IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EASYPOWER CORPORATION, )

)

Plaintiff, ) Case No. 03 C 3164

)

v. ) Magistrate Judge Morton Denlow

)

ALDEN CORPORATION, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Defendant Alden Corporation (“Alden”) asserts that Plaintiff Easypower Corporation

(“Easypower”) has infringed two of Alden’s patents: U.S. Pat. Nos. 6,595,730 and 6,742,416

(‘730 and ‘416 respectively, “Patents” collectively). After a Markman hearing, this Court

construed five disputed claim terms contained in the Patents. Before the Court is the motion

by Alden for reconsideration of the Court’s claim construction No. 5, construing the term

“acute angle relative to the axis.” For the reasons stated below, this motion is denied.

I. MARKMAN HEARING

 The disputed claim term, “acute angle relative to the axis,” is used in Claims

‘416:1, 5, 8, 10, 16 and 22. At the Markman hearing and in its claim construction briefs,

Alden’s proposed construction for this phrase was “an angle of less than 90 degrees between

the scraping edge and the axis of the bit when viewed along a line perpendicular to the axis

and the edge, whether the edge and axis intersect or not.” Easypower’s proposed

construction was “an angle of less than 90 degrees, but the combined angle of two scraping
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edges (relative to the axis) is obtuse.” The parties disputed whether the combined angle of

two scraping edges must be obtuse. After an analysis of the claim language, specifications,

and the parties’ arguments, the Court construed this term to mean:

an angle of less than 90 degrees between the scraping edge and the axis of the

bit when viewed along a line perpendicular to the axis and the edge, whether

the edge and axis intersect or not. If there are two scraping edges, the

combined angles relative to the axis are greater than 90 degrees. If there are

more than two scraping edges, the combined angles relative to the axis of each

set of two angles are greater than 90 degrees. 

Easypower Corp. v. Alden Corp., 509 F. Supp. 2d 737, 752 (2007) (“Easypower I"). 

In its motion for reconsideration, Alden requests this Court withdraw the last two

sentences of the construction on the following grounds: “1) no basis exists in the patent

specification for importing the term ‘obtuse’ into the claims; 2) no basis exists in the patent

specifications to give the terms ‘obtuse’ and ‘angle’ anything other than their ordinary and

customary meanings.” Def. Mot. at 1. Easypower objects to this motion, asserting that

Alden has failed to demonstrate any error of law committed by the Court in its claim

construction, and that Alden merely re-presents arguments advanced at the Markman hearing.

II. MOTION FOR RECONSIDERATION

Motions for reconsideration serve a narrow purpose and must be supported by a

showing of extraordinary circumstances. Trading Technologies Int’l. v. Refco Group Ltd.,

2007 WL 611258 (N.D. Ill. 2007). In general, motions to reconsider are rarely granted and

are “only appropriate to correct manifest errors of law or to present newly discovered

evidence.” The Chamberlain Group, Inc. et al. v. Lear Corp., 2007 WL 551579 (N.D. Ill.
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2007); Qto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000); Trading

Technologies, 2007 WL 611258. A party cannot use a motion for reconsideration “to

introduce evidence previously available,” “to tender new legal theories,” or to “rehash old

arguments.” Mahurkar v. C.R. Bard, Inc., 2003 WL 22844237 (N.D. Ill. 2003). The Court

will review the claim construction disputed by Alden only for any manifest errors of law or

fact. Id.

Alden argues that Easypower never contemplated to include the obtuse angle

limitation to bits having more than two edges, and the Court has committed error by

importing this limitation into all of the claims. Alden also argues this Court erred in its

definition of the term “obtuse.” Finally, Alden asserts that it did not have an opportunity to

be heard on the adopted construction. 

A. The Court did not err by importing a limitation of the term “obtuse” into the

claims.

Alden argues this Court erred by applying the obtuse angle limitation to the invention

as a whole, asserting that the Court has improperly read “a limitation from the written

description into the claims.” Phillips v. AWH Corp., 415 F.3d 1303, 1320 (Fed. Cir. 2005).

Alden asserts Easypower never intended in its construction to apply the obtuse angle

limitation to bits having more than two edges. Alden also alleges the specifications lack

“words or expressions of manifest exclusion or restriction” required for the proper

importation of this limitation into the claims. Innova/Pure Water Inc. v. Safari Water

Filtration Systems, Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004).
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1. The obtuse angle limitation applies to the invention as a whole.

After hearing arguments from both Alden and Easypower on this claim term, this

Court acknowledged, at both the hearing and in its order, the concern with importing a

limitation from the specification into the claim. Recognizing this “fine line,” the Court found

the patent described “the invention,” not just a particular embodiment or claim, as having

edges that meet in an obtuse angle. The Court still agrees with its finding today.

Statements describing the invention as a whole are more likely to support a limiting

definition of a claim term than statements that describe only preferred embodiments. C.R.

Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 864 (Fed. Cir. 2004). If a specification

describes specific embodiments of the invention, a court should not confine the claims to

those embodiments. Phillips, 415 F.3d at 1323. If the patentee describes “the invention” in

the specification, however, “as opposed to describing a particular embodiment, it is

appropriate to construe the claim terms consistent with the patentee’s description.” 

Easypower I, 509 F. Supp. 2d at 741; Honeywell Int’l. Inc. v. ITT Industries, Inc., 452 F.3d

1312, 1318 (Fed. Cir. 2006). The Court acknowledged in its claim construction order the

“fine line” that exists “between properly construing the claim terms in light of the

specification and improperly importing limitations from the specification.” Easypower 1,

509 F. Supp. 2d at 741; Phillips, 415 F.3d at 1323. The determination of “what import to

give language from the specification” must be conducted on a case-by-case basis. C.R.Bard,

388 F.3d at 864.

As noted by the Court in its order, none of the claims explicitly state the combined
1 As explained in the Court’s claim construction order: 

Under the doctrine of claim differentiation, a court may construe a claim based on

how it differs from other claims. For example, if a dependent claim adds a

particular limitation not found in an independent claim, a rebuttable presumption

arises that the limitation is not found in the independent claim. The doctrine of

claim differentiation has less force, however, where there are additional

differences between the claims. The presumption arising from claim

differentiation is overcome if the result conflicts with the specification or

prosecution history. 

Easypower 1, 509 F. Supp. 2d at 741.

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angle of the scraping edges relative to the axis must be obtuse. Still, the Court found clear

and unequivocal specification language that the angle between the edges is obtuse, and the

Court still agrees with this finding. In the “Summary of the Invention” of the ‘416 patent,

it states that “the edges meet in a point at an obtuse angle.” Easypower I, 509 F. Supp. 2d

at 751. The Abstract states that “[t]his bit has an axis and a tip end with an obtuse angle,” and

that “[e]ach scraping surface has a scraping edge at an angle of about 55 degrees to 70

degrees.” Id. In addition, the language in the embodiments is consistent with an obtuse

angle between the edges. Id. Claim ‘416:10, an independent claim describing a plurality of

edges, does not restrict the angle between the edge and axis beyond requiring each angle to

be acute. Id. at 24. Claim ‘416:14, however, which is dependent on claim 416:10, describes

only two edges, and further requires the angle between the edges to be obtuse. Id. As the

Court stated in its order, the presumption under the doctrine of claim differentiation1

 to not

limit Claim ‘416:10 by ‘416:14 is “overcome by the specification language indicating that

both the invention in general and the specific embodiments require an obtuse angle between

the edges.” Id. The language throughout the specification regarding the obtuse angle
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limitation refers to the invention as a whole, rather than a particular embodiment or claim.

Thus, applying this limitation to all of the claims is appropriate.

2. Additional words of exclusion are unnecessary to apply the obtuse angle

limitation to the invention as a whole.

Alden continues to dispute this claim construction arguing that the patents do not

include any “words or expressions of manifest exclusion or restriction” regarding the term

obtuse. Relying on Innova/Pure Water Inc v. Safari Water Filtration Systems, Inc., 381 F.3d

1111, 1117 (Fed. Cir. 2004), Alden argues that such disclaimers or exclusion words must be

present in order to apply the limitation to the invention as a whole.

Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898 (Fed. Cir. 2004), the case to

which the court in Innova/Pure Water cites for this proposition, provides several examples

of federal circuit cases where such exclusion words were present, and where such words

were absent. Id. at 906. The court cites several cases that find exclusion words were present

where the specifications included “an explicit disclaimer” of a particular structure, as

opposed to just the absence of reference to that structure. Id. at 906-07. The court explained

that although an inventor may have anticipated that the invention would be used in a

particular way, the scope of the invention is not limited to that context if a clear disclaimer

of a particular subject matter is not present. Id. at 909; See id. at 907 (noting the Watts,

Cultor and Biogen cases where the applicants specifically limited their inventions to

particular structures by specifying that the invention uses those structures, or by giving an

expressed limiting definition of the language in the specification). 
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The Liebel-Flarsheim court also acknowledged cases where the courts “interpreted

the pertinent claim language narrowly, not merely because the specification did not describe

a broader embodiment, but because the specification, claim or prosecution history made clear

that the invention was limited to a particular structure.” Id. at 907. In comparison, the court

in a later case found the specification made clear “‘at various points that the claimed

invention is narrower than the claim language might imply’ based on a reading of the

specification as whole.” C.R. Bard, 388 F.3d at 864 n.3. The court notes phrases in the

specification stating “the invention is...” and “the implant includes. . .” and “an implantable

prostheseis including. . .” to support its finding that the invention was limited to that structure

which the inventor directly indicated. Id. at 864.

Likewise, the inventor uses clear language in this patent to describe the invention as

a whole. The language in the patent makes clear that the invention is limited to combined

angles that are obtuse. As the Court acknowledged in its order, the claims do not explicitly

state that the combined angle of the scraping edges must be obtuse, nor do they include any

other “disclaimer” terms. As Easypower argued at the hearing, however, where the

specification refers to the combined angles as being obtuse, it does not use the words “could

be” or “should be” obtuse, but rather directly states that it “is obtuse.” 8/27/07 Transcript at

67 (“Transcript”). The written description does not indicate that having the combined angles

be obtuse is merely a preferred embodiment of the claimed invention. Honeywell, 452 F.3d

at 1318. The presumption under the doctrine of claim differentiation to not limit an

independent claim to the description in a dependent claim is overcome by the specification
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language indicating that both the invention in general and the specific embodiments require

an obtuse angle between the edges.

Although Alden argues now and during the Markman hearing that its patent is not

limited by the combined angles being obtuse, its written description of the patent indicates

otherwise. And “where the written description clearly identifies what the invention is, an

expression by a patentee during prosecution that he intends his claims to cover more than

what his specification discloses is entitled to little weight.” Honeywell, 452 F.3d at 1319. 

The determination of whether a claim must be limited to a specific embodiment presented

in the specification depends in each case on “the specificity of the description of the

invention and on the prosecution history.” Liebel-Flarsheim, 358 F.3d at 907 (quoting Cultor

Corp v. A.E. Staley Mfg. Co., 224 F.3d 1328, 1331 (2004). In this case, the invention is

repeatedly specifically described as one where the edges meet at an obtuse angle. Thus, the

Court appropriately limited the claim terms in this way.

3. The Court’s claim construction properly accounts for a possible third

embodiment.

Alden also argues that a third embodiment exists in the patent that covers a bit with

“three-scraping edges,” and that the obtuse limitation does not apply to this embodiment. The

Court has already acknowledged this embodiment and accounted for it in its order in a way

that is compatible with the language throughout the specification that the edges meet in a

point at an obtuse angle. Alden previously argued this point at the Markman hearing.

Transcript at 58. Moreover, Alden appears to argue that the obtuse limitation only applies
9

to two diametrically opposed edges, as opposed to two edges that are not diametrically

opposed (as would be the case with a three-edge bit with uniformly distributed edges). The

patent’s language, however, does not limit the combined obtuse angle to one that is

diametrically opposed. Alden argues that the Court’s claim construction excludes the threeedge embodiment from the claim coverage. To the contrary, this Court’s construction

accounts for this embodiment in its construction, by stating that “if there are more than two

scraping edges, the combined angles relative to the axis of each set of two angles are greater

than 90 degrees.” Easypower I, 509 F. Supp. 2d at 752.

4. The Court properly applied the definition of obtuse to a possible threeedge embodiment.

Alden argues the Court erred in applying the term “obtuse” to a combined angle where

two individual angles lie in different planes. Alden argues that the angles which are not in

the same plane cannot have an angle relative to each other and thus the Court’s construction

is incompatible with the “ordinary and customary meaning” of the term obtuse. See Phillips,

415 F.3d at 1312 (“[T]he words of a claim are generally given their ordinary and customary

meaning.”). Alden’s argument appears to contradict its arguments for more flexible

geometric definitions during the Markman hearing. Alden argued during the hearing that for

“claim terms, where they are talking about geometric intersections and points and planes,

they have to be interpreted with some degree of real world intuit[]. They are just not going

to have a perfect match at every point.” Transcript at 37. It went on to say that “geometric

limitations cannot be met with precision or you can argue until doomsday about whether an
10

actual bit met that limitation or not. So you have to build in some allowance for machine

tolerances and things likes that.” Transcript at 39. Alden later acknowledged “two lines in

space can have an angular relationship with one another whether they intersect or not.”

Transcript at 57-58. Alden cannot turn around now and argue that geometric precision must

exist when referring to the measurement of two combined angles that can otherwise be

interpreted with such “real world intuit.” 

In its construction, the Court is not straying from the ordinary and customary meaning

of the term “obtuse” (“exceeding 90 degrees but less than 180 degrees”). Def. Mot. Ex.A at

816. Nor is it straying from the ordinary meaning of “angle” (“the figure formed by two

lines extending from the same point”). Def. Mot. Ex.A at 85. The Court’s construction

allows for a bit that has three edges, while remaining compatible with the specification’s

clear language that the edges meet at a point in an obtuse angle, by stating that the combined

angles relative to the axis of each set of two angles must be greater than 90 degrees.

Although such a construction does allow for the sum of two angles lying on different planes,

it remains compatible with both the ordinary meaning of the terms “obtuse” and “angle” as

well as with the intentions of the inventor.

B. Both Easypower and Alden addressed these issues at the Markman hearing.

Alden argues that because the Court limited the rebuttal arguments at the Markman

hearing, it was prejudiced from making its arguments surrounding the obtuse limitation. The

Court did limit the use of rebuttal arguments at the Markman hearing out of fairness to the
11

parties, however Alden did not dispute the Court’s procedure during the hearing, and in fact

presumed that the Court would not hear rebuttal arguments. Transcript at 24 (Alden’s counsel

stated “your honor, I presume you don’t want rebuttal?”). Moreover, during the hearing,

when Alden did request to respond to Easypower’s points, the Court allowed Alden to do so,

despite its previous decision to not allow such rebuttal arguments. Transcript at 35. And

after hearing Easypower’s argument on the term “obtuse,” the Court asked if there was

anything else that needed to be addressed, to which Alden replied no. Transcript at 69.

Alden never indicated there was additional information it wished to bring to the Court’s

attention.

 Moreover, Alden had several opportunities to make its arguments surrounding the

obtuse limitation. Easypower argued in its brief that the combined angle of two scraping

edges is obtuse, thus Alden had an opportunity to refute this construction at the hearing in

response to Easypower’s brief, and did so accordingly. Moreover, although Easypower did

not address in its brief the application of this construction to a bit with three-scraping edges,

Alden argued against applying the construction to such a bit in the hearing and the Court

questioned Easypower on this construction. Transcript at 58-59; Transcript at 66. 

Furthermore, at the Markman hearing, Alden specifically acknowledged that

Easypower was arguing that as to all of the claims, where there are two or more angles, their

combined angle must be greater than 90 degrees. Transcript at 58-59. Alden went on to

make the same arguments it makes in its present motion. At the hearing, Alden discussed

the doctrine of claim differentiation, and applied it to the construction that Easypower was
12

asserting. Transcript at 61 (“If you’re going to incorporate limitations such as this into the

spec and attempt to limit the spec to the specifically disclosed embodiment, under the

Phillips case law you need to have words of exclusion, very specific exclusion to make it

clear, and there are no such words cited by Easypower anywhere in this patent

specification.”). Alden made these arguments at both the hearing as well as in its briefs, and

they are identical to the arguments Alden puts forth in its present motion. Thus, Alden’s

argument that it did not have an opportunity to be heard on these issues is without merit. 

IV. CONCLUSION

For the reasons set forth herein, the Court reaffirms its previous claim construction

No.5. Accordingly, Alden’s motion for reconsideration is denied.

SO ORDERED THIS 21st DAY OF NOVEMBER, 2007.

______________________________________

MORTON DENLOW

UNITED STATES MAGISTRATE JUDGE

Copies sent to:

Jody L. Factor

Factor & Lake, LTD

1327 West Washington Boulevard

Suite 5 G/H

Chicago, IL 60607

Counsel for Plaintiff
13

Jeffrey E. Schiller

Deutsch, Levy & Engel, Chtd.

225 West Washington Street

Suite 1700 

Chicago, IL 60606

John C. Linderman

McCormick, Paulding & Huber, LLP

Cityplace II

185 Asylum Street, 18th Floor

Hartford, CT 06103

Counsel for Defendant