The opinion of the court was delivered by: Milton I. Shadur, Senior District Judge
MEMORANDUM OPINION AND ORDER
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
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
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.).
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
"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
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:
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
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 ...