Case 2:14-cv-01645-GW-MRW Document 65 Filed 01/29/15 Page 1 of 28 Page ID #:1664
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES - GENERAL
`Case No. CV 14-1645-GW(MRWx)
`Fontem Ventures, B.V., et al. v. NJOY, Inc., et al.
`Title
`
`Date
`
`January 29, 2015
`
`Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE
`Javier Gonzalez
`None Present
`Tape No.
`Deputy Clerk
`Court Reporter / Recorder
`Attorneys Present for Plaintiffs:
`Attorneys Present for Defendants:
`None Present
`None Present
`PROCEEDINGS (IN CHAMBERS): RULINGS ON CLAIMS CONSTRUCTION
`
`The Court’s Rulings on Claims Construction is attached hereto.
`
`CV-90 (06/04)
`
`CIVIL MINUTES - GENERAL
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`Page 1 of 1
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`Initials of Preparer
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`JG
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`:
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`VMR-Ex. 1014-001
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`Case 2:14-cv-01645-GW-MRW Document 65 Filed 01/29/15 Page 2 of 28 Page ID #:1665
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`Fontem Ventures, B.V., et al. v. NJOY, Inc.; Consolidated Case No. CV-14-1645-GW(MRWx);
`Rulings on Claims Construction
`
`I. Introduction
`
`The Court is presiding over three waves of patent infringement cases filed by Fontem
`Ventures, B.V. and Fontem Holdings 1, B.V. (“Plaintiffs”) against NJOY, Inc., CB Distributors,
`Inc., Vapor Corp., FIN Branding Group, LLC, Ballantyne Brands, LLC, Spark Industries, LLC,
`Logic Technology Development, LLC, and VMR Products, LLC (“Defendants”), which have
`now all been consolidated under Case No. CV-14-1645. While filed against different defendants
`and asserting multiple patents, the cases all involve the same basic charge: that Defendants are
`infringing Plaintiffs’ electronic-cigarette patents.
`At issue in these claim construction proceedings are five patents – the “‘331 patent,”1
`
`“‘628 patent,”2 “‘742 patent,”3 “‘957 patent,”4 and “‘805 patent”5 – originally issued to Lik Hon
`(“Hon”), and later assigned to or exclusively licensed by Plaintiffs. The ‘628 patent, which
`issued in July 2013, is a continuation of the ‘331 patent, which issued in March 2013. Both
`claim priority through a March 2005 Patent Cooperation Treaty (“PCT”) application and share a
`common written description. The ‘742 and ‘957 patents, issued in February 2013, are also
`related, but trace priority through different PCT applications filed in May 2007.6 The ‘805
`patent, issued in April 2014, is unrelated to the other patents, but traces priority through a
`January 2010 PCT application, and is a continuation of a now-abandoned U.S. application filed
`in August 2011.
`
`Per the Court’s instruction, the parties initially identified 15 claims for construction, two
`of which they later withdrew. See Docket Nos. 28, 34, 49-1. Cross briefing followed, with the
`parties filing opening positions in early November 2014. See Docket No. 37, Plaintiffs’ Opening
`Claim Construction Brief (“Pl. Opening Br.”); Docket No. 40-1, Defendants’ Opening Claim
`Construction Brief (“Def. Opening Br.”). The parties filed responses in late November 2014,
`and presented the Court with a live technology tutorial in early 2015, two weeks before this
`Markman hearing. See Docket No. 46, Defendants’ Responsive Claim Construction Brief (“Def.
`Resp. Br.”); Docket No. 47, Plaintiffs’ Responsive Claim Construction Brief (“Pl. Resp. Br.”).
`
`II. Legal Standard
`
`Claim construction is an interpretive issue “exclusively within the province of the court.”
`Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996). It is “a question of law in the
`
`
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`                                                            
`1 See Docket No. 39-14, U.S. Patent No. 8,393,331, entitled “Electronic Atomization Cigarette.”
`
` 2
`
` 3
`
` 4
`
` 5
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` See Docket No. 39-15, U.S. Patent No. 8,490,628, entitled “Electronic Atomization Cigarette.”
`
` See Docket No. 39-12, U.S. Patent No. 8,365,742, entitled “Aerosol Electronic Cigarette.”
`
` See Docket No. 39-13, U.S. Patent No. 8,375,957, entitled “Electronic Cigarette.”
`
` See Docket No. 39-16, U.S. Patent No. 8,689,805, entitled “Electronic Cigarette.”
`
` 6
`
` The ‘742 patent is a divisional of U.S Patent No. 8,156,944 patent, portions of which the PTO recently held invalid
`during inter partes review. See Case No. CV-14-1649, Docket No. 36.
`
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`1
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`VMR-Ex. 1014-002
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`Case 2:14-cv-01645-GW-MRW Document 65 Filed 01/29/15 Page 3 of 28 Page ID #:1666
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`way that we treat document construction as a question of law,” with subsidiary fact-finding
`reviewed for clear error pursuant to Fed. R. Civ. P. 52(a)(6). Teva Pharms. USA, Inc. v. Sandoz,
`Inc., ___U.S.___, 135 S.Ct. 831, 837 (2015). Claim construction begins with an analysis of the
`claim language itself. Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1331
`(Fed. Cir. 2001). That is because the claims define the scope of the claimed invention. Phillips
`v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005). But “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.” Id. at 1313. Thus, claims “must
`be read in view of the specification,” which is “always highly relevant to the claim construction
`analysis.” Phillips, 415 F.3d. at 1315 (internal quotations omitted). “Usually, it is dispositive; it
`is the single best guide to the meaning of a disputed term.” Id.
`
`Although claims are read in light of the specification, limitations from the specification
`must not be imported into the claims. Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182,
`1186-87 (Fed. Cir. 1998). “[T]he line between construing terms and importing limitations can be
`discerned with reasonable certainty and predictability if the court’s focus remains on
`understanding how a person of ordinary skill in the art would understand the claim terms.”
`Phillips, 415 F.3d at 1323.
`
`The prosecution history is also part of the intrinsic evidence consulted during claim
`construction. See Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2002).
`“Like the specification, the prosecution history provides evidence of how the PTO and the
`inventor understood the patent.” Phillips, 415 F.3d at 1317 (citations omitted). “Furthermore,
`like the specification, the prosecution history was created by the patentee in attempting to
`explain and obtain the patent.” Id. “Yet because the prosecution history represents an ongoing
`negotiation between the PTO and the applicant, rather than the final product of that negotiation,
`it often lacks the clarity of the specification and thus is less useful for claim construction
`purposes.” Id.
`
`Claim construction usually involves resolving disputes about the “ordinary and
`customary meaning” that the words of the claim would have had “to a person of ordinary skill in
`the art in question at the time of the invention.” Phillips, 415 F.3d at 1312-13 (internal
`quotations and citations omitted). But in some cases, claim terms will not be given their ordinary
`meaning because the specification defines the term to mean something else. Novartis Pharms.
`Corp. v. Abbott Labs., 375 F.3d. 1328, 1334 (Fed. Cir. 2004); Kumar v. Ovonic Battery Co., 351
`F.3d 1364, 1368 (Fed. Cir. 2003). For the specification to provide a non-ordinary definition for a
`term, it must set out its definition in a manner sufficient to provide notice of the meaning to a
`person of ordinary skill in the art. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`
`Where the patent itself does not make clear the meaning of a claim term, courts may look
`to “those sources available to the public that show what a person of skill in the art would have
`understood disputed claim language to mean,” including the prosecution history and “extrinsic
`evidence concerning relevant scientific principles, the meaning of technical terms, and the state
`of the art.” Phillips, 415 F.3d at 1314 (internal quotations omitted). Sometimes, the use of
`“technical words or phrases not commonly understood” may give rise to a factual dispute, the
`determination of which will precede the ultimate legal question of the significance of the facts to
`the construction “in the context of the specific patent claim under review.” Teva, 135 S.Ct. at
`841, 849 (2015). “In some cases, the ordinary meaning of claim language as understood by a
`person of skill in the art may be readily apparent even to lay judges, and claim construction in
`such cases involves little more than the application of the widely accepted meaning of commonly
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`2
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`VMR-Ex. 1014-003
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`Case 2:14-cv-01645-GW-MRW Document 65 Filed 01/29/15 Page 4 of 28 Page ID #:1667
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`understood words.” Phillips, 415 F.3d at 1314. “In such circumstances, general purpose
`dictionaries may be helpful.” Id.
`
`III. Analysis
`A. Analysis of Disputed Claim Terms
`1. “cavity” (‘331 patent, claims 1-2; ‘628 patent, claim 3)
`Plaintiffs’ Proposed Construction
`Defendants’ Proposed Construction
`no construction necessary, or alternatively, “a
`“a hollow space within and completely
`hollow space”
`surrounded by the body of the atomizer”
`
`As relevant, claims 1 and 2 of the ‘331 patent recite:
`1. An electronic cigarette comprising:
`a housing;
`
`***
`an atomizer within the housing;
`
`***
`a cavity arranged in the atomizer
`
`***
`a heating element within the cavity.
`2. An electronic cigarette, comprising:
`a housing;
`
`***
`an atomizer within the housing, with the atomizer having a heating element within a
`cavity . . . .
`‘331 patent, at 4:66-6:6.
`
`Claim 3 of the ‘628 patent recites
`3. The electronic cigarette of claim 1 further including an atomization cavity within the
`atomizer.
`‘628 patent, at 5:11-3.
`Both parties agree that “cavity” means, at least, “a hollow space.” 7 The central dispute is
`
`whether the term means just a “hollow space,” or instead, “a hollow space within and completely
`surrounded by the atomizer.”8 Relying on the specification, Defendants advocate the latter.
`
`                                                            
`7 As with several other terms, Plaintiffs’ lead argument is that the Court should not construe “cavity” at all. Pl.
`Opening Br. at 4:17-19 (arguing that the “plain meaning of ‘cavity’ is easily understood and can be applied by a
`reasonable juror having no specialized knowledge of the technology at issue”). As has often been said, the purpose
`of claim construction “is determining the meaning and scope of the patent claims asserted to be infringed.”
`Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995); U.S. Surgical Corp. v. Ethicon, Inc., 103
`F.3d 1554, 1568 (Fed. Cir. 1997) (“Claim construction is a matter of [resolving] disputed meanings and technical
`scope [of patent claims], to clarify and when necessary to explain what the patentee covered by the claims, for use in
`the determination of infringement”) . While claim construction is not meant to be “an obligatory exercise in
`redundancy,” id., the court has an obligation to determine the proper meaning and scope of claim terms where the
`parties raise actual disputes, O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir.
`2008) (“[If] parties raise an actual dispute regarding the proper scope of these claims, the court, not the jury, must
`resolve that dispute”). “A determination that a claim term ‘needs no construction’ or has the ‘plain and ordinary
`meaning’ may be inadequate when a term has more than one ‘ordinary’ meaning or when reliance on a term’s
`‘ordinary’ meaning does not resolve the parties’ dispute.” Id. at 1361. Here, as with several other terms, the Court
`finds that construction is necessary as the parties’ dispute impacts the scope of the disputed claims.
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`3
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`VMR-Ex. 1014-004
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`Case 2:14-cv-01645-GW-MRW Document 65 Filed 01/29/15 Page 5 of 28 Page ID #:1668
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`Before turning to the specification, however, the Court starts with the claim language.
`
`Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1254 (Fed. Cir. 2010)
`(“Claim construction begins and ends in all cases with the actual words of the claim”) (citations
`and quotations omitted). As relevant to this dispute, the claim language does limit the cavity’s
`location: it must be “arranged in” or “within” the atomizer. So, the claim language does not just
`recite a “cavity”; it always uses positional words to describe (and limit) the cavity’s location.
`Not included in those positional words, however, is anything about the cavity being “completely
`surrounded by” the atomizer. By limiting “cavity” with this positional language, but omitting the
`more specific “completely surrounded by,” the claim language favors Plaintiffs’ construction.
`
`Nevertheless, Defendants contend the intrinsic evidence supports their position, arguing
`that the specifications describe and depict an atomization cavity completely surrounded by the
`atomizer. See Def. Opening Br. at 15:9-16:17 & Figs. 1, 6. 9 But this point is far from clear.
`First, Defendants never actually identify any language in the specifications referring to the cavity
`as “completely surrounded by” the atomizer (because it does not exist). They also do not cite
`anything from the specifications indicating that the cavity would not work if not “completely
`surrounded by” the atomizer. Instead, they cite language describing the “cavity wall 25 [as]
`surrounded with [a] porous body 27,” and interpret Figures 1 and 6 as showing the “cavity . . .
`completely surrounded by the body of the atomizer.” Id.
`However, in addition to the language Defendants cite, the ‘331 patent’s specification also
`states: “After the atomization the droplets with large diameters stick to the wall under the action
`of eddy flow and are reabsorbed by the porous body 27 via the overflow hole 29. Droplets with
`small diameters float in stream and form aerosols, which are sucked out via the aerosol passage
`12, gas vent 17, and mouthpiece 15.” ‘331 patent, at 3:56-61; see also ‘628 patent, at 3:55-60.
`While the Figures depict these components,
`they do not clarify how the droplets get out of
`the atomizer. So, it is not even clear whether
`the cavities in the preferred embodiments are
`“completely surrounded by” the atomizer, or
`instead, whether there is an outlet hole – for
`example, the long-stream ejection hole in
`‘331 Figure 6, or, potentially, the space under
`the bulge, the significance of which the
`parties debated at the technology tutorial –
`that breaks the “completely.”
`Even with the most defendant-friendly rendering, the best that can be said is that the ‘331
`and ‘628 diagrams disclose a preferred embodiment with the “cavity” completely “surrounded by
`the atomizer,” which is insufficient justification to so limit the claims. Phillips, 415 F.3d at
`1323. Defendants cite nothing in the specifications indicating that the cavity would not work if
`not “completely” surrounded. Therefore, nothing in the specification contradicts the broader
`meaning implied by the words of the claims themselves, which use some positional modifiers,
`
`                                                                                                                                                                                                
`8 Though the parties only identified “cavity” for construction, it is reasonably clear that they have asked the Court to
`construe the term in the context of the longer claim phrases: “a cavity arranged in the atomizer,” ‘331 patent (Claim
`1), “the atomizer having a heating element within a cavity,” ‘331 Patent (Claim 2), and “atomization cavity within
`the atomizer,” ‘628 patent (Claim 3).
`
` As stated above, the ‘331 and ‘628 patents share a common written description.
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`VMR-Ex. 1014-005
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`Case 2:14-cv-01645-GW-MRW Document 65 Filed 01/29/15 Page 6 of 28 Page ID #:1669
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`but not “completely surrounded by.” Finally, Defendants’ extrinsic evidence – Merriam-
`Webster’s Collegiate Dictionary (812) (11th ed. 2002), and the Oxford American Dictionary and
`Thesaurus (1st ed. 2003) – does not even contain a “completely” limitation. Def. Opening Br. at
`16:21-23. Altogether, then, Defendants seem to be asking the Court to import a limitation from
`their interpretation of a disclosed embodiment. As the Federal Circuit has explained, that is not
`generally allowed. Phillips, 415 F.3d at 1323; Nazomi Commc’ns., Inc. v. Arm Holdings, PLC,
`403 F.3d 1364, 1369 (Fed. Cir. 2005). And here, it is not even clear that the preferred
`embodiment contains the limitation.
`Thus, the Court should either adopt Plaintiffs’ construction. As used in the ‘331 and ‘628
`patents, “cavity” means: “a hollow space.”
`
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`
`
`2. “frame” (‘742 patent, claims 1-3)
`Plaintiffs’ Proposed Construction
`Defendants’ Proposed Construction
`no construction necessary, or alternatively, “a
`“an underlying, rigid structure on which the
`support”
`porous component is set”
`
`As relevant, claims 1 through 3 of the ‘742 patent recite:
`1.
`An aerosol electronic cigarette, comprising:
`. . . an atomizer assembly . . .;
`
`***
`the atomizer assembly is an atomizer, which includes a porous component and a heating
`body;
`***
`
`the atomizer includes a frame;
`the porous component is supported by the frame;
`
`***
`the frame has a run-through hole.
`2.
`An electronic cigarette, comprising:
`
`***
`the atomizer assembly including a porous component supported by a frame having a run-
`through hole . . .
`3.
`An electronic cigarette, comprising:
`
`
`***
`the atomizer assembly includes a frame having a run through hole, and a porous
`component between the frame and the outlet . . .
`
`The specification further illustrates the structure and function of the “frame” as follows:
`
`In the fifth preferred embodiment, as shown in FIGS. 17 and 18, the atomizer
`assembly is an atomizer (8), which includes a frame (82), the porous component
`(81) set on the frame (82), and the heating wire (83) wound on the porous
`component (81). The frame (82) has a run-through hole (821) on it. The porous
`component (81) is wound with heating wire (83) in the part that is on the side in
`the axial direction of the run-through hole (821).
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`VMR-Ex. 1014-006
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`Case 2:14-cv-01645-GW-MRW Document 65 Filed 01/29/15 Page 7 of 28 Page ID #:1670
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`81
`
`83
`
`81 – porous 
`component 
`
`82 – frame  
`
`82
`
`
`‘742 patent, at 5:42-47 & Figs. 17-18.
`Should the Court construe the term “frame,”10 Plaintiffs contend that the Court should
`afford it “its plain meaning, namely, a support.” Pl. Opening Br. at 7:6-9. Defendants contend
`that the Court should construe the term to mean “an underlying, rigid structure on which the
`porous component is set.” Def. Opening Br. at 17:10-12. Initially, the Court would reject
`Plaintiffs’ construction and agree with Defendants: “frame” means more than just “a support.”
`Plaintiffs’ construction renders the term “frame” superfluous. For example, with
`Plaintiffs’ construction, Claims 1 and 2 would read: “the porous component is supported by the
`frame support.” That is simply another way of stating: “the porous component is supported.”
`Rather than giving effect to all of the terms in the claim, this construction effectively reads
`“frame” out of Claims 1 and 2, producing an unhelpful tautology where the porous component is
`“supported by the support.” See Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir.
`2006) (“[C]laims are interpreted with an eye toward giving effect to all terms in the claim”);
`Merck & Co., Inc. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005) (“A . . .
`construction that gives meaning to all the terms of the claim is preferred over one that does not
`do so”) (citing Elekta Instrument S.A. v. O.U.R. Sci. Int’l, Inc., 214 F.3d 1302, 1307 (Fed. Cir.
`2000)). Thus, the Court agrees that “frame” means something more than just “a support.”
`
`Even if “frame” means something more than “a support,” Plaintiffs contend Defendants’
`construction inserts a specific structure – “an underlying, rigid structure” – and configuration –
`“on which the porous component is set” – neither of which is supported by the claim language,
`specification, or file history. Plaintiffs also argue that Defendants’ construction introduces a new
`ambiguity: “how rigid does the frame have to be?” Pl. Opening Br. at 7:9-13, 8:9-17.
`
`The Court agrees and disagrees with these arguments. Claims 1 and 2 recite a “porous
`component supported by the frame.” By contrast, Claim 3 recites “a porous component between
`the frame and the outlet.” The context in which the patent uses “frame” clearly suggests that the
`frame need not necessarily embody the particular porous component-atop-frame configuration
`described in Claims 1 and 2. Indeed, if that is what “frame” meant, much of the language in
`Claims 1 and 2 would be superfluous. For example, Claim 1 now recites: “the atomizer includes
`a frame; the porous component is supported by the frame.” Accepting Defendants’ construction,
`the first part of the quoted language would read: “the atomizer includes an underlying, rigid
`structure on which the porous component is set.” That construction renders the second half of
`the quoted language superfluous. Thus, the Court would reject a construction requiring a porous
`component-atop-frame configuration. See Digital-Vending Servs. Int’l, LLC v. Univ. of Phoenix,
`Inc., 672 F.3d 1270 (Fed. Cir. 2012) (where certain claims required that “registration server” be
`“free of content managed by the architecture,” while others only required a “registration server”
`                                                            
`10 Again, Plaintiffs lead by arguing that “frame” need not be construed. But because failing to construe frame would
`not resolve a dispute over claim scope, the Court rejects that suggestion. O2 Micro, 521 F.3d at 1360-61. 
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`VMR-Ex. 1014-007
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`Case 2:14-cv-01645-GW-MRW Document 65 Filed 01/29/15 Page 8 of 28 Page ID #:1671
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`without further limitation, claim language and structure strongly implied that “registration
`server,” standing alone, did “not inherently mean a server that is free of managed content”).
`
`While rejecting a construction requiring a particular configuration, the Court would agree
`with the other aspect of Defendants’ definition: that “frame” means a “rigid structure.” As
`Defendants point out, structural frames typically come in two forms: (1) a structure that encases
`or surrounds an object (e.g., a window frame), or (2) a rigid structure that underlies or supports
`an object (e.g., the frame on a house). The ‘742 patent describes the latter type, explaining that
`“the porous component [81 is] set on” and “supported by the frame [82].” ‘742 patent, at 5:44-
`45, 6:20. It also teaches no other purpose for the “frame.” So, the ‘742 patent identifies the
`“frame” as a firm structure designed to hold up another component. While the term “rigid”
`introduces some measure of ambiguity, it must be read, in light of the specification and
`prosecution history, Nautilus, Inc. v. Biosig Instruments, Inc., ___U.S.___, 134 S. Ct. 2120, 2129
`(2014), as something like “firm enough to bear the porous component,” or resistant to changes in
`form, see e.g., Millipore Corp. v. W.L. Gore & Associates, Inc., 750 F.Supp.2d 253, 269 (D.
`Mass. 2010), rather than requiring some absolute measure of rigidity. Acumed LLC v. Stryker
`Corp., 483 F.3d 800, 806 (Fed. Cir. 2007) (“Stryker also argues that the district court’s exclusion
`of ‘sharp corners or sharp angles’ renders the construction insufficiently definite, since the court
`did not specify precisely how ‘sharp’ is too sharp. However, a sound claim construction need
`not always purge every shred of ambiguity. The resolution of some line-drawing problems –
`especially easy ones like this one – is properly left to the trier of fact.”).11
`
`Thus, the Court would partly adopt Defendants’ construction. “Frame” means: “a rigid
`structure.”
`
`
`3. “housing” (‘742 patent, claims 2-3; ‘331 patent, claims 1-2; ‘628 patent,
`claims 1-2, 4, 7-8; ‘957 patent, claims 1-2, 5, 10, 23)
`Plaintiffs’ Proposed Construction
`Defendants’ Proposed Construction
`no construction necessary, or alternatively, “a
`“a one-piece shell”
`casing”
`
`
`Most independent claims in each of the patents-in-suit include the term “housing.” See
`Docket No. 49-1, Second Revised Joint Claim Construction Statement (“SRJCCS”), ¶ 3. By
`way of example, Claim 2 of the ‘742 patent recites:
`2. An electronic cigarette, comprising:
`a batter assembly and an atomizer assembly within a housing with the battery
`assembly electrically connected to the atomizer assembly;
`a liquid storage component in the housing;
`with the housing having one or more through-air-inlets . . . .
`‘742 patent, at 6:27-31. Similarly, Claim 1 of the ‘331 patent recites:
`1. An electronic cigarette comprising;
`a housing;
`a mouth piece on the housing;
`an air inlet leading into the housing;
`a battery within the housing;
`                                                            
`11 Along with the specification and claim language, Defendants’ rigidity limitation also finds support in Plaintiffs’
`dictionary definitions, Docket No. 49-1 ¶ 2, and at least one other court’s interpretation as: “a rigid support structure
`capable of having material attached to it,” Docket No. 46-4, Declaration of Richard T. Mulloy, Ex. 3 at 8-9.
`
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`VMR-Ex. 1014-008
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`Case 2:14-cv-01645-GW-MRW Document 65 Filed 01/29/15 Page 9 of 28 Page ID #:1672
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`an electronic circuit board within the housing
`a sensor within the housing
`an atomizer within the housing
`a stream passage within the housing leading from the inlet to the atomizer . . . .
`‘331 patent, at 4:66-5:9.
`
`
`Both parties agree the patents use “housing” and “shell” interchangeably. The dispute
`here is over whether “housing” should be limited to a “one-piece shell,” or instead, whether it
`should be understood simply as a “housing,” “shell,” or “casing,” without further limitation.
`
`Initially, the Court agrees with Plaintiffs that the term “housing,” standing alone, suggests
`nothing about the number of constituent parts used to construct the housing. Pl. Opening Br. at
`10:19-11:2 & n.34. And Defendants point to nothing in the claim language or structure limiting
`“housing” to a one-piece device, or to anything claim-specific indicating that a POSITA would
`read “housing” in a specialized manner. “In some cases, the ordinary meaning of claim language
`as understood by a person of skill in the art may be readily apparent even to lay judges, and
`claim construction in such cases involves little more than the application of the widely accepted
`meaning of commonly understood words.” Phillips, 415 F.3d at 1314. “[U]nless compelled to
`do otherwise, a court [typically] will give a claim term the full range of its ordinary meaning as
`understood by an artisan of ordinary skill.” Rexnord Corp. v. Laitram Corp., 274 F.3d 1336,
`1342 (Fed. Cir. 2001). Here, these principles tend to tilt toward Plaintiffs’ construction (or non-
`construction). Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 711 F.3d 1348,
`1361 (Fed. Cir. 2013) (“If the claim term has a plain and ordinary meaning, our inquiry ends”).
`
`Rather than relying on the claim language, Defendants draw their “one-piece” limitation
`from the ‘742, ‘957, ‘331, and ‘628 patents’ specifications. First, they point to the ‘742 patent,
`which, in describing the first preferred embodiment, states that components are “installed inside
`the integrally formed shell [or housing] (a) to form a one-piece part.” Def. Opening Br. at 21:2-4
`(citing ‘742 patent, at 3:42-45). But the very same column – indeed, the same sentence – cuts
`against Defendants’ position. If, as Defendants argue,12 “integrally formed” means “made of one
`piece,” the quoted phrase, “integrally formed shell,” is redundant. Accepting Defendants’ view,
`“integrally formed shell(housing)” means “a one-piece shell made of one piece.” See Phillips,
`415 F.3d at 1314 (“[T]he claim in this case refers to ‘steel baffles,’ which strongly implies that
`the term ‘baffles’ does not inherently mean objects made of steel”); Acumed, 483 F.3d at 807
`(where description of preferred embodiment modified “traverse” with “perpendicular,” finding
`that “this usage of language is strong evidence that the patentee considered ‘transverse’ and
`‘perpendicular’ to have distinctly different meanings”) (citing Phillips, 415 F.3d at 1315).
`
`But perhaps more to the point, the specification describes multiple “shells” – shell (a) and
`shell (b) – that are combined to form a unitary whole. Describing the first preferred
`embodiment, the ‘742 patent states: “the battery assembly and atomizer assembly are mutually
`connected and then installed inside the integrally formed shell(a) to form a one-piece part.” ‘742
`patent, at 3:42 -44. Continuing, the description explains that the “cigarette bottle assembly
`includes a hollow cigarette holder shell (b), and a perforated component for liquid storage (9)
`inside the shell (b).” Id. at 3:49-51. Then, the description explains that “[o]ne end of the
`cigarette holder shell (b) plugs into the shell (a)” to form a unitary whole. Id. at 3:57-58. This is
`also illustrated in Figures 1, 2, and 4. Thus, the specification describes two “shells” being fit
`together to form the housing. Further, while the description explains that the “cigarette bottle
`assembly” includes detachable shell (b) (as depicted below in Figure 2), see id., at 3:49-51,
`                                                            
`12 See SRJCCS ¶ 5 (arguing that “integrally formed” means “made of one piece”).
`
`
`
`8
`
`VMR-Ex. 1014-009
`
`

`
`Case 2:14-cv-01645-GW-MRW Document 65 Filed 01/29/15 Page 10 of 28 Page ID #:1673
`
`Claim 1 states that the “cigarette bottle assembly is detachably located in one end of the shell,
`and fits with the atomizer assembly inside it.” Id. at 6:12-14; see also id., at 2:35-36 (“The
`cigarette bottle assembly is located in one end of the shell, which is detachable”). In other
`words, once fit together to form a unitary whole, both shells – (a) and (b) – are “the shell.” In
`addition, Claim 2 describes a “liquid storage component in the housing.” Id. at 6:31. The
`specification and Figure 4 identify the “component for liquid storage (9) [as] inside the shell
`(b).” Id. at 3:50-51 & Figure 4. If the liquid storage component is both inside of detachable
`shell (b), id., and inside of the housing, id., at 6:31, which, Defendants concede, also includes
`shell (a), see Def. Opening Br. at 22:26-23:1, then “housing” should not mean “a one-piece
`shell.”13
`
`
`Portion of cigarette bottle 
`assembly entirely within shell(b)
`
`Shell (a) 
`
`liquid storage 
`component(9) 
`
`b
`
`
`
`shell(b) 
`
`
`
`
`
`
`
`9
`
`Figure 4
`
`
`
`The Court should reach the same conclusion for the remaining patents. The ‘957 patent
`claims two “housings”: a “battery assembly housing,” and an “atomizer assembly housing.” See
`‘957 patent, at 5:52-6:24. Nothing in the ‘957 patent limits – or even discusses – the number of
`pieces used to create these housings. Indeed, there is no reference to any of the housings being
`“integrally formed.” Nonetheless, Defendants argue that “housing” must mean a one-piece shell
`because “the figures of the ‘957 patent depict two unitary shells” for the battery-assembly and
`atomizer housings. Def. Opening Br. at 21:19-22:5. But it is not really possible to conclude that
`from the two-dimensional figures shown, most of which are cut-away views.
`Further, where “the plain language of the claim [is] clear and uncontradicted by anything
`in the written description or the figures,” the Federal Circuit prohibits courts from relying on “the
`written description [or] figures . . . to add limitations to the claim.” Liquid Dynamics Corp. v.
`Vaughan Co., 355 F.3d 1361, 1368 (Fed. Cir. 2004); Computer Docking Station Corp. v. Dell,
`Inc., 519 F.3d 1366, 1374 (Fed. Cir. 2008) (explaining that courts should not import “claim
`limitations from a few specification statements or figures . . . particularly if those specification
`extracts describe only embodiments of a broader claimed invention”); MBO Labs., Inc. v.
`                                                            
`13 The Court also notes that a portion of the cigarette bottle assembly, which the specification describes as “located
`in one end of the shell,” ‘742 patent, at 2:35-36,