Case 2:23-cv-00229-JRG Document 81 Filed 08/22/24 Page 1 of 17 PageID #: 6385
`
`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 RESPONSE TO ELVIE’S OPENING CLAIM
`CONSTRUCTION BRIEF
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`

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`Case 2:23-cv-00229-JRG Document 81 Filed 08/22/24 Page 2 of 17 PageID #: 6386
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`TABLE OF CONTENTS
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`Page
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`I.
`
`II.
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`INTRODUCTION ............................................................................................................. 1
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`FACTUAL BACKGROUND ............................................................................................ 2
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`III.
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`LEVEL OF SKILL IN THE ART ..................................................................................... 3
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`IV. DISPUTED TERMS OF U.S. PATENT NO. 11,260,151 ................................................ 4
`
`A.
`
`“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) ............................................................................................. 4
`
`1.
`
`2.
`
`“when in use” does not mean “when upright” ........................................... 5
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`The relative position of the center of gravity is dynamic based on
`the orientation of the device ....................................................................... 7
`
`B.
`
`“single continuous surface” (’151 Patent, claim 22) ........................................... 10
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`
`
`i
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`Case 2:23-cv-00229-JRG Document 81 Filed 08/22/24 Page 3 of 17 PageID #: 6387
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
`Allen Eng’g Corp. v. Bartell Indus., Inc.,
`299 F.3d 1336 (Fed. Cir. 2002) .................................................................................................. 5
`
`Correct Transmission, LLC v. Nokia of Am. Corp.,
`No. 2:22-cv-00343-JRG-RSP, 2024 WL 1289821 (E.D. Tex. Mar. 26, 2024) .......................... 4
`
`Eidos Display, LLC v. AU Optronics Corp.,
`779 F.3d 1360 (2015) .................................................................................................................. 6
`
`Howmedica Osteonics Corp. v. Tranquil Prospects, Ltd.,
`401 F.3d 1367 (Fed. Cir. 2005) .................................................................................................. 4
`
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014) ................................................................................................ 12
`
`Liberty Ammunition, Inc. v. United States,
`835 F.3d 1388 (Fed. Cir. 2016) .................................................................................................. 9
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .................................................................................................................. 12
`
`Pacific Coast Building Prods., Inc. v. CertainTeed Gypsum, Inc.,
`816 F. App’x 454 (Fed. Cir. 2020) ......................................................................................... 8, 9
`
`
`
`ii
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`

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`Case 2:23-cv-00229-JRG Document 81 Filed 08/22/24 Page 4 of 17 PageID #: 6388
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`
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`I.
`
`INTRODUCTION
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`As Elvie’s brief acknowledges, Willow was the first company to commercialize “a self-
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`contained in-bra breast pump that included both a battery-powered pump mechanism and a milk
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`container configured to fit within the bra.” Dkt. 77 at 2. Willow was also first to patent a
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`discrete, under-the-bra wearable pump. And contrary to Elvie’s litigation-driven narrative,
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`Willow broadly claimed a generic “pump mechanism” that is agnostic to any one specific
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`implementation (i.e., a diaphragm, a piston driven, or a peristaltic-type pump). Willow’s
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`claimed “pump mechanism” is just that—a pump—and while it certainly includes a
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`compressible tube architecture (i.e., Willow’s commercial embodiment), it also covers the other
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`types of aforementioned pump mechanisms that were well known and understood to a POSA.
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`Indeed, Elvie’s own expert, Dr. Robert Stone, admitted that the application of the different types
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`of pump mechanisms appropriate for use in breast pumps were well understood to a person
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`skilled in the art. Ex. V, Stone Dep. Tr. at 107:12-108:15. Moreso, the intrinsic evidence
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`supports a broad construction of pump mechanism. The specification refers to different types
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`of pump mechanisms and teaches a POSA that the claims are not limited to one type of pump
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`over another. The prosecution history also makes this point. The examiner cited multiple prior
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`art references that included different types of pump mechanisms, including diaphragm pumps,
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`and no argument or amendments were made to overcome that art based on the type of pumping
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`mechanism disclosed. The sum of the evidence fully supports that the Willow broadly drafted
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`its claims to cover different types of pump mechanisms.
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`Elvie’s Patents tell a different story. Elvie’s claims, which were filed years after
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`Willow’s patents and were drafted narrowly to avoid the prior art (including Willow’s patents),
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`cover a specific type of diaphragm pump mechanism—one that is driven by a piezoelectric
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`motor. Indeed, Elvie recognizes the limited scope of its claims and has not accused the Willow
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`1
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`

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`Case 2:23-cv-00229-JRG Document 81 Filed 08/22/24 Page 5 of 17 PageID #: 6389
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`
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`premium breast pump which does not use a diaphragm-type pump.
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`Now, Elvie seeks to construe its claims even more narrowly to avoid indefiniteness. For
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`example, Elvie seeks to limit “when in use” to only “upright” positions, even though the ’151
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`Patent discloses using a breast pump device in a wide range of orientations. Elvie, however, did
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`not disclaim non-upright orientations as “when in use,” nor could it, as a key feature of self-
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`contained, in-bra breast pumps is the ability to use them on-the-go and while bending over and
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`lying down. Elvie’s narrowed interpretation is not supported, and the plain reading of the claim
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`does not provide reasonable certainty as to its scope, as explained in more detail below.
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`Similarly, Elvie seeks to narrow the claim scope of “single continuous surface” to
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`specific preferred embodiments in the specification, while ignoring others, based on its expert’s
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`self-serving testimony. And for the same reasons, this claim is also indefinite as a matter of law.
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`II.
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`FACTUAL BACKGROUND
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`Willow’s revolutionary self-contained, in-bra, wearable breast pump solved several key
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`problems for breastfeeding moms, including by providing mobility to moms otherwise stuck
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`pumping next to an electrical outlet. As Elvie’s brief explains, “self-contained in-bra breast
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`pumps are designed to be held in place by a user’s bra, allowing the user to move around and use
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`their hands for other tasks.” Dkt. 77 at 2. Elvie’s U.S. Patent 11,260,151 (the “’151 Patent”)
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`describes a number of “significant disadvantages” with traditional, non-wearable prior art breast
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`pumps, including:
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`• “As the suction generating device is a large freestanding unit connected to main[]
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`power, the user may feel tethered to the wall”;
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`• “The known devices typically also require a specific user posture and undressing
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`to function normally”; and
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`2
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`• “The known devices are also typically noisy, uncomfortable, and hard to clean.”
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`Ex. T, ’151 Patent at 1:64-2:4.
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`
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`The ’151 Patent notes that self-contained, in-bra devices, such as Willow’s premium
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`pump, include “a substantially breast shaped convex profile so as to fit within a user’s bra for
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`discrete pumping, as well as pumping on-the-go without any tethers to electrical sockets or
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`collection stations.” Id. at 2:10-14 (describing Willow’s U.S. Patent Publication No.
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`2016/0206794).
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`III. LEVEL OF SKILL IN THE ART
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`Willow disagrees with Elvie’s definition of a POSA because it does not expressly include
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`“mechanical engineering” or a related field. Both Willow’s and Elvie’s utility patents relate to
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`breast pump devices and implicate mechanical engineering disciplines such as hydraulics, pumps,
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`motors, thermodynamics, and fluid mechanics. Accordingly, more appropriately:
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`A POSA, as of the relevant priority date, would have at least an
`undergraduate degree in mechanical engineering or related field, in combination
`with at least two years of related work experience developing medical devices. A
`higher level of education may compensate for less work experience and vice
`versa. A POSA may also have worked as part of a multidisciplinary team and
`drawn upon not only their own skills, but on the skills of others on the team.
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`Elvie defined its POSA to try to capture its design expert, Mr. Tim Fletcher. Dkt. 77 at 9. But Mr.
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`Fletcher is an industrial designer with no real training or experience to opine on mechanical
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`engineering disciplines. Ex. W, Fletcher Dep. Tr. at 171:1-2. Thus, Elvie’s definition of a POSA
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`is too broad and should be rejected.
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`3
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`IV. DISPUTED TERMS OF U.S. PATENT NO. 11,260,151
`
`A.
`
`“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)
`
`Willow’s Proposed Construction
`Indefinite
`
`Elvie’s Proposed Construction
`Plain and ordinary meaning
`
`Claim 1 of the ’151 Patent is indefinite because a POSA cannot determine with reasonable
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`certainty whether an accused device when in use is infringing, given the ever-changing nature of
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`the relative position1 of the center of gravity.2 Claim 1 requires that “a location of the centre of
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`gravity of the breast pump device is, when in use, below a centre of the nipple tunnel when the
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`milk container is empty.”3 According to Elvie’s expert, Dr. Stone, the center of gravity of the
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`device is “an imaginary point within a body about which, regardless of what position [the device
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`is] in, the mass is distributed around that particular center of gravity.” Ex. V at 162:21-163:9.
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`The parties agree that the “center of gravity” and the “center of the nipple tunnel” are fixed
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`locations, and that the relative location of the “center of gravity” must be measured “when the milk
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`container is empty.” Id. at 163:13-164:1; Dkt. 77 at 17. But the parties’ agreement stops there.
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`Because “when in use” encompasses a wide range of orientations, it is simple physics that the
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`relative position of the center of gravity necessarily changes such that “a person of ordinary skill
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`in the art could [not] determine whether a particular [product] infringes or not.” Howmedica
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`
`1 All emphasis is added unless indicated otherwise.
`2 Elvie’s attorney argument that Willow failed to properly disclose its indefiniteness argument is
`spurious. Willow complied with the Local Patent Rules on November 9, 2023 by providing Elvie
`with fair notice of Willow’s indefiniteness arguments. Ex. U, Willow’s Invalidity Contentions
`Cover Pleading; see Correct Transmission, LLC v. Nokia of Am. Corp., No. 2:22-cv-00343-JRG-
`RSP, 2024 WL 1289821, at *6 (E.D. Tex. Mar. 26, 2024) (“This Court’s Patent Rules mandate
`invalidity contentions to provide fair notice of a party’s invalidity case and do not require a party
`to prove their invalidity case in the contentions.”).
`3 “Centre” is the British spelling of “center,” and both words have the same meaning.
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`4
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`
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`Osteonics Corp. v. Tranquil Prospects, Ltd., 401 F.3d 1367, 1371 (Fed. Cir. 2005). In other words,
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`in this case, the center of gravity may be below the center of the nipple tunnel, it may be directly
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`at the center of the nipple tunnel, or it may be above the center of the nipple tunnel depending on
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`how the user is oriented. It is also not clear from the specification how the center of gravity is in
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`fact measured. Mr. Fletcher uses only a two-dimensional test on a three-dimensional object. Ex.
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`W at 153:11-154:6. It is not clear that using a three-dimensional test would even yield the same
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`location under the same orientation. This is an additional reason that a POSA cannot reasonably
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`ascertain the full scope of the claim as written.
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`1.
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`“when in use” does not mean “when upright”
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`To avoid indefiniteness, Elvie attempts to rewrite “when in use” to be “when upright.” But
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`that argument is belied by the claim language, the specification, and the opinions of Elvie’s own
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`experts. And Elvie does not argue that it disclaimed any non-upright orientations in the patent or
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`prosecution history. It is improper—as Elvie attempts here—to “rewrite [indefinite] claims to
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`preserve their validity.” Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1349 (Fed. Cir.
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`2002).
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`The specification of the ’151 Patent discloses that normal use of the breast pump device
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`includes a range of non-upright positions, including lying down. For example, the ’151 Patent
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`describes using “a sensor to infer the amount of movement or tilt angle [of the device] during
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`normal use.” Ex. T at 47:54-55. When the tilt angle exceeds a threshold, “the system
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`automatically adjusts the operation of the system by providing the mother with an alert to change
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`position.” Id. at 48:7-8. Thus, “[b]y sensing the movement or tilt angle during a pumping session,
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`the system may also derive the user’s activity such as walking, standing or lying.” Id. at 21:51-
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`5
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`53; see also id. at 48:29-31 (“The sub-system derives or infers the mother’s activity, such as
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`walking, standing or lying activities, from the sensor.”).4
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`Indeed, Elvie acknowledges that “lying activities” are an embodiment of claim 1. Dkt. 77
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`at 16 (citing the ’151 Patent at 48:29-30). But Elvie incorrectly conflates lying down with the
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`range of motion that Mr. Fletcher said was “generally upright.” See id. (“Mr. Fletcher explained
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`that ‘generally upright’ includes lying back or bending forward within a range that would be
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`understood by a skilled artisan.”). As Mr. Fletcher acknowledged, a user lying on her back is
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`different from sitting, standing, or leaning forward or backward, stating his opinion that “lying
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`down is not generally upright.” Ex. W at 157:13-14; see also Dkt. 77 at 2 (distinguishing “lying
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`down” from “sitting, standing, [or] … bending over”).
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`Further undermining Elvie’s attempt to rewrite the claim, Elvie’s experts disagree as to the
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`meaning of “upright.” Elvie’s expert, Dr. Stone, testified that “[i]f you’re leaning, you’re not
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`upright,” and that even a “semi-upright” state is not “upright.” Ex. V at 65:12-66:25. But Mr.
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`Fletcher disagreed and testified that “upright” could refer to a range of semi-upright positions,
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`including slightly leaning either backward or forward. Ex. W at 157:8-159:2.
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`Elvie’s argument is also belied by its own description of the Elvie Pump—an embodiment
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`of claim 1 of the ’151 Patent. When instructing users about the proper positions in which to use
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`Elvie Pump, Elvie describes: “We’ve had testers unload dishwashers, change their babies and
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`much more – so long as Elvie Pump is functioning properly you can use it in any position you
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`like.” https://shorturl.at/Raj5O. Similarly, Willow describes that the accused product, the Willow
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`4 Elvie’s citation of Eidos Display, LLC v. AU Optronics Corp. (Dkt. 77 at 15-16), is inapposite
`because there, the specification failed to teach a novel implementation that deviated from common
`practice. 779 F.3d 1360, 1365 (2015). Here, the specification teaches a wide range of orientations,
`none of which are novel or unusual implementations of “when in use.”
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`6
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`

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`Go, allows a user to “[s]it, stand, or bend up to 45° without [the product] leaking.”
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`https://shorturl.at/gaLIy.
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`2.
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`The relative position of the center of gravity is dynamic based on the
`orientation of the device
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`Mr. Fletcher agrees that the relative location of the center of gravity of a breast pump device
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`changes based on its orientation. Mr. Fletcher testified, for example, that if the breast pump is
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`turned upside down, “from the earth’s point of view” the center of gravity switches to above the
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`center of the nipple tunnel. Ex. W at 160:16-161:6. While Willow does not argue that “when in
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`use” includes upside-down, the ever-shifting relative location of the center of gravity renders the
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`claim term indefinite.
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`The below diagram, adapted from Elvie’s technology tutorial, illustrates the ambiguity of
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`claim 1’s requirement that the measurement of the center of gravity relative to the center of the
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`nipple tunnel hinges on the orientation of the device. Here, the Elvie Pump is oriented in an
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`“upright” fashion, and the center of gravity is depicted below the nipple tunnel.
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`7
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`When the device is shifted approximately 90 degrees, however, as the device would be oriented
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`when the user is lying down, the center of gravity is no longer below the center of the nipple
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`tunnel—it is off to the side.
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`
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`The center of gravity would similarly be above the center of the nipple tunnel at any orientation
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`between 90 and 270 degrees away from “upright.”
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`In Pacific Coast Building Prods., Inc. v. CertainTeed Gypsum, Inc., the court found
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`indefinite a similar claim that involving measuring a claimed value across multiple, alternative
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`orientations. 816 F. App’x 454, 456 (Fed. Cir. 2020). There, the claim term at issue was “scored
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`flexural strength” of a drywall structure, and the specification described four possible orientations
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`in which to measure the flexural strength of a material—(1) parallel, face up; (2) parallel, face
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`down; (3) perpendicular, face up; and (4) perpendicular, face down. Id. The specification “thus
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`contemplate[d] four different flexural strength measurements, each calculated under a different
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`test condition corresponding to a different board orientation.” Id. The court found that “scored
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`8
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`flexural strength” was indefinite because “a skilled artisan would have had no reasonable certainty
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`in trying to figure out how to calculate a single value for the scored flexural strength of a drywall
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`board.” Id. at 460.
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`Similarly here, the specification does not specify the proper orientation by which to
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`determine the location of the center of gravity of the device, relative to the center of the nipple
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`tunnel. As in Pacific Coast, the specification teaches various ways of measuring the relative
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`location of the center of gravity “when in use,” “each calculated under a different test condition
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`corresponding to a different [device] orientation.” Id. at 456. And as in Pacific Coast,
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`infringement turns on which orientation is used, thus leaving a skilled artisan to guess when
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`determining the scope of the claim.
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`Elvie may argue that a POSA would understand that the center of gravity may be located
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`below the nipple tunnel when the device is in an upright position, and thus the claim is not
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`indefinite because it can be infringed. But “a term of degree cannot be definite when construed in
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`a manner that lends itself to this sort of scattershot infringement analysis.” Liberty Ammunition,
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`Inc. v. United States, 835 F.3d 1388, 1398 (Fed. Cir. 2016). The full scope of the claim must
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`provide reasonable certainty as to the scope, and here the claim language “when in use” leaves a
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`POSA guessing as to the proper orientation in which to determine infringement.
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`Elvie may further argue that the claim language “when the milk container is empty” dictates
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`that the relative position of the center of gravity should be measured at the beginning of a pumping
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`session, and that further means the device is necessarily in an upright position. But that
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`construction reads limitations into the claim that are not there—the claim recites “when in use,”
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`not “at the very beginning of use.” Further, the fact that the milk container is empty with no further
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`modification better supports an understanding by a POSA that “when in use” includes the entire
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`9
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`
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`range of motion associated with normal use, as disclosed and taught by the specification. Ex. T at
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`21:51-53, 47:54-55, 48:7-8, 48:29-31. In other words, a POSA would understand that because the
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`milk container is empty, there are no additional limitations with certain orientations during use.
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`“single continuous surface” (’151 Patent, claim 22)
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`B.
`Willow’s Proposed Construction
`Indefinite
`
`Elvie’s Proposed Construction
`Plain and ordinary meaning
`
`
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` Claim 22 is indefinite because a skilled artisan would not understand the scope of a “single
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`continuous surface” in view of the ’151 patent’s disclosures. Dependent Claim 22 recites, in part,
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`“the breast shield is a one piece item that in use presents a single continuous surface to a nipple
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`and a breast . . . .” Ex. T at 72:28-30. Claim 1, from which claim 22 depends, recites that “the
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`breast shield [is] made up of a breast flange and a nipple tunnel.” Id. at 71:14-15.
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`In its brief, Elvie argues that under the plain and ordinary meaning, “there are no
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`discontinuities or interruptions in the surface” of the breast shield. Dkt. 77 at 20. But Elvie’s cited
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`figures tell a different story. Figure 4, for example, depicts the breast flange and nipple tunnel as
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`elements 7A and 9, respectively, and element 7B shows the intersection of the flange and nipple
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`tunnel.
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`10
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`As shown, it is unclear if element 7B must be curved for the breast shield to present a
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`“single continuous surface.” Such solid lines typically indicate a solid edge—rather than a curved
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`surface. Figures 2 and 6, which Elvie alleges are also embodiments of claim 22, contain similar
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`solid lines that may also indicate a discontinuation or distinct edge. Dkt. 77 at 19.
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`
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`Figure 3, which is the front view of Figure 4, introduces even more confusion. Annotated
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`Figure 3 from Elvie’s brief shows the nipple tunnel (annotated in pink) at a 90-degree angle in
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`relation to the flange portion of the breast shield (annotated in blue).
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`Elvie argues that “continuous” means “marked by uninterrupted extension in space, time,
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`or sequence,” but in the context of the sharp edges shown in Figure 3, Elvie’s expert disagrees.
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`Mr. Fletcher testified that a cube does not have a continuous surface because of its “sharp edges.”
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`Ex. W at 169:2-4, 169:20-170:2. Thus, based on Mr. Fletcher’s own description, the perpendicular
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`edges of Figure 3 would not form a continuous surface. By extension, it is unclear if the transition
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`from breast flange to the nipple tunnel in Figures 2, 4, and 6 is a curved surface or may contain a
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`perpendicular edge. Based on Elvie’s alleged embodiments, a skilled artisan would not understand
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`whether a “single continuous surface” has a smooth transition or may contain a perpendicular edge,
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`11
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`such as in Figure 3. See Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 911 n.8 (2014)
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`(indicating that there is an indefiniteness problem if the claim language “might mean several
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`different things and no informed and confident choice is available among the contending
`
`definitions”) (internal quotations omitted); Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364,
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`1371-74 (Fed. Cir. 2014) (finding “unobtrusive manner” indefinite under Nautilus because the
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`term had “too uncertain a relationship to the patents’ embodiments”).
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`12
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`Date: August 22, 2024
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`Respectfully submitted,
`
`
`/s/ Timothy S. Durst
`
`O’MELVENY & MYERS LLP
`Timothy S. Durst (TX #00786924)
`tdurst@omm.com
`Cason Garrett Cole (TX #24109741)
`ccole@omm.com
`2801 North Harwood Street, Suite 1600
`Dallas, TX 75201
`Telephone: (972) 360-1900
`Facsimile: (972) 360-1901
`
`Robert F. Shaffer (admitted pro hac vice)
`rshaffer@omm.com
`Jason Fountain (admitted pro hac vice)
`jfountain@omm.com
`Miao Liu (admitted pro hac vice)
`mliu@omm.com
`1625 Eye St., NW
`Washington, DC 20006
`Telephone: (202) 383-5300
`Facsimile: (202) 383-5414
`
`Carolyn S. Wall (admitted pro hac vice)
`cwall@omm.com
`1301 Avenue of the Americas
`Suite 1700
`New York, NY 10019-6022
`Telephone: (212) 326-2000
`Facsimile: (212) 326-2061
`
`Laura Burson (TX # 24091995)
`lburson@omm.com
`400 South Hope St
`Los Angeles, CA 90071
`Telephone: (213) 430-6000
`Facsimile: (213) 430-6407
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`Attorneys for Plaintiff Willow
`Innovations, Inc.
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`Case 2:23-cv-00229-JRG Document 81 Filed 08/22/24 Page 17 of 17 PageID #: 6401
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have consented
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`to electronic services are being served with a copy of this document via the Court’s CM/ECF
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`system per Local Rule CV-5(a)(3) on August 22, 2024.
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`/s/ Timothy S. Durst
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