The opinion of the court was delivered by: Judge Ronald A. Guzman
MEMORANDUM OPINION AND ORDER
Plaintiff Winvic Sales, Inc. ("Winvic") has sued Defendant ValueVision Media, Inc., d/b/a ShopNBC ("ShopNBC") for alleged infringement of U.S. Patent No. 6,719,443 ("the '443 Patent"), which describes an electrically powered flame simulator, or in other words, a flameless candle. The case is before the Court for construction of the following claim terms: (1) "the upper portion having a concave surface defining a recess therein,"*fn1 (2) "substantially in the recess" and (3) "chamber."
On February 27, 2002, inventors Robert A. Gutstein ("Gutstein") and Monita Liu filed patent application number 10/084,272 ("the '272 Application") for an electrically illuminated flame simulator. (See Compl., Ex. A, '443 Patent ("'443 Patent") at 1.) The PTO rejected the application as being anticipated by U.S. Patent No. 4,510,556 ("Johnson"). (See Def.'s Claim Construction Br. 10.) In response, the applicants amended Claim 21 to include the terms that are now disputed. (Id.) On April 13, 2004, the amended application issued as U.S. Patent No. 6,719,443. (See '443 Patent at 1.) Winvic owns all legal rights in the '443 Patent through assignment. (Compl. ¶ 8.)
Winvic asserts that ShopNBC infringes Claim 21 of the '443 Patent, therefore only terms in this claim are currently disputed by the parties. (Id. ¶ 1; Def.'s Claim Construction Br. 1.) Independent Claim 21 of the '443 Patent reads as follows with the three disputed terms emphasized:
A candle-like device having an electrically powered flame simulator comprising: a candle-like body having an upper portion, a lower portion and a chamber therein, the upper portion having a concave surface defining a recess therein; a flame simulator having at least two light sources located substantially in the recess of the candle-like body, an integrated circuit within the candle-like body and electrically connected to the light sources for intermittently illuminating at least one of the light sources independently of other light sources such that the light sources together provide the effect of a flickering movement, and a power source in the chamber of the candle body for providing power to the integrated circuit. (See '443 Patent, Claim 21, Col. 10, ll. 58-67 & Col. 11, ll. 1-4 (emphasis added).)
Claim construction is a question of law to be decided by a judge. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 391 (1996). In interpreting the meaning of language in a claim, "the court should first look to the intrinsic evidence," which consists of the patent claims, the specification and the prosecution history. Vitronics Corp. v. Conceptronics, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). If an analysis of the intrinsic evidence alone resolves the meaning of any disputed claim terms, then "it is improper to rely on extrinsic evidence" in construing such terms. Id. at 1583. Only when the intrinsic evidence alone does not resolve ambiguities may the court look to extrinsic evidence, including expert testimony and dictionary definitions, in interpreting the disputed claim language. Id.
The words of the claim should generally be given the ordinary and customary meaning that they "would have to a person of ordinary skill in the art in question at the time of the invention." Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005). To determine the ordinary and customary meaning, the Court must first consider the intrinsic evidence. Id. at 1316-17. However, ultimately, "[t]he construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." Id. at 1316.
A. "The Upper Portion Having a Concave Surface Defining a Recess Therein"
The parties first dispute the meaning of the phrase "the upper portion having a concave surface defining a recess therein." "[I]f an apparatus claim recites a general structure without limiting that structure to a specific subset of structures, we will generally construe the term to cover all known types of that structure that the patent disclosure supports." CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002) (quotations omitted). "When consulting the specification to clarify the meaning of claim terms, courts must take care not to import limitations into the claims from the specification." Abbott Labs v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009). Claims are not limited by embodiments or figures disclosed in the specification "unless the patentee has demonstrated a clear intention to limit the claim scope 'using words or expressions of manifest exclusion or restriction.'" Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898 (Fed. Cir. 2004) (quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002)).
Winvic contends that a concave surface is not limited to simply being round but that the term may also characterize a surface with square edges such as a concave polygon. Winvic argues that the claim should be construed to mean "the upper portion of the candle-like body having a surface that is hollowed inward or rounded inward and thereby defining a recess therein." (Pl.'s Claim Construction Br. 14.) ShopNBC contends that a concave surface cannot have square edges, but rather must always be rounded or curved. ShopNBC argues that "the upper portion having a concave surface defining a recess therein" should be construed to mean "the surface of the upper portion of the candle like body is hollowed inward or rounded inward, like the inside of a bowl, as shown in Figures 1, 3, and 9 of the '443 patent." ShopNBC supports its assertion by pointing out that all of the figures of the '443 Patent have a "bowl-like concave surface." (Def.'s Claim Construction Br. 9-10.) However, ShopNBC has not offered any evidence that shows that a person of ordinary skill in the art understands the term "concave" to be synonymous with "bowl-like."
In Liebel-Flarsheim, the court held that "[a]lthough all the embodiments described in the common specification of the '669 and '261 patents include a pressure jacket, the written description does not contain a clear disavowal of embodiments lacking a pressure jacket." 358 F.3d at 908. Similarly, in the instant case, although Figures 1, 3 and 9 of the '443 Patent show recesses that are curved inward, that does not mean that every embodiment must be curved inward. (See '443 Patent, Figs. 1, 3, and 9.) Furthermore, Figures 1, 3 and 9 were not intended to depict the shape that the hollowed recess in the upper portion must embody, but rather, to depict various components of the invention and some possible configurations of light sources.*fn2
Therefore, neither the claims nor the specification indicate that the '443 Patent must have a hollowed ...