, 161 F.3d 696, 704 (Fed. Cir. 1998) dictates that "run deciding whether either presumption has been rebutted, the focus remains on whether the claim as properly construed recites sufficient definite structure to avoid the ambit of § 112, § 6."

For example, in dealing with a claim without the word "means," Greenberg v. Ethicon Endo-Surgery. Inc., 91 F.3d 1580, 1583 (Fed. Cir. 1996) determined that the claim language "detent mechanism defining the conjoint rotation of said shafts" did not trigger Section 112 § 6. Though "detent" was functionally derived, Greenberg, 91 F.3d at 1583 (citations omitted) observed that the term:

denotes a type of device with a generally understood meaning in the mechanical arts, even though the definitions are expressed in functional terms. It is true that the term "detent" does not call to mind a single well-defined structure, but the same could be said of other commonplace structural terms such as "clamp" or "container."

When a claim element does use the term "means," the Section 112 § 6's reference to whether it does so "without the recital of structure . . . in support thereof" still calls for focusing on what structure is recited in the claim element. Thus Sage Prods., Inc. v. Devon Indus., Inc., 126 F.2d 1420, 1427-28 (Fed. Cir. 1997) says that to rebut the presumption that Section 112 § 6 applies, the claim must "go [] on to elaborate sufficient structure, material, or acts within the claim itself to perform entirely the recited function."*fn8 For instance, Cole v. Kimberly-Clark Corp., 102 F.3d 524, 530-32 (Fed. Cir. 1996) held that a claim element that began with "perforation means"*fn9 fell outside of the coverage of Section 112 § 6, in part because the element had "such a detailed recitation of its structure" (id. at 531).*fn10

Before this opinion turns from this statement of operative principles to their application, it should be emphasized that any disclaimers by this Court of the use of the specification to narrow a claim because that claim does not fit Section 112 § 6 do not at all reflect a failure to construe the claim in light of the specification. This Court is well aware of the teaching of the Federal Circuit in that respect, as most recently exemplified in Toro Corp. v. White Consol. Indus., Inc., 199 F.3d 1295, 1299, 1301-02 (Fed. Cir. 1999) and Wang Labs., Inc. v. America Online, Inc., 197 F.3d 1377, 1383 (Fed. Cir. 1999)*fn11 — and it has been faithful to that teaching in addressing the patent claims in the context of the patent documents as a whole.

Enough, then, for the short course in basic principles. It is time to turn to the various patents and claim elements at issue, beginning with `419 Patent claim 1.

Claim 1 of the `419 Patent

At the outset, the litigants dispute the logical way to divide claim 1 for analytical purposes. Though the precise manner of division is not necessarily essential to effective claim construction as such, convenience of organization and discussion is well served by looking at the issues in terms of these five numbered elements:

A dishwasher having an enclosure defining a washing chamber and a dish racking system mounted therein, the combination comprising:

1. a lower rack having a bottom support means including a plurality of spaced-apart generally longitudinal and lateral wire members and
2. means extending generally perpendicular to said bottom support means for defining front, rear and a first and a second side wall, said first side wall extending substantially higher than said front, rear and second side walls to define a protective barrier between a side panel of said washing chamber and various oversize articles placed adjacent said first side wall for washing;
3. rack mounting means associated with opposed side panels of said washing chamber; and an upper rack supported above said lower rack by said rack mounting means,
4. said upper rack having bottom support means including a plurality of spaced-apart generally longitudinal and lateral wire members formed to provide at least one upwardly stepped portion adjacent said first side wall of said lower rack,
5. said upper rack wire members projecting upwardly and generally perpendicular to said bottom support means f or at least partially defining front, rear and side walls.

Of these, elements 2, 3 and 4 are in dispute.*fn12

Element 2 Is Not Governed by Section 112 § 6

Element 2 is presumptively in means-plus-function form because it employs the word "means." But because lots of structure and little or no function is recited, the element does not come within the scope of Section 112 § 6. While the first side wall (a structure) is said to act as a "protective barrier" for oversized articles (its stated function), *fn13 the other walls are expressed in purely structural terms. Specifically, the "front, rear and a first and a second side wall" are perpendicular to the bottom support, with the "first side wall extending substantially higher" than the other walls.*fn14

W. Mem.3 attempts to transform the structure into function by stating that "the claimed function is "defining front, rear and a first and a second side wall"' and that "defining something is not structure—it is a function." That odd notion is not only unsupported by any authority but also runs contrary to common sense, for "definition" and "structure" are practically synonyms. Regardless, complex language involving complex technology is not at issue. Claim 1 talks about four walls, one higher than the others, *fn15 and the ...

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