The opinion of the court was delivered by: James F. Holderman, Chief Judge
MEMORANDUM OPINION AND ORDER REGARDING CONSTRUCTION OF DISPUTED CLAIM TERMS
On August 31, 2005, plaintiff Andrew Corporation ("Andrew"), filed its first amended complaint alleging that defendant Beverly Manufacturing Company, ("Beverly"), infringed three of Andrew's patents: United States Patents Nos. 6,354,543 B1 ("the '543 patent"); 6,899,305 B2 ("the '305 patent")*fn1 ; and 5,850,056 ("the '056 patent"). (Dkt. No. 74). Patents '543 and '305 relate to cable hangers used in telecommunication towers, and patent '056 involves a grounding device used in cell phone towers. The parties dispute the meanings of certain terms in the patent claims and seek the court's construction of these terms. Beverly additionally filed on May 8, 2006 a pending motion to supplement its memorandum in support of its proposed claim construction. (Dkt. No. 174). The court heard oral arguments from each side on November 21, 2006. In this opinion, this court construes the disputed claim terms in the three patents. The court also grants Beverly's motion to supplement and sustains Beverly's objections (Dkt. No. 198) to the inclusion by Andrew of excerpts of Beverly's patents.
I. The '543 and '305 Patents
Andrew's '543 and '305 Patents, issued on March 12, 2002 and May 31, 2005 respectively, are each entitled "Stackable Transmission Line Hanger."*fn2 Transmission line hangers primarily secure telecommunications cables to communication towers or other support structures and typically have a retention section through which one or more telecommunication cables run. (Exs. 1 &2, Col. 1.) In prior art, transmission hangers attached to a supporting structure or to another transmission structure through additional hardware. (Id. at Cols. 1 &2.) The '543 and '305 patents were meant to address "a need for a novel stackable transmission line hanger that is easy to install, easy to add addition[al] transmission lines thereto and inexpensive to manufacture" without the additional hardware needed by the prior art. (Id. at Col. 2.)
The abstracts of Andrew's '543 and '341 patents are identical:
In one aspect, a stackable transmission line hanger is provided for securing one or more transmission lines to a supporting structure. Each such hanger includes a transmission line retention section for accommodating a transmission line and a mounting section extending from the transmission line retention section, the mounting section including a mounting hole disposed therein. The transmission line retention section includes a first leg and a second leg extending therefrom, the first and second legs allowing the hanger to accommodate various sizes of transmission lines. The first and second legs each include a locking barb configured to lock against an attachment surface. (Exs. 1 & 2.)
Figure 1 of the drawings of Andrew's '543 and '341 patents are also identical:
The Andrew '056 Patent is entitled "Grounding Kit for a Transmission Line Cable Including a Clip, a Bail and a Housing," and is used to protect a transmission wires on a communications tower from the effects of lightening strikes. (Pl. Mem. Ex. 3, hereinafter "Ex. 3.") The Grounding Kit attaches to a transmission line cable having a portion of its outer jacket removed to reveal an exposed section of its conduct, so that the transmission wire maintains close contact with the protective grounding wire while protecting the exposed conductor from the environment. (Ex. 3 at Col. 1, ln. 10-28.) The prior art is differentiated from the patent in that a "need exists for a durable grounding kit for transmission line cables that maintains high contact pressure with the cable over extended periods of time and after being subjected to multiple high-power conditions," and that "a need exists for a sealing device that provides a reliable seal over the exposed section of the cable to which the ground wire is attached." (Pl. Mem. Ex. 3, cols. 1 &2, ln. 63-2, hereinafter "Ex. 3.")
The relevant portions of the abstract for the '056 patent are as follows: A grounding kit for a transmission line cable having a portion of its outer jacket removed to reveal an exposed section of its conductor is set forth. The grounding kit includes a clip, a bail and a housing. The clip has a fulcrum portion and means for connecting the clip to a ground wire. The clip encompasses a part of the exposed section of the conductor. The bail includes a mounting element pivotably mounted on the fulcrum portion of the clip to permit rotation of the bail between an open and a closed position. The handle contacts the clip and forces the clip into clamping engagement with the exposed section of the conductor in response to the bail being rotated to a closed position. (Ex. 3, abstract.)
Claim construction, "is a matter of law for the court to determine." Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (1995) (en banc) aff'd 517 U.S. 370 (1996). The Federal Circuit's recent en banc opinion in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005), set out the proper approach for claim construction. Reaffirming that there is no "magic formula" for conducting claim construction and that the sequence of steps used in consulting various sources is not important, Phillips explained that a judge should undertake claim construction from the viewpoint a person of ordinary skill in the field of invention and determine how such a person would understand the claim at the time of invention. Phillips, 415 F.3d at 1313, 1324; see On Demand Machine Corp. v. Ingram Indust., Inc., 442 F.3d 1331, 1337-38 (Fed. Cir. 2006). When interpreting the meaning of the claims and the claim terms, the Phillips decision directed judges to look toward several sources-the claims themselves, the specification, the prosecution history and prior art cited within, and when appropriate extrinsic evidence such as expert testimony, treatises, and dictionaries-placing the greatest weight on the claim language and the specification. Phillips, 415 F.3d at 1314-18. Phillips stated that "while extrinsic evidence can shed useful light on the relevant art, we have explained that it is less significant than the intrinsic record in determining the legally operative meaning of claim language." Phillips, 415 F.3d at 1315, 1320-21.
The words of a claim are generally given their ordinary and customary meaning that a person of ordinary skill in the art in question at the effective date of filing would have used. Old Town Canoe Co. v. Confluence Holdings Corp., 448 F.3d 1309, 1315 (Fed. Cir. 2006); Phillips, 415 F.3d at 1312-13; Vitronics v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The claim should be read in the context of the entire patent, including the specification, and not just in the context of the particular claim where the disputed term appears. Phillips, 415 F.3d at 1313-14.
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). That presumption, however, is rebuttable and the court may limit the ordinary meaning of a claim in certain circumstances. Where the specification reveals that an inventor has given a different meaning to a term than its ordinary use, the inventor's lexicography governs. Phillips, 415 F.3d at 1316. Furthermore, if the specification and/or the prosecution history contain an intentional disclaimer or disavowal of the claim scope, the doctrine of prosecution disclaimer applies and the court may rely on that disclaimer or disavowal as an expression of the inventor's intent. Id. at 1316-17. Courts generally should not limit claims to the particular preferred embodiments in the specification, however, the preferred embodiments can shed light on the intended scope of the claims, and the inclusion of only one embodiment in the claim may "define the outer limits of the claim term or may merely [ ] be exemplary in nature." Phillips, 415 F.3d at 1323; Astrazeneca AB v. Mut. Pharm. Co., 384 F.3d 1333, 1340 (Fed. Cir. 2004).
The court additionally may not apply the ordinary meaning to the claim term where the patentee phrases the claim in means-plus-function format, 35 U.S.C. § 112 ¶ 6; Allen Eng'g Corp., 299 F.3d at 1347-48. Claims may be written in the means-plus-function form according to 35 U.S.C. § 112, ¶ 6, which reads as follows:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
35 U.S.C. § 112, ¶ 6. "The use of the word 'means' 'triggers a presumption that the inventor used this term advisedly to invoke the statutory mandate for means-plus-function clauses" while the absence of the term "means" triggers a strong presumption that the inventor did not mean to invoke a means plus function construction. Allen Eng'g Corp., 299 F.3d at 1347 (citations omitted). This presumption that the word means was meant to invoke a means plus function construction may be overcome when the claim language either recites no function corresponding to the means or describes sufficient structure or material for performing the structure. Id.
I. Beverly's Motion for Leave to Supplement its Memorandum in Support of Its Claim Construction
As a threshold matter, the court addresses the motion Beverly filed for leave to supplement its claim construction memorandum. Beverly sought to include for the court's review extrinsic evidence of the prosecution history of Beverly's pending U.S. Patent Application No. 10-640,181 ("the '181 Application")*fn3 and an opinion letter from the law firm of Wood, Phillips, Katz, Clark & Mortimer ('Wood Phillips") that provides an opinion that Beverly is not infringing Andrew's '543 and '305 Patents. (Dkt. No. 174). Although the court will consider the intrinsic evidence of the three patents as primary, in accordance with Phillips, the court will review Beverly's offered material as extrinsic evidence if needed.
II. Disputed Claim Terms in Patents ...