Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 1 of 40 PageID #: 6931
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`WILLOW INNOVATIONS, INC.,
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`Plaintiff and Counterclaim-Defendant,
`
`C.A. No. 2:23-cv-00229-JRG
`
`v.
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`CHIARO TECHNOLOGY, LTD.,
`
`Defendant and Counterclaim-Plaintiff.
`
`JURY TRIAL DEMANDED
`
`ELVIE’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`

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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 2 of 40 PageID #: 6932
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`I.
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`II.
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`III.
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`IV.
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`V.
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1
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`BACKGROUND OF THE TECHNOLOGY ..................................................................... 2
`
`A.
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`State of the Art ........................................................................................................ 2
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`B. Willow’s Asserted Patents ...................................................................................... 3
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`LEGAL STANDARDS ...................................................................................................... 4
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`PERSON AND DESIGNER OF ORDINARY SKILL IN THE ART ............................... 4
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`DISPUTED CONSTRUCTIONS ACROSS MULTIPLE PATENTS ............................... 4
`
`A.
`
`“a pumping mechanism” (’816 Patent, claim 1; ’624 Patent, claim 1) /
`“a vacuum pumping mechanism” (’619 Patent, Claim 1) / “a pump
`mechanism” (’229 Patent, claim 1; ’005 Patent, claim 1) ...................................... 4
`
`1.
`
`2.
`
`3.
`
`4.
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`The “pumping mechanism” terms are properly construed as means-
`plus-function terms ..................................................................................... 5
`
`The intrinsic evidence supports Elvie’s construction ................................. 8
`
`The extrinsic evidence supports Elvie’s construction ............................... 10
`
`Willow’s proposed structure renders the claims invalid under § 112 ....... 12
`
`B.
`
`“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) ....................................... 13
`
`1.
`
`2.
`
`3.
`
`The parties dispute the plain and ordinary meaning ................................. 13
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`Alternatively, the term is indefinite .......................................................... 15
`
`Willow’s arguments against Elvie’s proposed construction are
`unavailing .................................................................................................. 16
`
`C.
`
`“contained within” (’624 Patent, claim 1; ’228 Patent, Claim 11; ’619
`Patent, claim 1; ’229 Patent, claim 1) / “contained completely within”
`(’816 Patent, claim 1) ............................................................................................ 16
`
`1.
`
`Willow distinguished prior art, arguing that the prior art shows a
`container “adjacent to and not contained within” the main body ............. 16
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`- i -
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 3 of 40 PageID #: 6933
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`
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`2.
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`3.
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`Willow’s Opening Brief arguments directly conflict with Willow’s
`arguments against the prior art made during prosecution ......................... 17
`
`Willow’s amended FIG. 20 of the ’228 Patent to show “contained
`within” is consistent with Elvie’s construction ......................................... 18
`
`VI.
`
`THE ’005 PATENT .......................................................................................................... 19
`
`A.
`
`B.
`
`C.
`
`“pump mechanism comprises two drivers that displace a flexible
`member to generate vacuum pressure” (’005 Patent, Claim 1) ............................. 19
`
`“the breast pump automatically senses letdown” (’005 Patent, claim 2) .............. 20
`
`“chassis” (’005 Patent, claim 1) ............................................................................ 20
`
`VII. THE ’229 PATENT .......................................................................................................... 21
`
`A.
`
`“a latch suction is maintained throughout a pumping session” (’229
`Patent, claim 1) ..................................................................................................... 21
`
`1.
`
`2.
`
`The ’229 Patent discloses two alternative, mutually exclusive,
`pumping regimes ....................................................................................... 22
`
`Willow’s arguments directly conflict with the specification and
`prosecution arguments .............................................................................. 22
`
`VIII. THE D’995 PATENT ....................................................................................................... 24
`
`A.
`
`The claim is indefinite because the inconsistent figures would confuse
`a skilled designer about the scope of the claimed design ..................................... 25
`
`1.
`
`2.
`
`Figures 6 and 7 are not consistent with Figures 1–5 ................................. 25
`
`Figure 1 is not consistent with Figures 2–5 .............................................. 26
`
`B.
`
`Alternatively, the claim should be construed ........................................................ 27
`
`1.
`
`2.
`
`3.
`
`4.
`
`Elvie’s proposed verbal description does not place undue emphasis
`on particular features of the design ........................................................... 27
`
`The D’995 design’s generally round and oval front surface is
`functional .................................................................................................. 28
`
`Willow’s alleged “alternative designs” are unsupported .......................... 28
`
`Willow relies on a misleading patchwork of Fletcher testimony ............. 29
`
`IX.
`
`THE D’625 PATENT ....................................................................................................... 30
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`- ii -
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 4 of 40 PageID #: 6934
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`X.
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`CONCLUSION ................................................................................................................. 30
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`- iii -
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 5 of 40 PageID #: 6935
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Apple Inc. v. Masimo Corp.,
`2024 WL 137336 (Fed. Cir. Jan. 12, 2024) ...............................................................................9
`
`Berry Sterling Corp. v. Pescor Plastics, Inc.,
`122 F.3d 1452 (Fed. Cir. 1997)..........................................................................................28, 30
`
`Biogen Idec, Inc. v. GlaxoSmithKline LLC,
`713 F.3d 1090 (Fed. Cir. 2013)................................................................................................19
`
`Brookhill-Wilk 1, LLC. v. Intuitive Surgical, Inc.,
`334 F.3d 1294 (Fed. Cir. 2003)................................................................................................21
`
`Egyptian Goddess, Inc. v. Swisa, Inc.,
`543 F.3d 665 (Fed. Cir. 2008)..................................................................................................27
`
`Ethicon Endo- Surgery, Inc. v. Covidien, Inc.,
`796 F.3d 1312 (Fed. Cir. 2015)................................................................................................27
`
`Exigent Tech., Inc. v. Atrana Sols., Inc.,
`442 F.3d 1301 (Fed. Cir. 2006)................................................................................................13
`
`Greenberg v. Ethicon Endo–Surgery, Inc.,
`91 F.3d 1580 (Fed. Cir. 1996)................................................................................................6, 7
`
`Lanard Toys Limited v. Dolgencorp LLC,
`958 F.3d 1337 (Fed. Cir. 2020)....................................................................................27, 28, 29
`
`In re Maatita,
`900 F.3d 1369 (Fed. Cir. 2018)............................................................................................4, 25
`
`Masonite Corp. v. Craftmaster Mfg., Inc.,
`No. 09 C 2131, 2011 WL 13327344 (N.D. Ill. Apr. 28, 2011) ................................................25
`
`Mass. Inst. of Tech. & Elecs. for Imaging, Inc. v. Abacus Software,
`462 F.3d 1344 (Fed. Cir. 2006)..................................................................................................5
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008)................................................................................................13
`
`OddzOn Prods., Inc. v. Just Toys, Inc.,
`122 F.3d 1396 (Fed. Cir. 1997)................................................................................................28
`
`
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`- iv -
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 6 of 40 PageID #: 6936
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`
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`Space Systems/Loral, Inc. v. Lockheed Martin Corp.,
`405 F.3d 985 (Fed. Cir. 2005)..................................................................................................12
`
`TVnGO Ltd. (BVI) v. LG Elecs. Inc.,
`861 F. App'x 453 (Fed. Cir. 2021) ...........................................................................................16
`
`Williamson v. Citrix Online, LLC,
`792 F.3d 1339 (Fed. Cir. 2015)..................................................................................................5
`
`Statutes
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`35 U.S.C. § 112 ...................................................................................................................... passim
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`- v -
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 7 of 40 PageID #: 6937
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`Exhibit
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`TABLE OF EXHIBITS
`
`Description
`
`1.
`
`2.
`
`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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`9.
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`10.
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`11.
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`12.
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`13.
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`14.
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`15.
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`Lab Notebook BM-NC7-01 (WLLW-ELV-00006089-6176)
`
`Ex. 2 to Expert Declaration of Robert Stone in Support of Elvie’s Claim
`Constructions – Willow Patents Family Tree
`
`“Pump” Definition and Meaning (https://www.merriam-
`webster.com/dictionary/pump)
`
`Lab Notebook JM-EXPMD-004 – (WLLW-ELV-00006383-6492)
`
`Excerpts from File History for U.S. Patent No. 10,398,816 – (WLLW-
`ELV-00000001-295)
`
`July 31, 2014 Email from Brendan Donohoe Re: sensor (WLLW-ELV-
`00314508-4510)
`
`October 13, 2014 Email from Veronica Reynaga Re: SW Files (WLLW-
`ELV-00972526-2531)
`
`June 13, 2014 Email from Brendan Donohoe Re: Benchmarking pump
`volume extraction (WLLW-ELV-00314713-4715)
`
`July 31, 2014 Pump Drawing (WLLW-ELV-00314628)
`
`Claim Chart for U.S. Patent No. 10,434,228 from Willow’s
`Infringement Contentions, Claim 11(f)
`
`Excerpts from File History for U.S. Patent No. 10,688,229 – (WLLW-
`ELV-00003415-4194)
`
`Excerpts from File History for U.S. Patent No. 10,434,228 – (WLLW-
`ELV-00000296-1166)
`
`Lab Notebook JC-NC7-01 (WLLW-ELV-00006278-6382)
`
`Excerpt from File History for U.S. Design Patent No. 977,625
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`Excerpt from File History for U.S. Design Patent No. 809,646
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`- vi -
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 8 of 40 PageID #: 6938
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`I.
`
`INTRODUCTION
`Willow’s asserted patents disclose a particular breast pump: an in-bra wearable pump that
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`
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`moves milk through a hollow conduit that is compressed to generate vacuum pressure. The
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`compressible milk conduit is directed upwards towards the user in order to fit within the
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`compact, self-contained form factor. In the named inventor’s own words: “[t]he flex tube is the
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`heart of our system and we ask it to do a lot.” Ex. 1 at 6124. Therefore, Willow’s patent claims
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`memorialize, in numerous ways, a wearable breast pump with compressible tube architecture.
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`But in this case Willow asserts that its patents cover all in-bra wearable breast pumps,
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`despite other pump types never being mentioned in the patents or even contemplated by Willow.
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`Willow stretches—or ignores altogether—the claim language to try to cover Elvie’s innovative
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`diaphragm pump system, which has an entirely different architecture. For example, Elvie’s
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`product (1) relies on gravity, not an upward milkflow path, to gather the milk, (2) pulls a flexible
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`diaphragm via air (rather than compressing a hollow tube via actuators) to generate vacuum
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`pressure, and (3) uses a flexible diaphragm that is not a conduit to move milk and in fact never
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`even touches the milk to reduce the risk of fouling.
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`Everything in the intrinsic evidence talks about compressing a flexible conduit or volume
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`through which milk flows to generate vacuum pressure and move milk. It is unsurprising
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`therefore that Willow’s brief largely skips over the intrinsic record—the hallmark of a defective
`
`claim construction argument—and, instead, is heavy with conclusory statements and attorney
`
`argument attacking Elvie’s experts and extrinsic evidence.
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`But the extrinsic evidence only confirms the intrinsic. Elvie’s expert, Dr. Stone testified
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`in detail why a POSA would understand Willow’s patents to cover only compressible tube
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`systems, which are also called peristaltic systems, and why a POSA would not understand the
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`Willow patents to cover other, non-peristaltic pump types, which would require significant
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`1
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`

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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 9 of 40 PageID #: 6939
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`system changes to incorporate, if they could be incorporated at all. Willow is quick to
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`
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`mischaracterize—and then criticize—Dr. Stone’s testimony, but relies only on attorney argument
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`rather than any expert willing or able to substantiate Willow’s positions. Willow’s own internal
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`documents further confirm what the intrinsic evidence makes clear. Willow accuses Dr. Stone of
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`cherry-picking inventor lab notebook pages and asserts—again without support from its own
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`expert—that other pages do mention diaphragm pumps. But the cited notebook pages disclose
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`only the same compressible tube architecture, consistent with the claims and specification. See
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`Op. Br. at 7 (citing Ex. N).
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`Construction of other terms is necessitated by Willow’s bizarre infringement arguments,
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`and Elvie simply seeks to clarify the plain and ordinary meaning. For example, for the “upward
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`flow” term, which Elvie’s product does not have, Willow rotates the Elvie product in various
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`orientations to argue an “upward flow.” But directional claim language like “upward” is
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`meaningless if the device orientation can change.
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`Regarding Willow’s design patents, Elvie’s expert, Mr. Fletcher, testified that there are
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`numerous inconsistencies in the drawings that prevent a skilled designer from understanding the
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`scope of the claimed designs with reasonable certainty. With no rebuttal expert testimony of its
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`own, Willow resorts to mischaracterizing Mr. Fletcher’s deposition testimony and relies on
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`unsupported attorney argument about vanishing points in perspective drawings.
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`II.
`
`BACKGROUND OF THE TECHNOLOGY
`State of the Art
`A.
`Willow contends priority dates for its asserted patents of between July 2014 and February
`
`2016. See Willow’s Technology Tutorial at 7:51 and 14:23. Willow sought to design a breast
`
`pump that was portable, user-friendly, and discreet. See Ex. F, 1:14-39. Various styles of
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`pumping systems were known and used in non-portable breast pumps and other applications as
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`2
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`

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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 10 of 40 PageID #: 6940
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`of the alleged priority dates. Id.; see also Ex. I ¶ 23. However, each pump type was known to
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`“require unique architectures, space requirements, and control methods,” so a POSA would have
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`understood that certain pump types were suitable to achieve Willow’s design goals, while others
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`were not. See Ex. I ¶ 23. For example, peristaltic pumps “use a hose to move liquids by
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`squeezing a liquid-filled hose with a one-way action” and “completely separate[] the vacuum-
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`generating-volume from the mechanical compression components,” which “eliminates risk of
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`fluid ingress into the mechanical components.” Id. at ¶¶ 23-24. So it was well understood that
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`peristaltic pumps were best suited for a breast-pump application moving biological fluids. Id.
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`In contrast, other pump types were known to be unsuitable for this application. Id. For
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`example, a diaphragm style pump has an entirely unique architecture and works in a unique way
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`by “mov[ing] fluids by suction created by vibrating a diaphragm.” Id. at ¶¶ 23-24. As Dr. Stone
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`explained, “a diaphragm pump is not suitable for use in other than clear media, whether it’s gases
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`or liquids, because the valves are easily fouled, and a [POSA] would know that and would not
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`use a diaphragm pump to pump milk.” Ex. K at 86:2-87:18 (further explaining that diaphragm
`
`pumps are “unsuitable for use in that [breast pump] application where the milk flows through the
`
`pump” and detailing his extensive experience dealing with such challenges). Other styles of
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`pumps, such as rotary and piston pumps have their own unique characteristics and known
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`reasons why they would not be suitable for this application. Ex. K at ¶¶ 23-24.
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`B. Willow’s Asserted Patents
`Willow arrived at its claimed invention, the “heart” of which is a compressible tube
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`architecture, which uniquely enabled Willow’s breast pump to satisfy many of its stated design
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`criteria. See Elvie’s Technology Tutorial at 4:52-5:26. Willow asserts six utility patents that
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`claim priority to a common provisional application. See Ex. 2 at 1. The ’816, ’228, and ’619
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`patents share substantively similar specifications; and the ’624 and ’229 patents share
`3
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 11 of 40 PageID #: 6941
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`substantively similar specifications. See Ex. I at ¶¶ 25-28. Although there are some differences
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`
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`across the patent specifications, there is significant overlap in their respective disclosures and
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`common reference numbers for components. Id. at ¶ 22. Willow also asserts two related design
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`patents that claim various portions of the ornamental design for a breast pump.
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`III. LEGAL STANDARDS
`Because the Court is well versed in the legal standards applicable to claim construction,
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`Elvie will only address specific legal issues as they relate to particular claim terms below.
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`IV.
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`PERSON AND DESIGNER OF ORDINARY SKILL IN THE ART
`Utility patent claims are construed from the perspective of a person of ordinary skill in
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`the art (“POSA”), which Elvie’s experts describe. See Ex. I ¶ 18; Ex. J ¶ 32. For design patents,
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`indefiniteness is determined from the perspective of a designer of ordinary skill in the art
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`(“DOSA” or “skilled designer”), In re Maatita, 900 F.3d 1369, 1376 (Fed. Cir. 2018), which
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`Elvie’s expert describes. See Ex. J ¶ 32. Additionally, the scope of a design patent is determined
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`from the perspective of an ordinary observer, which Elvie’s expert also describes. See Ex. J
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`¶¶ 29-30. See Maatita, 900 F.3d at 1376. Willow failed to recite a definition of POSA, DOSA, or
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`an ordinary observer in its opening brief.
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`V.
`
`DISPUTED CONSTRUCTIONS ACROSS MULTIPLE PATENTS
`“a pumping mechanism” (’816 Patent, claim 1; ’624 Patent, claim 1) / “a
`A.
`vacuum pumping mechanism” (’619 Patent, Claim 1) / “a pump mechanism”
`(’229 Patent, claim 1; ’005 Patent, claim 1)
`
`Willow’s proposal
`
`Elvie’s proposal
`
`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
`
`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”
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`4
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 12 of 40 PageID #: 6942
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`1.
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`The “pumping mechanism” terms are properly construed as means-
`plus-function terms
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`The “pumping mechanism” terms in Willow’s patents are means-plus-function terms
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`because they do not connote sufficiently definite structural meaning to a POSA. The words
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`“pumping mechanism” are interchangeable with “means for pumping” in the claims. Both
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`simply recite the function to be performed (“pumping”), without providing any structure. As Dr.
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`Stone explained: “[‘]Pump mechanism[’] doesn’t define to me any particular type of mechanism.
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`It’s just a means of generating the action [of pumping].” Ex. K at 103:12-14.
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`It is well understood that “mechanism” is a “nonce” word, or a term having no specific
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`structural meaning, and therefore “tantamount to using the word ‘means.’” Williamson v. Citrix
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`Online, LLC, 792 F.3d 1339, 1350 (Fed. Cir. 2015) (citing Mass. Inst. of Tech. & Elecs. for
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`Imaging, Inc. v. Abacus Software, 462 F.3d 1344, 1354 (Fed. Cir. 2006) and M.P.E.P. § 2181). A
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`means-plus-function presumption may be overcome if the claim language further defines the
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`nonce term to add sufficient structure to avoid § 112 ¶ 6. See Mass. Inst. Of Tech., 462 F.3d at
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`1354. When determining whether the claim language defines the nonce term to create sufficient
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`structure, courts look at whether the defining term is (1) defined in the specification, (2) has a
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`dictionary definition, and (3) whether it has a generally understood meaning in the art. Id. There
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`is no sufficiently defining term in this instance.
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`Willow argues that the terms “pumping,” “vacuum pumping,” and “pump” define the
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`nonce word to provide enough structure to avoid § 112 ¶ 6. Op. Br. at 3-4. But this argument
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`must fail. First, these terms are never defined in the specification. Second, “pumping” and
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`“vacuum pumping” are functional terms, not structural, and while the term “pump” can be found
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`in the dictionary, the definitions are so broad and vague that they cannot provide sufficient
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`structure. For example, Merriam-Webster defines “pump” as “a device that raises, transfers,
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 13 of 40 PageID #: 6943
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`delivers, or compresses fluids or that attenuates gases especially by suction or pressure or both.”
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`Ex. 3 at 1. This definition describes multiple structures and functions of a pump. Such a broad
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`term is more generic than it is structural.
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`Finally, the term “pump” does not have a generally understood meaning in the art. As Dr.
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`Stone explained, there are multiple types of pumping systems that were used in breast pumps—
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`and indeed other pumping applications—at the time of the inventions. Ex. I ¶¶ 58-59. But a
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`POSA reviewing the claims and specification of the asserted patents would not have understood
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`“pumping mechanism” to contemplate incorporating any and every “pump” known at the time
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`into Willow’s in-bra, wearable breast pump. And a POSA would understand that the types of
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`pumping systems employed in other applications would have a significant effect on an in bra
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`wearable breast pump’s operability and design such that there would be no generally understood
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`meaning in the art that would encompass all pumps. Id. ¶ 58. Therefore, the “pumping
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`mechanism” term cannot avoid § 112 ¶ 6 merely by the use of the word “pump.”
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` The Federal Circuit case on which Willow relies, Greenberg v. Ethicon Endo–Surgery,
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`Inc. does not lead to another conclusion. 91 F.3d 1580, 1583 (Fed. Cir. 1996). There, the Court
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`considered whether § 112 ¶ 6 applied to the term “detent mechanism.” In determining that it did
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`not, the Court specifically noted three dictionary definitions for the term ”detent” that provided a
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`specific function through specific means and, therefore, found “detent” provided sufficient
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`structure. See id. For example, Webster’s dictionary defined “detent” as “a part of a mechanism
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`(as a catch, pawl, dog, or click) that locks or unlocks a movement.” Id. Such dictionary definition
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`is a far cry from that of “pump,” which merely provides various alternative functional
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`descriptions of a pump using yet another nonce word, “device.” Compare id. with Ex. 3 at 1
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`(defining “pump” as “a device that raises, transfers, delivers, or compresses fluids or that
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`6
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 14 of 40 PageID #: 6944
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`attenuates gases especially by suction or pressure or both” (emphasis added)). Additionally, a
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`“pump mechanism” is at the “heart” of the breast pump invention—and not just one discrete
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`component of a larger device (i.e., a detent of a surgical instrument)—so a sufficient structure for
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`a “pump” is all the more important. Greenberg is not analogous to the facts at hand, and
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`“pumping mechanism” is subject to § 112(f).
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`Willow next argues that the term “pump” should be construed extraordinarily broadly to
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`cover “a volume shape that can be changed or compressed to pump milk from a human breast.”
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`Op. Br. at 3. But Willow’s sole support for such a broad definition is the inventor’s use of the
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`term “equivalents thereof” and attorney argument. Id. (discussing Ex. D, ’624 Patent, 10:34-36).
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`However, Dr. Stone explained that this boilerplate disclosure does not presume to sweep in any
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`type of pump, but rather refers to pumps that are equivalent to the disclosed peristaltic pump
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`system—namely a system that compresses a flexible tube or volume through which milk flows to
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`generate vacuum pressure and move milk. See Ex. I ¶¶ 58-60, 66; Ex. K 109:5-110:16.
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`This understanding is supported by the specification. The patent specifications discuss
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`dozens of “alternatives” to the disclosed embodiments. Ex. A, 17:63-18:58; Ex. C, 8:2-8, 11:4-
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`12:40; Ex. D, 11:7-15, 14:53-18:5. Yet each example refers to modifications of the disclosed
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`embodiments that are still compressible tube-type pumps. See id. The Willow utility patents do
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`not describe any other pump system. Thus, the “equivalents” mentioned refer to equivalents to
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`the disclosed peristaltic pump design, e.g. different actuator types or numbers, not an entirely
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`different system. See Ex. I at ¶ 66; Ex. 4. Therefore, Willow’s attempt to construe “pumping
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`mechanism” as covering any pump is improper.
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`Willow next misleadingly argues that Dr. Stone testified that “a POSA would understand
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`that a ‘pump mechanism’ refers to a ‘pump.’” Op. Br. at 4-5. But Willow does not mention that
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`Dr. Stone further testified that the type of pump used would be dependent “on the configuration
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`of the breast pump and how it actually executes that function.” Ex. K 107:12-19. He further
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`testified that a diaphragm, for example, could not be swapped out for a peristaltic pump because
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`a diaphragm pump is not suitable for anything other than “clear media” because the valves are
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`“easily fouled.” Id. 85:3-86:13. Dr. Stone explained that changing the claimed peristaltic pump
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`system to a diaphragm pump system would require “significant system changes” to the entire
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`pump. See id; see also 119:9-111:11. This is consistent with his declaration where he opined that
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`there are several well-known pump systems, each with their own “unique design and space
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`requirements that are distinct from the requirements of a linear peristaltic pump design.” Ex. I ¶
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`66. Thus, a person of skill in the art could not merely “swap” one pump with another. Id.
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`Willow’s final argument regarding its use of “mechanical or magnetic mechanism” in
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`Elvie’s ’151 patent is equally unavailing. First, the claim “mechanical or magnetic mechanism”
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`is again merely a discrete component of the entire system. In comparison, “pumping mechanism”
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`is the core of the claimed invention and refers to the entire system as a whole. Further, the claim
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`language surrounding “mechanical or magnetic mechanism” provides more context into the
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`structure of the “mechanism,” i.e. that it must “releasably attach[] or latch[] when the milk
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`container is sufficiently pressed on to the housing with a single push action.” See Ex. M at 7.
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`“Pumping mechanism” is not followed by similar language. The two terms are not comparable.
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`The intrinsic evidence supports Elvie’s construction
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`2.
`The intrinsic evidence supports Elvie’s construction that the “pumping mechanism” terms
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`have a corresponding function of “creating a suction force to pump milk” and a corresponding
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`structure of “actuators and a compressible tube that direct milk generally upward and away from
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`the lower end of the flange when the breast pump is upright.”
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`Even though claim construction properly begins with the intrinsic record, Willow’s sole
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 16 of 40 PageID #: 6946
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`evidence of intrinsic support comes from the one-time use of the single word “equivalent.”
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`Importantly, Willow does not provide a single figure or discussion of any other pump system
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`outside of a peristaltic pump, including a diaphragm pump. Willow tries to overcome this by
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`arguing that “patent coverage is not necessarily limited to inventions that look like the ones in
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`the figures.” Op. Br. at 5-6. But the proposed construction must still find support in the
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`specification. See Apple Inc. v. Masimo Corp., 2024 WL 137336, at *3 (Fed. Cir. Jan. 12, 2024)
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`(limiting the claim to what was “described in the specification” because the claim term cannot be
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`construed to include limitations “untethered” to the “invention as described in the patent”).
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`Indeed, there are hundreds of instances in the asserted patents of “tube,” “compression” “flex-
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`tube,” and “actuator”—components consistent with a peristaltic pump. In comparison, not a
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`single reference to the word “diaphragm” nor any other pump system is made in the asserted
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`patents. Such threadbare disclosures cannot support Willow’s proposed construction.
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`Unlike Willow’s construction, Elvie’s proposed construction finds generous support in
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`the specification. In fact, every figure and paragraph of the specification describes variations of
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`peristaltic pump systems, and no other pump type. See Ex. A, 17:63-18:58; Ex. C, 8:2-8, 11:4-
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`12:40; Ex. D, 11:7-15, 14:53-18:5; Ex. I ¶¶ 57-58.
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`For example, the ’229 and ’624 patents explain that “the pump mechanism requires
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`independent, coordinated compression/release of two adjacent sections of resilient tube 32 to
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`perform the extraction and delivery of the milk from the breast to the collection container 60.”
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`Ex. B, 18:6-10 (emphasis added); see also Ex. I ¶ 63 (describing evidence found in the
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`specification). The ’816 and ’619 patents both disclose a nearly identical system: “a driving
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`mechanism configured to establish a vacuum profile within the conduit by cyclically
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`compressing and allowing decompression of a portion of the conduit.” Ex. A, 5:36-39; see also
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`Case 2:23-cv-00229-JRG Document 86 Filed 08/29/24 Page 17 of 40 PageID #: 6947
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`Ex. I, ¶ 64 (describing evidence found in the specification). The ’005 patent also discloses a
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`nearly identical structure and operation for “latching, pumping and extraction forces.” This is
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`demonstrated in FIG. 7A, a duplicate of FIG. 20 in the ’816 and ’619 patents, shown above. See
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`Ex. C, 11:4-11; see also Ex. I ¶ 65 (describing evidence found in the specification).
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`Further, the prosecution histories similarly demonstrate that “pumping mechanism” is
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`used to describe a single function—a peristaltic pump. For example, during the prosecution of
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`the ’816 patent, the Examiner noted that the drawings did not show a “pumping mechanism.” Ex.
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`5 at 0159. In response the applicant amended the specification to note “the pumping region or
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`mechanism 30” in paragraph [0218]. See id. at 0193. This amendment demonstrates that the
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`claimed pumping mechanism is the equivalent of the disclosed pumping region 30, i.e. an area of
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`the breast pump device, and is integral to the claimed system architecture (a linear peristaltic
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`pump, with a conduit through which milk flows via actuators’ compression). See Ex. I ¶¶ 67-68.
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`Thus, the patents all singularly disclose a peristaltic pump system and no other system.
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`The extrinsic evidence supports Elvie’s construction
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`3.
`Elvie’s expert testimony supporting its construction of “pumping mechanism” is
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`unrebutted. Willow only puts forth attorney argument that mischaracterizes the evidence. At the
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`outset, Willow falsely argues that Dr. Stone “retr