Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 1 of 20 PageID #: 6971
`
`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 REPLY IN SUPPORT OF ITS
`OPENING CLAIM CONSTRUCTION BRIEF
`
`

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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 2 of 20 PageID #: 6972
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`TABLE OF CONTENTS
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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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`
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`B.
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`C.
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`Page
`CONSTRUCTION OF TERMS COMMON TO MULTIPLE PATENTS ....................... 2
`A.
`“pump mechanism” terms ...................................................................................... 2
`1.
`Elvie fails to rebut the presumption that “pump mechanism” is not
`subject to § 112(f) ...................................................................................... 2
`Elvie disregards the dispositive intrinsic evidence .................................... 4
`The extrinsic evidence when considered in its entirety supports
`plain and ordinary meaning, and not Elvie’s contrived
`construction................................................................................................ 6
`“the suction force and the milk flow path both being directed generally
`upward relative to the bottom portion of the flange” (’816 Patent, Claim 1)
`/ “milk extracted from the breast flows to the collection container
`upwardly through the milk flow path relative to a bottom of the breast
`contacting structure” (’228 Patent, Claim 11) ....................................................... 8
`“contained within” (’624 Patent, Claim 1; ’619 Patent, Claim 1; ’229
`Patent, Claim 1) / “contained completely within” (’816 Patent, Claim 1) .......... 10
`CONSTRUCTION OF ’005 PATENT CLAIM TERMS ................................................. 11
`A.
`“pump mechanism comprises two drivers that displace a flexible member
`to generate vacuum pressure.” (’005 Patent, Claim 1) ........................................ 11
`“the breast pump automatically senses letdown” (’005 Patent, Claim 2) ............ 11
`B.
`“chassis” (’005 Patent, Claim 1) .......................................................................... 12
`C.
`CONSTRUCTION OF ’229 PATENT CLAIM TERMS ................................................. 12
`A.
`“a latch suction is maintained throughout the pumping session” (’229
`Patent, Claim 1) ................................................................................................... 12
`CONSTRUCTION OF D’995 PATENT CLAIM TERMS .............................................. 13
`A.
`“The ornamental design for a breast pump, as shown and described”
`(D’995 Patent, Claim 1) ....................................................................................... 13
`Elvie fails to show ambiguities in the figures .......................................... 13
`1.
`2.
`Mr. Fletcher’s verbal description is unnecessary and interjects
`ambiguity.................................................................................................. 15
`CONSTRUCTION OF D’625 PATENT CLAIM TERMS .............................................. 15
`A.
`“The ornamental design for a breast pump, as shown and described”
`(D’625 Patent, Claim 1) ....................................................................................... 15
`
`2.
`3.
`
`i
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`

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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 3 of 20 PageID #: 6973
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Apple Inc. v. Masimo Corp.,
`2024 WL 137336 (Fed. Cir. Jan. 12, 2024) ................................................................................ 6
`Baldwin Graphic Sys., Inc. v. Siebert, Inc.,
`512 F.3d 1338 (Fed. Cir. 2008) ................................................................................................ 13
`Ethicon Endo-Surgery, Inc. v. Covidien, Inc.,
`796 F.3d 1312 (Fed. Cir. 2015) ................................................................................................ 15
`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010) .................................................................................................. 8
`Greenberg v. Ethicon Endo–Surgery, Inc.,
`91 F.3d 1580 (Fed. Cir. 1996) ................................................................................................ 2, 3
`Mondis Tech, Ltd. v. LG Elec., Inc.,
`No. 2:08-CV-478-TJW-CE, 2011 WL 2149925 (E.D. Tex. May 5, 2011) ................................ 8
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) .................................................................................................. 8
`Personalized Media Communs., L.L.C. v. ITC,
`161 F.3d 696 (Fed. Cir. 1998) .................................................................................................... 3
`Thorner v. Sony Comput. Ent’mt Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012) ................................................................................................ 12
`Williamson v. Citrix Online LLC,
`792 F.3d 1339 (Fed. Cir. 2015) .................................................................................................. 2
`
`
`
`ii
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`

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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 4 of 20 PageID #: 6974
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`Elvie’s response misinterprets the scope of Willow’s patent claims by inappropriately
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`focusing on extrinsic evidence, such as infringement contentions and selective excerpts from
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`lab notebooks and inventor emails, to suggest that the claims are limited to only one specific
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`type of “peristaltic” pump disclosed in the specification. This interpretation, however,
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`disregards the actual claim language (which does not specify “peristaltic” pumps or
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`“compressible tubes with actuators”), and overlooks the broader teachings of the patent
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`specifications (which expressly teach a POSA that the claims are directed to other types of
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`pumps) and the prosecution history (which shows that the examiner understood and applied a
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`claim scope that was not so limited).
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`Furthermore, Elvie’s criticism of Willow for not presenting an expert to define the plain
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`and ordinary meaning of the claims is unfounded. Intrinsic evidence is the most authoritative
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`source in claim construction, and in this case, it alone suffices to clarify the claim scope. Elvie’s
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`reliance on extrinsic evidence is further undermined by the deposition of its own expert, Dr.
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`Stone, who admitted to disregarding parts of the specification that clearly show the claims are
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`not limited to peristaltic pumps. Ex. K at 118:3-16 (disregarding these teachings because they
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`are “not relevant to what a peristaltic pump is”).
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`Elvie’s assertion that Willow’s patents do not encompass diaphragm pump architecture
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`is contradicted not only by the intrinsic evidence but also Dr. Stone’s testimony. Despite Elvie’s
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`claim that Dr. Stone’s opinions stand unchallenged, his deposition contradicts Elvie’s narrow
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`interpretation of “pump mechanism” (one that he disagrees with in any event). Ex. K at 135:9-
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`136:16. Indeed, he concedes—as he must—that a POSA would recognize that only a few
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`different types of breast pumps were available to a POSA, including diaphragm and piston
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`pumps, and more so, admitted that a POSA would readily understood their “application” (i.e.,
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`1
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`

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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 5 of 20 PageID #: 6975
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`how to make and use these pumps in the context of wearable pumps).
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`Finally, Elvie’s response brief also fails to counter the years of prosecution history of
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`Willow’s patents, which faced rejections based on prior art that disclosed diaphragm and other
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`types of pump mechanisms. Dr. Stone concedes—as the prosecution record is clear—that
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`Willow did not limit, disclaim, or disavow the broader claim scope for its “pump mechanism”
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`at any time. Id. at 48:19-49:1, 113:11-17. Elvie’s remaining arguments on the other terms fail
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`for the similar reasons—they improperly attempt to introduce unfounded language or non-
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`restrictive embodiments into their proposed interpretations.
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`I.
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`CONSTRUCTION OF TERMS COMMON TO MULTIPLE PATENTS
`
`A.
`
`“pump mechanism” terms1
`
`1.
`
`Elvie fails to rebut the presumption that “pump mechanism” is not
`subject to § 112(f)
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`Means-plus-function under § 112(f)—a framework suggested by Dr. Stone because he saw
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`it once before (id. at 97:4-98:2)—does not apply to these terms which do not recite “means for”
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`language. Notably, Elvie fails to cite any authority finding that the claim language here invokes §
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`112(f). Dkt. 82 at 6-8. Elvie also fails to distinguish Greenberg v. Ethicon Endo–Surgery, Inc.,
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`where the Federal Circuit held that the term “detent mechanism” was not a means-plus-function
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`term because “detent … as the name for structure, has a reasonably well understood meaning in
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`the art.” 91 F.3d 1580, 1583 (Fed. Cir. 1996). Here, “pump” falls in the same category—and Dr.
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`Stone acknowledged that a POSA would understand that a “pump mechanism” refers to a “pump.”
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`Ex. K at 107:2-10; see Williamson v. Citrix Online LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015) (the
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`essential inquiry under § 112(f) is whether “the words of the claim are understood by persons of
`
`
`1 The “pump mechanism” terms refer to “a pump mechanism” (’229 Patent, claim 1); “a pumping
`mechanism” (’816 Patent, claim 1; ’624 Patent, claim 1; ’005 Patent, claim 1) / “a vacuum
`pumping mechanism” (’619 Patent, claim 1).
`
`2
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`

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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 6 of 20 PageID #: 6976
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`
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`ordinary skill in the art to have a sufficiently definite meaning as the name for structure”). And
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`while a “pump” is well understood to a POSA (Ex. K at 107:2-10, 107:12-108:15), Elvie resorts
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`to more extrinsic evidence to argue that their dictionary definition of “pump” is insufficient
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`because it uses “another nonce word, ‘device.’” Dkt. 82 at 6. But the same was true in Greenberg,
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`where the definition of “detent” was “a part of a mechanism (as a catch, pawl, dog, or click) that
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`locks or unlocks a movement.” 91 F.3d at 1583. Like the “pump” at issue here, Greenberg noted
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`that “[m]any devices take their names from the functions they perform,” including “filter,”
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`“brake,” “clamp,” “screwdriver,” and “lock,” but that is nevertheless “[in]sufficient to convert a
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`claim element containing that term into a ‘means for performing a specified function.’” Id.
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`Elvie’s contention that Willow’s construction is “extraordinarily broad[]” (Dkt. 82 at 7) is
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`belied by Dr. Stone’s testimony, who admitted that (1) only a limited number of pumps were
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`known in the art (diaphragm, piston, centrifugal, and peristaltic pumps), (2) the universe of pumps
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`appropriate for use in a breast pump was even more limited, and (3) their “applications” (i.e., how
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`to make and use them) were also well understood by a POSA. Ex. I, Stone Decl. ¶ 23; Ex. K at
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`107:12-108:15. Elvie’s brief, as it must, concedes this point. Dkt. 82 at 6 (“[A] POSA reviewing
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`the claims and specification of the asserted patents would not have understood ‘pumping
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`mechanism’ to contemplate incorporating any and every ‘pump’ known at the time into Willow’s
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`in-bra, wearable breast pump.”). Thus, based on Elvie’s and Dr. Stone’s own admissions, the class
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`of available structures for the claimed pumping mechanism was as limited as it was well
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`understood. At bottom, the claims do not invoke § 112(f). See Personalized Media Communs.,
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`L.L.C. v. ITC, 161 F.3d 696, 705 (Fed. Cir. 1998) (finding “detector” sufficiently structural because
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`“[e]ven though the term ‘detector’ does not specifically evoke a particular structure, it does convey
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`to one knowledgeable in the art a variety of structures known as ‘detectors.’”).
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`3
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`

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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 7 of 20 PageID #: 6977
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`Elvie also fails to address the fatal inconsistency in its 112(f) positions based on the
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`prosecution of its own claim term, “mechanical or magnetic mechanism.” Dkt. 82 at 8. First,
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`Elvie asserts that Willow’s “pump mechanism” refers to the system as a whole (whatever that
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`means), whereas Elvie’s mechanism is a smaller component of an overall system. Id. That is
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`irrelevant, however, to the threshold issue of whether § 112(f) should apply. There is no question
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`that “mechanical mechanism” (which common sense dictates is redundant) provides less structure
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`(and maybe no structure at all) to a POSA as compared to a “pump” or “pumping” or “vacuum
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`pumping” mechanism, which conjures one of only a few different types. Ex. K at 103:15-105:1.
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`Accordingly, how can Elvie credibly argue here that Willow’s “pump mechanism” invokes means-
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`plus-function when it told the Patent Office that its own “mechanical mechanism”—two “nonce”
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`words to borrow from Elvie’s argument—does not?
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`Next, Elvie points to surrounding context from claim 30 of Elvie’s ’151 Patent as disclosing
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`structure, even though it refers to function. Dkt. 82 at 8. Taken at face value, however, Elvie’s
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`basic premise in pointing to structure within the claim supports why 112(f) should not apply to
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`Willow’s “pump” mechanism—Willow’s claims contain structure, i.e., the “pump,” “pumping,”
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`and “vacuum pumping” in “pump mechanism.” See Ex. A at 50:65-51:2; Ex. D at 53:19-21.
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`2.
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`Elvie disregards the dispositive intrinsic evidence
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`Elvie argues that Willow’s “sole evidence of intrinsic support comes from the one-time use
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`of ‘equivalent.’” Dkt. 82 at 8-9. Not so. While Elvie is fixated on its foregone conclusion that
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`Willow’s pump mechanism is limited to only a cylindrical, compressible tube, Willow’s patents
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`unambiguously teach in numerous instances that the claimed pump mechanism is not so limited:
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`• “pumping regions 40, 42 [of tube 32] do not need to be in the shape of a cylindrical
`tube, or even a tube at all, but can be any volume shape that be changed/compressed.
`For example, the cross-section could be oval, square, trapezoid, etc. as needed to fit the
`device space.” (Ex. D at 12:2-5)
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`4
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`

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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 8 of 20 PageID #: 6978
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`Indeed, Dr. Stone admitted at his deposition that diaphragm pump assembly “includes a volume
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`that can be changed or compressed.” Ex. K at 26:8-11. That testimony alone is fatal to Elvie’s
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`proposed construction.
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`• “[A]lthough both portions 32S and 32L [of flex-tube 32] are shown as tubular portions
`being circular in cross-section, the present disclosure is not limited to such, as one or
`both portions could be shaped otherwise.” (Ex. A at 17:31-34)
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`Dr. Stone ignored this express teaching.
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`• “[T]he conduit region 32L in the embodiment of FIG. 3 is not cylindrical, but is
`formed as a pump chamber having a substantially oval face 32F and walls that extend
`substantially perpendicular thereto.” (Ex. A at 17:35-38)
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`Dr. Stone again ignored this express teaching to a POSA that the pumping mechanism includes
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`types of pumps other than a peristaltic pump.
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`• “Like regions 32S and 32L, region 32S2 may be cylindrical and circular in cross
`section, but need not be.” (Ex. A at 17:46-47)
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`Again, Dr. Stone ignores this express teaching because it does not support his conclusory opinions.
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`• “[T]he present disclosure is not limited to [a tubular shape].” (Ex. C at 9:49-52).
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`In sum, these express disclosures inform a POSA that the claims cover the limited world of pumps.
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`Moreover, Elvie’s contention that Willow’s patents disclose “variations of peristaltic pump
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`systems, and no other pump type,” (Dkt. 82 at 9) is belied by Dr. Stone’s admission that a
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`diaphragm pump “includes a volume that can be changed or compressed,” which is an express
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`teaching in the specification. Ex. K at 26:8-11; see Ex. D at 12:2-5 (“pumping regions 40, 42 [of
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`tube 32] do not need to be in the shape of a cylindrical tube, or even a tube at all, but can be any
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`volume shape that be changed/compressed”).
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`Critically, Elvie still has not made—and cannot make—any argument that Willow
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`disclaimed or disavowed any claim scope that would narrow its claims to only a peristaltic-type
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`pump (i.e., one comprised with compressible tubes). While Elvie cites Willow’s amendment of
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`5
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`

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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 9 of 20 PageID #: 6979
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`the specification during prosecution (Dkt. 82 at 10), which has no bearing to the claim scope, Elvie
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`fails to mention that the examiner cited prior art diaphragm pumps, including Khalil, as disclosing
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`Willow’s claimed pump mechanism. Ex. 5 at 0208-0209; Ex. K at 101:3-9. Elvie similarly fails
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`to cite to one instance where Willow amended its claims or otherwise argued its pump does not
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`include diaphragm or piston-type pumps. Dkt. 82 at 10.
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`Elvie’s reliance on Apple Inc. v. Masimo Corp., 2024 WL 137336, at *3 (Fed. Cir. Jan. 12,
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`2024), is misguided. There, the court limited the scope of the claimed “processing characteristics”
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`to “one or more signals from one or more detectors configured to detect [light]” because the claim
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`language did not permit a broader scope. Id. As the court noted, “[the recited] signals represent
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`the only signals received and processed in the claimed patient-monitoring invention.” Id. (citing
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`claim 1 of Masimo’s ’703 patent). Here, by contrast, Willow’s claims are agnostic to the specific
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`type of pump mechanism and do not support Elvie’s narrow reading.
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`Finally, Elvie’s response fails entirely to address Willow’s argument that Elvie’s imported
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`unclaimed limitations would cause redundancies in the claims. See Dkt. 75 at 8. Elvie’s
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`construction would import “upward flow” into the claims of the ’229, ’005, ’624, and ’619 Patents
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`when no such requirement is claimed. In addition, “upward flow” under Elvie’s proposal would
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`be recited twice in claim 1 of the ’816 Patent. See id.
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`3.
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`The extrinsic evidence when considered in its entirety supports plain and
`ordinary meaning, and not Elvie’s contrived construction
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`Because they have no support in terms of intrinsic evidence, Elvie doubles down on highly
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`selected portions of attorney-collated extrinsic evidence and Dr. Stone’s reliance on it. But the
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`sliver of cited extrinsic evidence tells only Elvie’s side of the story, not what happened during
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`Willow’s pioneering R&D of the first-ever discrete, wearable, under-the-bra breast pump, and the
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`broad patenting around it. Dr. Stone admitted at his deposition that he was given only discrete
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`6
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`

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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 10 of 20 PageID #: 6980
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`
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`excerpts from only one inventor notebook. Ex. K at 40:15-42:19. He did not know there were
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`other inventor notebooks, nor did he seem to care, because as before, his attorneys had found one
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`excerpt that disclosed a peristaltic pump that supported his opinions. Id. But one excerpt from
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`one lab notebook in isolation is of little probative value.
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`Even a quick glance at other communications between the inventors show they had
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`possession of other pump designs, including a diaphragm pump. For example, one email discusses
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`a “piston design[]” that is not limited to a peristaltic architecture, see Ex. 7 at WLLW-ELV-
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`00314715, and diaphragm pumps are also disclosed in a different inventor’s lab notebook—one
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`that Dr. Stone was not asked to review. Dkt. 82 at 10-11; Ex. K at 40:15-42:15. Exemplary images
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`from Exhibit N showing a diaphragm (also called a membrane) are reproduced below. Ex. N at
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`6049, 6062.
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`The Willow inventors’ goal was to claim the pump mechanism broadly—as evidenced by
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`the claim language itself. Nowhere is “peristaltic” or “diaphragm” or “piston” used in the claims.
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`Elvie fails to rehabilitate Dr. Stone on these shortcomings (Ex. K at 118:3-16, 130:2-131:1) and
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`Elvie’s argument that these “do not disclose an entirely re-designed invention comprising a new
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`pump system,” Dkt. 82 at 12, fails in view of the proper standard by which to analyze intrinsic
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`evidence in its entirety as understood by a POSA. In any event, as discussed above, Dr. Stone
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`admitted that Willow’s patents disclose a diaphragm pump to a POSA. Ex. K at 26:8-11.
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`7
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`B.
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`“the suction force and the milk flow path both being directed generally
`upward relative to the bottom portion of the flange” (’816 Patent, claim 1) /
`“milk extracted from the breast flows to the collection container upwardly
`through the milk flow path relative to a bottom of the breast contacting
`structure” (’228 Patent, claim 11)
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`On upward flow, Elvie resorts to irrelevant arguments based on Willow’s infringement
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`contentions.2 But “claim construction is intended to be decided based on the intrinsic evidence
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`and to a lesser extent the extrinsic evidence—neither of which depend on the infringement
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`positions or infringing products.” Mondis Tech, Ltd. v. LG Elec., Inc., No. 2:08-CV-478-TJW-
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`CE, 2011 WL 2149925, at *3 (E.D. Tex. May 5, 2011). In any event, Elvie cannot justify a
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`departure from the plain and ordinary meaning at claim construction by disputing Willow’s
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`infringement theory and relying on O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d
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`1351, 1361 (Fed. Cir. 2008). O2 Micro merely holds that plain and ordinary meaning “may be
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`inadequate when a term has more than one ‘ordinary’ meaning or when reliance on a term’s
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`‘ordinary’ meaning does not resolve the parties’ dispute.” Id. Whereas here, with upward, there
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`is only one “ordinary” meaning consistent with the claim language, the Court can resolve the
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`parties’ dispute by rejecting Elvie’s unsupported construction. Finjan, Inc. v. Secure Computing
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`Corp., 626 F.3d 1197, 1206-07 (Fed. Cir. 2010) (distinguishing O2 Micro after noting the district
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`court properly rejected defendant’s “unjustifiably narrow” construction).
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`Once again, Dr. Stone’s deposition testimony supports Willow’s position, and Elvie
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`conspicuously fails to address the fatality of the testimony to its position. Dr. Stone rightfully
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`distinguished between upward relative to the bottom of the flange (per the claims), as compared
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`to upward relative to gravity (his opinion outside the claims and specification). According to Dr.
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`2 Willow strongly disagrees that its infringement theories are “bizarre,” as Elvie contends. Dkt.
`82 at 2. The suction force in the Elvie Pump is generated by the diaphragm, which sits above the
`nipple tunnel. Id. at 14. Thus, the suction force and the milk flow path are necessarily upward,
`even when the pump is oriented upright.
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`8
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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 12 of 20 PageID #: 6982
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`Stone, “up and down are relative terms related to gravity, but the drawings relate instead to
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`direction with regard to the bottom of the flange.” Ex. K at 55:9-19. The claim language
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`consistent with the specification controls and the terms are clear—upward movement is
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`determined relative to the bottom portion of the flange. Ex. A at 50:45-51:2; Ex. F at 51:17-27.
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`In response, Elvie argues that rotation of the device “would read out the claim language ‘bottom
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`portion’ and ‘bottom’ because the bottom in one orientation would no longer be the bottom in the
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`rotated orientation.” Dkt. 82 at 14-15. But that is simply wrong and contrary to Dr. Stone’s
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`testimony, which correctly recognizes that the top and bottom of the device are always fixed—
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`thus, the key reference point (i.e., bottom portion of the flange) remains fixed even if the device is
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`rotated, e.g., when the user is pumping while lying on her back. Ex. K at 76:2-20.
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`Elvie further argues that if “when upright” is not read-in to the definition then the claim
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`terms are indefinite, but as Willow’s opening brief stated, “Elvie’s alternative indefiniteness
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`argument is moot because according to Dr. Stone, any indefiniteness position depends on ‘Willow
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`assert[ing] ‘upward’ is not governed by the ‘top’ and ‘bottom’ orientations (i.e., upward is towards
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`the ‘top’).’” Dkt. 75 at 10 n.5. Willow again agrees with Dr. Stone on this point—the claim
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`requires upward movement relative to the bottom of flange, which does not change. Ex. K at 55:9-
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`19, 57:2-18, 76:2-20.
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`Elvie further fails to explain why “when upright” is necessary (it is not) or how it is
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`consistent with the specifications’ teachings (again, it is not). Indeed, insertion of “when upright”
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`directly contradicts the specifications’ teachings that pumping may occur in non-upright positions,
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`including “when the user is lying down, bending over, or in environments such as a bumpy ride,
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`as in an automobile or airplane trip.” Ex. B at 32:27-37. Further demonstrating the flaws in Elvie’s
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`proposed construction, its own experts interject ambiguity into their proposed construction by
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`9
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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 13 of 20 PageID #: 6983
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`disagreeing on what “when upright” means. While Elvie falsely blames “Willow’s extensive
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`efforts to confuse this concept with muddled hypotheticals,” Dkt. 82 at 16, Elvie cannot credibly
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`claim its experts’ opinions are “unrebutted” when the experts disagree with each other.
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`Finally, Elvie’s response fails to address the numerous other issues Willow raised with
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`Elvie’s construction, including:
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`• Elvie improperly seeks to import the “the suction force and the milk flow path” into
`claim 11 of the ’228 Patent, despite that claim 11 recites neither a “suction force” nor
`a “milk flow path.” (Dkt. 75. at 11);
`
`• Elvie arbitrarily substitutes the words “lower end” for the claimed “bottom portion,”
`even though the substitution is unnecessary and reduces clarity (id.); and
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`• Elvie substitutes the words “away from” for “relative to,” even though “relative to” is
`easily understood and “away from” introduces unnecessary confusion (id. at 12).
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`C.
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`“contained within” (’624 Patent, claim 1; ’619 Patent, claim 1; ’229 Patent,
`claim 1) / “contained completely within” (’816 Patent, claim 1)
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`Elvie’s response does not explain (1) why plain and ordinary meaning is insufficient, or
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`(2) why “contained within” and “contained completely within” should be construed together
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`despite their different language. Elvie’s proposal should be rejected as a threshold matter because
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`it would render “completely” as a claim term superfluous.
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`
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`The prosecution history does not dictate a different result. There, Willow distinguished
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`prior art reference Khalil on the basis that it failed to disclose a “pump mechanism and milk
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`collection container … contained within the main body,” as claimed in claim 1 of the ’229 Patent.
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`Dkt. 82 at 16-17. Willow distinguished the examiner’s proposal—formulated under the broadest
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`reasonable interpretation regime—that “contained within” should mean “resting on a surface of
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`the main body 34 or contoured to fit with the main body 34.” Ex. 11 at 4133. Instead, Willow
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`argued, the pump mechanism and milk collection container must be “within the main body,” which
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`“simply means inside the main body.” Id. On that basis, Willow further distinguished
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`arrangements where the “milk collection container [is] configured on an outside of a main body.”
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`Id. Willow thus distinguished Khalil because its container was “sized and shaped to reside on the
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`exterior surface … of the breast pump system.” Id. This description is consistent with Willow’s
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`cited dictionary definition of “contain” that means “to have within,” as opposed to Elvie’s proposal
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`of “enclosed” which means “closed in or fenced off.” Dkt. 75 at 13.
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`II.
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`CONSTRUCTION OF ’005 PATENT CLAIM TERMS
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`A.
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`“pump mechanism comprises two drivers that displace a flexible member to
`generate vacuum pressure.” (’005 Patent, claim 1)
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`Elvie fails to substantively argue this term, and instead merely cites its extrinsic declaration
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`and rests on its flawed argument that the claims are limited to a compressible tube architecture.
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`Dkt. 82 at 19. Elvie does not confront the multiple disclosures in Willow’s specifications that the
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`claimed “flexible member” is not limited to a compressible tube. See Ex. A at 9:49-52, 17:35-37,
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`17:46-47; Ex. C at 9:49-52; Ex. D at 12:2-5. Nor does it address that when referring to a diaphragm
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`style pump, Dr. Stone acknowledges that a diaphragm is itself “flexible.” Ex. K 120:12-20. Elvie
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`also fails to address the claim differentiation and redundancy problem with its position—because
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`this term is recited only in claim 1 of the ’005 Patent, it should not be imported into the other
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`claims which only recite a “pump mechanism.”
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`B.
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`“the breast pump automatically senses letdown” (’005 Patent, claim 2)
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`Elvie similarly glosses over this term, and merely cites its extrinsic declaration and
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`Willow’s extrinsic development documents. Dkt. 82 at 20. Elvie does not justify its departure
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`from the plain meaning or explain why a specific embodiment involving a compressible tube
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`should be imported into the claim. Nor does Elvie explain why the “pump mechanism” itself must
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`sense letdown instead of the “breast pump” as a whole, as the claim requires. Ex. C at 28:42-43.
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`Case 2:23-cv-00229-JRG Document 87 Filed 08/29/24 Page 15 of 20 PageID #: 6985
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`C.
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`“chassis” (’005 Patent, claim 1)
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`Elvie fails to justify its departure from the plain and ordinary meaning which seeks to
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`exclude “the case or exterior of the device.” The proper analysis must start with the presumption
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`that Willow’s claims are not limited to exemplary embodiments where Willow did not disclaim
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`any claim scope or act as its own lexicographer. Thorner v. Sony Comput. Ent’mt Am. LLC, 669
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`F.3d 1362, 1365 (Fed. Cir. 2012). Elvie does not make any disavowal or disclaimer argument.
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`Dr. Stone’s opinion does not dictate a narrow construction. Indeed, Elvie asserts that the
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`two dictionary definitions cited in Dr. Stone’s report are not conflicting, but Elvie fails to explain
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`how they are not. Dkt. 82 at 21. Indeed, one definition states that the “chassis” is “the supporting
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`frame of a structure” and the other states that “the frame and working parts (of an automobile or
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`electronic device) exclusive of the body or housing.” Ex. I ¶ 107. This ambiguity alone is
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`sufficient to reject Elvie’s unduly narrow construction.
`
`III. CONSTRUCTION OF ’229 PATENT CLAIM TERMS
`
`A.
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`“a latch suction is maintained throughout the pumping session” (’229 Patent,
`claim 1)
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`Elvie devotes its brief to arguing a point that is uncontested. Willow’s opening brief agreed
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`that “latch suction” means “a minimum vacuum level established when the pump is attached to
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`the breast—i.e., a pressure which is below atmospheric pressure.” Dkt. 75 at 20. Thus, the parties’
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`dispute is limited to whether “throughout the pumping session” should be narrowed to “during the
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`entire pumping session.” It should not.
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`Elvie’s brief is silent as to its justification for rewriting “throughout the pumping session”
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`to read “during the entire pumping session.” Elvie fails to acknowledge that (1) its design expert,
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`Mr. Fletcher, used “throughout the pumping session” in his declaration, and (2) he understands
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`“during the entire pumping session” to mean “constantly from start to finish.” Id. at 20-21; Dkt.
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`12
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`82 at 22-24. Based on Elvie’s failure to address this issue, the Court should maintain the claim
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`language of “throughout the pumping session.”
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`Elvie similarly fails to confront the claim language, which merely requires that “a latch
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`suction” (meaning one or more) is “maintained throughout a pumping session.” Ex. B at 53:22-
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`23. It is telling that Elvie’s brief consistently refers to “the latch suction” but that is not what the
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`claim says. Indeed, Willow has not argued that “a latch suction” changes the underlying meaning
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`of “latch suction.” The parties maintain agreement on this point. Rather, Elvie excludes “a” from
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`the term to be construed, and