UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MEDTECH PRODUCTS, INC.,

 Plaintiff,

v.

RANIR, LLC and CVS Pharmacy, Inc.,

 Defendants.

07 CV 3302-WP4-LMS

(Consolidated)

MEDTECH PRODUCTS, INC.,

 Plaintiff,

v.

DENTEK ORAL CARE, INC.,

 Defendant.

MEDTECH PRODUCTS, INC.,

 Plaintiff,

v.

POWER PRODUCTS, INC.,

 Defendant.

 

MEMORANDUM OF DEFENDANT DENTEK ORAL CARE, INC. ON 

CONSTRUCTION OF CLAIM 17 OF THE ‘051 PATENT

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TABLE OF CONTENTS

I. INTRODUCTION............................................................................................... 1

II. BRIEF DESCRIPTION OF THE DEVICE AND METHOD OF 

MANUFACTURE DESCRIBED IN THE PATENT ........................................... 1

III. BRIEF DESCRIPTION OF THE PROSECUTION HISTORY WITHIN THE 

PTO..................................................................................................................... 7

A. The Reasons for Allowance...................................................................... 7

B. The State Of The Art As Reflected In The Prior Art Of Record................ 8

IV. LEGAL PRINCIPLES REGARDING CLAIM CONSTRUCTION ..................... 9

A. General Principles of Claim Construction................................................. 9

B. The Role of the Prosecution History....................................................... 10

C. The Use Of Extrinsic Evidence. ............................................................. 11

D. Claims Should Be Construed Narrowly Where The Boundaries Are 

Unclear To Serve The Notice Function Of Claims And Avoid 

Invalidation For Indefiniteness............................................................... 12

V. CONSTRUCTION OF THE DISPUTED CLAIM TERMS ............................... 13

VI. CONCLUSION ................................................................................................. 25

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TABLE OF AUTHORITIES

Alloc, Inc. v. International Trade Commission,

342 F.3d 1361 (Fed. Cir. 2003)................................................................................10

Amgen, Inc. v. Hoechst Marion Roussel, Inc.,

314 F.3d 1313 (Fed. Cir. 2003)..........................................................................12, 25

Athletic Alternatives v. Prince Manufacturing,

73 F.3d 1573 (Fed. Cir. 1996)............................................................................12, 25

BJ Services Co. v. Halliburton Energy Services, Inc.,

338 F.3d 1368 (Fed. Cir. 2003)................................................................................13

C.R. Bard, Inc. v. U.S. Surgical Corp.,

388 F.3d 858 (Fed. Cir. 2004)..................................................................................10

CVI/Beta Ventures, Inc. v. Tura LP,

112 F.3d 1146 (Fed. Cir. 1997)..........................................................................10, 20

Elkay Manufacturing Co. v. Ebco Manufacturing Co.,

192 F.3d 973 (Fed. Cir. 1999)..................................................................................11

Evans Medical Ltd. v. American Cyanamid Co.,

11 F. Supp. 2d 338 (S.D.N.Y. 1998) ..................................................................13, 25

Genzyme v. Transkaryotic Therapies, Inc.,

346 F.3d 1094 (Fed. Cir. 2003)................................................................................10

Honeywell International, Inc. v. ITC,

341 F.3d 1332 (Fed. Cir. 2003)................................................................................12

Inverness Medical Switz. GmbH v. Warner Lambert Co.,

309 F.3d 1373 (Fed. Cir. 2002).................................................................... 11, 21, 22

Johnson & Johnston Associates v. R.E. Serv. Co.,

285 F.3d 1046 (Fed. Cir. 2002)................................................................................12

Koepnick Med. & Educ. Research Found. v. Alcon Labs., 

162 Fed. Appx. 967 (Fed. Cir. 2005)..................................................................11, 21

Markman v. Westview Instruments, Inc.,

517 U.S. 370 (1996)...................................................................................................9

Microsoft Corp. v. Multi-Tech System, Inc.,

357 F.3d 1340 (Fed. Cir. 2004)................................................................................10

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Ortho-McNeil Pharm., Inc. v. Caraco Pharm. Laboratories, Ltd.,

476 F.3d 1321 (Fed. Cir. 2007)................................................................................13

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005)...................................................................... 9, 10, 11

Pitney Bowes, Inc. v. Hewlett-Packard Co.,

182 F.3d 1298 (Fed. Cir. 1999)................................................................................11

SciMed Life System, Inc. v. Advanced Cardiovascular System, Inc.,

242 F.3d 1337 (Fed. Cir. 2001)................................................................................10

Standard Oil Co. v. America Cyanamid Co.,

774 F.2d 448 (Fed. Cir. 1985)..................................................................................12

In re Vamco Machine & Tool, Inc.,

752 F.2d 1564 (Fed. Cir. 1985)................................................................................12

Vitronics Corp. v. Conceptronic, Inc.,

90 F.3d 1576 (Fed. Cir. 1996)..............................................................................9, 11

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I. INTRODUCTION

In this action, Medtech Products Inc. (“Medtech”) asserts infringement of a single claim 

of a single patent, claim 17 of U.S. Patent No. 6,830,051 (the “‘051 patent”). The patent is 

directed to a mouth guard that is used at night to prevent tooth damage, something known 

throughout the industry as a nightguard. In discussing the background of the invention, the 

patent identifies this type of device, generically, as a nightguard no less than four times in the 

span of ten lines. (See Col. 1, lines 44-54 of the ‘051 patent attached at Ex. A to the Declaration 

of Gregory Sieczkiewicz, hereinafter, “Sieczk. Decl. at Ex. A”; see also, id. at Col. 1, l. 24.) 

Nightguards are used to minimize tooth damage caused by the involuntary clenching and bruxing 

(i.e., grinding) of the teeth at night, during sleep. (Id. at Col. 1, lines 1-26.)

The claim at issue, unlike the other claims of the patent, is not directed to the structural 

configuration of the device, per se, but rather to a method of manufacturing a device out of 

materials having specific chemical and physical characteristics put together in a specified way. 

The base is created first, placed in a mold and the impression preform is molded over the base to 

achieve a better bond and resistance to the shear forces exerted on the device by grinding teeth. 

The base and impression perform, respectively, must have the physical parameters and chemical 

composition which the claim specifies for them.

II. BRIEF DESCRIPTION OF THE DEVICE AND METHOD OF MANUFACTURE 

DESCRIBED IN THE PATENT

The patent states that interocclusal1

 appliances, such as nightguards, have been long 

recognized as beneficial to alleviating the adverse effects of bruxing and clenching. (Col. 1 at ll. 

4-26.) Figure 1 of the ‘051 patent shows the interocclusal appliance to which the ‘051 patent is 

directed: 

 

1

 Interocclusal is a term that relates to being situated between the surfaces of the teeth that are 

contacted when opposite teeth are brought together. (See Sieczk. Decl. at Ex. B).

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Reference number 10 generally denotes an interocclusal appliance constructed in 

accordance with the alleged invention. (Col. 3 at ll. 59-61.) There is a base 12 which is Ushaped, so as to match the maxillary dental arch formed by a user’s teeth. (Id. at ll. 62-64.) An 

impression preform 14 is molded over that base to form a unitary structure. (Id.) In use, the 

device is placed in hot water, so that the user can sink his or her teeth into the shallow pilot 

channel 24 located toward the top of impression preform 14, during self-fitting. (Abstract; Col. 4 

at ll. 7-12.) The base has a higher softening temperature than the impression preform. (Id.) As a 

result, the portion of the nightguard into which the user sinks his or her teeth may be softened 

when placed in hot water, without affecting the structural integrity of the base. (Col. 4, lines 59-

63.)

The base 12 features an upper surface 38 and side walls 18 and 20. (Col. 4, ll. 46-60.) 

These are shown, most clearly, in Figure 5 of the ‘051 patent, reproduced below:

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The impression preform material is bonded to the entire upper surface 38 of the base. 

(Id.) The pilot channel 24 of the impression preform 14 is defined by a generally planar face 25 

and a pair of side walls each having an upper ridge. Specifically, they are wall 28 and ridge 29, 

as well as wall 30 and ridge 31. (Col. 4 at ll. 15-19.) 

The physical and chemical characteristics of the materials used to manufacture the 

interocclusal device and the method of manufacturing are described in the Summary of Invention 

(see, e.g., Col. 1, l. 65 – Col. 2, l. 8) and in the body of the patent at Col. 4, line 64 et seq. The 

base softens at a higher temperature than the impression preform and has a specified level of 

hardness, so that when the device is heated to allow the user to make a dental imprint, the base 

does not become thinner as a result of the force of teeth coming together during fitting. (Col. 4 at 

ll. 59-63.) Blends containing EVA, among other materials, are entirely suitable. (Abstract; 

Summary of the Invention at Col. 2, ll. 36-41.)

The Summary of the Invention specifies that the impression preform should be 

constructed out of an EVA copolymer having approximately thirty percent vinyl acetate. (Col. 2, 

ll. 3-7.) The Abstract says the same thing. The specification states that the EVA copolymer used 

in the impression preform is to have a vinyl acetate content of at least 25%, so as to suggest that 

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25% is an absolute minimum. (Col. 5, ll. 15-20.) Elvax®150 is identified as preferred and stated 

to contain 33% vinyl acetate content by weight. (Id.; see, e.g., Col. 5, line 47, Col. 6, l. 40.)

Relative to the method of manufacture, the thermoplastic resin from which the base is 

formed has characteristics suitable for injection molding. (Col. 5 at ll. 6-12.) After the base has 

been formed and placed in the mold, the thermoplastic resin for the impression preform is 

injected into the mold cavity over the entire top of the base to form the unitary device. (Col. 4, ll. 

46-49.) By injection molding in this fashion, the base and preform form a strong bond that will 

withstand the force exerted by clenching (and grinding) and permit the interocclusal device to 

remain unitary under the shear forces that apply during use, rather than separate under them. 

(Col. 5 at ll. 1-12; Col. 10, ll. 39-51.)

Relative to the state of the art, the inventors themselves readily acknowledge in the 

Background of the Invention that:

Interocclusal appliances, such as nightguards, have been long recognized 

as beneficial for the alleviation of the adverse effects of bruxism and 

clenching. (Col. 1, ll. 24-26.)

The inventors also acknowledge that these interocclusal devices were often self-fitted 

(Col. 1 at ll. 27-28), and were molded out of a base and an impression preform. In describing the 

nightguards commonly used before the alleged invention at Col. 1, ll. 34-42, the Background of 

the Invention states:

A typical self fitted interocclusal appliance included a thermoplastic 

channel trough in the configuration of a maxillary arch. Carried in the 

trough was a thermoplastic impressionable liner material having a 

softening point temperature lower than that of the trough. The liner was 

molded to conform to the mouth of the user after the appliance was 

immersed in hot water and then inserted into the mouth, with the liner 

placed against the maxillary arch. The user’s jaw was then closed and 

biting pressure was applied to force the maxillary teeth into the liner.

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The problems to which the claimed invention is directed relate not only to the fitting 

procedure but also the durability of the device. (Col. 1 at ll. 43-46.) The fitting issues related to 

structural considerations affecting a user’s ability to center and align the device. (Id. at ll. 46-52.) 

The durability problems, to which the method of manufacture claimed in claim 17 is directed, 

arose from separation of the base from the liner caused by the shear forces applied to the device 

during bruxing (i.e., grinding) and clenching. (Id. at 53-62.) As stated at Col. 1, ll. 53-62:

Further problems were encountered with respect to the structural integrity 

of self fitting nightguards. As a result of the shear forces which were 

generated during bruxing or clenching events, separation of the bond 

between the liner and the trough occurred. With the trough in contact with 

the mandibular occlusal surfaces and the maxillary teeth embedded in the 

liner, lateral, superior and anterior mandibular deviations during bruxing 

events resulted in shear stress which separated the liner from the trough, 

rendering the device unserviceable.

By molding the preform over the entire upper surface of the base a particularly strong 

bond can be created which is better able to resist the shear forces that apply during clenching and 

grinding of the teeth. The Summary of the Invention states at Col. 2, l. 65 - Col. 3, l. 5:

Yet another aspect of the present invention is to provide an interocclusal 

appliance of the general character described suited for extended usage 

without deterioration.

To provide an interocclusal appliance of the general character described 

having a base and an impression material unitarily molded thereto and 

characterized by a high shear resistance bond between components is a 

still further consideration of the present invention.

In describing the method of manufacture, every example contained in the patent explains 

that the base is formed first, placed in a mold cavity and the material for the impression preform 

is injected into the mold so as to mold the preform over the base. As a result the impression 

preform is formed over the entire upper surface of the base and provides a strong bond for the 

unitary structure. With reference to Figure 5, the patent states at Col. 4, ll. 46-49:

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The upper surface of the base and the opposed inner surfaces of the side 

walls 18, 20, all of which are bonded to the impression preform 14 

when the preform is molded over the base, is designated by the 

reference numeral 38 in Fig. 5. (Col. 4, ll. 46-50, emphasis added.)

The Summary of the Invention itself calls out that the impression preform is “[m]olded 

into the base between and above the side walls of the base.” (Col. 2 at ll. 3-5, emphasis 

added.) In short, the impression covers the entire surface of the base 38, including the sidewalls. 

The examples set forth in the patent all specify that the impression preform is manufactured by 

heating the preform material above its melting point and injecting it over the base situated in the 

mold to form a high adhesion bond. (See, e.g., Col. 5, ll. 49-57.) The Abstract of the Invention 

also states that the preform is molded over and unitarily bonded to the base.

The Summary of the Invention begins by characterizing the invention as the combination 

of a base and a preform in which: a) a base is molded of a thermoplastic material having a 

relatively high softening temperature and a specified hardness, and b) an impression preform is 

molded “into the base between and above the side walls” of the base and is comprised of an EVA 

copolymer having approximately thirty percent vinyl acetate and a relatively low softening 

temperature. (Col. 1, l. 65 – Col. 2, l. 8.) 

These are the features to which Claim 17 is directed. It reads as follows:

17. A method of fabricating an interocclusal appliance for alleviation of 

the adverse effects of bruxing or clenching events, the method comprising 

the steps of:

a) molding and [sic] appliance base from a resin having a Vicat softening 

temperature of at least 70o C. and a Shore A hardness of at least 80; and

b) molding over the base an impression preform from a resin comprising 

an ethylene vinyl acetate copolymer having approximately 30% by weight 

vinyl acetate.

As revealed in the prior patents cited by the US Patent & Trademark Office (“PTO”) 

during its consideration of the ‘051 patent, discussed below, there is nothing new about the use 

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of EVA for an impression preform or an EVA blend in a base. The invention of claim 17 is 

directed to a method of manufacturing an allegedly improved nightguard by molding an 

impression perform having specific chemical characteristics over the entire upper surface of a 

base having specified physical characteristics to make a particularly strong and durable bond 

capable of withstanding the shear forces exerted by the clenching and grinding of teeth. This is 

the specific problem which the patent seeks to solve, the separation of the preform impression 

from the base. (Col. 1 at ll. 53-62.) 

III. BRIEF DESCRIPTION OF THE PROSECUTION HISTORY WITHIN THE PTO

A. The Reasons for Allowance

The application for the patent-in-suit was filed on April 29, 2003. The patent office file 

indicates that the examiner considered the sixteen earlier U.S. patents identified by the applicants 

and four additional patents he uncovered through his own search. There is no discussion of what 

is disclosed in any of those patents by the Examiner, who simply issued a notice of allowability 

on April 22, 2004, allowing claims 1-17. 

The Examiner set forth the following as his Reason For Allowance:

The following is an examiner’s statement of reasons for allowance: The 

prior art does not disclose or suggest in [sic] interocclusal appliance 

having a base that has a plan configuration of a dental arch and a generally 

planar occlusal face, impression material bonded to the base, the 

impression material has a pilot channel having a generally planar face and 

a pair of space [sic] peripheral walls, the impression material has a footing 

having a height extending from the opposite face of the base to the face of 

the pilot channel, the height of the footing being at least twice the distance 

between the occlusal face of the base and the opposite face of the base.

The footing height is a feature of claims 1-16. The only language in claim 17 to which 

these reasons for allowance can possibly be directed is “molding over the base an impression 

preform.” Molding a preform impression to a base was old. (Col. 1, ll. 33-43; III. B. infra.) 

Bonding over the entire base to form a pair of spaced peripheral walls was not. Molding in this 

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fashion to provide a particularly strong bond is the way in which the inventors solved the 

problem of separation. (Col. 1, ll. 52-62; Col. 2, ll. 3-4.)

B. The State Of The Art As Reflected In The Prior Art Of Record

The prior art of record shows little to differentiate claim 17 from what came before it. 

Many of the prior art references describe an injection molded mouthguard featuring a base 

having a higher softening temperature which is made of EVA or an EVA copolymer and a liner 

having a lower softening temperature also made of an EVA composition.

For example, U.S. 5,566,684 (Sieczk. Decl. at Ex. H) describes a mouth guard 10 that 

includes lower trough 12 of channel-shaped cross-section. At col. 3, ll. 54-64, the ‘684 patent 

continues:

The trough 12 may be injection molded of a suitable thermoplastic with a 

mold temperature in the order of 350o F. Suitable thermoplastics for 

employment include EVA compositions such as Elvax 260 and Elvax 250.

The mouthguard 10 also includes an upper fill 24 formed of the lower 

softening temperature thermoplastic which is injection moldable at a lower 

temperature range, for example, 180o F. through 250o F. An EVA 

composition, such as Elvax 150 may be employed. The fill 24 is 

preferably injection molded to the trough 12 by first placing a completed 

trough into a mold.

U.S. Patent No. 6,082,363 (Sieczk. Decl. at Ex. F) is another example. It discloses a 

mouthguard which has a base made of a copolymer of EVA. Elvax Resin 350 through 450 is 

expressly suggested. A soft liner is formed of a material with a lower softening temperature 

than the base and a copolymer of ethylene and vinyl acetate having at least 33% of vinyl acetate 

by weight is suggested. (‘363 patent at Col. 5, ll. 50-60.) Alternative copolymers of ethylene 

and vinyl acetate having 40% by weight are also suggested, including a soft EVA 40. (Id.) 

Hence, the EVA content that is preferred is at least 33%. An intermediate frame included to 

absorb shock is also made of a copolymer of ethylene and vinyl acetate. (Col. 5, at ll. 9-19.)

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The ‘363 patent specifically addresses the benefit of using material in the liner that 

softens at a lower temperature than the base. (‘363 patent at Col. 2, ll. 29-32 and 49-52; Col. 6, 

ll. 55-58.) Various EVA compounds are called out throughout the patent which can accomplish 

this, with a liner having a weight percentage of vinyl acetate greater than 33% being preferred. 

(See Col. 5, ll. 54-60 and Claim 14.)

These are merely exemplary with many of the others being to the same effect. As stated 

in U.S. 6,036,487, at Col. 1, ll. 18-23 (Sieczk. Decl. at Ex. G): “Mouthguards are typically made 

from plastics material such as an ethylene vinyl acetate copolymer (EVA) ....” Additional 

patents expressly referencing EVA are mentioned in the discussion that follows in that patent.

IV. LEGAL PRINCIPLES REGARDING CLAIM CONSTRUCTION

A. General Principles of Claim Construction

Claim interpretation is a question of law. Markman v. Westview Instruments, Inc., 517 

U.S. 370, 388-91 (1996). In interpreting a claim, three sources must be considered: the claims, 

the specification, and the prosecution history. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. 

Cir. 2005)(en banc). Phillips resolved conflicting precedents by holding that the specification of 

the patent is the best guide to the meaning of the claim terms and that it is improper to elevate 

dictionary definitions above that. In particular, the Phillips court reaffirmed that the 

specification is the “single best guide” to the meaning of the disputed claim language. Id. at 

1321 (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). It 

continues to be proper to give the language of the claims its ordinary and customary meaning, so 

long as it aligns with the description of the invention in the patent. Phillips, 415 F.3d at 1312-13

(citations omitted). 

According to the Federal Circuit: “Ultimately, the interpretation to be given a term can 

only be determined and confirmed with a full understanding of what the inventors actually

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invented and intended to envelop with the claim. The construction that stays true to the claim 

language and most naturally aligns with the patent’s description of the invention will be, in the 

end, the correct construction.” Phillips, 415 F.3d at 1316 (emphasis added). “Where the 

specification makes clear at various points that the claimed invention is narrower than the claim 

language might imply, it is entirely permissible and proper to limit the claims.” Alloc, Inc. v. 

Int’l Trade Comm’n, 342 F.3d 1361, 1370 (Fed. Cir. 2003). Therefore, “[i]t is entirely 

appropriate for a court, when conducting claim construction, to rely heavily on the written 

description for guidance as to the meaning of the claims.” Phillips, 415 F.3d at 1317. 

In reviewing the specification, the court may give greater weight to the Summary of the 

Invention, because “[s]tatements that describe the invention as a whole are more likely to be 

found in certain sections of the specification, such as the Summary of the Invention.” C.R. Bard, 

Inc. v. U.S. Surgical Corp., 388 F.3d 858, 864 (Fed. Cir. 2004). See also, Microsoft Corp. v. 

Multi-Tech Sys., Inc., 357 F.3d 1340, 1348 (Fed. Cir. 2004); Genzyme v. Transkaryotic 

Therapies, Inc., 346 F.3d 1094, 1099 (Fed. Cir. 2003); SciMed Life Sys., Inc. v. Advanced 

Cardiovascular Sys., Inc., 242 F.3d 1337, 1343 (Fed. Cir. 2001) (considering Abstract as well as 

Summary of the Invention).

The problem the inventor was trying to solve, as discerned from the patent, should be 

considered so that the claims are construed in a manner that is consistent with, and furthers the 

purpose of, the invention. CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 1146, 1160 (Fed. Cir. 

1997). 

B. The Role of the Prosecution History

Courts naturally study the Examiner’s Reasons For Allowance. Where an Examiner 

states that he is allowing a claim because the prior art fails to show specified features believed to 

be inventive, and the inventor does not dispute that statement, the Examiner’s statement will be

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used, as appropriate, to construe the allowed claim. Koepnick Med. & Educ. Research Found. v. 

Alcon Labs., 162 Fed. Appx. 967, 971 (Fed. Cir. 2005) (Examiner’s recitation that prior art does 

not teach “cutting two disks from the eye” supports construction of “excising” as “cutting out.”)

“To be sure, failure to object to an examiner’s interpretation of a claim ordinarily 

disclaims a broader interpretation.” Inverness Med. Switz. GmbH v. Warner Lambert Co., 309 

F.3d 1373, 1380 (Fed. Cir. 2002) (citing Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 979 

(Fed. Cir. 1999) for the holding that “failure to respond to an examiner’s reason for allowance 

functioned as a disavowal of a different interpretation of the claim.”)

C. The Use Of Extrinsic Evidence.

Extrinsic evidence, such as expert testimony, is that evidence which is external to the 

patent and prosecution history. Vitronics Corp. v. Conceptronic, 90 F.3d 1576, 1584 (Fed. Cir. 

1996). In most situations, analysis of the intrinsic evidence alone will resolve claim construction 

disputes. Id. at 1583. Extrinsic evidence can never be used to reach a result that contradicts the 

intrinsic evidence. Id. Nonetheless, it may be appropriate “for a court to consult trustworthy 

extrinsic evidence to ensure that the claim construction it is tending to from the patent file is not 

inconsistent with clearly expressed, plainly apposite, and widely held understandings in the 

pertinent technical field.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1308 (Fed. 

Cir. 1999) (citing Vitronics, 90 F.3d at 1583). Dictionary definitions and other objective 

reference materials available at the time that the patent was issued may also provide evidence of 

a claim’s ordinary meaning. Phillips, 415 F.3d at 1314, 1322-23 (“judges . . . may also rely on 

dictionary definitions when construing claim terms, so long as the dictionary definition does not 

contradict any definition found in or ascertained by a reading of the patent documents”) 

(citations and internal quotations omitted).

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D. Claims Should Be Construed Narrowly Where The Boundaries Are Unclear 

To Serve The Notice Function Of Claims And Avoid Invalidation For 

Indefiniteness

Patent claims define the metes and bounds of the right that the patent confers on the 

patentee to exclude others from making, using, or selling the patented invention. Johnson & 

Johnston Assocs. v. R.E. Serv. Co., 285 F.3d 1046, 1052 (Fed. Cir. 2002); In re Vamco Mach. & 

Tool, Inc., 752 F.2d 1564, 1577 (Fed. Cir. 1985). The second paragraph of 35 U.S.C. §112 

requires the claims to particularly point out and distinctly claim the subject matter that the 

patentee regards as the invention. 35 U.S.C. § 112, ¶ 2. “Distinctly” means that the claim must 

have a clear and definite meaning when construed in light of the complete patent document. 

Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985). The definiteness 

requirement guards against unreasonable advantages to the patentee and ensures that the claims 

give notice to the public of the extent of the legal protection afforded by the patent, so that 

interested members of the public, including competitors of the patent, can determine whether or 

not they infringe. Athletic Alternatives v. Prince Mfg., 73 F.3d 1573, 1581 (Fed. Cir. 1996).

To address just this problem, the law is clear that where there is any doubt as to the 

propriety of two alternative constructions of the metes-and-bounds of the claim, the narrower 

interpretation must be taken; both to serve the notice function performed by the claims and to 

save the claim from invalidity under paragraph 2 of section 112. Athletic Alternatives, 73 F.3d at 

1581 (“Where there is an equal choice between a broader and a narrower meaning of a claim, 

and there is an enabling disclosure that indicates that the applicant is at least entitled to a claim 

having the narrower meaning, we consider the notice function of the claim to be best served by 

adopting the narrower meaning.”); Honeywell Int'l, Inc. v. ITC, 341 F.3d 1332, 1339 (Fed. Cir. 

2003); Amgen, Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1342 (Fed. Cir. 2003) (“A

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claim is indefinite under § 112 ¶2 if it is insolubly ambiguous, and no narrowing construction 

can properly be adopted.”) (citations and internal quotations omitted). 

Definiteness problems can arise when words of degree are used in a claim. BJ Servs. Co. 

v. Halliburton Energy Servs., Inc., 338 F.3d 1368, 1372 (Fed. Cir. 2003) (construing “about 

0.06”)2

. In these instances the claim should be defined to correspond to what the specification 

discloses clearly to persons skilled in the art who want to know the actual boundaries of the 

patent right. For example, in Evans Med. Ltd. v. American Cyanamid Co., 11 F. Supp. 2d 338, 

353 (S.D.N.Y. 1998), aff’d, 1999 U.S. App. LEXIS 18436 (Fed. Cir. August 9, 1999), the court 

stated that “the only intrinsic evidence as [to] the meaning of the terms ... ‘about 1:1’ is the one 

example given in the specification, in which the ratio of the residue values of the two amino 

acids is 60:62 (or 0.97:1), which is to say that they are within 3% of one another.” Id. at 354. 

The Court further stated that in the absence of other evidence, the claim construction of “about 

1:1” would be determined “by the example in the specification (e.g., +/- 3%).” Id. 3

V. CONSTRUCTION OF THE DISPUTED CLAIM TERMS

Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

an interocclusal appliance a device that prevents full 

occlusion of all teeth

an appliance that is used or 

fitted, in whole or in part, 

between portions of the 

upper and lower teeth

“Interocclusal” is defined as “situated between the occlusal surfaces of opposing teeth.” 

(Sieczk. Decl. at Ex. B.) Occlusal surfaces are any of the incising and masticating surfaces of 

the upper and lower teeth. (Id.) Consequently, an interocclusal appliance is a device situated 

between any surface of any teeth that might come into contact. 

 

2 The Federal Circuit has construed the terms “about” and “approximately” in the same way. 

Ortho-McNeil Pharm., Inc. v. Caraco Pharm. Labs., Ltd., 476 F.3d 1321, 1326 (Fed. Cir. 2007).

3 The Court went on to find a range for “about 1:1” of +/- 5% only because defendant had made a 

statement against interest that it could be construed as +/- 5%.

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14

This interpretation is entirely consistent with the stated objectives of the patent, namely, 

preventing loss of tooth structure. (Col. 3 at ll. 6-9.) To this end, the interocclusal device is 

described as having a base in the general shape of a maxillary dental arch and an impression 

preform 14 that is “transformed into a maxillary dentition encasement during self-fitting of the 

interocclusal appliance.” (Col. 3 at ll. 59-66; Abstract.) In other words, the interocclusal 

appliance is described as shaped to match, and to serve to encase, all of the user’s teeth. No 

embodiment is shown that does not do this and no suggestion is made that anything less is 

contemplated. 

Consequently, the definition of this term in its normal use and the definition which most 

naturally aligns with the teachings of the ‘051 patent is that an “interocclusal appliance” is a 

device that prevents occlusion of all teeth. Medtech’s interpretation is incorrect in that the 

device is not fitted, as Medtech would have it, “...in whole or in part, between portions of the 

upper and lower teeth.” (Emphasis added). 

Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

bruxing grinding of the teeth not construed

clenching clenching teeth tightly not construed

The proper construction of “bruxing” is “grinding of the teeth,” and “clenching” is 

“closing teeth tightly.” (Sieczk. Decl. at Ex. C.) Medtech does not offer a construction, but 

there is little reason not to differentiate the two terms and explain to the jury what “bruxing” 

means. 

The ’051 patent indicates that lateral and compressive stresses are exerted during bruxing 

“or” clenching events. (‘051 patent, col. 5, ll. 3-5.) The “lateral stresses,” caused by grinding 

teeth, correspond to the term “bruxing,” while “compressive stresses” correspond to clenching. 

This is entirely consistent with dictionary definitions. (Sieczk. Decl. at Ex. C.)

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Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

molding and appliance base as written, this claim is 

indefinite, vague, and unclear 

in the recitation of the phrase 

“molding and appliance base”

“molding” means forming a 

thermoplastic material into a 

particular shape by injecting 

the thermoplastic material into 

a mold

“appliance base” means a 

structure in which the 

thickness thereof is not 

significantly reduced by 

compressive forces applied by 

biting

a step of molding an 

appliance base

As written, this claim contains the phrase “molding and appliance base” which is 

obviously incorrect. Beyond that, it remains unclear whether “and” should be “an” or whether 

there are two steps within this phrase, a “molding” step and an additional step missing the verb 

preceding “appliance base.” The file history of the ‘051 patent reveals that this phrase was 

present in the application as originally filed and was not corrected during the prosecution of 

claim 17. (Sieczk. Decl. at Ex. D, page 37.) It was the patentee’s obligation to correct this error 

by way of certificate of correction or reissue, which applicants did not. 

Should the Court interpret this phrase as “molding an appliance base,” “molding” means 

forming a thermoplastic material into a particular shape by injecting the thermoplastic material 

into a mold wherein the material conforms to the shape of the mold as it hardens. The 

“appliance base” is the resultant structure that serves as the base of the interocclusal appliance. 

The patent states: “in accordance with the present invention, the base 12 is formed by injection 

molding a thermoplastic resin having requisite characteristics into a base mold cavity.” (‘051 

patent, col. 5, ll. 6-12.) Furthermore, the ‘051 patent is replete with examples specifying that the 

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16

base was injection molded into a mold cavity utilizing specified resin formulations. (‘051 patent, 

col. 6, ll. 11-12 and 33-47; col. 7, ll. 2-3, 19-33 and 55-56; col. 8, ll. 5-22, 47-48 and 65-67; col. 

9, ll. 1-15, 37-38 and 53-67; col. 10, ll. 1-3.)

In the context of the claim, the base is intended to be a structure in which the thickness 

thereof is not significantly reduced by compressive forces applied by biting. This is implicit in 

the Vicat softening temperature and Shore A hardness limitations. (See Col. 4, ll. 59-63.) A 

more precise definition might be that “appliance base” means a structure “used as the base of an 

interocclusal appliance” in which the thickness thereof is not significantly reduced by 

compressive forces applied by biting.

Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

a resin a synthetic organic compound 

consisting of a noncrystalline 

solid or viscous liquid 

substance

a moldable material

Within the specification, resins are described by chemical and physical characteristics, 

including softening temperatures and hardness; the resins are also referred to as “thermoplastic.” 

(‘051 patent, col. 4, ll. 64-67; col. 5, ll. 6-12.)

However, the Summary of the Invention and the Abstract only disclose the following 

synthetic organic compounds as suitable for use: “[s]uitable thermoplastics for employment as 

the base include ELVALOY®EMA copolymer, ELVALOY®EMA blended with 

ELVAX®EVA or ELVALOY®EMA blended with PELLETHANE® TPU elastomer.” (‘051 

patent, col. 2, ll. 37-41.) The Encyclopædia Britannica defines resin as “any natural or synthetic 

organic compound consisting of a noncrystalline or viscous liquid substance.” However, this 

definition would also appear to be limited by the description of the ‘051 patent, as to which 

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17

resins are suitable - synthetic organic compounds. Hence, Dentek’s construction is fairly 

technical.

The ‘051 specifies that the resin used to form the appliance base and the impression 

preform are both moldable when heated. (‘051 patent, col. 5, ll. 32-53.) Therefore, DenTek's 

construction might be better understood without loss of accuracy by defining it as a synthetic 

organic thermoplastic compound. The dictionary definition of resin describes a class of synthetic 

products (chemically different from natural resins) that may be thermoplastic or thermosetting. 

(Sieczk. Decl. at Ex. C.) 

Regardless, Medtech’s proposed construction is plainly overbroad and cannot be correct. 

There are many materials that may be “a moldable material” and are not made of resin. 

Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

having a Vicat softening 

temperature

a temperature at which a flatended needle penetrates the 

hardened resin to the depth of 

1 mm under a specific load 

when the hardened resin is 

heated 

the temperature at which a 

flat-ended needle 

penetrates a specimen of 

the resin to the depth of 1 

mm under a 10 Newton 

load, under ASTM D1525 

standard

DenTek’s proposed construction is consistent with the American Society for Testing and 

Materials’ standard ASTM D 1525, “Standard Test Method for Vicat Softening Temperature of 

Plastics,” ASTM International, 2007. This standard is expressly mentioned in the specification 

(Col. 4 at ll. 64-67.) Medtech’s proposed construction, while superficially similar to DenTek’s 

proposed construction, is deficient in two regards. First, the Medtech construction fails to specify 

that the resin specimen must be measured when hardened. The testing methods performed under 

ASTM D 1525 are designed to measure a temperature point at which a given solid will soften, 

and are inapplicable to non-solids, including resins in viscous liquid form. Second, Medtech’s 

construction fails to specify that the hardened resin is heated; the heating step is of significance

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in that the ‘051 patent specifies that the interocclusal appliance is heated to a temperature of 

40oC to 46oC during the fitting procedure. (‘051 patent, col. 4, ll. 64-67.)

Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

of at least 70oC a temperature of 70.0oC or 

more

 a minimum Vicat 

softening temperature

The accuracy of DenTek’s proposed construction is self-evident. Medtech attempts to 

rewrite the language of the claim so that it would read, in pertinent part, “b) molding and 

appliance base from a resin having a minimum Vicat softening temperature and a Shore A 

hardness of at least 80,” when the claim actually reads “b) molding and appliance base from a 

resin having a Vicat softening temperature of at least 70 and a Shore A hardness of at least 

80,” The Medtech construction rewrites the claim language, impermissibly, into something 

which is unclear and indefinite because the metes and bounds of a claim that does not attach a 

numerical value to “minimum” in the context of a Vicat softening temperature are indeterminate.

Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

a Shore A hardness a measurement of the extent of 

indention of a hardened resin 

by the action of a Shore A 

durometer

a measurement of hardness 

using a TMI Duromotor 

model number 4150 

equipped with a Shore 

Durometer Hardness Type 

A

DenTek’s proposed construction of the term “a Shore A hardness” should be adopted 

because it is the construction most consistent with the American Society for Testing and 

Materials’ standard ASTM D 2240, “Standard Test Method for Rubber Property—Durometer 

Hardness,” ASTM International, 2007, which provides that the durometer measures the extent of 

indentation of a material; such measurement is then used to describe the relative hardness of the 

material. An ASTM standard suggests itself here since ASTM is a sanctioned standards body 

and an ASTM standard was suggested elsewhere in the patent. (See Col. 4 at ll. 64-67.) The 

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19

meaning of TMI is not known and Medtech’s construing “a Shore A hardness” to a specific 

model of durometer manufactured by a specific company is unsupported by the claims of the 

‘051 patent, the file history, or any extrinsic evidence, and should therefore be disregarded.

Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

of at least 80 a Shore A hardness of 80 or 

more

a minimum Shore A 

hardness

DenTek’s proposed construction of the term “of at least 80” in relation to a Shore A 

hardness of the resin used to mold the appliance base is straightforward. Medtech again would 

rewrite the language of the claim into something other than what it actually is. The result is 

illogical and renders the claim indefinite because one cannot determine the scope of the claim 

without attaching a numerical value to a minimum Shore A hardness. 

Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

molding over the base contacting a heated resin with 

the entire upper surface of the 

appliance base 

a step of molding over the 

base

Properly construed, “molding over the base” is contacting a heated resin with the entire 

upper surface of the appliance base. The ‘051 patent explains that the top surface of the base 

serves as the mold to which the bottom of the preform impression conforms and bonds:

in accordance with the present invention, the base 12 is formed by 

injection molding a thermoplastic resin having requisite characteristics 

into a base mold cavity. The molded base 12 is positioned in an occlusal 

appliance mold cavity and a thermoplastic resin having the requisite 

characteristics for the impression preform 14 is injected into the appliance 

mold cavity over the base 12 and unitarily bonds thereto. (‘051 patent, 

col. 5, ll. 6-12.)

 The result is that the impression preform bonds to the entire upper surface 38 of the base, 

including the side walls. The Summary of the Invention is completely clear on the point and is 

entitled to particular weight under the authorities cited supra at p. 10:

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Molded into the base between and above the side walls is an impression 

preform comprising an EVA copolymer having approximately thirty 

percent vinyl acetate.... (Col. 2, ll. 3-4) (emphasis added.)

The specification of the patent also could not be clearer:

The upper surface of the base and the opposed inner surfaces of the side 

walls 18, 20, all of which are bonded to the impression preform 14 

when the preform is molded over the base, is designated by the 

reference numeral 38 in Fig. 5. (Col. 4, ll. 46-50) (emphasis added.)

 Every embodiment described in the patent does this and no other configuration is 

suggested. The Background of the Invention explains that the problem solved by the invention 

was to prevent the separation of the bond between the impression preform and base under the 

shear forces applied to the device during clenching and bruxing. (Col. 1, ll. 53-62.) The body of 

the patent emphasizes this as well, noting that “the surface 38 of the base over which the 

impression preform is molded” can be coated or textured to promote bonding. (Col. 10 at ll. 39-

51.) 

The Summary of Invention states that an objective of the invention is to solve the

problem of separation. (Col. 2, l. 65 – Col. 3, l. 4.) See CVI/Beta Ventures, Inc., 112 F. 3d at 

1160. Placing the base in the mold cavity and molding the impression preform over its entire 

upper surface to create a better unitary bond is part of the solution. (Col. 5, at ll. 1-12.) Every 

example provided does just this and emphasizes the strength of the resultant bond. As stated in 

relation to Example No. 1:

The ELVAX® 150 EVA was heated to a recommended molding 

temperature above its melting point and injection molded into an occlusal 

appliance mold cavity over the molded base positioned within the mold 

cavity. The unitary interocclusal appliance removed from the mold cavity 

exhibited a high adhesion bond between the base and the molded over 

impression preform, both before and after fitting. (‘051 patent, col. 5, ll. 

53-57.) 

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Virtually identical language is used in every other example. (Col. 6, ll. 44-50; Col. 7, ll. 

29-36; Col. 8, ll. 16-23; Col. 9, ll. 9-14 and Col. 9, l. 64 – Col. 10, l. 3.)

The verb form of the term “molding” is most relevantly defined as “to fit the contours 

of.” (Sieczk. Decl. at Ex. C.) Here, the heated resin fits closely to the entire upper surface of 

the appliance base by following the contours of the base to form a stress-resistant unitary 

interocclusal appliance. Furthermore, the adverbial use of the word “over” is consistent with the 

dictionary definition of “so as to cover, conceal or affect the whole surface or expanse.” (Sieczk. 

Decl. at Ex. C.)

The PTO Examiner’s Reasons for Allowance support DenTek’s construction as a matter 

of law. (See IV. B. supra.) The only language in claim 17 that relates to the Examiner’s 

Reasons For Allowance is the phrase “molding over the base an impression preform.” The 

Examiner’s statement of reasons for allowance, included the statement that the prior art did not 

show “impression material bonded to the base,” and that “the impression material has a pilot 

channel having a generally planar face and a pair of space (sic) peripheral walls.” (Sieczk. Decl. 

at Ex. D, page 55.) That pair of spaced walls is formed only because the impression perform 

material completely covers the base and is molded over the walls over the base. Otherwise 

stated, the impression material has spaced peripheral walls that sit over the walls of the base, as 

well as a pilot channel that sits over the rest of the base, so that the entire surface of the base is 

bonded to the impression preform to provide a strong unitary bond. (See, e.g., Fig. 5.) DenTek’s 

view of the meaning of the claim language is the view the Examiner took in stating his Reasons 

For Allowance, a view that controls as a matter of law. Inverness Med. Switz. Gmbh, 309 F. 3d 

at 1380; Koepnick Med., 162 Fed. Appx. at 971. 

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Medtech’s construction is circular and unhelpful. It should be noted that Medtech, in its 

construction of the term “an impression preform,” describes the preform as “a formable material 

overlying the base,” not “a formable material overlying a part or a portion of the base.” 

Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

an impression preform a hardened resin structure 

containing a channel with 

curving sides and a flat 

bottom, and a footing that 

extends from a horizontal 

upper surface of the base to the 

channel face

a formable material 

overlying the base

DenTek’s construction attempted to conform to the Reasons for Allowance and the 

written description contained in the ‘051 patent, but might be more precisely stated as a 

hardened resin structure having spaced peripheral walls that may be softened to conform to the 

shape of the maxillary dentition and encase it during self-fitting. See ‘051 patent at Col. 3, ll. 64-

67; and Col. 4, ll. 55-58. To fit the maxillary dentition impression, the preform has a channel 

defined by sloping (i.e., curving) peripheral (i.e., side) walls and a planar face (i.e., a flat bottom)

(‘051 patent, col. 2, ll. 8-13) and a footing extending from the flat bottom to the top of the 

appliance base. (‘051 patent, col. 2, ll. 8-9.)

In the Reasons for Allowance, the Examiner stated, in relation to claim 17, that the prior 

art did not show impression material bonded to the base where the impression material has “a 

generally planar face and a pair of space[d] peripheral walls.” The Examiner’s interpretation, 

which the patentee did not dispute, is now controlling. The impression perform must, as a matter 

of law, include a pair of spaced peripheral walls. Inverness Med. Switz. GmbH, 309 F.3d at 

1380.

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23

The term “formable material” is not present in the claim or the written description of the 

‘051 patent, and does not have any art-recognized meaning such that it aids in the construction of 

the phrase.

Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

comprising an ethylene vinyl 

acetate copolymer 

a single type of heteropolymer 

containing ethylene 

hydrocarbons interspersed with 

acetate groups, which does not 

include a mixture of two 

different types of such 

heteropolymers 

a resin made of copolymers 

of ethylene vinyl acetate

The term “ethylene vinyl acetate copolymer” is not specifically defined in the ‘051 

patent. A copolymer is defined as a polymer composed of polymer chains made up of two or 

more chemically different repeating units (i.e., monomers) that can be in different sequences. 

(Sieczk. Decl. at Ex. B.) In ethylene vinyl acetate, the monomers are ethylene hydrocarbons and 

acetate groups.

The written description of the ‘051 patent indicates that “[s]uitable resins for employment 

as the impression preform include an ethylene vinyl acetate (EVA) copolymer available from the 

Du Pont under the trademark ELVAX® having a vinyl acetate content of at least 25%,” and that 

a “preferred EVA copolymer is ELVAX®150 having a 33% vinyl acetate content by weight, a 

Vicat softening temperature of 36oC and a Shore A hardness of 73.” (‘051 patent, col. 5, ll. 12-

19.) The Summary of Invention is to the same effect. (‘051 patent, col. 2, ll. 36-41.)

All that the patent describes as suitable and all that the patent encompasses is a single 

type of ethylene vinyl acetate heteropolymer and not a mixture of two different types of such 

heteropolymers.

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Term or Phrase to be Construed DenTek’s Construction Medtech’s Construction 

having approximately 30% by 

weight vinyl acetate.

having at least 25.0% by 

weight vinyl acetate but not 

more than 33.0% by weight 

vinyl acetate 

the resin has approximately 

30% by weight vinyl 

acetate

The Summary of the Invention (‘051 patent at Col. 2, ll. 5-6) and the Abstract specify 

that the resin from which the impression preform is molded is to be “approximately 30% by 

weight vinyl acetate.” The patent does not expressly define the range set by the term 

“approximately.” However, the ‘051 patent sets the absolute minimum VA content at 25% by 

weight. (Id. at Col. 5, ll. 13-16.) The patent also specifies that a single EVA-containing resin, 

100% ELVAX®150, which is claimed in the ‘051 patent to be 33% VA by weight (e.g., ‘051 

patent, col. 5, ll. 13-17) is preferred. No higher percentage is suggested or mentioned and, in 

actuality, the VA content of ELVAX®150 is stated by the manufacturer to be 32% VA by 

weight. (Sieczk. Decl. at Ex. E.)

According to the specification, “approximately 30% by weight vinyl acetate” 

encompasses a range having a minimum of 25.0% by weight vinyl acetate, and a maximum of 

33.0% by weight vinyl acetate. The prior art supports this view since the ‘363 patent is directed 

to an interocclusal device with an impression preform in which the percentage by weight of vinyl 

acetate is preferably greater than 33% (see III. B., supra) while the percentage by weight of vinyl 

acetate disclosed by and claimed in the ‘051 patent is 33% or less. Both the Summary of the 

Invention and the Abstract chose to characterize the invention as a VA content of “approximately 

30%,” and not “approximately 33%.”

Furthermore, expanding the scope of the term “approximately 30% by weight” beyond 

the range of 25% to 33% would leave the claims insolubly ambiguous as to how much vinyl 

acetate could be present without infringing the claim. The public would be left to guess as to the 

Case 7:07-cv-03304-KMK-LMS Document 16 Filed 07/13/2007 Page 28 of 30
25

scope of the claims and the patentee would be permitted to expand the scope of the claims 

indefinitely. Such a construction runs contrary to the notice function of claims and would render 

the claim invalid under the second paragraph of 35 U.S.C. § 112. Athletic Alternatives, 73 F.3d 

at 1581; Amgen, 314 F.3d at 1342. The language “approximately 30%” is properly construed so 

as to conform to the range expressly called out in the specification of the patent – 25% to 33%, 

and no further. Evans Med. Ltd., 11 F. Supp. 2d at 353, aff’d, 1999 U.S. App. LEXIS 18436 

(Fed. Cir. August 9, 1999).

VI. CONCLUSION

For all the reasons stated, Dentek respectfully requests that each of its proposed 

constructions be adopted.

Dated: July 13, 2007 PROSKAUER ROSE LLP

By: s/Alan Federbush

James H. Shalek 

Alan Federbush 

1585 Broadway

New York, New York 10036-8299

(212) 969-3000 (phone)

(212) 969-2900 (fax)

Gregory J. Sieczkiewicz

1 International Place

Boston, MA 02110-2600

(617) 526-9734 (phone)

(617) 526-9899 (fax)

Attorneys for Defendant

DenTek Oral Care, Inc. 

Case 7:07-cv-03304-KMK-LMS Document 16 Filed 07/13/2007 Page 29 of 30
CERTIFICATE OF SERVICE

I hereby certify that on July 13, 2007, I caused a true and correct copy of the

MEMORANDUM OF DEFENDANT DENTEK ORAL CARE, INC. ON 

CONSTRUCTION OF CLAIM 17 OF THE ‘051 PATENT to be served upon the 

following parties by mail:

Attorneys for Plaintiff Medtech Products, Inc.:

Karl Geercken

ALSTON & BIRD LLP

90 Park Avenue

New York, NY 10016

 AND

W. Edward Ramage

BAKER, DONELSON, BEARMAN

 CALDWELL & BERKOWITZ, P.C.

Commerce Center, Suite 1000

211 Commerce Street

Nashville, TN 37201

Attorneys for Consolidated Defendant Power Products, Inc.:

Kathy Dutton Helmer

Kirkpatrick & Lockhart Preston Gates Ellis, LLP 

One Newark Center, 10th Floor 

Newark, NJ 07102 

 s/Alan Federbush

Alan Federbush

Case 7:07-cv-03304-KMK-LMS Document 16 Filed 07/13/2007 Page 30 of 30