Case 2:12-cv-00053-GMN-NJK Document 287 Filed 05/14/13 Page 1 of 33
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`AEVOE CORP., a California corporation,
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`Plaintiff,
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`vs.
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`AE TECH CO., LTD., a Taiwan corporation;
`S&F Corporation dba SF PLANET
`CORPORATION, a Minnesota corporation,
`and GREATSHIELD INC., a Minnesota
`corporation,
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`Defendants.
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`Case No.: 2:12-cv-00053-GMN-RJJ
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`ORDER
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`Pending before the Court are the proposed claim constructions submitted by Plaintiff
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`Aevoe Corp. (“Plaintiff”) and Defendants AE Tech Co., Ltd., S&F Corporation, and
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`GreatShield, Inc. (collectively, “Defendants”). Plaintiff filed its Opening Brief on November
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`19, 2012. (ECF No. 157.) Defendants also filed a brief styled as an Opening Brief on November
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`19, 2012. (ECF No. 159.) Subsequently, on December 5, 2012, Defendants filed a Response to
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`Plaintiff’s Opening Claim Construction Brief. (ECF No. 171.) In response, on December 12,
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`2012, Plaintiff filed a Motion to Strike Defendants’ Unauthorized Opening Claim Construction
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`Brief because it was not authorized by Local Rule 16.1-16. (ECF No. 182) On December 12,
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`2012, Plaintiff also filed its Reply Brief. (ECF No. 183.) The Court subsequently denied
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`Plaintiff’s Motion to Strike and construed Defendants’ “Opening Brief” as its Responsive Brief.
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`(See ECF No. 186.) Thus, the Court will not consider Defendant’s Response Brief. A Markman
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`Claim Construction Hearing was held on February 5, 2013.
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`This is an Order construing the disputed terms of the claims in United States Patent No.
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`8,044,942 (“the ’942 Patent”). The parties have submitted nine (9) terms and phrases for
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`construction. (See Joint Statement 2:13-5:22, ECF No. 120.) In addition, the parties agree on
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`the interpretation of six (6) additional terms. (See id. at 2:3-10.) The Court will adopt the
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`proposed claim construction for the six terms on which the parties agree, as reflected herein.
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`After consideration of the briefs and material submitted by the parties, the arguments of
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`counsel at the claim construction hearing, and the record before the Court, the Court issues this
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`Order construing the disputed claim terms.
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`I.
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`BACKGROUND
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` Plaintiff Aevoe Corp. (“Plaintiff”) is the sole owner of the ’942 Patent entitled “Touch
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`Screen Protector.” (Am. Compl. ¶¶ 13-14, ECF No. 44.) Plaintiff is a California corporation (id.
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`at ¶ 6) that “markets and sells products embodying the ’942 Patent throughout the United States”
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`(id. at ¶ 15). The invention of the ’942 Patent relates to a touch screen protector for hand-held
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`electronic devices. U.S. Patent No. 8,044,942, at [57] (filed June 14, 2011). Specifically, the
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`’942 Patent discloses to a touch screen protector that does not physically contact the touch
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`screen portion of the device. Id. Additionally, the touch screen protector disclosed in the ’942
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`Patent is “easily attached and removed” from the hand held device. ’942 Patent, col.1, ll.10-13.
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`In this action, Plaintiff alleges that three defendants infringed the ’942 Patent. First,
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`Plaintiff alleges that Defendant AE Tech (“AE Tech”) is a Taiwan corporation (id. at ¶ 7) that
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`“manufactures, imports, advertises, sells, and offers to sell products . . . that infringe the ’942
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`Patent” (id. at ¶ 16). Second, Plaintiff alleges that Defendant S&F Corporation (“S&F”) is a
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`Minnesota corporation that does business as SF Planet Company (“SF Planet”) (collectively,
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`“S&F Defendants”). (Id. at ¶¶ 7-8.) The S&F Defendants allegedly “import, advertise, sell, and
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`offer to sell products . . . that infringe the ’942 Patent.” (Id. at ¶ 17.) Third, Plaintiff alleges that
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`Defendant GreatShield is a Minnesota corporation that is a corporate affiliate of the S&F
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`Defendants. (Id. at ¶¶ 11-12.) Plaintiff further alleges the S&F Defendants “operate an
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`Amazon.com storefront” through which they sell the AE Tech products that allegedly infringe
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`the ’942 Patent. (Id. at ¶¶ 30-31.)
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`In response to the Defendants’ allegedly infringing activities, Plaintiff filed the instant
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`action on January 11, 2012, alleging infringement of the ’942 Patent. (See Compl., ECF No. 1.)
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`Plaintiff filed a motion for preliminary injunction. (ECF No. 3.) The Court granted that motion
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`and entered a Preliminary Injunction on January 24, 2012. (ECF No. 16.) Subsequently, on
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`March 14, 2012, Plaintiff filed its First Amended Complaint. (See Am. Compl., ECF No. 44.)
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`II.
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`LEGAL STANDARD
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`The resolution of patent infringement actions generally requires two distinct steps. First,
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`the Court engages in a claim construction analysis to “determin[e] the meaning and scope of the
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`patent claims asserted to be infringed.” Markman v. Westview Instruments, Inc., 52 F.3d 967,
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`976 (Fed. Cir. 1995) (en banc), aff’d 517 U.S. 370 (1996). Only once the claims are properly
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`construed does the action proceed to the second step, in which the factfinder compares those
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`properly construed claims to the accused device to determine, as a matter of fact, whether all of
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`the claim limitations are present in the accused device. Id. At the current stage of this patent
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`infringement action, the Court focuses only on the first step.
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`A. Claim Construction
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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. AWH Corp., 415 F.3d 1303, 1312
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`(Fed.Cir.2005) (en banc) (citations and internal quotation marks omitted). The interpretation of
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`the scope and meaning of disputed terms in patent claims is a question of law and exclusively
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`within the province of a court to decide. Markman, 517 U.S. at 372. When construing disputed
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`claim terms, the Court must give each disputed term “the meaning that the term would have to a
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`person of ordinary skill in the art at the time of the invention,” unless the patentee clearly
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`intended a different definition. Phillips, 415 F.3d at 1312-13. Furthermore, “the person of
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`ordinary skill in the art is deemed to read the claim term not only in the context of the particular
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`claim in which the disputed term appears but in the context of the entire patent, including the
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`specification.” Id. at 1313.
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`In certain cases, “the ordinary meaning of claim language as understood by a person of
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`skill in the art may be readily apparent even to lay judges, and claim construction in such cases
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`involves little more than the application of the widely accepted meaning of commonly
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`understood words.” Id. at 1314. In other instances, the claim term may have a particular
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`meaning in the field of art that is not immediately clear. Id. In such cases, the Federal Circuit
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`has instructed that a court’s analysis should focus on the intrinsic evidence, including “the words
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`of the claims themselves, the remainder of the specification, the prosecution history, and
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`extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and
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`the state of the art.” Id. at 1314. “[T]he claims themselves provide substantial guidance as to the
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`meaning of particular claim terms.” Id. “Other claims of the patent in question, both asserted
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`and unasserted, can also be valuable sources of enlightenment as to the meaning of a claim
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`term.” Id. Specifically, differences between the claims often provide useful guidance in
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`understanding the meaning of the claim terms. Id. “For example, the presence of a dependent
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`claim that adds a particular limitation gives rise to a presumption that the limitation in question
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`is not present in the independent claim.” Id. at 1314–15.
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`The claims, however, are not read in isolation, but are read in light of the entire
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`specification, of which the claims are a part. Id. In fact, the specification is “the single best
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`guide to the meaning of a disputed term.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
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`1582 (Fed. Cir. 1996). Courts can also look to the prosecution history as part of “intrinsic
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`evidence” to determine how the Patent Office and the inventor understood the patent. Phillips,
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`415 F.3d at 1317. However, the prosecution history lacks the clarity of the specification and
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`more often is less useful for claim construction purposes. Id.
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`Finally, extrinsic evidence may also be relevant to claim construction. Id. Extrinsic
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`evidence “consists of all evidence external to the patent and prosecution history, including
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`expert and inventor testimony, dictionaries, and learned treatises.” Markman, 52 F.3d at 980.
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`Although such evidence may aid the Court in construing claim terms, “it is unlikely to result in a
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`reliable interpretation of patent claim scope unless considered in the context of the intrinsic
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`evidence.” Phillips, 415 F.3d at 1319. Thus, “while extrinsic evidence can shed useful light on
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`the relevant art, . . . it is less significant than the intrinsic record in determining the legally
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`operative meaning of claim language.” Phillips, 415 F.3d at 1317 (citations and internal
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`quotation marks omitted).
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`B. Doctrine of Claim Differentiation
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`In Phillips, the Federal Circuit also instructed that “[d]ifferences among claims can also
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`be a useful guide in understanding the meaning of particular claim terms.” 415 F.3d at 1314
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`(citation omitted). “The doctrine of claim differentiation stems from ‘the common sense notion
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`that different words or phrases used in separate claims are presumed to indicate that the claims
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`have different meanings and scope.’” Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1368
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`(Fed. Cir. 2005) (quoting Karlin Tech. Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 971-72
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`(Fed.Cir.1999)). The doctrine of claim differentiation frequently arises when a party attempts to
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`construe a claim term that appears in an independent claim in a way that includes a limitation
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`that is claimed in a dependent claim. See 35 U.S.C. § 112(d) (“[A] claim in dependent form shall
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`contain a reference to a claim previously set forth and then specify a further limitation of the
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`subject matter claimed”). However, when a limitation is introduced in a dependent claim, courts
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`presume that the same limitation is absent from the independent claim from which the dependent
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`claim depends. Phillips, 415 F.3d at 1314 (citation omitted); Liebel-Flarsheim Co. v. Medrad,
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`Inc., 358 F.3d 898, 910 (Fed. Cir. 2004) (citations omitted). In fact, in Liebel-Flarsheim, the
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`Federal Circuit expressly stated that “[i]n such a setting, where the limitation that is sought to be
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`‘read into’ an independent claim already appears in a dependent claim, the doctrine of claim
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`differentiation is at its strongest.” 358 F.3d at 910; see also Baldwin Graphic Sys., Inc. v.
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`Siebert, Inc., 512 F.3d 1338, 1345-46 (Fed. Cir. 2008) (refusing to “bootstrap a temporal
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`restraint” on a method step when no such limitation was expressed in either independent claim,
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`but was instead featured in a dependent claim).
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`III. CONSTRUCTION OF THOSE TERMS ON WHICH THE PARTIES AGREE
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`In their Joint Claim Construction and Prehearing Statement, the parties submitted agreed
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`upon proposed constructions for six (6) claim terms. (Joint Statement 2:2-10, ECF No. 120.)
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`The Court hereby adopts those proposed constructions as follows:
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`“Touch screen” shall be construed as “an interactive screen with both input and display
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`functionality that a user touches in order to operate an electronic device.”
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`“Touch screen portion” shall be construed as “the operable portion of the touch screen.”
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`“Hand held electronic device” shall be construed as “an electronic device designed to be
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`operated while being held in the hand.”
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`“Interference patterns” shall be construed as “optical artifacts such as Newton rings and
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`color changes caused by interference.”
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`“Non-functional band” shall be construed as “the area that surrounds a touch screen
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`portion of a hand held electronic device which is made of a different material or made of the
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`same material as a touch screen but is not touch sensitive.”
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`“Adhesively mounted” shall be construed as “attached or adhered by an adhesive.”
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`IV. CONSTRUCTION OF THE DISPUTED CLAIM TERMS
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`The parties dispute the construction of nine (9) terms: (1) spacer; (2) continuously
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`surrounding; (3) transparent window; (4) enclosed air space; (5) removably mounting;
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`(6) provided along the outer perimeter; (7) coating; (8) micro-particles; and (9) adhesive strip.
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`Terms one through six are present in independent Claim 1. The disputed claim terms are
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`highlighted below. Claim 1:
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`A touch screen protector for a hand held electronic device having a front face that
`includes a touch screen portion and an outer perimeter comprising:
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`a plastic film having front and back sides, an outer perimeter that corresponds
`to that of the device, and a transparent window that corresponds in size to the
`touch screen portion; and
`a spacer provided along the outer perimeter of the plastic film continuously
`surrounding the transparent window, having a thickness sufficient to space
`the plastic film near but not in contact with the touch screen portion, and an
`exposed adhesive for removably mounting the protector upon the outer
`perimeter of the front face to form an enclosed air space between the
`transparent window of the plastic film, the spacer and the touch screen
`portion of the device;
`wherein the window can be pressed against the touch screen portion for
`operation of the electronic device while preventing direct contact of a user’s
`fingers with the touch screen portion and without producing visible
`interference patterns during use.
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`Term seven, “coating,” is present only in dependent Claim 15, which depends from Claim 1.
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`The disputed claim term is highlighted below. Claim 15:
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`The touch screen protector of claim 1, wherein the transparent window is clear but
`includes a coating that provides a matte effect or a privacy screen feature.
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`Term eight, “micro-particles,” is present in dependent Claim 5 and dependent Claim 6. Claim 5
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`depends from Claim 1 and Claim 6 depends from Claim 5. The disputed claim term is
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`highlighted below. Claim 5:
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`The touch screen protector of claim 1, wherein micro-particles are present on the
`back side of the plastic film at a density which is sufficiently high to provide an
`anti-static effect without adversely affecting quality of images viewed through the
`window.
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`Claim 6:
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`The touch screen protector of claim 5, wherein the plastic film also includes
`micro-particles adhered to the front side of the window in an amount effective for
`providing anti-glare and anti-static effects to the window.
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`Term nine, “adhesive strip,” is present only in dependent Claim 8, which depends from Claim 5.
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`The disputed claim term is highlighted below. Claim 8:
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`/ / /
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`The touch screen protector of claim 5, wherein the spacer includes at least one
`adhesive strip that is applied onto the plastic film, wherein the adhesive strip is
`opaque.
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`A. “Spacer”
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`Plaintiff
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`Defendants
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`Proposed Constructions1
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`“an element or elements located on the back of the plastic film of
`the touch screen protector having a thickness sufficient to space
`the plastic film near but not in contact with the touch screen
`portion”
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`“a structure provided along the outer perimeter of the plastic film
`continuously surrounding the transparent window, this structure
`having a thickness sufficient to space the plastic film near but not
`in contact with the touch screen portion of a hand held electronic
`device, and this structure containing an exposed adhesive for
`removably mounting the protector upon the outer perimeter of the
`front face of a hand held electronic device to form an enclosed air
`space between the transparent window of the plastic film and the
`touch screen portion of the hand held electronic device. The
`spacer may consist of one or more layers, The layers may include a
`first strip of material adhered to the plastic film by an adhesive, a
`second strip of material adhered to the first strip by an adhesive
`and an exposed adhesive on the second strip of material.”
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`The term “spacer” appears in Claims 1, 3, 4, 7-9, and 11 of the ’942 Patent.
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`1. Defendants’ Proposed Construction
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`Defendants’ construction uses 143 words to define the term “spacer.” (Defs.’ Br. 8:26-
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`9:6, ECF No. 159.) However, Defendants have failed to adequately support such a verbose
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`construction of a simple word. Furthermore, even where Defendants have attempted to support
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`their proposed construction with the words of the patent, the Court finds these arguments
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`unpersuasive. Defendants contend that their construction is consistent with the “claims,
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`1 Throughout this Order, Plaintiff’s proposed constructions are taken from its Opening Claim Construction Brief.
`(See ECF No. 157.) Similarly, throughout this Order, Defendants’ proposed constructions are taken from its
`Opening Claim Construction Brief (see ECF No. 159), which the Court construes as its Responsive Claim
`Construction Brief (see ECF No. 186.)
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`specification, drawings and the prosecution history of the ’942 patent, along with the way in
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`which the term is used in the art.” (Id. at 9:17-19.) Specifically, Defendants rely on Figure 3,
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`“an expanded partial sectional view of the touch screen protector,” and the words of the
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`specification associated therewith. (Id. at 9:19-10:12 (quoting ’942 Patent col.3 ll.3-4).) From
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`this Figure, Defendants first assert that the spacer consists of “a structure that includes the
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`exposed adhesive.” (Defs.’ Br. 10:2-3.) Next, Defendants contend that the spacer must have a
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`“thickness sufficient to space the plastic film near but not in contact with the touch screen
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`portion, and an exposed adhesive . . ..” (Defs.’ Br. 10:4-6 (quoting ’942 Patent col.2 ll.1-3).)
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`Defendants further argue that the spacer “may also consist of one or more layers.” (Defs.’ Br.
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`10:12.) To support this argument, Defendants rely on language in the written description that
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`explains that the spacer may consist of a first strip adhered to the plastic film and a second strip
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`adhered to the first strip, (Defs.’ Br. 10:8-12 (citing ’942 Patent col.7 ll.14-19).) Despite
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`Defendants’ attempts to base their proposed construction in the language of the ’942 Patent, for
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`the reasons discussed below, the Court declines to adopt Defendants’ proposed construction.
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`First, the Court agrees, and it appears that Plaintiff does not dispute, that the spacer must
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`have “a thickness sufficient to space the plastic film near but not in contact with the touch screen
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`portion of a hand held electronic device.” However, Defendants’ proposed construction is still
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`problematic. Specifically, most of Defendants’ proposed construction uses terms that appear
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`elsewhere in the claims. Many of these claim terms are the subject of claim construction
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`disputes that are discussed in later sections of this Order. In fact, the parties have requested that
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`the Court construe “provided along the outer perimeter,” “continuously surrounding,”
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`“transparent window,” “removably mounting,” and “enclosed air space.” Nevertheless,
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`Defendants have used each of these terms in their proposed construction of “spacer.”
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`Furthermore, Defendants’ proposed construction incorporates the term “exposed adhesive.”
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`This term, although not disputed, does appear in Claims 1, 2, and 8-11. Because these claim
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`terms appear elsewhere in the claims, the Court finds that it is improper and unhelpful to
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`incorporate these terms in the definition of “spacer.” See Z4 Techs., Inc. v. Microsoft Corp., 507
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`F.3d 1340, 1348 (Fed. Cir. 2007) (rejecting a claim construction that incorporated a term found
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`elsewhere in the claim because such a construction would conflict with the words of the claim).
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`The Court also finds that the words of the specification do not require that the “the spacer
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`may also consist of one or more layers.” Specifically, the Federal Circuit has held that “the
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`presence of a dependent claim that adds a particular limitation raises a presumption that the
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`limitation in question is not found in the independent claim.” Liebel-Flarsheim Co. v. Medrad,
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`Inc., 358 F.3d 898, 910 (Fed. Cir. 2004). In the ’942 Patent, dependent Claim 9 adds the
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`limitation that the spacer “comprises at least two strips.”2 In fact, the concept of a spacer made
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`up of layers is wholly absent from the words of Claim 1. See ’942 Patent col.8 ll.28-48. Thus,
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`Defendants’ proposed construction attempts to add a limitation from dependent Claim 9 into
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`independent Claim 1. Under Liebel-Flarsheim, such a construction is impermissible unless
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`Defendants provide a persuasive argument based on the intrinsic evidence that overcomes the
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`presumption. Defendants have provided no such basis for overcoming the Liebel-Flarsheim
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`presumption. Accordingly, this portion of Defendants’ proposed construction is also
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`impermissible.
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`2. Plaintiff’s Proposed Construction
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`Plaintiff’s construction, on the other hand, uses 36 words to define the term “spacer.”3
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`Consistent with the “fundamental rule of claim construction” that “claims must be construed so
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`as to be consistent with the specification, of which they are a part,” Phillips, 415 F.3d at 1316
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`2 Claim 9 depends from Claim 6. Claim 6, in turn, depends from Claim 5. Finally, Claim 5 depends from
`Claim 1. Therefore, Claim 9 ultimately incorporates all the limitations of Claims 1, 5, and 6.
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` Plaintiff originally proposed a more verbose construction in the Joint Claim Construction and Prehearing
`Statement. (See ECF No. 120.) However, Plaintiff later correctly noted that its original proposed construction
`improperly used other claim terms to define the term “spacer.” (Pl.’s Br. 7 n.3, ECF No. 157 (citing Z4 Techs.,
`Inc. v. Microsoft Corp., 507 F.3d 1340, 1348 (Fed. Cir. 2007)).) For that reason, Plaintiff amended its proposed
`construction to the current proposal.
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`Case 2:12-cv-00053-GMN-NJK Document 287 Filed 05/14/13 Page 11 of 33
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`(quoting Merck & Co. v. Teva Pharms. USA, Inc., 347 F.3d 1367, 1371 (Fed. Cir. 2003)),
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`Plaintiff supports its proposed construction with the words of the specification of the ’942
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`Patent. Plaintiff first contends that the spacer must have “‘a thickness sufficient to space the
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`plastic film near but not in contact with the touch screen portion’ of the device to which the
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`patented invention is attached.” (Pl.’s Br. 8:4-6 (citing ’942 Patent col.3, ll.34-35).) As
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`discussed above in Section IV.A.1, above, neither party appears to dispute that some version of
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`this language should be included in the final construction of this term. Second, Plaintiff asserts
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`that the spacer “must be on the back side of the touchscreen protector.” (Pl.’s Br. 8:9-10 (citing
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`’942 Patent col.7, ll.12-13).) Plaintiff supports this assertion with language from column 7 of
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`the ’942 Patent that expressly states that “[t]he spacer is on the back side of the plastic film . . ..”
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`’942 Patent col.7, ll.12-13.
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`With one exception, the Court finds that Plaintiff’s construction is correct. Specifically,
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`both Plaintiff’s and Defendants’ construction unwisely uses the term “space” in their proposed
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`constructions. For this reason, the Court will adopt a modified version of Plaintiff’s proposed
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`construction. Thus, the Court construes the term “spacer,” as used in the ’942 Patent, as “an
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`element or elements located on the back of the plastic film of the touch screen protector having a
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`thickness such that the protector is close to, but not in contact with, the touch screen portion.”
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`3. The Court’s Construction
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`After looking first to the words of the claim and then the remaining parts of the
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`specification, the Court finds that a person of ordinary skill in the art would understand the term
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`“spacer,” as used in the ’942 Patent to mean “an element or elements located on the back of the
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`plastic film of the touch screen protector having a thickness such that the protector is close to,
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`but not in contact with, the touch screen portion.” Therefore, the Court construes the term
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`“spacer” as “an element or elements located on the back of the plastic film of the touch screen
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`protector having a thickness such that the protector is close to, but not in contact with, the touch
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`Case 2:12-cv-00053-GMN-NJK Document 287 Filed 05/14/13 Page 12 of 33
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`screen portion.”
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`B. “Continuously Surrounding the Transparent Window”
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`Proposed Constructions
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`“continuously
`surrounding”
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`“transparent
`window”
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`Plaintiff
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`Defendants
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`“continuously
`surrounding the
`transparent
`window”
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`“surrounding on all sides”
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`“see-through area of the plastic film corresponding
`to the touch screen portion of the handheld
`electronic device to which the protector is intended
`to be attached”
`“closed in on all sides of the transparent window
`without interruption, so that an enclosed air space
`is created between the transparent window of the
`plastic film”
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`1. The Parties’ Proposed Constructions
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`The phrase “continuously surrounding the transparent window” appears only in
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`independent Claim 1. The phrase “transparent window” appears in Claim 15, which depends
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`from Claim 1. Additionally, the ’942 Patent uses the term “window” in Claims 5 and 6.
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`The parties first dispute whether this phrase should actually be construed as two separate
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`phrases. Plaintiff contends that this phrase consists of two separate claim terms, “continuously
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`surrounding” and “transparent window,” each of which is in need of construction. Defendants,
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`on the other hand, assert that “continuously surrounding the transparent window” is one claim
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`term that requires only one construction.
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`Defendants argue that the Court should construe the term “continuously surrounding the
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`transparent window” as a single claim term. Defendants support this argument by stating that
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`“[i]t makes no sense to separately define ‘continuously surrounding’ and ‘transparent window’
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`. . ..” (Defs.’ Br. 12:9-15, ECF No. 159.) Defendants appear to argue that the phrase must be
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`construed as a single term because transparent window is the object that is being continuously
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`surrounded. (Id.) Defendants actually use the phrase “transparent window” to define
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`“continuously surrounding the transparent window.” Explicitly, Defendants’ propose that this
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`Court construe “continuously surrounding the transparent window” as “closed in on all sides of
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`the transparent window without interruption, so that an enclosed air space is created between the
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`transparent window of the plastic film.” (Defs.’ Br. 11:27-28 (emphasis added).) Conflating the
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`words of the claims in this manner is unhelpful to the finder of fact and violates Federal Circuit
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`precedent. See Z4 Techs., 507 F.3d at 1348. For this reason, the Court declines to adopt
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`Defendants’ proposed construction.
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`Plaintiff, on the other hand, requests that this phrase actually consists of two, separately
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`construable claims: “continuously surrounding” and “transparent window.” Plaintiff first notes
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`that the terms “transparent window” and “window” appear elsewhere in the ’942 Patent and that
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`the ’942 Patent does not consistently connect these terms with the phrase “continuously
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`surrounding.” See ’942 Patent col.8, ll.59-67 (Claims 5 and 6), col.1, ll.17-19 (Claim 15). In
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`fact, the ’942 Patent juxtaposes these two phrases together only once, in Claim 1. Thus,
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`Plaintiff argues that “[b]ecause these phrases appear in different claims and are only juxtaposed
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`once, there is no logical reason that they need to be read and construed together.” The Court
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`agrees and will, therefore, separately construe the terms “continuously surrounding” and
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`“transparent window.”
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`a.
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`“continuously surrounding”
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`The term “continuously surrounding” appears only once, in Claim 1, to modify the
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`claimed “spacer.” See ’942 Patent col.8, ll.35-43. Specifically, part of Claim 1 claims “a spacer
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`provided along the outer perimeter of the plastic film continuously surrounding the transparent
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`window . . ..” ’942 Patent col.8, ll.35-36.
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`Plaintiff proposes that the Court construe “continuously surrounding” as “surrounding on
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`all sides.” Defendants object to Plaintiff’s construction because it could encompass a “spacer”
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`that has even minute interruptions. Rather, as discussed above in Section IV.B.1, Defendants
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`contend that the Court should construe this phrase as “closed in on all sides of the transparent
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`window without interruption, so that an enclosed air space is created between the transparent
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`window of the plastic film.” (Defs.’ Br. 11:27-28, ECF No. 159.) At bottom, Defendants argue
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`that “continuously surrounding” cannot encompass a structure that has even the smallest of
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`interruptions.4 (Id. at 14:1-18.) Although the Court is currently not persuaded by Defendants’
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`arguments, these arguments are ill-suited for the claim construction stage of litigation because
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`they are aimed at the question of infringement. Specifically, it appears to the Court that these
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`arguments are aimed at the question of whether the accused device infringes the ’942 Patent,
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`either literally or under the doctrine of equ