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Level Sleep LLC v. Sleep No. Corp.

United States District Court, E.D. Texas, Marshall Division

May 22, 2019

LEVEL SLEEP LLC, Plaintiff,
v.
SLEEP No. CORPORATION, SELECT COMFORT RETAIL CORPORATION, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT W. SCHROEDER, III UNITED STATES DISTRICT JUDGE.

         On March 6, 2019, the Court held a hearing to determine the proper construction of the disputed claim terms in United States Patent Nos. 6, 807, 698 (“'698 Patent”), 7, 036, 172 (“'172 Patent”).[1] The Court has considered the arguments made by the parties at the hearing and in their claim construction briefs. Docket Nos. 56, 60 and 67. The Court has also considered the intrinsic evidence and made subsidiary factual findings about the extrinsic evidence where necessary. See Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005); Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015). The Court issues this Claim Construction Memorandum and Order in light of these considerations.

         I. BACKGROUND

         The patents in dispute generally relate to mattress design and construction. The '698 Patent was filed on January 1, 2002, was issued on October 26, 2004 and is titled “Bed Having Low Body Pressure and Alignment.” The disclosure is generally directed to a mattress comprising a combination of uniform displacement and variable displacement members for supporting a reclining body to support the body in alignment and with uniform low pressure. '698 Patent at Abstract. The '172 Patent was filed on May 20, 2003, was issued on May 2, 2006 and is titled “Bed Having Low Body Pressure and Alignment.” The disclosure is generally directed to a mattress that is structurally modified to support a reclining body in alignment with low body pressure. '172 Patent at Abstract; 6:9-14.

         Shortly before the start of the March 6, 2019 hearing, the Court provided the parties with preliminary constructions with the aim of focusing the parties' arguments and facilitating discussion. Those preliminary constructions are noted below within the discussion for each term.

         II. APPLICABLE LAW

         A. Claim Construction

         “It is a ‘bedrock principle' of patent law that ‘the claims of a patent define the invention to which the patentee is entitled the right to exclude.'” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by considering the intrinsic evidence. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc'ns Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at 861. The general rule—subject to certain specific exceptions discussed infra—is that each claim term is construed according to its ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d at 1312-13; Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (“There is a heavy presumption that claim terms carry their accustomed meaning in the relevant community at the relevant time.”) (vacated on other grounds).

         “The claim construction inquiry. . . begins and ends in all cases with the actual words of the claim.” Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). “[I]n all aspects of claim construction, ‘the name of the game is the claim.' ” Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998)). First, a term's context in the asserted claim can be instructive. Phillips, 415 F.3d at 1314. Other asserted or unasserted claims can also aid in determining the claim's meaning, because claim terms are typically used consistently throughout the patent. Id. Differences among the claim terms can also assist in understanding a term's meaning. Id. For example, when a dependent claim adds a limitation to an independent claim, it is presumed that the independent claim does not include the limitation. Id. at 1314-15.

         “[C]laims ‘must be read in view of the specification, of which they are a part.' ” Id. (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). The specification “is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.” Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). But, “[a]lthough the specification may aid the court in interpreting the meaning of disputed claim language, particular embodiments and examples appearing in the specification will not generally be read into the claims.” Comark Commc'ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. “[I]t is improper to read limitations from a preferred embodiment described in the specification—even if it is the only embodiment—into the claims absent a clear indication in the intrinsic record that the patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).

         The prosecution history is another tool to supply the proper context for claim construction because, like the specification, the prosecution history provides evidence of how the U.S. Patent and Trademark Office (“PTO”) and the inventor understood the patent. Phillips, 415 F.3d at 1317. However, “because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes.” Id. at 1318; see also Athletic Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution history may be “unhelpful as an interpretive resource”).

         Although extrinsic evidence can also be useful, it is “less significant than the intrinsic record in determining the legally operative meaning of claim language.” Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand the underlying technology and the manner in which one skilled in the art might use claim terms, but technical dictionaries and treatises may provide definitions that are too broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid a court in understanding the underlying technology and determining the particular meaning of a term in the pertinent field, but an expert's conclusory, unsupported assertions as to a term's definition are entirely unhelpful to a court. Id. Generally, extrinsic evidence is “less reliable than the patent and its prosecution history in determining how to read claim terms.” Id. The Supreme Court recently explained the role of extrinsic evidence in claim construction:

In some cases, however, the district court will need to look beyond the patent's intrinsic evidence and to consult extrinsic evidence in order to understand, for example, the background science or the meaning of a term in the relevant art during the relevant time period. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546 (1871) (a patent may be “so interspersed with technical terms and terms of art that the testimony of scientific witnesses is indispensable to a correct understanding of its meaning”). In cases where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about that extrinsic evidence. These are the “evidentiary underpinnings” of claim construction that we discussed in Markman, and this subsidiary factfinding must be reviewed for clear error on appeal.

Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015).

         B. Indefiniteness under 35 U.S.C. § 112

         Patent claims must particularly point out and distinctly claim the subject matter regarded as the invention. 35 U.S.C. § 112. “A claim is invalid for indefiniteness if its language, when read in light of the specification and the prosecution history, ‘fail[s] to inform, with reasonable certainty, those skilled in the art about the scope of the invention.' ” Biosig Instruments, Inc. v. Nautilus, Inc., 783 F.3d 1374, 1377 (Fed. Cir. 2015) (quoting Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2124 (2014)).

         The ultimate issue is whether someone working in the relevant technical field could understand the bounds of a claim. Haemonetics Corp. v. Baxter Healthcare Corp., 607 F.3d 776, 783 (Fed. Cir. 2010). When a term of degree is used in a claim, “the court must determine whether the patent provides some standard for measuring that degree.” Biosig Instruments, Inc., 783 F.3d at 1378 (internal quotation marks omitted). Likewise, when a subjective term is used as a limitation in a claim, “the court must determine whether that patent's specification supplies some standard for measuring the scope of the [limitation].” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1351 (Fed. Cir. 2005); see InterDigital Commc'ns, LLC v. Int'l Trade Comm'n, 690 F.3d 1318, 1324 (Fed. Cir. 2012).

         C. Functional Claiming and 35 U.S.C. § 112 ¶ 6 (pre-AIA) / § 112(f) (AIA)[2]

         A patent claim may be expressed using functional language. See 35 U.S.C. § 112 ¶ 6; Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1347-49 (Fed. Cir. 2015). Section 112, Paragraph 6, provides that a structure may be claimed as a “means . . . for performing a specified function” and that an act may be claimed as a “step for performing a specified function.” Masco Corp. v. United States, 303 F.3d 1316, 1326 (Fed. Cir. 2002).

         But, § 112 ¶ 6 does not necessarily apply to all functional claim language. There is a rebuttable presumption that § 112 ¶ 6 applies when the claim language includes “means” or “step for” terms, and that it does not apply in the absence of those terms. Masco Corp., 303 F.3d at 1326; Williamson, 792 F.3d at 1348. The presumption stands or falls according to whether one of ordinary skill in the art would understand the claim with the functional language, in the context of the entire specification, to denote sufficiently definite structure or acts for performing the function. See Media Rights Techs., Inc. v. Capital One Fin. Corp., 800 F.3d 1366, 1372 (Fed. Cir. 2015) (Section 112 ¶ 6 does not apply when “the claim language, read in light of the specification, recites sufficiently definite structure”) (internal quotation omitted); Williamson, 792 F.3d at 1349; Personalized Media Communications, L.L.C. v. International Trade Commission, 161 F.3d 696, 704 (Fed. Cir. 1998) (Section 112 ¶ 6 does not apply when the claim includes “sufficient structure, material, or acts within the claim itself to perform entirely the recited function . . . even if the claim uses the term ‘means.”) (internal quotation omitted).

         When it applies, § 112 ¶ 6 limits the scope of the functional term “to only the structure, materials, or acts described in the specification as corresponding to the claimed function and equivalents thereof.” Williamson, 792 F.3d at 1347. Construing a means-plus-function limitation involves multiple steps. “The first step . . . is a determination of the function of the means-plus-function limitation.” Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001). “[T]he next step is to determine the corresponding structure disclosed in the specification and equivalents thereof.” Id. A “structure disclosed in the specification is ‘corresponding' structure only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim.” Id. The focus of the “corresponding structure” inquiry is not merely whether a structure is capable of performing the recited function, but rather whether the corresponding structure is “clearly linked or associated with the [recited] function.” Id. The corresponding structure “must include all structure that actually performs the recited function.” Default Proof Credit Card Sys. v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1298 (Fed. Cir. 2005). However, § 112 does not permit “incorporation of structure from the written description beyond that necessary to perform the claimed function.” Micro Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999).

         III. AGREED TERMS

         The parties have reached agreement as to the following terms (Docket No. 53 at 1; Docket No. 70 at 12-13):

698 and '172 Patents

Term

Construction

“sequencer”

('698 Patent, Claim 8)

“one or more components that can sense pressures in the mattress and adjust them to preestablished levels”

“the mattress as in claim 1, or 7”

('172 Patent, Claim 3)

“the mattress as in claim 1, or 2”

         IV. DISPUTED TERMS

         The parties' dispute focuses on the meaning of four terms/phrases in the '698 Patent, four terms/phrases in the '172 Patent and two terms/phrases in the '239 Patent. However, for certain terms, the parties agree that the issues are largely duplicative across the '698 and '172 Patents. See Docket No. 67 at i; Docket No. 60 at 12 n.8.

         A.uniform supporting surface pressure to the reclining body” ('698 Patent)

Disputed Term

Plaintiff's Proposal

Defendants' Proposal

“a resilient top member having a top region possessing uniform displacement parameters for providing a uniform supporting surface pressure to the reclining body” ('698 Patent claims 1, 38, 63)

Plain and ordinary meaning.

ALTERNATIVELY: “The top member provides uniform support along its length and width (as provided by, e.g., a top member of uniform thickness and firmness).”

“the same surface pressure supports the body at all points”

         Docket No. 70 at 2-3; Docket No. 56 at 6; Docket No. 60 at 6. The parties submit that this term appears in Claims 1, 38 and 63 of the '698 Patent. Docket No. 70 at 2.

         Shortly before the start of the March 6, 2019 hearing, the Court provided the parties with a preliminary construction of this term. The Court construed “uniform displacement parameters for providing a uniform supporting surface pressure to the reclining body” as “uniform displacement parameters that provide a uniform supporting surface pressure to the reclining body.”[3]

         At the hearing, the parties agreed with the Court's preliminary construction. Docket No. 79 at 4:8-9. The Court therefore construes “uniform displacement parameters for providing a uniform supporting surface pressure to the reclining body” to mean “uniform displacement parameters that provide a uniform supporting surface pressure to the reclining body.”

         B. “low supporting surface pressure” ('698 Patent) / “low body pressure” ('172 Patent)

Disputed Term

Plaintiff's Proposal

Defendants' Proposal

“low supporting surface pressure”

('698 Patent, Claims 1, 38, 63)

“low body pressure” ('172 Patent, Claims 1, 5, 11)

Plain and ordinary meaning

or

“Lower surface pressure supporting the body as compared to conventional mattresses.”

“pressure below about 30 mmHg”

Docket No. 70 at 3-6; Docket No. 56 at 10, 22; Docket No. 60 at 12. The parties submit that these terms may be construed identically across the patents. See Docket No. 60 at 12 n.8.; Docket No. 67 at 3. The parties also submit that the terms appear in Claims 1, 38 and 63 of the '698 Patent and Claims 1, 5 and 11 of the '172 Patent. Docket No. 70 at 3, 5.

         Shortly before the start of the March 6, 2019 hearing, the Court provided the parties with the following preliminary construction: plain meaning or “pressure of a level which materially reduces causes of bed-induced shifting.”[4]

         1. The Parties' Positions

         Plaintiff submits that the specification explains that low supporting pressure is simply where “the supporting surface pressure on a reclining body is lower than the supporting surface pressure on the same reclining body lying on a conventional mattress, such as an innerspring mattress.” Docket No. 56 at 11 (citing '698 Patent at 2:49-53, 4:37-41). According to Plaintiff, the patents describe that the ideal supporting surface pressure is below the typical ischemic pressure threshold of 30 mmHg. Id. Plaintiff argues that the claims do not require the ideal embodiment and objects to importing the embodiment into the claims. Id.

         Plaintiff also presents claim differentiation for support that “low body pressure” may include pressure levels above the ischemic pressure threshold. Claim 11 of the '172 Patent, which ultimately depends from Claim 1, adds the limitation “wherein said low body pressure is below a low-pressure threshold.” Id. at 24. Similarly, Claim 12, which depends from claim 11, further adds “wherein said threshold is below an ischemic pressure threshold.” Id. Plaintiff argues that “low body pressure” must therefore include pressures above the ischemic pressure threshold to give Claim 12's limitation any effect. Id.

         Defendants argue that their proposal is not importing a limitation but clarifying the inherent ambiguity of a term of degree like “low.” Docket No. 60 at 13. According to Defendants, the “specification repeatedly and consistently teaches that ‘low' pressure means a pressure of about 30 mmHg or below.” Id. For instance, the specification discloses that “[f]or a tuned bed made of properly selected foams and other materials, the low pressure threshold is below the ischemic pressure of about 30mmHg.” Id. at 15 (quoting '698 Pat. at 13:15-17 and '172 Pat. at 16:23-25). Defendants present a separate patent, publications and deposition testimony by Phil Torbet, an inventor listed on both patents, for support that the standard to measure low pressure is the ischemic pressure threshold. Docket No. 60 at 17.

         Regarding claim differentiation in the '172 Patent, Defendants argue that the patentee may have simply chosen to describe the bounds of “low body pressure” using different terms and that claim differentiation is not alone conclusive. Id. at 16 (citing Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1380-81 (Fed. Cir. 2006)).

         Plaintiff replies that there is no ambiguity requiring clarification and no need for any construction of this term. Docket No. 67 at 3.

         2. Analysis

         Claim 1 of the '698 Patent recites (emphasis added):

1. A mattress extending in a longitudinal direction, from a mattress head to a mattress foot, and extending in a lateral direction, normal to the longitudinal direction, for supporting a first reclining body, said body including a head part, a shoulder part, a waist part, a hip part and a leg part for reclining in the longitudinal direction with the head part toward the mattress head and the leg part toward the mattress foot, said mattress comprising,
a resilient top member having a top region possessing uniform displacement parameters for providing a uniform supporting surface pressure to the reclining body,
resilient supporting means below said top member, said resilient supporting means extending in said lateral direction and in said longitudinal direction with differing displacement parameters along the longitudinal direction for imparting differing vertical compressions along the longitudinal direction in the presence of said reclining body, said resilient supporting means for coacting with said top member for establishing ...

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