On February 25, 2019, District Judge Kiyo Matsumoto (E.D.N.Y.) ruled on claim construction and indefiniteness disputes in an action brought by Plaintiff Bedgear, LLC against Defendant Fredman Bros. Furniture Co., Inc. d/b/a as Glideaway Sleep Prods. Plaintiff alleged infringement by Defendant of four patents pertaining to pillow covers and bedding systems: U.S. Patent Nos. 8,646,134; 8,887,332; 9,015,883; and 9,155,408.

The parties requested the Court to adopt their agreed-upon proposals for four claim terms. The Court adopted the proposals for two of those terms. For the other two terms—"compliant fill material" and "compliant material"—the Court found that the parties had not provided any evidence for construing those terms as requested: "[fill] material that compresses when force is applied and substantially regains its original shape when the force is removed." Since these claim terms were not in dispute, however, the Court decided not to independently construe the term.

The parties also requested the Court to resolve their dispute with respect to several other claim terms. Regarding the term "gusset," the Court concluded that Plaintiff's proposal of "one or more portions of material that join the first and second panels" is inappropriately broad and redundant to other claim language. The Court also concluded that Defendant's proposal of "a generally vertically-oriented portion of a pillow between the top and bottom panels of a pillow to provide for enlargement or expansion of the pillow" is flawed because it adds an orientation and a purpose. Having found flaws with both Plaintiff’s and Defendant’s constructions, the Court went its own way and independently construed the term as "a piece or pieces of material between and separating the first and second panels, such that the first and second panels are each joined to the gusset but are not joined to each other."

Regarding the term "open cell construction," the parties agreed that the inventor defined the term in the patent specifications as "a construction having overall porosity greater than the inherent porosity of the constituent materials or inherently having high porosity." Defendant argued that this definition is indefinite because the patent specifications do not provide an objective standard for a person of ordinary skill in the art to determine what qualifies as "high porosity" with reasonable certainty. The Court reserved ruling on this dispute, concluding that it could be more aptly decided at summary judgment with the benefit of additional expert opinion.

Regarding the term "substantially greater," the Court adopted Plaintiff's proposal of "at least greater than, but preferably being at least twice greater than." The parties agreed that the inventor defined the term as such in the patent specifications, but Defendant took exception to the inclusion of a preference in the construction. The Court noted that including a term of preference or a preferred embodiment does not impermissibly limit the construction to such embodiment.

Regarding the term "said pillow is configured to have air enter the cavity through pores in the first and second panels and have air exit the cavity through pores in the gusset," Plaintiff proposed a construction that only slightly modifies the claim term: "said pillow is designed to have air which enters the pillow through the first or second panels then exit the pillow through the gusset." Defendant's proposal added "some air also being allowed to exit the cavity through pores in the first and second panels and some air also being allowed to enter the cavity through pores in the gusset." Plaintiff argued, and the Court agreed, that Defendant's proposal broadly encompasses all gusseted pillows because it does not require the same air that enters the cavity through pores in the gusset to exit the cavity through pores in the first and second panels. The Court adopted Plaintiff's proposal, concluding that it reflected the purpose of the limitation, which is to enable an airflow channel that will create a cooling effect by permitting hot air from the pillow surface to escape through pores in the gusset.

Regarding the terms "pillow cover" and "a pillow disposed in the cavity," central to the parties' dispute was the proper construction of "pillow." Plaintiff proposed "a cover containing fill material," whereas Defendant contended that no construction is necessary, or that the term should be construed as "a cushion for providing support while resting or sleeping." The Court declined to construe these terms.

Regarding the terms "perimetrically bounds" and "perimetrically bounding," the Court adopted Plaintiff's proposal of "shares the perimeters of" over "forms [or forming] the perimeter of." The Court agreed with Plaintiff that the first or second panels of a pillow have their own perimeters, defined by their edges, and that the gusset therefore cannot be said to "form" the perimeter of the panels.

Case: Bedgear, LLC v. Fredman Bros. Furniture Co., No. 15-cv-6759, Dkt. No. 96 (E.D.N.Y. Feb. 25, 2019).