The opinion of the court was delivered by: Seybert, District Judge
Currently pending before this Court are motions by the parties for a claim construction ruling. Both Plaintiff, Pall Corporation ("Pall" or "Plaintiff"), and Defendant, Cuno Incorporated ("Cuno" or "Defendant"), have submitted opening briefs, oppositions, and reply briefing supporting their respective positions as to the proper claim construction that should be accorded the disputed terms.*fn1
According to the parties, the disputed terms are (1) "Pleat", (2) "A Plurality of Longitudinal Pleats", (3) "Over a Substantial Portion of the Height" and "Over Substantially the Entire height of a Pleat Leg", (4) "Laid-Over State", and (5) "Gap".*fn2 This Court, as discussed below, has provided interpretations of the disputed claims.
Pall and Cuno have been litigating their positions in this Court since December 30, 1997 (the "1997 Action"). In the 1997 Action, Pall asserted that Cuno's Polypro XL and LifeAssure products infringed U.S. Patents 5,543,047 ("'047 Patent") and 5,690,765 ("'765 Patent"), which relate to a spiral pleated filter and the method of making the filter, respectively. In September 2000, this Court conducted a Markman hearing in order to construe disputed claims. By Order, dated September 7, 2001, the Court construed the disputed term, "intimate contact," in accordance with Plaintiff's proposed construction. On September 30, 2002, the Court awarded summary judgment to Pall regarding Cuno's infringement of their patents.
During the litigation of the 1997 Action, Cuno developed new products (the sprial-W filters) seeking to avoid infringement. Pall brought a second lawsuit, the instant action, against Cuno alleging that the new products, despite the changes, still infringed their patents. On February 10, 2003, Pall moved this Court to preliminarily enjoin Cuno from manufacturing the spiral-W pleated filters. On July 17, 2003, Magistrate Judge E. Thomas Boyle recommended that the preliminary injunction be denied. On September 30, 2003, this Court adopted Judge Boyle's recommendation.
In November 2004, the parties requested that they be permitted to file motions for summary judgment as to the 1997 Action and the underlying action. As a prelude to the motions for summary judgment, the parties submitted motions for claim construction of five disputed terms. This Order addresses the meaning of such terms.
Pall is a worldwide manufacturer of filters that are used in many industries for a variety of ultra-pure filtration applications. The filters are used, for example, to remove particulates, impurities, bacteria and contaminants in the electronics, computer, food and pharmaceutical industries. The filters are shaped in a cylinder, surrounded by a perforated cage containing a pleated filter element. In use, contaminated fluid enters the outside of the cage and passes through the cage, toward the center of the filter element. The filter medium, that is, the fabric through which the fluid passes, removes the contaminants from the fluid, and the fluid then exits through the inner core of the filter.
The efficiency and life expectancy of a filter depend directly on how much filter surface area is available for filtration. The larger the amount of surface area available, the more efficient and long-lasting the filter. However, an increase in the amount of surface area typically results in a larger product, which is not usually desirable. The goal and challenge in the industry has been to somehow maximize the available surface area while keeping the size of the filter units as small as possible. For approximately fifty years prior to the Pall invention at issue here, filter designers were not able to satisfactorily increase the filtering capacity of the filter without also altering the external dimensions of the filter itself.
In 1989, however, engineers at Pall developed a filter that overcame these deficiencies. Pall created a filter containing curved or laid-over pleats that could be packed together closely so that the available surface area was increased, while still allowing a proper flow of liquid between and through the pleats. The solution to the half-century old problem was to place the filter media between unique drainage materials that, even when in close contact, created small void spaces and allowed fluid to flow freely to all parts of the tightly-packed pleats.
The invention was a major breakthrough, and the product became an immediate commercial success. Pall was awarded a prestigious design award in recognition of the significance of the invention. In order to protect its interests in the filter design, and to exclude others from using the technology without Pall's permission, Pall filed for patent protection for the filter design and the process of making the filters. In August 1996, Pall was awarded the '047 patent by the United States Patent and Trademark Office ("PTO"), and in November 1997 Pall received a patent on the process itself, constituting the '765 patent.
Cuno, like Pall, is a world leader in the design, manufacture and marketing of filtration products. Cuno has supplied filters to the electronics, beverage, pharmaceutical and biotechnology industries for decades. Not surprisingly, Pall and Cuno are aggressive competitors in this field. Cuno manufactured and sold the adjudged infringing filters from, at least, late 2001 through May 2004. Cuno contends that the infringing filters were replaced by a wholly different product, the accused infringing filters, namely the spiral-W filters. (Def.'s Mem. in Supp. 9.) The accused spiral-W filters contain between 46 and 125 pleats. The pleats are not all the same height; some pleats are tall and some are short, which creates spaces around the core of the filter element. (Id.) While Pall does not contest that the spiral-w filter contains pleats with alternating height, it alleges that the accused filter also has four to eight pleats of equal or nearly equal height, which are identical to the pleats found in the infringing filters that are the subject of the 1997 Action. (Pl.'s Mem. in Supp. 12.) The parties also differ as to the extent of the spaces created by the alternating height of the pleats.
Pall asserts that Cuno has infringed 110 claims in the '047 and '765 patents. Pall alleges that Cuno has infringed claims 1-7, 9-14, 18-22, 24-26, 33-37, 45-46, 48, 52-64, 68-79, 81-94, 97, and 105 of the '047 patent. However, only claims 1, 54 and 92 are independent of the others, while the remaining claims are dependent upon claims 1, 54, and 92. Regarding the '765 patent, Pall alleges infringement of claims 1-5, 8-9, 12-18, 23-26, 31, 33, 37-42, 51- 54, 58-59, 63-69, and 71-72 of which only claims 1, 8, and 39-41 are independent.*fn3
The parties dispute the limitations of the asserted claims, however, it should be noted that this Court's previous ruling in the 1997 Action as to "intimate contact" is still applicable. Based on the parties' briefs, the following constitutes the Court's construction of the terms "Pleat", "A Plurality of Longitudinal Pleats", "Over a Substantial Portion of the Height" and "Over Substantially the Entire height of a Pleat Leg", "Laid-Over State", and "Gap" as set forth in the '047 and '765 patents.
Resolution of patent infringement claims requires a two- step analysis. First, the court must construe the meaning and scope of the patent claim; second, the patent claim must be compared to the accused design to determine if there has been an infringement. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384 (1996). The first question presents a legal question to be resolved by the courts, while the second question is generally reserved for the fact finder. See Markman, 52 F.2d at 981 (noting, however, that the court may use its construction of the claim in framing its jury charge as well as in deciding dispositive motions).
In 2005, the Federal Circuit decided Phillips v. AWH Corporation, in which it clarified prior decisions and provided guidance with respect to claim construction. 415 F.3d 1303 (Fed. Cir. 2005). When construing a patent claim, courts should start with the words of the claims, which are to be given their ordinary and customary meaning. Id. at 1312-13. "[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art . . . at the time of the invention." Id. at 1313; see also T.M. Patents, L.P. v. Internat'l Bus. Mach. Corp., 72 F. Supp. 2d at 380 (S.D.N.Y. 1999) ("[W]ords of a claim are to be construed in accordance with their ordinary meaning to persons in the relevant field of technology, unless it appears that the inventor used them otherwise."). "However, a patentee may choose to be her own lexicographer and use terms in a manner other than their ...