In Kitsch LLC v. Deejayzoo, LLC (Case No. LA CV19-02556 JAK (RAOx)) the Central District of California interpreted claims of U.S. Patent No. 10,021,930 that included terms of degree as being sufficiently definite under 35 U.S.C. § 112.
The case was initiated by Plaintiff Kitsch, who sought a judgment declaring invalidity of the ‘930 patent. The ‘930 patent is owned by Defendant Deejayzoo and is directed toward an improved shower cap that reduces volume experienced by a user of the cap. Claim 1 of the ‘930 patent recites, in relevant part:
1. A covering apparatus comprising:
a unitary material;
. . .
wherein the unitary material comprises an outer layer and an inner layer;
wherein the outer layer comprises a fabric;
wherein the outer layer is water repellent;
wherein the inner layer is polyurethane[;]
. . .
and wherein the covering apparatus is a shower cap.
During claim construction, Kitsch argued to the Court that claim 1 was indefinite under 35 U.S.C. § 112 and could not be construed because the phrase “water repellent” was relative and failed to provide the necessary definitive metes and bounds. Specifically, Kitsch argued that all fabrics are water repellent to some degree, providing supportive extrinsic evidence indicating that all fabrics have a water repellency rating. In contrast, Deejayzoo asserted that the phrase had a plain and ordinary meaning.
The Court sided with Deejayzoo for two reasons. First, the Court pointed out the intrinsic evidence of record, including a Figure showing water beading on fabric, a description of specific types of water relent fabrics in the Specification of the ‘930 patent, and example water repellent fabric distributors provided in the Specification. Second, the Court noted that it may be technically correct that a fabric haves 0-100% water repellency, however, Kitsch failed to address how a person of ordinary skill would understand the phase and that common parlance of “water repellent” does not include such a broad definition. Ultimately, the Court found “water repellent” not indefinite and did not construct the claim to have a specific meaning.
Lessons for Practice
Like the Court’s reasoning, the lessons here are two-fold. First and foremost – when presenting an argument make sure your arguments are related to the standard the court will use. Second, when practicing patent law, whether drafting an application or arguing in front of the court, consider (and possibly articulate) the opinion or understanding of a person of ordinary skill in the art.