CLAIM CONSTRUCTION OPINION AND ORDER

MARY ELLEN COSTER WILLIAMS, District Judge.

This patent infringement case involves bags for the containment and disposal of bodily fluids. Plaintiff, American Innotek, Inc., the owner of U.S. Patent No. 5,116,139 ("the '139 Patent") entitled "Fluid Containment Bag," manufactures a product called The Flight Extender™ according to the '139 Patent and sold this product to the United States military from 1991 to 2001. Plaintiff claims that the United States infringed its patent by purchasing a containment bag called the "Piddle Pak" from the New York City Industries for the Blind ("NYCIB"), a non-profit entity that provides products to the Government on a noncompetitive basis pursuant to the Javits Wagner O'Day Act, 41 U.S.C. §§ 46-48c (2006). According to Plaintiff, the Piddle Pak has infringed at least some of the claims of the '139 Patent. This matter comes before the Court following a claim construction hearing held on March 7, 2013.

Background

Ability One Procurements from Qualified Nonprofit Agencies Such As NYCIB

The Javits Wagner O'Day ("JWOD") Act, now known as the "AbilityOne Program," provides employment opportunities for people who are blind or have other significant disabilities by promoting their access to and participation in federal contracts for goods and services. See Pub. L. No. 92-28, 85 Stat. 77 (1971) (codified as amended at 41 U.S.C. §§ 46-48c (2006)).1 Under JWOD, acquisitions for specified supplies or services can be carried out on a noncompetitive basis. See 48 C.F.R. § 6.302-5(b)(2) (2011). JWOD established the Committee for Purchase from People Who Are Blind or Severely Disabled ("the Committee"), an independent federal agency, to facilitate the Government's "purchase of commodities and services from qualified nonprofit agencies." 41 C.F.R. § 51-1.1(a) (2011); see 41 U.S.C. § 46(a) (2006). The Committee determines which supplies and services government entities will purchase from participating nonprofit agencies. 41 U.S.C. § 47(a)(1) (2006); see FAR 8.702. The Committee maintains a procurement list of supplies and services that must be purchased from "any qualified nonprofit agency for the blind or by any qualified nonprofit agency for other severely handicapped." 41 U.S.C. §§ 47(a), 48 (2006); see FAR 8.703. A "qualified nonprofit agency" is an agency — such as NYCIB — that "employs blind or other severely handicapped individuals for not less than 75 per centum of the man-hours of direct labor required for the production or provision of the commodities or services." 41 U.S.C. § 48b(4)(C) (2006). Once an item has been placed on the procurement list, contracting agencies are required to procure the item directly from a qualified nonprofit agency, unless the item is unavailable at the time. 41 U.S.C. § 48 (2006). The Government has purchased the Piddle Pak from NYCIB using this procurement list.

Overview of the Invention

The fluid containment bags at issue are mainly used by pilots during long-distance flights to hold urine. The military is one of the largest purchasers of these containment bags. The bags generally consist of a plastic bag fitted with a funnel to direct the bodily fluid into the bag, and a hydrophilic powder to absorb bodily fluid and turn it into a gel to prevent spillage.

The military specification for the bag required the following test:

Pl.'s Claim Construction Br. ("Pl.'s Br.") 1.

Patent Prosecution History

The application for the '139 Patent was filed on February 15, 1991, as a continuation-in-part of application No. 07/404,734, filed on September 8, 1989. Application No. 07/404,734 was itself a continuation-in-part of application No. 07/003,848, filed on January 14, 1987. Def.'s Claim Construction Br. ("Def.'s Br."), Ex. 1 at A2. The January 1987 application disclosed:

Def.'s Br., Ex. 5 at A160. The application listed Ruth E. Young as the inventor, and asserted 20 claims. Id. at A168-75. The patent examiner determined that all 20 claims were unpatenable over prior art because of obviousness. Id. at A178-79. The patent examiner noted that it was obvious to use a container with a funnel, that a tear-drop configuration with a tube was an obvious extension of a previous invention, and that binder powders were "well-known in the art." Id.2

Application No. 07/404,734 was filed on September 8, 1989. Def.'s Br., Ex. 4 at A32-60. The application listed Ruth E. Young, Daniel L. Young, Richard E. Warrick, and Clarence A. Cassidy as the inventors. Id. at A32. The application contained 13 drawings and asserted 36 claims. Id. at A32-60. On March 5, 1990, the patent examiner rejected claims 1-33, and objected to claims 34-36. Id. at A61-64. The patent examiner found that use of hydrophilic material, the use of a cooperating rib closure, the use of a tube, and providing a closure to allow one-handed use were obvious based on prior art. Id. at A62-64. An amendment to application No. 07/404,734 was filed on June 5, 1990, in response to the patent examiner's decision. Id. at A65-72. The amendment stated that the funnel was spaced apart from the sides of the bag, and was adapted to prevent backflow of fluid through the funnel. Id. at A66.

In distinguishing the invention covered by the '139 Patent from another earlier urine collection bag invention, U.S. Patent No. 3,403,715 (filed October 1, 1968) referred to as "Trudel," the amendment stated:

Def.'s Br., Ex. 4 at A69-71 (emphasis in original). A distinction from Trudel is that Trudel is constructed from two pieces of plastic, not four, such that the walls of the funnel are also the walls of the fluid containment bag. Therefore, the funnel in Trudel is not a separate structure as it is in the '139 Patent. In Trudel, closure of the funnel is achieved through tension created by filling pockets alongside the funnel with fluid. By comparison, the funnel in the '139 Patent is closed by pressure applied from the fluid coming between the side of the bag and the funnel.

The patent examiner once again denied the September 1989 patent application for obviousness. Def.'s Br., Ex. 4 at A73-77. The patent examiner determined that this version of the invention was not distinguishable from both Trudel and another prior invention "Corella et al.," stating:

Def.'s Br., Ex. 4 at A74-75.

The examiner also rejected some claims as obvious in view of another invention referred to as "Benzel et al.," where the only difference between the '139 Patent and Benzel et al. was that the '139 Patent used a hydrophilic powder, and Benzel used a sponge. The structure of the fluid containment bag, including the funnel, was substantially the same. Id. at A121.

On July 25, 1991, Plaintiff had an interview with the Patent and Trademark Office ("PTO") to try to reach an agreement on allowable claims. Id. at A122. During the meeting with the assigned Patent Examiner and the Supervisory Patent Examiner, Plaintiff demonstrated the technology, and Plaintiff discussed ways to reword the claims with the PTO. Id. The patent examiners advised Plaintiff that claim 39, which disclosed the funnel, would be allowed if it was rewritten "to recite that liquid can get behind at least a portion of the walls of the funnel to close funnel." Id. Further, the patent examiners advised that a claim reciting specific particle size appeared to be allowable because it achieved a faster gel time than another prior invention, referred to as "Barthell et al." Id.

On September 11, 1991, Plaintiff submitted an amendment and a response to the pending rejection. Plaintiff added claim 62, which provided:

Def.'s Br., Ex. 4 at A124. In the application to amend, Plaintiff wrote:

1. Amendments to the Claims:

2. Distinctions over Prior Art:

Def.'s Br., Ex. 4 at A131-34; Pl.'s Br., Ex. 1 at 316-19.

The PTO issued a Notice of Allowability on December 19, 1991, finding that claim 62, and dependent claims 41-56 were allowable with an examiner's amendment. Def.'s Br., Ex. 4 at A137-40. The examiner's amendment deleted the words "bodily fluids" from claims 38-41, replaced "human bodily fluids" with "a fluid comprising water or water-based liquids such as human bodily fluids" in the first line of claim 62, and replaced "bodily fluids" with "fluid" throughout the rest of claim 62. Id. at A138-39. Claim 62, as amended by the examiner's amendment, became claim 1 of the '139 Patent.

Discussion

Jurisdiction

The Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1498(a), which provides in relevant part:

28 U.S.C. § 1498(a) (2006). Because the Government purchased the accused device, the Piddle Pak, from NYCIB, the Court has jurisdiction over this action.

Legal Standards for Claim Construction

The Court's determination of patent infringement follows a two-step process. "[T]he court first interprets the claims to determine their scope and meaning." Presidio Components, Inc. v. Am. Technical Ceramics Corp., 702 F.3d 1351, 1358 (Fed. Cir. 2012) (citing Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998) (en banc)). Next, the court in a § 1498(a) action compares the properly construed claims to the allegedly infringing device.3 Cybor Corp., 138 F.3d at 1454.

A "bedrock principle" of patent law is that "the claims of a patent define the invention to which the patentee is entitled the right to exclude." Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys. Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). The language of these claims is often apparent on its face, but can be complicated by the human failings of the written word and the inclusion of highly technical terminology. As the Federal Circuit ruled, it is up to the Court to construe such claims as a matter of law. See Cybor Corp., 138 F.3d at 1454. "Claim construction is a matter of resolution of disputed meanings and technical scope, to clarify and when necessary to explain what the patentee covered by the claims, for use in the determination of infringement." U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). When construing claims, this Court must furnish "`sufficient findings and reasoning to permit meaningful appellate scrutiny.'" OSRAM Sylvania, Inc. v. Am. Induction Techs., Inc., 701 F.3d 698, 707 (Fed. Cir. 2012) (quoting Nazomi Commc'ns, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1371 (Fed. Cir. 2005)).

The first step in construing a claim is to "look to the words of the claims themselves . . . to define the scope of the patented invention." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The words are not read from the perspective of the average, uninformed person, but from the perspective of "a person of ordinary skill in the art." Phillips, 415 F.3d at 1313. Here, the Court endeavors to construe these claims as a hypothetical person who is presumed to have ordinary skill in the designing and making of disposable fluid containment devices.

The legal formulation of a claim's construction is not performed in a vacuum. It requires examining evidence of the claim's meaning. Intrinsic evidence consists of the patent and its file history, including any reexaminations and reissues, as well as any related patents and their prosecution histories. See IMS Tech., Inc. v. Haas Automation Inc., 206 F.3d 1422, 1433 (Fed. Cir. 2000); see generally, Phillips, 415 F.3d at 1314-1317. A patent is comprised of several components. Two key components of a patent are the claims and the specification. The claims "define the invention to which the patentee is entitled the right to exclude." Phillips, 415 F.3d at 1312 (quoting Innova, 381 F.3d at 1115). The specification "contain[s] a written description of the invention, and of the manner and process of making and using it." 35 U.S.C. § 112, ¶ 1.4 The "specification `is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'" Phillips, 415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582). In addition, the specification provides insight into how the inventor and patent examiner understood the patent. Id. at 1315-16.

Another important source of intrinsic evidence for purposes of claim construction is the prosecution history, which consists of "the complete record of the proceedings before the PTO and includes the prior art cited during the examination of the patent." Id. at 1317. At the same time, the Federal Circuit has acknowledged that a patent's prosecution history can be ambiguous, and thus less useful in claim construction. See id.; Inverness Med. Switz. GmbH v. Warner Lambert Co., 309 F.3d 1373, 1380-82 (Fed. Cir. 2002).

Extrinsic evidence refers to all other types of evidence, and includes inventor testimony, expert testimony, dictionaries and learned treatises. Phillips, 415 F.3d at 1317. "[W]hile extrinsic evidence can shed useful light on the relevant art," the Federal Circuit has established "that it is less significant than the intrinsic record in determining the legally operative meaning of claim language." Id. (internal quotations omitted).

Independent Claim 1

There are four claims in the '139 patent requiring construction by the Court, with the principal claim at issue being independent claim 1. Within independent claim 1, there are three specific phrases the parties have requested the Court interpret, "free from attachment to said sides of said bag," "unsequestered fluid," and "closure means for closing the top of said bag." The complete independent claim 1, with the language at issue highlighted, reads:

'139 Patent, Def.'s Br., Ex. 1 at A9, col. 8, ll. 39-66 (emphasis added).

"Free From Attachment to Said Sides of Said Bag"

The parties request the following constructions:

Prosecution History

Defendant relies on the prosecution history for the '139 Patent for its position that the funnel is a completely separate structure and not attached to the bag at any point except the top. Defendant contends that Plaintiff emphasized that the funnel was separate from the bag during the prosecution of the '139 Patent, and that such emphasis establishes that "free from attachment to said side" means not attached to the side of the bag at all.

Defendant points to the amendment of precursor Claim 19 to argue that the prosecution history demonstrates that the funnel must be free from attachment to the edges because the amended Claim 19 had used the words "spaced apart from said sides of said bag." Claim 19 originally described the funnel as:

Def.'s Br., Ex. 4 at A50. Defendant concludes:

Def.'s Br. 19.

Plaintiff counters by citing an examiner's note suggesting that the funnel could be partially attached to the edges. As Plaintiff points out, "[t]he examiner found it was [only] necessary for the liquid to get behind a portion of the walls to close the funnel. (see Exhibit 1 at Bates No. 307)." Pl.'s Br. 6. Thus, in Plaintiff's view, by not requiring that fluid get behind all walls of the funnel to close the funnel, the examiner's note suggests that the language regarding "free from attachment" was not an absolute freedom, but that freedom from attachment to the sides of the bag would be sufficient. Pl.'s Br. 7. In the cited note, the examiner stated:

Pl.'s Br., Ex. 1 at Bates No. 307; Def.'s Br., Ex. 4 at A122. Thus, as Plaintiff suggests, the funnel structure could have been partially attached to the edges such that the liquid only needed to get behind a portion of the walls to close the funnel. Otherwise, if it had been necessary for the fluid to get behind the entirety of the walls of the funnel to close the funnel, the funnel could not have been attached to the edges of the bag at all. The examiner's acknowledgment that fluid only had to "get behind at least a portion of the walls of the funnel" negates Defendant's proposed construction.

In sum, the prosecution history does not support Defendant's claim construction. In arguing that free from attachment to the sides means free from attachment to the entire span of both edges, Defendant ignores the language in the earlier iteration of the claim that "spaced apart" applied to the "open bottom" of the funnel, not the entire funnel. Def.'s Br., Ex. 4 at A66. Further, the prosecution history indicates the patent examiner's understanding that the liquid could "get behind at least a portion of the walls," not the entirety of the walls, meaning the funnel could be partially attached to the edges.

Prosecution Disclaimer

Again citing prosecution history, Defendant further asserts that "plaintiff disclaimed any interpretation that free from attachment to the sides means free from attachment to the sides but not the edges." Def.'s Br. 21 (emphasis in original). The legal standard for finding a prosecution history disclaimer requires "a clear and unmistakable disavowal of scope during prosecution." Purdue Pharma L.P. v. Endo Pharms. Inc., 438 F.3d 1123, 1136 (Fed. Cir. 2006). Such a finding of disclaimer is based on "whether a competitor would reasonably believe that the applicant had surrendered the relevant subject matter." PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1368 (Fed. Cir. 2007) (quoting Cybor Corp., 138 F.3d at 1457); see also Omega Eng'g, Inc, v. Raytek Corp., 334 F.3d 1314, 1325 (Fed. Cir. 2003).

Defendant cites Omega Engineering and PODS, Inc. in support of its position, arguing:

Def.'s Br. 23.

Defendant has failed to prove a clear and unmistakable disavowal that the funnel could be attached at any point other than the top of the bag. Indeed, Plaintiff points to a statement made by the applicant in the prosecution history relating to the funnel:

Pl.'s Br., Ex. 1 at Bates No. 142; Def.'s Br., Ex. 4 at A70 (emphasis in original). The illustrations referenced in this passage (figures 3 and 5) are reproduced below:

Def.'s Br., Ex. 1 at A3. Plaintiff elaborates:

In Figure 3, sides of the funnel are identified by numbers 22, and 24. The sides of the bag are identified by numbers 12 and 14. There is a space visible between the sides of the funnel and the sides of the bag. This is what is meant by "being free from attachment from said sides". Similarly, in Figure 5, the sides of the funnel are identified by numbers 22' and 24'. The sides of the bag are identified by numbers 12', and 14'. There is a space visible between the sides of the funnel and the sides of the bag. This is what is meant by "being free from attachment from said sides".

Pl.'s Br. 8-9. Both the applicant's prosecution statement and the referenced figures depict the "freedom from attachment" as applying to the sides; no mention is made of "freedom of attachment" with respect to the edges. As such, there is no basis to find Defendant's suggested prosecution history disclaimer here.

The Court's Construction

The parties' only disagreement in the construction of the language is whether the word "sides" includes the edges. Tr. 80.5 The language of the patent as a whole supports Plaintiff's position that the "sides" are to be considered distinct from the edges. The language in the patent differentiates between "sides" and "edges," particularly in the claims themselves. See CAE Screenplates, Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed. Cir. 2000) (holding that "[i]n the absence of any evidence to the contrary, we must presume that the use of .. . different terms in the claims connotes different meanings"). Independent claim 1 states that the bag is "defined by two sides meeting at opposite edges, a bottom and a top, with said edges and bottom sealed." '139 Patent, Def.'s Br., Ex. 1 at A9, col. 8, ll. 42-44. Thus, in describing the containment bag at issue, the claim defines the landmarks by which the claim is to be understood distinctly, with the "sides" being the front and back of the containment bag, the "edges" being the junctions at the left and right of the containment bag, and the "top" and "bottom" being the junctions at the head and foot of the bag.

Further, the '139 Patent states that "[t]he invention herein will be best understood by reference to the drawings. . . ." '139 Patent, Def.'s Br., Ex. 1 at A7, col. 3, ll. 51-52. Figure 8 provides an example of a funnel with the entire length of its structure being attached along one of the edges, marked as 18, with the opening, marked as 30, positioned alongside the same edge.

Def.'s Br., Ex. 1 at A4.

Figure 13 also shows a funnel structure attached to the edges (designated by the black arrow), while still being free from attachment to the sides.

Def.'s Br., Ex. 1 at A5.

In light of these considerations, the Court agrees with Plaintiff's proposed construction, and construes the claim language as follows:

"Unsequestered Fluid"

The parties request the following constructions:

To support its construction, Plaintiff argues:

Tr. 45. Defendant states that "[t]he plain and ordinary meaning of the term unsequestered fluid is fluid that has not yet been gelled." Def.'s Br. 29. In response to Plaintiff's construction, Defendant argues that "the term `fluid' cannot include the `hydrophilic powder' because both terms are used in the claims." Def.'s Br. 30 (citing CAE Screenplates, 224 F.3d at 1317).

The Court's Construction

The parties disagree over whether "unsequestered fluid" can contain hydrophilic material. Plaintiff submits that it can. In contrast, Defendant contends that the term "fluid" cannot include "hydrophilic material" because both terms are used in the claims. However, Defendant attempts to read a key term of the patent — hydrophilic material — out of the construction of "unsequestered fluid." It is clear from the claim as a whole and the parties' proposed constructions that hydrophilic material is an important element of the bag, and a critical component of the combination of fluid with hydrophilic material which in 30 seconds causes gellation and sequestration. The claim itself expressly states that it is hydrophilic material that causes gelling due to its "contact" with "said fluid."

It is well established that "the claims themselves provide substantial guidance as to the meaning of particular claim terms." Phillips, 415 F.3d at 1314; see also ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed. Cir. 2003) ("[T]he context of the surrounding words of the claim also must be considered in determining the ordinary and customary meaning of those terms."); Vitronics, 90 F.3d at 1582. So too, "the context in which a term is used in the asserted claim can be highly instructive." Phillips, 415 F.3d at 1314. "While certain terms may be at the center of the claim construction debate, the context of the surrounding words of the claim also must be considered in determining the ordinary and customary meaning of those terms." ACTV, 346 F.3d at 1088; see Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1299 (Fed. Cir. 2003); Hockerson-Halberstadt, Inc. v. Converse Inc., 183 F.3d 1369, 1374 (Fed. Cir. 1999). Given this precedent and the language of claim 1, it is inappropriate to ignore the words "hydrophilic material" in construing the term "unsequestered fluid."

The claim itself states:

'139 Patent, Def.'s Br., Ex. 1 at A9, col. 8, ll. 39-66.

The "unsequestered fluid" term at issue refers back to "fluid" which has not yet gelled until after its "contact" with hydrophilic material. As the second subparagraph of the claim makes clear, it is the hydrophilic material's contact with the fluid that causes the gellation, and the gellation which in turn sequesters the fluid. According to the second subparagraph, hydrophilic material could mix with the fluid but not form a gel prior to the 30-second time frame. Defendant agreed that unsequestered fluid would contain hydrophilic powder particles, "because it would be kind of hard for it not to." Tr. 91. As such, a reference to the presence of hydrophilic material is critical for an understanding of the term "unsequestered fluid" according to the language of the claim itself.

Further, although there are separate terms in the claim for "fluid" and "hydrophilic material," it would be an oversimplification of the claim language to ignore how these terms interrelate. The '139 Patent describes how the hydrophilic material is "gellable," and specifies a timeframe (30 seconds) by which the hydrophilic material and the fluid join in a state of "gellation." Id. at ll. 46-51. The fluid mixed with the hydrophilic material prior to gelling would necessarily entail the fluid having some hydrophilic particles in the state of not yet being fully gelled. Indeed, the patent itself clearly contemplates a time frame during which precisely this state occurs, the referenced 30-second period.

For the above reasons, the Court construes the claim language as follows:

"Closure Means for Closing the Top of Said Bag"

This is a method for permanently sealing the bag after use for long term storage. The parties request the following constructions:

The parties agree that the language used in the claim "closure means for closing the top of said bag" is in the form of a "means-plus-function" claim. '139 Patent, Def. Ex. 1 at A9, col. 8, line 65. As the Federal Circuit has recognized, "if the word `means' appears in a claim element in association with a function, [the presumption is that] § 112, ¶ 6 applies. This presumption collapses, however, if the claim itself recites sufficient structure, material, or acts to perform the claimed function." Micro Chem., Inc. v. Great Plains Chem. Co., Inc., 194 F.3d 1250, 1257 (Fed. Cir. 1999) (internal citations omitted). Construction of means-plus-function claims are governed by 35 U.S.C. § 112, ¶ 6 (2006):

35 U.S.C. § 112, ¶ 6. Therefore, construing a means-plus-function claim requires identifying "the claimed function [in the specification] and identif[ying] the structure in the written description necessary to perform that function." Micro Chem, 194 F.3d at 1258.

The parties also recognize "that, `[p]ursuant to 35 U.S.C. § 112[, ¶ 6], a means-plus-function limitation is not restricted to the structures disclosed in the specification but includes structures that are the equivalents thereof.'" Pl.'s Claim Construction Reply Br. 5 (quoting Def.'s Br. 32). Plaintiff, however, argues for a broad reading of what structures are encompassed by the "closure means," stating:

Pl.'s Claim Construction Reply Br. 6-7.

Defendant argues for a narrow construction that the claim limitation should be construed as "clamp 34 or zipper closure 43, and equivalents thereof." Def.'s Resp. to Pl.'s Br. 12 (emphasis in original). Defendant states that "the elongated clamp designated as clamp 34 and the zipper closure 43—provide the yardstick by which an `equivalent thereof' is to be determined. That is the import of the Federal Circuit's cases, as well as the plain language of section 112[, ¶ 6]." Id.

In response to Plaintiff's argument that the closure means should be construed broadly, Defendant states:

Def.'s Resp. to Pl.'s Br. 9-10.

The Court's Construction

The question under § 112, ¶ 6 "is not what structures a person of ordinary skill in the art would know are capable of performing a given function, but what structures are specifically disclosed and tied to that function in the specification." Saffran v. Johnson & Johnson, 712 F.3d 549, 563 (Fed. Cir. 2013); accord Blackboard, Inc. v. Desire2Learn Inc., 574 F.3d 1371, 1385 (Fed. Cir. 2009). Plaintiff contends that the closure means is unimportant to the '139 Patent, and urges the Court to broadly construe the described closure mechanism to include "all closure means known in the art." Pl.'s Br. 13-14. However, Defendant is correct that the only closure methods referenced in the specification of the '139 Patent are "a clamp 34," and "a snap-and-seal zipper closure structure 43." '139 Patent, Def.'s Br., Ex. 1 at A7, col. 4, l. 65, to A8, col. 5, ll. 26-27.

Defendant is also correct that the statute limits means-plus-function claims to "equivalents" of "the corresponding structure, material, or acts described in the specification." 35 U.S.C. § 112, ¶ 6. What constitutes "equivalents thereof" varies depending upon the context. "[W]hen . . . the disclosed physical structure is of little or no importance to the claimed invention, there may be a broader range of equivalent structures than if the physical characteristics of the structure are critical in performing the claimed function in the context of the claimed invention." IMS Tech., 206 F.3d at 1436.

Ultimately, the issue of whether a structure is an equivalent is a question of fact which should be resolved in later proceedings. Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1268-69 (Fed. Cir. 1999); Hartness Int'l, Inc. v. Simplimatic Eng'g Co., 819 F.2d 1100, 1110 (Fed. Cir. 1987); Trinity Indus. v. Road Sys., Inc., 121 F.Supp.2d 1028, 1047 (E.D. Tex. 2000) ("Evaluation of the equivalency of the accused limitations is outside the scope of claim construction because it determines infringement and is therefore a question of fact.").

For the above reasons, the Court construes the claim language as follows:

Dependent Claims 5, 6, and 7

The parties have requested that this Court construe language in dependent claims 5, 6 and 7 referring to mesh sizes in the U.S. Sieve Series. The specific phrases at issue are "particle sizes in the range of -40+120 mesh U.S. Sieve Series," and "particle sizes in the range of -40+80 mesh U.S. Sieve Series." Given the similarities, these phrases are addressed together:

"Particle Sizes in the Range of -40+120 Mesh U.S. Sieve Series"

The complete dependent claims 5 and 6, with the language at issue highlighted, read:

'139 Patent, Def.'s Br., Ex. 1 at A10, col. 9, ll. 10-16.

"Particle Sizes in the Range of -40+80 Mesh U.S. Sieve Series"

The complete dependent claim 7, with the language at issue highlighted, reads:

'139 Patent, Def.'s Br., Ex. 1 at A10, col. 9, ll. 17-20.

The parties request the following constructions:

Defendant argues that dependent claims 5, 6 and 7 are indefinite and cannot be construed, stating:

Def.'s Resp. to Pl.'s Br. 16.

Alternatively, based on the ASTM standard, Defendant notes:

Id. at 17.

On the subject of indefiniteness, Plaintiff states only:

Pl.'s Claim Construction Reply Br. 7.

The Court's Construction

The parties were nearly in agreement on a construction for the U.S. Sieve Series references, separated by "rather minute differences." Def.'s Br. 36-37. Muddling this potential agreement, however, Defendant now claims the language is indefinite and cannot be construed.

A maxim of patent law is that claims should be construed to preserve their validity. Phillips, 415 F.3d at 1327-28. Patents have a presumption of validity under 35 U.S.C. § 282, and the Supreme Court, citing Federal Circuit law, has decreed that "a defendant seeking to overcome this presumption must persuade the fact finder of its invalidity defense by clear and convincing evidence." Microsoft Corp. v. i4i Ltd. P'ship, 131 S.Ct. 2238, 2242-43 (2011) (citing Am. Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1359-60 (Fed. Cir. 1984)), abrogated on other grounds by Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc). "The primary purpose of the definiteness requirement is to ensure that the claims are written in such a way that they give notice to the public of the extent of the legal protection afforded by the patent, so that interested members of the public, e.g., competitors of the patent owner, can determine whether or not they infringe." All Dental Prodx, LLC v. Advantage Dental Prods., Inc., 309 F.3d 774, 779-80 (Fed. Cir. 2002) (citing Werner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 28-29 (1997)).

The question of validity and definiteness are inexorably linked under 35 U.S.C. § 112, ¶ 2. In order to be valid, a patent claim must "particularly point[] out and distinctly claim[] the subject matter which the applicant regards as his invention." 35 U.S.C. § 112, ¶ 2. The purpose of the definiteness requirement under 35 U.S.C. § 112, ¶ 2 is "to ensure that the claims delineate the scope of the invention using language that adequately notifies the public of the patentee's right to exclude." Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005). Patent claims are indefinite when they are not "amenable to construction," or are "insolubly ambiguous." Exxon Research & Eng'g Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir. 2001).

The intrinsic evidence does not support a finding that these claims are indefinite. The language of the '139 Patent clearly identifies particle sizes in terms of -40+120 mesh and -40+80 mesh U.S. Sieve Series in both the claims and the specification. The U.S. Sieve Series is a sufficiently definite standard, a reference that gives notice to the public of the extent of the legal protection afforded by the patent. All Dental Prodx, 309 F.3d at 779. Here, it is well established that "a defendant raising an invalidity defense [bears] `a heavy burden of persuasion,' requiring proof of the defense by clear and convincing evidence." Microsoft Corp., 131 St. Ct. at 2246 (quoting Radio Corp. of Am. v. Radio Eng'g Labs, 293 U.S. 1, 8 (1934)). Defendant has failed to marshal clear and convincing proof to establish indefiniteness, a point which Defendant appears to concede stating "there really isn't a clear answer as to whether . . . this is, you know, bad enough to be insolubly ambiguous or not." Tr. 113.

In light of the claims' clear references and the parties' positions, the claim language in dependent claims 5, 6 and 7 needs no construction and shall remain as written in the claims, i.e., "particle sizes in the range of -40+120 mesh U.S. Sieve Series," and "particle sizes in the range of -40+80 mesh U.S. Sieve Series." A person of ordinary skill in the art would have the knowledge to convert the U.S. Sieve Series to microns.

Conclusion

For the above reasons, the Court construes the claims as follows:

1. The language in Independent claim 1 that reads "said open bottom being free from attachment to said sides of said bag," should be interpreted to cover any containment bag where the open bottom of the funnel is free from attachment to said sides, but is not necessarily free from attachment to the edges.

2. The language in Independent claim 1 that reads "unsequestered fluid," should be interpreted to mean water or water-based liquids such as bodily fluids, containing some hydrophilic material, that have not yet gelled.

3. The language in Independent claim 1 that reads "closure means for closing the top of said bag" should be interpreted to mean a clamp 34 or zipper closure 43, and equivalents thereof.

4. Dependent claims 5, 6 and 7 are not indefinite, and they require no construction.

Counsel for the parties shall file a joint status report on or before June 7, 2013, proposing a schedule for further proceedings.