     In the United States Court of Federal Claims
                                         No. 13-575C
                                      Filed: June 4, 2015

*************************************
AAR MANUFACTURING, INC., and        *              Apparatus Claims;
WEATHERHAVEN RESOURCES,             *              Claim Construction;
LTD.,                               *              Corresponding Structure;
                                    *              Function;
      Plaintiffs,                   *              Extrinsic Evidence;
                                    *              Intrinsic Evidence;
v.                                  *              Means-Plus-Function Limitation,
                                    *                 35 U.S.C. § 112, ¶ 6;
THE UNITED STATES,                  *              28 U.S.C. § 1498(a);
                                    *              35 U.S.C. § 100(d);
      Defendant.                    *              35 U.S.C. § 281;
*************************************              41 U.S.C. § 114(b).

      MEMORANDUM OPINION AND ORDER CONSTRUING CERTAIN CLAIMS OF
                  UNITED STATES PATENT NO. 5,761,854.

BRADEN, Judge.

       To facilitate review of this Memorandum Opinion and Order construing certain claims of
United States Patent No. 5,761,854, the court has provided the following outline:

I.      THE PATENT AT ISSUE.

II.     PROCEDURAL HISTORY.

III.    DISCUSSION.

        A.    Jurisdiction.

        B.    Standing.

        C.    Controlling Precedent Concerning Construction Of Patent Claims.

              1.     The Federal Trial Judge Should First Examine Intrinsic Evidence.

                     a.       The Person Of Ordinary Skill In The Art.

                     b.       The Specification.

                     c.       The Prosecution History.
           2.     The Federal Trial Judge May Examine Extrinsic Evidence, But Only
                  In Limited Circumstances.

IV.   THE COURT’S CONSTRUCTION                   OF    CERTAIN     PATENT      CLAIMS
      REQUESTED BY THE PARTIES.

      A.   United States Patent No. 5,761,854.

           1.     The Independent Claims.

                  a.     Claim 1.

                  b.     Claim 16.

           2.     The Dependent Claims.

                  a.     Claim 2.

                  b.     Claim 3.

                  c.     Claim 10.

           3.     Construction Of The Disputed Terms.

                  a.     “Hollow.”

                  b.     “Container.”

                  c.     “Ends.”

                  d.     “External dimensions.”

                  e.     “Corner fitting locations.”

                  f.     “An opening is formed in said vertical side circumscribed
                         by edges of said vertical side.”

                  g.      “An opening is formed in said vertical              side
                         circumscribed by edges of said container.”

                  h.     “Levelling means.”

                  i.      “Means adapted to support said pivoting wall portion for
                         releasably maintaining” and “means for releasably
                         maintaining.”



                                          2
V.     CONCLUSION.

                           COURT APPENDIX:
       THE TERMS OF CERTAIN PATENT CLAIMS AGREED BY THE PARTIES

                                             * * *

I.     THE PATENT AT ISSUE.1

       On June 9, 1998, a patent on a “Collapsible Portable Containerized Shelter” was issued as
U.S. Patent No. 5,761,854 (“the ’854 patent”). Compl. ¶ 7. The ’854 patent was assigned to
Weatherhaven Resources, Ltd. (“Weatherhaven”). Compl. ¶ 7. AAR Manufacturing, Inc.
(“AAR”) is an exclusive licensee of the ’854 patent in the United States. Compl. ¶ 8.

II.    PROCEDURAL HISTORY.

        On August 13, 2013, AAR and Weatherhaven (collectively, “Plaintiffs”) filed a Complaint
in the United States Court of Federal Claims, alleging that the United States (“the Government”)
infringed the ’854 patent. On January 10, 2014, the Government filed an Answer.

         On May 20, 2014, Plaintiffs filed an Opening Claim Construction Brief (“Pl. Br.”). On
June 3, 2014, the Government filed a Response. On June 12, 2014, the Government filed an
Unopposed Motion To Amend/Correct its Response (“Gov’t Resp.”) that the court granted that
same day. On June 17, 2014, Plaintiffs filed a Reply (“Pl. Reply”). That same day, Plaintiffs also
filed a Joint Submission Of Claim Terms And Constructions.

       On July 10, 2014, the Government filed an Unopposed Motion For Protective Order that
the court granted on July 14, 2014. On July 16, 2014, Plaintiffs filed a Revised Joint Submission
Of Claim Terms And Constructions.

       On July 24, 2014, Plaintiffs filed a Supplemental Brief On The Law Of Double Inclusion
In Claim Construction. On August 4, 2014, the Government filed a Supplemental Brief On The
Law Of Double Inclusion In Claim Construction.

III.   DISCUSSION.

       A.      Jurisdiction.

       The United States Court of Federal Claims has jurisdiction to adjudicate claims that allege
“an invention described in and covered by a patent of the United States is used or manufactured
by or for the United States without license of the owner thereof or lawful right to use or


       1
         The facts cited and discussed herein were derived from exhibits admitted by the court as
relevant evidence for the purposes of claim construction. See Plaintiffs’ August 13, 2013
Complaint; Plaintiffs’ May 20, 2014 Claim Construction Exhibits A–I; the Government’s June 3,
2014 Response Exhibits 1–2; and Plaintiffs’ June 17, 2014 Reply Exhibits A–B.
                                                3
manufacture the same . . . [seeking] recovery of . . . reasonable and entire compensation for such
use and manufacture.” 28 U.S.C. § 1498(a).

        The August 13, 2013 Complaint properly invokes the court’s jurisdiction, under 28 U.S.C.
§ 1498(a), authorizing the United States Court of Federal Claims to adjudicate claims of patent
infringement against the Government and award monetary damages, where appropriate.

        B.      Standing.

        Federal trial courts have been advised to “decide standing questions at the outset of a case.
That order of decision (first jurisdiction then the merits) helps better to restrict the use of the federal
courts to those adversarial disputes that Article III defines as the federal judiciary’s business.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 111 (1998) (Breyer, J., concurring). The party
invoking federal jurisdiction has the burden of proof to satisfy the constitutional requirements of
Article III standing. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (holding that the burden
is on the party seeking to exercise jurisdiction to clearly allege facts sufficient to establish
jurisdiction).

        “A patentee shall have remedy by civil action for infringement of his patent.” 35
U.S.C. § 281; see also 35 U.S.C. § 100(d) (“The word ‘patentee’ includes not only the patentee to
whom the patent was issued but also the successors in title to the patentee.”); Paradise Creations,
Inc. v. UV Sales, Inc., 315 F.3d 1304, 1308 (Fed. Cir. 2003) (“[T]his court has determined that in
order to assert standing for patent infringement, the plaintiff must demonstrate that it held
enforceable title to the patent at the inception of the lawsuit.”) (emphasis in original). The standard
set forth by the United States Supreme Court over a century ago in Waterman v. MacKenzie, 138
U.S. 252 (1891) still governs:

        There can be no doubt that he is “the party interested, either as patentee, assignee,
        or grantee,” and as such entitled to maintain an action at law to recover damages
        for an infringement; and it cannot have been the intention of [C]ongress that a suit
        in equity against an infringer to obtain an injunction and an account of profits, in
        which the court is authorized to award damages, when necessary to fully
        compensate the plaintiff, and has the same power to treble the damages as in an
        action at law, should not be brought by the same person.

Id. at 260–61 (1891) (internal citations omitted).

        The August 13, 2013 Complaint alleges that: 1) the ’854 patent was issued by assignment
to Weatherhaven; 2) AAR has an exclusive license in the United States under the ’854 patent and
has the right to enforce it; 3) Guild Associates, Inc. (“Guild”) has been manufacturing Collapsible
Portable Containerized Shelters for the United States military with its authorization; 4) Guild’s
shelters, such as its Mobile Integrated Remains Collection System (“MIRCS”), embody the
inventions covered by the ’854 patent; and 5) Guild does not have a license from Weatherhaven
or a lawful right to practice the inventions covered by the ’854 patent.




                                                    4
       These factual allegations state a claim that is plausible on its face and alleges more than
the mere possibility of potential liability. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A]
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”). Thus, Plaintiffs have standing.

       C.      Controlling Precedent Concerning Construction Of Patent Claims.

        In Markman v. Westview Instruments, Inc. (“Markman III”), 517 U.S. 370 (1996), the
United States Supreme Court unanimously affirmed the en banc decision of the United States
Court of Appeals for the Federal Circuit in Markman v. Westview Instruments, Inc. (“Markman
II”), 52 F.3d 967 (Fed. Cir. 1995) (en banc), holding that the meaning and scope of a patent’s
claims are issues of law to be determined by the federal trial judge. 517 U.S. at 978–79. The
significance of Markman III, however, was the United States Supreme Court’s expressed
deference to the appellate court’s analysis for conducting claim construction. See Markman III,
517 U.S. at 390 (“It was just for the sake of such desirable uniformity that Congress created the
[United States] Court of Appeals for the Federal Circuit as an exclusive appellate court for patent
cases, H.R. Rep. No. 97–312, at 20–23 (1981), observing that increased uniformity would
‘strengthen the United States patent system in such a way as to foster technological growth and
industrial innovation.’ Id. at 20.”). The court now turns to that analysis.

               1.      The Federal Trial Judge Should First Examine Intrinsic Evidence.

         The United States Court of Appeals for the Federal Circuit has instructed federal trial
judges first to examine “intrinsic evidence,” because it is the “most significant source of the legally
operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic Inc., 90 F.3d
1576, 1582 (Fed. Cir. 1996). Intrinsic evidence is the “claim language, the written description,
and, if introduced, the prosecution history.” Phonometrics, Inc. v. N. Telecom Inc., 133 F.3d 1459,
1464 (Fed. Cir. 1998). In conducting this examination, the trial judge must determine, as a
threshold matter, whether there is ambiguity in any claim term requiring construction. See
Vitronics, 90 F.3d at 1582 (directing the trial judge to “look to the words of the claims themselves,
both asserted and nonasserted, to define the scope of the patented invention”).

                       a.      The Person Of Ordinary Skill In The Art.

        The federal trial judge is required to examine patent claim terms and phrases “through the
viewing glass of a person skilled in the art.” Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334
F.3d 1294, 1298 (Fed. Cir. 2003); see also Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir.
2005) (en banc) (“The inquiry into how a person of ordinary skill in the art understands a claim
term provides an objective baseline from which to begin claim construction.”); see also
Hockerson-Halberstadt, Inc. v. Avia Grp. Int’l, Inc., 222 F.3d 951, 955 (Fed. Cir. 2000) (holding
that the court gives claim terms “their ordinary and accustomed meaning as understood by one of
ordinary skill in the art.”). The parties agree that a person of ordinary skill in the art is someone
with working knowledge of the intermodal shipping industry. 6/24/14 TR 18–19, 38. Therefore,
the court will examine the patent claim terms as someone with working knowledge of the
intermodal shipping industry.



                                                  5
                       b.      The Specification.

         As a matter of law, the specification is the “written description of the invention.” 35 U.S.C.
§ 112, ¶ 1. For this reason, claims must “be read in view of the specification, of which they are a
part.” Phillips, 415 F.3d at 1315 (internal citations omitted). The specification is “always highly
relevant to the claim construction analysis. Usually, it is the single best guide to the meaning of
the disputed term.” Id. (internal citations omitted). The specification is accorded deference in
claim construction, because it is the patentee’s statement to the public describing the invention.
See Honeywell Int’l, Inc. v. ITT Indus., Inc., 452 F.3d 1312, 1318 (Fed. Cir. 2006) (“[T]he public
is entitled to take the patentee at his word[.]”).

        The specification is particularly important in two circumstances. The first is where the
specification includes a “special definition given to a claim term by the patentee that differs from
the meaning it would otherwise possess.” Phillips, 415 F.3d at 1316; see also Edwards
Lifesciences LLC v. Cook, Inc., 582 F.3d 1322, 1329 (Fed. Cir. 2009) (stating where two terms are
used interchangeably, it “is akin to a definition equating the two”). Specifically,

       “a patentee can act as his own lexicographer to specifically define terms of a claim
       contrary to their ordinary meaning”[;] the written description in such a case must
       clearly redefine a claim term “so as to put a reasonable competitor or one reasonably
       skilled in the art on notice that the patentee intended to so redefine that claim term.”

Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1307 (Fed. Cir. 2000)
(quoting Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357 (Fed. Cir. 1999)); see
also Vitronics, 90 F.3d at 1582 (holding that, in ascertaining the scope of the patent, deference
should be afforded claims as defined by their “customary meaning,” with the caveat that the law
affords patentees the right to serve as “lexicographers,” if a special or unique definition is clearly
stated in the specifications or prosecution history).

        The second circumstance is where the specification “may reveal an internal disclaimer, or
disavowal, of claim scope by the inventor.” Phillips, 415 F.3d at 1316; see also Edwards
Lifesciences, 582 F.3d at 1329–30 (holding that where a specification uses a term only in a specific
context, that term should not be construed to have a broader scope). The inventor’s intent with
respect to the claims “must be clear” to overcome their customary meaning. Voda v. Cordis Corp.,
536 F.3d 1311, 1320 (Fed. Cir. 2008) (internal citations omitted).

        Where the claim language is ambiguous, the “specification, including the inventors’
statutorily-required written description of the invention[] is the primary source for determining
claim meaning.” Astrazeneca AB v. Mutual Pharm. Co., 384 F.3d 1333, 1336 (Fed. Cir. 2004);
see also id. at 1337 (“Most courts have simply stated that the specification is to be used to explain
the claims; . . . the patent is an integrated document, with the claims ‘pointing out and distinctly
claiming,’ 35 U.S.C. § 112, the invention described in the rest of the specification and the goal of
claim construction is to determine what an ordinary artisan would deem the invention claimed by
the patent, taking the claims together with the rest of the specification.”) (internal quotation marks
and citations omitted). Of course, the utility of the specification still depends on whether the



                                                  6
“written description of the invention [is] . . . clear and complete enough to enable those of ordinary
skill in the art to make and use it.” Vitronics, 90 F.3d at 1582.

         Three additional rules of construction must be considered. First, federal trial judges have
been advised not to construe a claim to exclude the preferred and only embodiment disclosed in a
specification, because “such an interpretation is rarely, if ever, correct.” Vitronics, 90 F.3d at
1583. Second, when more than one embodiment is present, as a matter of law, the court “do[es]
not interpret claim terms in a way that excludes disclosed examples in the specification.” Verizon
Servs. Corp. v. Vonage Holding Corp., 503 F.3d 1295, 1305 (Fed. Cir. 2007); see also Phillips,
415 F.3d at 1323 (recognizing that the embodiments in a patent often are examples meant to teach
a person of ordinary skill in the art how to make and use the invention, but should not be construed
to limit the invention only to a specific embodiment). But, where an interpretation of a term
contradictory to its ordinary meaning would be required to cover all of the embodiments, and the
applicant was not acting as his own lexicographer, such language can be interpreted to claim less
than all of the embodiments. See Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379,
1383 (Fed. Cir. 2008) (holding that, even if “totally” would have covered all embodiments,
“partially” could not include “totally,” unless the applicant had acted as his own lexicographer);
see also Baran v. Med. Device Tech., Inc., 616 F.3d 1309, 1315–16 (Fed. Cir. 2010) (holding that,
if a term is used in the specification to differentiate two different embodiments and it is used in the
claims to describe the invention, it is proper to construe the claims to cover only one of the two
embodiments, because the differentiation concedes coverage of one of the embodiments).

         Third, although the specification is important in discerning the meaning of the claims,
federal trial judges must not “import” or graft limitations from the specification into the claim. See
Am. Piledriving Equip., Inc. v. Geoquip, Inc., 637 F.3d 1324, 1331 (Fed. Cir. 2011) (reaffirming
that “the role of a [federal trial judge] in construing claims is not to redefine claim recitations or
to read limitations into the claim to obviate factual questions of infringement and validity but rather
to give meaning to the limitations actually contained in the claims, informed by the written
description, the prosecution history[,] if in evidence, and any relevant extrinsic evidence”); see
also Kara Tech. Inc. v. Stamps.com Inc., 582 F.3d 1341, 1348 (Fed. Cir. 2009) (“The patentee is
entitled to the full scope of his claims, and we will not limit him to his preferred embodiment or
import a limitation from the specification into the claims.”); SciMed Life Sys. Inc. v. Advanced
Cardiovascular Sys. Inc., 242 F.3d 1337, 1340 (Fed. Cir. 2001) (reading a limitation from the
specification into a claim is “one of the cardinal sins of patent law”); Intervet Am., Inc. v. Kee-Vet
Labs., Inc., 887 F.2d 1050, 1053 (Fed. Cir. 1989) (holding that “[federal trial judges] cannot alter
what the patentee has chosen to claim as his invention, that limitations appearing in the
specification will not be read into claims, and that interpreting what is meant by a word in a claim
is not to be confused with adding an extraneous limitation appearing in the specification, which is
improper”) (internal quotation marks omitted).

                       c.      The Prosecution History.

       In addition, “the prosecution history can often inform the meaning of the claim language
by demonstrating how the inventor understood the invention and whether the inventor limited the
invention in the course of prosecution, making the claim scope narrower than it would otherwise
be.” Phillips, 415 F.3d at 1317; see also Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335,

                                                  7
1344 (Fed. Cir. 1998) (observing that the prosecution history “may contain contemporaneous
exchanges between the patent applicant and the [United States Patent and Trademark Office] about
what the claims mean”).

        Under certain circumstances, the prosecution history can even trump the specification. See
Graham v. John Deere Co., 383 U.S. 1, 22 (1966) (holding that claims narrowed to obtain issuance
over prior art during prosecution may not subsequently be interpreted by the specification to cover
what was disclaimed before the United States Patent and Trademark Office); see also Festo
Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 733–34 (2002) (“When . . . the
patentee originally claimed the subject matter alleged to infringe but then narrowed the claim in
response to a rejection, he may not argue that the surrendered territory compromised unforeseen
subject matter that should be deemed equivalent to the literal claims of the issued patent.”).
Therefore, prosecution history may preclude “a patentee from regaining, through litigation,
coverage of subject matter relinquished during prosecution of the application of the patent.” Wang
Labs v. Mitsubishi Elecs. Am., Inc., 103 F.3d 1571, 1577–78 (Fed. Cir. 1997), cert. denied, 522
U.S. 818 (1997). In sum, regardless of whether an examiner agreed with an applicant’s statements
during prosecution, any argument made “may lead to a disavowal of the claim scope[.]”
Seachange Int’l, Inc. v. C-Cor Inc., 413 F.3d 1361, 1374 (Fed. Cir. 2005); see also Microsoft
Corp. v. Multi-Tech Sys., 357 F.3d 1340, 1350 (Fed. Cir. 2004) (same).

               2.      The Federal Trial Judge May Examine Extrinsic Evidence, But Only
                       In Limited Circumstances.

        As the United States Supreme Court recently acknowledged, “In some cases . . . the [federal
trial] court will need to look beyond the patent’s intrinsic evidence and to consult extrinsic
evidence in order to understand, for example, the background science or the meaning of a term in
the relevant art during the relevant time period.” Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S.
Ct. 831, 841 (2015). But, if the court’s consideration of the intrinsic evidence resolves any
ambiguity about the meaning of a patent claim, as a matter of law, it is improper for the judge to
rely on extrinsic evidence, i.e., evidence outside of the patent record, such as expert and inventor
testimony, dictionaries, learned treatises, and articles. See Vitronics, 90 F.3d at 1584 (allowing
extrinsic evidence “to help the court come to the proper understanding of the claims,” but not to
contradict intrinsic evidence or vary the scope of the claims). The United States Court of Appeals
for the Federal Circuit, however, clarified in Key Pharm. v. Hercon Lab. Corp, 161 F.3d 709 (Fed.
Cir. 1998):

       This court has made strong cautionary statements on the proper use of extrinsic
       evidence, which might be misread by some members of the bar as restricting a trial
       court’s ability to hear such evidence. We intend no such thing. To the contrary,
       trial courts generally can hear expert testimony for background and education on
       the technology implicated by the presented claim construction issues, and trial
       courts have broad discretion in this regard.

       Furthermore, a trial court is quite correct in hearing and relying on expert testimony
       on an ultimate claim construction question in cases in which the intrinsic evidence



                                                 8
       (i.e., the patent and its file history—the “patent record”) does not answer the
       question.

       What is disapproved of is an attempt to use extrinsic evidence to arrive at a claim
       construction that is clearly at odds with the claim construction mandated by the
       claims themselves, the written description, and the prosecution history, in other
       words, with the written record of the patent.

Id. at 716 (citations omitted) (emphasis in original); see also Zodiac Pool Care, Inc. v. Hoffinger
Indus., Inc., 206 F.3d 1408, 1414 (Fed. Cir. 2000) (cautioning federal trial judges “to turn[] to
extrinsic evidence only when the intrinsic evidence is insufficient to establish the clear meaning
of the asserted claim”).

IV.    THE COURT’S CONSTRUCTION                       OF    CERTAIN        PATENT       CLAIMS
       REQUESTED BY THE PARTIES.

       A.      United States Patent No. 5,761,854.

        The parties have requested that the court construe certain terms in claims 1, 2, 3, 10, and
16 of the ’854 patent. All of these asserted claims are apparatus claims.2 Claims 1 and 16 are
independent claims,3 whereas claims 2, 3, and 10 depend on claim 1.4 ’854 patent, col. 5, ll. 14–
54, col. 6, ll. 9–10, 27–59.

               1.      The Independent Claims.

                       a.     Claim 1.

       Claim 1 of the ’854 patent describes:

       A portable, collapsible shelter comprising:

            a) a rigid, hollow container having opposed ends, opposed vertical sides, and
               a horizontal top and bottom, said ends, sides, top and bottom being secured
               to form a rigid container having the external dimensions and corner fitting
               locations which satisfy the standards for ISO Series 1 freight containers;


       2
         “Apparatus” claims “cover what a device is, not what a device does.” Hewlett-Packard
Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990) (emphasis in original).
       3
         An “independent claim” is “a claim that does not refer back to or depend on another
claim.” U.S. PATENT & TRADEMARK OFFICE, Glossary, http://www.uspto.gov/main/glossary/
index.html (last viewed May 18, 2015).
       4
         A “dependent claim” incorporates by reference a previous claim and includes all of the
limitations of the claims on which they depend. See U.S. PATENT & TRADEMARK OFFICE,
Glossary.
                                                9
            b) at least one of said vertical sides comprising a pivoting wall portion
               hingedly connected to said vertical side along the lower edge of said
               pivoting wall portion to pivot between a closed vertical position and an open
               horizontal position, said pivoting wall portion having an outer edge, and
               whereby an opening is formed in said vertical side circumscribed by edges
               of said vertical side when said pivoting wall portion is in the horizontal
               position;

            c) means associated with said container and with said pivoting wall portion for
               releasably securing said pivoting wall portion in said vertical position;

            d) means adapted to support said pivoting wall portion for releasably
               maintaining said pivoting wall portion in said horizontal position;

            e) a flexible cover secured to said outer edge of said pivoting wall portion and
               secured to said container around said opening formed when said pivoting
               wall portion is in said lowered horizontal position, and adapted to be
               extended above said pivoting wall portion while said pivoting wall portion
               is in said lowered horizontal position; and

            f) means extending outwardly from said vertical side and above said pivoting
               wall portion when said pivoting wall portion is in said lowered horizontal
               position for supporting said fabric cover above said pivoting wall portion
               while said pivoting wall portion is in said lowered horizontal position.

’854 patent, col. 5, ll. 14–49.

                        b.        Claim 16.

        Claim 16 of the ’854 patent describes:

        A portable, collapsible shelter comprising:

            a) a rigid, hollow container having opposed ends, opposed vertical sides, and
               a horizontal top and bottom, said ends, sides, top and bottom being secured
               to form a rigid container having the external dimensions and corner fitting
               locations which satisfy the standards for ISO Series 1 freight containers;

            b) at least one of said vertical sides comprising a pivoting wall portion
               hingedly connected to said vertical side along the lower edge of said
               pivoting wall portion to pivot between a closed vertical position and an open
               horizontal position, said pivoting wall portion having an outer edge, and
               whereby an opening is formed in said vertical side circumscribed by edges
               of said container when said pivoting wall portion is in the horizontal
               position;



                                                 10
            c) means associated with said container and with said pivoting wall portion for
               releasably securing said pivoting wall portion in said vertical position;

            d) means adapted to support said pivoting wall portion for releasably
               maintaining said pivoting wall portion in said horizontal position;

            e) a flexible fabric cover secured to said outer edge of said pivoting wall
               portion and secured to said container around said opening formed when said
               pivoting wall portion is in said lowered horizontal position, and adapted to
               be supported above said pivoting wall portion when said pivoting wall
               portion is in said lowered horizontal position, thereby forming an enclosed
               space above said pivoting wall portion open to the interior of said container
               when said pivoting wall portion is lowered to the horizontal position.

’854 patent, col. 6, ll. 28–59.

                2.      The Dependent Claims.

                        a.        Claim 2.

        Claim 2 of the ’854 patent describes:

        The shelter of claim 1 wherein said means for releasably maintaining said pivoting wall
        portion in said horizontal position comprises levelling means.

’854 patent, col. 5, ll. 50–52.

                        b.        Claim 3.

        Claim 3 of the ’854 patent describes:

        The shelter of claim 2 wherein said levelling means comprises a jack.

’854 patent, col. 5, ll. 53–54.

                        c.        Claim 10.

        Claim 10 of the ’854 patent describes:

        The shelter of claim 2 wherein said levelling means comprises wood blocks.

’854 patent, col. 6, ll. 9–10.




                3.      Construction Of The Disputed Terms.

                                                 11
                       a.      “Hollow.”

        The parties propose the following competing constructions of the term “hollow” for the
court’s consideration:

                                          ’854 Patent
  Term(s)                 Plaintiffs’ Proposed                  The Government’s Proposed
                          Construction                          Construction
  “hollow”                No construction                       “empty, having no permanent
  (Claims 1(a) and 16(a)) necessary (plain and                  structure within the container”
                          ordinary meaning)

                            In the alternative, “having
                            a hole, cavity, or empty
                            space within”

        The parties disagree as to whether the term “hollow” should be construed in light of its
plain and ordinary meaning or whether a “hollow” container may have inner permanent structures.

                               i)      Plaintiffs’ Proposed Construction.

        Plaintiffs propose that the term “hollow” does not require construction, because “[n]othing
in the specification or prosecution history supports a finding that the term ‘hollow’ should be
construed outside of the ordinary and plain meaning.” Pl. Br. at 12. Both the figures and the
specification show a claimed structure with a space within. Pl. Br. at 12–13. The prosecution
history, however, does not define the term. Pl. Br. at 13.

        In the alternative, Plaintiffs propose that “hollow” be construed as “having a hole, cavity,
or empty space within,” because that is how one of ordinary skill in the art would understand that
term. Pl. Br. at 13. The Government impermissibly adds a limitation of having “no permanent
structure” to the claim, even though that limitation is not stated in the specification or the
prosecution history. Pl. Br. at 13–14. Plaintiffs add that WEBSTER’S NINTH NEW COLLEGIATE
DICTIONARY (1985 ed.) (“WEBSTER’S”) at 576, contemporaneous with the filing date of the ’854
patent, defines “hollow” (adj.) as “having a cavity within.” Pl. Br. at 13. This definition also states
that “hollow” is derived from “hole” (n.), which is defined as “an area where something is missing”
and “a cavity, depression, or hollowed-out place.” Pl. Br. at 13 (citing WEBSTER’S at 575).

                               ii)     The Government’s Proposed Construction.

       The Government responds that Plaintiffs’ proposed construction of “hollow” “is
ambiguous and . . . . would render the term ‘hollow’ meaningless, since any structure that had any
cavity within it . . . would still be hollow.” Gov’t Resp. at 18. Instead, the court should construe
“hollow” to mean “empty, having no permanent structure within the container” for four reasons.
Gov’t Resp. at 16.


                                                  12
         First, the invention claimed in the ’854 patent was designed to solve a problem in the prior
art of “requir[ing] a specialized crew” to combine multiple heavy, prefabricated shelter structures
to attain the desired amount of space. Gov’t Resp. at 17. Some of these prior art shelter structures
were divided internally into permanent, prefabricated cells. Gov’t Resp. at 17 (citing U.S. Patent
No. 4,599,829 (July 15, 1986) (“the ’829 patent”)). Any shelter with permanent internal structures
cannot be covered by the ’854 patent, because otherwise, the claimed invention would “exacerbate
the problems” that it was designed to solve. Gov’t Resp. at 17–18 (citing LizardTech, Inc. v. Earth
Res. Mapping, Inc. 424 F.3d 1336, 1343–44 (Fed. Cir. 2005) (“[I]t would be peculiar for the claims
to cover [a] prior art [feature] that suffers from precisely the same problems that the specification
focuses on solving.”)).

        Second, construing “hollow” to permit the container to have any permanent structures
within it would “run counter to [the] purpose [of the invention].” Gov’t Resp. at 18. The preamble
to each independent claim also identifies the “intended use of the claimed subject matter [to be] a
portable, collapsible shelter.” Gov’t Resp. at 18. And, the specification states that the claimed
container must be capable of being “expanded . . . to increase the available floor space.” Gov’t
Resp. at 18. A “permanent structure” within the shelter “would physically interfere with and limit
the intended uses of the shelter.” Gov’t Resp. at 18.

         Third, Plaintiffs’ proposed construction of “hollow” is “ambiguous5 and unsupported by
the specification,” because it would permit “any structure that had any cavity within it, even if it
were packed with permanent fixtures,” to be hollow. Gov’t Resp. at 18. Plaintiffs’ construction
fails to identify what item must have a “hole, cavity, or empty space” and instead argues that to be
“hollow,” the “the entire space within the container must consist of an empty cavity.” Gov’t Resp.
at 19 (emphasis in original). The Government concedes that the specification allows for
“plumbing, mechanical and electrical systems [that] can be pre-installed in the floor or walls or
elsewhere in the container.” ’854 patent, col. 3, ll. 10–12. But, these subsystems do not defeat its
proposed construction of “hollow,” because “the container [would] still [be] essentially empty with
some minor wiring or mechanical systems.” Gov’t Resp. at 19.

         Fourth, the specification uses the term “hollow” to describe the claimed container’s side
walls as having “hollow rectangular steel panels filled with rigid insulation foam.” ’854 patent,
col. 5, ll. 6–7. As such, the panel must be “empty, having no permanent structure within,” so that
it can be filled with insulation foam. Gov’t Resp. at 20. Therefore, “hollow” means “empty,
having no permanent structure within the container,” because the insulation would not work
properly if it could not “fill the entirety of the space between the steel panels.” Gov’t Resp. at 20.




       5
         The Government appears to argue that adopting Plaintiffs’ construction would leave the
term “hollow” indefinite in violation of 35 U.S.C. § 112. See Nautilus, Inc. v. Biosig Instruments,
Inc., 134 S. Ct. 2120, 2124 (2014) (holding that claims are indefinite if they “fail to inform, with
reasonable certainty, those skilled in the art about the scope of the invention”). The court does not
need to address the Government’s indefiniteness argument, because the term “hollow” can be
construed “with reasonable certainty.” Id.
                                                 13
                                iii)    The Court’s Resolution.

        Plaintiffs’ proposed construction is overbroad, because it would cover any empty space,
regardless of size. Gov’t Resp. at 18. The preamble to each claim at issue demonstrates that the
intended use of the invention is as “[a] portable, collapsible shelter.” ’854 patent, col. 5, l. 14, col.
6, l. 27 (emphasis added). The specification also identifies the prior art as portable shelters and
discusses prior solutions to the problem of insufficient space within them. ’854 patent, col. 1, ll.
17–50. For this reason, Plaintiffs stated at the June 24, 2014 Markman hearing that “the novel
feature is . . . . using a single container to create a single shelter.” 6/24/14 TR 10 (emphasis added).
Therefore, “hollow” means that the “hole, cavity, or empty space within” must be of sufficient size
to allow the container to function as a shelter.

        The Government’s proposed construction fares no better. First, the ’854 patent attempts to
solve the problem in the prior art that “special equipment and tradesmen are required on site to
unload” and install heavy, prefabricated structures. ’854 patent, col. 1, ll. 25–27. The Government
equates “permanent structures” with “prefabricated structures” and concludes that, in the context
of the ’854 patent, a “hollow” container cannot contain permanent structures. Gov’t Resp. at 17.
There is no language in the claims, the specification, or the prosecution history requiring
“permanent structures” to be equivalent to “prefabricated” structures. The patent does not use the
word “permanent” anywhere and uses the word “prefabricated” only in reference to prior art.

        Assuming, arguendo, that “permanent structures” and “prefabricated structures” are
equivalent, neither the specification nor the prosecution history specifies that the patentee must
exclude containers with internal permanent structures from the scope of the claims. In identifying
the problem in the prior art, the ’854 patent uses the word “prefabricated” to refer to shelters, not
to other internal components. ’854 patent, col. 1, ll. 25, 36. When faced with a rejection for
indefiniteness under 35 U.S.C. § 112 during prosecution, the patentee submitted “a copy of
International Standard ISO 668: 1988 ‘Series 1 freight containers’” (“ISO standard”) to indicate
that the claimed structure in the ’854 patent complied with the ISO standard dimensions. Pl. Br.
Ex. C at 6. The word “permanent” describes containers, not internal components. The ’829 patent,
as prior art, also does not use the word “permanent.” Therefore, the Government’s argument that
“hollow” must mean “having no permanent structure within” improperly adds a limitation to the
claims.

        Second, the Government asserts that allowing a permanent structure within the container
would interfere with the container’s purpose, i.e., to serve as a shelter. Gov’t Resp. at 18. But,
the Government does not explain how adding a permanent structure inside the container would
contravene this purpose. Even if the space within the container were divided by a permanent
structure, e.g., into two cells, it could be used as described so long as the remaining empty space
was sufficient for the container to act as a shelter. Therefore, the Government construction seeks
to add a limitation to the claims.

        Third, the Government contends that, to be hollow, “the entire space within the container
must consist of an empty cavity.” Gov’t Resp. at 19 (emphasis in original). But, the claims,
specification, and prosecution history of the ’854 patent do not support this limitation. The
specification describes the side walls of the container as having “hollow rectangular steel panels
filled with rigid insulation foam.” ’854 patent, col. 5, ll. 6–7. And, the specification states that

                                                   14
the container can have “[p]lumbing, mechanical, and electrical systems . . . pre-installed in the
floor or walls or elsewhere in the container.”6 ’854 patent, col. 3, ll. 10–12 (emphasis added). The
Government contends that these systems are not permanent structures, because the patent uses the
word “‘structure’ interchangeably with the words ‘shelter’ and ‘building.’”7 Gov’t Resp. at 20
(citing ’854 patent col. 1 ll. 12–19). The court, however, finds that these words show that the
patentee did not intend for “hollow” containers to exclude permanent internal structures, and
therefore, the Government’s argument would impermissibly import limitations into the claim.

       For these reasons, given the problems with both proposed constructions, the court has
determined that, after reading the entire specification and claims of the ’854 patent, a person with
working knowledge of the intermodal shipping industry would understand the term “hollow” to
mean “having a hole, cavity, or empty space within sufficient to serve its purpose, as a shelter.”

                       b.      “Container.”

        The parties propose the following competing constructions of the term “container” for the
court’s consideration:

                                          ’854 Patent
  Term(s)                Plaintiffs’ Proposed                  The Government’s Proposed
                         Construction                          Construction
  “container”            No construction necessary             “the rigid enclosed structure
  (Claims 1(a) and 16(a) (plain and ordinary meaning)          formed by the joining of the
  & (b))                                                       opposed ends, opposed vertical
                         In the alternative, “a                sides, and horizontal top and
                         structure that can be used to         bottom. It is capable of
                         hold something”                       functioning as an ISO Series 1
                                                               freight container”

       The parties disagree as to whether “container” should be given its plain and ordinary
meaning. If construction is required, the parties disagree as to whether the term “container” should
be construed separately from the other limitations in the claim or whether the construction should
include those limitations.

                               i)     Plaintiffs’ Proposed Construction.

       Plaintiffs argue that “container” does not require construction, because it has a plain and
ordinary meaning to one of ordinary skill in the art. Pl. Br. at 16 (“Nothing in the specification or
prosecution history supports” deviating from that meaning in construing the term “container.”). In

       6
         The Government tries to explain this language away by arguing that even with these
systems present, the container is “essentially empty.” Gov’t Resp. at 19. But, this contradicts the
Government’s assertion that the word “hollow” requires that a container be entirely empty. Gov’t
Resp. at 19.

       The Government’s argument contradicts its argument that “structures” refer to internal
       7

components of shelters, such as pre-fabricated cells. Gov’t Resp. at 17–18.
                                                 15
the alternative, the court should construe “container” to mean “a structure that can be used to hold
something.” Pl. Br. at 16. Although “container” is not explicitly defined in the specification, the
words “container” and “structure” are used interchangeably throughout the ’854 patent. Pl. Br. at
16. In addition, during prosecution, the patentee included a copy of the ISO standard that defines
a “freight container” as “an ‘article of transport equipment . . . specifically designed to facilitate
the carriage of goods by one or more modes of transport [and] so designed as to be easy to fill and
empty.’” Pl. Br. at 16–17 (omissions and modifications in original). In addition, “container” was
defined at the time the patent issued as “one that contains [or] a receptacle or flexible covering for
the shipment of goods.” WEBSTER’S at 282. The dictionary defines “contain” as “to hold together,
hold in, contain, . . . to keep within limits” and “to have within, hold.” WEBSTER’S at 282.

                               ii)     The Government’s          Proposed      Construction      And
                                       Plaintiffs’ Reply.

       The Government responds that Plaintiffs’ proposed construction ignores the claim
language, specification, and prosecution history of the ’854 patent. The text surrounding the claim
provides the context in which a term should be construed, as it depicts “the interrelationship
between the components” of the “container” and describes how a “container” is formed. Gov’t
Resp. at 21–22.

        The court should construe “container” to mean “the rigid enclosed structure formed by the
joining of the opposed ends, opposed vertical sides, and horizontal top and bottom” that “is capable
of functioning as an ISO Series 1 freight container.” Gov’t Resp. at 21. The claim language
explicitly defines “container” as “a structure that is formed by securing the ends, sides, top, and
bottom” and that must meet the dimensional requirements of “the ISO standard.” Gov’t Resp. at
22.

        Specifically, the “container” must be enclosed, because “[n]othing in the specification
suggests that this joinder would somehow result in a structure that is open,” and claim 16 refers to
a fabric cover that forms “an enclosed space above [the] pivoting wall portion . . . when said
pivoting wall portion is lowered to [the] horizontal position.” Gov’t Resp. at 22–23 (citing ’854
patent, col. 6, ll. 56–60). Because the “container” must be “hollow” and must be “formed by
joining the sides, top, bottom, ends, [which] are all described as . . . preferably steel panels,” the
“container” must be enclosed. 6/24/14 TR 31.

        Plaintiffs reply that the term “container” should be construed broadly, because the rest of
the claim includes limitations that would be superfluous, if the term “container” included them.
Pl. Reply at 6. The Government’s limitation of being “enclosed” is not found anywhere in the
’854 patent. Pl. Reply at 7–8. Moreover, the ISO standard for freight containers does not require
that compliant containers be enclosed. Pl. Reply at 8. In support, Plaintiffs cite examples of two
containers with openings that nonetheless meet the ISO standard. Pl. Reply at 8; Pl. Reply Exs.
A–B.

                               iii)    The Court’s Resolution.

       Claims 1 and 16 of the ’854 patent include several references to the “container,” and in two
descriptions, refer to the standard for ISO Series 1 freight containers. ’854 patent, col. 5, ll. 18–
                                                 16
20, col. 6, ll. 32–33. The specification refers to “shipping containers” when discussing prior art.
’854 patent, col. 1, ll. 36–41, 56–58. The prosecution history also supports the construction that
“container” refers to structures used to ship goods, because during the prosecution of the ‘854
patent, the patentee submitted a copy of the ISO standard to the USPTO that defined “freight
containers.” Pl. Br. Ex. C at 9–15 (ISO standard for Series 1 freight containers).

        Because the intrinsic evidence shows that “container” refers to a standardized shipping
industry structure, reliance on extrinsic evidence is unnecessary. See Phillips, 415 F.3d at 1317–
18 (Extrinsic evidence is “less significant than the intrinsic record in determining ‘the legally
operative meaning of claim language,’” because “extrinsic publications may not be written by or
for skilled artisans and therefore may not reflect the understanding of a skilled artisan in the field
of the patent.”).

        The Government’s proposed construction of “container” is too narrow and imports
limitations not contained within the claim. The Government argues that it is construing
“container” in context of its surrounding language. Gov’t Resp. at 22. Providing the context for
a term, however, is not the same as defining the term. See Phillips, 415 F.3d at 1314 (finding that
because the term “baffles” was immediately preceded by the word “steel,” this context “strongly
implie[d] that the term ‘baffles’ [did] not inherently mean objects made of steel”). Context aids in
defining a term; it is not the definition. Thus, the limitations present in the surrounding claim
language do not define “container.”

        Claim 1 requires the “container” to be rigid, hollow, and formed by opposed ends, opposed
sides, a horizontal top, a horizontal bottom secured together in such a way that the container’s
external dimensions and corner fitting locations satisfy the standards for ISO Series 1 freight
containers. ’854 patent, col. 5, ll. 15–20. Therefore, a structure that lacks any one of these
characteristics would not infringe claim 1. See In re Hyatt, 708 F.2d 712, 714 (Fed. Cir. 1983)
(“A claim must be read in accordance with the precepts of English grammar.”). Just because the
ends, sides, top, and bottom form the container does not mean the ends, sides, top, and bottom are
the container. For example, although an automobile is formed by joining together the doors,
windows, seats, transmission, engine, etc., that is not the definition of an automobile. The key
phrase is “formed by” that describes the physical relationship between components. The USPTO
Examiner initially rejected the ‘854 patent application, because it did not describe the claimed
physical components and relationships of the “container.” Gov’t Ex. 2 at A64. In response, the
patentee amended the claims to describe how the container was formed. Gov’t Resp. at 23.

        It is improper to import limitations into the definition of the term “container” at the claim
construction stage. If the court were to construe the term “container” as inherently including those
additional limitations, the rest of the claim language would be superfluous, contrary to the
established principle that requires claims to be “interpreted with an eye toward giving effect to all
terms in the claim.” Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006); see also
Phillips, 415 F.3d at 1314, 1324 (finding that in a claim referring to “steel baffles,” although the
“term ‘baffles’ [did] not inherently mean objects made of steel,” the surrounding text “impose[d]




                                                 17
three clear requirements [for infringement purposes] with respect to the baffles,” one of which is
that they “must be made of steel”).

         The Government’s proposed construction also imports a limitation into the claim that it
does not contain. Neither the claims nor the specification contain any evidence to support the
limitation that the claimed container structure must be enclosed. The ’854 patent uses the word
“enclosed” in reference to the fabric cover that can be extended over the side of the container when
that side is in a lowered horizontal position, forming “an enclosed space above said pivoting [side]
wall[.]” ’854 patent, col. 6, ll. 50–57. The word “enclosed” is never used in reference to the
container. Although the question of enclosure may have a bearing on infringement, “the role of a
district court in construing claims is not . . . to read limitations into the claims to obviate factual
questions of infringement and validity but rather to give meaning to the limitations actually
contained in the claims[.]” Am. Piledriving Equip., 637 F.3d at 1331.

         But, the prosecution history of the ’854 patent supports the Government’s proposed
construction. Claim 1 was amended to include a requirement that the container be formed by
securing the “said ends, sides, top, and bottom in order to overcome a prior rejection by the
examiner due to a lack of “interrelation between the parts.” Gov’t Resp. at 22. This confirms that
the patentee intended to limit the scope of the patent only to ISO Series 1 freight containers. In
fact, in remarks accompanying the amendment of claim 1, the patentee distinguished its invention
from the prior art by highlighting that the prior art shelters lack “the characteristics of an ISO
container.” Gov’t Resp. at 23 (citing Gov’t Ex. 2 at A123 (10/5/95 Patent Application
Amendment)). Therefore, the prior art does not “teach, [nor] contemplate, that a single ISO
container can be adapted to provide an expanded living area.” Gov’t Resp. at 23–24. Thus, the
’854 patent concerns only container shelters that meet the ISO Series 1 freight container standard.

        For these reasons, the court has determined that, after reading the entire specification and
the claims of the ’854 patent, a person with working knowledge of the intermodal shipping industry
would understand the term “container” to mean “a structure capable of holding goods during
intermodal transport that meets the ISO Series 1 standard.”




                       c.      “Ends.”

       The parties propose the following competing constructions of “ends” for the court’s
consideration:

                                           ’854 Patent
  Term(s)                   Plaintiffs’ Proposed                The Government’s Proposed
                            Construction                        Construction

                                                  18
  “ends”                  No construction necessary            “external vertical walls that are
  (Claims 1(a) and 16(a)) (plain and ordinary meaning)         joined to the opposed vertical sides
                                                               and horizontal top and bottom to
                            In the alternative,                form a rigid enclosed structure”
                            “lengthwise boundaries of
                            the container”

                               i)      Plaintiffs’ Proposed Construction.

        Plaintiffs argue that the court does not need to construe “ends,” because it has a plain and
ordinary meaning to one of ordinary skill in the art. Pl. Br. at 20. In the alternative, the court
should construe “ends” to mean “lengthwise boundaries of the container,” because that is how one
of ordinary skill in the art would understand that term. Pl. Br. at 20–21. “Ends” is not explicitly
defined in the specification. Pl. Br. at 21. Although the specification does describe some preferred
embodiments of “ends,” the term should not be so limited, because there is nothing more in the
claims or the specification that requires such a limitation. Pl. Br. at 21. Plaintiffs also offer the
dictionary definition of “end”: “the part of an area that lies at the boundary”; “a point that marks
the extent of something”; “the point where something ceases to exist”; and “extreme or last part
lengthwise.” WEBSTER’S at 410.

         In addition, the Government impermissibly duplicates the surrounding claim language and
adds a limitation that the container be “enclosed.” Pl. Reply at 8–9. The Government incorrectly
requires “ends” to be “vertical walls,” thereby limiting the term to the preferred embodiments
disclosed in the specification. Pl. Reply at 9. Nothing in the specification or prosecution history
shows any intent by the patentee to limit “ends” to these embodiments. Pl. Reply at 9. “Ends” is
a “common term . . . [without any] scientific or technical meaning,” e.g., the ends of a section of
pipe or the end of a Styrofoam cup, neither of which require the ends to be “walls” or “enclosed.”
6/24/14 TR 37–38. Moreover, Plaintiffs’ proposed definition is not indefinite, because “one of
skill in the art would understand what the lengthwise boundaries of the container are.” Pl. Reply
at 10.

                               ii)     The Government’s Proposed Construction.

        The Government asks the court to construe “ends” as the “external vertical walls that are
joined to the opposed vertical sides and horizontal top and bottom to form a rigid enclosed
structure.” Gov’t Resp. at 24. The specification describes the “ends” as having “surfaces” and
provides several preferred embodiments, such as “[e]nd walls” and “end panels.” Gov’t Resp. at
24–25. And, the prosecution history conflicts with Plaintiffs’ proposed construction, because the
limitation that the ends must be “opposed” was made in response to the initial rejection by the
USPTO. Gov’t Resp. at 25. Therefore, “ends cannot be construed to mean merely the lengthwise
boundaries of the container.” Gov’t Resp. at 25. Finally, Plaintiffs’ extrinsic dictionary definitions
are indefinite, attempt to “expand the definition of ‘ends’ beyond the art of shipping containers,”
and would not help one of ordinary skill in the art to implement the claimed invention. Gov’t
Resp. at 25–26.



                                                 19
                               iii)    The Court’s Resolution.

         Plaintiffs’ proposed construction is overbroad and fails to read “ends” in the context of the
entire claim. “Ends” cannot be the “lengthwise boundar[ies] of the container,” as Plaintiffs
contend, because both claims 1(a) and 16(a) require the “said [i.e., ‘opposed’] ends, sides, top and
bottom [to be] secured to form a rigid container[.]” ’854 patent, col. 5, ll. 16–18, col. 6, ll. 29–31
(emphasis added). If “ends” were lengthwise terminal points of the sides and top of the container,
i.e., points in space, then they could not be secured to the sides and top of the container, as the
claim requires. The specification describes the claimed container as having “pivoting side walls
12, roof 14, and ends 16, all of which surfaces may be insulated. ’854 patent, col. 2, ll. 65–67
(emphasis added). Therefore, “ends” must be separate, physical structures capable of being
secured to form the terminal boundaries of the container.

        Plaintiffs’ extrinsic dictionary definitions also contradict the meaning of the term “ends”
discussed in the intrinsic record. See Phillips, 415 F.3d at 1318 (quoting Key Pharms. v. Hercon
Labs. Corp., 161 F.3d 709, 716 (Fed. Cir. 1998) (holding that the court should not rely on extrinsic
evidence “that is clearly at odds with the claim construction mandated by the claims themselves,
the written description, and the prosecution history, in other words, with the written record of the
patent”) (internal quotations omitted).

        The Government’s proposed construction improperly imports limitations into the claim.
The Government argues that “ends” must be “vertical walls.” Gov’t Resp. at 24. Although the
specification describes the preferred embodiment as “[e]nd walls” and as “end panels,” ’854
patent, col. 3, l. 15, col. 4, l. 47, the claims do not prescribe the form or function of the “ends,”
e.g., “walls” or “panels.” The patentee provided an example of the best mode for carrying out the
claimed invention. ’854 patent col. 2, l. 45–col. 5, l. 12. But, “the claims and the embodiments in
the specification [are not required] to be strictly coextensive.” Phillips, 415 F.3d at 1323; see also
Renishaw PLC, 158 F.3d at 1249 (“Where a specification does not require a limitation, that
limitation should not be read from the specification into the claims.”) (internal citations and
quotation marks omitted).

        For these reasons, the court has determined that, after reading the entire specification and
the claims of the ’854 patent, a person with working knowledge of the intermodal shipping industry
would understand the term “ends” to mean “separate, physical structures that are capable of being
secured to the sides and top of the container, to form the lengthwise terminal boundaries of the
container.”




                       d.      “External dimensions.”

      The parties propose the following competing constructions of the term “external
dimensions” for the court’s consideration:



                                                 20
                                           ’854 Patent
  Term(s)                   Plaintiffs’ Proposed               The Government’s Proposed
                            Construction                       Construction
  “external                 No construction necessary (plain   “the dimensions of the rigid
  dimensions”               and ordinary meaning)              enclosed structure formed by
  (Claims 1(a) and 16(a))                                      joining the opposed ends, opposed
                            In the alternative, “outer         vertical sides, and a horizontal top
                            measurements”                      and bottom. These dimensions
                                                               must satisfy the standards for ISO
                                                               Series 1 freight containers”

                               i)      Plaintiffs’ Proposed Construction.

        Plaintiffs argue that the court does not need to construe “external dimensions,” because the
term has a plain and ordinary meaning. Pl. Br. at 23. In the alternative, “external dimensions”
should be construed as “outer measurements,” because that is how a person with working
knowledge of the intermodal shipping industry would understand that term. Pl. Br. at 24.
Although the specification does not explicitly define “external dimensions”, it is used “in
conjunction with listing various length, width and height measurements,” and the ISO standard
uses “external dimensions” with the length, width, and height of ISO Series 1 freight containers.
Pl. Br. at 24. In addition, the dictionary defines “external” as “an outer part” and “dimension” as
“to measure out.” WEBSTER’S at 355, 440.

                               ii)     The Government’s Proposed Construction.

        The Government responds that “external dimensions” should be construed as “the
dimensions of the rigid enclosed structure formed by joining the opposed ends, opposed vertical
sides, and a horizontal top and bottom. These dimensions must satisfy the standards for ISO Series
1 freight containers.” Gov’t Resp. at 26. Plaintiffs’ proposed construction impermissibly
“separate[s] the external dimensions of the container from the requirement that the container of
the patent must satisfy the standards for an ISO Series 1 freight container.” Gov’t Resp. at 27. It
is necessary to measure these dimensions, so “the walls [must] define the outermost boundaries of
the container . . . [and] have the ISO standard dimensions.” Gov’t Resp. at 27; see also 6/24/14
TR 61–62.

                               iii)    The Court’s Resolution.

       The ISO standard describes “corner fitting locations” in a separate section from “external
dimensions,” and the length, width, and height measurements between corner fittings are listed in
a separate table that specifies the overall external length, width, and height measurements of the
container. Pl. Br. Ex. C at 12–13, 15. But, both the figure in the ISO standard and the table
specifying the measurements between the individual corner fittings refer to the “external length of
the container,” the “external width of the container,” and the “overall height.” Pl. Br. Ex. C at 14–
15. Therefore, the container is measured from the outer boundaries of individual corner fittings.
The ISO standard defines the points from which “external dimensions” are measured. 6/24/14 TR
62 (“The question is really . . . . how you measure, where does the tape go.”).


                                                  21
         The Government’s proposed construction is indefinite, because it uses the word
“dimensions” to define “external dimensions.” Gov’t Resp. at 26. This does not clarify how one
with working knowledge of intermodal shipping would understand the term. The Government
also recognized that “[t]hese dimensions must satisfy the standards for ISO Series 1 freight
containers.” Gov’t Resp. at 26. But, the claim contains the limitation that the external dimensions
must satisfy the ISO standards, ’854 patent, col. 5, l. 20, so there is no need to read that limitation
into the term “external dimensions.” See Am. Piledriving Equip., 637 F.3d at 1331 (“[T]he role of
a [trial] court in construing claims is not . . . to read limitations into the claims to obviate factual
questions of infringement and validity[.]”).

        “External dimensions” has a plain and ordinary meaning, i.e., the “outer length, width, and
height measurements of the container structure.” The ISO standard provided by the patentee in
response to the non-final rejection by the USPTO defines “internal dimensions,” but it does not
define “external dimensions.” Pl. Br. Ex. C at 11. It does, however, provide a table of “external
dimensions [and] permissible tolerances” that specifies the lengths, widths, and heights for Series
1 freight containers. Pl. Br. Ex. C at 13. That table refers to “overall height” to advise the shipper
of jurisdictional height limits. Pl. Br. Ex. C at 13. Thus, the prosecution history supports finding
that a person with working knowledge of intermodal shipping would understand “external
dimensions” by that definition.

        For these reasons, the court has determined that, after reading the entire specification and
the claims of the ’854 patent, a person with working knowledge of the intermodal shipping industry
would understand the term “external dimensions” to mean the “outer length, width, and height
measurements of the container structure.”

                       e.      “Corner fitting locations.”

        The parties propose the following competing constructions of the term “corner fitting
locations” for the court’s consideration:

                                           ’854 Patent
  Term(s)                   Plaintiffs’ Proposed                The Government’s Proposed
                            Construction                        Construction
  “corner fitting           No construction necessary (plain    “those of the rigid enclosed
  locations”                and ordinary meaning)               structure that is formed by joining
  (Claims 1(a) and 16(a))                                       the opposed ends, opposed vertical
                            In the alternative, “locations on   sides, and horizontal top and
                            the container having structure      bottom. These locations must
                            that permits handling”              correspond to the corner fitting
                                                                locations for ISO Series 1 freight
                                                                containers.”



                               i)      Plaintiffs’ Proposed Construction.

       Plaintiffs argue that the court does not need to construe the term “corner fitting locations,”
because it has a plain and ordinary meaning. Pl. Br. at 27. In the alternative, “corner fitting

                                                  22
locations” should be construed to mean “locations on the container having structure that permits
handling.” Pl. Br. at 27. Although the specification does not explicitly define this term, it describes
the function of a corner fitting: to “provide reinforcement of the [container] structure [d]uring
shipping.” ’854 patent, col. 3, ll. 7–8. In addition, the ISO standard requires a Series 1 freight
container to be “fitted with devices permitting its ready handling.” Pl. Br. Ex. C at 11.



                               ii)     The Government’s Proposed Construction.

        The Government responds that Plaintiffs’ proposed construction “incorrectly tries to
separate the corner fitting locations of the container from the requirement that the container must
satisfy the standards for an ISO Series 1 freight container.” Gov’t Resp. at 30. The proper
construction must include a limitation that the corner fitting locations meet the ISO standard,
because during prosecution, the “applicants disclaimed any interpretation that ‘corner fitting
locations’ means any configuration other than those of an ISO Series 1 freight container.” Gov’t
Resp. at 30.



                               iii)    The Court’s Resolution.

        Plaintiffs’ construction is overbroad, because it refers to a location on the container of any
structure, as long as that structure enables handling of the container. For example, a container may
include structures “to receive the forks of a fork lift vehicle.” ’854 patent, col. 3, l. 9. The claim
language, however, specifies that “corner fittings locations” must satisfy the ISO standard that
requires corner fittings to be located at the outer corners of the container to provide points from
which the external dimensions of the container can be measured. ’854 patent, col. 5, ll. 17–20.




                                                  23
       The Government’s proposed construction, however, is circular, because it implicitly
includes the term “container,” thereby defining “corner fitting locations” as where corner fittings
are placed. The Government also improperly imports two limitations into the claim: the ISO
standard for Series 1 shipping containers; and that the claimed container must be “enclosed.”
Gov’t Resp. at 26.

        For these reasons, because of the problems with both parties’ proposed constructions, the
court has determined that, after reading the entire specification, prosecution history, and the claims
of the ’854 patent, one with working knowledge of the intermodal shipping industry would
understand the term “corner fitting locations” to mean “the juncture where the ends, sides, top, and
bottom of the container join and permit the placement of corner fittings.”




                                                 24
                       f.      “An opening is formed in said vertical side circumscribed by
                               edges of said vertical side.”

       The parties propose the following competing constructions of the phrase “an opening is
formed in said vertical side circumscribed by edges of said vertical side” for the court’s
consideration:

                                         ’854 Patent
  Term(s)               Plaintiffs’ Proposed                 The Government’s Proposed
                        Construction                         Construction
 “an opening is formed  No  construction  necessary  (plain “section of the pivoting side wall
 in said vertical side  and ordinary meaning)               pivots from the vertical position to
 circumscribed by                                           the horizontal position thereby
 edges of said vertical In the alternative, “an opening  is leaving an opening in the vertical
 side”                  defined in the vertical side, the side of the container. Said opening
 (Claim 1(b))           opening being surrounded by         is surrounded by edges of the
                        edges of the vertical side”         vertical side.”


                               i)      Plaintiffs’ Proposed Construction.

        Plaintiffs argue that the court does not need to construe “an opening is formed in said
vertical side circumscribed by edges of said vertical side,” because it has a plain and ordinary
meaning. Pl. Br. at 29. In the alternative, this phrase should be construed as “an opening is defined
in the vertical side, the opening being surrounded by edges of the vertical side,” because that is how
a person of ordinary skill in the art would understand it. Pl. Br. at 29. The specification supports
this construction, as it makes clear that the “opening” is in the side wall. Pl. Br. at 29–30 (citing
’854 patent, col. 5, ll. 8–10). The Government’s proposed construction “introduces new and
ambiguous language,” because the words “pivoting side wall” do not appear in the claims. Pl. Br.
at 30. If “pivoting side wall” refers to the “pivoting wall portion,” the Government needlessly
restates language from the claim. Pl. Br. at 30.

        The Government also improperly imports preferred embodiments into the claims requiring
the openings described in claims 1(b) and 16(b) to be distinct. Pl. Reply at 11. “[N]othing in the
intrinsic evidence shows an intent by the Applicant to limit the pivoting structure of either claim[s]
1 or 16 to a specific size or relationship to other components.” Pl. Reply at 11.

                               ii)     The Government’s Proposed Construction.

         The Government responds that “an opening is formed in said vertical side circumscribed
by edges of said vertical side” should be construed to mean a “section of the pivoting side wall
pivots from the vertical position to the horizontal position thereby leaving an opening in the
vertical side of the container. Said opening is surrounded by edges of the vertical side.” Gov’t
Resp. at 33–34. The reference to a “pivoting side wall” indicates “a pivoting wall portion hingedly
connected to said vertical side along the lower edge of said pivoting wall portion[.]” ’854 patent,
col. 5, ll. 21–23; see also Gov’t Resp. at 32 (quoting ’854 patent, col. 2, ll. 65–66) (“‘[P]ivoting
side walls’ does appear in the patent specification[, which states that] . . . ‘container 10 has rigid

                                                 25
sides 11 from which are cut out pivoting side walls 12.’”) (emphasis in original). Therefore, this
construction is necessary to distinguish “opening” in claim 1 from “opening” in claim 16(b):
“Simply put, claim 1 covers an expandable container in which a portion of a side wall pivots
downward, whereas claim 16 covers an expandable container in which the entire side wall pivots
down.” Gov’t Resp. at 33.

                               iii)    The Court’s Resolution.

        The text preceding “an opening is formed in said vertical side circumscribed by edges of
said vertical side” in claim 1(b) describes a section of “at least one of said [container’s] sides
comprising a pivoting wall portion” that “pivot[s] between a closed vertical position and an open
horizontal position[.]” ’854 patent, col. 5, ll. 21–25. The text following this phrase states that an
opening is created “when said pivoting wall portion is in the [open] horizontal position.” ’854
patent, col. 5, ll. 28–29. Therefore, claim 1(b) requires an opening to occur when a portion of the
container’s side pivots down. As such, the Government’s proposal imports limitations already
present in the claim.

        The Government’s concern that openings described in claim 1(b) and 16(b) be distinct,
however, is valid. “The doctrine of claim differentiation creates a presumption that each claim in
a patent has a different scope,” the difference being “significant to the extent that the absence of
such difference in meaning and scope would make a claim superfluous.” Free Motion Fitness,
Inc. v. Cybex Int’l, Inc., 423 F.3d 1343, 1351 (Fed. Cir. 2005) (internal quotations and alterations
omitted). Claim 16(b) is broader in scope than claim 1(b), because claim 16(b) requires the
opening to be circumscribed by the edges of the entire container, not just the edges of the side.
’854 patent, col. 6, ll. 40–42. Thus, any opening covered by claim 1(b) also would be covered by
claim 16(b), but not vice-versa. Intrinsic evidence demonstrates that claim 1(b) limits the opening
formed by the pivoting section in relationship to the side of the container, i.e., the opening is made
by lowering only a partial section of the container’s vertical side. If both types of openings were
the same, claim 16(b) would violate the doctrine of claim differentiation.

         For these reasons, the court has determined that, after reading the entire specification,
prosecution history, and the claims of the ’854 patent, a person with working knowledge of the
intermodal shipping industry would understand “an opening is formed in said vertical side
circumscribed by edges of said vertical side” to mean “an opening is created by lowering only a
partial section of the container’s vertical side, so that the opening is surrounded by the edges of the
vertical side.”

                       g.      “An opening is formed in said vertical side circumscribed by
                               edges of said container.”

       The parties propose the following competing constructions of the term “an opening is
formed in said vertical side circumscribed by edges of said container” for the court’s consideration:

                                           ’854 Patent
  Term(s)                   Plaintiffs’ Proposed                The Government’s Proposed
                            Construction                        Construction


                                                  26
 “an opening is formed     No construction necessary (plain “the entire pivoting side wall pivots
 in said vertical side     and ordinary meaning)              from the vertical position to the
 circumscribed by                                             horizontal position thereby leaving
 edges of said             In the alternative, “an opening is an opening in the vertical side of the
 container”                defined in the vertical side, the container. Said opening is
 (Claim 16(b))             opening being surrounded by        surrounded by edges of the
                           edges of the container”            container.”


                              i)      Plaintiffs’ Proposed Construction.

        Plaintiffs argue that the phrase “an opening is formed in said vertical side circumscribed
by edges of said container” does not require construction, but if it does, should be construed to
mean “an opening is defined in the vertical side, the opening being surrounded by edges of said
container.” Pl. Br. at 31–32. The Government’s proposed construction, requiring the opening to
be formed by the lowering of the “entire pivoting side wall,” is ambiguous and not supported by
intrinsic evidence. Pl. Br. at 32.

                              ii)     The Government’s Proposed Construction.

        The Government proposes that the phrase “an opening is formed in said vertical side
circumscribed by edges of said container” should be construed to mean “the entire pivoting side
wall pivots from the vertical position to the horizontal position thereby leaving an opening in the
vertical side of the container. Said opening is surrounded by edges of the container.” Gov’t Resp.
at 34. This is so, because the specification “discloses an embodiment of the invention wherein the
container ‘has side walls 112 which pivot downwardly as a complete side wall unit[.]’” Gov’t
Resp. at 34 (quoting ’854 patent, col. 4, ll. 37–39) (emphasis in original).

                              iii)    The Court’s Resolution.

        As previously discussed, the opening described in claim 16(b) is different than claim 1(b),
because the opening is circumscribed by the edges of the container, instead of the edges of the
side. Thus, an opening may be created by lowering a portion of the side and still meet that
limitation.

        The Government’s proposed construction improperly limits the claim to an embodiment
described in the specification. It is settled law that limitations from the preferred embodiment
described in the specification should not be imported into the claims. In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d at 1369 (“We have cautioned against reading limitations into a claim from the
preferred embodiment described in the specification, even if it is the only embodiment described,
absent clear disclaimer in the specification.”). Because the claim language requires only that the
edges of the container circumscribe the opening, the proper construction of this phrase should
include openings that lower both the container’s entire side and a portion of the side.

       For these reasons, the court has determined that, after reading the entire specification,
prosecution history, and the claims of the ’854 patent, one with working knowledge of the
intermodal shipping industry would understand the term “an opening is formed in said vertical

                                                27
side circumscribed by edges of said container” to mean “an opening is created by the lowering of
the side wall of the container or any portion thereof.”

                         h.      “Levelling means.”

        The parties propose the following competing constructions of the term “levelling means”
for the court’s consideration:

                                                ’854 Patent
  Term(s)                      Plaintiffs’ Proposed                 The Government’s Proposed
                               Construction                         Construction
 “levelling means”            “structure to substantially          “one or more leveling jacks, wood or
 (Claims 2, 3, and 10)        maintain in a horizontal position”   timber blocking or suitable
                                                                   equivalent of the described
                                                                   structure ”
        The parties disagree whether this term is written in the means-plus-function form and
subject to 35 U.S.C. § 112, ¶ 68 and whether it should be limited to the corresponding structures
disclosed in the specification.

                                 i)      Plaintiffs’ Proposed Construction.

        Plaintiffs argue that the means-plus-function presumption for the term “levelling means”
is rebutted, because the claim does not “recite a function for the levelling means to perform,” and
“the term ‘levelling’ designates sufficient structure to skilled artisans[.]” Pl. Br. at 36 (internal
quotations and alterations omitted); TecSec, Inc. v. Int’l Bus. Mach. Corp., 731 F.3d 1336, 1347
(Fed. Cir. 2013) (“The use of the term ‘means’ triggers a rebuttable presumption that § 112, ¶ 6
applies.”). In addition, because dependent claims 3 and 10 narrow the term “levelling means” to
comprise a jack and wood blocks, respectively, the broader claim 2 cannot include these
limitations. Pl. Br. at 36–37. In the alternative, if “levelling means” is written in means-plus-
function form, the corresponding structures should be “level support, which can include one or
more levelling jacks, wood or timber blockings or the like, or suitable equivalents[.]” Pl. Br. at
37.

                                 ii)     The Government’s Proposed Construction.

       The Government argues that the term “levelling means” specifies a function and that the
’854 patent identifies corresponding structures. Gov’t Br. at 39.9 “The function of ‘levelling

       8
           Section 112 provides:

       An element in a claim for a combination may be expressed as a means or step for
       performing a specified function without the recital of structure, material, or acts in
       support thereof, and such claim shall be construed to cover the corresponding
       structure, material, or acts described in the specification and equivalents thereof.

35 U.S.C. § 112, ¶ 6 (2006).
       9
         The Government cites 35 U.S.C. §112(f), instead of 35 U.S.C. §112, ¶ 6, even though the
                                                   28
means’ is ‘releasably maintaining said pivoting wall portion in said horizontal position’” or
“simply ‘levelling.’” Gov’t Br. at 39. The structures corresponding to this function are “levelling
jacks 46, and wood or timber blocking.” Gov’t Br. at 39; ’854 patent col. 3 ll. 48–49. In addition,
because “levelling” describes a function and not a specific structure, finding that this term is not
written in the means-plus-function form would render the claim indefinite. Gov’t Br. at 40.

                              iii)    The Court’s Resolution.

        The court agrees with the Government that “levelling” describes a function, not a structure.
The specification identifies the corresponding structures: leveling jacks, wood or timber blocking,
or suitable equivalents. ’854 patent, col. 3, ll. 48–49.

        For this reason, the court has determined that, after reading the entire specification,
prosecution history, and the claims of the ’854 patent, one with working knowledge of the
intermodal shipping industry would understand the term “levelling means” to be: written in a
means-plus-function form under § 112, ¶ 6; and limited to the disclosure of the corresponding
structures in the specification—one or more leveling jacks, wood or timber blocking, or suitable
equivalents.




                       i.     “Means adapted to support said pivoting wall portion for
                              releasably maintaining” and “means for releasably
                              maintaining.”

       The parties propose the following competing constructions of the phrases “means adapted
to support said pivoting wall portion for releasably maintaining” and “means for releasably
maintaining” for the court’s consideration:

                                           ’854 Patent
  Term(s)                   Plaintiffs’ Proposed              The Government’s Proposed
                            Construction                      Construction




‘854 patent was issued prior to the effective date of the amendments to this section. See Pub. L.
112–29, 125 Stat. 284–341 (2011).
                                                29
 “means adapted to         This phrase is written in 35        This phrase is written in 35 U.S.C.
 support said pivoting     U.S.C. §112, ¶ 6 form.              §112, ¶ 6 form.
 wall portion for
 releasably                Function: maintaining the           Function: maintaining the pivoting
 maintaining”              pivoting wall portion in the        wall portion in the horizontal
 (Claims 1(d) and 16(d))   horizontal position such that it    position such that it can be released
                           can be released therefrom           therefrom
 “means for releasably Structure: a support for the
                                                               Structure: a support for the
 maintaining”          pivoting wall portion                   pivoting wall portion
 (Claim 2)
                       The support can include:                The support can include:
                       - Leveling jack(s) or jack(s)           - Leveling jack(s) or jack(s)
                       - Wood/timber blocking or the           - Wood/timber blocking or the like
                       like                                    - Suitable equivalent of the
                       - Levelling means                       described structure
                       - Suitable equivalent of the
                       described structure

        The parties agree that this phrase is a means-plus-function claim and that the function
described is “maintaining the pivoting wall portion in the horizontal position such that it can be
released therefrom.” Pl. Br. at 33–34; see also Gov’t Br. at 37. The parties also substantially agree
on most of the corresponding structures. Pl. Br. at 34; Gov’t Br. at 37. The dispute is whether
“levelling means” is a corresponding structure.

                               i)     Plaintiffs’ Proposed Construction.

       Plaintiffs argue that “levelling means” is a structure included in the specification, because
claim 2 discloses that “said means for releasably maintaining said pivoting wall portion in said
horizontal position comprises levelling means.” Pl. Br. at 35 (emphasis in original). Claims 3 and
10 depend on claim 2 and identify specific embodiments of “levelling means.” Pl. Br. at 35.
Because these dependent claims are narrower and contain embodiments as limitations, “levelling
means” is different from these embodiments and is a corresponding structure. Pl. Br. at 35.

                               ii)    The Government’s Proposed Construction.

        The Government responds that “levelling means” is not a corresponding structure for the
disclosed function of “maintaining the pivoting wall portion in the horizontal position such that it
can be released therefrom.” Gov’t Br. at 38. “[I]ncluding ‘levelling means’ as a corresponding
structure would negate [§ 112, ¶ 6] by including a functional limitation as a structure.” Gov’t Br.
at 38 (emphasis omitted). Therefore, the court should exclude “levelling means” from the
corresponding structures for this term.

                               iii)   The Court’s Resolution.

       As previously discussed, “levelling means” is a means-plus-function term. Therefore, it is
not a corresponding structure to the function of “maintaining the pivoting wall portion in the
horizontal position such that it can be released therefrom.” The term “levelling means” is limited

                                                 30
to the disclosed corresponding structures: one or more leveling jacks, wood or timber blocking, or
suitable equivalents. The same structures that correspond to “levelling means” are included in the
parties’ proposed constructions for the terms “means adapted to support said pivoting wall portion
for releasably maintaining” and “means for releasably maintaining.”

       For these reasons, the court has determined that, after reading the entire specification,
prosecution history, and the claims of the ’854 patent, one with working knowledge of the
intermodal shipping industry would understand that the terms “means adapted to support said
pivoting wall portion for releasably maintaining” and “means for releasably maintaining” to be:
written in a means-plus-function form under § 112, ¶ 6; and limited to the disclosure of the
corresponding structures in the specification—leveling jacks, wood or timber blocking, or suitable
equivalents.

V.     CONCLUSION.

       For the reasons discussed herein, the court has determined that the disputed claims are to
be construed pursuant to this Memorandum Opinion And Order Construing Certain Claims of
United States Patent No. 5,761,854.

       IT IS SO ORDERED.

                                                    /s/ Susan G. Braden
                                                    SUSAN G. BRADEN
                                                    Judge




                                               31
                           COURT APPENDIX:
       THE TERMS OF CERTAIN PATENT CLAIMS AGREED BY THE PARTIES

       The parties agree to the following constructions with respect to United States Patent No.
5,761,854.

                                          ’854 Patent
 Term(s)                                       Parties’ Proposed Construction
 “flexible cover”                              “a cover that is capable of being flexed”
 (Claim 1(e))
                                               and
 and                                           “a fabric cover that is capable of being flexed”
 “flexible fabric cover”
 (Claim 16(e))




                                              32
                                        ’854 Patent
Term(s)                                      Parties’ Proposed Construction
“flexible cover secured to said outer edge    “flexible cover is coupled to an outer edge
of said pivoting                             of the pivoting wall portion and coupled to
wall portion and secured to said             the container around the opening”
container around said opening formed         and
when said pivoting wall portion is in
said lowered horizontal position”            “flexible fabric cover is coupled to an outer edge
(Claim 1(e))                                 of the pivoting wall portion and coupled to the
                                             container around the opening”
and

“flexible fabric cover secured to
said outer edge of said pivoting wall
portion and secured to said
container around said opening
formed when said pivoting wall
portion is in said lowered horizontal
position”
(Claim 16(e))
“means associated with said                  This term is written in 35 U.S.C. §112, ¶ 6 form.
container and with said pivoting
wall portion for releasably                  Function: Securing the pivoting wall
securing”                                    portion in the vertical position such that
(Claims 1(c) and 16(c))                      it can be released therefrom

and                                          Structure: Latching mechanism
                                             that is located inside or outside the
“means for releasably securing”              container
(Claims 11 and 12)
                                             The latching mechanism can include:
                                               - a nut and bolt arrangement
                                               - an alignment pin
                                               - a pivoting handle
                                               - anti-racking locks
                                               - latch
                                               - suitable equivalent of the described structure

“latching means”                             “latch”
(Claim 12)




                                             33
                                       ’854 Patent
Term(s)                                    Parties’ Proposed Construction
“means extending outwardly from said       This term is written in 35 U.S.C. §112, ¶ 6 form.
vertical side and
above said pivoting wall portion when      Function: Supporting the fabric cover
said pivoting wall portion is in said      above the pivoting wall portion while the
lowered horizontal position for            pivoting wall portion is in the horizontal
supporting said fabric cover above         position
said pivoting wall portion while said
pivoting wall portion is in said lowered   Structure: A support for the flexible
horizontal position”                       cover, and its equivalents The support can
(Claim 1(f))                               include:

and                                             -    Rigid or semi-rigid frame, beams or
                                                     frame members
“means for supporting”                                  • Made of metal or other
(Claims 6 and 15)                                       suitable means such as plastic,
                                                        graphite, or fiberglass.
                                                        • May take the shape of an
                                                        arc or other appropriate shape
                                                -    Suitable equivalent of the described
                                                     structure




“means for raising and                     This term is written in 35 U.S.C. §112, ¶ 6 form.
lowering said pivoting wall portion”
(Claims 4 and 5)                           Function: Raising and lowering of the pivoting
                                           wall portion

                                           Structure: The following structures:
                                               - Wire ropes run over pulleys and down to
                                                 winches
                                              - Cable and winch
                                              - Suitable equivalent of the described
                                                 structure


“winching means”                           “winch”
(Claim 5)




                                           34
