Opinion
CIVIL ACTION NO. 2:06cv002.
February 27, 2007
MEMORANDUM OPINION AND ORDER
The Court issues this claim construction opinion and order to construe terms that the parties contend are either in dispute or otherwise require construction.
The plaintiffs, Produits Berger S.A. and Lampe Berger USA, Inc. ("Plaintiffs"), claim that defendants David M. Schemenauer and The Marshall Group, Inc. ("Defendants") infringe six claims in the patent-in-suit, U.S. Patent No. 6,537,061 ("the `061 patent").
For the reasons set forth below, the Court construes the identified claims in accordance with the rulings made in this opinion.
The Patent-In-Suit
The abstract describes an invention concerning a catalytic combustion afterburner made of porous material, comprising in its lower part a substantially axial cavity for receiving a taper designed to convey to the burner a combustible liquid, and in its upper part an annular peripheral zone bearing a catalyst and enclosing a central zone without catalyst forming a vaporizing zone. The afterburner comprises in its upper part an open duct, communicating the cavity upper part with the outside air.
Applicable Law
"It is a `bedrock principle' of patent law that `the claims of a patent define the invention to which the patentee is entitled the right to exclude." Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). In claim construction, courts examine the patent's intrinsic evidence to define the patented invention's scope. See id.; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Communications Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). This intrinsic evidence includes the claims themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips, 415 F.3d at 1312-13; Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1368 (Fed. Cir. 2003).The claims themselves provide substantial guidance in determining the meaning of particular claim terms. Phillips, 415 F.3d at 1314. First, a term's context in the asserted claim can be very instructive. Id. Other asserted or unasserted claims can also aid in determining the claim's meaning because claim terms are typically used consistently throughout the patent. Id. Differences among the claim terms can also assist in understanding a term's meaning. Id. For example, when a dependent claim adds a limitation to an independent claim, it is presumed that the independent claim does not include the limitation. Id. at 1314-15.
Claims "must be read in view of the specification, of which they are a part." Id. (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 978 (Fed. Cir. 1995)). "[T]he specification `is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'" Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own terms, give a claim term a different meaning than the term would otherwise possess, or disclaim or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor's lexicography governs. Id. Also, the specification may resolve ambiguous claim terms "where the ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to permit the scope of the claim to be ascertained from the words alone." Teleflex, Inc., 299 F.3d at 1325. But, "although the specification may aid the court in interpreting the meaning of disputed claim language, particular embodiments and examples appearing in the specification will not generally be read into the claims." Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998); see also Phillips, 415 F.3d at 1323. The prosecution history is another tool to supply the proper context for claim construction because a patent applicant may also define a term in prosecuting the patent. Home Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) ("As in the case of the specification, a patent applicant may define a term in prosecuting a patent.").
Although extrinsic evidence can be useful, it is "less significant than the intrinsic record in determining `the legally operative meaning of claim language.'" Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand the underlying technology and the manner in which one skilled in the art might use claim terms. However, technical dictionaries and treatises may provide definitions that are too broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid a court in understanding the underlying technology and determining the particular meaning of a term in the pertinent field, but an expert's conclusory, unsupported assertions as to a term's definition are entirely unhelpful to a court. Id. Generally, extrinsic evidence is "less reliable than the patent and its prosecution history in determining how to read claim terms." Id.
The Terms
The Court adopts the parties' construction where agreed. The Court will construe the remaining disputed terms which the parties agree require construction: (1) "With a wick to convey a combustible liquid to the burner"; (2) the "Separated" Limitation; (3) "Annular Peripheral Zone"; (4) "The Open Channel"; (5) Claim 5; (6) Claim 7; (7) Claim 8; (8) Claim 12; (9) Claim 14 — the "Wick" Limitation; (10) Claim 14 — the "Annular Peripheral Zone"; and (11) Claim 14 — "Fixed into the Neck of Said Flask" and "Resting on a Base."1. With a wick to convey a combustible liquid to the burner
The clause "with a wick to convey a combustible liquid to the burner" is found in phrase 4 of claim 1. There are two disputes associated with this phrase, namely: (1) whether the "liquid" is a required limitation of the claim; and (2) whether Defendant's proposed language of "This term may not be construed to encompass a wick that extends through the cavity to the upper surface of the catalytic combustion burner" should be added as a negative limitation. The Court looks at each of these in turn.
The Combustible Liquid
Plaintiffs assert that the combustible liquid is not itself part of the claimed invention and contend that the present invention relates primarily to the configuration of the catalytic burner stone, not in any way to the combustible liquid. Plaintiffs argue this is evident from the claim itself, which merely calls for a wick "to convey" the liquid but does not require presence of the liquid itself. Further, according to Plaintiffs, it is clear from the specification that there is nothing new or unique about the combustible liquid mixture in the context of the present invention.
Defendants, on the other hand, argue that the combustible liquid prominently referenced in claim 1 must be construed as a required limitation on the claim. Defendants point to the prosecution history, including a response to an Office Action by the Patent Office dated May 3, 2002, wherein the Applicants for what became the `061 patent amended certain claims because of substantive rejections based upon the prior art. See Doc. No. 58, Ex. 3, at PB0238. Specifically, Defendants cite the Applicants' statement that "claim 12 has been amended to further define features relating to the combustible liquid penetrating into the pores of the burner . . ." as support that features relating to the liquid comprised a patentable distinction over the cited prior art. Id.
While the Court disagrees with Defendants that the Applicants distinguished their invention based upon the combustible liquid, the Court does find that the combustible liquid comprises a required limitation in claim 1. French Patent Publication FR 2 530 144 was applied by the examiner during prosecution of the patent which matured into the `061 patent. The examiner initially rejected claim 12 of the application, which became claim 1 of the `061 patent, on the basis that the invention was made to modify the burner of FR 2 530 144 to incorporate the annular groove of EPO 0 277 875 as the structure of the burner, including the annular cavity that serves to prevent encrustation of the wick due to carbon particle build-up. Id. at PB0252. In response to the office action, the Applicants specifically claimed that the "catalytic combustion burner as defined in amended claim 12" was distinguished from the prior art "by the presence of at least one open channel located in the upper part of the burner . . ." Id. at PB0238-39. Thus, in accordance with the Applicants' position during prosecution, the Court finds that the open channel catalytic combustion burner distinguished the invention over the apparatus disclosed in FR 2 530 144. Nevertheless, the fact that Applicants amended claim 12 to further define "features relating to the combustible liquid penetrating into the pores of the burner" lends support to the idea that the liquid is a limitation.
Claim 1 of the `061 patent references the "combustible liquid" twice within phrase 4: (1) "a wick to convey a combustible liquid;" and (2) "said combustible liquid penetrating into the pores of said burner's porous material . . ." `061 patent, claim 1, 5:37-39. While it is true, as Plaintiffs argue, that there is nothing new or unique about the combustible liquid mixture in the context of the present invention, it is also true that the claim language references the liquid and makes it clear that the liquid performs some function, i.e., being conveyed by the wick and "penetrating" into the pores of the stone. Id. Further, even though the catalytic combustion burner can burn in the absence of combustible liquid or when the burner burns the last quantities of combustible liquid remaining in the flask, it is undeniable that the combustible liquid is an integral part of the invention, as the invention will not work absent "said combustible liquid penetrating into the pores of said burner's porous material."
Accordingly, the Court finds that the "liquid" referenced in claim 1 is itself part of the claimed invention and is, therefore, a required limitation of the claim
The Wick Limitation
Defendants seek to add the limitation, "This term may not be construed to encompass a wick that extends through the cavity to the upper surface of the catalytic combustion burner." Plaintiffs argue no portion of the patent or prosecution history supports such a limitation.
Defendants point to the prosecution history and argue that the Applicants of the `061 patent disavowed a wick extending up and through the cavity of the burner. Defendants point to the same response to the office action referenced above and argue that the Applicants expressly distinguished the positioning of the prior art wicks, i.e., wicks that extended through the upper part of the cavity and were in contact with the atmosphere. See Doc. No. 58, Ex. 3, at PB0240. According to Defendants, because the Applicants expressly disavowed via arguments submitted to the Patent Office for purposes of establishing patentability over the prior art, Plaintiffs are now precluded from asserting a claim construction without such a limitation.
In the response referenced above, the Applicants noted that "FR 2 530 144 discloses a catalytic combustion burner provided with a cavity filled by a wick which extends up to the upper part of this cavity and which is consequently in contact with the atmosphere." Id. (emphasis added). The point made by the patentee was that, in FR 2 530 144, the wick extended to a point where it blocked ingress of air to the cavity. However, the prior art did not solve the problem of wick burning, noting that "the wick which is very close to the catalytic combustion zone will burn and char and carbonize and produce carbon particles." Id. As a result, in the absence of oxygen, the wick in close contact with the stone in the device of FR 2 530 144 would carbonize.
The patent-in-suit did not attempt to solve the problem of wick burning through the positioning of the wicks, as Defendants contend. Rather, the novelty of the present invention is the "presence of at least one open channel located in the upper part of the burner." See Doc. No. 58, Ex. 3, at PB0238-39. The present invention provides the open passage that permits air to enter into the cavity to avoid carbonization. As the Applicants stated, the "presence of at least one open channel is neither disclosed in, or suggested by, either EP 0 277 875 or FR 2 530 144." Id. at PB0239.
The Court finds that the open channel provided the inventive step over the prior art, not the placement or positioning of the wick. Consequently, the Court will not construe the term as requiring the negative limitation asserted by Defendants.
2. Separated
The fifth clause of claim 1 recites that the cavity of the catalytic burner comprises an upper part and opening at the lower end of the burner, the cavity "being separated from the upper surface (10) of the burner (3, 30) by a wall." Plaintiffs propose that the clause should be construed by its plain and ordinary meaning, i.e., that "the cavity is separated from the upper surface by a wall." Defendants, on the other hand, propose an added limitation that "the cavity is completely separated from the burner's upper surface by a wall." In addition, Defendants propose the limitation that "[t]his term may not be construed to encompass a cavity that is only partially separated from the burner's upper surface by a partial wall."
Defendants base their construction on the fact that, consistent with the doctrine of claim differentiation, claim 1 literally requires "a wall," while claim 13 only requires a structure which "shuts off, at least in part, the upper part of the cavity." Claim 13 (an unasserted claim) recites, among other things, that "a central zone shuts off, at least in part, the upper part of the cavity." See `061 patent, claim 13 (emphasis added). According to Defendants, the Applicants knew how to claim a "partial" wall, which, in part, shuts off the upper part of the cavity, as recited in claim 13. Thus, because different words and phrases are used in claims 1 and 13, Defendants urge, there is presumed to be a difference between "wall," as used in claim 1, and the "shuts off, at least in part" language of claim 13, supporting a construction that the wall completely separates the cavity from the burner's upper surface.
Indeed, claim 1 requires that the cavity communicates with the atmosphere by the presence of at least one open channel (8, 33) being situated in the upper part (3b, 30b) of the burner (3, 30). See `061 patent, 5:48-51. Claim 2 adds the limitation that the invention is characterized in that "said channel (8) is substantially axial." Id., 5:52-53. Claim 13, as cited by Defendants, requires the open channel communicating between the cavity and the atmosphere to extend radially. Id., 6:38-43. However, selected terms in two claims may appear different but have the same scope. This does not violate the doctrine of claim differentiation because it is the claims as a whole that are presumed to differ in scope, not merely selected terms of the respective claims. See Tandon Corp. v. U.S. Int'l Trade Comm'n, 831 F.2d 1017, 1023 (Fed. Cir. 1987) (citations omitted). In other words, though claims 1 and 13 may vary in scope, the term "wall" can have the same meaning.
As Defendants acknowledge, Fig. 2 of the specification shows that the annular groove 9 extends axially over a greater distance than the thickness of the wall separating the cavity 6 from the upper surface 10 of the burner. `061 patent, 3:25-28. As illustrated in Fig. 2, the open passage 8 of the invention passes through the wall that separates cavity 6 from upper surface 10. Thus, Defendants' assertion that the wall must completely separate the upper surface from the cavity is contrary to the plain language of the patent.
Defendants' argument that the prosecution history shows a complete separation is also not persuasive. Defendants claim that claim 1, as originally filed with the USPTO, did not contain any language which in any way referred to any structure which separated the cavity and the upper surface of the burner. Doc. No. 58, Ex. 3, at PB0333. Defendants argue that in order to make the claims "conform" with the specification and the application, originally filed claim 1 was cancelled and "new claim 12" was added, which added that "the upper surface was shut off from the cavity, at least in part." Id. at PB0270. In response to a rejection, the Applicants submitted "amended claim 12," which required "a wall" separating the upper surface of the burner from the cavity," which Defendants assert is the same as claim 1 in the `061 patent. Defendants claim the progression of this limitation in claim 1 of the `061 patent shows the Applicants have surrendered any coverage of a partial wall. Defs.' Br., at 19-20.
The Court disagrees with Defendants' reliance on the prosecution history. In the response to the office action dated May 3, 2002, the Applicants distinguished the present invention on the basis of the presence of at least one open channel located in the upper part of the burner. Doc. No. 58, Ex. 3, at PB0238-39. Nowhere in the response did the Applicants submit that the prior art was distinguished by the presence of a full or partial wall. This does not amount to an express or unequivocal disclaimer as Defendants suggest. Middleton, Inc. v. Minn. Mining Mfg. Co., 311 F.3d 1384, 1388 (Fed. Cir. 2002). Because the Court concludes that the prosecution history does not change the plain meaning of the term, the Court finds that no construction is necessary. As plainly set forth in the claim, the Court construes the term separated to mean that the cavity is separated from the upper surface by a wall and will add no further limitation.
3. Annular Peripheral Zone
The sixth clause of claim 1 recites "the burner (3, 30) having an annular peripheral zone (7) carrying a catalyst." Plaintiffs propose that the phrase needs no construction, that the burner has an annular peripheral zone that includes a catalyst. Defendants assert that the construction be narrowed to "an outer circular zone" which includes a catalyst.
Both parties appear to agree that the term periphery and, hence, the term "peripheral" means "the perimeter of a circle or other closed curve; also: the perimeter of a polygon." See Merriam-Webster Online, Doc. No. 58, Ex. 2, at 1-2, Additionally, both parties submit the dictionary definition of "annular," means "a thing in the form of a ring." Id. at 8. Defendants assert that because "peripheral" has an ordinary meaning of the "perimeter" (of some shape) and "annular" has an ordinary meaning of "ring," logic would dictate that the term "annular peripheral" would have an ordinary meaning of "outer circular." To not construe the term as "circular," Defendants argue, is to ignore the word "annular."
The exemplary embodiment of the burner stone illustrated in the patent has a round or circular shape. See `061 patent; Fig. 2; 1:8-10; 3:1-5; Fig. 8; 5:6. The claim is not limited to such a shape, however. Such structures may include circular or round configurations, but are not necessarily limited to such. Accordingly, the Court finds no basis for limiting the claims in such a manner.
4. The Open Channel
The seventh clause of claim 1 recites that the invention is "characterized in that said upper part (24) of the cavity communicates with the atmosphere by the presence of at least one open channel (8, 33), and said channel (8, 33) being situated in the upper part (3B, 30b) of the burner (3, 30)." The parties have agreed that this phrase should be construed to require "At least one open channel is provided in the upper part of the burner so that the upper part of the cavity communicates with the atmosphere through the open channel."
The parties diverge, however, as Defendants seek to impose the limitation that "This term may not be construed to encompass a cavity that is only partially separated from the burner's upper surface by a partial wall." In other words, Defendants submit that the phrase must be limited in a way where the cavity is "completely" separated from the upper part of the burner. Plaintiffs, on the other hand, contend that this portion of the claim does not refer in any way to a "wall" and, thus, provides no basis for asserting such a limitation.
Based upon the above analysis with respect to "wall" in phrase 5, the Court declines to add the negative limitation proposed by Defendants that the claim requires that a wall completely separate the upper surface from the cavity.
5. Claim 5
Claim 5 depends from claim 1 and includes all of the limitations of claim 1. Similar to Phrase 6 from claim 1 discussed above, this claim further recites that the invention comprises "a substantially axial annular groove" which separates "the annular peripheral zone from the central zone." The parties' dispute centers once more on the word "annular." Plaintiffs argue that annular has its ordinary meaning, referring to "a thing in the form of a ring." Defendants assert, more particularly, that claim 5 requires a circular groove.
There is nothing in the claim or the disclosure of the patent that indicates that the annular groove must be circular. As discussed with regard to phrase 6 from claim 1, although the exemplary embodiment is round or circular, see Fig. 2; 1:8-10; 3:1-5; Fig. 8; 5:6, it is inappropriate to limit the claim by imposing a limitation found, not in the claim, but only in the specification or drawing, or only in a preferred embodiment. See Phillips v. AWH Corp., 415 F.3d 103, 1320 (Fed. Cir. 2005). Accordingly, the Court finds no basis for limiting the claim.
6. Claim 7 — "to contain"
Claim 7 depends from claim 1 and adds to the invention a catalytic combustion flask "to contain" a combustible liquid. Plaintiffs argue that the present invention, as recited in claim 1, is a catalytic combustion burner and that claim 7 adds a flask designed to hold the catalytic combustion burner, the flask being present "to contain a combustible liquid." However, Plaintiffs contend that the combustible liquid is not itself a part of the present invention. Defendants, on the other hand, propose that claim 7 should be construed to require a flask containing a combustible liquid.
Because this claim includes all of the limitations of claim 1, the Court finds that the "combustible liquid" is a required limitation of this claim as well. Further, the ordinary language of the claim itself requires "a wick (4) dipping into said liquid . . . See `061 patent, claim 7. As Defendants posit, if the liquid is not there, how can the wick be "dipping" into the liquid? The claim language not only states "a wick (4) to dip;" the claim clearly states "a wick dipping into said liquid." Id. This additional language demonstrating the active tense of the verb "dipping" into the liquid further supports Defendants' position that the liquid is part of the claim.
Thus, as it did in claim 1, the Court finds that the "liquid" referenced in claim 7 is itself part of the claimed invention and is, therefore, a required limitation of the claim
7. Claim 8
Claim 8 further limits claim 7 by reciting that the burner has "a peripheral shoulder" separating a large diameter upper part from a smaller diameter lower part. Plaintiffs assert that the "peripheral" has its ordinary meaning, referring to the external boundary area of a surface or body. Defendants, as in previous arguments, propose that claim 8 must be limited to a combustion burner which includes a circular shoulder. Defendants advance the same argument with respect to claim 8 that they asserted as to claims 1 and 5, that "peripheral" means "the perimeter of a circle or other closed curve; also: the perimeter of a polygon." Further, Defendants note that the claim twice identifies that the additional structure has a "diameter." See `061 patent, 3:15-17. According to Defendants, the ordinary meaning of "diameter" refers to the diameter of a circle and, because "peripheral" means the perimeter of a circle, it logically flows that a proper construction of "peripheral shoulder" would be a "circular shoulder."
The Merriam-Webster Online Dictionary defines "diameter" as "a chord passing through the center of a figure or body," and "the length of a straight line through the center of an object," without limiting such figure to a circle. As the Court has previously opined, the claim is not limited to a round or circular shape as demonstrated in the exemplary embodiment. See Figs. 2, 8; 3:44-46; 5:13-15. The shoulder may include circular or round configurations, but the Court finds no basis for limiting the claim only to such.
8. Claim 12
Claim 12 depends from claim 7 and adds the further limitation "with the burner resting on a base fixed into the neck of said flask." Two terms within claim 12 are disputed: "fixed" and "resting on."
Fixed
Plaintiffs propose a construction that the base "is fixed or `fitted' into the neck of the flask." Plaintiffs note this interpretation is directly supported by the language of the specification and its use of the word "fitted." See `061 patent, 3:66-67.
Defendants seek a stricter construction that the base be "securely fastened" into the neck of the flask. Defendants note that the word "fixed" only appears in claims 12 and 14 and nowhere else in the patent. Thus, Defendants argue, the specification cannot provide any guidance as to any particular meaning intended for the term. Defendants then point to the ordinary meaning of the word "fix" or "fixed" to supply the necessary construction: "to make firm, stable or stationary" or "to give a permanent or final form to." Merriam-Webster Online, Doc. 58, Ex. 2, at 12-13. Thus, Defendants submit, based upon the ordinary meaning of the term "fixed," the term should be construed as requiring the base to be "securely fastened" to the neck.
The specification clearly recites that the base be "fitted" inside the neck of said flask. See `061 patent, 3:67. The specification suggests that the base "can" be crimped around an annular enlargement of the neck. Id., 4:2. While it maybe possible that the invention may allow for a base element that is securely fastened into the neck of the flask, if it is crimped around the neck as described above, it is not a requirement of the invention, and is certainly not required in the recitation of claim 12.
Resting On
Claim 12 also recites that the burner is "resting on" the base. Plaintiffs submit that this requires only that the burner be sitting upon or supported by the base. Defendants propose that the claim should be construed to require that the burner must be positioned in direct contact with the base.
The ordinary meaning of "on" includes a definition of "used as a function word to indicate position in contact with and supported by the top surface of." See Merriam-Webster OnLine, Doc. No. 58, Ex.2, at 5. Reading this definition, alone, would tend to support Defendant's position. However, other definitions attributed to "on" include "used as a function word to indicate position in close proximity with," and "used as a function word to indicate a source of attachment or support," and do not require the "in contact with" language on which Defendants rely. Id. (emphasis added).
The plain language of the claim states that the burner must be "resting on" the base, not "in contact" with the base, as Defendant suggests. Further, each embodiment of the invention disclosed in the `061 patent includes a burner (Fig. 2) held in a support (Fig. 3). The support and the burner are placed within the base (Fig. 4) of a flask. The patent discloses that the burner is resting on the base because it is supported by the base. To require a construction that the burner be in contact with the base is unsupported and inconsistent with the disclosure of the patent.
9. Claim 14 — The "Wick" Limitation
The third clause of independent claim 14 recites that the burner of the invention has "in its lower part a substantially axial cavity (6) with said wick (4) to convey said combustible liquid (2) to the burner." The parties agree that this clause should be construed to mean that "The lower part of the burner has a cavity that extends substantially axially of the burner and which includes the wick for conveying the combustible liquid to the burner."
As they did with regard to phrase 4 of claim 1, Defendants propose the additional limitation, "This term may not be construed to encompass a wick that extends all the way through the cavity." However, for the reasons expressed in the section relating to claim 1, the Court declines to construe the term as requiring the negative limitation asserted by Defendants.
10. Claim 14 — The "Annular Peripheral Zone"
As with respect to phrase 4 of claim 1, the fourth clause of claim 14 discloses "an annular peripheral zone (7) carrying a catalyst." Plaintiffs again assert that the term "peripheral" has its ordinary meaning, referring to an external boundary area of a surface or body which may be circular, polygonal, or some other shape. Defendants assert this phrase should be construed as "an outer circular zone."
The Court agrees, as discussed previously, that Defendants attempt to improperly read into the claim a limitation from the specification. See `061 patent; Fig. 2; 1:8-10; 3:1-5; Fig. 8; 5:6. The claims are not limited to the exemplary embodiment, however, and the Court will not limit its construction to such.
11. Claim 14 — Fixed into the Neck of Said Flask and Resting on a Base
As with respect to claim 12, the parties dispute that this clause should be limited to a base that is "securely fastened" to the flask and a burner that is positioned "in contact with" the base. Defendants first argue that the terms should be construed to require the burner be directly on the base. Further, Defendants urge a limitation that the term "not be construed to encompass a burner which is positioned in contact with a support and the support is positioned in contact with a base."
For the reasons discussed previously, the Court finds only that the burner should be resting on the base, not in direct contact with the base, as Defendants propose. Contrary to Defendants' position, the claim requires only that the burner be supported by the base.
Conclusion
For the foregoing reasons, the Court interprets the claim language in this case in the manner set forth above. For ease of reference, the Court's claim interpretations are set forth in a table attached to this opinion.
So ORDERED and SIGNED. CLAIM TERMS AND PLAINTIFFS' DEFENDANTS' AGREED CLAIM COURT'S ELEMENTS PROPOSED CLAIM PROPOSED CLAIM CONSTRUCTION CONSTRUCTION CONSTRUCTION CONSTRUCTION [Fig. 1; col. 1, lines 3-6, 12-13; col. 2, lines 17-18, 46-47, 50-52, 57-59, 64-65] separated [Fig. 2; col. 3, lines 25-28; Fig. 8; col. 5, line 8] annular peripheral zone [Fig. 2; col. 1, lines 8-10; col. 3, lines 1-5; Fig. 8; col. 5, line 6] [Fig. 2; col. 3, lines 6-9; Fig. 8; col. 5, lines 19-22] annular annular peripheral [Fig. 2; col. 3, lines 22-31; Fig. 8; col. 5, lines 3-5] to contain per se [Fig. 1; col. 1, lines 3-6, 12- 12; col. 2, lines 17-20, 44- 47, 50-52, 57-59, 64-65] peripheral [Figs. 2, 8; col. 3, lines 44- 46, col. 5, lines 13-15] resting on fixed [Fig. 4; col. 3, line 66-col. 4, line 9; col. 4, lines 33-35, 40-45] annular peripheral zone [Fig. 2; col. 1, lines 8-10; col. 3, lines 1-5, 22-31; Fig. 8; col. 5, lines 3-6] resting on fixed [Fig. 4; col. 3, line 66-col. 4, line 4; col. 4, lines 33-35, 40-45]
1. A catalytic combustion This claim is directed to a This claim is directed to a burner (3, 30) in a porous catalytic combustion burner catalytic combustion material comprising made of a porous material. burner made of a porous material. an upper part (3b, 30b) The catalytic combustion The catalytic combustion having an upper surface burner has an upper part burner has an upper part (10) and a lower part (3a, comprising an upper surface, comprising an upper 30a) ended with a-lower and a lower part terminating surface, and a lower part end (3c, 30c), at a lower end. terminating at a lower end. said burner (3, 30) having A cavity within the catalytic A cavity within the catalytic a substantially axial combustion burner extends combustion burner extends cavity (6) along an axis of the burner. along an axis of the burner. with a wick (4) to convey The claimed combination The cavity further includes a The cavity further includes a combustible liquid (2) further includes a wick to wick to convey a combustible a wick to convey a to the burner (3, 30), said convey a combustible liquid to the catalytic combustible liquid to the combustible liquid (2) liquid to the burner. The combustion burner. The catalytic combustion penetrating into the pores combustible liquid, which combustible liquid must be of burner. The combustible of said burner's porous is not itself part of the a type capable of penetrating liquid must be of a type material, invention, should be of a into the burner's porous capable of penetrating type capable of penetrating material. into the burner's porous into the burner's porous material. material. This term may not be construed to encompass a wick that extends through the cavity to the upper surface of the catalytic combustion burner. said cavity (6) The cavity within the The cavity within the burner The cavity within the comprising an upper part burner has an upper part has an upper part and an burner has an upper part (24) and opening at the and an opening at the lower opening at the lower end of the and an opening at the lower end (3c, 30c) of the end of the burner. The burner. The cavity is lower end of the burner. burner (3, 30) and being cavity is separated from the completely separated from the The cavity is separated from the upper upper surface by a wall. burner's upper surface by a from the upper surface surface (10) of the burner wall. by a wall. (3, 30) by a wall, and This term may not be construed to encompass a cavity that is only partially separated from the burner's upper surface by a partial wall. the burner (3, 30) having The burner has an annular The burner has an outer The burner has an annular an peripheral zone which circular zone which includes a peripheral zone which (7) carrying a includes a catalyst. The catalyst. The outer circular includes a catalyst. The catalyst and surrounding annular peripheral zone zone surrounds a central zone annular peripheral zone a central zone (40) with surrounds a central zone which has no catalyst, the surrounds a central zone no catalyst forming a which has no catalyst, the central zone forms a which has no catalyst, the vaporization zone, said central zone forming a vaporization zone. The outer central zone forming a annular peripheral zone vaporization zone. The circular zone and the central vaporization zone. The (7) and said central zone annular peripheral zone and zone are located in the upper annular peripheral zone (40) being located in the the central zone are located part of the burner. and the central zone are upper part (3b, 30b) of at the upper part of the located at the upper part of said burner (3, 30), burner. ("Peripheral" has its the burner. ordinary meaning, referring to the external boundary area of a surface or body. While the exemplary embodiment in the patent has a round or circular ring shape, the claim is not limited to such a shape.) characterized in that said At least one open channel is At least one open channel is At least one open channel upper part (24) of the provided in the upper part of provided in the upper part of is provided in the upper cavity communicates the burner so that the upper the burner so that the upper part of the burner so that with the atmosphere by part of the cavity part of the cavity the upper part of the cavity the presence of at least communicates with the communicates with the communicates with the one atmosphere through the open atmosphere through the open atmosphere through the open channel (8, 33), channel. channel. open channel. and said channel (8, 33) being situated in the This term may not be upper part (3b, 30b) of construed to encompass a the burner (3, 30). cavity that is only partially separated from the burner's upper surface by a partial wall. 2. A burner according to This claim includes all of This claim includes all of claim 1, characterized in the limitations of claim 1 the limitations of claim 1 that said channel (8) is and further requires that the and further requires that substantially axial. open channel extends the open channel extends substantially along an axis substantially along an axis of the burner. of the burner. 3. A burner according to This claim includes all of the This claim includes all claim 1, characterized in limitations of claim 1 and of the limitations of that said channel (8) has a further requires that the claim 1 and further diameter substantially diameter of the open channel requires that the between a quarter and is substantially between ¼ diameter of the open about three-quarters of the and ¾ of the diameter of the channel is substantially diameter of the cavity (6). cavity within the burner. between ¼ and ¾ of the diameter of the cavity within the burner. 4. A burner according to This claim includes all of the This claim includes all claim 1, characterized in limitations of claim 1 and of the limitations of that said channel (8) has a further requires that the claim 1 and further diameter of substantially a diameter of the open channel requires that the quarter to a half of the is substantially ¼ to ½ of the diameter of the open diameter of the cavity (6). diameter of the cavity within channel is substantially the burner. ¼ to ½ of the diameter of the cavity within the burner. 5. A burner according to An annular groove at the This claim includes all of the This claim includes all claim 1, characterized in upper surface of the burner limitations of claim 1 and of the limitations of that said burner separates the annular further requires that a circular claim 1 and further (3, 30) further comprises a peripheral zone (which groove at the upper surface of requires that an annular substantially axial carries a catalyst) from the the burner separates the outer groove at the upper groove (9) central zone. The annular circular zone from the central surface of the burner extending from the upper groove extends substantially zone. The circular groove separates the annular surface (10) of the burner axially with respect to the extends substantially axially peripheral zone (which (3, 30) and upper surface of the burner. with respect to the upper carries a catalyst) from separating the ("Annular" has its ordinary surface of the burner. the central zone. The zone (7) from meaning, referring to a annular groove extends the central zone (40). thing in the form of a ring. substantially axially While the exemplary with respect to the embodiment in the patent upper surface of the has a round or circular ring burner. shape, the claim is not limited to such a shape.) 7. A catalytic combustion A catalytic combustion This claim includes all of the This claim includes all flask (1), a flask according to this claim limitations of claim 1 and of the limitations of combustible liquid (2) the is for further includes a catalytic claim 1 and further neck of which (5) is containing a combustible combustion flask containing a includes a catalytic designed to hold a liquid (which is not part of combustible liquid, and combustion flask combustion catalytic the invention, ), and including a neck which is containing a burner (3, 30) with a wick includes a neck which is designed to hold the catalytic combustible liquid, and (4) dipping into said liquid designed to hold a combustion burner having a including a neck which (2), combustion catalytic burner wick dipping into the liquid. is designed to hold the having a wick dipping into catalytic combustion the liquid. burner having a wick dipping into the liquid. characterized by being The claimed combination The claimed equipped with a burner (3, further includes a catalytic combination further 30) according to claim 1. combustion burner as includes a catalytic recited in claim 1, discussed combustion burner as above. recited in claim 1, as discussed above. 8. A flask according to The burner includes a This claim requires all of the This claim requires all claim 7, with the burner (3, peripheral shoulder limitations of claim 7 and of the limitations of 30) having a separating an upper further requires the catalytic claim 7 and further shoulder (11) separating its part of relatively larger combustion burner includes a requires that the larger diameter upper part diameter from a lower part circular shoulder separating an catalytic combustion (3b, 30b) from its smaller of relatively smaller upper part from a lower part, burner includes a diameter lower part (3a, diameter. ("Peripheral" has wherein the upper part of the peripheral shoulder 30a), its ordinary meaning, burner has a diameter greater separating an upper referring to the external than the diameter of the lower part from a lower part, boundary area of a surface part of the burner. wherein the upper part or body. While the of the burner has a exemplary embodiment in diameter greater than the patent has a round or the diameter of the circular shape, the claim is lower part of the burner. not limited to such a shape.) this shoulder (11) being A support surrounds at least A support surrounds at held by an additional the lower part of the burner, least the lower part of shoulder (12) in a support and includes an additional the burner, and includes (13) surrounding at least shoulder which holds the an additional shoulder the lower part (3a, 30a) of shoulder of the catalytic which holds the the burner (3, 30), combustion burner. shoulder of the catalytic combustion burner. characterized in that the The support extends The support extends support (13) extends downwardly beyond the downwardly beyond the downwards beyond the lower end of the catalytic lower end of the lower end (3c, 30c) of the combustion burner. catalytic combustion burner (3, 30). burner. 9. A flask according to This claim includes all of the This claim includes all claim 8, characterized in limitations of claim 8 and of the limitations of that the support (13) is further requires a tubular claim 8 and further extended downwards, extension of the support requires a tubular beyond the lower end (3c, extending downwardly extension of the support 30c) of the burner (3, 30), beyond the lower end of the extending downwardly by a tubular extension burner. beyond the lower end (20). of the burner. 10. A flask according to This claim includes all of the This claim includes all claim 9, characterized in limitations of claim 9 and of the limitations of that the tubular further requires the tubular claim 9 and further extension (20) has at least extension of the support has requires the tubular one section with a a section which includes a extension of the support constriction (21) to constriction to grip the wick has a section which grip the wick (4) and to and limit the amount of the includes a constriction limit the amount of combustible liquid conveyed to grip the wick and combustible liquid (2) by the wick to the burner by limit the amount of the it conveys to the burner (3, capillary action. combustible liquid 30) by the capillary action conveyed by the wick to of the wick (4). the burner by capillary action. 11. A flask according to This claim includes all of the This claim includes all claim 8, characterized in limitations of claim 8 and of the limitations of that the support (13) further requires the support claim 8 and further contains at least one hole for the catalytic combustion requires the support for (22) enabling the inside of burner includes a hole the catalytic combustion the flask (1) to enabling the inside of the burner includes a hole communicate with the flask to communicate enabling the inside of atmosphere. with the atmosphere. the flask to communicate with the atmosphere. 12. A flask according to A base is fixed or fitted into This claim requires all of the This claim requires all claim 7, with the burner the neck of the flask. The limitations of claim 7 and of the limitations of a base burner rests on the base. further requires a base securely claim 7 and further into the neck of said flask, The base has at least one fastened into the neck of the requires that a base is characterized in that said hole or opening enabling flask and the burner positioned fixed or fitted into the base has at least one hole the inside of the flask to in contact with the base. The neck of the flask. The enabling the inside of the communicate with the base has at least one hole or burner rests on the base. flask to communicate with atmosphere. (The claim opening enabling the inside of The base has at least the atmosphere. requires only that the burner the flask to communicate with one hole or opening rest on, i.e., be supported the atmosphere. enabling the inside of by, the base. There is no the flask to requirement that the burner communicate with the be in contact with the base. atmosphere. In fact, that is contrary to the disclosure of the patent.) 14. A catalytic combustion This claim is for a catalytic This claim is for a flask (1), to contain a combustion flask for catalytic combustion combustible liquid (2) containing a combustible flask for containing a liquid comprising: combustible liquid comprising: the neck of which (5) is The flask has a neck which is The flask has a neck designed to hold a designed to hold a which is designed to combustion catalytic combustion catalytic burner hold a combustion burner (3, 30) with a wick having a wick dipping into catalytic burner having (4) dipping into said liquid the combustible liquid. a wick dipping into the (2), combustible liquid. said combustion catalytic The lower part of the burner The lower part of the burner The lower part of the burner having in its lower has a cavity that extends has a cavity that extends burner has a cavity that part a substantially axial substantially axially of the substantially axially of the extends cavity (6) with said wick burner and which includes burner and which includes the substantially axially of (4) to convey said the wick for conveying the wick for conveying the the burner and which combustible liquid (2) to combustible liquid to the combustible liquid to the includes the wick for the burner (3, 30), and burner. burner. conveying the combustible liquid to the burner. This term may not be construed to encompass a wick that extends all the way through the cavity. in its upper part (3b, 30b) The upper part of the The upper part of the catalytic The upper part of the an catalytic burner has an burner has an outer circular catalytic burner has an (7) carrying a annular peripheral zone zone which carries a catalyst annular peripheral zone catalyst and being which carries a catalyst, and and a central zone with no which carries a catalyst, separated by a a central zone with no catalyst forming a vaporization and a central zone with substantially axial annular catalyst forming a zone. The outer circular zone no catalyst forming a groove (9) extending from vaporization zone. The and the central zone are vaporization zone. The the upper surface (10) of annular peripheral zone and separated by a circular groove annular peripheral zone the burner (3, 30), with a the central zone are which extends substantially and the central zone are central zone (40) with no separated by an annular axially. separated by an annular catalyst forming a groove which extends groove which extends vaporization zone, substantially axially with substantially axially respect to the upper surface from the upper surface of the burner. ("Peripheral" of the burner. has its ordinary meaning, referring to the external boundary area of a surface or body. While the exemplary embodiment in the patent has a round or circular ring shape, the claim is not limited to such a shape.) characterized in that the The central zone shuts off, at The central zone shuts central zone (40) shuts off, least in part, the upper part of off, at least in part, the at least in part, the upper the cavity within the burner. upper part of the cavity part (24) of the cavity (6) At least one open channel is within the burner. At and that said upper part provided in least one open channel (24) communicates with the burner so that the upper is provided in the burner the atmosphere by the part of the axial cavity so that the upper part of presence of at least one communicates with the the axial cavity open channel (8, 33), atmosphere via the open communicates with the channel. atmosphere via the open channel. said channel (8, 33) being The open channel is located The open channel is situated in the upper part in the upper part of the located in the upper part (3b, 30b) of the burner (3, burner. of the burner. 30), and the burner (3, 30) A base is fixed or fitted into A base is securely fastened into A base is fixed or fitted abase (16) into the neck of the flask. The the neck of the flask and the into the neck of the the neck (5) of said flask burner rests on the base. burner positioned in contact flask. The burner rests (1), (The claim requires only with the base. on the base. that the burner rest on, i.e., be supported by, the base. This term may not be construed There is no requirement that to encompass a burner which is the burner be in contact positioned in contact with a with the base. In fact, that support and the support is is contrary to the disclosure positioned in contact with a of the patent.) base. This term must be construed to require the burner to be directly on the base. characterized in that said The base has at least one The base has at least base (16) has at least one hole or opening enabling the one hole or opening hole (19) enabling the inside of the flask to enabling the inside of inside of the flask (1) to communicate with the the flask to communicate with the atmosphere. communicate with the atmosphere. atmosphere.