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WEI v. ANSELL HEALTHCARE PRODUCTS

April 30, 2004.

SHEN WEI and MEDLINE INDUSTRIES, Plaintiffs,
v.
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.

ANALYSIS

  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. Cir. 2002).

  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 disclaimer applies.

  "[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 `328 patent:
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 ...


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