Defendant also notes that the Federal Circuit has “repeatedly held that claim construction is not restricted to a single event.” Def.'s Obj. 18 (citing Level Sleep LLC v. Sleep No. Corp., 2021 WL 2934816, at *3 (Fed. Cir. July 13, 2021); Conoco, Inc. v. Energy & Env't, Int'l, L.C., 460 F.3d 1349, 1359 (Fed. Cir. 2006). c. Plaintiff's Response

Doc. No. 171, at 33. The Court recognizes the Conoco, Inc. v. Energy Environmental International, L.C., 460 F.3d 1349 (Fed. Cir. 2006), holding that "consisting of" permits the presence of "impurities that a person of ordinary skill in the relevant art would ordinarily associate with a component on the `consisting of' list.'" 460 F.3d at 1360.

Doc. No. 171, at 33. The Court recognizes the Conoco, Inc. v. Energy & Environmental International, L.C., 460 F.3d 1349 (Fed. Cir. 2006), holding that "consisting of permits the presence of "impurities that a person of ordinary skill in the relevant art would ordinarily associate with a component on the 'consisting of list.'" 460 F.3d at 1360.

Adopting their definition of dried fruit would also be inconsistent with the distinction the patentee made between fresh and dried fruit to overcome the initial rejection for obviousness. See Conoco, Inc. v. Energy Envtl. Int'l, L.C., 460 F.3d 1349, 1364 (Fed. Cir. 2006). In essence, the court finds that this is the quintessential case contemplated by the Federal Circuit when it wrote:

Finjan's counterarguments are unpersuasive. First, to the extent Finjan tries to alter its proposed construction of "downloadable-information" on appeal, see Appellant's Br. 27 (arguing that the PTAB's "construction of 'downloadable-information' is overbroad"), its argument is waived, see Conoco, Inc. v. Energy & Envtl. Int'l, L.C., 460 F.3d 1349, 1358-59 (Fed. Cir. 2006) ("[A] party may not introduce new claim construction arguments on appeal or alter the scope of the claim construction positions it took below."). To the extent Finjan argues that the PTAB misunderstood its proposed claim construction, Appellant's Br. 31 (suggesting that the PTAB was "confused"), 32 (suggesting that the PTAB "set up a strawman"), its argument is without merit.

Prosecution history estoppel can occur in two ways: "either (1) by making a narrowing amendment to the claim (‘amendment-based estoppel’) or (2) by surrendering claim scope through argument to the patent examiner (‘argument-based estoppel’)." Conoco, Inc. v. Energy & Envtl. Int’l, L.C. , 460 F.3d 1349, 1363 (Fed. Cir. 2006). With respect to amendment-based prosecution history estoppel, the Supreme Court has recognized that a "patentee’s decision to narrow his claims through amendment may be presumed to be a general disclaimer of the territory between the original claim and the amended claim."

There may be a scenario where a patent's specification or prosecution history give “consisting of” the meaning of “comprising”; our decision in Conoco, Inc. v. Energy & Environmental International noted that “it is not inconceivable that a patentee could break with conventional claim construction and become his own lexicographer,” so as to give “consisting of” an alternative, less restrictive meaning. 460 F.3d 1349, 1359 n.4 (Fed. Cir. 2006). But to overcome the exceptionally strong presumption that a claim term set off with “consisting of” is closed to unrecited elements, the specification and prosecution history must unmistakably manifest an alternative meaning.

Appellant Br. 14 (citing '445 Application, Advisory Action (Apr. 15, 2010), J.A. 596) (emphasis added). Taylor relies on Conoco, Inc. v. Energy & Environmental International, L.C., 460 F.3d 1349 (Fed. Cir. 2006), Norian Corp. v. Stryker Corp., 363 F.3d 1321 (Fed. Cir. 2004), and In re Gray, 53 F.2d 520 (CCPA 1931) for the proposition that the transitional phrase "consisting of" is not absolutely restrictive, and thus his claims should "allow[] unspecified additives that are unrelated to the invention in addition to the listed components." Appellant Br. 13. Taylor also challenges the validity of MPEP § 2111.03, which reads in relevant part: "The transitional phrase 'consisting of' excludes any element, step or ingredient not specified in the claim" (citing In re Gray, 53 F.2d 520 (CCPA 1931) and Ex Parte Davis, 80 U.S.P.Q. 448 (B.P.A.I. 1948)).

Raising this argument for the first time in a motion for judgment as a matter of law more than a year after the jury's infringement verdict was too late. "[L]itigants waive their right to present new claim construction disputes if they are raised for the first time after trial." Conoco, Inc. v. Energy Envtl Int'l, L.C., 460 F.3d 1349, 1359 (Fed. Cir. 2006); see also Abbott Labs. v. Syntron Bioresearch, Inc. 334 F.3d 1343, 1357 (Fed. Cir. 2003). The district court properly declined to revise its claim construction in response to Cordis's argument.

However, any such disclaimer "must be clear." Conoco, Inc. v. Energy Envtl. Int'l L.C., 460 F.3d 1349, 1357 (Fed. Cir. 2006); see also Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002) ("The patentee may demonstrate an intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.") However, this court has cautioned against importing limitations from the specification into the claims. Phillips, 415 F.3d at 1323.