Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 1 of 27 PageID #: 5707
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`
`WILLOW INNOVATIONS, INC.,
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`
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`Plaintiff and Counterclaim-Defendant,
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`v.
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`CHIARO TECHNOLOGY, LTD.,
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`Defendant and Counterclaim-Plaintiff.
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`
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`C.A. No. 2:23-cv-00229-JRG
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`JURY TRIAL DEMANDED
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`ELVIE’S OPENING CLAIM CONSTRUCTION BRIEF
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 2 of 27 PageID #: 5708
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`I.
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`II.
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1
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`BACKGROUND ................................................................................................................ 2
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`A. Willow and Elvie .................................................................................................... 2
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`B.
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`C.
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`Elvie’s Asserted Patents .......................................................................................... 3
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`Elvie’s U.S. Patent 11,260,151 ............................................................................... 5
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`III.
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`LEGAL STANDARDS ...................................................................................................... 7
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`A.
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`B.
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`Generally ................................................................................................................. 7
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`Indefiniteness .......................................................................................................... 9
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`IV.
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`V.
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`PERSON OF ORDINARY SKILL IN THE ART .............................................................. 9
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`DISPUTED CONSTRUCTIONS ....................................................................................... 9
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`A. Willow has yet to explain its basis for alleging the disputed terms in
`the ’151 Patent are indefinite. ................................................................................. 9
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`B.
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`“a location of the centre of gravity of the breast pump device is, when
`in use, below a centre of the nipple tunnel when the milk container is
`empty” (’151 Patent, claim 1) ............................................................................... 10
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`1.
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`2.
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`The claim language specifies the “when in use” orientation, which
`a skilled artisan would understand to be generally upright....................... 11
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`The location of the centre of gravity cannot change relative to the
`other device components as the claims specify that the container is
`empty......................................................................................................... 17
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`3.
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`Mr. Fletcher’s expert testimony is unrebutted. ......................................... 17
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`C.
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`“a single continuous surface” (’151 Patent, claim 22) .......................................... 18
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`1.
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`2.
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`3.
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`The claim language provides a clear definition of “single
`continuous surface.” .................................................................................. 18
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`The specification discloses what a single continuous surface is. .............. 19
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`Mr. Fletcher’s unrebutted expert testimony: a skilled artisan would
`understand the meaning and utility of the breast shield being a
`single continuous surface. ......................................................................... 20
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`- i -
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 3 of 27 PageID #: 5709
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`VI.
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`CONCLUSION ................................................................................................................. 20
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`- ii -
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 4 of 27 PageID #: 5710
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`TABLE OF AUTHORITIES
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`Page(s)
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`
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`Cases
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`Aventis Pharm. Inc. v. Amino Chems. Ltd.,
`715 F.3d 1363 (Fed. Cir. 2013)................................................................................................10
`
`Eidos Display, LLC v. AU Optronics Corp.,
`779 F.3d 1360 (2015) ...............................................................................................................19
`
`Markman v. Westview Instruments, Inc.,
`517 U.S. 370 (1996), (Fed. Cir. 1995) (en banc) .....................................................................10
`
`Medrad, Inc. v. MRI Devices Corp.,
`401 F.3d 1313 (Fed. Cir. 2005)................................................................................................10
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .............................................................................................................2, 11
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc)......................................................................9, 10, 11
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`Power-One, Inc. v. Artesyn Techs., Inc.,
`599 F.3d 1343 (Fed. Cir. 2010)................................................................................................10
`
`Schreiber Foods, Inc. v. Beatrice Cheese, Inc.,
`31 F. App’x 727 (Fed. Cir. 2002) ............................................................................................23
`
`Sonix Tech. Co. v. Publ’ns Int’l, Ltd.,
`844 F.3d 1370 (Fed. Cir. 2017)................................................................................................11
`
`Verizon Servs. Corp. v. Vonage Holdings Corp.,
`503 F.3d 1295 (Fed. Cir. 2007)..................................................................................................9
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`- iii -
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 5 of 27 PageID #: 5711
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`Exhibit
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`TABLE OF EXHIBITS
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`Description
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`U.S. Patent No. 11,413,380 (“the ’380 Patent”)
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`U.S. Patent No. 11,357,893 (“the ’893 Patent”)
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`U.S. Patent No. 11,260,151 (“the ’151 Patent”)
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`U.S. Patent No. 11,730,867 (“the ’867 Patent”)
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`Excerpts from File History for U.S. Patent No. 11,260,151
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`Expert Declaration of Tim Fletcher in Support of Chiaro Technology,
`Ltd.’s Claim Constructions
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`Deposition of Timothy Pinckney Fletcher Taken on July 30, 2024
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`Plaintiff’s Supplemental Infringement Contentions: Patent Local Rule
`3-1 and 3-2 Disclosures
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`- iv -
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 6 of 27 PageID #: 5712
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`I.
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`INTRODUCTION
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`This case involves a cross-assertion of patents between two competitors in the self-
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`contained, in-bra breast pump market. Plaintiff-Counterclaim-Defendant Willow developed a
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`self-contained, in-bra breast pump using a compressible tube architecture in which actuators
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`compress a flexible tube to create negative pressure and draw milk up through the tube and into a
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`container. Willow introduced a commercial product employing—and secured a patent portfolio
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`claiming—this compressible tube architecture.
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`Defendant-Counterclaim-Plaintiff Elvie developed a self-contained in-bra breast pump
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`using a diaphragm architecture in which negative pressure generated in a housing is transmitted
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`to the user’s breast by a diaphragm to draw milk into a tunnel where gravity acts to pull the milk
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`down into a milk container. Elvie introduced a commercial product employing—and secured a
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`patent portfolio claiming—this diaphragm architecture.
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`When Elvie’s design resonated with consumers better than Willow’s design, Willow
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`introduced its own self-contained in-bra breast pump with a diaphragm architecture, the Willow
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`Go product, which Willow acknowledges does not practice any of Willow’s own utility or design
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`patents covering its original products. See Willow’s Infringement Contentions (Supplemental
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`Cover Pleading) (Oct. 18, 2023)) (attached as Ex. 8). Rather, the new Willow product infringes
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`Elvie’s patents. Unsatisfied with simply infringing Elvie’s patents, Willow brought this suit
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`asserting its compressible tube architecture portfolio against Elvie’s commercial products with a
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`diaphragm architecture, necessitating construction of disputed terms in Willow’s patents in a
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`separate briefing. Elvie, as a result, was forced to counter-assert its patent portfolio against
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`Willow’s diaphragm architecture product that departs from Willow’s original compressible tube
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`architecture and adopts Elvie’s. This brief addresses disputed terms in Elvie’s patents.
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`1
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 7 of 27 PageID #: 5713
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`Willow does not seek to clarify the meaning of ambiguous terms. Both of the terms
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`Willow seeks to construe are easily understood without any construction. Willow, instead, argues
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`that they are indefinite. But the phrases that Willow asserts it cannot understand—like “below”
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`and “continuous”—readily “inform those skilled in the art about the scope of the invention with
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`reasonable certainty” because the claims themselves, as well as the specification, make them
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`crystal clear. See Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014). This clarity
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`is further confirmed by extensive—and unrebutted—expert testimony submitted by Elvie
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`explaining the plain and ordinary meaning of the disputed terms. Willow, in contrast, failed to
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`provide any expert testimony to support its allegations of indefiniteness, relying instead on pure
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`attorney argument. Thus, Willow cannot support its position that easily understood phrases are
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`clearly and convincingly indefinite.
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`II.
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`BACKGROUND
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`A. Willow and Elvie
`Multiple companies have marketed self-contained in-bra breast pumps in recent years as
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`an alternative to traditional breast pump devices which require users to hold the device in place,
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`as well as remain seated and stationary with the device plugged into the wall. By contrast, self-
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`contained in-bra breast pumps are designed to be held in place by a user’s bra, allowing the user
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`to move around and use their hands for other tasks.
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`In 2017, Willow released the Willow Pump, a self-contained in-bra breast pump that
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`included both a battery-powered pumping mechanism and a milk container configured to fit
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`within the bra. Willow also filed patent applications covering its alleged inventions embodied in
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`the Willow Pump. The Willow Pump’s design prioritized user flexibility while pumping by
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`making the device less likely to spill regardless of whether the user was sitting, standing, lying
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`down, or bending over. To achieve this goal, Willow’s claimed inventions and commercial
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`2
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 8 of 27 PageID #: 5714
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`embodiments use a compressible tube architecture which requires relatively heavy components
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`and creates significant noise.
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`During roughly the same time frame, Elvie independently developed its own patented
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`self-contained in-bra breast pump system, embodied in the Elvie Pump. Elvie focused on
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`reducing the weight and noise of the device. To achieve this goal, Elvie’s claimed inventions and
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`commercial embodiments use a diaphragm architecture which is both lighter and quieter than a
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`compressible tube architecture. The Elvie Pump has won over 25 awards for its innovation,
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`including International Design Awards, Mumsnet Awards, Dezeen Awards, Baby Magazine
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`Awards, The Red Dot Awards, and Good Design Awards amongst others.
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`Elvie’s Asserted Patents
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`B.
` To protect its pioneering technology, Elvie obtained patents, including Elvie’s Asserted
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`Patents, covering its innovative self-contained in-bra breast pump with a diaphragm architecture.
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`Elvie’s Asserted Patents, each titled “Breast Pump System,” are generally directed to a self-
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`contained in-bra wearable breast pump employing a diaphragm architecture. A diaphragm
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`architecture uses a combination of suction and gravity. Suction extracts the breast milk and
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`gravity draws the extracted milk downward into a collection container.
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`Several components are present across the inventions in Elvie’s Asserted Patents. Each
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`patent claims a housing that includes a battery-powered pump, a breast shield made up of a
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`breast flange and a nipple tunnel, and a milk container configured to be attached to the housing.
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`A subset of Elvie’s Asserted Patents claim a diaphragm (or membrane) configured to define a
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`pumping chamber at least in part with an external, user-facing surface of the housing. The
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`diaphragm deforms in response to changes in air pressure caused by the pump to create negative
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`air pressure (i.e., suction) in the nipple tunnel. Illustrative annotated figures (Figs. 3 and 4) from
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`Elvie’s Asserted Patents are shown below:
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`3
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 9 of 27 PageID #: 5715
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`U.S. Patent 11,413,380 (“the ’380 Patent”), or the “Milk/Pump Separation” patent, is
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`directed in part to the diaphragm separating the pump from the milk flowing through the nipple
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`4
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 10 of 27 PageID #: 5716
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`tunnel and into the milk container (“the milk flow path”). Separating the pump from the milk
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`flow path makes the system easier to clean.
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`U.S. Patent 11,357,893 (“the ’893 Patent”), or the “Recessed Diaphragm Holder” patent,
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`is directed in part to the diaphragm being seated against a diaphragm holder that forms a recess
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`or cavity at least in part with a recessed surface of the external surface of the housing. The
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`recessed surface of the external surface of the housing provides room within the pumping
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`chamber for the diaphragm to deform toward the housing in response to changes in air pressure.
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`The recessed surface of the external surface of the housing also allows for the diaphragm to self-
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`seal in the diaphragm holder.
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`U.S. Patent 11,260,151 (“the ’151 Patent”), or the “Low Centre of Gravity” patent, is
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`directed in part to the components of the device being arranged such that the device’s centre of
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`gravity is located below a centre of the nipple tunnel. Having a low centre of gravity prevents the
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`device from feeling top-heavy and improves stability within the bra.
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`U.S. Patent 11,730,867 (“the ’867 Patent”), or the “Increased Breast Shield Housing
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`Contact” patent is directed in part to the breast shield being configured to contact a majority of a
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`surface of the housing that faces a user’s breast. With such a configuration, the breast shield is
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`the only component which contacts the user’s breast, reducing the number of surfaces that need
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`to be cleaned. This configuration also improves user comfort by dispersing the force applied to
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`the user's breast across a larger area, thereby reducing pressure on the user’s breast.
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`Elvie’s U.S. Patent 11,260,151
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`C.
`Only one of Elvie’s Asserted Patents has claim terms that require construction. The ’151
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`Patent issued on March 1, 2022, and claims a priority date of June 15, 2017. The invention is
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`directed towards a self-contained in-bra breast pump system with a diaphragm architecture. See
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`’151 Patent, 3:57–62. Claim 1 of the ’151 Patent recites:
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 11 of 27 PageID #: 5717
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`A breast pump device that is configured as a self-contained, in-bra wearable device,
`the breast pump device comprising:
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`(i) a housing that includes (a) a battery, and (b) an air pump system powered
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`by the battery and generating negative air pressure;
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`(ii) a breast shield made up of a breast flange and a nipple tunnel; and
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`(iii) a milk container that is configured to attach to the housing;
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`and in which a location of the centre of gravity of the breast pump device
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`is, when in use, below a centre of the nipple tunnel when the milk
`container is empty.
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`Id. at 71:9–21. The other term at issue here appears in claim 22, which recites:
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`The breast pump device of claim 1, in which the breast shield is a one piece item
`that in use presents a single continuous surface to a nipple and a breast and the
`breast flange and the nipple tunnel are a single, integral item with no joining stubs.
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`Id. at 72:27–31.
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`“A breast pump system is a mechanical or electro-mechanical device that extracts milk
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`from the breasts of a lactating woman.” Id. at 1:38–40. In order to extract milk, breast pump
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`systems use a suction generating device to “generate[] a pressure cycle on the user’s breasts to
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`simulate the suction generated by a feeding child.” See id. at 1:46–48. As disclosed in the ’151
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`Patent, “[t]he fundamental breast pump system has not significantly evolved” in recent years,
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`and “only minor technical improvements have been made.” Id. at 1:61–63.
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`“Typical” prior art systems include a freestanding “large suction generating device” that
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`is “attached by air lines to one or two breast shields which engage with the user’s breasts[,]” and
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`separate milk collection containers for expressed breast milk. See id. at 1:42–44. Typical breast
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`pump systems came with a number of disadvantages, including that they are “noisy,
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`uncomfortable, and hard to clean.” See id. at 1:64–2:4.
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`Recent improvements in the prior art include “fully integrated” designs, where “the
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`suction source, power supply and milk container are contained in a single, wearable device[.]”
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 12 of 27 PageID #: 5718
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`See, e.g., id. at 2:5–9. In other words, fully integrated designs are self-contained in-bra breast
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`pumps. These fully integrated designs “can be provided with a substantially breast shaped
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`convex profile so as to fit within a user's bra[.]” 2:10–12. However, prior art full integrated
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`designs also had significant disadvantages, including noisiness and bulkiness. See, e.g., id. at
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`2:29–30; 2:51–55.
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`The invention disclosed in the ’151 Patent is an improved self-contained in-bra breast
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`pump that addresses these disadvantages, among others. Most relevant here, the breast pump
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`system claimed in the ’151 Patent is more comfortable and easier to clean than prior art systems.
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`The claimed breast pump system is more comfortable because the centre of gravity of the pump
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`ensures secure placement within the bra throughout a pumping session, and it is easier to clean
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`because of the single continuous surface presented to the nipple and breast of a user.
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`III. LEGAL STANDARDS
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`Generally
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`A.
`“‘[T]he claims of a patent define the invention to which the patentee is entitled the right
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`to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting
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`Innova/Pure-Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir.
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`2004)). As such, if the parties dispute the scope of the claims, the court must determine their
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`meaning. See, e.g., Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1317 (Fed.
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`Cir. 2007); see also Markman v. Westview Instruments, Inc., 517 U.S. 370, 390 (1996), aff’g, 52
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`F.3d 967, 976 (Fed. Cir. 1995) (en banc).
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`When construing claims, “[t]here is a heavy presumption that claim terms are to be given
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`their ordinary and customary meaning.” Aventis Pharm. Inc. v. Amino Chems. Ltd., 715 F.3d
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`1363, 1373 (Fed. Cir. 2013) (citing Phillips, 415 F.3d at 1312–13). Courts must therefore “look
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`to the words of the claims themselves . . . to define the scope of the patented invention.” Id.
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 13 of 27 PageID #: 5719
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`(citations omitted). “[T]he ordinary and customary meaning of a claim term is the meaning that
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`the term would have to a person of ordinary skill in the art in question at the time of the
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`invention, i.e., as of the effective filing date of the patent application.” 415 F.3d at 1313. A
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`skilled artisan’s understanding of the claim term, in the context of the entire patent, “provides an
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`objective baseline from which to begin claim interpretation.” Id. Where this understanding is not
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`immediately apparent, courts may look to other sources, such as the prosecution history and
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`extrinsic evidence. Id.
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`Intrinsic evidence is the primary resource for claim construction. See Power-One, Inc. v.
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`Artesyn Techs., Inc., 599 F.3d 1343, 1348 (Fed. Cir. 2010) (citing 415 F.3d at 1312). “[T]he
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`ordinary meaning of claim language as understood by a person of skill in the art may be readily
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`apparent even to lay judges, and claim construction in such cases involves little more than the
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`application of the widely accepted meaning of commonly understood words.” 415 F.3d at 1314.
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`See also Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed. Cir. 2005) (“We cannot
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`look at the ordinary meaning of the term . . . in a vacuum. Rather, we must look at the ordinary
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`meaning in the context of the written description and the prosecution history.”). But for claim
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`terms with less-apparent meanings, courts consider “‘those sources available to the public that
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`show what a person of skill in the art would have understood disputed claim language to mean[,]
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`[including] the words of the claims themselves, the remainder of the specification, the
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`prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning
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`of technical terms, and the state of the art.’” 415 F.3d at 1314 (quoting 381 F.3d at 1116). For
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`example, “[b]ecause claim terms are normally used consistently throughout the patent, the usage
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`of a term in one claim can often illuminate the meaning of the same term in other claims.” Id.
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`Expert testimony can also be useful to provide background on the technology, to explain how an
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 14 of 27 PageID #: 5720
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`invention works, and to establish that a term has a particular meaning in the pertinent field. Id. at
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`1318.
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`Indefiniteness
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`B.
`“[A] patent is invalid for indefiniteness if its claims, read in light of the specification
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`delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those
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`skilled in the art about the scope of the invention.” Nautilus, Inc. v. Biosig Instruments, Inc., 572
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`U.S. 898, 901 (2014). The claims “must be precise enough to afford clear notice of what is
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`claimed,” but that consideration must be made while accounting for the inherent limitations of
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`language. Id. at 908. “Indefiniteness must be proven by clear and convincing evidence.” Sonix
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`Tech. Co. v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).
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`IV.
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`PERSON OF ORDINARY SKILL IN THE ART
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`A skilled artisan as of the relevant priority date would have had at least an undergraduate
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`or graduate degree in industrial design, mechanical engineering, electrical engineering, or related
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`field, in combination with at least five years of related work experience developing medical or
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`personal care devices. A higher level of education may compensate for less work experience and
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`vice versa. Also, a skilled artisan may have worked as part of a multidisciplinary team and drawn
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`upon not only his or her own skills, but on the skills of others on the team, e.g., to solve a given
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`problem. See Fletcher Rep. ¶¶ 31–36 (attached as Ex. 6).
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`V.
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`DISPUTED CONSTRUCTIONS
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`A. Willow has yet to explain its basis for alleging the disputed terms in the ’151
`Patent are indefinite.
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`To date, Willow has failed to disclose a sufficient basis for its indefiniteness theory for
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`the disputed terms of the ’151 Patent and should be precluded from asserting its necessarily
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`novel theory or theories here. In its invalidity contentions, Willow identified, without any
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 15 of 27 PageID #: 5721
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`explanation, the “centre of gravity” and “single continuous surface” terms as allegedly being
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`indefinite. Subsequently, Elvie repeatedly informed Willow that its indefiniteness contentions
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`were deficient and requested additional explanation. In an email exchange at the eve of claim
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`construction briefing—and six months after serving its invalidity contentions—Willow
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`eventually provided a barebones basis for indefiniteness for the “centre of gravity” term, noting
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`only “the dynamic nature of ‘when in use.’” Willow has still not disclosed any basis for alleging
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`the “single continuous surface” term is indefinite. Nor has Willow provided expert testimony
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`supporting its position that the claim phrases are indefinite, so Elvie currently has no
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`understanding of the basis of Willow’s indefiniteness positions—and presumably will not until
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`Willow serves its response to this brief. The Court should reject Willow’s belated indefiniteness
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`arguments, whatever form they take, on these grounds alone.
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`In any event, Elvie has provided expert testimony from Mr. Timothy Fletcher, who has
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`opined that the terms are readily understood by a skilled artisan based on the clear disclosure of
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`the claims and specification. See generally Ex. 6 ¶¶ 111–16; 128–33. Mr. Fletcher’s testimony is
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`unrebutted—Willow presented no rebuttal expert testimony. The terms are readily
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`understandable to a skilled artisan and require no additional or different construction to make the
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`phrase understandable to the finder of fact.
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`B.
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`“a location of the centre of gravity of the breast pump device is, when in use,
`below a centre of the nipple tunnel when the milk container is empty” (’151
`Patent, claim 1)
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`Asserted Claim 1 of the ’151 Patent recites in part “a location of the centre of gravity of
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`the breast pump device is, when in use, below a centre of the nipple tunnel when the milk
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`container is empty.” Willow may attempt to introduce ambiguity to the meaning of the term by
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`asserting that the relative positions of the centre of gravity and the centre of the nipple tunnel are
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`“dynamic” because a device can be used in multiple orientations. However, the claim language
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 16 of 27 PageID #: 5722
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`itself provides more than enough context for a person of ordinary skill to understand this phrase
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`with reasonable certainty. To start, “centre of gravity” is a well-known concept in the art, and
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`every object has a centre of gravity. Ex. 6 ¶ 114. Moreover, the claim specifies the specific
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`orientation of the device and the fill level of the container when the centre of gravity is below a
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`centre of the nipple tunnel as claimed.
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`Elvie’s proposal
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`Willow’s proposal
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`Not indefinite; plain and ordinary meaning
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`Indefinite
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`1.
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`The claim language specifies the “when in use” orientation, which a
`skilled artisan would understand to be generally upright.
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`Claim 1 recites that “a location of the centre of gravity of the breast pump device is, when
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`in use, below a centre of the nipple tunnel[.]” Here, the claim language itself specifies that the
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`device orientation is “when in use,” which a skilled artisan would understand that a device is
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`generally upright “when in use.” See Fletcher Dep. 155:6–11 (attached as Ex. 7) (“[b]ased on the
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`term ‘in use,’ it would be known that it would be in a generally upright position”), id. at 155:14–
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`16 (“as one who has designed many breast pumps the term ‘in use’ would be understood to be
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`generally upright”); see also id. at 158:5–9 (opining that “generally upright” encompassed
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`“leaning back a little bit, leaning back a little bit forward or back and being straight up”);
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`157:13–14 (rejecting the proposition that a skilled artisan would have contemplated the use of
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`breast pumps while the user is lying down); 160:22-161:6 (rejecting the proposition that a skilled
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`artisan would have contemplated the use of breast pumps while the user is upside down).
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`Moreover, the claims that depend on claim 1 also discuss various components being
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`above or below other components. For example, dependent claims 8–10 include specific
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`distances that the centre of gravity could occupy below the centre of the nipple tunnel when in
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`11
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 17 of 27 PageID #: 5723
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`use. See ’151 Patent, 71:39–50. Dependent claims 11–12 similarly specify distances that the
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`centre of gravity could occupy “up from a base of the milk container . . . .” See id. at 71:51–58.
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`Dependent claim 28 recites in part “a diaphragm holder that sits above the breast flange and the
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`nipple tunnel.” See id. at 72:55–56. Thus, a skilled artisan would understand from the claims
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`alone that the device has a generally upright position with a well-defined spatial relationship
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`between the base of the milk container and the centre of gravity, the centre of gravity and the
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`nipple tunnel, and the nipple tunnel and the diaphragm holder. Moreover, a skilled artisan would
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`understand that the claims do not contemplate the device being used in orientations where those
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`well-defined spatial relationships would change.
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`(a)
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`The specification consistently explains that “in use” orientation
`is generally upright.
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`The specification repeatedly identifies the device as being upright when in use: “when
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`positioned upright for normal use.” ’151 Patent, 36:57, 38:5, 39:59, 40:48, 56:41, 64:17, 64:56,
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`65:25, 66:27. Similarly, Figures 1–8 of the ’151 Patent depict the device in an upright
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`orientation:
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`12
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 18 of 27 PageID #: 5724
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`Further, when describing an advantage of having a low centre of gravity, the specification
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`13
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 19 of 27 PageID #: 5725
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`uses terminology that indicates an upright orientation. For example, the ’151 Patent states one
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`advantage is “so that the device does not feel top-heavy to a person while using the pump.” See
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`’151 Patent, 7:25–26 (emphasis added). The benefit of the device not feeling top-heavy is exactly
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`the same as in the ordinary use of that term: objects that are top-heavy pose an increased risk of
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`rotating about their centre of gravity and toppling over. In the context of a self-contained in-bra
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`breast pump device, placing the centre of gravity below the nipple tunnel means the centre of
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`gravity of the device would also be below the top of the bra line, ensuring the device will move
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`down further into the bra of the user as the milk container is filled, as opposed to rotating about
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`the centre of gravity. In contrast, a self-contained in-bra breast pump with a centre of gravity at
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`or above the centre of the nipple tunnel may not have its centre of gravity below the top of the
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`bra line, causing the top portion of the device to rotate away from the breast about the centre of
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`gravity due to the forces acting on the pump. Namely, the two forces that would cause the top
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`portion of the device to rotate away from the breast are (1) the force of the breast on the device,
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`pointed away from the breast above the centre of gravity, and (2) the force of the bra on the
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`device, pointed toward the breast below the centre of gravity.
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`Similarly, when describing features in various embodiments, the specification uses
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`terminology that indicates an upright orientation. See, e.g., ’151 Patent, 6:61–62 (“The milk
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`collection container 3 is attached to a lower face lA of the housing 1…”) (emphasis added). A
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`feature of various embodiments is the breast shield being “generally symmetrical about a centre-
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`line running from the top to the bottom of the breast shield when positioned upright for normal
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`use.” See, e.g., id. at 38:3–5 (emphasis added). Another feature described in various
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`embodiments is that the user “rotates the breast shield in order for the diaphragm to be positioned
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`on top of the nipple.” See, e.g., id. at 18:65–67 (emphasis added). The numerous descriptions of
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`14
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`Case 2:23-cv-00229-JRG Document 77 Filed 08/08/24 Page 20 of 27 PageID #: 5726
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`“top,” “bottom,” “below,” and “lower,” together with the consistent “normal use” orientation of
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`the figures in the specification, would readily inform a skilled artisan of the generally upright
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`orientation of the device as referenced throughout the claims and specification.
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`(b)
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`The prosecution history further demonstrates that the “in use”
`orientation is generally upright.
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`During prosecution, the examiner noted that “the centre of gravity” did not require an
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`antecedent because “every device would inherently have a centre of gravity.” See Excerpts from
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`File History for U.S. Patent No. 11,260,151 at 3–4 (attached as Ex. 5). However, the examiner
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`rejecte