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Accordant Energy, LLC v. Vexor Technology, Inc.

United States District Court, N.D. Ohio, Eastern Division

November 21, 2017

Accordant Energy, LLC, Plaintiff,
Vexor Technology, Inc., et al., Defendant.



          PATRICIA A. GAUGHAN, United States District Chief Judge

         This matter is before the Court upon the parties' claim construction briefs. This is a patent case. The disputed claims are construed as follows:

1. “carbon content, ” “hydrogen content, ” “moisture content, ” “sulfur content, ” chlorine content, ” “HHV, ” “ash content, ” and “O/C ratio:” ordinary meaning;
2. “substantially free/ substantially no” means “no more than 0.01 wt.% of the material is present;”
3. “fiber” will be construed after further briefing;
4. “engineered fuel feed stock” means “an engineered material used as a fuel or as a raw material for conversion into other fuels;”
5. “selecting:” ordinary meaning;
6. “processed industrial waste stream” means “a waste stream in which solid waste generated at industrial establishments has been processed by having been sorted according to types of solid waste components;”
7. “noncombustible waste” means “waste that does not readily gasify in gasification systems and does not give off any meaningful contribution of carbon or hydrogen into the synthesis gas generated during gasification;”
8. “additional fuel components:” ordinary meaning.


         Plaintiff Accordant Energy, LLC, brings this lawsuit against defendants Vexor Technology, Inc. and Vexor Technology, LLC[1] (collectively, “defendant”) alleging infringement of United States Patent No. 9, 062, 268 (“'268 Patent”) and United States Patent No. 9, 523, 051 (“'051 Patent”). Both patents are directed at engineered fuel feed stock. The parties ask that the Court construe a number of claim terms. In addition, defendant argues that three of the claim terms are indefinite rendering the patents-in-suit invalid. The parties agree that for purposes of claim construction the Court need not consider both specifications. Rather, consideration of the specification for the '268 Patent is sufficient.


         A. Invalidity

         Here, defendant argues that a number of claim terms are indefinite, thus rendering the patents invalid.

         In Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120 (2014), the Court clarified the standard to be applied in assessing indefiniteness. Prior to Nautilus, a claim passed § 112's threshold provided the claim was “amenable to construction” and not “insolubly ambiguous” as construed. There is “no serious question that Nautilus changed the law of indefiniteness. This was indeed the very purpose of the Nautilus decision.” Dow Chemical Co. v. Nova Chemicals Corp. (Canada), 803 F.3d 620 (Fed. Cir. 2015). The Supreme Court first noted that § 112 requires a “delicate balance.” On the one hand, “the definiteness requirement must take into account the inherent limitations of language. Some modicum of uncertainty, the Court has recognized, is the price of ensuring the appropriate incentives for innovation.” Nautilus, 134 S.Ct. at 2128 (internal citations and quotations omitted).

At the same time, a patent must be precise enough to afford clear notice of what is claimed, thereby apprising the public of what is still open to them. Otherwise there would be a zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement claims. And absent a meaningful definiteness check, we are told, patent applicants face powerful incentives to inject ambiguity into their claims. Eliminating temptation is in order and the patent drafter is in the best position to resolve the ambiguity in patent claims.

Nautilus, 134 S.Ct. at 2129.

         To reconcile these competing interests, the Court held that § 112 ¶ 2 requires “that a patent's claims, viewed in light of the specification and prosecution history, inform those skilled in the art about the scope of the inventions with reasonable certainty. The definiteness requirement, so understood, mandates clarity, while recognizing that absolute precision is unattainable.” Id.

         Nautilus, however, did not alter the burden of proof with respect to indefiniteness arguments or other aspects of the analysis. Rather, the burden of proof remains with the party asserting indefiniteness to show by clear and convincing evidence that the claim fails § 112's requirements as outlined in Nautilus. See, Cox Communications, Inc. v. Sprint Communications Co., 838 F.3d 1224, 1228 (Fed. Cir. 2016)(“Any fact critical to a holding on indefiniteness ... must be proven by the challenger by clear and convincing evidence.”). Moreover, definiteness must be “evaluated from the perspective of someone skilled in the relevant art...from the viewpoint of a person skilled in the art at the time the patent was filed.” Nautilus, 134 S.Ct. at 2128. In addition, in “assessing definiteness, claims are to be read in light of the patent's specification and prosecution history.” Id.

         B. Claim construction

         “[T]he interpretation and construction of patent claims, which define the scope of the patentee's rights under the patent, is a matter of law exclusively for the court.” Markman v. Westview Instruments, 52 F.3d 967, 970-71 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). “To ascertain the meaning of claims, [the court considers] three sources: The claims, the specification, and the prosecution history.” Markman, 52 F.3d at 979. The words of a claim are generally given their ordinary and customary meaning. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005). The ordinary and customary meaning is to be determined from the perspective of one of ordinary skill in the art at the time of the invention. Id. at 1313. “Importantly, the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.” Id.

         Accordingly, the court first looks to the claim itself, read in view of the specification. Id. at 1315 (The specification “is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.”). However, while the court may look to the written description to define a term already in a claim limitation, the court may not read a limitation from the written description into a claim. Id. at 1323.

         As stated above, the prosecution history should also be considered by the court when conducting claim construction. Phillips, 415 F.3d at 1317. The “prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be.” Id.; see also Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1384 (Fed. Cir. 2005) (“The purpose of consulting the prosecution history in construing a claim is to exclude any interpretation that was disclaimed during prosecution.”). Claims may not be construed one way in order to obtain their allowance and in a different way against accused infringers. Chimie, 402 F.3d at 1384. Moreover, the prosecution history of a parent application applies with equal force to a later patent that contains the same claim limitation. Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 980 (Fed. Cir. 1999); see also Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1349 (Fed. Cir. 2004) (“the prosecution history of one patent is relevant to an understanding of the scope of a common term in a second patent stemming from the same parent application”). “The relevant inquiry is whether a competitor would reasonably believe that the applicant had surrendered the relevant subject matter.” Cybor Corp. v. Fas Techs., Inc., 138 F.3d 1448, 1457 (Fed. Cir. 1998).

         All other evidence is considered extrinsic and may be relied upon by the court in its discretion. Markman, 52 F.3d at 980; Phillips, 415 F.3d at 1317. However, extrinsic evidence is less reliable than intrinsic evidence. Phillips, 415 F.3d at 1318. Thus, the court should restrict its reliance on extrinsic evidence to educating itself regarding the field of invention or to determining what a person of ordinary skill in the art would have understood the claim terms to mean. Id. at 1319; see also Markman, 52 F.3d at 986 (“It is not ambiguity in the document that creates the need for extrinsic evidence but rather unfamiliarity of the court with the terminology of the art to which the patent is addressed.”). Extrinsic evidence may not be used for the purpose of varying or contradicting the terms of the claims. Markman, 52 F.3d at 981.

         As a result, excessive reliance should not be placed on dictionaries. Phillips, 415 F.3d at 1321. “The main problem with elevating the dictionary to such prominence is that it focuses the inquiry on the abstract meaning of words rather than on the meaning of claim terms within the context of the patent. ... [H]eavy reliance on the dictionary divorced from the intrinsic evidence risks transforming the meaning of the claim term to the artisan into the meaning of the term in the abstract, out of its particular context, which is the specification.” Id.

         C. The claim terms at issue

         With these standards in mind, the Court turns to defendant's arguments pertaining to indefiniteness, as well as the parties' proposed claim constructions.

1. “carbon content, ” “hydrogen content, ” “moisture content, ” “sulfur content, ” chlorine content, ” “HHV, ” “ash content, ” and “O/C ratio”

         The patent provides as follows:

1. A method of producing an engineered fuel feed stock from a processed waste stream, the method comprising the steps of:
a) selecting a plurality of components from a processed waste stream which components in combination have chemical molecular characteristics comprising: a carbon content of between about 30 wt% and about 80 wt%, and a hydrogen content of between about 3 wt% and about 10 wt%
2. The method of claim 1, wherein the engineered fuel feed stock has a moisture content of between about 10 wt% and about 30 wt%.

(Emphasis added).

         The remaining terms are set forth in a similar fashion in the additional dependent claims.

         Defendant argues that these terms are indefinite because the patent does not identify the proper unit of measurement, when the measurement is made, or how the measurement is accomplished. According to defendant, the specification provides two possible standards of measurement, i.e., weight and volume. In addition, the specification fails to identify the type of measurement to be used. It appears that defendant argues that there are two different measurements that could be taken. Namely, the measurement could be taken on a “dry” basis or on an “as received basis.” Because the patent does not disclose which of these ...

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