Case 1:18-cv-00691-PAB-STV Document 281 Filed 09/30/20 USDC Colorado Page 1 of 34
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Chief Judge Philip A. Brimmer
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`Civil Action No. 18-cv-00691-PAB-STV
`WRIGHT MEDICAL TECHNOLOGY, INC.,
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`Plaintiff,
`
`v.
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`PARAGON 28, INC.,
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`Defendant.
`
`ORDER
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`This matter is before the Court on the parties’ Joint Motion for Determination
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`[Docket No. 148], wherein the parties ask the Court to construe certain disputed terms
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`in nine patents.1 On April 26, 2019, the Court held a claim construction hearing
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`pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). Docket No.
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`149.
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`I. BACKGROUND
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`On March 23, 2018, plaintiff Wright Medical Technology, Inc. filed this lawsuit
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`against defendant Paragon 28, Inc. alleging patent infringement. Docket No 1. Plaintiff
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`1 The patents at issue are U.S. Patent Nos. 7,771,457 (issued Aug. 10, 2010)
`(“the ’457 Patent”); 8,100,954 (issued Jan. 24, 2012) (“the ’954 Patent”); 8,118,846
`(issued Feb. 21, 2012) (“the ’846 Patent”); 8,118,848 (issued Feb. 21, 2012) (“the ’848
`Patent”); 9,144,443 (issued Sept. 29, 2015) (“the ’443 patent”); 9,259,251 (issued Feb.
`16, 2016) (“the ’251 Patent”); 9,259,252 (issued Feb. 16, 2016) (“the ’252 Patent”);
`9,259,253 (issued Feb. 16, 2016) (“the ’253 Patent”); and 9,545,278 (issued Jan. 17,
`2017) (“the ’278 Patent”) (collectively, the “patents”). Docket No. 89 at 6-7 ¶¶ 20-29.
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`filed its Third Amended Complaint [Docket No. 89] on September 28, 2018, claiming
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`that defendant has infringed upon ten of its patents, nine of which are at issue in this
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`claim construction matter.2 Docket No. 89 at 5-6, ¶ 17; Docket No. 134 at 4.
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`Each patent at issue relates to orthopedic plates used in bone fracture repair or
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`reconstruction. Docket No. 89 at 8, ¶ 30; ’457 Patent, col. 1, ll. 62-67; col. 2, ll. 1-2.
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`These devices are designed for use in repairing smaller bones, such as the clavicle,
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`elbow, and knee and can bend laterally to wrap or spiral around a bone. Id., col. 2, ll.
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`25-28, 33-36. An example of an orthopedic plate is shown in Figure 1 of the ’954
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`Patent:
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`2 The parties did not identify any claim terms that require construction in the ’710
`Patent, which relates to a surgical instrument. Docket No. 134 at 3 n.1.
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`2
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`The preferred embodiment of this plate includes a trunk portion (12) with two or more
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`screw holes or slots (14) along the trunk’s longitudinal axis. ’457 Patent, col. 5, ll. 6-
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`11. The area linking the screw holes to the trunk portion has a narrowed waist area
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`(26) that may bend relative to the trunk’s longitudinal axis. Id., ll. 34-36. The plate has
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`at least one but preferably two sets of arms (20) and each arm includes a screw hole
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`(24). Id., 43-44; 51-52. In each set of arms, the arms will be different lengths and will
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`diverge from the trunk at different angles, id., 44-46; 54-58, so that when the arms are
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`wrapped around and secured to a bone, the screw used to secure one arm will not
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`impinge the screw securing the other. Id. at col. 6, ll. 41-46.
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`3
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`The ’457 and ’954 Patents have the same specification, as do the ’251, ’252,
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`’253, ’278, ’443, and ’846 Patents. Docket No. 134 at 4. The ’848 Patent has its own
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`specification. Id. These specifications are substantially similar.3
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` The parties ask the Court to construe ten different claim terms found in over
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`100 claims across the nine patents. The Court must construe these claim terms
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`consistently across each patent and each claim. See Boss Indus., Inc. v. Yamaha
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`Motor Corp., U.S.A., Inc., 333 F. App’x 531, 536-37 (Fed. Cir. 2009) (unpublished)
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`(finding that the district court did not err in construing a term consistently for multiple
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`patents where the patents’ specifications were “nearly identical” and where the patents
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`“share[d] many common terms with [their] sister patents”).
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`Due to the large number of claims containing the disputed claim terms, the Court
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`will not set out each use of each term. However, Claim 1 of the ’457 Patent, which
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`contains all of the disputed claim terms, is instructive as to the context in which each
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`claim term is used. Claim 1 describes:
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`1. A surgical plate system capable of being used to stabilize a small bone
`fracture comprising
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`a Y-shaped plate that has an inferior surface and which has a
`concentric superior surface forming a portion of a cylinder, the
`plate consisting of a trunk and a pair of a first arm and a second
`arm,
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`the trunk having a linear medial longitudinal axis along the
`superior surface extending between a first and a second end, and
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`3 Because the specifications are substantially similar, they will be referred to in
`the singular unless otherwise noted. References to identical language from the
`common specifications will be cited to the ’457 and ’251 specifications unless otherwise
`noted.
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`4
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`the inferior surface of the plate defining a curve transverse to the
`medial axis,
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`the first arm and the second arm extending from the first end of the
`trunk, the inferior surface of the first arm and of the second arm
`following the same curve as the inferior surface of the trunk,
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`the first arm having an ear with at least one screw hole defining a
`first screw axis perpendicular to a tangent to the top surface of the
`first ear, the first ear being attached to the trunk by a linking
`section having a waist, a first angle and a first length being
`defined by a line from the center of the first arm screw hole to the
`intersection of the medial longitudinal axis of the trunk, and,
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`the second arm having a second ear with at least one second
`screw hole defining a second screw axis perpendicular to a tangent
`to the top surface of the second ear, the second ear being attached
`to the trunk by a linking section having a waist, a second angle and
`a second length being defined by a line from the center of the
`second arm screw hole to the intersection of the medial
`longitudinal axis of the trunk, and
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`the first angle and the first length being different from the second
`angle and the second length whereby the first screw axis and the
`second screw axis converge toward the inferior side of the plate
`but do not intersect.
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`’457 Patent, Claim 1, col. 8, ll. 23-57 (emphasis added).
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`II. LEGAL STANDARDS FOR PATENT CLAIM CONSTRUCTION
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`Claim construction is a question of law for the court, Teva Pharm. USA, Inc. v.
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`Sandoz, Inc., 574 U.S. 318, 325 (2015), guided by Federal Circuit precedent. See
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`SunTiger, Inc. v. Scientific Research Funding Group, 189 F.3d 1327, 1333 (Fed. Cir.
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`1999). The Federal Circuit has made clear that “there is no magic formula or catechism
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`for conducting claim construction.” Phillips v. AWH Corp., 415 F.3d 1303, 1324 (Fed.
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`Cir. 2005) (en banc). Nevertheless, there are several key sources and doctrines that
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`should be consulted and applied, but “[t]he sequence of steps used by the judge in
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`consulting various sources is not important; what matters is for the court to attach the
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`appropriate weight to be assigned to those sources in light of the statutes and policies
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`that inform patent law.” Id.
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`The starting point is the “bedrock principle” that “‘the claims of a patent define
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`the invention to which the patentee is entitled the right to exclude.’” Id. at 1312
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`(quoting Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d
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`1111, 1115 (Fed. Cir. 2004)). The words of the claims “‘are generally given their
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`ordinary and customary meaning,’” id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90
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`F.3d 1576, 1582 (Fed. Cir. 1996)), which is “the meaning that the term would have to a
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`person of ordinary skill in the art in question at the time of the invention,” id. at 1313;
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`see CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)
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`(“Generally speaking, [courts] indulge a ‘heavy presumption’ that a claim term carries
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`its ordinary and customary meaning.”). In those instances when the claim language
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`“involves little more than the application of the widely accepted meaning of commonly
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`understood words,” construction is relatively straightforward and “the ordinary meaning
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`. . . may be readily apparent even to lay judges.” Phillips, 415 F.3d at 1314. When the
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`claim terms have a particular meaning in the field, however, courts “look[ ] to ‘those
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`sources available to the public that show what a person of skill in the art would have
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`understood disputed claim language to mean.’” Id. (quoting Innova, 381 F.3d at 1116).
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`“These sources include the words of the claims themselves, the remainder of the
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`specification, the prosecution history, and extrinsic evidence concerning relevant
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`scientific principles, the meaning of technical terms, and the state of the art.” Innova,
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`381 F.3d at 1116.
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`The context in which a term is used, both in the asserted claim as well as in
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`other claims of the patent, can be valuable and instructive. Phillips, 415 F.3d at 1314.
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`In addition, the patent specification – the text and figures of the patent that precede the
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`claims – “‘is always highly relevant to the claim construction analysis. Usually, it is
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`dispositive; it is the single best guide to the meaning of a disputed term.’” Id. at 1315
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`(quoting Vitronics, 90 F.3d at 1582). With that said, “the claim requirement
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`presupposes that a patent applicant defines his invention in the claims, not in the
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`specification.” Johnson & Johnston Associates Inc. v. R.E. Service Co., Inc., 285 F.3d
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`1046, 1052 (Fed. Cir. 2002); see PSC Computer Products, Inc. v. Foxconn Int’l, Inc.,
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`355 F.3d 1353, 1359 (Fed. Cir. 2004) (“‘[T]he claims of a patent limit the invention, and
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`specifications cannot be utilized to expand the patent monopoly’”) (quoting United
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`States v. Adams, 383 U.S. 39, 48-49 (1966)).
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`If necessary, courts may also consider the patent’s prosecution history – the
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`official record of the patent application and subsequent process before the U.S. Patent
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`and Trademark Office, which “provides evidence of how the PTO and the inventor
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`understood the patent.” Phillips, 415 F.3d at 1317. Nevertheless, “because the
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`prosecution history represents an ongoing negotiation between the PTO and the
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`applicant, . . . it often lacks the clarity of the specification and thus is less useful for
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`claim construction purposes.” Id. And, although courts may consult extrinsic evidence
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`such as “expert and inventor testimony, dictionaries, and learned treatises,” such
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`evidence is “‘less significant than the intrinsic record,’” i.e., the specification and
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`prosecution history, and courts must be wary not to use extrinsic evidence to override
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`the meaning of the claim terms demonstrated by the intrinsic evidence. Id. at 1317-19
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`(quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)).
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`That is, “extrinsic evidence may be useful to the court, but it is unlikely to result in a
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`reliable interpretation of patent claim scope unless considered in the context of the
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`intrinsic evidence.” Id. at 1319.
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`In short, a court must construe the claim terms as they would be viewed by “the
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`ordinary artisan after reading the entire patent.” Id. at 1321. This is important in order
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`to respect the public notice function of patents:
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`The patent system is based on the proposition that claims cover only the
`invented subject matter. As the Supreme Court has stated, “[i]t seems to us
`that nothing can be more just and fair, both to the patentee and the public,
`than that the former should understand, and correctly describe, just what he
`has invented, and for what he claims a patent.”
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`Id. at 1321 (quoting Merrill v. Yeomans, 94 U.S. 568, 573-74 (1876)).4
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`4 Patent claims are to be construed through the eyes of a person of ordinary skill
`in the art (“POSITA”) at the time of the invention. Defendant’s expert asserts that a
`POSITA would have two to three years of experience either in the design of orthopedic
`plates or in the use of orthopedic plates in surgery. Docket No. 134-19 at 4, ¶ 13.
`Plaintiff’s expert contends that a POSITA would have either (1) a medical degree with
`training and clinical experience in orthopedic joint repair or (2) a post-graduate degree
`in engineering or material science and at least two years of experience working in the
`field of medical device design with a person who has a medical degree and who has
`experience in orthopedic joint repair. Docket No. 143-17 at 5-6, ¶ 21. Although the
`level of skill is important in some claim construction disputes, the Court finds that it
`does not impact the proper constructions of the terms at issue, many of which the
`parties agree have no commonly understood definition to a POSITA, and declines to
`make findings on the level of skill required from a POSITA.
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`III. ANALYSIS
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`A. Arm
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`The term “arm” appears in assorted claims in each of the nine patents at issue.
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`Plaintiff argues that this term need not be construed. Docket No. 143 at 10. Defendant
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`argues that this term should be construed as “a plate appendage configured to be bent
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`without deforming any of its screw holes.” Docket No. 134 at 10. Defendant further
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`argues that not construing this term would render this term indefinite, as “arm” has no
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`definite meaning. Id. at 11. The parties’ experts do not dispute that “arm” does not
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`have one well-defined and universal meaning to a POSITA. Docket No. 134-19 at 5,
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`¶ 16; Docket No. 143-17 at 6, ¶ 23. The Court agrees that the term requires
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`construction.
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`The parties’ main dispute with respect to this term is whether an arm must be
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`configured to bend without deforming its screw holes. Defendant argues that it must,
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`as “[t]he specification uniformly states that the plate design ‘facilitates the desired
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`bending while resisting deformation of the screw holes.’” Docket No. 134 at 12. But the
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`specification portions defendant cites do not expressly state that arms are configured to
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`bend without deforming their screw holes; rather, those portions reference the plate
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`design generally. See ’457 Patent, col. 3, ll. 30-33 (“The radiused configuration of the
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`plate . . . permit[s] bending without deforming the screw holes”). To the extent that the
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`specification could be read to imply that an arm can be configured to bend without
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`deforming its screw holes, this is insufficient to read this limitation from the specification
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`into the claims. “[I]t is improper to read limitations from a preferred embodiment
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`described in the specification . . . into the claims absent a clear indication in the
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`intrinsic record that the patentee intended the claims to be so limited.” Liebel-
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`Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir. 2004). There is no clear
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`indication in the specification that the patentee intended to do so.5
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` Further, under the principles of claim differentiation, “limitations stated in
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`dependent claims are not to be read into the independent claim from which they
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`depend.” Karlin Tech., Inc. v Surgical Dynamics, Inc., 177 F.3d 968, 971-72 (Fed. Cir.
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`1999). Here, Claim 1 of the ’457 Patent describes a plate “consisting of a trunk and a
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`pair of a first arm and a second arm,” with no mention of whether the arms can bend
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`without deforming the screw holes. ’457 Patent, Claim 1, col. 8, ll. 28-29, 42, 48-49.
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`5 Moreover, when the ability to bend without deforming screw holes is included in
`a claim, this attribute is not assigned to an arm generally, but to a specific portion of an
`arm. See, e.g., ’457 Patent, Claim 4, col. 8, ll. 63-65 (“A surgical plate system as set
`forth in claim 1 wherein the waist of the linking section of the first arm and of the
`second arm is configured to bend relative to the trunk section.”); id. at Claim 11, col. 10,
`ll. 6-8 (“the linking section waist being configured to bend relative to the trunk section
`without deforming the through hole”). But certain claims also indicate that an arm is not
`required to have a linking section or a waist. See ’253 Patent, Claim 1, col. 11, ll. 47-
`49 (describing “an elongate central trunk portion having . . . at least one pair of
`divergent arms, each arm including a threaded screw hole” with no mention of a linking
`section or a waist); id. at Claim 7, col. 11., ll. 25-26 (“The orthopedic plate as set forth
`in claim 1, wherein each arm of the pair of divergent arms includes a waist”); id. at
`Claim 8, col. 11, ll. 27-29 (“The orthopedic plate set forth in claim 7, wherein . . . a first
`arm and a second arm each hav[e] a linking section. . . .”). “The inclusion of such a
`specific limitation” on a claim term in a dependent claim “makes it likely that the
`patentee did not contemplate that the [claim term] already contained that limitation.”
`Phillips, 415 F.3d at 1324. There is no indication in the patents that an arm that does
`not contain a waist or linking section would be configured to bend without deforming its
`screw holes. See TurboCare Div. of Demag Delaval Turbomachinery Corp. v. General
`Elec. Co., 264 F.3d 1111, 1123 (Fed. Cir. 2001) (A limitation from a specific
`embodiment should not be read into a claim, “particularly . . . where another claim
`restricts the invention in the exactly the [same] manner.”).
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`But dependent Claim 4, which depends on Claim 1, describes “[a] surgical plate system
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`as set forth in claim 1 wherein the waist of the linking section of the first arm and of the
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`second arm is configured to bend relative to the trunk section in response to a force
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`applied before or during surgery without deforming the screw hole.” ’457 Patent, Claim
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`4, col. 8, ll. 63-67. That some plate embodiments may have arms that are configured to
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`bend without deformation of the screw holes does not require that each arm have this
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`feature. Accordingly, the Court finds that the language “configured to be bent without
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`deforming any of its screw holes” improperly imports a limitation into the construction of
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`“arm.”
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`The Court finds that defendant has not provided any convincing evidence from
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`the intrinsic record that the claim term “arm” requires a construction other than its plain
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`and ordinary meaning. As set forth above, when claim language “involves little more
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`than the application of the widely accepted meaning of commonly understood words,”
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`construction is relatively straightforward. Phillips, 415 F.3d at 1314. “Generally
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`speaking, [courts] indulge a ‘heavy presumption’ that a claim term carries its ordinary
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`and customary meaning.” CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366
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`(Fed. Cir. 2002). The Court is confident that a jury would be able to ascertain the
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`meaning of “arm” as used throughout the patents by examining the claim language and
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`the specification. Phillips, 415 F.3d at 1315 (the specification language “is always
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`highly relevant to the claim construction analysis” and “the single best guide to the
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`meaning of a disputed term.”); see, e.g., ’457 Patent, col. 5, ll. 43-46 (“The plate . . .
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`also includes at least one set, and preferably two opposing sets of arms. . . . [T]hese
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`sets of arms can be viewed as a set of diagonally opposed short . . . and long arms.”);
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`see also id. at col. 7, l. 9 (“the length of each of the arms will vary”); see also id. at
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`Claim 1, col. 8, ll. 28-29 (“the plate consisting of a trunk and a pair of a first arm and a
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`second arm”). Accordingly, the Court declines to construe this term and finds that it
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`shall have its plain and ordinary meaning.
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`B. Link, linking section, linking portion
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`These related claim terms appear in assorted claims in the ’251, ’252, ’253, ’443,
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`’457, ’846, ’848, and ’954 Patents. The parties’ experts agree that “linking section” and
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`its other various forms do not have one well-defined and universal meaning to a
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`POSITA. Docket No. 134-19 at 5, ¶ 16; Docket No. 143-17 at 6, ¶ 23.
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`Defendant argues that this term, in its various forms, should be construed to
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`mean the “portion of the plate that links two distinct parts of the plate.” Docket No. 134
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`at 15. Plaintiff contends this term needs no construction. Docket No. 143 at 15.
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`Specifically, plaintiff argues that a construction is unnecessary because “the claims
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`themselves already identify the plate features that are connected by a link.” Id. See,
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`e.g., ’252 Patent, Claim 1, col. 11, ll. 54-55 (“the first ear being attached directly to the
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`trunk by a linking section having a waist”); ’253 Patent, Claim 8, col. 12, ll. 28-30 (“a
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`first arm and a second arm each having a linking section joined to the central trunk
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`portion”). In the alternative, plaintiff proposes that the terms should be construed to
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`mean the “portion of the plate between two plate features.” Id.
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`The parties each challenge the other’s construction for the very same reasons:
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`uncertainty in the meaning of “plate features” and “distinct parts.” Docket No. 134 at
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`12
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`17; Docket No. 143 at 15. The Court believes that the proposed constructions create
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`more confusion than clarity and finds that there is no indication in the intrinsic record
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`that the patents use the terms “link,” “linking section,” or “linking portion” in a narrow or
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`specialized manner such that these terms need construction. The plain and ordinary
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`meaning already implies that a linking section “links,” or joins, two separate areas of
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`the plate. Moreover, the Court agrees with plaintiff that the patents themselves
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`adequately set out which portions of the plate are joined by a linking section, see, e.g.,
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`’846 Patent, Claim 1, col. 11, l. 55 (“the arm being joined to the trunk portion by a link”);
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`’954 patent, Claim 1, col. 8, ll. 54-56 (“the second ear being attached to the trunk by a
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`linking section having a waist”), and defendant appears to concede the same. See
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`Docket No. 134 at 16 (“Regardless of which two plate portions were at issue, the
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`patentee used the term to link two distinct parts of the plate.”). The parties’ proposed
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`constructions do not provide any additional clarification as to the meaning of the
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`section “linking portion” that is not already evident in the term’s customary and ordinary
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`meaning and the contexts in which it is used, and the parties have not overcome the
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`presumption that “a claim term carries its ordinary and customary meaning.” CCS
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`Fitness, 288 F.3d at 1366. The Court will not construe the phrase “link,” “linking
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`section,” or “linking portion” because the patent does not give a special meaning to the
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`term that is different from its lay meaning and the jury can determine, as a factual
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`matter, which portions of the plate constitute linking sections.
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`C. Waist, waist area, waist portion
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`These related claim terms appear in assorted claims in the ’251, ’252, ’253, ’443,
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`’457, ’846, and ’954 Patents. Plaintiff contends that no construction is needed to
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`understand the term “waist,” but, if a construction is necessary, it proposes construing
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`“waist” as an “area of the plate that is configured to facilitate bending of the plate.”
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`Docket No. 143 at 16. Defendant agrees that a waist can be configured to facilitate
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`bending of the plate, but challenges plaintiff’s proposed construction as too broad,
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`arguing that it will render any portion of a plate that can bend a “waist.” Docket No. 134
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`at 17-18. It proposes an alternative construction: a “portion of a linking section with a
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`decreased width relative to the non-waist portion of the linking portion.” Id. at 17. The
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`parties’ experts agree that there is no universal meaning of these terms to a POSITA.
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`Docket No. 134-19 at 5, ¶ 16; Docket No. 143-17 at 6, ¶ 23.
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`The parties’ dispute over this term is two-fold. They disagree as to whether a
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`waist must be narrowed relative to the plate’s adjacent portions and, further, whether a
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`waist must be part of a linking section.
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`Plaintiff argues that a waist is not necessarily a narrowed portion of the plate. It
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`contends that the only portions of the specification that describe a narrower waist refer
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`to the waist area of a trunk, and that the “specification never describes the linking
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`sections of the arms in that same manner.” Docket No. 143 at 18.
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`But the specification does refer to the linking sections in the arms as being
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`narrowed: “The arms include a rounded portion 324, 324’ that defines a portion of a
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`circle and has a linking area that has a smaller width than the diameter of the circle.”
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`’457 Patent, col. 10, ll. 9-11. And several claims, in addition to each specification, refer
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`to a “waist-shaped” linking portion, indicating that a waist is not only a specific area of
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`the plate, but also that a waist has a distinct shape. ’457 Patent, col. 2, l. 62; ’251
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`Patent, col.3, l. 57; ’848 Patent, col. 2, ll. 43-44. See also Irdeto Access, Inc. v.
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`Echostar Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004) (“Even when guidance
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`is not provided in explicit definitional format, the specification may define claim terms
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`by implication such that the meaning may be found in or ascertained by a reading of
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`the patent documents.”) (quotation omitted). Moreover, at the claim construction
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`hearing, plaintiff stated that the narrowed area is precisely what helps facilitate bending
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`in the waist, as the thinning of the plate prevents stress fractures from forming when it
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`is bent. Thus, the Court finds that a waist is narrowed relative to the adjacent plate
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`portions.
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`The parties also dispute whether a waist must be part of a linking section. The
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`Court finds that a waist portion is part of a linking section. Plaintiff notes that some
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`claims do not require a “waist” to be part of a linking section. See. e.g., ’457 Patent,
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`Claim 6, col. 9, ll. 3-5 (“the trunk has at least two through holes and a waist area
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`between the through holes which encourages bending of the waist area.”); ’251 Patent
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`Claim 16, col. 12 ll. 60-62 (“the trunk has at least two through holes and a trunk waist
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`area between the through holes”). But the specification related to these claims define
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`these exact areas as being part of a linking section. See ’457 Patent, col. 2, ll. 61-63
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`(“The plate has a central trunk portion including one or more screw holes separated by
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`a waist shaped linking portion along a longitudinal axis”); ’251 Patent, col. 3, ll. 55-58
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`15
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`Case 1:18-cv-00691-PAB-STV Document 281 Filed 09/30/20 USDC Colorado Page 16 of 34
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`(“All of the plates have an elongate central trunk portion including one or more screw
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`holes which are optionally separated by a waist shaped linking portion along a
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`longitudinal axis”). As stated above, the specification “is always highly relevant to the
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`claim construction analysis” and is “the single best guide to the meaning of a disputed
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`term.” Phillips, 415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582). And a POSITA
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`“is deemed to read the claim term not only in the context of the particular claim in which
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`the disputed term appears, but in the context of the entire patent, including the
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`specification.” Id. at 1313. For these reasons, the Court construes “waist” as a
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`“narrowed area of a linking portion that is configured to facilitate bending.”
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`D. Ear
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`This claim term appears in assorted claims in the ’251, ’252, ’457, ’846, ’848,
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`and ’954 Patents. The parties’ experts agree that “ear” does not have one well-defined
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`and universal meaning to a POSITA. Docket No. 134-19 at 5, ¶ 16; Docket No. 143-17
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`at 6, ¶ 23. Plaintiff argues this claim needs no construction. Docket No. 143 at 20.
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`Defendant disagrees. Defendant argues this term should be construed to mean the
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`“thick material surrounding a screw hole that is configured to resist deformation of the
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`screw hole during bending.” Docket No. 134 at 21.
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`The word “ear” does not appear in the specification for any of the nine patents,
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`and no patent figure refers to a specific portion of the plate as the “ear.” The term does
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`appear in the claims, however, and it does so in consistent ways. First, an ear is
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`always part of an arm. See ’251 Patent, Claim 1, col. 11, l. 53 (“the first arm having a
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`first arm linear medial axis and an ear”) . Second, an ear is always attached to – and,
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`16
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`Case 1:18-cv-00691-PAB-STV Document 281 Filed 09/30/20 USDC Colorado Page 17 of 34
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`therefore, not a part of – a trunk. See ’457 Patent, Claim 1, col. 8, ll. 41-42 (“the first
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`ear being attached to the trunk by a linking section having a waist”). And finally, an ear
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`always has at least one screw hole. See ’848 Patent, Claim 1, col. 8, l. 8 (“the first arm
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`having an ear with at least one screw hole”).
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`The specification provides additional insight into the proper construction of “ear.”
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`The specification of the ’846 Patent states that “[t]he arms include a rounded portion
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`324, 324’ that defines a portion of a circle and has a linking area that has a smaller
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`width than the diameter of the circle. Each rounded portion includes a screw hole 326,
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`326’.” ’846 Patent, col. 10, ll. 3-6.
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`Fig. 25, ’846 Patent. In the patent claims, the ’846 Patent – one embodiment of which
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`is demonstrated in Figure 25 – is described as “a pre-contoured Y-shaped plate, . . .
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`the plate consisting of a trunk and a pair of a first arm and a second arm, . . . the first
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`arm having an ear with at least one screw hole, . . . the first ear being attached to the
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`trunk by a linking section having a waist, . . . the second arm having a second ear with
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`at least one second screw hole, . . . the second ear being attached to the trunk by a
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`linking section having a waist.” ’846 Patent, Claim 7, col. 12, ll. 22-47.
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`17
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`Case 1:18-cv-00691-PAB-STV Document 281 Filed 09/30/20 USDC Colorado Page 18 of 34
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`The specification language describing feature 324 aligns with the language
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`describing an “ear” in Claim 7 of the ’846 Patent. This indicates that the 324 feature is
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`an “ear” and, therefore, provides guidance as to the parameters of “ear,” namely, that it
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`is the rounded portion of the arm.
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`The portions of the specifications that defendant cites to in support of its
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`construction of “ear” do not support its argument that an ear must be a thickened area
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`surrounding a screw hole. The specification of the ’457 Patent refers to “the optional
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`thickened annular area surrounding the screw holes which would act to shield these
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`holes against deformation during bending,” ’457 Patent, col. 6, ll. 31-33, and “[t]he
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`increased annular area around the through bores resists deformation when a bending
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`device is used to apply force to the plate through the screw holes.” Id. at col. 5, ll. 40-
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`42. According to defendant, these excerpts provide that an ear must be a thicker area
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`surrounding the screw hole and must be configured to resist deformation during
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`bending.
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`However, the “optional thickened annular area” and the “increased annular area”
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`referenced by defendant refer not to an ear, but to the area surrounding the through
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`hole or a screw hole in a trunk. See id. at col. 5, ll. 32-42 (describing the layout and
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`thickness of the trunk); id. at col. 6, ll. 26-34 (referencing the thickened annular area in
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`relation to the shape of the plate). Because, as set out above, an ear is always part of
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`an arm and always separate from a trunk, this language does not refer to an ear and
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`does not provide support to defendant’s position. Therefo