Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 1 of 16 PageID #: 6088
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`GEMAK TRUST,
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`Plaintiff,
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`v.
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`RECKITT BENCKISER LLC,
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`Defendant.
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`GEMAK TRUST,
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`Plaintiff,
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`CHURCH & DWIGHT CO., INC.,
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`Defendant.
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`Civil Action No. 18-1855-RGA
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`Civil Action No. 18-1854-RGA
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`MEMORANDUM OPINION
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`Susan E. Morrison, Kelly Allenspach Del Dotto (argued), Casey Kraning, John S. Goetz
`(argued), FISH & RICHARDSON P.C., Wilmington, DE, New York, NY, Attorneys for
`Plaintiff.
`
`Pilar G. Kraman and Robert M. Vrana, YOUNG CONAWAY STARGATT & TAYLOR, LLP,
`Wilmington, DE; Douglas J. Nash (argued) and John D. Cook, BARCLAY DAMON, LLP,
`Syracuse, NY, Attorneys for Defendant Reckitt Benckiser LLC.
`
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`Philip A. Rovner and Jonathan A. Choa, POTTER ANDERSON & CORROON LLP,
`Wilmington, DE; James H. Shalek and Baldassare Vinti (argued), PROSKAUER ROSE LLP,
`New York, NY, Attorneys for Defendant Church & Dwight Co., Inc..
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`July 27, 2020
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`

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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 2 of 16 PageID #: 6089
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`/s/ Richard G. Andrews
`ANDREWS, UNITED STATES DISTRICT JUDGE:
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`Before the Court is the issue of claim construction of various terms in U.S. Patent Nos
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`6,787,514 (“the ‘514 patent”) and 6,486,116 (“the ‘116 patent”). I have considered the parties’
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`Joint Claim Construction Brief and two letters from the parties. (D.I. 51; D.I. 57; D.I. 58).1 I
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`heard oral argument on June 23, 2020.
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`I.
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`BACKGROUND
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`The ‘514 and ‘116 patents are directed to a product used in detergents. The invention
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`claimed in the ‘514 patent “stabilize[s] percarbonate in water-soluble film packaging,” and the
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`‘116 patent describes a phosphate-free formulation of the product. (D.I. 51 at 1; D.I. 44-2 ex. A;
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`D.I. 44-3 ex. B).
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`II.
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`LEGAL STANDARDS
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`
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` “It is a bedrock principle of patent law that the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude.” Phillips v. AWH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) (en banc) (internal quotation marks omitted). “‘[T]here is no magic formula or
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`catechism for conducting claim construction.’ Instead, the court is free to attach the appropriate
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`weight to appropriate sources ‘in light of the statutes and policies that inform patent law.’”
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`SoftView LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips,
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`415 F.3d at 1324) (alteration in original). When construing patent claims, a court considers the
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`literal language of the claim, the patent specification, and the prosecution history. Markman v.
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`Westview Instruments, Inc., 52 F.3d 967, 977–80 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370
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`(1996). Of these sources, “the specification is always highly relevant to the claim construction
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`1 The Court will refer to docket items for Civil Action No. 18-1854-RGA without the
`corresponding docket item numbers for Civil Action No. 18-1855-RGA.
`2
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`

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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 3 of 16 PageID #: 6090
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`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.”
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`Phillips, 415 F.3d at 1315 (internal quotation marks omitted).
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`“[T]he words of a claim are generally given their ordinary and customary meaning. . . .
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`[Which is] the meaning that the term would have to a person of ordinary skill in the art in question
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`at the time of the invention, i.e., as of the effective filing date of the patent application.” Id. at
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`1312–13 (citations and internal quotation marks omitted). “[T]he ordinary meaning of a claim
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`term is its meaning to [an] ordinary artisan after reading the entire patent.” Id. at 1321 (internal
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`quotation marks omitted). “In some cases, the ordinary meaning of claim language as understood
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`by a person of skill in the art may be readily apparent even to lay judges and claim construction in
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`such cases involves little more than the application of the widely accepted meaning of commonly
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`understood words.” Id. at 1314.
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`When a court relies solely upon the intrinsic evidence—the patent claims, the specification,
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`and the prosecution history—the court’s construction is a determination of law. See Teva Pharm.
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`USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). The court may also make factual findings
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`based upon consideration of extrinsic evidence, which “consists of all evidence external to the
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`patent and prosecution history, including expert and inventor testimony, dictionaries, and learned
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`treatises.” Phillips, 415 F.3d at 1317–19 (internal quotation marks omitted). Extrinsic evidence
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`may assist the court in understanding the underlying technology, the meaning of terms to one
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`skilled in the art, and how the invention works. (Id.). Extrinsic evidence, however, is less reliable
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`and less useful in claim construction than the patent and its prosecution history. (Id.).
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`“A claim construction is persuasive, not because it follows a certain rule, but because it
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`defines terms in the context of the whole patent.” Renishaw PLC v. Marposs Societa’ per Azioni,
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`158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that “a claim interpretation that would exclude
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`3
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`

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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 4 of 16 PageID #: 6091
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`the inventor’s device is rarely the correct interpretation.” Osram GmbH v. Int’l Trade Comm’n,
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`505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation and internal quotation marks omitted).
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`
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`III.
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`CONSTRUCTION OF UNDISPUTED TERMS
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`In their Joint Claim Construction Brief the parties agreed to construe “compressed into a
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`tablet format” in claim 13 of the ’116 patent as “compressed into solid briquettes.” (D.I. 51 at 78-
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`79). The parties affirmed this view during oral argument and the Court adopted this construction.
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`(D.I. 59 at 107:18-25, 108:1-2).
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`IV. CONSTRUCTION OF DISPUTED TERMS
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`During oral argument I adopted the following constructions:
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`Claim Term
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`“granulated percarbonate compound” (’514
`patent claims 1, 8); “granulated percarbonate”
`(’116 patent claim 1)
`“for use in detergent products storable in PVA
`film packaging” (’514 patent claim 1)
`“is capable of being stored in a water-soluble
`PVA film packaging for at least nine months”
`(’116 patent claim 1)
`“does not include a zeolite, a perborate or a
`phosphate” (’116 patent claim 1)
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`Construction
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`Plain meaning.
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`Preamble is limiting; plain meaning.
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`Plain meaning.
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`"does not include any zeolite, perborate, or
`phosphate"
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`I reserved judgment on the following terms: “a blend encapsulating the percarbonate” (’514
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`patent claims 1, 8); “a blend which encapsulates the percarbonate” (’116 patent claim 1); and “a
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`phosphate” (’116 patent claim 1).
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`A.
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`“a blend encapsulating the percarbonate” (’514 patent claims 1, 8); “a blend
`which encapsulates the percarbonate” (’116 patent claim 1).
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`During oral argument Plaintiff and Defendants agreed to construe encapsulate as
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`“enclosing and surrounding the percarbonate.” (D.I. 59 at 34:14-18, 35:21-24, 36:2-4). The Court
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`will adopt that construction. For the term “a blend” the Court will adopt the following
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`4
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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 5 of 16 PageID #: 6092
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`construction: “one or more physically intermingled components.” The reasoning for the Court’s
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`construction is detailed below. The Court adopts the following full construction for the claim
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`terms:
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`Claim Term
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`Construction
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`“a blend encapsulating the percarbonate” (’514
`patent claims 1, 8)
`“a blend which encapsulates the percarbonate”
`(’116 patent claim 1)
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`components
`intermingled
`“physically
`enclosing and surrounding the percarbonate”
`“physically intermingled components which
`enclose and surround the percarbonate”
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`1.
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`Background of the ‘514 and ‘116 patents.
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`
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`Sodium percarbonate is a bleaching agent used in detergent products. (D.I. 44-2 ex. A
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`1:29-30; D.I. 44-3 ex. B 1:12-13, 1:22-23). Sodium percarbonate is unstable when “combined
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`with components of a high moisture content.” (D.I. 44-2 ex. A 1:30-32; D.I. 44-3 ex. B 1:22-25).
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`The invention ensures the percarbonate is stable in a water-soluble film that can be stored for at
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`least nine months. (D.I. 44-2 ex. A 4:45-48; D.I. 44-3 ex. B, 1:54-57). This “fully built detergent”
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`system can then be used in commercial laundries, domestic dishwashers, and domestic washing
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`machines. (D.I. 44-2 ex. A 1:26-27, 1:45-48; D.I. 44-3 ex. B 1:20; 1:44-45). The percarbonate is
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`stabilized when surrounded by a blend of chemical components. (D.I. 44-2 ex. A 1:50-52, 2:17-
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`19; D.I. 44-3 ex. B 1:47-50, 1:55-56).
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`In the specification of the ‘514 patent the inventor indicates the preferred embodiment of
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`the chemical blend surrounding the percarbonate is sulphate, carboxymethyl cellulose and a
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`nonionic surfactant. (D.I. 44-2 ex. A 1:53-54). The ‘116 patent describes the blend as a
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`combination of sulphate, carboxymethyl cellulose, and a nonionic surfactant with the ideal
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`embodiment consisting of sodium sulphate, carboxymethyl cellulose, and a nonionic surfactant.
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`(D.I. 44-3 ex. B 1:49-51, 1:58-59). Both the ‘514 and ‘116 patents describe a “powder/liquid
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`5
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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 6 of 16 PageID #: 6093
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`blend” that encapsulates the percarbonate to form a “dust free granule of a diameter not less that
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`150 microns.” (D.I. 44-2 ex. A 4:35-37, 4:62-64; D.I. 44-3 ex. B 4:26-28, 4: 54-56).
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`2.
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`The parties’ proposed constructions.
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`Plaintiff’s proposed construction is “a mixture of substances.” (D.I. 51 at 6). Plaintiff
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`argues that the specifications indicate that inventor used “a blend” in a way that is consistent with
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`the “broadest understanding of ‘mixture.’” (D.I. 51 at 7). Plaintiff directs the Court to a 1996
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`publication of the “Cambridge International Dictionary of English,” which defines “blend” as the
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`verb “to mix or combine together,” and to the 1997 edition of a textbook on powder mixing where
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`mixture is described as a synonym for blend. (D.I. 51 at 7 n.5, 27; D.I. 52-3 ex. 1-B at 134; D.I.
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`54-1 ex. 13-O at 2). The textbook defines mixture as “the product of the physical intermingling
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`of more than one finely divided component when those components retain their physical identity.”
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`(D.I. 54-1 ex. 13-O at 2). Plaintiff also argues that Defendants’ construction reads limitations into
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`the term that are not supported by any intrinsic evidence presented to the Court. (D.I. 51 at 7-9).
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`Defendants’ proposed construction is a “uniform, permanent combination of chemical
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`ingredients resulting in an entirely different combination with its own unique properties.” (D.I. 51
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`at 6). Defendants argue the specifications of both patents are consistent with Defendants’
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`construction of “a blend,” and that the inventor disavowed the terms “mixture” and “mixed” during
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`patent prosecution. (D.I. 51 at 14-15). Defendants argue that the percarbonate must be
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`encapsulated by a barrier to moisture that is both uniform and permanent to prevent moisture from
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`reaching the percarbonate. (D.I. 51 at 14-15). Defendants also base their construction on three
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`pieces of extrinsic evidence: a chemical dictionary and two web articles. (D.I. 51 at 14-15).
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`3.
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`Defendants’ construction.
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`6
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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 7 of 16 PageID #: 6094
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`Defendants argue that Plaintiff’s proposed construction cannot be correct because the
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`inventor disavowed “mixture” and “mixed” during the prosecution of the ‘514 patent. (D.I. 51 at
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`14). The Court cannot agree with this conclusion. The doctrine of prosecution disclaimer requires
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`a “clear and unmistakable” disavowal. Mass. Inst. of Tech. v. Shire Pharm., Inc., 839 F.3d 1111,
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`1119 (Fed. Cir. 2016) (quoting 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1325
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`(Fed. Cir. 2013)). During the prosecution of the ‘514 patent the inventor asserted that the prior art
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`did not teach or suggest the encapsulation of percarbonate. (D.I. 44-4 ex. C at JA-064-065, JA-
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`068). There was no disavowal of the words “mixture” or “mixed” in the exchange, only the
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`inventor’s assertion that the mixing process described in prior art did not necessarily teach
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`encapsulation.
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`Defendants’ second argument is that “mixture” and “blend” have different meanings to a
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`person of skill in the art, an argument they support with extrinsic evidence.2 (D.I. 51 at 14). Two
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`pieces of this evidence were published after the claimed invention, one of which was written by a
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`“technical copywriter and marketer” and the other of which has no author listed; the third has no
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`listed publication date. (D.I. 53-3 ex. 3; D.I. 53-5 ex. 5; D.I. 53-4 ex. 4 respectively). In arriving
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`at the proper construction, the Court must “accord a claim the meaning it would have to a person
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`of ordinary skill in the art at the time of the invention." Innova/Pure Water, Inc. v. Safari Water
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`Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004). The Court attaches little weight to
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`2 Defendants’ construction is derived from a synthesis of three pieces of extrinsic evidence that
`Defendants use to characterize “a blend” as “a uniform, permanent combination of chemical
`ingredients resulting in an entirely different combination with its own unique properties.” (D.I.
`51 at 6). Blending is described as “a process which combines different ingredients and [the]
`result obtained is the chemical compound with its unique properties.” (D.I. 53-3 ex. 3 at 1).
`Blending results in “a chemical compound with its own unique properties.” (D.I. 53-4 ex. 4 at
`2). “This chemical will normally be permanently blended and cannot be separated back into its
`original components.” (D.I. 53-4 ex. 4 at 2). Blend is “[a] uniform combination of two or more
`materials.” (D.I. 53-5 ex. 5 at 168).
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`7
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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 8 of 16 PageID #: 6095
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`Defendants’ extrinsic evidence. Defendants have given the Court no indication that the extrinsic
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`evidence was applicable at the time of the effective filing date for the ‘514 and ‘116 patents.3 (D.I.
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`44-2 ex. A at JA-002; D.I. 44-3 ex. B at JA-010).
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`Defendants’ last argument rests on the assertion that their construction is necessitated by
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`the purpose of the invention — to prevent percarbonate from reacting with moisture.4 (D.I. 51 at
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`15). The Court does not find that Defendants construction necessarily follows from the stated
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`purpose of the invention. The consequence of adopting Defendants’ construction would be to read
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`numerous limitations into the term “a blend.” These limitations are: “uniform;” “permanent;”
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`“entirely different combination;” and “with its own unique properties.” (D.I. 51 at 6). These
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`limitations are not consistent with the specifications or claims of the ‘514 or ‘116 patents. (D.I.
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`44-2 ex. A; D.I. 44-3 ex. B). For example, there is nothing in either of the patents’ specifications
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`or prosecution history to suggest that a person of ordinary skill in the art would understand “a
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`blend” to mean a product that is “permanent” or one “with its own unique properties” or that it
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`results in an “entirely different combination.” (D.I. 51 at 6). These limitations are based on
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`Defendants’ extrinsic evidence which is not contemporaneous with the patents’ effective filing
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`dates. Supra n.2. Finally, importing a uniformity requirement into “a blend” makes the term more
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`ambiguous, not less. Defining a blend as uniform would require the Court to define what
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`uniformity means, but there is no intrinsic evidence or extrinsic evidence that would support the
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`Court’s construction. The degree of uniformity — or homogeneity — is a function of “the scale
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`of scrutiny with which one examines the mixture.” (D.I. 54-1 ex. 13-O at 45). For example, a
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`3 During oral argument, Plaintiff asserted that the effective filing date for the ‘514 patent was
`1997 and 1998 for the ‘116 patent. (D.I. 59 at 9:8-9, 10:23-11:2). The foreign priority dates in
`the two patents correspond to Plaintiff’s assertions. (D.I. 44-2 ex. A at JA-002; D.I. 44-3 ex. B
`at JA-010).
`4 Defendants use a leaky roof analogy to buttress their argument. (D.I. 51 at 15).
`8
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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 9 of 16 PageID #: 6096
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`cake batter may seem uniform from three feet away, but close examination may reveal that the
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`batter’s constituent ingredients are not evenly dispersed. Because Defendants’ construction is not
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`supported by intrinsic or extrinsic evidence, the Court declines to adopt it.
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`4.
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`Plaintiff’s construction.
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`Plaintiff’s construction — which essentially substitutes the word “mixture” for “blend” —
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`is no more viable than Defendants’ construction. The Court cannot conclude that substituting the
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`word mixture for blend provides more clarity when Plaintiff asserts that the two words are
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`essentially synonymous. (D.I. 51 at 7 n.5, 27; D.I. 52-3 ex. 1-B at 134; D.I. 54-1 ex. 13-O at 2).
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`The Court will not substitute “a mixture” for “a blend” in light of the principle that “[t]he
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`construction that stays true to the claim language and most naturally aligns with the patent's
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`description of the invention will be, in the end, the correct construction.” Phillips, 415 F.3d at
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`1316 (quoting Renishaw PLC, 158 F.3d 1250).
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`5.
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`The Court’s construction.
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`The Court does not adopt the plain meaning of the term “a blend” as this construction
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`would not resolve the dispute between the parties. See O2 Micro Int'l Ltd. v. Beyond Innovation
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`Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008). The intrinsic evidence for the ‘514 and ‘116
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`patents does not shed light on the proper construction of the “a blend,” but the extrinsic evidence,
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`namely the textbook on the principles of powder mixing, does provide the Court with a definition.5
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`(D.I. 54-1 ex. 13-O at 2). In the textbook a mixture is defined as “the product of the physical
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`5 The textbook was published in 1997, one year before and the same year as the effective filing
`dates of the ‘116 and ‘514 patents, respectively. (D.I. 54-1 ex. 13-O; D.I. 44-2 ex. A at JA-002;
`D.I. 44-3 ex. B at JA-010). The Court affords this definition more weight because it is specific
`to the relevant art and is more contemporaneous with the patent filings. The other definitions
`provided to the Court were either much later than the patent filings or from a much more
`general-purpose dictionary.
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`9
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`

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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 10 of 16 PageID #: 6097
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`intermingling of more than one finely divided component[s] when those components retain their
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`physical identity.” (D.I. 54-1 ex. 13-O at 2). If “blend” and “mixture” are synonyms, then through
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`a simple syllogism “a blend” can be defined as “the product of the physical intermingling of more
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`than one finely divided component[s] when those components retain their physical identity.” The
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`Court will not adopt the phrases “finely divided” or “when those components retain their physical
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`identity” because a construction that includes these phrases would import limitations into the term
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`that are not supported by the language of the patents. (D.I. 44-2 ex. A; D.I. 44-3 ex. B). The Court
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`will adopt the following construction for the term “a blend:” “physically intermingled
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`components.”
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`B.
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`“a phosphate” (’116 patent claim 1).
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`The claimed invention describes a phosphate-free detergent formulation to reduce the
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`detrimental environmental effects of detergents. (D.I. 44-3 ex. B at 1:37-40, 1:43-45). In the
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`specification of the ‘116 patent the inventor characterizes “a phosphate” as a compound that causes
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`negative environmental effects, promotes solubilization, aids detergency, and is used in detergent.
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`(Id. at 1:37-40). The parties agree that the purpose of the phosphate-free formulation disclosed in
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`the “116 patent was environmental preservation, but disagree about the scope of phosphorous-
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`containing compounds that are encompassed by the term “a phosphate.” (D.I. 51 at 65-66, 69).
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`The Court will construe “a phosphate” as “sodium tripolyphosphate and sodium pyrophosphate.”
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`The reasoning for the Court’s decision is detailed below.
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`1.
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`The parties’ proposed constructions.
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`Plaintiff’s proposed construction of “a phosphate” is “a salt of phosphoric acid.” (D.I. 51
`
`at 65). The ‘116 patent’s specification describes “a phosphate” as a compound that is used in
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`detergent, causes negative environmental effects, and promotes solubilization and detergency.
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`10
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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 11 of 16 PageID #: 6098
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`(D.I. 44-3 ex. B at 1:37-40). Plaintiff argues that a skilled artisan would know salts of phosphoric
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`acid are the only phosphate-containing compounds that meet these criteria. (D.I. 51 at 66).
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`According to Plaintiff’s expert, a person of ordinary skill in the art would know salts of phosphoric
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`acid contain the chemical sub-structures that mediate solubilization and detergency and result in
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`negative environmental effects. (D.I. 51 at 65-66). Plaintiff also argues Defendants’ construction
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`is too broad in that it would encompass compounds that would never be used in detergents, such
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`as organophosphates, as well as phosphorus-containing compounds that would be used in a
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`“phosphate-free” detergent formulation. (D.I. 51 at 66, 73).
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`Defendants argue that “a phosphate” should be construed broadly to include “an anion,
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`salt, functional group or ester derived from an acid containing phosphorous.” (D.I. 51 at 65).
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`Defendants arrive at their construction through the use of four general dictionaries and one
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`technical dictionary. (D.I. 51 at 67-68). Defendants argue that Plaintiff uses the specification to
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`improperly limit the scope of the claim term “a phosphate.” (D.I. 51 at 69). Defendants also refer
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`to a 2006 research article in the Journal of Business Chemistry and a 2002 E.U. environmental
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`report that describe how elemental phosphorous causes negative environmental effects. (D.I. 51
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`at 68). Defendants then argue that because elemental phosphorus — the source of environmental
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`harm — can be found in any compound containing phosphorous it is improper to limit the
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`construction of “a phosphate” to a salt of phosphoric acid. (D.I. 51 at 69, 71).
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`2. Defendants’ construction.
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`Defendants argue that the specification should not be used to limit the construction of “a
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`phosphate.” (D.I. 51 at 69). Defendants also argue that that the inventor contemplated any
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`compound containing phosphorous because the specification refers to environmental damage
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`caused by detergents with phosphates. (D.I. 51 at 68-69). These two positions are in tension. If
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`11
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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 12 of 16 PageID #: 6099
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`the environmental impact of phosphates can be used to arrive at a proper construction, surely the
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`other characteristics of “a phosphate” — a compound used in detergent that promotes
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`solubilization and aids detergency — can also be used. (D.I. 44-3 ex. B at 1:37-40).
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`“[T]he specification is ‘the single best guide to the meaning of a disputed term.’” Phillips,
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`415 F.3d at 1321 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.
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`1996)). While the Court must avoid the danger of “reading limitations from the specifications into
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`the claims,” the Court’s construction of the claim term must also “be consistent with the
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`specification.” See Phillips, 415 F.3d at 1316, 1321 (quoting Vitronics Corp. v. Conceptronic,
`
`Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996)). The Court attaches little weight to the extrinsic
`
`evidence Defendants use to arrive at their construction — five dictionaries, with publication dates
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`ranging from 2007 to 2020. (D.I. 51 at 67-68; D.I. 53-5 ex. 5; D.I. 53-6 ex. 6; D.I. 53-7 ex. 7;
`
`D.I. 53-8 ex. 8; D.I. 53-9 ex. 9). Even if the Court were to determine Defendants’ definition is one
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`that a skilled artisan would have at the time of the patent’s effective filing date the Court must still
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`determine “how the specification implicitly limits that definition” in order to avoid “transforming
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`the meaning of the claim term to the artisan into the meaning of the term in the abstract, out of its
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`particular context . . . .” (D.I. 44-3 ex. B at JA-010); Phillips, 415 F.3d at 1321. For the
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`aforementioned reasons, the Court declines to adopt Defendants’ construction.
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`3. Plaintiff’s construction.
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`Plaintiff’s construction of “a phosphate” is “a salt of phosphoric acid.” (D.I. 51 at 65).
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`Plaintiff arrives at this construction by way of its expert. (D.I. 51 at 65-66). The Court should
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`disregard “conclusory, unsupported assertions by experts.” Phillips, 415 F.3d at 1318. Plaintiff’s
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`expert report cites several technical manuals, but the expert largely relies on an inorganic chemistry
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`textbook — published in 1972 — and two chapters of a technical encyclopedia — published in
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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 13 of 16 PageID #: 6100
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`2019 — to support his construction. (D.I. 52-8 ex. 2 at 5-7 ¶¶ 20-25; D.I. 52-11 ex. 2-C at 1; D.I.
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`52-12 ex. 2-D; D.I. 52-23 ex. 2-O at 1). These two publication dates are well before and well
`
`after the effective filing date of the ‘116 patent. (D.I. 44-3 ex. B at JA-010). The 2019 publication
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`does support Plaintiff’s expert’s construction, but the passages cited in the 1972 publication do not
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`clearly define “a phosphate” as “a salt of phosphoric acid.” (D.I. 52-11 ex. 2-C at 1-2; D.I. 52-12
`
`ex. 2-D at 396-397). The Court sees no reason why Plaintiff’s 2019 document should be given
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`any more weight than Defendants’ extrinsic evidence that was published after 1998. This leaves
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`the Court with the 1972 textbook, which does clearly not state that “a phosphate” is a salt of
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`phosphoric acid. (D.I. 52-12 ex. 2-D).
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`4.
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`The Court’s construction.
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`After finding a majority of the parties’ extrinsic evidence to be irrelevant, the Court is left
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`with the ‘116 patent; a 2002 E.U. Environment Directorate Report describing the impact of
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`phosphates and alternative detergent builders on the environment; and a 1998 publication on the
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`properties of detergent ingredients. (D.I. 44-3 ex. B ; D.I. 53-11 ex. 11; D.I. 52-10 ex. 2-B). The
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`characteristics of “a phosphate” described in the patent specification — namely a compound used
`
`in detergent, which has negative environmental impacts, and promotes solubilization and
`
`detergency — provide guidance as to the most relevant types of extrinsic evidence. (D.I. 44-3 ex.
`
`B at 1:37-40). The ‘116 patent also claims a foreign priority date of July 10, 1998 in Great Britain,
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`and the specification refers to “[f]orthcoming European legislation” which suggests the E.U. is a
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`relevant geographical area. (D.I. 44-3 ex. B at JA-010). In light of the priority date, the industry,
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`and the European focus, the Court independently identified documents written between 1989-1999
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`that pertained to the types of phosphorous-containing compounds that were in detergents sold in
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`the E.U., the environmental harm caused by these compounds, and E.U. regulations related to these
`
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`compounds. The Court then asked the parties to submit letters describing how these pieces of
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`evidence did or did not support their respective constructions. (D.I. 56). Each party submitted a
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`letter. (D.I. 57; D.I. 58).
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`The Court asked the parties to review seven documents. The ones with the most relevance
`
`are a 1998 version of the E.U. Detergents Ingredients Database (DID); a European Community
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`Commission Decision on May 28, 1999 establishing criteria for dishwasher detergents to be
`
`awarded an “eco-label;” and a European Economic Community Commission recommendation
`
`from September 13, 1989 outlining suggested labeling requirements for detergents and cleaning
`
`products. (D.I. 57-3 ex. C; D.I. 57-5 ex. E; D.I. 57-6 ex. F). All three of these documents
`
`distinguish “phosphates” from other phosphorous-containing compounds.6 (D.I. 57-3 ex. C at 2-
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`3; D.I. 57-5 ex. E at § 2.3; D.I. 57-6 ex. F at art. 2.1). These distinctions clearly establish that
`
`during 1998, for the purposes of detergent labeling in the E.U., “a phosphate” referred to a subset
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`of phosphorous-containing compounds rather than all phosphorous-containing compounds.
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`These documents help the Court identify what a phosphate is not, but the Court must also
`
`identify what a phosphate is.7 According to the ‘116 patent, “a phosphate” is a compound used in
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`detergent, which has negative environmental impacts, and promotes solubilization and detergency.
`
`
`6The 1999 Community Commission Decision contains a scoring and calculation system that
`separates phosphates from non-biodegradable organic compounds. (D.I. 57-5 ex. E at § 2.1).
`The Commission Decision refers the reader to the E.U. Detergents Ingredients Database (DID)
`for a list of detergent ingredients, and both phosphates and other compounds containing
`phosphorous are separately listed in the DID. (D.I. 57-5 ex. E at § 2.3; D.I. 57-3 ex. C at 2-4).
`In the DID phosphates are categorized as inorganic, soluble builders while phosphonates and
`phosphate esters are categorized as non-biodegradable organic compounds. (D.I. 57-3 ex. C at 2-
`4). The European Economic Community Commission recommendation also lists phosphates and
`phosphonates as separate ingredients for the purposes of detergent labeling. (D.I. 57-6 ex. F at
`art. 2.1).
`7A phosphate is not a phosphonate or a phosphate ester. See supra note 6.
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`Case 1:18-cv-01855-RGA Document 88 Filed 07/27/20 Page 15 of 16 PageID #: 6102
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`(D.I. 44-3 ex. B at 1:37-40). Phosphates were used as “builders” in detergent formulations.8 (D.I.
`
`52-10 ex. 2-B at 4). Builders reduce water hardness, create the conditions for optimal soil removal,
`
`prevent soil redeposition, and serve as an alkaline buffer. (D.I. 52-10 ex. 2-B at 4). Builders also
`
`facilitate solubilization of detergent components.9 (D.I. 53-11 ex. 11 at 12 § 2.2.1). Sodium
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`tripolyphosphate (STPP) and sodium pyrophosphate were the only builders used in detergents until
`
`the early 1980s when they were gradually replaced by non-phosphate-based builders.10 (D.I. 52-
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`10 ex. 2-B at 4). The 1998 edition of the DID only includes STPP, the main type of phosphate-
`
`based builder used in European detergents in 1998, not sodium pyrophosphate.11 (D.I. 57-3 ex. 3
`
`at 2; D.I. 53-11 ex. 11 at 13; D.I. 57-5 ex. E at § 2.1). The 1999 Community Commission Decision
`
`used STPP as a stand-in for all phosphates, which suggests European regulators were primarily
`
`concerned with STPP and not sodium pyrophosphate. (D.I. 57-5 ex. E §2.1 n.1). According to
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`the 2002 E.U. Environment Directorate Report, STPP was responsible for 50% of the bioavailable
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`phosphorous in municipal wastewater. (D.I. 53-11 ex. 11 at 1). Excess bioavailable phosphorous
`
`led to negative environmental impacts that prompted limitations and outright bans on STPP in
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`detergent products. (D.I. 53-11 ex. 11 at 1; D.I. 52-10 ex. 2-B at 4).
`
`
`8 Sodium tripolyphosphate is referred to as a type of builder in the 1998 E.U. Detergents
`Ingredients Database. (D.I. 57-3 ex. 3 at 2).
`9 These functions collectively promote solubilization and detergency.
`10 In Europe, between the mid-1980s and the early 1990s, sodium tripolyphosphate was
`gradually replaced by Zeolite A — which does not contain phosphorous. (D.I. 53-11 ex. 11 at
`2). Sodium tripolyphosphate and sodium pyrophosphate were not replaced with other
`phosphate-based builders because the purpose of the substitute builders was to reduce the
`amount of phosphorous released into the environment. (D.I. 52-10 ex. 2-B at 4; D.I. 53-11 ex.
`11 at 6-7).
`11 The 1998 E.U. Detergents Ingredients Database specifically refers to sodium tripolyphos