Vision advancement LLC v. Johnson & Johnson Vision Care Inc, No. 2:05-cv-00455 (E.D. Tex. Jan. 26, 2007)

The Court issues this claim construction opinion and order to construe terms that the parties

contend are either in dispute or otherwise require construction.

The plaintiff, Vision Advancement, LLC (“Vision Advancement”), claims that defendant

Vistakon (“Vistakon”) infringes over ninety claims in the seven patents-in-suit, U.S. Patents No.

4,898,461 (“the ‘461 patent”), No. 5,657,108 (“the ‘108 patent”), No. 5,877,839 (“the ‘839 patent”),

No. 6,186,625 (“the ‘625 patent”), No. 5,270,744 (“the ‘744 patent”), No. 6,527,389 (“the ‘389

patent”), No 5,166,711 (“the ‘711 patent”), and No. 6,409,340 (“the ‘340 patent”).

The parties identified terms from those claims that they contend are either in dispute or that

otherwise require construction. The parties filed claim construction briefs and the court held a

Markman hearing. For the reasons set forth below, the Court construes the identified claims in

accordance with the rulings made in this opinion.

The Patents-In-Suit

The inventor of each of the patents-in-suit is Dr. Valdemar Portney (“Portney”). All of the

patents-in-suit stem from the same original 1987 patent application, Ser. No. 56,050 (the ‘0502 Case 2:05-cv-00455-LED-JDL Document140_ Filed 01/26/07 Page 2 of 29 PagelD #:

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Appin.”). The ‘461 patent was filed as a continuation of the ‘050 Appln. and each of the other

patents-in-suit depend from a divisional application of the application that resulted in the ‘461

patent. Accordingly, each of the patents-in-suit have essentially the same specification, including

the same drawings. Therefore, just as the parties have done in their briefs, references to the

specification for the ‘461 patent are used interchangeably for each of the other patents.

The patents-in-suit (collectively referred to as the “Portney Patents”) relate to multifocal

ophthalmic lenses (e.g., intra-ocular lenses, contact lenses, and corneal lenses), The lens is

multifocal to correct for different distances. One example of a multifocal lens is the bifocal which

corrects for near and distant vision. Vision correction is accomplished by different curvature of the

lens. The ‘461 patent states that, “The present invention provides an improved multifocal

ophthalmic lens by combining (a) a series of alternating power zones with (b) a continuously varying

power within each zone, as well as in transition from one zone to another. In other words, a plurality

of concentric zones (at least two) are provided in which the variation from far to near vision

correction is continuous, i.e., from near correction focal power to far correction focal power, then

back to near, and again back to far, or vice versa.” ‘461 patent, at 2:35-44.

Applicable Law

“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to

which the patentee is entitled the right to exclude.” Phillips v. AWH Corp., 415 F.3d 1303, 1312

(Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381

F.3d 1111, 1115 (Fed. Cir. 2004)). In claim construction, courts examine the patent’s intrinsic

evidence to define the patented invention’s scope. See id.; C_R. Bard, Inc. v. U.S. Surgical Corp.,

388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. vy. Covad Communications Group,3 Case 2:05-cv-00455-LED-JDL Document140 _ Filed 01/26/07 Page 3 of 29 PagelD #:

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Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). This intrinsic evidence includes the claims themselves,

the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; CR. Bard, Inc., 388

F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as understood by one

of ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips,

415 F.3d at 1312-13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003). |

The claims themselves provide substantial guidance in determining the meaning of particular

claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim can be very

instructive. Jd. Other asserted or unasserted claims can also aid in determining the claim’s meaning

because claim terms are typically used consistently throughout the patent. /d. Differences among

the claim terms can also assist in understanding a term’s meaning. /d. For example, when a

dependent claim adds a limitation to an independent claim, it is presumed that the independent claim

does not include the limitation. /d. at 1314-15.

Claims “must be read in view of the specification, of which they are a part.” Jd. (quoting

Markman v. Westview Instruments, Inc., 52 F.3d 967, 978 (Fed. Cir. 1995)). “[T]he specification

‘is always highly relevant to the claim construction analysis. Usually, itis dispositive; it is the single

best guide to the meaning of a disputed term.’” Jd. (quoting Vitronics Corp. v. Conceptronic, Inc.,

90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325

(Fed. Cir. 2002). This is true because a patentee may define his own terms, give a claim term a

different meaning than the term would otherwise possess, or disclaim or disavow the claim scope.

Phillips, 415 F.3d at 1316. In these situations, the inventor’s lexicography governs. Id. Also, the

specification may resolve ambiguous claim terms “where the ordinary and accustomed meaning of

the words used in the claims lack sufficient clarity to permit the scope of the claim to be ascertained4 Case 2:05-cv-00455-LED-JDL Document140 Filed 01/26/07 Page 4 of 29 PagelD #:

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from the words alone.” Teleflex, Inc., 299 F.3d at 1325. But, “although the specification may aid

the court in interpreting the meaning of disputed claim language, particular embodiments and

examples appearing in the specification will not generally be read into the claims.” Comark

Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998); see also Phillips, 415

F.3d at 1323. The prosecution history is another tool to supply the proper context for claim

construction because a patent applicant may also define a term in prosecuting the patent. Home

Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the

specification, a patent applicant may define a term in prosecuting a patent.”’).

Although extrinsic evidence can be useful, it is “less significant than the intrinsic record in

determining ‘the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317 (quoting

C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand

the underlying technology and the manner in which one skilled in the art might use claim terms.

However, technical dictionaries and treatises may provide definitions that are too broad or may not

be indicative of how the term is used in the patent. Jd, at 1318. Similarly, expert testimony may aid

a court in understanding the underlying technology and determining the particular meaning of a term

in the pertinent field, but an expert’s conclusory, unsupported assertions as to a term’s definition are

entirely unhelpful to a court. Jd. Generally, extrinsic evidence is “less reliable than the patent and

its prosecution history in determining how to read claim terms.” /d.

The patents-in-suit also contain “means-plus-function” limitations that require construction.

Where a claim limitation is expressed in “means-plus-function” language and does not recite definite

structure in support of its function, the limitation is subject to 35 U.S.C. § 1 12, 46. Braun Med., Inc.

y. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997). In relevant part, 35 U.S.C. § 112, | 65 Case 2:05-cv-00455-LED-JDL Document140 _ Filed 01/26/07 Page 5 of 29 PagelD #:

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mandates that “such a claim limitation ‘be construed to cover the corresponding structure...

described in the specification and equivalents thereof.’” Jd. (citing 35 U.S.C. § 112, 6).

Accordingly, when faced with means-plus-function limitations, courts “must turn to the written

description of the patent to find the structure that corresponds to the means recited in the

[limitations].” Jd.

Construing a means-plus-function limitation involves multiple inquiries. “The first step in

construing [a means-plus-function] limitation is a determination of the function of the means-plus-

function limitation.” Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311

(Fed. Cir, 2001). Once a court has determined the limitation’s function, “the next step is to

determine the corresponding structure disclosed in the specification and equivalents thereof.” Jd.

A “structure disclosed in the specification is ‘corresponding’ structure only if the specification or

prosecution history clearly links or associates that structure to the function recited in the claim.” Jd.

Moreover, the focus of the “corresponding structure” inquiry is not merely whether a structure is

capable of performing the recited function, but rather whether the corresponding structure is “clearly

linked or associated with the [recited] function.” Id.

The Terms

Terms with Agreed Constructions

The Court adopts the parties’ construction of several previously disputed terms. Those terms

and their agreed constructions are:

Ophthalmic Lens: The phrase “ophthalmic lens” is to be given its plain and ordinary

meaning, e.g., lens for the eye, intra-ocular lenses (IOLS), contact lenses, and corneal implant and

only lenses.

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concentric” is to be given its plain and ordinary meaning, e.g., having Concentric: The term “

a common center or center point.

phrase “transition regions” is to be given its plain and ordinary Transition Regions: The

focal lens that change from a first vision correction power to a meaning, e.g., segments of multi

second vision correction power.

Terms that Both Parties Assert Require Construction

rue the following disputed terms which the parties agree require The Court will const

n Correction Power/Vision Correction Value”; (2) construction: (1) “Visio

(3) “Zones”; (4) “Annular”, (5) “Optical Axis”; (6) “means for “Progressive/Progressively”;

d second zones a first region having a first vision correction power providing in each of said first an

cond vision correction power which is significantly different from and a second region having a se

vision correction power between the first and second optical said first vision correction power, the

(7) “means for providing on one of said anterior or posterior faces, powers being progressive”; and

axis, a generally repetitive pattern comprising a number of concentrically relative to said optical

nnular regions or [sic] high and low vision correction powers, said radially outwardly alternating, a

n correction powers being interconnected in an optical sense by regions of high and low visio

regions having a range of progressive intermediate vision transition regions, each of said transition

powers between the high and low vision correction powers.” correction

strue, as appropriate, the following terms which Vistakon asserts need The Court will also con

nt claims these terms do not need to be construed: (8) whether construction, while Vision Advanceme

uld be construed as limitations, (9) “each cycle of such the preambles of certain claims sho

he other and then back to the first”; (10) “correction power continuous variation from one value to t

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being caused to vary”; (11) “continuously”; (12) “intermediate vision correction power”; “high

vision correction power’; “low vision correction power”; “near vision correction power’; “far vision

correction power”; and “predetermined vision correction power”; and (13) “said regions of high and

low vision correction powers being interconnected in an optical sense by transition regions.”

1, Vision Correction Power/Vision Correction Value

The parties agree that the claims of the Portney Patents variously refer to the terms “vision

correction power” or “vision correction value” synonymously. Those terms are found in Claims 1,

10(b), 14, 15, 19, 28, 29, 30, 32, 33, 34, 35, 36 and 41-44 of the ‘461 patent; Claims 1 and 8 of the

“108 patent; Claims 1, 2, 3, 4, 5, 7, 10, 12, 13, 14, 17 and 18 oft he ‘839 patent; Claims 1, 3, 4, 5,

7, 10, 13, 16 and 17 of the ‘625 patent; Claims 1, 2,3, 5, and 8 of the ‘744 patent; Claims 1, 4, 7 and

14 of the ‘389 patent; 1, 4, 9 and 10 of the ‘711 patent; and Claims 1, 3, 5 and 10 of the ‘340 patent.

Vision Advancement argues that the common and ordinary meanings of “Vision Correction

Power/Vision Correction Value” should prevail and cites to two medical dictionaries to propose a

construction of “The measure of magnification required or used to neutralize a harmful or

undesirable condition or to improve the condition of a person’s eye sight.” Vistakon advances the

tion of “The dioptric power or value needed in a lens prescription to correct a refractive construc

error; the dioptric power of the lens is measured with the lens off-eye.”

the Markman hearing, Vision Advancement agreed to the following alteration of At

construction, “The dioptric power or value in a lens to correct refractive error.” Defendant’s

ver, Vision Advancement maintains that Vistakon’s construction further requiring that the lens Howe

lens off-eye” is too limiting because it is not needed to define the term. be “measured with the

claims that the Portney Patents’ only reference to vision correction power is to the power Vistakon

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hat there is no mention in the patents of determining the power of of a lens measured off-eye and t

kon argues, Portney never suggested to the examiner that the power the lens on-eye. Because, Vista

es-should be determined on-eye, it stands to reason that the power of the lens—his or prior art lens

eye. While it is true that the prosecution history can inform the of a lens should be measured off-

Phillips, 415 F.3d at 1317, the Court is not willing to import what meaning of claim language, see

osecution history. There is no statement that the power of the was not mentioned in the patent or pr

e. Nor will the Court import that limitation into the claims because lens must be measured off-ey

s can be measured on-eye. See Omega Eng’s, Inc. v. Raytek Corp., there is no statement that the len

opining that for prosecution disclaimer to arise, the alleged 334 F.3d 1314, 1326 (Fed. Cir. 2003) (

de during prosecution [must] be both clear and unmistakable”). “disavowing actions or statements ma

s “Vision correction power/value” to mean the “The dioptric Therefore, the Court construe

power or value in a lens to correct refractive error.”

2. Progressive/Progressively

sively are found in Claims 1, 10(b), 14(b), 19, 28, 29, 30, 32, The terms progressive/progres

1 and 8 oft he ‘108 patent; Claims 3, 4, 5, 9, 10, 12, 14, 17 35, 36 and 44 of the ‘461 patent; Claims

5, 7, 10, 13, 16 and 17 oft he ‘625 patent; Claims | and 8 and 18 of the ‘839 patent; Claims 1, 3, 4,

14 of the ‘389 patent; Claims 1, 4, 9 and 10 of the ‘711 patent; of the ‘744 patent; Claims 1, 4, 7 and

and Claims 1, 3, 5 and 10 of the ‘340 patent.

hat the term “progressive/progressively” should be construed Vision Advancement asserts t

ging,” while Vistakon submits “A controlled, gradual as “continuous change or continuously chan

on correction power, without any abrupt changes or edges gradient designed to provide a certain visi

or breaks or transitions.”

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ms, claim 1 of the ‘461 patent states that “the correction power being Turning first to the clai

nd progressively.” ‘461 patent, 7:50-51. Vision Advancement’s caused to vary continuously a

“progressively” superfluous because the claim language already definition would appear to make

ntinuously”, which is the same as “continuously changing.” See requires that the power “vary co

Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005) (“A claim Merck & Co. v. Teva Pharms. USA,

he terms of the claim is preferred over one that does not do construction that gives meaning to all t

supports a construction of “progressive” different than that so.”). Therefore, the claim language

urged by Vision Advancement.

atents describes “progressive” when discussing the nature The specification of the Portney P

he invention. As the specification states, “This change is of the change in power in the lens of t

y abrupt correction changes, or “edges.” ‘461 patent, 2:44-45; continuous (progressive), without an

dvancement points to that language as showing that the ‘461 see also ‘461 patent Abstract. Vision A

uous. However, that would require the Court to ignore the rest patent defines “progressive” as contin

preceding sentence, the specification appears to define of that sentence. Additionally, in the

on of the vision correction of the invention “is continuous, continuous when it states that the variati

rrection focal power, then back to near, and again back i.c., from near correction focal power to far co

0-44. The term “progressive” appears in the next sentence to far, or vice versa.” ‘461 patent, 2:4

or variation also be “without any abrupt correction along with the requirement that the change

changes, or edges.”

disclosed in the Portney Patents to demonstrate how Furthermore, the only embodiment

urvature of the lens surface, depicted a lens surface that vision correction power was adjusted by the c

w vision correction powers, through intermediate vision gradually transitioned between high and lo

10Col. 4:16-17; Col. 5:48-6:40. The fact that the Portney Patents disclose that correction powers. See

ce of the lens is preferably formed by a computer-controlled machining “The undulating surfa

s the gradual nature of the undulating surface. See Col. 5:48-6:40. apparatus” underscore

ts and arguments made by the patentee to distinguish the prior art further The statemen

progressive” requires a gradual change or gradient of vision correction power support that the term “

changes or edges. In the Background section of the specification, the without any abrupt correction

U.S. Patent No. 4,162,122 (“Cohen”) because the lens disclosed there had patentee distinguished

... abrupt curvature change of the lens surface from one zone to another.” “disadvantages due to

Consistent with that statement, during prosecution of the °461 patent Portney ‘261 patent, 2:3-13.

ohen and DeCarle bifocal lenses as lacking “any true progressive distinguished the prior art C

ifocal regions.” Prosecution History, Def Br., Ex. P., VIST029127 correction powers between the b

t DeCarle’s polishing is done to provide true progressive intermediate (also noting “no suggestion tha

focal zones”). Portney further argued that his “pro gressive correction powers between the purely bi

nds to reduce or eliminate this shadow image [of the prior art]” and multifocal ophthalmic lens te

“provides progressive intermediate imaging.” Jd.

gradient of vision correction power should also be defined as Vistakon urges that the

rrection power should be “certain”. However, the Court finds no and that the vision co

n of “progressive/progressively.” Both of those terms appear basis to add those terms to the definitio

r example, what does it mean to be “controlled” or “certain”? to add ambiguity to the definition. Fo

ers to the lens as preferably being formed by a “computer-The specification of the ‘461 patent ref

require it be so formed. ‘461 patent, 5:48-49. Therefore, the controlled” apparatus, but it does not

hose terms to the definition of “progressive/progressively.” Court declines to add t

11construes the terms “progressive/progressively” to mean “A gradual Accordingly, the Court

rrection power without any abrupt correction changes or edges.” gradient of vision co

3. Zone

und in Claims 1, 5, 10(a), 20, 21, 22, 23, 28, 29, 30, 31, 32, 35, 36, 37, The term “zone” is fo

2 of the ‘744 patent; and Claims 9 and 10 of the ‘711 patent. 38 and 41-44 of the ‘461 patent; Claim 1

s that the term “zone” should be given its plain and ordinary Vision Advancement contend

“One or more regions distinguished from adjacent parts by meaning and proposes a construction of

Vistakon, on the other hand, proposes a construction of “A a distinctive feature or characteristic.”

mediate power through the high power, then back through the complete cycle, such as from the inter

he low power, and finally back to the intermediate power.” intermediate power to t

Portney’s various references to “zone” in the “961 patent Vision Advancement argues that

icographer and define the term narrowly as proposed by show that he did not act as his own lex

oints to the repeated descriptions of the prior art as having Vistakon. Vision Advancement first p

eferences disclose a “complete cycle” of powers as zones, even though none of those prior art r

:25-33; 1:34-41; 2:3-7; 2:16-20. Vision Advancement also proposed by Vistakon. See, e.g., Col. 1

cation that do not refer to a complete cycle: (1) “the radial points to other uses of zone in the specifi

> 3 he radial width of the zone for near-to-far D 2 +

4 BELEAERA BAR eet Me OF ke ed ~ &

rally placed “zone” of a constant curvature.” 5:13-14. transition”, 2:45-50, and (2) “the small cent

stakon’s narrow definition of zone is inconsistent with Finally, Vision Advancement argues that Vi

the use of that term in the other claims, such as claim 19.

xpressly defined zone in the specification as “a zone is Vistakon argues that the inventor e

om the intermediate power through the high power, considered to include a complete cycle, i.e., fr

1]

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low power, and finally back to the intermediate en back through the intermediate power to the th

hat the reference to the centrally placed zone was power.” See Col. 5:15-19. Vistakon contends t

finition of zone. Finally, Vistakon argues that its merely Portney defining an exception to its de

mpatible” with the use of “zone” in claim 19. definition is “co

ent that “zone” is not limited to a complete cycle. The Court agrees with Vision Advancem

the “461 patent to refer to various optical d by Vision Advancement, “zone” is used in As note

cycle. The Court turns first to the claims. In each regions, many of which do not refer to a complete

self defines what is required of the zone with claims in which “zone” appears, the claim it of the

es require a complete cycle in a zone. Claim o vision correction power or value. Claim 1 do respect t

from one value to the other and then back to hat “each cycle of such continuous variation 1 states t

ever, independent claims 10, 19, and 36 do not being repeated in a plurality of zones.” How the first

19 refers to “each of said zones having a first such a cycle for a zone. For example, claim require

th far vision correction power and an correction power, a second region wi region with near

d regions. . .” Claim 19 does not require that diate vision region between the first and secon interme

9 would require the power return to the near nclude a full cycle of power, which for claim 1 the zone i

dditional requirement that a zone must have orrection power. The Court will not add the a vision c

pressly provide for what power variation is . claims ex

claimed (e.g., near to far in claim 19).

s used in the specification to refer to areas nted out by Vision Advancement, “zone” i As poi

have a complete cycle. Vistakon relies plete cycle as well as areas that do not that have a com

he patentee acted as his own lexicographer description at Col. 5:15-19 to argue that t primarily on the

use of zone does not demonstrate that he ne.” The Court disagrees. The patentee’s in defining “zo

13one” as a complete cycle. As discussed above, the patentee used “zone” to refer expressly defined “z

ete cycle in many places in the specification and the claims. Additionally, the to less than a compl

y Vistakon is a description of a preferred embodiment and is specifically in language relied on b

5:5-19. Without clear indicia that the patentee defined zone to include a reference to Figure 4.

ot impose that description of a preferred embodiment onto the complete cycle, the Court will n

See Tex. Instruments, Inc. v. Int’l Trade Comm'n, 805 F.2d 1558, 1563 (Fed. meaning of “zone.”

Cir. 1986).

her argues that there is no explanation in the patent of what a “distinctive feature Vistakon furt

Vision Advancement proposes. The Court agrees that the Vision or characteristic” would be as

one as “regions distinguished from adjacent parts by a distinctive Advancement’s construction of z

ly vague. As discussed above, “zone” refers to areas having feature or characteristic” is unnecessari

h as variations in power. Thus, the Court construes “zone” as “One certain optical characteristics suc

or more areas distinguished by optical characteristics.”

4. Annular

und in Claims 5, 10(a), 14(b), 22, 32, 35, 38 and 44 of the ‘461 The term “annular” is fo

patent; Claims 4, 5, 9, 11, 14, 15 and 18 of the ‘839 patent; patent; Claims 1, 2, 8 and 9 of the ‘108

5 patent; Claim 1 of the ‘744 patent; Claims 4, 9 and 15 of 9,13, 14 and 17 of the ‘62

‘711 patent; and Claims 1, 3,5, 10 and 11 of the ‘340 patent. the ‘389 patent; 1, 2, 4, 9 and 10 of the

hat “annular” should be construed as “ring-shaped,” while Vision Advancement argues t

orming a ring.” Vision Advancement, in the alternative, Vistakon argues for a construction of “f

tion that Vistakon relies on with an exception. Vision agrees to the same dictionary defini

n’s construction to the extent that it does not include the Advancement disagrees with Vistako

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finition, i.e., “ofr elating to, or forming a ring.” Merriam-Webster’s Medical complete dictionary de

Desk Dictionary Revised Edition at 41.

ees with the parties and finds that “annular” has not been given a special The Court agr

nt and, therefore, looks to the dictionary definition proffered by the parties to definition in the pate

nstruction. See Philips, 415 F.3d at 1322 (finding dictionaries or comparable supply the necessary co

opriate when used to assist in understanding the commonly understood sources useful and appr

Thus, the Court construes “annular” to mean “of, relating to, or forming aring.” meaning of words).

5. Optical Axis

tical axis” is found in Claims 10(a), 14(a) and 14(b) of the ‘461 patent. Vision — The term “op

ed a construction of the term “optical axis” as “A straight line Advancement initially advanc

nds and extending through the center of the pupil.” Vistakon first perpendicular to the front of the le

t line normal to both faces of a lens along whose path a ray will pass without proposed, “The straigh

being deflected.”

g, the parties agreed with the Court’s proposed construction. Thus, At the Markman hearin

s” to be “A straight line perpendicular to the front of the lens and the Court construes “optical axi

extending straight through the lens without being deflected.”

IMLEGJIOSP FTO viding in eack OF Said } rst ana S€COnNa ZONES A fl

cy second region having a second visio1n correction power" which is correction powers and a

om said first vision correction power, the vision correction power significantly different fr between the first and second optical powers being progressive.

s limitation, found in Claim 10 of the ‘461 Patent, is in means-plus-The parties agree that thi

parties agree that the function is “providing in each of said first and function form. Similarly, both

t vision correction power and a second region having a second zones a first region having a firs

15gnificantly different from said first vision correction second vision correction power which is si

he parties as to the function is Vistakon’s inclusion of power...” The only disagreement between t

etween the first and second optical powers being the phrase, “the vision correction power b

progressive.”

posed by Vistakon is exactly as recited in the claim The Court finds that the function pro

orrection power between the first and second optical language. See Col. 8:33-35 ( “the vision c

anguage is directly from the claim language describing powers being progressive”). Because this l

ould be included as part of the construed function. See the function, the Court concludes that it sh

nc., 249 F.3d 1314, 1324 (Fed. Cir. 2001), vacated and Lockheed Martin Corp. v. Space Sys./Loral, I

remanded on other grounds, 535 U.S. 1109 (2002).

he corresponding structures are the only two The parties also substantially agree that t

arrying out the recited functions. Both parties agree structures disclosed in the Portney Patents for c

are disclosed for providing variable vision correction to the following recitation, “Two structures

ens posterior surface that has a continuously changing power. The first structure is an undulating l

es the inclusion of the phrase “. . . and which provides curvature...” At this point, Vistakon propos

he parties agree to the following recitation for the the recited vision correction powers.” Similarly, t

second structure: “The second structure is a

ously vary in the lens radial direction (out from the having refractive material indices which continu

inclusion of the phrase, “. .. and which provide ptical axis)...” Again, Vistakon then proposes the o

n correction powers as required by the function.” the recited visio

n concedes that its proposed language is not found Vision Advancement argues and Vistako

ever, Vistakon argues that the whole point of the in the claim language or in the specification. How

16of the invention disclosed in the Portney Patents is that the “means plus function” limitation and

active indices of the surface of the lens provides the recited undulating surface or the changing refr

vision correction powers. Def.’s Br. at 24.

vancement that Vistakon’s proposed additional language The Court agrees with Vision Ad

n correction powers required by the function’) is nowhere (“and which provide the recited visio

he Court agrees with Vision Advancement that the additional found in the intrinsic record. Further, t

structure and, in fact, is encompassed within the function proposed language is not part of the

discussed above.

e Court construes the above means-plus-function element as: Accordingly, th

limitation to be construed under 35 U.S.C. 3 112, 4 6, A means-plus-function

ng in each of said first and second zones a first region wherein the function is providi

n power and a second region having a second vision having a first vision correctio

nificantly different from said first vision correction correction power which is sig

ower between the first and second optical powers being power, the vision correction p

are disclosed for providing variable vision correction progressive. Two structures

s an undulating lens posterior surface that has a power. The first structure i

ature. The second structure is a lens having non-continuously changing curv

cs having refractive material indices which homogeneous surface characteristi

radial direction (out from the optical axis). The term continuously vary in the lens includes these structures and equivalents thereof.

anterior or posterior faces, concentrically relative to 7. Means for providing on one of said

ive pattern comprising a number of radially outwardly said optical axis, a generally repetit

] high and low vision correction powers, said regions alternating, annular regions or [sic

wers being interconnected in an optical sense by of high and low vision correction po

ansition regions having a range of progressive transition regions, each of said tr

ween the high and low vision correction powers. intermediate vision correction powers bet

itation, found in Claim 14 of the ‘461 Patent, is in Again, the parties agree that this lim

rties agree that the function is “providing on one of the means-plus-function form. Similarly, both pa

to the optical axis, a generally repetitive pattern anterior or posterior faces, concentrically relative

17ally outwardly alternating, annular regions of high and low vision comprising a number of radi

y disagreement between the parties as to the function is Vistakon’s correction powers...” The onl

egions of high and low vision correction power being interconnected inclusion of the phrase, “said r

ansition regions, each of said transition regions having a range of pro gressive in an optical sense by tr

on powers between the high and low vision correction powers.” intermediate vision correcti

he function as proposed by Vistakon is exactly as recited in the claim The Court finds that t

said regions of high and low vision correction power being language. See Col. 8:56-61 (“

e by transition regions, each of said transition regions having a range interconnected in an optical sens

n correction powers between the high and low vision correction of progressive intermediate visio

age is directly from the claim language describing the function, the powers”). Because this langu

ed as part of the function. See Lockheed Martin, 249 F.3d Court concludes that it should be includ

at 1324.

ially agree, as discussed above, that the corresponding structures are The parties also substant

e Portney Patents for carrying out the recited functions. As the only two structures disclosed in th

ng recitation, “Two structures are disclosed for carrying out before, both parties agree to the followi

undulating lens posterior surface that has a continuously this function. The first structure is an

the inclusion of the phrase“... and

ion powers.” Similarly, the parties agree to the following which provides the recited vision correct

econd structure is a lens having non-homogeneous surface recitation for the second structure: “The s

al indices which continuously vary in the lens radial direction characteristics having refractive materi

istakon then proposes the inclusion of the phrase, “... and (out from the optical axis)...” Again, V

ted vision correction powers as required by the function.” which provide the reci

18unction element, Vision Advancement argues and Vistakon As with the other means-plus-f

is not found in the claim language or in the specification. concedes that its proposed language

whole point of the “means-plus-function” clause and of the However, Vistakon argues that the

nts is that the undulating surface or the changing refractive invention disclosed in the Portney Pate

ovides the recited vision correction powers. Def.’s Br. at 24. indices of the surface of the lens pr

Court agrees with Vision Advancement that Vistakon’s As previously discussed, the

ovide the recited vision correction powers required by proposed additional language (“and which pr

trinsic record. Further, the Court agrees with Vision the function”) is nowhere found in the in

anguage is not part of the structure and, in fact, is Advancement that the additional proposed l

encompassed within the function discussed above.

e Court construes this means-plus-function element as: Accordingly, th

tion to be construed under 35 U.S.C. § 112, 4 6, A means-plus-function limita

oviding on one of the anterior or posterior faces, wherein the function is pr

optical axis, a generally repetitive pattern comprising concentrically relative to the

dly alternating, annular regions of high and low vision a number of radially outwar

ons of high and low vision correction power being correction powers, said regi

ense by transition regions, each of said transition interconnected in an optical s

ve intermediate vision correction powers between regions having a range of progressi

ection powers. ‘'wo structures are disclosed for the high and low vision corr

on power. The first structure is an undulating lens providing variable vision correcti

uously changing curvature. The second structure posterior surface that has a contin

urface characteristics having refractive material is a lens having non-homogeneous s

in the lens radial direction (out from the optical indices which continuously vary

erm includes these structures and equivalents thereof. axis). The t

erms that Vistakon Asserts Require Construction T

8. Preambles

ue is whether the preamble of the independent claims An additional claim construction iss

ns on the scope of the claims. Vistakon argues that the asserted by Vision Advancement are limitatio

19ms should be construed as limitations: claims 1, 10, 14, 19, 35, 36 preambles of the following clai

atent; claims 1 and 8 of the ‘108 Patent; claims 1, 4, 7, 14 and 18 of the ‘839 and 44 of the ‘461 P

625 Patent; claim 1 of the ‘744 Patent; claims 7 and 14 of the ‘389 Patent; claims 13 and 17 of the ‘

and 9 of the ‘711 Patent; and claims 5 and 10 of the ‘340 Patent. Patent; claims 1, 4

essential structure or steps, or if it is ‘necessary to give life, meaning, If a preamble “recites

it is a limitation.” Poly-America, LP. v. GSE Lining Te ch, Inc., 383 and vitality’ to the claim, then

ng Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d F.3d 1303, 1309 (Fed. Cir. 2004) (quoti

er hand, “i]t is well settled that if the body of the claim sets 1298, 1305 (Fed. Cir. 1999)). On the oth

eamble is not necessary to give life, meaning and vitality to out the complete invention, and the pr

gnificance to claim construction because it cannot be said to the claim, then the preamble is of no si

on.” Altiris Inc. v. Symantec Corp., 318 F.3d 1363, 1371 (Fed. constitute or explain a claim limitati

Computer Sys., Inc., 308 F.3d 1304, 1310, 64 USPQ2d 1832, Cir. 2003), (quoting Schumer v. Lab.

1837 (Fed. Cir. 2002)).

Vistakon that the preamble is a limitation in each of the apparatus or The Court agrees with

.e., ‘461 patent, claims 1, 10, 14 19, 32, 35,36 and 44; ‘108 structural claims identified by Vistakon, i

ms 7, 14 and 18; ‘625 patent, claims 7, 13 and 17; ‘340 patent, claims 1 and 8; ‘839 patent, clai

patent, claims 5 an uC So

aims, the Court finds that the preamble recites structure claims 1, 4 and 9. In each of those cl

ach of these claims, the body of the claim specifically necessary to give meaning to the claims. In e

he preamble, e.g., ‘461 patent, claim 1 - “the correction refers to elements or structures contained in t

d lens.” Therefore, the preamble necessarily gives meaning power,” and ‘108 patent, claim 1 - “sai

to the rest of the claim.

20the preambles of claims 1 and 4 are limitations of those claims. The Court does not agree that

. Those preambles indicate the purpose (vision correction) Each of those claims are method claims

not add meaning to the claimed methods. For example, even of the claimed methods, but they do

d,” the body of the claim has the same meaning. Therefore, if the preamble merely recited “a metho

strue the preambles in those claims to be limitations. the Court does not con

on from one value to the other and then back to the 9. Each cycle of such continuous variati

first

of the ‘461 patent. Vision Advancement argues that The above phrase is found in Claim 1

n because its plain meaning is understood by one of ordinary the phrase does not require constructio

skill in the art.

ain language of this phrase does not indicate that the first Vistakon argues that although the pl

ion value must each be the same in each zone, the correction value and that the second correct

standing that the first correction values should be the examiner allowed this claim “with the under

d be the same.” Vistakon contends that the examiner same and the second correction values shoul

: “all of said regions of hi gh optical powers not rejected a claim that included the language

rm high optical power, and all of said regions of low necessarily having a uniform width or a unifo

orm width or a uniform low optical power,” as “new optical powers not necessarily having a unif

t these high and low powers can be anything different” matter” because “nowhere is it disclosed tha

m 17 in the ‘461 Patent after Portney amended it to and only issued the amended claim as Clai

ding to Vistakon, the Examiner issued claim 17 of the remove the objectionable language. Accor

ge was removed and with the understanding that the ‘461 patent only after the objectionable langua

e different regions of the Portney lens were the same. “high” and “low” optical powers in th

21ce on the prosecution history. As an initial matter, The Court disagrees with Vistakon’s relian

s “understanding” beyond what is stated in the the Court declines to speculate on the Examiner’

of the statement that “[n] owhere is it disclosed ecord, Vistakon’s argument relies on the meaning r

g different.” Does that mean, as Vistakon urges, that that these high and low powers can be anythin

Court finds that the Examiner’s comments are the powers must be the same in each zone? The

e preceding sentencing in the prosecution history unclear as to what “anything different” refers. Th

w powers in each zone, e.g., a transition from high efers to various features related to the high and lo r

d as those powers to correct for near vision and to low and the “high and low powers [are] define

efer to the relationship of the powers, just as described, distant vision.” “Anything different” might r

lly, the argument raised by Vistakon relates to ather than the powers being the same. Additiona r

appears. Therefore, this does not amount to an laim 17, not claim 1 where the language at issue c

uggests. Middleton, Inc. v. Minn. Mining & Mgf. express or unequivocal disclaimer as Vistakon s

Co., 311 F.3d 1384, 1388 (Fed. Cir. 2002).

guage of this phrase does not indicate that the Vistakon acknowledges that the plain lan

Because the Court concludes that the prosecution correction values must be the same in each zone.

se, the Court finds that no construction is_ es not change the plain meaning of that phra history do

necessary.

10. Correction power being caused to vary

1 patent. Vistakon urges a construction of, “the This phrase is found in Claim 1 of the ‘46

of the lens.” Vision Advancement contends power varies due to the design of the surface dioptric

ued and that this phrase does not require any n correction power” has already been constr that “visio

gues that the term should not be limited to the nstruction. Further, Vision Advancement ar further co

2]

22he physical structure of the “surface” of the lens, as “designof” the lens, nor should it reference t

Court finds nothing in that phrase or the specification correction power is an optical property. The

g the “design of the surface of the lens” into that phrase. cited by Vistakon that would require insertin

cordingly, the Court declines to construe this phrase. Ac

11. Continuously

that this term, found in Claim 1 of the ‘461 patent, Again, Vision Advancement argues

and does not require construction. Vistakon proposes should be given its plain and ordinary meeting

continuities in progressivity.” Vistakon supports its a construction of, “The lens surface has no dis

y and the examiner’s disallowance of claim language argument by pointing to the prosecution histor

tially continuously.” The Court disagrees with allowing correction power to change “substan

tantially” because of the “inherent vagueness” of Vistakon. The Examiner rejected the use of “subs

That does not provide an explicit basis to graft t word. Vistakon’s Br., Ex. R at VIST029104. tha

n progressivity.” Without such a clear showing, nto the term a requirement of “no discontinuities i o

the Court finds no need to construe this term.

h vision correction power; Low vision correction 12. Intermediate vision correction power; Hig

Far vision correction power; and Predetermined power; Near vision correction power; vision correction power

Vistakon seeks a consiruction 0

, the Court has already construed the terms “vision patent, and Claim 1 of the “711 patent. However

se terms sufficiently convey to the jury all that on power” and “progressive” and finds that the correcti

he Court sees no need to construe the terms ary to understand these additional terms. T is necess

tance. Thus, the Court concludes no further urther to add terms of relativity or specific dis f

construction is necessary.

23Case 2:05-cv-00455-LED-JDL Document140- Filed 01/26/07 Page 23 of 29 PagelD

of high and low vision correction powers being interconnected in an optical 13. Said regions

sense by transition regions

Vistakon seeks construction of is “said regions of high and low vision The final phrase

interconnected in an optical sense by transition regions” from claim 14 of correction powers being

n Advancement once again contends that “vision correction power” has the ‘461 patent. Visio

and the parties have agreed on the proper construction for “transition already been construed,

according to Vision Advancement, this phrase does not require any further regions.” Therefore,

on, on the other hand, posits that the term should be construed as, “the regions construction. Vistak

n powers are connected by a transition region in a fashion to provide of high and low vision correctio

nce, Vistakon seeks construction of the portion of the phrase that usable vision correction.” In esse

ical sense.” Vision Advancement does not contend that phrase has states “interconnected in an opt

already been construed.

Vistakon that the phrase “interconnected in an optical sense” requires The Court agrees with

e the Court agrees that Vistakon’s proposed construction, for the most part, is construction. Whil

in an optical sense,” and supported by the portions of the ‘461 patent appropriate for “interconnected

finds the word “useable” to be vague. Therefore, the Court construes cited by Vistakon, the Court

and low vision correction powers being interconnected in an optical the term “said regions of high

mean “the regions of high and low vision correction powers are sense by transition regions” to

a transition region in a fashion to provide vision correction.” connected by

Conclusion

, the Court interprets the claim language in this case in the manner For the foregoing reasons

, the Court’s claim interpretations are set forth in a table set forth above. For case of reference

24attached to this opinion.

So ORDERED and SIGNED this 26th day of January, 2007.

bP re fe UNITED STATES MAGISTRATE JUDGE

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