Docket Nos. 2015-1331, 2015-1389
LOURIE, REYNA, CHEN
January 29, 2016
Brief Summary: DC grant of SJ to Dow of non-infringement literally or under DOE affirmed. DC findings of no indefiniteness also affirmed.
Summary: Akzo appealed DC grant of SJ to Dow of non-infringement of US 6,767,956 directed to an extrusion process that generates low viscosity aqueous dispersions, either literally or under the doctrine of equivalents (DOE). Dow sought SJ that Akzo had not identified a “pressure collection vessel” in its accused BLUEWAVETM process, and the DC combined that hearing with a Markman hearing. Relying on Examples 2 and 3 of the ‘956 patent, the DC construed the term “pressurized collection vessel”, with “collection” meaning that “some amount of material must be allowed to accumulate within the vessel, rather than all of the material flowing through the vessel at a constant rate”. Dow also argued that the limitation “viscosity below 10 Pa.s” was indefinite because the failure to include “a temperature…was fatal” but the DC disagreed, concluding that “in context one of ordinary skill in the art would know with reasonable certainty that viscosity is to be measured at room temperature” (and the claim was construed as such). The DC also disagreed that the limitation “carried out at a temperature of from 5 to 150oC. above the melting point of the polymer” was indefinite (“simply applying the limitation to every step, as the plain meaning suggests, would be irrational”). Based on its constructions, the DC granted Dow’s motion for SJ since he “lack of accumulation precluded a finding of literal infringement” or under DOE. The FC panel agreed with the DC regarding “collection” (“adopting Akzo’s proferred construction of ‘gather or receive’ would ‘obviate the import of the word ‘collection’” (“A claim construction that gives meaning to all the terms of a claim is preferred to one that does not do so.” Merck, FC 2005; Power Mosfet, FC 2004) and the “specification supports the court’s construction” (specification “is the single best guide to the meaning of a disputed term” (Vitronics, FC 1996)). The FC agreed with the grant of SJ regarding literal infringement since Dow satisfied its “initial responsibility of identifying the legal basis of its motion, and of pointing to those portions of the record that it believes demonstrates the absence of a genuine issue of material fact” (Novartis, FC 2001) (e.g., “by pointing to record evidence suggesting that, in its process, ‘the material continuously passed through the heat exchangers”). And the FC panel also found Akzo’s expert statement to be “ambiguous at best”. It also agreed on DOE, since “Dow’s accused process…‘uses a valve’ and does not allow for accumulation in the downstream pipes.” It found Akzo’s expert declaration on this point to be “broad and scant” (broad conclusory statements are not enough, Telemac, FC 2001). The FC panel agreed with the DC that the viscosity limitation was not indefinite, noting that “neither the claim language nor the specification indicates a temperature” but also that “room temperature is the only temperature mentioned at all in the ‘956 patent”. It also agreed that the “carried out” limitation, based on the specification, “refers to the elevated temperature phases and not to the stages that follow” (“we are not redrafting the claims, but rather construing the claims…in accordance with the specification” (as in Eidos, FC 2015, not Chef Am., FC 2004 (courts may not redraft claims to sustain their validity)).