UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
NST Global, LLC, d/b/a SB Tactical
v. Case No. 1:19-cv-00792-PB Opinion No. 2024 DNH 067 Sig Sauer Inc.
MEMORANDUM AND ORDER
NST Global, LLC, filed this patent infringement action, alleging that
Sig Sauer Inc. infringes two of its patents, U.S. Patent No. 8,869,444 (“the
’444 Patent”) and U.S. Patent No. 9,354,021 (“the ’021 Patent”) (collectively,
“the Patents”). In this Memorandum and Order, I construe eight disputed
patent terms on which the infringement claims are based.
I. BACKGROUND
The Patents disclose “a forearm-gripping stabilizing attachment for a
handgun that secures to a rearward end of [a] handgun frame and engages a
user’s forearm.” ’444 Patent col. 1 ll. 13-17; ’021 Patent col. 1 ll. 16-20. The
stabilizing attachment is designed to steady the gun during shooting,
particularly one-handed shooting, and allow for more accurate and proficient
discharge. ’444 Patent col. 1 ll. 22-40; ’021 Patent col. 1 ll. 24-42.
Shortly after the ’444 Patent was granted, Sig Sauer became the sole
distributor and licensee of NST’s stabilizing attachment. Doc. 97 at 7. But in 2018, NST learned that Sig Sauer had developed its own stabilizing
attachment, id., and filed suit for direct infringement of the Patents, as well
as induced and contributory infringement of the ’444 Patent, Doc. 1 at 9-12.
About one year into the litigation, Sig Sauer filed two petitions for inter
partes review (IPR) before the Patent and Trademark Appeals Board (PTAB),
challenging all of the Patents’ claims but requesting no claim construction.
Doc. 68-3 (“[N]o terms need construction beyond their ordinary and
customary meaning to one having ordinary skill in the art.”); Doc. 68-4
(same). Sig Sauer then requested to stay this case pending the resolution of
the IPRs, which I granted. Doc. 68; Doc. 73. In June 2021, PTAB completed
its IPRs and issued its Final Written Decisions, upholding certain claims and
invalidating others for obviousness. Doc. 75-1 at 67; Doc. 75-2 at 66. The stay
was subsequently lifted in July 2023. July 11, 2023, Docket Entry.
At present, the only claims asserted against Sig Sauer are for the
infringement of claims 2, 11, and 12 of the ’444 Patent and claim 2 of the ’021
Patent (collectively, “the asserted claims”), all of which are dependent claims
adding the element of “elastomeric material.” Doc. 96 at 8. The parties now
dispute the proper construction of eight terms that appear within those
claims and the independent claims on which they depend (claims 1 and 10 of
the ’444 Patent and claim 1 of the ’021 Patent). I reproduce each of the claims
below and highlight the terms that are in dispute.
2 Claim 1 of the ‘444 Patent What is claimed is: 1. A forearm-gripping stabilizing attachment for a handgun, the handgun having a support structure extending rearwardly from the rear end of the handgun, the forearm-gripping stabilizing attachment, comprising: a body having a front end, a rear end, an upper portion, a lower portion, and a passage longitudinally extending within said upper portion and at least through said front end of said body, the support structure of the handgun being telescopically receivable by said passage; said lower portion being bifurcated so as to define a pair of spaced flaps between which a user’s forearm is received when securing the stabilizing attachment to the user’s forearm; and a strap connected to said body, said strap securing said spaced flaps to retain the user’s forearm between said spaced flaps when the stabilizing attachment is secured to a user’s forearm.
’444 Patent col. 5 ll. 65-67, col. 6 ll. 1-2.
Claim 2 of the ‘444 Patent 2. The forearm-gripping stabilizing attachment of claim 1, wherein said spaced flaps are constructed of an elastomeric material and at least partially conform to and grip a user’s forearm when the user’s forearm is disposed between said spaced flaps.
Id. col. 6 ll. 17-21.
Claim 10 of the ‘444 Patent 10. A forearm-gripping stabilizing attachment for a handgun, the handgun having a support structure extending rearwardly from the rear end of the handgun, the forearm-gripping stabilizing attachment, comprising: a body having a passage longitudinally extending therein and at least through a front end of said body, the support structure of the handgun being telescopically receivable by said passage; said body defining a space within which a user’s forearm is removably receivable; a strap connected to said body, said strap preventing withdrawal of a user’s forearm from said space when the forearm gripping stabilizing attachment is secured to the user’s forearm; and wherein said body is bifurcated and defines a pair of spaced flaps, said pair of spaced flaps is defining said space within which the user’s forearm is removably receivable.
3 Id. col. 6 ll. 54-67, col. 7 ll. 1-3.
Claim 11 of the ‘444 Patent 11. The forearm-gripping stabilizing attachment of claim 10, wherein said pair of spaced flaps are constructed of an elastomeric material.
Id. col. 7 ll. 4-6.
Claim 12 of the ‘444 Patent 12. The forearm-gripping stabilizing attachment of claim 11, wherein said pair of spaced flaps at least partially conform to a user’s forearm when the user’s forearm is disposed between said pair of space flaps.
Id. col. 7 ll. 7-10.
Claim 1 of the ‘021 Patent What is claimed is: 1. A forearm-gripping stabilizing attachment for a handgun, the handgun having a support structure extending rearwardly from the rear end of the handgun, the forearm-gripping stabilizing attachment, comprising: a body having a front end, a rear end, an upper portion, a lower portion, and a passage longitudinally extending within said upper portion and at least through said front end of said body, the support structure of the handgun being telescopically receivable by said passage; said lower portion having at least one flap extending from said upper portion; a strap connected to said body, said strap securing said at least one flap to a user’s forearm when the stabilizing attachment is secured to a user’s forearm; and wherein said passage extends entirely through said body between said front end and said rear end of said body.
’021 Patent col. 6 ll. 11-15.
Claim 2 of the ‘021 Patent 2. The forearm-gripping stabilizing attachment of claim 1, wherein said at least one flap is constructed of an elastomeric material.
Id. col. 6 ll. 28-30.
4 II. STANDARD OF REVIEW
“[T]he claims of a patent define the invention to which the patentee is
entitled the right to exclude.” Phillips v. AWH Corp., 415 F.3d 1303, 1312
(Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water, Inc. v. Safari Water
Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). As a result, “a
claim construction analysis must begin and remain centered on the claim
language itself, for that is the language the patentee has chosen to
particularly point out and distinctly claim.’” Innova/Pure Water, Inc., 381
F.3d at 1116 (cleaned up). “[T]he words of a claim ‘are generally given their
ordinary and customary meaning.’” Phillips, 415 F.3d at 1312 (quoting
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).
The ordinary and customary meaning of a claim term is “the meaning that
the term would have to a person of ordinary skill in the art in question at the
time of the invention” Id. at 1313.
Additionally, patent claims are “not construed in the abstract,” but
rather “in the context in which the term was presented and used by the
patentee.” Fenner Invs., Ltd. v. Cellco P’ship, 778 F.3d 1320, 1322-23 (Fed.
Cir. 2015); see also Aventis Pharms. Inc. v. Amino Chems. Ltd., 715 F.3d
1363, 1373 (Fed. Cir. 2013) (explaining that judges must construe claims “in
light of the appropriate context in which the claim term is used”). The other
claims in the patent—“both asserted and unasserted”—can be “valuable
5 sources of enlightenment as to the meaning of a claim term,” Phillips, 415
F.3d at 1314, and the specification “is always highly relevant to the claim
construction analysis” and often “the single best guide to the meaning of a
disputed term.” Phillips, 415 F.3d at 1315 (quoting Vitronics Corp., 90 F.3d at
1582). Although the written description and other portions of the
specification may contextualize a term, “they cannot be used to narrow a
claim term to deviate from the plain and ordinary meaning unless the
inventor acted as his own lexicographer or intentionally disclaimed or
disavowed claim scope.” Id.
The patent document and the prosecution history constitute intrinsic
evidence and deserve priority in claim construction. WesternGeco LLC v. ION
Geophysical Corp., 889 F.3d 1308, 1323 (Fed. Cir. 2018). But in the event
that the intrinsic evidence does not resolve an ambiguity in a disputed claim
term, I may turn to extrinsic evidence, such as inventor and expert
testimony, dictionaries, and treatises. Phillips, 415 F.3d at 1317; see also V-
Formation, Inc. v. Benetton Grp. SpA, 401 F.3d 1307, 1310-11 (Fed. Cir.
2005) (noting that intrinsic evidence is afforded the greatest weight in
determining what a person of ordinary skill would have understood a claim to
mean but that extrinsic evidence may also be helpful).
III. ANALYSIS
The parties have asked me to construe eight terms. I do so accordingly.
6 A. Claim Preambles
Proposed Constructions:
Sig Sauer Preamble is limiting
NST Preamble is not limiting
First, the parties dispute whether the preamble—that is, the text of
each independent claim preceding the word “comprising,” Bicon, Inc. v.
Straumann Co., 441 F.3d 945, 949 (Fed. Cir. 2006)—is limiting on the claims.
There is “[n]o litmus test defin[ing] when a preamble limits claim
scope.” Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808
(Fed. Cir. 2002). Rather, the determination as to whether a preamble is or is
not limiting requires a “review of the entire patent to gain an understanding
of what the inventors actually invented and intended to encompass by the
claim.” Id. (cleaned up); see also Am. Med. Sys, Inc. v. Biolitec, Inc., 618 F.3d
1354, 1358 (Fed. Cir. 2010) (explaining that the analysis rests on “the facts of
each case in light of the claim as a whole and the invention described in the
patent”) (quoting Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 831
(Fed. Cir. 2003)).
A preamble is not limiting “where a patentee defines a structurally
complete invention in the claim body and uses the preamble only to state a
purpose or intended use for the invention.” Arctic Cat Inc. v. GEP Power
7 Prods., Inc., 919 F.3d 1320, 1328 (Fed. Cir. 2019) (quoting Rowe v. Dror, 112
F.3d 473, 478 (Fed. Cir. 1997)); see also Catalina Mktg. Int’l, 289 F.3d at 809
(noting that a preamble is not limiting “when the claim body describes a
structurally complete invention such that deletion of the preamble phrase
does not affect the structure or steps of the claimed invention”).
In contrast, when the preamble is used to help “define the subject
matter of the claimed invention,” then it is limiting on the claim. Allen Eng’g
Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1346 (Fed. Cir. 2002) (quoting
Bell Commc’ns Rsch., Inc. v. Vitalink Commc’ns Corp., 55 F.3d 615, 620 (Fed.
Cir. 1995)). For example, a preamble is limiting if it “recites essential
structure or steps” or “is ‘necessary to give life, meaning, and vitality’ to the
claim.” Catalina Mktg. Int’l, Inc., 289 F.3d at 808 (quoting Pitney Bowes, Inc.
v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999)). Additionally,
“[w]hen limitations in the body of the claim rely upon and derive antecedent
basis from the preamble, then the preamble may act as a necessary
component of the claimed invention” and function as a limitation on the
claims. Eaton Corp. v. Rockwell Int’l Corp., 323 F.3d 1332, 1339 (Fed. Cir.
2003).
Here, each of the independent claims at issue (claims 1 and 10 in the
’444 Patent and claim 1 of the ’021 Patent) begin with the same preamble: “A
forearm-gripping stabilizing attachment for a handgun, the handgun having
8 a support structure extending rearwardly from the rear end of the handgun,
the forearm-gripping stabilizing attachment, comprising . . . .” ’444 Patent
col. 5 ll. 66-67, col. 6 ll. 1-2, 54-57; ’021 Patent col. 6 ll. 12-15. NST argues
that this preamble is not limiting because it merely “set[s] the stage for the
invention, . . . stating a purpose or intended use for the invention.” Doc. 97 at
22; see also Doc. 98 at 11 (“[T]he preambles’ reference [to the term ‘handgun’]
generally refers to the purpose or intended use and does not provide any
context essential to understanding the meaning of ‘handgun.’”) (cleaned up).
It contends that “each claim body describes a structurally complete
invention,” which is, “in essence, a body and a strap with the additional
elements described in each of the claims.” Doc. 97 at 21-22. Accordingly, it
concludes that the preamble “does not affect the structure or steps of the
claimed invention” or otherwise “give life, meaning, and vitality to the
claim[s].” Id.
Sig Sauer, in turn, claims that the preamble should be construed as
limiting because it “recites essential structure” of the invention. Doc. 96 at
13. It agrees with NST that without the language of the preamble, the
invention comprises the “body,” “strap,” and “additional elements,” Doc. 99 at
11; however, it argues that these features alone do not recite a structurally
complete invention as they cannot accomplish the “purported advantages of
the invention”—including improved gun control, shooting accuracy, and
9 weight distribution—which “only exist in relation to the handgun.” Doc. 96 at
13. Instead, Sig Sauer contends, the preamble not only references the
“structural elements” of “a handgun” and “a support structure,” thereby
providing the necessary antecedent basis for the same terms used later in the
claim bodies, but it also describes the support structure as “extending
rearwardly from the rear end of the handgun,” which limits the “specific
structural arrangement” of those elements. Doc. 99 at 9-10; see also Doc. 96
at 14-15. Accordingly, Sig Sauer concludes that the preamble “describes more
than just an intended use.” Doc. 99 at 9. I agree with Sig Sauer.
As Sig Sauer correctly notes, the preamble introduces the terms “a
handgun” and “a support structure” and therefore provides antecedent basis
for “the support structure of the handgun” as used in the bodies of the
independent claims. See Eaton Corp., 323 F.3d at 1339. Moreover, these
terms are not reintroduced anywhere the body of the claims. Cf. Symantec
Corp. v. Computer Assocs. Int’l, Inc., 522 F3d. 1279, 1288-89 (Fed. Cir. 2008)
(explaining that a preamble is generally not construed as limiting if it is
“merely duplicative of the limitations in the body of the claim”). But the
preamble at issue goes even further.
The preamble describes the structural arrangement between the
handgun and the stabilizing attachment by reciting the support structure as
“extending rearwardly from the rear end of the handgun.” When read
10 together with the claim bodies’ recitation of the support structure “being
telescopically receivable by” the passage, see, e.g., ’444 Patent col. 6 ll. 6-7,
the preamble helps define the precise structural arrangement in which the
handgun and the stabilizing attachment are secured together. Accordingly,
the preamble goes beyond merely describing an intended use of the invention
and instead provides essential structure of the invention. Cf. Cochlear Bone
Anchored Sols. AB v. Oticon Med. AB, 958 F.3d 1348, 1355 (Fed. Cir. 2020)
(holding that the preamble’s recitation of “for rehabilitation of unilateral
hearing loss” was not limiting on the claims for a patented hearing aid
because it was “merely a statement of intended use” and did not identify any
“structure for the apparatus claimed”); Marrin v. Griffin, 599 F.3d 1290, 1294
(Fed. Cir. 2010) (finding the preamble language “for permitting a user to
write thereon without the use of a marking implement” merely an “intended
use” of the patented scratch-off labels).
NST responds by arguing that the prosecution history of the ’444
Patent renders this structural argument inapposite. Doc. 98 at 11. It explains
that, in response to a rejection for indefiniteness, it successfully argued that
it was not claiming the handgun as part of the invention and that the term “a
support structure extending rearwardly from the rear end of the handgun”
was simply “a property of an existing product upon which a positively recited
structure (the claimed body) is intended to act upon.” Doc. 97-4 at 21-22. But
11 this argument is unpersuasive because the specification and claims make
clear that the Patents exclusively seek to cover a stabilizing attachment that
secures to a handgun in a precise way—that is, via a rearwardly extending
support structure that is telescopically receivable by the body’s passage.
Thus, the support structure extending rearwardly is not analogous to a
general purpose or intended use, such as, for example, “securing the
handgun.”
Accordingly, because the “preamble is essential to understand
limitations or terms in the claim body,” I find the preamble to be limiting.
Catalina Mktg. Int’l, Inc., 289 F.3d at 808.
B. “Support structure”
Sig Sauer Means-plus-function limitation where the function is
“being telescopically receivable within the passage” and
the means is “a single cylindrical tube which extends
rearward from the handgun”
NST No construction necessary; plain and ordinary meaning
Next, the parties disagree over whether the term “support structure” is
properly construed as a means-plus-function limitation. “Means-plus-function
claiming occurs when a claim term is drafted in a manner that invokes [35
12 U.S.C. § 112(f)].” 1 Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1347
(Fed. Cir. 2015). Section 112(f) applies where a claim limitation is written in
terms of “a function to be performed” rather than the more traditional
“structure for performing that function.” Id. Such a limitation must be
construed as “restricting the scope of coverage” to the structure, materials, or
acts that are recited in the specification and which correspond to the claimed
function as well as their equivalents. Id.
To determine whether a claim limitation is drafted in a means-plus-
function format, a court must determine “whether it connotes sufficiently
definite structure to a person of ordinary skill in the art.” Dyfan, LLC v.
Target Corp., 28 F.4th 1360, 1365 (Fed. Cir. 2022). If it does, then the
limitation is not drafted in means-plus-function format, and § 112(f) does not
apply. Id. If it does not, however, then the limitation is drafted in means-
plus-function format, and the court proceeds to the “two-step process” for
construing the term. Id. “First, the court must identify the claimed function,”
1 Section 112(f) provides:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
13 and “[s]econd, [it] must identify the corresponding structure in the
specification that performs the recited function.” Chicago Bd. Options Exch.,
Inc. v. Int’l Sec. Exch., LLC, 677 F.3d 1361, 1367 (Fed. Cir. 2012).
Courts presume that a claim limitation is subject to § 112(f) “[w]hen the
claim uses the word ‘means.’” Williamson, 792 F.3d at 1348. And, inversely,
in the absence of the word “means,” courts presume that a claim is not
drafted in means-plus-function format. Id. However, this presumption
against interpreting a term as a means-plus-function limitation can be
overcome “if the challenger demonstrates that the claim term fails to recite
sufficiently definite structure or else recites function without reciting
sufficient structure for performing that function.” Id. (cleaned up) (explaining
that the “essential inquiry is not merely the presence or absence of the word
‘means,’ but whether the words of the claim are understood by persons of
ordinary skill in the art to have a sufficiently definite meaning as the name
for structure”); see also MTD Prods. Inc. v. Iancu, 933 F.3d 1336, 1342 (Fed.
Cir. 2019) (“The ultimate question is whether the claim language, read in
light of the specification, recites sufficiently definite structure to avoid
§ 112(f).”) (cleaned up).
A claim term may fail to recite sufficiently definite structure if it
constitutes a “nonce word,” a “generic term[] or black box recitation[] of
structure or abstractions.” Zeroclick, LLC v. Apple Inc., 891 F.3d 1003, 1008
14 (Fed. Cir. 2018). Nonce words “operate as substitutes for ‘means’ and
presumptively bring the disputed claims limitations within the ambit of
[§ 112(f)].” Id.; see also MTD Prods. Inc., 933 F.3d at 1341 (explaining that
nonce words “operate as a substitute for ‘means’” to “claim a particular
function rather than describe a ‘sufficiently definite structure’”). For example,
courts have found words such as “module,” “mechanism,” “element,” and
“device” to be common nonce words, as they often “reflect nothing more than
verbal constructs” and are used “in a manner that is tantamount to using the
word ‘means.’” Williamson, 792 F3d. at 1350. In analyzing whether a claim
term is a nonce word, the “critical question is whether ‘the claim term is used
in common parlance or by persons of skill in the pertinent art to designate [a
particular structure or a class of structures].’” MTD Prods. Inc., 993 F.3d at
1341 (quoting Skky, Inc. v. MindGeek, s.a.r.l., 859 F.3d 1014, 1019 (Fed. Cir.
2017)).
Here, Sig Sauer argues that, although “support structure” does not use
the word “means,” the presumption against interpreting the term as a
means-plus-function limitation has nevertheless been overcome because
“support structure” is a nonce word and the patent does not otherwise recite
sufficient structure. Doc. 96 at 21 (asserting that “support structure”
functions as a substitute for “means for supporting’” or “means to functionally
connect the handgun to the brace to achieve the ‘support’ of the handgun” and
15 provides no “definition or structural description”). Accordingly, it contends
that the claim is drafted in means-plus-function format and must be
construed according to its disclosed function and the corresponding
structures. Specifically, Sig Sauer contends that the claimed function of the
support structure is “[being] telescopically receivable [within] said passage.”
Id. at 21-22. Sig Sauer also asserts that the specification discloses two
structures—a buffer tube or “tubular member”—corresponding to this
function and therefore argues that the corresponding structure must be “a
single cylindrical tube which extends rearward from the handgun.” Id.
NST, in turn, contends that “support structure” cannot practicably be
defined in terms of structure because there is a “myriad of possib[le]” support
structures. Doc. 97 at 26-28 (citing expert testimony provided during the IPR
that there are “hundreds if not thousands of ways to provide a support
structure on a firearm that is ‘other than a buffer tube’”). Instead, it asserts
that its disclosure of two kinds of support structures in the specification—
buffer tubes and other tubular members—is sufficient to avoid means-plus-
function claiming. Id. It then proceeds to argue that, even if I were to
conclude that the term was drafted in means-plus-function format, that the
function of the support structure is not “being telescopically receivable within
said passage,” as Sig Sauer contends. Doc. 98 at 16-17 (stating, without
elaboration, that “being telescopically receivable within said passage” merely
16 “describes the details of the invention”). And lastly, NST asserts that Sig
Sauer’s proposed construction of the corresponding structure improperly
limits the support structure to a specific “number (single), shape (cylindrical),
form (tube), and location (extends rearward).” Id. I address each argument in
turn.
As an initial matter, I agree with Sig Sauer that “support structure” is
a nonce word. As other courts have noted, “‘structure’ is a generic and
abstract nonce word that does not actually identify any structure.” Energy
Env’t Corp. v. City of Denver, No. 21-cv-02235, 2024 WL 1300266, at *7 (D.
Colo. Mar. 26, 2024); accord Intell. Ventures I LLC v. AT&T Mobility LLC,
No. 13-1668, 2016 WL 4363485 (D. Del. Aug. 12, 2016) (explaining that “the
claim fails to recite sufficiently definite structure,” or “any structure,”
because “the claim merely describes the structure as ‘a structure’”), vacated
in part on other grounds, Intell. Ventures I LLC v. T-Mobile USA, Inc., 902
F.3d 1372 (Fed. Cir. 2018); see also Pinpoint Inc. v. Hotwire, Inc., No. 11 C
5597, 2013 WL 1174688, at *8 (N.D. Ill. Mar. 20, 2013) (explaining that
although a district court’s claim construction is not binding on another court,
it may nevertheless be “helpful and persuasive”). Additionally, the prefix
“support” merely connotes a certain function and thus does nothing to impart
any structural definition into the term “structure.” See Williamson, 792 F.3d
17 at 1351 (explaining that prefixes or modifiers “can change the meaning” of a
nonce word so as to convey sufficient structure).
Moreover, NST neither identifies any other language in the claims that
might otherwise bestow some degree of structure to the term nor cites any
evidence as to how the term “support structure” is commonly understood by a
person of ordinary skill in the art. NST is correct that the specification
discloses buffer tubes and other tubular members as possible support
structures, however, this is insufficient to avoid means-plus-function
claiming because “example[s] of a” support structure is not the same as “a
definition of the” support structure. Kyocera Senco Indus. Tools Inc. v. Int’l
Trade Comm’n, 22 F.4th 1369, 1381 (Fed. Cir. 2022). Accordingly, although
the term “support structure” does not incorporate the word “means,” the
presumption against interpreting the term as a means-plus-function term
has been overcome, and I proceed to construing the term.
First, I must determine the claimed function of the “support structure,”
and I agree with Sig Sauer that the function is “being telescopically
receivable by said passage.” The claims, both alone and read in light of the
specification, make clear that the primary, if not sole, purpose of the support
structure is to be received by the passage extending longitudinally
throughout the upper portion of the body of the stabilizing attachment so as
18 to secure the handgun to the stabilizing attachment. See, e.g., ’444 Patent col.
6 ll. 6-7. NST fails to identify any other function of the support structure.
Next, as to the structures corresponding to this function, I again agree
with Sig Sauer that the specification discloses two possible corresponding
structures—“a buffer tube” and “tubular member.” See, e.g., id. col. 5 ll. 11-
24. I disagree, however, with Sig Sauer’s proposed construction of the
corresponding structure as “a single cylindrical tube which extends rearward
from the handgun” as it is too restrictive as to the number and shape of the
support structure. 2
First, as the parties appear to agree, the specification contemplates the
support structure being “a buffer tube” or other “tubular member.” See, e.g.,
’444 Patent col. 3 ll. 51-53, col. 5, ll. 21-24 (emphasis added). And while “a” in
common parlance generally connotes singularity, “[a]s a general rule,” patent
law equates “the words ‘a’ or ‘an’ in a patent claim . . . [with] ‘one or more.’”
TiVo, Inc. v. EchoStar Commc’n Corp., 516 F.3d 1290, 1303 (Fed. Cir. 2008)
(acknowledging that this analysis “depends heavily on the context of its use”).
In light of this general rule, and because Sig Sauer fails to develop any
2 Sig Sauer requests that I construe the support structure as “extending rearwardly from the rear end of the handgun.” Doc. 96 at 19. However, because this limitation is included in the preamble of the asserted claims, which I have already determined to be limiting, I need not incorporate “extending rearwardly from the rear end of the handgun” into the corresponding structure.
19 sufficient argument as to why I should nonetheless construe “a buffer tube”
or “tubular member” to be singular, I decline to construe “a” support
structure to mean “a single” support structure.
Second, I disagree with Sig Sauer that the support structure must be
“cylindrical.” Although the specification provides examples of support
structures that are a “tube” or “tubular,” “tubular” and “cylindrical” are not
necessarily synonymous. “Tubular” is defined as “having the form of or
consisting of a tube” or “made or provided with tubes,” Tubular, MERRIAM-
WEBSTER DICTIONARY, https:/www.merriam-webster.com/dictionary/tubular
[https://perma.cc/M79U-SKCQ], and “tube,” in turn, is defined as “any of
various usually cylindrical structures or devices,” Tube, MERRIAM-WEBSTER
DICTIONARY, https://www.merriam-webster.com/dictionary/tube
[https://perma.cc/32Q3-7KHH] (emphasis added). Thus, while tubes are often
cylindrical, they need not be cylindrical, and one can reasonably conceive of
non-cylindrical tubes in other contexts, such as square metal tubes that slide
together to create a desk frame. Accordingly, I decline to adopt Sig Sauer’s
position that the support structure must be cylindrical.
Therefore, in sum, I agree with Sig Sauer that the corresponding
structures are “a buffer tube” and “tubular member,” as well as their
equivalents, but I decline to construe these as necessarily being singular,
tubular structures.
20 C. “[Support structure] of the handgun”
Sig Sauer “The support structure that is an integral part of the
handgun”
The parties next disagree as to whether the term “[support structure] of
the handgun” is limited to support structures that are integral to—that is,
“built into and part of”—the handgun, as Sig Sauer contends, Doc. 96 at 22,
or whether, as NST argues, it also includes “non-integrated” support
structures that are attached to the gun via a bracket, Doc. 98 at 18. I agree
with NST.
The term “[support structure] of the handgun” is recited three times
within the asserted claims, each time describing the support structure as
being telescopically receivable by the passage. ’444 Patent col. 6 ll. 6-7, 59-61;
’021 Patent col. 6 ll. 19-20. Nothing in this claim language supports the
limitation that Sig Sauer proposes. Moreover, looking at nonasserted,
dependent claims 7, 8, and 9 of the ’444 Patent provides additional clarity
and support for NST’s broader reading of the term. See Vitronics Corp., 90
F.3d at 1582 (“First, we look to the words of the claims themselves, both
asserted and nonasserted, to define the scope of the patented invention.”).
21 Claim 7 claims a support structure that is “a buffer tube,” while claims
8 and 9 encompass a support structure “other than a buffer tube” and a
support structure “secured to [a bracket, said bracket secured to said
handgun],” respectively. ’444 Patent col. 6 ll. 47-53. The inclusion of “a buffer
tube” as a limitation on the term “support structure” in claim 7 “makes it
likely that the patentee did not contemplate that the term . . . already
contained that limitation.” Phillips, 415 F.3d at 1324-25 (explaining that
specific limitations “would be unnecessary” if persons of ordinary skill in the
art understood a term to “inherently” include that limitation). In other words,
if “support structure” was understood to be limited to only integral buffer
tubes, then claim 7 would be rendered entirely redundant, which is
disfavored in claim construction. Dow Chem. Co. v. United States, 226 F.3d
1334, 1342 (Fed. Cir. 2000) (concluding that an independent claim should be
construed more broadly than its dependent claims to avoid rendering those
dependent claims redundant). And, given that “claim terms are presumed to
be used consistently throughout the patent, such that the usage of a term in
one claim can often illuminate the meaning of the same term in other
claims,” this supports NST’s position. Rsch. Plastics, Inc. v. Fed. Packaging
Corp., 421 F.3d 1290, 1295 (Fed. Cir. 2005).
The only evidence Sig Sauer offers in support of its proposed
construction is one citation to Figure 1, which illustrates a handgun equipped
22 with a “buffer tube or the like,” and two citations to the specification in which
the passage is described as telescopically receiving “a portion of the handgun”
and the handgun is described as “having a support structure.” Doc. 96 at 22-
23 (emphasis added). But neither argument is persuasive. In citing to Figure
1, Sig Sauer seeks to limit the invention to a preferred embodiment, which
the Federal Circuit has “repeatedly cautioned against.” Williamson, 792 F.3d
at 1346-47 (cleaned up). Moreover, with regard to its citations to the
specification, Sig Sauer does not provide any developed argument or evidence
supporting its contention that a person of ordinary skill in the art would
understand “portion” or “having” to inherently include the concept of
integrality. But even so, Sig Sauer overreads the specification. See Liebel-
Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir. 2004) (warning
courts to be careful not to cross the “fine line” that separates a proper use of
the specification as a source of meaning from an improper use of the
specification to read into a claim a limitation that it does not contain).
The specification of the ’444 Patent only describes the support structure
in terms of its location and function, neither of which rely on or are in any
way altered by the integrality of the support structure. For example, the
patent consistently describes the support structure as “extending rearwardly
from the rear end of the handgun,” see, e.g., ’444 Patent col. 1 ll. 51-53, and
being “telescopically receivable by the passage” so as to secure the stabilizing
23 attachment to the handgun, see, e.g., id. col. 1 ll. 55-57. But the specification
also makes clear that because “not every hand gun is provided with a suitable
tubular support or similar structure that rearwardly extends from the hand
gun to which the stabilizing brace . . . may be attached,” the patent
contemplates alternative support structures that comport with the same
general location and function as an integral buffer tube. Id. col. 5 ll. 18-24.
For example, one embodiment describes a “tubular member . . . secured to a
bracket . . . that is secured to the hand gun” such that the tubular member
“extends rearwardly outward from the butt end or rear end . . . of the
handgun” so as to “provide[] suitable support to which the stabilizing
brace . . . may be attached by telescopically receiving the tubular member
within [the] passage.” Id. col. 5 ll. 25-33.
Accordingly, I decline to adopt Sig Sauer’s proposed construction and
instead construe “[support structure] of the handgun” according to its plain
and ordinary meaning, including both integral support structures and
support structures attached via a bracket.
D. “Telescopically receivable by said passage”
Sig Sauer “Removably longitudinally insertable within said
passage”
24 NST No construction necessary; plain and ordinary meaning
Next, the parties’ disagreement over the term “telescopically receivable
by said passage,” is focused on whether the term “telescopically receivable”
encompasses not only the concept of insertability but also removability. NST
argues that it does not, and thus the patent only requires that the support
structure be receivable by the passage, without necessarily being removable.
Doc. 98 at 12. Sig Sauer, in turn, argues that the term “plainly connotes
insertable movement into the passage, and thus removability” and proposes
that the term be construed as “removably longitudinally insertable within
said passage.” 3 Doc. 96 at 16. I agree with Sig Sauer that “telescopically
receivable” connotes both insertability and removability.
Beginning with the intrinsic evidence, the term “telescopically
receivable by said passage” is used throughout the claims to describe how the
3 Sig Sauer also argues that the asserted claims are indefinite because the “plain and ordinary meaning of ‘telescopic’ cannot be reconciled” with the Patents’ claims, which, Sig Sauer contends, only encompass support structures that “can be inserted or removed from the passage,” not those that are “extensible or compressible.” Doc. 99 at 14; see also Doc. 96 at 16-18. However, the Federal Circuit has “not endorsed a regime in which validity analysis is a regular component of claim construction.” Phillips, 415 F.3d at 1327; see also Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 (2014) (noting that indefiniteness is a grounds for invalidating a patent). Thus, I defer the issue of indefiniteness to the summary judgment stage. See, e.g., DuraSystems Barriers Inc. v. Van-Packer Co., No. 1:19-cv-01388, 2021 WL 4037826, at *5-7 (C.D. Ill. Sept. 3, 2021).
25 support structure of the handgun interacts with the passage of the stabilizing
attachment so as to secure the two pieces together. ’444 Patent col. 6 ll. 6-7,
col. 6 ll. 37-38, 59-61; ’021 Patent col. 6 ll. 19-20. This language comports with
the term’s usage throughout the Patents’ abstracts, summaries, and
specifications. See ’444 Patent col. 1 ll. 55-57, 66-67, col. 3 ll. 48-51, col. 5 ll.
14-17, 29-33; ’021 Patent col. 1 ll. 59-60, col. 3 ll. 56-59, col. 5 ll. 21-24, 36-40.
Neither party presents any persuasive argument as to the meaning of
“telescopically receivable” based on this intrinsic evidence, nor does either
party present any evidence as to how a person of ordinary skill in the art
would understand the term. See Doc. 98 at 14 (NST stating, without
elaboration, that “telescopic” is “specific and well known” to a person of
ordinary skill in the art). Instead, the parties focus their analysis on extrinsic
evidence, namely, dictionary definitions. See Vitronics Corp., 90 F.3d at 1576
n.6 (explaining that judges may rely on dictionary definitions during claim
construction “so long as the dictionary definition[s] do[] not contradict any
definition found in or ascertained by a reading of the patent documents”).
The parties cite numerous definitions of “telescopically” that do not
materially differ. For example, NST defines “telescopically” as “[b]y sliding
one part into or out of another, in the manner of the sliding tubes of an
extendable hand-held telescope,” Doc. 97-16 at 2, and the related term,
“telescopic,” as “[e]xtensible or compressible by or as if by the sliding of
26 overlapping sections,” Doc. 97-17 at 9. Similarly, Sig Sauer defines
“telescopic” as “having the power of movement (as extension) by joints sliding
one within another like the tube of a hand telescope.” Doc. 96-13 at 4. These
definitions make clear that “telescopically” incorporates a dynamic
relationship between two or more concentric components such that one
component is able to slide within another. 4 Accordingly, “telescopically,” on
its own, certainly incorporates receivability and removability.
Turning to “receivable,” the parties do not appear to contest its
definition, which generally means “capable of being received.” Receivable,
MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/receivable [https://perma.cc/4ZT9-P9BF]. “Received”
is then the past participle of “receive,” which is, in turn, defined as “to come
into possession of” or “to act as a receptacle or container for.” Receive,
MERRIAM-WEBSTER DICTIONARY, https:/www.merriam-
4 The dictionary definitions cited by NST provide that for two pieces to relate telescopically, one part must slide “into or out of” another part such that they are “extensible or compressible.” While “or” is often used disjunctively to denote one or the other, after considering commonplace examples of telescopic objects—such as the hand-held telescope referred to in both parties’ cited definitions—it is clear that, under normal circumstances, the movement of telescopic components is bidirectional. See Pulsifer v. United States, 601 U.S. 124, 149 (2024) (describing the meanings of “and” and “or” as “context-dependent”). Accordingly, the best reading of the word “or” as used in the cited dictionary definitions is as a conjunction, meaning both.
27 webster.com/dictionary/receive [https://perma.cc/P68K-DNBG]. Accordingly,
on its own, “receivable” describes the structural relationship between the two
components, with the passage acting as the receptacle for the support
structure.
Thus, at bottom, the parties’ disagreement is focused on how the words
“telescopically” and “receivable” function in tandem. NST argues that “[j]ust
because a part can be received by another part, does not require it be
removable.” Doc. 98 at 12. Though this argument has surface appeal, upon
further analysis, it cannot withstand scrutiny. As the adverb describing
“receivable,” “telescopically” describes how the support structure must be
received by the passage—by sliding within, that is, into and out of, the
passage. See Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc., 340
F.3d 1298, 1311 (Fed. Cir. 2003) (explaining that the term “generally
parallel” “expressly ties the adverb ‘generally’ to the adjective ‘parallel’” such
that the “ordinary meaning of the phrase . . . envisions some amount of
deviation from exactly parallel”). Thus, the term “telescopically receivable”
connotes both the concepts of insertability and removability.
NST resists this construction and argues that the specification
contemplates the support structure being receivable but not removable. First,
it cites an embodiment in which the support structure is “frictionally retained
within [the] passage” and language stating that “other means of restraining
28 the withdrawal of the buffer tube from the passage could be employed.” Doc.
98 at 13 (quoting ’444 Patent col. 3 ll. 62-65). However, the claims themselves
include no such limitations, and accordingly, to read in such a limitation
would be to limit the invention to a preferred embodiment, which, again, the
Federal Circuit has “repeatedly cautioned against.” Williamson, 792 F.3d at
1346-47 (cleaned up).
Second, NST argues that the patent describes the user’s forearm as
being “removably receivable,” thereby emphasizing that the patentee
understood “removability” and “receivability” as distinct concepts. Doc. 98 at
12-13 (quoting ’444 Patent col. 6 ll. 62-63, col. 7 ll. 2-3). However, the term
“removably receivable” does not encompass the concept of “telescopically,”
and thus this argument overlooks the bidirectional, concentric movement
encompassed by the adverb.
Accordingly, with one small exception, I adopt Sig Sauer’s proposed
construction, which incorporates both the concepts of insertability and
removability. However, because the claim language already describes the
passage as “longitudinally extending” within the upper portion of the body,
the support structure is limited to longitudinal sliding, rendering
“longitudinally” unnecessary in this construction.
29 Thus, for the aforementioned reasons, I construe the term
“telescopically receivable by said passage” to mean “removably insertable
within said passage.”
E. “Body”
Sig Sauer “[A] single, unitary forearm stabilizing attachment”
The parties disagree over whether the term “body” connotes a “unitary”
component, as Sig Sauer contends, Doc. 96 at 24, or can be comprised of
multiple components, as NST argues, Doc. 98 at 19. 5 I agree with NST.
The term “body” is described in the claims as “having a front end, a
rear end, an upper portion, a lower portion, and a passage longitudinally
extending within said upper portion and at least through said front end of
said body.” See, e.g., ’444 Patent col. 6 ll. 3-7. Thus, the term “body” is used,
as NST correctly notes, to denote the main portion of the stabilizing
5 Sig Sauer argues in its opening brief that the term “body” must also be a “single” component. Doc. 96 at 24. In its response brief, however, it appears to have stepped back from that argument and asserts that the “fundamental dispute between the parties . . . [is] whether the claim structure ‘body’ refers to a ‘unitary’ part as recited in the specification and drawings or can refer to multiple parts.” Doc. 99 at 21-22. Though it is not completely clear whether Sig Sauer has, in fact, abandoned its singularity argument, because I conclude that the body can be comprised of multiple components attached together so as to form a unitary body, I need not consider the matter further.
30 attachment, that is, the portion of the stabilizing attachment excluding the
strap. This comports with the dictionary definition of “body,” which is defined
as “the main, central, or principal part,” such as the enclosed part of an
automobile, or “a mass of matter distinct from other masses,” such as a body
of water. 6 Body, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/body [https://perma.cc/BRA7-RWLL]; see also Doc. 96-
16 at 4; Doc. 97-17 at 5. Neither of these definitions, however, require that
the body be comprised of just one component. In fact, the opposite is likely
true. For example, the body of a car is generally, if not always, manufactured
in separate pieces (e.g., the frame, doors, and roof) and assembled into a
single structure.
Moreover, although the specification of the ’444 Patent refers to the
body as “unitary,” ’444 Patent col. 3 l. 40, it also explicitly contemplates the
body comprising “various components of the body [that] are of different
materials,” thus supporting NST’s position, id. col. 4 ll. 24-31 (describing the
upper portion being “formed of a rigid or non-elastomeric material” and the
lower portion being “formed of a resilient material”).
6 Neither party has presented any evidence that a person of ordinary skill in the art would define the term “body” differently from these dictionary definitions.
31 Accordingly, I decline to adopt Sig Sauer’s proposed construction and
construe the term “body” according to its plain and ordinary meaning.
F. “Bifurcated so as to define a pair of spaced flaps”
Sig Sauer “Portion of the single, unitary forearm stabilizing
attachment which branches into two flaps”
The ’444 Patent describes the lower portion of the body as being
“bifurcated so as to define a pair of spaced flaps” between which the user’s
forearm is received. See, e.g., id. col. 6 ll. 8-11. In offering its proposed
construction, Sig Sauer seeks to (1) read the term “body” as a “single, unitary
forearm stabilizing attachment” and (2) further define “bifurcated.” As an
initial matter, for the same reasons I have previously mentioned, I reject Sig
Sauer’s proposed construction of the term “body” and decline to incorporate
that definition here.
Turning now to “bifurcated,” Sig Sauer argues that this is an
“uncommon enough” word so as to warrant additional construction. Doc. 96 at
28. NST does not address this point directly, and I agree that some members
of the jury who may be called upon to decide this case may not be familiar
with the term. Thus, I will give the term “bifurcated” its usual meaning—
32 divided or separated into two parts—which comports with both parties’ cited
definitions. See Doc. 97-20 at 2 (NST’s cited dictionary definition, defining
“bifurcate” as “to divide or fork into two branches”); Doc. 96-23 at 4 (Sig
Sauer’s cited dictionary definition, defining “bifurcate” as “to branch or
separate into two parts”).
Accordingly, I construe “bifurcated so as to define a pair of spaced
flaps” as “divided or separated so as to define a pair of spaced flaps.”
G. “Said lower portion having at least one flap extending from said upper portion”
Sig Sauer “A flap of the lower portion originating where the lower
portion meets the upper portion,”
NST No construction necessary
Next, Sig Sauer argues that the term “said lower portion having at
least one flap extending from said upper portion,” as included in claim 1 of
the ’021 Patent, should be construed as “a flap of the lower portion
originating where the lower portion meets the upper portion.” 7 Doc. 96 at 33.
7 Sig Sauer also argues that this term is indefinite because the “location of the flap is not informed with reasonable certainty.” Doc. 96 at 33. However, as I have explained, courts generally elect to defer validity analysis to the summary judgment stage of litigation. See Phillips, 415 F.3d at 1327.
33 This construction, Sig Sauer suggests, “sets a definite location of the ‘at least
one flap.’” Id. at 35. I, however, find this construction overly limiting for two
reasons.
First, the claim language recites that the “at least one flap” “extend[s]”
from the upper portion of the body. Though “extend” is not defined in the
patent, and neither party attempts to define it according to a person of
ordinary skill in the art, the ordinary dictionary definition of the word means
“to spread or stretch forth.” Extend, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/extend [https://perma.cc/B6MG-
74A4]. Accordingly, the “at least one flap” need only spread or stretch forth
from the upper portion of the body, that is, somewhere in the upper portion.
It is not required to “always originate” from where the lower portion meets
the upper portion, as Sig Sauer contends. Doc. 96 at 36.
Sig Sauer defends this construction by citing to an embodiment in the
specification describing the flaps as being bifurcated from the lower portion of
the body. Id. However, while the “at least one flap” may certainly extend from
the precise boundary between the upper and lower portions of the body, to
limit the claim language to a single preferred embodiment would be
inappropriate. See Williamson, 792 F.3d at 1346-47.
Second, Sig Sauer seeks to replace “at least one flap” with “a flap.” As I
have noted, Sig Sauer is correct that patent law generally treats “a” to mean
34 “one or more,” and thus “a” and “at least one” are effectively synonymous. See
TiVo, Inc., 516 F.3d at 1303. However, Sig Sauer fails to provide any
persuasive reasoning as to why a person of ordinary skill in the art would not
understand the term “at least one” or how replacing it with “a” would provide
any clarification.
Therefore, in sum, I decline to adopt Sig Sauer’s proposed construction
and construe the term “[a] flap of the lower portion originating where the
lower portion meets the upper portion” according to its plain and ordinary
meaning.
H. “Elastomeric material”
Sig Sauer “A material with elastic properties”
NST “To be made of an elastomer”
Lastly, the parties disagree as to whether the term “elastomeric
material” refers to materials with elastic properties or a specific category of
materials known as elastomers. Sig Sauer advocates for the former
construction, arguing that “elastomeric” is used throughout the specification
to “describe[e] the properties of the material,” in particular, “the polymer-like
quality of being resilient, or able to return to its original shape after being
stressed.” Doc. 96 at 30-31 (asserting that “the specification equates
35 ‘elastomeric,’ . . . to ‘semi-rigid’ and ‘resilient’ materials, while equating ‘non-
elastomeric’ to ‘rigid’”). NST, in turn, argues for the latter construction
because “the elastic properties of an elastomer are more specific than just
‘elastic’” and, during prosecution, the claims were narrowed from
encompassing “resilient” materials to “elastomeric materials.” Doc. 98 at 23. I
agree with NST.
“Elastomeric material” is not defined in the patent. Instead, the parties
rely on several dictionary definitions, which, though differing to some degree,
demonstrate that “elastomeric” cannot be strictly limited to simply “elastic”
or “resilient” materials, as Sig Sauer contends. For example, Sig Sauer offers
several definitions of “elastomer” that connote elasticity “akin to those of
rubber.” See e.g., Doc. 96-28 at 4; Doc. 96-29 at 5. Similarly, the definitions
provided by NST describe “elastomeric” as “[a]ny of various polymers having
the elastic properties of natural rubber.” Doc. 97-17 at 7. Accordingly, these
definitions distinguish “elastomeric” materials from numerous other
materials, such as certain metals, that might exhibit some degree of elasticity
or resiliency under certain conditions.
This distinction between “elastomeric” materials and merely elastic or
resilient materials is also evident in the patent history of the ’444 Patent.
During prosecution, the examiner rejected claim 2 (then identified as claim
10) as being unpatentable over U.S. Patent No. 4,196,742 for obviousness.
36 Doc. 97-4 at 38. The examiner explained that ‘[i]t would have been obvious to
one having ordinary skill in the art at the time the invention was made to
utilize a resilient material.” Id. It further explained:
Although these elements, ‘elastomeric’ and ‘non-elastomeric,’ are found as examples or embodiments in the specification, they were not claimed explicitly. Nor were the words that are used in the claims defined in the specification to require these limitations. A reading of the specification provides no evidence to indicate that these limitations must be imported into the claims to give meaning to disputed terms. Therefore, examiner cannot and will not include such alleged ‘limitations’ in the interpretation of the claims.
Id. at 75. In response, NST amended the claim to replace “a resilient”
material with “an elastomeric” material. Id. at 86. This history not only
emphasizes the distinction between these two terms but also confines the
parties to this narrower construction. See Microsoft Corp. v. Multi-Tech Sys.,
Inc., 357 F.3d 1340, (Fed. Cir. 2004) (“We cannot construe the claims to cover
subject matter broader than that which the patentee itself regarded as
comprising its inventions and represented to the PTO.”)
This narrower construction also comports with PTAB’s final written
finding after full briefing, Doc. 75-1 at 18-22; Doc. 75-2 at 18-22, which I find
persuasive, as well as the testimony of one of NST’s expert witnesses, who
opined during the IPR that “the ordinary meaning of the term ‘elastomer’ or
‘elastomeric material’ refers to a rubber-like polymer with a large range of
37 elastic deformation and low rigidity.” 8 Deposition Transcript of Joshua C.
Harrison, Ph.D., dated November 19, 2020 at 71-72, Sig Sauer Inc. v. NST
Global, LLC, No. 2020-00423 (PTAB 2021).
Thus, I construe “elastomeric material” to mean “made of an
elastomer.”
CONCLUSION
For the foregoing reasons, with respect to U.S. Patent No. 8,869,444
and U.S. Patent No. 9,354,021:
A) the preamble is limiting;
B) “support structure” is a means-plus-function term where the
function is “being telescopically receivable” and the corresponding
structures are “a buffer tube” or “tubular member” and their
equivalents;
C) “[support structure] of the handgun” is accorded its plain and
ordinary meaning, including both integral support structures and
support structures attached via a bracket;
8 Although NST has not submitted the deposition testimony of its expert witness in this case, “pursuant to Rule 201(b)(2) of the Federal Rules of Evidence, [a court] may take judicial notice” of filings made before PTAB. VirtualAgility Inc. v. Salesforce.com, Inc., 759 F.3d 1307, 1312-13 (Fed. Cir. 2014).
38 D) “telescopically receivable by said passage” means “removably
insertable within said passage”;
E) “body” is accorded its plain and ordinary meaning;
F) “bifurcated so as to define a pair of spaced flaps” means “divided or
separated so as to define a pair of spaced flaps”;
G) “said lower portion having at least one flap extending from said
upper portion” is accorded its plain and ordinary meaning;
H) “elastomeric material” means “made of an elastomer.”
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
August 16, 2024
cc: Counsel of Record