09/06/14

Epos Tech. v. Pegasus Tech.: Construing Mechanical and Temporal Terminology


Category: Claim Construction   
 
 
 
By: Jesus Hernandez, Blog Editor/Contributor  
 
TitleEpos Tech. Ltd. v. Pegasus Tech. Ltd., No. 13-1330 (Fed. Cir. Sept. 5, 2014).
Issues
[1: "Drawing Implement"] The district court construed “drawing implement” as “a conventional writing utensil that can be used alone or together with the invention.” […] [It] explained that the language of the claims is “exceedingly broad,” but that the remainder of the patent is not “so broad as to contemplate using something like ‘a piece of charcoal.’” […]
Epos Tech. Ltd. at *7 (internal citations omitted, text added).
[2: “Given Time Interval”] The district court construed “given time interval” as “fixed at a few seconds or less.” […] [It] explained that, “while the words of the claims do not limit the time interval, all evidence suggests there must be some upper-bound to the interval contemplated by the patentee.” […]
Id. at *8-9 (internal citation omitted, text added).
[3: "Marking Implement"] The district court construed “marking implement” as “an implement that has a marker tip (and not a pen tip).” […] It determined that, “while the specifications occasionally reference a ‘pen’ and ‘pen tip,’ the totality of the specifications makes clear that the patentee was merely using those terms as synonyms for a dry-erase marker.”
Id. at *11.
[4: “Temporary Attachment”] The district court construed “temporary attachment” as “an element that can be removed from the device’s ‘retrofittable apparatus.’”
Id. at *14.
Holdings
[1: "Drawing Implement"] Although it is true that the specifications recite embodiments including “conventional” writing implements, there is no clear indication in the intrinsic record suggesting that the claims are limited to “conventional” drawing implements [since the claims do not state the term, and the specification lists multiple drawing implements, only one of which is a “conventional” implement].
Id. at *8 (text added).
[2: “Given Time Interval”] Although the word “given” may indicate that a time interval is fixed, specified, or predetermined by an operator or a programmer, the intrinsic evidence does not limit “given time interval” to “fixed at a few seconds or less[,]” [because the patents do not require an upper bound for a period of time, but rather state that the disclosed periods of time as ‘preferable’ and ‘typical.’]
Id. at *9 (text added).
[3: "Marking Implement"] Given […] broad disclosures [which interchangeably refers to a “marking implement” as either a marker or a per], the district court erroneously construed “marking implement” to require a “marker tip” and to exclude implements with a “pen tip.”
Id. at *11 (text added).

[4: “Temporary Attachment”] The district court’s construction is incorrect because it reads out preferred embodiments [and there is no highly persuasive amount of evidentiary support for such an exclusion].
Id. at *14 (text added).

 
Procedural History
Appellants, Pegasus Technologies Ltd. and Luidia, Inc., own several patents relating to digital pens and receiver devices which, they allege, the Appellees have infringed. Following claim construction of certain terms in the patents, the district court granted summary judgment of noninfringement in favor of Appellees.
Epos Tech. Ltd. at *1.
Pegasus appeals the district court’s construction of “drawing implement” and “given time interval” in the ’565 and ’742 patents, “marking implement” in the ’461 patent, and “temporary attachment” in the ’051 patent.
Id. at *5.
 
 
Legal Reasoning (HUGHES, Bryson)
[1: "Drawing Implement"] and [2: “Given Time Interval”]
Claims at issue
Claim 1 of the ’565 patentA transmitter device for use with a system for digitizing operative strokes of a handheld drawing implement, the drawing implement having a body and an operative tip, the transmitter device comprising:

[…]
a microswitch that is responsive to a force exerted on the operative tip of the draw ng implement towards said housing;

electronic circuitry responsive to said microswitch to affect operation of said transmitter, wherein said electronic circuitry operates said transmitter for a given time interval after said microswitch ceases to indicate a force exerted on said housing towards the operative tip of the drawing implement.

Epos Tech. Ltd. at *5-6.
Claim 2 of the ’742 patentA system for digitizing operative strokes of a drawing implement comprising a body, a back end, and a front end opposite the back end comprising an operative tip, the system comprising:

[…]
a housing comprising a substantially cylindrical opening terminating at a first end, and an inner housing surface having a central bore, the housing receiving a portion of the drawing implement, the operative tip extending through the central bore;

a retainer attachable to a second end of the opening to retain the drawing implement within the housing, the retainer having a spring element for biasing the drawing implement towards the inner housing surface;
[…]

Id. at *6.
[1: "Drawing Implement"] "conventional" improperly read into claimsThe correct construction of the term “drawing implement” should include “a writing utensil that can be used alone or together with the invention.” But the correct construction also should exclude the word “conventional.” The claims themselves only state that a drawing implement must have at least a “body” and an “operative tip.” […] The claims do not state that the “drawing implement” must be “conventional” or exclude a piece of charcoal. Further, the specifications describe drawing implements of “a range of lengths and widths” and of “any size or shape.” […] Also, the specifications expressly disclose a variety of drawing implements such as “conventional writing implements,” a “hand held drawing implement,” a “dry erase marker,” a “red or blue pen,” and an “eraser.” […]
Id. at *7 (internal citations omitted).
[2: “Given Time Interval”] No Specific Time Boundary articulated in Spec.The patents do not require an upper bound of “a few seconds or less” on the “given time interval.” Instead, the patents describe and claim embodiments with time intervals that can “preferably” or “typically” be used and with lower-bound time intervals. […] Although the word “given” may indicate that a time interval is fixed, specified, or predetermined by an operator or a programmer, the intrinsic evidence does not limit “given time interval” to “fixed at a few seconds or less.” By limiting the term “given time interval” to “a few seconds or less,” the district court erroneously imported a limitation from a preferred embodiment. […] Moreover, we have considered EPOS’s arguments regarding its construction of this term, including the indefiniteness arguments, and find them unpersuasive. We thus vacate the district court’s construction of “given time interval.”
Id. at *9 (internal citations omitted).
[3: "Marking Implement"]
Claim at issue: Claim 1 of the ’461 patent A retrofittable apparatus for converting a substantially planar surface into a writing surface for an electronic data capture device, the apparatus comprising:

a unitary sensor array that securely and rigidly fixes a relation between a plurality of sensors and that provides a tracking function to determine the position of a marking implement on the writing surface; and

a means for affixing the unitary sensor array to the substantially planar surface.

Epos Tech. Ltd. at *10-11.
Broad scope of termNothing in the ’461 patent limits a “marking implement” to an implement with “a marker tip (and not a pen tip).” As an initial matter, a pen or pencil—not just a “marker” or an implement with a “marker tip”—can mark surfaces. Moreover, the specification interchangeably refers to a “marking implement” as a “marker” and as a “pen.” […] It also refers to the marking implement’s tip as a “pen tip.” […] And it teaches that the marking implement can perform an “eraser function.” […]
Id. at *11 (internal citations omitted).
[4: “Temporary Attachment”]
Claim at Issue: Claim 1 of the '051 patentA retrofittable apparatus adapted for converting a substantially planar surface into a writing surface for an electronic data capture device, comprising:

a sensor array . . . ; and

a temporary attachment for removably af- fixing said sensor array proximate to said substantially planar surface.

Epos Tech. Ltd. at *13.
Not Enough Evidence to Interpret Claim as Omitting Preferred EmbodimentThe district court’s construction is incorrect because it reads out preferred embodiments. “[A] claim construction that excludes a preferred embodiment . . . is rarely, if ever correct and would require highly persuasive evidentiary support.” […] Here, the district court’s construction reads out preferred embodiments and it is not supported by “highly persuasive” evidence. For example, the sensor array in figure 5 “is affixed to a clip-on bracket.” […] As another example, the sensor array in figure 4 is “associated therewith” to a bracket having a complementary channel to the wall-mounted bracket.
Id. at *14-15 (internal citations omitted).
Conclusion
We vacate the district court’s constructions of “drawing implement,” “given time interval,” “marking implement,” and “temporary attachment,” […]
Epos Tech. Ltd. at *17.
 
 
Contributor Note
This case also discussed infringement. For further reading, click here.
 
 
 
 
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