United States District Court, D. Oregon, Portland Division
LIGHTFORCE USA, INC. d/b/a/ NIGHTFORCE OPTICS and NIGHTFORCE USA; and HVRT CORP., Plaintiffs,
LEUPOLD & STEVENS, INC., Defendant.
OPINION AND ORDER
V. ACOSTA UNITED STATES MAGISTRATE JUDGE.
patent case the court must construe the language found in
various patents owned by plaintiff HVRT and licensed by
plaintiff Lightforce USA, Inc., d/b/a Nightforce Optics and
Nightforce USA (collectively "Plaintiffs"). The
patents-in-suit, identified below, disclose a gunsight
reticle containing primary and secondary cross-hairs, as well
as other markings, intended to aid shooters in determining
the proper aiming point. The court conducted a
Markman hearing on the proper construction of
several disputed terms on December 11, 2018. After
consideration of the filings, materials, the evidence and
arguments presented at the hearing, and the supplemental
briefing filed after oral argument, the court construes the
disputed terms as set forth below.
filed this lawsuit alleging defendant Leupold & Stevens,
Inc. ("Leupold") has been, and is still, infringing
on at least one claim of the following
States Patent No. 6, 453, 595, filed March, 6, 2000 (the
'"595 Patent"), entitled Gunsight and
States Patent No. 8, 707, 608, filed July 30, 2012 (the
'"608 Patent"), entitled Apparatus and
Method for Calculating Aiming Point
States Patent No. 8, 966, 806, filed September 12, 2012 (the
'"806 Patent"), entitled Apparatus and
Method for Calculating Aiming Point
States Patent No. 9, 335, 123, filed January 15, 2014 (the
"'123 Patent"), entitled Apparatus and
Method for Aiming Point Calculation.
'608 Patent, the '806 Patent and '123 Patent stem
from a series of continuation and continuation-in-part
applications, including that of the '595 Patent. At this
time, the parties seek the court's direction on the
proper construction of the terms "cross-hair,"
"primary vertical cross-hair," "reticle,"
analysis of a patent infringement action involves two steps:
(1) determination of the meaning and scope of the patent
claims alleged to be infringed; and (2) comparison of the
accused method or product to the properly construed claims.
Markman v. Westview Instruments, Inc., 52 F.3d 967,
976 (Fed. Cir. 1995)(enbanc), aff'd 517 U.S. 370
(1996). "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 Systems, Inc.,
381 F.3d 1111, 1115 (Fed. Cir. 2004)). "To ascertain the
scope and meaning of the asserted claims, we look to the
words of the claims themselves, the specification, the
prosecution history, and any relevant extrinsic
evidence." Retractable Technologies, Inc. v. Becton,
Dickinson and Co., 653 F.3d 1296, 1303 (Fed. Cir. 2011)
(citing Phillips, 415 F.3d at 1315-1317).
construing claim language, the words of a claim "are
generally given their ordinary and customarymeaning[.]"
Vitronics Corp. v. Conceptronics, Inc., 90F.3d 1576,
1582 (Fed. Cir. 1996). 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. Phillips, 415 F.3d at 1313.
"In some cases, the ordinary meaning of claim language
as understood by a person of skill in the art may be readily
apparent even to lay judges, and claim construction in such
cases involves little more than'the application of the
widely accepted meaning of commonly understood words."
Id. at 1314.
court looks at the words of the claims themselves, both
asserted and unasserted. Id. "[T]he context in
which a term is used in the asserted claim can be highly
instructive." Id. For example, the Federal
Circuit has consistently held that interpreting a claim term
in a manner that renders subsequent claim language
superfluous is improper. See Stumbo v. Eastman Outdoors,
Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007) (holding that
a definition that renders claim language superfluous is
"a methodology of claim construction that this court has
denounced"); see also Merck &Co.v. TevaPharms.
USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005) ("A
claim construction that gives meaning to all the terms of the
claim is preferred over one that does not do so.").
Similarly, the doctrine of claim differentiation recites the
principle that the limitations in each claim are presumed to
be distinct from one another. See Liebel-Flarsheim Co. v.
Medrad, Inc., 358 F.3d 898, 910 (Fed. Cir. 2004)
(holding that the presence of a dependent claim that adds a
particular limitation gives rise to a presumption that the
limitation in question is not present in the independent
the claims "do not stand alone." Phillips,
415 F.3d at 1315. Rather, they "must be read in view of
the specification, of which they are a part."
Markman, 52 F.3d at 978. Accordingly, the
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."
Vitronics, 90 F.3d at 1582. The specification is
especially important because "a patentee may choose to
be his own lexicographer and use terms in a manner other than
their ordinary meaning, as long as the special definition of
the term is clearly stated in the patent specification or
file history." Id. As such, "it is always
necessary to review the specification to determine whether
the inventor has used any terms in a manner inconsistent with
their ordinary meaning. The specification acts as a
dictionary when it expressly defines terms used in the claims
or when it defines terms by implication." Id.
Although the specification is relevant to claim construction,
limitations found only in the specification are not to be
read into the claims if the claim language is broader than
the specification. See Electro Medical Sys., S.A. v.
Cooper Life Sciences, 34 F.3d 1048, 1054 (Fed. Cir.
1994) ("although the specifications may well indicate
that certain embodiments are preferred, particular
embodiments appearing in a specification will not be read
into the claims when the claim language is broader than such
embodiments"); see also Teleflex, Inc. v. Ficosa
N.A. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002)
(refusing to import a limitation found in the specification
even when the specification disclosed only one embodiment).
addition to the specification, the court should consult the
prosecution history of the patent, if in evidence.
Phillips, 415F.3datl317. Although typically less
helpful than the specification, the prosecution history may
demonstrate how the inventor understood the invention and
whether the inventor limited the scope of the invention
during prosecution to avoid reading on prior art.
Id. "Under the doctrine of prosecution
disclaimer, a patentee may limit the meaning of a claim term
by making a clear and unmistakable disavowal of scope during
prosecution." Purdue Pharma L.P. v. Endo
Pharmaceuticals Inc., 438 F.3d 1123, 1136 (Fed. Cir.
2006). "A patentee could do so, for example, by clearly
characterizing the invention in a way to try to overcome
rejections based on prior art." Computer Docking
Station Corp. v. Dell, Inc., 519 F.3d 1366, 1374 (Fed.
Cir. 2008). However, "[p]rosecution disclaimer does not
apply to an ambiguous disavowal." Id. at 1375.
if the ordinary and customary meaning of a claim term is not
apparent from the intrinsic evidence, courts are authorized
to consult extrinsic evidence. Vitronics, 90 F.3d at
1576. Extrinsic evidence "consists of all evidence
external to the patent and prosecution history, including
expert and inventor testimony, dictionaries, and learned
treatises." Marhnan, 52 F.3d at 980.
term "cross-hair" is found in each of the
patents-at-issue describing a figure or symbol found on a
reticle. Specifically, Claim 1 of the '595 Patent
reticle having an optical center and a plurality of aiming
points, said aiming points formed by a primary vertical
cross-hair, a primary horizontal cross-hair intersecting said
primary vertical cross-hair to form an upper right quadrant,
an upper left quadrant, a lower right quadrant, and a lower
right quadrant, a plurality of secondary horizontal
cross-hairs intersecting said primary vertical cross [-]hair
and evenly spaced a predetermined distance along said primary
vertical cross-hair, a plurality of secondary vertical
cross-hairs intersecting at least some of said secondary
horizontal cross-hairs and evenly spaced a predetermined
distance along at least some of said secondary horizontal
cross-hairs, each said intersecting cross-hair forming one of
said plurality of aiming points, and rangefinding markings.
('595 Patent col. 13 11. 30-44.) Plaintiffs define the
term "cross-hair" broadly, asserting the proper
construction should be "a marking on a reticle that
intersects a least a second cross-hair to create an
aimingpoint." (Pl.'s Opening Claim Construction
Brief, ECF No. 40 ("Pis. 'Brief'), at 6.)
Leupold, on the other hand, argues the term should be
construed to include only "a continuous line or fiber in
a reticle that intersects a least a second cross-hair to
create an aiming point." (Def.'s Opening Claim
Construction Brief, ECF No. 42 ("Def.'s Brief), at
court rejects Plaintiffs' proposed definition as overly
broad based on the language of the '595 Patent. The term
"marking on a reticle that intersects a least a second
cross-hair" would encompass more than just vertical and
horizontal lines. It would also include aiming points
identified in Claim 1 and depicted in Figure 12 of the
'595 Patent, as well as ghost rings, referenced in the
specifications and depicted in Figures 11 and 12 of the'
5 95 Patent, both of which interact with a
"cross-hair" in some manner. ('595 Patent figs.
11, 12, col. 12 Is. 37-50.) Consequently, construing the term
"cross-hairs" so broadly is contrary to the
language of the patents-at-issue.
Plaintiffs distinguish between "marking" and
"cross-hair" in their proposed definition by
describing a "marking" that intersects a
"second cross-hair," not a "second
marking," defeating their argument that
"marking" and "cross-hair" are
synonymous. The language of Claim 1 of the '595 Patent
similarly distinguishes between cross-hairs and markings. By
describing crosshair in detail and then referencing
"rangefinding markings," rather than "other
markings," the '595 Patent's language implies
that cross-hairs are distinct from markings. ('595 Patent
col. 13 Is. 30-44.) So, while cross-hairs may qualify as a
"marking" for purposes of the '595 Patent, not
all markings are cross-hairs, making Plaintiffs' attempt
to use the terms interchangeably inappropriate.
definition of a "cross-hair" as a "continuous
line or fiber" is more consistent with the claim
language and specifications of the '595 Patent. The
'595 Patent suggests the primary vertical and horizontal
cross-hairs may be used as the arms of the rangefinder
"obviating the need for additional lines in any
quadrant," and creating an inference that both an arm
and a "cross-hair" are lines. ('595 Patent col.
711. 6-10.) Additionally, the '595 Patents refers to
cross-hairs as "lines" in a discussion of the
preferred method of determining the thickness of the
cross-hairs. ('595 Patent col. 6 Is. 62-67, col. 7 Is.
33-37.) For example, when discussing the proper thickness of
the primary vertical and horizontal cross-hairs in the
preferred embodiment, the '595 Patent provides:
"[t]he thickness of the lines are also preferably
determined with reference to the range-finding scale
used." ('595 Patent col. 6 Is. 62-63.) Finally, the
term "hair" in and of itself conjures visions of a
embodiments of the invention described in the specifications
of the '595 Patent provide further support for
characterizing a "cross-hair" as a line. The brief
descriptions of the drawings when compared to the drawings
described reveal the primary horizontal and vertical
cross-hairs to be lines. ('595 Patent figs. 13, 14, 15,
col. 4 Is. 48-63.) Similarly, references to the drawings in
the detailed description of the invention identify lines of
various lengths passing through at least one other line at
aninety degree angle as a "cross-hair." ('595
Patent figs. 2, 10, col. 5 Is. 60-64, col. 111.66-col. 12 1.
inclusion of the term "continuous" in its
definition of a cross-hair is also supported by the
specifications and illustrated embodiments of the '595
Patent. All of the lines identified as cross-hairs in the
embodiments are continuous and uninterrupted, with the
possible exception of Figure 11, where a ghost circle
"circumscribes" other markings on the reticle, and
Figure 12, where an aiming dot is "superimposed over the
optical center." ('595 Patent figs. 11, 12, col.
121s. 37-51, 53-58.) The use of the terms
"superimposed" imply the additional markings do not
cut into any affected cross-hair, but merely overlap it.
inclusion of the phrase "or fiber" in its
definition is not necessary or consistent with the language
of the' 595 Patent however. In the detailed description,
the' 595 Patent identifies "etching, printing, or
applying hairs or wires of known diameter" as methods in
which to place the "cross-hair" on the reticle.
('595 Patent col. 5 Is. 56-60.) The term
"fiber" could encompass the "hairs or
wires" referenced in the '595 Patent. However, such
reference relates to the method in which to ...