typenex_2015-01-05 - doc. 10 - appellants brief without dc order

2015-1128

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

PRECISION DYNAMICS CORPORATION,

Plaintiff-Appellee, v.

TYPENEX MEDICAL, LLC,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN, NO. 2:13-CV-00860

JUDGE PAMELA PEPPER

BRIEF OF DEFENDANT-APPELLANT TYPENEX MEDICAL, LLC

PETER R. FORREST DICKE, BILLIG & CZAJA, PLLC 100 South Fifth Street, Suite 2250 Minneapolis, Minnesota 55402 (612) 573-2000

Attorneys for Defendant-Appellant

January 5, 2015

Case: 15-1128 Document: 10 Page: 1 Filed: 01/05/2015

124

FORM 9. Certifi cate of Interest

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

____________________________ v. ____________________________

No. _______

CERTIFICATE OF INTEREST

Counsel for the (petitioner) (appellant) (respondent) (appellee) (amicus) (name of party) _______________________ certifies the following (use “None” if applicable; use extra sheets if necessary):1. The full name of every party or amicus represented by me is:_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________2. The name of the real party in interest (if the party named in the caption is not the real party in interest) represented by me is:_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________3. All parent corporations and any publicly held companies that own 10 percent or more of the stock of the party or amicus curiae represented by me are:_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________4. The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or agency or are expected to appear in this court are:__________________________________________________________________________________________________________________________________________________________

_____________________ _______________________________ Date Signature of counsel _______________________________ Printed name of counselPlease Note: All questions must be answeredcc: ___________________________________

Form 9Case: 15-1128 Document: 10 Page: 2 Filed: 01/05/2015

Peter R. Forrest

November 17, 2014 /s/ Peter R. Forrest

PRECISION DYNAMICS CORPORATION TYPENEX MEDICAL LLC

2015-1128

TYPENEX MEDICAL LLC

TYPENEX MEDICAL LLC

None

None

✔

DICKE, BILLIG & CZAJA, PLLC, Peter R. Forrest, Paul P. Kempf and John M. Weyrauch

i

Table of Contents

Jurisdictional Statement ............................................................................................. 1

Statement of Issues .................................................................................................... 1

Statement of Case ...................................................................................................... 2

Technical Background .......................................................................................... 2

The Accused Product ............................................................................................ 7

The ’982 Patent ..................................................................................................... 8

District Court Proceedings .................................................................................. 11

Summary of Argument ............................................................................................ 15

Argument ................................................................................................................. 17

Standard of Review ............................................................................................. 17

Issues on Appeal ................................................................................................. 21

Claim Construction ............................................................................................. 22

Issue (1): “Consisting Of” .................................................................. 22

Issue (2): “Label Portion” .................................................................. 24

Noninfringement ................................................................................................. 43

Issue (3): Who Proves the “Consisting Of” Limitations? .................. 43

Issue (4): The “Consisting Of” Limitations ....................................... 50

Issue (5): The “Side-By-Side” Limitation .......................................... 51

Conclusion ............................................................................................................... 54


ii

Table of Authorities

Cases

Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343 (Fed. Cir. 2001) ............................................................................ 19

Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324 (Fed. Cir. 2006) ............................................................................ 30

Autogiro Co. of America v. United States, 384 F.2d 391 (Ct. Cl. 1967) .................................................................................. 28

Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241 (Fed. Cir. 2000) ..................................................................... 51, 55

Chamberlain Group, Inc. v. Lear Corp., 516 F.3d 1331 (Fed. Cir. 2008) ..................................................................... 21, 47

Comaper Corp. v. Antec, Inc., 596 F.3d 1343 (Fed. Cir. 2010) ............................................................................ 31

Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182 (Fed. Cir. 1998) ............................................................................ 27

Conoco, Inc. v. Energy & Environmental International, L.C., 460 F.3d 1349 (Fed. Cir. 2006) ............................................................................ 25

Creative Compounds, LLC v. Starmark Labs., 651 F.3d 1303 (Fed. Cir. 2011) ............................................................................ 49

Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed. Cir. 1998) (en banc) ............................................................ 21

Decisioning.com, Inc. v. Federated Department Stores, Inc. et al., 527 F.3d 1300 (Fed. Cir. 2008) ............................................................................ 32

Dippin’Dots, Inc. v. Mosey, 476 F.3d 1337 (Fed. Cir. 2007) ............................................................................ 57

Ethicon Endo-Surgery, Inc. v. US Surgical Corp., 93 F.3d 1572 (Fed. Cir. 1996) ....................................................................... 27, 30


iii

Ferguson Beauregard/Logic v. Mega Systems, 350 F.3d 1327 (Fed. Cir. 2003) ............................................................................ 23

Flex-Rest, LLC v. Steelcase, Inc., 455 F.3d 1351 (Fed. Cir. 2006) ..................................................................... 28, 50

Genentech, Inc. v. Novo Nordisk A/S, 108 F.3d 1361 (Fed. Cir. 1997) ............................................................................ 20

In re Hyatt, 708 F.2d 712 (Fed. Cir. 1983) .............................................................................. 31

Intel Corp. v. VIA Technologies, Inc., 319 F.3d 1357 (Fed. Cir. 2003) ............................................................................ 44

Jeneric/Pentron, Inc. v. Dillon Co., Inc., 205 F.3d 1377 (Fed. Cir. 2000) ............................................................................ 58

Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533 (Fed. Cir. 1991) ............................................................................ 54

LifeScan Scotland, Ltd. v. Shasta Technologies, 734 F.3d 1361 (Fed. Cir. 2003) ............................................................................ 18

Lighting Ballast Control v. Philips Electronics, 744 F.3d 1272 (Fed. Cir. 2014) (en banc) ............................................................ 21

Mannesmann Demag Corp. v. Engineered Metal Products Co., 793 F.2d 1279 (Fed. Cir. 1986) ............................................................... 24, 48, 53

Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 60 S.Ct. 517, 84 L.Ed. 774 (1940) ................................................. 54

Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313 (Fed. Cir. 2005) ............................................................... 23, 45, 46

Medtronic, Inc. v. Boston Scientific Corporation, 695 F.3d 1266 (Fed. Cir. 2012) (Medtronic I) ............................................... 19, 55

Medtronic, Inc. v. Mirowski Family Ventures, LLC, ___ U.S. ___, 134 S.Ct. 843, ___ L.Ed. ___ (2014) (Medtronic II) ............. 19, 55


iv

Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340 (Fed. Cir. 2004) ............................................................................ 37

Momenta Pharmaceuticals v. Amphastar Pharma., 686 F.3d 1348 (Fed. Cir. 2012) ............................................................................ 20

National Steel Car, Ltd. v. Canadian Pacific Ry., 357 F.3d 1319 (Fed. Cir. 2004) ............................................................................ 21

Norian Corp. v. Stryker Corp., 363 F.3d 1321 (Fed. Cir. 2004) (Norian I) ........................................................... 26

Norian Corp. v. Stryker Corp., 432 F.3d 1356 (Fed. Cir. 2005) (Norian II) .......................................................... 56

Nutrition 21 v. United States, 930 F.2d 867 (Fed. Cir. 1991) .............................................................................. 53

Oakley, Inc. v. Sunglass Hut Int'l, 316 F.3d 1331 (Fed. Cir. 2003) ............................................................................ 19

On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331 (Fed. Cir. 2006) ..................................................................... 35, 43

Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) .................................................... passim

Rambus, Inc. v. Infineon Technologies AG, 318 F.3d 1081 (Fed. Cir. 2003) ..................................................................... 28, 30

Renishaw PLC v. Marposs Societa’per Azioni, 158 F.3d 1243 (Fed. Cir. 1998) ............................................................................ 42

Rexnord Corp. v. Laitram Corp., 274 F.3d 1336 (Fed. Cir. 2001) ..................................................................... 45, 46

Schriber-Schroth Co.. v. Cleveland Trust Co., 311 U.S. 211, 61 S.Ct. 235, 85 L.Ed. 132 (1940) ................................................. 35

Tate Access Floors, Inc. v. Interface Architectural Resources, Inc., 279 F.3d 1357 (Fed. Cir. 2002) ............................................................................ 19


v

Technology Licensing Corp. v. Videotek, Inc., 545 F.3d 1316 (Fed. Cir. 2008) ..................................................................... 49, 54

Under Sea Industries, Inc. v. Dacor Corp., 833 F.2d 1551 (Fed. Cir. 1987) ............................................................................ 54

V-Formation, Inc. v. Benetton Grp. SpA, 401 F.3d 1307 (Fed. Cir. 2005) ..................................................................... 50, 55

Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996) .............................................................................. 44

Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997) ......................................... 50

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ............................................. 18

Young Dental Mfg. Co. v. Q3 Special Prods., Inc., 112 F.3d 1137 (Fed. Cir. 1997) ............................................................................ 45

Rules

Fed. R. App. P. 4(a)(1)(A) ....................................................................................... 14

Fed. R. App. P. 4(a)(4)(A)(iv) ................................................................................. 14

Fed. R. Civ. P. 26(f) ................................................................................................. 12

Fed. R. Civ. P. 30(b)(6) ............................................................................................ 12

Fed. R. Civ. P. 52(a)(2) ............................................................................................ 52

Fed. R. Civ. P. 59(e) ................................................................................................. 14

* * *


1

Statement of Related Cases

There are no related cases other than the underlying district court action.

Jurisdictional Statement

This is an appeal of a preliminary injunction under U.S. Patent 8,296,982.

This court has jurisdiction under 28 U.S.C. §1292(c)(1).

Statement of Issues

Whether the district court abused its discretion by entering the preliminary

injunction because:

(1) The district court improperly interpreted “consisting of”;

(2) The district court improperly identified the “label portion” limitation

of the claims;

(3) The district court made inadequate findings of fact and improperly

shifted the burden of proof on infringement of each “consisting of”

limitation onto Typenex;

(4) The district court, even under its improper identification of the “label

portion” limitation, incorrectly found infringement of the “consisting

of” limitation applied to the “label portion”; and

(5) The district court relied on its improper identification of the “label

portion” limitation to incorrectly find infringement by the accused

product.


2

Statement of Case

Technical Background

Defendant-Appellant Typenex Medical, LLC (Typenex) appeals from a

preliminary injunction in favor of Plaintiff-Appellee Precision Dynamics

Corporation (PDC) by the Eastern District of Wisconsin. A1-A13. The injunction

is under U.S. Patent 8,296,982 (’982 patent), which PDC asserts to be infringed by

a Typenex product known as the ELEMENT® Barcode Blood Band.

Blood bands are used by a blood bank (typically, but not always, within a

hospital) and do more than so-called “admission” wristbands that identify a patient

by name, date of birth, medical ID number, etc. Blood bands provide redundant,

independent identification and thus additional accuracy, during blood sampling or

blood transfusion procedures; they help accurately identify not just the patient, but

also the sampled blood of the patient, as well as the paper forms and other

materials associated with the sampled blood.

There is a long history to this technology. Typenex’s predecessor in business

patented the basic blood band in the early 1970s. The figures from that patent are

shown below. A91, ¶2; A94-A95.


3

Each blood band has

two major portions: a

wristband portion which

wraps around the patient’s

wrist (or ankle) and is

secured by a clip-type

fastener (numbered 16 in the

accompanying figure) joining

the two ends; and a second,

removable (even if by cutting

with scissors) portion

providing several pre-

printed, coded identification

labels mounted on a

substrate. The two portions are arranged “end-to-end” and thus the removable

portion is commonly called a “tail.” The tail is designed to be attached to a blood

sample tube, and its removable labels may be peeled away and placed on

laboratory forms pertaining to the blood sample as needed. The patient, blood

sample tube, and laboratory forms are linked together by the semi-unique “blood

band ID” (“BBID”), such as “CC1281,” borne by each blood band, including the


4

wristband portion, the “tail” itself, and each removable label. This basic product is

still in use in blood banks, and is sold by Typenex as the ORIGINAL™ Blood

Band.

Naturally, since the early 1970s there has been evolution in blood bands by

Typenex, Plaintiff-Appellee PDC, and others. By the mid-1990s, the clamshell

clasp-type mechanism on the wristband was replaced by a fastener used with a

series of holes along the “band portion” of the wristband to secure the wristband

portion to the patient. To accommodate the holes, the BBID was simply printed

around them, as illustrated by the following illustration from PDC product

literature circa 2004. A97, left column, instruction #2, “Detach tail with 14 small

pre-numbered labels at perforation after last hole.”

(The remainder of this page is blank.)


5

One of PDC’s

own patents filed about

the same time—not

asserted in this

litigation—disclosed

that the BBID

information could be

barcoded and printed on

the removable labels

both adjacent the series

of holes (the barcodes

are simply oriented to

avoid the holes) and beyond the wristband portion, as part of the extended,

removable “tail.” A91, ¶4; A98-A99 (U.S. Patent 7,454,855, issued November 25,

2008).1

1 Barcoded patient identification dates to at least the mid-1970s, perhaps not surprisingly because barcodes began appearing on consumer products in the form of the UPC technology ubiquitous today. See U.S. Patent 4,121,574 (issued October 24, 1978), Figure 1, which illustrates “a character-reader, such as a Universal Products Code (UPC) reader, that can identify the patient from a UPC symbol, consisting of vertical bars and spaces, which is placed on the patient's wristband” (col. 2, ll. 9-13).


6

Even earlier, by the mid-1990s, as shown in the excerpt from another PDC

patent shown to the right, the

“identification portion 14” was

widened relative to the band portion,

which provides more room to write or

otherwise place patient identification,

or to include a barcode (48). (This figure also illustrates the fastener and hole

system for securing the band described earlier, by which a snap-fastener

combination (20, 22) and “spaced fastener receiving openings 16” (holes) replaced

the earlier clamshell fastener.) A91, ¶5; A100-A101 (U.S. Patent 5,581,924 issued

December 10, 1996).

(The remainder of this page is blank.)


7

The Accused Product

As shown in PDC’s evidence provided to the district court (A62, right half,

reproduced below after 90 degrees clockwise rotation), Typenex’s accused blood

band incorporates the “end-to-end” tail of the original mid-1970s blood band, the

barcoded labels adjacent the series of holes and along the extended “tail” as known

in the art, and the “wide head and narrow tail” configuration for the wristband

portion and “tail” in use since the mid-1990s.

PDC’s own evidence establishes that the

accused product, like PDC’s own 2004 product, has

a “tail” which lies “after [the] last hole” of the

wristband. See A64 (mid-page, right side)2

reproduced here, which illustrates the wristband

portion, formed into a band as it would be around a

patient’s wrist, and notably shows the curved end of the “band portion” after the

last hole. The caption reads, “smooth, curved perforation where tail detaches,”

confirming that the tail is not a part of the wristband portion, whether actually

2 The same diagram was included in PDC’s First Amended Complaint, Exhibit E. See A200.


8

detached or not. The Typenex product can thus be understood as shown below

(from Typenex’ Initial Non-Infringement Contentions, A221).

The ’982 Patent

U.S. Patent No. 8,296,982 (’982 patent) (appended to this brief and at A174-

A183) states, in its “Summary of the Invention” section, that “The present

invention is directed to an identification band,” ’982 patent, col. 2, l. 43, in which

“[t]he label portion is disposed adjacent to and substantially co-extensive with the

length of the band portion,” id. at l. 54-56; the “band portion” is a component of

the wristband (“The wristband portion has … a band portion,” id. at col. 2, ll. 47-

48.), and thus, because “the label portion is separable from the band portion,” id. at

col. 3, ll. 2-3, the “label portion” is not the band portion itself. In plain English, the

removable “tail” of the prior art is identified by the term “label portion” and lies in

a “side-by-side” configuration relative to the “band portion” bearing the holes for

attaching the wristband to the patient. This side-by-side arrangement is particularly

understandable by comparing Figures 2 and 3, each of which is said to depict “an


9

identification band of the present invention” (id., col. 3, ll. 37-38 and 39-40,

respectively), but the latter of which depicts “the present invention with the label

portion removed,” id. at 14-20. Note that only Figure 2 includes the upper-right

part of the wristband, i.e., label portion 14, and its labels 26 bearing the indicia

(BBID) 24, and other features numbered 40 and 44.

In “an alternative embodiment of the inventive identification band,” ’982

patent, col. 3, ll. 43-44 (describing Figure 5, reproduced below), such embodiment

“includes an additional series of detachable labels 70 in the band portion 12. These

detachable labels 70 include the same unique identification code 24 as is displayed

in the secondary identification zone 18 and the detachable labels 26 on the label

portion 14. This provides another set of detachable labels that stay with the

patient.” Id. at 14-20. Note the label portion 14, and its labels 26 bearing the


10

indicia (BBID) 24.

Claim 1 of the ’982 patent is representative of the claims on appeal. It

appears below with indentation, hyphenation, and paragraphing as printed in the

’982 patent itself, at col. 6, ll. 34-52; the claim limitations at issue are in bold face,

and the limitations that Typenex contends are dispositive of non-infringement, for

purposes of this appeal, are underlined:

(See next page.)


11

1. An identification band, comprising:

an elongated flexible strap consisting of a wristband portion and a label portion;

the wristband portion consisting of a wristband, said wristband consisting of a primary identification zone, a sec-ondary identification zone and a band portion, wherein the primary and secondary identification zones are each substantially co-extensive with the width of the flexible strap and the band portion is substantially less than the width of the flexible strap, and wherein the primary identification zone is configured to receive identification indicia and the secondary identification zone displays a unique identification code; and

the label portion being disposed immediately adjacent to and substantially co-extensive with the length of the band portion and consisting of a plurality of detachable labels, wherein the label portion is substantially less than the width of the flexible strap and each of the labels displays the unique identification code.

District Court Proceedings

PDC, a California corporation, filed a complaint against Typenex, an Illinois

limited liability company, in the Eastern District of Wisconsin on July 29, 2013.

PDC did not serve the complaint, but instead sent a copy to Typenex attached to a

cease-and-desist letter. The complaint alleged Typenex infringed the ’982 patent,

as well as PDC’s registered trademark number 3,082,443 for “CONTOURBAND”

(for “non-metallic identification wristbands”), under the Lanham Act and

Wisconsin’s common law of trademarks. The accused product was, at that time,

being test-marketed (advertised) by Typenex as “the Contour Band” but Typenex

had not sold any accused product. Typenex changed the name of the product to the


12

ELEMENT Blood Band before the first sale of the accused product occurred, in

early September, 2013. The complaint was served on October 1, 2013.

Typenex moved to dismiss the complaint for lack of personal jurisdiction on

October 22, 2013. Before responding to Typenex’s motion, PDC moved for a

preliminary injunction against infringement of the CONTOURBAND trademark

and the ’982 patent on October 30, 2013. A14. The district court scheduled a

telephonic status conference for the afternoon of November 6, 2013. Earlier in the

day before the call, PDC served on Typenex interrogatories, requests for

production, and a notice of deposition of Typenex under Fed. R. Civ. P. 30(b)(6),

even though the parties had not yet conferred as required by Fed. R. Civ. P. 26(f).

After the call, the court stayed proceedings with respect to PDC’s motion for an

injunction, required PDC to formally move for leave to take early discovery,

limited to jurisdictional issues, and set a briefing schedule for such a motion.

The district court subsequently granted PDC’s motion for jurisdictional

discovery on February 13, 2014. The parties then jointly moved the court to

proceed according to their stipulation of certain matters: (1) personal jurisdiction in

the Eastern District of Wisconsin would not be contested by Typenex; (2) the

parties and the court would adopt a limited, modified version of the local patent

rules of the Northern District of Illinois (the Eastern District of Wisconsin does not

have local patent rules); and (3) PDC’s motion for preliminary injunction would be


13

renewed on the district court calendar. The district court held another telephonic

status conference on May 8, 2014, and approved the joint motion by subsequent

order. PDC’s timely renewal of its motion for preliminary injunction was entered

on May 8, 2014. PDC relied on its opening papers filed previously on October 30,

2013 (A15-A71). Those papers specifically asserted infringement of only claims 1,

5, 6, and 9 of the ’982 patent (A30-A32, A66-A67), although there are two

independent claims (1 and 12) and 19 total claims (dependent claims 2-11 and 13-

19, respectively) (’982 patent, cols. 6-8). Typenex opposed the motion on May 30,

2014 (A72-A129). PDC replied on June 13, 2014 (A130-A162).

After that briefing closed but before the district court decided the motion for

injunctive relief, PDC amended the complaint without opposition by Typenex on

July 9, 2014 to add infringement counts under two design patents issued to PDC in

the interim, US Design Patent Nos. D703,755 (issued April 29, 2014) and

D707,296 (issued June 17, 2014). See First Amended Complaint and Exhibits A-E

(A163-A201). PDC did not seek to add either design patent to its motion for

injunctive relief; they are not within the scope of this appeal.

Pursuant to the modified local patent rules previously agreed to by the

parties, PDC served initial infringement contentions, under the ’982 patent only, on

July 10, 2014. A202-A210. In those contentions, PDC asserted claims 1, 5, 9, and

11, as opposed to claims 1, 5, 6, and 9 which had been specifically asserted in the


14

injunction motion briefing. Typenex responded with its non-infringement

contentions on July 24, 2014. A211-A221.

By order dated August 25, 2014 (A1-A13), the district court denied

injunctive relief under the CONTOURBAND trademark (A13), and granted the

requested preliminary injunction against Typenex under the ’982 patent, without

specifically identifying the enjoined product by feature, or any particular claims of

the ’982 patent by number. Id. The district court order also did not address the

issue of a bond pending trial. Id.

Typenex timely moved to lift the injunction for lack of a bond, under Fed. R.

Civ. P. 59(e), on September 22, 2014. This stayed the time for appeal until entry of

an order disposing of that motion. Fed. R. App. P. 4(a)(4)(A)(iv). PDC posted an

injunction bond on September 29, 2014 and the district court then denied

Typenex’s Rule 59(e) motion as moot on October 2, 2014.

This appeal of the preliminary injunction was timely filed on October 31,

2014. Fed. R. App. P. 4(a)(1)(A). PDC did not cross-appeal the denial of a

preliminary injunction with respect to the CONTOURBAND trademark, leaving

the only issues before this court those arising from the entry of the preliminary

injunction under the ’982 patent.

* * * * * * *


15

Summary of Argument

The district court should not have granted the extraordinary remedy of a

preliminary injunction to PDC because Typenex raised substantial issues on the

merits of infringement; in ruling against Typenex, the district court committed five

abuses of discretion.

In terms of construction, the district court incorrectly construed the term

“consisting of.” The district court also incorrectly identified the “label portion”

limitation of each claim by turning immediately to prior court decisions regarding

patents from different fields of technology, using their rulings on the meaning of

“portion” in those contexts to define “portion,” rather than starting with the

evidence intrinsic to the ’982 patent.

In terms of noninfringement, the district court did not make sufficient

findings of fact to enable this court to review whether it correctly found that PDC

had indeed made a prima facie case for infringement, as the district court

apparently found. Regardless of the scope of “consisting of,” the district court

committed legal error by placing the burden of proving noninfringement of each

“consisting of” limitation onto Typenex, instead of requiring PDC to prove

infringement. And, in any event, the district court incorrectly failed to consider

aspects of the accused product that are important, and are not impurities, when it

evaluated what avoids the “consisting of” limitation.


16

Finally, the district court’s infringement analysis relied on the incorrect

identification of “label portion” to find infringement. It did so despite plain

language already in the claim (i.e., no limitations need be “read into” the claim),

that specifies the number and location of the sole “label portion” in the invention.

The accused Typenex product does not satisfy such limitations as the evidence

clearly shows.

Typenex’s challenges to PDC’s claim construction and theory of

infringement on each of these points is, at a minimum, not “without merit” and

actually is correct, contrary to the ruling of the district court. Thus, the district

court abused its discretion by granting a preliminary injunction under the ’982

patent. That injunction should be reversed.

* * * * * * *


17

Argument

Standard of Review

“A preliminary injunction is ‘an extraordinary remedy that may only be

awarded upon a clear showing that the plaintiff is entitled to such relief.’” LifeScan

Scotland, Ltd. v. Shasta Technologies, 734 F.3d 1361, 1366 (Fed. Cir. 2003)

(quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365,

172 L.Ed.2d 249 (2008)). “A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities

tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S.

at 20. Thus, even if the accused infringer only “raises a substantial question

concerning infringement, then the patentee has not established that it is likely to

succeed on the merits, and a preliminary injunction is not appropriate.” Lifescan

Scotland, 734 F.3d at 1366 (internal quotation marks omitted). This “substantial

question” threshold does not require the accused infringer to prove non-

infringement, but only to raise a defense “that the patentee cannot prove lacks

substantial merit.” Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343,

1350-51 (Fed. Cir. 2001) (internal quotation omitted).

On appeal of a preliminary injunction, this court “review[s] the district

court's decision for an abuse of discretion, a lapse that occurs when the decision is


18

premised on an error of law, a clearly erroneous finding of fact, or a clear error of

judgment in weighing the factors. To the extent the court's decision depends upon

an issue of law, we review that issue de novo.” Oakley, Inc. v. Sunglass Hut Int'l,

316 F.3d 1331, 1340 (Fed. Cir. 2003) (citing Amazon.com, id., and Tate Access

Floors, Inc. v. Interface Architectural Resources, Inc., 279 F.3d 1357, 1364 (Fed.

Cir. 2002)). In particular, “[t]his court also reviews a district court's other legal

conclusions, such as who bears the burden of proof, de novo.” Medtronic, Inc. v.

Boston Scientific Corporation, 695 F.3d 1266, 1271 (Fed. Cir. 2012) (citation

omitted) (“Medtronic I”), reversed on other grounds, Medtronic, Inc. v. Mirowski

Family Ventures, LLC, ___ U.S. ___, 134 S.Ct. 843, ___ L.Ed. ___ (2014)

(“Medtronic II”).

A district court abuses its discretion when it “ma[kes] a clear error of

judgment in weighing relevant factors or exercise[s] its discretion based upon an

error of law or clearly erroneous factual findings.” Genentech, Inc. v. Novo

Nordisk A/S, 108 F.3d 1361, 1364 (Fed. Cir. 1997) (vacating preliminary

injunction and ruling patent invalid as a matter of law); “Under the correct

[statutory] construction, Momenta cannot establish a likelihood of success on

infringement and the preliminary injunction must be vacated. Genentech, Inc., 108

F.3d at 1364.” Momenta Pharmaceuticals v. Amphastar Pharma., 686 F.3d 1348,

1359 (Fed. Cir. 2012).


19

While a preliminary injunction involves the “four factor test” of Winter,

above, the merits inquiry alone is dispositive when the movant fails to show the

requisite likelihood of success, regardless of the outcome of the other three factors.

“[A] district court cannot use an exceptionally weighty showing on one of the other

three factors to grant a preliminary injunction if a movant fails to demonstrate a

likelihood of success on the merits.” National Steel Car, Ltd. v. Canadian Pacific

Ry., 357 F.3d 1319, 1325 (Fed. Cir. 2004).

“[A] correct claim construction is almost always a prerequisite for

imposition of a preliminary injunction.” Chamberlain Group, Inc. v. Lear Corp.,

516 F.3d 1331, 1339-40 (Fed. Cir. 2008) (citations omitted). This court reviews

claim construction de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454

(Fed. Cir. 1998) (en banc); Lighting Ballast Control v. Philips Electronics, 744

F.3d 1272, 1276-77 (Fed. Cir. 2014) (en banc).

To determine the scope and meaning of claims, this court looks first to the

words of the claims themselves; followed by, for confirmation or additional

definition, the specification; then the prosecution history; and then, only if

necessary, any relevant extrinsic evidence. Phillips v. AWH Corp., 415 F.3d 1303,

1315-17 (Fed. Cir. 2005) (en banc). This is especially so even if what appear to be

common words are used in claims “because patentees frequently use terms

idiosyncratically,” id. at 1314, and thus to avoid “elevating the dictionary to such


20

prominence is that it focuses the inquiry on the abstract meaning of words rather

than on the meaning of claim terms within the context of the patent,” id. at 1321,

and “heavy reliance on the dictionary divorced from the intrinsic evidence [which]

risks transforming the meaning of the claim term to the artisan into the meaning of

the term in the abstract, out of its particular context, which is the specification,” id.,

the proper sequence for use of a dictionary definition, if one is used at all, is for the

court to “ focus[ ] at the outset on how the patentee used the claim term in the

claims, specification, and prosecution history, rather than starting with a broad

definition and whittling it down,” id.

Thus, “ordinary,” “plain,” “customary” meaning of a claim term is grounded

in the specification, not the vernacular. “The words used in the claims must be

considered in context and are examined through the viewing glass of a person

skilled in the art. It is the use of the words in the context of the written description

and customarily by those skilled in the relevant art that accurately reflects both the

‘ordinary’ and the ‘customary’ meaning of the terms in the claims of a patent.”

Ferguson Beauregard/Logic v. Mega Systems, 350 F.3d 1327, 1338 (Fed. Cir.

2003) (internal citation omitted)). This includes consideration of not only what the

claimed invention is, but also how it functions. Medrad, Inc. v. MRI Devices Corp.,

401 F.3d 1313, 1319 (Fed. Cir. 2005) (“Medrad would have us look at the words of

the claim with no context of what an RF coil does and how it works. We have


21

repeatedly rejected that approach. We cannot look at the ordinary meaning of the

term ... in a vacuum. Rather, we must look at the ordinary meaning in the context

of the written description and the prosecution history.” (internal quotation marks

omitted).

Issues on Appeal

The only Winter factor before this court is the merits question of whether

PDC has proven that they will likely prevail at trial on literal infringement of the

’982 patent. PDC did not assert infringement by equivalents. A8 at fn. 1 (“The

plaintiff does not assert that the doctrine of equivalents applies.”). Typenex

contested infringement below and does so here on appeal, but does not raise any

issues with respect to the other three Winter factors. Specifically, Typenex raises

five major issues. The first two involve construction of claim 1 of the ’982 patent,

the only asserted independent claim, which is representative of all claims at issue.

The two disputes involve the scope of “consisting of,” and the identification of

“label portion.” The final three major issues involve infringement, specifically

whether PDC has shown infringement under any construction at all (even its own),

and particularly under the correct construction. They involve the burden of proof

on the “consisting of” limitations, application of “consisting of” according to the

district court’s (erroneous) construction, and application of “label portion” under

what Typenex contends is the correct identification of that term in the claim.


22

Claim Construction

Typenex raised two claim construction disputes below and appeals the

district court’s decision against Typenex in both.

Issue (1): “Consisting Of”

The first claim construction dispute in this case is over the scope and

application of “consisting of.” The district court’s ruling effectively treats it as

open-ended, under the statement in Mannesmann Demag Corp. v. Engineered

Metal Products Co., 793 F.2d 1279, 1282-83 (Fed. Cir. 1986) that “the presence of

additional elements is irrelevant if all the claimed elements are present in the

accused device.” A9, A11. Thus, the district court analyzed the issue in terms of

whether Typenex avoided infringement “by adding an additional ‘tail’ of labels,”

A11, concluding that Typenex did not avoid infringement.

To be sure, the proper interpretation of “consisting of” does not exclude

“additional components… unrelated to the invention” or “impurities that a person

of ordinary skill in the relevant art would ordinarily associate with a component on

the ‘consisting of’ list.” Conoco, Inc. v. Energy & Environmental International,

L.C., 460 F.3d 1349, 1360 (Fed. Cir. 2006). But none of those exclusions apply

here.

A “tail” of labels cannot be “unrelated” to the claimed invention. There is no

dispute that the tail of labels is integrated into the accused product of Typenex.


23

PDC’s own infringement allegations initially point to the entire Typenex product

as the “identification band” of the claim preamble. A207 (Fig. 1, showing entire

product and using circled number 1 to point to entire product); A209 (claim chart

stating, “Referring … specifically to Fig. 1, the Element Barcode Blood Band

(‘Accused Device’) is an identification band.”) There is also no dispute that the

“tail” section of the Typenex product is manufactured from the same material as

other portions of the identification band, and therefore the two sections (which are

mechanically joined to each other) are each within the “mechanical” arts, as

opposed to the chemical, electronic, or biological arts. This is to be contrasted with

the mechanical spatula of Norian Corp. v. Stryker Corp., 363 F.3d 1321 (Fed. Cir.

2004), which was deemed to be “not part of the invention as described” in a patent

which clearly set forth the “invention as described” as a chemical composition. Id.

at 1331-32. Similarly, the “tail” is not a chemical substance that may or may not be

an “impurity” not subject to the closed-ended nature of “consisting of”; thus, the

cases considering the chemical “impurity” issue are entirely distinguishable on

their facts. Furthermore, there is no dispute that the labels of the “tail” section are

barcoded and otherwise usable in exactly the same manner as the labels of the

wristband portion that are alleged by PDC to be the claimed “label portion.” Thus,

whatever may be disputed about whether the “tail” is the “label portion” as

claimed, there is no dispute that the “tail” is not an “impurity” or whatever the


24

analogue of “impurity” might be in the mechanical context relevant to the ’982

patent claims. For similar reasons, it also cannot be said that a “tail” or second

“label portion” could be interpreted as within the scope of any other three

limitations of the claims defined with “consisting of” language.

Thus, the district court erred as a matter of law in its construction of

“consisting of,” particularly with respect to whether a “tail” of labels is relevant to

the scope of the asserted claims.

Issue (2): “Label Portion”

The second claim construction dispute in this case arises from the distinction

between understanding a claim as written, and importing limitations into it. This

court’s cases clearly recognize that the former is permitted, and therefore it should

not be misunderstood as the latter, e.g., Phillips, 415 F.3d at 1323 (recognizing

“the distinction between using the specification to interpret the meaning of a claim

and importing limitations from the specification into the claim”). The boundary

between identification and importation is the infamous “fine line” of claim

construction. Id. (quoting Comark Communications, Inc. v. Harris Corp., 156 F.3d

1182, 1186-87 (Fed. Cir. 1998)). Citing back to a seminal case, this court wrote:

“Here, the district court did not import an additional limitation into the claim;

instead, it looked to the specification to aid its interpretation of a term already in

the claim, an entirely appropriate practice.” Ethicon Endo-Surgery, Inc. v. US


25

Surgical Corp., 93 F.3d 1572, 1578 (Fed. Cir. 1996) (citing Autogiro Co. of

America v. United States, 384 F.2d 391, 397-98 (Ct. Cl. 1967)) (emphasis

underlined). This approach is fully consistent with Phillips. See, for example, Flex-

Rest, LLC v. Steelcase, Inc., 55 F.3d 1351, 1361 (Fed. Cir. 2006) (reading claim

term “sidewall” to necessarily extend upwardly based on claim language and

specification; “Such a requirement does not improperly read a limitation from the

specification into the claim. Rather, the written description and the drawings make

clear that when the claim refers to ‘sidewalls’ of a support surface, the claim

language refers to upward-extending walls,” citing Phillips (citation omitted));

Rambus, Inc. v. Infineon Technologies AG, 318 F.3d 1081, 1089 (Fed. Cir. 2003)

(reversing a narrowed construction, noting in passing that the “district court's

construction did not merely clarify or construe the actual words of the claim.”).

Typenex framed this specific claim construction issue below—and does so

again here on appeal—as one of identification, not importation of limitations. A82-

A86. The limitation that compels non-infringement is already in the claim. It is the

requirement that two distinct portions of the elongated flexible strap, the label

portion (once correctly identified) and the band portion of the wristband portion, be

specifically arranged with respect to each other, i.e., “the label portion being

disposed immediately adjacent to and substantially co-extensive with the length of

the band portion,” ’982 patent, col. 6, ll. 47-49. In plain English, the elongated


26

flexible strap has two distinct portions that are “side-by-side” as opposed to end-to-

end. No limitations, expressed or implied, on the scope of the label portion or the

band portion are required to be imported into the claim.

PDC, of course, disagreed below, calling Typenex’s position “wholesale

importing of limitations from the specification.” A143. (“Typenex’s ‘claim

construction’ of ‘label portion’ is a wholesale importation of limitations from the

specification directly contravening Federal Circuit authority.”) The district court

agreed with PDC. A10. That was clear error, as shown by the following de novo

analysis guided by Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en

banc).

Turning first to the words of claim 1 itself, it is apparent from the structure

of the claim that the label portion and the wristband portion are two separate and

distinct limitations of the claimed elongated flexible strap. Claim 1 plainly defines

an “identification band, comprising: an elongated flexible strap consisting of a

wristband portion and a label portion” and subject to further definition of those two

portions. ’982 patent, col. 6, ll. 34-36. By specifying the “label portion” as separate

from the “wristband portion,” claim 1 indicates that the label portion is not part of

the wristband portion. This is the most reasonable reading of such sentence

structure. Thus, the label portion is also separate and distinct from the sole

identified component of the wristband portion, namely the “wristband,” and thus


27

also distinct from each of the three components of the wristband, namely “a

primary identification zone, a secondary identification zone, and a band portion,”

’982 patent, col. 6, ll. 37-39. Each of those components of the claim are

individually identified, and thus each defines different limitations of the claim. See

Rambus, 318 F.3d 1081, 1092 (“By specifying the ‘block size’ as separate from the

‘read request,’ claim 18 indicates that the block size is not part of the read

request.”); Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1333

n.3 (Fed. Cir. 2006) (“[T]he use of two terms in a claim requires that they connote

different meanings” (emphasis in original))); Ethicon, 93 F.3d 1572, 1580 (Fed.

Cir. 1996) (“Admittedly, the claim says little about the structure of the “pusher

assembly.” It does clearly imply, however, that whatever “pusher assembly”

means, it is not a synonym for “pusher bar.”); Comaper Corp. v. Antec, Inc., 596

F.3d 1343, 1348 (Fed. Cir. 2010) (“Antec essentially asks us to equate the terms

‘drive bay’ and ‘drive bay slot,’ despite their separate use in the '955 patent. There

is an inference, however, that two different terms used in a patent have different

meanings. While this inference is not conclusive, the intrinsic evidence supports

the district court's construction that ‘drive bay’ and ‘drive bay slot’ have different

meanings.”(Citations omitted)).

Turning to the intrinsic evidence, the structure of claim 1 is consistent with

this interpretation. As written, the claim recites the two limitations of the elongated


28

flexible strap, using two independent clauses separated, as independent clauses of a

single sentence naturally are, by a semicolon and the linking conjunction “and.”

’982 patent, col. 6, l. 46. This sentence structure and punctuation emphasizes and

reinforces the separateness of the wristband portion (in the first independent

clause), and the label portion (in the second independent clause) from each other.

This is highly relevant to claim construction because “claim[s] must be read in

accordance with the precepts of English grammar,” In re Hyatt, 708 F.2d 712, 714

(Fed. Cir. 1983), and this court has considered sentence structure that reinforces

the individual nature of claim limitations. See Decisioning.com, Inc. v. Federated

Department Stores, Inc. et al., 527 F.3d 1300, 1314 (Fed. Cir. 2008) (“This

sentence structure is also used elsewhere in claim 1 to distinguish between two

types of information being compared.”).

By contrast, if the inventor intended to advise the public that the label

portion was a structural component of the wristband portion, the inventor would

not have written the claim to so clearly separate the label portion from the

wristband portion by putting them on equal grammatical and contextual footing,

i.e., as different components of the same elongated flexible strap. Similarly, the

claim language chosen by the inventor plainly does not list the label portion as a

member of the set of individual components of the wristband, even though such a

list is already present in the claim to clearly set out such components. That is, the


29

claim clearly expresses the limitations of the wristband portion—its components,

and their sizes and contents, all defined with respect to the flexible strap—

separately from the limitations of the label portion and its components.

Given the structure of the claim language, the natural recitation of a label

portion which formed a portion of the wristband portion (or any of its components)

would be as a member of the list of the other limitations of the wristband portion.

Instead, the patentee drafted the claim to clearly present the label portion and its

own limitations—its location, composition, and width—together in a separate

independent limitation.

Even without considering the structure of the claim language, the very use of

claim limitations identified as “wristband portion” and “label portion” immediately

begs the questions, “Wristband portion of what?” and “Label portion of what?”

Again, the claim wording alone provides the answer. Because the claim requires

“an elongated flexible strap consisting of a wristband portion and a label portion,”

’982 patent, col.6, ll. 35-36, the wristband portion and the label portion are each

portions of the elongated flexible strap; the latter is not a portion of the former.

Similarly, because the claim further recites “said wristband portion consisting of a

wristband, said wristband consisting of … a band portion,” id. at ll. 37-39, the band

portion is a portion of the wristband which itself is a component of the wristband


30

portion. Together, these plain readings of the words of claim 1 show that a “label

portion” is not a component of the “band portion.”

Continuing with only the claim wording itself, the suggestion that the

various “portions” are related to each other as described immediately above is

further reinforced by the dependent claims. See Phillips, 343 F.3d 1303, 1314

(“Other claims of the patent in question, both asserted and unasserted, can also be

valuable sources of enlightenment as to the meaning of a claim term.”).

Consider together dependent claims 6 (dependent on claim 5, and thus on

claim 1) and claim 8 (itself dependent on claim 6). Claim 6 specifies, in part, that

the wristband portion has a closure mechanism “disposed at a first end of the

flexible strap,” ’982 patent, col. 6, l. 66 to col. 7, l. 1. Claim 8 similarly specifies,

in part, that “the label portion has an attachment mechanism disposed at a second

end of the flexible strap,” id., col. 7, at ll. 5-7. These references to portions of the

wristband portion and label portion being at the “first end” and “second end” of the

flexible strap, respectively, reinforce the interpretation that each of the wristband

portion and the label portion is a distinct portion of that flexible strap, as opposed

to the label portion being a “portion” of the wristband portion.

PDC may argue that the paragraphs immediately above are improper

readings of the limitations of such closure and attachment mechanisms into claim

1. Not true. Those limitations of dependent claims are not what Typenex relies


31

upon to advocate for non-infringement of independent claim 1. They are simply

interpretive guidance for the term “label portion” that appears in all claims,

including claim 1, in accordance with unquestionable principles of claim

construction. Phillips v. AWH, 415 F.3d 1303, 1314 (“Other claims of the patent in

question, both asserted and unasserted, can also be valuable sources of

enlightenment as to the meaning of a claim term.” (Citation omitted)).

While the claim language alone suggests a construction of “label portion” as

a limitation distinct from “wristband portion,” the specification must be consulted

next to confirm whether this is the correct construction. Schriber-Schroth Co. v.

Cleveland Trust Co., 311 U.S. 211, 217, 61 S.Ct. 235, 85 L.Ed. 132 (1940) (“The

claims of a patent are always to be read or interpreted in light of its

specifications.”); Phillips, 415 F.3d 1303, 1316 (citing Schriber-Schroth).

Throughout the specification there is no usage of the term “portion” alone,

nor is there anything that would suggest that “label portion” should be parsed into

the individual words “label” and “portion.” This is important because “[c]are must

be taken lest word-by-word definition, removed from the context of the invention,

leads to an overall result that departs significantly from the patented invention.” On

Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1344 (Fed. Cir. 2006).

Because “the specification [is] a concordance for the claims,” Phillips, 415

F.3d at 1315 (citation and internal quotation marks omitted), it is valuable to


32

inspect the number and types of usages of “portion” contained in the specification.3

Very notably, the word “portion” is never used alone.4 The specification and

claims are remarkably consistent: there are one hundred fourteen instances of

“portion,” but every single one of them is within a two-word single term

identifying a structural component of the invention (or, in the single case of “label

and card portions,” the prior art). This is summarized below:

“band portion” 41 “wristband portion” 19 “label portion” 53 “label and card portions” 1 Total 114

3 The word counts presented here are easily obtained by (1) opening the USPTO online text of the ’982 patent with internet browser and (2) using the “find” command of the browser (typically Ctrl-F in the Microsoft Windows environment) to retrieve the count of any desired term. The specific counts presented were generated by the Google Chrome browser (version 39.0).

4 Nor is there apparently any synonym for “portion” used at all. For example, the term “part” adopted by the district court, A10 (“the common definition of ‘portion’ is ‘part of any whole”) appears only in the term “multi-part” used to describe prior art sheets (like one would run through a laser printer) having both wristbands and labels. ’982 patent, col. 1, l. 53 to col. 2, l. 8. The following are not used at all: “section,” “piece,” “member,” and “segment.” The term “component” is used only once in a clearly different context: “The snap closure 38 preferably includes plastic components which engage one of a series of openings 28 or other structures on the band portion 20 to cooperate with the snap closure mechanism 38.” ‘982 patent, col. 4, ll. 32-35. Ultimately, if PDC maintains there is affirmative support in the specification for a broader or alternative reading of “portion” then PDC needs to affirmatively identify it to this court or it should be deemed not to exist.


33

There are also uses of “band and label portions” recited in claim 2, and “label and

band portions” recited in claims 3 and 12, along with the single instance of each

phrase in the “Summary of Invention” section at ’982 patent, col. 2, ll. 62 and 65.

All of these combinations appear to be simply matters of tightened language, not

redefined or alternative language. There is, for example, no suggestion that “card”

is synonymous with “label” and the use of the conjunctive “and” suggests they are

different terms as compared to use of the disjunctive “or” (“label or card portion”).

Consistent, numerous usage of terms in a specification supports a finding that the

specific manner in which the terms were actually used was intended by the

inventor, as opposed to usages implied by broader reading of claim language but

not actually disclosed in, or even suggested by, the specification. Microsoft Corp.

v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1348 (Fed. Cir. 2004) (“In fact, the

specification refers to data transmission ‘over’ or ‘through’ a telephone line

roughly two dozen times. Nowhere does it even suggest the use of a packet-

switched network.”).

Turning to the drawings and how they are described in the specification, the

’982 patent repeatedly and consistently advises the public that most of the figures

depict not mere embodiments or examples, but “the present invention” while

others illustrate “the inventive wristband.” Specifically, each of Figures 1, 2, 3, 10,

and 11 are explicitly explained to show “the present invention.” ’982 patent, col. 3


34

at l. 35-40 and 53-60, respectively. Figures 7-9 are essentially identical, each

showing what is described as “a plurality of inventive identification bands”

presented in various configurations. Id., ll. 47-52. The remaining figures arguably

show alternative embodiments, i.e., Figure 5 is described as “an alternative

embodiment,” while Figures 4 and 6 are described as “another alternative

embodiment” yet each of these three figures is still described as depicting

alternative embodiments of “the inventive wristband.” Id., ll. 41-46. The

specification text accompanying such figures likewise emphasizes, in language that

the public is fully entitled to rely upon, that specific figures illustrate various views

of that same “present invention.” ’982 patent, col. 3, ll. 35-40 (Figs. 1-3) (“FIG. 1

is a perspective view illustrating an identification band of the present invention;

FIG. 2 is a top plan view illustrating an identification band of the present

invention; FIG. 3 is a perspective view illustrating an identification band of the

present invention with the label portion removed[.]); id., ll. 52-60 (Figs. 10 and 11)

(“FIG. 10 is an illustration of a method of use of an identification band of the

present invention having a protective shield in the primary identification zone for

receiving a printed label; and FIG. 11 is an illustration of another method of use of

an identification band of the present invention having an imaging liner in the

identification zone for receiving handwritten information.”).


35

The specification does disclose preferred embodiments in Figures 5

(“illustrating an alternative embodiment of the inventive identification band”),

’982 patent, col. 6, ll. 43-44, and also in Figures 4 and 6 (respectively, “a

perspective view of the identification band of Fig. 6” and “illustrating another

alternative embodiment of the inventive identification band”), id., at ll. 41-42 and

45-46, respectively. However, the context of those embodiments teaches that they

do not vary from the fundamental requirement of the invention that the label

portion be distinct from any part of the wristband portion of the invention. They

consistently depict an embodiment which differs from “the present invention” of

Figures 1-3 and 9-10 in a different way. Specifically, the embodiment shown in

Figures 4-6 and discussed at ’982 patent col. 5, ll. 11-27, is described as “an

embodiment that includes an additional series of detachable labels 70 in the band

portion 12.” Id, at l. 14-16. As confirmed by those three figures themselves, each

of these embodiments does not differ from the other figures with respect to the

basic configuration of “the present invention”; each depicts the same basic

identification band as shown in greater detail in the other Figures, and the features

of each drawing are clearly intended to resemble the features of those other

Figures, again showing the same “label portion” (notably including indicia of

barcoded labels as vertical lines in Figures 7 and 9, and a “#####” indicia in Figure

9 that is also used in Figures 1 and 2). The band portion is again depicted,


36

consistently with the other Figures, as a distinct component from the band portion,

notably including holes in Figures 7-8, just as those used in Figures 1, 3-5, and 10-

11, yet omitting holes in Figure 9 since the “adhesive closure mechanism 36” (’982

patent, col. 5, l. 25) makes them unnecessary, as in Figures 2 and 6. Thus, these

figures also depict (and their accompanying text describes), the same “present

invention” as Figures 1-3 and 9-10.

The same is true of Figures 7-9. Each is described as depicting “a plurality

of inventive identification bands,” ’982 patent, col. 3, ll. 47-52, the differences

lying not in any structural features, but solely in the [unclaimed] packaging of the

invention, i.e., “in a single band dispenser box,” “in a sheeted form,” and “in a roll

form,” respectively. Id. Importantly, the specification explicitly teaches that

presenting such inventive identification bands is possible because of the “side-by-

side” configuration of the label portion and the band portion depicted in the other

figures of the ’982 patent: “Because the identification band 10 has a generally

rectangular structure and the label portion 14 is substantially coextensive with the

band portion 20 it is possible to provide a plurality of identification bands 10 in

multiple formats.” ’982 patent, col. 5, ll. 28-31. The immediately next three

sentences describe Figures 7-9 in more detail, and they are the only portion of the

specification to describe those figures specifically. Thus, each of Figures 7-9 is a

different embodiment only with respect to features related to their packaging, not


37

that “label portion 14 is substantially coextensive with the band portion 20,” which

they are touted to exploit. This is completely consistent with the “label portion”

limitation being a different limitation than the “band portion” limitation, as

illustrated in every other figure of the patent, and in every embodiment of the

invention disclosed by the ’982 patent.

Continuing with the same paragraph, the inventor then relied upon the

distinction between the invention he described and claimed, i.e., an identification

band having a “substantially coextensive construction of the label portion 14 and

the band portion 20,” and “[p]rior art identification bands that included correlated

adhesive labels … disposed the labels as a continuation of the wristband such that

the labels were an extension of the wristband.” ’982 patent, col. 5, ll. 35-46. The

public is entitled to rely on such disclaiming language to understand the identity of

“label portion” and “band portion” in the claims.

Even the Background section of the ’982 patent further reinforces the

identification of a “label portion” as not being any portion of the wristband that

merely includes labels. It acknowledges as prior art “a wristband including a series

of detachable labels directly on the band. See, for example, U.S. Pat. Nos.

3,698,383; 7,481,370 and 7,454,855.” ’982 patent, col. 2, ll. 19-22.

The consistency of disclosure throughout the ’982 patent is remarkable:

every figure and every embodiment consistently informs the public that the “label


38

portion” is, as already stated in claim 1, “disposed immediately adjacent to and

substantially co-extensive with the length of the band portion,” i.e., the same side-

by-side configuration is common to every figure of the ’982 patent. Thus, the ’982

patent figures and accompanying text are consistent with the interpretation of the

claim language itself as advocated above. Because “[u]ltimately, the interpretation

to be given a term can only be determined and confirmed with a full understanding

of what the inventors actually invented and intended to envelop with the claim,”

Renishaw PLC v. Marposs Societa’per Azioni, 158 F.3d 1243, 1250 (Fed. Cir.

1998), the repeated, consistent usages of “label portion” in the ’982 patent claims

and specification show that what “the inventors actually invented and intended to

envelop with the claim” is an elongated flexible strip having only a “wristband

portion” and a “label portion” arranged in a side-by-side configuration and not an

end-to-end configuration.

As for the remainder of the intrinsic evidence, the prosecution history of the

’982 patent was not offered by either party or considered by the district court.

Turning to the extrinsic evidence, the district court looked at prior judicial

decisions (and, indirectly, a general purpose dictionary) to define “portion”

separately from “label portion.” That was clear error, for three reasons.

First, it addresses the wrong inquiry. The correct inquiry is not the meaning

of “portion” alone; it is the identity of the claimed “label portion” in the context of


39

the ’982 patent as a whole. The claims and specification, read in context, reveal

that “label portion” is not two limitations, i.e., “label” and “portion,” with the latter

in need of construction in Typenex’ favor. To the contrary, the consistent reading

of the specification is that the inventor deliberately and consistently used “label

portion” as a single term, despite forming it from two words. The person of

ordinary skill upon reading the ’982 patent claims and specification would not

construe the two-word single term “label portion” by the dictionary definition of

“portion” unless the specification context suggested a need to do so. This is

common sense; absent a need driven by the context in which the terms were found,

nobody would construe the two-word single term “hot dog” to mean a heated

canine, or “dry ice” to mean arid frozen water. This court’s claim construction

principles adhere to this common sense because “[c]are must be taken lest word-

by-word definition, removed from the context of the invention, leads to an overall

result that departs significantly from the patented invention.” On Demand Mach.

Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1344 (Fed. Cir. 2006). Thus, the

district court’s parsing of “label portion” into the combined meaning of its two

individual words took the term out of the context of the ’982 patent specification,

in which it is exclusively employed as a single, unified term.

Second, extrinsic evidence is not even reached when the meaning of claim

terms is resolved from the claim language and the intrinsic evidence alone. “When


40

an analysis of intrinsic evidence resolves any ambiguity in a disputed claim term, it

is improper to rely on extrinsic evidence to contradict the meaning so ascertained.”

Intel Corp. v. VIA Technologies, Inc., 319 F.3d 1357, 1367 (Fed. Cir. 2003)

(emphasis in original) (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,

1583 (Fed. Cir. 1996)).

Third, it is the wrong kind of extrinsic evidence to consider. This court’s

summary of sources of extrinsic evidence, Phillips, 415 F.3d 1303, 1317-1318,

does not reach court decisions interpreting patents from different fields of art, or

those patents themselves; court decisions regarding different patents in different

areas of technology are entirely out of the relevant context because they do not

“help educate the court regarding the field of the invention [nor] help the court

determine what a person of ordinary skill in the art would understand claim terms

to mean,” id., at 1319. See also Medrad, 401 F.3d 1313, 1318-1319, which rejected

“construction of ‘substantially uniform’ on this court’s interpretation of the same

term” in another case, because “use of a term in a patent on a detergent is of little

pertinence to the use of a similar term in a patent on MRI RF coils. Rather, absent

some particular reason to do otherwise, the claim terms must be interpreted as

would one of ordinary skill in the art of MRI technology and in light of the

particular patent in suit.” See also Young Dental Mfg. Co. v. Q3 Special Prods.,


41

Inc., 112 F.3d 1137, 1143 (Fed. Cir. 1997) (“The specification that is relevant to

claim construction is the specification of the patent in which the claims reside.”).

The district court committed the very type of error described in Medrad. The

district court relied on this court’s prior decision in Rexnord Corp. v. Laitram

Corp., 274 F.3d 1336 (Fed. Cir. 2001) for the definition of “portion” because “[a]s

recognized by the federal circuit, the common definition of ‘portion’ is ‘part of any

whole, either separated from or integrated with it” and “[t]hus, ‘according to the

ordinary meaning, so long as a “portion” of an object is a “part” of that “object,” it

can connote either the quality of being “separate” or of being “intergral.”’” A10-11

(internal quotation and citations omitted; use of lower case and misspelling by the

district court).5

Rexnord involved a patent “generally directed to a device used in the

bottling and packaging processes of the beverage industry to transfer articles,” id.

at 1339, which has no relevance to wristbands used in medical settings. Thus, the

context of the use of “portion” in Rexnord is totally irrelevant to this case. See

Medrad, at 1319 (“The use of a term in a patent on a detergent is of little

pertinence to the use of a similar term in a patent on MRI RF coils. Rather, absent

5 Rexnord actually said only that “The parties agree[d]” on that particular meaning of “portion” taken from the 1993 (2nd) edition of the Random House Unabridged Dictionary. 274 F.3d, at 1344. It overstates the text of Rexnord to imply that this court in any way determined that this stipulated definition would necessarily apply to any other situation.


42

some particular reason to do otherwise, the claim terms must be interpreted as

would one of ordinary skill in the art of MRI technology and in light of the

particular patent in suit.”) The context of whatever was decided in Rexnord is not

the context provided by the ’982 patent, and only the latter is relevant in this case.

The district court should not have relied on Rexnord in the manner that it did.

Therefore, the sources of extrinsic evidence relied upon by the district court

led it completely beyond the proper context for determining the identity of a “label

portion” as the public would understand the inventor to mean based on the intrinsic

evidence of the ’982 patent claims and specification. Neither party offered any

other relevant extrinsic evidence. On the whole, the district court erred as a matter

of law in its interpretation of “label portion.”

* * *

For all of these reasons, the district court committed plain errors of law in

construing claim 1 of the ’982 patent. Therefore, the preliminary injunction based

on such errors cannot be sustained. “A preliminary injunction requires analysis of

the likelihood of success on the merits. This factor, in turn, depends fundamentally

on the meaning of the asserted claim and its relationship to the accused product or

process. Therefore, a correct claim construction is almost always a prerequisite for

imposition of a preliminary injunction.” Chamberlain Group, Inc. v. Lear Corp.,

516 F.3d 1331, 1339-40 (Fed. Cir. 2008) (citations omitted). When “this court


43

discerns that the errors in claim construction will fundamentally influence the

likelihood of success in proving infringement … the district court’s erroneous

construction of the disputed terms requires this court to vacate the preliminary

injunction.” Id at 1340.

Noninfringement

Typenex raises three noninfringement issues based on the district court’s

decision that PDC is likely to prove infringement at trial.

Issue (3): Who Proves the “Consisting Of” Limitations?

In its motion papers and opening brief, PDC did not set forth the full

language of claim 1. A30-32. In its opposition, Typenex noted that claim 1

includes four separate “consisting of” clauses, that according to established case

law such clauses have “‘closed ended’ aspects,” and further that “PDC makes no

attempt to analyze how the closed-ended nature of these claim limitations is

present in the accused device,” resulting in a failure to meet its burden of proof.

A81.

PDC replied by (1) arguing that “‘consisting of’ does not preclude

infringement if all claimed elements are present in the accused device,” A138, and

relying on various cases (A138-140); (2) repeating, without further elaboration, its

prior argument that paragraphs 17-18 and Exhibit F of the Benoit Declaration

(A44, A67) “demonstrated that the accused device contained each of the


44

‘consisting of’ limitations disclosed in claim 1,” A140; (3) faulted Typenex for

providing “no clue” as to what features of the accused device avoided

infringement, A140; and (4) cited Mannesmann Demag Corp. v. Engineered Metal

Products Co., 793 F.2d 1279, 1282-83 (Fed. Cir. 1986), for the proposition that

“the presence of additional elements in the accused device,” “[l]ike slag-stopping

bars and spatulas,” “does not preclude direct infringement,” id.

The district court sided with PDC, in reliance on its holding that “defendant

cites to no case law in support of its position that the plaintiff must show that the

defendant’s band contains ‘nothing more.’” A9. That was an abuse of discretion by

the district court, for three reasons.

First, it effectively disregards the black letter law requiring the patentee to

establish infringement by showing that every limitation of a claim is present in an

accused device. The accused infringer does not need to prove anything, much less

the contrary proposition of noninfringement. “If the patentee fails to meet that

burden [of proving infringement], the patentee loses regardless of whether the

accused comes forward with any evidence to the contrary.” Creative Compounds,

LLC v. Starmark Labs., 651 F.3d 1303, 1314 (Fed. Cir. 2011), citing Technology

Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir. 2008) (“Neither

TLC's burden to prove infringement nor Gennum's burden to prove invalidity, both

ultimate burdens of persuasion, ever shifts to the other party—the risk of decisional


45

uncertainty stays on the proponent of the proposition.”). There are no exceptions to

this basic principle based on the type or nature of a claim limitation, because the

law is clear that that every word of a claim is deemed material. See Warner-

Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137

L.Ed.2d 146 (1997) (“Each element contained in a patent claim is deemed material

to defining the scope of the patented invention. . . .”); Flex-Rest, LLC v. Steelcase,

Inc., 455 F.3d 1351, 1361 (Fed. Cir. 2006) (“Flex-Rest's attempt to avoid the

sidewall limitation by characterizing it as “inconsequential” disregards the basic

patent law doctrine that every limitation of a claim is material.”). Before the

district court, Typenex cited substantial case law to the same effect in support of its

position (A80-81): “Literal infringement requires that each and every limitation

set forth in a claim appear in an accused product.” V-Formation, Inc. v. Benetton

Grp. SpA, 401 F.3d 1307, 1312 (Fed. Cir. 2005). “If any claim limitation is absent

from the accused device, there is no literal infringement as a matter of law.” Bayer

AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir. 2000).

Typenex had affirmatively analyzed the shortcomings of PDC’s

infringement allegation, specifically paragraphs 17-18 and Exhibit F of the Benoit

Declaration. Typenex argued that PDC “point[s] to Exhibit F and paragraphs 17

and 18 of the Benoit Declaration for ‘specific details regarding the location of each

element of claim 1 as it is located on the accused Typenex product.’ Exhibit F (as


46

described by paragraph 17) purports to be an accurate comparison of Claim 1 to

the accused product but barely scratches the surface given the convoluted nature of

the four ‘consisting of’ clauses. The Exhibit asserts only that ‘[w]hile the language

in claim 1 is straightforward, arrows have been added’ to compare the language to

about one-half of a marketing depiction of the Typenex product.” A83. Again, in

response, PDC simply repeated its conclusory assertions that this was adequate

proof of infringement of a “consisting of” limitation. “In its opening papers, PDC

demonstrated that the accused device contained each of the ‘consisting of’

limitations disclosed in claim 1. … Benoit Decl., ¶¶ 17-18… Benoit Decl., Exh. F.

The accused device has an elongated strap consisting of a wristband portion and a

label portion. Id. The wristband portion consists of a wristband. Id. The wristband

consists of a primary identification zone, a secondary identification zone, and a

band portion. Id. Finally, the label portion consists of a plurality of labels. Id.”

A140.

The district court did not provide any findings of fact or reviewable analysis

as to whether the Benoit Declaration and its Exhibit F actually do show the specific

limitations of claim 1, particularly the “consisting of” clauses. On infringement,

the district court’s entire findings of fact are set out in four sentences within a

single paragraph:

In this case, all of the claimed elements are present in the defendant’s band. The plain language of the claim requires only an elongated


47

flexible strap consisting of a “wristband portion” and a “label portion.” … Moreover, the defendant cannot avoid infringement by adding an additional “tail” of labels to the ’983 invention. … Accordingly, the court concludes that that plaintiff is likely to succeed on the merits of its claim of infringement.

A11, first paragraph (“’983”in original). The omitted third sentence of the

paragraph speaks to claim construction, while the omitted fifth sentence is a

citation to and quotation from Mannesmann (discussed below) that does not

constitute a finding of fact.

This is not sufficient under Rule 52(a)(2) to allow this court to review the

merits of the district court’s reasoning. The first sentence is introductory at best

and conclusory at worst. The second sentence does not analyze all limitations of

claim 1, particularly not the disputed “close ended” and “label portion” limitations.

It tracks remarkably closely the language of the first few lines of the claim as if the

district court did not understand that the remaining lines further limit the claim,

which is a plausible reading given the omitted fifth sentence: “See Mannesmann,

793 F.2d at 1282-83 (‘The presence of additional elements is irrelevant if all the

claimed elements are present in the accused structure.’).” Thus, the district court

may have misunderstood the law to be that the portion of the claim it did not

analyze was “irrelevant” because it represented “additional elements,” which is

clearly both wrong and not what the quoted statement from Mannesmann says in

any event (because the portions not analyzed by the district court are necessarily


48

included in the “all the claimed elements” that must be “present in the accused

structure” to make out infringement, the very same black letter law that

Mannesmann was following). The remaining sentences of the paragraph do not

provide any further details of the district courts findings of fact.

Thus, the district court abused its discretion by allowing PDC to “prove”

infringement of the “consisting of” limitations without an adequate showing, in

violation of clear precedent to the contrary. Fed. R. Civ. P. 52(a)(2); Nutrition 21 v.

United States, 930 F.2d 867, 869 (Fed. Cir. 1991) (“Sufficient factual findings on

the material issues are necessary to allow this court to have a basis for meaningful

review.”); “It is of the highest importance to a proper review of the action of a

court in granting or refusing a preliminary injunction that there should be fair

compliance with Rule 52(a) of the Rules of Civil Procedure.” Mayo v. Lakeland

Highlands Canning Co., 309 U.S. 310, 316, 60 S.Ct. 517, 84 L.Ed. 774 (1940).

Second, and similarly, to the extent that the district court put the burden on

Typenex to prove noninfringement, the law is clearly to the contrary. “The district

court erred to the extent it apparently placed the burden on Dacor of showing

noninfringement. The burden always is on the patentee to show infringement.”

Under Sea Industries, Inc. v. Dacor Corp., 833 F.2d 1551, 1557 (Fed. Cir. 1987).

See also Technology Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed.

Cir. 2008) (burden of proving infringement never shifts to an accused infringer),


49

and Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed. Cir. 1991) (a

patentee must demonstrate every limitation of a claim to satisfy its burden of

proof). This arises from concepts basic to our system of jurisprudence broader than

patent law. See generally, Medtronic, Inc. v. Boston Scientific Corp., 695 F.3d

1266, 1272 (Fed. Cir. 2012) (collecting authorities), reversed sub nom Medtronic,

Inc. v. Mirowski Family Ventures, LLC, ___ U.S. ___, 134 S.Ct. 843, ___ L. Ed.

___ (2014).

Third, the district court’s position puts an unreasonable burden on a

defendant. It requires a defendant to cite case law narrowly drawn to the exact

claim limitation at issue. Particularly in the case of recently developed technology,

or indeed in any technology claimed idiosyncratically, it is entirely plausible that

no such decisions would exist. In such situations, courts should rely on prior

decisions using analogous facts, or treat the issue as one of first impression and

decide it similarly. This is hardly an issue of first impression; Typenex cited

controlling precedent to the district court, including V-Formation, Inc. v. Benetton

Grp. SpA, 401 F.3d 1307, 1312 (Fed. Cir. 2005) (“Literal infringement requires

that each and every limitation set forth in a claim appear in an accused product.”)

and Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir.

2000) (“If any claim limitation is absent from the accused device, there is no literal

infringement as a matter of law.”). These cases clearly bind the district court and


50

should have led it to the correct conclusion of law. The district court cited these

cases (A8) but failed to follow them, thereby abusing its discretion.

Issue (4): The “Consisting Of” Limitations

The facts PDC presented to the district court establish that there is no

possible finding of infringement by the Typenex product under the proper scope of

“consisting of” as advocated above.6 Thus, even to the extent Typenex was

required to rebut PDC’s case, the facts show that PDC’s infringement case is not

likely to prevail at trial.

As applied to the disputed claims, there are four limitations defined in a

closed-ended manner by use of “consisting of.” One of them, the elongated flexible

strap, explicitly recites “consisting of … a label portion.” That must be the only

“label portion” embraced by the claim, because the claim language uses the

indefinite article “a” for the label portion within the closed-ended “consisting of”

language (“an elongated flexible strap consisting of a wristband portion and a label

portion”). The correct interpretation of this combination of language is that a single

label portion is recited, no more and no less. Norian Corp. v. Stryker Corp., 432

F.3d 1356, 1359 (Fed. Cir. 2005) (“In particular, this court has interpreted the word

6 To summarize, the “elongated flexible strap,” explicitly “consists of” “a label portion” and that must be the only “label portion” embraced by the claim, no more and no less. None of the exclusions—for aspects “unrelated to the invention” or “impurities”—apply here.


51

‘a’ in its singular sense when, as in this case, it has been used in conjunction with

the closed transitional phrase ‘consisting of.’”).7

This is confirmed by the specification, which contains no disclosure or

suggestion that the claimed invention could include multiple occurrences of a

“label portion,” or any disclosure or suggestion of multiple locations for the single

recited “label portion.” The only disclosed location for the single disclosed label

portion is as a component of the flexible strap, i.e., not as a component of the

separately-recited wristband portion of that strap.

Therefore, the district court erred by finding that Typenex had not raised at

least a substantial question of whether PDC had even made a prima facie case of

infringement, and much less so whether PDC had likely proved infringement.

Issue (5): The “Side-By-Side” Limitation

As Typenex argued below, A86-A87, once the proper identification of “label

portion” is considered, it is apparent that there is no infringement. Properly

identified, the “label portion” that the’982 patent claims as already written required

to be “immediately adjacent to and substantially co-extensive with the length of the 7 The claim preamble uses the open-ended transition “consisting of” but this does not change any of the analysis here. Use of “comprising” in a transition cannot reach into the claims to change the scope of the closed-ended “consisting of” limitations in the claim body. Dippin’Dots, Inc. v. Mosey, 476 F.3d 1337, 1343 (Fed. Cir. 2007) (“The presumption raised by the term ‘comprising’ does not reach into each of the six steps to render every word and phrase therein open-ended — especially where, as here, the patentee has narrowly defined the claim term it now seeks to have broadened.”).


52

band portion,” ’982 patent claim 1, col. 6, ll. 47-49, or “side-by-side” with the

band portion in plain English, does not read on the accused device. The great

weight of evidence presented to the district court showed that that the accused

product has its only “label portion” located in the “end-to-end” configuration

ubiquitous in the prior art, and which the public would understand from the ’982

patent specification to be exactly what the inventor chose not to describe and claim

as his invention. No reasonable fact finder could decide otherwise. There is no

infringement of claim 1 of the ’982 patent. The same conclusion of

noninfringement applies to all dependent claims, especially claims 5, 6, and 9

asserted by PDC. As dependent claims, each, by statute, incorporates all the

limitations of claim 1 to which each directly (or ultimately in the case of claim 6,

which depends on claim 5) refers. Jeneric/Pentron, Inc. v. Dillon Co., Inc. 205

F.3d 1377, 1383 (Fed. Cir. 2000) (affirming finding of non-infringement of

dependent claims under “a fundamental principle of patent law that dependent

claims cannot be found infringed unless the claims from which they depend have

been found to have been infringed.” (Quotations and citation omitted.)

Therefore, the district court committed an abuse of discretion by failing to

find that Typenex had raised an infringement defense that sufficient to show that

PDC was not likely to prove infringement at trial.

* * *


53

For all of these reasons, the district court committed plain errors of law in

concluding that PDC was likely to prove infringement by Typenex at trial. The

preliminary injunction based on such errors should be reversed.

* * * * * * *


54

Conclusion

As shown above, Typenex raised substantial questions concerning the legal

question of the construction of the ’982 patent, and also whether the ’982 patent

has been infringed. The district court erred in its claim constructions and also erred

in finding that PDC had likely shown it would prove infringement at trial.

Therefore, the district court abused its discretion by ordering a preliminary

injunction under the ’982 patent. This court should reverse the grant of a

preliminary injunction.

Dated: January 5, 2015 /s Peter R. Forrest Peter R. Forrest Dicke, Billig & Czaja, PLLC Fifth Street Towers, Suite 2250 100 South Fifth Street Minneapolis, MN 55402 (612)573-2000 ATTORNEYS FOR

DEFENDANT-APPELLANT


typenex_2015-01-05 - doc. 10 - appellants brief without dc order

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