United States District Court, Northern District of Illinois, Eastern Division
April 27, 2000
MAYTAG CORPORATION, PLAINTIFF,
WHIRLPOOL CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Milton Shadur, Senior District Judge.
MEMORANDUM OPINION AND ORDER
This Markman ruling*fn1 addresses the Counterclaim by Whirlpool
Corporation ("Whirlpool") charging patent infringement by Maytag
Corporation ("Maytag").*fn2 That Counterclaim involves a variety of
claim elements in United States Patents Nos. 5,165,433 and 5,803,100*fn3
relating to dishwasher pump and soil separator systems.*fn4 Before the
claims can be construed, it is necessary (1) to review the relevant
technology briefly, (2) to discuss one key principle of claim
construction and (3) to dispose of a minor dispute between the parties.
Dishwasher Pump Technology
On March 3, 2000 Whirlpool and Maytag put on highly informative graphic
presentations for this Court's benefit on the technology involved in the
`433 Patent and the `100 Patent. What follows is a somewhat simplified
summary of what those presentations revealed. And of course no references
here to what the successive patents have disclosed should be
misinterpreted as expressing this Court's views as to whether those
disclosures constituted patentable advances or as to whether, if so,
Maytag has infringed them.
Dishwasher pump and soil separator systems dispense and recirculate hot
and soapy water throughout the washing chamber while extracting soil that
has been removed from the dirty dishware. Various methods have developed
in the art for removing soil particles from the water.
One earlier Whirlpool patent (United States Patent No. 3,335,867)
placed a "full flow filter" in the sump at the bottom of the wash chamber
to prevent large soil particles from being recirculated in the wash. But
that system was not effective for filtering out smaller particles. Then
an improvement, as shown in the `599 Patent, attached a soil collector to
the pump. That system moved water from the sump up into the pump and then
used centrifugal force so that "soil particles are forced to the outer
periphery of the pump chamber," where it was directed into the soil
container by a guide chamber (W.Mem.5). Because the flow of water and
soil into the soil container was relatively slow, particles were filtered
by allowing them to settle on the bottom of the container. That system,
however, still did not remove smaller particles that did not settle, and
the slow rate of water limited the amount of water that was filtered.
Next a more effective means of soil collection was introduced by the
`433 Patent: It, while similar to the `599 Patent, added a fine mesh
filter to the top of the soil container to capture smaller particles.
Water and soil thus flowed from the sump into the centrifugal pump
chamber and into the soil container via the guide chamber. In the soil
container, particles heavier than water settled on the bottom and lighter
particles were captured by the filter at the top, leaving filtered water
to flow back down into the sump. That design also allowed for eight times
the water flow into the soil container than was allowed by the design
disclosed by the `599 Patent.
Finally for present purposes, the `100 Patent disclosed a further
modification that altered the shape of the soil container. To reduce the
volume of water that the soil container held during the wash period, the
soil container was made more shallow except for a "sump area" to collect
the heavier particles.
While this opinion will avoid useless repetition on the law as
discussed in the Opinion, a brief discussion of one key topic is needed.
Citing Toro Co. v. White Consol. Indus., 199 F.3d 1295 (Fed.Cir. 1999)
and Wang Labs., Inc. v. America Online, Inc., 197 F.3d 1377 (Fed.Cir.
M. Mem. 1 incorrectly urges that "as a matter of law, claims
cannot be construed to be broader than what is contained in the
specification." Though to be sure those cases are important recent
developments in the Markman analysis, they do not paint with as broad a
brush as Maytag would have this Court believe.*fn5 Instead they stand
for the quite different proposition that claim elements should not be
broadened "beyond their meaning in light of the specification" (Toro, 199
F.3d at 1302, emphasis added).*fn6
It remains axiomatic that claim language can be broader in scope than
any limitations set forth in the specification. Even more recently Kemco
Sales, Inc. v. Control Papers Co., 208 F.3d at 1362 (Fed.Cir. 2000),
quoting Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc.,
34 F.3d 1048, 1054 (Fed.Cir. 1994), noted "the danger of reading
limitations into the claims from the preferred embodiments":
[A]lthough the specifications [sic] may well indicate
that certain embodiments are preferred, particular
embodiments appearing in a specification will not be
read into the claims when the claim language is
broader than such embodiments.
One key factor in the overall analysis is whether the dictionary
definition of the claim language is "in sufficient detail to resolve
close questions in particular contexts" (Toro, 199 F.3d at 1300)*fn7
Another highly relevant factor may be whether the specification offers
only a single embodiment of the invention (id. at 1301; Wang, 197 F.3d at
1383). But Wang, id. relatedly observes:
Whether an invention is fairly claimed more broadly
than the "preferred embodiment" in the specification
is a question specific to the content of the
specification, the context in which the embodiment is
described, the prosecution history, and if appropriate
the prior art, for claims should be construed, when
feasible, to sustain their validity.
Motion To Strike Expert Testimony
Whirlpool cries "foul" at Maytag's inclusion in its briefing materials
of an "Expert Report of Henry Stoll" (the "Stoll Report"). That report
expresses Stoll's "opinions as to the teachings and claims of" the
patents in suit (Stoll Report at 1). But while Maytag's brief is replete
with references to the Stoll Report, this opinion has ignored those
references as unnecessary to the construction of the relevant claims.
Hence there is no need for any substantive discussion on the propriety of
submitting the Stoll Report.
Disputed Claim Elements in the `433 Patent
"Second Wall" in Claim 1
Claim 1 includes this element (emphasis added to identify the terms
disputed by the parties):
a second wall disposed outwardly of said first
upstanding annular wall and defining there between a
That language must be read in light of the specification's representation
(1) of the first wall as serving as both the outer wall of the pump
chamber and the inner wall of the guide chamber and (2) of the second
wall as the outer wall of the guide chamber and inner wall of the soil
container. W. Mem. 13-14 asserts that because the specification uses the
term "wall" in an array of ways, this Court should construe "second wall"
broadly as "a structure for holding back pressure that may be of any
shape, size, orientation or formed of any number of individual parts"
(id. at 14).*fn8
But such wishful thinking runs contrary to the words of
the claim because to form a guide chamber "therebetween," the outwardly
disposed second wall must be "upstanding"*fn9
and must surround the
annular first wall.
W.R. Mem. 11 (footnotes omitted) attempts to avoid such a construction:
[T]he inventor has testified that the `433 invention
could readily be implemented using a non-annular guide
chamber. One of the inventor's first prototypes . . .
[used] a "hole" directly from the pump chamber to the
soil container chamber. In the inventor's mind, the
guide chamber of the `433 invention is merely a
"conduit", "pipe" or "path."
Not only is that testimony unacceptable as extrinsic evidence, but it is
also impermissible revisionist history that directly contravenes the
words of the claim. Whirlpool drafted that claim language, and it is
Whirlpool's fault if it did not properly reflect what was supposedly in
the "inventor's mind."
As for the shape of that second wall,*fn10 the specification embodies
only an annular wall that encircles the first concededly annular wall.
W. Mem. 15 nonetheless argues that the omission of the term "annular" in
the claim language as to the second wall, while that term is expressly
used as to the first wall, marks "a clear intent" to avoid that
limitation. It is also true that construing the second wall in claim 1 as
necessarily annular makes that claim nearly identical to claim 2
(W.Mem.15).*fn11 Because that argument has some logical force (though
any nonannular alternative would surely seem to be a less likely
candidate),*fn12 this Court holds that the second wall does not have to
be "annular." Instead it may be square, or in the shape of a pentagon, or
in any other shape that fulfills the in-all-events requirements that it
must be upstanding and must completely surround the first upstanding
In still another effort to reshape the English language, W. Mem. 14
would like to define "outwardly" as "away from a center point in any
direction." To the contrary, M. Mem. 15 is right in saying that the term
"`outwardly' must mean, by definition, radially outward and sharing at
least some position along a vertical axis." Hence the second wall is
circumjacently to the first annular wall. Buttressing that
normal meaning of the claim language, the specification describes how
centrifugal force is central to the design by forcing water over the
first wall and into the guide chamber*fn13 — and to position the
second wall in any direction other than radially outward would negate
that effect. Moreover, the specification says "outwardly and upwardly" to
describe the flow of wash liquid in the soil collection chamber (col. 2,
1.38) — a usage that torpedoes Whirlpool's current suggestion that
"up" is the same as "out."
It is useful to sum up the end result of the analysis of ordinary
English language usage — and not of Whirlpool's attempted
convolutions — to this point. As used in claim 1, a "guide chamber"
is a space formed between the second upstanding wall and the first
annular upstanding wall that it surrounds, with that second wall being
located radially outward from that first wall.*fn14
To round out the analysis (perhaps a bad pun), this opinion should
eliminate any potential misunderstanding of two other terms —
"annular" and "subjacent"*fn15 — that are relevant to the claim
element under consideration and that this opinion has already used, but
without formal definition. W. Mem. 19-20 suggests that "annular" means
"at least part of a circle, but not necessarily a full circle," and that
"circumjacent" means "lying adjacent to at least a portion of an object,
generally in a curved manner, but again, not restricted to a full
360° surrounding." Again those purported definitions are seriously
warped — not only are they contrary to the terms' dictionary
meanings, but nothing in the `433 Patent suggests any usage different
from those dictionary meanings.
"Annular" means, in the words of the first listed definition in
Webster's Third New International Dictionary (unabridged 1986)
("Webster's") "of or relating to a ring: forming a ring: shaped like a
ring."*fn16 To escape that really tautological usage, W. Mem. 19 points
to a reference in the `599 Patent to the "annular flow" of water and to
soil "flow that follows an approximately 270° path within the soil
container." But an "annular flow" merely describes the circular
(ringlike) orientation of the liquid's flow. Although a patentee may
choose to use the same word in different ways in different patents (part
of the conventional wisdom that a patentee may be his or her own
lexicographer), it is worth noting that the `100 Patent used the term
"substantially annular" to describe a structure that was greater than
270° in circumference but was not completely enclosed (`100 Patent,
col. 6, 1. 25) — something that surely renders it more likely that
the closely related `433 Patent employs "annular" to mean a full
As for "circumjacent," Whirlpool offers nothing persuasive to
suggest that the term is understood in the art as indicating a
location in relation to only "at least a portion" of another object
(W.R. Mem.17).*fn18 Hence the term is given its
ordinary Webster's listed meaning of "lying adjacent on all sides:
surrounding" (emphasis added).*fn19
"Second Wall . . . Including an Aperture" in Claim 1
Claim 1 also states that the second wall:
includ[es] an aperture permitting said soil-laden
portion of the wash liquid to flow from said guide
M. Mem. 18 (emphasis in original) seeks a ruling that the quoted language
"requires an aperture, or opening, in the second wall." Whirlpool does
not debate that construction, which comports with the plain meaning of
the claim language.
"A Third Wall Defining" in Claim 1
Another element included in claim 1 is:
a third wall defining a soil container, said soil
container being fluidly connected to said guide
chamber by said aperture in said second wall.
Here M. Mem. 18 asks only that the "third wall" be construed as "a wall"
and not as the "`cover' or top of the soil container." Because "wall" in
the quoted context is not dispositively self-defining, it becomes
appropriate to refer to the specification.
On that score Whirlpool says (W.Mem.16):
The specification identifies the soil container
chamber 54 as being defined by the lower housing wall
49 (the bottom), the soil container wall 56 (one
side), the second upstanding annular wall 50 (the
opposite side) and the cover 30 (top). All of these
"walls" are joined together to receive and hold soil
laden liquid from the pump chamber. . . .
But that last use of "walls" to convert "the cover 30 (top)" into the
"third wall" is no better than a linguistic sleight of hand. It flies
directly in the face of Whirlpool's own specification (col. 4, 11.4-9)
As shown in FIG. 2, the soil separator 20 further
includes an annular cover 30 which is disposed over and
secured to soil container wall 56 by screws 31. When in
place, cover 30 and soil container wall 56 combine to
form a low-pressure water seal, preventing leakage of
And as will next be shown, it is likewise at war with the portion of
Whirlpool's specification (col. 5, 11.47-49) that the first sentence in
its above-quoted Mem. 16 paraphrases:
Soil container chamber 54 is generally defined by
lower housing wall 49, soil container wall 56, second
upstanding annular wall 50 and cover 30.
To begin with a nonissue, the "first wall" referred to in claim 1 is
indisputably separate from the "soil container chamber." Next, the
claim, the specification language and the drawings all confirm that the
"second wall" is what is uniformly identified by the number 50 (described
at col. 4, 1. 20 as "upstanding wall 50," and at col. 5, 11.29-30 and
1. 33 and 11.48-49, and col. 6, 11.50-51 as "second upstanding annular
wall 50"). Only one other "wall" — necessarily the "third wall"
— is referred to, and that is "soil container wall 56."
All that being true, there is no way that Whirlpool can legitimately
characterize "annular cover 30" as a "wall" (either as part of the third
wall or otherwise). That cover is listed separately at col. 5, 1. 49 as
one of the components that "generally define" the soil container
chamber, and col.
4, 11.5-6 describe that cover as "disposed over and secured to"
the third wall — totally inconsistent with the contention
that the cover can be part of the third wall.
In short, Maytag is right and Whirlpool is wrong. Because the `433
Patent's specification expressly distinguishes between what it labels
"walls" and the "cover" of the soil container, the third wall does not
include the cover. All other terms in the claim element will be given
their plain and ordinary meaning.
"Filter Means" in Claim 1*fn20
Next the parties dispute the meaning of this highlighted phrase in
filter means disposed in said third wall for filtering
soil particles from said soil-laden portion of said
That language is in means-plus-function form*fn22 and relates to this
language in the specification (col. 5, 11.58-60):
Fine mesh filter segments 32 in cover 30 permit flow
of cleansed wash liquid to return to dishwasher space
14 for recirculation.
That last-quoted sentence identifies the "filter means" as the
combination of the filter segments and the cover. Hence the "filter
means" is "disposed in said third wall" by way of the
filter-segments-plus-cover combination. Though it must be said that this
reading involves an awkward and unusual use of the phraseology "disposed
in" (something that would ordinarily be expected to refer to physical
placement "in" or "within" the third wall), this Court cannot punish
Whirlpool's patent writer for poor drafting by disregarding what is
Instead it reads the language (strained though
this may seem) as calling for the filter means "disposed" (that is,
positioned) in the third wall only in the sense that the cover is
"disposed over and secured to" the third wall (col. 4, 11.5-6) as
discussed in the preceding section. Maytag loses this argument.
"Means for Returning" in Claim 1*fn24
It is also agreed by the parties that Paragraph 6 controls this
means for returning cleansed liquid to said pump
chamber to be circulated with additional wash liquid
delivered thereto when said circulation pump is
operated in a wash mode.
But by its very terms the "means" referred to in this element pertains
the function of "returning cleansed liquid to said pump chamber."
M. Mem. 19 seeks to limit all of the language in that claim element to
what Maytag characterizes as its corresponding structure. But the
authority cited by Maytag to support that notion, Micro Chem., Inc. v.
Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed.Cir. 1999), actually
cuts the other way by earlier reconfirming that Paragraph 6 is invoked
when "[t]he term `means' appears in a claim element in association with a
function. . . ." (id. at 1257, emphasis added). In this case the stated
means and its related function are "means for returning cleansed liquid
to said pump chamber." Though the words in the claim element do not stop
there, the additional language is merely descriptive of what takes place
after the cleansed liquid has left the "means" referred to in this claim
In that respect it is important to recognize the distinction between
two types of liquid described in the specification: "cleansed" (that is,
filtered) wash liquid and the generic term "wash liquid" that describes
all liquid in the washer (contrast, e.g., col. 6, 1. 31 with col. 6, 1.
8). When the "cleansed liquid" later mixes with liquid that has fallen
into the basin from the spraying of dishware ("additional wash liquid"),
the claim language is careful to distinguish between the two.*fn25
That distinction exposes the basic flaw in the M. Mem. 19 argument that
coarse particle grate 21, soft soil chopper 70 and grate 83 are all
corresponding structure. Those elements relate to straining, chopping and
sizing particles from the uncleansed liquid. As W. Mem. 18 accurately
[S]ince the cleansed liquid has just passed through a
fine mesh filter, there are no large particles in the
cleansed liquid which would require the additional
function provided by the coarse particle grate, and
hence the coarse particle grate is not necessary for
the function of "returning cleansed liquid to the pump
chamber." Also, . . . soft soil chopper 70 and grate
83 in the flow path of the returning cleansed liquid
and recirculating wash liquid [are] associated with
the function of chopping and sizing of partides to
reduce the size of particles being admitted to the
circulation pump, . . . a function separate and
additional to the claimed function of "returning
cleansed liquid to the pump chamber."
Significantly, no "means" is then referred to in any other element of
claim 1 that carries out that "separate and additional" function.*fn26
In short, that other function is simply not part of Whirlpool's claimed
advance in the art. This Court therefore determines that the structure
corresponding to the claim element now at issue comprises only floor 11,
sealing ring 86, retainer ring 88, base plate 65 and lower housing wall
"Means For Draining" in Claim 1
Claim 1 also includes this element:
means for draining accumulated soil from said soil
container means when said circulation pump is operated
in a drain mode.
This element too is governed by Paragraph 6. As such, its corresponding
structure described in the specification comprises drain port 58, ball
check valve 60, drain impeller 76 and drain port 78.*fn27
"Means . . . for Collecting" in Claim 10
One other element in claim 10 is:
means in said soil container for collecting
non-floating soil material from said soil-laden
portion of the wash liquid.
It is agreed that this is a means-plus-function element and that lower
housing wall 49, soil container wall 56 and second upstanding annular
wall 50 provide the structure corresponding to the stated function.
Where the parties part company is that W. Mem. 20 suggests that the
"claim element should be interpreted as a lower wall portion of a soil
container which will collect the soils, whether that wall portion is
horizontal, vertical or angled therebetween." But that amounts to an
inappropriate shift into the future inquiry whether a soil container wall
not depicted in the specification (a non-angled wall) may be an
"equivalent" structure. For now the specification, which shows soil
container wall 56 as being angled, controls this claim construction
"Means Defining a Soil Container" in Claim 16
Despite its similarity to the justdiscussed claim 10 element, the
parties dispute whether Paragraph 6 applies to this claim 16 language:
means defining a soil container for collecting
non-floating particles from the wash liquid to provide
a cleansed liquid.
In an effort to overcome the presumption that the element is in
means-plus-function form, W. Mem. 21 says:
The claimed function of . . . "collecting non-floating
particles. . . ." is performed entirely by the recited
structure "soil container" since there is no aspect of
the claimed function which is not accomplished by
But while it is surely true that something like a "container" must
collect those soil particles, that extraordinarily amorphous generic term
scarcely defines a structure in the sense required to avoid the
application of Paragraph 6. There is an almost infinite variety of types
of containers, some obviously better than others at performing the
claimed function. In fact, Whirlpool's own admission in connection with
the just-discussed claim 10 element that "means in said soil container"
(W. Mem. 20, emphasis added) "is properly interpreted under § 112,
¶ 6" (id.) strongly implies that "soil container" in the present claim
calls for like treatment. So because the term "container" is too generic
to escape the reach of Paragraph 6, the quoted element corresponds to the
structure recited in the specification and its equivalents.*fn28
"Guide Means for Conducting . . . Wash Liquid" in Claim 16
One of claim 16's many elements is this:
guide means for conducting a portion of wash liquid
containing said concentrated soil particles from said
pump chamber to said soil container.
Despite Whirlpool's protestations at W. Mem. 22, the term "guide" cannot
be viewed as sufficient structure (if it is indeed structure at all) to
remove that language from the ambit of Paragraph 6.*fn29
Corp. v. Rexnord, Inc., 939 F.2d 1533
, 1536 (Fed.Cir. 1991) (emphasis in
original) said of a similarly deficient description, "[t]he recited
alleged structure tells only what the [claim element] does, not what it
When the claim is read in terms of the specification as Paragraph 6
directs, it is clear that the corresponding structure comprises annular
guide chamber 52, first and second upstanding annular walls 46
and 50, upper edge 47 of first wall 46 and aperture 51 (col. 6,
11.45-51).*fn30 That being so, only one other refinement
needs to be looked at next: W. Mem. 23 (emphasis in original)
asks that this Court "expressly find that the claimed functions
does not require `conducting a portion of wash liquid . . . from the
entire perimeter of the pump chamber.'"
On that score the specification says (col. 6, 11.45-50):
As the wash liquid swirls upwardly in a clockwise
direction, the concentrated soil particles accumulated
on the interior of first upstanding annular wall 46
flow over the upper edge 47 with a portion of the wash
liquid. Wash liquid accumulates in annular guide
chamber 52. . . .
In light of that language and the depictions of the structure in the
patent's Exhibits, Whirlpool has essentially invited this Court to repeal
the laws of physics — principally but not solely the principle that
water seeks its own level. Because upper edge 47 (like the first wall) is
both annular by definition and in the same horizontal plane throughout,
the flow over that edge is also 360 in scope.
"Means For Backflushing" in Claim 17
Here the parties agree that "means for backflushing said filter means"
in claim 17 is governed by Paragraph 6. And this is the specification's
description of the function and relevant structure (col. 3, 11.61-68 and
col. 4, 11.1-3):
Each wash arm 25 includes . . . one downwardly
directed spray nozzle 26 for providing a back-washing
action, as will become apparent. Each downwardly
directed spray nozzle 26 has a deflector tab 28
disposed immediately adjacent thereto, for providing a
dispersed fanshaped spray, as will be fully discussed
hereafter. Liquid passageway 27 in central hub 23
permits pressurized wash liquid to flow to the lower
wash arm assembly 22.
W. Mem. 23 argues that the described function relates solely to
"downwardly directed spray nozzle 26," while M. Mem. 24 contends that it
also includes "deflector tab 28, liquid passageway 27 and lower wash arm
Claim 17 stops short of any reference to those last three components
(which are instead picked up in claim 18, where the resulting fan-shaped
spray is described as providing "improved backflushing of said filter
means"). But the only way in which the specification describes the
backflushing action as being provided at all is at col. 4, 11.61-65,
which (cross-referencing Figs. 6 and 7) treats deflector tab 28 and lower
wash arm 22 as playing integral roles in that action. Hence this Court
concurs in Maytag's reading of claim 17 to embrace those components.
That cannot be said of liquid passage-way 27, which is simply one means
of supplying water to the lower wash arm assembly. After all, the entire
dishwasher functions as "a continuous fluid circuit," and the structure
corresponding to the claim at issue certainly does not include all
components that serve to circulate water to the lower wash arm.
To return to the deflector tab issue, this Court is unpersuaded by the
W. Mem. 24 contention that "because of claim differentiation, the
deflector tabs limitation of claim 19 cannot be read into . . . claim
17." As IMS Tech., Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1431
(2000) teaches, citing Laitram, 939 F.2d at 1538:
In any event, it is permissible for [two claims] to
have similar scope after each
is correctly construed in light of the structures
disclosed in the written description, because
the judicially-created doctrine of claim
differentiation cannot override the statutory
mandate of § 112, ¶ 6.*fn31
If claims 17 and 19 do effectively merge, it is because of the way in
which Whirlpool itself has limited claim 17 in light of the
"Spray Nozzle for Directing" in Claim. 18
Claim 18 includes, as part of the "backflushing means" that is
"described in claim 17":
a wash arm device having a spray nozzle for directing
a portion of said wash liquid to said filter means for
clearing said filter means. . . .
Both parties say that claim element 18 should be read in the same way
that this Court has construed the similar language in claim 17
(W.Mem.23, M.Mem.24). Although to be sure the quoted language expressly
refers to the spray nozzle and not to the adjacent deflector tabs, claim
18's back reference to the claim 17 "back-flushing means" encompasses
those tabs too. So the parties are taken at their word: Claim 18 adds
nothing to (and subtracts nothing from) claim 17.
Disputed Claim Elements in the `100 Patent
As indicated at the outset, the `100 Patent assertedly represents an
advancement over the `433 Patent: It lessens the volume of water held by
the soil container by making it more shallow except for an "accumulator
sump" at one end to collect the heavy soil particles. That aside, the
`100 Patent at col. 3, 11.1-3 states that "basic constructional features
of the soil separator [from the `433 Patent are] incorporated by
reference" into the later patent.
"A Soil/Water Flow Channel" in Claim 4*fn32
W. Mem. 24 says that the following claim element "is understood from
the plain meaning" of its words, while M. Mem. 25 asserts that the flow
channel must be "annular":
a soil/water flow channel*fn33 receiving water with
entrained soil from adjacent said surrounding wall.
If Whirlpool is right — if the claim language truly conveys a
"plain meaning" — then the specification, which refers to "annular
guide chamber 100," is not needed for guidance.*fn34
"Soil/water flow channel" is not defined or even used in the
specification. In an effort to support Whirlpool's contention that the
phrase has a plain and ordinary meaning, W. Mem. 24 quotes a dictionary
definition of "channel" as "a conduit, pipe, duct, gutter, groove or
furrow." But that broad set of alternatives would not enlighten a person
skilled in the relevant art. Rather such amorphous terms are not "plain"
because they can mean whatever a patentee wants them to mean.
Because the claim language itself thus fails to give notice as to just
what is claimed, the specification becomes relevant in the construction
process. In that respect the primary referent for the term "soil/water
flow channel" is "annular guide chamber 100" (col. 4, 1.42). And even
though the word "means" is absent from this claim element, it is
nonetheless in means-plus-function form (see discussion in Micro Chem.,
194 F.3d at 1257): In this instance "soil/water flow channel" is
obviously the means, and its stated function is just as obviously framed
as "receiving water with entrained soil from adjacent said surrounding
wall." That being so, the exact (and only) structure adverted to in the
specification limits the claim. In short, the "channel" in the `100
Patent, like the "guide chamber" in the `433 Patent, is annular.*fn35
"A Soil Accumulator Sump Flow" in Claim 4*fn36
Next in dispute is the meaning of the term "sump" in this claim 4
a soil accumulator sump flow connected to a second end
of said screening channel.
Webster's third-listed definition of "sump" is "a pit, depression,
reservoir or tank serving as a drain or receptacle for liquids to be
salvaged or further disposed of." Inserting that definition into the
claim language results in "a pit, depression, reservoir or tank" to
accumulate soil "connected to a second end of said screening channel."
While that basic construction is generally uncontroverted,*fn37 M.
Mem. 28 oddly suggests that, because Whirlpool's argument to the contrary
"finds no support in the specification," the sump can be so small as to
collect only a de minimis volume of soil-laden water. That suggestion is
rejected, for it really tortures the claim language by effectively
vitiating the sump's ability to accumulate soil.
"Means for Draining Soil" in Claim 4
Claim 4 includes a "means for draining soil from said accumulator
sump." With no structure being recited, that element is governed by
Paragraph 6. From the specification the corresponding structure comprises
pump motor 27, drain impeller 206, drain pump chamber 208, ball check
valve 210, ball check valve support 211, conduit 220, soil container
drain port 128 and drain port 216 (col. 5, 11.66-67, col. 6, 11.1-20).
Claims 8 and 11
Two elements from claim 8 have already been construed in the context of
like language in claim 4 (see nn. 32 and 36). Apart from those elements,
M. Mem. 29 says this in general about claims 8 and 11:
The construction of the limitations of claim 8 is
essentially the same as the construction of similar
limitations in claim 4. . . . Properly construed,
claim 11, which depends from claim 8, is identical in
scope to claim 8, notwithstanding the doctrine of
Whirlpool interposes no quarrel with those statements — its R.
Mem. is totally silent as to both assertions. This Court therefore
accepts Maytag's position.
This completes the construction of the debated claims in Whirlpool's
patents as a matter of law. With this Court's earlier opinion having done
the same as to Maytag's patents in issue, the case is ready for the
second phase of a patent case: a jury determination on the issues of
infringement and invalidity. This action is set for a status hearing at 9
a.m. May 5, 2000 to discuss the necessary procedures and timing to that