MAYTAG CORPORATION, Plaintiff, v. ELECTROLUX HOME PRODUCTS, INC., d/b/a Frigidaire, Defendant, 411 F. Supp. 2d 1008

MEMORANDUM OPINION AND ORDER REGARDING CONSTRUCTION OF DISPUTED PATENT CLAIM TERMS MARK W. BENNETT, Chief Judge. TABLE OF CONTENTS I.INTRODUCTION..................................:..........................1013 A. Procedural Background ................ 1013 B. Factual Background..................................................1016 1. Prosecution and objectives of the patents-in-suit....................1016 2. The '909 patent...................................................1018 3. The'809 patent....................... 1019 C. Agreed Constructions.................................................1024 D.

Constructions Allegedly “In Dispute”..................................1024 II. LEGAL ANALYSIS.......................................................1034 A. The Terms To Be Construed 1034 1. What claim terms are “in dispute”?................................1034 a. Arguments of the parties........... 1034 b. Analysis......................................................1035 2. What disputed terms must be construed? ...........................1036 a. Arguments of the parties......................................1036 b. Analysis........................................:.............1037 B.

Principles Of Patent Claim Construction.........................,.....1039 1. The Phillips methodology.........................................1039 a. The starting point.............................................1039 b. Hierarchy of evidence.........................................1039 2. Other canons of claim construction................................1042 3. Do the parties’ proffered constructions limit the court’s choices?.... 1042 C. Construction Of Disputed Claim Terms................................1043 1. Disputed terms in the '909 patent..................................1043 a.

The disputed term in Claim 23: “Grooves”......................1043 i. Claim language ..........................:..................1043 ii. The parties’

definitions and arguments.....................1043 iii. Analysis.................................................1045 b. The disputed term in Claim 25: “Annular sidewall ... diverging radially outwardly to an upper terminal edge”.... 1047 i. Claim language..........................................1047 ii. The parties’

definitions and arguments.....................1047 iii. Analysis.................................................1049 c. The disputed term in Claim 26: “Knit lines” ....................1054 i. Claim language..........................................1054 ii. The parties’

definitions and arguments.....................1054 iii. Analysis.................................................1054 d. The disputed term in Claim 27: “Burrs at the apertures”.........1056 i. Claim language..........................................1056 ii. The parties’

definitions and arguments.....................1056 iii. Analysis.................................................1057 2. Disputed terms in the '809 patent..................................1060 a. The first disputed term in Claim 7: “A base wall including a peripheral portion from which extends an annular sidewall that diverges radially outwardly to a terminal edge”...........1060 i. Claim language..........................................1060 ii. The parties’

definitions and arguments.....................1061 iii. Analysis.................................................1062 b. The second disputed term in Claim 7: “Cavity cover member spaced about an end of the mold core”........................1063 i. Claim language..........................................1063 ii. The parties’

definitions and arguments.....................1064 iii. Analysis.................................................1065 c. The third disputed term in Claim 7: “Ejecting the washing machine basket ... by separating the mold core and cavity cover member and shifting the cavity sidewall member away from the mold core”...................................1066 i. Claim language..........................................1066 ii. The parties’

definitions and arguments.....................1067 iii. Analysis........................................ 1069 d. The first disputed term in Claim 8: “Utilizing the core pins to aid in ejecting”.............................................1073 i. Claim language..........................................1073 ii. The parties’

definitions and arguments.....................1074 iii. Analysis............'.....................................1075 e. The second disputed term in Claim 8: “Core pins forcing the plastic washing machine basket to shift relative to the mold core” ......................................................1076 i. Claim language..........................................1076 ii. The parties’

definitions and arguments.....................1076 iii. Analysis........... 1077 III. CONCLUSION 1078 This patent infringement action, which involves patents for plastic washing machine baskets and the process for making them, comes before the court for construction of disputed patent claim terms, ie., for a ruling after a so-called “Markman hearing.” See Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996).

Among the issues that the court must decide is whether it should construe only the seven patent claim terms that the plaintiff contends are in dispute in relation to its infringement claims or the nineteen terms identified by the defendant as in dispute and material to either the plaintiffs infringement claims or the defendant’s invalidity defenses.

A further issue is the extent to which any construction is required for claims that are to be given their “ordinary meaning.” As has been the case in nearly all of the patent litigation that has come before this court, these and the other pertinent issues are both hotly contested and ably argued by both sides, even where particular disputes seem, at first blush, to be merely nit-picky, if not downright implausible.

In this context, one of the parties cited this apt excerpt from a remarkably wise children’s story: “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean— neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master-—that’s all.” Lewis Carroll, Alice’s Adventures in Wonderland and Through the Looking Glass 219 (George Stade ed., 2004) (1871) (emphasis in the original).

The irony in this case is that it is not altogether clear to the court just who is being Humpty Dumpty. 7. INTRODUCTION A. Procedural Background Plaintiff Maytag Corporation (Maytag), a Delaware Corporation with its principal place of business in Newton, Iowa, filed this patent infringement action on July 23, 2004, against defendant Electrolux Home Products, Inc., doing business as Frigidaire (Electrolux), a Delaware corporation licensed to do business and doing business in Iowa and elsewhere, with its principal place of business in Cleveland, Ohio, but with manufacturing facilities in this District.

Maytag alleges in its Complaint (docket no. 2) that Electrolux is willfully infringing two patents assigned to Maytag: U.S. Patent No. 5,881,909 (the '909 patent), entitled “PLASTIC WASHING MACHINE BASKET,” and U.S. Patent No. 5,980,809 (the '809 patent), entitled “METHOD FOR MOLDING A PLASTIC WASHING MACHINE BASKET.” Maytag seeks judgments of infringement and willful infringement of both patents, preliminary and permanent injunctive relief from such infringement, treble damages with both pre- and post-judgment interest, and attorneys’ fees.

Electrolux answered Maytag’s Complaint on October 25, 2004 (docket no. 10), denying Maytag’s infringement claims and asserting several affirmative defenses, including invalidity of the patents-in-suit, as well as counterclaims for declaratory judgments of non-infringement and invalidity of the patents. Maytag, replied to Electrolux’s counterclaims on November 16, 2004 (docket no. 18), denying those counterclaims.

A Scheduling Order, Discovery Plan, and Order on Miscellaneous Pretrial Matters (docket no. 17) and a separate Order Setting Trial, Final Pretrial Conference And Requirements For Final Pretrial Order (docket no. 20) were filed on November 9, 2004, and November 30, 2004, respectively.

Pursuant to the Scheduling Order, a Markman hearing was originally scheduled for June 3, 2005, with interim deadlines for the filing of charts identifying the patent claims that the plaintiff alleges are infringed; the defendant’s admissions concerning characteristics identified by the plaintiff that are present in the accused device and identification of those that the defendant contends are not present; identification of extrinsic evidence supporting each party’s claim constructions; a joint claim construction statement; and briefing of claim construction issues.

Discovery disputes, disputes concerning which claim terms the parties were required to define, and other events required the rescheduling of the pertinent deadlines and the Markman hearing itself, first to July 29, 2005, then to September 29, 2005, then to October 28, 2005, and ultimately to December 5, 2005. Trial has also been rescheduled to October 23, 2006. In an Order dated September 6, 2005 (docket no. 61), on Maytag’s Objections (docket no. 48) to United States Magistrate Judge Paul A.

Zoss’s May 31, 2005, Order (docket no. 36), the court attempted to resolve, at least for purposes of preparing for the Markman hearing, a dispute concerning the claim terms for which the parties were required to proffer

definitions. Specifically, Judge Zoss had ordered Maytag, inter alia, “to put in writing its own suggested

definitions of the thirty terms listed by the defendant, or alternatively, to state its agreement with the defendant’s suggested definition(s) [and to] identify the extrinsic evidence supporting its proposed

definitions.” Order, May 31, 2005 (docket no. 36), 4. Maytag had objected to this portion of Judge Zoss’s order on the grounds that Federal Circuit precedent makes clear that terms not in controversy should not be defined; that only ten claim terms, not thirty, are in dispute; that the plain and ordinary meaning of those ten terms should prevail; that forcing Maytag to define terms that are unambiguous and not in controversy takes fact issues of infringement away from the jury; and that forcing Maytag to define terms not in controversy could adversely affect future cases against other defendants.

This court, however, overruled Maytag’s objections, finding that the portion of the May 31, 2005, Order to which Maytag objected was neither “clearly erroneous” nor “contrary to law.” See Fed.R.Civ.P. 72(a) (stating the applicable standard of review). The court explained that Judge Zoss had reasonably concluded that, at least prior to the exchange of proposed

definitions, all thirty terms identified by Electrolux were in controversy, based on Electrolux’s representation that Maytag had rejected Electrolux’s

definitions of all of those terms; that the “ordinary meaning” of patent terms is the “ordinary meaning ... as understood by a person of skill in the art,” see Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed.Cir.2005) {en banc) (emphasis added), which might require determination of proper

definitions; that requiring the parties to submit proposed

definitions of all terms on which the parties could not agree did not necessarily mean that the court would ultimately construe all of those terms; that Maytag could not simply assert that the terms did not require definition, then reserve the right to present extrinsic' evidence to dispute Electrolux’s proposed

definitions of those terms; and that the court was not persuaded by Maytag’s list of “horribles” flowing from an order requiring Maytag to present its proposed

definitions of terms, even terms that the court might subsequently find are not in controversy or do not require any definition. Order of September 6, 2005 (docket no. 61), 2-3. Therefore, the court directed Maytag to comply with Judge Zoss’s May 31, 2005, Order, in its entirety. Unfortunately, the September 6, 2005, Order did not settle the question of what the parties were required to submit in preparation for the Markman hearing. The parties were able to agree on. the

definitions of six claim terms in their Corrected Joint Claim Construction Statement, filed September 22, 2005 (docket no. 67), and they each submitted opposing

definitions of twenty-five other claim terms. Nevertheless, in Maytag’s initial PreHearing Brief On Markman Claim Construction Issues, filed September 30, 2005 (docket no. 71), Maytag only addressed the construction of the six claims that it contended were actually in dispute. Electrolux, on the other hand, addressed in its initial Markman brief the meaning of nineteen claim terms that it contended were still in dispute, for purposes of either infringement or invalidity claims.

Electrolux also objected to what it contended was Maytag’s violation of the spirit, if not the letter, of the court’s September 6, 2005, Order and other orders, by reserving until its rebuttal Markman brief any argument concerning the meaning of several disputed claim terms the constructions of which Maytag had not addressed in its opening brief.

The court attempted to resolve this dispute, as well, by establishing a deadline of October 18, 2005, for the filing of “simultaneous surrebuttal Markman briefs addressing only arguments raised for the first time in the opposing party’s rebuttal brief.” Order of October 11, 2005 (docket no. 76), 2. The court opined that allowing surrebuttal briefs would mitigate the prejudice that Electrolux had alleged would arise from Maytag’s improper arguments concerning additional claim terms in Maytag’s rebuttal brief. Id.

As indicated above, the parties filed simultaneous initial Markman briefs on September 30, 2005, and simultaneous rebuttal Markman briefs on October 11, 2005. Pursuant to the court’s October 11, 2005, Order, the parties also filed simultaneous surrebuttal Markman briefs on October 18, 2005. After the Markman hearing was rescheduled to December 5, 2005, the court requested, by letter dated October 29, 2005, that the parties submit briefs on or before November 14, 2005, on the role of the parties’ competing

definitions in the court’s claim construction process and the extent to which the court must choose only between the parties’ competing

definitions or is, instead, free to construe the claim terms for itself. The parties filed those briefs as required on November 14, 2005 (docket nos. 100 & 102), generally agreeing that the court is free to disagree with any proposed construction and, instead, adopt its own constructions.

On November 28, 2005, the court sent to the parties a 106-page tentative pre-argument draft of its ruling on the issues presented in the parties’ briefs for the Mark-man hearing, so that the parties could focus their oral arguments and, still more specifically, address where, in each party’s view, the court had gone wrong in its analysis of pertinent issues and its construction of claim terms. The court held the Markman hearing as scheduled on December 5, 2005. At the hearing, plaintiff Maytag was represented by Edmund J. Sease and Jeffrey D. Harty, who each presented arguments on Maytag’s behalf, as well as R.

Scott Johnson of McKee, Voorhees & Sease, P.L.C., in Des Moines, Iowa. Also present for Maytag were Bruce Watson and Burgess Lowe, house counsel for Maytag. Defendant Electrolux was represented by David M. Maxwell, who presented Electrolux’s arguments, as well as Frank G. Smith and Cherri Gregg of Alston & Bird, L.L.P., in Atlanta, Georgia, and Richard J. Sapp of Nyemaster, Goode, West, Hansell & O’Brien, P.C., in Des Moines, Iowa. Michael Griffith was also present as a company representative for Electrolux.

The hearing involved argument of counsel and some demonstrative video and slide presentations, but no live witnesses or presentation of other evidence. At the oral arguments, the parties agreed that the opportunity to review the court’s draft ruling had focused their arguments, and the oral arguments themselves demonstrated that the issues had been substantially narrowed by the court’s preargument disclosure of its proposed resolution of pertinent issues and its proposed claim constructions.

Indeed, the court found this process of disclosing a tentative draft to the parties prior to the Markman hearing to be invaluable in resolving the disputed issues in claim construction. Also, the court found the oral arguments to be as enlightening and skillfully presented as any the undersigned has ever heard in more than eleven years as a United States district court judge. The matters raised in the parties’ Mark-man briefs and the Markman hearing are now fully submitted. B. Factual Background As explained more fully in the legal analysis

section below, the pertinent “factual background” here, for purposes of patent claim construction, is the language of the patents-in-suit themselves, the prosecution history, and such extrinsic evidence as the parties may demonstrate is necessary to determination of the proper construction of the claim terms. See generally Phillips v. AWH Corp., 415 F.3d 1303 (Fed.Cir.2005) (en banc). Therefore, this

section of the ruling will focus on the '909 patent and the '809 patent themselves, rather than on any contentions of the parties concerning infringement or invalidity of the patents-in-suit. 1. Prosecution and objectives of the patents-in-suit The patents-in-suit are patents for plastic washing machine baskets and the process for making them. The first patent-in-suit, the “product” patent, is U.S.

Patent No. 5,881,909 (the '909 patent), entitled “PLASTIC WASHING MACHINE BASKET,” which is included as Exhibit 1 to Maytag’s Complaint (docket no. 2-2), and as Exhibit A to its Appendix Of Exhibits To Plaintiffs Pre-Hearing Brief On Mark-man Claim Construction Issues (Plaintiffs Markman Appendix) (docket no. 71) (hereinafter the '909 patent). The second patent-in-suit, the “process” patent, is U.S.

Patent No. 5,980,809 (the '809 patent), entitled “METHOD FOR MOLDING A PLASTIC WASHING MACHINE BASKET,” which is included as Exhibit 2 to Maytag’s Complaint (docket no. 2-3), and as Exhibit B of its Markman Appendix (docket no. 71) (hereinafter the '809 patent). Both patents stem from a single original patent application, application number 11,893, filed February 1, 1993. However, the Examiner required “division” of the original patent application into separate patent applications.

Therefore, the patentee filed application number 08/324,781, for the “process” patent on October 14, 1994, as a “division” of application 11,893. The '909 “product” patent issued on March 16, 1999, and the '809 “process” patent issued on November 9, 1999. Both patents identify the inventors as Jack L. Craine, P. Randell Gray, and Melvin D. Colelasure, and Maytag as the assignee. Moreover, because the '809 patent is a “division” of the application for the '909 patent, the Abstract, Background Of The Invention, and

Summary Of The Invention in the '809 patent, including the objects of the patent, are identical to comparable portions of the '909 patent. Compare the '909 patent (Abstract, Background Of The Invention,

Summary Of The Invention), with, the '809 patent (Abstract, Background Of The Invention, and

Summary Of The Invention).

Thus, the Abstract for both patents discloses a “method and apparatus” invention, as follows: A method and apparatus for molding a plastic washing machine basket includes a fixed mold core formed with teardrop-shaped projections spaced about a periphery thereof, cavity sidewall members spaced about the periphery of the mold core which carry-core pins having tips adapted to abut teardrop-shaped projections on the mold core and a cavity cover member spaced about an end of the mold core and abutting the cavity sidewall members so as to define a cavity between the mold core and both the cavity cover member and the sidewall members.

After injecting a plastic material to flow about the tips of the core pins and the projections so as to fill the cavity and form a plastic washing machine basket having an annular sidewall extending from a peripheral portion of a base wall with spaced apertures extending through the sidewall and teardrop-shaped grooves in an inner surface thereof extending from the apertures, the plastic washing machine basket can be ejected from the molding apparatus by separating the mold core and the cavity cover member and shifting the cavity sidewall members away from the mold core at a predetermined angle such that the core pins force the plastic washing machine basket to be removed from the mold core due to engagement of the core pins in the apertures of the basket.

The '909 patent (Abstract); the '809 patent (Abstract). The Background Of The Invention for both patents explains that “there exists a need in the art for a method and apparatus for molding a plastic washing machine basket with holes in the base wall and annular sidewall thereof, without forming undesirable knit lines, in a single manufacturing step.” Id., col. 1, ll. 33-37; the '809 patent, col. 1, ll. 38-42.

The Background identifies the following problems with the prior art: (1) the costly and time-consuming multi-step manufacturing process for metal washing machine baskets, which required shaping the metal basket and perforating the holes in separate steps; and (2) unsuccessful attempts to mold plastic washing machine baskets, which involved either a single-step process for shaping the basket and perforating the holes, but resulted in numerous knit lines that reduced structural integrity and visually indicated defects, or separate molding and perforating steps, which left burrs and sharp edges that could result in damage to garments washed in the basket.

Id., col. 1, ll. 10-32; the '809 patent, col. 1, ll. 15-37.

Consequently, the invention in both patents had two stated objects: (1) “to provide a plastic washing machine basket which can be molded in a single manufacturing step with holes formed in both a base wall and an annular sidewall of the basket without undesirable knit lines on the inner surface of the basket”; and (2) “to provide a method and an apparatus for molding a plastic washing machine basket without knit lines on the inner surface thereof while forming the basket with spaced holes in both a base wall and an annular sidewall thereof.” Id. (Summary Of The Invention), col. 1, ll. 41-50; the '809 patent (Summary Of The Invention), col. 1, ll. 46-55.

The

Summary Of The Invention explains how these objects are accomplished by the patented invention. However, from this point on, different parts of the

Summary Of The Invention and the Detailed Description Of The Invention become pertinent to each patent, even where those parts of the patents are identical. 2. The '909 patent Because the focus of the '909 patent is the plastic washing machine basket, rather than the apparatus for molding such a plastic washing machine basket, the pertinent part of the

Summary Of The Invention, for present purposes, is the “product” part: [The apparatus will] form a plastic washing machine basket having an annular sidewall extending upward from a peripheral portion of a base wall wherein the sidewall will have inner and outer surfaces with spaced apertures extending therethrough and teardrop-shaped grooves extending from the apertures. Id.

Figures 1 and 2 of the '909 patent, reproduced below, show the plastic washing machine basket in question: The pertinent part of the Detailed Description Of The Invention in the '909 patent, that is, the part describing the plastic washing machine basket rather than the apparatus for producing such a basket, states the following: The plastic washing machine basket 2 of the invention will be explained with reference to FIGS. 1 and 2. Basket 2 includes a base wall 5 and an annular sidewall 8 extending from a peripheral portion 10 of base wall 5.... ....

Base wall 5 is also formed with a plurality of drain holes 34 which extend through inner and outer surfaces 16, 19 of base wall 5. As previously stated, annular sidewall 8 extends from peripheral portion 10 of base wall 5 to a terminal edge 36. Sidewall 8 is defined by an outside surface 38 and an inside surface 41 through which a plurality of apertures 44 extend. Apertures 44 are spaced along the length of sidewall 8 in alternating rows, as generally depicted in both FIGS. 1 and 2.

For the sake of clarity in these figures, apertures 44 have not been shown to extend entirely around the circumference of sidewall 8. However, in the preferred embodiment, apertures 44 are provided around the entire circumference of sidewall 8 and are slightly and progressively reduced in diameter from adjacent base wall 5 toward terminal edge 36. At outside surface 38, apertures 44 are beveled at 47. In addition, inside surface 41 of sidewall 8 is formed with teardrop-shaped grooves 50 which extend about apertures 44.

Teardrop-shaped grooves 50 generally taper along their length, in both width and depth, from base wall 5 toward terminal edge 36 such that apertures 44 are located in substantially the widest and deepest portions of teardrop-shaped grooves 50. Finally, terminal edge 36 of sidewall 8 is provided with an outer annular notch 52 for the reasons which will be more fully discussed below. The '909 patent (Detailed Description Of The Invention), col. 2, l. 43, to col. 3, l. 26. The '909 patent states twenty-nine claims.

However, Maytag has clarified that it is alleging that Electrolux’s accused devices infringe only Claims 23, 24, 25, and 27. Electrolux asserts that Claim 26 is in dispute for purposes of its counterclaims. Therefore, the court will only quote here claims 23 through 27 of the '909 patent. Those claims state the following: 23.

A plastic washing machine basket comprising: a substantially circular base wall having a peripheral portion; and an annular plastic sidewall extending upward from the peripheral portion of said base wall to a terminal edge, said sidewall having inner and outer surfaces, grooves formed in said inner surface of said sidewall, a plurality of spaced apertures extending through said sidewall, said apertures located within said grooves. 24. The plastic washing machine basket of claim 23, wherein the outer surface of said sidewall is beveled about said apertures. 25.

A plastic washing machine basket comprising: a base wall having a peripheral portion, said base wall being formed of plastic; and an annular sidewall extending upward from the peripheral portion of the base wall and diverging radially outwardly to an upper terminal edge, said sidewall including inner and outer surfaces having spaced apertures extending therethrough with the outer surface being beveled at the apertures, said sidewall being made of plastic and integrally formed with both the base and the apertures such that the basket has a smooth, uniform construction. 26.

The plastic washing machine basket of claim 25, wherein the basket lacks knit lines on the inner surface. 27. The plastic washing machine basket of claim 25, wherein the basket lacks burrs at the apertures. The '909 patent, col. 10, ll. 4-32. 3. The '809 patent The focus of the '809 patent is the process for manufacturing a plastic washing machine basket, rather than the plastic washing machine basket itself. Therefore, the pertinent part of the

Summary Of The Invention is the “process” part: These [identified objects of the invention] and other objects of the present invention are accomplished by providing a molding apparatus comprising a mold core which is fixed at one end and includes teardrop-shaped projections spaced about an outer periphery thereof, a plurality of cavity sidewall members being movable between an open mold position, in which the cavity sidewall members have been shifted at a predetermined angle away from the mold core, and a closed mold position, in which the cavity sidewall members extend about the outer periphery of the mold core with a first predetermined space therebetween, and a cavity cover member extending about the second end of the mold core with a second predetermined space therebetween and abutting the cavity sidewall members when in a closed mold position but being spaced from the cavity sidewall members when in an open mold position.

The cavity sidewall members carry core pins having terminal ends which project toward and abut the teardrop-shaped projections of the mold core when the cavity sidewall members are in the closed mold position.

By this arrangement, when a plastic material is injected into the first and second predetermined spaces, the plastic material will flow about the core pins and the projections so as to form a plastic washing machine basket having an annular sidewall extending upward from a peripheral portion of a base wall wherein the sidewall will have inner and outer surfaces with spaced apertures extending therethrough and teardrop-shaped grooves extending from the apertures.

After cooling of the plastic material, the various core pins are used to remove the molded plastic washing machine basket from the mold core during an ejection process by shifting the basket relative to the mold core through the interengagement of the core pins with the apertures formed in the sidewall of the basket. A stripper ring and an ejection system, are also provided to aid in removing the molded basket from the mold core. The '809 patent, col. 1, l. 56, to col. 2, l. 23.

Figures 3 and 4 of the '809 patent, reproduced below, show the molding apparatus in question: The pertinent part of the Detailed Description Of The Invention in the '809 patent, that is, the part describing the apparatus for producing a plastic washing machine basket rather than the plastic washing machine basket itself, states the following: The '809 patent states thirty-five claims. However, Maytag has clarified that it is alleging that Electrolux’s accused devices infringe only Claims 7, 8, and 9. The court will, therefore, quote only those claims. Those claims state the following: 7.

A method of making an integral, smooth and uniformly constructed plastic washing machine basket having a base wall including a peripheral portion from which extends an annular sidewall that diverges radially outwardly to a terminal edge in an apparatus including a mold core, cavity sidewall members spaced about the mold core which carry core pins each having a beveled tip portion adapted to abut the mold core during a molding operation and a cavity cover member spaced about an end of the mold core and abutting the cavity sidewall members so as to define a cavity between the mold core and both the cavity cover member and the cavity sidewall members comprising: injecting a plastic material to fill the cavity while flowing around the beveled tip portion of each of the core pins to form a plastic washing machine basket having sidewalls provided with a plurality of spaced beveled apertures; and ejecting the washing machine basket from the apparatus by separating the mold core and cavity cover member and shifting the cavity sidewall members away from the mold core. 8.

The method of claim 7, further comprising: utilizing the core pins to aid in ejecting the plastic washing machine basket from the apparatus with the core pins forcing the plastic washing machine basket to shift relative to the mold core as the cavity sidewall members are shifted away from the mold core due to the engagement of the core pins in the beveled apei'tures of the plastic washing machine basket. 9.

The method of claim 8, further comprising: aiding in ejecting the washing machine basket by substantially, linearly shifting a stripper ring, that engages the terminal edge of the plastic washing machine basket, relative to the mold core. The '809 patent, col. 8, ll. 16-48. C. Agreed Constructions In their Corrected Joint Claim Construction Statement, filed September 22, 2005 (docket no. 67), the parties state that they have been able to agree on the construction of six terms. The six terms and the parties’ agreed

definitions are the following: D. Constructions Allegedly “In Dispute” Maytag contends that only seven other claim terms require construction, because only those seven claim terms are actually “in dispute” with respect to Maytag’s infringement claims. Electrolux counters that nineteen claim terms remain “in dispute,” for purposes of both Maytag’s infringement claims and Electrolux’s invalidity defenses. The claim terms for which the parties have submitted

definitions in the Corrected Joint Claim Construction Statement, filed September 22, 2005 (docket no. 67) are set forth in the chart below, with each party’s proffered

definitions and the evidence on which each party relies. The seven terms that Maytag contends are the only terms that the court should construe are highlighted in gray. Bold font indicates differences in language between the parties’

definitions. II. LEGAL ANALYSIS A. The Terms To Be Construed As indicated above, the parties’ first dispute is what claims the court should construe. The court finds that the issue of what claim terms the court should actually construe requires some analysis. 1. What claim terms are “in dispute”? a. Arguments of the parties Maytag argues that the Federal Circuit Court of Appeals has made clear that only disputed terms need to be defined.

Maytag then asserts that Electrolux disputes the presence in its accused devices of claim limitations involving only seven terms, but does not dispute that several other limitations involving terms for which Electrolux also demands construction are present in its accused devices. Thus, Maytag’s initial argument is, in essence, that only claim terms pertinent to the parties’ disputes about infringement require construction.

Maytag contends that construing additional “undisputed” terms would result in the court rendering an advisory opinion and impinging upon the province of the jury to determine infringement issues. In its portion of the Joint Claim Construction Statement and its initial and rebuttal Markman briefs, Electrolux asserts that Maytag’s contention that the court should only construe terms necessary to determine issues of infringement is simply wrong.

Electrolux argues, instead, that claim construction is intended to determine the meaning of claim terms in dispute for purposes of all of the issues being litigated, including infringement and invalidity issues. Indeed, Electrolux points out that claim terms must be given the same construction for purposes of both invalidity and infringement analyses. Electrolux also contends that the court’s claim constructions will govern the applicability of prior art, which, in turn, has an impact on invalidity.

Electrolux contends that the court’s duty to construe claims extends beyond terms formally disputed by the parties, because the court has a duty to instruct the jury as to the law governing patent infringement. Electrolux also argues that, in Markman, the Federal Circuit Court of Appeals and the Supreme Court rejected the contention that Maytag now makes that the court would somehow trespass upon the province of the jury, because the Markman decisions made clear that claim construction is a matter for the court.

In its final “surrebuttal” brief, and elsewhere, Maytag contends that Electrolux’s repeated failure to identify the “validity” disputes as to which the construction of certain claim terms could be relevant confirms that there are really no such disputes. Therefore, Maytag reiterates that the court need only construe the seven terms in dispute for infringement purposes. At the oral arguments, the parties focused this portion of their dispute exclusively on two terms: “knit lines” in Claim 26 of the '909 patent and “cavity cover member spaced about an end of the mold core” in Claim 7 of the '809 patent.

Maytag had identified “knit lines” as a term in dispute in the Joint Claim Construction Statement, but then offered no argument concerning its proposed definition in its opening brief. Apparently this omission of argument was the result of Maytag’s withdrawal of its initial contention that Electrolux’s accused devices infringe Claim 26 of the '909 patent.

However, Electrolux contended that a dispute about the construction of “knit lines” is as ripe as it could possibly be, because Electrolux has consistently maintained that the '909 patent is not “enabling” owing to the impossibility of making a washing machine basket without “knit lines.” Maytag contends that “cavity cover member” is not in dispute, because Electrolux’s representatives have agreed that their accused devices lack any such component. Electrolux, however, contends that “cavity cover member” is in dispute, for infringement purposes, and has been so identified since February 2005. b.

Analysis Maytag is correct that in Vivid Technologies, Inc. v. American Science & Engineering, Inc., 200 F.3d 795 (Fed.Cir.1999), the Federal Circuit Court of Appeals observed, “AS & E is correct that although the claims are construed objectively and without reference to the accused device, only those terms need be construed that are in controversy, and only to the extent necessary to resolve the controversy.” Vivid Techs., Inc., 200 F.3d at 803 (citing United States Surgical Corp. v.

Ethicon, Inc., 103 F.3d 1554, 1568 (Fed.Cir.1997), for the proposition that claim construction is for “resolution of disputed meanings”). However, that principle hardly limits claim construction to terms at issue in an infringement dispute. Rather, it makes clear that the issue is whether the terms are “in controversy,” which in the context of patent law would necessarily include claims “in controversy” for purposes of a validity challenge, as well as terms “in controversy” for purposes of infringement claims.

Indeed, the Federal Circuit Court of Appeals has made clear that claim construction is the first step in analysis of invalidity challenges, just as it is the first step in analysis of infringement allegations. State Contracting & Eng’g Corp. v. Condotte Am., Inc., 346 F.3d 1057, 1068 (Fed.Cir.2003) (“[W]e have held that a claim ‘must be construed before determining its validity, just as it is first construed before deciding infringement.’ ”) (quoting Markman v.

Westview Instruments, Inc., 52 F.3d 967, 997 n. 7 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996)); see also Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1316 (Fed.Cir.2005) (reviewing claim constructions for purposes of both invalidity and infringement). Furthermore, the claim terms must be given the same construction for purposes of determining both infringement and invalidity. See, e.g., Intervet Am., Inc. v.

Kee-Vet Labs., Inc., 887 F.2d 1050, 1053 (Fed.Cir.1989) (“We fully subscribe to the proposition that claims must be given the same construction when considering infringement as when considering validity.”). Thus, if patent claim terms are “in dispute” for purposes of determining validity, the court has the same obligation to construe the claim terms as it would have if the claim terms are “in dispute” for purposes of determining infringement.

All of this goes by the wayside, however, if there are, in fact, no substantial allegations of invalidity of the patents-in-suit involving the claim terms thát a party asks the court to construe. In such circumstances, the only claim terms requiring construction would be those “in dispute” for purposes of infringement claims. Maytag has identified the claim terms that it contends are “in dispute” for purposes of infringement from the parties’ Claim Charts, which show, inter alia, which limitations Electrolux admits are included in Electrolux’s accused devices and which ones Electrolux contends are not present.

Electrolux does not disagree that these are the only terms “in dispute” for purposes of infringement. In contrast, Electrolux pleaded its affirmative defenses and counterclaims of invalidity of the patents-in-suit only in very general terms. See Answer (docket no. 10). Thus, Electrolux’s affirmative defenses and counterclaims give no hint of what claim terms are at issue in any “invalidity” challenges to the patents-in-suit.

Also, nowhere in its briefing for the Markman hearing has Electrolux identified the basis for its assertions that the construction of various claim terms is necessary to its “invalidity” arguments. The court was unwilling simply to take Electrolux’s word for it that the claim terms Electrolux has identified may be at issue at some point in the future, for example, when the court or the jury makes obviousness, anticipation, or other “invalidity” determinations concerning the patents-in-suit in light of the prior art.

To do so would, as Maytag contends, constitute an impermissible advisory opinion, because the court would construe terms to a greater extent than necessary to resolve the present controversy. Vivid Techs., Inc., 200 F.3d at 803.

However, at the Markman hearing, Electrolux clarified the basis for its contention that the construction of “knit lines” is genuinely in dispute for purposes of its invalidity challenge to the '909 patent, specifically, as part of its assertion that the '909 patent is not “enabling.” Similarly, at the Markman hearing, Electrolux demonstrated to the court’s satisfaction that it has, at least since February 2005, consistently identified “cavity cover member” in Claim 7 of the '809 patent as in dispute for infringement purposes.

Therefore, the court finds that, in addition to the seven terms identified by Maytag as “in dispute” for purposes of infringement, “knit lines” and “cavity cover member” are “ripe” for construction at this time, the first for purposes of invalidity and the second for purposes of infringement. Unfortunately, postponing construction of several additional terms until Electrolux demonstrates that they are actually “in dispute” for purposes of invalidity may mean that the court will have to engage in another round of Markman-like claim construction.

Fortunately, it appears that the parties have already laid much of the ground work for such additional claim construction when and if the issue of the construction of additional terms becomes “ripe.” 2. What disputed terms must be construed? a. Arguments of the parties Even where only these nine terms are considered to be “in dispute” at this time, Maytag has asserted that some terms simply require no construction.

Specifically, in its briefing of its appeal of Judge Zoss’s order requiring the parties to submit proposed claim constructions, Maytag first took the position that the court should not construe claim terms that are “unambiguous.” See Plaintiffs Objections To United States Magistrate Judge Paul A. Zoss’s May 31, 2005, Order (docket no. 48).

Maytag asserted that all of the claim terms that are “in dispute” should be given their plain and ordinary meanings, and as such, those terms required no further definition. “Construction” of such terms, Maytag contended, would introduce additional specificity that is not required and would take away from the jury questions of whether the accused devices meet the limitations expressed in the words of the claims. Maytag contended that such excessive construction is just using words to define words, allowing a departure from the meaning of the claim language to serve the purposes of a party disputing infringement.

Maytag reiterates this argument in its Markman briefs. See Plaintiffs PreHearing Brief on Markman Claim Construction Issues, filed September 30, 2005 (docket no. 71) at 6-10. Maytag asserts that construction of clear claim language confuses construction, which is a question of law for the court, with infringement, which is a question of fact for the jury. Maytag argues that it is improper to interpret claim terms to facilitate a comparison between the claim and the accused device.

Although some imprecision in claim language is inevitable, Maytag contends that the court must not take away from the jury the ultimate determination of whether claims read on the accused device by engaging in claim construction that is excessively specific. Electrolux counters that even words of ordinary usage may require construction when used in a patent. This is so, Electrolux contends, because terms in a patent are given their “ordinary meaning” as the terms would be understood by a person of skill in the art, citing, inter alia, this court’s September 6, 2005, Order.

Thus, Electrolux asserts that, before any infringement or invalidity determination can be made, the court must consult the patent language, the specification, and the prosecution history, and possibly extrinsic evidence, to determine the meaning of the words in the claims. It is not enough, Electrolux argues, to assert that certain claims appear simple and easy to understand, and thus, ought not to be construed by the court, because this argument acknowledges neither the context of terms in the patent nor how they would be understood by one of skill in the art in that context. b.

Analysis The court does not agree with Maytag’s assertion that terms to be given their “ordinary meanings” do not require any construction. As the court stated in its September 6, 2005, Order, while terms not expressly defined in a patent are to be given their “ordinary meaning,” it is their “ordinary meaning ... as understood by a person of skill in the art.” See Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed.Cir. 2005) (en banc) (emphasis added).

It has been this court’s experience that parties in patent cases rarely agree on the “ordinary meaning [of patent terms] as understood by a person of skill in the art,” so that asserting that such a meaning should apply, without further construction, merely begs the question of what that meaning is. Moreover, determining what is the “ordinary meaning ... as understood by a person of skill in the art” is part of the process of claim construction. See id.; see also Nystrom v.

TREX Co., Inc., 424 F.3d 1136, 1142 (Fed.Cir.2005) (setting out the process for determining the “ordinary meaning” of claim terms pursuant to Phillips). As the Federal Circuit Court of Appeals explained in Phillips, In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words. See Brown v. SM, 265 F.3d 1349, 1352 (Fed.Cir.2001) (holding that the claims did “not require elaborate

interpretation”). In such circumstances, general purpose dictionaries may be helpful. In many cases that give rise to litigation, however, determining the ordinary and customary meaning of the claim requires examination of terms that have a particular meaning in a field of art.

Because the meaning of a claim term as understood by persons of skill in the art is often not immediately apparent, and because patentees frequently use terms idiosyncratically, the court looks to “those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean.” Innova, 381 F.3d at 1116.

Those sources include “the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Id.; see also Gemstar-TV Guide Int’l, Inc. v. Int’l Trade Comm’n, 383 F.3d 1352, 1364 (Fed.Cir. 2004); Vitronics, 90 F.3d at 1582-83; Markman, 52 F.3d at 979-80. Phillips, 415 F.3d at 1314 (emphasis added). Thus, even if the meanings of the “disputed” terms are “readily apparent,” determination of what “general purpose dictionar[y]”

definitions are applicable in context may be helpful to determine the “ordinary meaning ... as understood by a person of skill in the art.” Id. (emphasis added). If the meanings of those terms are not “immediately apparent,” the court must look further to determine proper

definitions. Id. Thus, it is clear that even terms with meanings that are “readily apparent” may properly be construed by the court to determine their “ordinary meaning ... as understood by a person of skill in the art.” Maytag is correct, however, that there are limits on the scope of “construction.” As explained more fully below, the proper process of claim construction involves consideration of intrinsic evidence, consisting of the patent claims, the patent specification, and the prosecution history, and if necessary, extrinsic evidence, consisting of dictionary

definitions and expert testimony. See id. at 1316-22. Claim construction does not involve comparison of the patent language to the accused device. See, e.g., PPG Indus. v. Guardian Indus. Corp., 156 F.3d 1351, 1355 (Fed.Cir.1998) (the inevitable imprecision of patent claims “does not mean ... 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”); see generally Markman v.

Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (patent claim construction is a question of law for the court that is separate from determination of whether infringement has occurred). Thus, the task of the court is to “define[ ] the claim with whatever specificity and precision is warranted by the language of the claim and the evidence bearing on the proper construction,” and once that task is done, “the task of determining whether the construed claim reads on the accused product is for the finder of fact.” Id.

Nevertheless, while the court must be mindful that it is construing terms in the context of the patent, not construing terms in the context of infringement arguments, when the court recognizes and follows this principle, claim construction does not trespass on the province of the jury to determine infringement, even when the court construes terms that are to be given their “ordinary meanings.” Having determined what terms must be construed, the court turns, next, to the principles of patent claim construction. B.

Principles Of Patent Claim Construction In construing patent claims, courts follow the methodology set forth in the recent en banc decision of the Federal Circuit Court of Appeals in Phillips v. AWH Corp., 415 F.3d 1303 (Fed.Cir.2005) (en banc). CytoLogix Corp. v. Ventana Med. Sys., Inc., 424 F.3d 1168, 1172 (Fed.Cir. 2005); Free Motion Fitness, Inc. v. Cybex Int'l, Inc., 423 F.3d 1343, 1347 (Fed.Cir. 2005). The court will, therefore, summarize that methodology and review key canons of patent claim construction. 1. The Phillips methodology a.

The starting point As the court explained in Phillips, “[i]t is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to which the patentee is entitled the right to exclude.’ ” 415 F.3d at 1312 (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed.Cir.2004)). Consequently, before and since the decision in Phillips, the Federal Circuit Court of Appeals has reiterated that courts must “begin [their] claim construction analysis with the words of the claim.” Nystrom v.

TREX Co., Inc., 424 F.3d 1136, 1142 (Fed.Cir.2005) (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)); Biagro Western Sales, Inc. v. Grow More, Inc., 423 F.3d 1296, 1302 (Fed.Cir.2005) (“It is elementary that claim construction begins with, and remains focused on, the language of the claims.”). “The construction of claims,” the Federal Circuit Court of Appeals has explained, “is simply a way of elaborating the normally terse claim language in order to understand and explain, but not to change, the scope of the claims.” Terlep v.

Brinkmann Corp., 418 F.3d 1379, 1382 (Fed.Cir.2005) (internal quotation marks and citations omitted). b. Hierarchy of evidence As to the process of claim construction, The words of the claim are generally given their ordinary and customary meaning. [Vitronics Corp., 90 F.3d] at 1582. The ordinary and customary meaning of a claim term “is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention.” Phillips, 415 F.3d at 1313. The person of ordinary skill in the art views the claim term in the light of the entire intrinsic record. See id.

Thus, the claims “must be read in view of the specification, of which they are a part.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995) (en banc). “ ‘The construction that stays true to the claim language and most naturally aligns with the patent’s description of the invention will be, in the end, the correct construction.’ ” Phillips, 415 F.3d at 1316 (quoting Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir.1998)).

In addition to the written description, “the prosecution history can often 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. Nystrom, 424 F.3d at 1142; Biagro Western Sales, 423 F.3d at 1302 (explaining that “prosecution history, ... like the patent itself, has been designated as part of the ‘intrinsic evidence’ ” for claim construction) (quoting Phillips, 415 F.3d at 1317).

The Federal Circuit Court of Appeals has explained that the “central importance” of the specification of the patent in claim construction is “because ‘the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.’ ” Aquatex Indus., Inc. v. Techniche Solutions, 419 F.3d 1374, 1380 (Fed.Cir.2005) (quoting Phillips, 415 F.3d at 1313); Research Plastics, Inc. v.

Federal Packaging Corp., 421 F.3d 1290, 1295 (Fed.Cir.2005) (“It is presumed that the person of ordinary skill in the art read the claim in the context of the entire patent, including the specification, not confining his understanding to the claim at issue.”). Indeed, “[w]here ... the disputed claim term is technical or a term of art, ‘[t]he best source for understanding [it] is the specification from which it arose, informed, as needed, by the prosecution history.’ ” Aquatex, 419 F.3d at 1380 (quoting Phillips, 415 F.3d at 1315).

The specification is not only “highly relevant” to claim construction, “[u]sually, it is dispositive.” Phillips, 415 F.3d at 1314 (adding that the specification “is the single best guide to the meaning of a disputed term”). Similarly, “ ‘[t]he purpose of consulting the prosecution history in construing a claim is to “exclude any

interpretation that was disclaimed during prosecution.” ’ ” Research Plastics, 421 F.3d at 1296 (quoting Rhodia Chimie v. PPG Indus., 402 F.3d 1371, 1384 (Fed. Cir.2005), in turn quoting ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1580 (Fed.Cir.1988)). This is so, because “the prosecution history can reveal instances where the inventor limited the invention in the course of prosecution and thus narrowed the scope of the claim.” Id. (citing Phillips, 415 F.3d at 1317-18).

In addition to “intrinsic” evidence, consisting of the claim language, the specification, and the prosecution history, “extrinsic” evidence can also be useful in claim construction. Terlep, 418 F.3d at 1382 (“Extrinsic evidence ... also ‘may be considered if the court deems it helpful in determining the true meaning of the language used in the patent claims.’ ”) (quoting Phillips, 415 F.3d at 1318).

For example, “ ‘technical dictionaries may provide [help] to a court “to better understand the underlying technology” and the way in which one of skill in the art might use the claim terms.’ ” Aquatex, 419 F.3d at 1380 (quoting Phillips, 415 F.3d at 1315, in turn quoting Vitronics Corp., 90 F.3d at 1584). Indeed, “[i]n some cases, it is possible to construe a claim term by applying ‘the widely accepted meaning of commonly understood words.’ ” Network Commerce, Inc. v. Microsoft Corp., 422 F.3d 1353, 1359 (Fed.Cir.2005) (quoting Phillips, 415 F.3d at 1314).

Therefore, “a judge who encounters a claim term while reading a patent might consult a general purpose or specialized dictionary to begin to understand the meaning of the term, before reviewing the remainder of the patent to determine how the patentee has used the term.” Phillips, 415 F.3d at 1324. However, the Federal Circuit Court of Appeals has recently reevaluated the usefulness of dictionaries to determine the meaning of claim terms: Our en banc decision in Phillips clarified the appropriate use of dictionaries in claim construction, rejecting the view that dictionary

definitions govern unless contradicted by intrinsic evidence. Phillips, 415 F.3d at 1320. Nonetheless Phillips confirms that courts may “ ‘rely on dictionary

definitions when construing claim terms’ ” and that “[dictionaries ... are often useful to assist in understanding the commonly understood meaning of words.” Id. at 1322 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584 n. 6 (Fed.Cir.1996)). The court must ensure that any reliance on dictionaries accords with the intrinsic evidence: the claims themselves, the specification, and the prosecution history. Id. at 1314. Under Phillips, the rule that “a court will give a claim term the full range of its ordinary meaning,” Rexnord Corp. v.

Laitram Corp., 274 F.3d 1336, 1342 (Fed.Cir.2001), does not mean that the term will [*1349] presumptively receive its broadest dictionary definition or the aggregate of multiple dictionary

definitions, Phillips, 415 F.3d at 1320-1322. Rather, in those circumstances where reference to dictionaries is appropriate, the task is to scrutinize the intrinsic evidence in order to determine the most appropriate [dictionary] definition. Id. at 1322-23, 1324. Free Motion Fitness, Inc., 423 F.3d at 1348-49.

Thus, while standard and specialized dictionaries have their place in patent claim construction, the court must choose the proper dictionary definition in light of the “intrinsic” evidence of the meaning of patent terms, consisting of the patent description and the prosecution history, not merely choose a dictionary definition over the definition suggested by such “intrinsic” evidence.

See also Terlep, 418 F.3d at 1382 (dictionaries are useful, “provided the court ‘attach[es] the appropriate weight ... to those sources in light of the statutes and policies that inform patent law.’ ”) (quoting Phillips, 415 F.3d at 1324).

Thus, “[w]hat Phillips now counsels is that in the absence of something in the written description and/or prosecution history to provide explicit or implicit notice to the public-—i.e., those of ordinary skill in the art—that the inventor intended a disputed term to cover more than the ordinary and customary meaning revealed by the context of the intrinsic record, it is improper to read the term to encompass a broader definition simply because it may be found in a dictionary, treatise, or other extrinsic source.” Nystrom, 424 F.3d at 1145.

Extrinsic evidence that may be useful in claim construction also includes “expert testimony,” but such testimony should also be considered in the context of intrinsic evidence. Biagro, 423 F.3d at 1302; Phillips, 415 F.3d at 1318-19.

More specifically, “a court should discount any expert testimony that is clearly at odds with the claim construction mandated by ... the written record ' of the patent.” Phillips, 415 F.3d at 1318 (internal quotation marks and citation omitted); accord Network Commerce, Inc., 422 F.3d at 1361 (citing Phillips for the proposition that “expert testimony at odds with the intrinsic evidence must be disregarded”). 2.

Other canons of claim construction Apart from the evidence upon which claim construction may be based, claim construction involves various “canons.” One canon of claim construction is that “claim terms are presumed to be used consistently throughout the patent, such that the usage of a term in one claim can often illuminate the meaning of the same term in other claims.” Research Plastics, Inc., 421 F.3d at 1295 (citing Phillips, 415 F.3d at 1313-14, and Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1342 (Fed. Cir.2001)).

On the other hand, “[w]hen different words or phrases are used in separate claims, a difference in meaning is presumed.” Nystrom, 424 F.3d at 1143 (citing Tandon Corp. v. United States Int’l Trade Comm’n, 831 F.2d 1017, 1023 (Fed. Cir.1987)). Similarly, the court must interpret claims so that no term becomes “superfluous.” See Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1372 (Fed.Cir.2005) (“A claim construction that gives meaning to all the terms of the claim is preferred over one that does not do so.”); Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396, 1410 (Fed.Cir. 2004) (stating that

interpretations of claims rendering claim terms superfluous is generally disfavored). Another canon of patent claim construction is that the patentee may act as “lexicographer.” See Phillips, 415 F.3d at 1316. In other words, “the specification may reveal a special definition given to a claim term by the patentee that differs from the meaning it would otherwise possess,” and when that happens, the patentee’s definition must govern. Id. However, the authority of the specification as a source for

definitions for claim terms is not limitless. Rather, “[t]he court must take care in its analysis, when locating in the written description the context for a disputed term, not to import a limitation from that written description. It must use the written description for enlightenment and not to read a limitation from the specification [into the construction of the term].” Playtex Prods., Inc. v. Procter & Gamble Co., 400 F.3d 901, 906 (Fed.Cir.2005) (citing Comark Communications v. Harris Corp., 156 F.3d 1182, 1186-87 (Fed.Cir. 1998)).

To put it another way, “ ‘[i]t is axiomatic that claims, not the specification embodiments, define the scope of protection.’ ” Id. (quoting Dow Chem. Co. v. Sumitomo Chem. Co., 257 F.3d 1364, 1378 (Fed.Cir.2001) (internal citation omitted)). With these principles in mind, the court turns to construction of the disputed claim terms in this case, patent-by-patent and claim-by-claim. However, the court must first resolve the question of the role that the parties’ proffered constructions play in the court’s construction of claim terms. 3. Do the parties’ proffered constructions limit the court’s choices?

As mentioned above, after the Markman hearing was rescheduled to Deeember 5, 2005, the court requested, by letter dated October 29, 2005, that the parties submit briefs on or before November 14, 2005, on the role of the parties’ competing

definitions in the court’s claim construction process and the extent to which the court must choose only between the parties’ competing

definitions or is, instead, free to construe the claim terms for itself. In its Supplemental Brief in response to that question, filed November 14, 2005 (docket no. 100), Electrolux asserts that the court is not required to make a “binary” choice between the constructions proposed by the parties. Rather, Electrolux asserts that the court is required to construe the claim terms using the analytical framework clarified and refined in Phillips.

Similarly, in its Supplemental Markman Brief, also filed November 14, 2005 (docket no. 102), Maytag asserts that claim construction is not a “binary” choice between the parties’ constructions, but a process in which the court alone has the duty to construe the claim terms in dispute and, therefore, the court is free to disagree with any proposed construction. Indeed, Maytag asserts that the Federal Circuit Court of Appeals has expressly held that the court is free to adopt a construction independent of those suggested by the parties, citing Exxon Chem. Patents, Inc. v.

Lubrizol Corp., 64 F.3d 1553, 1555 (Fed.Cir. 1995). In light of the parties’ agreement and the authorities upon which they rely, the court concludes that it has an obligation to construe the patent terms independently; therefore, the court is not bound to adopt either parties’ proffered construction of any claim term, but must, instead, construe the disputed claim terms for itself, applying the Phillips methodology. Therefore, the court turns to its independent construction of the claim terms, but the court will use the parties’ proffered constructions as its starting point. C.

Construction Of Disputed Claim Terms 1. Disputed terms in the '909 patent a. The disputed term in Claim 23: “Grooves” i. Claim language. The first term that the court must construe is found in Claim 23 of the “product” patent, the '909 patent. The only disputed term in this claim is “grooves.” Claim 23, with the disputed term italicized, states the following: 23.

A plastic washing machine basket comprising: a substantially circular base wall having a peripheral portion; and an annular plastic sidewall extending upward from the peripheral portion of said base wall to a terminal edge, said sidewall having inner and outer surfaces, grooves formed in said inner surface of said sidewall, a plurality of spaced apertures extending through said sidewall, said apertures located within said grooves. The '909 patent, Claim 23 (emphasis added). ii. The parties’ deñnitions and arguments, The parties’ proffered

definitions of this term are shown below, with bold font indicating differences between their

definitions. Also, the authority on which each party relies for its definition is shown just below that party’s definition. Maytag contends that its construction is correct, because it reflects the “plain and ordinary meaning” of “grooves” in the context of Claim 28 and the '909 patent generally.

Maytag points out that the claim language contains no limitations on the shape of the “grooves,” so that nothing departs from the ordinary meaning of “groove” as “a narrow depression, channel, or trough in a surface.” This construction is reinforced, Maytag contends, by looking to other claims—which, among other things, refer to “teardrop-shaped grooves,” making clear that the patentee knew the difference between a simple groove and a groove with a specified shape.

Maytag contends that this definition is also reinforced by the specification—which likewise makes clear that a particular shape of the groove is specified when one is intended. Finally, Maytag contends that its definition is reinforced by extrinsic sources, such as dictionary

definitions. In contrast, Maytag contends that Electrolux’s construction is in error, because the term “grooves” does not refer to any projection on a corresponding surface, and Claim 23 of the “product” patent says nothing about how the grooves are made. In response, Electrolux contends that the '909 patent refers throughout to teardrop-shaped recessed portions formed in the interior sidewall.

Electrolux also contends that the '909 patent nowhere limits the “groove” to a particular width or narrowness and always refers to the “groove” as recessed into the surface of the sidewall, not merely made as part of the sidewall.

Electrolux also points out that the patent language upon occasion refers to the “groove” as “teardrop-shaped” and as having both a broader portion and a narrower portion, not simply as “narrow.” Thus, Electrolux argues that claim differentiation bars Maytag from expressly including a “narrow” limitation as part of the general definition of “groove.” To do so, Electrolux argues, would render some of the language of other claims mere surplus-age. In rebuttal, Maytag contends that Electrolux is redefining “groove” to mean “any depression,” which is far too broad.

Instead, Maytag argues that the specification and figures all show the “grooves” to be narrow, whether or not they are “teardrop-shaped.” The connotation of all of the dictionary

definitions, Maytag contends, is that a “groove” is an “elongated” and “narrow” depression. Maytag reiterates its contention that Electrolux is also improperly importing from the specification the location and method of creating the grooves into the construction of “grooves.” In rebuttal, Electrolux contends that Maytag is improperly importing a “narrow” limitation into “grooves” in Claim 23, while ignoring the express teachings of the specification with regard to how the “grooves” are formed.

In its surrebuttal, Maytag asserts that it is not defining “grooves” as “narrow,” but defining “grooves” as “narrow depressions,” because the ordinary meaning of “groove” connotes a “narrow depression,” such as a “channel” or “trough.” Maytag also reiterates that Electrolux is improperly importing the method of producing the washing machine basket into the “product” patent, when the Examiner required separation of the “product” and “process” claims into separate patents.

In its surrebuttal, Electrolux asserts that how the structure of the “groove” is formed is important to understanding the patentee’s use of the term in the claims. At the oral arguments, Electrolux identified the construction of “grooves” as a matter deserving further argument. Electrolux contended that it is improper to import a “narrow” limitation into the definition of “grooves” when there is no such limitation in any claim or portion of the specification.

Electrolux points out that the patentee used “narrow” in reference to other parts of the “groove,” for example, in Claims 10 and 16, and inclusion of such a limitation would exclude other embodiments. Moreover, Electrolux asserted that reading a “narrow” limitation into “grooves” was expressly rejected by the Federal Circuit Court of Appeals in Beckson Marine, Inc. v. NFM, Inc., 292 F.3d 718, 724 (Fed.Cir.2002).

In response, Maytag asserted that Electrolux’s construction would turn a “groove” into any depression, while “narrow depression” is the ordinary meaning of “groove” and is the meaning supported by the claim terms and specification in this case. Indeed, Maytag asserts that Beckson is not controlling, precisely because it involved use of the term “groove” in an entirely different context. iii. Analysis.

Beginning with the words of the claim, Nystrom, 424 F.3d at 1142; Biagro, 423 F.3d at 1302, it is readily apparent that Claim 23 states that the “sidewall [has] grooves formed in said inner surface of said sidewall,” see the '909 patent, Claim 23 (emphasis added), but it does not state or incorporate the process whereby the grooves are “formed” into the meaning of “grooves.” Also, although the claim language does specify the location of the “grooves,” that is, “in said inner surface of said sidewall,” id., that language does not define “grooves,” because “grooves” must necessarily be in something.

Thus, while Claim 23, taken as a whole, requires a plastic washing machine basket with “grooves” in the sidewall, the claim does not in any way narrow the meaning of “grooves” to mean only “grooves” that are “formed by a corresponding projection on the mold core,” as Electrolux suggests, nor is the location of the “grooves” part of the definition of “grooves,” although for purposes of the claim limitation in Claim 23, the “grooves” are claimed to be “in said inner surface of said sidewall.” Neither Claim 23, nor any other claim, nor the specification of the '909 patent suggests that “groove” is a “technical [term] or term of art,” so it does not appear that the specification is necessarily the only source for understanding the meaning of “grooves.” See Aquatex, 419 F.3d at 1380 (quoting Phillips, 415 F.3d at 1315, for the proposition that the specification is “[t]he best source” for understanding a claim term, where the term is “technical or a term of art”).

Clearly, no part of the specification to which the parties have pointed the court suggests that the patentee was its own “lexicographer” as to the meaning of “grooves,” so that there is no “governing” definition for “grooves” to be found in the specification. Compare Phillips, 415 F.3d at 1316 (the patentee may act as lexicographer, and when the patentee does so, its definition must govern).

Also, although the specification remains of “central importance” to determining the proper construction of the term, id., and may even be “dispositive” in some cases, Phillips, 415 F.3d at 1314, the court finds that this specification is helpful primarily to show that the patentee used “grooves” in the “ordinary” sense. Specifically, most of the references to “grooves” in the specification that are cited by the parties show that, when a specific shape for the “groove” is intended, e.g., “teardrop-shaped,” the patentee specified that shape.

See the '909 patent, col. 2, 11. 3-10 (Summary Of The Invention referring to “teardrop-shaped grooves”); col. 3, 11. 17-23 (Detailed Description Of The Invention also referring to “teardrop-shaped grooves”); col. 3, 11. 61-64 (same). In other circumstances, the patentee left the shape of the “groove” unspecified. See id., col. 4, 11. 36-53 (referring simply to “grooves”).

Undeniably, the specification refers to “teardrop-shaped projections 132” that extend from the “mold core 90” “in order to form beveled apertures 44 and the teardrop-shaped grooves 50 in basket 2,” id., col. 5, 11. 43-56; see also id. col. 6, 11. 60-67, but this part of the specification does not define “grooves” or make the process whereby the “grooves” are created part of the definition of “grooves.” Thus, specifications of particular shapes for the “grooves” in the patent specification and the claims, such as those cited above and in unasserted Claim 29—which expressly claims “grooves [that] are teardrop-shaped,” see the '909 patent, Claim 29—■ suggest that “groove,” when standing alone, must have its “ordinary” meaning.

See Nystrom, 424 F.3d at 1143 (different words in separate claims suggest differences in meaning). Otherwise, the express

definitions of shape in other parts of the specification or other claims would be “superfluous.” Merck, 395 F.3d at 1372 (terms must not be interpreted in such a way as to make any other terms superfluous). Similarly, the claimed limitation on certain “grooves” as having “narrowed end portions,” versus “enlarged end portions,” as in Claims 10 and 16, does not exclude a definition of “grooves” as “narrow depressions,” as Electrolux contendéd at oral arguments.

Specification of the relative widths of the “end portions” of the “grooves” again suggests only that, when a specific (or relative) shape was intended for “end portions” of a “groove,” such specific shape was claimed, but that, for any other portion of the “groove,” the term was intended to have its ordinary meaning.

Finding nothing dispositive in the claim language itself or the specification of the '909 patent concerning the meaning of “groove” in Claim 23, the court turns to extrinsic evidence, such as standard dictionaries, for guidance on “the widely accepted meaning of [this] commonly understood word[].” Phillips, 415 F.3d at 1314. At this point, the parties’ dispute is between “a narrow depression, channel, or trough,” as Maytag defines the term, and “a depression, channel, or trough,” as Electrolux would have it.

Plainly, a “groove” may be a kind of “depression,” but not every “depression” is a “groove.” For example, Merriam-Webster’s Collegiate Dictionary (10th ed.1995) defines “depression” as “a depressed place or part: HOLLOW,” id. (definition 3 of “depression to”), while it defines “groove” as “a long narrow channel or depression.” Id. (definition 1 of “groove to”) (emphasis added); see also Plaintiffs Markman Appendix, Exhibit C (definition 2 a of “groove to” from Webster’s Third New International Dictionary (no date shown), stating “a long narrow hollow or channel made artificially in a surface”) (emphasis added).

By relying on such a dictionary limitation on the shape of the pertinent “depression” Maytag is not improperly redefining “groove” in the patr ent as a “narrow groove,” as Electrolux contends, but properly defining the kind of “depression” referred to by “groove” as a “narrow depression.” Nor is it appropriate to conclude, as Electrolux contends, from a single part of the specification stating that the “[t]eardrop-shaped grooves 50 generally taper along their length, in both width and depth,” see id. col. 3, lines 17-19, that the patentee intended to eschew a definition of a “groove,” standing alone, as a “narrow depression.” Rather, “tapering” suggests a specific land of “narrow depression” in the particular circumstance referred to in this part of the specification, i.e., “a narrow depression” that “beeome[s] progressively smaller toward one end.” Merriam-Webster’s Collegiate Dictionary (10th ed.1995) (definition 1 of “taper vb ”).

Similarly, the references to “narrowed end portions” and “enlarged end portions,” for example, in Claims 10 and 16, suggest only that the “narrow depression” has “end portions” that are relatively “enlarged” or “narrowed.” Nor is the court persuaded by Electrolux’s contention that the Federal Circuit Court of Appeals rejected the ordinary meaning of “grooves” as “narrow depressions” in Beckson Marine, Inc. v. NFM, Inc., 292 F.3d 718, 724 (Fed.Cir.2002).

Rather, in Beckson, the court held that, in the context of the patent at issue, “the ordinary meaning [of ‘groove’] is not limited to long and narrow U-shaped entities, but encompasses as well other structures that drain water.” Beckson, 292 F.3d at 724. This conclusion was based, in part, on use of “[t]he broad term ‘draining structures,’ ” which the court concluded “suggests that the applicant did not limit the claim term ‘groove’ to a specific width or length.” Id. “In fact,” the court held, “the written description does not require long and narrow grooves at any point.” Id.

This court doubts that the construction of “grooves” in Beckson, concerning a completely different patent, could, in any way, be dispositive of the meaning of “grooves” in the '909 patent, which relates to a completely different device. Moreover, in the '909 patent, there is no broader generic term, such as “draining structures,” associated with “groove” that would suggest that the patentee did not intend any limitation on width or length.

Instead, in the context of all of the evidence bearing on the question here, the court concludes that, while the applicant may not have intended to limit the claim term “groove” to a specific width or length, the patentee did intend to use the term in the sense of a depression that was narrow in width relative to its length, i.e., a “narrow depression.” For example, a fair inference from the more specific specifications of the “grooves” as “teardrop-shaped” or as having “narrowed” and “enlarged” end portions is that the “grooves” are relatively narrower in width than length, that is, that they are “elongated” or “narrow” depressions.

In short, the court concludes that the proper construction of “groove” for purposes of the '909 patent is Maytag’s definition, “a narrow depression, channel or trough in a surface.” b. The disputed term in Claim 25: “Annular sidewall ... diverging radially outwardly to an upper terminal edge” i. Claim language. The next claim term in the '909 patent th

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