MEMORANDUM AND ORDER
ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.
Plaintiff ConAgra Foods Food Ingredients Company, Inc. (“ConAgra”) and Defendant Archer-Daniels-Midland Company (“ADM”) are competing manufacturers in the field of agriculture that sell wheat flour to customers who use the flour to manufacture products sold to consumers. ConAgra is the owner of U.S. Patent Nos. 8, 017, 172 (the “ ‘172 Patent”), 8, 252, 360 (the “ ‘360 Patent”), and 8, 404, 298 (the “ ‘298 Patent”), all entitled “Whole Grain Flour and Products Including the Same.” These patents generally claim a whole wheat flour product with the characteristics of white or “refined” flour.
ConAgra alleges that ADM is infringing its ‘172, ‘360 and ‘298 Patents through the making, using, selling, and offering for sale of white whole wheat flour products, including ADM’s Kansas Diamond White Whole Wheat Flour. This matter is currently before the Court on the parties’ request that the Court construe various terms in the ‘172 and ‘360 Patents’ (the “Patents’ ”) claims as a matter of law pursuant to Markman v. Westview Instruments, Inc. The Court has thoroughly considered the information submitted in the parties’ briefs as well as the oral arguments presented at the Markman hearing on May 17, 2013, and construes the disputed terms as set forth below.
I. Legal Standard
The first step in a patent infringement action is to determine the meaning and scope of the asserted patent’s claims. Claim construction is an issue of law for the Court to decide. Only after the Court has properly construed a patent’s claims may it determine whether the accused method or product infringes the claim as properly construed.
The Federal Circuit Court of Appeals set forth a comprehensive guide for claim construction in Phillips v. AWH Corp. In Phillips, the Federal Circuit reiterated that the claims of the patent define the patentee’s invention, and to that end, claim construction begins with the claim language itself. The words of a claim “are generally given their ordinary and customary meaning, ” and “the ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application.” “The claims themselves provide substantial guidance as to the meaning of particular claim terms.” Both “the context in which a term is used in the asserted claim” and “the [o]ther claims of the patent in question” are helpful for understanding the ordinary meaning of a term.
“The claims do not stand alone, but are part of ‘a fully integrated written instrument.’ ”Thus, they must be read in view of the specification, which the Federal Circuit has stated is the primary basis for construing the claims. The specification may reveal a special definition that a patentee has given a claim term that is different from the meaning the term would otherwise possess. In that instance, the patentee’s definition controls. Or, the specification may reveal “an intentional disclaimer, or disavowal of claim scope” by the patentee. In that instance, as well, the patentee’s intention, as expressed in the specification, is dispositive. But, the Federal Circuit has “expressly rejected the contention that if a patent describes only a single embodiment, the claims of the patent must be construed as being limited to that embodiment.”
A court “should also consider the patent’s prosecution history, if it is in evidence.”This consists of “the complete record of the proceedings before the PTO and includes the prior art cited during examination of the patent.” The prosecution history provides “evidence of how the PTO and the inventor understood the patent.” Because, however, the prosecution history is an on-going negotiation between the patentee and the patent examiner, “it lacks the clarity of the specification and thus is less useful for claim construction purposes.” Regardless, the “prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be.”
Finally, a court may rely on extrinsic evidence, which consists of “all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises.” Within this class, dictionaries and treatises may be useful to claim construction. The Federal Circuit has found that technical dictionaries may provide a court a way “to better understand the underlying technology” and the way in which one of skill in art might use the claim terms.” And, extrinsic evidence in the form of expert testimony can provide background on the technology at issue, explain how an invention works, or establish that a particular term in the patent or prior art has a particular meaning in the pertinent field. But, “conclusory, unsupported assertions by experts as to the definition of a claim term are not useful to a court.” Overall, although “extrinsic evidence can shed useful light on the relevant art, . . . it is less significant than the intrinsic record in determining the legally operative meaning of claim language.”
The parties ask the Court to construe thirteen terms from the ‘360 and ‘172 Patents’ claims. The majority of these terms are found in claim 1 of the ‘360 Patent and claim 35 of the ‘172 Patent. Claim 1 of the ‘360 Patent states:
1. A whole grain wheat flour produced from cleaned wheat kernels comprising:
a coarse fraction including primarily bran and germ;
a fine fraction including primarily endosperm;
a particle size distribution such that at least 98 wt % of the whole grain wheat flour is less than or equal to 212 µm; and substantially the same proportions of natural constituents, other than moisture, as the cleaned wheat kernels.
Claim 35 of the ‘172 Patent states:
35. A coarse fraction milled from whole grain wheat kernels, the coarse fraction comprising:
at least 97% by weight bran and germ;
a particle size distribution such that at least about 97% of particles by weight of the coarse fraction are less than 212 micrometers; and substantially the same proportions of natural constituents, other than moisture, as compared to the bran and germ of the whole grain wheat kernels and a measured ash value that is at least 97% of an expected ash value for the whole grain wheat kernels.
The Court has divided the disputed terms into four categories based on the parties’ discussion of them in their briefs. These categories consist of: (1) terms containing the term “fraction;” (2) the numerical limitations; (3) the alleged indefinite terms; and (4) the remaining disputed terms. The Court addresses each term within these categories below.
A. “Coarse Fraction, ” “Fine Fraction, ” and “Fraction”
The parties dispute whether the Court should construe the terms “coarse fraction” and “fine fraction, ” found in claims 1, 14, 27, and 39-42 of the ‘360 Patent, or whether the Court should construe the singular term “fraction.” ConAgra asserts that the terms “coarse fraction” and “fine fraction” are defined by the claims themselves and thus should be given their ordinary and customary meaning. It argues that the real dispute between the parties is the term “fraction” and proposes that the Court construe this term to mean a portion of something. ADM proposes that the term “coarse fraction” means a portion of the wheat kernel that is isolated and separately milled from a fine fraction and that the term “fine fraction” means the endosperm portion of the wheat kernel that is isolated and separately milled from a coarse fraction and has a particle size in which not less than 98% passes through a cloth designated 212 micrometers (U.S. Wire 70).
1. ADM’s Proposed Processing Limitations
ADM’s proposed constructions for the terms “coarse fraction” and “fine fraction” both include the processing limitation that a portion of the wheat kernel is isolated and separately milled. ADM argues that the inclusion of this processing limitation is supported by both the Patents’ specifications and ‘172 Patent’s prosecution history. With regard to the Patents’ specifications, ADM argues that the specifications teach separate fine and coarse fractions because they state in one embodiment that “the coarse fraction being blended with the refined flour constituent, wherein 98% of the particles by weight of the whole grain flour are less than 212 micrometers” and that in an exemplary embodiment “the coarse fraction may be blended with the refined flour constituent.” ADM also cites to a portion of the ‘172 Patent’s specification describing a two-step milling process (a process where the endosperm is separated from the bran and germ and the bran and germ are then further milled to reduce particle size):
For example, the present invention may implement a two-stream milling technique, as shown in FIG. 4, to grind the coarse fraction. In a present embodiment, after the coarse fraction has been separated from the refined flour, the coarse fraction is stabilized. Once the coarse fraction is separated and stabilized, the coarse fraction is then ground through a grinder, preferably a gap mill, to form a coarse fraction having a particle size distribution less than or equal to about 500 micrometers.
ADM also argues that when the Patents describe a single stream milling process, they do not use the phrase “coarse fraction” or “fine fraction.” These terms are only ...