United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
a patent infringement case involving precision agricultural
spraying technology. Plaintiff Capstan AG Systems, Inc. filed
this lawsuit, alleging that defendants Raven Industries, Inc.
and CNH Industrial America, LLC have infringed on two of
plaintiff's patents. The two patents-U.S. Patent Numbers
8, 191, 795 (“the '795 patent”) and 8, 523,
085 (“the '085 patent”)-cover plaintiff's
PinPoint® agricultural spraying technology.
matter comes before the court on the parties' request
that the court construe six terms in the '795 and
'085 patents as a matter of law under Markman v.
Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir.
1995), aff'd, 517 U.S. 370 (1996). The parties
each have submitted claim construction briefs urging the
court to adopt their proposed constructions of the six
disputed terms in the '795 and '085 patents. Doc.
63-1 (defendants' Opening Claim Construction Brief); Doc.
64-3 (plaintiff's Opening Claim Construction Brief). The
parties also have responded to each other's claim
construction briefs. Doc. 72 (plaintiff's Responsive
Markman Brief); Doc. 73 (defendants' Responsive
Claim Construction Brief). The court has considered the
information submitted in the parties' briefs and
responses as well as the oral arguments presented at the
Markman hearing on November 15, 2017, and construes
the six disputed terms in the fashion explained below.
patent must describe the “exact scope of an
invention” so that the patentee secures his or her
right to “‘all to which he [or she] is
entitled'” and informs “‘the public of
what is still open to them.'” Markman v.
Westview Instruments, Inc., 517 U.S. 370, 373 (1996)
(quoting McClain v. Ortmayer, 141 U.S. 419, 424
(1891)). To achieve these objectives, a patent document
contains two distinct elements: (1) a specification which
“describ[es] the invention ‘in such full, clear,
concise, and exact terms as to enable any person skilled in
the art . . . to make and use the same;'” and (2)
one or more claims which “‘particularly poin[t]
out and distinctly clai[m] the subject matter which the
applicant regards as his [or her] invention.'”
Id. (quoting 35 U.S.C. § 112 (further citations
patent's claims define the invention. Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005). “A
claim covers and secures a process, a machine, a manufacture,
a composition of matter, or a design, but never the function
or result of either, nor the scientific explanation of their
operation.” Markman, 517 U.S. at 373 (citation
and internal quotation marks omitted). The claims serve
“to forbid not only exact copies of an invention, but
[also] products that go to the heart of an invention but
avoid[ ] the literal language of the claim by making a
noncritical change.” Id. at 373-74 (citation
and internal quotation marks omitted).
patent infringement case, the court must determine whether
the patent claims cover the alleged infringer's product.
Id. at 374 (citation omitted). To do so, the court
must decide what the words in the claim mean. Id.
(citation omitted); see also Bushnell, Inc. v. Brunton
Co., 673 F.Supp.2d 1241, 1250 (D. Kan. 2009) (explaining
that “[p]roof of infringement requires construction of
the patent claims to determine their scope and comparison of
the construed claims to the accused device.” (citing
Elbex Video, Ltd. v. Sensormatic Elecs. Corp., 508
F.3d 1366, 1370 (Fed. Cir. 2007) (further citations
Federal Circuit Court of Appeals established guiding
principles for claim construction in Phillips v. AWH
Corp., 415 F.3d 1303 (Fed. Cir. 2005). Claim
construction begins by considering the language of the claims
themselves. Id. at 1312 (citing Vitronics Corp.
v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.
1996) (further citations omitted)). When constructing claim
terms, the court generally should give terms their ordinary
and customary meaning. Id. (citation omitted). That
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.” Id. at 1313
(citations omitted). The claims themselves provide
“substantial guidance” for determining “the
meaning of particular claim terms.” Id. at
1314. Both “the context in which a term is used in the
asserted claim” and the “[o]ther claims of the
patent in question” also help the court determine the
ordinary meaning of a term. Id.
patent's claims, however, “do not stand
alone.” Id. at 1315. Instead, the claims
“are part of a fully integrated written instrument
consisting principally of a specification that concludes with
the claims.” Id. (citation and internal
quotation marks omitted). Therefore, the court must read the
claims “in view of the specification, of which they are
a part.” Id. (citation and internal quotation
marks omitted). The Federal Circuit has described the
specification as “the single best guide to the meaning
of a disputed term, ” and “[u]sually it is
dispositive.” Id. (citation and internal
quotation marks omitted).
specification may contain “a special definition given
to a claim term by the patentee that differs from the meaning
it would otherwise possess.” Id. at 1316. When
this occurs, the patentee's definition controls.
Id. Alternatively, the specification “may
reveal an intentional disclaimer, or disavowal, of claim
scope by the inventor.” Id. When this occurs,
the patentee “has dictated the correct claim scope, and
[his or her] intention, as expressed in the specification, is
regarded as dispositive.” Id. (citation
omitted). 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.” Id. at
1323. In the end, the court must construe the claim in a way
that “‘stays true to the claim language and most
naturally aligns with the patent's description of the
invention.'” Id. at 1316 (quoting
Renishaw PLC v. Marposs Societa' per Azioni, 158
F.3d 1243, 1250 (Fed. Cir. 1998)).
court “should also consider the patent's
prosecution history, if it is in evidence.”
Id. at 1317 (citation and internal quotation
omitted). The prosecution history is considered
“intrinsic evidence” and it includes “the
complete record of the proceedings before the [Patent and
Trademark Office (“PTO”)] and includes the prior
art cited during the examination of the patent.”
Id. (citation omitted). Like the specification, the
prosecution history helps demonstrate how the inventor
understood the patent during the process of explaining and
securing the patent. Id. But “because the
prosecution history represents an ongoing negotiation between
the PTO and the applicant, rather than the final product of
that negotiation, it often lacks the clarity of the
specification and thus is less useful for claim construction
purposes.” Id. Still, the prosecution history
may enhance the meaning of the claim language by showing how
the patentee understood the invention and whether the
patentee limited the claim language during the prosecution,
thereby narrowing the scope of the claim. Id.
the court may rely on extrinsic evidence when construing the
claims. Id. (citation omitted). Extrinsic evidence
includes “all evidence external to the patent and
prosecution history, including expert and inventor testimony,
dictionaries, and learned treatises.” Id.
(citation and internal quotation marks omitted). Dictionaries
and treatises can provide useful tools to help a court
determine the meaning of a term to those skilled in the art
in question. Id. at 1318. But the Federal Circuit
has cautioned that extrinsic evidence is less reliable than
the patent and prosecution history. Id. It is useful
only if considered in the context of the intrinsic evidence.
Id. at 1319. The court thus has discretion to admit
and use extrinsic evidence but “should keep in mind the
flaws inherent in each type of evidence and assess that
evidence accordingly.” Id.
parties ask the court to construe the following six terms,
phrases, or clauses from the '795 and '085 patents:
(1) “overall application rate, ” (2) “flow
related individual control value, ” (3) “flow
factor, ” (4) “a controller in communication with
each of the valves, ” (5) “corporate duty cycle
percentage, ” and (6) “normalized duty cycle
disputed terms appear in Claims 1-6, 8-9, 12-14, 16-17, and
34-35 of the '795 patent and Claims 1-4, 6, 8, 12, 14-16,
and 19 of the '085 patent . Doc. 69-1 at 27-28 ('795
patent); Doc. 69-3 at 26-27 ('085 patent). The technology
disclosed in the two patents- described generally-is a system
for spraying liquid agrochemical products (such as
fertilizers and pesticides) on an agricultural field. The
system sprays the agrochemical using a series of valves or
nozzles positioned along a boom attached to a commercial
farming vehicle. The technology disclosed in the two patents
allows agrochemical-application rates to vary “across
the width of the [spraying] system in response to one or more
conditions or parameters that may exist in the field.”
Doc. 69-1 at 18 ('795 patent, col. 1 ll. 59-62); Doc 69-3
at 17 ('085 patent, col. 1 ll. 64-66). For example, as a
tractor carrying a spraying system turns corners in a field,
the nozzles on the outside of the system speed up, while the
nozzles closer to the tractor slow down. To maintain even
coverage of the agrochemical being applied, the flow rate of
the outer nozzles must increase, while the flow rate of the
inner nozzles must decrease. The technology described in the
patents allows the user to adjust the spray rate for each
nozzle to compensate for this phenomenon, while controlling
the amount of product dispensed from the spraying system as a
first of plaintiff's asserted patents to issue was the
'795 patent. The '085 patent is a
“continuation” of the '795 patent, meaning
that it issued from the same original patent application. So,
the written description portions of the two patents are
nearly identical. The differences between the two patents are
found in the patents' claims.
independent claims of the '795 patent and the '085
patent are similar. They both recite a sprayer system with a
controller, individual control values, individual nozzle
control, and a flow factor based on the individual control
values. The patents' dependent claims recite specific,
narrower embodiments of the inventions, including recitations
of specific types of individual control values for use with
specific field conditions.
parties have identified two important differences between the
claims of the two patents. First, the '795
patent's independent claims recite a specific algorithm
for determining the “flow factor.” The '795
patent requires the “flow factor” to be
calculated by: (1) multiplying all of the individual control
values together to create a multiplied value for each valve,
and (2) dividing each resulting multiplied value by an
average of all the multiplied values. The '085
patent's claims contain no such restriction.
Second, the independent claims of the '085
patent require that the system maintain an “overall
application rate.” This limitation is not in the
independent claims of the '795 patent, but it appears in
one dependent claim.
court now turns to address the six disputed claim terms. This
discussion, below, begins by providing the parties'
proposed constructions in table format. The court then
explains the parties' reasoning for their proposed
constructions in the accompanying text. And last, the court
determines the appropriate construction, applying the guiding
principles recited by Part I of this Order.
“overall application rate”
overall application rate
Volume of liquid agricultural product applied
per area of land
The measured total volume of liquid emitted
from all of the valves in the system per unit
of time (measured in volume per time)
parties' dispute about this term questions whether the
claim's application rate is measured in volume per area
or volume per time. Plaintiff asserts the court should
construe this claim as one that measures volume per area
while defendants argue that the claim properly is construed
as measuring volume per time.
relies on three things to support its argument.
First, plaintiff asserts that the
specification's language supports its construction.
Plaintiff contends that the specification explains that
“the flow of the system is independently controlled for
parameters such as application rate (gallons/acre).”
Doc. 69-1 at 18 ('795 patent, col. 1 ll. 22-24). But, as
defendants explain, this passage in the specification refers
to the prior art-not the disclosed invention of these
patents. The “background” section of the
specification begins by explaining that “[c]ommercially
available independent flow and pressure control systems for
dispensing agrochemicals onto fields exist and are well
documented in the prior art.” Id.
('795 patent, col. 1 ll. 14-16) (emphasis added). The
These systems utilize a plurality of solenoid actuated valves
that pulse according to a on/off ratio which determines the
flow from the group of nozzles at any given pressure.
Therefore, the pressure of the system can be controlled for
such parameters as droplet size, system flow capacity, stream
dynamics, injection penetration, etc., while the flow of
the system is independently controlled for such parameters as
application rate (gallons/acre). These systems are
commercially available for agricultural liquid applications
of pest control sprays and crop nutrient systems.
Id. ('795 patent, col. 1 ll. 16-26) (emphasis
added). In context, plaintiff's quoted language refers to
prior art and the systems used by those earlier inventions.
The language is not specific to the disclosed invention.
Thus, this particular sentence does not help the court
construe the disputed term.
also contends that the specification explains the
relationship between flow rate for the valves and overall
application rate for the field-that is, the system varies
flow rates (volume/time) from the valves while maintaining
the overall application rate (volume/area) of the system.
Plaintiff asserts that the specification describes this
relationship in this fashion:
In one particular embodiment, the plurality of valves can be
designed to emit an overall application rate of the
liquid agricultural product based upon volume of the
product per area of land. The controller can be
configured to vary the rate at which the liquid
agricultural product is emitted from each valve based
upon changing flow factors without changing the overall
application rate of the agricultural product.
Id. ('795 patent, col. 2 ll. 37-43) (emphasis
added). But, as defendants correctly assert, this language
describes only one particular embodiment. See Id.
('795 patent, col. 2 ll. 37 (“In one particular
embodiment . . . .”). And, when a specification
discloses multiple embodiments- like this one does-courts
“have interpreted claims to exclude embodiments where
those embodiments are inconsistent with unambiguous language
in the patent's specification or prosecution
history.” Sinorgchem Co., Shandong v. Int'l
Trade Comm'n, 511 F.3d 1132, 1138 (Fed. Cir. 2007);
see also Alloc, Inc. v. Int'l Trade Comm'n,
342 F.3d 1361, 1370 (Fed. Cir. 2003) (explaining that courts
must examine “whether the specification refers to a
limitation only as a part of less than all possible
embodiments or whether the specification read as a whole
suggests that the very character of the invention requires
the limitation be a part of every embodiment.”). As
explained below, the specific embodiment that plaintiff
references here conflicts with other language in both the
specification and the prosecution history. The other language
unambiguously describes the overall application rate as
something based on volume per time.
plaintiff asserts that the claim language supports its
construction. Plaintiff contends that the '795 patent
recites the concept of “valve flow rate” in Claim
1 and introduces “overall application rate” in
Claim 2. Claim 2 reads:
2. A system as defined in claim 1, wherein
the plurality of valves emit an overall application
rate of the liquid agricultural product and wherein the
controller is configured to vary the rate at which the liquid
agricultural product is emitted from each valve based on
changing flow factors without changing the overall
Id. at 27 ('795 patent, Claim 2) (emphasis
added). Plaintiff asserts that the inventor combined the two
concepts into a single claim in the '085 patent. Claim 1
of the '085 patent reads:
1. A system for applying liquids, the system
a plurality of individually controlled valves that are
configured to emit liquid at an overall application
rate based on volume per time; and
a controller in communication with each of the valves, the
controller being configured to receive a plurality of flow
related individual control values for each valve, the
controller being further configured to determine a flow
factor for each valve based on the individual control values,
wherein the controller is configured to vary the rate at
which the liquid is emitted from each valve as the flow
factor for each valve changes without changing the
overall application rate.
Doc. 69-3 at 26 (Claim 1) ('085 patent, emphasis added).
Plaintiff contends that Claim 1 of the '085 patent
describes the relationship between the “valve flow
rate” and the “overall application rate, ”
and thus supports its proposed construction. According to
plaintiff, Claim 1 shows that the “overall application
rate” is based on the “valve flow rate” and
that the system is configured to vary the “valve flow
rate” in a way to maintain the “overall
application rate.” But the plain language of the claim
doesn't say that. As defendants assert, plaintiff's
argument asks the court to reach its proposed construction
based solely on an attorney's argument-something the
court cannot do. See, e.g., Verinata
Health, Inc. v. Ariosa Diagnostics, Inc., 830 F.3d 1335,
1341 (Fed. Cir. 2016) (rejecting a party's proposed
interpretation of an agreement because it had presented no
extrinsic evidence to support it, just attorney argument)
(citation and internal quotation marks omitted)); Va.
Innovation Scis., Inc. v. Samsung Elec. Co., Ltd., 614
F. App'x 503, 511 (Fed. Cir. 2015) (explaining that when
a court construes a patent's claim terms “attorney
arguments are not relevant intrinsic or extrinsic
evidence”); Phillip M. Adams & Assocs., LLC v.
Dell, Inc., No. 1:05-cv-64 TS, 2008 WL 7959085, at *23
(D. Utah Sept. 29, 2008) (finding that it is
“insufficient” for plaintiff to offer “only
pure attorney argument” to support its proposed
construction of a claim term).
plaintiff asserts that defendants have argued to the PTO and
in their Invalidity Contentions that “overall
application rate” is a rate expressed in volume per
unit area. So, plaintiff contends, the court should preclude
defendants from making the opposite argument in their claim
construction brief here. The court disagrees. Defendants may
have made certain arguments in other proceedings, but those
arguments are specific to those particular proceedings-not
the claim construction at issue here. See Doc. 69-8
at 15 (reciting in defendants' Petition for Inter
Partes Review filed with the PTO that defendants were
asserting a certain construction “for purposes of this
inter partes review”); see also Doc.
69-11 at 2 (asserting in defendants' Invalidity
Contentions that its contentions “are not, and should
not be seen as, admissions or adoptions as to any particular
claim scope or claim construction”). Also, even if the
court could consider defendants' arguments elsewhere as
some form of extrinsic evidence supporting plaintiffs claim
construction, such evidence is certainly “less
reliable” than the patents and their prosecution
history. Phillips, 415 F.3d at 1318.
contrast, defendants' arguments assert that the court
should adopt their proposed construction because the plain
language of the claims supports it. The court agrees.
Defendants assert that the claim language expresses the
overall application rate as a rate based on volume per time
in three separate places:
• “A system for applying liquid agricultural
products to a field comprising ] a plurality of individually
controlled pulse width modulated valves that are configured
to emit a liquid agricultural product at a rate based on
volume per time . . . .” Doc. 69-1 at 27 ('795
patent, Claim 1) (emphasis added).
• “A system for applying liquids, the system
comprising [ ] a plurality of individually controlled valves
that are configured to emit liquid at an overall
application rate based on volume per time . . . ”
Doc. 69-3 at 26 ('085 patent, Claim 1) (emphasis added).
• “. . . the plurality of valves being configured
to emit liquid at an overall application rate based on
volume per time” Doc. 69-3 at 26 ('085 patent,
Claim 14) (emphasis added).
counters, arguing that the first two examples don't apply
here because they discuss valve flow rate-not overall
application rate. But the claim language won't support
plaintiffs reading. The first passage never explains whether
it is discussing valve flow rate, overall application rate,
or something else. But the second passage unambiguously
states that the “values . . . are configured to emit
liquid at an overall application rate based on volume per
time . . . .” Doc. 69-3 at 26 ('085 patent,
Claim 1) (emphasis added). Plaintiff also can't avoid the
plain and unambiguous language of Claim 14 in the '085
patent. It explicitly and specifically discloses a
“method for applying liquids using a plurality of
individually controlled valves, the method comprising . . .
an overall application rate based on volume per
time.” Id. (emphasis added). If these
particular claims are meant to describe valve flow rate, then
the inventor could have said as much-expressly-in the claim
language. But the inventor didn't. Instead, the plain
language of the '085 patent expressly discloses “an
overall application rate based on volume per time.” A
natural and plain reading of this language conveys the idea
that the “overall application rate” is something
“based on volume per time” and not volume per
also cite the specification to support their proposed
construction. Summarizing the invention, it provides:
“The plurality of individually controlled valves are
configured to emit the liquid agricultural product at a rate
of volume per time.” Doc. 69-1 at 18 ('795 patent,
col. 2 ll. 7-10). Again, this language doesn't specify
whether it refers to valve flow rate or overall application
rate. But, in the'085 patent-a continuation of the
'795 patent-the inventor clarified in the claim language
that the “plurality of individually controlled
valves” are configured to emit agrochemical “at
an overall application rate based on volume per time.”
Doc. 69-3 at 26 ('085 patent, Claims 1 & 14). Reading
the '085 patent's claim language and the
specification together supports defendants' proposed
defendants assert, the patent's file history shows that
the patent's applicant affirmatively adopted and
communicated defendants' proposed construction to the
Examiner to overcome a prior art rejection. During the
application process, the applicant submitted an amendment in
response to non-final PTO action. Doc. 69-4 at 108-115. It
amended Claim 1 to require “a plurality of valves
configured to emit liquid at an overall application rate
based on volume per time.” Id.
at 112. As
defendants note, evidence of an amendment to overcome a prior
art rejection is highly significant. See Convolve, Inc.
v. Compaq Computer Corp., 812 F.3d 1313, 1322-23 (Fed.
Cir. 2016) (“In determining the scope of the claims, we
. . . pay[ ] particular attention to the examiner's focus
in allowing the claims after amendment. When an amendment is
made during the reexamination proceedings to overcome a prior
art rejection, that is a ‘highly influential piece of
prosecution history.'” (quoting Laitram Corp.
v. NEC Corp., 163 F.3d 1342, 1348 (Fed. Cir. 1998)
(further citation omitted))).
responds to defendants' arguments supporting their
proposed construction by asserting that one having ordinary
skill in the art would understand that “overall
application rate” means the rate at which an
agrochemical is applied on a volume per acre basis-and not
volume per time, as defendants assert. Plaintiff's brief
provides several “real world” examples of how
defendants' reading conflicts with how the technology
actually works. Doc. 72 at 23-25. But these descriptions are
simply attorney argument. And they aren't consistent with
the plain language of the patents' claims.
considering the plain language of the claims, the
specification, and the prosecution history, the court
concludes that the intrinsic evidence supports
defendants' proposed construction. The court thus adopts
their construction and construes the term “overall
application rate” to mean: “The measured total
volume of liquid emitted from all of the valves in the system
per unit of time (measured in volume per time).”
“flow related individual ...