Case: 2:17-cv-01041-ALM-CMV Doc #: 42 Filed: 11/16/18 Page: 1 of 32 PAGEID #: 1087
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`EASTERN DIVISION
`
`KIT CHECK, INC.,
`
`Plaintiff,
`
`v.
`
`HEALTH CARE LOGISTICS, INC.,
`
`Defendant.
`
`Case No. 2:17-cv-01041
`
`Judge Algenon L. Marbley
`Magistrate Judge Chelsey M. Vascura
`
`DEFENDANT HEALTH CARE LOGISTICS, INC.’S
`OPENING CLAIM CONSTRUCTION BRIEF
`
`Dated: November 16, 2018
`
`Jeffrey S. Standley (Ohio Bar #0047248)
`F. Michael Speed, Jr. (Ohio Bar #0067541)
`Beverly A. Marsh (OH Bar #0080935)
`STANDLEY LAW GROUP LLP
`6300 Riverside Drive
`Dublin, Ohio 43017
`Telephone: (614) 792-5555
`Facsimile: (614) 792-5536
`jstandley@standleyllp.com
`mspeed@standleyllp.com
`bmarsh@standleyllp.com
`litigation@standleyllp.com
`
`Attorneys for Defendant/Counterclaim
`Plaintiff Health Care Logistics, Inc.
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`Page 1 of 32
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`Health Care Logistics, Inc.
`Exhibit 1013
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`Case: 2:17-cv-01041-ALM-CMV Doc #: 42 Filed: 11/16/18 Page: 2 of 32 PAGEID #: 1088
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`TABLE OF CONTENTS
`INTRODUCTION .............................................................................................................. 1
`A.
`Background of Defendant HCL ...............................................................................1
`B.
`Background of Technology......................................................................................1
`C.
`Person of Ordinary Skill in the Art (POSITA) ........................................................2
`Claim construction requires a review of the claims, the specification, and the prosecution
`history. Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). This intrinsic
`evidence usually provides sufficient context to ascertain the meaning of the claim terms to
`one of ordinary skill in the art (POSITA) at the time of the invention. V-Formation, Inc.
`v. Benetton Group SpA, 401 F.3d 1307, 1310 (Fed. Cir. 2005). The POSITA in the
`timeframe at issue (circa 2011-2015) would have at least a bachelor’s degree or equivalent
`experience in inventory control related technology including knowledge and experience in
`RFID technology as well as knowledge, education or experience with software relating to
`inventory management. The POSITA would also have the ability, based upon their
`industry experience, to utilize RFID technology in managing pharmaceutical and medical-
`item inventory. Specifically, the POSITA would possess the requisite knowledge and skills
`to utilize RFID to assist with healthcare inventory management.
`THE ASSERTED PATENTS ..............................................................................................3
`A.
`The Patents in Suit ...................................................................................................3
`B.
`The Asserted Patents ................................................................................................3
`DISPUTED CLAIM CONSTRUCTIONS ..........................................................................5
`A.
`“Pharmacy item” .....................................................................................................5
`B.
`“Pharmacy kit[s]” .....................................................................................................7
`C.
`“Pharmacy kit template” ..........................................................................................8
`D.
`“Template” .............................................................................................................10
`E.
`“Printable portion including an RFID device” or “printable portion” ...................11
`F.
`“Segment” ..............................................................................................................12
`G.
`“Substitute first pharmacy item”/“substitute first medication” .............................14
`H.
`The Law of Means Plus Function Claiming ..........................................................15
`
`ii
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`I.
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`
`
`II.
`
`
`III.
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`Means-plus-function claiming rules under 35 U.S.C. § 112, para. 6 apply where the claims
`fail to recite sufficiently definite structure, or otherwise recite a function without reciting
`sufficient structure for performing that function. Williamson v. Citrix Online, LLC, 792
`F.3d 1339, 1349 (Fed. Cir. 2015). In the software context, structure is commonly
`understood through “an outline of an algorithm, a flowchart, or a specific set of instructions
`or rules” or “by describing the claim limitation’s operation, such as its input, output, or
`connections”. Konami Gaming, Inc. v. High 5 Games, LLC, Case No. 2:14-cv-01483-
`RFB-NJK, 2018 U.S. Dist. LEXIS 28337, at *27-28, 31-32 (D. Nev. Feb. 21, 2018). The
`fact that a commercially available, general purpose computer has the capacity to be
`programmed to perform the claimed function(s) is insufficient. Id. Once it is determined
`that 35 U.S.C. § 112, para. 6 applies, the claimed function must first be identified. Citrix,
`792 F.3d at 1351. Second, the structure that is disclosed in the specification and
`corresponds to the claimed function, if any, must be identified. Id. Here, 35 U.S.C. § 112,
`para. 6 is applicable because the claims recite terms like “processor”, “computer readable
`medium”, or “computer executable instructions” which are the same or similar to terms
`found to invoke means-plus-function claiming in other decisions. Further, there is no
`structure given in the specification detailing how the generic processor, etc. is supposed to
`go about performing the claimed functions.
`I.
`Means-Plus-Function Applicability to the Asserted Claims ..................................20
`
`IV. CONCLUSION ..................................................................................................................25
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`
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`
`
`
`
` Pages
`
`TABLE OF AUTHORITIES
`Cases
`
`
`
`
`
`
`
`Apple Inc. v. Motorola Inc., 757 F.3d 1286
`
`(Fed. Cir. 2014) ..................................................................................................................17
`
`CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 1146
`
`(Fed. Cir. 1997) ....................................................................................................................9
`
`Ergo Licensing, LLC v. CareFusion 303, Inc., 673 F.3d 1361
`
`(Fed. Cir. 2012) ..................................................................................................................17
`
`Function Media, L.L.C. v. Google, Inc., 708 F.3d 1310
`
`(Fed. Cir. 2013) ..................................................................................................................25
`
`GoDaddy.com, LLC v. RPost Communs. Ltd., Case No. CV-14-00126-PHX-JAT, 2016 U.S.
`
`Dist. LEXIS 5955 (D. Ariz. Jan. 19, 2016)..................................................................18, 19
`
`Harold Schoenhaus and Richard M. Jay v. Genesco, Inc., 351 F.Supp.2d 320
`
`(Fed. Cir. 2005) ....................................................................................................................9
`
`Konami Gaming, Inc. v. High 5 Games, LLC, Case No. 2:14-cv-01483-RFB-NJK, 2018 U.S.
`
`Dist. LEXIS 28337, at *11 (D. Nev. Feb. 21, 2018) ...................................................17, 19
`
`LizardTech, Inc. v. Earth Res. Mapping, Inc. 424 F.3d 1336
`
` (Fed. Cir. 2005) ...................................................................................................................9
`
`National Steel Car, Ltd. V. Canadian Pacific Railway, LTD., 357 F.3d 1319
`
`(Fed. Cir. 2004) ...................................................................................................................6
`
`Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302
`
`(Fed. Cir. 2012) ..................................................................................................................19
`
`Northrop Grumman Corp. v. Intel Corp., 325 F.3d 1346
`
`(Fed. Cir. 2003) ..................................................................................................................15
`
`Phillips v. AWH Corp., 415 F.3d 1303
`
`(Fed. Cir. 2005) (en banc) ....................................................................................................2
`
`Renishaw PLC v. Marposs Societa’per Azioni, 158 F.3d 1243
`
`(Fed. Cir. 1998) ................................................................................................................6, 9
`
`Retractable Techs., Inc. v. Becton, Dickinson & Co., 653 F.3d 1296
`
`(Fed. Cir. 2011) ....................................................................................................................8
`
` 
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`
`Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 375 F.3d 1341
`
`(Fed. Cir. 2004) ...................................................................................................................2
`
`V-Formation, Inc. v. Benetton Group SpA, 401 F.3d 1307, 1310
`
`(Fed. Cir. 2005) ...................................................................................................................2
`
`Watts v. XL Sys., Inc., 232 F.3d 877, 880
`
` (Fed. Cir. 2000) .................................................................................................................16
`
`Williamson v. Citrix Online, LLC, 792 F.3d 1339
`
`(Fed. Cir. 2015) ............................................................................................... 15-20, 24, 25
`
`
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`I. INTRODUCTION
`
`
`
`
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`Defendant Health Care Logistics, Inc.’s (“HCL”) proposed definitions are consistent
`
`with, and supported by, the intrinsic evidence (claim language, patent specification, and
`
`prosecution history). For a majority of claim terms, a review of the intrinsic evidence readily
`
`demonstrates their meanings. Claim interpretation in this case involves little more than the
`
`application of widely accepted meanings of commonly understood words.
`
`Many of Plaintiff’s definitions, on the other hand, depart from the ordinary meanings of
`
`commonly understood words and improperly broaden the meaning of certain claim terms or read
`
`in extraneous limitations into the claims even though there is an absence of disclaimer or
`
`lexicography in the intrinsic evidence.
`
`A. Background of Defendant HCL
`
`Defendant HCL is an Ohio corporation having a principle place of business at 450 Town
`
`St., Circleville, Ohio 43113. Since 1978, HCL has been an industry leader in the manufacture
`
`and distribution of health care inventory management products. HCL has invested in the
`
`research, development, manufacturing, and design of unique health care inventory solutions such
`
`as an accused product in this case, known as Stat Stock. HCL’s Stat Stock is a fast, user-friendly
`
`way for pharmacies to check the status of medications and supplies.
`
`B. Background of Technology
`
`The patents-in-suit and defendants accused devices relate to pharmaceutical and medical
`
`supply inventory management. Hospitals and other medical care facilities are known to keep a
`
`variety of medical kits on hand. These kits may contain commonly dispensed medications and
`
`commonly used medical supplies. In some cases, these kits contain medications and supplies for
`
`specific situations or that are tailored to particular departments in the hospital (e.g., emergency
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`care, maternity, cardiology, neurology, etc.). A well-known example is the “crash cart”. A crash
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`cart is a cart pre-stocked with medical supplies for resuscitating a patient with a life-threatening
`
`condition, such as for example, defibrillators, epinephrine, nitroglycerine, intubation supplies,
`
`and the like. Regardless, of the exact content and use of such medical kits, it is important that
`
`medical care facilities keep their kits stocked and ready for use. This involves identifying what
`
`is in the kit at the beginning of the day, identifying what is in the kit at the end of the day,
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`restocking missing items, and also identifying and replacing expired supplies.
`
`The purported inventions utilize known RFID technology to track and manage
`
`pharmaceutical and medicinal items. RFID technology has been used in inventory control
`
`management since at least the late 1980s. See for example, Teller et al., “Inventory Control
`
`System.” U.S. Patent 4,961,533. Issued Oct. 9, 1990. Here, the purported invention utilizes
`
`RFID technology to automate the aforementioned identification processes such that a user can
`
`quickly assess what supplies need to be restocked or replaced.
`
`C. Person of Ordinary Skill in the Art (POSITA)
`
`Proper claim construction requires a review of the patent’s intrinsic evidence, which
`
`includes the claim terms themselves, the specification, and the prosecution history. Phillips v.
`
`AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). The intrinsic record “usually provides the
`
`technological and temporal context to enable the court to ascertain the meaning of the claim to
`
`one of ordinary skill in the art at the time of the invention.” V-Formation, Inc. v. Benetton Group
`
`SpA, 401 F.3d 1307, 1310 (Fed. Cir. 2005). The person of ordinary skill in the art (POSITA) is
`
`relevant because proper claim construction relates to the “definition that one of ordinary skill in
`
`the art could ascertain from the intrinsic evidence in the record.” Unitherm Food Sys., Inc. v.
`
`Swift-Eckrich, Inc., 375 F.3d 1341, 1351 (Fed. Cir. 2004). In this case, a POSITA in the pertinent
`
` 
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`timeframe (circa 2011-2015) would have at least a bachelor’s degree or equivalent experience in
`
`inventory control related technology including knowledge and experience in RFID technology.
`
`In addition, a POSITA would have knowledge, education or experience with software relating to
`
`inventory management. Such a person would also have the ability, based upon their industry
`
`experience, to utilize RFID technology in managing pharmaceutical and medical-item inventory.
`
`Specifically, the POSITA would possess the requisite knowledge and skills to utilize RFID to
`
`assist with healthcare inventory management.
`
`II. THE ASSERTED PATENTS
`
`
`
`A.
`
`The Patents in Suit
`
`KCI asserts 79 claims from 7 patents against HCL: U.S. Patent Nos. 8,990,099; 9,037,479;
`
`9,058,412; 9,058,413; 9,367,665; 9,734,294; and 9,805,169 (the “Asserted Patents”). The
`
`“Accused Products” in this case are HCL’s RFID scanning stations, RFID tags, HCL’s “Stat
`
`Stock” reading station, and companion software.
`
`B.
`
`The Asserted Patents
`
` Each of the Asserted Patents is entitled “Management of Pharmacy Kits” with seemingly
`
`identical specifications. With the exception of the ‘294 Patent, each of the Asserted Patents
`
`contains claims for systems and methods for managing pharmacy kits. The ‘294 Patent claims
`
`RFID tags for use with a system for managing a pharmacy kit, and methods of use for RFID tags
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`configured for use with a system for managing a pharmacy kit.
`
`As explained in the Asserted Patents, pharmacy kits may be used by hospital pharmacies to
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`manage groups of medical items that are needed to treat a patient with a specific type of ailment
`
`such as a stroke or heart condition. The kits comprise a group of items that is specified by a template
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`and are loaded into a common container such as a box, tray, or canister. For example, a template
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`for a kit may specify that the kit requires three vials of adenosine, two containers of albuterol
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`solution, two vials of amiodarone, etc. See ‘099, Col. 1, ll. 14-27. Fig. 2A of the Asserted Patents
`
`shows an example of a pharmacy kit:
`
`
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`The Asserted Patents do not purport to invent the concept of pharmacy kits, and recognize that
`
`hospitals have routinely been defining and managing their own pharmacy kits. Id. at Col. 1., ll.
`
`19-41). As part of this practice, hospitals record drug codes, lot numbers, and expiration dates
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`for products that are placed into a kit, and update kits periodically to replace expired or
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`consumed items. Id. at Col. 1, ll. 44-54.
`
`
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`The asserted patents also do not purport to invent RFID tags and RFID readers. Rather,
`
`the asserted patents attempt to claim inventions relating the use of well-known RFID technology
`
`in the field of pharmaceutical inventory management.
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`III. DISPUTED CLAIM CONSTRUCTIONS
`
`
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`The parties have narrowed the number of disputed terms to 7 terms (labeled as A through
`
`G below). In addition, the parties dispute whether the claims contain “means-plus-function”
`
`language that must be construed pursuant to 35 U.S.C. § 112, para. 6. (Section H and I below.)
`
`
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`For convenience, all references to the joint specifications of the patents-in-suit are made
`
`to the specification of the ‘099 patent. The disputed claim constructions are as follows:
`
`A.
`
`“Pharmacy item”
`
`Plaintiff’s Proposed Construction
`Medicine or medicine-related supplies.
`
`Defendants’ Proposed Construction
`Medicines or medical supplies.
`
`
`
`For example, the term “pharmacy item” can be found in claim 1 of the ‘294 Patent.
`“…receive tag information including the first tag information from a plurality of
`RFID tags associated with a plurality of pharmacy items based at least in part
`on an antenna emitting a radio signal at least within a pharmacy kit container, the
`pharmacy kit container providing electromagnetic shielding, the plurality of RFID
`tags including the RFID tag and the plurality of pharmacy items including the
`first pharmacy item…”
`A review of the intrinsic evidence demonstrates that the meaning of the term “pharmacy
`
`
`
`item” is readily apparent and the claim interpretation in this case involves little more than the
`
`application of widely accepted meanings of commonly understood words. See, e.g., ‘099 Patent,
`
`col. 7, ll. 38-39 (indicating that pharmacy items “typically include medicines or other medical
`
`supplies that may be stocked by a pharmacy”); Figures 2A, 2C, 13A (2A illustrating medicines
`
`and medical supplies in a pharmacy kit; Fig. 2C illustrating a template defining medicines in a
`
`pharmacy kit; and Fig. 13A illustrating medicines and bandages in a pharmacy kit). A POSITA
`
`reading the specification and figures would ascertain from this intrinsic evidence that the
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`meaning of term “pharmacy item” is medicines (see, e.g. Fig. 13A, Flucticasone Propionate
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`Nasal Spray) or medical supplies (see, e.g. Fig. 13A, identifying various bandages). Because of
`
`the inclusion of bandages as an example of a pharmacy item, a POSITA would not believe the
`
`“pharmacy item” is limited to only medicine related items.
`
`Claim interpretations that do not read on the preferred embodiment “are rarely, if ever
`
`correct and would require highly persuasive evidentiary support.” National Steel Car, Ltd. v.
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`Canadian Pacific Railway, LTD., 357 F.3d 1319, 1336 (Fed. Cir. 2004). In this case, Plaintiff’s
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`claim interpretation does not read on the preferred embodiment because the “medicine-related
`
`supplies” language narrows the meaning of the term “pharmacy item” to impermissibly restrict
`
`the invention to medicine related supplies.
`
`The specification indicates that “the described embodiments relate generally to the
`
`management of pharmacy kits… such as those commonly used in hospital environments or other
`
`medical facilities. ‘099 Patent, col. 3, ll. 17-23. The pharmacy kits are also subject to local board-
`
`of-pharmacy regulations. See ‘099 Patent, col. 1, ll. 29-31. This intrinsic evidence demonstrates
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`that the inventors intended “pharmacy item” to cover both pharmaceutical products subject to
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`local board-of-pharmacy regulations as well as other medical supplies such as bandages. The
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`Federal Circuit has long held that claims terms should be interpreted to cover what was actually
`
`invented and what the inventor intended them to cover. Renishaw PLC v. Marposs Societa’per
`
`Azioni, 158 F.3d 1243 (Fed. Cir. 1998). It is clear from the intrinsic evidence that the inventor
`
`did not intend to limit the invention to cover only medicine-related items. Otherwise, why would
`
`the specification refer to bandages?
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`
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`HCL’s proposed construction is correct because it does not restrict the claims to cover
`
`only medicine related items.
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`B.
`
` “Pharmacy kit[s]”
`
`Plaintiff’s Proposed Construction
`Transportable container having a collection
`of pharmacy items for a common purpose
`that can be deployed for a specific medical
`procedure, for a specific physician, or to a
`designated location.
`
`Defendants’ Proposed Construction
`Transportable container having a collection
`of medical items for a common purpose
`that can be deployed for a specific medical
`procedure, for a specific physician, or to a
`designated location.
`
`
`For example, the term “pharmacy kit[s]” can be found in claim 1 of the ‘099 Patent.
`“…receive tag information from a plurality of radio frequency identification
`(RFID) tags coupled to a plurality of medicinal containers configured to store a
`plurality of drugs, the plurality of RFID tags being associated with a pharmacy
`kit located within the pharmacy kit container…”
`The proposed constructions are nearly identical, with the sole exception being “collection
`
`
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`of pharmacy items” (Plaintiff) versus “collection of medical items” (HCL).
`
`
`
`The intrinsic evidence explicitly supports that the kit contents must be medicines or
`
`medical supplies. See, e.g., ‘099 Patent, col. 7, ll. 38-39 (indicating that kit contents “typically
`
`include medicines or other medical supplies that may be stocked by a pharmacy”); Fig. 13A
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`(illustrating both medicines and bandages in a pharmacy kit). Given the plain and ordinary
`
`meaning of “medical items,” a POSITA would understand that medical items are medicines or
`
`medical supplies.
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`Plaintiff’s proposed definition is incorrect because it presents uncertainty as to what
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`“pharmacy item” means within the context of this claim language. On one hand, Plaintiff asserts
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`that “pharmacy item” independently means “medicine or medicine-related supplies.” On the
`
`other hand, Plaintiff attempts to support its proposed construction for “pharmacy kit” by citing to
`
`the following specification language: “the described embodiments relate generally to the
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`management of pharmacy kits… such as those commonly used in hospital environments or other
`
`medical facilities. Such kits can be distinguished generally from other types of kits used by
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`hospitals… due to the unique nature of pharmaceutical products.” ‘099 Patent, col. 3, ll. 17-23.
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`The court should not to interpret this language as rendering a limitation on “pharmacy item,” i.e.
`
`limiting “pharmacy item” as meaning pharmaceutical products (medicines, drugs). See
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`Retractable Techs., Inc. v. Becton, Dickinson & Co., 653 F.3d 1296, 1305 (Fed. Cir. 2011) (in
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`reviewing the intrinsic record to construe the claims, the court should avoid limiting the scope of
`
`the claims to one disclosed embodiment). Fig. 13A embodiment illustrates a pharmacy kit with
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`bandages, which are medical items, but not necessarily “pharmaceutical products” as that term is
`
`used in the specification. Thus, HCL’s construction should be used because it properly
`
`encompasses which items may be included in the pharmacy kit.
`
`C.
`
`“Pharmacy kit template”
`
`Plaintiff’s Proposed Construction
`Predetermined specification of permissible
`pharmacy items that form the contents of a
`pharmacy kit.
`
`Defendants’ Proposed Construction
`A specification that defines the contents of
`a pharmacy kit containing at least one
`segment.
`
`
`
`
`For example, the term “pharmacy kit template” can be found in claim 2 of the ‘479
`Patent.
`“…to verify the plurality of pharmacy items, the computer-executable instructions
`when executed further cause the one or more processors to compare pharmacy
`item data with a pharmacy kit template….”
`The review of the intrinsic evidence demonstrates that the meaning of the term
`
`
`
`“pharmacy kit template” is readily apparent and the claim interpretation in this case involves
`
`little more than the application of widely accepted meanings of commonly understood words.
`
`See, e.g., ‘099 Patent, col. 1, ll. 20-21; col. 7, ll. 66 – col. 8, ll. 5 (indicating that “a pharmacy
`
`kit… typically comprises a group of items specified by a template” and “the template defines a
`
`plurality of item segments… to be included in [the kit]”); Fig. 2B (illustrating a pharmacy kit
`
`template, said template defining a plurality of item segments). A POSITA would ascertain from
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`this intrinsic evidence that the meaning of the term “pharmacy kit template” is a specification
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`(see “items specified by a template”) that defines the contents of a pharmacy kit containing at
`
`least one segment (see “template defining a plurality of item segments”).
`
`
`
`Plaintiff’s proposed construction is incorrect because it fails to include the limitation that
`
`there must be at least one segment. This limitation is necessary for several reasons. First, the
`
`following language explicitly provides the definition of template: “More specifically, the
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`template defines a plurality of item segments (or “segments”) to be included in kit 105, where
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`each item segment corresponds to a class or type of items and/or additional segments to be
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`included in specific quantities.” ‘099 Patent, col. 7, ll. 66 – col. 8, ll. 5; See Harold Schoenhaus
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`and Richard M. Jay v. Genesco, Inc., 351 F.Supp.2d 320 (2005) (the patentee is free to act as his
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`own lexicographer). Second, each embodiment described and illustrated by Plaintiff involves a
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`template which defines the contents of a pharmacy kit containing at least one segment. See
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`CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 1146, 1153 (Fed. Cir. 1997) (the patent drawings
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`are “highly relevant in construing the… limitations of the claims”). It is clear from the intrinsic
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`evidence outlined above that a template lacking segments would fall outside the scope of
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`Plaintiff’s invention. See Renishaw PLC v. Marposs Societa’per Azioni, 158 F.3d 1243 (Fed. Cir.
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`1998) (claim terms should be interpreted to cover what was actually invented and what the
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`inventor intended them to cover). LizardTech, Inc. v. Earth Res. Mapping, Inc. is instructive
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`here. 424 F.3d 1336, 1345 (Fed. Cir. 2005). LizardTech involved a particular type of image
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`compression technology called a discrete wavelet transform or “DWT”. See generally id. At
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`issue was a claim directed to a “creating a seamless array of DWT coefficients generically”. Id.
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`at 1345. However, because the specification was directed at a particular method for creating a
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`seamless DWT (namely, “by maintaining updating sums of DWT coefficients”), and there was
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` 
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`9
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`Page 14 of 32
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`Health Care Logistics, Inc.
` Exhibit 1013
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`

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`Case: 2:17-cv-01041-ALM-CMV Doc #: 42 Filed: 11/16/18 Page: 15 of 32 PAGEID #: 1101
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`no disclosure of generic DWT, the Court found that the patent at issue did not cover seamless
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`DWT generically. Id. Ultimately, the Court held the claim at issue invalid pursuant to 35 U.S.C.
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`§ 112. However, the importance of the decision to claim interpretation in this matter is
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`compelling. A patentee is not entitled to claim something that was not invented.1 Plaintiff’s
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`patents have no disclosure of a system without a template or a template without a segment.
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`Accordingly, the Court should accept defendant’s definition of pharmacy kit template.
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`D.
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`“Template”
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`Plaintiff’s Proposed Construction
`Predetermined specification of permissible
`pharmacy items that form the contents of a
`pharmacy kit.
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`Defendants’ Proposed Construction
`A specification that defines the contents of
`a kit containing at least one segment.
`
`
`
`
`
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`For example, the term “template” can be found in claim 1 of the ‘099 Patent.
`“…identify any drugs that are missing from the pharmacy kit based at least in part
`on the tag information received from the plurality of RFID tags and a template
`for the pharmacy kit…”
`HCL’s proposed construction for “template,” differs from KCI’s proposed construction
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`for “pharmacy kit template,” with the exceptions being that “pharmacy kit” has been replaced
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`with “kit” and it has “at least one segment.”
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`
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`Plaintiff’s proposed construction for “template” is identical to Plaintiff’s proposed
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`construction for “pharmacy kit template.” Based on the reasoning set forth by HCL in part D,
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`Plaintiff’s proposed construction for “template” is incorrect, and HCL’s proposed construction
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`                                                            
`1 The Court’s analogy is instructive. “By analogy, suppose that an inventor created a particular fuel-efficient
`automobile engine and described the engine in such detail in the specification that a person of ordinary skill in the
`art would be able to build the engine. Although the specification would meet the requirements of with respect to a
`claim directed to that particular engine, it would not necessarily support a broad claim to every possible type of fuel-
`efficient engine, no matter how different in structure or operation from the inventor's engine.” Id. at 1346
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` 
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`Page 15 of 32
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`Health Care Logistics, Inc.
` Exhibit 1013
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`Case: 2:17-cv-01041-ALM-CMV Doc #: 42 Filed: 11/16/18 Page: 16 of 32 PAGEID #: 1102
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`should be adopted (see “template defining a plurality of item segments,” col. 7, ll. 66 – col. 8,
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`ll. 5).
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`E.
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`“Printable portion including an RFID device” or “printable portion”
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`Plaintiff’s Proposed Construction
`“printable portion” means a “portion
`capable of being printed with information”
`KCI does not believe that “including an
`RFID device” needs construction.
`
`Defendants’ Proposed Construction
`Portion capable of receiving a unique
`identifier from an RFID printer as in FIG.
`14D.
`
`
`For example, the term “Printable portion including an RFID device” can be found in
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`claim 1 of the ‘479 Patent.
`“…a printable portion including an RFID device…”
`The intrinsic evidence demonstrates that the meaning of “printable portion including an
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`RFID device” is readily apparent, thus the claim interpretation here involves little more than the
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`application of widely accepted meanings of commonly understood words. This term is used to
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`identify a portion of an RFID tag. (See ‘479 Patent, Claim 1, disclosing a “first RFID tag” that
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`comprises “a printable portion including an RFID device…”).
`
`The specification discloses that RFID tags can be encoded using an RFID printer. See
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`Col. 12, ll. 18-20 (the system