Nor am I convinced that LAR's position is supported by the two cases cited by LAR. In Microthin.com, Inc. v. Siliconezone USA, LLC, 377 Fed. Appx. 8 (Fed. Cir. 2010), the court gave "non-slip" its ordinary meaning of "reduces or prevents smooth sliding action" and held that the patent at issue in that case did not distinguish between sticky and non-sticky characteristics. The real issue before the court was whether the product had "to reduce or prevent smooth sliding motion without being sticky to the touch."

('295 patent, col. 3:35-44) However, the Federal Circuit has declined to find disavowal based on "criticism of a particular embodiment" or general descriptions of what constitutes "the present invention." Thorner, 669 F.3d at 1366; Unwired Planet, 829 F.3d at 1358-59; see also Microthin.com, Inc. v. SiliconeZone USA, LLC, 377 F. App'x 8, 11 (Fed. Cir. 2010). The alleged disavowal in the specification encompasses all ionic tonicity-agents and all ionic excipients, and yet the embodiment described in Table 1 contains the carbomer Carbopol® in combination with sodium hydroxide or hydrochloric acid ('295 patent, col. 4:56-65), which are pH-adjusting ionic excipients according to the '295 patent specification (Id. at col.

"[I]n interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history. . . ." Microthin.com, Inc. v. SiliconeZone USA, LLC, 377 F. App'x 8, 10 (Fed. Cir. 2010) (per curiam) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)) (internal quotation marks omitted); accord Markman, 52 F.3d at 978-79. "There is a heavy presumption that claim terms are to be given their ordinary and customary meaning. Courts are required therefore to 'look to the words of the claims themselves . . . to define the scope of the patented invention.'"

Pictometry repeatedly argues that because the plain and ordinary meaning of the claim terms would be readily apparent to a lay juror, the Court need not undertake claim construction. (See, e.g., Pl.'s Opening Mem. at 14, Docket No. 57 (citing U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997).) See also Microthin.com, Inc. v. SiliconeZone USA, LLC, 377 F. App'x 8, 12 (Fed. Cir. 2010) ("[C]laim terms take on their ordinary and accustomed meanings unless the patentee demonstrated an intent to deviate from the ordinary and accustomed meaning of a claim term by redefining the term or by characterizing the invention in the intrinsic record using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.") (quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002)). Because the terms are disputed, the Court must construe them.