Mich & Mich TGR, Inc. v. Brazabra (128 F. Supp. 3d 621, 2015)

MEMORANDUM AND ORDER

MATSUMOTO, District Judge.

Mich & Mich. TGR, Inc. (“plaintiff’) commenced this action alleging that defendant Brazabra, Corp. (“defendant” or “Brazabra”) are infringing upon plaintiffs “Bra Strap Retainer,” U.S. Reissue Patent No. 43,766 by, inter alia, knowingly and willingly importing into the United States, selling, and causing to be sold, and offering for sale within this judicial district and elsewhere, retainers for brassiere straps that infringe upon plaintiffs patents without plaintiffs permission or authorization. (ECF No. 1, Complaint (“Compl.”) ¶¶ 8-11, dated October 1, 2014.) Plaintiff seeks injunctive relief requiring defendant and its agents to cease production, advertising and sale of the alleged infringing product, as well as destruction of all products infringing upon plaintiffs patents. (Compl. ¶ B.) Plaintiff also seeks an accounting of defendant’s profits from the sale and resale of the allegedly infringing product, in order that plaintiff may be compensated, as well as attorney’s fees and costs, and treble damages. (Compl. ¶¶ C-F.)

Presently before this court is defendant’s motion for summary judgment to dismiss all of plaintiffs claims pursuant to Federal Rule of Civil Procedure (“Rule”) 56, and plaintiffs opposition thereto. (ECF No. 11, Defendant’s Motion for Summary Judgment and Statement of Material Facts Pursuant to Rule 56.1) (“Mot. and Rule 56.1 Stmt.”); ECF No. 12, Defendant’s Memorandum in Support of Motion for Summary Judgment (“Def. Mem.”); ECF No 13, Declaration of Theodore Davis in Support of Motion for Summary Judgment (“Davis Deck”; ECF No. 14, Declaration of Scott Spencer in Support of Defendant’s Motion for Summary Judgment (“Spencer Deck”); ECF No. 15, Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment (“PI. Opp.”), Plaintiff’s Rule 56.1 Statement (“PI. 56.1 Stmt.”), Plaintiffs Supplemental Claim Construction (“PI. Claim Constr.”), Declaration of Joseph Dunne in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment (“Dunne Deck”); ECF No. 16, Defendant’s Reply in Support of Its Motion for Summary Judgment (“Def. Reply”); Reply Declaration of Scott Spencer in Support of Defendant’s Motion for Summary Judgment (“Spencer Reply Deck”); ECF 23, Defendant’s Supplemental Letter re New Caselaw dated February 18, 2015(“Def. Ltr.”); Oral Argument Transcript dated February 12, 2015 (“Oral Arg. Tr.”).) Defendant contends that its product does not literally infringe the '766 patent, that plaintiff is estopped from alleging a theory of infringement under the doctrine of equivalents and, in any event, any claim of equivalence is meritless. Upon consideration of the parties’ submissions and oral argument, for the reasons set forth below, defendant’s motion for summary judgment of non-infringement is granted.

BACKGROUND

Plaintiff is the owner by assignment of the U.S. Reissue (“RE”) Patent No. 43,766 for a Bra Strap Retainer (the “'766 patent”), issued on October 23, 2012. The '766 patent, or the patent-in-suit, describes an invention wherein a “new bra strap retainer [is used] for preventing the straps from falling from the user’s shoulder.” (Compl. Ex. A, Col. 1.) The device “includes a retaining member having an elongate main portion and opposite end portions which are adapted to keep straps of a bra on a user’s back in proximate relationship to one another.” (Id., Col. 2.) The '766 patent describes a device that “essentially pulls the [bra] straps on the user’s back together” and provides an “easy and convenient [method] to wind the straps disposed upon the user’s back through the bra strap retainer.” (Id., Col. 3)

The '766 patent is a reissue of U.S. Patent Application 12/575,600, (Spencer Decl. Ex. B, the “'600 Reissue Application”), which the original patent applicant had filed to obtain additional claims for U.S. Patent No. 7,278,900 (the “'900 patent”) issued on October 9, 2007. The original '900 patent was issued from Application 11/087,929. (Spencer Deck Ex. A, the “'929 Application.”)

Plaintiff alleges that defendant Braza-bra’s product, titled the “Bra Converter Clip” (the “accused product”), product ID: S/44021, is infringing upon the '766 patent in violation of the United States Patent Laws, 35 U.S.C. § 271, et seq., both literally and under the doctrine of equivalents. (Ph Opp. at 1; Declaration of Theodore Davis in Support of Defendant’s Motion for Summary Judgment (“Davis Deck”) ¶ 3.)

Defendant submitted in its Rule 56.1 Statement of Undisputed Material Fact, inter alia, that plaintiff has accused the Bra Converter Clip, product ID: S/44021 of infringing the patent-in-suit, and that the accused product appears as depicted in the Paragraph 3 of the Davis Declaration, samples of which were provided to plaintiffs counsel as Exhibit A to the Davis Declaration. Plaintiff does not dispute defendant’s Rule 56.1 Statement, however plaintiff disputes a number of facts alleged by defendant in its memorandum of law in support of its motion for summary judgment. (PI. Rule 56.1 Stmt. ¶¶ 1-2.) Thus, the parties do not dispute the physical structure of the patented device or the accused device, or their functionality, and only dispute whether the accused product infringes upon plaintiffs device — either literally or under the doctrine of equivalents. “Where ... the parties do not dispute any relevant facts regarding the accused product [and] disagree over which of [the] possible meanings of [particular claims at issue] is the proper one, the question of literal infringement collapses to one of claim construction and is thus amenable to summary judgment.” Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1320 (Fed. Cir.2012) (quoting Athletic Alternatives Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1578 (Fed.Cir.1996)); see also Wireless Ink Corp. v. Facebook, Inc., 969 F.Supp.2d 318, 333 (S.D.N.Y.2013) aff'd sub nom. Wireless Ink Corp. v. Google, Inc., 570 Fed.Appx. 941 (Fed.Cir.2014).

The court has considered whether the parties have proffered admissible evidence in support of their statements of fact and has viewed the facts in the light most favorable to plaintiff, the non-moving party. See Spiegel v. Schulmann, 604 F.3d 72, 77, 81 (2d Cir.2010); Topalian v. Hartford Life Ins. Co., 945 F.Supp.2d 294, 300-01 (E.D.N.Y.2013).

I. Patent Claims at Issue

The claims of a patent are the numbered paragraphs at the end of the patent that define the scope of the invention and thus the scope of the patentee’s right to exclude others from making, using, or selling the patented invention. The terms and phrases within each claim define the scope of each claim.

All patent claims are either independent or dependent. Independent claims stand alone and do not reference any other claim. Dependent claims, which follow the independent “parent” claims, reference the independent claim and are subsets of the parent claim. For example, in the patent-in-suit, Claim 2 depends on Claim 1 because it provides: “A bra strap retainer as described in Claim 1, wherein said main portion is formed ...” (Compl. Ex. A, Col. 5.)

The following claims in the patent-in-suit are “independent” and at issue before this court: Claim 1, Claim 6, Claim 8, and Claim 12. The independent claims contain, inter alia, the following key limitations: (1) “an elongate main portion and opposite end portions positioned at opposite ends of said main portion”; (2) a “pair of prongs extending outwardly from opposite sides of said main portion”; (3) a “each of said end portions [of elongate main portion] includes a pair of prongs”; and (4) “each of said prongs having an outer portion which is essentially disposed parallel to said elongate main portion.” (Compl. Ex. A.)

DISCUSSION

I. Applicable Legal Standards

A. Summary Judgment Standard

The court applies the same summary judgment standards to patent infringement matters as it does to motions involving other types of claims. CA, Inc. v. Simple.com, Inc., 780 F.Supp.2d 196, 208 (E.D.N.Y.2009); Alloc, Inc. v. Norman D. Lifton Co., 653 F.Supp.2d 469, 473 (S.D.N.Y.2009); see Desper Products, Inc. v. QSound Labs, Inc., 157 F.3d 1325, 1332 (Fed.Cir.1998); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 795-96 (Fed. Cir.1990). A court may grant summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In cases of patent infringement, summary judgment is proper when no genuine issue of material fact exists and no expert testimony is required to explain the nature of the patented invention or the accused product or to assist in their comparison. Amhil Enterprises Ltd. v. Wawa, Inc., 81 F.3d 1554, 1557-58 (Fed.Cir.1996).

“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). “A fact is ‘material’ for these purposes if it ‘might affect the outcome of the suit under the governing law.’ ” Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005); Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “An issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Jeffreys, 426 F.3d at 553. Moreover, no genuine issue of material fact exists “unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, ... or is not significantly probative, ... summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

In deciding a motion for summary judgment, the court’s function is not to resolve disputed issues of fact, but only to determine whether there is a genuine issue to be tried. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The moving party bears the burden of establishing that there is no genuine issue of material fact. Id. at 256, 106 S.Ct. 2505. The movant may discharge this burden by demonstrating to the court that there is an absence of evidence to support the non-moving party’s case on an issue on which the non-movant has the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 817, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“In ruling on a motion for summary judgment, ... [a court must] view the evidence presented in a light most favorable to the nonmoving party and ... draw all reasonable inferences in favor of the nonmoving party.” CA, Inc. v. Simple, com, Inc., 780 F.Supp.2d 196, 209 (E.D.N.Y.2009) (quoting C.R. Bard, Inc. v. Advanced Cardio. Sys., Inc., 911 F.2d 670, 672 (Fed.Cir.1990)). The Second Circuit, however, has explained that “[t]he party against whom summary judgment is sought ... ‘must do more than simply show that there is some metaphysical doubt as to the material facts____ [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’ ” Plew v. Limited Brands, Inc., 729 F.Supp.2d 629 (S.D.N.Y. 2010) (quoting Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002)) (internal citation omitted); accord, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Nor can the nonmov-ing party rest only on the pleadings. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (stating that Fed.R.Civ.P. 56(e) “requires the non-moving party to go beyond the pleadings”); Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002). Each statement of material fact by the movant or opponent must be followed by citation to evidence which would be admissible, as required by Fed.R.Civ.P. 56(e) and Local Civil Rule 56.1(d).

Indeed, in the infringement context, declarations offered by the patentee are insufficient to meet the burden of proof of infringement, as are general assertions of facts, general denials, and con-clusory statements. TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1371 (Fed.Cir. 2002). Rather, the “party opposing the motion for summary judgment of nonin-fringement must point to an evidentiary conflict created on the record, at least by a counter-statement of a fact set forth in detail in an affidavit by a knowledgeable affiant. Mere denials or conclusory statements are insufficient.” TechSearch, 286 F.3d at 1372 (citing Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042, 1046 (Fed. Cir.2000))

“Summary judgment is as appropriate in patent cases as in other cases when the requirements of Rule 56 of the Federal Rules of Civil Procedure have been met.” Meyers v. Asics Corp., 865 F.Supp. 177, 179 (S.D.N.Y.1994) (citation omitted), aff'd, 78 F.3d 605 (Fed.Cir.1996); see Amhil Enterprises Ltd. v. Wawa, Inc., 81 F.3d 1554, 1557-58 (Fed.Cir.1996) (“Summary judgment may, however, properly be decided as a matter of law when no genuine issue of material fact exists and no expert testimony is required to explain the nature of the patented invention or the accused product or to assist in their comparison.”). “[I]nfringement is itself a fact issue,” SRI Int. v. Matsushita Elec. Corp. of America, 775 F.2d 1107, 1116 (Fed.Cir. 1985), therefore courts have repeatedly emphasized that patent claims “are ones in which issues of fact often dominate the scene and summary judgment is allowed only with great caution.” Acrison, Inc. v. Schenck Corp., 973 F.Supp. 124, 126 (E.D.N.Y.1997) (quoting Garter-Bare Co. v. Munsingwear, Inc., 650 F.2d 975, 982 (9th Cir.1980)); see also Gaus v. Conair Corp., No. 94-CV-5693, 1998 WL 92430, at *2 (S.D.N.Y. Mar. 3, 1998) (citations omitted). Thus, summary judgment on the issue of infringement is proper only when “no reasonable jury could find that every limitation recited in a properly construed claim either is or is not found in the accused device either literally or under the doctrine of equivalents.” Spiel Associates, Inc. v. Gateway Bookbinding Sys., Ltd., No. 03-CV-4696, 2010 WL 546746, at *6 (E.D.N.Y. Feb. 16, 2010) (citing PC Connector Solutions LLC v. SmartDisk Corp., 406 F.3d 1359, 1364 (Fed.Cir.2005)) (internal citation omitted).

When deciding issues in a patent case, a district court applies the law of the circuit in which it sits to nonpatent issues and the law of the Federal Circuit to issues of substantive patent law. Revlon Consumer Products Corp. v. Estee Lauder Companies, Inc., No. 00-CV-5960, 2003 WL 21751833, at *7 (S.D.N.Y. July 30, 2003) (citing In re Cambridge Biotech Corp., 186 F.3d 1356, 1368 (Fed.Cir.1999)); see also Amana Refrigeration, Inc. v. Quadlux, Inc., 172 F.3d 852, 856 (Fed.Cir.1999). The court will also apply the law of the Federal Circuit to procedural issues that are “intimately involved in the substance of enforcement of the patent right.” Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 265 F.3d 1294, 1303 (Fed.Cir. 2001) (the Federal Circuit “applies] the law of the regional circuit to which the district court appeal normally lies unless ‘the issue pertains to or is unique to patent law,’ in which case [the Federal Circuit] will apply [its] own law to both substantive and procedural issues ‘intimately involved in the substance of enforcement of the patent right.’ ”); Revlon Consumer Products, 2003 WL 21751833, at *7.

B. Two Step Analysis: Claim Construction Then Determination of Infringement

“A two-step process is used in the analysis of patent infringement: first, the scope of the claims are determined as a matter of law, and second, the properly construed claims are compared to the allegedly infringing device to determine, as a matter of fact, whether all of the limitations of at least one claim are present, either literally or by a substantial equivalent, in the accused device.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1323 (Fed.Cir.2002); Revlon Consumer Products, 2003 WL 21751833, at *8.

II. Claim Construction

A. Applicable Law Regarding Claim Construction

The district court’s power to enter summary judgment does not allow it to bypass performing a complete patent infringement analysis. Grober v. Mako Products, Inc., 686 F.3d 1335, 1344 (Fed. Cir.2012). “[T]he construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” Markman v. Westview Instrs., Inc., 517 U.S. 370, 372, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Indeed, claim construction is a question of law, Cybor Corp., 138 F.3d at 1454, and “is the judicial statement of what is and is not covered by the technical terms and other words of the claims.” Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1352 (Fed.Cir.2001); Aspex Eyewear, Inc. v. Altair Eyewear, Inc., 386 F.Supp.2d 526, 532 (S.D.N.Y.2005). Thus, before reaching any determination on infringement, the court must construe the patent’s claim limitations to define the invention which a patentee has a right to exclude others from practicing, in the absence of the patentee’s permission or authorization. Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115-16 (Fed.Cir.2004).

Courts are permitted on summary judgment to construe the claims of the patent at issue to determine their meaning and scope, followed by a determination of whether evidence offered raises a triable issue of fact with regard to infringement. See TecSec, Inc. v. Int’l Bus. Machines Corp., 731 F.3d 1336, 1352 (Fed.Cir.2013) cert. denied sub nom. Cisco Sys., Inc. v. TecSec, Inc., — U.S. -, 134 S.Ct. 2698, 189 L.Ed.2d 756 (2014) (finding that district court’s summary judgment opinion followed proper infringement analysis by first construing patent claims and second determining whether the evidence offered by defendant, which compared the claims to the accused products, raised a triable issue of material fact).

A court construing a patent claim seeks to accord a claim the meaning it would have to a “person of ordinary skill in the art at the time of the invention.” Innova/Pure Water, 381 F.3d at 1116. Indeed, claim terms are entitled to a “heavy presumption” that they carry their “ordinary and customary meaning.” Elbex Video, Ltd. v. Axis Commc’ns, Inc., No. 05-CV-3345, 2008 WL 5779782, at *11 (E.D.N.Y. Aug. 19, 2008) (citing Teleflex, 299 F.3d at 1325) (internal citation omitted). The claims themselves, the specification and the prosecution history may be used to determine the ordinary meaning of a term, but “in any event the ordinary meaning must be determined from the standpoint of a person of ordinary skill in the relevant art.” Id. Thus, the court must determine the meaning of the words in the patent so that the public can be properly placed on notice as to what inventions are and are not covered. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1311 (Fed.Cir.1999) (discussing the importance of public notice function in claim construction).

“It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history. Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996) (citation omitted); see Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005); Rackman v. Microsoft Corp., 102 F.Supp.2d 113, 117 (E.D.N.Y.2000) (citing Georgia-Pacific Corp. v. U.S. Gypsum Co., 195 F.3d 1322, 1332 (Fed.Cir.1999)).

First, the court looks to the words of the claims themselves, both asserted and nonasserted, to define the scope of the patented invention. Vitronics, 90 F.3d at 1582. The words of the claim itself are the single most important source of the meaning of the claim. See Eastman Kodak Co. v. Goodyear Tire & Rubber Co., 114 F.3d 1547, 1552 (Fed.Cir. 1997), abrogated on other grounds by Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448 (Fed.Cir.1998) (en banc). The claim language is given its ordinary and customary meaning unless a special definition is employed in the specification or prosecution history. See Vitronics, 90 F.3d at 1582; see also Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed.Cir.1998) (“Without an express intent to impart a novel meaning to claim terms, an inventor’s claim terms take on their ordinary meaning.”) (quoting York Prods., Inc. v. Central Tractor Farm & Family Ctr., 99 F.3d 1568, 1572 (Fed.Cir.1996)). The ordinary and customary meaning of a claim term is the meaning that “one of skill in the art at the time of the invention would understand [].” Eastman Kodak, 114 F.3d at 1555 (citing Intellical, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1387 (Fed.Cir.1992)); accord Markman v. Westview Instruments, Inc., 52 F.3d 967, 986 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). “If the claim language is clear on its face, then [the court’s] consideration of the rest of the intrinsic evidence is restricted to determining if a deviation from the clear language of the claims is specified.” Interactive Gift Exp., Inc. v. CompuServe Inc., 256 F.3d 1323, 1331 (Fed.Cir.2001); see Revlon Consumer Products, 2003 WL 21751833, at *9.

Next, the court looks to the specification, as “[c]laims must be read in view of the specification, of which they are a part.” Markman, 52 F.3d at 979. Therefore, a court must review the specification to determine whether the inventor used any terms, in a manner inconsistent with their ordinary meaning. The specification acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication. Vitronics, 90 F.3d at 1582 (citing Markman, 52 F.3d at 979). Although patent applicants have the flexibility to define claim terms in a manner inconsistent with their ordinary meaning, the special definition of the term must be set out in the specification or file history in a manner sufficient to give one of ordinary skill in the art notice of the change from the ordinary meaning. Innova/Pure Water, 381 F.3d at 1117.

Third, the court may consider the prosecution history of the patent, if it is in evidence. Phillips, 415 F.3d at 1317 (citing Markman, 52 F.3d at 980); Amhil Enterprises, 81 F.3d at 1559 (“The prosecution history, in addition to being used while considering the factual issue of infringement and whether prosecution history estoppel places any limitations on what infringes a claim, should also be used when considering the legal issue of proper claim construction.”). The prosecution history contains a complete record of all the proceedings before the Patent and Trademark Office, including any express representations made by the applicant regarding the scope of the claims. As such, the record before the Patent and Trademark Office is often of critical significance in determining the meaning of the claims. See Markman, 52 F.3d at 980; Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed. Cir.1995) (“The prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution.”) (citations omitted).

Finally, although in most situations, an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term, a court may consider extrinsic evidence if necessary. Vitronics, 90 F.3d at 1583. “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.” Vitron-ics, 90 F.3d at 1584. Extrinsic evidence, however, is “less significant than the intrinsic record in determining the legally operative meaning of claim language.” Secure Web Conference Corp. v. Microsoft Corp., No. 13-CV-2642, 2014 WL 4954644, at *2 (E.D.N.Y. Oct. 2, 2014) (citing Phillips, 415 F.3d at 1317). The Federal Circuit condones the use of dictionaries “to assist in understanding the commonly understood meaning of words,” Phillips, 415 F.3d at 1317, and has held that “[c]ourts may rely on dictionary definitions when construing claim terms, so long as the dictionary definition does not contradict any definition found in or ascertained by a reading of the patent documents.” 3M Innovative Properties Co. v. Tredegar Corp., 725 F.3d 1315, 1321 (Fed.Cir.2013) (citing Advanced Fiber Tech. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1374-75 (Fed.Cir.2012)).

The Federal Circuit, however, cautions courts not to place “too much reliance on extrinsic sources such as dictionaries ... and too little on intrinsic sources, in particular the specification and prosecution history.”. Phillips v. AWH Corp., 415 F.3d 1303, 1320 (Fed.Cir.2005) (citing Texas Digital, 308 F.3d at 1204). The Federal Circuit clarified that the principles outlined in Texas Digital Systems, Inc. v. Telegenix, 308 F.3d 1193 (Fed.Cir.2002), which had encouraged the use of extrinsic sources such as dictionaries, should no longer guide a district court’s consideration of dictionary definitions. The court held that the methodology adopted in Texas Digital “placed too much reliance on extrinsic sources such as dictionaries, treatises, and encyclopedias and too little on intrinsic sources, in particular the specification and prosecution history.” 415 F.3d at 1320. As the Federal Circuit explained in Phillips:

The main problem with elevating the dictionary to such prominence is that it focuses the inquiry on the abstract meaning of words rather than on the meaning of claim terms within the context of the patent---- [I]f the district court starts with the broad dictionary definition in every case and fails to fully appreciate how the specification implicitly limits that definition, the error will systematically cause the construction of the claim to be unduly expansive.

Phillips, 415 F.3d at 1321. Accordingly, the Federal Circuit directs district courts “focus[ ] at the outset on how the patentee used the claim term in the claims, specification, and prosecution history” instead of “starting with a broad definition and whittling it down,” Id.

“A word or phrase used consistently throughout a claim should be interpreted consistently.” Epcon Gas Sys., Inc. v. Bauer Compressors, Inc., 279 F.3d 1022, 1031 (Fed.Cir.2002) (citing Phonometrics, Inc. v. Northern Telecom Inc., 133 F.3d 1459, 1465 (Fed.Cir.1998)). On the other hand, where a claim term is used “in two contexts with a subtle but significant difference” the term “should not necessarily be interpreted to have the same meaning in both phrases.” Epcon Gas Systems, 279 F.3d at 1031.

Moreover, although claims are to be construed in light of the specification, courts must be careful not to read limitations from the specification into the claim. Phillips, 415 F.3d at 1323. For example, if a patent specification describes only a single embodiment, the claims of the patent should not be construed as limited to that embodiment in all circumstances. Id. Rather, it is to be understood that the purpose of the specification “[is] to teach and enable those of skill in the art to make and use the invention” and that sometimes, the best way to do that is to provide an example. Id. Similarly, the Federal Circuit has cautioned that “patent coverage is not necessarily limited to inventions that look like the ones in the figures,” noting that taking such an approach to claim construction would amount to “importing] limitations onto the claim from the specification, which is fraught with danger.” MBO Laboratories, Inc. v. Becton, Dickinson & Co., 474 F.3d 1323, 1333 (Fed.Cir. 2007).

B. Application

The court need only construe the disputed claim language “to the extent necessary to resolve the controversy.” Vivid Techs., Inc. v. Am. Science & Eng’g, Inc., 200 F.3d 795, 803 (Fed.Cir.1999); see also Ballard Med. Prods. v. Allegiance Healthcare Corp., 268 F.3d 1352, 1358 (Fed.Cir.2001) (“If the district court considers one issue to be dispositive, the court may cut to the heart of the matter and need not exhaustively discuss all other issues presented by the parties.”); Biovail Corp. Int’l v. Andrx Pharms., Inc., 239 F.3d 1297, 1301 (Fed.Cir.2001) (finding it unnecessary to construe claim term that was not relevant to outcome of the case). Accordingly, the court will construe only those claims that are in dispute between the parties: (1) “prongs”; (2) “elongated main member”; (3) “each of said end portions [of elongate main portion] including prongs”; and (4) “essentially disposed parallel.”

Here, a “Markman hearing,” or claim construction hearing, to interpret the claim language is not necessary because the disputed claim terms are neither ambiguous nor highly technical. Revlon Consumer Products, 2003 WL 21751833, at *14 (finding no need for a Markman hearing when sole disputed claim term, “completely coated,” was neither ambiguous nor technical); LRC Elec., Inc. v. John Mezzalingua Assocs., Inc., 974 F.Supp. 171, 181-82 (N.D.N.Y.1997) (“A Markman hearing to define the [disputed claim] term ... would only be necessary if the Court needed expert testimony to interpret the term.... After carefully considering the language used in claim one, the specification, and Webster’s Dictionary, the Court finds that the meaning of the [claim] term ... is the one stated in Webster’s Dictionary ... and hence no Markman hearing[ ] is needed in the instant case.... ”). As such, the court may and will interpret and construe the disputed claims in its summary judgment decision. The court addresses each of the disputed terms in turn. For ease of reference, depicted below as Figure 1 of this Memorandum and Order, is the image provided as Figure 4 of the '766 patent. (Compl. Ex. A, Fig. 4.) Depicted as Figure 2 is a labelled diagram of defendant’s accused product. (Davis Deel. ¶ 3.)

i. Prongs

The '766 patent specifies “a pair of prongs, each prong of a said pair of prongs extending outwardly from opposite sides.” (Compl. Ex. A, Col. 5.) The “prongs” are represented by 14A, 15A, 16A and 17A in figure 1. Defendant proposes that the term “prong” as used in the '766 patent means a “slender pointed or projecting part” like a “tine on a fork,” and does not describe defendant’s accused product which is comprised of a circle or segments forming a circle. (Def. Mem. at 10; Oral Argument Transcript (“Tr.”) 5.) Defendant further argues that the court must look to the definition in the context of the patent — not extrinsic evidence — and contends that in the description and illustration of the patent, the term “prong” is used in a manner consistent with the meaning “short pointed part like a tine on a fork” that has “ends.” (Def. Mem. at 10; ECF No. 16, Defendant’s Reply Memorandum in Support of Summary Judgment (“Def. Reply”) at 3; Tr. 5.)

Plaintiff contends that claim construction requires that terms be given “the full range of their ordinary meaning as understood by persons skilled in the relevant art.” (PL Opp. at 5.) Plaintiff also argues that defendant improperly combines two independent definitions — “slender pointed or projecting part” and “a tine on a fork” — to define the term “prong.” Plaintiff in turn proposes that prongs are defined as “slender projecting parts” that need not be pointed, and may encompass portions of circle as present in the accused product’s design. (PI. Opp. at 6; Tr. 18.) Moreover, plaintiff contends that, although “a prong as we normally look at it has an end, .... [pjrongs don’t have to have an end.” (Tr. 18.) As an example, plaintiff cited to prongs of a river that do not end.

(Id.)

First, the court gives the term “prong” its ordinary and customary meaning, because a special definition is not used in the specification or prosecution history. See Grober v. Mako Products, Inc., 686 F.3d 1335, 1341 (Fed.Cir.2012) (citing Phillips, 415 F.3d at 1312-1313; Vitronics, 90 F.3d at 1582). To determine the “ordinary and customary meaning” of a claim term, a court must first consult the patent’s intrinsic evidence, specifically 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); Kinik Co. v. Int’l Trade Comm’n, 362 F.3d 1359, 1365 (Fed.Cir.2004); Small v. Nobel Biocare USA, LLC, No. 05-CV-3225, 2011 WL 3586470, at *4 (S.D.N.Y. Aug. 11, 2011) on reconsideration in part, No. 05-CV-3225, 2012 WL 952396 (S.D.N.Y. Mar. 21, 2012).

The court first turns to the specification, including all of the claims, as “[cjlaims must be read in view of the specification, of which they are a part.” Markman, 52 F.3d at 979. Here, the '766 patent specification does not explicitly define “prong,” and describes the prongs as “extending outwardly from opposite sides of said main portion in substantially opposite directions” and as “curved and directed toward one of said prongs on the other said end portion.” (Compl. Ex. A, Col. 5.) The specification also indicates that each prong “extends inwardly toward another one said prong of a second said pair of prongs.” (Id.) The patentee further describes the prongs in Claim 6 as “being essentially C-shaped, and the other said end portions being essentially an inverted C-shape.” (Id.) Thus, the entire specification leaves the reader with the impression that the prongs extend away from the center piece towards the opposite end.

The specification, however, does not include any language indicating that the prongs on opposite ends constitute portions of the same semi-circle or that the prongs extend continuously to connect with the prongs on the other end portion. “If an apparatus claim recites a general structure (e.g., a noun) without limiting that structure to a specific subset of structures (e.g., with an adjective), the Federal Circuit generally construes the claim to cover all known types of that structure that are supported by the patent disclosure.” Aspex Eyewear, 386 F.Supp.2d at 537 (citing Renishaw PLC v. Marposs Society per Azioni, 158 F.3d 1243, 1250 (Fed.Cir.1998)). Indeed, the patentee need not “describe in the specification every conceivable and possible future embodiment of his invention.” Id. (citing CCS Fitness v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002) (internal citations omitted)).

Although the specification does not explicitly limit the “prongs” to structures that include a tip or endpoint, the description of each pair of prongs as “C-shaped” or an “inverted C-shape” suggests that the prongs have endpoints and do not meet; otherwise, the patentee would have further indicated that the prongs may altogether form an oval or circular shape. Thus, although the language does not preclude the possibility that the prongs extend continuously toward each other until they meet, the fact that this possibility exists does not put the public on notice that a continuous extension was within the paten-tee’s intended specifications. Thus, the term “prong” as used in the specification suggests a “slender pointed or projecting part” with an outward extension with an end point or tip.

Next, the court reviews the '766 patent’s prosecution history to ascertain the true meaning or effect in the use of the word “prong.” The use of the word prongs is consistent throughout the prosecution history of the '766 patent, and is consistent with the ordinary use of the word as a “slender pointed or projective part.” Indeed, in the initial patent application filed, Patent No. 7,278,900, the patentee described each of the “end portions” as containing “prongs” which extended inward toward the prongs at the opposite ends of the structure. (Spencer Decl. Ex. B, at 3.) These “end portions” are again described as “substantially C-shaped” and “substantially an inverted C-shape.” (Id. at 4.)

Although plaintiff invites the court to construct a broader meaning of the term “prong,” — indeed suggesting that “prongs of a river do not end” (Tr. 18) — the court finds that there is no indication from the intrinsic evidence that the prongs as described in the '766 patent have a meaning broader than the ordinary meaning, or that the prongs may continuously extend toward one another to meet or fuse together, forming a half circle. Accordingly, the court respectfully declines to apply a meaning to the term “prongs” that is broader than specification requires.

Finally, the court may look to extrinsic evidence, if necessary, for additional clarity with regard to the proper construction of “prong.” Because “prong” is neither an ambiguous nor complex term, additional reference to extrinsic evidence is not necessary. After consideration of the ordinary language and the usage of the phrase in the specification and prosecution history, the court construes “prong” as a slender outward projecting part with a tip or endpoint.

ii. Elongate Main Portion

The '766 specification requires a “retaining member having an elongate main portion,” used interchangeably with “a bra strap retainer comprising at least a pair of strap-retaining members positioned at opposite ends of the retainer, respectively, and an elongated member extending between the strap-retaining members.” (Compl. Ex. A.) The elongate main portion is depicted as 30 in Figure 1. Defendant proposes that the phrase “elongate main portion” as used in the '766 patent requires “one contiguous main portion.” (Def. Mem. at 11.) Defendant argues that the accused product is missing an “elongate main portion” because the center portion is split. (Id.)

Plaintiff defines “elongate main portion” as something that has a length which is greater than its width. (Tr. 12.) Plaintiff argues that the '766 patent does not define “elongate main portion” or “elongated member” as being a single piece, but only indicates that there must be a main central portion of the invention that is elongated. (PL Opp. at 8.) Indeed, plaintiff contends that the patent’s “claim language does not preclude the splitting of the elongate main portion.” (Id.) Defendant argues in its Reply that plaintiff is attempting to use a definition for “elongate main portion” that is divorced from the context of the specification and instead contends that the fact that a split main portion is possible does not provide “explicit or implicit notice to the public.” (Def. Reply at 4.)

First, the ordinary and customary meaning of “elongate main portion” suggests a single main, or central, structure that is longer in its length than in its width, and that is main, or principal or central, to the product in relation to the other parts. Indeed, a structure that is identical in length and height would be a square. Thus, any “elongate structure” would be longer in length than the other. “Main portion” suggests a structure that is central to the apparatus.

In reading the claim term “elongate main portion” in view of the specification, there is no indication that the term “elongate main portion” has a meaning different than the ordinary meanings. Moreover, the specification uses the terms “elongate main portion” and “elongated member” interchangeably, and the usage of the term in the specification indicates that the “elongated member” extends substantially across the apparatus and constitutes a “main” or central structure in the overall apparatus. Thus, the term “elongated member” also refers to the “main portion,” despite omission of the term “main.” Claim 15 describes the “elongated member” as “extending between the strap retaining members,” where such strap retaining members are “positioned at opposite ends of the retainer.” (Compl. Ex. A, Col. 6.) The specification further states that an “elongated member extends across the bra strap retainer from opposite ends of the bra strap retainer” indicating that the elongate piece extends across the entirety of the apparatus and represents a majority portion of the overall specification. (Id.) Moreover, the description suggests that this elongated member spans across from one end of the apparatus to the opposite end without a substantial split or break in the middle or at any point. Although plaintiffs contention that the patent does not explicitly preclude “elongate main portions” from being split in the center is correct, the language of the specification suggests that the main elongate structure is contiguous and does not otherwise put the public on notice that the structure could be split or otherwise broken apart in a substantial way.

Next, the court will consider the prosecution history of the patent. During prosecution and the reissue of the '766 patent, the patentee added Claims 12 to 15, which refer to the “elongate main portion” as a “elongated member” and require that the “elongated member extend[] across the bra strap retainer from opposite ends of the bra strap retainer.” (Spencer Decl. Ex. B, '600 Application Amendment at 6.) The patentee added Claims 12 to 15 to address the Patent Office’s finding that “a weave member” was not disclosed in the prior specification; thus the patentee amended the application to use the term “elongated member.” Nothing in the patent’s prosecution history indicates that the term “elongated main portion” or “elongated member” has a meaning that diverges from the ordinary meaning of the words.

Finally, there is no ambiguity or complexity in the phrase “elongated main portion” or “elongated member” that requires consideration of extrinsic evidence. After consideration of the ordinary language and the usage of the phrase in the specification and prosecution history, the court construes “elongate main portion” or “elongated member” as a main structure that is longer than it is wide, and that extends continuously across the opposite ends of the apparatus without a substantial break or gap.

iii. Each of said end portions [of elongate main portion] including prongs

The specification requires that “each of said end portions [of the elongate main portion] includes a pair of prongs.” The end portions are depicted as 32 and 33 in Figure 1. Defendant argues that, assuming that the elongate main portion could be split, each of the elongate main portions’ end portions located in the center of the accused product at the “split” does not include a pair of prongs. (Def. Mem. at 13.) Thus, under defendant’s construction of the claim, the “end portions” of the elongate main portion reside at the center of the accused product, at A1/A2 and A3/A4 of Figure 2.

The ordinary and customary meaning of this phrase indicates that each “end portion” of the main structure requires prongs. Should the court accept that the center piece is the “elongate main portion,” though split, the dispute is whether the inner edges in the accused product constitute “end portions” that would require prongs or whether the “end portions” reside at the outermost edges of the structure. The specification is clear in the requirement that each “end portion” contain a pair of prongs. '

The ordinary meaning of “end” is “a point that marks the limit of something,” “the point at which something no longer continues to happen or exist,” or “the part at the edge or limit of an area.” Outside the Box Innovations, LLC v. Travel Caddy, Inc., 695 F.3d 1285, 1303 (Fed.Cir. 2012) (noting district court’s construction of “end points” as “the outer edge of the end panels of the case”); Research Plastics, Inc. v. Fed. Packaging Corp., 421 F.3d 1290, 1296 (Fed.Cir.2005) (defining the claim term “rear end” as referring to the “outermost edge of the tube” including the inside and outside edges); see also End, Merriam-Webster Dictionary, http:// www.merriam-webster. com/dictionary/ end. Thus, the ordinary meaning of end portion suggests that it means the outer most edge or limiting point of a structure.

In view of the specification and the prosecution history, the use of the word “end portions” does not deviate from its ordinary meaning. The specification describes the “end portions” as “opposite end portions positioned at opposite ends of said main portion” and suggests that these end portions reside at the outermost limits of the apparatus. Moreover, the specification and prosecution history assume a single main portion — whether split or not — and thus assumes that there are only two ends on the outer most limits of the horizontal plane.

Because the phrase “each of said end portions [of elongate main portion] including prongs is neither ambiguous nor complex, additional reference to extrinsic evidence is not necessary. Thus, after consideration of the ordinary language and the usage of the phrase in the specification and prosecution history, the court construes “each of said end portion” as the outer most edges or limiting points of a structure.

iv. Essentially Disposed Parallel

The specification requires that “each of said prongs ha[s] an outer portion which is essentially disposed' parallel to said elongate main portion.” (Compl. Ex. A.) Defendant argues that plaintiff improperly cites to an imaginary tangent line in the accused product as parallel to the main portion but “parallel” is defined as “extend[ing] in the same direction and everywhere equidistant.” Thus, no singular point of a curved surface can be considered parallel. Defendant also argues that plaintiff improperly construes “essentially disposed parallel” to read on an imaginary tangent line to á circle, rendering the term “parallel” meaningless, and that plaintiff attempts to divorce the claim terms from the context of the specification.

Plaintiff argues that defendant improperly limits the definition of “essentially disposed parallel” and disregards the modifier “essentially” to conclude that the claim term requires the relevant portions to be “completely parallel.” (PI. Opp. At 7.) Plaintiff contends that the addition of the word “essentially” indicates that the prongs need not be fully parallel, and that “essentially” would otherwise have no operative meaning in the patent/elaim. (PI. Opp. at 7.)

The court agrees that a claim construction should give meaning -to all the terms in a claim. Indeed, claims must be “interpreted with an eye toward giving effect to all terms in the claim.” Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir.2006); see Merck & Co. v. Teva Pharm. USA Inc., 395 F.3d 1364, 1372 (Fed.Cir.2005) (“A claim construction that gives meaning to all the terms of the claim is preferred over one that does not do so.”); TouchTunes Music Corp. v. Rowe Int’l Corp., 727 F.Supp.2d 226, 233 (S.D.N.Y.2010) (citing Stumbo v. Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir.2007)) (“A claim construction that renders claim language superfluous is almost always incorrect.”). However, giving the ordinary meaning to “essentially disposed parallel” suggests that the prongs, although they need not be fully parallel, must fundamentally and basically tend toward or incline toward parallel, at least more so than not. The combination of “essentially” and “parallel” creates an interesting conundrum for the court, because fixtures that are not completely parallel are not parallel, at all; The ordinary meaning of parallel is “extending in the same direction, everywhere equidistant, and not meeting” or “everywhere equally distant.” Parallel is a mathematical concept and characterization that cannot be qualified; something either is or is not parallel. Words of approximation, however, such as “substantially,” “generally,” or “essentially,” as it is used .here, are commonly used in patent claims to avoid strict numerical boundary to specific parameters. Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1310-11 (Fed.Cir.2003). Thus, it would be improper to interpret thq-phrase “essentially disposed parallel” to be limited to the ordinary meaning of “disposed parallel.” Accordingly, the court constructs the phrase “essentially disposed parallel” to mean something close to being parallel, but with some deviation.

The prosecution history reveals that the Patent Office’s rejected the patentee’s application as being anticipated by prior art of Wyeth. (Spencer Decl. Ex. A, '929 Amendment, dated February 7, 2007 at 3, 7.) The Patent Office had found that the Wyeth patent, U.S. Patent No. 1,401,227, anticipated the patent-in-suit by having an “elongate main portion 4 and opposite end portions at opposite ends thereof with each end portion including a pair of prongs.” (Spencer Decl. Exs. A, Rejection at 2.) In response, the patentee added language that “each of said prongs has an outer portion which is essentially disposed parallel to said elongate main portion, said prongs and said elongate main portion being adapted to retain the straps of the bra there between with the straps being woupd through said slots between said prongs and said elongate main portion.” (Id. at 3.) Thus, the prosecution history suggests that the specification requires prongs with an outer portion that is at least more parallel than the prongs depicted in the Wyeth patent.

There is no remaining ambiguity or complexity in the phrase “essentially disposed parallel” that requires consideration of extrinsic evidence. Thus, after consideration of the ordinary language and the usage of the phrasedn the specification and prosecution history, the court construes “essentially disposed parallel” to define structures that are.substantially or nearly parallel, but contain some' amount of deviation.

III. Summary Judgment on Literal Infringement

A. The Parties’ Arguments

Defendant argues that no literal infringement exists because the accused patent is missing the following limitations from the patent’s independent claims 1, 6, 8 and 12: (1) prongs; (2) an elongate main portion; (3) end portions [of the elongate main portion] including prongs; and (4) prongs that are “essentially disposed parallel” to the main elongate portion. (Def. Mem. at 9.)

B. Legal Standard for Literal Infringement

A patent is infringed if a single claim is infringed. See Grober, 686 F.3d at 1344; Intervet America, Inc. v. Kee-Vet Labs., Inc., 887 F.2d 1050, 1055 (Fed.Cir. 1989). “Literal infringement requires that each and every claim limitation [within each of the patent’s claims] be present in the accused product.” Spiel Associates, 2010 WL 546746, at *7 (citing Abraxis Bioscience v. Mayne Pharma (USA) Inc., 467 F.3d 1370, 1378 (Fed.Cir.2006)). If even “one [claim] limitation is missing or not met as claimed,” there can be no literal infringement. Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed. Cir.1998).

In determining whether an accused product is infringing on the patent-at-issue, first, as discussed supra, “the court determines the scope and meaning of the patent claims asserted,” and second, the court compares the claims “to the allegedly infringing devices.” Grober, 686 F.3d at 1344 (citing Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1451 (Fed.Cir.1998)); Vitronics, 90 F.3d at 1581-82 (citing Markman, 52 F.3d at 976) (“A literal patent infringement analysis involves two steps: (1) the proper construction of the asserted claim and (2) a determination as to whether the accused method or product infringes the asserted claim as properly construed.”).

C. Application

“One who does not infringe an independent claim cannot infringe a dependent claim on (and thus containing all the limitations of) that claim.” Becton Dickinson and Co. v. C.R. Bard, Inc., 922 F.2d 792, 798 (Fed.Cir.1990) (quoting Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989)); Carotek, Inc. v. Kobayashi Ventures, LLC, 875 F.Supp.2d 313 n. 21, 338 (S.D.N.Y.2012) (quoting Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1328-29 n. 5 (Fed.Cir.2008)) (noting that “[a] conclusion of noninfringement as to the independent claims requires a conclusion of noninfringement as to the dependent claims.”). Because the holding of non-infringement of an independent claim applies to all claims dependent on that claim, the court’s decision will only address the independent claims and their pertinent claim limitations set forth in the 776 patent. ABC Indus., Inc. v. Kason Indus., Inc., 30 F.Supp.2d 331, 339 n. 5 (E.D.N.Y.1998) aff'd, 217 F.3d 859 (Fed. Cir.1999); see Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1199 (Fed.Cir. 1994). As noted above, and discussed supra, the following claims in the patent-in-suit are “independent”: Claim 1, Claim 6, Claim 8, and Claim 12. For ease of reference, a diagram of defendant’s accused product is labelled in Figure 1.

i. Claims 1, 6, and 8

Claims 1, 6, and 8 of the patent-in-suit each require a “pair of prongs” positioned at the product’s “end portions.” (Compl. Ex. A, Cols. 5-6.) Each claim also describes the “prongs” as “extending outwardly from opposite sides of said main portion in substantially opposite directions.” (Id.) Moreover, Claims 6 and 8 describe the prongs as “being curved and directed toward one of said prongs on the other said end portion” and “being essentially C-shaped” or “essentially an inverted C-shape.” (Id.)

Defendant argues that the accused product lacks a “pair of prongs” and is missing “each of said end portions [of elongate main portion] includ[ing] a pair of prongs.” (Def. Mem. at 12-13.) Plaintiff, however, contends that the “pair of prongs” in the accused product consist of the circle segments located at points C, D, E and F in Figure 1. (PI. Opp. at 7.) Plaintiff further argues that, in any event, it is a question for the jury whether “segments of a circle” can be considered within the scope of the court’s constructed claim term, which plaintiff asserts should be defined as a “slender projecting part.” (Id.) Defendant responds by arguing that the dispute regarding the scope of a prong is a legal one and that “Plaintiffs legal position relies on the overruled law of Texas Digital, divorcing a term from the specification. As such, Plaintiff fails to ‘identify genuine issues that preclude summary judgment.’ ” (Def. Reply at 4.)

As discussed in the Claim Construction, the phrase “pair of prongs” describes a pair of slender projecting parts with tips or endpoints that do not meet. Thus, applying this definition, as discussed in the court’s Claim Construction, defendant’s accused product does not fall within the scope of the '766 patent’s claims and therefore does not literally infringe upon Claims 1, 6, and 8.

Although the analysis may stop here, even assuming, arguendo, that the circle segments depicted at points C, D, E and F in Figure 2 constitute “prongs,” and further asserting that the split middle section constitute the “elongate main portion” of the accused product, the court finds that the “prongs” are not “essentially disposed parallel” to the “elongate main portion,” as required in Claims 1, 6, and 8.

Indeed, defendant argues that the accused product is missing prongs with an outer portion “essentially disposed parallel” to the elongate main portion and that plaintiff improperly “cites to an imaginary tangent line as parallel to the main portion,” which is not disclosed in the patent’s specification. (Def. Mem.- at 13-14.) Plaintiff responds with the argument that the term “essentially parallel” is “used to describe the curved portions of the prongs of the '766 patent.” (PI. Opp. at 8.) Plaintiff also contends that defendant misconstrues “essentially parallel” as being fully parallel, however, the addition of the word “essentially” indicates that the specification “does not require a complete parallel arrangement between the ‘prongs’ and ‘elongate main portion’; otherwise “essentially” would have no operative meaning in the patent/claim. (PI. Opp. at 7-8.)

In response, defendant argues that the specification requires that the “outer portion” of the prongs must be “essentially parallel” to the main elongate portion, and plaintiff impermissibly substitutes an undisclosed, imaginary tangent line touching a point on a curved portion to read the accused product onto the specification’s claims. (Def. Reply at 6.)

Accepting plaintiffs tangent theory, there are only two points on the rounded ends — one at the top and one at the bottom, located at points HI and H2 in Figure 1 — from which one can draw an imaginary tangent line that is parallel with the center main portion. Applying plaintiffs argument, there are four “prongs.” Thus, a second tangent line would necessarily have to be drawn to account for the other two prongs. Although the term “essentially disposed” permits some deviation from the requirement of being parallel — and thus, other tangent lines may be drawn to be “essentially disposed parallel” to the main piece — this exercise raises a threshold problem of determining at what point a tangent line is no longer “essentially parallel.” In any event, merely indicating that a tangent line could be drawn from a certain point on a curved surface to render it parallel to a straight line, does not, in fact, render those two points parallel. Accordingly, the court respectfully rejects plaintiffs argument that an imaginary tangent line may be drawn in order to dispose the curved edge parallel to the center main piece and finds that the accused product lacks “prongs” with an outer portion “essentially disposed parallel” to an elongate main portion.

ii. Claim 12

Claim 12 does not require “prongs,” but requires, “at least a pair of strap retaining members positioned at opposite end of the retainer, respectively, and an elongated member extending between the strap-retaining members.” (Compl. Ex. A, Col. 6.) “Elongated member” as used in Claim 12 is used interchangeably with the term “elongate main portion” in Claims 1, 6 and 8.

Defendant argues that the accused product is missing an “elongate main portion” because the center portion of defendant’s accused product is split, whereas an “elongate main portion” suggests a long, contiguous central piece. (Def. Mem. at 11-12.) Plaintiff argues that the '766 patent does not define “elongate main portion” or “elongated member” as being a single piece, but only that there is a “main central portion of the invention that is elongated.” (PI. Opp. at 8.) Plaintiff further contends that the claim language does not preclude splitting of elongated portion. (Id.) Defendant argues in its Reply that plaintiff is attempting to use a definition divorced from the context of the specification — and that even if a split main portion is possible, the phrase does not provide “explicit or implicit notice to the public.” (Def. Reply at 4.)

Under the court’s claim construction, “elongate main portion” or “elongated member,” used interchangeably in the singular form, describes a main structure that is longer than it is wide, and'that extends continuously across the opposite ends of the apparatus without any substantial break or gap. The court respectfully disagrees with plaintiff’s contention that points Al, A2, A3, and A4 in Figure 2 together comprise the “elongate main portion,” though split in defendant’s accused product, because the center portion of the accused product does not extend across the product without a substantial break or split. Indeed, the split between points A1/A2 and A3/A4 in Figure 2 is significant. Moreover, the center pieces are not clearly the “main” piece of the structure, as sections C, D, E, and F of Figure 2, which comprise the outer circular frame of the structure, appear to comprise the “main” portion of the accused device, as the circular frame constitutes a majority of the accused device’s structure. Accordingly, the court finds that that Claim 12 does not read on defendant’s accused product, as there is no “elong