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Choon's Design Inc. v. Tristar Products, Inc.

United States District Court, E.D. Michigan

January 30, 2018



          Victoria A. Roberts United States District Judge

         At issue are Choon's Design Inc.'s (“Choon's”) 8, 485, 565 (“‘565”) and 8, 684, 420 (“‘420”) patents for a “Brunnian Linkmaking Device and Kit” (“Rainbow Loom”), and its 8, 622, 441 (“‘441”) patent for a portable device to make similar products.

         Choon's says the Rainbow Loom has enjoyed success and other companies, including Defendant Tristar Products Inc. (“Tristar”), copied its product.

         Choon's loom is a kit described as containing a base and a pin bar or pin bars. Tristar's “Bandaloom” loom is one piece. The parties dispute whether Choon's patents are broad enough to include a one-piece loom such that Tristar's Bandaloom infringes Choon's patents.

         This is the Court's second order on claim construction. In the first Order on Claim Construction, the Court construed eight terms, which the parties indicated could aid settlement. See Choon's Design, Inc. v. Tristar Prod., Inc., No. 14-10848, 2016 WL 1626574 (E.D. Mich. Apr. 21, 2016). Settlement attempts were futile.

         Now, the parties present additional terms to be construed. This matter is fully briefed, and the Court finds that a second Markman hearing is unnecessary to resolve the parties' disputes. See CIAS, Inc. v. All. Gaming Corp., 424 F.Supp.2d 678, 682 (S.D.N.Y. 2006) (“A court may, but need not, conduct a Markman hearing to determine the scope of the claims”), aff'd, 504 F.3d 1356 (Fed. Cir. 2007); see also Rogers v. Desa Int'l, Inc., 166 F.Supp.2d 1202, 1204 (E.D. Mich. 2001) (same) (collecting cases), aff'd, 198 Fed.Appx. 918 (Fed. Cir. 2006).

         The terms to be construed (along with the corresponding patent, each party's proposed construction, and the Court's construction of those terms) are summarized in the table[1] below:


         The words of the patent claim define the invention to which a patentee may claim the right to exclude other inventions. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005). Claim construction “is the process of giving proper meaning to the claim language.” Abtox, Inc. v. Exitron Corp., 122 F.3d 1019, 1023 (Fed. Cir. 1997). Claim construction is a question of law for the Court to determine. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995).

         “The actual words of the claim are the controlling focus” when defining the scope of a patented invention. Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed. Cir. 1998). In interpreting a claim, the Court should look first to intrinsic evidence - i.e., “the patent itself, including the claims, the specification and, if in evidence, the prosecution history.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Intrinsic evidence is “the most significant source” in determining the “legally operative meaning of disputed claim language.” Id. (because “[t]he specification contains a written description of the invention which must be clear and complete enough to enable those of ordinary skill in the art to make and use it[, ] . . . the specification is always highly relevant to the claim construction analysis. Usually, it is dispositive. . . .”).

         “[A]s a general rule, all terms in a patent claim are to be given their plain, ordinary and accustomed meaning to one of ordinary skill in the relevant art.” Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1342 (Fed. Cir. 2001). “Determining the limits of a patent claim requires understanding its terms in the context in which they were used by the inventor, considered by the examiner, and understood in the field of the invention.” Toro Co. v. White Consol. Indus., Inc., 199 F.3d 1295, 1299 (Fed. Cir.

         1999). “[U]nless compelled to do otherwise, a court will give a claim term the full range of its ordinary meaning as understood by an artisan of ordinary skill.” Rexnord, 274 F.3d at 1342. Moreover, the Court must construe each claim term “consistently with its appearance in other places in the same claim or in other claims of the same patent.” Id.

         The ordinary meaning of a term may be readily apparent, such that claim construction involves little more than the application of the widely accepted meaning of commonly understood words. Phillips, 415 F.3d at 1314. In these instances, general purpose dictionaries may be helpful. Id.

         If the meaning of the claim limitation is apparent from the intrinsic evidence alone, it is improper to rely on extrinsic evidence other than that used to determine the ordinary meaning of the claim limitation. Bell Atl. Network Servs., Inc. v. Covad Commc'ns Grp., Inc., 262 F.3d 1258, 1268-69 (Fed. Cir. 2001). However, if the court cannot determine the meaning of a term after assessing intrinsic evidence, it may look to other evidence such as expert testimony, articles, and inventor testimony. Id. at 1269. “This extrinsic evidence may be used only to assist in the proper understanding of the disputed limitation; it may not be used to vary, contradict, expand, or limit the claim language from how it is defined, even by implication, in the specification or file history.” Id. (citations omitted).

         III. ANALYSIS

         Descriptions of the patents are set forth in the Court's first Order on Claim Construction. See Choon's Design, 2016 WL 1626574, at *3-4. The Court incorporates those descriptions by reference here.

         A. The ‘565 Patent

         1. “opening on a front side”

         The Court construes the term “opening on a front side” in claim 1 of the ‘565 patent to mean “a space or groove on a forward facing side of each pin.” This is consistent with the plain meaning of the claim language and specification, as well as the construction given by the Patent Trial and Appeal Board (“PTAB”).

         Choon's says this term requires the “space or groove” to be “on a common, forward facing side of each pin.” In support of its construction, Choon's points to claim 9 of the ‘565 patent - which requires “a clip for securing ends of the series of links together” - and demonstrative figures in which the openings on each pin face a common direction to argue that “[t]here is only one description of how to utilize a loom to manufacture an item from elastic bands, and that requires the slots be on a common side of each of the pins.”

         Choon's proposed construction is undermined in several respects.

         First, the plain language of the claim only requires that the opening be on the “front side” of each pin; it does not require that the opening be on a common side of all pins. As Tristar states: “Had Choon's wanted to require the openings to be on a common side, it easily could have said so. It did just that in related U.S. Patent No. 8, 936, 283; [in that patent], unlike [the ‘565 patent], claims 4 and 11 recite an “opening on a common front side.”

         Construing the term “opening on a front side” in the ‘565 patent to mean the same as “opening on a common front side” in the ‘283 patent would impermissibly render the word “common” in the ‘283 patent superfluous. See Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1381 (Fed. Cir. 2006) (claims should be construed to avoid a construction “that would render additional, or different, language in another independent claim superfluous”); Omega Eng'g, Inc, v. Raytek Corp., 334 F.3d 1314, 1334 (Fed. Cir. 2003) (“unless otherwise compelled, . . . the same claim term in the same patent or related patents carries the same construed meaning”); ...

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