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Wimco, LLC v. Lange Industries, Inc.: US District Court : PATENT - Markman order construing nine terms

1Contrary to the implication of its title, the 207 patent does not include any method
claims. A method claim in the initial patent application was dropped in the course of
prosecution, but the title of the patent was not revised accordingly.
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
WIMCO, LLC,
Plaintiff,
v.
LANGE INDUSTRIES, INC.,
Defendants.
Case No. 06-CV-3565 (PJS/RLE)
MARKMAN ORDER
Matthew D. Spohn, David P. Pearson, and Brent A. Lorenz, WINTHROP &
WEINSTINE, PA, for plaintiff.
Mark R. Privratsky, David A. Allgeyer, and Christopher R. Smith, LINDQUIST &
VENNUM PLLP; Mark M. Nolan and Randy V. Thompson, NOLAN, MACGREGOR,
THOMPSON & LEIGHTON, for defendant.
This matter is before the Court for construction of certain terms found in the claims of
U.S. Patent No. 7,052,207 (the 207 patent) in accordance with Markman v. Westview
Instruments, Inc., 517 U.S. 370, 390-91 (1996). The parties prepared a joint claim-construction
statement, and each side submitted two briefs (opening and response) on claim-construction
issues. The Court held a Markman hearing on June 27, 2007.
I. BACKGROUND
The 207 patent, titled Sediment Control Drain and Method of Construction, covers a
filter basin designed to be inserted into a streets storm-sewer drain in addition to or in lieu of the
grate in order to keep debris from flowing into the storm sewer.1 The basin has two primary
uses. First, the basin can be inserted when concrete work is being done in the area surrounding
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the storm drain; the basin catches and filters out wet concrete that might otherwise fall into the
storm sewer. Second, the basin can be inserted while a subdivision is being developed to catch
topsoil and other debris that tends to wash off into storm sewers when the ground is bare of
vegetation.
The patent drawings depict a sink-like basin with a circular hole in the middle of the
basins bottom and a perforated standpipe around that hole. The standpipe is covered with filter
material (a filter sock), and water that enters the basin passes through the filter material, into
the standpipe, and out through the hole in the bottom of the basin. The top of the standpipe is
left open so that overflowing water can exit the basin directly, without filtration, through the top
of the standpipe. Finally, the basin includes a deflector wall on the side of the basin facing the
curb; this wall ensures that debris is diverted into the basin and does not flow directly into the
sewer through the opening in the curb.
Plaintiff WIMCO, LLC (WIMCO) and defendant Lange Industries, Inc. (Lange)
compete to sell and service filter basins for storm drains. WIMCO owns the 207 patent, which
was issued to Brian Wimberger, WIMCOs owner. Westman Decl. 2 [Docket No. 36].
WIMCO sued Lange in September 2006 for infringing the 207 patent, as well as for various
state-law causes of action (false advertising, unfair competition, business torts, etc.). WIMCO
alleges that Langes filter basin a basin that does not incorporate a standpipe infringes
claims 6 through 12 of the 207 patent. Pl. Claim Constr. Br. at 3 [Docket No. 26]. Claims 6
through 12 are not, on their face, limited to basins with standpipes. WIMCO is not asserting
claims 1 through 5, which are expressly limited to basins featuring standpipes.
- 3 -
II. APPLICABLE LAW
Courts, not juries, construe patent claims. Markman, 517 U.S. at 391. Language in a
particular claim must be construed in the context of both that claim and the entire patent,
including the specification. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en
banc). Indeed, the specification, read in light of the prosecution history, is the primary basis for
construing patent claims. Id. at 1315. Courts may also rely on extrinsic evidence
everything other than the patent and its prosecution history but that evidence is secondary to
the intrinsic evidence. Id. at 1317.
In general, claim language means what it would have meant, ordinarily and customarily,
to a person of ordinary skill in the art at the time the patent application was filed. Id. at 1312-13.
In some cases, the ordinary and customary meaning of claim language to a person of ordinary
skill in the art may be identical to the meaning of that language to a lay person who is not skilled
in the art. Id. at 1314.
III. CLAIM CONSTRUCTION
A. Overview
The parties have asked the Court to construe a total of twelve terms in three different
claims (five terms in each of claims 6 and 9 and two terms in claim 12). But the parties list of
terms is highly redundant. In some instances, the parties ask the Court to construe certain
phrases and then to separately construe components of those same phrases; in other instances,
the parties ask the Court to separately construe virtually identical terms in different claims. The
Court finds that the number of distinct disputed terms can be reduced from twelve to nine, and
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the Court construes those nine terms below. In so doing, the Court construes all of the disputed
claim language.
Although nine terms (by the Courts count) are at issue, the dispute between WIMCO and
Lange boils down to two issues. First, Lange contends that claims 6 through 12 of the 207
patent should be interpreted to cover only basins that incorporate standpipes. WIMCO
disagrees; it contends that claims 6 through 12 are broad enough to cover basins that do not
feature standpipes. Second, Lange contends that only basins that fit correctly into storm-sewer
drains are covered by claims 6 through 12. Again, WIMCO disagrees. According to WIMCO,
the claimed basins must fit into storm-sewer drains, but do not necessarily have to fit
correctly.
On the first and more important point, the Court agrees with WIMCO. As explained
below, the Court will not read a standpipe limitation into claim language that, on its face, is not
limited to covering basins with standpipes. On the second point the required degree of fit
between the patented basin and a storm-sewer drain the Court adopts a position that is similar
to Langes.
The parties have not argued that someone of ordinary skill in the art would interpret any
of the disputed language differently than would an educated lay person. Instead, the parties
arguments have focused on the 207 patent itself, its prosecution history, various pieces of prior
art that are cited in the 207 patent, and definitions from general-purpose dictionaries. WIMCO
also offers a declaration from the patent lawyer who prosecuted the patent (Nickolas Westman),
but the Court has not considered this declaration in determining how to construe the claims.
Westmans declaration contains evidence about Westmans state of mind and speculation by
2In claim 6, the phrase of size to fit into the grate frame modifies one noun phrase
(open top receptacle), whereas in claim 9 the phrase being of size to fit into the grate frame
modifies a different noun phrase (erosion control housing). The parties treat of size to fit into
the grate frame and being of size to fit into the grate frame as if they are different claim
terms. Joint Claim Const. Stmt. (JCCS) at 1, 3 [Docket No. 17]. In fact, both phrases include
the same term (of size to fit into the grate frame). Claim 9 merely makes explicit (with the
word being) what is implicit in claim 6: The modified noun phrase (open top receptacle in
claim 6; erosion control housing in claim 9) has the property of being of size to fit into the
grate frame. Accordingly, the Court treats the phrase of size to fit into the grate frame, and
not the phrase being of size to fit into the grate frame, as the term to be construed, and gives
the phrase the same meaning in both claim 6 and claim 9.
- 5 -
Westman about the state of mind of the patent examiner who reviewed the application that issued
as the 207 patent. See Westman Decl. 11-12, 14. But even if the states of mind of Westman
and the patent examiner were knowable, those states of mind would be of little use in
determining, as the Court must, the objective meaning of the disputed claim language.
Accordingly, the Court construes the disputed terms based on the intrinsic evidence and in light
of the ordinary meaning that the claim language would have to an educated lay person.
B. Disputed Terms
1. The term of size to fit into the grate frame (claims 6 and 9).2
The Court construes this term to mean:
of a size to fit reasonably accurately into the grate frame.
WIMCO argues that this term does not need to be construed. Joint Claim Const. Stmt.
(JCCS) at 1, 3 [Docket No. 17]; Pl. Claim Constr. Br. at 8-10. Lange proposes construing it to
mean of a size to conform correctly to the shape or size of the grate frame. Def. Claim Const.
Br. at 27-28 [Docket No. 28]. Based on the patent specification, the Court adopts a position
close to Langes.
- 6 -
The word fit is at once ordinary and imprecise; its meaning varies significantly
depending on the context in which it is used. In some contexts, object A fits inside object B if
A is smaller than B, regardless of how much smaller. For instance, if a store clerk asks a
customer if her new television will fit into the trunk of her car, the customer will answer yes
as long as the trunk is larger than the television. It will make no difference whether the
television will take up all of the room in the trunk or only a small portion of it; in either case, the
customer will say that the television fits into the trunk. But if a mechanic is asked whether a
nut fits onto a bolt, he will not say yes unless the threads on each are cut to match and the
outer diameter of the bolt is nearly identical to the inner diameter of the nut, so that the threads
on the nut will engage properly with the threads on the bolt. If the nut is so large that the bolt
passes through without engaging, the mechanic will say that the nut does not fit. In light of the
protean nature of the word fit, to leave the phrase of size to fit into the grate frame entirely
undefined (as WIMCO suggests) would not give sufficient guidance to the jury that will have to
decide infringement.
It is clear that, in the 207 patent, fit means something like the fit of a nut onto a bolt
rather than the fit of a television into a car trunk. In several ways, the 207 patent specification
indicates that the outer edges of the patented basin must fit fairly closely to the inside edges of
storm-sewer grate frame. First, all of the patent drawings depict a basin that fits entirely within
an existing storm-sewer grate frame, with neither significant gaps nor significant overlaps. In
particular, Figure 2 shows a basin inside a grate frame and a grate inside that basin that is, it
depicts a basin sized to accommodate the exact same grate that is accommodated by the grate
frame itself. Second, in describing the preferred embodiments, the patent provides: Storm

- 12 -
directed to a method of constructing a storm drain that was not limited to using a basin with a
standpipe. Westman Decl. Ex. A (Patent Application) at 7-9, Ex. B (Preliminary Amend.) at 2-3.
The patent examiner understood that the apparatus claims in the 207 patent application,
as first considered by the PTO, were limited to basins with standpipes. Indeed, the examiner
required Wimberger to restrict his application to either the apparatus claims or the method claim,
because the method claim can be practiced by another materially different apparatus [i.e., one
other than the device claimed in the apparatus claims], such as a filtering basket in the basin
without the upright drain pipe wrapped around with filtering material. Westman Decl. Ex. C
(PTO Office Action Mar. 17, 2004) at 2 (emphasis added).
In response, Wimberger elected to pursue only the apparatus claims. Wimberger also
responded to arguments that the examiner had made in rejecting a related patent application
(which issued as U.S. Patent No. 6,609,852), although the examiner had not yet raised those
arguments in connection with the application that issued as the 207 patent. Wimberger argued
that his apparatus claims were patentable over two prior-art references, Williamson (U.S. Patent
No. 6,287,459) and Singleton (U.S. Patent No. 5,843,306). Wimberger asserted that there was
no suggestion in the prior art that would lead to his invention, i.e., a basin that has a peripheral
wall that encircles the basin, and surrounds an upright drain pipe. Westman Decl. Ex. D
(Amend. Apr. 19, 2004) at 5 (emphasis added). Wimberger repeatedly emphasized the
importance of the standpipe to his claimed invention, and distinguished it from the prior art on
the basis that the present device . . . has a bottom wall with an upright pipe in the bottom wall,
6In addition, Wimberger argued:
[T]here is no suggestion in the Williamson patent that a filter that
filters round a pipe that is spaced from the peripheral walls would
be possible, or desirable. . . . In fact, there is no suggestion that the
basin of Williamson would support an upright pipe connected on a
bottom wall . . . . The open bottom of the filter frame shown in
Figure 3 of Williamson will not support an upright pipe that has
openings and a filter around the pipe. . . . Since there is no bottom
wall in the Williamson device that can support an upright pipe with
a filter around it, if the unit shown in the Singleton patent was
placed into that frame [i.e., the frame disclosed in the Williamson
patent], water would flow out around the corners, and [the unit]
would not work for its intended purpose.
Westman Decl. Ex. D (Amend. Apr. 19, 2004) at 6.
- 13 -
and with a filter around the upright pipe to accomplish filtering of silt and debris before being
transferred out through an opening in the bottom wall. Id. at 7.6
These remarks make clear that, as initially conceived, the invention claimed in the 207
patent covered only a basin with a standpipe. But at the time that Wimberger made these
remarks, the only claims before the PTO were apparatus claims that expressly included a
standpipe claims that eventually issued as claims 1 through 5 of the 207 patent. There is no
dispute that claims 1 through 5 cover only basins with standpipes, and those claims have not
been asserted in this case.
The examiner disagreed with Wimbergers arguments about the prior art and, on June 23,
2004, rejected what are now claims 1 and 5 as obvious in light of the prior art. Westman Decl.
Ex. F (PTO Office Action June 23, 2004) at 3-4. The examiner also rejected all of the claims as
obvious in light of Wimbergers related patent, U.S. Patent No. 6,609,852 (the 852 patent), but
advised Wimberger that this ground of rejection (obviousness-type double patenting) could be
- 14 -
overcome if Wimberger filed a terminal disclaimer to limit the term of what became the 207
patent to the term of the852 patent. Id. at 4-7.
Meanwhile, before he received word of the PTOs June 23 rejection, Wimberger again
amended his claims, adding for the first time apparatus claims that were
7Lange asks the Court to construe the entire phrase a filter supported in the basin below
a top opening of the open top receptacle and then to separately construe the words top
opening within the phrase. The Court sees no need to do so. In construing the phrase as a unit,
the Court necessarily construes the components of the phrase.
- 18 -
standpipes. That rejection (which Wimberger eventually overcame) also establishes that
Wimberger did not secure allowance of his claims by misleading the PTO as to their nature.
Even if Wimberger, early in the prosecution history, tried to distract the patent examiner from
the fact that some of his claims did not require a standpipe, the examiner was well aware of this
fact by the time he allowed the claims that issued as the 207 patent. The doctrine of prosecution
disclaimer does not, therefore, mandate construing the broad term filtered drain from the
erosion control basin in claim 6 to cover only the narrow embodiment of a standpipe with filter
sock located in the interior of the erosion control basin, as Lange contends.
3. The term a filter supported in the basin below a top opening of the open top
receptacle (claim 6)7
The Court construes this term to mean:
a filter supported in the basin below the open top of the receptacle.
Lange argues that this means a filter sock supported on a standpipe, having a top
opening, extending from the bottom of an open top erosion control basin. JCCS at 2; Def.
Claim Constr. Br. at 33. WIMCO proposes a construction that repeats the claim language, but
provides an additional gloss on the term open top receptacle, defining it as the erosion control
basin. JCCS at 2 (proposing this construction: A filter supported in the basin below a top
opening of the open top receptacle, the open top receptacle also being known as the erosion
control basin.). The Court adopts neither proposed construction.
- 19 -
Langes proposed construction rests largely on the fact that the patent discloses only
basins with standpipes. Def. Claim Constr. Br. at 33-34. For the reasons already given in
connection with the term filtered drain from the erosion control basin, the Court declines to
limit otherwise broad claim language (in this term, the words filter supported in the basin) to
the preferred embodiments disclosed in the 207 patent.
The Court also disagrees with Langes contention that the words top opening must be
construed as the top of a standpipe because the specification refers to the top of the drainpipe
and provides that the upper opening of the tube, which forms a standpipe type structure, is left
open . . . . See Def. Claim Constr. Br. at 33-34; 207 Patent Abstract; 207 Patent col. 1:47-48.
The top opening of the standpipe is not the only top opening disclosed in the patent; the
basin itself obviously has a top opening. Just as obviously, it is the basins top opening to which
the disputed language in claim 6 refers; after all, as described at length above, claim 6 does not
even require a standpipe.
The Court rejects WIMCOs proposed construction because it is inconsistent with the
language of claim 6. As noted above, claim 6 is directed to an erosion control basin
comprising three things: an open top receptacle, a filtered drain, and a deflector wall.
207 Patent col. 4:37-43 (emphasis added). Because the open top receptacle is but one
component of the erosion control basin, the Court cannot construe the open top receptacle to
be identical to the erosion control basin, as WIMCO proposes.
Nonetheless, the Court agrees in substance with WIMCO that the top opening of the
open top receptacle is the top opening of the receptacle portion of the basin, not the top opening
of a standpipe within the basin. Claim 6 (which, again, does not require a standpipe) provides
- 20 -
that the top opening at issue is the top opening of the open top receptacle. The Courts claim
construction is dictated by this language.
The Courts claim construction does, however, appear to conflict slightly with one aspect
of the claim language and with an amendment made during the prosecution history. Wimberger
originally proposed claim language almost identical to the Courts claim construction. The nowdisputed
language, which reads a filter supported in the basin below
9A different examiners amendment introduced an error into claim language that had
previously been correct. Claim 11, as originally submitted, was drawn to a basin designed to
support a slatted grate that overlies the grate frame. Westman Decl. Ex. K (Amend. Jun16,
2005) at 5. The examiner required Wimberger to changed slatted grate i.e., a grate with
slats to slated grate, which demonstrates that the examiner overlooked principles of English
orthography. See Westman Decl. Ex. L (PTO Office Action Summary July 26, 2005) at 3.
- 22 -
expectations of patent drafters and examiners. The leading treatise on drafting patent claims
instructs as follows:
The first time an element or part is mentioned, it should not be
preceded by a definite article (the) or by said. Instead the
indefinite article (a or an) should be used . . .: a container,
a base, etc. . . . When each previously identified element or part
is referred to again, the definite article should be used, as the
container, the base . . . .
Id. at 3:11 at 3-48 (footnote omitted); see also id. at 10:7.4 at 10-44 (A new element or step
is introduced with an indefinite article a or an. . . . On the other hand, when a previously
identified element or step is repeated, it is introduced by a definite article the or said.).
Recall that the patent examiner changed below the open top to below a top opening of
the open top receptacle. Smith Decl. Ex. G (Examiners Amend./Cmt.) at 2 (emphasis added).
This change follows naturally from the practice, in drafting patent claims, of always using the
indefinite article the first time a claim element is introduced, and of considering the claim
element the duck to be indefinite if it has not already been introduced as a duck. Claim 6, as
originally drafted, referred to the open top without ever having recited an open top.
Westman Decl. Ex. N (Amend. Oct. 25, 2005) at 4. The examiners amendment corrected this
fancied defect in the original claim language.9 The examiners interview notes make clear,
however, that this was a technical change, not a substantive one. The Courts construction
10Although the parties identify the term drain opening in claim 9 as a term that needs to
be construed, they do not separately identify the term drain opening in claim 12 as needing
construction. Instead, Lange implicitly tries to secure a construction of the term drain opening
in claim 12 by asking the Court to construe the larger phrase below the open top and above the
drain opening to form a drain. See JCCS at 4. The term drain opening in claim 12 has the
same meaning as drain opening in claim 9. Accordingly, the Court construes the term only
once.
- 23 -
simply rephrases the claim language in a way that a layperson can understand, without changing
that languages meaning.
4. The term drain opening (claim 9, claim 12)10
The Court agrees with WIMCO that this term does not need to be construed. The words
drain opening are ordinary words, used in their ordinary sense, and any further definition or
paraphrasing would serve no useful purpose.
Lange argues that drain opening means bottom of standpipe. JCCS at 3; Def. Claim
Constr. Br. at 36-37. Langes argument relies primarily on the fact that the 207 patent
specification discloses only one type of drain, a hole at the bottom of the standpipe. This is true,
but it is not a sufficient reason to limit the broad term drain opening to cover only a single
embodiment. In so limiting the term, the Court would be wrongly importing a limitation from
the specification into the claims.
5. The term drain opening defined by the erosion control housing (claim 9)
The Court construes this term as follows:
A drain opening is defined by the erosion control housing if it is
an opening whose boundaries are formed by, and found within, the
erosion-control housing.
11Claim 6 describes a storm sewer inlet having an opening on a lateral side of the grate
frame above the grate opening and defined in the street curb . . . . 207 Patent col. 4:35-37
(emphasis added). The opening of the storm sewer inlet is defined in the street curb because
its boundaries are formed by, and found within, the street curb. Claim 12 describes an opening
for overflow defined by portions of the erosion control housing . . . . 207 Patent col.6:4-5
(emphasis added). The boundaries of this opening for overflow are formed by, and found
within, portions of the erosion-control housing.
- 24 -
As noted above, drain opening does not need to be construed. This larger phrase
containing the term drain opening also may not need to be construed, but the Court construes it
because a jury of laypersons may not be familiar with how the word define is used. The most
common meaning of the word define is to state the precise meaning of something or [t]o
describe the nature or basic qualities of something. American Heritage Dictionary of the
English Language at 476 (4th ed. 2000). To define an opening, however, is to establish its
boundaries. See id. (providing additional definitions of define: 2a. To delineate the outline
or form of: gentle hills that were defined against the sky. b. To specify distinctly: define the
weapons to be used in limited warfare. 3. To give form or meaning to . . . .).
The boundaries of an opening in an object are defined by that object because they are
formed by, and found within, that object. This construction of the word defined in claim 9 is
consistent with how the word is used in claim 6 and claim 12, the only other places in the 207
patent where the word is used.11
6. The term filter support (claim 9)
The Court agrees with WIMCO that this term does not need to be construed. Both
filter and support are ordinary words used in their ordinary senses.
WIMCO proposes to define filter support to mean [t]he portion of the erosion control
housing that holds up, serves as a foundation for, serves as a prop for, or braces the filter. JCCS

- 26 -
Lange asks the Court to define a filter support to support a filter to filter water as a filter sock
around a standpipe to filter water. JCCS at 4; Def. Claim Constr. Br. at 39. It seems that Lange
intends to argue that a filter support to support a filter to filter water should be construed to be
a standpipe [i.e., a filter support] to support a filter sock [i.e., a filter] to filter water.
The Court will not construe filter in this term to mean filter sock. The claim
language is not so limited, and there is no more reason to limit a filter to a preferred
embodiment (a filter sock) than there is to read a standpipe limitation into the claims. Given
that a standpipe would necessarily be fitted with a filter around its circumference, i.e., a filter
sock, Langes argument that filter means filter sock is really just a different way of arguing
that filter support means standpipe. That argument has already been rejected.
8. The term opening for overflow (claim 12)
The Court agrees with WIMCO that this term does not need to be construed. The words
opening for overflow are ordinary words, and nothing in the intrinsic evidence requires those
words to be given some unusual meaning.
The Court therefore rejects Langes argument that an opening for overflow is
necessarily the top opening of [a] standpipe. JCCS at 4; Def. Claim Constr. Br. at 39-40. As
the Court has already explained, claim 9 (from which claim 12 depends), like claim 6, is not
limited to basins with standpipes. Accordingly, although an opening for overflow could be the
top of a standpipe (as it is in the preferred embodiments disclosed in the 207 patent), it does not
have to be the top of a standpipe.
9. The term below the open top and above the drain opening to form a drain
(claim 12)
The Court construes this term to mean:
- 27 -
below the open top of the erosion-control housing and above the
drain opening to form a drain.
The Courts construction simply clarifies what is already implicit in the claim language
that the open top in the term below the open top and above the drain opening to form a
drain is the open top of the erosion control housing. This is clear from claim 9, upon which
claim 12 depends. Claim 9 defines the claimed erosion control housing as having an open
top . . . . 207 Patent col. 4:60-61. The open top in claim 12 is necessarily the open top of
the erosion-control housing referred to in claim 9.
Lange asks the Court to construe this term to mean below the open top erosion control
housing and above the standpipe hole in the bottom of the erosion control housing. JCCS at 4;
Def. Claim Constr. Br. at 40-41. The first portion of Langes proposed construction is not
substantially different from the construction adopted by the Court. (Lange proposes the open
top erosion control housing, whereas the Court uses the words the open top of the erosion
control housing.)
As noted above in connection with the term drain opening, Lange is really asking the
Court to construe the term drain opening within this longer term. According to Langes
proposed construction of this longer term, a drain opening is a standpipe hole in the bottom of
the erosion control housing. JCCS at 4; Def. Claim Constr. Br. at 40-41. The Court has already
rejected Langes attempt to define a drain opening as being a hole for the bottom of a
standpipe. The term drain opening in this term has the meaning that the Court has already
given it above.
- 28 -
IV. CONCLUSION
In light of the patents specification (including the claims), the prosecution history, the
purpose of the 207 patent as disclosed in the intrinsic evidence, and the ordinary meaning of the
claim language, the Court construes the disputed claim language as stated above.
Dated: December 14, 2007 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
 

 
 
 

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