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DOW CHEMICAL CO. v. ASTRO-VALCOUR

April 28, 1999

THE DOW CHEMICAL COMPANY, PLAINTIFF,
v.
ASTRO-VALCOUR, INC., DEFENDANT.



The opinion of the court was delivered by: McAVOY, Chief Judge.

MEMORANDUM-DECISION & ORDER

Plaintiff The Dow Chemical Company ("Dow") brings this action for patent infringement pursuant to 35 U.S.C. § 271 against defendant Astro-Valcour, Inc. ("AVI"). Presently before the Court are AVI's motions for the construction of various claim terms in Dow's patents.

I. BACKGROUND

A. Facts

Both Dow and AVI manufacture and sell plastic packaging materials, including plastic foam. Plastic foam is made by mixing a polymer resin with a blowing agent and other additives. The mixture is melted and blended in a pressurized environment before the mixture is pushed through a die into the non-pressurized atmosphere where it expands. The plastic foam is then allowed to cure such that the hot plastic cools and hardens.

A blowing agent is a chemical that produces a superatmospheric pressure inside the cells of the polymer, causing its individual cells to grow. The principal purpose of the blowing agent is to bring about the formation and inflation of the cells that comprise the plastic foam. For years, manufacturers of plastic foam used chlorofluorocarbon ("CFC") blowing agents. Recently, however, concern over the impact of CFCs on the earth's ozone layer has caused foam manufacturers to replace CFC blowing agents with hydrocarbon and other blowing agents. Although the use of these alternative blowing agents has reduced or eliminated the problems associated with the use of CFCs, they present their own unique problems.

One problem associated with blowing agents is that they diffuse out of the foam too quickly during the aging period, causing the foam to experience unacceptable shrinkage. Specifically, once the foam is formed, the gaseous blowing agent begins to permeate out of the foam, and air begins to permeate in. If the blowing agent permeates out more quickly that the air permeates in, the foam can shrink because the pressure inside the cells of the foam become less than the atmospheric pressure. Thus, manufacturers have attempted to find a blowing agent that can form and inflate the cells of the plastic foam, yet which also exhibits a high degree of dimensional stability with minimal shrinkage during aging. A stability control agent helps to control this shrinkage by slowing the rate of release of the blowing agent from the foam until air can permeate into the foam to balance the pressure inside the foam's cells.

Dow owns five patents related to the manufacture of plastic foam. In the first set of patents, there are three related patents directed to the use of isobutane as a blowing agent in creating foam structures: U.S. Patent No. 4,640,933 ("the '933 patent"), U.S. Patent No. 4,694,027 ("the '027 patent"), and U.S. Patent No. 4,663,361 ("the '361 patent") (collectively, the "isobutane patents"). The isobutane patents derive from the original application filed on December 24, 1985, and each describes an invention comprising three elements: (1) an olefin polymer resin, (2) a stability control agent, and (3) a blowing agent consisting of isobutant or certain mixtures of isobutane and other blowing agents. Specifically, the '933 patent, which issued on February 3, 1987, describes the foam made with those elements; the '361 patent, which issued on May 5, 1987, describes a foamable polymer composition for making foam using those elements; and the '027 patent, which issued on September 15, 1987, describes the process for making foam with those elements.

In the second set of patents, there are two related patents directed to the perforation of plastic foam: U.S. Patent No. 5,424,016 ("the '016 patent"), and U.S. Patent No. 5,585,058 ("the '058 patent") (collectively, the "perforation patents"). The perforation patents cover a method of accelerating the release of a blowing agent from plastic foam. The purpose of perforation is to create channels in the foam to allow the blowing agent to escape more readily to the outside atmosphere than if the blowing agent was forced to permeate only through the cell walls of the plastic foam.

B. Procedural History

On September 21, 1995, Dow commenced this action against AVI, alleging the infringement of its isobutane and perforation patents. AVI now moves for the construction of various claim terms in the patents. Specifically, with respect to the isobutane patents, it seeks the construction of the terms (1) "polyolefin foam," "polymeric composition" and "olefin polymer foam." As to the perforation patents, it seeks the construction of the terms (2) "plastic foam" and "polyethylene foam," (3) "accelerated release," (4) "perforating," and (5) "extruded." On November 9, 1998, a Markman Hearing*fn1 was held at which the parties presented oral argument on the construction of the disputed claim terms and background expert testimony relating to the manufacturing process of plastic foam. The following discussion contains the Court's construction of the disputed claim terms.

II. DISCUSSION

A. Standard for Claim Construction

A patent infringement analysis involves two steps: first, a court determines the scope and meaning of a patent claim; and second, the construed claim is compared to the allegedly infringing product or process. Markman, 517 U.S. at 390, 116 S.Ct. 1384; Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1454 (Fed.Cir. 1998) (en banc). The first step presents a question of law exclusively for the court; the second step a question of fact generally for the jury. Markman, 517 U.S. at 390, 116 S.Ct. 1384; Intervet Am., Inc. v. Kee-Vet Labs., Inc., 887 F.2d 1050, 1053 (Fed.Cir. 1989).

In determining the scope of a claim, the starting point is the claim language. See Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir. 1998); Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1571 (Fed. Cir. 1983); see also Lindemann Maschinenfabrik GMBH v. American Hoist and Derrick Co., 730 F.2d 1452, 1459 (Fed.Cir. 1984). The claim language should be construed in context, however, and the other claims, the patent specification and the prosecution history must be considered in determining what the claim means. See, e.g., Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir. 1996); SRI Int'l v. Matsushita Elec. Corp., 775 F.2d 1107 (Fed.Cir. 1985).

B. The Isobutane Patents

With respect to the isobutane patents, AVI seeks the construction of the claim terms "polyolefin foam" in the '933 patent, "polymeric composition" in the '361 patent and "olefin polymer foam" in the '027 patent. As these terms are not meaningfully different for purposes of construction, I ...


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