Nextec Applications v. Brookwood Companies, Inc. (703 F. Supp. 2d 390, 2010)

United States District Court for the Southern District of New York 2010-03-31

Judiciary and Judicial Procedure

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

RICHARD J. HOLWELL, District Judge.

TABLE OF CONTENTS

I. BACKGROUND...........................................................395

A. Factual Background....................................................395

B. Procedural History.....................................................397

C. The Pending Motions...................................................398

1. Nextecs Motion for Partial Summary Judgment........................398

2. Nextecs Motion for Partial Summary Judgment that the Asserted

Claims are Not Anticipated Under 35 U.S.C. 102 by the Rudman Patent, the Smith Patent, and/or the Historical Ken Reign Fabric.....398

3. Brookwoods Motion for Summary Judgment of Non-Infringement and Patent Invalidity .............................................399

4. Brookwoods Contingent Motion for Partial Summary Judgment on Damage-Related Issues...........................................399

II. STANDARD OF REVIEW .................................................399

A. Summary Judgment....................................................399

III. DISCUSSION.............................................................400

A. Claim Construction.....................................................400

1. Applicable Legal Standards...............................:..........400

2. Construction of Thixotropic..........................................403

3. Construction of Shear Thinning and Shear Thinnable ...................409

B. Infringement..........................................................414

C. Patent Invalidity.......................................................420

1. Whether the Asserted Claims are Anticipated by the Rudman Patent, the Smith Patent and/or the Ken Reign Fabric.......................420

2. Whether Claims 1 and 57 of the 841 Patent are Anticipated by the KK-1 Coater ....................................................426

3. Whether Claim 1 of the 902 Patent is Invalid Based on Double Patenting and/or Anticipation......................................429

D. Brookwoods Contingent Motion for Summary Judgment on Damage-Related Issues.......................................................434

IV. CONCLUSION................................. 435

V. APPENDIX A — ASSERTED CLAIMS...............................'........435

In this action, plaintiff Nextee Applications, Inc. (“Nextee”) alleges that defendant Brookwood Companies, Inc. (“Brook-wood”) violated various Nextee patents relating to the application of materials to fabrics to produce weather-resistant fabrics. Before the Court are four motions for full or partial summary judgment— two filed by each party — relating to ten individual patent claims stemming from four patents assigned to Nextee: United States Patent Nos. 5,418,051 (the “'051 patent”), 5,869,172 (the “'172 patent”), 5,954,902 (the “'902 patent”), and 6,289,-841 (the “'841 patent”). This Opinion sets forth the Court’s rulings on the four pending motions.

I. BACKGROUND

A. Factual Background

Nextee manufactures various patented breathable water-resistant fabrics. Nextec holds several patents covering the fabrics it makes, the methods of making those fabrics, and the systems for making the fabrics. Nextec’s fabrics are sold to garment manufacturers that use the fabrics to produce a variety of consumer and military goods, including windshirts, parkas, and tents.

Nextec’s fabrics are produced by taking them through a fabric coating operation. Broadly speaking, that operation consists of rollers that pull the fabric through a machine, somewhat similar to a movie projector threading a film through a reel. At one point in the process, there is a blade or knife that is positioned transverse to the fabric. A coating composition, typically a polymer composition, is deposited in front of the blade, and the blade is then used to apply the composition to result in treatment of the fabric. A series of parameters in this coating operation can be adjusted to achieve the desired fabric properties, including: the tension of the fabric, the speed of the fabric, the sharpness of the blade, the depth of the blade as it impacts the fabric, the polymer composition and rheology, and the weave of the fabric. (See Transcript of Oral Argument, February 17, 2010 (hereinafter “Tr.”) at 5-6.)

Nextec is the assignee of the '051, '172, '902 and '841 patents (collectively, “the patents-in-suit”). The '051 patent, which is entitled “Internally Coated Webs,” is directed to “an improved process ... for treating a porous web (especially fabric) to produce a novel silicone polymer internally coated web.” The Abstract to this patent, which was filed on February 16, 1993, summarizes this process as follows:

In the process, a starting curable liquid silicone polymer is coated under pressure upon one surface of the web, and the web is then subjected to localized shear forces sufficient to move the silicone polymer composition into interior portions of the web and to distribute the silicone polymer composition generally uniformly therwithin [sic] in such planar region. Excess silicone polymer composition is wiped away from a web surface. Thereafter, the resulting web is heated or irradiated to cure the silicone polymer. Preferably a web is preliminarily impregnated with a fluoroehemical. Webs procured by this process are breathable, waterproof or highly water repellent, and flexible.

The '172 patent, filed on May 17, 1995, is entitled “Internally-Coated Porous Webs with Controlled Positioning of Modifiers Therein.” It covers “processes ... for treating a porous substrate (especially a fabric) to produce novel internally coated materials.” The Abstract of this patent summarizes the process as follows:

During treatment, a curable thixotropic material and one or more modifying materials are applied to the porous substrate as an impregnant. The treatment imparts specific properties to the end product material. Selection of the modifier material is based on the particular end use application. Sufficient energy is directed to the impregnant and porous substrate to cause the impregnant to flow into the porous substrate and force the modifier to specific positions within the substrate.

The '902 patent, filed on June 7, 1995, is entitled “Controlling the Porosity and Permeation of a Web.” The invention is summarized in the Abstract as follows:

Products and methods for controlling the porosity and permeation of a web are provided using a curable thixotropic shear thinnable polymer composition that preferably encapsulates a plurality of fibers of the web and/or forms an internal layer within the web. Webs suitable for several different uses are featured, for example medical garments resistant to permeation by a virus or bacteria. The effective pore size of the web is controlled by regulating various factors such as the thickness of the polymer composition encapsulating the fibers and the thickness and placement of the internal polymer layer. Other factors include the polymer density, structure, and crosslinking orientation, as well as the diffusion, permeation, and sorption of the polymer.

The '841 patent, filed on November 30, 1997, is entitled “Method and Apparatus for Controlled Placement of a Polymer Composition Into a Web.” It relates to “an apparatus for controlling the placement of a curable, shear-thinnable polymer composition into a porous web.” It is summarized in the Abstract as follows:

The apparatus comprises means for applying tension, means for applying the polymer composition to one surface of the tensioned web, and means for shear thinning the composition and placing it into the web to encapsulate at least some of the structural elements of the web, leaving most of the interstitial spaces open. A preferred apparatus includes one or more process heads that has mounted thereto a rigid knife blade for engagement with the web. The knife blade is movable vertically and rotationally. The process head is movable horizontally along the path of the web. The invention also relates to an apparatus for selectively placing the polymer composition into a substantially continuous region extending through the web so that the polymer composition fills the interstitial spaces and adheres adjacent structural elements of the web in the region. In the areas of the web above and below the filled region, at least some of the structural elements are encapsulated and most of the interstitial spaces are open.

Three of the patents-in-suit (the '051, '172, and '902 patents) claim their earliest priority filing date in the United States Patent and Trademark Office (“USPTO”) from applications filed with the USPTO on March 14, 1988, including Application Serial Number 167,630 (the “'630 application”). (Docket Entry (hereinafter “D.E.”) 91 ¶ 31.) The fourth patent-in-suit (the '841 patent) claims priority to March 10, 1989. (Id. ¶ 46.) Three of the patents-in-suit (the '172, '902, and '841 patents) claim priority through a chain of applications that includes Application Serial No. 08/407,191, which was filed on March 17, 1995 and which issued as U.S. Patent No. 5,876,792 (“the '792 patent”) on March 2, 1999. (See id. ¶ 10.)

Brookwood is a competitor of Nextec in the sale of certain products that are at issue in this action. Brookwood, through its affiliates, has been using coating equipment to coat textile fabrics for over forty years. (See Kirby Deck Ex. 2 (Expert Report of Thomas Colasanto) (hereinafter “Colasanto Rep.”) ¶7.) In 2006, Brook-wood was approved to supply garments to the United States military that meet the specifications of the military’s extreme cold weather garment clothing system, known as “Generation III” or “Gen III.” At that time, Nextec was already an approved supplier to the government under the Gen III program. The present dispute arose not long after Brookwood began supplying coated fabrics to government sub-contractors as part of the Gen III program. The Brookwood products at issue are known as the Agility Storm-Tec X-Treme and Eclipse Storm-Tec XTreme products (collectively, the “StormTec Products”). They were produced on a coating apparatus known as the “KK-1 coating apparatus” or the “KK-1 coater” at a Kenyon, Rhode Island facility operated by a Brookwood affiliate, Kenyon Industries. (See id.)

B. Procedural History

Nextec filed the present lawsuit in July 2007, accusing the Storm-Tec Products of infringing various Nextec patents. Pursuant to a procedure established by the Court with the input of the parties, Nextec narrowed the number of claims for purposes of expert discovery and then for dispositive motions. (See D.E. 82; D.E. 88.) As a result, Nextec’s claims have been narrowed to ten individual patent claims (“the Asserted Claims”) from the four patents-in-suit. The Asserted Claims are as follows: claims 20, 27, and 86 of the '051 patent; claims 1, 47, 88, 99 and 110 of the '172 patent; claim 1 of the '902 patent; and claims 1 and 57 of the '841 patent. (D.E. 102 ¶ 3.)

The parties then proceeded with expert discovery relating to the remaining claims. Dr. Christine Cole submitted expert reports on behalf of Nextec, and Thomas Colasanto, Dr. Peter Hauser, and Michael Platek submitted expert reports on behalf of Brookwood. On July 17, 2009, after discovery had been completed and the parties had exchanged expert reports relating to the ten Asserted Claims, the parties filed the cross-motions currently before the Court. Oral argument was held on February 17, 2010.

C. The Pending Motions

1. Nextec’s Motion for Partial Summary Judgment

Nextec moves for partial summary judgment on the question of infringement, alleging that there is no genuine issue of material fact that the Storm-Tec Products infringe claim 110 of the '172 patent and claim 1 of the '902 patent. Resolution of this motion depends in part upon the Court’s construction of the terms “thixotropic” and “shear thinning” (and “shear thinnable”), as used in these claims. Nextec has not moved for summary judgment of infringement with respect to the other eight Asserted Claims. (See generally D.E. 99, PI. Mem. in Supp. of Mot. for Partial Summ. Judg. that Storm-Tec Extreme Products Infringe U.S. Patent Nos. 5,869,172 and 5,954,902 (hereinafter “PI. Infringement Br.”).)

2. Nextec’s Motion for Partial Summary Judgment that the Asserted Claims are Not Anticipated Under 35 U.S.C. § 102 by the Rudman Patent, the Smith Patent, and/or the Historical Ken Reign Fabric

Nextec also moves for summary judgment that Brookwood cannot establish that any of the ten Asserted Claims are invalid by anticipation under 35 U.S.C. § 102 based on three specific items of alleged prior art: U.S. Patent No. 3,594,213 (the “Rudman Patent”), U.S. Patent No. 3,434,-854 (the “Smith Patent”), and a fabric swatch manufactured by Brookwood in the 1980s that Nextec refers to as the historical Ken Reign Red Fabric (the “Ken Reign Fabric”). The scope of this motion is narrow; it does not seek a declaration that none of Nextec’s patents are anticipated by any items of prior art, but simply that they are not anticipated by the three specific prior art items that are the subject of the motion. (See generally D.E. 99, PI. Mem. in Supp. of Mot. for Partial Summ. Judg. that Asserted Claims are Not Anticipated under 35 U.S.C. § 102.)

3. Brookwood’s Motion for Summary Judgment of Non-Infringement and Patent Invalidity

Brookwood moves for summary judgment of non-infringement as to all ten Asserted Claims, or in the alternative, for summary judgment of non-infringement as to seven of the ten Asserted Claims and for a declaration that the other three Asserted Claims are invalid. (Bee generally, D.E. 90.)

As an initial matter, Brookwood argues that all ten Asserted Claims should be construed as excluding coating processes that use material concentrations of solvent in the coating composition, and that so construed, Brookwood’s products do not infringe any of the claims as a matter of law. (Id) Resolution of this aspect of Brookwood’s motion requires the Court to construe the term “shear thinning” (and “shear thinnable”), as used in the Asserted Claims.

Alternatively, Brookwood advances various arguments that affect some, but not all, of the Asserted Claims. First, Brook-wood contends that the Storm-Tec Products do not infringe the '051 and '172 patents (representing seven of the ten Asserted Claims) because they are not manufactured using processes that utilize “thixotropic” polymer compositions. Resolution of this aspect of Brookwood’s motion hinges on the Court’s construction of the term “thixotropic,” as used in the claims of the '051 and '172 patents. Second, Brook-wood argues that claims of the '841 and '902 patents (representing the other three Asserted Claims) are invalid as a matter of law. Brookwood contends that claims 1 and 57 of the '841 patent are invalid because they are anticipated by prior art— specifically, by Brookwood’s own KK-1 coating apparatus. Brookwood also contends that claim 1 of the '902 patent is invalid under one of two alternative theories depending on how the claim is construed. If the claim is limited to processes utilizing polymeric compositions, Brook-wood contends it is invalid based on double patenting in light of the '792 patent. If the claim is not so limited, Brookwood argues that it is invalid because it is anticipated by the '643 patent. (Id.)

4. Brookwood’s Contingent Motion for Partial Summary Judgment on Damage-Related Issues

Finally, Brookwood argues that if the Court does not dismiss Nextec’s claims under the '841 and '902 patents on the basis of non-infringement or invalidity, then any claim for damages based on these two patents must be dismissed as a matter of law pursuant to 28 U.S.C. § 1498(a). (See generally, D.E. 97.)

II. STANDARD OF REVIEW

A. Summary Judgment

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Partial summary judgment is permitted under Rule 56(d) and is governed by the same standards as a motion for summary judgment under Rule 56(c). See James W. Moore et al., Moore’s Federal Practice, § 56.40[2] (3d ed. 2008). In reviewing the record on a summary judgment motion, the district court must assess the evidence in “the light most favorable to the non-moving party,” resolve all ambiguities, and “draw all reasonable inferences” in its favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must demonstrate that no genuine issue exists as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As to an issue on which the non-moving party bears the burden of proof, “the burden on the moving party may be discharged by ‘showing’ — that is, point out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548 (rejecting a construction of Rule 56(c) that would require the party moving for summary judgment to produce evidence affirmatively establishing the absence of a genuine issue of material fact with respect to an issue on which the nonmoving party bears the burden of proof).

If the moving party satisfies its burden of proof, the “non-movant may defeat summary judgment only by producing specific facts showing that there is a genuine issue of material fact for trial.” Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.1996); see Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. In seeking to show that there is a genuine issue of material fact for trial, the non-moving party cannot rely on mere allegations, denials, conjectures or conclusory statements, but must present affirmative and specific evidence showing that there is a genuine issue for trial. See Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505; Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). Affidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir.1991).

III. DISCUSSION

A. Claim Construction

1. Applicable Legal Standards

In order to resolve the issues raised by the pending motions, the Court must first determine the proper construction of selected terms that appear in the Asserted Claims. The parties have requested construction of two disputed terms: “thixotropic” and “shear thinning” (and “shear thinnable”). Claim construction is a question of law that is appropriate to resolve on summary judgment. See George v. Honda Motor Co., 802 F.2d 432, 434 (Fed.Cir.1986). The standards governing the construction of patent claims are familiar and well established. See generally Phillips v. AWH Corp., 415 F.3d 1303 (Fed.Cir.2005) (summarizing and restating doctrine). Because patents are addressed to practitioners in the field of the patented invention, a court should usually construe claim language consistent with its “ordinary and customary meaning” to a person of ordinary skill in the relevant art as of the effective filing date of the patent application. Id. at 1312-13. “Such a person is deemed to read the words used in the patent documents with an understanding of their meaning in the field, and to have knowledge of any special meaning and usage in the field.” Id. at 1313 (quoting Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed.Cir.1998)).

To determine the “ordinary and customary meaning” of a claim term, a court should first consult the intrinsic evidence — the claims, the specification, and the prosecution history. See, e.g., Primos, Inc. v. Hunter’s Specialties, Inc. 451 F.3d 841, 847-48 (Fed.Cir.2006); Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995). Prior art cited to the examiner during prosecution is considered part of the prosecution history. See Phillips, 415 F.3d at 1317.

“A fundamental rule of claim construction is that terms ... are construed with the meaning with which they are presented in the patent document. Thus claims must be construed so as to be consistent with the specification .... ” Merck & Co., Inc. v. Teva Pharms. USA Inc., 347 F.3d 1367, 1371 (Fed.Cir.2003) (“Merck I”) (citations omitted). Therefore, the patent specification has been called the most important guide to claim construction. See, e.g., Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996) (“[T]he specification is always highly relevant to the claim construction analysis. Usually, it is dispositive.”); Phillips, 415 F.3d at 1315 (“[T]he best source for understanding a technical term is the specification from which it arose, informed, as needed, by the prosecution history.”) (quoting Multiform Desiccants, 133 F.3d at 1478).

The specification may show that a patentee has provided its own definitions for claim terms or has narrowed the scope of the claims through disclaimer. See Phillips, 415 F.3d at 1316. In such cases, the claim is construed according to the patentee’s expressed intent even if the resulting construction departs from the ordinary meaning of the claim language. See, e.g., id. (“[T]he specification may reveal a special definition given to a claim term by the patentee that differs from the meaning it would otherwise possess. In such cases, the inventor’s lexicography governs.”); Honeywell Int’l, Inc. v. Universal Avionics Sys. Corp., 493 F.3d 1358, 1361 (Fed. Cir.2007) (“When a patentee defines a claim term, the patentee’s definition governs, even if it is contrary to the conventional meaning of the term.”). A patentee may redefine a term either explicitly or implicitly. See, e.g., Invitrogen Corp. v. Biocrest Mfg., L.P., 327 F.3d 1364, 1367 (Fed.Cir.2003) (“The applicant may also act as his own lexicographer and use the specification to implicitly or explicitly supply new meanings for terms.”); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc., 262 F.3d 1258, 1268 (Fed.Cir. 2001) (“[T]he specification may define claim terms ‘by implication’ such that the meaning may be ‘found in or ascertained by a reading of the patent documents.’ ”) (citation omitted). In order for the Court to depart from the ordinary meaning, the intrinsic evidence must clearly express the patentee’s intent to redefine claim terms away from their ordinary meaning. See Merck & Co. v. Teva Pharms. U.S.A., Inc., 395 F.3d 1364, 1370 (Fed.Cir.2005) (“Merck II ”) (“the statement in the specification must have sufficient clarity to put one reasonably skilled in the art on notice that the inventor intended to redefine the claim term”) (citations omitted); Schering Corp. v. Amgen Inc., 222 F.3d 1347, 1353 (Fed.Cir.2000) (in order to depart from the ordinary meaning of a term, the specification must exhibit an “express intent to impart a novel meaning”) (citation omitted); Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed.Cir. 1998) (to depart from the ordinary meaning, the patentee’s must appear “with reasonable clarity, deliberateness, and precision”) (citations omitted).

Though claims should be interpreted in light of the specification, it is generally inappropriate to import limitations from the specification into the claims. See, e.g., N. Am. Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 1348 (Fed. Cir.2005); Prima Tek II, L.L.C. v. Polypap, S.A.R.L., 412 F.3d 1284, 1289 (Fed.Cir.2005); see also SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1340 (Fed.Cir.2001) (describing the reading of a limitation from the written description into the claims as “one of the cardinal sins of patent law”). For example, the scope of a claim is usually not limited to the particular embodiment or embodiments described in the specification. See, e.g., Resonate Inc. v. Alteon Websystems, Inc., 338 F.3d 1360, 1364-65 (Fed.Cir.2003) (“[A] particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment.”)

The specification may show that a patentee has narrowed the scope of the claims through disclaimer. See Phillips, 415 F.3d at 1316. And while it is generally inappropriate to important limitations from the specification into the claims, “[w]here the specification makes clear that the invention does not include a particular feature, that feature is deemed to be outside the reach of the claims of the patent, even though the language of the claims, read without reference to the specification, might be considered broad enough to encompass the feature in question.” SciMed, 242 F.3d at 1341. In other words, “[c]laims are not correctly construed to cover what was expressly disclaimed.” Id. at 1341-42 (citation omitted). The rationale for this rule is clear: “[t]he public notice function of a patent and its prosecution history requires that a patentee be held to what he declares during the prosecution of the patent.” Springs Window Fashions LP v. Novo Indus., LP, 323 F.3d 989, 995 (Fed.Cir.2003). However, the doctrine of disclaimer will only be applied to limit the construction of a claim if the disclaimer is “clear and unmistakable” — in other words, it must be unambiguous — when the patent claims, specification, prosecution history and other evidence are considered as a whole. See, e.g., Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1326 (Fed.Cir.2003); Invitrogen, 327 F.3d at 1367.

The prosecution history, also part of the intrinsic evidence, may “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. “Yet because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes.” Id.

“Extrinsic evidence is that evidence which is external to the patent and file history, such as expert testimony, inventor testimony, dictionaries, and technical treatises and articles.” Vitronics, 90 F.3d at 1584. While a district court may consult extrinsic evidence as part of the claim construction analysis, such evidence is considered less reliable than the intrinsic evidence. See, e.g., Phillips, 415 F.3d at 1317-19 (“[T]he court should keep in mind the flaws inherent in each type of [extrinsic] evidence and assess that evidence accordingly.”).

These guidelines are not exhaustive. As the Federal Circuit has noted, “there is no magic formula or catechism for conducting claim construction,” and a court is not “barred from considering any particular sources or required to analyze sources in any specific sequence, as long as those sources are not used to contradict claim meaning that is unambiguous in light of the intrinsic evidence.” Phillips, 415 F.3d at 1324. “[W]hat matters is for the court to attach the appropriate weight ... to those sources in light of the statutes and policies that inform patent law.” Id.

2. Construction of “Thixotropic”

The parties disagree on the proper construction of the term “thixotropic,” as used in the Asserted Claims of the '051 and '172 patents. The Asserted Claims of the '051 patent disclose the use of a “shear thinning thixotropic polymer composition” and the Asserted Claims of the '172 patent disclose the use of “shear thinnable thixotropic polymeric material” to treat a porous web.

By way of background, the parties agree that in the field of polymer chemistry, the terms “shear thinnable” and “thixotropic” have generally accepted technical definitions (hereinafter, the “conventional chemistry definition(s)”). Under the conventional chemistry definitions, both terms refer, at the broadest level, to liquid flow behavior in which the viscosity of a material is lowered by the application of energy thereto — in this context, shear energy imparted by a blade or knife across the fabric being treated. (See D.E. 105 at ¶¶ 26-30; Tr. at 10, 59.) The distinction between the two is that a shear thinnable material will experience a reduction in viscosity in response to the application of an increasing rate of shear, whereas a thixotropic material will experience a reduction in viscosity over time in response to a constant or steady shear force. (See D.E. 105 at ¶¶ 26-30 (citing expert testimony and technical treatises).) The two terms are not necessarily mutually exclusive. A material whose viscosity decreases in response to either a constant shear force or an increasing shear force would be both thixotropic and shear thinnable. (Tr. at 23-24.) On the other hand, a material whose viscosity decreases in response to an increasing shear force but not in response to a constant shear force would be shear thinnable but not thixotropic.

Brookwood urges the Court to adopt the conventional chemistry definition of thixotropic in construing the Asserted Claims of the '051 and '172 patents. It argues that ordinarily skilled artisans would have understood that the inventor was incorporating the conventional definitions when he used the terms “shear thinnable” and “thixotropic” in the Asserted Claims in light of the patent specifications themselves and the '630 application from which both the '051 and '172 patents claim priority-

Nextec, on the other hand, argues that the inventor provided a “special definition” of the term “thixotropic” in the '172 patent that differs from the conventional chemistry definition described above. Nextec contends that “the inventor’s lexicography governs” the construction of the term “thixotropic” in the '172 patent, thereby supplanting the conventional chemistry definition. Nextec also argues that the alleged “special definition” in the '172 patent should be applied retroactively to the construction of term “thixotropic” in the claims of the related '051 patent, from which the '172 patent claims priority, even though the '051 patent issued years before the '172 patent.

Nextec’s argument in support of its proposed construction is unpersuasive. First, and most importantly, while Nextec maintains that the inventor clearly provided a “special definition” of thixotropy that supplants its conventional chemistry definition, a review of the intrinsic record relating to the '051 and '172 patents suggests that the passage that Nextec maintains is a “special definition” would not have been viewed by an ordinarily skilled artisan as such. Nextec argues that the “special definition” in the '172 patent includes a detailed statement of the results achieved by the use of a thixotropic polymer in the claimed process. But this over-reads the language employed and conflates a rather straightforward definition of thixotropic (in terms of viscosity and liquid flow behavior) with the specialized results that the patented process ultimately achieves (encapsulation of fibers, creation of an internal layer of polymer composition within the porous web, etc.). Properly read, the reference to thixotropy in the '172 patent is nothing more than an introduction to the concept of thixotropy in broad terms; it would not be understood as a specialized definition that supplants the ordinary meaning of the term “thixotropic” in the field of chemistry.

Second, while Nextec has argued adamantly throughout these proceedings that the inventor’s “lexicography” governs the construction of the term “thixotropic” in the patents-in-suit, Nextec conspicuously ignores the fact that the inventor described the term “thixotropy” in the '051 patent in the same broad language used in the '172 patent, but omitted the description of the results of the patented process that is also found in the '172 patent. When the '051 and '172 patents are read side by side, it seems obvious that the inventor intended to use the term “thixotropy” in both patents in its conventional sense, and that the added language in the '172 patent was not intended to create a specialized, indeed unique definition, but simply to note that the use of a thixotropic polymer (in its ordinary sense) in the patented process achieves the desired results.

As noted above, the Court’s central task at the claim construction stage is to determine how a person of ordinary skill in the relevant art — here, the art of fabric coating — would construe the claims as of the effective filing date of the relevant patent application. See Phillips at 1312-13. In this case, the critical question the Court must answer is whether the intrinsic rec-

ord relating to either the '051 patent or the '172 patent would reasonably put an ordinarily skilled artisan on notice that the inventor provided a special definition of thixotropic that supplants or excludes its ordinary meaning in the field of chemistry. See Merck II, 395 F.3d at 1370 (the patentee must express his or her intent to redefine a particular term with “sufficient clarity to put one reasonably skilled in the art on notice that the inventor intended to redefine the claim term.”). The Court concludes, based on its review of the applicable intrinsic evidence — the claims, the specification, and the prosecution history— that the record does not clearly reveal such an intent to redefine the meaning of thixotropic.

(а) The '051 Patent

The Asserted Claims of the '051 patent disclose substrates which have been treated with a “curable, shear thinning thixotropic polymer composition.” In seeking to give meaning to these claims terms, the Court looks first to the specification. See, e.g., Vitronics Corp., 90 F.3d at 1582. So far as the Court is aware, the specification of the '051 patent does not define shear thinning. On the other hand, the specification does set forth what appears to be a short-hand definition of thixotropy in a section describing the preferred embodiments. That definition is as follows: “[t]he word ‘thixotropy’ refers herein to liquid flow behavior in which the viscosity of a liquid is reduced by shear agitation or stirring.” ('051 patent, Col. 41,11. 41^13.) This statement is not inconsistent with the conventional chemistry definition. Indeed, it is perfectly consistent with that definition, but is incomplete in that it lacks the concept that the reduction in viscosity is achieved over time in response to a steady shear force. Under these circumstances, the mere inclusion of this general statement in the specification would not, without more, reasonably put the reader of the patent on notice that the patentee intended to deviate from the ordinary meaning of the term “thixotropic” within the field of polymer chemistry. See Merck II, 395 F.3d at 1370; Vitronics Corp., 90 F.3d at 1582 (“it is always necessary to review the specification to determine whether the inventor has used any terms in a manner inconsistent with their ordinary meaning.”) (emphasis added).

Moreover, if the inventor intended to create a new definition of thixotropic to refer to liquid flow behavior in which the viscosity of the liquid,is reduced by any rate of shear agitation (constant or increasing), the term “shear thinning” in the Asserted Claims of the '051 patent would appear to provide no added meaning because in its broadest sense, shear thinning also refers to the reduction in viscosity of a liquid by the application of shear energy thereto. (See '172 patent at Col. 17,11. 65-67; '902 patent at Col. 7, 1. 66 to Col. 8, 1. 1; '841 patent at Col. 17,11. 4-6; D.E. 105 ¶¶ 28-29.) Thus, the terms “shear thinning” and “thixotropic” would be duplicative of one another in the Asserted Claims of the '051 patent. However, it is a well-established principle of claim construction that “all claim terms are presumed to have meaning in a claim.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1119 (Fed.Cir.2004); see also Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed.Cir.2006) (“claims are interpreted with an eye toward giving effect to all terms in the claim”). In view of the overlap between this “definition” of thixotropic and the meaning of the term “shear thinning,” and in view of its lack of specificity, an ordinarily skilled artisan would more likely view the above-quoted passage in the '051 patent as a providing a general reference to the concept of thixotropy, rather than defining the term in a way that supplants its ordinary meaning.

Review of the '630 application from which the '051 patent claims priority further suggests that the reference to thixotropy in the '051 patent would not be understood by a reasonably skilled artisan as a redefinition of that term, to the exclusion of the conventional chemistry definition. The '630 application, which is identified as a parent application on the cover page of the '051 patent, is part of the intrinsic record relating to the '051 patent. See Goldenberg v. Cytogen, Inc., 373 F.3d 1158, 1167 (Fed.Cir.2004) (parent application is part of a patent’s prosecution history); Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 265 F.3d 1294, 1305 (Fed. Cir.2001) (“The prosecution history of a related patent can be relevant if ... it addresses a limitation in common with the patent in suit”); Wang Labs., Inc. v. America Online, Inc., 197 F.3d 1377, 1384 (Fed.Cir.1999) (the prosecution history of parent application is relevant to the construction of a continuation-in-part application if both applications contain common subject matter). The discussion of thixotropy in the '630 application makes clear that the alleged “definition” in the '051 patent is not really a definition at all. The first time the inventor mentioned thixotropy in the '630 application, he explained that, “[t]he word thixotropy, derived from two Greek words, means (literally ‘change by touch’) flow behavior in which the viscosity is reduced by agitation or stirring is called thixotropic.” [sic] ('630 Application at 87:1-4.) This sentence, the reader will observe, is almost identical to the “definition” of thixotropy that was provided in the '051 patent. After introducing the concept of thixotropy in this way, the inventor went on to provide several more paragraphs of detail about thixotropy, in which the concept was more fully explained and defined. Thus, the passage in the '630 application describing the etymology of the term “thixotropy” was not a comprehensive definition, but rather an introduction of the idea of thixotropy at its most general level. The corresponding statement in the '051 patent would be understood in the same way by an ordinarily skilled artisan reading that patent in the context of the '630 application from which it claimed priority.

Moreover, in the '630 application, the inventor made a number of statements that indicated that he was using the terms “shear thinning” and “thixotropic” consistently with their conventional chemistry definitions. For example, the inventor explained that “impregnants that decrease in viscosity with increased shear stress (shear thinning) are described as pseudo-plastic.” (Arroyo Decl. Ex. 18 ('630 Application) at 85:28-86:1.) (emphasis added). This suggests that the inventor was using shear thinning as that term is conventionally understood in the field of chemistry— ie., to mean a reduction in viscosity in response to an increased shear stress. Similarly, the inventor used the term “thixotropic” consistently with its conventional chemistry definition. After describing tests that can be performed to determine whether a liquid is thixotropic or not, the inventor stated: “[i]t is always somewhat disconcerting to take a viscosity reading under a constant shear rate and find that the viscosity drifts downward under this steady shear rate condition. With time, a minimum of the test and a given rest period, the structural viscosity rebuilds, although the recovery may never be complete. This type of flow is typical of thixotropic systems.” (Id. at 87:22-88:2.) (emphasis added). Thus, the inventor employed a conventional definition of the term. In the next sentence, the inventor stated that “Rheopexy is the opposite of thixotropy in that under a constant shear rate, the viscosity increases ...” (Id. at 88:3-4.) If an increase in viscosity under a constant shear rate reflects the opposite of thixotropy, it follows that thixotropy is a decrease in viscosity under the same conditions — ie., under a constant shear rate.

That the inventor was using the terms “shear thinning” and “thixotropic” as they are conventionally understood in the '630 application is confirmed by a chart provided in that application summarizing various types of “non-Newtonian behavior” (ie., changes in viscosity in response to shear stress). The chart depicted the following;_

Imposed Decrease [in Increase [in Condition_viscosity!_viscosity!_

Increased Pseudoplastic Dilitant (shear shear rate (shear thickening) _thinning)_

Increased Thixotropic Rheopatie shearing time_

It is obvious from this chart that where a liquid is exposed to an increased shear rate and experiences a decrease in viscosity, the inventor considered that to be “shear thinning.” And while not explicit, it is equally clear that the reference in the chart to the imposed condition of “increased shearing time” assumes a constant shear rate, given the inventor’s previous definition of “rheopexy” as an increase in viscosity in response to a constant shear rate and his placement of “rheopatie” in this chart. It follows that thixotropy refers in this chart to a decrease in viscosity over time at a constant shear rate.

In light of the foregoing textual analysis, the Court does not believe that a reader of the '051 patent would interpret the inventor’s reference to thixotropy as “liquid flow behavior in which the viscosity of a liquid is reduced by shear agitation or stirring” as a redefinition of the term “thixotropy.” Because the inventor did not clearly supplant or exclude the conventional chemistry definition of thixotropy in the '051 patent, the Court construes the term consistently with its ordinary and customary meaning within the relevant field. See Merck II, 395 F.3d at 1370. Accordingly, the Court construes the term “thixotropic” in the '051 patent to mean: “having liquid flow behavior in which the viscosity of a liquid decreases over time in response to the application of a constant or steady shear force.”

(b) The '172 Patent

The Court also concludes that the inventor did not redefine the term “thixotropic” with sufficient clarify in the '172 patent to warrant departing from the conventional chemistry definition in construing the Asserted Claims of that patent. The Court’s reasoning is similar to that employed in interpreting the identical term in the '051 patent, though there are certain differences between the two patents that warrant further discussion.

The Asserted Claims of the '172 patent disclose articles that have been treated with “a curable, shear thinnable, thixotropic polymeric material” and a method of applying a combination of treating materials, including “a curable, shear thinnable, thixotropic material,” to a porous web. The '172 patent contains a short-hand definition of thixotropy that incorporates in haec verba the language used in the '051 patent but, notably, adds a statement of the results of the patented process which, of course, uses a thixotropic material. The relevant passage states:

The word “thixotropy” refers herein to liquid flow behavior in which the viscosity of a liquid is reduced by shear agitation or stirring so as to allow the placement of the liquid flow to form: (a) a thin film of polymer composition encapsulating the structural elements (i.e., the fibers or filaments) making up the web leaving at least some of the interstitial spaces open; (b) an internal layer of a polymer composition between the upper and lower surfaces or the web; or (c) some combination of the foregoing.

('172 Patent at Col. 18,11. 28-36.)

Nextec argues that the inventor clearly set forth a “special definition” of thixotropic in this passage that supplants the conventional chemistry definition. The Court disagrees. The description of thixotropy provided in this passage is not actually inconsistent with the conventional chemistry definition. As with the term’s use in the '051 patent, the inventor begins with an introduction to the concept of thixotropy at its most general level. The further explication of the results of the patented process is just that; it would be a most unusual reading of this passage to interpret it as a special definition of thixotropy itself.

Other intrinsic evidence supports a conclusion that the above-quoted passage was not intended to be a radical redefinition of the term “thixotropic,” to the exclusion of its ordinary meaning. The '172 patent specification explicitly incorporated the '630' application and the '051 patent by reference, such that those documents are effectively part of the '172 patent specification. See Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1329 (Fed.Cir.2001); see also note 8, supra. As discussed extensively above, the '630 application clearly used thixotropic in its conventional chemistry sense. By incorporating the '630 application by reference into the '172 patent specification, the inventor thus incorporated the usage of thixotropic reflected in that application. See id. Moreover, the Court has concluded that ordinarily skilled artisans would construe thixotropic in the '051 patent according to its conventional definition as well, as the inventor failed to clearly supplant that definition. Because claim terms appearing in related patents should generally be construed consistently across related patents, the term “thixotropic” should be similarly construed in the '172 patent. See NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1293 (Fed.Cir.2005) (“Because NTP’s patents all derive from the same parent application and share many common terms, we must interpret the claims consistently across all asserted patents.”).

Finally, while Nextec’s proposed “special definition” of thixotropic in the '172 patent would not necessarily render that term redundant in relation to the term “shear thinnable” in the Asserted Claims, it would likely render other elements of claim 47 of the '172 patent superfluous, in violation of the well-established principle that claims should be construed so as to give effect to all limitations therein. See Bicon, Inc., 441 F.3d at 950; Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1307 (Fed.Cir.2000). Claim 47 of the '172 patent discloses:

A porous article comprising:

a porous web having a plurality of web members with interstices therebetween; an at least partially cured material derived from a curable, shear thinnable, thixotropic polymeric materials which forms:

a thin film substantially encapsulating at least some of the web members leaving at least some of the interstices open, or

a substantially continuous internal layer; and

one or more modifiers, wherein said modifer(s) is selectively positioned within the web.

('172 patent at Col. 72,11. 25-36) (emphasis added). Thus, the claimed results of using a “shear thinnable, thixotropic polymeric material” (i.e. “a thin film substantially encapsulating ... at least some of the members” or an “internal layer”) are listed as an additional elements of claim 47. If those results were actually part of the operative definition of the term “thixotropic,” these additional elements of claim 47 would be redundant because the requirement to obtain those results would be subsumed within the meaning of thixotropic. For these reasons, the Court believes that an ordinarily skilled artisan reviewing the purported “special definition” relied on by Nextec in the context of the claims asserted in the '172 patent specification and the prior related filings would not view it as a redefinition of the term “thixotropic” that supplants its ordinary meaning within the field of chemistry. This passage simply introduces the concept of thixotropy in its broadest sense, and then describes the results obtained in the patented process by the application of shear energy to a polymer that is thixotropic in its conventional sense. Consequently, the Court construes the term “thixotropic” in the Asserted Claims of the '172 patent, as it did in the Asserted Claims of the '051 patent, to mean: “having liquid flow behavior in which the viscosity of a liquid decreases over time in response to the application of a constant or steady shear force.”

3. Construction of “Shear Thinning” and “Shear Thinnable”

The parties also disagree over the proper construction of the terms “shear thinning” and “shear thinnable,” at least one of which appears in each of the ten Asserted Claims. The specifications of three of the patents-in-suit state that, “[t]he term ‘shear thinning,’ in its broadest sense, means the lowering of the viscosity of a material by the application of energy thereto.” ('172 patent at Col. 17, 11. 65-67; '902 patent at Col. 7, 1. 66 to Col. 8, 1. 2; '841 patent at Col. 17,11. 4-6.) Nextec argues that shear thinning should be construed in accordance with that statement, and that consequently, the term “shear thinnable” would mean, in its broadest sense, “capable of having its viscosity lowered by the application of energy thereto.”

Brookwood contends, however, that the patentee specifically disclaimed the use of solvents (or, at minimum, the use of material concentrations of solvents) in the specifications and during the prosecution history of the patents-in-suit, such that the claim terms “shear thinning” and “shear thinnable” must be read as containing an additional limitation that excludes from the scope of the patents-in-suit any coating formulations or processes in which solvents (or at minimum, material concentrations of solvents) are used in the coating composition. The Court must thus decide whether the claim terms “shear thinning” and “shear thinnable” contain such a limitation on solvent use.

As noted above, claim construction begins with the claims themselves, the written description in the specification, and the prosecution history. See Primos, Inc., 451 F.3d at 847-48. While “[c]laims are not correctly construed to cover what was expressly disclaimed,” SciMed, 242 F.3d at 1341-42, the doctrine of disclaimer will only be applied to limit the construction of a claim if the disclaimer is “clear and unmistakable.” See, e.g., Omega Eng’g, 334 F.3d at 1326. The question, therefore, is whether any such disclaimer of solvent use occurred here when the evidence is viewed as a whole.

The Court looks first to the language of the Asserted Claims. The word “solvents” does not appear in any of the ten Asserted Claims, and there is nothing in the language of the Asserted Claims themselves that can be construed as an explicit or implicit disclaimer of the use of solvents. This weighs against a finding of disclaimer. Moreover, at least one of the ten Asserted Claims (claim 88 of the '172 patent) contains a reference that could be understood as a reference to solvent use. Claim 88 of the '172 patent discloses: “[t]he article of claim 47, wherein said curable, thixotropic material containing one or modifiers therein comprises a diluent.” ('172 patent, Col. 74, 11. 47-49) (emphasis added). As the parties appear to agree that the word “diluent” can be understood in this context as a reference to solvents, the reference in claim 88 to diluents provides a good indication that a person of ordinary skill in the art would have understood that the inventor was not expressly disclaiming the use of solvents in its inventions (and certainly not in that particular claim).

Patent claims must also be read in light of other intrinsic evidence, beginning with the specification. See Markman, 52 F.3d at 979-80; Phillips, 415 F.3d at 1315-16. In the specifications of the '172, '902, and '841 patents, shear thinning is defined as follows: “[t]he term ‘shear thinning,’ in its broadest sense, means the lowering of the viscosity of a material by the application of energy thereto.” ('172 patent at Col. 17, 11. 65-67; '902 patent at Col. 7, 1. 66 to Col. 8, 1. 2; '841 patent at Col. 17,11. 4-6.) Nothing in this statement expressly disclaims the use of solvents, or even alludes to a requirement that the polymers used in the coating composition be solvent free. However, Brookwood alleges that Nextec disclaimed solvent use elsewhere in the specification (and during the relevant prosecution history). Specifically, Brook-wood contends that the background sections of the specifications of the patents-in-suit distinguished certain prior art coating techniques based on the fact that those techniques use solvents to aid in the incorporation of the coating composition in the web, whereas Nextec’s processes do not use solvents. For example, Brookwood points to the following excerpt from the '841, '172 and '902 patent specifications:

Prior art treatment of webs that force a composition into the spaces of the web while maintaining some breathability have relied on using low viscosity compositions or solvents to aid in the flow of the composition. U.S. Pat. No. 3,594,213 [Rudman] describes a process for impregnating or coating fabrics with liquefied compositions to create a breathable fabric. This patent imparts no energy into the composition to liquefy it while forcing it into the spaces of the web. The composition is substantially liquefied before placement onto and into the web. U.S. Pat. No. 4,588,614 teaches a method for incorporating an active agent into a porous substrate. This patent utilizes a solvent to aid in the incorporation of the active agent into the web.

('841 patent, Col. 3, 11. 11-22; '172 patent, Col. 3,11. 26-37; '902 patent, Col. 2,11. 40-52) (emphasis added).

The Court does not agree that this passage is the type of clear and unambiguous disclaimer of solvent use that would support a conclusion that such a limitation should be read into the definition of shear thinning. At no point in this passage does the patentee expressly state that its processes do not use solvents, diluents or viscosity reducing agents. Nor does Brookwood point to any passage in the specification where an explicit disclaimer of this type occurred. In fact, the specifications of two of the patents-in-suit state clearly that additives, including diluents (i.e. solvents), may be added to the coating composition for various purposes, including to control its rheology and viscosity, undermining any suggestion that an ordinarily skilled artisan would view this passage as a general disclaimer of all solvent use. See '172 patent at Col. 47, 11. 17-21 (“When a diluent is incorporated into the polymer composition, the additives and/or modifiers may be moved by controlling the volatization of the diluent ... Appropriate diluents include water and low molecular weight silicones and solvents ...”) (emphasis added); '051 patent at Col. 24,1. 66 to Col. 25, 1. 1 (“In such compositions useful in the present invention, a control of compositional rheology, and particularly of complex viscosity, is accomplishable, if desired, by the selective addition of diluents and additives.”); id. at Col. 61,11. 56-59 (asserted claim covering “the method according to claim 47 that between the saturating and the pressuring further comprises adding diluents as required to the impregnant to decrease viscosity ... ”). Such references to the addition of diluents to the coating composition would make little sense if the inventor had generally disclaimed solvent use in the above-quoted passage or elsewhere. Thus, reading in a limitation on solvent use into the terms “shear thinning” and “shear thinnable” seems untenable. See Bicon, Inc., 441 F.3d at 950 (“claims are interpreted with an eye toward giving effect to all terms in the claim”).

The Court also looks to the prosecution history of the patents-in-suit and related patents in order to determine whether the inventor disclaimed the use of solvents (or material concentrations of solvents) when seeking to obtain these patents. See Advanced Cardiovascular, 265 F.3d at 1305. Brookwood argues that during the prosecution history of the patents-in-suit and related patents — particularly during the prosecution history of the '792 patent, on which the '172, '841 and '902 patents rely for priority — the inventor distinguished certain prior art techniques from its invention on the basis that those techniques relied on solvents, whereas Nextec’s processes do not. Nextec disagrees, arguing that when the prosecution history is viewed as a whole, no unambiguous disclaimer of solvent use occurred.

The Court finds that the prosecution history is, at best, ambiguous with respect to whether Nextec represented that it did not use solvents in its processes. There are certainly statements made in the prosecution history of the '792 patent that, read in isolation, might lead a reader of the patent to believe that the invention did not cover processes in which solvents are used. For example, the inventor stated to the USPTO:

In addition to the above, Lauchenauer (4,588,615) utilizes solvents to aid in the penetration of the gel into the porous substrate ... The solvent plays a critical role in the amount of penetration of the gel (see abstract). Once the solvent is evaporated, the degree of penetration is halted. Applicant does not utilize solvents and shear thins viscous materials in the order of hundreds of thousands (105) to millions (106) of centipoise ...

... Baer and Lauchenauer rely on plasticizers, wetting agents, liquids, or solvent based solutions to help penetrate the material into the web and achieve complete saturation or impregnation, without any control over the placement of said materials. Applicant’s invention does not rely on viscosity reducing agents. It is not obvious to one of ordinary skill in the art that Lauchenauer’s method of penetrating a solvent based gel into a web, combined with Baer’s radio frequency would allow one to control the degree of encapsulation and polymer placement of a highly viscous material into a web through the use of shear thinning.

(D.E. 92, Ex. 12 (May 6, 1997 Response to Office Action in Serial No. 08/407,191 ('792 patent)), at 14, 15) (emphasis added). Nextec maintains, however, that when this explanation is read as a whole, it is clear that the distinction being drawn by the inventor was not that the prior art used solvents and the patented invention did not, but simply that the prior art relied on solvents for the purpose of controlling or aiding in the flow of the composition and/or in the incorporation of the active agent into the web, whereas this invention relied on shear thinning for those purposes. Yet the language used to draw that distinction in the above-quoted passage lacked such precision. Read in isolation, the unqualified statement that “applicant does not utilize solvents” could lead a person of ordinary skill in the art of fabric coating to understand that the inventor had disclaimed any use of solvents in the '792 patent (and subsequent applications claiming priority therefrom).

However, claim construction does not turn on interpretation of isolated excerpts from a patent’s prosecution history, as an ordinarily skilled artisan would look to the entire prosecution history, as well as the claim language and the specification in attempting to discern the scope of a claim. See Phillips, 415 F.3d at 1313-17. And other aspects of the prosecution history of the '792 patent undermine the notion t