  United States Court of Appeals
      for the Federal Circuit
                 ______________________

3M INNOVATIVE PROPERTIES COMPANY AND 3M
                COMPANY,
            Plaintiffs-Appellants,

                            v.

TREDEGAR CORPORATION AND TREDEGAR FILM
       PRODUCTS CORPORATION,
            Defendants-Appellees.
           ______________________

                       2012-1241
                 ______________________

    Appeal from the United States District Court for the
District of Minnesota in No. 09-CV-3335, Judge Donovan
W. Frank.
                 ______________________

                Decided: August 6, 2013
                ______________________

    JONATHAN F. COHN, Sidley Austin LLP, of Washing-
ton, DC, argued for plaintiffs-appellants. With him on the
brief were CARTER G. PHILLIPS and BRIAN P. MORRISSEY.

     CHARLES K. VERHOEVEN, Quinn Emanuel Urquhart &
Sullivan LLP, of San Francisco, California, argued for
defendants-appellees. With him on the brief were
CHRISTOPHER E. STRETCH, EMILY C. O’BRIEN and AARON J.
BERGSTROM. Of counsel on the brief was KURT J.
NIEDERLUECKE, Fredrickson & Byron, P.A., of Minneap-
olis, Minnesota.
2        3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

                  ______________________

    Before O’MALLEY, PLAGER, and REYNA, Circuit Judges.
     Opinion for the court filed by Circuit Judge REYNA.
      Concurring opinion filed by Circuit Judge PLAGER.
Concurring-in-part and dissenting-in-part opinion filed by
               Circuit Judge O’MALLEY.
REYNA, Circuit Judge.
    This appeal deals with claim construction disputes
arising out of 3M Innovative Properties Company and 3M
Company’s (collectively, “3M”) allegations of patent in-
fringement brought against Tredegar Corporation and
Tredegar Film Products Corporation (collectively,
“Tredegar”) in the United States District Court for the
District of Minnesota (“district court”). 3M competes in
the elastomeric laminate industry with Tredegar. 3M is a
global manufacturing company that sells laminate prod-
ucts such as diapers. Tredegar is a supplier of breathable
and nonwoven film laminates for personal care products,
including baby diapers, training pants, and adult inconti-
nence products.
    The district court construed claim terms in four as-
serted patents. After claim construction, the parties
stipulated to noninfringement. 3M appeals the district
court’s construction for four of the thirty disputed claim
terms or groups of terms. We affirm the appropriate
scope of the claim terms “continuous contact” and “con-
tinuous microtextured skin layer over substantially the
entire laminate,” but clarify the appropriate scope of those
claim terms. We reverse the district court’s claim con-
structions relating to the terms grouped as “preferential
activation zone” and the term “ribbon.” Because the
district court erroneously limited certain claim terms in a
manner that is inconsistent with the intrinsic disclosures,
we provide the appropriate constructions, vacate those
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION            3

constructions that are inconsistent with the analysis
herein, and remand for further proceedings.
                      I. BACKGROUND
                  A. Technical Overview
    The patents-in-suit relate to multi-layer elastomeric
laminates found in the body-hugging areas of products
such as the waistband or side tabs of disposable diapers
or adult incontinence products. The claims disclose
stretchable films or laminates that, once affixed to the
diaper, allow the product to expand to fit around the
person wearing them with the laminate stabilizing to
recover its shape once stretching is complete.
    The elastomeric nature of the laminate is discussed in
all four patents.1 United States Patent Nos. 5,501,679
(“the ’679 Patent”) and 5,691,034 (“the ’034 Patent”)—the
Krueger Patents—share a largely identical written de-
scription and are directed to laminates with “continuous”
microtexturing over the laminate’s skin layer. See ’034
Patent col. 28 ll. 40-45; ’679 Patent col. 3 ll. 15-45. United
States Patent Nos. 5,468,428 (“the ’428 Patent”) and
5,344,691 (“the ’691 Patent”)—the Hanschen Patents—are



    1    All of the patents in suit name more than one in-
ventor. When discussing the prosecution history, we
collectively refer to the multiple inventors as “the appli-
cant.” Consistent with the manner in which the parties
presented arguments, we divide the asserted patents into
two groups and discuss them accordingly. We refer to
U.S. Patent Nos. 5,501,679 and 5,691,034 by reference to
lead inventor, Dennis L. Krueger (“the Krueger Patents”).
We refer to U.S. Patent Nos. 5,468,428 and 5,344,691 by
reference to lead inventor Thomas P. Hanschen (“the
Hanschen Patents”). The two Krueger Patents and the
two Hanschen Patents share nearly identical written
descriptions.
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION               5

in Figure 2, stretching has resulted in microtexturing of
the laminate, seen as folds between the skin and core
layers:




’034 Patent col. 3 ll. 42-46, col. 10 ll. 62-65. The microtex-
turing that occurs upon stretching provides elasticity,
durability, and gives the expanded garment a soft feel.
Id. at col. 11 ll. 35-42, col. 13 ll. 1-8, col. 13 ll. 22-30.
     Both the Krueger and Hanschen Patents address
problems resulting from the inflexibility of the materials
used in the prior art to manufacture a diaper waistband
or the protective back sheet or top sheet of a diaper. See,
e.g., ’034 Patent col. 3 ll. 1-8; see also ’691 Patent col. 2 ll.
12-14 (“Problems with these elastomeric films include the
difficulties inherent in applying a stretched elastic mem-
ber to a flexible substrate such as a disposable diaper.”).
For example, the Krueger Patent disclosure explains that
the lack of flexibility in earlier laminates results in an
uncomfortable stiffness that can cause the material to
“bite” or “grab” the wearer of the diaper. ’679 Patent col.
3 ll. 6-11.
    Additional problems were discussed with the PTO ex-
aminer during prosecution. In the application that later
issued as the ’679 Patent, the examiner considered U.S.
6      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

Patent No. 4,880,682 (“Hazelton”) and U.S. Patent No.
5,057,097 (“Gesp”) and noted that “neither Gesp nor
Hazelton et al. disclose films capable of recovering slowly
over time at ambient conditions or capable of substantial
heat activated recovery” as claimed in the ’679 Patent
application. J.A. 1257. In these prior art laminates, the
outer skin layers deformed when stretched; the defor-
mation impeding recovery because there was only inter-
mittent contact between the skin and the core. E.g. J.A.
1526; see also J.A. 1257. 3M maintains that separated
skin and core layers exposed the core to oxidation, thereby
decreasing the effectiveness of earlier films.
    The Krueger Patents overcome some of the problems
associated with robust stretching by allowing the lami-
nate to recover following deformation. The “continuous
contact” between the layers allows for recovery from
deformation because the microtexturing—i.e. folds in the
skin layer—allows the laminate to withstand the com-
promising effects of the skin and core being pulled apart.
Claim 1 in the ’034 Patent recites the arrangement of the
layers:
    1. An elastomeric laminate consisting essentially of at
       least one elastomeric layer and at least one contin-
       uous microtextured skin layer over substantially
       the entire laminate wherein:
      (a) the microtexture on said skin layer is formed by
          stretching an untextured laminate past the de-
          formation limit of at least one untextured skin
          layer and allowing the stretched laminate to
          elastically recover over the entire region
          stretched and
      (b) said at least one elastomeric layer and said at
          least one continuous microtextured skin layer
          are in substantially continuous contact.
’034 Patent col. 28 ll. 40-45. Claim 1 of the ’679 Patent
provides additional detail as to the nature of the micro-
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION         7

texturing found on the skin layer that is in “continuous
contact” with the elastic core layer:
   1. A garment comprising a body engaging area said
      body engaging area comprising an elastomeric lam-
      inate comprising at least one discrete elastomeric
      layer and at least two discrete continuous skin lay-
      ers at least one of which is a microtextured perma-
      nently deformed polymeric layer wherein the
      materials forming the elastomeric layer and the
      materials forming the polymeric layer are selected
      such that said at least one elastimeric layer and
      said at least one microtextured skin layer are in
      continuous contact.
’679 Patent col. 28 l. 61 to col. 29 l. 2.
    The Hanschen Patents depart from the Krueger Pa-
tents in that they teach a laminate with “preferential
activation zones.” As explained in the ’691 Patent disclo-
sure, the laminates claimed in the Hanschen Patents “are
capable of becoming microtextured at specified areas
along the laminate length.” ’691 Patent col. 3 ll. 11-13.
The microtextured areas correspond to sections of the
laminate that have been “activated from an inelastic to an
elastomeric form.” Id. col. 3 ll. 13-15. The Hanschen
Patents thus limit elasticity to specific areas claimed as
“preferential activation zones.” Claim 1 of the ’691 Patent
is representative of the claims relating to “preferential
activation zone.” Claim 1 states:
   1. A multi-layer film laminate comprising at least one
      nonelastomeric skin film layer and at least one core
      film layer, the at least one skin film layer and the
      at least one core film layer together forming at
      least one preferential activation zone where the
      film laminate will preferentially elongate when
      stretched, wherein said at least one core film layer
      is substantially elastomeric, each of said core and
      skin layers being substantially coextensive and
      having relatively constant average thickness over
8       3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

       both the at least one preferential activation zone
       and an at least one adjacent non-preferential acti-
       vation zone such that, for a given skin or core layer,
       the skin or core layer thickness in one zone will be
       substantially the same as the same skin or core
       layer thickness in all zones, said at least one skin
       film layer and/or at least one core film layer are
       provided such that when the multi-layer laminate
       is stretched said at least one preferential activation
       zone will preferentially elongate and can recover in
       said preferential activation zone to become an elas-
       tic zone, of said multi-layer film laminate, and ad-
       jacent multi-layer non-preferential activation zones
       will not preferentially elongate to provide substan-
       tially inelastic zones.
’691 Patent col. 36 ll. 41-63.
     The claimed zone can be activated by conditions pro-
ducing designated stretch ratios. The Hanschen Patents
depart from the Krueger Patents in that those patents
require a lower stretch ratio to effectuate stretching or
activate the microtextured laminate. See ’691 Patent col.
3 ll. 34-49. In particular, the Hanschen Patent disclosure
teaches that when stress is applied to a localized region,
there will be preferential elasticization of the specified
zone. See id. col. 3 ll. 38-58, col. 10 l. 11 (identifying
methods of “post formation stress localization” or “con-
trolled localized stretching”).
                    B. Prior Proceedings
    3M, the assignee of the Krueger and Hanschen Pa-
tents, brought suit against Tredegar on November 23,
2009. 3M sought injunctive relief as well as compensato-
ry damages for alleged willful infringement. In its An-
swer, Tredegar filed counterclaims seeking declarations
that the asserted claims were not infringed and that the
patents are invalid and/or unenforceable. After briefing,
the district court held a claim construction hearing on
September 6, 2011 and issued a fifty-five page opinion
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION           9

construing thirty separate terms from the four patents.2
See 3M Innovative Prop. Co. v. Tredegar Co., No. 09-3335,
2011 WL 6004023 (D. Minn. Nov. 30, 2011) (“Markman
Order”). Following the claim construction rulings, the
parties jointly stipulated to a finding of noninfringement
and the district court entered final judgment so that 3M
could appeal. J.A. 4–6. The district court entered final
judgment pursuant to the parties’ joint stipulation with-
out making any independent findings on the allegations of
infringement. Accordingly, we express no opinion as to
the infringement contentions which remain open for the
parties and the district court to resolve on remand.
                      II. DISCUSSION
    Claim construction is a question of law that we review
without deference. Cybor Corp. v. FAS Techs., Inc., 138
F.3d 1448, 1455–56 (Fed. Cir. 1998) (en banc). To the
extent possible, claim terms are given their ordinary and
customary meaning, as they would be understood by one
of ordinary skill in the art in question at the time of the
invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312–13
(Fed. Cir. 2005) (en banc). Idiosyncratic language, highly
technical terms, or terms coined by the inventor are best
understood by reference to the specification. Id. at
1315−16. While we construe the claims in light of the
specification, limitations discussed in the specification
may not be read into the claims. Intervet Inc. v. Merial
Ltd., 617 F.3d 1282, 1287 (Fed. Cir. 2010); Abbott Labs. v.
Sandoz, Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009).
Courts may rely on dictionary definitions when construing
claim terms, so long as the dictionary definition does not
contradict any definition found in or ascertained by a
reading of the patent documents. See Advanced Fiber
Tech. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d



    2   Most of the district court’s constructions are not at
issue in this appeal.
10      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

1365, 1374−75 (Fed. Cir. 2012) (internal citations omit-
ted).
    The meaning of the claim language is informed, as
needed, by the prosecution history. Pass & Seymour, Inc.
v. Int’l Trade Com’n, 617 F.3d 1319, 1327 (Fed. Cir. 2010)
(quoting Multiform Desiccants, Inc. v. Medzam, Ltd., 133
F.3d 1473, 1478 (Fed. Cir. 1998)); Phillips, 415 F.3d at
1315. This court does not rely on the prosecution history
to construe the meaning of the claim to be narrower than
it would otherwise be unless a patentee limited or surren-
dered claim scope through a clear and unmistakable
disavowal. Trading Tech. Int’l., Inc. v. eSpeed, Inc., 595
F.3d 1340, 1352 (Fed. Cir. 2010) (internal citations omit-
ted); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1582–83 (Fed. Cir. 1996).
    It is with an eye to these tenets of claim construction
that we review the district court’s Markman Order pursu-
ant to our jurisdiction under 28 U.S.C. § 1295(a)(1).
                 A. “Continuous Contact”
    The terms “continuous contact” and “substantially
continuous contact” appear in claims 1, 2, 4, 5, 7, and 8 of
the ’679 Patent, claims 1, 2, 5, and 6 of the ’034 Patent,
and claim 52 of the ’691 Patent. The parties agree that
the two terms should be given an identical construction.
See Markman Order at *7, n.8. The district court con-
strued the terms to mean “full surface contact” in refer-
ence to the contact occurring between the elastomeric core
layer and the folds of the microtextured skin. Id. at *8–
10.
    The parties’ dispute is directed to three Figures in the
specification of the Krueger Patents, wherein each Figure
shows a varied mode of physical contact between the
microtextured skin and the elastomeric layers. Figures
22, 23, and 24 set forth three distinct spatial relationships
between the skin and the core during stretching; the
spatial relationships depicted in the three figures frame
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION          11

the parties’ competing understandings of the claim term’s
scope.
     The ’679 Patent describes an embodiment with the
core and skin remaining in “full contact,” whereby the
core material fills the folds formed in the skin layers. ’679
Patent col. 13 ll. 10-12. Figure 22, representative of the
full contact mode, shows such a stretched laminate:




See id. col. 4 ll. 32-34. The parties agree that the full
skin-to-core contact depicted in Figure 22 constitutes
“continuous contact” as it is used in the claims.
    The strained skin-to-core contact shown in Figure 23
is less than full contact. The Figure shows a stretched
laminate with the folds of the skin pulling away from the
core in a mode described as “cohesive failure.”3




    3    All references to the cohesive failure mode in Fig-
ure 23 are exclusive to the right-hand side of the Figure
as circled herein. At oral argument Tredegar understood
3M’s position to also refer to the left-hand side of the
Figure, but 3M conceded during briefing that the left-
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION        13




See ’679 Patent col. 4 ll. 38-40. The intrinsic teachings
differentiate between “adhesive failure” and “continuous
contact,” with Figure 24 illustrating decreased skin-to-
core contact.    ’679 Patent col. 6 ll. 46-49 (describing
“adhesive failure of the skin to the core under the micro-
textured folds with intermittent skin/core contact at the
fold valleys”).
    3M argues that the cohesive failure mode, like the full
contact in Figure 22, is “continuous” or “substantially
continuous contact” because the skin and core layers
remain joined without interruption despite cracks pervad-
ing the core. The identified cracks within the core can be
seen at the center-right of Figure 23 where, beneath the
point of contact with the skin, the stretching has caused
the core to pull apart. Pointing to this image of cohesive
failure, 3M contends that because the cracks are within
the core—and not between the core and skin layers―the
skin-to-core contact is still “continuous.” 3M argues that
there is no exclusion in the intrinsic disclosures that
would preclude the term from being given its full effect,
an effect which includes the cohesive failure in Figure 23.
    Tredegar counters by arguing that the cohesive fail-
ure mode is not a subset of “continuous contact” because,
during prosecution, the applicant twice amended the
claims to distinguish between Figures 22 and 23 so as to
14       3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

limit itself to the full contact depicted in Figure 22.
Tredegar, however, does not point to anything in the
written description that would compel such a conclusion.
     The district court adopted Tredegar’s proposed con-
struction of “full surface contact” after examining
amendments made by the applicant during the prosecu-
tion of the claim issuing as claim 1 in the ’679 Patent. In
the Markman Order, the district court traced the original
application, noting that it was amended on two separate
occasions to distinguish the Hazelton prior art reference.4
As originally drafted, the ’679 Patent application had no
limitation regarding the range of contact that could exist
between the skin and core layers. See J.A. 1154. It was
amended for a first time, adding the limitation “substan-
tially continuous contact,” to claim the interface between
the skin and core. In submitting the amendment, the
applicant noted that “substantially continuous contact”
was depicted in Figures 22 and 23. J.A. 1268. This first
amendment, however, was rejected as obvious in light of
Hazelton. Id. In response, the claim was amended a
second time by deleting the word “substantially” so that
the limitation required “continuous contact” between the
core and skin layers. J.A. 1278–80. The applicant did not
provide statements illuminating why “substantially” was
removed.
    Tredegar argued, and the district court agreed, that
by removing the word “substantially” from the first
amended claim, the second amendment surrendered any
skin-to-core contact that was not “full surface” contact.


     4  Hazelton disclosed a low gloss film made up of an
elastomeric core and two inelastic outer skin layers. J.A.
1513 col.1 ll.57–60; see also J.A. 1268 (“Hazelton et al [sic]
employ substantially the same genuses of both core and
covering materials as do applicants and the resultant
films can be stretched to yield the same ‘microtexturing’
surface structure.”).
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION           15

Markman Order at *9–10. The district court found that
the second amendment to the claim disavowed embodi-
ments depicting cohesive failure— i.e., Figure 23. See id.
at *10. The district court limited its interpretation of “full
surface contact” to the embodiment illustrated in Figure
22. Id.
                         1. Claims
    We begin our analysis with the language of the
claims. The term “continuous contact,” as used in the
Krueger Patents, does not suggest whether the patentee
intended the term to include the cohesive failure mode
shown in Figure 23. Thus, while it is unclear whether the
skin folds pulling away from the core qualify as remaining
in “continuous contact,” there is no basis to suppose that
the claim term applies only to the full contact mode
shown in Figure 22. Indeed, claim 1 of the ’679 Patent
merely states that the “elastomeric layer and [the] skin
layer are in continuous contact.” ’679 Patent col. 29 ll. 1-
2. In the absence of exclusionary language, the term’s
ordinary meaning—read to give full effect to the claim
language—captures situations in which the elastomeric
layer undergoes cohesive failure because “continuous
contact” requires nothing more than uninterrupted con-
tact between the laminate’s skin and core layers. Regard-
less of whether the core has internal cracks, the applicant,
in claiming his invention, did not suggest he sought to
exclude cohesive contact. We therefore agree with 3M
that the plain and ordinary meaning of the claim term
supports a broad claim scope. See TI Grp. Auto. Sys.
(North Am.), Inc. v. VDO North Am., L.L.C., 375 F.3d
1126, 1138 (Fed. Cir. 2004) (explaining that absent other
limiting circumstances, a patentee is entitled to the full
breadth of claim scope supported by the words of the
claims and the written description).
     2. Written Description and Prosecution History
    The written description and corresponding illustra-
tions confirm that “continuous contact” includes the
16      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

cohesive failure mode of contact. The written description
provides a concise recitation of two variations of “continu-
ous contact” that align with the modes of contact depicted
in Figures 22 and 23. See ’034 Patent col. 13 ll. 9-16. The
disclosure first describes a situation in which “the core
and skin remain in full contact,” id. at col. 13 ll. 4-6, and
then characterizes instances of cohesive failure as “a
variation” of this “continuous contact construction.” Id. at
col. 13 ll. 8-11. The specification then distinguishes
between cohesive failure and intermittent contact—as
shown in Figure 24—emphasizing that the two modes of
contact are distinct. By explaining that instances of
cohesive failure are “a variation” of full contact and then
distinguishing those variations from the intermittent
contact or adhesive failure, the written description in-
cludes both full and cohesive contact within the meaning
of “continuous contact.” See ’034 Patent col. 13 ll. 13-16
(describing the intermittent contact shown in Figure 24 as
“an entirely different skin/core adhesion mode” from the
“variations” of “continuous contact”).
     Tredegar suggests that this reading of “continuous
contact” is unsupported, but offers no competing written
description reference that affirmatively requires narrow-
ing the construction to include only Figure 22. The dis-
trict court similarly failed to explain how the Krueger
Patent disclosure requires excluding cohesive failure from
the construction of “continuous contact.”
    Tredegar relies heavily on amendments made during
prosecution to assert that, in narrowing claim 1 of the
’679 Patent from “substantially continuous contact” to
“continuous contact,” the applicant simultaneously lim-
ited itself to the skin-to-core contact of Figure 22. We
have fully considered the narrowing amendments in the
prosecution history, including the applicant’s stated
reasons as to why the claims are patentable over Hazel-
ton, and find Tredegar’s arguments unpersuasive. Ulti-
mately, Tredegar fails to demonstrate how the
amendments are tied to the cohesive failure characterized
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION           17

in the issued patents as a “variation” of “continuous
contact.” Indeed, cohesive failure—or a description there-
of—is not mentioned in the applicant remarks surround-
ing either amendment. The district court found that the
amendments constituted a disclaimer, but our precedent
requires that, in order for prosecution disclaimer to at-
tach, the disavowal must be both clear and unmistakable.
Lazare Kaplan Int’l., Inc. v. Photoscribe Tech., Inc., 628
F.3d 1359, 1370 (Fed. Cir. 2010); Omega Eng’g, Inc. v.
Raytek Corp., 334 F.3d 1314, 1325–26 (Fed. Cir. 2003).
Our cases also warn that, because the prosecution history
represents an ongoing negotiation between the PTO and
the inventor, “it often lacks the clarity of the specification
and thus is less useful for claim construction purposes.”
Netcraft Corp. v. eBay, Inc., 549 F.3d 1394, 1401 (Fed. Cir.
2008) (quoting Philips, 415 F.3d at 1317).
    We do not find a clear and unmistakable disclaimer of
the cohesive contact depicted in Figure 23 in the prosecu-
tion history. It is apparent from the prosecution history
that the applicant distinguished Hazelton, but there is no
statement that amounts to a disavowal of cohesive failure.
To the contrary, 3M presents a competing interpretation
that the applicant eliminated the word “substantially” to
more clearly recite that “continuous contact” was different
from Hazelton because Hazelton disclosed only intermit-
tent contact.5 Such a reading of the prosecution history is
consistent with the Krueger Patents’ written description.
The patents refer to the full contact and cohesive failure
modes of contact as variations of “continuous contact,”
while explaining that the adhesive failure causing inter-
mittent contact between the skin and core was something
different. The December 13, 1994 remarks to the PTO



    5   Hazelton does not disclose continuous skin-to-core
contact. See J.A. 1511–13. Hazelton instead discloses the
kind of intermittent contact shown in Figure 24 of the
Krueger Patents.
18      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

can be similarly read to clarify that the elimination of
“substantially” was, at least in part, an effort to draw a
line between the claimed “continuous contact” and the
intermittent contact in Hazelton. J.A. 1280–81.
    Given this reasonable, contrary reading of the prose-
cution history, we cannot say with certainty that the ’679
Patent was intended to limit “continuous contact” to the
type of full skin-to-core contact depicted in Figure 22.
Where an applicant’s statements are amenable to multi-
ple reasonable interpretations, they cannot be deemed
clear and unmistakable. See Grober v. Mako Prods., Inc.,
686 F.3d 1335, 1342 (Fed. Cir. 2012) (rejecting prosecu-
tion disclaimer arguments because the applicant’s ambig-
uous statements distinguishing from prior art did not
focus on specific prior art features); see also Abbott Labs.,
566 F.3d at 1289. The district court erred when it con-
cluded otherwise.
                         *   *   *
    Where, as here, a disavowal does not exist, the ordi-
nary and customary meaning of the claim term will be
given its full effect. In our view, the district court’s con-
struction of “full surface contact” properly includes in-
stances where the elastomeric layer fills the folds of the
microtextured skin but cohesively fails under the folds.
The district court’s claim construction of “full surface
contact” is affirmed with the clarification that the defini-
tion includes the cohesive failure depicted in Figure 23.
        B. “Continuous Microtextured Skin Layer”
     The term “continuous microtextured skin layer over
substantially the entire laminate” appears in claims 1, 2,
5, and 6 of the ’034 Patent. The district court concluded
that the term should be read to require the microtextur-
ing and the skin layer be “continuous” across “substan-
tially the entire surface area of the laminate.” Markman
Order at *24. The district court qualified its construction,
however, by acknowledging that the microtexturing is
“substantially uniform over the elastomeric laminate
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION         19

surface.” Id. at *23 (citing ’034 Patent col. 11 ll. 35-37).
We find the district court’s construction was consistent
with the intrinsic evidence.
    In essence, the parties dispute the extent of the micro-
texturing on the skin of the laminate, with each side
interpreting the disputed claim language in a different
light. The disputed words are:
   1. An elastomeric laminate consisting essentially of at
      least one elastomeric layer and at least one contin-
      uous microtextured skin layer over substantially the
      entire laminate wherein:
’034 Patent col. 28 ll. 40-43 (emphasis added) (remainder
of the claim omitted). 3M would read the foregoing
claimed laminate to have “at least one microtextured
region,” while Tredegar reads the same limitation as
requiring the laminate, as a whole, to develop microtex-
turing. 3M argues that the district court improperly
deviated from a plain reading of the claim term. It con-
tends that the skin layer, not the microtexturing, must be
“continuous” across the laminate because the adjective
“continuous” only modifies the noun “skin layer.”6
Tredegar contends that the district court’s construction is
correct, and in particular, points to language in the writ-
ten description that refers to a skin layer that is both
continuous and microtextured over substantially the
entire laminate. Close examination of the intrinsic and
extrinsic references supports the middle path identified
by the district court7 in which a skin layer can have non-



   6   3M maintains that the district court should have
construed the claim term as “one unified skin layer over
substantially the entire laminate having at least one
microtextured region.”
   7    The district court indicates that it is adopting
Tredegar’s proposed construction but the accompanying
discussion is not precisely aligned with Tredegar’s narrow
20      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

microtextured areas, but the microtexturing encompasses
“substantially the entire surface area of the laminate.”
See Markman Order at *24.
     3M’s purported plain reading of the claim term ap-
plies the The Chicago Manual of Style in arguing that
“continuous” is limited to modifying “skin layer” and
cannot modify the entire phrase “microtextured skin
layer.” We do not adopt 3M’s reliance on extrinsic evi-
dence because we must first consider what a skilled
artisan reading the claim would understand the limita-
tion to mean. Here, the ’034 Patent provides a skilled
artisan with substantial guidance in deciphering the
extent of the microtexturing. The written description is
unambiguous in teaching that the microtexturing is
continuous, but not restricted to a single zone or region of
the skin layer. The Patent specifically refers to “unique
continuous microstructured surfaces,” ’034 Patent col. 12
l. 11, and particularly characterizes the microtexturing as
being “substantially uniform” over the laminate surface.
’034 Patent col. 10 ll. 35-37.
    When viewed contextually against the applicant’s de-
scription of the invention, the extent of the microtexturing
is ascertainable. To qualify as “continuous,” the microtex-
turing need not be symmetrical or perfectly uniform
across the entire surface of the skin layer. Rather, the
’034 Patent confirms that stretching impacts the surface
structure:     “The unique continuous microstructured
surfaces of the invention can be altered and controlled by
the proper choice of materials and processing parame-
ters.” Id. at col. 12 ll. 11-13. A skilled artisan reading the



approach. Markman Order at *23−24. Our interpreta-
tion of the claim limitation adopts the district court’s
discussion of the written description references but, as
discussed herein, we do not agree with the overly broad
understanding set forth by 3M, nor do we agree with the
restrictive interpretation set forth by Tredegar.
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION          21

disclosure would understand the claimed “continuous
microtextured skin layer over substantially the entire
laminate” to be the same “unique continuous microtex-
tured surfaces” in the written description, and she would
further understand the microtexturing as “substantially
uniform.” See id. at col. 10 ll. 35-37. By contrast, there is
no discussion in the written description that minimizes
the microtexturing to 3M’s suggested single region of the
skin layer.
    While it may be beneficial, for purposes of litigation,
for 3M to argue that if the inventors had wished to re-
quire the microtexturing to be “continuous,” then they
would have used the adverb “continuously” instead of
“continuous,” our cases do not indulge hindsight. We are
satisfied—based on the clear indications in the written
description—that a person of ordinary skill would under-
stand that when the laminate is stretched to the point of
deformation, it is substantially the entire skin layer that
develops substantially uniform microtexturing.
    We have no occasion to address in detail the prosecu-
tion history because we conclude that none of the state-
ments contained therein rise to the level of a clear
disavowal or otherwise support a departure from the
claim language and the written description. We have
similarly considered comparisons to the Hanschen Pa-
tents but do not read those disclosures to change the
meaning of the claims in the ’034 Patent. We affirm the
district court’s interpretation of “continuous microtex-
tured skin layer,” and as previously clarified, to be “con-
tinuous” the microtexturing is “substantially uniform” as
opposed to limited to a single region or zone.
            C. “Preferential Activation Zones”
    Eleven claim terms deriving from the baseline term
“preferential activation zone” appear throughout the
Hanschen Patents in claims 1, 19, 25, 29, 30, 51−53, 55,
and 56 of the ’691 Patent and claims 1 and 4 of the ’428
Patent. In addition to “preferential activation zone” and
22       3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

“preferential activation regions,”8 the remaining deriva-
tive terms are as follows: (1) “non-preferential activation
zones,” (2) “non-preferential activation regions,” (3) “elas-
ticized preferential activation zones,” (4) “non-elasticized
preferential activation zones,” (5) “treated to create pref-
erential stress concentrations,” (6) “preferential stress
regions,” (7) “will preferentially elongate when stretched,”
(8) “will preferentially elongate and recover to form an
elastic zone,” and (9) “zone activatable.” The district court
addressed all eleven “preferential activation zone” terms,
but in the interest of efficiency, we address the salient
claim language “preferential activation zone” with the
understanding that on remand the district court will be
well-positioned to decide the overlapping terms consistent
with the guidance set forth in this opinion.
     The term “preferential activation zone” does not have
an ordinary meaning outside of the Hanschen Patents, yet
the claims specify that these zones are an area of the film
laminate that will “preferentially elongate when
stretched.” ’691 Patent col. 36 ll. 41-63. The presence of
both elastic and inelastic zones is in contrast to the claims
of the Krueger Patents, which contemplate “continuous”
microtexturing once stretched. Use of the term “preferen-
tial activation zone” thus limits the area of elasticization
to designated zones or regions on the laminate.          It is
unambiguous from the face of the claims that there are
both areas on the laminate that become elastic when
stretched and other adjacent areas that are generally
inelastic.
    The district court adopted Tredegar’s proposed con-
struction and held that the “preferential activation zones”


     8  Our discussion of “preferential activation zone”
applies equally to “preferential activation regions” based
on representations made to the district court, and again
on appeal, that the two terms are identical in meaning.
See Appellee Br. 9 (citing J.A. 481–82).
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION         23

must be “predetermined” and “identifiable” before activa-
tion. Markman Order at *13. Based on this construction,
the laminate must exist in two states—“an intermediate
and a final state.” Id. The district court construed the
term as “identifiable predetermined areas of the laminate
that are inelastic and, when the laminate is stretched as a
whole, will elongate before or to a greater extent than
adjacent areas.” Id. at *15. The parties first dispute
whether the intrinsic evidence supports construing the
zones as “predetermined” and “identifiable.” They also
dispute how a “preferential activation zone” is formed.
    3M maintains that the creation of the activation zone
and the stretching can occur simultaneously. Specifically,
it asserts that the specification teaches that “controlled
localized stretching” requires the preferential elongation
to occur in a single step. It proposes a construction for
“preferential activation zone” that tracks the language of
the claim: “the area of the multi-layer laminate which will
preferentially elongate to form an elastic zone.”
    Relying on the specification and prosecution history,
Tredegar asserts that the use of “predetermined” in the
specification warrants inclusion of that limitation in the
district court’s construction. Tredegar also points to
portions of the prosecution history to argue that a “prefer-
ential activation zone” is formed through a two-step
process in which the selected laminate zones must pro-
gress through an intermediate state prior to activation.
    We agree with 3M that the district court’s construc-
tion for “preferential activation zone” improperly reads
“predetermined” and “identifiable” into the claims. The
district court further erred in determining that the claims
require preferential elongation to occur through a two-
step process.
             1. Plain and Ordinary Meaning
    “Preferential activation zone” is a term specific to the
claimed inventions and should be understood in a way
that does not render the actual words of the claim super-
24      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

fluous. Digital-Vending Sys. Int’l, LLC v. University of
Phoenix, Inc., 672 F.3d 1270, 1275 (Fed. Cir. 2012) (dis-
cussing, Phillips, 415 F.3d at 1314). A skilled artisan
encountering the term for the first time would have the
patentee’s own descriptions in the claims to frame the
meaning of an otherwise unfamiliar reference. To that
end, claim 1 provides a contextual description of “prefer-
ential activation zone.” There are no express restrictions
to limit a “preferential activation zone” as “predeter-
mined” or “identifiable.” There is similarly no mention of
the laminate achieving an intermediate state prior to
activation. Instead, the claims indicate only that the
laminate’s “preferential activation zone” will “preferen-
tially elongate when stretched” and then later recover.
’691 Patent col. 36 ll. 41-63.
    For this claim term the patentee offers an ascertaina-
ble definition in the body of the claim, and our cases do
not support prescribing a more particularized meaning
unless a narrower construction is required by the specifi-
cation or prosecution history. E.g., Woods v. DeAngelo
Marine Exhaust, Inc., 692 F.3d 1272, 1285 (Fed. Cir.
2012) (declining to limit “angularly disposed” to any
specific angle); King Pharm., Inc. v. Eon Labs, Inc., 616
F.3d 1267, 1275 (Fed. Cir. 2010) (declining to limit the
broad terms used in the [patent’s] pharmaceutical claims
to specific food conditions); TI Grp. Auto. Sys., 375 F.3d at
1138 (clarifying that the claim term “at the bottom of the
reservoir” need not be understood narrowly to be an
opening “in the bottom surface of the reservoir”). Given
that one of skill in the art is informed by the claim disclo-
sures, it is unnecessary to limit the plain language based
on unclear statements in the specification and prosecution
history. Thorner v. Sony Computer Ent. Am. L.L.C., 669
F.3d 1362, 1367 (Fed. Cir. 2012) (emphasizing that “[t]he
patentee is free to choose a broad term and expect to
obtain the full scope of its plain and ordinary meaning,
unless the patentee explicitly redefines the term or disa-
vows its full scope”).
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION           25

            2. Written Description References
     We consult the written description to determine
whether the district court’s claim construction encroaches
on the straightforward definition provided in the claims.
Based on the use of “predetermined,” the district court
limited the scope of the claims and required a “preferen-
tial activation zone” to have both clearly determined and
identifiable properties.9 We disagree.
    Both 3M and Tredegar rely on the “predetermination”
references in the specification, but the parties use the
references differently in contesting whether the applicant
narrowed the meaning of “preferential activation zone.”
The fundamental point of distinction is that, while
Tredegar suggests that the zones must exist before activa-
tion, 3M suggests that the zones must be selected before
activation. 3M contends that even if a region of the
laminate is selected or predetermined for preferential
elongation, the zone is not in existence until activation
occurs.
    The description in the Summary of the Invention is
consistent with the broader understanding that a “prefer-
ential zone” can be “predetermined” or “selected” on the
laminate without having yet undergone any of the altera-
tions that accompany activation. It is apparent from a
plain reading of the Summary of the Invention that the
preferential activation regions are, in fact, “predeter-
mined”:



    9   Nowhere in the Hanschen Patent written descrip-
tion does the patentee characterize a “preferential activa-
tion zone” as “identifiable.” As such, we see no basis to
include the limitation in the claim construction. To the
extent the district court relies on the discussion of relative
modulus values in the prosecution history, it is using
language connoting determination rather than identifica-
tion. See Markman Order at *12, n.10.
26      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

     The novel, non-tacky microtextured laminate is
     obtained by stretching the laminate past the elas-
     tic limit of predetermined regions of the skin lay-
     ers.    This is termed selective or preferential
     activation. The laminate then recovers in these
     predetermined regions, which can be instantane-
     ous, over an extended time period, which is skin
     layer controllable, or by the application of heat,
     which is also skin layer controllable.
’691 Patent col. 3 ll. 24-33 (emphases added). The disclo-
sure indicates that microtexturing occurs by stretching
“predetermined regions of the skin,” and such an event is
“termed selective or preferential activation.” Id. (empha-
sis added). Rather than being mutually exclusive, the
concepts of predetermination and selection are linked.
See ’691 Patent Abstract; col. 3 ll. 24-33. The flexible use
of “predetermined” in the written description does not
mean that, just because the zone can be predicted or
chosen upon concentration of stress, the zone, as claimed,
must exist prior to stretching. One of skill in the art
would recognize that predetermination can be synony-
mous with selection. We therefore have a basis to pre-
sume that “preferential activation” appearing in the
claims, refers to the same thing as “selective or preferen-
tial activation” in the Summary of the Invention. See
Digital-Vending Sys., 672 F.3d at 1275 (internal citations
omitted). Because the written description treats both
“selected” and “predetermined” regions as interchangea-
ble in some circumstances, the claimed “preferential
activation zones” are capable of selection upon concentra-
tion of stress in a particular region.
    “Controlled localized stretching,” as disclosed in the
written description, weighs against a claim construction
that artificially separates predetermination from activa-
tion. The disclosure teaches that localized stretching will
result in selection and activation of one region of the
laminate, while surrounding regions will not be activated.
See ’691 Patent col. 9 ll. 53-56, col. 9 ll. 61-63. Such acute
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION         27

stretching provides the best illustration of simultaneous
zone creation and activation because, in a single step, the
interjection of stress both selects and activates the
claimed zones.
    The district court’s use of “predetermined” in its claim
construction does not take into account the “controlled
localized stretching” that can create a “preferential acti-
vation zone” by applying acute stress to a localized region
of the laminate.     The passages discussing “controlled
localized stretching” contemplate an alternative embodi-
ment to that which the district court relies on in charac-
terizing preferential activation as occurring prior to
elongation. Our cases emphasize that an alternative
means of accomplishing the claimed result weighs against
a claim construction that would exclude that alternative.
Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d
1379, 1383 (Fed. Cir. 2008) (cautioning against interpret-
ing a claim term in a way that excludes disclosed embod-
iments) (citing Verizon Servs. Corp. v. Vonage Holdings
Corp., 503 F.3d 1295, 1305 (Fed. Cir. 2007)).
     Here, “controlled localized stretching” functions as
such an alternative embodiment. As disclosed in column
3 of the ’691 Patent, activation can be initiated through
either uniform or localized stretching. ’691 Patent col. 3
ll. 39-46. Both modes of activation create the claimed
“preferential activation zone,” but the treatment of the
laminate varies depending on the type of stress applied to
the laminate. Because there is no basis in the claim
language to limit our understanding of the claim term
and the disclosure teaches more than one activation
method, the district court erroneously included “clearly
determined [] properties.” Markman Order at *12.
  3. Process of Creating a Preferential Activation Zone
    The parties next argue over the related issue of
whether the written description and prosecution history
contemplate that the zones are created simultaneously at
the point of activation or must first go through an inter-
28     3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

mediate state to achieve elasticity. On this point, we hold
that the “preferential activation zone” can be created and
activated simultaneously. The elasticization of the zones
does not require an intermediate, pre-activation state.
    Tredegar’s argument for two distinct steps is prem-
ised on reading the claim to require the laminate to
elongate when the “preferential activation zone” is creat-
ed in a first step and activated in a second step. Such an
understanding necessarily requires that “predetermined”
zones be in existence exist prior to activation. As we have
explained, however, the intrinsic evidence does not sup-
port this interpretation of “predetermined,” and we reject
any attempt to adopt an initial step that is separate and
distinct from the activation step defined in the claims and
specification.
    Tredegar’s most compelling argument for a two-step
process is based on examiner statements during reexami-
nation of the ’691 Patent. There, in distinguishing the
claims from prior art, the examiner noted that claim 1 is
drawn to “a multi-layer film with activation zones, i.e.,
the laminate before activation,” and he further states that
“claim 1 is directed to an intermediate product before
activation, not the final product after activation.” J.A.
1004 (emphases added). Tredegar maintains that the
examiner’s interpretation of “preferential activation zone”
contemplates a two-step process.
    While the examiner’s statements could make this a
close question, we are guided by legal principles dictating
that we rest on the statements made by the patentee over
conflicting statements of an examiner because it is the
patentee’s words that define the claim. See Elbex Video,
Ltd. v. Sensormatic Elec. Corp., 508 F.3d 1366, 1372−73
(Fed. Cir. 2007) (interpreting claim term in favor of
patentee when an ambiguous statement made to examin-
er was not supported by a “shred of evidence from the
specification”); Renishaw PLC v. Marposs Societa’ per
Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998) (“Ultimately,
the interpretation to be given a term can only be deter-
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION          29

mined and confirmed with a full understanding of what
the inventors actually invented and intended to envelop
with the claim.”). We are hesitant to rely too heavily on
examiner statements over those of the patentee. Rather
than relying on the examiner’s statement as dispositive
for claim construction purposes, this court previously
explained that an examiner’s statement during reexami-
nation was, at most, representative of how one of skill in
the art would understand the term. Biagro Western
Sales, Inc. v. Grow More, Inc., 423 F.3d 1296, 1303 (Fed.
Cir. 2005). The same is true in this case; the claim con-
struction is not decided based on isolated statements of
one of skill in the art. Cf. C.R. Bard, Inc. v. U.S. Surgical
Corp., 388 F.3d 858, 869 (Fed. Cir. 2004) (determining
there was a clear disavowal because the patentee, to
overcome examiner’s rejection of that claim, made a clear
statement during reexamination that limited the scope of
the claim by adopting language substantially identical to
language suggested by examiner).
     Tredegar neither argues nor provides evidence of a
disclaimer in the original prosecution or the reexamina-
tion. In the absence of such a showing, we decline to
narrow the meaning of the claim term. The district court
erred in relying on the prosecution history to support its
conclusion that a “preferential activation zone” must exist
before the laminate is stretched. The record indicates
that during the course of the original prosecution, the
applicant was asked about the meaning of “preferential
activation zone” and broadly defined the term in a man-
ner consistent with the claim language.10 We defer to the



    10   The applicant specifically stated:
         [T]he preferential activation zone has been
         further defined as that area of the multi-
         layer laminate which will preferentially
         elongate when the laminate is stretched,
         which elon gate [sic] region can then recov-
30      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

plain meaning of the claims and statements made in the
written description referencing “controlled localized
stretching” to conclude that there is no requirement that
a “preferential activation zone” exist in an intermediate
state before it is stretched or activated.
                          *   *   *
     The term “preferential activation zone” is entitled to
a broad meaning unencumbered by limitations not found
in the claims, and the creation and activation of the
claimed zone can occur simultaneously. We reverse the
district court’s construction of “preferential activation
zone,” as well as derivatives thereof and clarify the proper
interpretation: “selected area[s] of the multi-layer lami-
nate which, when stretched will elongate to form an
elastic zone before or to a greater extent than other areas
of the laminate.” The construction of derivative claim
terms is remanded for a determination consistent with
the conclusions articulated in this opinion.
                        D. “Ribbon”
     The term “ribbon” appears in dependent claims 9 and
10 of the ’034 Patent. The term refers to a multi-layer
laminate in the shape of a “ribbon.” The elastomeric
“ribbon” disclosed in claims 9 and 10 requires at least two
layers, one opaque layer and a colored layer. ’034 Patent
col. 29 ll. 7-10. The opaque skin layer is a microtextured
outer layer, id. at col. 29 ll. 7-10, and the colored core
layer is elastomeric. Id. at col. 29 ll. 11-13. While the
claims describe the “ribbon” in terms of color and texture,
the words of the claim are silent as to a particular size or
any specific dimensions of the claimed “ribbon.”




     er (as described in the specification) to form an
     elastic zone in the multi-layer laminate.
J.A. 681–82.
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION         31

    In the proceedings below, the parties proposed com-
peting constructions of “ribbon.” The parties generally
agreed that a “ribbon” was a strip of film, but Tredegar
proposed that the strip of film could be no wider than one
inch. Markman Order at *25. The district court con-
strued “ribbon” to mean “a strip of film having a width of
no more than one inch.” Id. at *26. To support its con-
struction, the district court relied on U.S. Patent No.
4,143,195 (“Rasmussen”), a prior art reference disclosing
“ribbon-like strips” of a specified width. Id.; J.A. 532–33.
    3M asserts that the district court’s construction was
in error because requiring a width of no more than one
inch defies the plain meaning of “ribbon” and is unsup-
ported by the intrinsic record. Tredegar maintains that a
width limitation is necessary because, in the absence of
such a restriction, the claims would be indefinite under §
112, ¶ 2. Tredegar maintains that, to cure “ribbon” of its
vagueness, it is proper to look to the Rasmussen reference
cited on the face of the ’034 Patent.
     It is axiomatic that we will not narrow a claim term
beyond its plain and ordinary meaning unless there is
support for the limitation in the words of the claim, the
specification, or the prosecution history. Douglas Dynam-
ics, LLC v. Buyers Prods. Co., 717 F.3d 1336, 1342 (Fed.
Cir. 2013); Aventis Pharma S.A. v. Hospira, Inc., 675 F.3d
1324, 1329 (Fed. Cir. 2012) (citing Philips, 415 F.3d at
1312). In this patent, as in everyday parlance, the term
“ribbon” has a customary meaning that is not subject to
specific size requirements. It is also uncontested that the
written description and prosecution history do not provide
additional information as to the parameters of the
claimed ribbon. See Markman Order at *25.
    Tredegar’s indefiniteness arguments are unavailing.
In order to be indefinite, reasonable efforts at claim
construction must result in a definition that does not
provide sufficient particularity or clarity to inform a
skilled artisan of the bounds of the claim. Star Scientific,
Inc., v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1371
32        3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

(Fed. Cir. 2008). Such insoluble ambiguity is not applica-
ble for the term “ribbon” because, regardless of whether a
“ribbon” is half an inch wide or 10 inches wide, the plain
meaning is still ascertainable to one of skill in the art.
One only need look as far as the highly detailed descrip-
tion in the claims to appreciate the scope of the claimed
“ribbon.” Wellman, Inc. v. Eastman Chemical Co., 642
F.3d 1355, 1367 (Fed. Cir. 2011) (explaining that to be
definite claims must be amenable to construction and
provide a boundary between what is claimed and what is
not claimed). In the absence of vagueness in the claim
term, there was no need to import the teachings of the
cited Rasmussen reference. Indeed, our claim construc-
tion standards do not support exploring tangential prior
art references to understand the meaning of the claims.11
Thorner, 669 F.3d at 1365.
    Because ordinary usage of ribbon comports with its
use in the ’034 Patent, it was against established princi-
ples of claim construction to impose an artificial one-inch
width requirement. Based on the foregoing, we reverse
the district court’s construction of “ribbon” and construe
that term to mean, simply, a “strip of film.”
                      III. CONCLUSION
     For the foregoing reasons, this court affirms the dis-
trict court’s claim constructions as to the terms “continu-
ous contact” and “continuous microtextured skin layer of
substantially the entire laminate” and provides specific



     11 While there may be a case in which a cited refer-
ence—when examined in tandem with the intrinsic rec-
ord—bears on the meaning of a disputed claim term,
these claims, specification, and prosecution history pro-
vide no basis to do so. This is especially true because the
cited reference—Rasmussen—does not even claim a
ribbon range that includes 1”. The 1” limitation is an
arbitrary choice.
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION        33

clarifications on the proper scope of the disputed terms.
We reverse the district court’s constructions as to the
terms “preferential activation zone” and “ribbon.” Finally,
this court remands all issues for further proceedings
consistent with this opinion.
      AFFIRMED-IN-PART, REVERSED-IN-PART,
              AND REMANDED
                          COSTS
   No costs.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

3M INNOVATIVE PROPERTIES COMPANY AND 3M
                COMPANY,
            Plaintiffs-Appellants,

                            v.

TREDEGAR CORPORATION AND TREDEGAR FILM
       PRODUCTS CORPORATION,
            Defendants-Appellees.
           ______________________

                       2012-1241
                 ______________________

    Appeal from the United States District Court for the
District of Minnesota in No. 09-CV-3335, Judge Donovan
W. Frank.
                 ______________________
PLAGER, Circuit Judge, Concurring.
    I join the opinion of Judge Reyna and his claim con-
struction conclusions. This case is yet another example—
and an extreme example—of problems with claim drafting
and their ensuing consequences. To resolve the question
of whether the Tredegar product infringed 3M’s patents,
the district court was called upon to construe some thirty
separate terms, which it did in a fifty-five page opinion.
We in turn are being asked to review a number of the
district court’s constructions. Since we treat claim con-
struction as a question of law, we have reserved to the
appellate courts the last word on words.
    Our panel manages to agree on all but one of the con-
tested constructions, affirming some and reversing some.
2       3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

But we disagree on one particularly convoluted claim
phrasing, unfortunately one that runs through many of
the claims.
     I appreciate that there are four different patents in-
volved, and that the particular technology for manufac-
turing the product is quite detailed, although the products
themselves are fairly basic—the material at issue is used
for example in diapers. Nevertheless, when claims are
larded with terms such as “substantially,” “preferential-
ly,” and “relatively,” and when it takes four judges and
some seventy pages of densely written opinions to find
meaning in these terms, there is considerable evidence of
a failure by the claim drafters to be clear and precise, and,
beyond that, of a shortcoming in the patent examination
process that permits claims to be so drafted.
    Sometimes such ambiguity is the result of sloppy
drafting, and sometimes it appears that claims are draft-
ed with a degree of indefiniteness so as to leave room to
later argue for a broad interpretation designed to capture
later-developed competition. The problem is exacerbated
when, as here, there is a conflicting or indeterminate
written description and prosecution history with regard to
the claim terms at issue. Claim construction then be-
comes a game of crystal ball gazing, not resolved until
this court’s gaze is announced.
    The particular claim construction issue that divides
the three appellate judges provides a perfect example of
the problem. The claim term, “continuous microtextured
skin layer,” truly is perplexing. Does “continuous” apply
to the microtexturing, the skin layer, or both? Does it
mean the microtexturing is everywhere (except perhaps
for manufacturing flaws), or can it cover only a part of the
skin layer as long as that part is continuous? Relying on
the Chicago Manual of Style, 3M argues that “continuous”
and “microtextured” are adjectives that separately modify
“skin layer,” and thus, the claim term does not require
that the microtexturing itself be continuous. According to
3M, if the applicant wanted “continuous” to modify “mi-
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION        3

crotextured,” the applicant would have used the adverb
“continuously.”
     3M makes an interesting argument to be sure. But
the argument creates its own grammatical problems. For
example, there is no comma between “continuous” and
“microtextured.” And the Chicago Manual of Style also
tells us that adjectives that separately modify a noun are
generally separated by a comma, unless of course the
second adjective is a unit with the noun being modified
(which would favor Tredegar’s construction). The Chicago
Manual of Style § 6.33 (16th ed. 2010). The applicant
seems to have understood this comma concept, and in fact
used it when referring in the written description to a
“continuous, deeply textured, microstructured surface.”
’034 patent, col.15 ll.2-3. But the nuances of comma
usage, like 3M’s adverb argument, seem to me a tenuous
foundation for an entire claim construction on which
substantial liabilities may rest. See United States v.
Palmer, 16 U.S. 610, 638, 4 L. Ed. 471 (1818) (noting that
“the use of the comma is exceedingly arbitrary and indefi-
nite”); United States v. Ron Pair Enterprises, Inc., 489
U.S. 235, 249, 109 S. Ct. 1026, 1035, 103 L. Ed. 2d 290
(1989) (characterizing a comma as a “capricious bit of
punctuation”) (internal quotation marks omitted).
    Much like the claim’s grammar, the written descrip-
tion provides little help deciphering the meaning of the
disputed term. Certainly, the ’034 patent has a lot of
disclosure: nearly 30 columns of it. The patent has 33
different examples, 16 tables, and 24 figures. The pa-
tent’s problem does not lie in the quantity of its disclo-
sure; it lies in the disclosure’s relevance to the language
used in the claims.
    The applicant knew or should have known that the
claim term “continuous microtextured skin layer” was
highly relevant to the patented technology. The appli-
4       3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

cant wrote the term nine times in the first eight claims.1
Strangely, however, the disclosure does not reflect this
relevance. “Continuous microtextured skin layer” does
not appear one single time in the written description. The
written description provides no discussion of “continuous
microtextured skin layer,” no definition. Language re-
sembling the claim term appears here and there, but
mutated versions of claim terms often confuse more than
they elucidate.
    While ultimately I have voted to join Judge Reyna for
the reasons I explain shortly, Judge O’Malley in her
dissent-in-part makes an argument for the opposite
construction based on the prosecution history. The argu-
ment is not without merit, although again, I do not find
the prosecution history a shining example of clarity.
    Cases like this—claim construction issues such as this
one—may well deserve application of a principle analo-
gous to the contract doctrine of contra proferentem. See
Williston on Contracts § 32:12 (4th ed.). When a term is
ambiguous, a crystal ball matter, the ambiguity should be
construed against the draftsman. (Or better yet, the
claim should simply be invalidated as indefinite, though
our court has not seen fit to go there as yet.)
    Without labeling it as such, we have already used this
principle to construe claims for compliance with 35 U.S.C.
§ 112. See Athletic Alternatives, Inc. v. Prince Mfg., Inc.,
73 F.3d 1573, 1581 (Fed. Cir. 1996) (“Where there is an
equal choice between a broader and a narrower meaning
of a claim, and there is an enabling disclosure that indi-
cates that the applicant is at least entitled to a claim
having the narrower meaning, we consider the notice
function of the claim to be best served by adopting the




    1  The term is included in claim 8, albeit with a ty-
pographical error in “continuous.”
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION         5

narrower meaning.”); see also A Theory of Claim Interpre-
tation, 14 Harv. J.L. & Tech. 1, 81 (2000).
     The contra proferentem principle would require the
applicant to draft clear claims, using simple, direct sen-
tences, 2 proper grammar, and definitions in the written
description where appropriate. It harmonizes with the
notice function of patent law. It would result in appli-
cants—and prospective patentees—investing more re-
sources on the front end, during drafting, and less
resources on the remedial end, during litigation. Better
drafting of patent applications can only improve the
efficiency of the patent system by clearly delineating a
patentee’s property rights, thereby reducing wasteful and
unnecessary litigation.
    Specifically in this case, when I gaze in my crystal
ball, I see, in addition to the verbal jousting, a district
judge who struggled at length to make sense of the
claims, and I see a patentee (more correctly a patent
applicant) who had the last clear chance—infringement is
after all a tort—to avoid this kind of unnecessary claim
construction game. 3 My crystal ball tells me to vote



   2    Since claim clarity is so critical to defining a pa-
tentee’s property rights, I puzzle why claim drafters are
expected to draft each claim as a tortuous, “wherein”-
laden, run-on sentence. Nothing could be more conducive
to less clarity. But this is a matter for the U.S. Patent
and Trademark Office to resolve; see Manual of Patent
Examination Procedure § 608.01(m) (stating that “each
claim must be the object of a sentence”).
   3   It will be interesting to observe in the years ahead
whether the new post-grant administrative review proce-
dures under the AIA result in clearer and more defined
terminology in claims. The recent surge in applications
seeking the newly-available review procedures before the
PTO suggests a significant opportunity is in the offing.
6      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

against the patentee’s construction of “continuous micro-
textured skin layer” and in favor of a competitor who
should not have the risk of guessing wrong about what a
claim term could possibly mean.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

3M INNOVATIVE PROPERTIES COMPANY AND 3M
                COMPANY,
            Plaintiffs-Appellants,

                            v.

TREDEGAR CORPORATION AND TREDEGAR FILM
       PRODUCTS CORPORATION,
            Defendants-Appellees.
           ______________________

                       2012-1241
                 ______________________

    Appeal from the United States District Court for the
District of Minnesota in No. 09-CV-3335, Judge Donovan
W. Frank.
                 ______________________


O’MALLEY, Circuit Judge, concurring in part and dissent-
ing in part.
    I agree with and join the majority’s well-reasoned rul-
ings on three of the four claim terms in dispute: “continu-
ous contact,” “preferential activation zone,” and “ribbon.”
I disagree, however, with its analysis and conclusion
regarding the fourth claim term, “continuous microtex-
tured skin layer.” I believe the district court erred in its
treatment of the term and its rejection of 3M Innovation
Properties Company and 3M Company’s (collectively,
“3M”) argument—that skin layers having regions with
and without microtexturing are within the plain meaning
of the term. To the extent the majority affirms these
2      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

errors, I dissent. Accordingly, I do not join Part II.B of
the majority opinion. I would instead construe the term
as follows.
                             I.
    Turning first to the claim language, I do not believe
that it excludes a skin layer where the extent of the
microtexturing is anything other than “continuous” over
the entire surface. The term “continuous microtextured
skin layer over substantially the entire laminate” appears
in claims 1, 2, 5, and 6 of U.S. Patent No. 5,691,034 (“the
’034 patent”). The pertinent portion of claim 1 reads:
    An elastomeric laminate consisting essentially of
    at least one elastomeric layer and at least one con-
    tinuous microtextured skin layer over substantially
    the entire laminate wherein . . .
’034 patent col. 28 ll. 40–43 (emphasis added).
    As a matter of grammar, the term is best interpreted
as a skin layer that is continuous, microtextured, and
extends over substantially the entire laminate. Under a
natural reading of term, i.e., its plain and ordinary mean-
ing, the word “continuous” modifies the term “microtex-
tured skin layer.”       This follows simply from the
grammatical structure of the phrase. “Continuous,” as an
adjective, modifies the noun “skin layer” (in the same way
the adjective “microtextured” does). If this word were
meant instead to describe the microtexturing, it would be
more natural to use the adverb form, “continuously,” since
adverbs modify adjectives. Any reader, including a person
of skill in the art, would thus understand the plain and
ordinary meaning of the phrase to require a continuous
“skin layer,” not continuous microtexturing. And the
plain and ordinary meaning is always our starting point
in a claim construction analysis. See Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (“We
have frequently stated that the words of a claim “are
generally given their ordinary and customary meaning.”).
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION          3

Because the word “continuous” does not modify the word
“microtextured,” I agree with 3M on this point.
    The question we must next ask is what does it mean
for the skin layer to be “microtextured?” If the word
“continuous” in the claim language does not define that
term, then what does?
    Since I find the claim language to impose no clear ex-
clusion of skin layers that contain intermittent areas of
microtexturing, I examine the written description for a
clear disavowal of such skin layers. While the written
description contains some language that may require
complete microtexturing, I do not believe these passages
meet the high burden necessary to limit the claim scope.
See Bell Atl. Network Servs., Inc. v. Covad Commc’ns
Grp., Inc., 262 F.3d 1258, 1268 (Fed. Cir. 2001) (“We have
previously held that, in redefining the meaning of particu-
lar claim terms away from the ordinary meaning, the
intrinsic evidence must clearly set forth or clearly rede-
fine a claim term so as to put one reasonably skilled in the
art on notice that the patentee intended to so redefine the
claim term. We have also stated that the specification
must exhibit an express intent to impart a novel meaning
to claim terms.”) (internal citations and quotation marks
omitted). Specifically, the written description states:
   Whether the laminate is prepared by coating, lam-
   ination, sequential extrusion, or a combination
   thereof, the laminate formed and its layers will
   preferably have substantially uniform thickness
   across the laminate. Preferably the layers are co-
   extensive across the width and length of the lami-
   nate.       With such a construction the
   microtexturing will be uniform over the elasto-
   meric laminate surface.
’034 patent col. 10 ll. 33–36 (emphasis added).
    By stating that the microtexturing is preferably “uni-
form” over the elastomeric laminate surface, the written
description does not clearly require microtexturing over
4       3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

the entire skin layer. First, this excerpt describes a
preferred embodiment, to which claims typically are not
limited. See Phillips, 415 F.3d at 1323 (“Although the
specification often describes very specific embodiments of
the invention, we have repeatedly warned against confin-
ing the claims to those embodiments.”). Second, it is
unclear that “uniform” means “complete” or “continuous,”
or that it refers to the amount of the skin layer that must
exhibit microtexturing. It indicates instead, I believe,
that the ridges in the skin layer that produce the micro-
texturing must have uniform dimensions, 1 regardless of




    1    These dimensions are discussed in further detail
later in the same section of the patent:
    FIG. 2 is a schematic diagram of the common di-
    mensions which are variable for uniaxially
    stretched and recovered laminates. The general
    texture is a series of regular repeating folds.
    These variables are the total height A-A’, the
    peak-to-peak distance B-B’ and the peak-to-valley
    distance C-C’. These variables were measured for
    a series of polyolefin/styrene-isoprene-styrene/
    polyolefin laminates. General ranges for A-A’, B-
    B’ and C-C’ were noted. For total height (A-A’),
    the range measured was from 0.79 to 32 mils (0.02
    to 0.81 mm). For peak-to-peak distance (B-B’), or
    the fold period, the measured range was from 0.79
    to 11.8 mils (0.025 to 0.30 mm). For peak-to-
    valley distance (C-C’), the measured range was
    from 0.04 to 19.7 mils (0.001 to 0.5 mm). These
    ranges are only exemplary of the surface charac-
    teristics obtainable by the practice of the present
    invention. Laminates of other compositions will
    demonstrate different microstructures and micro-
    structure dimensions. It is also possible to obtain
    dimensions outside the above ranges by suitable
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION          5

how far over the surface those ridges extend. This is not
to say that it was unreasonable for the majority or the
district court to find some useful guidance in this passage.
But, since it is at the least subject to varying interpreta-
tion, I believe the passage fails to meet the high burden
necessary to limit claim scope. See Bell Atl., 262 F.3d at
1268.
    Turning next to the prosecution history, while it does
clearly limit claim scope, it does not do so in the way the
district court believed. The ’034 patent was rejected for
obvious-type double patenting over U.S. Patent No.
5,344,691 (“the ’691 patent”). To overcome the rejection,
the applicants stated:
   Claim 1 of the ’691 patent essentially claims a
   multi-layer film laminate with “preferential acti-
   vation zones” and “non-preferential activation
   zones.” The multi-layer film laminate preferen-
   tially elongates in the preferential activation
   zones forming an elastomeric laminate only in
   these zones. The invention disclosed in the ’691
   patent is patentably distinct from that claimed in
   the instant application at least in that claim 38 et
   al. of the instant application do not teach or sug-
   gest how to provide a laminate having these pref-
   erential and non-preferential activation zones.
   Rather, the instant claims are limited to a lami-
   nate material which is elastomeric over substan-
   tially the entire laminate.
J.A. 1460–61 (emphasis added).



   selection of core/skin ratios, thicknesses, stretch
   ratios and layer compositions.
’034 patent col. 10 l. 62 – col. 11 l. 14 (emphasis added).
In fact, all of columns 11 and 12 of the ’034 patent de-
scribe the different characteristics the microtexturing can
have.
6      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

    The laminate is elastomeric where it is microtextured.
Therefore, this statement requires laminate material that
is microtextured over “substantially the entire laminate.”
But this statement does not require “continuous” or
“complete” “microtexturing.” The microtexturing must
extend “over substantially the entire laminate,” not over
all of it. Discontinuities in the microtexturing are still
within the scope of the claim term, so long as they do not
reduce the microtexturing below a “substantial” portion of
the laminate. This word of degree, “substantially,” was
sufficient to overcome the obviousness type double patent-
ing rejection. The claims require no more. What is “sub-
stantial” and whether an accused product qualifies as
such seems to me a question of fact for a jury to resolve.
See TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360,
1369–70 (Fed. Cir. 2002) (“Whether the accused device
contains an element corresponding to each claim limita-
tion or its equivalent is a question of fact.”); Crystal
Semiconductor Corp. v. TriTech Microelectronics Int’l,
Inc., 246 F.3d 1336, 1345 (Fed. Cir. 2001) (“Application of
the claim to the accused device is a question of fact.”).
    I ultimately believe the wording of the district court’s
construction was very close to the correct one. Much like
the trial court, I would construe the term as “a continuous
skin layer, with microtexturing that extends over sub-
stantially the entire surface area of the laminate.” I do
not agree, however, with the district court’s construction
to the extent it requires that the “microtexturing” be
“continuous” from start to finish.
                            II.
    In its claim construction opinion, the district court
construed the term “continuous microtextured skin layer
over substantially the entire laminate” as “substantially
the entire surface area of the laminate.” 3M Innovative
Prop. Co. v. Tredegar Co., No. 09-3335, 2011 WL 6004023,
at *24 (D. Minn. Nov. 30, 2011). On its face, the district
court’s construction seems to be one which requires micro-
texturing that extends over “substantially the entire
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION         7

surface area of the laminate,” a construction with which I
would agree.
    The district court, however, went on to reject 3M’s ar-
gument that “the term ‘continuous’ relates to the skin
layer but not the microtexturing and thus does not re-
quire continuous microtexturing.” Id. at *23. As dis-
cussed above, I disagree with this aspect of the district
court’s construction; I agree with 3M.
     The district court based this explanation of the scope
of its construction on a distinction it saw between the two
families of patents involved in this case—the “Kreuger
patents” (the ’034 patent and U.S. Patent No. 5,501,679
(“the ’679 patent”)) and the “Hanschen patents” (U.S.
Patent No. 5,468,428 and the ’691 patent”):
   While both the Hanschen and the Krueger patents
   relate to multi-layer laminates that are stretched
   beyond the skin layer’s deformation [limit] to be-
   come elastic, the Hanschen and Krueger Patents
   differ in the following way: in the Hanschen Pa-
   tents, only certain regions of the laminate are
   stretched beyond the deformation limit (and
   therefore the laminate has regions both with and
   without a microtextured surface); and the Krueger
   Patents do not teach a laminate with the different
   regions or zones (preferential activation zones
   that are stretched to have a microtextured surface
   and non-preferential zones that do not have a mi-
   crotextured surface). In addition, the ’034 Patent
   teaches that microstructuring is continuous.
Id. Based on this distinction, the district court held that
the microtexturing must be “continuous,” or, that is, the
claims of the ’034 patent do not cover skin layers with
regions that are not microtextured.
    But, the distinction between the two families of pa-
tents does not mandate this conclusion. I agree that the
Hanschen patents disclose laminates with regions that
are microtextured and regions that are not. But there is
8      3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION

no basis to view the two families of patents as mutually
exclusive. The Kreguer patents, in my opinion, are not
limited to laminates that are fully microtextured. And
the earliest filed Kreuger patent (the ’679 patent) and
Hanschen patent (the ’691 patent) share the same filing
date, making it conceivable that the Kreguer family is a
broader one, covering various subspecies (i.e., fully-
microtextured and partially-microtextured laminates),
while the Hanschen family is drawn only to one of those
subspecies (partially microtextured laminates).
                            III.
    Turning next to the majority’s analysis, I do agree
with some of it, in particular, the statement that “[c]lose
examination of the intrinsic and extrinsic references
supports the middle path identified by the district court
in which a skin layer can have non-microtextured areas,
but the microtexturing encompasses ‘substantially the
entire surface area of the laminate.’” Majority Op. at 19–
20. This seems to fully align with my conclusion. If the
majority reached this holding through the analysis I lay
out above, I happily would join.
    But the majority determines that “the written de-
scription is unambiguous in teaching that the microtex-
turing is continuous.” Id. at 20. As discussed above, I
disagree. I believe the microtexturing need not be “con-
tinuous;” it only needs to extend over substantially the
entire laminate.
    The majority also looks for a potential narrowing of
claim scope in the claim language or written description.
Specifically, the majority asks whether the specification
limits the microtexturing to “a single region.” See id.
(“The written description is unambiguous in teaching that
the microtexturing is continuous, but not restricted to a
single zone or region of the skin layer.”) (emphasis added);
id. at 21 (“By contrast, there is no discussion in the writ-
ten description that minimizes the microtexturing to 3M’s
suggested single region of the skin layer.”) (emphasis
3M INNOVATIVE PROPERTIES v. TREDEGAR CORPORATION          9

added); id. at 21 (“We affirm the district court’s interpre-
tation of ‘continuous microtextured skin layer,’ and as
previously clarified, to be ‘continuous’ the microtexturing
is ‘substantially uniform’ as opposed to limited to a single
region or zone.”) (second emphasis added). This reasoning
turns the disclaimer analysis on its head. The relevant
inquiry is not whether the microtexturing is limited to a
single region, but whether the term “continuous microtex-
tured skin layer” was narrowed to exclude partially-
microtextured skin layers, such as those with microtex-
turing in only one region.
    Perhaps the majority was led astray by 3M’s proposed
construction: “one unified skin layer over substantially
the entire laminate having at least one microtextured
region.” But this construction does not limit the microtex-
turing to a single region. Instead, it merely requires “at
least” one microtextured region—thus including within its
scope skin layers with some regions having no microtex-
turing, so long as at least one region is microtextured.
Under this construction, the skin layer must be at least
partially-microtextured, a concept with which I agree. I
do, however, ultimately reject 3M’s construction to the
extent it reads on skin layers with microtexturing that
does not extend over substantially the entire laminate.
                            IV.
    To conclude, I believe the term “continuous microtex-
tured skin layer over substantially the entire laminate”
should be construed as “a continuous skin layer, with
microtexturing that extends over substantially the entire
surface area of the laminate,” effectively the same word-
ing employed by the district court. I disagree, however,
with the majority and the district court to the extent they
believe this construction requires “continuous microtex-
turing” over the entire skin layer. No such requirement is
mandated by the patents-in-suit. I dissent from the
portions of the majority opinion so holding and would
reverse the district court’s similar ruling.
