22
Jan
By Eric Schweibenz
On January 16, 2014, ALJ Thomas B. Pender issued Order No. 8 construing the disputed claim terms of the asserted patents in Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof (Inv. No. 337-TA-890).

By way of background, the investigation is based on a complaint filed by ResMed Corporation, ResMed Incorporated, and ResMed Limited (collectively, “ResMed”) alleging violation of Section 337 by BMC Medical Co., Ltd., 3B Medical, inc, and 3B Products, L.L.C. (collectively, “Respondents”) in the importation and/or sale of certain sleep-disordered breathing treatment systems and components thereof that infringe one or more claims of U.S. Patent Nos. 7,997,267 (the ‘267 patent), 7,614,398 (the ‘398 patent), 7,928,116 (the ‘116 patent), 7,341,060 (the ‘060 patent), 8,312,883 (the ‘883 patent), 7,178,527 (the ‘527 patent), 7,950,392 (the ‘392 patent), and 7,926,487 (the ‘487 patent).  See our July 22, 2013 and August 20, 2013 posts for more details on ResMed’s complaint and the Notice of Investigation, respectively. 

The first and second disputed claim terms were “an aperture extending from the first side to the second side” recited in claims 3 and 9 of the ‘527 patent and “notch” recited in claims 3 and 9 of the ‘527 patent and claims 20 and 21 of the ‘392 patent.  With respect to the term “an aperture extending from the first to the second side,” ALJ Pender agreed with ResMed and the Commission Investigative Staff ( “OUII”) that the ‘527 patent does not require that the aperture have the same shape on both sides.  ALJ Pender also noted that while the disclosed embodiments picture an aperture having a triangular shape on both sides, Respondents did not identify any language in the patent indicating why having the same shape on both sides would be important to the invention.  Additionally, ALJ Pender noted that even though claims 3 and 9 require that the frame and membrane be “generally triangularly shaped,” there are no limitations specifying the shape of the sides of the aperture.  With respect to the term “notch,” ALJ Pender again agreed with ResMed and OUII that, as used in the context of the ‘527 and ‘392 patents, the term has an ordinary meaning that is readily apparent, and noted that there was no support in the intrinsic evidence to support Respondents’ proposed construction of “notch” as a cut out region or that required the “notch” to be narrow.    

The third and fourth disputed claim terms were “channel having an inner wall, an outer wall, and a channel floor” recited in claim 30 of the ‘060 patent, and “respiratory mask assembly” recited in claim 1 of the ‘116 patent and claim 53 of the ‘267 patent.  With respect to the term “channel having an inner wall, an outer wall, and a channel floor,” ALJ Pender agreed with ResMed and OUII that the term did not require construction and should be accorded its plain and ordinary meaning.  ALJ Pender also noted that Respondents had failed to identify any statements in the prosecution history limiting the claim term, and that it would be improper to read limitations from a preferred embodiment into the specification without a clear indication in the intrinsic record that the patentee intended the claims to be so limited.  With respect to the term “respiratory mask assembly,” ALJ Pender agreed with Respondents and OUII that the ‘116 patent makes a clear distinction between a “respiratory mask assembly” and a “patient interface device.”  ALJ Pender noted that while ResMed cited cases warning that claims written in different words may cover substantially the same subject matter, that was not the case in this situation, where distinguishing between the different preamble language used narrowed the scope of the claim in question and where the specification is consistent with the more narrow construction.  Accordingly, ALJ Pender determined that the claims and specification were consistent with a construction of “respiratory mask assembly” as a subset of “patient interface device” and construed the term as “a patient interface assembly that surrounds the nose or nose and mouth of a patient.”

The fifth disputed claim terms were “quick-release elbow assembly,” “quick-release attachment to and detachment from the frame,” “quickly releasable from the frame,” and “quick-release mechanism” recited in claims 32 and 33 of the ‘267 patent.  With respect to all four terms, ALJ Pender agreed with ResMed and OUII that the patentees had not limited the claimed quick release mechanism to the embodiment disclosed in the specification.  Accordingly, ALJ Pender construed the terms to have their plain and ordinary meaning. 

The sixth and seventh disputed claim terms were “gas washout vent” and “diameter” recited in claims 13, 26, and 51 of the ‘487 patent.  With respect to the term “gas washout vent,” ALJ Pender found that the reference to membranes in dependent claims 34, 42, and 62 created a presumption that the membrane limitation was not present in the independent claims.  Additionally, ALJ Pender found that the references to the “present invention” and “this invention” contained in the ‘487 patent were not definitive enough to overcome the presumption of claim differentiation.  Accordingly, ALJ Pender declined to construe “gas washout vent” to be restricted to a thin permeable membrane and found that the term had its plain and ordinary meaning.  With respect to the term “diameter,” ALJ Pender agreed with ResMed and OUII that the term did not require construction and should be accorded its plain and ordinary meaning.  ALJ Pender also noted that Respondents’ precise mathematical definition of the term was not consistent with the language of the ‘487 patent and that according the claim its plain and ordinary meaning would not render the term indefinite, as one of ordinary skill in the art would know that to compare the size of two ends of a hole, one would choose corresponding diameters, whether that is the shortest distance through the center, the longest distance through the center, or some other convenient measure. 

The eighth and ninth disputed claim terms were “base configured to retain a body of liquid therein,” and “a seal disposed between the top cover and the base” recited in claim 1 of the ‘453 patent.  With respect to the term “base configured to retain a body of liquid therein,” ALJ Pender agreed with ResMed and OUII that the term should be interpreted according to its plain and ordinary meaning.  ALJ Pender also noted that adopting the Respondents’ proposed construction would improperly impart a meaning to the word “a” that is inconsistent with its plain meaning.  Additionally, ALJ Pender agreed with ResMed and OUII that the references in the specification to a maximum volume of liquid referred to the entire humidifier or receptacle and not the base.  With respect to the term “a seal disposed between the top cover and base,” ALJ Pender again agreed with ResMed and OUII that the proper construction of the term was its plain and ordinary meaning.  ALJ Pender further noted that Respondents’ arguments linking the term “disposed between” to a “separation” were unpersuasive because, while “disposed” is used to describe the relationship between the top cover, base, and divider, it is also used to describe many other spatial relationships between components in the specification.  As the Respondents had not identified sufficient evidence to read a separation limitation into the claims, ALJ Pender found that the claimed seal could be disposed between the top cover and the base without separating the two.
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