Docket No. 2012-1518, -1527
PROST, O’MALLEY, TARANTO
September 26, 2013
Brief summary: DC judgments relating to claim construction, indefiniteness, the exclusion of expert testimony, and infringement were affirmed but the nonobviousness decision reversed as improper at the SJ stage.
Summary: Rexam Beauty and Valois appeal DC judgment relating to claim construction, nonobviousness, indefiniteness, the exclusion of expert testimony, and infringement. The FC reversed the nonobviousness determination and affirmed the claim construction, expert testimony and infringement decisions. The indefiniteness arguments were determined to have been waived because those were not pursued at trial. MDW’s patents-at-issue (US 7,718,132 and 7,722,819) relate to dispenser assemblies for the perfume packaging industry. The patented assemblies include an “invisible” dip tube made with a transparent material with a refractive index close to that of the perfume liquid so the tube would appear invisible. The fluoropolymer EFEP (produced by Daikin Industries) was found suitable when manufactured using a quenching process. Exemplary “generic” claims 15 and 19 of the ‘132 patent relate to a dispenser assembly having a tube that “consists essentially of an extruded and quenched crystalline fluoropolymer having an XRD crystallinity not greater than about 13%” and a “transparency of about 80% or more” (claim 19 limiting the polymer to ethylene tetrafluoroethylene). The DC found “that it would not have been obvious to use EFEP in a fragrance product” because, for instance, it was carcinogenic, there was evidence of a long-felt need and commercial success, and Rexam could only produce its tube by reverse-engineering MWV’s tube. But the FC explained that claims 15 and 19 “are not fragrance-specific” and “MVW did not present evidence teaching away from using EFEP in general purpose liquid-dispenser tubing or showing that EFEP tubing enjoyed commercial succcess or met any long-felt need.” The FC panel also found that the DC in appropriately “resolved material issues of fact in favor of MWV” at the SJ stage, even though contrary evidence was presented. The nonobviousness decision was therefore vacated and remanded. The claim construction decision regarding “quenched” was affirmed to mean that the tube “the tube can…be immersed in either air or water”. The decision that Valois’s tube, alleged to be “freely extruded into warm ambient air” thereby cooling “substantially more slowly”, was in fact “extruded and then passed through a ‘cooling tank’, which uses a constant flow of chilled water that removes heat from the tube via the air in the tank” (e.g., “‘rapidly cooled’ does not require a specific cooling rate”) and infringed the claims was affirmed. Valois also argued that “transparency” was misconstrued as having the dictionary meaning of “allowing visible light through so that objected can be clearly seen through it”. The FC panel agreed with MWV “that the ‘132 patent does not define transparency, and that the district court correctly construed the term using its plain meaning” (passage referred to by the specification referred to “‘one embodiment’ of the dip tube”). Rexam’s noninfringment argument centered only on the XRD crystallinity limitation; the determination turned on a “battle of the experts” and Rexam argued MWV’s expert testimony should be excluded. The FC disagreed and affirmed the DC finding of infringement.