Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 1 of 37 PageID #: 5049
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`WILLOW INNOVATIONS, INC.
`
` Plaintiff,
`v.
`
`
`CHIARO TECHNOLOGY LTD.,
`
`
`
`
`
`
`
`
`Civil Action No. 2:23-cv-00229-JRG
`
`JURY TRIAL DEMANDED
`
` Defendant.
`
`
`
`
`
`
`PLAINTIFF WILLOW’S OPENING CLAIM CONSTRUCTION BRIEF
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 2 of 37 PageID #: 5050
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`TABLE OF CONTENTS
`
`
`Page
`
`I.
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`LEGAL STANDARDS ...................................................................................................... 2
`CONSTRUCTION OF TERMS COMMON TO MULTIPLE PATENTS ........................ 3
`A.
`“a pump mechanism” (’229 Patent, claim 1) / “a pumping mechanism” (’816
`Patent, claim 1; ’624 Patent, claim 1; ’005 Patent, claim 1) / “a vacuum pumping
`mechanism” (’619 Patent, Claim 1) ........................................................................ 3
`1. “pump mechanism” should be given a plain and ordinary meaning ............... 3
`2. “pump mechanism” is not subject to § 112(f) .................................................. 4
`3. Intrinsic evidence does not support Elvie’s construction ................................. 5
`4. Extrinsic evidence does not support Elvie’s construction ................................ 6
`“the suction force and the milk flow path both being directed generally upward
`relative to the bottom portion of the flange” (’816 Patent, claim 1) / “milk
`extracted from the breast flows to the collection container upwardly through the
`milk flow path relative to a bottom of the breast contacting structure” (’228
`Patent, claim 11) ..................................................................................................... 9
`“contained within” (’624 Patent, claim 1; ’619 Patent, claim 1; ’229 Patent, claim
`1) / “contained completely within” (’816 Patent, claim 1) ................................... 12
`CONSTRUCTION OF ’005 PATENT CLAIM TERMS .................................................. 13
`A.
`“pump mechanism comprises two drivers that displace a flexible member to
`generate vacuum pressure.” (’005 Patent, Claim 1) ............................................. 13
`“the wireless transmitter transits pumped milk volume to the external device
`which displays the pumped milk volume of each breast” (’005 Patent, claim 1) . 14
`“the breast pump automatically senses letdown” (’005 Patent, claim 2) .............. 15
`C.
`“chassis” (’005 Patent, claim 1) ............................................................................ 16
`D.
`CONSTRUCTION OF ’619 PATENT CLAIM TERMS .................................................. 17
`A.
`“the non-contact pressure sensor adjacent the nipple receiving portion” (’619
`Patent, claim 1) ..................................................................................................... 17
`CONSTRUCTION OF ’816 PATENT CLAIM TERMS .................................................. 18
`A.
`“the pumping mechanism is associated with the rigid nipple receiving portion”
`(’816 Patent, claim 1) ............................................................................................ 18
`CONSTRUCTION OF ’229 PATENT CLAIM TERMS .................................................. 20
`A.
`“a latch suction is maintained throughout the pumping session” (’229 Patent,
`claim 1) ................................................................................................................. 20
`“the milk collection container is configured about the pump mechanism” (’229
`Patent, claim 5) / “the milk collection container is configured adjacent the pump
`mechanism” (’229 Patent, claim 9) ....................................................................... 21
`VII. CONSTRUCTION OF ’D995 PATENT CLAIM TERMS ............................................... 22
`A.
`“The ornamental design for a breast pump, as shown and described” ................. 22
`
`B.
`
`C.
`
`B.
`
`B.
`
`i
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 3 of 37 PageID #: 5051
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`TABLE OF CONTENTS
`(continued)
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`Page
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`1. The claimed features are ornamental, not functional, and thus require no
`verbal description ........................................................................................... 23
`2. Elvie’s proposed verbal description interjects ambiguity and is unhelpful to
`the Court or jury ............................................................................................. 24
`3. The drawings describe the scope of the design with reasonable certainty ..... 27
`VIII. CONSTRUCTION OF ’D625 PATENT CLAIM TERMS ............................................... 30
`A.
`“The ornamental design for a breast pump, as shown and described” ................. 30
`
`
`
`
`ii
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 4 of 37 PageID #: 5052
`
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`Cases
`Akamai Techs., Inc. v. Limelight Networks, Inc.,
`805 F.3d 1368 (Fed. Cir. 2015) .................................................................................................. 2
`Arlington Industries, Inc. v. Bridgeport Fittings, Inc.,
`632 F.3d 1246 (Fed. Cir. 2011) ................................................................................................ 16
`Cywee Grp., Ltd. v. Huawei Device Co.,
`No. 2:17-cv-00495-WCB-RSP, 2018 WL 6419484 (E.D. Tex. Dec. 6, 2018) ........................ 18
`Egyptian Goddess, Inc. v. Swisa, Inc.,
`543 F.3d 665 (Fed. Cir. 2008) .................................................................................................. 22
`Ethicon Endo-Surgery, Inc. v. Covidien, Inc.,
`796 F.3d 1312 (Fed. Cir. 2015) .......................................................................................... 23, 24
`Greenberg v. Ethicon Endo–Surgery, Inc.,
`91 F.3d 1580 (Fed. Cir. 1996) .................................................................................................... 4
`Huawei Techs. Co. Ltd. v. Verizon Commcn’s, Inc.,
`2021 WL 150442 (E.D. Tex. Jan. 15, 2021) ............................................................................... 4
`In re Maatita,
`900 F.3d 1369 (Fed. Cir. 2018) .......................................................................................... 27, 29
`Joao Control & Monitoring Sys., LLC v. Protect Am., Inc.,
`No. 1-14-CV-134-LY, 2015 WL 4937464 (W.D. Tex. Aug. 18, 2015) ................................... 19
`MBO Labs. Inc. v. Becton, Dickinson & Co.,
`474 F.3d 1323 (Fed. Cir. 2007) .................................................................................................. 5
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 S. Ct. 2120, 189 L. Ed. 2d 37 (2014) ................................................................ 2, 3
`Nystrom v. TREX Co.,
`424 F.3d 1136 (Fed. Cir. 2005) ................................................................................................ 11
`Pavo Sols. LLC v. Kingston Tech. Co., Inc.,
`35 F.4th 1367 (Fed. Cir. 2022) ................................................................................................. 14
`Rembrandt Wireless Techs., LP v. Samsung Elecs. Co.,
`No. 2:13-CV-213-JRG-RSP, 2014 WL 3385125 (E.D. Tex. July 10, 2014) ............................. 8
`RightQuestion, LLC v. Samsung Elecs. Co., Ltd.,
`2:21-CV-00238-JRG, 2022 WL 1154611 (E.D. Tex. Apr. 18, 2022) ........................................ 6
`Samsung Elecs. Am., Inc. v. Prisua Eng’g Corp.,
`948 F.3d 1342 (Fed. Cir. 2020) .................................................................................................. 2
`Sonix Tech. Co. v. Publ’ns Int’l, Ltd.,
`844 F.3d 1370 (Fed. Cir. 2017) .................................................................................................. 3
`SpaceTime3D, Inc. v. Samsung Elecs. Co.,
`No. 2:19-cv-00372-JRG, 2020 WL 7183538 (E.D. Tex. Dec. 7, 2020) ................................... 12
`
`iii
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 5 of 37 PageID #: 5053
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`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Sport Dimension, Inc. v. Coleman Co.,
`820 F.3d 1316 (Fed. Cir. 2016) ................................................................................................ 24
`Thorner v. Sony Comput. Ent’mt Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012) .................................................................................................. 2
`TriMed, Inc. v. Stryker Corp.,
`514 F.3d 1256 (Fed. Cir. 2008) .................................................................................................. 5
`Wasica Fin. GMBH v. Cont’l Auto. Sys., Inc.,
`853 F.3d 1272 (Fed. Cir. 2017) ................................................................................................ 18
`Williamson v. Citrix Online LLC,
`792 F.3d 1339 (Fed. Cir. 2015) .............................................................................................. 2, 4
`Other Authorities
`https://www.merriam-webster.com/dictionary/contain ................................................................ 13
`https://www.merriam-webster.com/dictionary/enclosed .............................................................. 12
`https://www.merriam-webster.com/dictionary/oval ..................................................................... 25
`
`
`
`iv
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 6 of 37 PageID #: 5054
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`
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`Willow’s revolutionary wearable, in-bra breast pump technology, embodied in six utility
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`patents and two design patents, recite straightforward claim terms well understood to a person
`
`skilled in the art. Elvie, however, through a variety of missteps, improperly tries to import a
`
`single embodiment disclosed in the specification—a “peristaltic” pump—to narrow Willow’s
`
`claims unjustly. The claims are not so limited, and the entirety of the intrinsic and extrinsic
`
`evidence shows that the claims cover the limited universe of different types of breast pump
`
`mechanisms that both parties agree were well understood by a POSA at the time of the invention.
`
`Elvie attempts to limit Willow’s claims to one very specific type of pump mechanism, a
`
`so-called peristaltic-type pump, which necessarily includes both a compressible tube and
`
`actuators. But the words “peristaltic,” “compressible tube,” and “actuators” do not even
`
`meaningfully appear in any of Willow’s claims, specifications, or prosecution histories, so the
`
`basis for Elvie’s construction comes through extrinsic evidence. First in the form of the
`
`Declaration of Robert Stone, where he relies on an excerpt from a single Willow inventor’s lab
`
`notebook identifying “peristaltic” pumps as one type of pump mechanism. With that in hand,
`
`Dr. Stone then picks and chooses specific figures and corresponding disclosures from the
`
`specification while ignoring the specifications’ clear teachings as to other types of pump
`
`mechanisms. At his deposition, Dr. Stone admitted that (1) he did not cite to or rely on certain
`
`teachings in the specifications, (2) he failed to review other inventors’ lab notebooks (which
`
`describe other types of pumps), and (3) he did not cite to the prosecution history for any
`
`disclaimer or disavowal of claim scope that would limit the broader independent claims to a
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`peristaltic-type pump only.
`
`Moreover, Dr. Stone, who said that he came up with the means-plus-function analysis
`
`for the claim term “pump mechanism,” admitted that his own opinions were flawed and
`
`1
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 7 of 37 PageID #: 5055
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`
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`inconsistent with the specifications and claim language. As addressed in more detail below, he
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`also provided definitions that were either redundant, interjected ambiguity, or violated basic
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`tenets of claim construction. At bottom, this is a case that demonstrates there is a high burden
`
`in relying on contrived extrinsic evidence in going against the rules and conventions governed
`
`by uncontroverted intrinsic evidence.
`
`I.
`
`LEGAL STANDARDS
`
`“The words of a claim are generally given their ordinary and customary meaning as
`
`understood by a person of ordinary skill in the art.” Thorner v. Sony Comput. Ent’mt Am. LLC,
`
`669 F.3d 1362, 1365 (Fed. Cir. 2012). “There are only two exceptions to this general rule: 1)
`
`when a patentee sets out a definition and acts as his own lexicographer, or 2) when the patentee
`
`disavows the full scope of a claim term.” Id. “[E]ven where a patent describes only a single
`
`embodiment, claims will not be read restrictively unless the patentee has demonstrated a clear
`
`intention to limit the claim scope using words or expressions of manifest exclusion or restriction.”
`
`Akamai Techs., Inc. v. Limelight Networks, Inc., 805 F.3d 1368, 1376 (Fed. Cir. 2015).
`
`“[T]he failure to use the word ‘means’ … creates a rebuttable presumption … that § 112[f]
`
`does not apply.” Williamson v. Citrix Online LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015)
`
`(citations and internal quotation marks omitted). “The question whether [a term] invokes section
`
`112[f] … depends on whether persons skilled in the art would understand the claim language to
`
`refer to structure, assessed in light of the presumption that flows from the drafter’s choice not to
`
`employ the word ‘means.’” Samsung Elecs. Am., Inc. v. Prisua Eng’g Corp., 948 F.3d 1342,
`
`1354 (Fed. Cir. 2020).
`
`Claims are invalid as indefinite only if they “fail to inform, with reasonable certainty,
`
`those skilled in the art about the scope of the invention.” Nautilus, Inc. v. Biosig Instruments,
`
`Inc., 572 U.S. 898, 901, 134 S. Ct. 2120, 2124, 189 L. Ed. 2d 37 (2014). “A patent must be
`
`2
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 8 of 37 PageID #: 5056
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`
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`precise enough to afford clear notice of what is claimed,” but that consideration must be made
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`while accounting for the inherent limitations of language. Id. at 908-09. “Indefiniteness must
`
`be proven by clear and convincing evidence.” Sonix Tech. Co. v. Publ’ns Int’l, Ltd., 844 F.3d
`
`1370, 1377 (Fed. Cir. 2017).
`
`II.
`
`CONSTRUCTION OF TERMS COMMON TO MULTIPLE PATENTS1
`
`A.
`
`“a pump mechanism” (’229 Patent, claim 1) / “a pumping mechanism” (’816
`Patent, claim 1; ’624 Patent, claim 1; ’005 Patent, claim 1) / “a vacuum
`pumping mechanism” (’619 Patent, Claim 1)
`
`Willow’s Proposed Construction
`Not governed by 35 U.S.C. § 112(f); no
`construction necessary / plain and ordinary
`meaning
`Alternatively:
`Function:
`“pumping” / “vacuum pumping” / “pump”
`Structure:
`“one or more pumps,” or equivalents thereof.
`“pump mechanism” should be given a plain and ordinary meaning
`1.
`The terms “pump mechanism,” “pumping mechanism,” and “vacuum pumping
`
`Elvie’s Proposed Construction
`Means-plus-function
`Function: “creating a suction force to pump
`milk”
`Structure: “actuators and a compressible tube
`that direct milk generally upward and away
`from the lower end of the flange when the
`breast pump is upright”
`
`mechanism,” despite their various gradations and contexts, can be used interchangeably (Ex. K,
`
`Stone Dep. Tr. at 94:13-95:2), and should be construed according to a plain and ordinary meaning
`
`to cover “a pump,” including a volume shape that can be changed or compressed to pump milk
`
`from a human breast. The claims themselves are clear—they are referring to a “pump” within in
`
`the context of a wearable breast pump. Willow’s specifications support this construction and
`
`provide that “reference to ‘the pump’ includes reference to one or more pumps and equivalents
`
`thereof known to those skilled in the art.” Ex. D, ’624 Patent at 10:34-36. Dr. Stone admitted at
`
`
`1 Herein, “Willow’s Asserted Patents” refer collectively to U.S. Patent Nos. 10,398,816 (“the ’816
`Patent”), 10,434,228 (“the ’228 Patent”), 10,625,005 (“the ’005 Patent”), 10,722,624 (“the ’624
`Patent”), 11,185,619 (“the ’619 Patent”), 10,688,229 (“the ’229 Patent”), U.S. Design Patent No.
`D832,995 (“the ’D995 Patent”), and U.S. Design Patent No. D977,625 (“the ’D625 Patent”).
`
`3
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`

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`his deposition that consistent with the specification, pump designs are well known to those skilled
`
`in the art—they are “limited” in type, “their applications are well known to a POSA,” and may
`
`include for example, diaphragm, piston, and peristaltic pumps. Ex. K at 107:12-108:15. The Court
`
`should reject Elvie’s attempt to limit Willow’s generic “pump mechanism” to a “peristaltic” pump
`
`only, when other types of pumps are both claimed and described in the intrinsic and extrinsic
`
`evidence.
`
`“pump mechanism” is not subject to § 112(f)
`2.
` A “pump mechanism” contains sufficient structure (i.e., a pump) that does not invoke
`
`means-plus-function. Where, as here, the claims do not recite the word “means,” “there is a
`
`rebuttable presumption that … [§ 112(f)] does not apply.” Huawei Techs. Co. Ltd. v. Verizon
`
`Commcn’s, Inc., 2021 WL 150442, at *4 (E.D. Tex. Jan. 15, 2021). Elvie does not overcome this
`
`presumption because it cannot “demonstrate that the claim term fails to recite sufficiently definite
`
`structure or else recites function without reciting sufficient structure for performing that function.”
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`Williamson, 792 F.3d at 1348 (en banc in relevant portion) (internal quotations omitted).
`
`In Greenberg v. Ethicon Endo–Surgery, Inc., the Federal Circuit held that the term “detent
`
`mechanism” was not a means-plus-function term because “‘detent’ denotes a type of device with
`
`a generally understood meaning in the mechanical arts, even though the definitions are expressed
`
`in functional terms.” 91 F.3d 1580, 1583 (Fed. Cir. 1996). Indeed, “[m]any devices take their
`
`names from the functions they perform,” including “filter,” “brake,” “clamp” “screwdriver,” and
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`“lock.” Id. The court held that § 112(f) is not invoked where “the term, as the name for structure,
`
`has a reasonably well understood meaning in the art.” Id. Here, “pump” and “vacuum pump” are
`
`commonplace structural terms, and they are not subject to § 112(f) merely because they are recited
`
`alongside “mechanism.”
`
`4
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 10 of 37 PageID #: 5058
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`Indeed, Elvie’s expert, Dr. Stone, testified that a POSA would understand that a “pump
`
`mechanism” refers to a “pump.” Ex. K at 107:2-10. Dr. Stone further admitted that a limited
`
`number of pumps were known in the art (including diaphragm, piston, and peristaltic pumps). Id.
`
`at 107:12-108:15; Ex. I, Stone Decl. ¶ 23. Dr. Stone’s admissions are sufficient to find that “pump
`
`mechanism,” “pumping mechanism,” and “vacuum pumping mechanism” recite sufficiently
`
`definite structure to avoid § 112(f). See TriMed, Inc. v. Stryker Corp., 514 F.3d 1256, 1259-60
`
`(Fed. Cir. 2008).
`
`In addition, Elvie’s means-plus-function argument is belied by its own position taken
`
`before the Patent Office during prosecution of its asserted ’151 Patent. The examiner found that
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`the ’151 Patent claim term “mechanism that releasably attaches or latches …” was in means-plus-
`
`function format governed by § 112(f). Ex. M at 17.2 To avoid a means plus function construction,
`
`Elvie amended the claim to recite a “mechanical or magnetic mechanism … ,” and argued that
`
`amending the claim to add mechanical or magnetic to further modify mechanism does not invoke
`
`§ 112(f). Id. at 7, 9. Thus, Elvie cannot credibly claim that a “pump mechanism” is governed by
`
`§ 112(f), when “mechanical” or “magnetic” mechanism, which Dr. Stone admits conveys less
`
`specific structure than a pump (Ex. K at 103:15-105:1), is not.
`
`Intrinsic evidence does not support Elvie’s construction
`3.
`Elvie’s intrinsic support for limiting Willow’s claims to a “peristaltic pump” is scant and
`
`consists entirely of isolated figures and non-exclusive embodiments from various portions of the
`
`specifications. But even taking these disclosures on their face, Willow’s “patent coverage is not
`
`necessarily limited to inventions that look like the ones in the figures.” MBO Labs. Inc. v. Becton,
`
`
`2 All emphasis is added unless stated otherwise.
`
`5
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 11 of 37 PageID #: 5059
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`
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`Dickinson & Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007). None of Willow’s asserted claims even
`
`mention the word “peristaltic” or recite an actuator or compressible tube.3
`
`Turning to the prosecution history, Elvie has not made—and cannot make—any argument
`
`that Willow disclaimed other types of pumps or their corresponding structures. Indeed, Dr. Stone
`
`recognized that while the examiner cited prior art diaphragm pump technology as relevant to
`
`Willow’s claims, Dr. Stone does not—because he cannot—cite to one instance where Willow
`
`argued that its claims are limited to peristaltic pumps. Ex. K at 48:19-49:1, 113:11-17.
`
`Extrinsic evidence does not support Elvie’s construction
`4.
`Elvie relies heavily on extrinsic evidence. And here, even if § 112(f) applies, which it
`
`should not, the Court should then find that the disclosed function is “‘pumping’ / ‘vacuum
`
`pumping’ / ‘pump’” and the corresponding structure is “‘one or more pumps,’ or equivalents
`
`thereof.” Elvie’s extrinsic evidence is highly self-selected, and thus flawed, incomplete, or even
`
`contrary to Elvie’s own position.
`
`First, Elvie’s expert, Dr. Stone, retracted his opinion, and stated that Elvie’s proposed
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`structure for Elvie’s proposed definition is incorrect as incomplete because he omitted from his
`
`proposed definition the drivers (i.e., motors) driving the compression members to pump the
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`volume in the pumping chamber. Ex. K at 135:9-136:16.
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`Second, Dr. Stone relies on the laboratory notebook of Dr. Joshua Makower, a named
`
`inventor on Willow’s Asserted Patents.4 But Dr. Stone testified that he reviewed only excerpts
`
`
`3 The only reference to “peristaltic” in Willow’s Asserted Patents comes from the ’624 and ’229
`Patents. Ex. D at 11:60-61 (“Examples of tubes 32 include, but are not limited to: silicone tubing,
`such as used in peristaltic pumps.”).
`4 As an initial matter, Elvie’s reliance on extraneous statements from lab notebooks is entitled to
`no weight when construing the claims. RightQuestion, LLC v. Samsung Elecs. Co., Ltd., 2:21-CV-
`00238-JRG, 2022 WL 1154611, at *8 (E.D. Tex. Apr. 18, 2022) (“Short of clear and unambiguous
`lexicography … the applicant’s intent about the meaning of the term is not relevant to its plain and
`ordinary meaning.”).
`
`6
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 12 of 37 PageID #: 5060
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`
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`from this one notebook and did not review any of the other inventors’ lab notebooks. When he
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`was asked why, he testified that’s what was provided to him by his attorneys—and he did not care
`
`to request or review any of the other inventors’ notebooks. Id. at 40:15-42:15. Tellingly, other
`
`inventors’ lab notebooks disclose pump types other than peristaltic pumps, including a diaphragm-
`
`style pump, similar to those disclosed in the cited prior art as well as the pump that Elvie uses. Ex.
`
`N.
`
`Third, Dr. Stone’s myopic focus on disclosures related only to a peristaltic pump exclude
`
`express teachings in the specification of other types of pumps. His explanations during his
`
`deposition reveal the flawed methodology of picking and choosing from the specification. For
`
`example, Dr. Stone testified that although claim 11 of the ’228 Patent does not even recite the term
`
`“pump mechanism” or a related term, he believes the claims are nevertheless limited to a peristaltic
`
`pump (i.e., a pump containing actuators and a compressible tube). Ex. K at 111:9-112:16.
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`Further, referring to Figure 4, the ’005 Patent states that “although portions 32S and 32L
`
`[of flex-tube 32] are shown as tubular portions, the present disclosure is not limited to such, as
`
`one or both portions could be shaped otherwise.” Ex. C, ’005 Patent at 9:49-52. Dr. Stone did
`
`not cite or discuss this passage in his declaration. Ex. I ¶¶ 53-70. When asked why, he stated “it’s
`
`not relevant to what a peristaltic pump is.” Ex. K at 118:3-16.
`
`Similarly, while Dr. Stone improperly limits the scope of a “compression element” to a
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`compressible “tube,” he also cherry-picks figures from the specification that depict more than one
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`“actuator” to opine that two or more actuators are required by the claims, even when the
`
`specifications disclose embodiments with just a single actuator (referred to as a “compression
`
`element” in the specifications). Ex. D at 19:1-3 (“FIGS 5A-5C illustrate operation of a system 100
`
`having only one compression element 38 according to an embodiment of the present disclosure.”).
`
`7
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`

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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 13 of 37 PageID #: 5061
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`During his deposition, Dr. Stone confirmed that he focused on the disclosed embodiments to
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`multiple compression elements while ignoring the teachings to a single compression element
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`because a single compression element or actuator “would not be a peristaltic pump in my
`
`understanding of how peristaltic pumps work.” Ex. K at 130:2-131:1. At his deposition, a clear
`
`pattern emerged: Dr. Stone relied only on self-selected portions of the specifications that support
`
`his conclusion limiting the claims to a peristaltic pump only—while ignoring the rest of the
`
`specifications’ teachings, and other evidence which disclose other types of pump mechanisms
`
`covered by Willow’s claims.
`
`Finally, Dr. Stone’s opinion further violates basic claim construction principles by
`
`importing unclaimed limitations and causing redundancies in the claims. Elvie’s proposed
`
`construction limits the structure to “actuators and a compressible tube that direct milk generally
`
`upward and away from the lower end of the flange when the breast pump is upright.” But the
`
`bolded italicized phrase here mirrors Elvie’s proposed claim construction for the “upward flow”
`
`limitations. See infra § III.B. The claims of the ’229, ’005, ’624, and ’619 Patents do not recite
`
`any aspect of upward flow, yet Dr. Stone’s construction for “[pump / pumping] mechanism” and
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`“vacuum pumping mechanism” would import the concept of an upward flow where none exists.
`
`Also, Dr. Stone’s proposal would result in “upward flow” being redundant in claim 1 of the ’816
`
`Patent, once through his proposed definition of “pump mechanism,” and then again because the
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`“upward flow” limitation is found expressly in the claim. “Such redundancy is disfavored when
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`construing claims.” Rembrandt Wireless Techs., LP v. Samsung Elecs. Co., No. 2:13-CV-213-
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`JRG-RSP, 2014 WL 3385125, at *5 (E.D. Tex. July 10, 2014).
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`8
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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 14 of 37 PageID #: 5062
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`B.
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`“the suction force and the milk flow path both being directed generally
`upward relative to the bottom portion of the flange” (’816 Patent, claim 1) /
`“milk extracted from the breast flows to the collection container upwardly
`through the milk flow path relative to a bottom of the breast contacting
`structure” (’228 Patent, claim 11)
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`Willow’s Proposed Construction
`Plain and ordinary meaning
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`Elvie’s Proposed Construction
`“the suction force and the milk flow path both being
`directed generally upward and away from the lower end
`of the flange when upright”; Alternatively, indefinite.
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`The limitations related to upward flow should be construed according to their plain and
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`ordinary meaning, which merely requires that the suction force and the milk flow path (in claim 1
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`of the ’816 Patent)—or “milk extracted from the breast” (in claim 11 of the ’228 Patent)—flows
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`upwardly or generally upward relative to the bottom portion of the flange. Elvie’s proposed
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`definition for these two terms merely reiterates the first part of the phrase, “the suction for and
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`milk flow patent both being directed generally upward,” but then either substitutes its own words
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`for easily understood claim terms or imports limitations into the claim terms that are not there.
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`First, Elvie inserts the term “when upright,” referring to the user’s orientation during a
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`pumping session. This imported limitation directly contradicts the specifications’ clear teaching
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`which informs a POSA that a user can be in many different orientations while pumping. Because
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`the claims when read as a whole require the device to be “[in] use” (Ex. A, ’816 Patent at 50:58-
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`60), the patents teach a POSA that a user may pump in multiple, distinct positions, including
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`positions that may or may not include “when upright,” as interjected and understood by Dr. Stone:
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`[I]t allows breast milk to be extracted and collected over even an uphill gradient,
`such as may occur when the user is lying down, bending over, or in environments
`such as a bumpy ride, as in an automobile or airplane trip.
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`Ex. B, ’229 Patent at 32:31-35. While Dr. Stone does not dispute that a user can pump in non-
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`upright positions, he contends that “when upright” is necessary to define the initial orientation to
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`add definiteness to the claim. But that is wrong. In terms of “up and down,” Dr. Stone relies on
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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 15 of 37 PageID #: 5063
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`gravity, but in relation to gravity is not how Willow claimed its invention. When pressed, Dr.
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`Stone acknowledged there is critical a difference between upward relative to the bottom of the
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`flange, as the claim term reads, on the one hand, and then upward relative to gravity, which is not
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`in the claim, on the other hand. He finally conceded that, “up and down are relative terms related
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`to gravity, but the drawings relate instead to [an up and down] direction with regard to the bottom
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`of the flange.” Ex. K at 55:9-19. And that is how Willow chose to claim its invention—in relation
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`to the bottom of the flange, and whether Dr. Stone agrees with it or not is immaterial.
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`The claims likewise require that the suction force and milk flow path (in the case of claim
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`1 of the ’816 Patent) or the extracted milk (in the case of claim 11 of the ’228 Patent) are directed
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`upward relative to the bottom portion of the flange. Ex. A at 50:45-51:2; Ex. F, ’228 Patent at
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`51:17-27. Dr. Stone further admitted that the top and bottom of the device are always fixed—thus,
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`the key reference point (i.e., bottom portion of the flange) remains fixed even if the user is pumping
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`while lying on her back. Ex. K at 76:2-20.
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`“When upright” is also wrong because it interjects ambiguity into an otherwise clear term.
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`Elvie’s experts disagree as to the meaning of “when upright.” Elvie’s design expert, Mr. Tim
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`Fletcher, testified that “when upright” could refer to a range of semi-upright positions, including
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`slightly leaning either backward or forward. Ex. L, Fletcher Dep. Tr. at 157:8-159:2. But Dr.
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`Stone disagreed, and testified that “[i]f you’re leaning, you’re not upright,” and that even a “semi-
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`upright” state is not “upright,” further contradicting Mr. Fletcher. Ex. K at 65:12-66:2.5
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`5 Elvie’s alternative indefiniteness argument is moot because according to Dr. Stone, it depends
`on “Willow assert[ing] ‘upward’ is not governed by the ‘top’ and ‘bottom’ orientations (i.e.,
`upward is towards the ‘top’).” Ex. I ¶ 50. Willow agrees with Dr. Stone that upward is defined
`relative to the flange, and the top and bottom of the device do not change relative their orientation
`when in use. Ex. K at 55:9-19, 57:2-18, 76:2-20.
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`Case 2:23-cv-00229-JRG Document 75 Filed 08/08/24 Page 16 of 37 PageID #: 5064
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`Second, Elvie seeks to import the “the suction force and the milk flow path” into claim 11
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`of the ’228 Patent, which recites neither “suction force” nor a “milk flow path.” In claim 11, “milk
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`extracted from the breast flows to the collection container upwardly through the milk flow path
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`relative to a bottom of the breast contacting structure.” Claim 11 separately recites “a milk flow
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`path,” but the patentee chose not to claim that the milk flow path is directed upwardly. Ex. F at
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`51:22. In addition, dependent claim 15 recites “a suction applied to the breast for expression of
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`milk,” id. at 51:36-40, giving rise to the presumption that upward movement of suction is not
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`required by claim 11. See Nystrom