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Akzo appealed the district court’s grant of summary judgment of non-infringement, both literally and under the doctrine of equivalents and Dow cross-appealed the district court’s conclusion that the claims were not indefinite.  On the non-infringement issue, Akzo contends that the court erred in construing the term “pressurized collection vessel” to require accumulation.  The court agreed with the district court’s construction and rejected Akzo’s proposed construction which, instead of requiring “accumulation,” would require “gathering or receiving.” The court reasoned that such construction eliminates the “collection” part of the claim term, which requires accumulation.  Akzo further contended that, even under this construction, the district court erred by finding no infringement.  As to literal infringement, the court held that Akzo’s expert’s declaration was insufficient to create a genuine issue of material fact, because his statements were ambiguous at best as to whether accumulation occurs in Dow’s accused process.  As to infringement under the doctrine of equivalents, the court held that Akzo’s expert’s declaration failed to articulate how Dow’s accused process operates in the same way as the claim, because he failed to articulate which construction he utilized and failed to articulate how the differences between the two processes are insubstantial. Such testimony is insufficient to create a genuine issue of material fact. 

On Dow’s cross-appeal, Dow contended that the term “viscosity below 10 Pa.s” is indefinite because there is no mention of the temperature at which the measurement is made.  The court agreed with the district court that the extrinsic evidence supported the measurement being at room temperature and therefore the term was not indefinite.  Dow further contended that the dependent claims were indefinite for not specifying to which stage of the process the step applied.  The court affirmed the district court’s finding that Dow had failed to provide evidence that one of ordinary skill in the art would not have known with reasonable certainty the applicable steps.  The court further held that it was not redrafting the claims, but rather was determining how one of ordinary skill in the art would have understood the limitation.  

Akzo Noble Coatings, Inc. v. Dow Chemical Co., Case Nos. 2015-1331, -1389 (January 29, 2016); Opinion by: Lourie, joined by Reyna and Chen; Appealed From: United States District Court for the District of Delaware, Stark, J.  Read the full opinion here.

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