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McDavid Knee Guard, Inc. v. Nike USA

September 17, 2009

MCDAVID KNEE GUARD, INC., AN ILLINOIS CORPORATION, AND STIRLING MOULDINGS LIMITED, AN ENGLISH CORPORATION, PLAINTIFFS,
v.
NIKE USA, INC., AN OREGON CORPORATION DEFENDANT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER CONSTRUING DISPUTED CLAIM TERMS

McDavid Knee Guard and Stirling Moulding Limited (collectively "McDavid") filed this lawsuit against Nike USA, Inc. ("Nike"), alleging that Nike infringed Stirling Moulding Limited's U.S. Patent No. 6,743,325 ("'325 patent") which patents a method of manufacturing "flexible material . . . suitable for providing protective war [sic] for human and animal bodies." ('325 patent, Abstract.)

The '325 patent contains fourteen independent and dependent claims. The parties presented in their opening claim construction briefs four claim terms of the '325 patent for judicial construction. Three of those claim terms, "jig," "spaced separate elements" and "making one side of the plurality of spaced separate elements to stand proud of the surface of a jig," are used in all of the '325 patent's claims. The fourth claim term, "coated," is found only in claims 8 and 9, and the parties have now agreed that the claim term "coated" means "a layer of adhesive is applied," (Dkt. 94, Def. Resp. Claim Construction Br. 1 n.1) which this court adopts. Each of the three remaining disputed claim terms is construed by the court as set forth below.

BACKGROUND

The '325 patent, which is titled "Flexible Material," was issued to David Stirling Taylor (inventor) and assigned to his company, Stirling Moulding Limited, on June 1, 2004. Stirling Moulding Limited granted an exclusive license to McDavid Knee Guard, Inc. on June 30, 2005 to, among other things, make, use and sell products created by the '325 manufacturing method within the sporting goods field of use. The abstract for the '325 patent describes the invention as:

A flexible material [that] includes a plurality of separate resilient elements joined to a flexible, resiliently stretchable substrate. Such a material is suitable for providing protective war [sic] for human and animal bodies. Preferably, the elements includes [sic] a foam material such as a closed cell polyethylene foam and the substrate includes a knitted fabric. In an advantageous embodiment, a second flexible substrate is bonded over the elements to sandwich them between the two layers of substrate. ('325 patent, Abstract.) The Field of the Invention section of the '325 patent describes the invention as relating "to a method of manufacturing a flexible material suitable, primarily, for use as a flexible protective material to protect for human and animal bodies." (Id. at col. 1:16-19.)

The flexible material created by the manufacturing method described in the '325 patent allows the material to more easily conform to the body of the wearer because it is flexible in all three dimensions. (Id. at col. 2:37-39.) Due to this increased flexibility, the material is more comfortable to wear and can accommodate movement better than conventional materials. (Id. at col. 2:39-42.) At the time that the '325 patent's application was filed with the U.S. Patent and Trademark Office ("PTO") in July 2000, the type of conventional protective material and wear that was on the market was molded to fit a particular part of a person's body and was produced in different sizes to fit different uses. (Id. at col. 1:33-36.) In addition, this conventional protective material would often restrict a person's movement if worn near or over a person's joints. (Id. at col. 1:37-38.) Thus, the objective of the '325 patent was to overcome the drawbacks of then-existing materials through the production of material which offered increased flexibility and movement, and lended itself to a variety of uses. (See generally id. at col. 1:23-67, 2:1-16.)

Claim 1 of the '325 patent, which is the primary independent claim, states: I claim:

1. A method of manufacturing a flexible material comprising the steps of providing a sheet of a resilient material; cutting the sheet into a plurality of spaced separate elements using a cutter which is pressed into the sheet to cut therethrough; making one side of the plurality of spaced separate elements to stand proud of a surface of a jig provided to hold the elements in place; and bonding a flexible resiliently stretchable substrate to one side of the separate elements by heating the substrate either to activate an adhesive applied between said one side of the separate elements and the substrate or to weld the separate elements to the substrate. ('325 patent, col. 6:34-48.)

LEGAL STANDARDS

Claim construction is a matter of law for a court to determine. Markman v. Westview Instruments, Inc., 517 U.S. 370, 390 (1996). In construing patent claim terms, a court is to adopt the viewpoint of a person of ordinary skill in the field of invention and determine how that person would define the disputed claim language at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1324 (Fed. Cir. 2005); see also On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1337-38 (Fed. Cir. 2006). When interpreting the meaning of patent claim terms, a district court is to look first to the intrinsic evidence, e.g., the claims themselves, the specification, the prosecution history, and the prior art cited within the patent, giving the greatest weight to the patent's claim language and specification. Phillips, 415 F.3d at 1314-18. A court may also consider extrinsic evidence such as expert testimony, treatises, and dictionaries when appropriate, but extrinsic evidence "is less significant than the intrinsic record in determining the legally operative meaning of claim language." Id. at 1315, 1320-21.

The words of a patent claim are generally given the ordinary and customary meaning used by a person of ordinary skill in the pertinent art at the effective date of filing with the PTO. Id. at 1312-13. A claim term's ordinary and customary meaning, however, will not apply if the specification reveals that the inventor of the patented product or process ascribed a different meaning to a term other than its ordinary meaning or if the intrinsic evidence contains an intentional disclaimer or disavowal of the claim scope. Id. at 1316-17. Additionally, though the preferred embodiments can shed light on the intended scope of the claims, the claims generally are not limited to the preferred embodiments in the specification. Id. at 1323; AstraZeneca AB v. Mut. Pharm. Co., 384 F.3d 1333, 1340 (Fed. Cir. 2002).

When construing claim terms, a patent should be read in a way that renders the entire patent internally consistent, if at all possible. Sinorgchem Co. v. U.S. Int'l Trade Comm'n, 511 F.3d 1132, 1145 (Fed. Cir. 2007). A claim term should be considered in the context of the entire patent, including the specification, and not just in the context ...


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