Case 1:10-cv-00788-GMS Document 50 Filed 07/10/12 Page 1 of 2 PageID #: 477

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE HOLLINGSWORTH & VOSE FILTRATION LTD., Plaintiff,
v.

DELSTAR TECHNOLOGIES, INC. and ECN INDUSTRIES, INC., Defendants.

) ) ) ) ) ) ) ) ) ) )

Civil Action No. 10-788 GMS

ORDER CONSTRUING THE TERMS OF U.S. PATENT NO. 6,623,548

After having considered the submissions of the parties and hearing oral argument on the matter, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that, as used in the asserted claims of U.S. Patent No. 6,623,548 (the "'548 patent"): 1. The term "comprising ... a blend of polypropylene fibres and dry spun halogen free acrylic fibres" is construed to mean "a mixture of fibres that includes at least polypropylene fibres and dry spun halogen free acrylic fibres. Dry spun halogen free arylic fibres means halogen free acrylic fibres made by a process of dry spinning in which the polymer is formed into fibres by extrusion into a gas such as air and not by extrusion into a liquid coagulation bath." 1

The court rejects the defendants' proposed construction as inconsistent with the specification and clearly established principles of claim construction. The defendants claim that the applicants' use of "comprising" does not expand the blend to include wet spun halogen free acrylic fibres. However, the plaintiff does not contend that it must be the blend that includes wet spun halogen free acrylic fibres, but rather that the filter material may contain them. (D.I. 40 at 7.) Furthermore, the defendants improperly rely on Dippin' Dots for the proposition that the term "comprising" does not create an open-ended claim. Dippin' Dots, Inc. v. Mosey, 476 F.3d 1337 (Fed. Cir. 2007). In Dippin' Dots the patentees relied on the use of "comprising" to support their attempt to include irregularly shaped particles within the defmition of"beads," when the specification had stated that "beads" have "a smooth, spherical appearance." Id at 1343. The Federal Circuit rejected that approach, and remarked that "comprising is not a weasel word with which to abrogate claim limitations." Id Here, the plaintiff seeks to use "comprising" in the traditional

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2.

The term "substantially smooth surfaces" is construed to have its plain and ordinary meaning. 2

3.

The term "significantly reduced cracks and fissures in the surfaces of the acrylic fibres than if produced by wet spinning" is construed to have its plain and ordinary meaning. 3

Dated: July 12_, 2012

sense to mean "including, but not limited to." The plaintiff does not argue that "dry spun fibres" includes wet spun fibres (which would be analogous to the argument made in Dippin' Dots), but rather asserts that the fibre material, which is followed by the word "comprising," may include other types of fibres in addition to those specifically required, i.e. polypropylene and dry spun fibres. The defendants further contend that the applicants disavowed the use of wet spun halogen free acrylic fibres. The court does not agree. Disavowal of a particular embodiment must be clear and unmistakable. See Epistar Corp. v. fTC, 566 F.3d 1321, 1335 (Fed. Cir. 2009) ("Disavowal requires expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.") (citation omitted). Disparagement alone does not rise to the level of disavowal. Spine Solutions, Inc. v. Medtronic Sofamor Danek USA, Inc., 620 F.3d 1305, 1315 (Fed. Cir. 2009). The '548 specification does not disavow or disclaim the use of wet spun acrylic fibres, but rather expresses a preference for dry spun fibres. See U.S. Patent No. 6,623,548 ('"548 patent") at 1:57-59; 2:29-30; 2:4346; 3: 13-14. In other instances, the applicants clearly disavowed particular embodiments. Compare '548 patent at 1:57-59 ("Preferably, the halogen free acrylic fibres are produced by dry spinning."), with 2:62-67 ("[T]he term 'polypropylene fibres' is understood not to include hi-component fibres, such as the core/jacket or side-by-side type polypropylene/polypropylene fibres described in U.S. Pat. No.5 470 485, which give rise to filter material having different physical properties."). Lastly, the court agrees with the plaintiffthat the patent does not limit the types of dry spun acrylic fibres referenced in the patent to those created by extrusion into an air stream. The plaintiff concedes that "ambient air is a typical gas used in dry spinning." (D.I. 40 at 12.) However, the patent does not exclude the use of other gases, so long as the process remains "dry," i.e., without the use of a liquid coagulant used in wet spinning. 2 "In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words." Phillips, 415 F.3d at 1314 (citing Brown v. 3M, 265 F.3d 1349, 1352 (Fed. Cir. 2001)). 3 Jd.