CASE 0:20-cv-00358-ECT-HB Doc. 247 Filed 08/26/21 Page 1 of 2
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`J. Derek Vandenburgh
`Direct Dial: 612.436.9618
`E-mail: dvandenburgh@carlsoncaspers.com
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`August 26, 2021
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`Via ECF
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`Re: Oxygenator Water Technologies, Inc. v. Tennant Company
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`Civil Action No. 20-cv-0358 (ECT/HB)
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`The Honorable Eric C. Tostrud
`United States District Court
`316 N. Robert Street
`St. Paul, MN 55101
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`Dear Judge Tostrud:
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`Pursuant to Local Rule 7.1(j), Plaintiff OWT respectfully requests leave to file a motion
`for reconsideration of the Court’s construction in connection with the claim term “tubular
`housing” in independent claim 13 of the ’415 patent.
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`Compelling circumstances exist that justify a motion for reconsideration of the Court’s
`construction of this term. The Court’s conclusion that “tubular housing” requires a
`circular cross-sectional shape was based on the phrase “along the radius of the tubular
`housing” in dependent claim 14 and on the Court’s understanding that only circles have
`radii. Dkt. 162 at 38-39. However, the Court’s understanding is not correct—other
`geometric shapes, including squares and triangles, have a “radius.” Below are exemplary
`illustrations showing this:
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`Carlson Caspers Vandenburgh & Lindquist, P.A. 225 S. Sixth St., Ste. 4200 Minneapolis, MN 55402 612.436.9600 carlsoncaspers.com
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`CASE 0:20-cv-00358-ECT-HB Doc. 247 Filed 08/26/21 Page 2 of 2
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`The Honorable Eric C. Tostrud
`August 26, 2021
`Page 2
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`https://www.mathsisfun.com/definitions/radius-polygon-.html;
`https://math.libretexts.org/Bookshelves/Geometry/Book%3A_Elementary_College_Geo
`metry_(Africk)/07%3A_Regular_Polygons_and_Circles/7.01%3A_Regular_Polygons;
`see also https://www.mathopenref.com/polygonradius.html (all links last accessed
`August 26, 2021). Indeed, even the dictionary definition relied on by the Court lists
`multiple definitions for “radius,” not all of which require there be a circle associated
`therewith (see definitions 3c and 4).
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`Neither party submitted evidence on the meaning or scope of the term “radius.” This is
`understandable considering that the term was not identified by the parties as needing
`construction and appears only in dependent claim 14, which is not asserted to be
`infringed by Tennant. Because of this, the Court did not have the benefit of evidence
`submitted by the parties on the meaning of “radius,” but rather relied on its own research.
`See Dkt. 162 at 38-39.
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`Moreover, the Court’s narrow understanding of “radius” was material. The Court
`expressly characterized its decision on construction of “tubular housing” as a “close call.”
`Dkt. 162 at 36. And while the Court also discussed other evidence relied on by Tennant,
`the Court ultimately did not reject OWT’s arguments regarding this other evidence but
`instead found that OWT’s arguments were “outweighed by Claim 14’s reference to the
`‘radius’ of the tubular housing.” Id. at 38. Considering that claims are ordinarily entitled
`to the full scope of their ordinary meaning, OWT respectfully submits that this other
`evidence is equivocal at best and does not justify narrowing the ordinary meaning of
`“tubular.” See Thorner v. Sony Comput. Entm't Am. LLC, 669 F.3d 1362, 1367 (Fed. Cir.
`2012).
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`Given the Court’s reliance on an unduly narrow understanding of a claim term (“radius”)
`that was not formally identified for construction, OWT respectfully submits that further
`briefing on this close call is appropriate. See Lamoureux v. AnazaoHealth Corp., No.
`3:03-cv-01382, 2010 U.S. Dist. LEXIS 4976, at *5-7 (D. Conn., Jan. 22, 2010) (granting
`reconsideration because the court initially relied on an unduly narrow definition of
`“biodegradable”); Wi-LAN, Inc. v. Acer, Inc., No. 2:07-cv-473, 2010 U.S. Dist. LEXIS
`138111 (E.D. Texas, Dec. 30, 2010). OWT requests leave to file a motion for
`reconsideration with additional evidence regarding the term “radius” in dependent claim
`14 and its impact on the interpretation of “tubular housing” in independent claim 13.
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` Very truly yours,
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`s/J. Derek Vandenburgh
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`J. Derek Vandenburgh
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