Filed: Aug. 28, 2017
Latest Update: Aug. 28, 2017
Summary: ORDER REGARDING CLAIM CONSTRUCTION HEARING AND EX PARTE APPLICATION TO STRIKE IMPROPER EVIDENCE Re: Dkt. No. 36 WILLIAM H. ORRICK , District Judge . The purpose of this Order is to help the parties prepare for the Claim Construction hearing at 9:30 a.m. on Friday, September 1, 2017. My tentative constructions are below. I am also ruling on Gutterglove's ex parte application to strike or exclude. Having read the briefs and considered the terms at issue, I do not believe that a separate tut
Summary: ORDER REGARDING CLAIM CONSTRUCTION HEARING AND EX PARTE APPLICATION TO STRIKE IMPROPER EVIDENCE Re: Dkt. No. 36 WILLIAM H. ORRICK , District Judge . The purpose of this Order is to help the parties prepare for the Claim Construction hearing at 9:30 a.m. on Friday, September 1, 2017. My tentative constructions are below. I am also ruling on Gutterglove's ex parte application to strike or exclude. Having read the briefs and considered the terms at issue, I do not believe that a separate tuto..
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ORDER REGARDING CLAIM CONSTRUCTION HEARING AND EX PARTE APPLICATION TO STRIKE IMPROPER EVIDENCE
Re: Dkt. No. 36
WILLIAM H. ORRICK, District Judge.
The purpose of this Order is to help the parties prepare for the Claim Construction hearing at 9:30 a.m. on Friday, September 1, 2017. My tentative constructions are below. I am also ruling on Gutterglove's ex parte application to strike or exclude.
Having read the briefs and considered the terms at issue, I do not believe that a separate tutorial is necessary. At the hearing, each side may have a total of one hour to argue. Plaintiff will start and address any terms as construed in the tentative with which it disagrees. Defendants may respond concerning those terms, and plaintiff may reply. Then the defendants may address any additional terms, plaintiff may respond and defendants reply. If either side wishes to fold into their argument a truncated tutorial, it may do so. I will not hear any expert testimony. Personnel issues or disputes between the parties other than the meaning of the terms are not relevant at this hearing.
I. TENTATIVE CLAIM CONSTRUCTION
A. The '454 Patent Claim Terms
1. "a floor" (claims 1, 7, 12, 16)
Gutterglove's Proposed Defendants' Proposed Court's Tentative
Construction Construction Construction
Plain and ordinary meaning. "a planar supporting surface of "a surface of the underlying
the underlying support support that resides slightly
Alternatively, "a structure that spanning between the front below the screen spanning
resides slightly below the edge and the tab and between between the front edge and the
screen to provide a space in the lateral ends of the rigid tab and between the lateral
which water can travel after support" ends of the rigid support"
coming into contact with the
screen"
2. "a floor on a portion of said rigid support" (claim 1)
Gutterglove's Proposed Defendants' Proposed Court's Tentative
Construction Construction Construction
Plain and ordinary meaning. "the floor (defined above) as a No construction necessary.
portion of the rigid support, the
In brief, offers definition of: other portions of the rigid
"a lower portion of the rigid support being a tab portion and
support" a front edge portion, the floor
portion, the tab portion, and
the front edge portion
combining to comprise the
rigid support."
3. "screen" (claims 1, 2, 12, 13, 16, 17)
Gutterglove's Proposed Defendants' Proposed Court's Tentative
Construction Construction Construction
"Mesh with openings small "a mesh filtration screen "Mesh formed into
enough to preclude grit and formed into corrugations with corrugations with crests and
other fine debris from passing crests and troughs troughs with openings small
into the gutter, but that allow perpendicular to the longest enough to preclude grit and
water to pass into the gutter" dimension of the mesh where other fine debris from passing
the crests and troughs extend into the gutter, but that
from an upper edge of the allow[s] water to pass into the
mesh to a lower edge." gutter.."
4. "plurality of holes" (claims 1, 12, 16)
Gutterglove's Proposed Defendants' Proposed Court's Tentative
Construction Construction Construction
Plain and ordinary meaning "more than two openings "two or more openings
penetrating the floor which penetrating the floor which
In its brief, "plurality is more allow water to be conducted allow water to be conducted
than one." through the floor." through the floor."
B. The '747 Patent Claim Terms
5. "fine mesh material" (claims 1-6, 11-13, 16-20, 21)
Gutterglove's Proposed Defendants' Proposed Court's Tentative
Construction Construction Construction
"mesh with openings small "a mesh filter member which Combination:
enough to preclude grit and filters out debris while "a mesh filter member with
other fine debris from passing allowing water to pass openings small enough to filter
into the gutter, but that allow therethrough and is imbued out fine debris while allowing
water to pass into the gutter" with properties of sufficient water to pass therethrough and
stiffness and ability to is imbued with properties of
overcome water droplet sufficient stiffness and ability
adhesion characteristics to overcome water droplet
without requiring an adhesion characteristics
underlying support" without requiring an
6. "being corrugated with ridges" (claims 1, 16)
Gutterglove's Proposed Defendants' Proposed Court's Tentative
Construction Construction Construction
Plain and ordinary meaning. "Being shaped into a repeating "shaped into a series of parallel
pattern of parallel ridges and ridges and grooves so as to
Alternatively, "shaped into valleys extending give strength, extending
alternate ridges and grooves." perpendicular to a long axis of perpendicular to a long axis of
a gutter along their entire a gutter"
length so as to imbue the mesh
material with properties of
sufficient stiffness and ability
to overcome water droplet
adhesion characteristics
without requiring an
underlying support."
7. "ridges" (claims 1, 2, 5, 6, 12, 16, 17, and 21)
Gutterglove's Proposed Defendants' Proposed Court's Tentative
Construction Construction Construction
Plain and ordinary meaning. "a repeating pattern of parallel "raised bands or crests"
crests, which extend
Alternatively, "raised bands or perpendicular to a long axis of
crests." a gutter along their entire
length."
II. GUTTERGLOVE'S APPLICATION TO STRIKE AND/OR EXCLUDE
On August 24, 2017, Gutterglove submitted an ex parte application to strike and/or exclude certain extrinsic evidence submitted by defendants because they failed to adequately disclose the evidence in accordance with the Patent Local Rules and Federal Rule of Civil Procedure 26. Dkt. No. 36. Specifically, Gutterglove asserts that defendants failed to sufficiently set forth summaries and opinions of their proffered experts Slate Bryer and Matthew I. Stein, and failed to produce expert reports prior to the close of claim construction discovery. Id. at 1. Gutterglove also argues that certain exhibits submitted with defendants' responsive claim construction brief were not properly disclosed and should be excluded, and asks that the court strike the portions of defendants' brief that cite the objectionable evidence.1
Defendants responded to the application on August 25, 2017, arguing that they adequately disclosed the intended contributions from Bryer and Stein, and exhibits 3, 4, and 5 are publicly-available documents that are properly before the court. Dkt. No. 37. They conceded that exhibits 6 and 13 were not properly disclosed. Id.
I agree with defendants that their expert disclosures were adequate for tutorial and/or claim construction purposes. At this time, I make no determination as to the reliability of their proposed testimony for other purposes. Further, I do not find the identified exhibits attached to the Costello declaration particularly helpful and did not rely on them in generating the tentative constructions below. Since defendants do not dispute that they failed to disclose exhibits 6 and 13, I will exclude those from consideration.2 But to the extent exhibits 3, 4, and 5 become relevant to claim construction, Gutterglove cannot claim prejudice—not only are they publicly-available, but they specifically relate to the parties and patents at issue here, so it must have known of the existence of this evidence.
IT IS SO ORDERED.
