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Polar Electro Oy v. Suunto Oy, Amer Sports Winter & Outdoor

United States District Court, D. Utah

December 11, 2019

POLAR ELECTRO OY, Plaintiff,
v.
SUUNTO OY, AMER SPORTS WINTER & OUTDOOR d/b/a/ SUUNTO USA, and FIRSTBEAT TECHNOLOGIES OY, Defendants.

          MEMORANDUM DECISION AND ORDER CONSTRUING CLAIMS PURSUANT TO MARKMAN HEARING

          Clark Waddoups, United States District Judge.

         INTRODUCTION

         Plaintiff Polar Electro Oy (“Polar”) owns a patent that addresses interference-tolerant transmission of heartbeat signals (the ‘346 patent) and another patent that addresses determining a person's energy consumption during exercise (the ‘227 patent). Polar asserts that Suunto Oy and Amer Sports Winter & Outdoor (collectively “Suunto Oy”) have infringed both patents and that Firstbeat Technologies Oy has infringed the ‘227 patent.

         On May 8, 2018, the court held a hearing pursuant to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995), aff'd, 517 U.S. 370 (1996), to construe disputed claim terms. The court determined during the hearing that the issue was premature, and reserved ruling on the matter. Hearing Tr., at 114, 116 (ECF No. 283).[1] On December 5, 2019, the court held a hearing to address various matters and notified the parties of its proposed claim construction based on a review of the record, oral argument, and additional briefing. This memorandum decision now sets forth the court's claim construction for all terms except “calculating unit for calculating.” Expert evidence as to what one skilled in the art knows is needed for the remaining term.

         BACKGROUND

         The two patents at issue are U.S. Patent No. 5, 611, 346 and U.S. Patent No. 6, 537, 227. The ‘346 patent focuses on “coding a pulse signal . . . in such a way that it is possible to pick up the correct signals” even in an environment where there is interference. ‘346 patent, col. 1:45 46 (ECF No. 205-9). The patent is now expired, but Polar filed its infringement action prior to its expiration.

         The ‘227 patent focuses on an improved method for determining a person's energy consumption during exercise that “take[s] into account that a fit person performs a larger amount of work at a given heart rate level than an unfit person, ” and that energy consumption is thereby impacted. ‘227 patent, col. 1:42 45 (ECF No. 205-1). The ‘227 patent has undergone three re-examinations that modified the original claims. The claims from the second reexamination are at issue in this memorandum decision. The third reexamination confirmed the patentability of those claims and added new claims, ‘227 patent, Re-exam Cert. C3, col. 1:15 19 (ECF No. 205-4), but the prosecution history from each of the reexaminations is relevant to this case.

         The parties filed a Joint Claim Construction Chart (ECF No. 250) on March 9, 2018. The chart reflects the terms in dispute, which the court addresses below.

         ANALYSIS

         “The purpose of claim construction is to ‘determine the meaning and scope of the patent claims asserted to be infringed.'” 02 Micro Int'l, Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008) (quoting Markman, 52 F.3d at 976) (alteration omitted). Disputes about the meaning and scope of a claim must be resolved by the court, not the jury. See Id. A court “must begin with the words of the claims themselves.” Amgen Inc. v. Hoechst Marion Roussel, Inc., 457 F.3d 1293, 1301 (Fed Cir. 2006) (citation omitted). The court then construes a term based on its ordinary and customary meaning to one skilled in the art “at the time of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005). A court views the term “in the context of the entire patent, including the specification, ” as well as the prosecution history. Amgen Inc., 457 F.3d at 1301 (quotations and citations omitted). When needed, a court also may use extrinsic evidence to determine the meaning of a term. Id. (citations omitted).

         I.346 PATENT TERMS DISPUTED BY THE PARTIES.

         The following are the terms in dispute for the ‘346 patent, and the court's construction of the terms.

         A. Term 1:Forming groups of data pulses (Claim 1)

         Polar contends Term 1 needs no construction. Joint Claim Chart, at 7 (ECF No. 250). Suunto contends the term means “forming uniform groups of data pulses from an analog signal.” Id. (emphasis added). According to Suunto, an analog signal is required because Polar disclaimed binary coding when distinguishing prior art during the patent prosecution.

         A patent “applicant can make a binding disavowal of claim scope in the course of prosecuting the patent, through arguments made to distinguish prior art references.” Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d 1157, 1177 (Fed. Cir. 2008). “Such argument-based disavowals will be found, however, only if they constitute clear and unmistakable surrenders of subject matter.” Id. (citations omitted). Additionally, “the scope of such a disavowal will depend on the nature of the argument made by the patentee.” Id. Thus, “even in the case of an unequivocal disavowal of claim scope, the court must construe the claim congruent with the scope of the surrender.” Id. (quotations and citation omitted).

         In this case, Polar distinguished the Gorman patent (U.S. Patent No. 5, 400, 794) to overcome claim rejection. The first paragraph of its disclaimer states:

The Gorman reference uses a digital binary identification sequence. The present invention employs time-interval coding of both the heartbeat data per se and the identification pulses. Such time-interval coding is not taught or suggested by the Gorman reference. In the Gorman reference, every binary bit of the identification must be received, i.e., every bit of the identification sequence has some meaning. In the present invention, it is only necessary to receive the peaks of the identification signals defining the time interval.

         ‘346 Patent Prosecution History, at 13 14 (ECF No. 205-11) (underlining in original, italics added). A person's heart beat necessarily is based on an analog signal initially, although it may be converted to digital thereafter. Polar separately specified that the patent's “identification pulses” are analog in order to distinguish Gorman because Gorman taught a digital binary identification sequence. The second paragraph of the disclaimer further details its scope:

[R]egarding the Examiner's comments on the various binary sequences, as contained in paragraph 7 of the Office Action, Applicants note that these binary sequences are constrained to have discrete numbers of “zero” bits between the “one” bits. Not only is the identification process with the presently claimed invention time-interval coded (as opposed to binary), it can inherently have an infinite and continuous number of possible time intervals to identify the transmitter to the receiver. This is to be contrasted with the Gorman reference wherein the binary “ones” must inherently be separated by a finite and discrete number of binary “zeros.” Applicants therefore respectfully submit that the time-interval coded identification pulses defined in the amended claims cannot fairly be said to read upon the 8-bit binary identification codes of the Gorman reference.

Id. at 14 (underlining in original, italics added). Based on the above, the court concludes Polar expressly limited the patent's identification pulses to be only analog signals and not binary.

         Although a clear disclaimer exists with respect to the “identification pulses, ” that term is not before the court. Instead, the term at issue is “groups of data pulses.” As detailed in the Specification, not all data pulses are identification pulses. See e.g., ‘346 patent, col. 3:26 44, 4:46 66 (ECF No. 205-9). Polar only distinguished Gorman based on the identification pulses. The court therefore concludes that it would be improper to apply the analog-signal disclaimer to all other data pulses in the patent. Moreover, neither the disclaimer nor the patent requires all of the groups of data pulses to be uniform.

         The court concludes Term 1 may be understood according to its plain meaning and that no construction is necessary.

         B. Term 2:A first time interval (Claims 1, 8, 9, and 10)

         Polar contends Term 2 needs no construction. Its plain meaning is an interval of time. Joint Claim Chart, at 7 (ECF No. 250). Suunto contends the term means “a predetermined time period between the first and second identification pulses.” Id.

         As stated above, the Federal Circuit has said “that claims must be read in view of the specification, of which they are a part.” Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1324 (Fed. Cir. 2008) (quotations and citations omitted). A patent's specification “is the single best guide to the meaning of a disputed term.” Id. (quotations and citations omitted). Nevertheless, a court must be careful not to “impermissibly import[] limitations from the specification.” Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1370 (Fed. Cir. 2003) (citation omitted). When the specification consistently emphasizes a particular feature of the invention, such that the very nature of the claim requires the feature, it is permissible to read that feature into a claim. Id.; Praxair, Inc., 543 F.3d at 1324 (citations omitted).

         In this case, the Specification consistently states there must be a specific time period between the first and second identification pulses so that the receiver identifies the particular transmission. See e.g. ‘346 patent, col. 1:50 55, 4:55-59 (ECF No. 205-9). This is something required by the very nature of the claim. Indeed, the Specification states:

The only essential thing is that the time interval between the two identification pulses contained in the transmission corresponds to the specific time interval determined for each transmitter-receiver.

Id. col. 5:42 45. This indicates the time interval must be “specific.” Using the language from the patent itself, the court construes the term to mean “A specific time period between the first and second identification pulses.”

         C. Term 3: By means of sensing said first time ...


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