CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 1 of 39
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`OXYGENATOR WATER
`TECHNOLOGIES, INC.,
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`Plaintiff,
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`Civil File No. 20-cv-00358-ECT-HB
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`v.
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`TENNANT COMPANY,
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`Defendant.
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`TENNANT’S OPENING CLAIM CONSTRUCTION BRIEF
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 2 of 39
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ............................................................................................................... 1
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`BACKGROUND ................................................................................................................. 2
`I.
`THE ASSERTED PATENTS ....................................................................... 2
`II.
`PROSECUTION HISTORY ......................................................................... 5
`III. THE PARTIES .............................................................................................. 6
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`TERMS AND PHRASES AT ISSUE ................................................................................. 7
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`II.
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`V.
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`CLAIM CONSTRUCTION PRINCIPLES ......................................................................... 8
`CONSTRUCTION OF DISPUTED TERMS AND PHRASES ......................................... 9
`I.
`THE PATENTEE ACTED AS HIS OWN LEXICOGRAPHER FOR
`THE TERMS “WATER” AND “NANOBUBBLE” .................................... 9
`THE TERMS “OXYGENATED AQUEOUS COMPOSITION”
`AND “AQUEOUS MEDIUM” INCORPORATE THE
`APPLICANT’S DEFINITION OF “WATER” ........................................... 12
`III. THE PHRASE “CONDUCTIVITY PRODUCED BY THE
`PRESENCE OF DISSOLVED SOLIDS SUCH THAT THE
`WATER SUPPORTS PLANT OR ANIMAL LIFE,” IF CAPABLE
`OF CONSTRUCTION AT ALL, MUST REQUIRE WATER
`CONTAINING MORE THAN 2000 PPM DISSOLVED SOLIDS. .......... 15
`IV. OWT’S PROPOSED CONSTRUCTION OF THE “FLOWING
`WATER” TERMS IS IMPROPER BECAUSE IT IGNORES THE
`REASONS FOR ALLOWANCE. ............................................................... 16
`OWT’S PROPOSED DEFINITION OF “TUBULAR”
`CONTRADICTS THE SPECIFICATION AND FILE HISTORY ............ 20
`VI. TENNANT’S PROPOSED CONSTRUCTION OF TUBULAR
`FLOW AXIS FROM THE INLET TO THE OUTLET IS THE
`ONLY CONSTRUCTION WHICH MAINTAINS AN ACTUAL
`AXIS ............................................................................................................ 25
`VII. THE TERMS “POWER SOURCE” AND “AN ELECTRICAL
`POWER SOURCE” DO NOT REQUIRE CONSTRUCTION
`BECAUSE THEY ARE NON-TECHNICAL TERMS THE JURY
`CAN UNDERSTAND ................................................................................ 26
`VIII. THE PHRASE “INCAPABLE OF BREAKING THE SURFACE
`TENSION OF THE WATER” MEANS “CONTAINING
`NANOBUBBLES” ACCORDING TO THE APPLICANT’S
`LEXICOGRAPHY. ..................................................................................... 27
`i
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 3 of 39
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`X.
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`IX. OWT IMPROPERLY ATTEMPTS TO CHANGE THE
`COMMONLY UNDERSTOOD PHRASE “UP TO” ................................. 29
`OTHER OWT CONSTRUCTIONS ARE IMPROPER BECAUSE
`THEY ATTEMPT TO READ LIMITATIONS OUT OF THE
`CLAIMS ...................................................................................................... 30
`XI. OWT ATTEMPTS TO REMOVE THE “SECOND ANODE
`ELECTRODE PORTION” FROM THE ʼ665 PATENT ............................ 33
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`CONCLUSION ................................................................................................................. 35
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`ii
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 4 of 39
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Honeywell Int’l, Inc. v. Universal Avionics Sys. Corp.,
`493 F.3d 1358 (Fed. Cir. 2007) .................................................................................... 11
`
`Infinity Computer Prods., Inc. v. Oki Data Americas, Inc.,
`987 F.3d 1053 (Fed. Cir. 2021) .................................................................................... 25
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`Markman v. Westview Instruments, Inc.,
`52 F.3d 967 (Fed. Cir. 1995) (en banc) .......................................................................... 8
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`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) .................................................................................... 30
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`OSRAM GmbH v. Int’l Trade Comm’n,
`505 F.3d 1351 (Fed. Cir. 2007) .............................................................................. 18, 21
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`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) ...................................................... 8, 9, 12, 25
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`Salazar v. Procter & Gamble Co.,
`414 F.3d 1342 (Fed. Cir. 2005) .................................................................................... 17
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`Southwall Techs., Inc., v. Cardinal IG Co.,
`54 F.3d 1570 (Fed. Cir. 1995) ........................................................................................ 9
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`TDM Am., LLC v. U.S.,
`85 Fed. Cl. 774 (2009) ................................................................................................. 32
`Other Authorities
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`ACS PUBLICATIONS (Sep. 12, 2018),
`https://pubs.acs.org/doi/10.1021/acscatal.8b02712 ................................................... 1, 6
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`iii
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 5 of 39
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`INTRODUCTION
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`This is a patent infringement lawsuit against Defendant Tennant Company
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`(“Tennant”), a publicly traded company headquartered in Eden Prairie that manufacturers
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`commercial floor scrubbers. Plaintiff Oxygenated Water Technologies, Inc. (“OWT”)
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`owns three patents relating to creating tiny bubbles of oxygen in water: U.S. Patent Nos.
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`RE45,415 (“the ’415 patent), RE47,092 (“the ’092 patent), and RE47,665 (the ’665 patent)
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`(collectively, “Patents-In-Suit”). These are reissued patents, meaning they include new
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`claims that replaced claims contained in a previously issued patent.
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`The Patents-In-Suit claim methods for electrolysis, a common process of using
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`electricity to separate a solution into its components. Using electrolysis to produce oxygen
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`and hydrogen from water is well known. Joint Appendix (Dkt. 74, “JA”) JA11, 2:5-6.
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`Indeed, electrolysis has been used since the early 1800’s. See, e.g., Oxygen Evolution
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`Reaction – The Enigma in Water Electrolysis, ACS PUBLICATIONS (Sep. 12, 2018),
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`https://pubs.acs.org/doi/10.1021/acscatal.8b02712.
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`Tennant submits this brief in support of its proposed claim constructions.
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`Tennant’s constructions are consistent with the description of the invention in the
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`asserted patents and with the arguments the patentee made to the United States Patent and
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`Trademark Office (“PTO”) during prosecution. The patentee acted as his own
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`lexicographer and provided express definitions of several important terms. OWT asks
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`the Court to ignore those definitions. The Court cannot. The patentee’s lexicography
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`governs. OWT also improperly seeks to sidestep arguments it made when it obtained the
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`Patents-In-Suit and related patents. After saying one thing to the PTO, OWT cannot say
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`1
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 6 of 39
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`another to the Court. OWT’s proposed constructions are improper and should be
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`rejected. Tennant’s constructions are correct and should be adopted.
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`I.
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`THE ASSERTED PATENTS
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`BACKGROUND
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`The ’415 patent, the first of the Patents-In-Suit to issue, was filed on September
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`28, 2011, as a reissue application of U.S. Patent No. 7,670,495. The ’495 patent is a
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`division of application 10/732,326 (U.S. Pat. No. 7,396,441), which is a continuation-in-
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`part of application 10/372,017 (U.S. Pat. No. 6,689,262), which claims priority to U.S.
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`Provisional Application 60/358,534. This relationship is shown below.
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`2
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 7 of 39
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`App. No. 60/358,534
`Filed: February 22, 2002
`Provisional
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`NON-PROVISIONAL
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`App. No. 10/372,017
`Patent No. 6,689,262
`Filed: February 21, 2003
`Issued: February 10, 2004
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`CONTINUATION
`IN-PART
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`App. No. 10/732,326
`Patent No. 7,396,441
`Filed: December 10, 2003
`Issued: July 8, 2008
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`DIVISIONAL
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`DIVISIONAL
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`CONTINUATION
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`App. No. 12/023,416
`Filed: January 31, 2008
`Abandoned
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`App. No. 12/023,431
`Patent No. 7,670,495
`Filed: January 31, 2008
`Issued: March 2, 2010
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`RE-ISSUE
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`App. No. 13/247,241
`Patent No. RE45,415
`Filed: September 28, 2011
`Issued: March 17, 2015
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`CONTINUATION
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`App. No. 14/601,340
`Patent No. RE47,665
`Filed: January 21, 2015
`Issued: October 29, 2019
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`CONTINUATION
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`App. No. 15/085,741
`Patent No. RE47,092
`Filed: March 30, 2016
`Issued: October 23, 2018
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`CONTINUATION
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`App. No. 16/166,991
`Filed: October 22, 2018
`Pending
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`3
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`App. No. 11/367,134
`Filed: March 4, 2006
`Abandoned
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 8 of 39
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`After the ’415 patent issued, OWT obtained the other two reissue patents asserted
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`in this case: the ’092 and ’665 patents. Because the three Patents-In-Suit claim priority
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`to the same parent patent, all three have the same specification.1
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`The asserted patents relate to using electrolysis to form bubbles of oxygen in
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`water. Methods for producing an oxygenated composition using electrolysis were well
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`known at the time of the alleged invention. In fact, the patents acknowledge “[t]he
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`production of oxygen and hydrogen by the electrolysis of water is well known.” JA11,
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`2:5-11.
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`The patents teach separating the electrodes by a “critical distance” to produce
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`microbubbles and nanobubbles. The abstract notes, “when the anode and cathode are
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`separated by a critical distance, very small microbubbles and nanobubbles of oxygen are
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`generated.” JA1. The ʼ415 patent teaches the critical distance is the “special dimension”
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`of the invention that produces microbubbles and nanobubbles:
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`In the special dimensions of the invention,… O2 forms bubbles which are too
`small to break the surface tension of the fluid. These bubbles remain
`suspended indefinitely in the fluid and, when allowed to build up, make the
`fluid opalescent or milky. Only after several hours do the bubbles begin to
`coalesce on the sides of the container and the water clears. During that time,
`the water is supersaturated with oxygen.
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`JA12, 4:27-38.
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`Several embodiments are disclosed in the specification. None use electrolysis for
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`cleaning floors. See JA1-15.
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`Citations in this brief are generally to the specification of the ’415 patent.
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 9 of 39
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`II.
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`PROSECUTION HISTORY
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`The prosecution history for the asserted patents and those in the same family is
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`extensive, spanning seventeen years. A high-level summary appears below.
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`The initial provisional application filed by applicant James Senkiw in 2002
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`disclosed an oxygen-generating device placed into a bait bucket or live well to aerate the
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`water. Declaration of Cara S. Donels (“Donels Decl.”) Ex. A, at 3.
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`The applicant later filed a non-provisional application, resulting in the ’262 patent.
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`The non-provisional application included a section entitled “Definitions” and provided a
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`list of terms along with a statement that “[f]or the purpose of describing the present
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`invention the following terms have these meanings.” JA65, 3:11-13. The definitions are:
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`“Critical distance” means the distance separating the anode and cathode at
`which evolved oxygen forms microbubbles and nanobubbles.
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`“O2 emitter” means a cell comprised of at least one anode and at least one
`cathode separated by the critical distance.
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`“Metal” means a metal or an alloy of one or more metals.
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`“Microbubble” means a bubble with a diameter less than 50 microns.
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`“Nanobubble” means a bubble with a diameter less than that necessary to
`break the surface tension of water. Nanobubbles remain suspended in the
`water, giving the water an opalescent or milky appearance.
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`“Supersaturated” means oxygen at a higher concentration than normal
`calculated oxygen solubility at a particular temperature and pressure.
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`“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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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 10 of 39
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`Id., 3:14-33.
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`The applicant later filed a continuation-in-part application (resulting in the ʼ441
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`patent), which added a definition for superoxygenated water:
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`“Superoxygenated water” means water with an oxygen content at least
`120% of that calculated to be saturated at a temperature.
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`JA78, 4:19-21. The specification of the ’441 patent also includes a new embodiment for
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`a “flow-through” device. JA75, 77-78, 1:15-19, 3:18-27, Fig. 7A, 7B.
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`The applicant next filed a divisional application based on the ’441 patent, resulting
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`in U.S. Patent No. 7,670,495 (the ’495 patent). The Patents-In-Suit are all reissues of the
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`’495 patent.
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`III. THE PARTIES
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`Tennant is a publicly traded company headquartered in Eden Prairie, Minnesota.
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`Tennant manufactures and sells floor scrubbers. In 2008, Tennant developed technology
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`called ec-H2O™, which uses electrolyzed water to clean floors, reducing the amount of
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`needed chemicals.
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`In that same year, OWT was formed to commercialize the patents that had been
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`obtained at that time. (The Patents-In-Suit issued later.) OWT does not sell a
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`commercial product. In 2010, OWT launched a campaign seeking to license its patent
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`portfolio. OWT approached Tennant and many others. Tennant investigated the patents
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`and declined the invitation to license them. Tennant was not alone. Every company
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`OWT approached declined.
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 11 of 39
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`A decade later, OWT sent Tennant a letter accusing Tennant’s ec-H2O™
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`technology – technology Tennant had been selling for more than ten years – of infringing
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`the Patents-In-Suit. This lawsuit followed.
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`TERMS AND PHRASES AT ISSUE
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`As indicated in the Joint Claim Construction Statement (Dkt. 64), the parties agree
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`the Court may enter the following constructions:
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`Term(s)
`“a suspension
`comprising oxygen
`microbubbles and
`nanobubbles”
`“microbubbles”
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`“critical distance”
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`Patent Claim(s)
`’415 Patent, Claim 13
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`’415 Patent, Claims 13,
`19, 20, 21, 22, 25;
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`’092 Patent, Claim 23
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`’415 Patent, Claim 13
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`“aquarium reservoir
`container”
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`’415 Patent, Claim 20
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`“supersaturate”
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`’415 Patent, Claim 21
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`’092 Patent, Claim 64
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`’092 Patent, Claim 65
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`“concave”
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`“radial direction
`relative to the
`longitudinal center
`axis”
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`7
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`Agreed Construction
`A mixture including microbubbles
`and nanobubbles that are dispersed
`within but undissolved in the water.
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`A bubble with a diameter less than 50
`microns.
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`The distance separating the anode and
`cathode at which evolved oxygen
`forms microbubbles and nanobubbles.
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`A container designed for keeping fish
`or other live aquatic creatures.
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`Causing water to have oxygen at a
`higher concentration than normal
`calculated oxygen solubility at a
`particular temperature and pressure.
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`Curved inward.
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`A direction perpendicular to the
`longitudinal center axis.
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 12 of 39
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`The parties disagree regarding the construction of seventeen terms discussed in
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`this brief.
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`CLAIM CONSTRUCTION PRINCIPLES
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`Claim construction is a matter of law. Markman v. Westview Instruments, Inc., 52
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`F.3d 967, 979 (Fed. Cir. 1995) (en banc), aff’ d, 517 U.S. 370 (1996). Claim construction
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`begins with the words of the claim, which “are generally given their ordinary and
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`customary meaning.” Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005)
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`(en banc) (citations omitted). “The claims, of course, do not stand alone;” rather they
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`“must be read in view of the specification, of which they are a part.” Id. at 1315
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`(citations omitted). “[T]he specification is always ‘highly relevant to the claim
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`construction analysis. Usually, it is dispositive; it is the single best guide to the meaning
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`of a disputed term.’” Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
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`1582 (Fed. Cir. 1996)).
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`“[T]he specification may reveal a special definition given to a claim term by the
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`patentee that differs from the meaning it would otherwise possess” or “an intentional
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`disclaimer, or disavowal, of claim scope by the inventor.” Id. at 1316 (citations omitted).
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`In either case, “the inventor has dictated the correct claim scope, and the inventor’s
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`intention, as expressed in the specification, is regarded as dispositive.” Id.
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`In addition to the specification, a court “should also consider the patent’s
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`prosecution history.” Id. at 1317 (citing Markman, 52 F.3d at 980). The prosecution
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`history “was created by the patentee in attempting to explain and obtain the patent.” Id.
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`Accordingly, “the prosecution history can often inform the meaning of the claim
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 13 of 39
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`language by demonstrating how the inventor understood the invention and whether the
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`inventor limited the invention in the course of prosecution, making the claim scope
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`narrower than it would otherwise be.” Id. at 1317 (citations omitted). The prosecution
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`history will limit the meaning of claim terms “so as to exclude any interpretation that was
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`disclaimed during prosecution.” Southwall Techs., Inc., v. Cardinal IG Co., 54 F.3d
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`1570, 1576 (Fed. Cir. 1995).
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`If the dispute cannot be resolved from the intrinsic record alone, the Court may
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`also consider dictionaries and treatises “to better understand the underlying technology
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`and the way in which one of skill in the art might use the claim terms.” Phillips, 415
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`F.3d at 1318 (internal citations and quotation marks omitted). While “less significant
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`than the intrinsic record,” extrinsic evidence may “shed useful light on the relevant art.”
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`Id. at 1317 (internal citations and quotation marks omitted).
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`I.
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`CONSTRUCTION OF DISPUTED TERMS AND PHRASES
`THE PATENTEE ACTED AS HIS OWN LEXICOGRAPHER FOR THE
`TERMS “WATER” AND “NANOBUBBLE”
`
`Term/Phrase Patent Claim(s) Tennant’s Construction OWT’s Construction
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`“Water”
`
`
`’415 Patent, Claims
`13, 18, 19, 20, 21,
`25, 29
`
`’092 Patent, Claims
`13, 27, 60
`
`’665 Patent, Claims
`13, 55
`
`Water means any aqueous
`An aqueous medium
`medium with resistance less
`that can support the
`than one ohm per square
`electrolysis of water.
`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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`9
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 14 of 39
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`’415 Patent, Claims
`“Nanobubble”
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`13, 19, 20, 21, 22,
`25
`
`’092 Patent, Claim
`26
`
`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.
`
`A bubble with a
`diameter less than that
`necessary to break the
`surface tension of
`water.
`
`
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`The patentee acted as his own lexicographer as to the disputed terms “water” and
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`“nanobubble.” The patent specification includes a section entitled “Definitions” and
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`states: “For the purpose of describing the present invention the following terms have [the
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`listed] meanings.” JA12, 3:66-67. The applicant defined “water” and “nanobubble” as
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`follows:
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`“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.
`
`“Nanobubble” means a bubble with a diameter less than that necessary to
`break the surface tension of water. Nanobubbles remain suspended in the
`water, giving the water an opalescent or milky appearance.
`
`Id., 4:12-15, 4:22-26.
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`These definitions make construing “water” and “nanobubble” simple. The
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`applicant provided express definitions and those definitions control. Honeywell Int’l, Inc.
`
`v. Universal Avionics Sys. Corp., 493 F.3d 1358, 1361 (Fed. Cir. 2007) (“When a
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`patentee defines a claim term, the patentee’s definition governs, even if it is contrary to
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`the conventional meaning of the term.”) (citations omitted).
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`10
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 15 of 39
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`The applicant also defined “critical distance,” “microbubble,” and
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`“supersaturated.” JA12, 4:1-3, 10-11, 16-19. The parties agreed that the Court should
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`adopt those definitions. See Dkt. 64. Despite acknowledging that the applicant acted as
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`his own lexicographer for “critical distance,” “microbubble,” and “supersaturated,” OWT
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`asks the Court to deviate from the applicant’s definitions of “water” and “nanobubble” by
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`leaving out portions of the patent’s definitions. OWT’s proposed constructions exclude
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`the highlighted portions of these defined terms:
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`“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.
`
`“Nanobubble” means a bubble with a diameter less than that necessary to
`break the surface tension of water. Nanobubbles remain suspended in the
`water, giving the water an opalescent or milky appearance.
`
`Cherry picking portions of the definitions would be clear error. The Court should
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`not adopt some parts of the patentee-prescribed definitions and ignore other parts.
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`Phillips, 415 F.3d at 1316 (“[T]he inventor’s intention, as expressed in the specification,
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`is… dispositive.”).
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`The definitions of “water” and “nanobubble” contained in the patents apply and
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`are the appropriate constructions of those terms.
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`11
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 16 of 39
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`II.
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`THE TERMS “OXYGENATED AQUEOUS COMPOSITION” AND
`“AQUEOUS MEDIUM” INCORPORATE THE APPLICANT’S
`DEFINITION OF “WATER”
`
`Term/Phrase
`
`“Oxygenated
`aqueous
`composition”
`
`“Aqueous
`medium”
`
`Patent
`Claim(s)
`
`’415 Patent,
`Claim 13
`
`Tennant’s Construction OWT’s Construction
`
`A composition of water
`and oxygen
`
`
`Plain and ordinary
`meaning.
`
`
`’415 Patent,
`Claim 13
`
`A mixture made with
`water
`
`
`Plain and ordinary
`meaning.
`
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`The dispute concerning the definition of “water” extends to the related terms
`
`“oxygenated aqueous composition” and “aqueous medium.” For both terms, Tennant’s
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`constructions incorporate “water” as defined in the patent, whereas OWT proposes plain
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`and ordinary meaning. Tennant’s construction is correct.
`
`The term “oxygenated aqueous composition” is used in the preamble of Claim 13
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`of the ’415 patent. The claim teaches that an “oxygenated aqueous composition” is
`
`formed from “water:”
`
`A method for producing an oxygenated aqueous composition comprising:
`
`flowing water… through an electrolysis emitter…
`
`the water flows in the inlet, out the outlet, and the water flowing into the
`inlet has a conductivity produced by the presence of dissolved solids such
`that the water supports plant or animal life.
`
`JA16, 11:20-45.2
`
`
`
`All emphasis added unless otherwise noted.
`
`12
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` 2
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 17 of 39
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`
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`The term “water” must be given the definition adopted in the patent. Thus, an
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`“oxygenated aqueous composition” is a composition of water and oxygen, with “water”
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`having the meaning the patent ascribed.
`
`The term “aqueous medium” appears in the preamble of Claim 55 of the ’665
`
`patent. Claim 55 describes the configuration of an emitter used for electrolysis of
`
`“water”:
`
`An emitter for electrolytic generation of bubbles of oxygen in an aqueous
`medium comprising:
`
`
`a tubular housing defining an oxygenation chamber… said housing having
`a water inlet and a water outlet,…
`
`the electrodes being positioned… so that water may flow from the water
`inlet to the water outlet without passing through a space between the
`electrodes…
`
`JA56-57, 16:58-17:18.
`
`
`
`Thus, an “aqueous medium” is a mixture made with water, where “water” has the
`
`definition ascribed in the patent.
`
`OWT used the terms “water” and “aqueous medium” interchangeably throughout
`
`the specification. The definition of “water” in the patents refers to an “aqueous medium.”
`
`JA12, 4:22-23 (“‘Water’ means any aqueous medium…”). OWT also used “water” and
`
`“aqueous medium” as synonymous in the section describing the invention:
`
`When the object of generating bubbles is to oxygenate the water, either air,
`with an oxygen content of about 21%, or pure oxygen may be used. The
`production of oxygen and hydrogen by the electrolysis of water is well
`known. A current is applied across an anode and a cathode which are
`immersed in an aqueous medium… Hydrogen gas is produced at the
`cathode and oxygen gas is produced at the anode.
`
`
`13
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 18 of 39
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`
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`Models of different size are provided to be applicable to various volumes of
`aqueous medium to be oxygenated… Those models with low voltage
`requirements are especially suited to oxygenating water in which animals
`are to be held.
`
`JA11, 2:3-11, 3:17-22.
`
`OWT used the words “water” and “aqueous medium” as synonyms before the
`
`USPTO as well. See, e.g., JA1142-43 (“These phases [sic] accordingly support the
`
`characterizing phrase ‘aqueous medium (or water) having a conductivity produced by
`
`dissolved solids so that the aqueous medium (or water) is capable of supporting plant or
`
`animal life.’”).
`
`OWT cannot reasonably dispute that an “oxygenated aqueous composition” and an
`
`“aqueous medium” are formed from “water” as defined in the patents. The specification
`
`states that “water” is used to create the claimed “oxygenated aqueous composition” and
`
`“aqueous medium.” The specification also states that “[f]or the purpose of describing the
`
`present invention” the word “water” has the special definition the applicant gave it. See
`
`JA12, 3:64-67, 4:22-26. OWT cannot avoid the applicant’s definition of “water” in the
`
`construction of terms that are derived from water.
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`14
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 19 of 39
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`III. THE PHRASE “CONDUCTIVITY PRODUCED BY THE PRESENCE OF
`DISSOLVED SOLIDS SUCH THAT THE WATER SUPPORTS PLANT OR
`ANIMAL LIFE,” IF CAPABLE OF CONSTRUCTION AT ALL, MUST
`REQUIRE WATER CONTAINING MORE THAN 2000 PPM DISSOLVED
`SOLIDS.
`
`Patent
`Claim(s)
`
`’415 Patent,
`Claim 13
`
`Tennant’s Construction
`
`OWT’s
`Construction
`
`To the extent that this term is not
`Plain and
`indefinite, it should be construed as
`ordinary
`“water containing more than 2000 ppm
`meaning.
`total dissolved solids.”
`
`
`Term/Phrase
`
`“conductivity
`produced by the
`presence of
`dissolved solids
`such that the
`water supports
`plant or animal
`life”
`
`The phrase “conductivity produced by the presence of dissolved solids such that
`
`the water supports plant or animal life” (“Plant or Animal Life Term”) appears in method
`
`claim 13 of the ’415 patent. The specification does not provide a range of dissolved
`
`solids that allegedly support plant or animal life. It does, however, provide many
`
`examples of the types of plant or animal life contemplated: “fish,” “aquatic animals,”
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`“detoxifying microflora,” “plant roots,” “cucumbers,” “tomatoes,” and “crops.” See
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`JA11-12, 1:38-43; 1:53; 2:51; 2:58, 3:42. These examples grow in a range of water—
`
`both fresh and salt water—with a range of dissolved solids. It is common knowledge that
`
`most freshwater fish and plants will die if placed in ocean water—and vice versa. Due to
`
`the extreme variability in plant and animal environmental needs, this claim element is
`
`indefinite unless the meaning is clarified by the patentee’s definition of “water.”
`
`As discussed in §I, the patentee acted as its own lexicographer regarding the term
`
`“water.” If the Plant or Animal Life Term is to have any definite meaning, it must mean
`
`15
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 20 of 39
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`
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`“water containing more than 2000 ppm total dissolved solids”—the specific level of
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`dissolved solids identified as creating “the lower limit of resistance for a medium that can
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`support electrolysis.” JA12, 4:12-15. Without incorporating this definition, the public is
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`left guessing as to which plant or animal’s life is being supported, as well as what level of
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`dissolved solids would lead to conductivity supporting that plant or animal life.
`
`IV. OWT’S PROPOSED CONSTRUCTION OF THE “FLOWING WATER”
`TERMS IS IMPROPER BECAUSE IT IGNORES THE REASONS FOR
`ALLOWANCE.
`
`Term/Phrase
`
`Patent
`Claim(s)
`
`Tennant’s Construction OWT’s Construction
`
`’415 Patent,
`Claim 13
`
`Placing the emitting device in the
`fluid to be treated as opposed to
`using a pipe system.
`
`
`’665 Patent,
`Claim 13
`
`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.
`
`
`“Flowing
`water…
`through an
`electrolysis
`emitter”
`
`“Deliver
`electrical
`current to the
`electrodes
`while water
`flows through
`the tubular
`housing”
`
`“A flow-
`through
`oxygenator”
`
`’092 Patent,
`Claim 13
`
`Placing the emitting device in the
`fluid to be treated as opposed to
`using a pipe system.
`
`“Passing
`water through
`the tubular
`housing”
`
`’092 Patent,
`Claim 13
`
`Placing the emitting device in the
`fluid to be treated as opposed to
`using a pipe system.
`
`Moving water through
`an electrolysis emitter
`by means other than
`electrolysis.
`
`
`Deliver electrical
`current to the
`electrodes while
`moving water through
`the electrolysis
`emitter by means
`other than
`electrolysis.
`
`
`An oxygenator
`configured to connect
`to a source of flowing
`water.
`
`Moving water through
`an electrolysis emitter
`by means other than
`electrolysis.
`
`16
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`CASE 0:20-cv-00358-ECT-HB Doc. 76 Filed 06/10/21 Page 21 of 39
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`Four disputed terms refer to “flowing” or “passing” water through the electrolysis
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`unit (“Flowing Water Terms”). Tennant’s proposed construction of the Flowing Water
`
`Terms is based on the specification and the Examiner’s reasons for allowance. OWT’s
`
`proposed construction ignores the intrinsic evidence.
`
`During prosecution of the ’415 patent, the Examiner allowed the claims over the
`
`referenced prior art because the patent describes “placing the emitting device in fluid to
`
`be treated,” whereas the prior art teaches “flowing the fluid through the device using a
`
`pipe system”:
`
`The following is a statement of reasons for the indication of allowable
`subject matter: The prior are [sic] does not disclose the method step of
`placing the emitting device in the fluid to be treated. It discloses flowing
`the fluid through the device using a pipe system.
`
`JA1119. The Examiner gave this same reason for allowance four times. See id., JA1070,
`
`JA1197, and JA1278. OWT never refuted the Examiner’s statement. See generally
`
`JA981-1313. Thus, the claims cannot cover “using a pipe system.”
`
`
`
`In contrast, nothing in the patents or prosecution history prohibits moving the
`
`water through the emitter through electrolysis alone. See Salazar v. Procter & Gamble
`
`Co., 414 F.3d 1342, 1347 (Fed. Cir. 2005) (“Statements about a claim term made by an
`
`examiner during prosecution of an application may be evidence of how one of skill in the
`
`art understood the term at the time the application was filed.”). Example 6 in the
`
`specification describes a “T” model configuration where the emitter unit is “set in a side
`
`arm,” and the emitted bubbles are “swept into the water flow.” JA15, 9:27-29. Even
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`17
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`CASE 0:20-cv-00