Knauf v. Johns Manville - Motion To Continue Trial (Because LKQ)

Case 1:15-cv-00111-TWP-MJD Document 1092 Filed 07/07/23 Page 1 of 6 PageID #: 44992
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KNAUF INSULATION, INC., KNAUF

INSULATION GMBH, and KNAUF
INSULATION SPRL,
Case No. 1:15-cv-00111-TWP-MJD
Plaintiffs,
Honorable Tanya Walton Pratt
vs.
Magistrate Judge Mark J. Dinsmore
JOHNS MANVILLE CORPORATION and
JOHNS MANVILLE, INC.,
Defendants.
DEFENDANTS’ MOTION TO CONTINUE TRIAL
Pursuant to S.D. Ind. L.R. 16-3, Defendants respectfully move to continue the trial of this
matter until no earlier than January 2024 to accommodate recently changed circumstances in
Defendants’ trial counsel, the observance of the Jewish High Holidays, and the Federal Circuit’s
recent grant of en banc review regarding the proper obviousness standard to be applied for design
patents.
Defendants’ lead trial counsel since spring 2019, Charles Verhoeven, retired from the
practice of law on April 30, 2023. David Bilsker stepped into that role in May and has worked
diligently to get up to speed. This case, however, is large, complex, and highly technical. Mr.
Bilsker also has a previously scheduled patent jury trial in the District of Delaware that begins on
July 10, 2023. Given these circumstances, the currently scheduled date would cause Defendants
undue hardship and deprive them of their ability to be adequately prepared. In similar instances,
Courts have found continuances warranted. See Kowalski v. Hawaii International Seafood, Inc.,
No. 1:11-cv-00795-HG-RLP, Dkt. 311 at 3 (D. Haw. Mar. 31, 2014) (granting motion to continue
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claim construction hearing because defendant retained new counsel); Sealant Systems
International Inc. v. TEK Global S.R.L., No. 5:11-cv-00774-VC, Dkt. 87 at 2 (N.D. Cal. Aug. 3,
2012) (vacating deadlines for dispositive motions, expert reports, and the close of expert discovery
due to anticipated appearance of new counsel); Prism Technologies v. Research in Motion, Ltd.,
No. 8:08-cv-00537-JFB-CRZ, Dkt. 159 at 5 (D. Neb. Mar. 24, 2010) (“[I]n recognition of the fact
that [plaintiff’s] new counsel would need time to become familiar with the case, the Court entered
an amended final progression order (Filing No. 109), which moved the deadlines in the case back
approximately ninety days.”).
Moreover, the Jewish High Holiday of Rosh Hashanah begins at sundown on Friday,
September 15 and ends at sundown on Sunday, September 17. Both Mr. Bilsker and Ms. Baily,
who has been second chair throughout this case, observe this holiday with their families and there
is a significant chance that the trial as currently scheduled could overlap with this holiday. Because
the other Jewish High Holiday, Yom Kippur, is September 24, 2023 to September 25, 2023, and
Mr. Bilsker’s son has his Bar Mitzvah on October 7, 2023, Defendants respectfully request a
continuance until after that time to accommodate these religious observances and, as discussed
below, allow for a decision on controlling law in this case. See, e.g., In re: Method of Processing
Ethanol Byproducts and Related Subsystems (’858) Patent Litigation, No. 1:10-ml-02181-LJM-
DML, Dkt. 1529 at 2 (S.D. Ill. July 9, 2015) (granting motion for continuance of final pretrial
conference in light of conflict with Yom Kippur); Illinois Tool Works, Inc. v. MOC Products
Company, Inc., No. 3:09-cv-01887-JLS-MDD, Dkt. 244 at 1 (S.D. Cal. June 4, 2012) (finding
there is good cause to reset the trial dates because the previously-set trial date “is unworkable as it
conflicts with the Jewish high holidays of Rosh Hashanah and Yom Kippur”).
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Plaintiffs’ largest claim for damages is based on its assertion that Defendants infringe its
design patent. On June 30, the Federal Circuit granted en banc review in LKQ Corp. v. GM Glob.
Tech. Operations LLC, No. 2021-2348, -- F.4th --, 2023 WL 4280599 (Fed. Cir. June 30, 2023),
and asked the parties to address numerous questions regarding the proper standard(s) to be applied
when assessing the obviousness of design patents. This case involves those very same issues. For
example, at issue in this case is whether Design Patent No. D631,670 is obvious over various
combinations of the prior art. Yet, the law to be applied to make that determination is likely to
change completely or be modified by the Court’s en banc decision. 1 This uncertainty and likely
change in the law also warrants a continuance of the trial. See Sprague v. Syngenta Crop Prot.,
Inc., 2010 U.S. Dist. LEXIS 89985, *1-3 (S.D. Ill. 2010) (staying the proceeding pending the
Federal Circuit’s resolution of an issue that was “likely to be binding” and “bears directly on . . .
Plaintiff’s claims in this case”).
Finally, to the extent that the Court considers granting this Motion, Defendants note that
Ms. Baily has a previously scheduled trial in the Western District of Texas that begins on
December 4, 2023. Accordingly, Defendants request a new trial date in January 2024 or as soon
thereafter as the Court’s schedule permits.
Defendants met and conferred with Plaintiffs about Defendants’ request for a continuance
on June 26, 2023, and June 30, 2023, and Plaintiffs indicated that they oppose. Counsel consulted
with their clients prior to filing this Motion in compliance with S.D. Ind. L.R. 16-3(b). This Motion
is in good faith and not for the purpose of undue delay.
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The Federal Circuit has ordered that briefing for the en banc appeal be completed by October
30, 2023.
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WHEREFORE, Defendants respectfully request that the Court grant this Motion and
continue the final pretrial conference and trial of this matter to a date no earlier than January 2024.
A proposed order is attached.
Dated: July 7, 2023 Respectfully submitted,
/s/ James W. Riley, Jr.

James W. Riley, Jr. (No. 6073-49)
jriley@rbelaw.com
RILEY BENNET & EGLOFF, LLP
500 N. Meridian St., Suite 550
Indianapolis, IN 46204
Tel: (317) 636-8000
Fax: (317) 636-8027
David Bilsker (pro hac vice)

davidbilsker@quinnemanuel.com
Melissa J. Baily (pro hac vice)
melissabaily@quinnemanuel.com
Lindsay Cooper (pro hac vice)
lindsaycooper@quinnemanuel.com
QUINN EMANUEL URQUHART & SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, CA 94111-4788
Tel: (415)-875-6600
Fax: (415) 875-6300
Duane Lyons (pro hac vice)

duanelyons@quinnemanuel.com
Lance Yang (pro hac vice)
lanceyang@quinnemanuel.com
Scott L. Watson (pro hac vice)
scottwatson@quinnemanuel.com
Valerie Lozano (pro hac vice)
valerielozano@quinnemanuel.com
865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
Tel.: (213) 443-3000
Fax: (213) 443-3100
4
Brett J. Arnold (pro hac vice)

brettarnold@quinnemanuel.com
Brice C. Lynch (pro hac vice)
bricelynch@quinnemanuel.com
Ella K. Hallwass (pro hac vice)
ellahallwass@quinnemanuel.com
555 Twin Dolphin Dr., #560,
Redwood City, CA 94065
Tel.: (650) 801-5000
Fax: (650) 801-5100
Owen Fullerton Roberts (pro hac vice)

owenroberts@quinnemanuel.com
51 Madison Ave, 22nd Floor
New York, NY 10010
Tel.: (212) 849-7000
Fax: (212) 849-7100
Hannah E. Dawson (pro hac vice)

hannahdawson@quinnemanuel.com
111 Huntington Ave., Ste. 520
Boston, MA 02199
Tel.: (617) 712-7100
Fax: (617) 712-7200
Kevin M. Bell (pro hac vice)

kbell@kilpatricktownsend.com
Edward J. Mayle (pro hac vice)
tmayle@kilpatricktownsend.com
KILPATRICK TOWNSEND & STOCKTON LLP
1400 Wewatta Street, Suite 600
Denver, CO, 80202
Tel: (303) 571-4000
Fax: (303) 571-4321
Counsel for Defendants Johns Manville

Corporation and Johns Manville, Inc.
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CERTIFICATE OF SERVICE
I hereby certify that on July 7, 2023 a copy of the foregoing was filed electronically.
Service of this filing will be made on all ECF-registered counsel by operation of the Court’s
electronic filing system. Parties may access this filing through the Court’s system.
/s/ James W. Riley, Jr.

James W. Riley, Jr.
Case 1:15-cv-00111-TWP-MJD Document 1092-1 Filed 07/07/23 Page 1 of 2 PageID #:
44998

KNAUF INSULATION, LLC, )

KNAUF INSULATION GmbH, and )
KNAUF INSULATION SPRL, )
)
Plaintiffs, )
) Case No. 1:15-cv-00111-TWP-MJD
vs. )
) Honorable Tanya Walton Pratt
JOHNS MANVILLE CORPORATION and )
JOHNS MANVILLE, INC., ) Magistrate Judge Mark J. Dinsmore
)
Defendants. )
)
DECLARATION OF MELISSA BAILY IN SUPPORT OF DEFENDANTS’ MOTION TO

CONTINUE TRIAL
I, Melissa Baily, declare as follows:
1. I am an attorney at the law firm of Quinn Emanuel Urquhart & Sullivan, LLP,
which is counsel for Defendants Johns Manville Corporation and Johns Manville,
Inc. (collectively, “JM”) in this matter. I submit this declaration in support of JM’s
Motion to Continue Trial.
2. I have personal knowledge of the facts stated herein and, if called to testify, could
and would competently testify thereto.
3. Attached hereto as Exhibit 1 is Kowalski v. Hawaii International Seafood, Inc., No.
1:11-cv-00795-HG-RLP, Dkt. 311 (D. Haw. Mar. 31, 2014).
4. Attached hereto as Exhibit 2 is Sealant Systems International Inc. v. TEK Global
S.R.L., No. 5:11-cv-00774-VC, Dkt. 87 (N.D. Cal. Aug. 3, 2012).
5. Attached hereto as Exhibit 3 is Prism Technologies v. Research in Motion, Ltd.,
No. 8:08-cv-00537-JFB-CRZ, Dkt. 159 (D. Neb. Mar. 24, 2010).

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44999
6. Attached hereto as Exhibit 4 is In re: Method of Processing Ethanol Byproducts
and Related Subsystems (’858) Patent Litigation, No. 1:10-ml-02181-LJM-DML,
Dkt. 1529 (S.D. Ill. July 9, 2015).
7. Attached hereto as Exhibit 5 is Illinois Tool Works, Inc. v. MOC Products
Company, Inc., No. 3:09-cv-01887-JLS-MDD, Dkt. 244 (S.D. Cal. June 4, 2012).
I declare under penalty of perjury under the laws of the United States of America that to
the best of my knowledge the foregoing is true and correct. Executed on July 7, 2023 in San
Francisco, California.
Dated: July 7, 2023 Respectfully submitted,
/s/ Melissa Baily

Melissa Baily
2
45000
EXHIBIT 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIAM R. KOWALSKI; HAWAII ) Civil NO. 11-00795HG-BMK

INTERNATIONAL SEAFOOD, INC., )
)
Plaintiffs, )
)
vs. )
)
ANOVA FOOD, LLC; ANOVA FOOD, )
INC.; CLEARSMOKE TECHNOLOGIES, )
LTD; and DOES 1-10, )
)
)
Defendants. )
______________________________ )
_
CLAIM CONSTRUCTION ORDER
On October 26, 1999, Plaintiff William R. Kowalski was
issued United States Patent No. 5,972,401, entitled “Process
For Manufacturing Tasteless Super-Purified Smoke For Treating
Seafood To Be Frozen And Thawed.” The patent contains Claims
1 through 75. On November 16, 2010, Claims 1 and 67 were
cancelled.
On December 29, 2011, Plaintiffs Kowalski and Hawaii
International Seafood, Inc. filed the current suit for patent
infringement, false advertising and promotion pursuant to the
Lanham Act, and violation of state statutes. Plaintiffs
allege that Defendants have processed, imported, offered to
sell, or sold food made with a process covered by Kowalski’s
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patent. Defendants Anova Food, LLC and Anova Food, Inc.
assert that they do not use a process that is covered by
Kowalski’s patent.
The Parties requested a claim construction hearing
pursuant to Markman v. Westview Instr., Inc., 517 U.S. 370,
372 (1996). On February 25, 2014, the Court held a Markman
hearing on the construction of disputed terms in the patent.
PROCEDURAL HISTORY
On January 2, 2012, Plaintiffs William R. Kowalski and
Hawaii International Seafood, Inc. filed the First Amended
Complaint. (ECF No. 6).
On October 11, 2013, Defendant Anova Food, LLC filed a
document entitled, “PROPOSED TERMS AND CLAIM ELEMENTS FOR
CONSTRUCTION.” (ECF No. 224).
On November 1, 2013, Plaintiffs William R. Kowalski and
Hawaii International Seafood, Inc. filed a “LIST OF TERMS FOR
CONSTRUCTION.” (ECF No. 231).
Also on November 1, 2013, Defendant Anova Food, Inc.
filed a “JOINDER IN DEFENDANT ANOVA, LLC’S PROPOSED TERMS AND
CLAIM ELEMENTS FOR CONSTRUCTION.” (ECF No. 232).
On December 16, 2013, Plaintiffs filed a Claim
Construction Brief. (ECF No. 245).
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On December 30, 2013, Defendant Anova Food, Inc. filed a
Claim Construction Brief. (ECF No. 250).
On the same date, Defendant Anova Food, LLC filed a Claim
Hawaii International Seafood, Inc. filed its Reply Claim
On January 27, 2014, Defendant Anova Food, LLC filed a
Responsive Claim Construction Brief. (ECF No. 265).
Hawaii International Seafood, Inc. filed a Witness List for
the Claim Construction Hearing. (ECF No. 266).
On January 28, 2014, Defendant Anova Food, Inc. obtained
new counsel. (ECF No. 270).
Hawaii International Seafood, Inc. filed Exhibits for the
Claim Construction Hearing. (ECF No. 275, 276).
At the claim construction hearing on February 3, 2014,
Defendant Anova Food, Inc. made an oral motion to continue the
claim construction hearing because it had retained new
counsel. (ECF No. 277). The Court granted the motion and
continued the hearing until February 25, 2014. (Id.)
The Court set a new briefing schedule and ordered the
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parties to agree to a list of no more than fourteen claim
terms to be construed. (Id.)
On February 18, 2014, Plaintiffs filed a claim
construction brief. (ECF No. 288).
On the same date, Defendant Anova Food, Inc. filed a
claim construction brief. (ECF No. 287).
Defendant Anova Food, LLC also filed a claim construction
brief. (ECF No. 286).
On February 25, 2014, the Court held a Markman hearing on
the construction of disputed terms in the patent. (ECF No.
296).
LEGAL STANDARD
Claim construction is a question of law. Markman v.
Westview Instr., Inc., 517 U.S. 370, 372 (1996). Terms
contained in claims are “generally given their ordinary and
customary meaning.” Phillips v. AWH Corp., 415 F.3d 1303,
1312 (Fed. Cir. 2005). “[T]he 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.” Id. at 1312.
Intrinsic evidence determines the meaning of disputed
claim terms when the meaning is not immediately apparent. Id.
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at 1314. Intrinsic evidence includes the words of the claims
themselves, the patent specification, and, if in the record,
the prosecution history. Id.; Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
“The appropriate stating point ... is always with the
language of the asserted claim itself.” Comark
Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186
(Fed. Cir. 1998). Claim terms are considered in the context
in which they are used, including the language of other claims
of the patent. Vitronics Corp., 90 F.3d at 1582.
Consideration of the specification is also essential and
forms “the primary basis for construing claims.” Phillips,
415 F.3d at 1315. The specification may reveal a special
definition given to a claim term by the patentee or an
intentional disclaimer or disavowal of claim scope by the
inventor. Id. at 1316.
The patent’s prosecution history may “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.” Id. at 1317.
Extrinsic evidence, such as dictionaries, technical
treatises, or expert testimony, may be considered if such
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sources are helpful to determine the true meaning of claim
terms. Phillips, 415 F.3d at 1318. Extrinsic evidence may
aid claim construction but it cannot be used to contradict the
plain and ordinary meaning of a claim term as defined within
the intrinsic record. Id. at 1322-23.
ANALYSIS
The Parties request the construction of a total of 19
claim terms in United States Patent No. 5,972,401 (“ ’401
Patent”).
Plaintiffs William R. Kowalski and Hawaii International
Seafood, Inc. (“Plaintiffs”) and Defendant Anova Food, LLC
(“Defendant Anova LLC”) want 19 claim terms construed and list
them in the same order in their claim construction briefs.
(ECF No. 286 at pp. 5-6; ECF No. 288 at pp. 10-11).
Defendant Anova Food, Inc. (“Defendant Anova Inc”) wants
only 17 claim terms construed but its list of the terms it
wants construed is provided in a different order. (ECF No.
287 at pp. 7-11).
Defendant Anova Inc does not agree with all of the
proposed claim constructions of Defendant Anova LLC. (ECF No.
286 at pp. 5-6; ECF No. 287 at pp. 7-11).
The Order adopts the sequence of terms in the lists
provided by Plaintiffs and Defendant Anova LLC. Defendant
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Anova LLC joined in some of Defendant Anova Inc’s arguments
and requested the same constructions for many claim terms.
When Defendant Anova Inc and Defendant Anova LLC disagree on a
claim term’s construction, both proposed claim constructions
are set out and analyzed.
I. CONSTRUING TERMS 1-4
Terms 1-4 all concern the adjective “smoked” as used to
modify the terms “odor,” “taste,” “flavor,” and “flavoring” in
the ’401 Patent. The Parties grouped the terms together and
addressed them collectively in their claim construction briefs
and at the Markman hearing.
TERM 1: smoke odor

TERM 2: smoke taste
TERM 3: smoke flavor
TERM 4: smoke flavoring
“Smoke odor” is found in Claims 1, 13, 27, 39, 68, 69,
74, and 75.
“Smoke taste” is found in Claims 1, 27, 49, 50, and 74.
“Smoke flavor” is found in Claims 13, 27, 39, 68, 69, and
75.
“Smoke flavoring” is found in Claims 69 and 75.
Plaintiffs’ Construction Anova Inc’s Construction Anova LLC’s Construction
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smoked or smoky any odor present in Joins in the

odor and/or imparted by requested claim
the smoke construction of
Anova Inc
any taste present
smoked or smoky in and/or imparted
taste by the smoke
any flavor present

smoked or smoky in and/or imparted
flavor by the smoke
any flavoring
smoked or smoky present in and/or
flavoring imparted by the
smoke
Plaintiffs’ proposed constructions of “smoke odor,”
“smoke taste,” “smoke flavor” and “smoke flavoring” as used in
the ’401 Patent are adopted.
“Smoke odor” is construed as “smoked or smoky odor.”
“Smoke taste” is construed as “smoked or smoky taste.”
“Smoke flavor” is construed as “smoked or smoky flavor.”
“Smoke flavoring” is construed as “smoked or smoky
flavoring.”
1. Intrinsic Evidence
a. Claim Terms
Claim terms must be construed in light of the appropriate
context in which they are used. Aventis Pharmaceuticals Inc.
v. Amino Chemicals Ltd., 715 F.3d 1363, 1373 (Fed. Cir. 2013).
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A patent claim term should be construed consistently with its
appearance in other places in the same claim or in other
claims of the same patent. Rexnord Corp. v. Laitram Corp.,
274 F.3d 1336, 1342 (Fed. Cir. 2001). Different terms in
separate patent claims may be construed to cover the same
subject matter where the written description and prosecution
history indicate that such a reading of the terms is proper.
Nystrom v. TREX Co., Inc., 424 F.3d 1136, 1143 (Fed. Cir.
2005). Two patent claims with different terminology can
define the exact same subject matter. Curtiss-Wright Flow
Control Corp. v. Velan, Inc., 438 F.3d 1374, 1380 (Fed. Cir.
2006).
Plaintiff’s proposed construction for the adjective
“smoke” as “smoked or smoky” is consistent with the plain
language of the claims. The construction is also consistent
with the context in which the adjective “smoke” is used,
including the language of other claims of the patent. Claims
46, 49, 50, 64, 74 and 75 in the ’401 Patent refer to a
process that results in a product without a “smoked” or
“smoky” taste or flavor. (Ex. 1, ’401 Patent at column 26,
line 3 (“26:3”), 26:21, 26:28, 27:49; Reexamination
Certificate at 2:9-10, 2:19-20, ECF No. 288).
Defendants Anova Inc and Anova LLC are attempting to
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expand the definition to include a wide variety of
possibilities. Defendants’ proposed constructions are
contrary to the Claim Terms, the Specification, the
Prosecution History, and the Extrinsic Evidence.
Defendants propose that the Court construe the adjective
“smoke” to mean any odor, taste, flavor, or flavoring present
in and/or imparted by the smoke.
Defendant Anova Inc asserts that “smoke” must be presumed
to have a different meaning than “smoked or smoky,” citing
Helmsderfer v. Bobrick Washroom Equipment, Inc., 527 F.3d
1379, 1382 (Fed. Cir. 2008) (explaining that different claim
terms are presumed to have different meanings). In
Helmsdefer, the Federal Circuit Court of Appeals found that
“generally” and “partially” were presumed to have different
meanings based on the doctrine of claim differentiation.
The Federal Circuit Court of Appeals has cautioned that
“claim differentiation is a guide, not a rigid rule.”
Curtiss-Wright Flow Control Corp., 438 F.3d at 1381. The
appellate court has explained that claim drafters often use
different terms to define the exact same subject matter. Id.
Claim differentiation “can not broaden claims beyond their
correct scope.” Kraft Foods, Inc. v. International Trading
Co., 203 F.3d 1362, 1368 (Fed Cir. 2000).
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The ’401 Patent Claims themselves demonstrate that
Kowalski uses the terms “smoke,” “smoked” and “smoky” to
define the exact same subject matter. Pickholtz v. Rainbow
Technologies, Inc., 284 F.3d 1365, 1373 (Fed. Cir. 2002)
(finding that the patent uses the terms “computer” and
“computer system” as synonyms).
Claims 49 and 50 use the modifier “smoke” and “smoky”
interchangeably as the claims describe a process that removes
“smoke taste compounds” in order to create a product that does
not have a “smoky taste.” (Ex. 1, ’401 Patent at 26:18-21,
26:25-28, ECF No. 288). Claims 74 and 75 use the modifier
“smoke” and “smoked” interchangeably. (Ex. 1, Reexamination
Certificate at 1:27, 2:9-10, 2:14-15, 2:19, 2:23-24, ECF No.
288). The ’401 Patent uses the word “smoke” as an adjective
the same way it uses the modifiers “smoked” and “smoky.”
“Smoked” and “smoky” are merely variations of the word
“smoke.”
It would be error to follow the Defendants’ attempt to
broaden the term “smoke” to mean all odors, tastes, flavors,
and flavorings. Kraft Foods, Inc., 203 F.3d at 1368.
b. The Specification
Statements that describe the invention as a whole, rather
than statements that describe only preferred embodiments, are
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more likely to support a limiting definition of a claim term.
C.R. Bard, Inc. v. United States Surgical Corp., 388 F.3d 858,
864 (Fed. Cir. 2004).
The Specification supports Plaintiffs’ construction of
the adjective “smoke.” The ’401 Patent Specification
describes the invention as a whole as a process that imparts
no “smoky” or “smoked” taste or flavor. (Ex. 1 at 3:23, 4:27,
12:6, ECF No. 288). The Specification explains that the
intention of the patent is to produce seafood that “appears
and tastes similar to fresh after it is frozen and thawed.”
(Id. at 1:30).
c. The Prosecution History
The prosecution history of a patent provides guidance for
when a patent term should be read to deviate from its ordinary
meaning because of the way the patent was distinguished from
the prior art in the field. Vitronics, 90 F.3d at 1582. 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 Pharms, Inc., 438 F.3d 1123, 1136
(Fed. Cir. 2006). An alleged disavowal of claim scope will
not limit the scope of a claim if the disavowal is ambiguous.
Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed.
Cir. 2003).
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Defendant Anova Inc provided a copy of the Prosecution
History of the ’401 Patent at Exhibit B. (Defendant Anova
Food, Inc.’s Revised Claim Construction Brief filed February
18, 2014, ECF No. 287); Vitronics Corp., 90 F.3d at 1582
(explaining that the court may consider the prosecution
history of the patent, if it is in the record). An
examination of the Prosecution History provides further
support for Plaintiffs’ proposed construction of the adjective
“smoke” as “smoked or smoky.”
(i) Notice of Allowability
In the June 17, 1999, Notice of Allowability, the Patent
Examiner stated the reasons for allowing the patent as
follows: “the claimed process for treated food defines over
the prior art of record by comprising the steps of generating
smoke, removing smoke odor and/or taste compounds from said
smoke, and treating a food with said smoke such that the food
does not retain a smoky odor or taste.” (Ex. B at p. 221, ECF
No. 287).
The Notice of Allowability makes clear that a person of
ordinary skill in the art would have understood the scope of
the ’401 Patent to cover a process that imparts no “smoky”
odor or taste, rather than a process that imparts no taste at
all. Phillips, 415 F.3d at 1313.
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(ii) Maga Document
Defendant Anova Inc bases its argument on a 1988 non-
patent, prior art document entitled, “Smoke in Food
Processing” authored by Joseph A. Maga (“Maga Document”).
(ECF No. 287 at p. 35; Ex. D). Plaintiff Kowalski provided
the Maga document to the Patent & Trademark Office (“PTO”) and
cited it as prior art in the ’401 Patent. (Ex. B at pp, 125,
128, 138, 173, 177-217, ECF No. 287; Ex. 1, ECF No. 288).
Plaintiff Kowalski cited the Maga document to show that a
person of ordinary skill in the art would know the thresholds
for imparting smoke odor and taste. (Ex. B at p. 173, ECF No.
287). Defendant Anova Inc argues that the Maga Document
explains that the characteristic smoke smell is not limited to
“smoked” or “smoky.”
Defendant Anova Inc’s arguments based on the Maga
Document are unpersuasive. Defendants seek to broaden the
adjective “smoke” to “encompass relatively obscure definitions
that are not supported by the written description or
prosecution history.” Nystrom, 424 F.3d at 1145-46. The
intrinsic evidence in the record supports Plaintiffs’ proposed
construction of the adjective “smoke” as “smoked or smoky.”
2. Extrinsic Evidence
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Judicial decisions in related proceedings may be
appropriate extrinsic evidence. V-Formation, Inc. v. Benetton
Group Spa, 401 F.3d 1307, 1312 (Fed. Cir. 2005). Plaintiffs
rely on a previous construction of the adjective “smoke” in
the ’401 Patent as support for its proposed construction. In
Kowalski v. Mommy Gina Tuna Resources, et al., Civ. Nos. 05-
00679BMK, 06-00182BMK, 05-00787BMK, the Judge construed the
adjective “smoke” to mean “traditional smoky or smoked.” (Ex.
2 at p. 17, ECF No. 288).
Just as the Defendants here, the defendants in Kowalski
v. Mommy Gina Tuna Resources argued that the Kowalski Patent’s
use of the term “smoke” should be construed as imparting any
odor, taste, flavor, or flavoring. The Judge rejected the
construction proposed by the defendants. The Judge examined
the Patent Claims, the Specification, the Patent Prosecution
History. The Judge found the weight of the intrinsic evidence
favored the plaintiff’s proposed construction over any of the
extrinsic evidence. The Judge explained that the Kowalski
Patent is “properly construed to claim a process that imparts
no smoked or smoky taste to the treated seafood.” (Id. at p.
17).
Defendant Anova LLC argues that the previous claim
constructions of the ’401 Patent are not relevant. Defendant
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Anova LLC bases its arguments on the fact that Claims 1 and 67
in the Kowalski Patent were cancelled.
The Federal Circuit Court of Appeals has explained that
no deference should be given to claim construction rulings of
the Patent and Trademark Office. In re Swanson, 540 F.3d
1368, 1377-78 (Fed. Cir. 2008). The standard of proof in a
Patent and Trademark Office reexamination is preponderance of
the evidence, there is no presumption of validity, and the
examiner is conducting a subjective examination of the claim
in light of prior art. Id.
Claims dependent on Claim 1 are still presumed valid in
this case and require construction. 35 U.S.C. § 282(a) (“Each
claim of a patent (whether in independent, dependent, or
multiple dependent form) shall be presumed valid independently
of the validity of other claims; dependent or multiple
dependent claims shall be presumed valid even though dependent
upon an invalid claim”). The prior construction of Claim 1 is
relevant and persuasive extrinsic evidence. V-Formation,
Inc., 401 F.3d at 1312; Bloom Eng’g Co. v. N. Am. Mfg. Co.,
129 F.3d 1247, 1250 (Fed. Cir. 1997) (dependent claims that
are not identical in form to invalid independent claims may be
asserted against defendants).
Court’s Construction of Terms 1-4
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The Court’s construction of the terms “smoke odor,”
“smoke taste,” “smoke flavor” and “smoke flavoring” is
entirely consistent with the intrinsic evidence in the record
as well as the previous construction of the ’401 Patent claims
in the Kowalski v. Mommy Gina Tuna Resources, et al. case.
The Court adopts Plaintiffs’ proposed construction. The
adjective “smoke” in Claims 1, 13, 27, 39, 49, 50, 68, 69, 74,
and 75 is construed as “smoked or smoky.”
II. CONSTRUING TERM 5: smoke
“Smoke” as a noun is found in Claims 1, 11, 13, 49, 50,
60, 63, 68, 69, 74, and 75.
the emissions from the emissions from Joins in the

heating an organic a material requested claim
smoking material, undergoing construction of
said emissions combustion or Anova Inc
containing smoked pyrolysis (i.e. the
or smoky taste and subjection of
odor compounds organic compounds
to very high
temperatures)
The Court construes the noun “smoke” as “the emissions
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from heating an organic material.”
a. Claim Terms
There is a presumption that an independent claim should
not be construed as requiring a limitation added by a
dependent claim. Curtiss-Wright Flow Control Corp., 438 F.3d
at 1380. “The statute stresses that a dependent claim must
add a limitation to those recited in the independent claim.”
Id. (citing 35 U.S.C. § 112, ¶4).
Independent claims 1, 49, 50, 68, 69, 74, and 75 of the
‘401 Patent use the phrase “heating organic material to
generate smoke.” (Ex. 1, ’401 Patent at Claims 1, 49, 50, 68,
69, Reexamination Certification at Claims 74, 75, ECF No.
288).
Dependent Claims 70 and 71 limit the “heating step” as
described in the independent claims to a process where the
organic material either “combusts” or “pyrolyses.” (Id. at
Claims 70 and 71).
The Parties agree that the noun “smoke” in the patent
refers to “emissions.” Plaintiffs and Defendant Anova Inc
disagree on the scope of the term. Defendants seek to limit
the term “smoke” to the processes of “combustion” or
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“pyrolysis” as used in the Dependent Claims 70 and 71.
Construing the noun “smoke” in the ’401 Patent to be
limited to “combustion” or “pyrolysis” as used in the
Dependent Claims would be error. Curtiss-Wright Flow Control
Corp., 438 F.3d at 1380. Reading the limitation from
Dependent Claims 70 and 71 into the Independent Claims would
make Claims 70 and 71 superfluous. Id.
Plaintiffs’ construction seeks to add “smoking” and
“smoky” and “smoked” to the construction of the noun “smoke.”
The Claim Terms themselves consistently refer to “heating
organic material.” The Claims do not refer to “organic
smoking material” as proposed by Plaintiffs. The Court
declines to construe “smoke” based on a lone reference to
“organic smoking material” in the Patent’s Abstract. (Ex. 1
at ’401 Patent, Abstract, ECF No. 288). It is inconsistent
with the Claims Terms themselves to add this modifier to the
construction of “smoke.”
Plaintiffs also request the Court define “smoke” as
“containing smoked or smoky taste and odor compounds.”
Plaintiffs’ construction fails to consider the context in
which the term is used. Phillips, 415 F.3d at 1314.
Plaintiffs’ proposed construction would lead to confusing and
repetitive claim language in the patent. Bd. Of Regents of
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the Univ. Of Tex. Sys. v. BENQ Am. Corp., 533 F.3d 1362, 1370
(Fed. Cir. 2009) (declining to adopt a construction that would
lead to a nonsensical result).
Interpreting a claim limitation based solely on a single
example from the specification has been repeatedly rejected by
the Federal Circuit Court of Appeals. Marine Polymer
Technologies, Inc. v. HemCon, Inc., 672 F.3d 1350, 1370 (Fed.
Cir. 2012); Silicon Graphics, Inc. v. ATI Technologies, Inc.,
607 F.3d 784, 792 (Fed. Cir. 2010). The appellate court has
“cautioned against limiting the claimed invention to preferred
embodiments or specific examples in the specification.” Tex.
Intruments, Inc. v. U.S. Int’l Trade Comm’n, 805 F.2d 1558,
1563 (Fed. Cir. 1986). Varied use of a disputed term in the
written description demonstrates the breadth of the term
rather than providing a limited definition. Johnson Worldwide
Assocs. v. Zebco Corp., 175 F.3d 985, 991 (Fed. Cir. 1999).
The preferred embodiment describes “smoke” as being the
product of either “combustion” or “pyrolysis.” (See Ex. 1,
’401 Patent at 11:58-64, “Combusting a five cylinder retort
packed with wood sawdust is the preferred embodiment described
herein. The pyrolysis of the wood sawdust into smoke creates
byproducts of tar, moisture, and particulate residue at the
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outlet of the smoke generating subsystems”).
It would be error to limit “smoke” to the specific
examples provided in the preferred embodiment and written
description in the ’401 Patent. Silicon Graphics, Inc., 607
F.3d at 792.
c. The Prosecution History
The Prosecution History demonstrates that Kowalski sought
to use the broad term “heating” rather than a more limited
term such as “combusting.” Kowalski intentionally changed the
terms “combusting” and “burning” in various claims and
replaced them with “heating.” (Ex. B at pp. 71-72, 74, 76,
165-66, 168-69). The Patent and Trademark Office approved the
changes. The Prosecution History supports the Court’s
construction of “smoke.”
The Court’s construction of the noun “smoke” is entirely
consistent with the intrinsic evidence in the record.
Extrinsic evidence is not required to construe the term.
Vitronics Corp., 90 F.3d at 1584.
Court’s Construction of Term 5: “smoke”
The dependent claim terms and the preferred embodiment
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do not limit the noun “smoke” in the ’401 Patent. The term
“smoke” in Claims 1, 11, 13, 49, 50, 60, 63, 68, 69, 74, and
75 is construed as “the emissions from heating an organic
material.”
III. CONSTRUING TERM 6: heating
TERM 7: burning
“Heating” is found in Claims 1, 11, 49, 50, 63, 68, 69,
74, and 75. “Burning” is found in Claim 60.
No need for No need for burning (organic

construction construction material) at a
temperature between
400 and 950 degrees
Fahrenheit
The plain and ordinary meaning of the terms “heating” and
“burning” is sufficient.
a. Claim Terms
There is a presumption that an independent claim should
not be construed as requiring a limitation added by a
dependent claim. Curtiss-Wright Flow Control Corp., 438 F.3d
at 1380.
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Claims 1, 49, 50, 63, 68, 69, 74 and 75 are Independent
Claims that contain “heating.” Claim 60 is an Independent
Claim that contains “burning.”
Claim 33 is a Dependant Claim that limits heating to be
“between approximately 400 degrees Fahrenheit (204 degrees
Centigrade) and approximately 950 degrees Fahrenheit (510
degrees Centigrade).”
Defendant Anova LLC is the only party requesting
construction of the terms “heating” and “burning.” Defendant
Anova LLC proposes the same construction for each term,
asserting the terms are “ambiguous.” Defendant Anova LLC
requests “heating” be construed at “a temperature between 400
and 950 degrees Fahrenheit.”
It would be erroneous to limit “heating” in the
Independent Claims to the range indicated in one Dependent
Claim. Curtiss-Wright Flow Control Corp., 438 F.3d at 1380.
The Court rejects Defendant Anova LLC’s proposed construction
to limit “heating” or “burning” to a numerical range. Falana
v. Kent State University, 669 F.3d 1349, 1355 (Fed. Cir. 2012)
(declining to limit the claims to a specific temperature based
on the plain language of the claims).
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Claims are not limited by the embodiments disclosed in
the specification. Amgen Inc. v. Hoechst Marion Roussel,
Inc., 314 F.3d 1313, 1328 (Fed. Cir. 2003). The Federal
Circuit Court of Appeals has stated that it “will not at any
time import limitations from the specification into the
claims.” CollegeNet, Inc. v. ApplyYourself, Inc., 418 F.3d
1225, 1231 (Fed. Cir. 2005).
Defendant Anova LLC points to the Specification that
suggests the process utilize “temperatures in an operable
range of 400 and 950 degrees Fahrenheit.” (Ex. 1 at ’401
Patent, 11:48-49).
“[W]hen a claim term is expressed in general descriptive
words, [courts] will not ordinarily limit the term to a
numerical range that may appear in the written description or
in other claims.” Renishaw PLC v. Marposs Societa’ per
Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998); Conoco, Inc. v.
Energy & Envtl. Int’l, L.C., 460 F.3d 1349, 1358 (Fed. Cir.
2006).
The intrinsic evidence in the record demonstrates that a
person of ordinary skill in the art can understand the terms
“heating” and “burning” in the context of the ’401 patent.
Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d 1374, 1384
(Fed. Cir. 2005) (“a patentee need not define his invention
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with mathematical precision in order to comply with the
definiteness requirement”).
In Kowalski v. Mommy Gina Tuna Resources, et al., Civ.
Nos. 05-00679BMK, 06-00182BMK, 05-00787BMK, the Judge
considered nearly identical arguments regarding the term
“heating” in the ’401 Patent. (Plaintiff’s Ex. 3 at pp. 6-7,
ECF No. 288). The Judge determined that “heating” was not
limited to any specific numerical range. Id.
Court’s Construction of Terms 6 and 7
The Court need not construe a claim term if it is non-
technical, is in plain English, and derives no special meaning
from the patent and its prosecution history. 02 Micro Int’l
Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1360
(Fed. Cir. 2008). The “ordinary” meaning of such terms is
sufficient and the Court should avoid merely paraphrasing
claim language with less accurate terminology. Id.; Perfect
Web Techs. v. InfoUSA, Inc., 587 F.3d 1324, 1332 (Fed. Cir.
2009).
The Court declines to limit the terms “heating” and
“burning” in the ’401 Patent to a specific numerical range.
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The plain and ordinary meaning of the terms is sufficient.
IV. CONSTRUING TERM 8: organic material
“Organic material” is found in Claims 1, 49, 50, 60, 68,
69, 74, and 75.
organic smoking carbon-containing Joins in the

material (including materials, such as requested claim
wood, and the wood, wood sawdust, construction of
sawdust, wood hardwood charcoal, Anova Inc
chips, and charcoal leaves, bagasse
that can be made from sugar cane,
from wood) pineapple husks,
and rice hulls
The Court construes the term “organic material” as
“carbon-containing material.”
a. Claim Terms
During oral argument, Plaintiffs agreed with Defendant
Anova Inc’s construction of “organic” as “carbon-containing.”
The Parties disagree about the use of the modifier “smoking”
along with the examples listed after “material.”
Plaintiffs’ construction seeks to define “organic
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material” as “organic or carbon-containing smoking material.”
The Claim Terms themselves do not refer to “organic smoking
material.” (Ex. 1, ’401 Patent at Claims 1, 49, 50, 68, 69,
Reexamination Certification at Claims 74, 75, ECF No. 288).
The Claims refer only to “organic material.” The Court
declines to add “smoking” to the construction of “organic
material” based on a lone reference to “organic smoking
material” in the 401 Patent’s Abstract.
Claims are not limited by the embodiments disclosed in
the specification. Amgen Inc., 314 F.3d at 1328. Courts
should not limit a claim based solely on a single example from
the specification. Silicon Graphics, Inc., 607 F.3d at 792.
The Specification lists a number of examples of organic
material including wood, hardwood charcoal, wood sawdust,
leaves, bagasse from sugar cane, pineapple husks, and rice
hulls. (Ex. 1, ’401 Patent at 6:43, 7:47-48, 15:65-66, 16:33,
16:48, 16:60, ECF No. 288). Plaintiffs and Defendant Anova
Inc each request different constructions of “organic material”
to include some of the examples used in the Specification as
part of the definition.
It is “not enough that the only embodiments, or all of
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the embodiments, contain a particular limitation to limit a
claim term beyond its ordinary meaning.” Aventis Pharma S.A.
v. Hospira, Inc., 675 F.3d 1324, 1330 (Fed. Cir. 2012). Even
if a Specification has only one embodiment, its claim will not
be confined to that example “unless the patentee has
demonstrated a clear intention to limit the claim scope using
words or expressions of manifest exclusion or restriction.”
Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed.
Cir. 2004).
The Specification provides a variety of examples of
organic material and identifies wood sawdust as the preferred
embodiment. Kowalski did not clearly limit the claim scope of
organic material to the specific examples suggested by
Plaintiffs and Defendant Anova Inc. An ordinarily skilled
artisan would understand the meaning of “carbon-containing
material” as used in the 401 Patent. Ancora Technologies,
Inc. v. Apple, Inc., __ F.3d __, 2014 WL 803104, *6-7 (Fed.
Cir. Mar. 3, 2014).
In Kowalski v. Mommy Gina Tuna Resources, et al., Civ.
Nos. 05-00679BMK, 06-00182BMK, 05-00787BMK, the Judge
construed the term “organic material” in the ’401 Patent.
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(Ex. 3 at pp. 21-22, ECF No. 288). The Judge construed the
term to mean “carbon containing materials, including wood,
wood sawdust, and charcoal.” Id. The Court here finds it
unnecessary to include particular carbon-containing materials,
as it could be construed as a limitation.
Court’s Construction of Term 8: organic material
The Court’s construction of “organic material” is
consistent with the intrinsic evidence and the extrinsic
evidence in the record. The term “organic material” in Claims
1, 49, 50, 60, 68, 69, 74, and 75 is construed as “carbon-
containing material.”
V. CONSTRUING TERM 9: aging
“Aging” is found in Claims 23, 36, 60, and 63.
storing filtering by settling flavor

allowing components imparting phenols
to settle by storing for an
extended period of
time
The Court construes the term “aging” as “allowing the
phenols, and any other remaining carcinogens, in the smoke to
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settle.”
Claim terms are generally given their ordinary and
customary meaning as understood by a person of ordinary skill
in the art. Phillips, 415 F.3d at 1314. An exception applies
to the general rule when a patentee sets out a definition for
a claim term and acts as his own lexicographer. Thorner v.
Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir.
2012).
To act as its own lexicographer, a patentee must “clearly
set forth a definition of the disputed claim term” other than
its plain and ordinary meaning. Id. The Specification need
not reveal a term’s definition explicitly, but may do so “by
implication.” Astrazeneca LP v. Apotex, Inc., 633 F.3d 1042,
1051 (Fed. Cir. 2010).
Plaintiff Kowalski acted as his own lexicographer when he
defined the aging process in the Summary of the Invention
section of the ’401 Patent. Thorner, 669 F.3d at 1365. The
’401 Patent explains that “allowing the phenols, and any other
remaining carcinogens, in the smoke to settle, or ‘age,’ in
the inner accordion bladder or in storage canisters for future
use, is the final backup filtering step in the process. It is
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analogous to sediment settling in wine making.” (Ex. 1, ’401
Patent at 14:19-23, ECF No. 288). Plaintiff Kowalski clearly
expressed an intent to define “aging” as a specific process
distinct from the ordinary meaning of the term.
Each of the Parties’ attempts to construe the term
“aging” go beyond the definition provided by Kowalski in the
patent. Plaintiffs’ proposed construction alters the language
used by Kowalski in defining the process. Both Defendants
recognize that Kowalski defined “aging” in the patent.
Defendant Anova Inc’s proposed construction does not track the
language used by Plaintiff Kowalski. Defendant Anova LLC
seeks to add limitations from the preferred embodiment.
The definition of the term “aging” does not need to
include the parameters for use of the smoke as contemplated in
the Specification. CollegeNet, Inc., 418 F.3d at 1231. The
term is construed based on Plaintiff Kowalski acting as his
own lexicographer. AIA Engineering Ltd. v. Magotteaux Intern.
S/A, 657 F.3d 1264, 1276-77 (Fed. Cir. 2011) (finding that the
specification revealed that the patentee acted as his own
lexicographer).
The Parties have not pointed to any persuasive extrinsic
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evidence for the term “aging.”
Court’s Construction of Term 9: aging
The Court’s construction of “aging” is based on Plaintiff
Kowalski acting as his own lexicographer. The term “aging” in
Claims 23, 36, 60, and 63 is construed as “allowing the
phenols, and any other remaining carcinogens, in the smoke to
settle.”
VI. CONSTRUING TERM 10: filtering
“Filtering” is found in Claims 11, 69, and 75.
separating out or Reducing Joins in the

reducing, including requested claim
but not limited to construction of
by cooling, Anova Inc
condensing,
settling out,
and/or aging,
and/or by bringing
the smoke into
contact with other
compounds or
substances
The Court construes the term “filtering” as “a broadly-
defined process including not only passing a gas or liquid
through a porous material, but also the cooling and settling
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of the smoke.”
The “ordinary” meaning of a term should speak for itself,
and the court should avoid paraphrasing claim language with
less accurate terminology. U.S. Surgical Corp. v. Ethicon,
Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997).
Defendant Anova Inc’s proposed constructions merely
paraphrases the term “filtering.” Paraphrasing the term fails
to consider the broad description of the term in the
Specification. The Specification explains “filtering” in
broad terms as a process that includes “cooling” and
“settling.” (Ex. 1, at 8:24-26, 14:19-23, 18:33-34, 19:43,
ECF No. 288). Plaintiffs’ proposed construction considers the
broad use of the term but imports too many descriptions into
its proposed definition.
Extrinsic evidence may aid claim construction but it
cannot be used to contradict the plain and ordinary meaning of
a claim term as defined within the intrinsic record.
Phillips, 415 F.3d at 1322-23.
Plaintiffs point to a prior construction order in the
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Kowalski v. Mommy Gina Tuna Resources, et al., case as support
for its proposed definition. (Plaintiffs’ Claim Construction
Brief, ECF No. 288 at p. 37-38). In Mommy Gina Tuna
Resources, the Judge found that the Specification as a whole
referred to filtering as a process that included both the
cooling and settling processes. (Ex. 3 at pp. 22-24, ECF No.
288). The Judge construed “filtering” as “a broadly-defined
process including not only passing a gas or liquid through a
porous material, but also the cooling and settling of the
smoke.” (Id. at p. 24).
The prior construction of “filtering” is relevant and
persuasive extrinsic evidence. V-Formation, Inc., 401 F.3d at
1312.
Court’s Construction of Terms 10: “filtering”
The Court’s construction of the term “filtering” is
entirely consistent with the intrinsic evidence in the record.
The Court adopts the previous construction of the term
“filtering” as found in the Kowalski v. Mommy Gina Tuna
Resources, et al. case. “Filtering” in Claims 11, 69, and 75
is construed as “a broadly-defined process including not only
passing a gas or liquid through a porous material, but also
the cooling and settling of the smoke.”
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VII. CONSTRUING TERMS 11-18
Terms 11-18 all concern the process for removing,
reducing, filtering, or eliminating the taste, odor, or flavor
components from the smoke in the ’401 Patent. The Parties
grouped the terms together and addressed them collectively as
each phrase describes a similar process. The legal arguments
for the related terms are the same. The proposed
constructions are very similar.
The terms are divided into four sections:
(1) The Reducing Terms;
(2) The Removing Terms;
(3) The Filtering Term; and
(4) The Eliminating Terms.
Just as in the construction of the adjective “smoke,”
Defendants are attempting to expand the definition of all of
the claim terms 11 through 18.
(1) The Reducing Terms
TERM 11: “Reduce taste imparting components below

thresholds for imparting smoke odor and
taste” is found in Claims 1 and 74
TERM 12: “Reduce taste and odor imparting

particulates
and vapors below taste and odor recognition
thresholds” is found in Claim 60.
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TERM 13: “Reduce particulate and vapor phenols below

taste and odor recognition thresholds” is
found in Claim 63
reduce the taste causing reduce all taste reduce all taste
parts of that smoke at imparting components in imparting components
least enough so the the smoke to below thresholds for
aforesaid smoke would concentrations below imparting smoke odor and
not cause meat to end up those that will impart taste
with a smoked or smoky to the smoke any
odor or taste if the perceptible odor or
meat is treated with taste
that smoke
reduce the taste and reduce all taste and reduce all taste
odor giving particles odor imparting imparting components
and vapors at least particulates and vapors below thresholds for
enough so that the in the smoke to imparting smoke odor and
aforesaid smoke would concentrations below taste
not cause the seafood to those that will impart
end up with a smoked or to the smoke any
smoky odor or taste if perceptible taste or
the seafood is treated odor
with that smoke
reduce the particle reduce all phenols in reduce all taste

phenols and vapor the particulate and imparting components
phenols of that smoke at vapor phrases of the below thresholds for
least enough so the smoke to concentrations imparting smoke odor and
aforesaid smoke would below those that will taste
not cause seafood to end impart to the smoke any
up with a smoked or perceptible taste or
smoky taste and odor if odor
the seafood is treated
with that smoke
(2) The Removing Terms
TERM 14: “Removing components that impart smoke odor

from said smoke...whereby the quantity of
smoke odor imparting components removed
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from said smoke is adequate to prevent

imparting a smoke odor to said food” is
found in Claim 68.
TERM 15: “Removing a portion of said smoke odor and

flavor imparting components...so as to
prevent smoke flavoring of said food” is
found in Claim 69.
removing from that smoke removing all odor removing all taste
parts of that smoke that imparting components in imparting components
cause smoked or smoky the smoke to below thresholds for
odor, at least enough to concentrations below imparting smoke odor and
prevent causing food those that will impart taste
treated with that smoke to the smoke any
to end up with a smoked perceptible odor
or smoky odor when the
food is treated with
that smoke
remove at least enough remove all odor and remove all taste
of those smoked or smoky flavor imparting imparting components
odor and flavor causing components in the smoke below thresholds for
components so that when to concentrations below imparting smoke odor and
the food is exposed to those that will impart taste
that filtered smoke that to the smoke any
food does not end up perceptible odor or
with smoked or smoky flavor
flavoring
(3) The Filtering Term
TERM 16: “Filtering components that impart smoke

flavor from said smoke to below limits for
imparting smoke flavoring to food...without
imparting a smoke flavor to said food...to
concentrations below odor and taste
recognition thresholds for imparting a
smoke flavor to the meat” is found in Claim
75.
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filtering parts that reducing all flavor filtering all taste

give smoked or smoky imparting components in imparting components
flavor from that smoke the smoke to below thresholds for
at least enough so that concentrations below imparting smoke odor and
smoke would not cause those that will impart taste
meat to end up with a to the smoke any
smoked or smoky perceptible flavor
flavoring, and exposing
that filtered smoke to
food without giving a
smoked or smoky flavor
to that food so that the
resulting or remaining
smoke would not cause
the treated meat to end
up with a smoked or
smoky flavor when the
meat is treated with
that smoke
(4) The Eliminating Terms
TERM 17: “Eliminating said smoke taste compounds

from said smoke; and treating meat with
said smoke; whereby said treated meat does
not have a smoky taste” is found in Claim
49.
TERM 18: “Eliminating smoke taste compounds from

said smoke; treating meat with said smoke;
and whereby said treated meat does not
retain a smoky taste” is found in Claim 50.
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getting rid of those removing all smoke taste eliminating all taste
smoked or smoky taste imparting compounds in imparting components
compounds from that the smoke so that none below thresholds for
smoke at least enough so remain in the smoke, and imparting smoke odor and
that when you treat meat then treating meat with taste
with that smoke the meat the smoke from which all
does not end up with a smoke taste imparting
smoky taste compounds have been
removed
getting rid of smoked or removing all smoke taste eliminating all taste
smoky taste compounds imparting compounds in imparting components
from the aforesaid the smoke so that none below thresholds for
smoke; treating meat remain in the smoke, and imparting smoke odor and
with the aforesaid then treating meat with taste
smoke; and whereby that the smoke from which all
treated meat does not smoke taste imparting
keep or hold or end up compounds have been
with a smoky taste removed
The plain and ordinary meaning of Terms 11-18 is
sufficient.
a. Claim Terms
Claims must be construed in light of the appropriate
context in which the claim term is used. Aventis
Pharmaceuticals Inc., 715 F.3d at 1373. The “ordinary”
meaning of a term should speak for itself, and the court
should avoid paraphrasing claim language with less accurate
terminology. U.S. Surgical Corp., 103 F.3d at 1568. When the
plain and ordinary meaning of a claim term is sufficient and
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it needs no further construction, the limitations proposed by
the opposing party do not apply and that party will not be
permitted to represent to a jury that such a limitation
exists. 02 Micro Int’l Ltd., 521 F.3d at 1360; Symantec Corp.
v. Acronis, Inc., 2014 WL 230023, *4, (N.D. Cal. Jan. 21,
2014).
The Federal Circuit Court of Appeals has found that
Courts should not delineate terms of degree when the patent
provides no such standard. Exxon Research and Eng’g Co. v.
United States, 265 F.3d 1371, 1381 (Fed. Cir. 2001); Playtex
Prods., Inc. v. Procter & Gamble Co., 400 F.3d 901, 907 (Fed.
Cir. 2005).
Defendants seek to construe Terms 11-18 without
considering the context of each of the claim terms. Terms 11-
18 refer to the process in the Kowalski Patent that creates a
tasteless smoke. Claims 1 and 74 refer to the process as
creating a “substantially” tasteless smoke. (Ex. 1, ’401
Patent at Claim 1; Reexamination Certificate at Claim 74).
Defendants seek to construe the terms referring to the
“substantially tasteless” smoke to mean the smoke is
completely tasteless. Defendants request a construction where
all smoke, odor, taste, or flavor is removed in the Kowalski
Patent’s process. This construction is contrary to the claim
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language.
Defendants have not cited to a case where a court
construed a “term of degree” such as “substantially” to mean
“zero” or “all.” See Glaxo Group Ltd. v. Ranbaxy Pharms,
Inc., 262 F.3d 1333, 1337 (Fed. Cir. 2001) (finding the phrase
“essentially free of crystalline material” could be properly
construed as requiring a crystalline content of less than 10%
based on the applicant’s statements describing the prior
art”); Biotec Biologische Naturverpackungen GmbH & Co. KG v.
Biocorp, Inc., 249 F.3d 1341, 1347 (Fed. Cir. 2001)
(construing the term “substantially water free” as having a
water content below 5% in accordance with statements during
the prosecution history and distinguishing a prior art
reference having a water content from 5% to 30%).
The Federal Circuit Court of Appeals has found on
numerous occasions that the courts should not construe terms
such as “substantially” to a precise numeric constraint.
Cordis v. Medtronic AVE, Inc., 339 F.3d 1352, 1361 (Fed. Cir.
2003) (refusing to impose a precise numeric constraint on the
term “substantially uniform thickness”); Anchor Wall Sys. v.
Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1311 (Fed. Cir.
2003) (explaining that “substantially” is a descriptive term
commonly used in patent claims to avoid a strict numerical
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boundary to the specified parameter); PPG Induc. V. Guardian
Indus. Corp., 156 F.3d 1351, 1355 (Fed. Cir. 1998) (“claims
are often drafted using terminology that is not as precise or
specific as it might be....That does not mean, however, that a
court, under the rubric of claim construction, may give a
claim whatever additional precision or specificity is
necessary to facilitate a comparison between the claim and the
accused product”).
Claims 60, 63, 68, 69, and 75 cover the same subject
matter as Claims 1 and 74. Curtiss-Wright Flow Control Corp.,
438 F.3d at 1380. The Claim Terms themselves demonstrate that
the process in the ’401 Patent does not reduce, remove,
filter, or eliminate all odor, taste, or flavor from the
smoke.
Statements that describe the invention as a whole are
more likely to support a limiting definition of a claim term.
C.R. Bard, Inc., 388 F.3d at 864.
The Specification describes the ’401 Patent, as a whole,
as intending to produce seafood that appears and tastes
“similar” to fresh after it is frozen and thawed. (Ex. 1,
’401 Patent at 1:30). The Specification does not claim that
all odor, taste, and flavor are removed in the process. As
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Plaintiffs argued during the Markman hearing, the process is
intended to create a food product that tastes similar to fresh
but not identical to fresh.
The ’401 Patent in the Specification, just as in the
Claim Terms, refers to smoke as being “substantially
tasteless.” (Ex. 1, ’401 Patent at 13:13, 17:14, 19:62, ECF
No. 288). The Specification explains that “recognition
thresholds vary with the olfactory and taste senses of each
individual.” Id. at 17:14-20. Plaintiff Kowalski would not
have included the word “substantially” or the disclaimer
regarding recognition thresholds if the patent covered a
process where all taste, flavor, and odor components were
removed. The Specification does not support Defendants’
proposed constructions.
c. Prosecution History
Kowalski referred to the ’401 Patent as reducing
“substantially” all taste imparting particulates and vapors
throughout the Prosecution History.
In the March 30, 1998 Petition to Make Special, Kowalski
distinguished the ’401 Patent from the Yamaoka Patent.
Kowalski explained that the Yamaoka Patent “does not
anticipate the present invention because it does not meet the
limitation of reducing substantially all taste imparting
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particulates and vapors below recognition thresholds for odor
and taste.” (Ex. B at p. 114, ECF No. 287) (emphasis added).
Kowalski emphasized the purpose of the ’401 Patent was to
“remove substantially all taste imparting components.” (Id.
at p. 115) (emphasis added). In the July 28, 1998 Petition to
Make Special, Kowalski again distinguished his patent from
prior art because the Yamaoka Patent “does not meet the
limitation of reducing substantially all taste imparting
particulates and vapors.” (Id. at p. 131) (emphasis added).
During the Markman hearing, Defendants pointed to a
single instance in the Prosecution History where Kowalski
omitted the word “substantially.” (ECF No. 287 at p. 122).
The one instance of failing to include “substantially” in the
Prosecution History does not demonstrate that the ’401 Patent
creates a smoke without any taste, odor or flavor. The
omission of one use of “substantially” cannot be a basis of
ignoring the otherwise continual use of “substantially” in the
Claims, the Specification, and the Prosecution History. The
Intrinsic Evidence does not support Defendants’ claim
construction for the terms relating to the process of creating
super-purified smoke in the ’401 Patent.
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Defendant’s proposed constructions conflict with the
previous constructions of terms in Claims 1, 68, and 69. In
Kowalski v. Mommy Gina Tuna Resources, et al., Civ. Nos. 05-
00679BMK, 06-00182BMK, 05-00787BMK, the Judge construed
“reduce taste imparting components below thresholds for
imparting smoke odor and taste” from Claim 1 as “reduce the
taste imparting components (i.e., parts) of the generated
(i.e., produced) smoke at least enough so that the resulting
or remaining smoke would not give smoke odor and taste to
meat.” (Ex. 21 at p. 2, ECF No. 288). The Judge did not find
that the claim term covered a process where the smoke did not
give “any” odor or taste to meat as proposed by Defendants.
In the previous construction in Mommy Gina Tuna
Resources, the Judge construed one of the removing terms.
(Id.) The Judge construed the term “removing components that
impart smoke odor from said smoke...whereby the quantity of
smoke odor imparting components removed from said smoke is
adequate to prevent imparting a smoke odor to said food” from
Claim 68. The Judge construed the term as a process “whereby
the amount of [‘]smoke odor giving parts[’] that were removed
is sufficient to prevent giving a smoke odor to the food.”
(Ex. 21 at p. 4, ECF No. 288). The previous construction of
the Kowalski Patent provides no support for Defendants’
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position that Terms 11-18 should be construed to cover a
process where all odor, taste, and flavor was removed,
reduced, filtered, or eliminated from the smoke.
The Court’s Construction of Terms 11-18
Defendants’ proposed constructions of Terms 11-18 are
contrary to both the Intrinsic and the Extrinsic Evidence in
the record.
Plaintiffs’ proposed constructions are unnecessary and
confusing. Bd. Of Regents of the Univ. Of Tex. Sys., 533 F.3d
at 1370. Plaintiffs’ constructions do not consider the
context of the terms in the Claims themselves. Aventis
Pharmaceuticals Inc., 715 F.3d at 1373. It is inappropriate
to paraphrase Claim Terms with less precise descriptions.
U.S. Surgical Corp., 103 F.3d at 1568.
The Court declines to construe Terms 11-18 any further
than their plain and ordinary meaning. Defendants’ arguments
relating to their proposed constructions are rejected and may
not be presented to the jury. 02 Micro Int’l Ltd., 521 F.3d
at 1360; Symantec Corp. v. Acronis, Inc., 2014 WL 230023, *4,
(N.D. Cal. Jan. 21, 2014). A person of ordinary skill in the
art would understanding the terms as used in the patent.
Allvoice Computing PLC, v. Nuance Communications, Inc., 504
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F.3d 1236, 1242 (Fed. Cir. 2007) (explaining that the record
shows that an artisan of ordinary skill would understand the
bounds of the claim when read in light of the patent).
VIII. CONSTRUING TERM 19: different time and place
“Different time and place” is found in Claim 44.
not as one continuous, No need for Joins in the

uninterrupted flow construction requested claim
operation, e.g., where construction of
the manufactured smoke
Anova Inc
is put in a storage
container and used for
treatment later and/or
used in a different
location unconnected to
the smoke generation
equipment
The plain and ordinary meaning of the term “different
time and place” is sufficient.
a. Claim Terms
Claim terms must be construed in light of the appropriate
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context in which they are used. Aventis Pharmaceuticals Inc.,
715 F.3d at 1373. Claim 44 is a claim dependent on Claims 1
through 3. Claim 44 provides that the steps for creating
smoke are carried out at a “different time and place” than the
steps for treating the food with the smoke. Claims 23, 36,
and 37 are also dependent on Claims 1 through 3. Claims 23,
36, and 37 provide for specific time durations between
creating the smoke and treating the food. Claims 60 and 63
also describe specific time durations between the creation of
the smoke and the treatment of the food.
It is clear based on the Claims themselves that the ’401
Patent covers a process where the creation of the smoke and
the treatment of the food may be performed at a “different
time and place.”
Even preferred embodiments that contain a particular
limitation are insufficient to limit a claim term beyond its
ordinary meaning. Aventis Pharma S.A., 675 F.3d at 1330.
The Abstract in the ’401 Patent states that the smoke may
be used to treat food “at the same time or at another place
and time.” (Ex. 1, ‘401 Patent at Abstract, ECF No. 288).
The Specification explains that the ’401 Patent covers a
process where the creation of smoke is performed at “another
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time or place” than the treatment of the food with the smoke.
(Id. at 1:43, 15:12, 21:15, The Specification states:
If treatment at another time or place is desired

the aging process continues in storage canisters and
the flavor imparting phenol levels decline even
further through decomposition. However, these
canisters can not be kept indefinitely, since
phenols that have a beneficial preservative effect
will begin to degrade as well. Treatment from
canisters may be done after one hour of aging and
preferably within one year of aging. Therefore, the
use of tasteless super-purified smoke does not have
to correspond to the operation of the smoke
manufacturing part of the process allowing for much
flexibility and versatility industry wide.
(Ex. 1, ’401 Patent at 14:41-51, ECF No. 288).
The Specification indicates the preferred “different
time” for food treatment is after one hour but within one year
of aging the smoke. Id. The Specification states that the
smoke cannot be kept “indefinitely.” Id.
The particular embodiment does not limit the construction
of the term “different time and place.” Aventis Pharma S.A.,
675 F.3d at 1330. The Specification makes clear that the
location and durations for completing the process covered by
the ‘401 Patent is intended to be applied with “much
flexibility and versatility.” (Ex. 1, ’401 Patent at 14:41-
51, ECF No. 288).
c. Prosecution History
A patentee may limit the meaning of a claim term by
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prosecution. Purdue Pharma L.P., 438 F.3d at 1136.
Kowalski’s initial application submitted for the ’401
Patent indicates that the processes for creating the smoke and
treating the food may be done “at the same time or at another
place and time.” (Ex. B at pp. 25, 27, 47, 49, 61, ECF No.
287). The Prosecution History states that one object of the
invention was “to store the tasteless super-purified smoke in
either a temporary storage vessel or to pump it into canisters
kept at ambient room temperature for future treatment of
seafood (and other meat, and meat products).” (Id. at p. 30).
The initial application in the Prosecution History makes clear
that “the use of tasteless super-purified smoke does not have
to correspond to the operation of the smoke manufacturing part
of the process.” (Id. at p. 50).
Extrinsic evidence may aid claim construction but it
cannot be used to contradict the plain and ordinary meaning of
a claim term as defined within the intrinsic record.
Phillips, 415 F.3d at 1322-23.
The plain and ordinary meaning is sufficient and the
Court need not look to extrinsic evidence when the terms is
defined within the intrinsic record. The Specification
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provides for optimal durations in time for the processes of
aging, treating, and storing the meat and the smoke. (Ex. 1,
’401 Patent at 14:24-33; 19-22, ECF No. 288). The
Specification explains that the canisters containing the smoke
“can not be kept indefinitely, since phenols that have a
beneficial preservative effect will begin to degrade.” (Id.
at 14:44-46). A person of ordinary skill in the art would not
believe the Kowalski patent created a process for producing
smoke that could be kept indefinitely to treat food.
A person of ordinary skill in the art can understand the
term “different time and place” in the context of the ’401
patent. Allvoice Computing PLC, 504 F.3d at 1242.
Court’s Construction of Term 19
A claim term should be given its ordinary meaning unless
the patentee has made clear its adoption of a different
definition or otherwise disclaimed its ordinary meaning.
Ancora Technologies, Inc., 2014 WL 803104, at *2.
The plain and ordinary meaning of the term “a different
time and place” is sufficient.
CONCLUSION
The Court construes the disputed terms as follows:
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(1) “Smoke odor” is construed as “smoked or smoky odor.”
(2) “Smoke taste” is construed as “smoked or smoky
taste.”
(3) “Smoke flavor” is construed as “smoked or smoky
flavor.”
(4) “Smoke flavoring” is construed as “smoked or smoky
flavoring.”
(5) “Smoke” is construed as “the emissions from
heating an organic material.”
(6) “Heating” is given its plain and ordinary meaning.
(7) “Burning” is given its plain and ordinary meaning.
(8) “Organic material” is construed as “carbon-
containing material.”
(9) “Aging” is construed as “allowing the phenols, and
any other remaining carcinogens, in the smoke to
settle.”
(10) “Filtering” is construed as “a broadly-defined
process including not only passing a gas or
liquid through a porous material, but also the
cooling and settling of the smoke.”
(11) “Reduce taste imparting components below
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thresholds for imparting smoke odor and taste”
is given its plain and ordinary meaning.
(12) “Reduce taste and odor imparting particulates
and vapors below taste and odor recognition
thresholds” is given its plain and ordinary
meaning.
(13) “Reduce particulate and vapor phenols below
taste and odor recognition thresholds” is given
its plain and ordinary meaning.
(14) “Removing components that impart smoke odor from
said smoke...whereby the quantity of smoke odor
imparting components removed from said smoke is
adequate to prevent imparting a smoke odor to
said food” is given its plain and ordinary
meaning.
(15) “Removing a portion of said smoke odor and
flavor imparting components...so as to prevent
smoke flavoring of said food” is given its plain
and ordinary meaning.
(16) “Filtering components that impart smoke flavor
from said smoke to below limits for imparting
smoke flavoring to food...without imparting a
smoke flavor to said food...to concentrations
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below odor and taste recognition thresholds for
imparting a smoke flavor to the meat” is given
its plain and ordinary meaning.
(17) “Eliminating said smoke taste compounds from
said smoke; and treating meat with said smoke;
whereby said treated meat does not have a smoky
taste” is given its plain and ordinary meaning.
(18) “Eliminating smoke taste compounds from said
smoke; treating meat with said smoke; and
whereby said treated meat does not retain a
smoky taste” is given its plain and ordinary
meaning.
(19) “A different time and place” is given its plain
and ordinary meaning.
IT IS SO ORDERED.
Dated: March 31, 2014, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
William R. Kowalski; Hawaii International Seafood, Inc., v.

Anova Food, LLC; Clearsmoke Technologies, LTD; Does 1-10;
Anova Food, Inc.; Civil No. 11-00795HG-BMK; CLAIM CONSTRUCTION
ORDER 54
45055
EXHIBIT 2
Case 1:15-cv-00111-TWP-MJD Document
Case5:11-cv-00774-PSG 1092-3 Filed
Document87 07/07/23 Page1
Filed08/03/12 Page 2ofof23 PageID #:
45056
1 JEFFER MANGELS BUTLER & MITCHELL LLP

STANLEY M. GIBSON (Bar No. 162329), sgibson@jmbm.com
2 GREGORY S. CORDREY (Bar No. 190144), gcordrey@jmbm.com
1900 Avenue of the Stars, Seventh Floor
3 Los Angeles, California 90067-4308
Telephone: (310) 203-8080
4 Facsimile: (310) 203-0567
5 Attorneys for Plaintiffs

SEALANT SYSTEMS INTERNATIONAL, INC., and
6 ACCESSORIES MARKETING, INC.
8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN JOSE DIVISION
11 SEALANT SYSTEMS INTERNATIONAL, CASE NO. 11-cv-774-PSG (Lead case)

INC., and ACCESSORIES MARKETING,
12 INC., [PROPOSED] ORDER FURTHER
AMENDING THE AMENDED CASE
13 Plaintiffs, MANAGEMENT ORDER
14 v.
[Ex Parte Application filed concurrently
15 TEK GLOBAL S.R.L. and TEK herewith]
CORPORATION,
16 (CONSOLIDATED WITH CASE NO. 11-cv-
Defendants. 1649)
17
Fact Discovery Cut-Off: June 15, 2012
18 Trial Date: February 6, 2013
19
20
21
22
23
24
25
26
27
28
PRINTED ON
RECYCLED PAPER 29
LA 8916636v2
-1-
[PROPOSED] ORDER FURTHER AMENDING THE AMENDED CASE MANAGEMENT ORDER
Case5:11-cv-00774-PSG 1092-3 Filed
Document87 07/07/23 Page2
Filed08/03/12 Page 3ofof23 PageID #:
45057
1 [PROPOSED] ORDER
2 The Court, having reviewed Plaintiffs Sealant Systems International, Inc., and Accessories
3 Marketing, Inc.'s (collectively, "Plaintiffs") Ex Parte Application for an Order Further Amending
4 the Amended Case Management Order (the "Application"), and good cause appearing therefor,
5 hereby ORDERS that:
6 1. The Application is GRANTED.
7 The Amended Case Management Order entered in this case, as amended on July 10, 2012, is
8 hereby further amended as follows:
9 2. The existing date for opening expert reports is hereby vacated and will be reset to a
10 date six weeks after the Court issues a claim construction order.
11 3. The existing deadlines for filing and hearing dispositive motions, submitting rebuttal
12 expert reports, and the close of expert discovery are hereby vacated. Once TEK's new counsel has
13 entered an appearance, the parties are ordered to meet and confer to propose to the Court a revised
14 schedule for these dates. In the event that TEK does not obtain new counsel, or that counsel does
15 not enter an appearance in this case before the deadline, Plaintiffs are ordered to submit their
16 opening expert report by the date to be established pursuant to Item 2 of this Order, above.
17 IT IS SO ORDERED.
18
19 Dated: _______________,
August 3 2012 ______________________________
20 Hon. Paul Singh Grewal

United States District Court
21
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27
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PRINTED ON
29 -2-
RECYCLED PAPER
[PROPOSED] ORDER FURTHER AMENDING THE AMENDED CASE MANAGEMENT ORDER
LA 8916636v2
45058
EXHIBIT 3
Case
8:08-cv-00537-JFB-CRZ
1:15-cv-00111-TWP-MJD
DocDocument
# 159 Filed:
1092-4
03/24/10
Filed 07/07/23
Page 1 of 12
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2 of ID
13 #PageID
4436 #:
45059
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PRISM TECHNOLOGIES, LLC, )

)
Plaintiff, ) 8:08CV537
)
v. )
)
RESEARCH IN MOTION, LTD, ) MEMORANDUM AND ORDER
)
Defendant. )
______________________________)
I. INTRODUCTION
This matter is before the Court on plaintiff Prism
Technologies, LLC’s (“Prism”) motion to amend its disclosure of
asserted claims and preliminary infringement contentions (Filing
No. 119). Defendant Research in Motion, Ltd. (“RIM”) opposed
Prism’s motion and filed a brief in opposition (Filing No. 134).
Thereafter, Prism filed a reply brief (Filing No. 142).1 In
RIM’s opposition brief, RIM requested oral argument prior to the
Court’s resolution of the motion to amend. The Court held a
hearing on March 17, 2010, at which the parties presented
arguments supporting their positions. Upon reviewing Prism’s
motion, the parties’ briefs and evidentiary submissions, the
parties’ oral arguments, and the relevant law, the Court finds
Prism’s motion to amend should be granted.
1
Prism also filed a motion to file its reply brief under
seal, which the Court will grant.
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II. BACKGROUND
This patent case arises out of a dispute regarding U.S.
Patent No. 7,290,288 (the “‘288 patent”), entitled “Method and
System for Controlling Access, by an Authentication Server, to
Protected Computer Resources Provided Via an Internet Protocol
Network,” which Prism putatively holds (Complaint, Filing No. 1,
at 1). Prism filed this action on December 29, 2008, alleging
RIM and Microsoft Corp. had infringed upon the ‘288 patent (Id.).
Prism and Microsoft settled, and the Court dismissed Microsoft
from the case on September 28, 2009 (Filing No. 67).
On May 1, 2009, the parties filed a planning meeting
report, pursuant to Fed. R. Civ. P. 26(f) (the “Rule 26(f)
Report”) (Rule 26(f) Report, Filing No. 42). In the Rule 26(f)
Report, Prism acknowledged that it would serve its initial
asserted claims and infringement contentions by June 19, 2009
(Id. at 11). The parties agreed Prism could amend its
infringement contentions through August 21, 2009, without seeking
leave of Court (Id.). The parties also agreed in the Rule 26(f)
Report that Prism would be allowed to amend its infringement
contentions without leave of Court up to fifteen days after the
Court’s entry of a claims construction ruling (Id.). For all
other amendments, Prism would have to obtain leave of Court
(Id.).
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Prism disclosed its asserted claims and preliminary
infringement contentions on June 26, 2009 (Prism Disclosure,
Filing No. 140-4, Exhibit 4, at 48). In this disclosure, Prism
alleged one instance in which RIM’s system had infringed upon the
‘288 patent: “RIM’s internal use of the Smart Card technology in
conjunction with RIM’s BlackBerry Desktop Wired Activation
Feature Utilizing a BlackBerry Enterprise Server in Conjunction
with Any Compatible BlackBerry Mobile Device” (Id. at 3).
In making its infringement contentions, Prism had not
had the opportunity to review numerous documents RIM held that
were relevant to the case. Because many of RIM’s documents that
were relevant to the case were confidential in nature, RIM
refused to disclose these confidential documents to Prism until a
protective order was in place (Prism’s Index, Filing No. 143-3,
Exhibit C, at 6). In light of this and pursuant to the Rule
26(f) Report, the parties began to negotiate the terms of a
protective order on May 29, 2009 (Prism’s Index, Filing No. 143-
2, Exhibit B, at 4). A draft protective order was prepared and
distributed on June 2, 2009, and Prism provided comments on the
draft protective order on June 15, 2009 (Id. at 2, 3). The
parties continued to negotiate the protective order’s terms
throughout July 2009 and into August (See generally id. at 1-6).
Ultimately, the parties agreed to a protective order on August
19, 2009, and the Court entered the protective order August 20,
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2009,2 one day before Prism’s deadline to file amended
infringement contentions without leave of Court (Id.; Filing No.
63). Prism sent a letter to RIM on August 21, 2009, informing
RIM that Prism would not amend its preliminary infringement
contentions, but that Prism was reserving the right to supplement
its preliminary infringement contentions after Prism had an
opportunity to review the confidential documents RIM would
produce to Prism (Niro-Breedlove Letter, Filing No. 119-1,
Exhibit 1, at 2).
From August 2009 to present, RIM disclosed numerous
documents to Prism on a rolling basis. Prior to the Court’s
entry of the protective order, RIM produced 15,198 pages of
documents (Prism’ Motion to Amend, Filing No. 119, at 2). After
the protective order’s entry, RIM disclosed documents to Prism as
follows:
MONTH NUMBER OF DOCUMENTS PRODUCED

August (After Protective 14,037
Order’s Entry)
September 0
October 522,413
November 31,664
December 32,662
January 421
2
The Court entered an amended protective order on February
9, 2010, at Prism and RIM’s request (Filing Nos. 115 & 122).
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February 848
March 26,442
(Id.; Prism’s Hearing Presentation, at slide 4).
While RIM was in the midst of its rolling document
production, Prism’s counsel moved to withdraw from the case on
November 25, 2009 (Filing No. 81). The Court granted this motion
on December 10, 2009, and Prism’s current counsel began its
representation of Prism (Filing No. 107). The next day, in
recognition of the fact that Prism’s new counsel would need time
to become familiar with the case, the Court entered an amended
final progression order (Filing No. 109), which moved the
deadlines in the case back approximately ninety days.
On January 28, 2010, Prism notified RIM of Prism’s
intent to amend its preliminary infringement contentions
(Walters-Breedlove Letters, Filing No. 143-1, Exhibit A, at 2).
Prism soon thereafter revised its preliminary infringement
contentions and provided these revisions to RIM on February 2,
2010 (Id. at 3). After RIM informed Prism of RIM’s intent to
oppose the amendments, Prism filed its motion to amend on
February 5, 2010 (Filing No. 119, at 3). In its amended
infringement contentions, Prism alleged the following systems of
RIM’s BlackBerry Enterprise Solution infringed upon the ‘288
patent:
• RIM’s BlackBerry Wired Desktop

Activation Configuration utilizing
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BlackBerry Enterprise Server with

any compatible BlackBerry
Smartphone Device;
• RIM’s BlackBerry Wired Web Desktop

Activation Configuration utilizing
BlackBerry Enterprise Server with
any compatible BlackBerry
Smartphone Device; and
• RIM’s BlackBerry Wired

Administrator Activation
Configuration utilizing BlackBerry
Enterprise Server with any
compatible BlackBerry Smartphone
Device.
(Prism’s Amended Infringement Contentions, Filing No. 120, at 2-
3).
III. ANALYSIS
In patent cases, many courts use a “good cause”
standard for evaluating whether a motion to amend should be
granted. Courts evaluating whether good cause exists focus on
whether the moving party acted diligently when new evidence is
revealed to the moving party in discovery. O2 Micro Int’l Ltd.
v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1363 (Fed. Cir.
2006). In evaluating whether a party acted diligently, the
moving party must show the delay is attributable to something
other than error. Bd. of Trs. of Leland Stanford, Jr. Univ. v.
Roche Molecular Sys., No. C 05-04158, 2008 WL 624771, at *3 (N.D.
Cal. Mar. 4, 2008).
The Court finds Prism acted diligently in making its
motion to amend and, therefore, good cause exists allowing the
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Court to grant leave to Prism to amend its infringement
contentions. The record reflects that the majority of the
600,000 plus pages of documents that RIM provided to Prism were
disclosed on a rolling basis after the August 21, 2010, deadline
for amending infringement contentions without leave of the Court.
Upon disclosure, Prism needed some time to analyze RIM’s
documents and to refine its theories of infringement. Given the
sheer volume of documents, the technical nature of the case, and
RIM’s rolling document production, it is clear that Prism acted
diligently in filing its motion to amend its infringement
contentions.
RIM cites Orion v. Staples, Inc., No. 2:04-CV-297, slip
op. at 3 (E.D. Tex. July 7, 2005), as supporting the rule that a
movant does not have good cause to amend its infringement
contentions when the information providing the basis for the
amendment was publicly available. However, this rule is not as
broad as RIM suggests. In American Video Graphics, L.P. v.
Electronic Arts, Inc., which the court in Orion cited as the
basis for this “publicly available information” rule, the court
recognized that “software cases present unique challenges”
because plaintiffs typically do not have access to the underlying
technical information alleged to infringe the patent. Am. Video
Graphics, L.P. v. Elec. Arts, Inc., 359 F. Supp. 2d 558, 560
(E.D. Tex. 2005). By contrast, in non-software cases, plaintiffs
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are typically able to produce and ascertain the mechanics of how
the defendants’ product infringes the plaintiffs’ patent. Am.
Video, 359 F. Supp. 2d at 560. This case is similar to American
Video insofar as both of these software cases involve alleged-
infringing products that require analysis of highly technical
information that is not necessarily apparent in the products’
final manifestation. While the final manifestation of RIM’s
products and some of the technical information underlying them
may have been publicly available, similar to the product in
American Video, this does not mean Prism could have meaningfully
utilized that information in making its preliminary infringement
contentions.3
RIM also argues Prism did not act diligently because
Prism delayed the Court’s entry of a protective order, which in
turn delayed RIM’s production of documents. Upon reviewing the
evidentiary submissions, the Court cannot conclude either party
was more blameworthy than the other for the protective order’s
delayed entry. Furthermore, even assuming Prism caused the
delay, and the protective order had been entered immediately
3
Moreover, even assuming the highly technical information
Prism needed to craft its infringement contentions was publicly
available, this would not necessarily mean that Prism lacked good
cause to amend its infringement contentions. Litigants are
entitled to rely on the information disclosed to them during
discovery to hone their theories of the case. The Court is not
aware of any rule requiring a litigant to scour the universe of
publicly available information to find discoverable information,
and RIM does not cite to such a rule.
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after it was initially drafted and distributed on June 2, 2009,
this would only account for a two-and-one-half month delay.
Given the rate at which RIM was disclosing documents to Prism,
the majority of the documents RIM provided still would have been
disclosed in close proximity to or after the August 21, 2009,
deadline to amend infringement contentions.
Having established Prism acted diligently, the Court
must determine whether RIM would be prejudiced if the Court
granted Prism’s motion to amend its infringement contentions.
See Performance Pricing, Inc. v. Google, Inc., No. 2:07cv-432,
2009 U.S. Dist. LEXIS 84211, at *7 (E.D. Tex. Aug. 28, 2009).
Prejudice to the non-moving party “is significantly lessened when
amendment occurs prior to the [claim construction] hearing.” Id.
at *14. RIM argues amending the infringement contentions would
jeopardize the pending claims construction hearing, but RIM does
not elaborate on how the hearing would be jeopardized. Rather,
RIM acknowledged at the hearing on Prism’s motion to amend that
the claims construction hearing could occur as early as May 19,
2010. This would represent only a one month delay from the date
on which the claims construction hearing is currently scheduled
to commence.
RIM also cites the burden and expense it would undergo
by having to litigate the additional infringement contentions
Prism seeks to avoid. However, Prism will have an opportunity to
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amend its infringement contentions after the claims construction
hearing without seeking leave of Court. See Rule 26(f) Report,
Filing No. 42, at 11 (permitting Prism to amend its infringement
contentions without leave of Court up to fifteen days after the
Court enters its claim construction ruling). In light of these
considerations, RIM has not demonstrated that it will be
prejudiced by Prism’s amendments.
Finally, RIM argues the Court should reject Prism’s
motion to amend its infringement contentions because Prism’s
proposed amendments are vague and ambiguous. Indeed, at the
hearing, the majority of RIM’s argument focused on the relative
clarity of Prism’s amended infringement contentions. While
Prism’s amended infringement contentions perhaps may not be
readily clear and unambiguous, the Court finds this issue is not
appropriate for disposition in the context of a motion to amend.
The Court encouraged the parties at the hearing to meet and
discuss the clarity issues RIM has with Prism’s amended
infringement contentions and to attempt to resolve these issues
without the Court’s intervention. If the parties cannot resolve
these issues, the Court will entertain an appropriate motion from
RIM. Accordingly,
IT IS ORDERED:
1) Prism’s motion to file under seal (Filing No. 141)
is granted;
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2) Prism’s motion to amend its asserted claims and
infringement contentions (Filing No. 119) is granted;
3) RIM’s oral motion for leave to take three
additional depositions to address prior art and/or clarification
of, and the factual basis for, Prism’s amended infringement
contentions is granted; and
4) RIM’s oral motion to amend certain case deadlines
is granted:
A) RIM may supplement claim

constructions if useful to resolve
dispute of claim scope in light of
amended infringement contentions
and/or Prism’s reply brief on or
before April 9, 2010.
B) RIM shall file amended

invalidity contentions on or before
April 23, 2010.
C) The parties shall disclose non-

expert witnesses on or before April
30, 2010.
D) The parties may present a

technology tutorial to the Court
on:
Tuesday, June 8, 2010, at 1:30 p.m.
Courtroom No. 5, Roman L. Hruska

United States Courthouse, 111 South
18th Plaza, Omaha, Nebraska. The
tutorial shall be in conformity
with the conditions set forth in
the joint motion (Filing No. 148).
E) The claim construction hearing

is scheduled for:
Wednesday, June 9, 2010, at 9 a.m.
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Courtroom No. 5, Roman L. Hruska

United States Courthouse, 111 South
18th Plaza, Omaha, Nebraska.
DATED this 24th day of March, 2010.
BY THE COURT:
/s/ Lyle E. Strom

____________________________
LYLE E. STROM, Senior Judge
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EXHIBIT 4
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IN RE: METHOD OF PROCESSING )

ETHANOL BYPRODUCTS AND )
RELATED SUBSYSTEMS (‘858) PATENT ) No. 1:10-ml-02181-LJM-DML
LITIGATION )
)
RELATED CASES: )
1:10-cv-00180-LJM-DML )
1:10-cv-08000-LJM-DML )
1:10-cv-08001-LJM-DML )
1:10-cv-08002-LJM-DML )
1:10-cv-08003-LJM-DML )
1:10-cv-08004-LJM-DML )
1:10-cv-08005-LJM-DML )
1:10-cv-08006-LJM-DML )
1:10-cv-08007-LJM-DML )
1:10-cv-08008-LJM-DML )
1:10-cv-08009-LJM-DML )
1:10-cv-08010-LJM-DML )
1:10-cv-08011-LJM-DML )
1:13-cv-08012-LJM-DML )
1:13-cv-08013-LJM-DML )
1:13-cv-08014-LJM-DML )
1:13-cv-08015-LJM-DML )
1:13-cv-08016-LJM-DML )
1:13-cv-08017-LJM-DML )
1:13-cv-08018-LJM-DML )
1:14-cv-08019-LJM-DML )
1:14-cv-08020-LJM-DML )
ENTRY & ORDER FOR THURSDAY, JULY 9, 2015
THE HONORABLE LARRY J. McKINNEY, SENIOR JUDGE
The parties appear with or by counsel for telephonic disposition of Defendants’
Motion to Compel Discovery of Specific Attorney-Client Communications Relating to
Intent to Deceive the PTO and Withheld by CleanTech Under a Claim of Privilege (the
“MTC”). Dkt. No. 1394. Wesley A. Horner, Steven B. Pokotilow, Michael Joseph Rye,
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and Binni N. Shah appear for Plaintiffs/Counter-Defendants GS CleanTech Corporation
and Greenshift Corporation. Michael F. Buchanan appears for Defendants ACE Ethanol,
LLC, and GEA Westfalia Separator, Inc.; Spiro Bereveskos and Lisa Kiday appear for
Defendant Iroquois Bio-Energy, Co.; John Weyrauch and Paul P. Kempf appear for
Defendants Big River Resources – Galva, Big River Resources – West Burlington, LLC,
Cardinal Ethanol, Flottweig Separation Technologies, Flottweig AG, Guardian Energy,
LLC, ICM, Inc., LincolnLand Agri-Energy, LLC, Little Sioux Corn Processors, LLLP,
Pacific Ethanol Magic Valley, LLC, Southwest Iowa Renewable Energy, LLC, David
Vander Griend and Western New York Energy, LLC; Glenn L. Johnson appears for
Lincolnway Energy, LLC; J. Donald Best appears for Defendants Bushmills Ethanol, Inc.,
Chippewa Valley Ethanol Company, LLC, Heartland Corn Products, and United
Wisconsin Grain Producers; and Michael Dee appears for Defendants Aemetis, Inc.,
Aemetis Advanced Fuels Keyes, Inc., Homeland Energy Solutions, LLC, and Pacific
Ethanol Stockton (all Defendants, collectively, “Defendants”). Amy Doman is Court
Reporter.
For the reasons stated on the record, the Court DENIES the MTC, except as to
whether or not David Cantrell and David Winsness had communications with any counsel
regarding the invention date and other issues identified on Master Docket No. 1512-2,
Paragraph 41; yes or no answers to such questions are not privileged. This ruling is not
intended to and is not a decision on the merits as to whether or not any fraud or inequitable
conduct occurred. Further, this is not a ruling on the scope of the discovery to be
completed as discussed on the record at the Hearing on July 8, 2015, or with respect to
the Magistrate Judge’s prior rulings on any motions or quash or motions to compel.
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CleanTech moves for continuance of the Final Pretrial Conference in light of Yom
Kippur; the motion is GRANTED. The Final Pretrial Conference currently set for
Wednesday, September 23, 2015, is hereby VACATED and is RE-SET for Thursday,
September 24, 2015, at 1:30 p.m., in Room 361, Birch Bayh Federal Building and United
States Courthouse, 46 East Ohio Street, Indianapolis, Indiana. All related deadlines
remain the same as those in the Court’s previous Entry & Order for Wednesday, July 8,
2015.
IT IS SO ORDERED this 9th day of July, 2015.
________________________________
LARRY J. McKINNEY, JUDGE
Southern District of Indiana
Electronically distributed to all registered attorneys of record via CM/ECF.

45075
EXHIBIT 5
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1
2
3
4
5
6 UNITED STATES DISTRICT COURT
7 SOUTHERN DISTRICT OF CALIFORNIA
8
9 ILLINOIS TOOL WORKS, INC. dba CASE NO. 09CV1887 JLS (MDD)
WYNN’S, a Delaware Corp.,
10 ORDER GRANTING EX PARTE
Plaintiff, MOTION TO SET TRIAL DATE
11 vs. FOR OCTOBER 31, 2012
12 (ECF No. 242)
MOC PRODUCTS COMPANY, INC., a
13 California Corp.,
14 Defendant.
15
Presently before the Court is MOC Products Company, Inc.’s (“MOC”) Ex Parte Motion to
16
Set Trial Date for October 31, 2012. (ECF No. 242) Also before the Court is Illinois Tool Works,
17
Inc.’s (“ITW”) response in opposition. (ECF No. 243) Counsel for both parties represent that the
18
current trial date—set for September 17, 2012, through October 2, 2012—is unworkable as it
19
conflicts with the Jewish high holidays of Rosh Hashanah and Yom Kippur. MOC proposes
20
continuing the trial until October 31, 20121; ITW proposes instead that trial not be conducted on
21
September 17, 18, 19, 25, and 26 (and, accordingly, that the trial extend until October 11, 2012).
22
Having considered the parties’ arguments, the Court finds that there is good cause to reset
23
the trial date, but that ITW’s proposal is untenable. Not only would such a scattered schedule
24
unnecessarily burden the jury, but the need to extend the trial until October 11, 2012, or later
25
conflicts with the Court’s schedule.
26
27
28 1
The Court previously set an alternative trial date, set to begin on October 29, 2012. The
parties are in agreement that this date be continued two days to October 31, 2012.
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1 Accordingly, the Court HEREBY RESETS this matter for trial, beginning on October 31,
2 2012, through November 19, 2012. The Court advises the parties that there is another civil matter
3 set for trial at this time, and that therefore this matter will trail that one, such that trial will begin as
4 soon as the jury begins deliberations in that matter.
5 IT IS SO ORDERED.
6
7 DATED: June 4, 2012
8 Honorable Janis L. Sammartino
United States District Judge
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2- 09cv1887
45078

KNAUF INSULATION, INC.,

KNAUF INSULATION GMBH, AND
KNAUF INSULATION SPRL,
Case No. 1:15-CV-00111-TWP-MJD
Plaintiffs,
Honorable Tanya W. Pratt
vs.
Magistrate Judge Mark J. Dinsmore
JOHNS MANVILLE CORPORATION and
JOHNS MANVILLE, INC.,
Defendants.
[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO CONTINUE TRIAL
This matter is before the Court on Defendants’ Motion to Continue Trial. Being duly
advised, that motion is GRANTED. The final pretrial conference is rescheduled for
____________, 2023 and the trial in this matter is rescheduled for ____________, 2023.
Dated: _______________________, 2023 ______________________________________

Judge, United States District Court
Southern District of Indiana
Service will be made electronically on all

ECF-registered counsel of record via email
generated by the court’s ECF system.

Knauf v. Johns Manville - Motion To Continue Trial (Because LKQ)

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Case 1:15-cv-00111-TWP-MJD Document 1092 Filed 07/07/23 Page 1 of 6 PageID #: 44992

UNITED STATES DISTRICT COURT

KNAUF INSULATION, INC., KNAUF

DEFENDANTS’ MOTION TO CONTINUE TRIAL

approximately ninety days.”).

Plaintiff’s claims in this case”).

thereafter as the Court’s schedule permits.

is in good faith and not for the purpose of undue delay.

A proposed order is attached.

Dated: July 7, 2023 Respectfully submitted,

/s/ James W. Riley, Jr.

David Bilsker (pro hac vice)

Duane Lyons (pro hac vice)

Brett J. Arnold (pro hac vice)

Owen Fullerton Roberts (pro hac vice)

Hannah E. Dawson (pro hac vice)

Kevin M. Bell (pro hac vice)

Counsel for Defendants Johns Manville

/s/ James W. Riley, Jr.

UNITED STATES DISTRICT COURT

KNAUF INSULATION, LLC, )

DECLARATION OF MELISSA BAILY IN SUPPORT OF DEFENDANTS’ MOTION TO

I, Melissa Baily, declare as follows:

Motion to Continue Trial.

and would competently testify thereto.

3. Attached hereto as Exhibit 1 is Kowalski v. Hawaii International Seafood, Inc., No.

1:11-cv-00795-HG-RLP, Dkt. 311 (D. Haw. Mar. 31, 2014).

4. Attached hereto as Exhibit 2 is Sealant Systems International Inc. v. TEK Global

S.R.L., No. 5:11-cv-00774-VC, Dkt. 87 (N.D. Cal. Aug. 3, 2012).

5. Attached hereto as Exhibit 3 is Prism Technologies v. Research in Motion, Ltd.,

No. 8:08-cv-00537-JFB-CRZ, Dkt. 159 (D. Neb. Mar. 24, 2010).

6. Attached hereto as Exhibit 4 is In re: Method of Processing Ethanol Byproducts

and Related Subsystems (’858) Patent Litigation, No. 1:10-ml-02181-LJM-DML,

Dkt. 1529 (S.D. Ill. July 9, 2015).

7. Attached hereto as Exhibit 5 is Illinois Tool Works, Inc. v. MOC Products

Dated: July 7, 2023 Respectfully submitted,

/s/ Melissa Baily

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

WILLIAM R. KOWALSKI; HAWAII ) Civil NO. 11-00795HG-BMK

CLAIM CONSTRUCTION ORDER

On October 26, 1999, Plaintiff William R. Kowalski was

issued United States Patent No. 5,972,401, entitled “Process

For Manufacturing Tasteless Super-Purified Smoke For Treating

Seafood To Be Frozen And Thawed.” The patent contains Claims

1 through 75. On November 16, 2010, Claims 1 and 67 were

On December 29, 2011, Plaintiffs Kowalski and Hawaii

International Seafood, Inc. filed the current suit for patent

infringement, false advertising and promotion pursuant to the

Lanham Act, and violation of state statutes. Plaintiffs

allege that Defendants have processed, imported, offered to

sell, or sold food made with a process covered by Kowalski’s

patent. Defendants Anova Food, LLC and Anova Food, Inc.

assert that they do not use a process that is covered by

The Parties requested a claim construction hearing

pursuant to Markman v. Westview Instr., Inc., 517 U.S. 370,

372 (1996). On February 25, 2014, the Court held a Markman

hearing on the construction of disputed terms in the patent.

On January 2, 2012, Plaintiffs William R. Kowalski and

Hawaii International Seafood, Inc. filed the First Amended

Complaint. (ECF No. 6).

On October 11, 2013, Defendant Anova Food, LLC filed a

document entitled, “PROPOSED TERMS AND CLAIM ELEMENTS FOR