PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN PUMPING BRAS
`
`INV. NO. 337-TA-988
`
`ORDER NO. 11:
`
`INITIAL DETERMINATION GRANTING COMPLAINANT’S
`MOTION FOR SUMMARY DETERMINATION WITH RESPECT
`TO DOMESTIC INDUSTRY AND VIOLATION OF SECTION 337,
`AND REQUEST FOR GENERAL EXCLUSION ORDER
`
`(October 31, 2016)
`
`.
`
`V
`
`On August 30, 2016, Complainant Simple Wishes (“Complainant”) filed a motion for
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`summary determination with respect to domestic industry and violation of Section 337 of the
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`Tariff Act of 1930 (Amended) as well as a request for a General Exclusion Order (“GEO”).
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`(Motion No. 988-005.) Complainant seeks a determination that a domestic industry exists and
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`that there has been importation and a violation of Section 337 by Respondents TANZKY,
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`BabyPreg, and Deal Perfect (collectively “Defaulting Respondents”). On September 9, 2016, the
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`Commission Investigative Staff (“Staff) submitted a response supporting the motion. As of the
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`date of this order, no other party has responded.
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`1
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`

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`PUBLIC VERSION
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`I.
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`BACKGROUND
`
`A.
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`Institution and Procedural History of This Investigation
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`By publication of a notice in the Federal Register on March 14, 2016, pursuant to
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`subsection (b) of section 337 of the Tariff Act of 1930, as amended, the Commission instituted
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`this investigation to determine:
`
`whether there is .a violation of subsection (a)(1)(B) of section 337 in the
`importation into the United States, the sale for importation, or the sale within the
`United States after importation of certain pumping bras by reason of infringement
`of one or more of claims 10, 12, 14~16, and 27—37of the ’O70 patent and claims
`1-3, 5-7, 9 and 19 of the ’247 patent, and whether an industry in the United
`States exists as required by subsection (a)(2) of section 337.
`"
`
`81 Fed. Reg. 13419, 13420 (March 14, 2016).
`
`The complainant is Simple Wishes, LLC of Sacramento, CA. (Id) The respondents are
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`TANZKY of Luohugu, China; BabyPreg of Shenzen Guangdong, China; Deal Perfect of
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`Shenzhen, Guangdong, China; and Buywish of Nanjing Jiangsu, China. (Id.) The Office of
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`Unfair Import Investigations (“Staff”) is participating in this investigation.
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`(Id.) TANZKY,
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`BabyPreg, and Deal Perfect have defaulted.
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`(See Order No. 8 (June 22, 2016); Commission
`
`Determination Not to Review (July 8, 2016).) Buywish was terminated from this investigation
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`based on withdrawal of the complaint as to Buywish due to an inability to effect service and,
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`further, because it appears that Buywish no longer sells the accused product on Amazon.
`
`(See
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`Order No. 9 (July 14, 2016); Commission Determination Not to Review (Aug. 9, 2016).)
`
`In
`
`compliance with 19 C.F.R. § 210.16(c)(2), Complainant included in its Motion a declaration that
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`it would seek a General Exclusion Order (“GEO”).
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`(Mot. at 1). On June 17, 2016, the ALJ
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`granted Complainant’s motion to stay the procedural schedule. (Order No. 7 (June 17, 2016).)
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`2
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`

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`PUBLIC VERSION
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`B.
`
`The Parties
`
`Complainant Simple Wishes, LLC is a California limited liability company with its
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`headquarters in Sacramento, Califomia.
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`(Compl. at 1]21.) Simple Wishes was founded in 2008
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`by four sisters who were also all mothers of young children.
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`(Id.) Simple Wishes designs and
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`sells products in the pumping and nursing bra market.
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`(Id. at {[1]21-23.) One such product is the
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`Simple Wishes’ Hands Free Breast Pump Bra.
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`(Id. at 1]22.) Simple-Wishes’ Hands Free Breast
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`Pump Bra is a particular standout in the pumping bra market. (Id)
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`In 2009, Simple Wishes’
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`Hands Free Breast Pump Bra received the New Parents Guide Seal of Approval.
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`(Id) And in
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`2015, it received a Parent Tested, Parent Approved Award. (Id)
`
`TANZKY is a Chinese company with a business address at Longhua Renming Road,
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`Longhua Jiedao Baohua Road, l73HAO Chaohuilou 5-, 50l(Am_Tang) Luohugu, China. (Id. at
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`1124.) TANZKY makes in China, has others make in China, exports from China to the United
`
`States, and/or imports into the United States for sale certain pumping bras (“TANZKY bras”).
`
`(Id. at 25.)
`
`‘
`
`BabyPreg is a Chinese company with a business address at Room 501 Building l0 Fuxuan
`
`New Village, Dalang Street Office Longhua, BAOAN Shenzhen Guangdong 518000 China. (Id.
`
`at fll26) BabyPreg makes in China, has others make in China, exports from China to the United
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`States, and/or imports into the United States for sale certain pumping bras (“BabyPreg bras”).
`
`(Id. at 27.)
`
`'
`
`Deal Perfect is a Chinese company with a business address at Huanancheng lhaojiaoyi
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`guangchang Slou wanshang, Chuangyeyuan, Shenzhen, Guangdong, China.
`
`(Id. at 1]28.) Deal
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`Perfect makes in China, has others make in China. exports from China to the United States,
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`and/or imports into the United States for sale certain pumping bras (“Deal Perfect bras”).
`
`(Id. at
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`1129.)
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`,
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`3
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`

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`PUBLIC VERSION
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`Buywish is a Chinese company with a business address at 121 Longpan Road
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`XuanWuQu, Nanjing Jiangsu 210009 China.
`
`(Id. at 1]30.) Buywish makes_in China, has others
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`make in China, exports from China to the United States, and/or imports into the United States for
`
`sale certain pumping bras (“Buywish bras”).
`
`(Id. at 1131.)
`
`c.
`
`U.S. Patent No. s,323,0'/0‘
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`U.S. Patent No. 8,323,070 (“the ’070 patent”), entitled “Pumping/Nursing Bra,” issued
`
`on December 4, 2012 based on U.S. Patent Application No. 12/585,829, which itself was filed
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`September 25, 2009.
`
`(’07O Patent at p.1.) The ’O70 patent claims priority to U.S. Provisional
`
`Application No. 61/193,731, which was filed December 19, 2008.
`
`(Id.)
`
`The ’070 Patent
`
`identifies Debra Abbaszadeh of Sacramento, California as the sole inventor, and lists Simple
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`Wishes, LLC—the Complainant in this investigation—as the sole assignee.
`
`(Id) Accordingly,
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`Simple Wishes holds all rights, title, and interest to the ’070 patent.
`
`(Compl. at 1]32.)
`
`D.
`
`The Product at Issue
`
`_ The product at issue is a bra that facilitates hands-free breast pumping.
`
`(Memo. at 72~
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`73.) The bra comprises a panel with two openings, each opening covered with pairs of pieces of
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`fabric on both the inside and the outside of the panel. (Id. at 72-75.) The pieces are arranged in
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`such a way that they act to position and hold a breast pump adjacent to the wearer’s nipple for
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`hands-free pumping.
`
`(Id.) Complainant refers to its product as the Simple Wishes Hands Free
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`Breast Pump Bra. (Id. at 73.)
`
`.
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`Complainant identifies the following three defaulting Respondents as being responsible
`
`_.i_._i
`
`for the importation
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`of three accused products:
`
`- -
`
`A
`
`~> A -
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`1The original complaint in this investigation also asserted U.S. Patent No. 8,192,247. That patent was asserted only
`against Buywish. Because the complaint was withdrawn as to Buywish, (Order No. 9), the ’247 patent is no longer
`within the scope of this investigation.
`
`4
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`­
`

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`PUBLIC VERSION
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`(1) TANZKY (Chinese exporter of TANZKY bras),
`(2) BabyPreg (Chinese exporter of BabyPreg bras),
`(3) Deal Perfect (Chinese exporter of Deal Perfect bras).
`
`(Compl. at 111124~29.) Complainant also originally identified Buywish as being responsible for
`
`the importation from China of its own accused product.
`
`(Id. at 111130-31.)
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`Because the
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`complaint was withdrawn as to Buywish, (Order 9), Buywish is not a Defaulting Respondent for
`
`the purposes of this determination.
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`Based on screenshots of internet product listings, the actual pumping bras being exported
`
`by the Defaulting Respondents appear to be identical. Indeed, the product photos on each listing
`
`appear to be identical, regardless of the identity of the seller. Complainant’s claim charts further
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`support that conclusion, as detailed infira,‘given that each chart is substantially the same for each
`
`accused product, regardless of the identity of the respondent.
`
`II.
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`LEGAL STANDARDS
`
`A.
`
`Summary Determination
`
`Pursuant to Commission Rule 210.18, summary determination “. . . shall be rendered if
`
`pleadings and any depositions, answers to interrogatories, and admissions on file, together with
`
`the affidavits,
`
`if any, show that there is no genuine issue as to any material fact and that the
`
`moving-party is entitled to a summary determination as a matter of law.” 19 C.F.R. § 210.18(b);
`
`see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1322 (Fed. Cir. 2001); Wenger
`
`Mfg,
`
`Inc. v. Coating Machinery Systems, Inc., 239 F.3d 1225, 1231 (Fed. Cir. 2001). The
`
`evidence “must be viewed in the light most favorable to the party opposing the motion . . . with
`
`doubt resolved in favor of the nonmovant.” Crown Operations Int ’l, Ltd. v. Solutia, Iric., 289
`
`F.3d 1367, 1375 (Fed. Cir. 2002); see also Xerox Corp. v. 3Com C0rp., 267 F.3d 1361, 1364
`
`(Fed. Cir. 2001) (“When ruling on a motion for summary judgment, all of the nonmovant’s
`
`'
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`5
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`

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`PUBLIC VERSION
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`evidence is to be credited, and all justifiable inferences are to be drawn in the nonm0vant’s
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`favor.”).
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`“Issues of fact are genuine only ‘if the evidence is such that a reasonable [fact finder]
`
`could retum a verdict for the nonmoving party.”’ Crown Operations Int ’l,Ltd. 289 F.3d at 1375
`
`(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The trier of fact should
`
`“assure itself that there is no reasonable version of the facts, on the summary judgment record,
`
`whereby the nonmovant could prevail, recognizing that the purpose of summary judgment is not
`
`to deprive a litigant of a fair hearing, but to avoid an unnecessary trial.” EM1 Group North
`
`America, Inc. v. Intel C0rp., 157 F.3d 887, 891 (Fed. Cir. 1998).
`
`“Where an issue as to a
`
`material fact cannot be resolved Without observation of the demeanor of Witnesses in order to
`
`evaluate their credibility, summary judgment
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`is not appropriate.” Sandt Technology, Ltd. v.
`
`Resco Metal and Plastics Corp, 264 F.3d 1344, 1357 (Fed. Cir. 2001) (Dyk, C.J., concturing).
`
`“In other words, ‘[s]ummary judgment
`
`is authorized when it is quite clear what the truth is,’
`
`[citations omitted], and the law requires judgment in favor of the movant based upon facts not in
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`genuine dispute.” Paragon Podiatry Laboratory, Inc. v. KLMLaboratories, Inc, 984 F.2d 1182,
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`1185 (Fed. Cir. 1993).
`
`A violation of Section 337 may not be found unless supported by “reliable, probative, and
`
`substantial evidence.” 5 U.S.C. § 556; see also Certain Sildenafil or any Pharmaceutically
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`Acceptable Salt Thereof Such as Sildenafil Citrate and Products Containing Same, Inv. No.
`
`337-TA-489, Com. Op. Remedy, the Public Interest, and Bonding at 4-5 (July 2004).
`
`III.
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`VALIDITY AND ENFORCEABILITY
`
`A patent is presumed valid under 35 U.S.C. § 282.
`
`“In the absence of a challenge to the
`
`validity of a patent, this issue is not reached.” Certain Devices for Connecting Computers Via
`
`_Teleph0neLines, ITC Inv. No. 337-TA-360, Initial Detennination at 2 (May 24, 1994). As there
`
`6
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`.
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`

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`PUBLIC VERSION
`
`are no participating respondents in this investigation, the validity of the ’O7Opatent has not been
`
`challenged. Additionally, Staff does not address the validity of the ’O7Opatent in its response
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`supporting Complainant’s motion for summary determination. Because no evidence to establish
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`invalidity is before the ALJ, and the ’O7Opatent enjoys a statutory presumption of validity, the
`
`ALJ finds that the ’07Opatent is valid and enforceable.
`
`IV.
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`IMPORTATION
`
`Section 337(a)(l)(B) declares unlawful “the importation into the United States, the sale
`
`for importation, or the sale within the United States after importation by the owner, importer, or
`
`consignee, of articles that infringe a valid and enforceable United States patent.” 19 U.S.C.
`
`§ 1337(a)(l)(B). A complainant “need only prove importation of a single accused product to
`
`satisfy the importation element.” Certain Purple Protective Gloves, 337-TA-500, Order No. l7
`
`at 5 (September 23, 2004).
`
`Complainant must establish that the Defaulting Respondents’ products were imported
`
`into the United States, sold for importation, or sold within the United States after importation.
`
`See 19 U.S.C. § l337(a)(l)(B).
`
`Complainant argues that defaulting respondents TANZKY,
`
`BabyPreg, and Deal Perfect “make for import into the United States and/or have others make for
`
`import into the United States, import into the United States, and/or sell after importation into the
`
`United States hands-free pumping bras that infringe the ’070 Patent.” (Mem. at 9.) Staff also
`
`takes the position that “the evidence shows that the importation requirement for finding a
`
`violation of Section 337 has been met for [each] of the Defaulting Respondents_.,’_’_(Staff Resp. at
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`13.) Both Complainant and Staff point to the complaint and its accompanying exhibits as
`
`evidence of importation by the defaulting respondents. Staff summarizes that evidence as
`
`follows:
`
`7
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`

`
`PUBLIC VERSION
`
`Named
`Respondent
`
`TANKZY
`
`BabyPreg
`
`Deal Perfect
`
`Evidence Supporting Relationship between Named Respondents and
`’
`Specific Instances of Importation
`
`Complaint Exhibits 8, 9 and Physical Exhibit 17
`
`Complaint Exhibits 10, 11 and Physical Exhibit 19
`
`Complaint Exhibits 12, 13 and Physical Exhibit 21
`
`(Staff Resp. at l2—13.)
`
`A.
`
`TANZKY
`
`In support of its assertion that TANZKY imports the accused products into the United
`
`States, Complainant points to complaint exhibits 8 and 9, as well as physical exhibit 17.
`
`Complaint exhibit 8 is a receipt from Amazon.com for the sale of a TANZKY pumping bra.
`
`(Compl., Ex. 8.) Complaint exhibit 9 is a photograph of the TANZKY product packaging, which
`
`includes a shipping label showing that the product was shipped from China to the United States.
`
`(Compl., Ex. 9.) Physical exhibit 17 is a sample of the TANZKY bras purchased through
`
`Amazoncom.
`
`(Phy. Ex. 17.) Complainant summarizes this evidence as follows:
`
`Respondent
`
`Infringing-Product
`
`Proof of Importation
`
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`TANZKY
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`
`(Mem. at 10.) Accordingly,
`
`the evidence shows that TANZKY has imported, sold for
`
`C
`
`importation, and/or sold after importation into“the‘Uni’tedStates the accused product.
`
`'
`
`8
`
`

`
`PUBLIC VERSION
`
`B.
`
`BabyPreg
`
`In support of its assertion that BabyPreg imports the accused products into the United
`
`States, Complainant points to complaint exhibits 10 and 11, as well as physical exhibit 19.
`
`Complaint exhibit 10 is a receipt from Amazon.c0m for the sale of a BabyPreg pumping bra.
`
`(Compl., Ex. 10.) Complaint exhibit ll
`
`is a photograph of the BabyPreg product packaging,
`
`which includes a shipping label showing that the product was shipped from China to the United
`
`States.
`
`(Compl., Ex. ll.)
`
`Physical exhibit
`
`l9 is a sample of the BabyPreg bras purchased
`
`through Amazon.com. (Phy. Ex. 19.) Complainant summarizes this evidence as follows:
`
`Respondent
`
`Infringing Product
`
`Proof of Importation
`
`IBPORDINT:
`
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`
`(Mem. at 10.) Accordingly,
`
`the evidence shows that BabyPreg has imported, sold for
`
`importation, and/or sold afier importation into the United States the accused product.
`
`C.
`
`Deal Perfect
`
`In support of its assertion that Deal Perfect impoits the accused products into the United
`
`States, Complainant points to complaint exhibits 12 and 13, as well as physical exhibit 21.
`
`Complaint exhibit 12 is a receipt from Amazon.com for the sale of a Deal Perfect pumping bra.
`
`(Compl., Ex. 12.) Complaint exhibit 13 is a photograph of the Deal Perfect product packaging,
`
`which includes a shipping label showing that the product was shipped from China to the United
`
`9
`
`­
`

`
`PUBLIC VERSION
`
`States.
`
`(Compl., Ex. 13.) Physical exhibit 21 is a sample of the Deal Perfect bras purchased
`
`through Amazon.com. (Phy. Ex. 21.) Complainant summarizes this evidence as follows:
`
`Proof of Importation
`
`‘
`
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`
`Respondent
`
`Infringing Product
`
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`
`(Mem. at 10.) Accordingly,
`
`the evidence shows that Deal Perfect has imported, sold for
`
`importation, and/or sold after importation into the United States the accused product.
`
`In light of the aforementioned evidence, the ALJ finds that the importation requirement
`
`of section 337 has been satisfied.
`
`V.
`
`INFRINGEMENT
`
`Pursuant to the Notice of Investigation, this investigation is a patent-based investigation.
`
`(See 81 Fed. Reg. 13419 (Mar. 14, 2016).) Accordingly, all of the Lmfair acts alleged by
`
`Complainant to have occurred are instances of infringement of the ’070 patent.
`
`A finding of infringement or non-infringement requires a two-step analytical approach.
`
`First, the asserted patent claims must be construed as a matter of law to determine their proper
`
`scope.2" Claim interpretation is a question of law. Markman v. Westview Instruments, Inc., 52
`
`F.3d 967, 979 (Fed. cit. 1995) (en bane), afl’d, 517 us. 370 (1996); Cybor Corp. v. FAS Techs.,
`
`2 Only claim terms in controversy need to be construed, and only to the extent necessary to resolve the controversy.
`Vanderlande Indus. Nederland BVv. Int’! Trade C0mm., 366 F.3d 1311, 1323 (Fed. Ciri 2004); Vivid Tech, Inc. v.
`American Sci. & Er1g’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`l0
`
`

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`PUBLIC VERSION
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`Inc, 138 F.3d 1448, 1455 (Fed. Cir. 1998). Second, a factual detennination must be made as to
`
`whether the properly construed claims read on the accused devices. Markman, 52 F.3d at 976.
`
`A.
`
`Claim Construction
`
`“The words of a claim are generally given their ordinary and customary meaning as
`
`understood by a person of ordinary skill in the art when read in the context of the specification
`
`and prosecution history.” Thorner v. Sony Computer Entm ’tAm. LLC, 669 F.3d 1362, 1365-67
`
`(Fed. Cir. 2012) (citing Phillips v. AWH Corp, 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc)).
`
`In construing claims, the ALJ should first
`
`look to intrinsic evidence, which consists of the
`
`language of the claims, the patent’s specification, and the prosecution history, as such intrinsic
`
`evidence “is the most significant source of the legally operative meaning of disputed claim
`
`language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996); see also
`
`Bell Atl. Network Servs., Inc. v. Covaa’ Comm ’n. Group, Inc, 262 F.3d 1258, 1267 (Fed. Cir.
`
`2001). The words of the claims “define the scope of the. patented invention.” Id. And, the
`
`claims themselves “provide substantial guidance as to the meaning of particular claim terms.”
`
`Phillips, 415 F.3d at 1314. It is essential to consider a claim as a whole when construing each
`
`tenn, because the context in which a term is used in a claim “can be highly instructive.” Id.
`
`Claim terms are presumed to be used consistently throughout the patent, such that the usage of
`
`the tenn in one claim can often illuminate the meaning of the same term in other claims.
`
`Research Plastics,
`
`Inc. v. Federal Pkg. Corp., 421 F.3d 1290, 1295 (Fed. Cir. 2005).
`
`In
`
`addition:_
`
`"
`
`. . . in clarifying the meaning of claim terms, courts are free to use words that do
`not appear in the claim so long as the resulting claim interpretation . . . accord[s]
`with the words chosen by the patentee to stake out the boundary of the claimed
`property.
`
`Pause Tech, Inc. v. TIVO, Inc, 419 F.3d 1326, 1333 (Fed. Cir. 2005).
`
`11'
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`

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`PUBLIC VERSION
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`Idiosyncratic language, highly technical terms, or tenns coined by the inventor are best
`
`understood by reference to the specification. Phillips, 415 F.3d at 1315-16. While the ALJ
`
`construes the claims in light of the specification, limitations discussed in the specification may
`
`not be read into the claims. See Abbott Labs. v. Sandoz, Ina, 566 F.3d 1282, 1288 (Fed. Cir.
`
`2009). Some claim terms do not have particular meaning in a field of art, in which case claim
`
`construction involves little more than applying the widely accepted meaning of commonly
`
`understood words. Phillips, 415 F.3d at 1314. Under such circumstances, a general purpose
`
`dictionary may be of use.3 See Advanced Fiber Tech. (AFT) Trust v. J ‘& L Fiber Servs., Inc.,
`
`674 F.3d 1365, 1374-75 (Fed. Cir. 2012).
`
`Claim terms should generally be given their ordinary and customary meaning except “1)
`
`when a patentee sets out a definition and acts as his own lexicographer, or 2) when the patentee
`
`disavows the full scope of a claim term either in the specification or during prosecution.”
`
`Thorner, 669 F.3d at 1_365.“T0 act as its own lexicographer, a patentee must ‘clearly set forth a
`
`definition of the disputed claim term . . . .”’ Id. (quoting CCS Fitness, Inc. v. Brunswick C0rp.,
`
`288 F.3d 1359, 1366 (Fed. Cir. 2002)). And “[w]here the specification makes clear that the
`
`invention does not include a particular feature, that feature is deemed to be outside . . . the
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`patent,” even if the terms might otherwise be broad enough to cover that feature.
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`Id. at 1366
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`(intemal citation omitted). Thus, if a claim term is defined contrary to the meaning given to it by
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`those of ordinary skill in the art, the specification must communicate a “deliberate and clear
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`preference for the alternate definition. Kumar v. Ovonic Battery C0., 351 F.3d 1364, 1368 (Fed.
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`Cir. 2003). In other words,'the intrinsic evidence must “clearly set forth” or “clearly redefine” a
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`3 Use of a dictionary, however, may extend patent protection beyond that to which a patent should properly be
`afforded. There is also no guarantee that a term is used the same way in a treatise as it would be by a patentee.
`Phillips, 415 F.3d at 1322.
`'
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`.
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`claim term so as to put one reasonably skilled in the art on notice that the patentee intended to so
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`redefine the claim term. Bell Atl., 262 F.3d at 1268. For example, disclaiming the ordinary
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`meaning of a claim term—and thus, in effect, redefining it—can be affected through “repeated
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`and definitive remarks in the written description.” Computer Docking Station Corp. v. Dell, Inc,
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`519 F.3d 1366, 1374 (Fed. Cir. 2008) (citing Watts v. XL Sys., 232 F.3d 877, 882 (Fed. Cir.
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`2000)); see SafeTCare Mfg,
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`Inc. v. TeIe—Made,Inc., 497 F.3d 1262, 1270 (Fed. Cir. 2007)
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`(finding disclaimer of “pulling force” where “the written description repeatedly emphasized that
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`the motor of the patented invention applied a pushing force”).
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`_
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`'
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`When the meaning of a claim temi is uncertain, the specification is usually the first and
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`best place to look, aside from the claim itself, in order to find that meaning. Phillips, 415 F.3d at
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`1315. The specification of a patent “acts as a dictionary” both “when it expressly defines terms
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`used in the claims” and “when it defines terms by implication.” Vitronics, 90 F.3d at 1582. For
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`example, the specification “may define claim terms by implication such that the meaning may be
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`found in or ascertained by a reading of the patent documents.” Phillips, 415 F.3d at 1323. “The
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`construction that stays true to the claim language and most naturally aligns with the patent’s
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`description of the invention will be, in the end, the correct construction.” Id. at 1316. However,
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`as a general rule, particular examples or embodiments discussed in the specification are not to be
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`read into the claims as limitations. Markman, 52 F.3d at 979.
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`The prosecution history “provides evidence of how the inventor and the PTO understood
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`the patent.” Phillips, 415 F.3d at 1317; see also Pass & Seymour, Inc. v. Int’! Trade Comm ’n,
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`617 F.3d 1319, 1327 (Fed. Cir. 2010) (quoting Multifbrm Desiccants, Inc. v. Medzam, Ltd., 133
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`F.3d 1473, 1478 (Fed. Cir. 1998)). The ALJ may not rely on the prosecution history to construe
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`the meaning of the claim to be narrower than it would otherwise be unless a patentee limited or
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`surrendered claim scope through a clear and umnistakablc disavowal. Trading Tech. Inl’l, Inc. v.
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`eSpeed, Inc., 595 F.3d 1340, 1352 (Fed. Cir. 2010) (intemal citations omitted); Vitronics, 90
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`F.3d at 1582—83. For example, the prosecution history may inform the meaning of the claim
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`language by demonstrating how an inventor understood the invention and whether the inventor
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`limited the invention in the course of prosecution, making the claim scope narrower than it
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`otherwise would be. Vilronics, 90 F.3d at 1582-83; see also Chimie v. PPG Indus,
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`Ina, 402
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`F.3d 1371, 1384 (Fed. Cir. 2005) (stating, “The purpose of consulting the prosecution history in
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`construing a claim is to exclude any interpretation that was disclaimed during prosecution”);
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`Microsofl Corp. v. Multi-tech Sys., Inc., 357 F.3d 1340, 1350 (Fed. Cir. 2004) (stating, “We have
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`held that a statement made by the patentee during prosecution history of a patent in the same
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`family as the patent-in-suit can operate as a disclaimer.”). The prosecution history includes the
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`prior art cited, Phillips, 415 F.3d at 1317, as well as any reexamination of the patent. Intermalic
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`Inc. v. Lamson & Sessions Ca, 273 F.3d 1355, 1367 (Fed. Cir. 2001).
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`Differences between claims may be helpful in understanding the meaning of claim terms.
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`Phillips, 415 F.3d at 1314. A claim construction that gives meaning to all the terms of a claim is
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`preferred over one that does not do so. Merck & C0. v. Teva Pharms. USA, Inc., 395 F.3d 1364,
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`1372 (Fed. Cir.), cert. denied, 546 U.S. 972 (2005); Alza Corp. v. Mylan Labs. Inc., 391 F.3d
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`1365, 1370 (Fed. Cir. 2004).
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`In addition, the presence of a specific limitation in a dependent
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`claim raises a presumption that the limitation isinot present in the independent claim. Phillips,
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`415 F.3d at 1315. This presumption of claim differentiation is especially strong when the only
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`difference between the independent and dependent claim is the limitation in dispute. SunRace
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`Roots Enter. Co., v. SR/1MC0rp., 336 F.3d 1298, 1303 (Fed. Cir. 2003). “[C]laim differentiation
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`takes on relevance in the context of a claim construction that would render additional, or
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`different,
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`language in another independent claim superfluous.” AllVoice Computing PLC v.
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`Nuance C0mmc’ns, Ina, 504 F._3d1236, 1247 (Fed. Cir. 2007).
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`Finally, when the intrinsic evidence does not establish the meaning ofa claim, the ALJ
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`may consider extrinsic evidence, i.e., all evidence extemal to the patent and the prosecution
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`history, including inventor testimony, expert testimony and learned treatises. Phillips, 415 F.3d
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`at 1317. Extrinsic evidence may be helpful in explaining scientific principles, the meaning of
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`technical
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`terms, and terms of art. Vitronics, 90 F.3d at 1583; Markman, 52 F.3d at 980.
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`However, the Federal Circuit has generally viewed extrinsic evidence as less reliable than the
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`patent itself and its prosecution history in determining how to define claim terms. Phillips, 415
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`F.3d at 1318. With respect to expert witnesses, any testimony that is clearly at odds with the
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`claim construction mandated by the claims themselves,
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`the patent specification, and the
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`prosecution history should be discounted. Id. at 1318.
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`If the meaning of a claim term remains ambiguous after a review of the intrinsic and
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`extrinsic evidence, then the patent claims should be construed so as to maintain their validity. Id.
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`at 1327. However, if the only reasonable interpretation renders a claim invalid, then the claim
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`should be found invalid, See Rhine v. Casio, Ina, 183 F.3d 1342, 1345 (Fed. Cir. 1999).
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`B.
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`U.S. Patent N0. 8,323,070
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`U.S. Patent No. 8,323,070, entitled “Pumping/Nursing Bra, ” issued on December 4, 2012
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`based on U.S. Patent Application No. 12/585,829, which itself was filed September 25, 2009.
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`The ’070 patent claims priority to U.S. Provisional Application N0. 61/193,731, which was filed
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`December 19, 2008. The ’070 Patent identifies Debra Abbaszadeh of Sacramento, Califomia as
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`the sole inventor, and lists Simple Wishes, LLC—the Complainant in this investigation—as the
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`sole assignee. Accordingly, Simple Wishes holds all rights, title, and interest to the ’O70patent.
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`(Compl. at 7.)
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`_
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`The ‘O70 patent
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`includes 38 claims.
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`(See ’O7O patent at claims 1438.)
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`In this
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`investigation, presently,4 Complainant
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`is asserting claims 10, 12, l4, and 27—37of the ’O70
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`patent against each defaulting respondent.
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`(See Mem. at 11-65.) Claims l0, 27, 32, and 33 are
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`independent claims. (See ’()7()patent at claims 1-38.) The claims at issue read as follows:
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`10. A garment comprising:
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`a planar breast covering panel having a front surface and a back
`surface wherein said planar breast covering panel is provided with
`first and second openings;
`'
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`a first covering concealing said first opening, said first covering
`comprising a first pair of pieces attached to the front of said planar
`breast covering panel and a second pair of pieces attached to the
`back of said planar breast covering panel; and
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`a second covering concealing said second opening, said second
`covering comprising a third pair of pieces attached to the front of
`said planar breast covering panel and a fourth pair of pieces
`attached to the back of said planar breast covering panel;
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`wherein said planar breast covering panel extends around a
`woman's chest with said first opening aligned with a first breast
`and said second opening aligned with a second breast, thereby
`allowing a breast pump to be held adjacent to a nipple of at least
`one of the woman's breasts for hands free pumping.
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`12. The garment in accordance with claim l0, wherein said planar breast
`covering panel completely extends around the women's chest.
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`14. The garment in accordance with claim 10, wherein each of said first
`and second openings are circular and each of said pieces in each of
`said first, second, third and fourth pairs is attached to form a chord,
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`4 On September 20, 20 I6, the ALJ issued an initial determination granting Complainant’s motion to terminate the
`investigation as to claims 15 and 16 of the ’070 patent based on withdrawal.
`(Order No. 10.) Accordingly, those
`claims are no longer a part of this investigation.
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`and further wherein each piece of said first, second, third and
`fourth pairs oppose each piece of its respective pair.
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`15 (Unasserted) The garment in accordance with claim 10, wherein said
`first pair of pieces forms a first meeting of pieces and said second
`pair of pieces form a second meeting of pieces, wherein said first
`meeting of pieces is offset from said second meeting of pieces.
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`27 A bustier to assist in pumping breast milk, comprising:
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`I _
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`a planar breast covering panel having front and back surfaces, said
`planar panel provided with first and second openings;
`.
`‘
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`a first covering provided in front of eachiof said first and second
`openings; and
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`a second covering provided in back of each of said first and second
`openings;
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`wherein said planar breast covering panel extends around a
`woman's chest with said first opening aligned with one of the
`woman's breasts and said second opening aligned with the second
`breast of the woman, thereby allowing separate breast pumps to be
`held adjacent to a nipple of at least one of the woman's breasts for
`hands free pumping.
`
`28 The bustier in accordance with Claim 27, wherein said first covering
`comprises a first pair of pieces provided in front of said first
`opening and a second pair of pieces provided in front of said
`second opening, and further wherein said second covering
`‘comprises a third pair of pieces provided in back of said first
`opening and a fourth pair of pieces provided in back of said second
`opening.
`‘
`
`29 The bustier in accordance with claim 28, wherein each of said first and
`second openings are circular and each of said pieces of said first,
`second, third and fourth pairs are attached to form a chord, and
`further wherein each piece of said first, second, third and fourth
`pairs of pieces oppose the piece of its respective pair.
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`30 The bustier in accordance with claim 29, wherein the chords of said
`first and second pairs are vertical and the chords of said third and
`fourth pairs are horizontal.
`.
`.
`_
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`The bustier in accordance with claim 27, wherein said first covering is
`attached to the front of said planar breast covering panel and said
`second covering is attached to the back of said