CASE 0:20-cv-00358-ECT-HB Doc. 64 Filed 04/09/21 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MINNESOTA
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`OXYGENATOR WATER
`TECHNOLOGIES, INC.
`
`
`
`v.
`
`TENNANT COMPANY
`
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`
`
`
`
`Civil Action No. 0:20-cv-00358
`(ECT/HB)
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`
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`
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`JOINT PATENT CASE STATUS REPORT AND CLAIM
`CONSTRUCTION STATEMENT
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`Pursuant to the Pretrial Scheduling Order (ECF No. 43, modified by ECF No. 62),
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`Plaintiff Oxygenator Water Technologies, Inc. (“OWT”) and Defendant Tennant
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`Company (“Tennant”) jointly submit this Joint Patent Case Status Report and Claim
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`Construction Statement.
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`A.
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`Claim Construction Hearing
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`The parties request a claim construction hearing to determine claim interpretation.
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`Pursuant to the Pretrial Scheduling Order, the parties will jointly contact the Chambers of
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`District Judge Eric C. Tostrud no later than April 16, 2021 to request a hearing date.
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`B.
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`Pre-Claim Construction Conference and Technology Tutorial
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`Tennant requests a pre-claim construction conference with the Court which would
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`include an informal technology tutorial. This tutorial shall be made through attorney
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`presentation rather than witness testimony. Tennant request a pre-claim construction
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`conference to address how the Court would like the Markman hearing handled, and in
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`1
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`

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`CASE 0:20-cv-00358-ECT-HB Doc. 64 Filed 04/09/21 Page 2 of 8
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`general to allow the parties to engage directly with the Court to address any issues in the
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`Markman process that the Court believe would benefit from clarification.
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`OWT does not believe a pre-claim construction conference is a prudent use of
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`party or judicial resources in this case and is concerned that it may delay progression of
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`the case. Tennant has not identified any issues to discuss that would help the parties
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`simplify or streamline the claim construction process. There is no need for a conference
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`simply for the Court to provide its general preferences for how the Markman hearing
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`should be handled, as the Scheduling Order already contemplates that the Court will
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`provide these preferences in its Claim Construction Hearing Order. (ECF No. 43 at 19.)
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`OWT also does not believe a stand-alone hearing for a technology tutorial is necessary in
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`this case. OWT believes the parties can adequately present their overview of the
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`technology at the outset of the claim construction hearing.
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`C.
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`Agreed Claim Constructions
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`Patent Claim(s) Agreed Claim Construction
`’415 Patent,
`A mixture including microbubbles and
`Claim 13
`nanobubbles that are dispersed within but
`undissolved in the water.
`
`
`Term(s)/Phrase(s)
`“a suspension
`comprising oxygen
`microbubbles and
`nanobubbles”
`
`
`“microbubbles”
`
`“critical distance”
`
`’415 Patent,
`Claims 13, 19,
`20, 21, 22, 25;
`’092 Patent,
`Claim 23
`’415 Patent,
`Claim 13
`
`A bubble with a diameter less than 50 microns.
`
`The distance separating the anode and cathode
`at which evolved oxygen forms microbubbles
`and nanobubbles.
`A container designed for keeping fish or other
`live aquatic creatures.
`
`2
`
`
`“aquarium reservoir
`container”
`
`’415 Patent,
`Claim 20
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`CASE 0:20-cv-00358-ECT-HB Doc. 64 Filed 04/09/21 Page 3 of 8
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`Causing water to have oxygen at a higher
`concentration than normal calculated oxygen
`solubility at a particular temperature and
`pressure.
`Curved inward.
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`A direction perpendicular to the longitudinal
`center axis.
`
`“supersaturate”
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`“concave”
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`“radial direction relative
`to the longitudinal center
`axis”
`
`
`
`’415 Patent,
`Claim 21
`
`’092 Patent,
`Claim 64
`’092 Patent,
`Claim 65
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`D.
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`Terms for Construction
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`The list of terms, phrases, or clauses that the parties believe requires the Court’s
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`construction are below, along with each party’s proposed construction of each disputed
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`claim term, phrase, or clause.1
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`Claim Term, Phrase,
`or Clause
`“water”
`
`OWT Proposed
`Construction
`An aqueous medium that
`can support the
`electrolysis of water.
`
`
`
`Patent
`Claim(s)
`’415
`Patent,
`Claims 13,
`18, 19, 20,
`21, 25, 29;
`’092
`Patent,
`Claims 13,
`27, 60;
`’665
`Patent,
`Claims 13,
`55
`
`Tennant Proposed
`Construction
`Water means any
`aqueous medium with
`resistance less than one
`ohm per square
`centimeter, that is, a
`medium that can support
`the electrolysis of water.
`In general, the lower
`limit of resistance for a
`medium that can support
`electrolysis is water
`containing more than
`2000 ppm total dissolved
`solids.
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`
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`1 Tennant asserts that a number of claim terms are indefinite. Without waiving its ability
`to make any argument at summary judgment, trial, or in post-trial briefing, Tennant has
`agreed not to request the Court find any claim terms indefinite during claim construction
`proceedings. Therefore, Tennant’s alternative indefiniteness positions for a number of
`these terms are not identified in the following chart.
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`3
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`CASE 0:20-cv-00358-ECT-HB Doc. 64 Filed 04/09/21 Page 4 of 8
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`“conductivity produced
`by the presence of
`dissolved solids such
`that the water supports
`plant or animal life”
`“aqueous medium”
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`“oxygenated aqueous
`composition”
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`“tubular housing”
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`“flowing water . . .
`through an electrolysis
`emitter”
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`“a flow-through
`oxygenator”
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`“deliver electrical
`current to the
`electrodes while water
`flows through the
`tubular housing”
`
`“passing water through
`the tubular housing”
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`“an electrical power
`source”
`
`
`“a power source”
`
`’415
`Patent,
`Claim 13
`
`’665
`Patent,
`Claim 55
`
`’415
`Patent,
`Claim 13
`’415
`Patent,
`Claims 13,
`26
`’415
`Patent,
`Claim 13
`
`’092
`Patent,
`Claim 13
`
`‘665
`Patent,
`Claim 13
`
`’092
`Patent,
`Claim 13
`
`’415
`Patent,
`Claim 13
`
`’092
`Patent,
`Claims 13
`and 27;
`’665
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`
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`Plain and ordinary
`meaning.
`
`
`Plain and ordinary
`meaning.
`
`
`Plain and ordinary
`meaning.
`
`Plain and ordinary
`meaning. The term does
`not require a circular cross
`section.
`Moving water through an
`electrolysis emitter by
`means other than
`electrolysis.
`
`An oxygenator configured
`to connect to a source of
`flowing water.
`
`Deliver electrical current
`to the electrodes while
`moving water through the
`electrolysis emitter by
`means other than
`electrolysis.
`
`Moving water through an
`electrolysis emitter by
`means other than
`electrolysis.
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`Electrical and mechanical
`equipment and their
`interconnections used to
`generate and/or convert
`power.
`
`
`4
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`Water containing more
`than 2000 ppm total
`dissolved solids.
`
`a mixture made with
`water
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`a composition of water
`and oxygen
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`an enclosure shaped like
`a cylinder, hose, or tube
`
`Placing the emitting
`device in the fluid to be
`treated as opposed to
`using a pipe system
`
`Placing the emitting
`device in the fluid to be
`treated as opposed to
`using a pipe system
`Delivering electrical
`current to the electrodes
`while the emitting device
`is in the fluid to be
`treated as opposed to
`being used with a pipe
`system.
`Plain and ordinary
`meaning
`
`Plain and ordinary
`meaning
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`CASE 0:20-cv-00358-ECT-HB Doc. 64 Filed 04/09/21 Page 5 of 8
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`“nanobubbles”
`
`“incapable of breaking
`the surface tension of
`the water”
`the water temperature
`is a factor for
`formation of the
`suspension”
`
`“the microbubbles and
`nanobubbles remain in
`the water at least in
`part for a period up to
`several hours”
`
`“wherein the period for
`which the
`microbubbles and
`nanobubbles at least in
`part remain in the
`water is determined by
`containing the water
`with microbubbles and
`nanobubbles in a two
`and one half gallon
`aquarium reservoir
`container”
`“a first anode electrode
`portion that is non
`parallel to a second
`anode electrode
`portion”
`“tubular flow axis from
`the inlet to the outlet”
`
`Patent,
`Claim 13
`
`’415
`Patent,
`Claims 13,
`19, 20, 21,
`22, 25;
`’092
`Patent,
`Claim 26
`
`’415
`Patent,
`Claim 25
`’415
`Patent,
`Claim 18
`
`’415
`Patent,
`Claim 19
`
`’415
`Patent,
`Claim 20
`
`
`
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`A bubble with a diameter
`less than that necessary to
`break the surface tension
`of water.
`
`
`Plain and ordinary
`meaning.
`
`Plain and ordinary
`meaning. The term does
`not require the
`temperature be measured
`or evaluated
`The microbubbles and
`nanobubbles remain in the
`water at least in part for at
`least several hours.
`
`
`Plain and ordinary
`meaning. This claim
`identifies physical
`properties of the
`microbubbles and
`nanobubbles and identifies
`a test methodology for
`determining whether the
`microbubbles and
`nanobubbles have that
`physical property.
`
`Nanobubble means a
`bubble with a diameter
`less than necessary to
`break the surface tension
`of water. Nanobubbles
`remain suspended in the
`water, giving the water
`an opalescent or milky
`appearance.
`Containing nanobubbles.
`
`
`The method uses water
`temperature to determine
`whether or not a
`suspension can be
`formed.
`Where the microbubbles
`and the nanobubbles
`remain in water for any
`period of time up to
`several hours.
`
`Claim requires an alleged
`infringer contain the
`water with microbubbles
`and nanobubbles in a two
`and one half gallon
`aquarium reservoir
`container.
`
`’665
`Patent,
`Claim 61
`
`Plain and ordinary
`meaning.
`
`’415
`Patent,
`Claim 13
`
`Plain and ordinary
`meaning, which is: a main
`line of flow through the
`
`A first anode and a
`second anode with planar
`surfaces that are not
`oriented in the same
`direction
`A straight line defining a
`path through which water
`flows through the tubular
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`5
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`CASE 0:20-cv-00358-ECT-HB Doc. 64 Filed 04/09/21 Page 6 of 8
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`tubular housing from the
`inlet to the outlet.
`
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`housing and extending
`from the inlet to the
`outlet.
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`Prior to the deadline for this submission, Tennant’s counsel was engaged in
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`substantial summary judgment briefing on another matter and did not appreciate the
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`portion of the Scheduling Order that required this Joint Claim Construction Statement to
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`include each party’s (1) identification of all references from the specification or
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`prosecution history to support their respective contentions; (2) identification of any
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`extrinsic evidence to support their proposed construction or oppose the other party’s
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`proposed construction; and (3) the identity of every witness, including experts, that each
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`party proposes to call to offer testimony relating to claim construction; and for each
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`expert, a summary of the opinion to be offered. (ECF No. 43 at 18.) Therefore, on the
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`day the Joint Claim Construction Statement was due, prior to any exchange of this
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`information, Tennant informed OWT it was not prepared to exchange that information.
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`Tennant requested that the parties exchange that information on or before April 13, 2021
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`and file the information with the Court on that day. OWT agreed to that proposal. The
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`parties intend to submit two exhibits reflecting the above information on April 13, 2021.
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`E.
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`Proposed Briefing Schedule
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`
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`The parties have agreed to the following briefing schedule, including any
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`declarations and depositions on claim constructions.
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`6
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`CASE 0:20-cv-00358-ECT-HB Doc. 64 Filed 04/09/21 Page 7 of 8
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`Deadline
`42 days before claim construction hearing
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`35 days before claim construction hearing
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`Event
`Deadline for both parties to file Opening
`Claim Construction Briefs and Expert
`Declarations
`Deadline to serve any expert declarations
`responding to the other party’s Opening
`Claim Construction Brief
`Each party agrees to make their expert
`available for deposition
`Responsive claim construction briefs due
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`This schedule is based on the parties’ agreement that Tennant will not be requesting the
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`34-28 days before claim construction
`hearing
`14 days before claim construction hearing
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`Court find that any claim is indefinite. The parties further agree that each brief shall not
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`exceed 12,000 words, including all text as identified in Local Rule 7.1(f)(1)(C).
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`7
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`CASE 0:20-cv-00358-ECT-HB Doc. 64 Filed 04/09/21 Page 8 of 8
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`Dated: April 9, 2021
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`Dated: April 9, 2021
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`/s/ Nathan D. Louwagie
`Philip P. Caspers (#0192569)
`J. Derek Vandenburgh (#0224145)
`Aaron W. Pederson (#0386953)
`Nathan D. Louwagie (#0397564)
`CARLSON, CASPERS, VANDENBURGH
`& LINDQUIST, P.A.
`225 South Sixth Street, Suite 4200
`Minneapolis, MN 55402
`Phone: (612) 436-9600
`Facsimile: (612) 436-9605
`pcaspers@carlsoncaspers.com
`dvandenburgh@carlsoncaspers.com
`apederson@carlsoncaspers.com
`nlouwagie@carlsoncaspers.com
`
`Attorneys for Plaintiff Oxygenator Water
`Technologies, Inc.
`
`
`
`
`/s/ R. Scott Johnson
`Lora M. Friedemann (#0259615)
`Adam R. Steinert (#0389648)
`FREDRIKSON & BYRON, P.A.
`200 South Sixth Street, Suite 4000
`Minneapolis, MN 55402-1425
`Telephone: 612.492.7000
`lfriedemann@fredlaw.com
`
`R. Scott Johnson (Admitted Pro Hac Vice)
`Cara S. Donels (Admitted Pro Hac Vice)
`FREDRIKSON & BYRON, P.A.
`505 E. Grand Avenue, Suite 200
`Des Moines, IA 50309-1977
`Telephone: 515.242.8900
`rsjohnson@fredlaw.com
`cdonels@fredlaw.com.
`
`Attorneys for Defendant Tennant Company
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`8
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