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Goss International Americas, Inc. v. Graphic Management Associates

September 14, 2010

GOSS INTERNATIONAL AMERICAS, INC., PLAINTIFF,
v.
GRAPHIC MANAGEMENT ASSOCIATES, INC., MULLER MARTINI CORP., MÜLLER MARTINI CORP., MÜLLER MARTINI DRUCKVERARBEITUNGS-SYSTEME AG, MÜLLER MARTINI HOLDING AG, MÜLLER MARTINI MARKETING AG, AND GRAPHA-HOLDING AG, DEFENDANTS.



The opinion of the court was delivered by: Virginia M. Kendall United States District Court Judge Northern District of Illinois

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Goss International Americas, Inc. ("Goss") sued Defendants Graphic Management Associates, Inc. ("GMA"), Muller Martini Corp. ("Muller Martini"), Müller Martini Druckverarbeitungs-Systeme AG ("Müller Martini D-S"), Müller Martini Holding AG ("Müller Martini Holding"), Müller Martini Marketing AG ("Müller Martini Marketing"), and Grapha-Holding AG ("Grapha") (collectively "the Defendants") alleging direct and indirect infringement of United States Patent No. 6,082,724 ("the '724 patent"). Specifically, Goss alleges that GMA has directly infringed the '724 patent by making and selling, in the United States, equipment known as models SLS3000 and SLS 3000XL, and by importing and using the ProLiner model. Goss also alleges that Muller Martini has directly infringed the '724 patent by selling, in the United States, the Supra model, which is made abroad by Müller Martini D-S. Finally, Goss alleges that the four Swiss Defendants-Müller Martini D-S, Müller Martini Holding, Müller Martini Marketing, and Grapha-have indirectly infringed the '724 patent by actively inducing the alleged direct infringing activities of the two American Defendants. The Defendants counterclaimed seeking a declaratory judgment that the '724 patent is invalid and has not been infringed by the Defendants.

Between Goss and the Defendants, there are eleven pending Motions for Summary Judgment and five pending Cross-Motions for Summary Judgment, which the Court describes in more detail below. Generally, Goss seeks summary judgment of infringement on four devices owned by the Defendants: the SLS3000, the SLS3000XL, the ProLiner, and the Supra. The Defendants cross-move for summary judgment of non-infringement on all four devices. The Court refers to these eight Cross-Motions as "the Infringement Motions." Goss also seeks summary judgment of inducement of infringement against the Swiss Defendants and the Defendants seek summary judgment that two of the four Swiss Defendants are not liable for inducement. The Court refers to these two Motions as "the Inducement Motions." The Defendants and Goss also seek summary judgment on the issue of whether the '724 patent is invalid in light of the prior art. The Court refers to these two Motions as "the Invalidity Motions." The parties cross-move for summary judgment on the issue of whether the '724 patent is invalid for lack of enablement. The Court refers to these two Cross-Motions as "the Enablement Motions." Finally, the Defendants seek summary judgment that if infringement is found, Goss is not entitled to lost profits and that infringement, if found, is not willful.

Pursuant to Federal Rule of Civil Procedure 53, and by the consent of the parties, the previous Judge assigned to this case, the Honorable Blanche M. Manning ("Judge Manning"), referred these voluminous Motions to Special Master Robert L. Harmon ("Special Master Harmon").*fn1 (See R. 376, Order Granting Agreed Mot. to Appoint Robert Harmon as Special Master at 2.) On January 13, 2010, after reviewing the parties' Motions, Special Master Harmon submitted a comprehensive 126-page Report and Recommendation ("Report"). (See R. 471.) In his Report, Special Master Harmon recommended that the Court: (1) deny the parties' Infringement Motions and Cross-Motions because genuine issues of material fact exist, but grant the Defendants' SLS3000 and SLS3000XL Cross-Motions only as to claims 9 and 10; (2) deny Goss's Inducement Motion; (3) grant Grapha and Müller Martini Holding's Inducement Motion; (4) deny the Defendants' Invalidity Motion; (5) grant in part and deny in part Goss's Invalidity Motion; (6) deny the Defendants' Enablement Motion and grant Goss's Enablement Cross-Motion; (7) deny the Defendants' Lost Profits Motion as to the SLS3000, but grant the Motion as to the Supra; and (8) grant the Defendants' Motion as to Willfulness.

Pursuant to Federal Rule of Civil Procedure 53(f)(2), both Goss and the Defendants object to the Report. For the reasons set forth below, the Court grants in part and denies in part Goss's Objections To and Motion To Adopt And Modify Report And Recommendation Of The Special Master and grants in part and denies in part the Defendants' Motion to Adopt in Part and Modify in Part the Report and Objections to the Report. Accordingly, the Court denies the parties Motions and Cross-Motions for Summary Judgment of Infringement on all four devices-with the exception of the Defendants' SLS3000 and SLS3000XL Cross-Motions as to claims 9 and 10, denies Goss's Inducement Motion, grants Grapha and Müller Martini Holding's Inducement Motion, denies the Defendants' Invalidity Motion, grants in part and denies in part Goss's Invalidity Motion, denies the Defendants' Enablement Motion, grants Goss's Enablement Cross-Motion, grants in part and denies in part the Defendants' Lost Profits Motion, and grants the Defendants' Motion as to Willfulness.

STATEMENT OF FACTS*fn2

Goss, a manufacturer of printing equipment commonly used in the newspaper, advertising, and commercial printing and publishing industries, is the owner by assignment of the '724 patent. (Def. 56.1 Resp. General ¶¶ 1, 17.) The Defendants are related Swiss and American companies. Specifically, GMA, now known as Muller Martini Mailroom Systems, Inc., is a Delaware corporation with its principal place of business in Allentown, Pennsylvania and Muller Martini is a New York corporation with its principal place of business in Hauppauge, New York. (Def. 56.1 Resp. General ¶¶ 3-4.) The other four companies-Müller Martini D-S, Müller Martini Marketing, Müller Martini Holding, and Grapha-are organized under the laws of Switzerland. (Def. 56.1 Resp. General ¶¶ 5-8.)

The '724 patent issued July 4, 2000 on an application filed August 1, 1997. (Def. 56.1 Resp. Invalidity ¶ 1; Def. 56.1 Resp. General ¶ 12.) It contains 24 claims. For purposes of these Motions, the date for evaluating the existence of prior art is August 1, 1997. Special Master Harmon describes the '724 patent and its prosecution as follows. The '724 patent discloses a conveyer system for collating sheet material such as paper. The system is particularly suitable for assembling newspapers, but it could also be adapted to form other sheet material assemblages. The preferred embodiment comprises a generally oval conveyor track that is driven by a variable speed motor under the control of a microcomputer. The conveyor has a number of locations along its length for receiving sheet material. There are also sheet material feeder elements, such as rotary drums driven by variable speed motors, each of which is controlled by a microcomputer. The conveyor moves the receiving locations from feeder element to feeder element. The basic thrust of the patent seems to be the provision of a conveyor system capable, by controlling the variable speed motors, of correcting an unacceptable error in synchronization between the conveyor and the feeder elements.

Goss alleges that the SLS3000 and SLS3000XL made and sold by GMA literally infringe claims 1, 2, 5-10, 12, 20-22, and 24 of the '724 patent and that the ProLiner and Supra models that are made abroad literally infringe claims 1, 2, 5-8, 12, 20-22, and 24. The accused devices are apparatuses that are used to form sheet material assemblages. (Def. 56.1 Resp. SLS3000 ¶ 4; Def. 56.1 Resp. SLS3000XL ¶ 6; Def. 56.1 Resp. Supra ¶ 6; Def. 56.1 Resp. ProLiner ¶ 9.) Specifically, the SLS3000 is a newspaper inserting machine, used to collate newspapers including inserts that are put into the newspaper jacket. (Def. 56.1 Resp. SLS3000 ¶ 5.) The SLS3000XL is a system used in mail rooms or packaging facilities and it has the ability to process a range of products, such as newspaper productions. (Def. 56.1 Resp. SLS3000XL ¶ 7.) The Supra is an apparatus for forming sheet material assemblages, such as magazines, catalogues, brochures, and books. (Def. 56.1 Resp. Supra ¶ 6.) The ProLiner Inserter is a system used in mail rooms and it has the ability to process a range of products, such as newspaper productions. (Def. 56.1 Resp. ProLiner ¶ 9.)

The Defendants have offered for sale, sold, used, or made the accused devices in the United States since the date of issuance of the '724 patent. (Def. 56.1 Resp. SLS3000 ¶ 2; Def. 56.1 Resp. SLS3000XL ¶ 2; Def. 56.1 Resp. Supra ¶ 1; Def. 56.1 Resp. ProLiner ¶ 2.)*fn3

STANDARD OR REVIEW

After giving the parties an opportunity to be heard, the Court "may adopt or affirm, modify, wholly or partly reject or reverse" the report of a Special Master. See Fed. R. Civ. P. 53(f)(1). When reviewing a Special Master's report, "the general rule is that the district court steps into the shoes of an appellate court and employs the same standards that an appellate court uses to review a lower court opinion." See Cook v. Niedert, 142 F.3d 1004, 1010 (7th Cir. 1998). The Court thus reviews Special Master Harmon's legal conclusions de novo and accepts his findings of fact unless they are clearly erroneous. See id.

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. See Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court, however, will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the Court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("'Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'").

DISCUSSION

I. Person of Ordinary Skill in the Art

Before addressing the parties' claim construction arguments and objections to Special Master Harmon's conclusions as to their Motions, the Court must define the level of skill in the art. This is a question of fact, which this Court reviews for clear error. See TriMed, Inc. v. Stryker Corp., 608 F.3d 1333, 1341 (Fed. Cir. 2010) (the level of ordinary skill in the art is a factual inquiry).

After reviewing the expert reports from both Goss and the Defendants, Special Master

Harmon concluded that the person of ordinary skill in the art here is "a person with an engineering degree or its equivalent in engineering experience in the mechanical or electronic arts, and several years of experience working (in design, operation, or procurement) with systems of the type described in the '724 patent, including computerized control of those systems." The Defendants object to this conclusion, arguing that the qualifying work experience should not include either "operation" or "procurement" with systems of the type described in the '724 patent.

The Defendants' misinterpret Special Master Harmon's definition to encompass non-engineers who only have experience in operation or procurement. In fact, Special Master Harmon's definition requires an engineering degree or its equivalent in engineering experience in addition to work experience with the types of machines described by the '724 patent. Whether this additional work experience is in the operation or procurement of systems described in the '724 patent does not eliminate the other requirement in the definition that the person have an engineering degree or its equivalent in engineering experience. Therefore, for purposes of assessing the merits of the Report, the Court adopts Special Master Harmon's definition of a person of ordinary skill in the art and denies the Defendants' objection.

II. Claim Construction

Having defined the level of skill in the art, the Court turns to the parties' objections to Special Master Harmon's claim construction. Prior to a finding of patent infringement or invalidity, the asserted claims of the patent must be construed by the Court. Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1273 (Fed. Cir. 2004). Once the Court has construed the each claim, it applies the same construction of those terms for both infringement and invalidity. See Yoon Ja Kim v. Conagra Foods, Inc., 465 F.3d 1312, 1324 (Fed. Cir. 2006).

Claim construction resolves the meanings of disputed terms in a patent to clarify and, when necessary, explain the claims. O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1362 (Fed. Cir. 2008). Claim construction is a question of law, reviewed de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-55 (Fed. Cir. 1998) (en banc). Nevertheless, while claim construction is for the Court to decide, it "is not an obligatory exercise in redundancy." U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). Thus, not every term in the claim needs to be construed by the Court. Id. In those cases where the claim is not construed, those terms are then given the ordinary and customary meaning those terms would have to a person of ordinary skill in the art at the time of the filing date of the patent application. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc).

When interpreting the asserted claims, the court first looks to the intrinsic evidence-the claim language, the patent specification, and the patent's prosecution history. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The claims of a patent define the scope of the invention to which the patentee is entitled. Phillips, 415 F.3d at 1312. In some cases the ordinary and customary meaning of the claim language, as understood by the person having ordinary skill in the art, may be readily apparent and the court need not construe that term beyond that meaning. Id. at 1314. When the meaning of a claim term as used by a person skilled in the art is not readily apparent, the Court may look to sources available to the public to determine how a person skilled in the art would have understood that term. Id.

In many cases, however, the court must proceed beyond the bare language of the claims and examine the patent specification. Id. at 1315. A person of ordinary skill in the art reads the claim term both in the context of the particular claim in which it appears and in the context of the entire patent, including the specification. Id.at 1313. When a claim term cannot be given its ordinary and customary meaning, then the specification will usually be dispositive as it is the best guide to the meaning of a term. Id. at 1315. The specification provides a written description that discloses the invention and allows a person of ordinary skill in the art to make and use the invention. See id. at 1323.

Similar to the specification, the prosecution history of the patent may also shed light on how the patentee understood the patented invention and its limitations. Id. at 1317. Nevertheless, the prosecution history is only a small window into the negotiations between the patentee and the Patent and Trademark Office and is not as enlightening as the specification. Id. Usually, the prosecution history will be used to narrow the scope of the claimed invention. Id.

Finally, the court may use extrinsic evidence if the claim limitation remains ambiguous after consulting the intrinsic evidence. Id. Extrinsic evidence consists of all evidence external to the patent and its prosecution history-such as expert testimony, inventor testimony, dictionaries, and learned treatises. Id. Because extrinsic evidence is external to the patent, its value in interpreting claim limitations is limited and less reliable than the intrinsic evidence. Id.

Certain claim construction principles are important to the claim construction issues in this case. First, where a claim recites a function without reciting sufficient structure to perform the function, 35 U.S.C. § 112, ¶ 6 requires that the Court identify the structure in the specification clearly linked to perform that function and construe the claim to cover that structure, along with equivalents thereof. 35 U.S.C. § 112, ¶ 6. If a claim element uses the word "means" and recites a function, it is presumed that the element is a means-plus-function term under 35 U.S.C. § 112, ¶ 6. Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1366 (Fed. Cir. 2008). Nevertheless, this presumption is rebuttable. See id. Where a claim element uses the word "means," yet includes sufficient structure for the claimed function, then that element will not be treated as a means-plus-function element. Compare TriMed, Inc. v. Stryker Corp., 514 F.3d 1256, 1260 (Fed. Cir. 2008) (citing approvingly to Envirco Corp. v. Clestra Cleanroom, Inc., 209 F.3d 1360, 1365 (Fed. Cir. 2000) that "baffle means" recited sufficient structure in the term "baffle" to rebut the § 112, ¶6 presumption) with Net MoneyIN, 545 F.3d at 1366 (concluding that "first bank computer" in the limitation of "first bank computer including means for generating an authorization indicia" did not recite sufficient structure to rebut § 112, ¶6 presumption); Biomedino, LLC v. Waters Techs. Corp., 490 F.3d 946, 950 (Fed. Cir. 2007) (concluding that "control means" did not rebut § 112, ¶6 presumption because it could not be implied that "control" meant "controller"). A structural term used in the claim language is sufficient even if the claim term used to designate structure covers a broad class of structures by their function. Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1359-60 (Fed. Cir. 2004). Whether a claim limitation is a means-plus-function limitation, like all other claim construction issues, is a question of law. Id. at 1358.

If the Court concludes that a claim limitation is a means-plus-function element, it must then determine both what the claimed function is and what structures are disclosed to perform that function. Biomedino, 490 F.3d at 950. The structures disclosed in the specification must be clearly linked with the claimed function in order to qualify as corresponding structures. Id.

A. Claim Construction Background and Objections

On August 31, 2006, Judge Manning granted the Defendants' Motion for a Markman hearing for the purposes of claim construction, and referred the matter to Magistrate Judge Valdez. (See R. 120.) After extensive briefing and a hearing, Magistrate Judge Valdez issued a Report and Recommendation. (See R. 191.) The Defendants objected to the Report and Recommendation and on June 11, 2008, Judge Manning largely adopted the recommendations of Magistrate Judge Valdez. (See R. 238.)

Despite these prior Markman proceedings, the parties argued before Special Master Harmon that the construction of several limitations of the asserted patent claims remained in dispute. Specifically, the parties dispute the following terms: (1) the "article feeder element" term of claims 2 and 6-8; (2) the "means for providing signals indicative of the position of said article feeder element" term of claim 2; (3) the "means for providing an output signal to said control means indicative of the position of said output member of said variable speed motor in said conveyor drive means" element of claim 6; (4) the "means for providing an output signal to said control means indicative of the position of said output member of said variable speed motor in said one of said article feeder means" element of claim 6; (5) the "control means" element of claims 2, 6, and 7; and (6) the "control means" element of claim 21. The Defendants also reassert an argument rejected by Judge Manning as to the necessity of an algorithm for the "control means" element of claim 1.

Special Master Harmon found that the "article feeder element" term of claims 2 and 6-8 did not need further construction. He construed the "means" clauses in claims 2 and 6 as "sensors" for providing the recited functions. Special Master Harmon concluded that the "control means" element of claims 2, 6, and 7 do not need further construction. Special Master Harmon also construed the "control means" element in claim 21 as "a main controller, such as a microcomputer, connected to the sheet material feed controllers, and equivalents thereof." Finally, he rejected the Defendants' argument as to the necessity of an algorithm, concluding, as did Magistrate Judge Valdez and Judge Manning, that the algorithms described are not necessary to perform the recited functions.

Special Master Harmon also went beyond the parties' arguments and recommended that the Court reverse Judge Manning's construction of "conveyor drive means" in claims 7 and 9, and "sensor means" in claim 1, 20, and 24.*fn4 Specifically, Special Master Harmon found that these two terms should be construed as means-plus-function clauses. Special Master Harmon also sua sponte recommended modifying the construction of claims 1 and 21 by substituting the phrase "such as a microcomputer" for the phrase "preferably a microcomputer." Finally, he construed the "control means" term of claim 5 as "a plurality of sheet material feeder controllers, such as microcomputers, at least one of which includes a feed adjust function, and equivalents."

Goss objects to Special Master Harmon's suggestion that the Court overrule Judge Manning's construction of "sensor means" and "conveyor drive means." The Defendants' object to Special Master Harmon's construction of the phrase "article feeder element" in claims 2 and 6-8, and to his construction of several clauses in claims 2 and 6. Finally, they object again to the conclusion that the algorithms described are not necessary to perform the recited functions.

B. Claim Construction of the '724 patent

In the interest of clarity, the Court will address any disputed claim terms in a claim by claim analysis. Because some terms are used consistently in other asserted claims, the initial discussion and resolution of that construction will apply to all subsequent uses of that claim term. Additionally, any terms that are not addressed will be given their ordinary meaning.

i. Claim 1

The parties bring two objections to claim 1: (1) Goss objects to Special Master Harmon's decision to sua sponte change the construction of the "conveyor drive means" clause; and (2) the Defendants object to Special Master Harmon's rejection of their argument as to the necessity of an algorithm for the "control means" element.

a. "Conveyor Drive Means"

During claim construction, Magistrate Judge Valdez construed the term "conveyor drive means" as simply a "drive for the conveyor." Magistrate Judge Valdez concluded that this was not a means-plus-function term because the claim recites sufficient structure for performing the recited function. Neither Goss nor the Defendants objected to this construction and it was adopted by Judge Manning. Although none of the parties raised, briefed, or argued the issue before Special Master Harmon, he nevertheless recommended that the Court overrule Judge Manning's construction of the term "conveyor drive means." Goss objects to this new construction.

As discussed above, while there is a presumption that a claim element that uses the word "means" is a means-plus-function term, that presumption can be rebutted if the claim element includes sufficient structure for the claimed function. See TriMed, Inc. v. Stryker Corp., 514 F.3d 1256, 1260 (Fed. Cir. 2008). Here, the claim language "conveyor drive" provides sufficiently definite structure to overcome the means-plus-function presumption. The structure is a "drive," that includes a "variable speed motor," or "a motor." (see U.S. Patent No. 6,082,724 col. 14 ll. 48-65; col. 19-20 ll. 25-32, 1-30.) Thus, the Court sustains Goss's objection to Special Master Harmon's recommendation to construe the term as a means-plus-function limitation and adopts Judge Manning's construction of the term.

b. "Control Means"

The Defendants object to Special Master Harmon's conclusion that the "control means" limitation does not necessarily include an algorithm. In their Objections, the Defendants argue for the fourth time that WMS Gaming Inc. v. Int'l Game Tech., 184 F.3d 1339 (Fed. Cir. 1999), and Aristocrat Techs. Australia Pty Limited v. Int'l Game Tech., 521 F.3d 1328 (Fed. Cir. 2008) compel a construction of "control means" that requires an algorithm. This construction has been rejected by Magistrate Judge Valdez, Judge Manning, and now Special Master Harmon.

The WMS Gaming line of cases holds that a general purpose computer alone cannot provide sufficient structure for a means-plus-function claim. See WMS Gaming, 184 F.3d at 1348. Instead, what must be claimed is a "special purpose computer," which is what a general purpose computer becomes when an appropriate algorithm is used. Id. at 1349. Here, however, a controller is a known structure that is a type of special purpose computer. See, e.g., COMPREHENSIVE DICTIONARY OF ELECTRICAL ENGINEERING, 139 (Phillip A. Laplante ed., CRC Press 1999) ("Controller -- (1) the entity that enforces the desired behavior-as specified by the control objectives-of the controlled process by adjusting the manipulated inputs."). Specifically, as Judge Manning previously noted, these controllers may not even require any algorithms at all if they consist of only circuitry to perform their specific purpose. (R. 320 at 14.) Magistrate Judge Valdez, Judge Manning, and Special Master Harmon have all addressed this issue at length and all three have concluded that no algorithm needs to be included in the structure for the construction of the term "control means." The Defendants' fourth attempt to challenge the construction of "control means" is unpersuasive. Therefore, the Court overrules the Defendants' objection to the construction of this term.

c. "Such as microcomputer"

Special Master Harmon also recommended that the Court modify the construction of claims 1 and 21 by substituting the phrase "such as a microcomputer" for the phrase "preferably a microcomputer." Because none of the parties object, the Court adopts that recommendation.

Having resolved these issues, claim 1 now reads:

1. An apparatus for use in forming sheet material assemblages, said apparatus comprising: a conveyor having a plurality of sheet material receiving locations [an apparatus that carries materials from place to place that contains multiple positions where sheet material is fed]; a plurality of article feeder means [article feeders or apparatuses that feed sheet material articles to the receiving locations on the conveyor] disposed along said conveyor for feeding sheet material articles to said receiving locations, each one of said article feeder means includes a variable speed motor which varies the speed of operation of said one article feeder means; conveyor drive means [a drive for the conveyor] for driving said conveyor to move said sheet material receiving locations relative to said plurality of article feeder means, said conveyor drive means includes a variable speed motor which varies the speed of operation of said conveyor; and control means [Structure: "a main controller, such as a microcomputer, and a plurality of sheet material feed controllers, such as microcomputers, which are connected to the main controller, and equivalents thereof"] for varying the speed of operation of said variable speed motors in said plurality of article feeder means and the speed of operation of said variable speed motor in said conveyor drive means.

ii. Claim 2

Special Master Harmon concluded that the "article feeder element" term and the "control means" element of claim 2 did not need further construction. He construed the "means for" clauses in claim 2 as "sensors" for providing the recited functions. Because none of the parties object to Special Master Harmon's decision that the "control means" element did not need further construction, the Court adopts that conclusion. The Defendants do, however, object to Special Master Harmon's conclusions as to the "article feeder element" term and the "means for" clauses.

a. "Means For Providing Signals Indicative of the Position of Said Article Feeder Element"

The Defendants object to Special Master Harmon's construction of the "means for providing signals indicative of the position of said article feeder element" clause in claim 2 as a "sensor" for providing the recited function. As discussed above, the Court presumes that the use of the term "means for" indicates a § 112, ¶6 limitation. See Net MoneyIN, 545 F.3d at 1366. The claim must provide sufficient structure to rebut this presumption. See id. Claim 2 requires "means for providing signals indicative of the position of said article feeder element." This clause does not include any specific structure to perform the means claimed. Thus, Section 112, ¶6 applies and the Court will construe this clause accordingly. See id. As such, the Court rejects Special Master Harmon's alternative construction of the "means for" language in Claim 2 and sustains the Defendants' objection to this construction.

Having concluded that this clause is a means-plus-function limitation, the Court must now determine both what the claimed function is and what structures are disclosed to perform that function. Biomedino, 490 F.3d at 950. The structures disclosed in the specification must be clearly linked with the claimed function in order to qualify as corresponding structures. Id. The function required in the means-for clause in claim 2 is "providing signals indicative of the position of said article feeder element." For a structure to qualify as an associated structure for a means-plus-function element, that structure must be clearly linked in the specification as performing that function. See B. Braun Med., Inc. v. Abbot Labs., 124 F.3d 1419, 1424-25 (Fed. Cir. 1997) (holding that although a structure is disclosed in the specification, mere disclosure alone is not sufficient for a clear link); see also Medtronic, Inc. v. Adv. Cardiovascular Sys., Inc., 248 F.3d 1303, 1313 (Fed. Cir. 2001) (even though structure is capable of performing function, if it is not clearly linked, it is not a corresponding structure). According to Goss, the structures disclosed within the specification to perform this function are the "feed motor position sensor," such as an encoder, or the "feeder sensor assembly," such as a home position proximity sensor. The Defendants, however, object to the inclusion of "feed motor position sensor" as a structure for performing the function claimed because it does not indicate the position of the article feeder element.

While the Defendants are incorrect that the feed motor position sensor cannot indicate the position of the article feeder element, the Court finds that the specification has not clearly linked the feed motor position sensor to the claimed function. Both Goss and Special Master Harmon agree that the rotation of the feed motor and the rotation of the article feeder element are mechanically linked. Thus, any rotation by the feed motor results in a defined, measurable rotation of the article feeder element. Nevertheless, while it makes sense logically that the feed motor position sensor is capable of determining the position of the article feeder element, that sensor is not clearly linked in the specification as performing the function claimed by the "means for" clause. See Medtronic 248 F.3d at 1313. The only structure specifically linked to the claimed function is the "feeder sensor assembly." Thus, the Court construes the structure for the clause "means for providing signals indicative of the position of said article feeder element" as a feeder sensor assembly, such as a home position proximity sensor, as disclosed in the '724 patent, and equivalents thereof.

b. "Article Feeder Element"

The Defendants also object to Special Master Harmon's decision not to construe the term "article feeder element" because they believe that the term requires means-plus-function treatment. Because the term does not include the word "means," this Court presumes it is not a means-plus-function claim element. See, e.g., Net MoneyIN, 545 F.3d at 1366.

The Defendants' primary argument is that the use of the term "element" in "article feeder element" cannot provide sufficient structure to avoid means-plus-function treatment. While terms like mechanism, device, and element alone do not provide sufficient structure to avoid means-plus-function treatment, an adjectival modifier to those terms may provide sufficient structure. See Welker Bearing, 550 F.3d at 1096-97 (holding "mechanism for moving said finger" did not disclose sufficient structure to avoid means-plus-function treatment); Massachusetts Inst. of Tech. & Elecs. for Imaging, Inc. v. Abacus Software, 462 F.3d 1344, 1354 (Fed. Cir. 2006) (holding that "color selection mechanism" did not disclose sufficient structure to avoid means-plus-function treatment since the adjective "color selection" was not defined in the specification, had no dictionary definition, and had no general understanding in the art); but see Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1583 (Fed. Cir. 1996) (holding "detent mechanism" disclosed sufficient structure to avoid means-plus-function treatment since the term "detent" was an understood structure in the art). When the term "element" is used, the focus turns to whether sufficient structure is disclosed in the adjectival modifiers or elsewhere in the claim. See Welker Bearing, 550 F.3d at 1096-97.

Special Master Harmon looked to Magistrate Judge Valdez's construction for the term "article feeder means" for guidance on whether "article feeder" recited sufficient structure to avoid means-plus-function treatment. He concluded that there was sufficient structure even when the word "element" is used. In the context of the claims, "article feeder element" refers to a structure within that article feeder means that is moved by a variable speed motor to feed sheet material articles. U.S. Patent No. 6,082,724 col. 15 ll. 1-2. This is a definite structure similar to the "detent mechanism" in Greenberg and is sufficient to avoid means-plus-function treatment. Thus, ...


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