Case 1:15-cv-00709-RGA Document 78 Filed 12/22/16 Page 1 of 8 PageID #: 1290
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`NOX MEDICAL EHF,
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`Plaintiff,
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`v.
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`NATUS NEUROLOGY INC.,
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`Defendant.
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`Civil Action No. 15-709-RGA
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`MEMORANDUM OPINION
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`Bindu A. Palapura, Esq., POTTER, ANDERSON & CORROON, Wilmington, Delaware; Chad
`E. Nydegger, Esq. (argued), WORKMAN NYDEGGER, Salt Lake City, Utah.
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`Attorneys for Plaintiff.
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`Arthur G. Connolly, III, Esq., CONNOLLY GALLAGHER LLP, Wilmington, Delaware; Thomas
`S. Reynolds, Esq., HANSEN REYNOLDS DICKINSON & CRUEGER LLC, Milwaukee,
`Wisconsin; Joseph J. Jacobi, Esq. (argued), HANSEN REYNOLDS DICKINSON & CRUEGER
`LLC, Chicago, Illinois.
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`Attorneys for Defendant.
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`December 2~, 2016
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`Case 1:15-cv-00709-RGA Document 78 Filed 12/22/16 Page 2 of 8 PageID #: 1291
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`ANDREWS, U.S. DISTRICT JUDGE:
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`Presently before me is the issue of claim construction of multiple terms in U.S. Patent
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`No. 9,059,532 ("the '532 patent"). The '532 patent generally relates to biometric belt
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`connectors. I have considered the parties' Joint Claim Construction Brief. (D.I. 63). I held oral
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`argument on November 17, 2016. (DJ. 71 ("Tr.")).
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`I. LEGAL ST AND ARD
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`"It is a bedrock principle of patent law that the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude." Phillips v. A WH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) (en bane) (internal quotation marks omitted). '"[T]here is no magic formula or
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`catechism for conducting claim construction.' Instead, the court is free to attach the appropriate
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`weight to appropriate sources 'in light of the statutes and policies that inform patent law."'
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`Soft View LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips,
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`415 F.3d at 1324) (alteration in original). When construing patent claims, a court considers the
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`literal language of the claim, the patent specification, and the prosecution history. Markman v.
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`Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370
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`(1996). Of these sources, "the specification is always highly relevant to the claim construction
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`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term."
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`Phillips, 415 F.3d at 1315 (internal quotation marks omitted).
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`"[T]he words of a claim are generally given their ordinary and customary meaning ....
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`[Which is] the meaning that the term would have to a person of ordinary skill in the art in
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`question at the time of the invention, i.e., as of the effective filing date of the patent application."
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`Id. at 1312-13 (citations and internal quotation marks omitted). "[T]he ordinary meaning of a
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`claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321
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`Case 1:15-cv-00709-RGA Document 78 Filed 12/22/16 Page 3 of 8 PageID #: 1292
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`(internal quotation marks omitted). "In some cases, the ordinary meaning of claim language as
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`understood by a person of skill in the art may be readily apparent even to lay judges, and claim
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`construction in such cases involves little more than the application of the widely accepted
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`meaning of commonly understood words." Id. at 1314.
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`When a court relies solely upon the intrinsic evidence-the patent claims, the
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`specification, and the prosecution history-the court's construction is a determination oflaw.
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`See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). The court may also
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`make factual findings based upon consideration of extrinsic evidence, which "consists of all
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`evidence external to the patent and prosecution history, including expert and inventor testimony,
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`dictionaries, and learned treatises." Phillips, 415 F.3d at 1317-19. "Judges ... may[] rely on
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`dictionary definitions when construing claim terms, so long as the dictionary definition does not
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`contradict any definition found in or ascertained by a reading of the patent documents."
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`Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584 n.6 (Fed. Cir. 1996). Extrinsic
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`evidence may assist the court in understanding the underlying technology, the meaning of terms
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`to one skilled in the art, and how the invention works. Phillips, 415 F.3d at 1317-19. Extrinsic
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`evidence, however, is less reliable and less useful in claim construction than the patent and its
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`prosecution history. Id.
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`"A claim construction is persuasive, not because it follows a certain rule, but because it
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`defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa 'per
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`Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would
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`exclude the inventor's device is rarely the correct interpretation." Os ram GMBH v. Int 'l Trade
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`Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation omitted).
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`II. CONSTRUCTION OF DISPUTED TERMS
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`Case 1:15-cv-00709-RGA Document 78 Filed 12/22/16 Page 4 of 8 PageID #: 1293
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`Claim 1 is representative and reads as follows:
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`1. An electrode belt and a belt connector for electrically connecting a conductor of the
`electrode belt to a male portion of a snap connector electrode connected to a biometric
`device, the belt connector comprising:
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`a molded plastic frame including a receiving hole having radial flexibility, the
`receiving hole being configured to function as a female snap button fastener for
`receiving and fastening the frame to a protrusion of the male portion of the snap
`connector electrode,
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`a fastener configured to fasten the frame to a first end of said electrode belt, and
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`an engaging member adjacent to said receiving hole, the engaging member
`engaging the conductor of the electrode belt by the conductor passing through the
`receiving hole while being wrapped around the engaging member, such that when
`the male portion of the snap connector electrode penetrates the receiving hole, the
`conductor is forced into physical contact with at least a lateral surface of the male
`portion of the snap connector electrode,
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`wherein radial flexibility of said receiving hole is achieved by one or more slot
`extending from said hole, and wherein said receiving hole and one or more slot are
`formed by at least one elongated member having flexibility transverse to its
`longitudinal axis, thus imparting flexibility to the width of the hole.
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`('532 patent, claim 1). Figure lA of the '532 patent shows one embodiment of the invention.
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`FJG. 1A
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`Case 1:15-cv-00709-RGA Document 78 Filed 12/22/16 Page 5 of 8 PageID #: 1294
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`I
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`('532 patent, Figure IA). This figure shows a biometric belt connector comprised of "a molded
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`plastic frame (3) having a front side ( 4) and a rear side (5), a shaped circular or semi-circular
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`hole (6) with radial flexibility to function as a female snap button fastener .... " (Id. at 5:6-9).
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`"The frame (3) may include two [elongated] members (8, 13) adjacent to said hole (6), the two
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`members (8, 13) forming a slot (11) extending from the hole and a second slot (15) across from
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`the first slot (11)." (Id. at 5:13-17). "The elongated members and slots provide the hole with
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`sufficiently flexibility (i.e. elasticity in the width of the hole) to function as a female snap button
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`fastener." (Id. at 5:18-20).
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`A. "flexibility" (claim 1)
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`• Plaintiff's proposed construction: elasticity allowing movement from and substantially back
`to a starting position or configuration
`• Defendant's modified proposed construction: plain and ordinary meaning, in other words, the
`ability of a part, related to its geometry and material properties, to elastically deform under
`an applied stress (Tr. 27:22-28:4)
`• Court's construction: the ability of a part, related to its geometry and material properties, to
`elastically deform under an applied stress
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`The parties dispute what it means for the receiving hole to have flexibility. The receiving
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`hole is formed by the elongated members. Preliminarily, both parties agree that flexibility
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`requires some degree of deformation. (See Tr. 20:24-25, 27:22-28:4). "Deform" means
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`anything that "bends or moves from its original position." (Tr. 28: 14-15). Both parties propose
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`that flexibility requires some degree of elasticity. Elasticity means that after it bends or moves, it
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`returns to its original state to a certain extent. (See Tr. 12:21-23, 29:5-7, 29:10-12).
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`Plaintiff is concerned that my construction would require perfect elasticity. (Tr. 34:23-
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`35:2). Perfect elasticity means "movement from and then all the way back to exactly the same
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`position without any change between the starting configuration and the ending configuration."
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`(Tr. 12:11-13). My construction is not so limiting. It encompasses varying degrees of how much
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`Case 1:15-cv-00709-RGA Document 78 Filed 12/22/16 Page 6 of 8 PageID #: 1295
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`the parts return to their original state. To be clear, my construction does not require perfect
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`elasticity.
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`Plaintiff is also concerned that my construction would not cover the scenario where the
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`elongated members are used such that they "go[] beyond the elastic range to a complete plastic
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`deformation." (Tr. 35:11-14). Plastic deformation is permanent deformation. (Tr. 23:2-3). So
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`long as the elongated members initially have "flexibility," they would be covered by the claim.
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`(See Tr. 35: 17-22). It matters not whether they subsequently lose such flexibility. (See id.).
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`That a rubber band snaps is not to say that it was not originally flexible. Thus, it is possible for
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`Plaintiffs scenario to be covered by my construction.
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`Plaintiffs last concern is that my construction does not include the word "substantial."
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`Tr. 36:15-25). Alternatively, Plaintiff proposes that my construction include the word
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`"sufficient." (Tr. 36:23-37:5). It is unclear whether this is still an actual concern of Plaintiff.
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`(Tr. 37:6-38:9). Regardless, a natural reading of the claim language does not necessitate the use
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`of either of these words. 1
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`For these reasons, "flexibility" has its plain and ordinary meaning, which is "the ability of
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`a part, related to its geometry and material properties, to elastically deform under an applied
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`stress."
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`B. "through the receiving hole" (claim 1)
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`• Plaintiff's modified proposed construction: passing from a front side of a hole, through the
`interior of the hole, to a rear side of the hole (Tr. 42:15-16)
`• Defendant's proposed construction: plain and ordinary meaning
`• Court's construction: entering the hole, passing through the hole, and exiting the hole
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`1 My construction of"flexibility" should not be understood to read out other limitations of claim 1 such as that the
`receiving hole must be configured to "function as a female snap button fastener .... " ('532 patent, Claim 1).
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`Case 1:15-cv-00709-RGA Document 78 Filed 12/22/16 Page 7 of 8 PageID #: 1296
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`The relevant claim language is the following: "the engaging member engaging the
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`conductor of the electrode belt by the conductor passing through the receiving hole while being
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`wrapped around the engaging member." ('532 patent, claim I) (emphasis added).
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`The parties dispute how the conductor needs to pass through the receiving hole (for
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`illustrative purposes, 6 in Figure IA). Using Figure IA as an example, Plaintiffs construction
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`seems to suggest that the claim only covers conductors passing vertically through 6, or from the
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`top to bottom. The top would correspond to the "front" of the hole. The bottom would
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`correspond to the "rear" of the hole. Defendant's construction would cover conductors passing
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`horizontally through 6, or from side-to-side.
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`I agree with the Defendant. The receiving hole can be envisioned as a roughly cylindrical
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`space. The plain meaning of the word "through" is "used as a function word to indicate
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`movement into at one side or point and out at another and especially the opposite side of." See
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`Through, MERRIAM-WEBSTER (December I4, 20I6), https://www.merriam(cid:173)
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`webster.com/dictionary/through; Vitronics Corp., 90 F.3d at I584 n.6. To go "through" this
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`cylindrical space, the conductor need not necessarily enter and exit the "top" and "bottom" of the
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`cylinder (or the circular regions) as Plaintiffs construction seemingly requires. Rather, so long
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`as the conductor passes through one side or point, and goes out at another side or point
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`(typically, the side or point opposite to the initial side or point), then that is enough. Although I
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`recognize that the preferred embodiment supports Plaintiffs construction, it does not rise to the
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`level of a clear disclaimer of claim scope. See Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d
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`898, 909 (Fed. Cir. 2004) ("[a]bsent a clear disclaimer of particular subject matter, the fact that
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`Case 1:15-cv-00709-RGA Document 78 Filed 12/22/16 Page 8 of 8 PageID #: 1297
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`the inventor may have anticipated that the invention would be used in a particular way does not
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`mean that the scope of the invention is limited to that context").2
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`For these reasons, I adopt Defendant's proposed construction, with the understanding
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`that the conductor must enter the receiving hole, pass through the interior of the hole, and exit
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`the hole.
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`IV.
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`CONCLUSION
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`Within five days the parties shall submit a proposed order consistent with this
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`Memorandum Opinion.
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`2 The conductor must still pass through the receiving hole while being wrapped around the engaging
`member. ('532 patent, claim 1).
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