Case 1:14-cv-00392-GMS Document 232 Filed 04/17/17 Page 1 of 2 PageID #: 7018
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
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`GREEN MOUNTAIN GLASS, LLC AND
`CULCHROME, LLC,
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`Plaintiffs,
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`v.
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`SAINT-GO BAIN CONTAINERS, INC. dba
`VARALLIA NORTH AMERICA,
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`Defendant.
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`Civil Action No. 14-392-GMS
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`ORDER CONSTRUING THE TERM "UNSORTED MIXED COLOR GLASS CULLET"
`IN U.S. PATENT NO. 5,718,737
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`After considering the submissions of the parties, IT IS HEREB)'. ORDERED,
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`ADJUDGED, and DECREED that, as used in the asserted claims of U.S. Patent Nos. 5,718,737
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`("the '73 7 patent"):
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`1.
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`The phrase "unsorted mixed color glass cullet" is construed to mean "broken pieces
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`of glass of mixed colors." 1
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`1 The court was asked to construe the term "unsorted." That term, however, is used throughout the
`patent as part of the phrase "unsorted mixed color glass cullet." '737 patent, col. 3 I. 58, col. 7 I. 44. The
`court finds that it makes the most sense to construe the phrase as a whole. The patent uses the phrase
`"unso1ied mixed color glass cullet" and "mixed color glass cullet" interchangeably. The court previously
`construed "mixed colored cullet glass" in accordance with its definition in the specification-"broken
`pieces of glass of mixed colors." (D.I. 151 at 1-2). Accordingly, the court will construe the two terms to
`have the same meaning.
`Ardagh contends that "uns01ied" means "not s01ted for color." (D.I. 220 at 1). Ardagh derives that
`construction from the applicant's statements to the Patent Office during prosecution, where, according to
`Ardagh, Green Mountain inserted "unsorted" in every claim to distinguish it over the imperfectly "color
`sorted cullet" of the prior mi. Id at 2. Ardagh argues that the prosecution history "proves that uns01ied
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`O-I Glass, Inc.
`Exhibit 1052
`Page 001
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`Case 1:14-cv-00392-GMS Document 232 Filed 04/17/17 Page 2 of 2 PageID #: 7019
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`Dated: April _l_l, 201 7
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`cull et means cullet which has not been sorted for color at all." Id. at 1. The court finds that the applicant's
`statements in the prosecution history actually support Green Mountain's proposed construction.
`The applicant submitted a Preliminaiy Amendment to address the Examiner's rejections to claims
`in Patent Application No. 08/399,299.
`(D.I. 220, Ex. D). The '737 patent (Patent Application No.
`08/683,353) is a continuation of the '299 patent application, refiled to correct an inventorship issue in the
`Id.; '737 patent, col. 1 11. 7-8. The applicant's Preliminary Amendment sought to
`'299 application.
`overcome the previous rejections to the '299 patent application, given that the two applications were
`essentially the same.
`The Examiner rejected some of the claims of the '299 application as obvious over the prior art.
`The Examiner also believed that on page 1, lines 14-17 and page 2, lines 21-23 of the '299 application, the
`applicant admitted that is was "known in the glass making aii to use uns01ied mixed colored glass cullet to
`make recycled glass products of a particular color." (D.I. 220, Ex. D at 4). The applicant denied that he
`had made such an admission. Id. The applicant's remarks in the Preliminary Amendment reiterated the
`sentiment expressed in the patent: due to the imprecision of conventional glass recycling methods, mixed
`color glass pieces "are a common by-product of the sorting process." Id. Prior to the '737 patent, according
`to the applicant, only sorted single color glass cullet could be used to create recycled glass end-products.
`Id. The mixed colored glass pieces-the by-product of conventional glass recycling-had to be used for
`other purposes. Id. The comi is not persuaded that the applicants amendment and the prior art require
`limiting "unsorted mixed color cullet" to mixed color cullet never subject to color-sorting.
`To the contrary, the patent seeks to utilize the by-product of color so1iing-imperfectly color s01ied
`'737 patent, col. 1 11. 65-67. While the comi understands that glass can never be perfectly color
`glass.
`so1ied, it agrees with Green Mountain that when the patent refers to color sorted glass that is glass s01ied
`to be priinarily or largely one color. Id. col.211. 8-17, col. 3 11. 46--48. It is clear from the briefing, however,
`that Ardagh believes that even imperfectly color s01ied glass-glass that has undergone some type of color
`so1iing, albeit to little or no avail--qualifies as color sorted glass. (D.I. 220 at 1). There is nothing in the
`patent that supports Ardagh's construction. Accordingly, the court declines to limit the scope of the term
`"unso1ied mixed color cullet" to only glass that has never been color s01ied at all. As the court sees it,
`unsorted mixed color cullet can include both mixed colored glass that has never been color sorted and mixed
`colored glass that was unsuccessfully color sorted.
`Lastly, Ardagh argues that construing "uns01ied mixed color cullet" and "mixed color cullet" to
`mean the same thing would vitiate a claim term and violate the principles of claim construction. (D.I. 220
`at 3). The court disagrees. The specification and the claims provide overwhelming evidence for the
`conclusion that the two phrases mean the same thing. Claim 1 discloses "obtaining uns01ied mixed color
`glass cullet" and then in the next limitation of the same claim, "adding to said mixed color glass cullet."
`'737 patent, col. 7 11. 41-44. Additionally, the specification states that it is an "object of the invention to
`decolorize the green component glass in a mixed color cullet." Id. col. 3 11. 50-51. Just a few lines down
`from the disclosure of decolorizing the green component glass, the patent explains that "[a]lternatively, the
`amber colored glass in the unso1ied mixed color cullet may be decolorized." Id. col. 3 II. 57-59. While
`there exists a "preference for giving meaning to all te1ms," that maxim is not "an inflexible rule that
`supersedes all other principles of claim construction. SimpleAir, Inc. v. Sony Ericsson Mobile Commc'ns
`AB, 820 F.3d 419, 429 (Fed. Cir. 2016). Giving meaning to the term "unso1ied" in a way that distinguishes
`the claim phrase "unsorted mixed color cullet" from "mixed color cullet" would go against the intrinsic
`evidence. The court finds, therefore, that the intrinsic evidence requires it to construe the terms to mean
`broken pieces of glass of mixed colors.
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`2
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`O-I Glass, Inc.
`Exhibit 1052
`Page 002
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