£.N1ER£D ON \CMS
`c:: .. 2 2003
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`PRIORITY
`SEND
`
`Case No. SACV 03-655-JVS(Ex)
`
`Dated: November 26, 2003
`
`Title: NINI POLICAPELLI v. HEINEKEN USA INC.
`PRESENT: HONORABLE JAMES V. SELNA, UNITED STATES DISTRICT JUDGE
`
`Karla J. Tunis
`Courtroom Deputy
`
`Not Present
`Court Reporter
`
`ATTORNEYS PRESENT FOR PLAINTIFFS:
`
`ATTORNEYS PRESENT FOR DEFENDANTS:
`
`Not Present
`
`Not Present
`
`PROCEEDINGS(IN CHAMBERS):
`
`Order Granting First Motion of Defendant for Summary
`Judgement of Claim Construction
`
`In this action for patent infringement instituted by Plaintiff Nini Policappelli ("Policappelli") against
`Defendant Heineken U.S.A, Inc. ("Heineken"), Policappelli alleges that Heineken's "keg-shaped" beer cans
`(the "Heineken Keg Cans") infringe a number of patent claims contained in four of Policappelli's patents.
`(Comp!.,~~ 19-24.) The matter is currently before the Court on Heineken's Motion for summary judgment
`regarding the legal construction of four patent claim terms found in the patents-in-suit: "protrusions,"
`"indentations," "profile," and "stamping." (Mot. for Summ. J. of Claim Construction, p. 17.) Policappelli
`opposes Heineken's Motion on the ground that there are genuine issues of material fact regarding each of
`these terms. 1 (Opp'n to Mot. for Summ. J. of Claim Construction, p. !.) The Court disagrees. It is well
`settled that "construction of a patent, including terms of art within its claim, is exclusively within the
`province of the court." Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996). Heineken's
`Motion is accordingly granted. Fed. R. Civ. P. 56. The claim terms at issue are construed in the manner set
`forth in Part II below. 2
`
`1Policappelli also makes several general objections to the Motion. First, he argues that it
`is inappropriate in light Judge Walter's earlier rulings. (Opp'n to Mot. for Summ. J. of Claim
`Construction, p. 1.) Policappelli overlooks the fact that the Court is required to address claim
`construction issues before dealing with Heineken's separate motions for invalidity and non(cid:173)
`infringement. In re Cruciferous Sprout Litigation, 301 F.3d 1343, 1349 (Fed. Cir. 2002);
`Markman v. Westview Instruments, Inc., 52 F.3d 967,976 (Fed. Cir. 1995), aff'd, 517 U.S. 370
`(1996). The manner in which Heineken has packaged its motions does not affect the Court's
`duties.
`
`Second, Policappelli complains that Heineken has tendered only certain claims for
`construction. (Id.) Obviously, Policappelli is entitled to tender other claims which he believes
`require claim construction.
`
`([!)
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`~
`
`2 The Court notes that, in construing the terms tendered for construction, it has not
`resorted to extrinsic evidence. (See Opp'n to Mot. for Summ. J. of Claim Construction, p. 0.) ,
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`I.
`
`Background.
`
`Beginning in March 1993, Policappelli filed a series ofrelated patent applications with the United
`States Patent and Trademark Office (the "PTO") that spanned a nine-year period of pendency before the
`PTO. These applications, six in total, ultimately resulted in the four patents that are at issue in this case.
`Policappelli's first application, Patent Application Serial Number 029,791 for a "Partially Collapsible
`Container With Drinking Straw or Pour Spout," was filed on March 11, 1993 and eventually abandoned.
`(See Def 's Exhs., Exh. 4, pp. 427, 452.) Most relevant to the Motion at hand, the application states that the
`exterior of the container "may" contain "various protrusions" that are "raised with respect to the side
`surface" of the container and "stamped outward" using a "stamping process which pushes the protrusions ...
`outward on one side and creates indentations on the other side." (Exh. 4, pp. 433, 442, 443.) Per the
`application, the purpose of these protrusions is to "increase the volume of the container" (id. at p. 433),
`"enhance the ability of the user to grasp the container" (id. at p. 442), reduce conductivity between a user's
`hand and the container (id. at p. 434), "convey any message to consumers" (id. at p. 444), and "provide
`additional strength to the container" (id.).
`
`In 1995, Policappelli abandoned his first application in favor ofa second: Patent Application Serial
`Number 378,461. (See Def.'s Exhs., Exh. 9.) This second application, filed on January 26, 1995, describes
`a "Container for Dispensing Liquids." A continuation in part ("CIP") of the first application, it incorporates
`all of the contents of the former application, including the subject matter regarding "protrusions,"
`"indentations," and "stamping" discussed above. 3 On December 24, 1996, the application was granted and
`Patent 5,586,681 (the "'681 Patent") was issued and assigned to Policappelli. (See Def.'s Exhs., Exh. 6.)
`
`Policappelli's third application, Patent Application Serial Number 542,089 for a "Laminated
`Container," was filed on September 7, 1995 as a CIP of his second application. (See Def.'s Exhs., Exh. 16.)
`This third application, which incorporates the terms of both the first and second applications,4 is significant
`in two respects for purposes of the Motion before the Court. First, it uses the tenn "profile" to describe the
`shape of the disclosed container's body for the first time in a Policappelli application. (Id. at pp. 739-40; see
`also Exhs. 11-14.) Second, it provides insight into Policappelli's use of the term "protrusions." When the
`PTO rejected certain claims pertaining to "protrusions" during the prosecution of the third application,
`Policappelli defended the claims against double-patenting and prior-art rejections by explaining, in part,
`
`The protrusions are area [sic] in a plane which is different to the general planar area of the
`can. The protrusions, with the printing over the protrusions, can be directed outwardly or
`inwardly relative to this general planar surface, which thereby provides a three dimensional
`printed structure for the surface.
`
`(Exh. 16, p. 917; emphasis supplied.) As Heineken points out in its moving papers, this definition of the
`word "protrusions" can be characterized as somewhat of a departure from Policappelli' s prior disclosures
`
`3 The second application also adds subject matter pertaining to printed "ornamental
`representation" on the outside surface of the container. (Exh. 9, p. 282.) During the
`application's prosecution, the PTO narrowed the scope of the proposed patent by amending the
`claims to include: (I) an express limitation requiring "printed lettering" as part of the ornamental
`representation (hl at pp. 359); and (2) an express limitation requiring the ornamental
`representation to extend over the protrusions (id. at pp. 380).
`
`4 All of the CIP applications referenced herein incorporate the contents of their parent
`applications.
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`concerning the term. (Mot. for Summ. J. of Claim Construction, p. 32.) The prior disclosures in the first,
`second, and third applications describe "protrusions" using language such as "stamped outward" (Exh. 6, p.
`262, col. 2, line 15), "project[ing] outward" (Exh. 4, p. 442; Exh. 6, p. 265, col. 8, line 49; Exh. 16, p. 731),
`"raised with respect to the side surface" (Exh. 4, p. 442; Exh. 6, p. 265, col. 8, lines 32-33), and "extending
`outwardly to increase the volume of the container" (Exh. 6, p. 267, col. 11, lines 26-27). Nowhere do these
`prior applications state or suggest that "protrusions" might be "directed outwardly or inwardly" with respect
`to the surface of the container described.5
`
`Policappelli's third application issued as Patent 5,762,230 (the "'230 Patent") on June 9, 1998. (See
`Def.'s Exhs., Exh. 10.) His fourth application, a CIP of the third, is not relevant to the Motion before the
`Court and was ultimately abandoned in favor of Policappelli's fifth application, which was filed on
`November 24, 1997. (See Def.'s Exhs., Exh. 20.) Entitled "Top for Container," Patent Application Serial
`Number 977,348 is a CIP of Policappelli's abandoned fourth application. It issued on March 12, 2002 as
`Patent 6,354,458 (the "'458 Patent"). ~ Def.'s Exhs., Exh. 18.) The '458 Patent has only one
`independent claim, which describes a metal container that includes, among other things, a "profile pattern"
`formed by a "stamping process" and "ornamental representation ... extending over the profile pattern of the
`can." (Exh. 18, p. 903, col. 10, lines 27, 35, 45-46, 55-56.) None of the '458 Patent's claims use the term
`"protrusions." However, the term is found elsewhere in the specification. (See. e.g., Exh. 18, pp. 901-02.)
`
`Finally, Policappelli filed his sixth application, Patent Application Serial Number 391,642, on
`September 7, 1999. (See Def.'s Exhs., Exh. 22.) This application, for a "Laminated Container," was a CIP
`of Policappelli's fifth application and issued as Patent 6,311,861 (the "'861 Patent") on November 6, 2001.
`(See Def.'s Exhs., Exh. 21.) Significantly, the claims of the '861 Patent abandon the use of the term
`"profile," reverting to use of the term "protrusions" instead. (Exh. 21, pp. 1198-99, cols. 10-12.) Also
`important for the matter at hand, Claim 1 teaches a beverage can with a "body portion having ... a pattern of
`protrusions ... and .. . further having indentations relative to the curved wall .... " (Exh. 21, p. 1198, col.
`10, lines 48-60; emphasis supplied.) The prosecution history of the patent reveals that Policappelli
`narrowed his application claims to require the claimed container to have "indentations" separate from
`"protrusions" following a PTO Office Action dated September 14, 2000. 6 (See Def. 's Exhs., Exh. 22, pp.
`280-82, 316).
`
`On August 28, 2002, Policappelli filed suit against Heineken, alleging that the Heineken Keg Cans
`infringe the '681 Patent, the '230 Patent, the '458 Patent, and the '861 Patent.7 (Comp!.,~~ 19-24.)
`Specifically, Policappelli asserts that the Heineken Keg Cans infringe Claims I through 5 of the '681 Patent,
`Claims 11 through 18 of the '230 Patent, Claims 1 through 5 of the '458 Patent, and Claims 1 though 6 of the
`'861 Patent. (See Pl.'s Supplemental Responses to Def.'s First Set oflnterrogatories, attached as Exh. 138
`to Def.' s Exhs.) On October 22, 2003, Heineken filed three Motions for Summary Judgment. The first of
`
`5 In fact, the possibility that "protrusions" might include areas "directed ... inwardly"
`relative to the surface of the container contradicts some of the stated purposes of the
`"protrusions," including increasing the volume of the container and improving a user's ability to
`grip the container.
`
`6 In this regard, Policappelli wrote, "[C]hanges have been made to the independent
`claims to define more precisely the protrusions. Claim 21 is defined as having protrusions and
`also indentations relative to the curved wall." (Def.'s, Exhs., Exh. 22, p. 316.)
`
`7 Policappelli also alleged a cause of action for misappropriation of trade secrets. This
`second claim was dismissed by the Court, pursuant to Heineken's Motion to Dismiss, on
`December 4, 2002. (Dec. 4, 2002 Minute Order.)
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`these requests summary judgment in Heineken's favor on claim construction; the second asserts invalidity of
`the asserted claims; the third argues non-infringement. Only the first Motion is presently before the Court.
`(See Nov. 4, 2003 Minute Order.)
`
`II.
`
`Discussion.
`
`Claim construction "begins and ends" with the claim language itself. Interactive Gift Express. Inc. v.
`Compuserve, Inc., 256 F.3d 1323, 1331 (Fed. Cir. 200 I). In construing the language of a patent claim for
`purposes of claim construction, the patent and its prosecution history are of paramount importance. Burke,
`Inc. v. Bruno Ind. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed. Cir. 1999). Evidence extrinsic to this public
`record may only be consulted "if needed to assist in detennining the meaning of scope of technical tenns in
`the claims." Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1216 (Fed. Cir. 1995); accord Vitronics
`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996). The Court's starting point in determining
`the meaning of the terms at issue in this Motion is therefore the intrinsic evidence: the claim language,
`specification, and prosecution history of the relevant patents.
`
`Where the intrinsic evidence of a patent reveals that a patentee has acted as lexicographer with
`respect to a particular claim term-by creating a new word or assigning a new or different meaning to an
`existing word, for example-"the definition selected by the patent applicant controls" and the term's special
`meaning is given full force. Renishaw PLC v. Mamoss Societa' per Azioni, 158 F.3d 1243, 1249 (Fed. Cir.
`1998). The lexicography must "appear with reasonable clarity, deliberateness, and precision before it can
`affect the claim," however. Id. (internal citations omitted). The test for whether a special meaning is
`reasonably clear is whether the patent or its prosecution history "put a reasonable competitor or one
`reasonably skilled in the art on notice" that the patentee intended to redefine the claim language at issue in
`the manner asserted. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357 (Fed. Cir. 1999),
`cert. denied, 529 U.S. 1037 (2000).
`
`Where, on tl1e other hand, the patent applicant is not deemed a lexicographer, there is a "heavy
`presumption" that the words in the claims have their full ordinary or accustomed meaning. Johnson
`Worldwise Assocs. v. Zebco Corp., 175 F.3d 985,989 (Fed Cir. 1999). As the Federal Circuit recently
`noted, "dictionaries, encyclopedias and treatises are particularly useful resources to assist the court in
`detennining the ordinary and customary meanings of claim tenns." Texas Digital Sys., Inc. v. Telegenix.
`Inc., 308 F.3d 1193, 1202 (Fed. Cir. 2002). If a particular claim term has both an ordinary meaning and a
`customary meaning known to one ordinarily skilled in the art, and these meanings conflict, the latter
`meaning prevails. Karlin Tech v. Surgical Dynamics, 177 F.3d 968,971 (Fed. Cir. 1999).
`
`With these principles in mind, Heineken argues that: (1) The term "protrusions" must be defined,
`pursuant to the prosecution histories of the patents-in-suit, "in the particular manner that Policappelli himself
`chose"; and (2) The ordinary and customary meaning of"indentations," "profile," and "stamping" can be
`discerned from dictionary and treatise definitions, "since those definitions are consistent with the intrinsic
`evidence and the usage made by Policappelli of the terms in the specifications of his patents .... " (Mot. for
`Sumrn. J. of Claim Construction, p. 20.) Heineken urges the Court to construe the terms at issue as follows:
`
`•
`
`•
`•
`•
`
`Protrusions: More than one area in a plane which is different to the general
`planar area of a container
`Indentations: More than one dent or hollow that is separate from a protrusion
`Profile: A contour or outline of a surface in a plane at an angle to the surface
`Stamping: To impress something with a device by means of a die and blow or
`mechanical pressure
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`(Id.)
`
`In opposition to the Motion, Policappelli asserts that:(!) He did not intend to be his own
`lexicographer with respect to the tenn "protrusions" (Opp'n to Mot. for Summ. J. of Claim Construction, p.
`2.); and (2) He did intend to be his own lexicographer with respect to the tenn "indentations," because the
`relevant patent prosecutions clearly and expressly redefine the term outside of its customary meaning (id. at
`p. 16). Relying on his own dictionaries, encyclopedias, and treatises, Policappelli requests that the Court
`construe the claim terms at issue in the following manner:
`
`•
`
`•
`
`•
`•
`
`Protrusions: Those that jut inwardly or outwardly beyond the surrounding
`surface or content
`Indentations: Dents or hollows inside the surface of the can and the local
`deformations of the surface outward from that perspective
`Profile: Outline of an object8
`Stamping: To shape or cut out with a mold, form, or die
`
`(Id. at p. 20.)
`
`A.
`
`Protrusions
`
`All of the asserted claims in the '681 Patent (Claims I through 5) and the '861 Patent (Claims I
`through 6) use the term "protrusions." In addition, Claims 11, 12, 13, 14, 17, and 18 of the '230 Patent use
`the term.
`
`The Court finds that Policappelli did not act as lexicographer with respect to the term "protrusions."
`Heineken makes much of Policappelli's statements to the PTO, during the prosecution of the '230 Patent,
`that "[t]he protrusions ... can be directed outwardly or inwardly" and "protrusions are area[s] in a plane
`which [are] different to the general planar area of the can." (Exh. 16, p. 917.) Based on these isolated
`statements, Heineken argues that the broader definition of "protrusions" given by Policappelli should govern
`the construction of the term. The Court disagrees, given the overwhelming weight of the remaining intrinsic
`evidence. First, the statements referenced by Heineken do not evince a deliberate and reasonably clear
`special meaning, such that one reasonably skilled in the art would be put on notice of the meaning advocated
`by Heineken.9 Process Control Corp., 190 F.3d at 1357. In order for a patentee to be deemed a
`
`8 In its Reply, Heineken advises the Court that, while it maintains that its definition of
`"profile" is more appropriate, it "has no objection" to Policappelli 's construction of the term.
`(Reply, p. 10.)
`
`9 A close look at the context in which the statements were made suggests that
`Policappelli may have been using the term "protrusions" broadly, to encompass both
`"protrusions" and "profile," based on the PTO examiner's own conflation of these terms rather
`than his own intent to redefine "protrusions." The examiner had rejected Claims 46 through 48
`"on the basis that there was no disclosure ofa radially inwardly extending protrusion." (Exh. 16,
`p. 914.) In defending the claim, Policappelli pointed to figures 20A-20C and 21, all of whose
`"body portion is curved inwardly in the center to form a waistline," or profile. Policappelli went
`on to correct the examiner's use of the term "protrusions," pointing out that "radially inwardly
`extending protrusions" were not the words used in the referenced claims. The actual language of
`the proposed claims describes a container with a "body portion" whose "profile extend[ s]
`relatively inwardly relative to the same container." (Id. at pp. 889-90.) Given this context, the
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`lexicographer with respect to claim terms, the patentee "must deliberately and clearly point out how these
`terms differ from the conventional understanding." Apple Computer v. Articulate Sys., 234 F.3d 14, 21 n.5
`(Fed. Cir. 2000). Second, adopting Heineken's definition would contravene the general rule that the
`meaning ofa claim term should align with the purpose of the patented invention. The stated purposes of the
`"protrusions," per the specifications themselves, include increasing the volume of the disclosed container
`and improving traction so as to facilitate gripping the container. Inward "protrusions" obviously serve
`neither of these goals.
`
`The Court further finds the relevant claim language clear and unambiguous, and construes
`"protrusions" according to its ordinary and accustomed meaning. Webster's Third New International
`Dictionary (1993) defines "protrusion" as "something that protrudes," and further defines the verb
`"protrude" as "to thrust out or to jut out beyond the surrounding surface or context." The American Heritage
`Dictionary of the English Language ( 4th ed.) states that "protrude" means "to push or thrust outward" or to
`"project." The Court finds that this ordinary meaning of the term is consistent with the relevant intrinsic
`evidence, as detailed in Part I above.
`
`Finally, the Court finds that the term "protrusions" refers to "protrusions" in the plural sense, and
`does not mean one single "protrusion." 10 See Superior Fireplace Co. v. Majestic Prods. Co., 92 F. Supp. 2d
`1001, 1010 (C.D. Cal. 2000), rev'd on other grounds, 270 F.3d 1358 (Fed. Cir. 2001). In the patents-in-suit
`and the relevant prosecution histories, the term is used exclusively in its plural form. Policappelli argues, on
`this point, that he did not intend the scope of the patent to include only multiple "protrusions." However,
`intent is irrelevant where claim language is clear and unambiguous, as it is in this case. Vitronics, 90 F .3d at
`1584. Those skilled in the art are expected to be on notice of Policappelli's words, not his unspoken
`intentions.
`
`Based on the above, the Court construes the term "protrusions" as "more than one area in a plane of a
`container that projects outward beyond the surrounding surface of the container."
`
`B.
`
`Indentations
`
`Claim 1 of the '861 Patent is the only claim that uses the word "indentations." As explained in Part I
`above, the claim teaches a beverage can with a "body portion having ... a pattern of protrusions ... and ...
`further having indentations relative to the curved wall .... " (Exh. 21, p. 1198, col. 10, lines 48-60.)
`Elsewhere in the specification however, in explaining the process by which "protrusions" are created,
`"indentations" are described in a different manner:
`
`The protrusions ... can easily be formed on the sheets by a stamping process which pushes
`the protrusions outward on one side and creates indentations on the other side. The
`protruding side will be positioned on the outer surface, to provide the improved gripping
`
`Court finds that the statements made by Policappelli during the prosecution of the '230 Patent
`and referenced by Heineken in support of its proposed construction of the term "protrusions" are
`not sufficiently clear, deliberate, or precise to affect the claims at issue. Renishaw, 158 F.3d at
`1249.
`
`10 The Court rejects the notion that Heinken's use of the singular "projection" amounts to
`a judicial admission that Policappelli's use of the plural is to be somehow to be ignored. (Opp'n
`to Mot. for Summ. J. of Claim Construction, pp. 2-3.) It is Policappelli's-not Heineken's-use
`of the term that is before the Court.
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`means, and the indentation side shall be provided on the inside of the container, to increase
`the fluid volume therein.
`
`(Def. 's Exhs., Exh. 21, col. 6, lines 10-23.) 11
`
`Although these definitions appear inconsistent at first glance, the Court finds that they do not
`evidence a clear intention to depart from the ordinary meaning of the word "indentations." Policappelli is
`therefore deemed not to have acted as a lexicographer with respect to the term. The definitions, in fact, can
`be read consistently with one another. Each describes a "surface depression," although from different
`perspectives. The first is "relative to the curved wall" of the outside of the beverage container; the second is
`viewed from the "other side," or "inside of the container."
`
`At oral argument on this Motion, Heineken pointed out that Claim 1 of the '861 Patent uses the term
`"indentations" only in the first sense: from the perspective of the outside of the container. Heineken urged
`the Court to construe the tem1 as "more than one surface depression in a container, as viewed from the
`perspective of the outside of the container, that is separate from protrusions." The Court does not agree that
`the construction of term "indentations" must be limited to one perspective only with respect to Claim 1 of
`the '861 Patent, or that the language in Heineken's proposed construction that defines "indentations" as
`"separate from protrusions" is necessary. To define "indentations" so narrowly would make some of the
`surrounding language in Claim 1 superfluous. There would he no need to describe the body portion of the
`container as "having ... a pattern of protrusions ... and .. .further having indentations relative to the
`curved wall .... " (Exh. 21, p. 1198, col. 10, lines 48-60; emphasis supplied.) 12
`
`The Court therefore finds the language of the claim clear and unambiguous, and construes the tem1
`"indentations" in accordance with its ordinary and accustomed meaning, as well as the claim language and
`other intrinsic evidence, as "more than one depression on the surface of a container."13 See Webster's Third
`New World International Dictionary (1993), p. 1148.
`
`C.
`
`Profile
`
`All of the asserted claims in the '458 Patent (Claims 1 through 5) use the term "profile," as do Claims
`15 through 18 of the '230 Patent. The Court finds the claim language clear and unambiguous, finds that
`Policappelli did not imbue the term "profile" with special meaning, and construes the term in accordance
`with its ordinary and accustomed meaning. Webster's Third New International Dictionary (1993) defines
`"profile" as "an outline of an object" and defines "outline" as a "line that marks the outer limit of an object
`or figure." The Glossary of Metalworking Terms (2003) defines "profile" as "the contour of the surface in a
`
`11 This use of the term "indentations" is also found in the specifications of the prior
`patents.
`
`12 The Court's construction is consistent with the advice in Brookhill-Wilk I, LLC. v.
`Intuitive Surgical, Inc., 334 F.3d 1294, 1300 (Fed. Cir. 2003), that "resort must always be made
`to the surrounding text of the claims in question." However, where more than one definition is
`consistent with the use of the words in the intrinsic record, "the claim terms may be construed to
`encompass all consistent meanings." (Id.) There is no basis in the record to limit "indentations"
`as viewed solely from the perspective of the exterior of a container.
`
`13 For reasons similar to those given regarding the construction of the term "protrusions,"
`Part II(A), supra, the Court finds that the term "indentations" only describes the plural form of
`"indentation."
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`plane perpendicular to the surface." The relevant claim language and other intrinsic evidence is consistent
`with this ordinary meaning. The Court thus construes the term "profile" to mean "the outline or contour of
`the outer surface of a container."
`
`D.
`
`Stamping
`
`Dependent Claims 13 and 14 of the '230 Patent and dependent Claims 3 through 5 of the '861 Patent
`teach that the "protrusions" discussed above are formed by a "stamping process." Similarly, dependent
`Claims 17 and 18 and all of the asserted Claims of the '458 Patent state that the "profile" of the disclosed
`container is formed by a "stamping process." The '230, '458, and '861 Patents explain,
`
`In the manufacturing process, the container is made of a thin sheet of metal ... which is
`pressed and rolled to the proper thickness. The protrusions ... can easily be formed on the
`sheets by a stamping process which pushes the protrusions outward on one side and creates
`indentations on the other side .... [T]he present invention contemplates use of materials
`which can physically be stamped to provide the combination of an indentation on one side
`and a protrusion on the other side.
`
`(Def.'s Exhs., Exh. 10, col. 8, line 66 to col. 9, line 18; Exh. 18, cole. 5, line 63 to col. 6, line 2; Exh. 21, col.
`6, lines 7-23.)
`
`The Court finds the claim language clear and unambiguous, finds that Policappelli did not act as a
`lexicographer with respect to "stamping," and construes the term in accordance with its ordinary and
`accustomed meaning. Webster's Third New International Dictionary (1993) defines the term as "to cut out,
`bend, or form by a blow or sudden pressure with a stamp or die." It also defines the term as "to impress or
`mark (something) with a device or design by means of a die and a blow or mechanical pressure." The
`American Heritage Dictionary of the English Language (3d ed.) states that "stamping" is "to shape or cut out
`with a mold, form, or die." None of the patents-at-issue describe or contemplate "cutting out" or "marking,"
`however. The Court thus construes the term "stamping," per its ordinary and accustomed meaning and in
`accordance with its usage in the patents-at-suit, as "to shape, bend, or form by a blow or sudden pressure
`with a stamp or die." In the Court's opinion, this meaning is most consistent with the relevant intrinsic
`evidence.
`
`III.
`
`Conclusion.
`
`Heineken's Motion for Summary Judgment regarding the claim construction of"protrusions,"
`"indentations," "profile," and "stamping" is granted. Fed. R. Civ. P. 56; see also Markman, 517 U.S. at 372.
`The terms are construed as follows:
`
`•
`
`•
`
`•
`
`Protrusions: More than one area in a plane of a container that projects outward beyond the
`surrounding surface of the container
`Indentations: More than one depression on the surface of a container
`Profile: The outline or contour of the outer surface of a container
`Stamping: To shape, bend, or form by a blow or sudden pressure with a stamp or die
`
`MfNUTES FORM 90
`CIVIL- GEN
`
`Initials of Deputy Clerk .Jill..
`
`Milwaukee Electric Tool Corporation – Exhibit 2004 - Page 8
`Apex Tool Group, LLC v. Milwaukee Electric Tool Corporation
`PGR2020-00056 U.S. Patent No. 10,422,617
`
`