On August 21, 2014, ALJ Thomas B. Pender issued Order No. 9 construing the disputed claim terms of the asserted patent in Certain Earpiece Devices Having Positioning and Retaining Structure and Components Thereof (Inv. No. 337-TA-912).

By way of background, this investigation is based on a February 26, 2014 complaint filed by Bose Corp. ("Bose") alleging violation of Section 337 by Monster, Inc., Monster, LLC, and Monster Technology International, Ltd. (collectively, "Monster") by way of importation into the U.S. and sale of certain earpiece devices having positioning and retaining structure and components thereof that infringe one or more claims of U.S. Patent No. 8,311,253.  See our February 27, 2014 and March 31, 2014 posts for more details on Bose's complaint and the Notice of Investigation, respectively. 

In the Order, ALJ Pender first addressed the "anatomical terms," which comprised the following terms: "concha of a user's ear," "fit inside the user's ear canal," "antihelix," and "user's outer ear."  Bose argued that the claim terms require no specific construction. Monster, however, asserted constructions for each of the anatomical claim terms.  ALJ Pender held that the terms require no specific construction and, therefore, should take on their plain and ordinary meaning.  ALJ Pender rejected Monster's proposed constructions because they imported limitations that were unsupported by the patent specification.

ALJ Pender next addressed the "design-based terms," which comprised the following terms: "the body being configured to fit within the concha of a user's ear," "fit inside the user's ear canal," "configured to rest against and apply outward pressure to the antihelix," "configured to mechanically and electronically couple the earpiece to another device."  Bose argued that the terms do not require construction. Monster asserted that the terms require the recited functions to be "actively" performed.  ALJ Pender held that the design-based terms should take on their plain and ordinary meaning.  ALJ Pender rejected Monster's proposed constructions because the specification did not support the inclusion of a user action.

ALJ Pender then addressed the remaining two claim terms, "configured to rest against and apply outward pressure to the antihelix" and "the positioning and retaining structure including a member extending from the body."  As to the first term, ALJ Pender held that the term "outward" should mean "along the Z-axis" because the construction is supported by the specification agreed to by both parties.  The parties further disputed whether "along the Z-axis" meant in the direction away from the head or away from the ear.  ALJ Pender decided to leave this question for his final initial determination, at which time he will provide a construction if it turns out that some controversy turns on resolution of this claim construction question.  Regarding the second claim term, ALJ Pender agreed with Bose and held that the term should take on its plain and ordinary meaning. ALJ Pender disagreed with Monster's proposed construction which imported a requirement that the "member" include "at least an outer leg and an inner leg."  ALJ Pender noted that the specification did discuss the importance of the two legs; however, ALJ Pender held this was just the 'best mode" and not an intent by the inventor or limit the invention to a two leg design.