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November 18, 2004.

SENCO SENSORS, INC., et al., Defendants.

The opinion of the court was delivered by: SUZANNE CONLON, District Judge


Dicon Global, Inc. sues Senco Sensors, Inc. and Kehoe Component Sales, Inc., d/b/a Pace Electronic Products ("defendants") for patent infringement pursuant to 35 U.S.C. ยง 271 et seq. Defendants counterclaim for non-infringement and invalidity. Cross-motions for construction of the disputed claims are before the court.


  Dicon is the exclusive licensee of U.S. Patent No. 5,173,166 ("the '166 patent"). The '166 patent was filed with the United States Patent and Trademark Office on April 16, 1990, and was issued on December 22, 1992. The '166 patent describes an electrochemical gas sensor that can detect a gas contaminant in an atmosphere. Pl. Mot. at 3; Def. Mot. at 1. The sensor of the '166 patent has an electrode that is "exposed to the atmosphere" and a counter electrode that is "isolated from any exposure to the atmosphere." Def. Mot. at 1. A change in the electrical potential between the first electrode and the second counter electrode signals the presence of the gas contaminate. Id. at 2. Dicon alleges defendants infringed claim 1 of the '166 patent by making, selling, and using electrochemical gas sensors. DISCUSSION

  I. Legal Standard

  Claim construction is a question of law. To construe a claim, the court must first look to intrinsic evidence, "i.e., the patent itself, including the claims, the specification, and if in evidence, the prosecution history." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996). The court must begin with the plain language of the claims. York Prods., Inc. v. Central Tractor Farm & Family Ctr., 99 F.3d 1568, 1572 (Fed. Cir. 1996). Claim terms must be given their ordinary and accustomed meaning. Johnson Worldwide Assoc., Inc., v. Zebco Corp., 175 F.3d 985, 989 (Fed. Cir. 1999). Next, the court examines the patent specification. The specification contains a written description of the invention that should be clear and complete to enable a person of ordinary skill in the art to make and use the invention. Vitronics, 90 F.3d at 1582. The specification is "always highly relevant to the claim construction analysis" and "is usually dispositive; it is the single best guide to the meaning of a disputed term." Id. Dictionaries also may be examined to determine the ordinary and accustomed meaning of claim terms. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). Extrinsic evidence is examined only when the patent and the prosecution history do not provide a clear answer. Ekchian v. Home Depot, Inc., 104 F.3d 1299, 1302 (Fed. Cir. 1997). The accused device is not considered when determining the scope of the claims. Young Dental Mfg. Co., Inc. v. Q3 Special Prods., Inc., 112 F.3d 1137, 1141 (Fed. Cir. 1997).

  II. Claim Construction

  Dicon's motion for claim construction generally describes the '166 patent and law pertaining to claim construction. However, Dicon's motion does not actually request that any claims be construed. Instead, Dicon asserts the claim language is that which has ordinary meaning and plain usage to one of ordinary skill in the art of electrochemical sensors. To the extent any claim language needs further definition, Dicon contends the court need not look any further than the '166 patent specification and prosecution history.

  Defendants offer claim constructions for three limitations found in claim 1 of the '166 patent. Moreover, defendants seek to invalidate claim 1 based on indefiniteness. Claim 1 provides:
An electrochemical gas sensor cell for quantitative measurement of gaseous or volatile contaminants in an atmosphere being monitored, said gas sensor cell comprising at least a first gas permeable porous sensor electrode mounted in a first frame member, a second gas permeable porous counter electrode mounted in a second frame member, a third electrically non-conductive frame member, an ion conductive electrolyte contained within an electrolyte chamber formed in said third frame member, said first and second electrodes and said first and second frame members being located at first and second sides, respectively, of said electrolyte such that at least a portion of each of said first electrode and said second counter electrode contact said electrolyte . . .
wherein said electrolyte is retained in said third frame member in such a manner as to substantially accommodate changes in temperature or humidity of said atmosphere . . .
said sensor electrode being mounted and secured with respect to said first frame member so as to be exposed to said atmosphere, and said counter electrode being mounted and secured with respect to said second frame member so as to be isolated from any exposure to said atmosphere . . .
whereby, when said atmosphere contains a gas contaminant for which the catalyst on said sensor electrode is chosen to produce a change in electrical potential with respect to said counter electrode when said sensor electrode is exposed to said gas contaminant in the presence of the chosen ion conductive electrolyte, said electrical measurement means detects the change of said electrical potential, which thereby is indicative of the presence of said gas contaminant.
Def. Mot. at Ex. A, Col. 13, Ins. 15-60 (emphasis added). A. "Isolated From Any Exposure to Said Atmosphere"

  Defendants seek construction of the claim limitation "isolated from any exposure to said atmosphere." Defendants contend the court may use dictionary definitions to give claim terms their customary and ordinary meaning. Accordingly, defendants rely on The American College Dictionary (1964) to define the words "isolate," "any," and "atmosphere."*fn1 The dictionary defines "isolate" as "to set or place apart; detach or separate so as to be alone." The word "any" is defined as "(with a negative) none at all" or "in any degree; to any extent; at all . . ." The term "atmosphere" is defined as "the gaseous fluid surrounding the earth; the air." Defendants assert the context of the claim language applies the term "atmosphere" to mean the atmosphere being monitored. Based on the dictionary definitions, defendants argue the proper construction of the claim limitation "isolated from any exposure to said atmosphere" is "separated so that there is no exposure at all to the air being monitored to any degree or extent." Defendants contend this construction is consistent with the '166 patent specification, which shows the second counter electrode is separated from exposure to the atmosphere by use of a plug that seals the chamber, or by total encasement of the electrode in the frame. In both cases, defendants assert there is no way for the outside air to reach the counter electrode. Finally, defendants contend there is no disclosure in the '166 patent that teaches the counter electrode can be exposed to the outside air in any manner, and there is nothing in the prosecution history to contradict defendants' proposed construction.

  Dicon argues defendants' use of extrinsic evidence, dictionary definitions, to interpret the '166 patent claims is inappropriate. Dicon contends the specification makes clear the second counter electrode, while isolated from direct outside air, is exposed to an enclosed volume of scrubbed or otherwise uncontaminated air. Dicon asserts, without citation to the record, the specification teaches that the outside air may pass to the counter electrode after being scrubbed by an electrolyte. Therefore, Dicon argues defendants inappropriately ignore the broad context of the intrinsic evidence and seek a construction that inappropriately limits the patent's scope.

  The appropriate role of dictionary definitions in claim construction is somewhat unclear. The Federal Circuit has held dictionaries may be relied upon to construe patent claims:
When a patent is granted, prosecution is concluded, the intrinsic record is fixed, and the public is placed on notice of its allowed claims. Dictionaries, encyclopedias and treatises, publicly available at the time the patent is issued, are objective resources that serve as reliable sources of information on the established meanings that would have been attributed to the terms of the claims by those of skill in the art. Such references are unbiased reflections of common understanding not influenced by expert testimony or events subsequent to the fixing of the intrinsic record by the grant of the patent, not colored by the motives of the parties, and not inspired by litigation. Indeed, these materials may be the most meaningful sources of information to aid judges in better understanding both the technology and the terminology used by those skilled in the art to describe the technology.
Tex. Digital Sys. v. Telegenix, Inc., 308 F.3d 1193, 1203 (Fed. Cir. 2002) (emphasis added). Texas Digital explains that, because dictionaries may have multiple definitions for a term that do not apply to the claim, the interpreting court must refer to the intrinsic record to determine which definition is most consistent with the words used by the inventor. Id. Indeed, the dictionary definition must be rejected if it is inconsistent with the intrinsic record. Id. at 1204. "In short, the presumption in favor of a dictionary definition will be overcome where the patentee . . . has clearly set forth a clear definition of the term different from its ordinary meaning." Id. Therefore:
By examining relevant dictionaries, encyclopedias and treatises to ascertain possible meanings that would have been attributed to the words of the claims by those skilled in the art, and by further utilizing the intrinsic record to select from those possible meanings the one or ones most consistent with the use of the words by the inventor, the full breadth of the limitations intended by the inventor will be more accurately determined and the improper importation of unintended limitations from the written description into the claims will be more easily avoided.
Id. at 1205. Accordingly, defendants have provided their limitation interpretations based on dictionary definitions that were in existence as of April 16, 1990, when the '166 patent was filed.

  In contrast, C.R. Bard Inc. v. U.S. Surgical Corp., No. 04-1135, 2004 U.S. App. LEXIS 22738 (Fed. Cir. Oct. 29, 2004), emphasizes that the intrinsic record alone remains the primary source for determining claim meaning. Id. at *8. C.R. Bard notes that other cases, including Texas Digital, suggest the intrinsic record should be consulted only after determining the ordinary and customary meaning of claim terms with dictionary assistance. Id. at *9-12. Instead, C.R. Bard contends that the intrinsic evidence is the single most reliable guide to construe disputed claims. Id. at *9-12.

  The Federal Circuit has granted an en banc rehearing to broadly address the law of claim construction. Phillips v. AWH Corp., 376 F.3d 1382 (Fed. Cir. July 21, 2004). Specifically, the court intends to clarify seven issues, including the following three:
1. Is the public notice function of patent claims better served by referencing primarily to technical and general purpose dictionaries and similar sources to interpret a claim term or by looking to the patentee's use of the term in the specification? If both sources are to be consulted, in what order?
2. If dictionaries should serve as the primary source for claim interpretation, should the specification limit the full scope of claim language (as defined by the dictionaries) only when the patentee has acted as his own lexiographer or when the specification reflects a clear disclaimer of the claim scope? If so, what language in the specification will satisfy those conditions? What use should be made of general as opposed to technical dictionaries? How does the concept of ordinary meaning apply if there are multiple dictionary definitions of the same term? If the dictionary provides multiple potentially applicable definitions for a term, is it appropriate to look to the specification to determine what definition or definitions should apply? 3. If the primary source for claim construction should be the specification, what use should be made of dictionaries? Should the range of the ordinary meaning of claim language be limited to the scope of the invention disclosed in the specification, for example, when only a single embodiment is disclosed and no other indications of breadth are disclosed?
Id. at 1383. There is no need to await the forthcoming en banc decision before construing the '166 patent claims. While the extent to which dictionaries may be used is unclear, dictionaries may still be used, to some degree, to determine the ordinary and customary meaning of claim terms. See e.g., Texas Digital, 308 F.3d at 1203-05. C.R. Bard teaches dictionaries should not be relied upon before, or to the exclusion of, intrinsic evidence. ...

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