United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant Briggs & Stratton
Corporation's (“Briggs”) motion for summary
judgment that Claim 1 of U.S. Patent No. 5, 987, 863
(“the '863 Patent”) is invalid due to
indefiniteness, Filing No. 826.
motion is premised on the contention that the court adopted a
“revised construction” of the term “flow
control baffle” in its order reaffirming the validity
of the ‘863 patent over the prior art. See
Filing No. 800, Memorandum and Order. It contends the
agreed-upon construction of flow control baffle as a
“structure within the walls of the mower deck that
controls the flow of air and grass clippings” has no
explicit or implicit requirement that the baffle have a
“meaningful” effect on airflow. Filing No. 860,
Reply Brief at 1. It argues that the court's ostensible
“revised construction of ‘flow control
baffle'-requiring the entire baffle to have a meaningful
effect on the flow of air and grass clippings-renders claim 1
of the ‘863 patent indefinite because there is no
objective way to determine whether the baffle's effect is
argues that Briggs's present motion is controlled by the
law of the case. Further, Exmark argues that by failing to
raise the present indefiniteness argument before the Federal
Circuit, Briggs has waived its right to raise it in this
court. Finally, Exmark contends Briggs cannot meet the heavy
burden to show that Exmark's '863 patent is invalid
as indefinite by clear and convincing evidence.
relevant to this motion, the record shows that prior to the
trial of this matter, Briggs moved for a summary judgment
that Claim 1 was invalid as indefinite. Filing No. 309. This
court found as a matter of law that the claim was not invalid
as indefinite. Filing No. 476, Memorandum and Order at 25-27.
The Court stated:
In the context of the claims of this patent, the terms can be
easily understood. The court finds the defendant's
argument is inconsistent with the claim language, the
court's claim construction order, its own experts'
opinions on what the prior art teaches, and with the
common-sense understanding of the terms. The terms must be
viewed with the understanding of the function of the flow
control baffle, which was to "control" the flow of
the air and grass clippings. There are objective criteria to
measure the effect of a flow control baffle. One skilled in
the art would understand the limitations to call for a baffle
that efficiently controls the flow of the air and clippings.
The terms must be understood in the context of the objectives
of claimed invention-particularly "to provide a lawn
mower . . . having a flow control baffle which efficiently
directs the grass clippings and air towards the side
discharge of the mower deck in a manner which prevents grass
clippings and air from being directed downwardly onto the
ground or turf unless the mulching baffles are mounted on the
Filing No. 1, Complaint, Ex. A, '863 Patent at 2:24-29.
Court's finding on indefiniteness was affirmed on appeal
to the Court of Appeals for the Federal Circuit
(“federal Circuit” or “Appeals
Court”). Exmark Mfg. Co. Inc. v. Briggs &
Stratton Power Prod. Grp., LLC, 879 F.3d 1332, 1344-47
(Fed. Cir. 2018).
Federal Circuit reversed the court's anticipation and
obviousness rulings, finding error in the court's
purported reliance on the findings of the United States
Patent and Trademark Office (“PTO”). Id.
at 1337. It directed the Court to make an independent
determination and to address certain legal issues, including
claim construction. Id. at 1344. The Appeals Court
stated that this court may have adopted a broader
construction than the PTO of the “flow control
baffle” limitation of the claim and directed the court
to reconsider how the claim construction impacted the
invalidity analysis. Id. at 1343.
Court did so in its order reaffirming the validity of the
‘'863 patent. Filing No. 800, Memorandum and Order
at 11-12. The Court clarified that it had not adopted the
language from the PTAB construction regarding a flow control
baffle having a “meaningful effect” on the flow
of air and grass clippings, explaining that “the
parties' agreed construction was easily understood and
there was no need for the ‘meaningful effect'
language.” Id. at 11 (citing Filing No. 476,
Memorandum and Order at 24 n.8).
As understood in context, there is no substantive difference
between the PTAB's construction and the parties'
original agreed-upon construction. In context, to a person of
ordinary skill in the art, a baffle is separate from and
spaced away from the front wall in order to constitute a
“flow control baffle.” The two phrases
effectively convey the same basic point-under the Court's
claim construction, the claim term “flow control
baffle” does not cover thin mounting plates that run
along, contact, and conform to the front deck wall as in the
Simplicity mulching mower. The concept of a “meaningful
effect” is subsumed within the notion of
“control” of the flow of clippings.
Id. at 12. The Court also stated that it applied the
claim construction adopted early in the litigation in making
its determination. Id. at 14. Filing No. 800,
Memorandum and Order at 14. The Court also considered
indefiniteness in the context of the disclosure required for
a patent to be entitled to the benefit of the filing date of
an earlier filed application, citing Nautilus, Inc. v.
Biosig Instruments, Inc., 572 U.S. 898, 134 S.Ct. 2120,
2129 (2014), for the proposition that a claim is indefinite
if, when read in light of the specification and prosecution
history, it fails ...