The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Plaintiff General Kinematics Corporation ("GK") filed suit against Defendant Carrier Vibrating Equipment, Inc. ("CVE"), seeking a declaration that U.S. Patent No. 5,615,763, entitled "Vibratory Conveyor System for Adjusting the Periodic Resultant Forces Supplied to a Conveyor" ("the '763 patent") is invalid, and that GK's VARIO-DRIVETM conveyor/shakeout machine, which GK intends to make and sell in the United States, is non-infringing. CVE, meanwhile, has filed counterclaims for infringement and willful infringement, and it seeks both injunctive relief and an accounting.
The parties submitted briefs setting forth their respective constructions of disputed terms in claim 5 of the '763 patent, and on March 30, 2009, this Court held a hearing in accordance with Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). On April 14, 2009, this court ordered the parties to submit simultaneously their post-Markman hearing briefs. Having considered the evidence adduced during the Markman hearing, along with the parties' pre- and post-hearing submissions, the court sets forth below its construction of the disputed terms.
Construction of patent claims is a question of law for the court. See Markman, 52 F.3d at 979-81. Claim construction is "the process of giving proper meaning to the claim language," which "defines the scope of the protected invention." AbTox, Inc. v. Exitron Corp., 122 F.3d 1019, 1023 (Fed. Cir. 1997) (citation and quotation marks omitted).
The court begins this process with the language of the claim itself. See Teleflex v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2002). Generally a claim term carries its ordinary meaning, from the standpoint of a person of ordinary skill in the relevant art who has read the entire patent. Phillips v. AWH Corp., 415 F.3d 1303, 1312-13, 1321 (Fed. Cir. 2005) (en banc). When that ordinary meaning is readily apparent, "claim construction involves little more than the application of the widely accepted meaning of commonly understood words." Id. at 1314. But when understanding a claim requires examination of terms that have a particular meaning in a field of art, the court should use sources intrinsic to the patent to illuminate that meaning. Id. at 1314. Those sources include (1) the language in the term itself, including the context in which the term is used in both the disputed claim and in other claims; (2) the remainder of the specification; and (3) the prosecution history (if it is in evidence). Id. at 1314-17. When appropriate, the court also may use extrinsic evidence. Id. at 1318.
Other than the claim itself, the most important type of intrinsic evidence is the rest of the patent's specification. Id. at 1315-16. The specification consists of "a written description of the invention, and of the manner and process of making and using it," as well as a description of "the best mode contemplated by the inventor of carrying out [the] invention," followed by "one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as [the] invention." 35 U.S.C. § 112. It may reveal a "special definition" that differs from the meaning a term otherwise would be given, or "an intentional disclaimer, or disavowal, of claim scope by the inventor." Phillips, 415 F.3d at 1316. In such cases, "the inventor's lexicography governs." Id.
Next in importance is the prosecution history of the patent, which, if in evidence, will consist of the record of the PTO proceedings and any prior art cited during examination of the patent. Id. at 1317. Although it may lack the clarity of the specification, the prosecution history can provide evidence of how the PTO and the inventor understood the patent, and whether the patentee ascribed a special meaning to a term or intended to narrow its scope. Id.
If, after considering the intrinsic evidence, the meaning of a disputed term still is ambiguous, courts may consider extrinsic evidence. Kopycake Enters., Inc. v. Lucks Co., 264 F.3d 1377, 1381 (Fed. Cir. 2001). Extrinsic evidence, however, is "less significant than the intrinsic record" for determining the meaning of patent claims. Phillips, 415 F.3d at 1317 (quotation omitted). Extrinsic evidence includes "all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Markman, 52 F.3d at 980 (citation omitted).
Finally, under 35 U.S.C. § 112 ¶6, a special rule of claim construction applies to claim limitations written in a "means-plus-function" format. The rule applies "only to purely functional limitations that do not provide the structure that performs the recited function." Phillips, 415 F.3d at 1311. To construct such functional limitations, the court first must identify the function and then identify in the written description the corresponding structure necessary to perform that function. Micro Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999). In doing so, the court should focus on the ordinary meaning of the function. Generation II Orthotics Inc. v. Medical Tech., Inc., 263 F.3d 1356, 1364-65 (Fed. Cir. 2001).
II. Construction of Claim 5 in the '763 Patent
The '763 patent, entitled "Vibratory Conveyor System For Adjusting The Periodic Resultant Forces Supplied To A Conveyor Trough," was invented by Douglas A. Schieber, assigned to CVE, and issued on April 1, 1997. The parties' dispute concerns only Claim 5 of the '763 patent.*fn1
To aid the court in gleaning the ordinary meaning of terms from the standpoint of a person of ordinary skill in the relevant art, CVE engaged Dr. Val DiEuliis, who provided testimony at the Markman hearing ostensibly from that perspective. Accordingly, before construing the disputed terms, the court considers whether DiEuliis is a person of ordinary skill in the art of the '763 patent. The parties agreed to define such a person as one "with  a bachelors degree in electrical or mechanical engineering and  one or more years of industrial experience  with knowledge of the design and/or use of vibratory conveyors or other industrial equipment with vibratory forces acting thereon, including  familiarity with control systems associated with them." (Markman Hr'g Ex. O.)
At the Markman hearing, GK objected to DiEuliis's qualification on two somewhat competing grounds: (1) he lacks experience with vibratory conveyor troughs, and (2) he is a person with more than ordinary skill in the relevant art. In its post-Markman brief, GK does not further explore these challenges.
The court concludes that DiEuliis is qualified to offer testimony from the standpoint of a person of ordinary skill in the relevant art. First, DiEuliis testified that he has a bachelors of science degree in electrical engineering from the University of Notre Dame-meeting the parties' first requirement-along with a masters of science degree and a Ph.D, both in electrical engineering, from the University of Illinois at Urbana-Champaign. (Markman Hr'g Tr. 16.) Second, DiEuliis testified that he has multiple years of industrial experience in both the military and the private sector, thus meeting the second requirement. (Id. at 18-20.) Third, although he did not testify to specific prior knowledge of the design or use of vibratory conveyor troughs, DiEuliis did testify that he was familiar with systems creating vibratory forces, including optical disk drives. (Id. at 70.) Moreover, he testified that (1) he has designed electromechanical devices and control systems that involve oscillatory, and sometimes vibratory, motion; (2) he has designed and built a device that included sensors that monitored vibration in an avionics bay; and (3) he has developed requirements for a maintenance system that monitored and analyzed vibration signatures in large navy ship motors. (Id. at 18-20.) That is enough to establish both that he has "knowledge of the design and/or use of... industrial equipment with vibratory forces acting thereon," and that he has "familiarity with control systems associated with them."
The court rejects GK's unexplained suggestion that DiEuliis is overqualified, presumably based on his years of experience and advanced degrees. There is no reason apparent in the record why DiEuliis's education and experience would disable him from speaking to the understanding of a person of ordinary skill in the relevant art. Cf. Monarch Knitting Mach. Corp. v. Sulzer Morat GmbH, 139 F.3d 877, 884 (Fed. Cir. 1998) (rejecting unexplained assertion that expert's title shows he possessed extraordinary skill in the art). It would, at most, affect only the weight the court gives to his testimony. Accordingly, the court concludes that DiEuliis meets the parties' agreed definition of a person of ordinary skill in the relevant art, and that his testimony from that perspective may assist this court's construction of claim 5, below.
A. The Language of Claim 5
This opinion addresses only the disputed terms and means-plus-function limitations in claim 5, which are underlined and in boldface type:
A vibratory conveying system for generating a sinusoidal vibratory motion in which a resultant vibratory force supplied to said conveyor trough is at a predetermined angle of attack to said conveyor trough resulting in nonparallel vibratory displacements of said conveyor trough with respect to a direction of conveyance, said system ...