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April 27, 2000


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


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.

Claim Construction

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. 1999), 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 guide chamber.

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 annular wall.

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 positioned 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 360° ring.*fn17

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 chamber.

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 ...

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