Edelbrock, LLC v. Whipple Industries, Inc.

• Court: District Court, E.D. California
• Decided: February 1, 2021
• Docket: 1:19-cv-01502
• Status: Unknown

Opinion

1 2 3 4 5

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

12 EDELBROCK, LLC, Case No. 1:19-cv-01502-DAD-EPG

13 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING 14 v. CLAIM CONSTRUCTION

15 WHIPPLE INDUSTRIES, INC, doing business (ECF Nos. 40, 44, 45, 47, 48) 16 as Whipple Superchargers,

17 Defendant.

19 I. INTRODUCTION 20 Plaintiff Edelbrock, LLC (“Edelbrock”) filed this action against Defendant Whipple 21 Industries, Inc. doing business as Whipple Superchargers (“Whipple”) alleging infringement of 22 United States Patent No. 9,683,481 (the “‘481 Patent”), pursuant to the United States Patent Act, 23 35 U.S.C. § 1 et seq. (ECF No. 1.) 24 This matter is before the Court on the parties’ competing briefs regarding claim 25 construction of five terms in the ‘481 Patent. (ECF No. 40.) The parties filed their principal claim 26 construction briefs on September 11, 2020, and their responsive claim construction briefs on 27 October 1, 2020. (ECF Nos. 44-45, 47-38.) The Court held a claim construction hearing on 1 relevant documents, as well as the parties’ arguments at the hearing, and recommends construing the disputed claims as set forth below. 2 II. BACKGROUND 3 The ‘481 Patent is titled “Dual Pass Intercooled Supercharger.” (ECF No. 44-2 at 2.) Chad 4 Magana and Robert Simons are the inventors and Edelbrock is the applicant and assignee. (Id.) 5 Edelbrock filed its patent application on March 22, 2016, and the ‘481 Patent was issued on June 6 20, 2017. (Id.; ECF No. 45-6 at 2-10.) 7 The ‘481 Patent is “directed to a dual pass intercooled supercharger and method of 8 compressing and cooling air to an engine intake.” (ECF No. 1 at 3.) The dual pass intercooled 9 supercharger is described as “including a supercharger; and an intercooler in fluid communication 10 with an exit of the supercharger, the intercooler configured as a dual pass heat exchanger.” (ECF 11 No. 44-2 at 10.) A dual pass heat exchanger “is defined as a heat exchanger where the fluid 12 passing through the exchanger passes through the heat exchanger more than once.” (Id. at 12.) Air 13 is compressed in a supercharger and then passed through “a first portion of an intercooler in fluid 14 communication with an exit of the supercharger[.]” (Id. at 10.) The air then exits the intercooler 15 into a common chamber and is passed through a second portion of the intercooler different from 16 the first portion. (Id..) “A heat exchange medium” such as water or coolant “may be in fluid 17 communication between the first portion and the second portion of the heat exchanger.” (Id.) The 18 supercharger and intercooler “may be integrated into a single housing or may be separate.” (Id. at 19 12.) 20 /// /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 30 2 36b 50 36a 36 48

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9 VG va ! i 10 ps 46 MH 2 40 FIG. 4 11 12 Figure 4 depicts a cross section of an exemplary dual pass intercooled supercharger [30]. 13 | (ECF No. 44-2 at 11.) In this exemplary embodiment, a housing [32] encloses and directs air from 14 | the supercharger chambers [34] to the intercooler [36] and out the runners [40] to the engine. (/d.) 15 | The supercharger compresses the air, which enters the central chamber [48] toward the 16 || intercooler [36]. Ud.) A seal [44] prevents the air from bypassing the intercooler and the air is 17 | directed through a first portion of the intercooler [36a] and into a chamber [32] between the 18 intercooler and the housing. (/d.) The air then passes through a second portion of the intercooler 19 [36b] and enters the engine through runners [40]. (/d.) 20

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& 12 FIG. 6 13 14 15 Figure 6 “illustrates an exemplary top view of the intercooler exchanger including an 16 || exemplary heat exchange medium flow path from an exemplary inlet to an exemplary exit.” (ECF 17 | No. 44-2 at 11.) In this exemplary embodiment, an inlet [56] is separated into two inlets [56a and 18 56b] at the heat exchanger and one outlet [58]. (/d. at 11-12.) Seals [60] divide the heat exchanger 19 into first and second portions to permit the dual pass through the heat exchanger. (/d. at 12.) The 0 exchange medium flow path may be reversed or redirected to accomplish a specific design purpose. Ud. at 11-12.)

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1 On October 27, 2017, Whipple petitioned the United States Patent and Trademark Office (“USPTO”) for an ex parte reexamination of the ‘481 Patent. (ECF No. 48-9.) Whipple requested 2 reexamination based upon a YouTube video and an associated declaration, U.S. Pre-grant 3 Publication 2010/0108040 to Simons et al., WO 2015/179048 to Callaway et al. (“Callaway”), 4 and U.S. Pat. No. 7,213,639 to Daniellson et al. (Id.) The USPTO accepted the request to 5 reexamine the ‘481 Patent and Edelbrock submitted a response. (ECF No. 45-7 at 46-79.) The 6 USPTO subsequently issued a final rejection. (ECF No. 48-10.) Edelbrock requested 7 reconsideration on November 5, 2018 and submitted claim amendments and supporting 8 arguments. (ECF No. 48-11.) The USPTO found the amended claims patentable and issued a 9 reexamination certificate on January 15, 2019. (ECF No. 48-12; ECF No. 44-5.)1 10 Edelbrock filed this action on October 23, 2019, alleging violations of claims 1 and 17 of 11 the ‘481 Patent and seeking a permanent injunction, lost profit damages, and a finding of willful 12 patent infringement. (ECF No. 1.) The parties agreed to constructions for three terms in claims 1 13 and 17 of the ‘481 Patent while five terms or phrases remain in dispute. (ECF No. 40.) 14 III. LEGAL STANDARDS 15 A. Key Patent Concepts 16 A patent must “describe the exact scope of an invention and its manufacture to secure to 17 the patentee all to which he is entitled and to apprise the public of what is still open to them.” See 18 Markman v. Westview Instruments, Inc., 517 U.S. 370, 373 (1996). A patent application must 19 contain a “specification” and at least one drawing. 35 U.S.C. § 111. There are two distinct parts 20 of a patent specification. The first is a detailed “written description of the invention and of the manner and process of making and using it,” set forth “in such full, clear, concise, and exact 21 terms as to enable any person skilled in the art . . . to make and use the same.” 35 U.S.C. § 112(a). 22 The written description also “shall set forth the best mode contemplated by the inventor or joint 23 inventor of carrying out the invention.” Id. Second, a patent “specification shall conclude with 24 one or more claims particularly pointing out and distinctly claiming the subject matter which the 25 applicant regards as his invention.” 35 U.S.C. § 112(b). The claims define the scope of a patent 26

27 1 Edelbrock’s responsive brief also notes that, on September 11, 2020, Whipple filed a second request for reexamination, again relying on YouTube and Callaway, among other references. (see ECF Nos. 48 at 8, 48-13.) It 1 grant, Markman, 517 U.S. at 372, but “do not set forth the invention in all of the detail required by the written description.” Lava Trading, Inc. v. Sonic Trading Mgmt., LLC, No. 03 CIV. 842 2 (TPG), 2004 WL 1145833, at *3 (S.D.N.Y. May 20, 2004). 3 Consistent with the “best mode” requirement of 35 U.S.C. § 112, patents disclose 4 “embodiments” and “preferred embodiments” of the claimed invention, the purposes of which are 5 “to provide a disclosure to the public of [the inventor’s] best mode of carrying out the invention 6 when the applications were filed.” Constr. Tech., Inc. v. Cybermation, Inc., 965 F. Supp. 416, 431 7 (S.D.N.Y. 1997). Such a disclosure is included for the benefit of the public, rather than to limit 8 the scope of the invention. Id.; see also Martin v. Barber, 755 F.2d 1564, 1567 (Fed. Cir. 1985) 9 (explaining that “[i]nfringement, either literal or by equivalence, is determined by comparing the 10 accused device with the claims in suit, not with a preferred or commercial embodiment of the 11 patentee’s claimed invention”). 12 B. Patent Claim Construction 13 Claim construction is a matter of law, reserved entirely for the Court. See Markman, 517 14 U.S. at 372; Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Terms 15 contained in claims are “generally given their ordinary and customary meaning.” Vitronics, 90 16 F.3d at 1582. “There are only two exceptions to [the] general rule” that claim terms are construed 17 according to their plain and ordinary meaning: “1) when a patentee sets out a definition and acts 18 as his own lexicographer, or 2) when the patentee disavows the full scope of a claim term either 19 in the specification or during prosecution.” Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 20 1362, 1365 (Fed. Cir. 2012). To act as his own lexicographer, the patentee must “clearly set forth a definition of the 21 disputed claim term,” and “clearly express an intent to define the term.” GE Lighting Solutions, 22 LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014) (quoting Thorner, 669 F.3d at 23 1365); see also Renishaw PLC v. Marposs Societ’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 24 1998). The patentee's lexicography must appear “with reasonable clarity, deliberateness, and 25 precision.” Renishaw, 158 F.3d at 1249. To disavow or disclaim the full scope of a claim term, 26 the patentee's statements in the specification or prosecution history must amount to a “clear and 27 unmistakable” surrender. Cordis Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 1 2009); see also Thorner, 669 F.3d at 1366 (“The patentee may demonstrate intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification 2 expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.”). 3 “Where an applicant's statements are amenable to multiple reasonable interpretations, they cannot 4 be deemed clear and unmistakable.” 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 5 1326 (Fed. Cir. 2013). 6 In determining the proper construction of a claim, a court begins with the intrinsic 7 evidence of record, consisting of the claim language, the patent specification, and, if in evidence, 8 the prosecution history. Phillips v. AWH Corp., 415 F.3d 1303, 1313-14 (Fed. Cir. 2005); see also 9 Vitronics, 90 F.3d at 1582. A court may also consider extrinsic evidence, such as a dictionary 10 definition. Id. at 1317. “The appropriate starting point . . . is always with the language of the 11 asserted claim itself.” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed. Cir. 12 1998). “[T]he ordinary and customary meaning of a claim term is the meaning that the term 13 would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as 14 of the effective filing date of the patent application.” Phillips, 415 F.3d at 1313. 15 “Importantly, the person of ordinary skill in the art is deemed to read the claim term not 16 only in the context of the particular claim in which the disputed term appears, but in the context 17 of the entire patent, including the specification.” Phillips, 415 F.3d at 1313. “Claims speak to 18 those skilled in the art,” but “[w]hen the meaning of words in a claim is in dispute, the 19 specification and prosecution history can provide relevant information about the scope and 20 meaning of the claim.” Electro Med. Sys., S.A. v. Cooper Life Scis., Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994) (citations omitted). “[T]he specification is always highly relevant to the claim 21 construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a 22 disputed term.” Vitronics, 90 F.3d at 1582. “However, claims are not to be interpreted by adding 23 limitations appearing only in the specification.” Electro Med., 34 F.3d at 1054. “Thus, although 24 the specifications may well indicate that certain embodiments are preferred, particular 25 embodiments appearing in a specification will not be read into the claims when the claim 26 language is broader than such embodiments.” Id.; see also Phillips, 415 F.3d at 1323. “[I]t is 27 improper to read limitations from a preferred embodiment described in the specification—even if 1 it is the only embodiment—into the claims absent a clear indication in the intrinsic record that the patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 2 898, 913 (Fed. Cir. 2004). 3 Finally, the court may consider the prosecution history of the patent. Markman, 52 F.3d at 4 980. The prosecution history may “inform the meaning of the claim language by demonstrating 5 how the inventor understood the invention and whether the inventor limited the invention in the 6 course of prosecution, making the claim scope narrower than it would otherwise be.” Phillips, 7 415 F.3d at 1317; see also Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1384 (Fed. Cir. 2005) 8 (“The purpose of consulting the prosecution history in construing a claim is to exclude any 9 interpretation that was disclaimed during prosecution.”) (internal quotations omitted). 10 In most situations, analysis of this intrinsic evidence alone will resolve claim construction 11 disputes. See Vitronics, 90 F.3d at 1583. However, “it is entirely appropriate . . . for a court to 12 consult trustworthy extrinsic evidence to ensure that the claim construction it is tending to from 13 the patent file is not inconsistent with clearly expressed, plainly apposite, and widely held 14 understandings in the pertinent technical field.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 15 F.3d 1298, 1309 (Fed. Cir. 1999). Extrinsic evidence “consists of all evidence external to the 16 patent and prosecution history, including expert and inventor testimony, dictionaries, and learned 17 treatises.” Markman, 52 F.3d at 980. All extrinsic evidence should be evaluated in light of the 18 intrinsic evidence, Phillips, 415 F.3d at 1319, and courts should not rely on extrinsic evidence in 19 claim construction to contradict the meaning of claims discernible from examination of the 20 claims, the written description, and the prosecution history. Pitney Bowes, 182 F.3d at 1308. While extrinsic evidence may guide the meaning of a claim term, such evidence is less reliable 21 than intrinsic evidence. Phillips, 415 F.3d at 1318-19. 22 IV. CLAIM CONSTRUCTION TERMS 23 The parties have agreed to constructions for three terms in claims 1 and 17 of the ‘481 24 Patent while five terms or phrases remained in dispute. (ECF No. 40.) Specifically, the parties 25 agree to constructions of the following three claim terms: 26 /// 27 /// Term Claims Parties’ Agreed Construction 1 an/the intercooler 1, 17 a/the cooling device 2 3 a single heat exchanger 1, 17 one heat exchanger 4 on a same side of the dual pass 1, 17 on a front side of the dual pass intercooled supercharger intercooled supercharger 5 (ECF No. 40.) 6 The parties dispute the following five claim terms: 7 8 Term Claims Edelbrock’s proposed Whipple’s proposed construction construction 9 A first portion of a heat 1 No construction A first volume of the heat 10 exchange surface necessary – ordinary exchanger meaning 11 A second portion of a 1 No construction A second volume of the heat 12 heat exchange surface necessary – ordinary exchanger different from the meaning first volume 13 Overlap 1 No construction Extend over so as to cover 14 necessary – ordinary partly meaning 15 From an inlet to an outlet 1, 17 No construction From an inlet of the heat 16 across the heat exchanger necessary – ordinary exchanger to an outlet of the meaning heat exchanger [revised 17 proposed construction] 18 An inlet and an outlet of 1, 17 No construction An inlet and outlet of the the heat exchange fluid necessary – ordinary supercharger housing 19 medium meaning [revised proposed construction]

20 Alternatively, “a fluid 21 medium inlet and outlet of the heat exchanger” 22 (ECF Nos. 40, 44, 45, 47, 48.) 23 The disputed terms are from claims 1 and 17 of the ‘481 Patent, which state: 24 25 1. A dual pass intercooled supercharger, comprising: [a] a housing; 26 [b] a front drive, front inlet supercharger; 27 [c] an intercooler in fluid communication with an exit of the supercharger, the intercooler configured as a dual pass heat exchanger having an airflow path from the supercharger that passes through the heat 1 exchanger, defining a heat exchange area, more than once, [d] wherein the dual pass heat exchanger is a single heat exchanger in 2 which a heat exchange medium is in fluid communication from an inlet to an outlet across the heat exchanger and defining a flow 3 path perpendicular to the air flow path through the heat exchange area, 4 [e] wherein the heat exchanger is configured such that the airflow path 5 from the supercharger contacts a first portion of a heat exchange surface of the heat exchanger, leaves the heat exchange area, and 6 reenters the heat exchange area to contact a second portion of the heat exchange surface separate from the first portion, the first 7 portion and second portion of the intercooler overlap in a depth dimension along an air flow direction, and 8 [f] wherein the second portion comprises two second portions, one of the two second portions is on a first side of the first portion and 9 another of the two second portions is on a second side of the first portion opposite the first [portion] side; 10 [g] wherein an inlet and an outlet of the heat exchange fluid 11 medium and an inlet of the air flow through the supercharger and a supercharger pulley are on a same side of the dual pass intercooled 12 supercharger; and [h] a first seal to prevent air from bypassing the intercooler positioned 13 between the first portion and the second portion of the heat exchanger. 14 . . . . 15 17. A method of compressing and cooling air to an engine intake, comprising: [a] compressing the air in a front drive, front inlet supercharger; 16 [b] passing the air exiting the supercharger through a first portion of an 17 intercooler in fluid communication with an exit of the supercharger; [c] exiting the air from the first portion of the intercooler into a common 18 chamber; 19 [d] passing the air from the common chamber through a second portion of the intercooler different from the first portion of the intercooler, the air 20 directed in opposite directions when passing the first portion of the intercooler and when passing the second portion of the intercooler, 21 wherein [e] the intercooler defines a single heat exchanger in which a heat 22 exchange medium is in fluid communication from an inlet to an outlet across the heat exchanger and defines a flow path perpendicular to 23 the air flow path through the heat exchange area, 24 [f] a heat exchange medium of the intercooler is in fluid communication between the first portion and the second portion, 25 [g] a heat exchange medium flow path through the first portion and the second portion is perpendicular to an air flow path through the first portion 26 and the second portion, and 27 [h] the second portion comprises two second portions, one of the two second portions is on a first side of the first portion and another of the two second seal positioned between the first portion and the second portion prevents 1 air from bypassing the intercooler, [i] wherein an inlet and an outlet of the heat exchange fluid medium and an 2 inlet of the air flow through the supercharger and a supercharger pulley are on a same side of the dual pass intercooled supercharger. 3

4 (ECF No. 44-5 at 3 (emphasis and paragraph lettering added).) 5 V. DISCUSSION 6 A. Failure to Include Prior Art and Prosecution History in Joint Statement 7 As a preliminary matter, Edelbrock argues that the Court should disregard Whipple’s 8 arguments regarding prior art and the ‘481 Patent’s prosecution history because they are untimely 9 and violate the Northern District of California’s Patent Local Rules (“PLR”). (ECF No. 48 at 9- 10 13.) Edelbrock notes that the parties’ Joint Scheduling Report proposed that the Court apply the PLR for purposes of claim construction. (Id. at 4.) 11 PLR 4-2 provides, in relevant part, that “each party shall . . . identify all references from 12 the specification or prosecution history that support its proposed construction” at the same time 13 that the parties exchange their respective Preliminary Claim Constructions. Patent L.R. 4-2(b) 14 (N.D. Cal. Nov. 4, 2020). Additionally, pursuant to PLR 4-3, the parties are required to complete 15 and file a Joint Claim Construction and Prehearing Statement which contains, among other things, 16 an identification of all references from the specification or prosecution history that support each 17 party’s proposed construction. Id. at 4-3(b). 18 According to Edelbrock, Whipple failed to identify any prior art or prosecution history 19 when the parties exchanged Preliminary Claim Constructions pursuant to PLR 4-2 and the failure 20 to do so violated PLR 4-2(b) and PLR 4-3. (ECF No. 48 at 9-13.) Thus, Edelbrock requests that 21 the Court decline to consider Whipple’s discussion of prior art and prosecution history. (Id.) 22 The PLR do not specify the actions that the Court may or must take if the parties do not 23 comply with the enumerated requirements. O2 Micro Int'l Ltd. v. Monolithic Power Sys., Inc., 467 24 F.3d 1355, 1363 (Fed. Cir. 2006). It also is unclear whether and to what extent these rules are 25 binding on this Court. Nonetheless, the Court considers Edelbrock’s objection on the merits. 26 Because Whipple did not properly disclose the prior art and prosecution history as 27 supporting its proposed construction, this material “must be stricken or excluded unless 1 Asetek Danmark A/S, 2018 WL 452109, at *2 (N.D. Cal. Jan. 17, 2018) (quoting Fed. R. Civ. P. 37(c)(1)). Whipple does not appear to dispute that it failed to identify the prior art and prosecution 2 history in violation of PLR 4-2(b) and PLR 4-3 and offers no justification for the timing of its 3 disclosure. 4 As to whether the failure was harmless, Edelbrock contends that it was prejudiced because 5 its “first brief does not address Whipple’s primary evidence, while Whipple has two chances to 6 explain its prior art and prosecution arguments.” (ECF No. 48 at 9.) The Court notes that 7 Edelbrock’s responsive brief thoroughly addressed Whipple’s prior art and prosecution history 8 arguments. At the claim construction hearing, the Court also asked if Edelbrock would like 9 additional time and an opportunity to submit supplemental briefing and Edelbrock declined. (See 10 ECF No. 54 at 8-9.) Thus, although Edelbrock objects to the late disclosure, it has been given an 11 opportunity to cure any prejudice that may have resulted from Whipple’s untimely disclosure. As 12 Edelbrock has declined this opportunity, it appears that the harm at issue does not rise to the level 13 of prejudice necessary to warrant exclusion. The Court will therefore consider Whipple’s 14 arguments and evidence regarding prior art and the prosecution history in construing the disputed 15 terms as discussed further below.

16 B. Construction of “a first portion of a heat exchange surface” and “a second portion of a heat exchange surface” 17 18 Term Claims Edelbrock’s proposed Whipple’s proposed construction construction 19 A first portion of a heat 1 No construction A first volume of the heat 20 exchange surface necessary – ordinary exchanger meaning 21 A second portion of a 1 No construction A second volume of the heat 22 heat exchange surface necessary – ordinary exchanger different from the meaning first volume 23 The Court considers the first and second disputed terms, both from claim 1[e], together. 24 Claim 1[e] recites: 25 wherein the heat exchanger is configured such that the airflow path from the 26 supercharger contacts a first portion of a heat exchange surface of the heat exchanger, leaves the heat exchange area, and reenters the heat exchange area to 27 contact a second portion of the heat exchange surface separate from the first portion, the first portion and second portion of the intercooler overlap in a depth 1 dimension along an air flow direction; 2 (ECF No. 44-5 at 3 (emphasis added).) Edelbrock argues that these terms do not need construction because the word “portion” 3 has an understood meaning as “a part of any whole, either separated from or integrated with it.” 4 (ECF No. 44 at 11.) Further, the dictionary definition of the word “portion” is consistent with the 5 context of claim 1[e], and on its face claim 1[e] indicates that the airflow will contact a first part 6 of the heat exchanger’s surface and then contact a second part of the heat exchanger’s surface. 7 (Id. at 11-12.) 8 Whipple argues that the claim language, specification, prosecution history, and prior art 9 all require the first and second portions of the heat exchange surface to be a separate “volume” of 10 the same heat exchanger. (ECF No. 45 at 13-16.)2 According to Whipple, the terms “first portion” 11 and “second portion” of the heat exchange surface mean a first volume and a second volume of 12 the same single heat exchanger. (Id.; ECF No. 47 at 8-9.) 13 The Court disagrees with Whipple’s proposed construction and does not find that 14 “portion” means a three-dimensional “volume.” As Edelbrock contends, the word “portion” has 15 an understood meaning as “a part of any whole, either separated from or integrated with it.” (ECF 16 No. 44-6) Dictionary.com, https://www.dictionary.com/browse/portion (last visited Dec. 16, 17 2020); see also Portion, Oxford English Dictionary (3d ed. 2006) (defining “portion” as “[a]n 18 allocation, a share” or “[a] part of any whole; a section; a division; a proportion, a fraction.”); 19 Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (“[I]n determining the 20 ordinary and customary meaning of the claim term as viewed by a person of ordinary skill in the 21 art, it is appropriate to consult a general dictionary definition of the word for guidance.”); U.S. Surgical Corp. v. Ethicon, Inc., 103. F.3d 1554, 1568 (Fed. Cir. 1997) (claim construction “is not 22 an obligatory exercise in redundancy); O2 Micro Int’l Ltd. V. Beyond Innovation Tech.. Co., 521 23 F.3d 1351, 1360 (Fed. Cir. 2008) (“In some cases, the ordinary meaning of claim language 24 . . . may be readily apparent even to lay judges, and claim construction in such cases involves 25 26 2 As part of this argument, Whipple contends that there is a dispute about whether the first and second portions are of 27 the same heat exchanger. (ECF No. 45 at 13-16; ECF No. 47 at 8.) However, Edelbrock does not appear to argue that more than one heat exchanger is at issue. (See ECF No. 44 at 11-12; ECF No. 48 at 10.) To the contrary, Edelbrock 1 little more than the application of the widely accepted meaning of commonly understood words.”) (internal citations and quotation marks omitted). 2 Whipple argues that “the claims and specification make clear [that] the first and second 3 portions are three-dimensional volumes.” (ECF No. 45 at 14.) In support, Whipple cites to the 4 ‘481 Patent specification, which describes the “portions” as follows: 5 The air leaving the supercharger is then directed through the intercooler 36. The 6 intercooler is configured such that the supercharger air traverses a first portion of the intercooler through a first volume. The air enters the intercooler along a 7 portion of a first side and exits along an opposing second side. . . . The air enters the second portion of the intercooler from the second side (i.e. the exit side from 8 the first air pass). The air then exits the intercooler a second time on the first side. The second pass of the air is through a second volume different from the first 9 volume, such that the air passes through different lengths of the intercooler. Once the air has traversed the intercooler twice, the cooled air travels along the runners 10 40 to the engine.

11 (ECF No. 44-2 at 11 (emphasis added).) 12 Whipple points out that the specification differentiates between “portions,” which 13 Whipple contends are three-dimensional, and “sides,” which Whipple contends are two- 14 dimensional. (ECF No. 45 at 14-15; ECF No. 47 at 8-9.) Whipple also notes that claim 1 15 distinguishes between portions and sides. (ECF No. 47 at 8 (citing claim 1[f] (requiring “one of 16 the two second portions is on a front side of the first portion and another of the two second 17 portions is on a second side.”)).) Whipple contends that this demonstrates that portion means a 18 three-dimensional volume. The Court disagrees. 19 The use of both “side” and “portion” in the specification does not support the conclusion 20 that “portion” is three-dimensional and is synonymous with “volume.” Indeed, such a conclusion 21 would ignore the fact that the specification distinguishes between the terms “portion” and 22 “volume,” and would fail to give separate meaning to these terms. A construction that gives a 23 separate meaning to the specification terms “side,” “portion,” and “volume,” is preferred and the 24 Court finds that such a construction is also consistent with the ordinary meaning of the term 25 “portion,” as discussed above. See Merck & Co. v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1372 26 (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.”); Comaper Corp., 596 F.3d at 1348 (while not 27 conclusive, “[t] here is an inference . . . that two different terms used in a patent have different 1 meanings”); see also Thorner, 669 F.3d at 1365 (“The words of a claim are generally given their ordinary and customary meaning as understood by a person of ordinary skill in the art when read 2 in the context of the specification and prosecution history.”). 3 In sum, the Court finds that there is no construction necessary for the terms “a first portion 4 of a heat exchange surface of the heat exchanger,” and “a second portion of the heat exchange 5 surface,” and recommends that the terms should be given their ordinary meaning. 6 C. Construction of “overlap” 7

8 Term Claims Edelbrock’s proposed Whipple’s proposed 9 construction construction 10 Overlap 1 No construction Extend over so as to cover necessary – ordinary partly 11 meaning 12 The third disputed term comes from claim 1[e], which recites: 13 wherein the heat exchanger is configured such that the airflow path from the 14 supercharger contacts a first portion of a heat exchange surface of the heat exchanger, leaves the heat exchange area, and reenters the heat exchange area to 15 contact a second portion of the heat exchange surface separate from the first portion, the first portion and second portion of the intercooler overlap in a depth 16 dimension along an air flow direction 17 (ECF No. 44-5 at 3 (emphasis added).) 18 In its briefing, Edelbrock argues that the term “overlap,” which describes the first and 19 second portion of the heat exchanger, requires no construction because it is a word used in 20 everyday language and nothing in the specification indicates that the patentee meant to give the 21 term “overlap” anything other than its plain and ordinary meaning. (ECF No. 44 at 13-14; ECF 22 No. 48 at 15-16.) 23 Whipple contends that Edelbrock has not alleged that “overlap” has some special meaning 24 within the automotive field different from its plain dictionary definition, or that it acted as its own 25 lexicographer to specially define the term. (ECF No. 45 at 19-20; ECF No. 47 at 11-13.) Thus, 26 “overlap” should be construed according to its plain meaning in the dictionary, and that the plain 27 meaning is “to extend over so as to cover partly.” (Id.) 1 During oral argument, the parties agreed to construe the term “overlap” to mean “to extend over so as to cover partly,” and the Court will recommend adopting this construction. 2 D. Construction of “from an inlet to an outlet across the heat exchanger” 3 4 Term Claims Edelbrock’s proposed Whipple’s revised construction proposed construction 5 From an inlet to an outlet 1, 17 No construction From an inlet of the heat 6 across the heat exchanger necessary – ordinary exchanger to an outlet of the meaning heat exchanger. 7 The fourth disputed term comes from claims 1 and 17. The relevant portions of claims 1 8 and 17 state: 9 wherein the intercooler defines a single heat exchanger in which a heat exchange 10 medium is in fluid communication from an inlet to an outlet across the heat exchanger and defines a flow path perpendicular to the air flow path through the 11 heat exchange area

12 (ECF No. 44-5 at 3 (emphasis added).) 13 Edelbrock argues that no construction of this term is necessary and that it should be given 14 its ordinary meaning. (ECF No. 44 at 14-16.) Edelbrock explains that claims 1[d] and 17[e] 15 “describe a path, indicating that the dual pass heat exchanger is a single heat exchanger in which 16 ‘a heat exchange medium’ (e.g. water or coolant) is in ‘fluid communication from an inlet to an 17 outlet across the heat exchange area.’” (Id. at 14.) 18 Whipple initially proposed construing the term “from an inlet to an outlet across the heat 19 exchanger,” as meaning “from one of two inlets of the heat exchanger to the outlet of the heat 20 exchanger.” Whipple argued, in support of that construction, that there are two disputes about the 21 term: (1) whether the fluid communication from an inlet to an outlet must be across the same 22 single heat exchanger, and (2) whether the claim should be limited to an embodiment with two 23 inlets and one outlet. (ECF No. 45 at 16-18; ECF No. 47 at 9-10.) 24 However, Whipple subsequently conceded the second dispute, both in its responsive brief 25 and during oral argument, and has dropped its proposed construction requiring the term to have 26 two inlets and one outlet. (See ECF No. 47 at 9.) Thus, the revised construction proposed by 27 Whipple is “from an inlet of the heat exchanger to an outlet of the heat exchanger.” (ECF No. 45 1 The term as set forth in the claim is, “from an inlet to an outlet across the heat exchanger,” and Whipple has not explained why or how the construction it offers—“from an inlet of the heat 2 exchanger to an outlet of the heat exchanger,” is materially different from the term or is necessary 3 to clarify that the fluid communication from an inlet to an outlet is across a single heat exchanger. 4 The Court therefore finds that there is no construction necessary for the term, “from an inlet to an 5 outlet across the heat exchanger,” and recommends that the term should be given its ordinary 6 meaning. 7 E. Construction of “an inlet and an outlet of the heat exchange fluid medium” 8

9 Term Claims Edelbrock’s proposed Whipple’s proposed 10 construction construction 11 An inlet and an outlet 1[g], 17[i] No construction An inlet and outlet of the of the heat exchange necessary – ordinary supercharger housing 12 fluid medium meaning [revised proposed construction]

13 Alternatively, “a fluid 14 medium inlet and outlet of the heat exchanger” 15 The fifth disputed term comes from claims 1[g] and 17[i]. The relevant portions of these 16 claims recite: 17

18 wherein an inlet and an outlet of the heat exchange fluid medium and an inlet of the air flow through the supercharger and a supercharger pulley are on a same side3 19 of the dual pass intercooled supercharger. (ECF No. 44-5 at 3 (emphasis added) (footnote added).) 20 Edelbrock contends that no construction of the term is necessary and that the term should 21 be given its ordinary meaning. Alternatively, the term should be construed to mean “a fluid 22 medium inlet and outlet of the heat exchanger.” (ECF No. 44 at 16-18.) 23 Whipple argues that the term should be construed as “an inlet and outlet of the 24 supercharger housing.” (ECF No. 47 at 14-16.) Whipple initially proposed a construction 25 requiring the term to refer to water inlets/outlets, but subsequently conceded that the claim term is 26 not limited to water. (See id.). Thus, the parties dispute whether the term refers to the fluid 27 1 inlet/outlet of the heat exchanger, as proposed by Edelbrock, or to the fluid inlet/outlet to the supercharger housing, as proposed by Whipple. 2 Whipple argues that its interpretation is “compelled by the claims themselves, which 3 recite three different inlets/outlets: (1) ‘an inlet to an outlet across the heat exchanger,’ (2) ‘an 4 inlet and an outlet of the heat exchange fluid medium . . . on a same side of the dual pass 5 intercooled supercharger,” ‘and (3) ‘an inlet of the air flow through the supercharger.’” (ECF No. 6 45 at 20-21 (emphasis in original).) Whipple cites to the rule of construction that different terms 7 used in a patent should be construed as having a different meaning, and argues that if Edelbrock 8 had intended the inlet/outlet term to refer back to the previously cited inlet/outlet “across the heat 9 exchanger,” then Edelbrock would have used “the” rather than “an”: 10 If Edelbrock had intended to claim the same inlet/outlet of the heat exchanger 11 found in the first element, it would (and should) have used the definite article ‘the’ to refer back to it. Edelbrock did not. Instead, Edelbrock introduced a separate 12 claim element by using the indefinite article ‘an’ for the inlet and outlet of the heat exchange fluid medium. 13 14 (ECF No. 45 at 21-23; ECF No. 47 at 14-15 (citing Comapter, 596 F.3d at 1348); ECF No. 47 at 14. (citing Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1254 (Fed. Cir. 15 2010).) 16 Edelbrock contends that it intentionally used “an” rather than “the” in the term to leave 17 open “the possibility that the inlets and outlets could be the same or separate inlets and outlets 18 from those referred to in claims 1(d) and 17(e).” (ECF No. 48 at 24.) According to Edelbrock: 19 This becomes important when considering dependent claim 7. That claim depends 20 back to claim 1 through intervening claims and requires that the heat exchange medium inlet be “adjacent the second portion” and the heat exchange medium 21 outlet be “adjacent to the first portion.” The antecedent basis for claim 7 is claim 1(g), which refers to an inlet and outlet of the heat exchange medium inlet and 22 outlet from claim 1(g) are located “adjacent” the intercooler’s portions.”

23 (ECF No. 48 at 24 (emphasis in original).) The Court finds Edelbrock’s argument to be 24 persuasive. Further, as Edelbrock notes, Whipple has not cited any law requiring a patentee to use 25 antecedent basis to refer to the same structure in multiple limitations. 26 Edelbrock’s proposed construction is also consistent with the structure and language of 27 the claim itself: 1. A dual pass intercooled supercharger, comprising: 1 [a] a housing; 2 [b] a front drive, front inlet supercharger; [c] an intercooler in fluid communication with an exit of the supercharger, 3 the intercooler configured as a dual pass heat exchanger having an airflow path from the supercharger that passes through the heat 4 exchanger, defining a heat exchange area, more than once, 5 [d] wherein the dual pass heat exchanger is a single heat exchanger in which a heat exchange medium is in fluid communication from an 6 inlet to an outlet across the heat exchanger and defining a flow path perpendicular to the air flow path through the heat exchange 7 area, [e] wherein the heat exchanger is configured such that the airflow path 8 from the supercharger contacts a first portion of a heat exchange surface of the heat exchanger, leaves the heat exchange area, and 9 reenters the heat exchange area to contact a second portion of the heat exchange surface separate from the first portion, the first 10 portion and second portion of the intercooler overlap in a depth dimension along an air flow direction, and 11 [f] wherein the second portion comprises two second portions, one of 12 the two second portions is on a first side of the first portion and another of the two second portions is on a second side of the first 13 portion opposite the first [portion] side; [g] wherein an inlet and an outlet of the heat exchange fluid 14 medium and an inlet of the air flow through the supercharger and a supercharger pulley are on a same side of the dual pass intercooled 15 supercharger; and 16 [h] a first seal to prevent air from bypassing the intercooler positioned between the first portion and the second portion of the heat exchanger. 17 . . . . 18 17. A method of compressing and cooling air to an engine intake, comprising: 19 [a] compressing the air in a front drive, front inlet supercharger; [b] passing the air exiting the supercharger through a first portion of an 20 intercooler in fluid communication with an exit of the supercharger; 21 [c] exiting the air from the first portion of the intercooler into a common chamber; 22 [d] passing the air from the common chamber through a second portion of the intercooler different from the first portion of the intercooler, the air 23 directed in opposite directions when passing the first portion of the intercooler and when passing the second portion of the intercooler, 24 wherein 25 [e] the intercooler defines a single heat exchanger in which a heat exchange medium is in fluid communication from an inlet to an outlet 26 across the heat exchanger and defines a flow path perpendicular to the air flow path through the heat exchange area, 27 [f] a heat exchange medium of the intercooler is in fluid communication between the first portion and the second portion, [g] a heat exchange medium flow path through the first portion and the 1 second portion is perpendicular to an air flow path through the first portion and the second portion, and 2 [h] the second portion comprises two second portions, one of the two second portions is on a first side of the first portion and another of the two second 3 portions is on a second side of the first portion opposite the first side and a seal positioned between the first portion and the second portion prevents 4 air from bypassing the intercooler, 5 [i] wherein an inlet and an outlet of the heat exchange fluid medium and an inlet of the air flow through the supercharger and a supercharger pulley are 6 on a same side of the dual pass intercooled supercharger. 7 (ECF No. 44-5 at 3 (emphasis and paragraph lettering added).) Although claim 1[a] separately 8 lists the housing as a component of the dual pass intercooled supercharger, there is no discussion 9 of the heat exchange fluid medium inlets and outlets in this portion of the claim. Instead, the 10 terms at issue in claims 1[g] and 17[i] are indented and set forth in the context of the discussion of 11 the intercooler. (See ECF No. 44-5 at 3.) 12 Both parties additionally contend that the ‘481 Patent’s exemplary embodiments support their proposed claim construction. Specifically, Whipple argued at the claim construction hearing 13 that the phrase “inlet and outlet of the heat exchange fluid medium” must refer to the inlets and 14 outlets to the supercharger housing because the ‘481 Patent described the exemplary embodiment 15 in Figure 5 as having the air inlet 52, water inlet 56, and water outlet 58 positioned on the same 16 side of the housing. (ECF No. 54 at 27, 31; see also ECF No. 44-2 at 7.) Edelbrock, in contrast, 17 pointed to the ‘481 Patent’s Figure 6 to demonstrate that phrase “inlet and outlet of the heat 18 exchange fluid medium” refers to the heat exchanger because Figure 6 refers to fluid medium 19 inlets 56a and 56b and outlet 58 in the context of the heat exchanger. (ECF No. 54 at 33-36, 42; 20 see also ECF No. 44-2 at 8.) The specification’s exemplary embodiments accordingly do not 21 resolve the issue as they refer to the heat exchange fluid medium inlets and outlets of both the 22 supercharger housing and the heat exchanger. 23 It is therefore important to look at the context of the language at issue in claims 1[g] and 24 17[i]: wherein an inlet and an outlet of the heat exchange fluid medium and an inlet of 25 the air flow through the supercharger and a supercharger pulley are on a same side of the dual pass intercooled supercharger. 26 (ECF No. 44-5 at 3 (emphasis added).) The claims identify what must be on the same side of the 27 dual pass intercooled supercharger: (1) an inlet and outlet of the heat exchange fluid medium; (3) 1 an air inlet; and (3) the supercharger pulley. In other words, the thing that has to be on the same side of the air inlet and the pulley is either an inlet/outlet to the supercharger housing or an 2 inlet/outlet to the heat exchanger. 3 The Court notes that often it can be both. It seems likely that the heat exchange fluid 4 medium may enter and exit the housing on the same side as it enters and exits the heat exchanger, 5 and that in such cases both sets of inlets and outlets are (or are not) on the same side of the 6 supercharger as the air inlet and the pulley. However, Whipple’s proposed claim construction 7 implicitly poses a question: what if the heat exchange fluid medium inlets and outlets to the 8 supercharger housing are not on the same side as the inlets and outlets of the heat exchanger? 9 What if, for example, the heat exchange fluid medium enters the housing of the supercharger on 10 one side and then is diverted to another side of the device before entering the heat exchanger? 11 Which is the relevant inlet and outlet that must be on the same side of the dual pass intercooled 12 supercharger as the air inlet and the pulley? 13 To construe these terms, it is therefore important to see how these claims arose. Indeed, 14 Whipple contends that the prosecution history, and specifically, Edelbrock’s arguments on 15 reexamination, show that Edelbrock disclaimed its requested construction in favor of Whipple’s 16 proposed construction. (ECF No. 45 at 22-23; ECF No. 47 at 15-16.) However, the ‘481 Patent’s 17 prosecution history does not establish that Edelbrock demonstrated a “clear and unmistakable” 18 intent to disavow or disclaim the heat exchanger from the meaning of the claim terms at issue and 19 limit the fluid exchange medium inlets and outlets to the supercharger housing as Whipple 20 contends. Cordis Corp., 561 F.3d at 1329. According to the prosecution history, claims 1[g] and 17[i] were added to the ‘481 Patent as part of the reexamination in order to distinguish the ‘481 21 Patent from one particular prior art, Callaway. It was important to the USPTO that the ‘481 22 Patent, unlike Callaway, required the heat exchange fluid medium inlet and outlet to be on the 23 same side of the supercharger as the pulley and the air inlet. The decisive issue is therefore which 24 of the fluid medium inlets and outlets the USPTO focused on as differentiating the ‘481 Patent 25 from Callaway. The prosecution history reveals that the patent examiner considered the location 26 of the fluid medium inlets and outlets to the intercooler heat exchanger, and not the inlets and 27 outlets to the housing, to be the crucial distinguishing factor. 1 After the USPTO issued a final rejection following Whipple’s request for reexamination, Edelbrock submitted proposed claim amendments incorporating the disputed terms from what 2 was former claim 16 into independent claims 1 and 17. (ECF No. 48-11.) Edelbrock’s remarks in 3 support of the proposed amendments noted that the USPTO cited to Callaway in support of its 4 rejection, “including the position of the supercharger pulley, air inlet to the supercharger, and the 5 fluid medium inlet and outlet of the heat exchanger.” (Id. at 10 (emphasis added).) Specifically, 6 the USPTO asserted that “[p]age 12 of Callaway states that water manifold 10 controls the in/out 7 flow of water between each intercooler assembly 13. Figure 4 shows the manifold, as well as the 8 drive pulley and the air inlet at the front of the unit.” (ECF No. 48-10 at 8 (emphasis added); ECF 9 No. 48-11 at 10; see also ECF No. 45-5 at 15, 29.) Edelbrock explained that Callaway’s water 10 manifold 10 “does not disclose the actual inlet and outlet of the water to the intercooler as 11 claimed.” (ECF No. 48-11 at 11 (emphasis added).) Instead, when viewed from the side as 12 illustrated in Callaway’s Figure 5, “the tubing 7 to and from these manifolds is clearly shown 13 including the actual inlet and outlets to the housing of the supercharger and the intercooler.” 14 (Id. (emphasis added).) Further, Callaway actually described water flowing “via a plurality of 15 outgoing and returning tubing 7 . . . to each respective intercooler assembly 13, 13, 14.” (Id. 16 (emphasis added); see also ECF No. 45-5 at 15, 33.) Therefore, Edelbrock argued that the inlet 17 and outlet of the fluid medium in Callaway were actually positioned on the back side of the 18 supercharger and on the opposite side of the pulley and air inlet to the supercharger. (48-11 at 10.) 19 The USPTO agreed with Edelbrock and found the amended claims patentable. (ECF No. 20 48-12.) The examiner reasoned that the external water ports shown in Callaway’s Figure 11 “are not heat exchange medium inlets and outlets.” (Id. at 6.) Instead “[t]he coolant enters and leaves 21 the intercooler heat exchanger through ports on the opposite side of the engine, as seen in 22 figures 4 and 5.” (Id. at 6-7 (emphasis added); see also ECF No. 45-5 at 29-30, 35.) In other 23 words, in order to distinguish the ‘481 Patent from Callaway and find the amended claims 24 patentable, the examiner explicitly said it was the fluid medium inlets and outlets to the heat 25 exchanger that were critical. The examiner further noted that: 26 [w]hile it was earlier stated . . . that it would have been obvious to move the inlet 27 and outlet of the cooling fluid to the front of the engine to make the ports closer to the fluid source to reduce piping, this is no longer seen as true, as both the the engine compartment, yet route the coolant to the back of the engine to enter 1 the intercooler. A cursory search for an intercooler having the drive pulley as well as a cooling fluid inlet and outlet on the front of the supercharger failed to 2 provide a showing of this configuration. 3 (ECF No. 48-12 at 7 (emphasis added).) While much of the reexamination discussion used the term “intercooler” rather than “heat 4 exchanger,” it is worth noting that Edelbrock’s proposed construction uses “heat exchanger” and 5 not “intercooler.” Although both Edelbrock and the patent examiner frequently used the term 6 intercooler in discussing the relevant claims, the patent examiner also used the term “intercooler 7 heat exchanger” in distinguishing the ‘481 Patent from Callaway. The ‘481 Patent also describes 8 the intercooler as being “configured as a dual pass heat exchanger” and states that “the intercooler 9 defines a single heat exchanger[.]” (ECF No. 44-5 at 3.) Therefore, the use of the term 10 “intercooler” in the relevant prosecution history appears to also refer to the “heat exchanger.” It 11 accordingly follows that the inlets and outlets of the heat exchange fluid medium described in 12 claims 1[g] and 17[i] are not the inlets and outlets to the housing, but the inlets and outlets to the 13 heat exchanger. 14 The intrinsic evidence indicates that there was a clearly expressed intent to define the fluid 15 medium inlets and outlets described in claims 1[g] and 17[i] as referring to an inlet and outlet of 16 the heat exchanger. Reading the claim terms not only in the context of the particular claim in 17 which the disputed terms appear, but also in the context of the entire patent and the prosecution 18 history, indicates that the disputed terms refer to the fluid medium inlets and outlets of the heat 19 exchanger. Therefore, the Court recommends construing “an inlet and an outlet of the heat 20 exchange fluid medium” as set forth in claims 1[g] and 17[i] as “a fluid medium inlet and outlet 21 of the heat exchanger.” 22 VI. FINDINGS AND RECOMMENDATIONS For the reasons set forth above, the Court recommends that: 23 1. The following terms set forth in claims 1 and 17 of the ‘481 Patent be construed 24 pursuant to the agreement of the parties (ECF No. 40): 25 a. “an/the intercooler” be construed as “a/the cooling device;” 26 b. “a single heat exchanger” be construed as “one heat exchanger;” 27 l C. “on a same side of the dual pass intercooled supercharger’ be construed as 2 “on a front side of the dual pass intercooled supercharger”; 3 2. The term “overlap” set forth in claim 1 of the ‘481 Patent be construed to mean “to 4 extend over so as to cover partly” pursuant to the parties’ agreement at the claim 5 construction hearing; 6 3. The terms “a first portion of a heat exchange surface of the heat exchanger” and “a second portion of the heat exchange surface” set forth in claim 1 of the ‘481 Patent ’ and the term “from an inlet to an outlet across the heat exchanger” set forth in claims 1 and 17 of the ‘481 Patent do not require construction and should be given their ordinary meaning; 10 4. The term “an inlet and an outlet of the heat exchange fluid medium” be construed M as “a fluid medium inlet and outlet of the heat exchanger;” and 12 5. The parties be directed to submit a joint status report regarding further scheduling 13 to the undersigned within twenty-one (21) days of an order adopting these findings 14 and recommendations. 15 These findings and recommendations will be submitted to the United States district judge 16 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 17 | (14) days after being served with these findings and recommendations, the parties may file 18 || written objections with the Court. The document should be captioned “Objections to Magistrate 19 | Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 29 | Within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 1 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 IT IS SO ORDERED. 23 54 | ‘Dated: _ February 1, 2021 [spe hey — UNITED STATES MAGISTRATE JUDGE 25 26 27 28 25