The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
On April 10, 2008, the Court held a claim construction hearing in this case to determine the appropriate meanings of the relevant key words used in the claims of the patents at issue, the infringement of which is alleged by Plaintiff. After consideration of the parties' papers and presentations, I construe the claims at issue as follows.
This is a patent infringement case that stems out of Plaintiff ACCO Brands' patents directed at security locks for portable electronics, including, but not limited to, laptop computers. This case involves four of ACCO's patents relating to such locking devices, and, with regard to claim construction, ACCO contends that only the '403 patent contains claim terms requiring this Court's clarification. Each of the Defendants is involved in the manufacturing and/or marketing of the security locks of one or more of the patents at issue in this suit. Defendant PC Guardian Anti-Theft Products, Inc. ("PC Guardian") is the maker of the Notebook Guardian line of locks for laptop computers. Defendants Noble Security, Inc. ("NSI") and Guan Gao Co., d/b/a Polox Co., Ltd. ("Polox") (collectively "Noble") and PC Guardian were the only Defendants to appear at the Markman hearing and to submit proposed claim constructions for the patents-in-issue.
On September 14, 2007, I approved the parties' proposed claim construction schedule. ACCO timely produced a list of claim terms it believes require construction, with proposed definitions on December 14, 2007. Defendants were required to produce their lists of claim terms by December 21, 2007. PC Guardian filed its initial list of claim terms and definitions on December 21, 2007 and then revised its positions on January 17, January 23, and January 24. Noble produced a revised construction of terms on February 1, 2008, the day the Joint Statement was due. ACCO argues that Defendants' untimely revisions should be stricken. I denied that motion to strike in open court on April 10, 2008.
II. The Standard Principles of Claim Construction
Claim construction is a matter of law for the court to decide. Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). In order "[t]o ascertain the meaning of claims, [the court] consider[s] three sources: The claims, the specification, and the prosecution history." Markman v. Westview Instruments, Inc., 52 F3d 967, 979 (Fed. Cir. 1995) (citations omitted). These three sources are the intrinsic evidence, public records available for all to consult and rely upon when determining the meaning and scope of a patent claim. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996). When the intrinsic evidence unambiguously describes the scope of a patented invention, reliance on extrinsic evidence, such as expert testimony and treatises, is inappropriate. Id.
Claim interpretation begins with the actual language of the claims. Bell Commc'ns Research, Inc. v. Vitalink Commc'ns Corp., 55 F.3d 615, 619-20 (Fed. Cir. 1995). Generally, the words, phrases and terms in patent claims should receive their ordinary and accustomed meaning. Johnson Worldwide Assocs. v. Zebco Corp., 175 F.3d 985, 989 (Fed. Cir. 1999) (noting a "heavy presumption in favor of the ordinary meaning of claim language."). The strong presumption in favor of the ordinary meaning may be overcome only when the patentee "clearly set[s] forth a definition for a claim term in the specification." Anchor Wall Sys. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1306 (Fed. Cir. 2003) (citing Johnson Worldwide Assoc., 175 F.3d at 989-90). "[A] technical term used in a patent claim is interpreted as having the meaning a person of ordinary skill in the field of the invention would understand it to mean." Dow Chem. Co. v. Sumitomo Chem. Co., 257 F.3d 1364, 1372 (Fed. Cir. 2001) (citation omitted).
"Claims must be read in view of the specification, of which they are a part." Markman, 52 F.3d at 979 (citations omitted). The specification may reveal "whether the inventor has used any terms in a manner inconsistent with their ordinary meaning." Vitronics Corp., 90 F.3d at 1582 (also noting that "the specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term"). The specification also serves as an aid in determining "the meaning of the claim term as it is used . . . in the context of the entirety of [the] invention." Interactive Gift Express, Inc. v. Compuserve Inc., 231 F.3d 859, 866 (Fed. Cir. 2000) (quoting Comark Communs., Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998)).
The claims, however, are not limited to the embodiment shown in the specifications. Anchor Wall, 340 F.3d at 1306-07; Transmatic, Inc. v. Gulton Indus., 53 F.3d 1270, 1277 (Fed. Cir. 1995). Limitations appearing only in the specifications cannot be read into a claim because "the claim, not the specification, measures the invention." Howes v. Zircon Corp., 992 F. Supp. 957, 961 (N.D. Ill. 1998) (citing SRI Int'l v. Matsushita Elec. Corp. Of Am., 775 F.2d 1107 (Fed. Cir. 1985)). However, when the specification "makes clear that the invention does not include a particular feature, that feature is deemed to be outside the reach of the claims of the patent, even though the language of the claims, read without reference to the specification, might be considered broad enough to encompass the feature in question." SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1341 (Fed Cir. 2001).
The publicly available prosecution history, which details the proceedings before the Patent and Trademark Office ("PTO"), may limit the interpretation of claim terms by revealing express representations made by the applicant regarding the scope of the claims or by excluding interpretations that were disclaimed during prosecution. Vitronics, 90 F.3d at 1582-83. However, "unless altering claim language to escape an examiner rejection, a patent applicant only limits claims during prosecution by clearly disavowing claim coverage." Kopykake Enters. v. Lucks Co., 264 F.3d 1377, 1382 (Fed. Cir. 2001) (internal quotation and citation omitted). Any such disavowal "must be clear and unmistakable." Anchor Wall, 340 F.3d at 1307. Finally, extrinsic evidence such as expert testimony may be considered only where the language of the claims remains ambiguous after consideration of the claim language, specification and file history. Key Pharms. v. Hercon Lab. Corp., 161 F.3d 709, 716 (Fed. Cir. 1998). "[E]xtrinsic evidence in general, and expert testimony in particular, may be used only to help the court come to the proper understanding of the claims; it may not be used to vary or contradict the claim language." Vitronics, 90 F.3d at 1584.
III. Claim Construction Relating to All Patents
Defendant Noble proposes constructions for four terms used variously by the four patents-in-suit. I will address two of these proposed constructions at the outset, and the other two in turn with the proposed claims of Defendant PC Guardian.
Noble proposes that the term "about" as used variously in the '403, '125, '989, and '479 patents as a prefix for the slot measurement (for example, "about 3mm x 7mm") should mean "a slot which has a 'design' dimension of 3mm x 7mm, and which is manufactured to that design dimension within manufacturing tolerances." Both ACCO and PC Guardian submit that no construction is required for the term "about."
As used in patent language, the term "about" has an ordinary meaning of "approximately." Merck & Co., Inc. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1371 (Fed. Cir. 2005) (reversing the district court's construction of "about" and ascribing to the term its "ordinary meaning" of "approximately"); see also Abbott Labs. v. Alra Labs., Inc., No. 92-5806, 1997 WL 667796, at *7 (N.D. Ill. Oct. 24, 1997) (finding 7 units is "about" 6 or "about" 4 to 6 units and implicitly adopting "approximately" as the ordinary meaning of "about"). Clearly the term "about 3mm x 7mm" could include security slots which are larger or smaller in width or length than exactly the 3mm x 7mm dimensions, so long as the slots were approximately 3mm x 7mm, within the context of this case. See Ortho-McNeil Pharm., Inc. v. Caraco Pharm. Labs., Ltd., 476 F.3d 1321, (Fed. Cir. 2007) ("the numerical limits" of the term "about . . . depends upon the technological facts of a particular case."). Noble argues that the ordinary definition of "about" is overcome because the specification of the '989 patent includes a description of a preferred embodiment with a slot having a long dimension of "seven millimeters, and a short dimension of three millimeters," without including the word "about." However, references in a specification to a preferred embodiment "do not evince a clear intent by the patentee to limit the article" to the exact words used. Free Motion Fitness, Inc. v. Cybex Int'l Inc., 423 F.3d 1343, 1350 (Fed. Cir. 2005). Also, nothing in the prosecution history limits the meaning of "about" beyond its ordinary definition. For these reasons, I decline to construe the term "about" beyond its ordinary meaning.
Next, Noble proposes a construction for the term "portable" as used in conjunction with either "electronic device" or "computer" in each of the patents-in-issue. According to Noble, the term "portable" should be construed as meaning "luggable equipment that can be carried in one hand such as notebooks, subnotebooks, and handheld computers, as well as palmtops and personal digital assistants." ACCO argues that because the term is clear on its face, and its ordinary meaning has not been disavowed in the specification or prosecution history, no construction is required. PC Guardian likewise proposes that no additional construction is required.
Noble does not cite any part of the specification in support of its effort to limit the term "portable" to include only certain types of electronic devices and computers. Also, Noble's proposal would create ambiguity as to what any one person may be able to carry in one hand.
I find that the term "portable" has an understood ordinary meaning, which has not been restricted in the specification of the patents. I ...