To: Professor Risch
From: Alvin C. Hathaway Jr.
2007 U.S. Dist. LEXIS 90962
Decided on December 10, 2007
Black v. Ce Soir Lingerie Co.
The plaintiff, Randi Black is suing defendants, Ce Soir Lingerie Co., Inc; Bragel International Inc.; Dillard’s Inc.; Federated Department Stores, Inc.; Gap, Inc.; The Neiman Marcus Group, Inc.; Nordstrom, Inc.; and Victoria’s Secret Stores, LLC for claim infringement of Randi Black’s ‘606 patent. The ‘606 patent deals with a method of wearing a nipple cover. The purpose of the nipple cover is to avoid the visibility of erect nipples when woman wear sheer clothing without a brassiere.
This case is before the US District Court for the Eastern District of Texas, Marshall Division.
The issue before the court is to determine the meaning of 12 phases found in the ‘606 patent claims. The terms at issue are: (1) “at least about one half and less than allâ€, (2) “the coverâ€, (3) “proximateâ€, (4) “brassiereâ€, “(5) affixedâ€, (6) “nipple coverâ€, (7) “centerâ€, (8) “conforming to a human breastâ€, (9) “second thicknessâ€, (10) “peripheryâ€, (11) “gradually taperingâ€, and (12) “blends smoothlyâ€.
Prior to the hearing, both parties agreed on the meaning of the following terms, (1) “at least about one half and less than allâ€, (2) “the coverâ€, (3) “proximateâ€, (4) “brassiereâ€, and “(5) affixedâ€. So these terms are no longer at issue.
And at the hearing, the parties agreed on the meaning of the following terms, (8) “conforming to a human breastâ€, (9) “second thicknessâ€, and (10) “peripheryâ€.
So the terms that were left for the court to construe were, (6) “nipple coverâ€, (7) “centerâ€, (11) “gradually taperingâ€, and (12) “blends smoothlyâ€.
The court relies on the Phillips methodology to determine the appropriate construction of the terms.
Claims are of primary importance because the claims define what the patentee is entitled to exclude. Phillips. For this reason the words in the claim are given ordinary and customary meaning that would have to a PHOSITA at the time of the invention. Phillips. The PHOSITA would read the claim in the context of the entire patent and in view of the specification. Id. However, since the terms may not be immediately apparent to the court so the court will look to the specification, the prosecution history, and intrinsic and extrinsic evidence. The extrinsic evidence can include expert and inventor’s testimony, dictionaries, and treaties, however extrinsic evidence is less significant than the intrinsic evidence. Id.
If there are two interpretations, you choose the one that preserves the validity of the patent. Rhine. However, this is of last resort. MBO laboratories.
Looking at the term “nipple cover†the court concluded that the plaintiff’s proposal is crafted best, but they amended it slightly to address one concern the defendant’s raised. The court’s final construction reads “an article for covering the nipple that extends beyond the nipple and areola; is unsupported by attached straps around the neck, back, shoulders, or arms; and does not replace or substantially enhance the apparent size of a woman’s breast.â€
Look at the term “center†the court concluded that the defendant’s proposal was best. The court’s final construction reads “a point that is equally distant from the outer boundaries of the cover.â€
Looking at the term “gradually tapering†the court concluded that the plaintiff’s proposed construction was best. The court’s final construction reads “becoming smaller by steps or degrees.â€
Looking at the term “blends smoothly†the court concluded that the plaintiff’s proposed construction is in line with the claims, specification, prosecution history, and Federal Circuit precedent. The court’s final construction reads “free from irregularities such that it would not show if worn under sheer or thin clothing.â€
Check out the case on LexisNexis to see the final construction of all of the terms at issue in this case. There is a neat little chart that shows the plaintiff and defendants proposed construction, and then the court’s final construction of all 12 terms.
From: Alvin C. Hathaway Jr.
2007 U.S. Dist. LEXIS 90962
Decided on December 10, 2007
Black v. Ce Soir Lingerie Co.
The plaintiff, Randi Black is suing defendants, Ce Soir Lingerie Co., Inc; Bragel International Inc.; Dillard’s Inc.; Federated Department Stores, Inc.; Gap, Inc.; The Neiman Marcus Group, Inc.; Nordstrom, Inc.; and Victoria’s Secret Stores, LLC for claim infringement of Randi Black’s ‘606 patent. The ‘606 patent deals with a method of wearing a nipple cover. The purpose of the nipple cover is to avoid the visibility of erect nipples when woman wear sheer clothing without a brassiere.
This case is before the US District Court for the Eastern District of Texas, Marshall Division.
The issue before the court is to determine the meaning of 12 phases found in the ‘606 patent claims. The terms at issue are: (1) “at least about one half and less than allâ€, (2) “the coverâ€, (3) “proximateâ€, (4) “brassiereâ€, “(5) affixedâ€, (6) “nipple coverâ€, (7) “centerâ€, (8) “conforming to a human breastâ€, (9) “second thicknessâ€, (10) “peripheryâ€, (11) “gradually taperingâ€, and (12) “blends smoothlyâ€.
Prior to the hearing, both parties agreed on the meaning of the following terms, (1) “at least about one half and less than allâ€, (2) “the coverâ€, (3) “proximateâ€, (4) “brassiereâ€, and “(5) affixedâ€. So these terms are no longer at issue.
And at the hearing, the parties agreed on the meaning of the following terms, (8) “conforming to a human breastâ€, (9) “second thicknessâ€, and (10) “peripheryâ€.
So the terms that were left for the court to construe were, (6) “nipple coverâ€, (7) “centerâ€, (11) “gradually taperingâ€, and (12) “blends smoothlyâ€.
The court relies on the Phillips methodology to determine the appropriate construction of the terms.
Claims are of primary importance because the claims define what the patentee is entitled to exclude. Phillips. For this reason the words in the claim are given ordinary and customary meaning that would have to a PHOSITA at the time of the invention. Phillips. The PHOSITA would read the claim in the context of the entire patent and in view of the specification. Id. However, since the terms may not be immediately apparent to the court so the court will look to the specification, the prosecution history, and intrinsic and extrinsic evidence. The extrinsic evidence can include expert and inventor’s testimony, dictionaries, and treaties, however extrinsic evidence is less significant than the intrinsic evidence. Id.
If there are two interpretations, you choose the one that preserves the validity of the patent. Rhine. However, this is of last resort. MBO laboratories.
Looking at the term “nipple cover†the court concluded that the plaintiff’s proposal is crafted best, but they amended it slightly to address one concern the defendant’s raised. The court’s final construction reads “an article for covering the nipple that extends beyond the nipple and areola; is unsupported by attached straps around the neck, back, shoulders, or arms; and does not replace or substantially enhance the apparent size of a woman’s breast.â€
Look at the term “center†the court concluded that the defendant’s proposal was best. The court’s final construction reads “a point that is equally distant from the outer boundaries of the cover.â€
Looking at the term “gradually tapering†the court concluded that the plaintiff’s proposed construction was best. The court’s final construction reads “becoming smaller by steps or degrees.â€
Looking at the term “blends smoothly†the court concluded that the plaintiff’s proposed construction is in line with the claims, specification, prosecution history, and Federal Circuit precedent. The court’s final construction reads “free from irregularities such that it would not show if worn under sheer or thin clothing.â€
Check out the case on LexisNexis to see the final construction of all of the terms at issue in this case. There is a neat little chart that shows the plaintiff and defendants proposed construction, and then the court’s final construction of all 12 terms.