On March 1, 2017, ALJ Thomas B. Pender issued Order No. 9 construing terms of the asserted patents in Certain Sleep-Disordered Breathing Treatment Mask Systems and Components Thereof (337-TA-1022).

By way of background, this investigation is based on complaint filed by ResMed Corp., ResMed Inc., and ResMed Ltd. (collectively, “ResMed”) alleging violation of Section 337 by Respondents Fisher & Paykel Healthcare Limited, Fisher & Paykel Healthcare, Inc., and Fisher & Paykel Healthcare Distribution Inc. (collectively, “FPH”) in the unlawful importation, selling for importation, and/or selling within the U.S. after importation certain sleep-disordered breathing treatment mask systems and components thereof that infringe one or more claims of U.S. Patent Nos. 8,960,196 (“the ’196 patent”) and 9,119,931 (“the ’931 patent”). See our August 19, 2016 and September 23, 2016 posts for more details on the complaint and Notice of Investigation, respectively.

According to the Order, ALJ Pender found that a person of ordinary skill in the art with respect to the ’196 and ’931 patents would have at least a bachelor’s degree in mechanical engineering, biomedical engineering, or a similar technical field, with at least two years of relevant product design experience.

The first term construed by the ALJ is “openings to removably attach a pair of upper side straps” recited in claim 73 of the ’196 patent. ALJ Pender proposed that this phrase be given its plain and ordinary meaning during the Markman hearing, and both ResMed and FPH agreed. Accordingly, the phrase “openings to removably attach a pair of upper side straps” was given its plain and ordinary meaning.

Likewise, the ALJ proposed that the term “forehead support” in claims 23, 32, 41, 48, 54, 57, 61, 64, and 70 of the ’196 patent be construed to mean “a member to provide support between the mask system and the patient’s forehead” during the Markman hearing. Both ResMed and FPH agreed.

The next term construed by the ALJ is “a similar material” in claim 80 of the ’196 patent. ResMed argued that this term should be construed to mean “a like material,” whereas FPH contended that this claim term is indefinite. ALJ Pender found that “a similar material” is not indefinite “because it has a common understanding to those skilled in the art,” and further, because the specification “provides an example where ‘a similar material’ includes materials with a comparable composition (e.g., polycarbonate) or comparable physical properties (e.g., substantially rigid, non-malleable, plastic material).” The ALJ gave this term its plain and ordinary meaning, which ResMed agreed with at the Markman hearing.

The next claim term construed by the ALJ is “at least partly surrounding the bore” recited in claim 41 of the ’196 patent. ResMed argued that this phrase should be construed as “at least partly enclosing or encircling the bore,” whereas FPH argues that this term is indefinite. ALJ Pender again rejected FPH’s argument and determined that this term means “surrounding the bore greater than zero percent, up to and including one hundred percent,” which is consistent with ResMed’s proposed construction, and which ResMed agreed with at the Markman hearing.

Next, ALJ Pender construed the term “an extension having a plurality of openings” recited in claim 73 of the ’196 patent according to its plain and ordinary meaning, which both ResMed and FPH agreed with during the Markman hearing.

The next term construed by the ALJ is “snap-fit” recited in claims 23, 41, 57, 69, and 73 of the ’196 patent, as well as in claims 5, 22, 26, 28, 33, 37, 43, 46, 51, 53, and 69 of the ’931 patent. ResMed argued that this term should be construed to mean “a connection established when a first component including an undercut or protrusion, is deflected during a joining operation, after which the first component recovers elastically and engages a protrusion or undercut in a second component.” FPH took the position that this phrase should be given its plain and ordinary meaning, which it argued should be “engagement of two components wherein a flexible member of one component is briefly deflected during assembly with a corresponding structure in the second component.” At the Markman hearing, the dispute between the parties focused on whether FPH’s proposed construction could allow other types of mechanical fastenings, such as press fit, friction fit, or mechanical interlocks, to fall within the scope of the claimed “snap-fit.” ALJ Pender found that “the term ‘snap-fit’ is commonly understood by persons having skill in the art” and noted that “although [he is] not considered a person of ordinary skill in the art, [he] could easily identify the buckles on a child’s car seat as a ‘classic’ snap-fit.” The ALJ further stated that [a]ll things being equal, [he] would not construe the claim term ‘snap-fit’ but instead give it its plain and ordinary meaning.” However, because the parties disagree as to how this term should be construed, ALH Pender interpreted “snap-fit” to mean “a connection established between two components wherein a flexible member of one component is briefly deflected during assembly with a corresponding structure in the second component, after which the deflected first component recovers elastically and engages the second component.”

The next term construed by the ALJ is “shroud module” in claims 1, 6, 12, 14, 20, 22, 26, 28, 33-37, 43, 46, 51, 57, 58, 63, and 65 of the ’931 patent. ResMed argued that this term should be construed to mean “a module that partially or fully covers the frame of the cushion module,” whereas FPH asserted that this term should be construed to mean “component of the mask that partially covers, fully covers, or is mounted on a second component of the mask.” ALJ Pender found that the patentee acted as his own lexicographer with respect to this term, and determined that it means “a module that partially or fully covers a second component, such as the frame of the cushion module.”

Next, ALJ Pender construed the phrase “slot or receiving hole adapted to receive one of the upper headgear straps” recited in claims 43 and 51 of the ’931 patent to mean “narrow opening or hole adapted to receive a headgear strap,” which both ResMed and FPH agreed with during the Markman hearing.

The next term construed by the ALJ is “one or more folds” recited in claim 33 of the ’931 patent. ResMed argued that this term should be construed to mean “one or more regions that may be bent, doubled or laid over themselves,” whereas FPH asserted that this term means “one or more portions of the cushion that contain a defined bend point or crease defined by the junction of side walls of fixed length throughout use.” ALJ Pender rejected both parties’ constructions, and interpreted this term in accordance with its plain and ordinary meaning.

Finally, the ALJ construed the term “cushion module” recited in claims 1, 22, 26, 33, 37, 43, 51, 57, and 58 of the ’931 patent. ResMed argued that this term does not need construction, but that if the ALJ determined to construe it, that it should be interpreted as “a module that includes a cushion.” FPH argued that this term should be construed to mean “a one piece component including both a cushion and a frame that cannot be separated from each other.” The parties’ dispute centered on whether the claimed cushion module must be a “one piece component” that “cannot be separated,” as FPH asserted. ALJ Pender disagreed, noting that the claimed “cushion module” can accommodate different styles and sizes of cushions or cushion modules, and that neither the claim language nor the specification requires the “cushion module” to be inseparable from the frame. The ALJ thus construed this term to mean “a component including both a cushion and a frame.”