United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick, United States District Judge
Industries, Inc. makes Whizard® Trimmers, rotary trimming
knives and accessories used for the commercial trimming of
meat. Bettcher owns the patents relating to the housing and
blades for these items. Hantover, Inc. also makes replacement
parts for the Bettcher knives. It is Hantover's
manufacturing and sale of these replacement parts which
Bettcher claims infringes its patents and violates a 2007
settlement agreement between Bettcher and Heartland
Fabrication & Machine, Inc. regarding some of the same
patents at issue here. Hantover's alleged infringing
items are distributed by Heartland. Although initially named
as a Defendant in this litigation, on January 7, 2015,
Heartland was dismissed from this litigation for lack of
personal jurisdiction. (Doc. No. 28).
asserts five claims of patent infringement and breach of the
2007 settlement agreement against Hantover. The patents at
Patent Nos. 6, 769, 184; 7, 000, 325; and 8, 074, 363
Patent Nos. 6, 662, 452; and 6, 978, 548 (Housing).
parties briefed the issues on claim construction (Doc. Nos.
33, 34, 35, 36, and 41) and submitted their Joint Claim
Construction and Prehearing Statement (Doc. No. 37). I
conducted a Markman hearing on July 20, 2015 and granted
leave for post-hearing briefing to address an issue raised
anew at the hearing. That supplemental briefing (Doc. Nos.
44, 46, and 47) is also before me. Having considered the
arguments of the parties presented in both their memoranda
and at the hearing, I make the following determinations.
Applicable Legal Standard
meaning of patent claim terminology is a matter for the court
and not the trier of fact. See Markman v. Westview
Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995),
aff'd 517 U.S. 370 (1996). As the claims of the
patent, not its specifications, mark the measure of the
invention, the Federal Circuit teaches that “analysis
must begin and remain centered on the claim language itself,
for that is the language the patentee has chosen to
‘particularly point [ ] out and distinctly claim [ ]
the subject matter which the patentee regards as his
invention.'” Innova/Pure Water v. Safari Water
Filtration, 381 F.3d 1111, 1116 (Fed. Cir. 2004)
Federal Circuit has consistently held “words of a claim
‘are generally given their ordinary and customary
meaning.'” Phillips v. AWH Corp., 415 F.3d
1303, 1312 (Fed. Cir. 2005) (quoting Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.
1996)). “[O]rdinary and customary meaning of a claim
term 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.” Id. at 1313.
ascertaining the ordinary and customary meaning, a court
gives priority to the intrinsic evidence.
Vitrionics, 90 F.3d at 1582. Consideration of the
intrinsic record includes the claims themselves, the patent
specification and prosecution history through the lens of one
of ordinary skill in the art at the time of the invention. As
stated by the Court in Phillips, “claims
‘must be read in view of the specification of which
they are a part, ' as ‘it is the single best guide
to the meaning of a disputed term.'” 415 F.3d at
1315. (Quotations omitted).
may also consider extrinsic evidence which includes a variety
of external resources such as testimony from the inventor or
an expert as well as dictionaries and treatises. Id.
at 1317. However, extrinsic evidence is given less
significance than intrinsic evidence to determine “
‘the legally operative meaning of claim
language.'” Id. (Citations omitted).
Phillips Court also cautioned that “[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.
this general framework in mind, I now turn to the claims in
proposes the term “frustoconical” be given
the same meaning as adopted by Judge Zouhary in related
litigation wherein he defined this to be “the
shape of a portion of an exterior surface of a cone. Cone
means a solid generated by a straight line, one end of which
remains fixed while the other end moves around a closed
curve.” (Doc. No. 33-8, p.4).
proposes a construction which states “having the shape
of the exterior surface of a cone with the narrow end or tip
removed.” Hantover contends this construction is
consistent with the dictionary definition and consistent with
the drawings illustrating frustoconical bearing surfaces in
the ‘325 patent.
contends that its proposed definition provides clarity on the
definition of a cone and prevents confusion down the road on
this issue. In contrast, Hantover argues in favor of a
simpler description which does not define the word cone
because its inclusion has the potential to confuse the jury.
addition, Bettcher argues against use of the description
“with the narrow end or tip removed” because the
drawing depicting the alleged infringing blade does not show
the tip removed and that also runs the risk of confusing the
sides are at odds over the definition of a cone within the
description and Bettcher advocates exclusion of
Hantover's language regarding removal of the narrow end
or tip. As there is agreement on both sides that neither the
blade patents nor the prosecution history limit the
definition, I turn to extrinsic resources to aid in this
Dictionary defines “frustoconical” as “of
the shape of a frustum of a cone.” Webster's Third
New International Dictionary 917 (3d ed. 19). This same
dictionary defines “frustum” as:
1: the part of a cone-shaped solid next to the base and
formed by cutting off the top by a plane parallel to the
base; also : the part of a solid (as a cone or
pyramid) intersected between two planes that are either
parallel or sometimes inclined to each other 2: one of the
drums of the shaft of a column.
Dictionary of Mechanical Engineering 84 (4th ed.
1996 or 2006) defines cone as:
(a) A solid generated by a straight line, one end of which
remains fixed while the other moves around a closed curve.
right circular cone A cone formed when the closed
curve is a circle. All transverse sections are circular. The
fixed point is the “apex, ” the centre line is
the “axis, ” and the constant angle between the
moving line and the centre line is the “cone
(b) The stepped driving pulley used in belting on a machine
tool for the governing of different speeds, sometimes called
the “speed cone.”
(c) The conical race for balls in certain types of
these resources and the parties' arguments, while
Hantover's definition is simpler, I do not find the
definition of a cone will confuse but instead will be of
guidance for the trier of fact.
I find the following to be an appropriate definition of the
term “frustoconical”: “having the shape of
a portion of the exterior surface of a cone with the narrow
end or tip removed; a cone being a solid generated by a
straight line, one end of which remains fixed while the other
end moves around a closed curve.”
parties disagree over construction of the terms characterized
by Bettcher to include “bearing face, ”
“bearing surface, ” and “bearing location,
” regarding the blade patents. The parties'
definitions are set forth as contained in Exhibit A to their
Joint Construction and Prehearing Statement:
(first and second) bearing surface
“the area of a part capable of supporting
mutual contact with another part”
the portions of the annular bearing race that
engage or contact the bearing structure
“the area of a part capable of supporting
mutual contact with another part”
areas where the blade and blade support member are
in engagement or contact with each other
(Doc. No. 37 at pp. 6-10).
difference between the two definitions centers on whether
Bettcher's “capable of supporting mutual
contact” definition is the proper construction versus
Hantover's requirement “to engage or contact the
I first turn to consider the intrinsic evidence. In looking
at the patent specifications, each abstract describes,
“[t]he blade and blade supporting structure are
engagable along bearing contact locations. . .”. (Doc.
Nos. 33-2, p. 1; 33-3, p.1; 33-4, p.1). The same holds true
for language under the summary section. (Doc. Nos. 33-2, p.
7; 33-3, p.7, 33-4, p. 8). The specification of the
‘325 patent offered by Hantover as evidence in support
its position uses the terms “engaged” and
FIGS. 10-14 are illustrative of a modified
knife that embodies the present invention. The knife of FIGS.
10-14 is constructed like the knife except
for the blade support structure 120 and the
blade 122. Accordingly, only the blade
support structure 120 and the blade
122 are illustrated and described in detail
to the extent they differ from the blade support structure
16 and the blade 20.
Reference should be made to FIGS. 1-9 and
the associated description for details of the remaining parts
of the knife of FIGS. 10-14. Parts of the
blade support structure 120 and blade
122 that are the same as parts of the blade
support structure 16 and blade
20 are indicated by corresponding primed
The blade support structure 120 supports the
blade 122 for rotation about its central
axis 124 with the blade and blade support
structure engagable at least at spaced apart bearing
locations proceeding in the direction of the axis
124. The axially spaced bearing locations
suspend the blade so that the blade and blade housing remain
spaced apart except for the bearing locations. See FIG.
The blade support structure 120 is
constructed substantially like the blade support structure
16 except that its outer peripheral wall
130 defines a series of circumferentially
spaced apart, radically thickened wall sections
132. The wall sections 132
define radically inwardly facing frustoconical bearing faces
133, 134 that are
substantially centered on the axis 124 and
converge proceeding in opposite axial directions. These
bearing faces are engaged by bearing bead surfaces on the
blade along narrow lines of contact. In the preferred
embodiment the bearing faces 133,
134 form walls of inwardly opening grooves
formed in each thickened wall section 132.
The portions of the peripheral wall 130
between the thickened sections are relieved and spaced away
from the blade bead surfaces at all times (FIG.
(Doc. No. 33-3 at pp. 9-10) (emphasis added).
of the ‘184 patent also references bearing locations in
the following manner:
1. A power operated knife comprising a
handle, headpiece, blade support structure, and an annular
blade member supported for rotation about a central axis by
said blade support structure, said blade support structure
comprised of a blade support member extending substantially
continuously about said blade member, said blade member and
blade support member engagable at least at three bearing
locations spaced apart circumferentially proceeding about
said axis each of said bearing locations comprising first and
second lines of bearing contact spaced apart in the direction
of said central axis said axially spaced lines of ...