• ALJ Pender Issues Claim Construction Order in Certain Opaque Polymers (337-TA-883)
  • January 10, 2014 | Authors: Eric W. Schweibenz; Thomas C. Yebernetsky
  • Law Firm: Oblon, Spivak, McClelland, Maier & Neustadt, L.L.P. - Alexandria Office
  • On January 2, 2014, ALJ Thomas B. Pender issued the public version of Order No. 13 construing the disputed claim terms from the asserted patents in Certain Opaque Polymers (Inv. No. 337-TA-883).

    By way of background, the investigation is based on a complaint filed by Rohm and Haas Company, Rohm and Haas Chemicals, and The Dow Chemical Company (collectively, “Dow”) alleging violation of Section 337 in the importation into the U.S. and sale of certain opaque polymers that infringe one or more claims of U.S. Patent Nos. 6,020,435 (the ‘435 patent); 6,252,004 (the ‘004 patent); 7,435,783; and 7,803,878.

    The first disputed claim term, from claim 1 of the ‘435 patent, was “under conditions wherein there is no substantial polymerization of the monomer.” ALJ Pender noted that the parties’ dispute with respect to this claim term could be broken down into three separate arguments: (1) how the “conditions wherein there is no substantial polymerization” are achieved; (2) what level of polymerization constitutes “no substantial polymerization”; and (3) when the “conditions wherein there is no substantial polymerization” must be met. As to the first argument, ALJ Pender rejected Respondents Organik Kimya San. Ve Tic. A.S.; Organik Kimya Netherlands B.V.; Organik Kimya US, Inc.; Turk International, LLC; and Aalborz Chemical, LLC’s (collectively, “Organik”) argument that Dow disclaimed all but four means for achieving “conditions wherein there is no substantial polymerization.” Accordingly, ALJ Pender held that one of ordinary skill in the art would interpret the disputed claim language according to its plain language. Regarding “no substantial polymerization,” ALJ Pender rejected Organik’s claim construction argument that the term should be construed to mean “no appreciable free radicals.” Instead, ALJ Pender determined that “no substantial polymerization” should take on its plain and ordinary meaning. Regarding the third and final argument, ALJ Pender rejected both Dow’s and Organik’s arguments because they improperly imported a temporal limitation into the claim. Accordingly, ALJ Pender held that the claim term should take on its plain and ordinary meaning. Therefore, ALJ Pender found that the term “under conditions wherein there is no substantial polymerization of the monomer” should be construed to take on its plain and ordinary meaning.

    The second, and final, claim term in dispute was the term “polymerization inhibitor,” which appears in claims 1-3 of the ‘004 patent. Organik argued that the term should be construed to mean “a compound that reacts with radicals to form other species and completely halts polymerization until it is consumed.” ALJ Pender rejected this interpretation because it ignored the plain language of the claim, which does not require the polymerization inhibitor to “completely halt” polymerization. Accordingly, ALJ Pender held that the claim term would take on its plain and ordinary meaning.