United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Castillo, United States District Court Chief Judge
Ventriloscope ("Plaintiff) filed this suit against MT
Tool and Manufacturing ("Defendant") for alleged
infringement of U.S. Patent No. 7, 645, 141 ("the
'141 Patent"). (R. 1, Compl.) Generally speaking,
the invention disclosed and claimed in the ' 141 Patent
is a device to help train physicians and other medical
professionals in the use of "auscultation" devices
(e.g., stethoscopes) to evaluate and diagnose
patients. The language of the claims defines the scope of a
patent, and here, as happens in most patent infringement
cases, the parties dispute the meaning of certain terms in
the claims. Specifically, the parties dispute whether the
terms "auscultation device" and
"stethoscope" include simulation or
"dummy" devices that look like stethoscopes (or
other auscultation devices) but cannot function as such. They
also dispute whether the terms "operator, "
"user, " and "patient"-which appear
together in certain claims-refer to three distinct persons or
instead refer simply to different roles. The parties have
submitted competing briefs urging their respective
interpretations of these terms, and the Court construes them
as set forth below.
'141 Patent issued from non-provisional U.S. Patent
Application Serial No. 11/523, 224 ("the '224
Application") and relates to an "arrangement for
auscultation training." (R. 68-1 at 2, '141 Patent,
at , ; see also id col. 1 ll. 41-42
("The present application discloses an arrangement and
method for auscultation training.").) As defined in the
patent specification, auscultation is "the act of
listening to sounds within the body as a method of
diagnosis." (Id. col. 1 ll. 13-14.) According
to the specification, a stethoscope is an example of an
auscultation device, as it may be used to "listen to
internal sounds in the human body, such as for example heart
sounds, breathing (breath sounds), intestinal noises, and
blood flow in arteries and veins." (Id. col. 1
ll. 14-18.) The specification explains as background that
"[u]sing a stethoscope or other auscultation device to
diagnos[e] a patient requires training in detecting and
identifying, .. abnormal auditory findings."
(Id. col, 1 ll. 25-27, ) "[Simulators and
mannequins are often used to train or test students on
auscultation devices, " and in order to train students
in detecting and identifying abnormal auditory findings, such
simulators and mannequins may be equipped with "a sound
generating device embedded within the body ... to produce
sounds consist[ent] with an abnormal physical condition,
which students must detect and identify." (Id.
col. 1 ll. 31-37.)
invention disclosed in the '141 Patent is an arrangement
for auscultation training that "provides for the
transmission of audio signals to an auscultation device for
medical simulation." (Id., col. 1 ll. 42-45.)
The claimed arrangement, according to the patent's
Abstract, "allow[s] for the broadcast of simulated
medical sounds to a generally, normal appearing auscultation
device for the purposes of teaching or testing using
simulated patient scenarios, while allowing for normal
person-to-person interaction between the simulated patient
and physician." (Id. at .) In one exemplary
embodiment of the invention that is described in the
specification, a transmitter "sends a wireless signal to
[an] auscultation device." (Id. col. 1 ll.
49-53.) The auscultation device, in turn, has an associated
"receiver for receiving the audio signal from the
transmitter" and a "speaker for relaying the sound
to the end user." (Id.)
principal embodiment described in the specification comprises
an audio device, an FM transmitter, and a modified standard
acoustic stethoscope. (Id. col. 3 1. 45 - col. 4 1.
5.) In this embodiment, the audio device is one capable of
generating an audio signal, such as "a compact disc
player, a cassette player, a digital audio player (e.g. MP3
player, IPod player from Apple Computers), a person[a]l
digital assistant (PDA), a computer, or other suitable
device." (Id. col. 3 II. 7-15.) The audio
device includes "an output, such as a headphone output
jack." (Id. col. 3 1. 45 - col. 4 1. 5.)
An FM transmitter "attach[es] to the audio device via a
wire that plugs into the output" of the audio device.
(Id. col. 3 ll. 50-51.) The FM transmitter can be
"similar to those used to transmit audio signal[s] from
a portable compact disc player to a[n] automobile stereo,
" however "[a]ny suitable FM radio
transmitter" could be used. (Id. col. 3 ll.
55-59.) The stethoscope, in turn, has an FM radio receiver
and a speaker mounted to it. (Id. col. 3 ll, 51-54.)
The FM receiver can attach to the stethoscope "in any
convenient location, " for example, at approximately
"the location where the tubing assembly branches to each
of the ear pieces" of the stethoscope, (Id.
col. 4 ll, 27-31.) A speaker is connected to the FM receiver
and mounted "in the space between the diaphragm and the
body portion" of the stethoscope headpiece such that it
is "concealed within the head piece assembly."
(Id. col. 4 ll. 17-21.) In this way, "sound
generated by the speaker travels through the stethoscope in
the same manner as sound generated by the diaphragm would,
thus providing a realistic simulation of an auscultatory
finding." (Id. col. 4 ll. 21-25.)
Alternatively, the FM receiver-if small enough-may be mounted
between the diaphragm and the body portion of the stethoscope
headpiece, such that both the speaker and the FM receiver
would be "concealed within the head piece assembly of
the stethoscope." (Id. col. 4 ll, 37-43.) This
exemplary embodiment is depicted in Figure 2 of the '141
(Id. fig.2.) In Figure 2, item 32 is the audio
device, 36 is the FM transmitter, 34 is the output of the
audio device to which the FM transmitter attaches via a wire
38, 40 is the stethoscope, and 42 is the FM receiver, which
is mounted at the location where the tubing assembly of the
stethoscope branches to each of the ear pieces 52 and 54.
(Id. col. 3 ll. 45-54; col. 4 ll. 27-31.) Figure 3
shows the headpiece 48 of the stethoscope of this embodiment
(Id. fig.3.) In Figure 3, 58 is the diaphragm, which
mounts to the body portion 60 of the stethoscope headpiece.
(Id. col. 4 ll. 15-17.) The sound passageway 62
connects to the tubing assembly of the stethoscope to carry
sound to the stethoscope earpieces. (Id. col. 4 ll.
13-15.) The speaker 44 is shown mounted in the space between
the diaphragm and the body of the headpiece. (Id.
col. 4 ll. 17-19.) The speaker is connected via a wire 66 to
the FM receiver (not shown in Figure 3), and the wire may be
mostly concealed within the hollow tubing of the stethoscope,
protruding from the tubing only to connect to the FM
receiver. (Id. col. 4 ll. 26-27, 32-34.).
use, the audio device is "loaded with audio files of
abnormal auscultatory findings." (Id. col. 4
ll. 53-60.) "When the user places the headpiece assembly
of the stethoscope in the proper location on the patient, an
operator of the audio device may play the appropriate audio
file." (Id. col. 5 ll. 6-8.) The signal
representing the auscultatory sound is then broadcast from
the FM transmitter to the FM receiver located on the
stethoscope, and in turn, played through the speaker mounted
within the stethoscope. "The sound transmitted through
the speaker blocks out other normally heard sounds from the
patient such that the user hears only the simulated sounds
through the stethoscope." (Id. col. 5 ll.
patent also describes and claims methods for using the
claimed apparatuses in auscultation training. Claim 1 of the
patent, for example, reads:
arrangement for auscultation training, comprising:
a signal generator capable of generating an audio signal
representing at least one sound, the signal generator being
controlled by a human operator, wherein the human operator
plays one or more appropriate audio files according to a
user's placement of a stethoscope headpiece on a patient;
a transmitter associated with the device for transmitting an
audio signal corresponding to the at least one sound; an
auscultation device, comprising a stethoscope, remote from
the transmitter, the auscultation device comprising:
a receiver adapted to receive the audio signal from the
a speaker adapted to audibly communicate the audio signal
received by the receiver to the user.
(Id. col. 5 I. 54 - col. 6 1. 7.) Claims 1 and 12
are independent claims; claims 2-11 and 13-16 are dependent
claims. (Id., col. 5 1. 54 - col. 6 1, 61.)
has filed an opening claim construction brief, (R. 68, Br.),
Plaintiff filed a responsive brief, (R. 70, Resp.), and
Defendant filed a reply, (R. 72, Reply). On May 17, 2017, the
Court ruled that it would proceed to construe the claims
without holding an evidentiary, or "Markman, "
hearing. (R. 74, Min. Entry.)
specification of a U.S. patent concludes with particularized
claims that specify "the subject matter which the
inventor . .. regards as the invention." 35 U.S.C.
§ 112(b). These claims "define the invention to
which the patentee is entitled the right to exclude."
Aventis Pharms. Inc. v. Amino Chems. Ltd., 715 F.3d
1363, 1373 (Fed. Cir, 2013) (quoting Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc)).
Claim construction is the process of adjudicating the meaning
of claim language, thereby clarifying the scope of the
invention. See Terlep v. Brinkmann Corp. ,
418 F.3d 1379, 1382 (Fed. Cir. 2005). It is "simply a
way of elaborating the normally terse claim language in order
to understand and explain, .. the scope of the claims."
Id. (citation omitted). The correct construction of
claim terms is a question of law for the Court to decide.
Warsaw Orthopedic, Inc. v. NuVasive, Inc., 824 F.3d
1344, 1350 (Fed. Cir. 2016).
longstanding principles guide claim construction. Claim terms
are generally given their "ordinary and customary"
meaning, which is "the meaning that the term would have
to a person of ordinary skill in the art in question at the
time of the invention, i.e., as of the effective filing date
of the patent application." Phillips v. AWH
Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en
banc). When construing claim terms, the Court first considers
intrinsic evidence, which consists of the words of the claims
themselves, the remainder of the specification, and the
prosecution history of the patent. Id. at 1314.
"[P]rior art cited during the examination of the
patent" is deemed part of the prosecution history and
therefore constitutes intrinsic evidence. Id. at
1317; see also Kumar v. Ovonic Battery Co., 351 F.3d
1364, 1368 (Fed. Cir. 2003) ("Our cases . .. establish
that prior art cited in a patent or cited in the prosecution
history of the patent constitutes intrinsic evidence,
"). The Court may also consider extrinsic evidence,
which consists of "all evidence external to the patent
and prosecution history, including expert and inventor
testimony, dictionaries, and learned treatises, "
Phillips, 415 F.3d at 1317 (citation omitted).
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
hierarchy of probative evidence, the specification ranks
first; it is "the single best guide to the meaning of a
disputed term" and is therefore usually dispositive.
Id. at 1315 (citation omitted). The prosecution
history is the next best source of meaning. Though it often
"lacks the clarity of the specification and thus is less
useful, " it is still highly relevant because it was
generated by the applicant in attempting to explain and
obtain the patent, and therefore provides evidence of how
both the applicant and the U.S. Patent & Trademark Office
("PTO") understood the claimed invention.
Id. at 1317.
claim language "remains genuinely ambiguous after
consideration of the intrinsic evidence, " the Court may
also consider and rely on extrinsic evidence. Bell &
Howell Document Mgmt. Prods. Co. v. Altek Sys., 132 F.3d
701, 706 (Fed. Cir. 1997), However, extrinsic evidence is
generally "less reliable" as a guide to meaning.
Phillips, 415 F.3d at 1318. Among other reasons for
its subordinate status is that "there is a virtually
unbounded universe of potential extrinsic evidence of some
marginal relevance" and "[i]n the course of
litigation, each party will naturally choose the, .,
extrinsic evidence most favorable to its cause, leaving the
court with the considerable task of filtering the useful
extrinsic evidence from the fluff." Id.
Nevertheless, extrinsic evidence may be useful. Relevant
dictionaries and treatises, for example, can be useful
because they "endeavor to collect the accepted meanings
of terms used in various fields of science and
technology." Id. Expert testimony can also be
useful-to provide background on the technology at issue,
explain how an invention works, or establish that a term has
a particular meaning in the relevant field. Id. But
"conclusory, unsupported assertions by experts as to the
definition of a claim term are not useful to a court."
Id.', see also Vitronics Corp. v. Conceptronic,
Inc., 90 F.3d 1576, 1585 (Fed. Cir. 1996) (cautioning
that "opinion testimony on claim construction should be
treated with the utmost caution, for it is no better than
opinion testimony on the meaning of statutory terms"). A
court should be cautious to avoid undue reliance on extrinsic
evidence, for that "poses the risk that [extrinsic
evidence] will be used to change the meaning of claims in
derogation of the indisputable public records consisting of
the claims, the specification and the prosecution history,
thereby undermining the public notice function of
patents." Phillips, 415 F.3d at 1319 (citation
and internal quotation marks omitted). Ultimately,
"[t]he sequence of steps used by the judge in consulting
various sources is not important; what matters is for the
court to attach the appropriate weight to be assigned to
those sources in light of the statutes and policies that
inform patent law." Id., at 1324.
parties offer competing constructions for five claim terms:
(1) "auscultation device"; (2)
"stethoscope"; (3) "operator"; (4)
"user"; and (5) "patient." The Court
addresses each in turn.