United States District Court, N.D. Illinois
April 30, 2004.
SHEN WEI and MEDLINE INDUSTRIES, Plaintiffs,
ANSELL HEALTHCARE PRODUCTS, INC. Defendant
The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge
MEMORANDUM OPINION AND ORDER
Before this court is defendant Ansell Healthcare Products, Inc.'s
("Ansell") motion for summary judgment of noninfringement filed in
response to Shen Wei, Inc. and Medline Industries, Inc.'s ("Shen Wei")
complaint alleging patent infringement. The patent in question is U.S.
Patent No. 6,423,328 B2. ("`328 patent.") Generally, this patent "relates
to applying Aloe Vera on the inner surface of disposable gloves to
protect and soothe the hands during and after application of disposable
gloves." (`328 patent, Col. 1, 14-16.) Ansell presents four terms used in
the claims of the `328 patent for construction: (1) "a coat of Aloe
Vera;" (2) "a quantity of Aloe Vera;" (3) "dehydration/dehydrated;" and
(4) "oil-based substance." Shen Wei alleges that Ansell infringes claims
4, 6, 7, 9, 12, 13, 20, 21, 22, 25, 26, 27, 28, 29, 35 and 38. Of these
claims, 4, 12, 20, 21, 27, and 35 are independent claims. For the
following reasons, this court construes and defines the disputed terms as
explained below. Moreover, Ansell is granted summary judgment on the
issues of whether it infringes claims 4, 6, 7, 9, 20, 27, 28, and 29 and
denied summary judgment as to claims 12, 13, 21, 22, 25, 26, 35 and 38 of
the `328 patent.
I. Claim Construction
Claim construction is a matter of law for the court to determine. Allen
Eng'g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1344 (Fed. Cir. 2002)
(citing Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.
Cir. 1995) (en banc), aff'd 517 U.S. 370 (1996)). The first step in
construing a claim is to look to the intrinsic evidence concerning the
patent, which includes the patent specification and prosecution history,
if in evidence.*fn1 Id. It is improper to rely on extrinsic evidence
when evaluation of the intrinsic evidence resolves the dispute regarding
the construction of a claim. Vitronics Corp. v. Conceptronic, Inc.,
90 F.3d 1576, 1583 (Fed. Cir. 1996). "The words of the claims themselves
define the scope of the invention, and are given their ordinary and
customary meaning." Id. (citations omitted). Generally speaking, there is
a heavy presumption that a claim term carries its ordinary and customary
meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.
The heavy presumption of plain meaning is rebutted, and a court may
limit the ordinary meaning of a claim where: (1) the patentee acting as
his own lexicographer clearly established a definition of the term
different from its customary meaning in either the specification or
prosecution history, Vitronies Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1582 (Fed. Cir. 1996); (2) "the term `chosen by the patentee so
deprive[s] the claim of clarity' as to require resort to other intrinsic
evidence for a definite meaning, CCS Fitness, 288 F.3d at 1366 (citations
omitted); (3) the patentee phrases the claim in means-plus-function format, see 35 U.S.C. § 112 ¶
6; Allen Eng'g, 299 F.3d at 1347-48; and (4) the doctrine of prosecution
"[W]here the patentee has unequivocally disavowed a certain meaning to
obtain his patent, the doctrine of prosecution disclaimer attaches and
narrows the ordinary meaning of the claim congruent with the scope of the
surrender." Omega Eng'g v. Raytek Corp., 334 F.3d 1314, 1323 (7th Cir.
2003). See also Allen Eng'g, 299 F.3d at 1347-48 ("[t]he prosecution
history limits the interpretation of claim terms so as to exclude any
interpretation that was disclaimed during prosecution"); Spectrum Intl,
Inc. v. Sterlite Corp., 164 F.3d 1372, 1378 (Fed. Cir. 1998) ("[E]xplicit
statements made by a patent applicant during prosecution to distinguish a
claimed invention over prior art may serve to narrow the scope of the
claim."); Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed.
Cir. 1985) ("[T]he prosecution history . . . limits the interpretation of
claims so as to exclude any interpretation that may have been disclaimed
or disavowed during prosecution in order to obtain claim allowance.").
The doctrine of prosecution disclaimer is not applied where the "alleged
disavowal of claim scope is ambiguous." Omega Eng'g, 334 F.3d at 1324.
Turning to the claim terms for which definitions are requested:
A. Coat of Aloe Vera
For the reasons set forth below, this court interprets the claim term
"coat of Aloe Vera" in the `328 patent to mean:
a coating that may include ingredients other than
aloe vera but the aloe vera must account for more
than 0.5% of the entire coating.
Ansell's first request regarding construction of
this term is that it be interpreted to mean a coat consisting entirely of aloe vera and no other substance. (Def.'s
S.J. Mem., at 4-6.) In support, Ansell relies heavily on Robie v.
Carlton, 171 F.2d 310 (C.C.P.A. 1948), which carries precedential
weight. BMW Mfg Corp. v. United States, 241 F.3d 1357
, 1362 n.3 (Fed.
Cir. 2001) ("Decisions of the Court of Customs and Patent Appeals are
binding precedent on [the Federal Circuit].) And what Ansell alleges is
Shen-Wei's disclaimer of any ingredients other than aloe vera when
referring to the term "coat of Aloe Vera." This court finds neither of
these contentions availing. The court in Robie explained that when a
"reference is made to a coat of paint, or a coat of varnish, the meaning
ordinarily intended is that the coat consists entirely of the specified
material." Id. at 311. Assuming that Robie creates a presumption that use
of the term "coat" excludes the use of other ingredients, this court
would still find that such a presumption would not apply in this case. To
read claim 4's reference to a "coat of Aloe Vera" as excluding the use of
other ingredients would render claim 1's reference to "a coat of 100%
Aloe Vera" superfluous. The Court of Appeals for the Federal Circuit has
made clear that the use of different terms in claims is presumed to
reflect differing scopes of the claims. Forest Labs., Inc. v. Abbott
Labs., 239 F.3d 1305
, 1310 (Fed. Cir. 2001) (citation omitted). The use
of "a coat of 100% Aloe Vera" in claim 1 indicates that the "coat of Aloe
Vera" in claim 4 may include other ingredients. This court additionally
agrees with Shen Wei that the reference in claim 20 to "a coating
comprising Aloe Vera and no detectable oil-based substance" is not fatal
to the conclusion that claim 4's reference to a "coat" includes
substances other than aloe vera, because the use of the term "comprising"
in claim 4 is used to identify the fact that the exclusion of "oil-based
substance" did not otherwise limit the inclusion of ingredients along
with aloe vera.
Contrary to Ansell's assertions, the prosecution history of the `328
Patent does not clearly indicate that Shen Wei disclaimed the use of ingredients other than
aloe vera. The passage put forth by Ansell in support of disclaimer*fn2
explicitly focuses on claim 1, not claim 4 or any other claim, and the
accompanying passage that Ansell alleges incorporates the alleged
disclaimers of claim 1 into the other claims is at best ambiguous in that
regard. Therefore, it is not clear from the prosecution history whether
Shen Wei during the prosecution of the `328 patent disavowed the use of
ingredients other than aloe vera. Even if the passage Ansell asserts as a
disclaimer can be so interpreted, it is not clear whether that alleged
disavowal applies beyond claim 1.*fn3 After carefully reviewing the prosecution history to which Ansell has referred, this court rules that
Shen Wei has not disclaimed the use of ingredients other than aloe vera.
Omega Eng' g v. Raytek Corp., 334 F.3d 1314, 1323 (7th Cir. 2003)
(explaining that the doctrine of prosecution disclaimer is not applied
where the "alleged disavowal of claim scope is ambiguous.").
Accordingly, this court rejects Ansell's argument that the term "coat
of Aloe Vera" must be construed to exclude the use of ingredients other
than aloe vera.*fn4
However, in support of Ansell's second request that the term
"coat of Aloe Vera" should be limited to a coat where the aloe vera
accounts for more than 0.5% of the coating Ansell does point to
an unambiguous disclaimer by Shen Wei in the prosecution history of the
No person would call the composition of Buchanan a
`coat of Aloe Vera,' as recited by Claim 4, because,
quite simply, Buchanan's composition is a complicated
composition that contains a mere 0.5% of aloe
extract, and is described as if the aloe extract had
no significant contribution to the composition.
(Def.'s S.J. Mem. at 6) (quoting Dkt. #12 at 41), Ansell is correct
to argue that this statement made to the Patent and Trademark Office
("PTO") amounts to a disclaimer as to the scope of the term "coat of Aloe
Vera." Specifically, Shen Wei has disclaimed and excluded from the
meaning of the term "coat of Aloe Vera" in the `328 patent any coat that
contains 0.5% or less of aloe vera. Shen Wei does not address this specific disclaimer quoted above, but
does argue that its disclaimers regarding the Buchanan patent lend
nothing to the construction of "a coat of Aloe Vera" because Buchanan
does not teach applying aloe vera, in any amount, to the inside of
gloves. This court disagrees with Shen Wei's construction of Buchanan on
this point. Buchanan mentions aloe vera in the context of a set of
examples that are "set forth for the purpose of providing a better
understanding of the composition of the . . . invention and the
formulations into which it can be incorporated." (Buchanan at 13.)*fn5
Admittedly, the use of aloe vera appears in the Buchanan patent's example
3, which only specifically discloses that the "resulting formulation can
be used by applying it to the hands prior to donning a protective medical
glove" (Id. at 17.) Nevertheless, Buchanan generally teaches a
"composition" that "can be applied to the hand in powder or lotion form
or [that] can be applied as a coating to the interior surface of a
protective medical glove." (Id. at 5.) Furthermore, the Buchanan
specification explicitly notes that while the examples given "described in
detail [certain] preferred embodiments [of the invention], one of
ordinary skill in the art will appreciate that certain modifications can
be made to the present invention without departing from its true sprit
and scope." (Id. at 21.) One of these "modifications" apparent to "one of
ordinary skill in the art" is the use of the disclosed examples as a
coating applied to the interior of the glove, even if the specific
embodiment disclosed only mentions using the composition on the hands
prior to donning a glove. This conclusion is supported by the fact that
Shen Wei assumed this obvious modification of Buchanan's example 3
because Shen Wei found it necessary to distinguish its invention, which only teaches a coating applied to the glove, from
Buchannan by asserting that a composition containing only 0.5% of aloe
vera could not be considered a "coat of Aloe Vera" as disclosed in claim
4 of the `328 Patent,
This court also disagrees with Shen Wei's apparent assertion that it
only disclaimed the use of 0.5% or less of aloe vera when that use also
has "no significant contribution" to the coating. The excerpt of the `328
patent's prosecution history quoted above (Dkt. #12 at 41) clearly
indicates that Shen Wei did not consider the term "coating of Aloe Vera"
to include coatings where aloe vera made up less than 0.5% of the
composition. The scope of this disclaimer is further clarified by the
fact that Buchanan does not describe the contribution of aloe vera to the
coating. Therefore, Shen Wei has specifically disclaimed any right to a
"coat of Aloe Vera" that includes only 0.5% or less of aloe vera.
B. Quantity of Aloe Vera
For the reasons set forth below, this court interprets the claim term
"quantity of Aloe Vera" in the `328 patent to mean:
an indefinite amount of aloe vera.
Ansell has asked this court to read into this term the same limitations
it requested for "coat of Aloe Vera." As before, Ansell first argues that
"quantity of Aloe Vera" should be interpreted to mean a quantity
consisting entirely of aloe vera and no other substance, and second, that
if substances other than aloe vera are present along with the aloe vera,
then the percentage of aloe vera must be greater than 0.5% of the entire
In support of its first proposed limitation, Ansell relies on the same
arguments it makes regarding the term "coat of Aloe Vera"; that Shen Wei
has disclaimed the use of ingredients other than aloe vera and that Robie requires constructing "quantity" to exclude
the use of other ingredients. As explained, this court finds no
prosecution disclaimer of this scope. Furthermore, Ansell's reliance on
Robie is misplaced. In Robie, the court explained that a "reference . .
. to a coat of paint . . . ordinarily [means] that the coat consists
entirely of the specified material." Robie, 171 F.2d 310, 311 (C.C.P.A.
1948) (emphasis added). This case is inapposite given that the court in
Robie never considered the term "quantity," and the fact that Ansell (in
response to Shen Wei's objection that Ansell was not considering
"quantity" and "coat" as distinct terms) argued to this court that it
"has never suggested that the terms `coat' and `quantity' have the same
meaning." (Def.'s Reply at 3.) Finally, while Ansell asserts that Shen
Wei has not used the terms "comprising" or "including" in conjunction
with the term "quantity," Ansell has pointed to no case law, rule of
construction, or other reason showing that not using these open terms
requires the conclusion that a "quantity of Aloe Vera" cannot be aloe
vera mixed with other ingredients. Therefore, this court refuses to limit
the term "quantity of Aloe Vera" to substances consisting entirely of
Ansell apparently supports its second proposed limitation that
"quantity of Aloe Vera" should not include substances with 0.5% or less
of aloe vera with the same prosecution history citation in which Shen
Wei disclaims a coat of aloe vera containing 0.5% or less of aloe vera.
As with Ansell's attempt to apply Robie to the term "quantity," Ansell's
attempt to apply Shen Wei's disclaimer regarding "coat of Aloe Vera" is
hard to understand in light of Ansell's admission that the terms "coat"
and "quantity" do not share the same meaning. Because the terms are not
the same, Ansell cannot impose a limitation which applies to the term
"coat" to the term "quantity" in the' 328 patent.
Shen Wei argues that this court should construe "quantity" to mean an
"amount." In support it cites to a general dictionary defining "`quantity' as, among other
things, an `indefinite . . . amount.'" (Pl.'s 56.1(a) Stmt., ¶ 24.)
While Ansell has argued in favor of its proposed limitations on the term
"quantity," it has not objected to construing "quantity" according to its
dictionary definition.*fn6 This court concludes that the term "quantity"
should he defined to mean an "indefinite amount."
For the reasons set forth below, this court interprets the claim terms
"dehydration/dehydrated" in the `328 patent to mean:
the removal of water, but not necessarily all water.
Ansell argues that the terms "dehydration/dehydrated" require the
removal of all water. It supports this argument by first referring to
testimony of an Ansell employee who testified that dehydration means the
"removal of water as much as possible." (Def.'s S.J. Mem. at 7.) Ansell
then quotes the `328 specification:
Aloe Vera is attached to the surface of the glove
through a controlled dehydration process. The water in
the Aloe Vera solution is caused to evaporate through
heating. (Def.'s 56.1(a) Stmt. ¶ 17.) By focusing on the phrase "[t]he water . .
. is caused to evaporate" Ansell argues that dehydration, as it is used
in the `328 patent, should be defined as "removal of the water." Ansell
apparently then assumes that the presence of "the" in the phrase, "removal
of the water," requires removal of all water. Shen Wei, for its part,
disputes the proposed limitation requiring the removal of all water.
Thus, it is clear that the parties agree that the terms should be
construed to mean at least the removal of some water, but disagree about
whether removal of all the water is required.*fn7 The claims do not
recite Ansell's proposed limitation that the claim terms
"dehydration/dehydrated" must be construed to require the removal of all
water. The portion of the specification Ansell references is not an
explicit or implicit definition set forth by the patentee to that
effect.*fn8 This reference cannot be interpreted in a manner that
requires the removal of all water, and even if such a clear limitation
were stated, it would not necessarily act to limit a claim that contains
no such limitation. See Liquid Dynamics Corp. v. Vaughan Co.,
355 F.3d 1361, 1368 (Fed. Cir. 2004) (quoting Tex. Digital Svs. v.
Telegenix, Inc., 308 F.3d 1193, 1204 (Fed. Cir. 2002) ("While . . .
claims are to be interpreted in light of the specification and with a
view to ascertaining the invention, it does not follow that limitations from the specification may be read into the claims.").
None of the intrinsic evidence set forth by Ansell justifies its proposed
limitation on the claim terms "dehydration/dehydrated."
Both parties have provided extrinsic evidence, in the form of expert
testimony, in support of their respective positions. This court does not
believe that this is a "rare circumstance [where] the court is unable to
determine the meaning of the asserted claims [therefore justifying a
resort] to extrinsic evidence to help resolve any lack of clarity." Dow
Chemical Co. v. Sumitomo Chemical Co., 257 F.3d 1364, 1373 (Fed. Cir.
2001). Nevertheless, even if this court felt compelled to rely upon
expert testimony, the testimony does not justify Ansell's proposed
limitation. Ansell has not provided any testimony that directly supports
its limitation. Ansell has also made no attempt to contradict the expert
testimony Shen Wei advances contradicting Ansell's proposed limitation.
(Pl.'s Resp., at 11-12.) Instead Ansell relies upon what it considers to
be the clear import of the claims. (Def.'s S.J. Mem. at 7.) This reliance
is misplaced though, because the language of the claims provides no
justification for limiting the terms "dehydration/dehydrated" to
instances where all water is removed. Therefore, this court refuses to
adopt Ansell's limitation of dehydration.
D. Oil-Based Substance
For the reasons set forth below, this court interprets the term
"oil-based substance" in the `328 patent to mean:
a lotion or a greasy or oily substance.
Shen Wei argues that this term should be construed as a "lotion or a
greasy or oily substance that has an adverse affect on natural rubber
latex." (Pl's Resp. at 12.) This court adopts the first part of Shen
Wei's proposed construction because Ansell agrees that this first part is
the generally understood meaning of "oil-based substance." (Def.'s Reply
at 7.) This court rejects the second part of Shen Wei's definition "that has an adverse affect on natural rubber
latex" as being an impermissible limitation on the claim language. Shen
Wei supports its argument that "oil based substance" should be further
limited to substances having an adverse affect on natural rubber or latex
with excerpts from the specification allegedly defining "oil-based
substance," and expert testimony. This court will address each in turn.
It is well understood that a patentee may act as his or her own
lexicographer by establishing definitions of a term different than that
term's customary meaning. Vitronics Corp. v. Conceptronic, Inc.,
90 F.3d 1576, 1582 (Fed, Cir. 1996). Despite Shen Wei's arguments to the
contrary, the patentee in this case has not defined oil-based substance
as a substance that has an adverse affect on natural rubber latex. See
Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed.
Cir. 1998) (explaining that a special definition provided by the patentee
"must be sufficiently clear in the specification that any departure from
common usage would be understood by a person of experience in the field
of the invention."). In a number of places, the specification explains
that a major advantage of using non-oil-based substances is an increased
shelf life of a natural rubber glove. But explaining an advantage of
using oil-based substance is not the same as signaling to the reader of
the patent that the customary meaning of a term is no longer applicable.
In both cases cited by Shen Wei the patentee clearly limited the meaning
of a claim term by providing a definition in the specification. See
Multiform, 133 F.3d at 1477 (patentee limited to specific description in
the specification of how an envelope is "degradable," and could not
broaden the scope of that term with a general dictionary definition);
Scimed Life Systems v. Advanced Cardiovascular, 242 F.3d 1337, 1343
(Fed. Cir. 2001) (explaining that while it is not necessary to use a
"definitional format" to limit a claim, a claim term is defined and
thereby limited to that definition when the patentee describes a certain structure as that which applies for "all embodiments of
the prevent invention contemplated and disclosed"). The specification in
this case does not state that an oil-based substance is a substance that
is (or is defined to mean) a substance that degrades rubber or latex. And
the fact that the proposed limitation is simply consistent with, and not
contradicted by, the specification is certainly not enough to rebut the
presumption that a term should be given its ordinary meaning. The law
requires a clear departure from common usage. No such definition or
limitation has been provided in this case.
Furthermore, as Ansell points out, the `328 Patent discloses two
advantages of using non-oil-based substances, not just the advantage Shen
Wei claims acts as a definition, but also the advantage that
non-oil-based substances will not make hands look or feel greasy. (`328
Patent, Col. 2, 5-9.) Thus, if it were possible to limit a claim term by
describing its benefits, it seems that a further limitation on the term
oil-based substance would be that the substance does not leave the skin
feeling or looking greasy. This construction however, which Shen Wei
would presumably object to, is improper because no clear definition of
the term "oil-based" substance has been provided by the patentee.
Therefore, the term will be given its ordinary and customary meaning to
those skilled in the art.
Shen Wei has provided extrinsic evidence it believes supports the
argument that those skilled in the glove making industry ordinarily
consider "oil-based substance" to include the limitation of not having an
adverse affect on rubber or latex. Shen Wei has made no showing that
resort to extrinsic evidence is necessary to construe this term, nor does
this court make any such conclusion. Dow Chemical Co. v. Sumitomo
Chemical Co., 257 F.3d 1364, 1373 (Fed. Cir. 2001) ("[I]n the rare
circumstance that the court is unable to determine the meaning of the
asserted claims after assessing the intrinsic evidence, it may look to additional extrinsic evidence to
help resolve any lack of clarity.") (citation omitted). Moreover, none of
the evidence Shen Wei asserts is on point. The extrinsic evidence Shen
Wei posits consists of expert testimony which generally can be described
as supporting one of the following two propositions: first, that the `328
Patent either defines oil-based substance with the limitation that it not
damage rubber or latex, see (Pl.'s 56.1(a) Stmt., ¶¶ 47, 49, 50); or
second, that such a definition would be consistent with the common
knowledge that oil-based substances damage rubber (Id., ¶ 47, 48). This
court, whose function it is to construe the patent, has already rejected
the former, and the latter does not purport to define the claim term.
Therefore, this court finds that the extrinsic evidence provided by Shen
Wei does not support the conclusion that those skilled in the art
consider the ordinary meaning of "oil-based substance" to include the
limitation that the substance adversely affects rubber or latex.
Having resolved the meaning of the disputed claim terms the court now
turns to the issue of infringement. The determination of whether
infringement has occurred is a question of fact for the jury. Int'l
Rectifier Corp. v. IXYS Corp., 361 F.3d 1363, 1369 (Fed. Cir. 2004). "To
prove infringement, the patentee must show that the accused device meets
each claim limitation, "*fn9 Deering Precision Instruments, L.L.C. v.
Vector Distrib, Sys., Inc., 347 F.3d 1314, 1324 (Fed. Cir. 2003). "Where
the parties do not dispute any relevant facts regarding the accused
product . . ., the question of literal infringement collapses into claim
construction and is amenable to summary judgment." General Mills Inc. v.
Hunt-Wesson, Inc., 103 F.3d 978, 983 (Fed. Cir. 1997). Under Federal Rule of Civil Procedure 56(c), summary judgment is proper
"if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." All evidence must be viewed in
the light most favorable to the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A party who bears the burden of
proof on a particular issue, however, may not rest on its pleadings, but
must affirmatively demonstrate, by specific factual allegations, that
there is a genuine issue of material fact that requires trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986).
As stated at the outset of the opinion, Shen Wei alleges that Ansell
infringes claims 4, 6, 7, 9, 12, 13, 20, 21, 22, 25, 26, 27, 28, 29, 35
and 38. (Pl's 56.1(a)(3) Stmt., ¶ 8.) Of these claims, 4, 12, 20, 21,
27, and 35 are independent claims.
Ansell is granted summary judgment on the issue of whether it infringes
claims 4, 6,7 and 9 of the `328 patent, all of which require a "coating
of Aloe Vera." It is an undisputed material fact that if aloe vera is
present on the inner surface of Ansell's gloves the aloe vera would
account for only 0.3% of the entire coating. (Pl's 56.1(a)(3) Stmt.,
¶ 41.) Therefore, because the term "coat of Aloe Vera," as used in
the `328 patent, requires the use of more than 0.5% of aloe vera,
Ansell's product does not infringe those claims requiring a "coat of Aloe
Vera" (claims 4, 6, 7, 9).
Ansell is also granted summary judgment on the issue of whether it
infringes claims 20, 27, 28 and 29 of the `328 patent, all of which
require that "no detectable oil-based substance" be present. It is an
undisputed material fact that after donning Ansell's gloves a "greasy"
residue is left on the wearer's hands. (Pl's 56.1(a)(3) Stmt., ¶
57.). This greasy residue must come from the coating on Ansell's gloves.
Oil-based substance has been construed to mean a "lotion or a greasy or
oily substance." Therefore, Ansell's product does not infringe on claims
20, 27, 28 and 29 because the product contains a "greasy" substance.
There exists an issue of fact as to whether Ansell infringes the
remaining claims. All of the claims Ansell is alleged to infringe require
the presence of aloe vera. After initially arguing that its gloves do not
contain aloe vera, Ansell now "concedes that the question of whether
[its] gloves contain Aloe Vera maybe a disputed issue of fact that is not
ripe for summary judgment," (Def.'s Reply at 2.) This court agrees. Shen
Wei has provided evidence that creates an issue of fact as to whether
Ansell's gloves contain aloe vera. (Pl.'s Resp. at 3-4.) Therefore,
Ansell cannot obtain summary judgment on the basis that its product does
not infringe the claims of the `328 patent that require a "quantity of
Aloe Vera." Finally, Ansell cannot obtain summary judgment on the basis
that any aloe vera present on its gloves is not "dehydrated" as required
by the `328 patent because this court has rejected the claim construction
necessary for such a conclusion.
Accordingly, the claims are construed as explained by this order, and
Ansell is granted summary judgment on the issues of whether it infringes
claims 4, 6, 7, 9, 20, 27, 28, and 29. Counsel and the parties are urged
to discuss settlement. This case is set for a status hearing at 9:00 a.m.
on May 13, 2004.