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Nike, Inc. v. Puma North America, Inc.

United States District Court, D. Massachusetts

October 24, 2019

NIKE, INC. Plaintiff,
v.
PUMA NORTH AMERICA, INC., Defendant.

          MEMORANDUM AND ORDER ON CLAIM CONSTRUCTION

          LEO T. SOROKIN, UNITED STATES DISTRICT JUDGE

         NIKE, Inc. brought this action against PUMA North America, Inc. alleging infringement of 10 patents directed to various aspects of footwear technologies. Doc. No. 58.[1] Puma denies that it infringes and asserts the claims of the patents in suit are invalid. Doc. No. 60. Now pending before the Court are the parties' briefs on claim construction. The Court has reviewed the parties' submissions and held a hearing on October 17, 2019, pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), at which it heard argument and technology tutorials.

         I. BACKGROUND

         The parties dispute the proper construction of 10 terms.[2] Each of the disputed terms appears in the claims of one or more of the following six of the ten patents at issue in the case: U.S. Patent Nos. 7, 401, 420 (“the '420 patent”), 7, 637, 032 (“the '032 patent”), 9, 375, 046 (“the '046 patent”), 9, 314, 065 (“the '065 patent”), 10, 051, 917 (“the '917 patent”), 10, 098, 411 (“the '411 patent”).[3] Puma asks the Court to construe the disputed terms in accordance with its proposed constructions. Doc. No. 99; Doc. No. 108. Nike argues that the terms are all to be understood in accordance with their “ordinary and customary” meaning and that no further construction is required. Doc. No. 100; Doc. No. 107. Because the patents are directed to a variety of non-overlapping technologies, the Court discusses the relevant disclosure of each patent in the course of construing the disputed claim terms below.

         II. LEGAL STANDARD

         The “construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” Markman, 517 U.S. at 372; Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831 (2015). “It is a bedrock principle of patent law 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) (internal quotation marks omitted). The claim itself is “of primary importance, in the effort to ascertain precisely what it is that is patented.” Id.(citing Merrill v. Yeomans, 94 U.S. 568, 570 (1876)); see also Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 339 (1961) (“the claims made in the patent are the sole measure of the grant”). Because as a general matter, “claims, not specification embodiments, define the scope of patent protection, ” a patentee is not limited “to his preferred embodiment, ” and “a limitation from the specification” cannot be imported “into the claims.” Kara Tech. Inc. v. Stamps.com Inc., 582 F.3d 1341, 1348 (Fed. Cir. 2009).

         “[T]he words of the claim are generally given their ordinary and customary meaning.” Phillips, 415 F.3d at 1312 (internal quotation marks and citations omitted). The “ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application.” Id. at 1313. The “person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.” Id.

         “The construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction.” Renishaw PLC v. Marposs Societa' Per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998)). “A claim construction is persuasive, not because it follows a certain rule, but because it defines terms in the context of the whole patent.” Id. “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 1313. Other times, though, when “the meaning of a claim term as understood by persons of skill in the art is . . . not immediately apparent, ” or when “patentees . . . use terms idiosyncratically, ” a court must consider “those sources available to the public” which shed light on how “a person of skill in the art would have understood [the] disputed claim language.” Id. (quotation marks omitted).

         Intrinsic evidence-the patent claims, specification, and prosecution history-is the most reliable and useful evidence in determining the meaning of a patent's claims. Id. at 1317-19. Extrinsic evidence, including expert and inventor testimony, dictionaries, and learned treatises, may also assist the court in understanding the underlying technology, the meaning of terms to one skilled in the art, and how the invention works. Id.; accord Markman, 52 F.3d at 980. Although a court may consider extrinsic evidence to the extent it is useful, it may not rely on such evidence to “change the meaning of claims in derogation” of the intrinsic evidence of record. Phillips, 415 F.3d at 1319.

         III. DISCUSSION

         Guided by these principles-and having carefully reviewed the language of each patent at issue in its entirety, all cited prosecution history, and the extrinsic evidence proffered by the parties-the Court addresses each of the disputed claim terms in turn.

         A. The Court's Obligation to Resolve Claim Construction Disputes

         There is no doubt that the Court must resolve the parties' dispute over how the claim terms at issue should be construed. O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (“When the parties present a fundamental dispute regarding the scope of a claim term, it is the court's duty to resolve it.”); MedIdea, L.L.C. v. DePuy Orthopaedics, Inc., No. 1:17-cv-11172, 2018 WL 5830849, *5 (D. Mass. Nov. 7, 2018) (when the parties disagree about the meaning of claim terms, “the Court is not only empowered, but required, to construe” them). That said, to the extent that Puma contends that the Court cannot resolve that dispute by determining that any of the claim terms have their ordinary and customer meanings, it is mistaken. See, e.g., Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1206-07 (Fed. Cir. 2010) (courts may resolve claim construction disputes by ascribing disputed terms their ordinary meaning); Summit 6, LLC v. Samsung Elecs. Co., Ltd., 802 F.3d 1283, 1291 (Fed. Cir. 2015) (“because the plain and ordinary meaning of the disputed claim language is clear, the court did not err by declining to construe the claim term”); ActiveVideo Networks, Inc. v. Verizon Commc'ns, Inc., 694 F.3d 1312, 1326 (Fed. Cir. 2012) (“the district court did not err in concluding that these terms have plain meanings that do not require additional construction”); Phillips, 415 F.3d at 1313 (“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.”).

         Of course, sometimes a term requires a particular construction, as was the case in this Court's opinion in MedIdea, 2018 WL 5830849 at *12 (construing the technical and unfamiliar claim term “cam” because it was not one with which the jury was likely to be familiar) and in O2 Micro, 521 F.3d at 1361 (“In this case, the ‘ordinary' meaning of a term does not resolve the parties' dispute, and claim construction requires the court to determine what claim scope is appropriate in the context of the patents-in-suit.”) (emphasis added).

         B. Puma's Proffered Expert Declarations

         Puma submits two expert declarations in support of its claim construction arguments but Puma's declarants do not explain the state of the art at the time of the claimed inventions or how their experience or expertise leads them to construe the disputed claim terms in a way that is different from the way in which the terms might be construed by a layperson who reads them in the context of the patent claims, the specification, and the prosecution history. See generally Doc. No. 99-26 (Decl. of Dr. Stefanyshyn); Doc. No. 99-28 (Decl. of Dr. Steszyn). Indeed, Dr. Stefanyshyn cites no authority for his opinions other than the intrinsic record of the patents about which he opines and makes no reference to any subject matter outside the intrinsic record. See Doc. No. 99-26. Dr. Steszyn also cites no authority for his opinions other than the intrinsic record of the patents about which he opines, and with two small and unsupported exceptions discussed infra, also makes no reference to any subject matter outside the intrinsic record. See Doc. No. 99-28. Neither illuminates how the disputed terms might have been understood by a person of ordinary skill in the art at the time of the inventions.

         For this reason, and because the intrinsic record before the Court suffices to permit the Court to determine the meaning of the disputed claim terms, the Court does not rely on the declarations of Puma's proffered experts to construe the disputed claim terms.

         C. The disputed claim terms

         1.fluid-filled bladder” ('420 patent, claim 14)

         The term “fluid-filled bladder” appears in claim 14 of the '420 patent, entitled “Article of Footwear Having a Fluid-Filled Bladder with a Reinforcing Structure.” Doc. No. 58-5 ('420 patent). As its title suggests, the '420 patent is directed to a sole structure of a footwear article that incorporates a fluid-filled bladder. '420 patent at 1:24-30. Claim 14 recites:

14. An article of footwear comprising:
a sole structure incorporating a fluid-filled bladder and a reinforcing structure secured to the bladder, the sole structure having an upper surface and an opposite lower surface, the upper surface forming a ridge that defines a first portion of a lasting surface, at least a portion of the ridge being an inclined surface formed by the reinforcing structure and located over the bladder, the bladder defining a second portion of the lasting surface; and an upper secured directly to the first portion of the lasting surface and the second portion of the lasting surface.

'420 patent, claim 14 (disputed claim term bolded).

         The parties do not disagree about what constitutes a “bladder” and they agree that the “fluid” in “fluid-filled bladder” may consist of any liquid, including ambient air. Doc. No. 99 at 26 n.13 (“[c]onsistent with the specification of the '420 patent, the term ‘fluid' encompasses gasses, gels, and liquids.”) (citing '420 patent at 8:3-16); Doc. No. 100 at 17 (same). Indeed, the specification broadly describes fluid-filled bladders as bladders filled with any fluid, including pressured fluids or non-pressurized fluids such as ambient air:

The fluid within bladder 30 may be any of the gasses disclosed in U.S. Pat. No. 4, 340, 626 to Rudy . . . The fluid may also include gasses such as pressurized octafluorapropane, nitrogen, or air. In addition to gasses, various gels or liquids may be sealed within bladder 30. Accordingly, a variety of fluids are suitable for bladder 30. With regard to pressure, a suitable fluid pressure is fifteen pounds per square inch, but may range from zero to thirty pounds per square inch. Accordingly, the fluid pressure within bladder 30 may be relatively high, or the fluid pressure may be at ambient pressure or at a pressure that is slightly elevated from ambient in some embodiments of the invention.

'420 patent at 8:3-16.

         With respect to this claim term, the parties disagree only over the word “filled.” Nike argues no further construction is required “because ‘filled' is a non-technical, commonly understood word.” Doc. No. 100 at 16. Alternatively, Nike suggests that to the extent the claim term needs construction, it may be construed to mean “bladder filled with fluid.” Doc. No. 107 at 18-19.

         Puma argues that the word “filled” in “fluid-filled bladder” means “added to, ” and proposes that the claim term be construed to mean “a bladder to which fluid has been added.” Doc. No. 99 at 25-27. As support for its proposed construction, Puma contends that “[t]he '420 patent does not describe any embodiments with bladders to which fluid has not been added.” Id. at 26. Puma also notes that in discussing “[t]he present invention, ” the '420 patent specification discloses that “the bladder encloses a pressurized fluid that exerts an outward force upon the barrier material, ” and that “[t]he pressurized fluid contained by [the] bladder [] induces an outward force.” Id. (quoting '420 patent at 2:45-47; id. at 6:7-9). And Puma cites to passages describing processes by which fluid is added to the bladder. Id. (“The chambers [of the bladder] are pressurized above ambient pressure by inserting a nozzle or needle connected to a fluid pressure source into a fill inlet formed in the bladder.”) (quoting '420 patent at 2:16-18); id. at 26-27 (“pressurized fluid may be injected [into the bladder] through [a] conduit” and “[t]he conduit is then sealed to enclose the fluid within [the] bladder.”) (quoting '420 patent at 16:22-24).

         Nike counters that Puma mischaracterizes the specification's statements of “the present invention” and that, in any event, it is well settled that statements of “the present invention” are not limiting. Doc. No. 100 at 20-21. Nike also argues that none of the passages cited by Puma in support of its proposed construction discloses that the bladder becomes filled with fluid only by means of having fluid added to it after the bladder has been formed. Id. at 21.

         Nike further argues that the doctrine of claim differentiation militates against Puma's proposed construction. The claim differentiation doctrine provides that an independent claim should not be construed as requiring a limitation added by a dependent claim. Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1380-81 (Fed. Cir. 2006). Nike notes that while other claims of the '420 patent recites “a limitation that requires ‘the bladder enclosing a fluid that exerts an outward force, '” the asserted claims of the '420 patent, including claim 14, do not include such a limitation. Doc. No. 107 at 21 ('420 patent at 23:13-28).

         Nike's strongest argument against Puma's proposed construction is that that construction improperly excludes an embodiment disclosed in the specification-namely, bladders filled with ambient air. Doc. No. 100 at 11 (describing fluid-filled bladder containing “non-pressurized fluids such as ambient air) (citing '420 patent at 8:3-16). Nike explains that by virtue of being filled with ambient air, such bladders become “filled with fluid” as they are formed, not after they are formed. Id. Therefore, such bladders are “filled” with fluid even though they are not bladders to which fluid has been “added.” Id.

         The Court agrees that Puma's proposed construction of a “fluid-filled bladder” to mean “a bladder to which fluid has been added” is not supported by the claims and specification and improperly excludes the disclosed embodiment of a bladder that is filled with ambient air. Puma's proposed construction also improperly imports a method of manufacture-adding fluid to bladders after they are formed-into the claim limitation. No. such limitation is disclosed in the specification.

         Having reviewed the parties' submissions and the intrinsic record, the Court construes “fluid-filled bladder” in accordance with its ordinary and customary meaning to mean “bladder filled with fluid.”

         2.stability ribs” and “enhanced stability structures” ('032 patent, claims 1, 14, 16)

         The terms “stability ribs” and “enhanced stability structures” appear in claims 1 and 16, respectively, of the '032 patent, entitled “Footwear Structure with Textile Upper Member.” Doc. No. 58-1 ('032 patent). The '032 patent is directed to articles of footwear incorporating “a textile upper member with an exterior constructed from knitted textile material.” '032 patent at Abstract. Claim 1 of the '032 patent recites:

         1. An article of footwear, comprising:

an upper member substantially constructed from textile material, wherein the upper member includes an exterior portion substantially constructed from knitted textile material, the exterior portion including a first region having stability ribs integrally formed in the knitted textile material and a second region continuous with the first region, the second region not including stability ribs . . . ”

'032 patent, claim 1 (disputed claim terms bolded). Claim 16 is similar, except it recites “enhanced stability structures” instead of “stability ribs.” Id., claim 16.

         The parties agree that, whatever they mean, the claim terms “stability ribs” and “enhanced stability structures” mean substantially the same thing. They also do not dispute the meaning of “ribs” or “structures” or “enhanced.” They dispute only the meaning of the word “stability.”

         Nike says “stability” needs no further construction because it is a “non-technical, commonly understood word.” Doc. No. 100 at 19. Nike further observes that “stability” “means ‘the state of being stable,' and ‘stable means ‘not likely to give way or overturn; firmly fixed.'” Id. (citing Doc. No. 100-13, Oxford Dictionary of English, 2d ed.). Puma argues that “stability ribs” and “enhanced stability structures” should be construed to mean “ribs / structures that increase the resistance to bending or stretching of the upper member in the region of the upper where the ribs are located in order to provide support to a wearer's foot in that region.” Doc. No. 99 at 28.

         Puma contends that “[t]he stability ribs / enhanced stability structures provide stability by being ‘place[d] . . . at one or more regions or locations around the foot so as to anatomically place the stability regions at areas around the foot that need to be stabilized during the desired activities.'” Id. at 29 (quoting '032 patent at 1:60-2:3). And, citing the declaration of Dr. Stezyn, Puma argues that “a person of ordinary skill in the art would understand that stability ribs could be used to increase the ‘Young's modulus' of the area of the upper in which they are located, ” which Puma explains is “is a measure of [a] material's elasticity.” Id. (citing Doc. No. 99-28 ¶ 34). The problem for Puma is that Dr. Stezyn cites no authority for his discussion of the Young's modulus. Doc. No. 99-28 ¶ 34. Nor does he tie his discussion of the Young's modulus to any particular disclosure of the '032 patent. Id. This is perhaps not surprising as the patent makes no reference to the Young's modulus. See generally '032 patent. Nor does it disclose that the feature providing the structures in question their “stability” is their relative inelasticity, as Puma contends. Doc. No. 99 at 29. The Court therefore disregards Dr. Stezyn's statements regarding the '032 patent.

         Nike urges the Court to reject Puma's proposed construction on the grounds that “the specification broadly describes the ‘stability' ribs or structures as inherently providing stability because they are ribs or other structures, ” and that Puma's claim construction is not supported by the intrinsic record and is unduly limiting. Doc. No. 100 at 19, 20. The Court agrees. The specification discloses that:

[T]he exterior layer 102 a of the upper member 102 may be formed from plural material constructions or formations that each impart different properties or characteristics . . . (e.g., ribbed or other support or stability structures in some areas to provide higher stability as compared to other (e.g., non-ribbed) areas, etc.).

'032 patent at 10:24-30. At the claim construction hearing, Nike proposed that, in keeping with the above-quoted disclosure, the Court construe the disputed claim terms to mean “ribs / structures that provide support.”

         Having reviewed the parties' submissions and the intrinsic record, the Court construes “stability ribs” and “enhanced stability structures” to mean “ribs / structures that provide stability or support.”

         3.webbed areas” and “tubular structures” ('046 patent, claims 1, 2, 17)

         The claim terms “webbed areas” and “tubular structures” appear in asserted claims of the '046 patent, entitled “Article of Footwear Incorporating a Knitted Component with Inlaid Tensile Elements and Method of Assembly.” See Doc. No. 58-4 ('046 patent). The '046 patent is generally directed to articles incorporating knitted components that are “formed of multiple knitted component portions.” '046 patent at 1:20-22; id. at Abstract. Claim 1 recites:

1. An article comprising:
a plurality of webbed areas that include a plurality of courses[4] formed from a first yarn, the webbed areas having a front surface, the webbed areas configured to move between a neutral position and an extended position, the webbed ...

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