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Lightforce USA, Inc. v. Leupold & Stevens, Inc.

United States District Court, D. Oregon, Portland Division

May 15, 2019





         In this 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.


         Plaintiffs filed this lawsuit alleging defendant Leupold & Stevens, Inc. ("Leupold") has been, and is still, infringing on at least one claim of the following patents-in-suit:[1]

         United States Patent No. 6, 453, 595, filed March, 6, 2000 (the '"595 Patent"), entitled Gunsight and Reticle Therefor[2]

         United States Patent No. 8, 707, 608, filed July 30, 2012 (the '"608 Patent"), entitled Apparatus and Method for Calculating Aiming Point Information[3]

         United States Patent No. 8, 966, 806, filed September 12, 2012 (the '"806 Patent"), entitled Apparatus and Method for Calculating Aiming Point Information[4]

         United States Patent No. 9, 335, 123, filed January 15, 2014 (the "'123 Patent"), entitled Apparatus and Method for Aiming Point Calculation.[5]

         The '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," "intersecting''/''intersection," and "rangefinder markings''/''rangefinding markings''/''Rangefinder."

         Legal Standard

         The 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).

         In 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.

         The 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 claim).

         However, 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).

         In 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.

         Finally, 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.


         I. "Cross-Hair"

         The 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 describes a:

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 10.)

         The 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.

         Moreover, 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.

         Leupold's 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 line.

         The 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. 6.)

         Leupold's 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 "circumscribe"[6] and "superimposed"[7] imply the additional markings do not cut into any affected cross-hair, but merely overlap it.

         Leupold's 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 ...

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