Vectair Systems Inc. v. Fresh Products, Inc.

OCR transcription for search; preserved printed pages are authoritative

CASE 0:24-cv-01454-JMB-ECW
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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
Vectair Systems Inc.,
Case No. 24-cv-01454 (JMB/ECW)
Plaintiff and Counterclaim Defendant,
ORDER V.
Fresh Products, Inc.,
Defendant and Counterclaimant.
Plaintiff and Counterclaim Defendant Vectair Systems Inc. ("Vectair") is a manufacturer and supplier of urinal screens for restrooms. (Dkt. 1 17.) Defendant and Counterclaimant Fresh Products, Inc. ("Fresh Products") owns three utility patents and one design patent directed to urinal screens (collectively, "Patents in Suit"). (Id. 11 18- 25.) Vectair filed this lawsuit seeking a declaratory judgment that it has not infringed any of the Patents in Suit and that the Patents in Suit are invalid. (See id. 11 27-89.) Fresh Products denies Vectair's allegations and filed counterclaims alleging Vectair infringes the Patents in Suit. (See generally Dkt. 4 (Answer and Counterclaim); Dkt. 12 (Answer and First Amended Counterclaim).)
This case is before the Court on the parties' disputes as to the construction and invalidity of certain claims of the Patents in Suit. (See generally Dkt. 36 (Joint Claim
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

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Construction Statement); Dkt. 68 (First Amended Joint Claim Construction Statement).)
The Court resolves those disputes in this Order. 1
I. 	FACTUAL AND PROCEDURAL BACKGROUND
The three utility patents asserted by Fresh Products are U.S. Patent No. 10,145,098
(“the ʼ098 patent”), U.S. Patent No. 10,501,924 (“the ʼ924 patent”), and U.S. Patent No.
11,396,745 (“the ʼ745 patent”). The ’098 patent (Dkt. 78) claims priority to U.S.
Provisional Application No. 62/075,827, filed on November 5, 2014; the ’924 patent
(Dkt. 78-1) is a continuation of the ’098 patent; and the ʼ745 patent (Dkt. 78-2) is a
continuation of U.S. Patent No. 11,198,997 (not asserted here), which is a continuation of
the ʼ924 patent. (’098 patent, at [60]; ’924 patent, at [63]; ’745 patent, at [63].) The
parties acknowledge that as continuation patents, the ’098, ’924, and ’745 patents
(collectively, “the utility patents”) share a common specification.2 (Dkt. 68 at 4 n.2; Dkt.
69 at 13; Dkt. 79 at 6.)3 The Technical Field of the Invention of the utility patents states
that “[c]ertain embodiments discussed herein relate to restroom screens and mats, and,
1 	Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure, the parties have consented to the jurisdiction of the undersigned United States
Magistrate Judge “for claim construction and to the extent that there is summary
judgment practice as to claim construction issues that are more appropriately resolved by
way of a summary judgment motion.” (Dkt. 46; see also Dkt. 63 (order of reference).)
2 	Because the utility patents share the same specification, unless otherwise stated,
the Court cites only to the ’098 patent (Dkt. 78) when discussing the specification. For
clarity, the Court cites the relevant patents by the last three digits of the patent number
rather than by the docket entry number.
3 	Unless otherwise stated, page number citations in this Order are to the page
number assigned by CM/ECF.
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more particularly, the present inventions relate to restroom urinal screens and mats." ('098 patent, at 1:13-15 (emphasis added).)
The design patent asserted by Fresh Products is U.S. Design Patent No. D778,411 (Dkt. 78-3), filed on November 5, 2014 ("the D'411 patent"). (D'411 patent, at [22].) It claims an "ornamental design for a urinal screen, as shown and described." (Id., at [57].)
The parties agree on the following constructions for two claim terms in the utility patents. (Dkt. 68 at 2.) The Court adopts those agreed constructions because they are consistent with the claims and the intrinsic record.
Claim Term
Patent Claim(s)
Construction
"corner(s)"
'098 patent, claims 3, 4, 7-10, 19, 30, 32, 33, 37, 51, and 52
'098 and '924 patents: "an intersection of braces"
'924 patent, claims 5, 7, 21, and 28
'745 patent, claims 1, 3, and 5
'745 patent: "an intersection of sides"
"tessellation"
'098 patent, claim 20
'924 patent, claims 1, 21, 28
"A pattern of openings comprising a covering of a geometric plane without gaps or overlaps by congruent plane figures of one type or a few types"
The parties dispute the meaning of five groups of claim terms in the utility patents and also dispute whether certain of those terms are indefinite. For the reasons discussed in Section III, the Court finds that Vectair has not shown by clear and convincing evidence that any of those terms are indefinite and construes them as follows:
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Claim Term
Patent Claim(s)
Construction
"urinal screen"
'098 patent, claims 1-55
No construction, plain and ordinary meaning
"reversible urinal screen"
'924 patent, claims 1-33
'745 patent, claims 1- 20
"surface area of the frame as observed perpendicular to"
'098 patent, claims 1, 13, 15 and 48- 50
No construction, plain and ordinary meaning
"surface area of the urinal screen as observed perpendicular to"
'924 patent, claims 24 and 31
"overall surface area of the flexible frame as viewed normal to"
'745 patent, claims 1, 2, 15, and 16
"reduce splashing"
'098 patent, claims 38 and 54
No construction, plain and ordinary meaning
'924 patent, claims 21 and 28
'745 patent, claims 1 and 15
"contoured side surface"
'098 patent, claim 54
No construction, plain and ordinary meaning
"contoured upper and lower surfaces"
'924 patent, claims 1 and 21
As to the D'411 patent, Vectair makes several arguments relating to invalidity and proposes a lengthy construction for its sole claim. For the reasons stated in Section V, the Court finds that Vectair has not shown by clear and convincing evidence that the sole claim of the D'411 patent is invalid for lack of definiteness, enablement, written
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description, or ornamentality. The Court construes the sole claim of the D’411 patent as:
“The overall ornamental appearance of the urinal screen as shown in Figures 1-14.”
II. 	LEGAL STANDARD – UTILITY PATENTS
A. 	Claim Construction
“It is a bedrock principle of patent law that the claims of a patent define the
invention to which the patentee is entitled the right to exclude.” Phillips v. AWH Corp.,
415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (citation modified). It is the province of
a court, not the jury, to construe patent claims. Markman v. Westview Instruments, Inc.,
517 U.S. 370, 372, 391 (1996). When construing claims, the words of a claim “are
generally given their ordinary and customary meaning,” which is the meaning they
“would have to a person of ordinary skill in the art in question [4] at the time of the
invention, i.e., as of the effective filing date of the patent application.” Phillips, 415 F.3d
at 1312-13.
4 	Fresh Products contends that a person of ordinary skill in the relevant art would
have a bachelor’s degree in mechanical engineering and one to two years of experience
with the design or testing of splash reduction methods and devices, or, alternatively,
would have had formal education in some field other than mechanical engineering and
would have had more hands-on experience (five or more years) in the design of urinal
screens. (Dkt. 79 at 21 n.3.) Vectair argues that a person of ordinary skill in the art
would have Bachelor of Science degree in mechanical engineering or a college degree in
a technical field with at least one year of bathroom or kitchen fixture accessory or similar
product analysis, design, or manufacturing experience, or, alternatively, could be an
individual with a college degree in a non-technical field with at least 2-3 years of
experience in bathroom or kitchen fixture accessory or similar product analysis, design,
or manufacturing. (Dkt. 69 at 15-16.) The parties do not identify any term for which any
difference in their proposed persons of ordinary skill in the art matters, and the Court
concludes that there is no term for which any difference does matter. Consequently, the
Court does not make any finding as to the person of ordinary skill in the art in this Order.
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“[T]he person of ordinary skill in the art is deemed to read the claim term not only
in the context of the particular claim in which the disputed term appears, but in the
context of the entire patent, including the specification.” Id. at 1313. At times, “the
ordinary meaning of claim language as understood by a person of skill in the art may be
readily apparent even to lay judges, and claim construction in such cases involves little
more than the application of the widely accepted meaning of commonly understood
words.” Id. at 1314. At other times, “the meaning of a claim term as understood by
persons of skill in the art is often not immediately apparent,” and a court must “look[] to
‘those sources available to the public that show what a person of skill in the art would
have understood disputed claim language to mean.’” Id. (quoting Innova/Pure Water,
Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)). Those
sources include intrinsic evidence and extrinsic evidence. See Phillips, 415 F.3d at 1317
(“Although we have emphasized the importance of intrinsic evidence in claim
construction, we have also authorized district courts to rely on extrinsic evidence.”).
Intrinsic evidence consists of the patent claims, the specification (including the
figures), and the prosecution history, where the prosecution history is “the complete
record of the proceedings before the [United States Patent and Trademark Office] and
includes the prior art cited during the examination of the patent.” Phillips, 415 F.3d at
1314, 1317; see also Interactive Gift Express, Inc. v. CompuServe Inc., 256 F.3d 1323,
1331 (Fed. Cir. 2001). Extrinsic evidence is “all evidence external to the patent and
prosecution history, including expert and inventor testimony, dictionaries, and learned
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treatises.” Phillips, 415 F.3d at 1317 (quoting Markman v. Westview Instruments, Inc.,
52 F.3d 967, 980 (Fed. Cir. 1995)).
“[I]ntrinsic evidence is the most significant source of the legally operative
meaning of disputed claim language.” Interactive Gift Express, 256 F.3d at 1331
(quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); see
also Phillips, 415 F.3d at 1317 (holding that intrinsic evidence is more significant than
extrinsic evidence). Beginning with the claim language itself, “the use of a term within
the claim provides a firm basis for construing the term.” Phillips, 415 F.3d at 1314.
“Other claims of the patent in question, both asserted and unasserted, can also be valuable
sources of enlightenment as to the meaning of a claim term.” Id. In addition to the
claims: “[T]he specification ‘is always highly relevant to the claim construction analysis.
Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.’”
Id. at 1315 (quoting Vitronics, 90 F.3d at 1582). “The importance of the specification in
claim construction derives from its statutory role, requiring that the specification describe
the claimed invention in full, clear, concise, and exact terms.” Regeneron Pharms., Inc.
v. Mylan Pharms. Inc., 130 F.4th 1372, 1381 (Fed. Cir. 2025) (citation modified); see
also Robert A. Matthews, Jr., Introduction—Specification, 1 Annotated Patent Digest §
1:22 (2025) (“The specification consists of a written description of the invention used to
teach the invention and aid in interpreting the patent claims.”).
While extrinsic evidence “can shed useful light on the relevant art,” it is “less
reliable,” “is less significant than the intrinsic record in determining the legally operative
meaning of disputed claim language,” and cannot be “used to contradict claim meaning
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that is unambiguous in light of the intrinsic evidence.” Phillips, 415 F.3d at 1317-18,
1324 (citation modified); see also Regeneron Pharms., 130 F.4th at 1383. “If the
meaning of a claim term is clear from the intrinsic evidence, there is no reason to resort to
extrinsic evidence.” Seabed Geosolutions (US) Inc. v. Magseis FF LLC, 8 F.4th 1285,
1287 (Fed. Cir. 2021).
B. 	Indefiniteness
“Definiteness is a statutory requirement for patentability.” Niazi Licensing Corp.
v. St. Jude Med. S.C., Inc., 30 F.4th 1339, 1346 (Fed. Cir. 2022) (citing 35 U.S.C. § 112
¶ 2.) A patent’s specification must “conclude with one or more claims particularly
pointing out and distinctly claiming the subject matter which the inventor or a joint
inventor regards as the invention.” 35 U.S.C. § 112(b).5 “A claim is indefinite only if,
when read in light of the specification and prosecution history, it fails to inform, with
reasonable certainty, those skilled in the art about the scope of the invention.” Niazi
Licensing, 30 F.4th at 1346 (quoting Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S.
898, 901 (2014)) (citation modified)). “[I]ndefiniteness is a question of law and in effect
part of claim construction.” ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 517
(Fed. Cir. 2012). However, while a question of law, indefiniteness “can involve
5 	The Leahy-Smith America Invents Act (“AIA”) renamed 35 U.S.C. § 112 ¶ 2 as
§ 112(b). See Media Rts. Techs., Inc. v. Cap. One Fin. Corp., 800 F.3d 1366, 1371 n.1
(Fed. Cir. 2015) (citing AIA, Pub. L. No. 112–29, 125 Stat. 284 (2011)). The Patents in
Suit were filed after the date the AIA took effect (that is, after September 16, 2012), and
therefore the AIA version of § 112 applies to the Patents in Suit. See id.
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underlying factfindings based on extrinsic evidence.” Janssen Pharms., Inc. v. Teva
Pharms. USA, Inc., 97 F.4th 915, 936 (Fed. Cir. 2024).
“[A] patent is invalid for indefiniteness if its claims, read in light of the
specification delineating the patent, and the prosecution history, fail to inform, with
reasonable certainty, those skilled in the art about the scope of the invention.” Nautilus,
572 U.S. at 901. Like claim construction, a definiteness analysis evaluates a patent’s
claims in light of the claims, specification, prosecution history, and extrinsic evidence.
Id. at 911-12; see also Biosig Instruments, Inc. v. Nautilus, Inc., 783 F.3d 1374, 1381
(Fed. Cir. 2015) (“In the face of an allegation of indefiniteness, general principles of
claim construction apply.”). Any fact critical to a finding of indefiniteness must be
proven by clear and convincing evidence. Grace Instrument Indus., LLC v. Chandler
Instruments Co., LLC, 57 F.4th 1001, 1008 (Fed. Cir. 2023); see also Young v. Lumenis,
492 F.3d 1336, 1345 (Fed. Cir. 2007) (“Because a patent is presumed to be valid, the
evidentiary burden to show facts supporting a conclusion of invalidity is one of clear and
convincing evidence.”).
III. 	DISPUTED CLAIM CONSTRUCTIONS – UTILITY PATENTS
A. 	“Urinal Screen” and “Reversible Urinal Screen”
The preambles of claims 1-15, 17-21, 23-38, and 40-55 of the ʼ098 patent recite:
“[a] urinal screen comprising . . . .” (ʼ098 patent, claims 1-15, 17-21, 23-38, and 40-55
(emphasis added).) Similarly, the preambles of claims 1-19 and 21-33 of the ʼ924 patent
and claims 1-20 of the ʼ745 patent recite “[a] reversible urinal screen comprising . . . .”
(ʼ924 patent, claims 1-19 and 21-33 (emphasis added); ʼ745 patent, claims 1-20
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(emphasis added).) The parties dispute both whether the "urinal screen" and "reversible urinal screen" terms in the preambles are limiting and if they are limiting, their
construction. Their positions are set forth in the following table:
Claim Term
Patent Claim(s)
Vectair's Proposed Construction
Fresh Products' Proposed Construction
"urinal screen"
'098 patent, claims 1-55
"Urinal" is non-limiting
Plain and ordinary meaning
Alternatively: A filter, mat, grate, guard, or the like capable of allowing urine, water, and other fluid to pass through it when used in, on, or otherwise as part of a urinal, toilet, or other bathroom appliance, and a "urinal" is a vessel for receiving urine or a fixture used for urinating
If "urinal screen" is further defined, "a screen used in a urinal and through which urine passes"
"reversible urinal screen"
'924 patent, claims 1-33
"Reversible urinal" is non- limiting
Plain and ordinary meaning
'745 patent, claims 1- 20
Alternatively: "reversible" means having two finished usable sides
If "reversible" is further defined, "adapted to be reversed such that either side is usable as the top side or bottom side"
(Dkt. 68 at 4.)
1. Whether the "Urinal Screen" Preambles Are Limiting
The first dispute between the parties is whether the terms "urinal screen" and "reversible urinal screen" in the preambles are limiting, where patentee Fresh Products argues those terms are limiting and accused infringer Vectair contends they are not. (See generally Dkt. 69 at 17-19; Dkt. 79 at 12-15.)
Vectair is correct that "generally, the preamble does not limit the claims."
Georgetown Rail Equip. Co. v. Holland L.P., 867 F.3d 1229, 1236 (Fed. Cir. 2017)
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(citation modified). “A preamble is not a claim limitation if the claim body defines a
structurally complete invention and uses the preamble only to state a purpose or intended
use for the invention.” Id. (citation modified). However, a preamble may be limiting
under several circumstances. See id. Those include: if the preamble “recites essential
structure or steps”; if claims depend on the term in the preamble for antecedent basis; if
the preamble “is essential to understand limitations or terms in the claim body”; or if the
preamble “recites additional structure or steps underscored as important by the
specification.” Id. (citation modified). In other words, “a preamble is a claim limitation
if it recites essential structure or steps, or if it is ‘necessary to give life, meaning, and
vitality’ to the claim.” Poly-Am., L.P. v. GSE Lining Tech., Inc., 383 F.3d 1303, 1309-10
(Fed. Cir. 2004) (quoting Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298,
1305 (Fed. Cir. 1999)). Further, a preamble may be limiting if “there was ‘clear reliance
on the preamble during prosecution to distinguish the claimed invention from the prior
art.’” Georgetown Rail Equip., 867 F.3d at 1236 (quoting Catalina Mktg. Int’l, Inc. v.
Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002)). “Whether to treat a
preamble as a limitation is a determination resolved only on review of the entire patent to
gain an understanding of what the inventors actually invented and intended to encompass
by the claim.” Catalina Mktg. Int’l, 289 F.3d at 808 (citation modified).
Beginning with the claim language, Fresh Products argues that the preambles are
limiting because “the body of most of the claims” recites the “urinal screen” of the
preambles. (Dkt. 79 at 13.) As one example, Fresh Products relies on Claim 1 of the
ʼ098 patent, reproduced below:
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1. A urinal screen comprising:
a frame having:
a first face;
a second face opposite the first face; and
a plurality of openings extending through the frame between the first
face and the second face;
a plurality of first posts extending from the first face of the frame; and a
plurality of second posts extending from the second face of the frame;
wherein the plurality of openings occupy at least half of a surface area of the
frame as observed perpendicular to the first face of the frame when the frame
is set on a flat surface;
wherein a plurality of ends of the plurality of first posts form a base upon
which the urinal screen rests when the plurality of second posts point away
from a surface upon which the urinal screen is set;
wherein a plurality of ends of the plurality of second posts form a base upon
which the urinal screen rests when the plurality of first posts point away
from a surface upon which the urinal screen is set;
wherein, when the urinal screen is set upon a surface in a urinal such that
the first or second face of the frame is oriented toward the surface upon which
the urinal screen is set, the frame is positioned away from the surface upon
which the urinal screen is set by at least 1/3 of a thickness of the urinal
screen as measured perpendicular to the first face of the frame;
wherein at least one of the plurality of first posts extends from a perimeter
around each of said plurality of openings; and
wherein at least one of the plurality of second posts extends from a perimeter
around each of said plurality of openings.
(ʼ098 patent, claim 1 (emphases added).)
The same is true of independent claim 38 of the ’098 patent, as well as the
independent claims of the ’924 and ’745 patents, which recite a “reversible urinal screen”
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in the preamble and then refer back to the “urinal screen” throughout the body. (See ’098
patent, claim 38; ’924 patent, claims 1, 21, 28; ’725 patent, claims 1, 15.) Indeed, the
“urinal screen” is used to define structural relationships within the body of the claims.
(E.g., ’098 patent, claim 1 (reciting that the “plurality of first posts form a base upon
which the urinal screen rests when the plurality of second posts point away from a
surface upon which the urinal screen is set”); ’745 patent, claim 15 (reciting that “at least
a portion of the first plurality of protrusions can support the first face of the flexible
frame above a urinal surface when the urinal screen is placed on the urinal surface with
the first face of the flexible frame facing the urinal surface”).) In short, the body of the
claims depend on the “urinal screen” and “reversible urinal screen” terms in the preamble
and they are “essential structure” necessary to give life, meaning, and vitality to the
claims. See Catalina Mktg., 289 F.3d at 808; Poly-Am., 383 F.3d at 1309-10.
Moreover, as to each utility patent, the title is “Urinal Screen,” the Technical Field
“relate[s] to restroom screens and mats, and, more particularly, . . . restroom urinal
screens and mats,” the Summary of the Invention refers to “a urinal screen,” the
Discussion of the Related Art begins by referencing “[u]rinal screens,” and the Brief
Description of the Drawings of “the present inventions” refer to the embodiments as
“urinal screens.” (’098 patent, at [54], 1:10-3:61.) The Detailed Description of the
Inventions in each utility patent repeatedly characterizes various embodiments of the
invention as a “urinal screen.” (See generally ’098 patent, at 3:66-7:62.) All of this
buttresses the conclusion that the “urinal screen” terms in the preambles are limiting. See
Deere & Co. v. Bush Hog, LLC, 703 F.3d 1349, 1358 (Fed. Cir. 2012) (concluding that
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the phrase “rotary cutter deck” in a preamble was limiting when “[t]he title of the patent,
the summary of the invention, and every drawing describe the invention as a deck for a
rotary cutter”); Poly-Am., 383 F.3d at 1310 (concluding that the phrase “blown-film” in a
preamble was limiting when “[t]he specification is replete with references to the
invention as a ‘blown film’ liner, including the title of the patent itself”).
Vectair argues, however, that the fact that dependent claims 16, 22, and 39 of the
’098 patent recite a “urinal system” including the “urinal screen” of their respective
independent claims triggers the doctrine of claim differentiation and “emphasizes that use
in a urinal is not required by the independent claims to the urinal screen alone.”6 (Dkt. 69
at 18.) Vectair also argues that the language in the specification stating that the urinal
screen can be used in a “urinal, toilet, or other bathroom appliance” demonstrates that the
“urinal screen” terms in the preamble are non-limiting. (Id.)
In particular, the specification states:
An embodiment of a urinal screen 10 is illustrated in FIGS. 1-2. The urinal
screen 10 can be sized and shaped to fit into a urinal, toilet, or other
bathroom appliance. As illustrated, the urinal screen 10 can include a frame
14. The frame 14 can be sized and shaped to fit over all or a portion of a drain
of a toilet or urinal.
* * *
In some embodiments, the screen 10 is shaped to fit a particular urinal
or toilet.
(ʼ098 patent, at 3:67-4:15 (emphases added).)
6 	Dependent claim 20 of the ’924 patent recites a similar “urinal system.” (’924
patent, at claim 20.)
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Fresh Products responds that the above language describing these alternatives
bolsters its argument that “Urinal Screen” is limiting because the patents distinguish a
urinal from a toilet or other bathroom appliances. (Dkt. 86 at 9.) According to Fresh
Products, “Vectair’s proposal that ‘urinal’ is a ‘vessel for receiving urine or a fixture used
for urinating’ could encompass a toilet and would thus contradict the specification’s
distinction between a urinal and a toilet.” (Id. at 9-10.)
The Court first addresses Vectair’s claim differentiation argument. “The doctrine
of claim differentiation stems from ‘the common sense notion that different words or
phrases used in separate claims are presumed to indicate that the claims have different
meanings and scope.’” Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1368 (Fed.
Cir. 2005) (quoting Karlin Tech. Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 971-72
(Fed. Cir. 1999)). The doctrine is strongest “where the limitation sought to be read into
an independent claim already appears in a dependent claim,” but “only creates a
presumption that each claim in a patent has a different scope; it is not a hard and fast rule
of construction.” Id. (citation modified). Here, the Court finds that the doctrine of claim
differentiation does not require the “urinal screen” terms in the preambles to be non-
limiting; rather, the “urinal system” dependent claims differ from the “urinal screen”
independent claims in several respects, including because they require a “urinal” as well
as the antecedent “urinal screen.” (See ’098 patent, at claims 16, 22, and 39.) Indeed,
these dependent claims reinforce that the claimed urinal screen is to be used in a urinal
because they further limit it as “configured to be positioned on the bottom surface of the
urinal” or as being “placed upon the urinal surface.” (Id.)
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The Court also concludes that the specification’s statement that the urinal screen
can be sized and shaped to fit in other bathroom appliances, including a toilet, does not
overcome the repeated reliance on the “urinal screen” in the body of the claims or the
other indications in the specification supporting the conclusion that the “urinal screen”
terms in the preambles are limiting. Rather, this language confirms that a person of
ordinary skill would distinguish a urinal from a toilet or other bathroom appliance. In
sum, the intrinsic record (including the claim language) requires the conclusion that the
“urinal screen” terms in the preamble are limiting.
Moreover, as Fresh Products argues (Dkt. 79 at 13-14; Dkt. 86 at 8), the
prosecution history supports this conclusion. On June 27, 2017, the United States Patent
and Trademark Office (“PTO”) rejected claims 1 and 11-16 of the ’098 patent under 35
U.S.C. § 103 as being unpatentable over U.S. Patent Pub. No. 2014/0259344 to Muderlak
et al. in view of U.S. Patent No. 927,026 to Clayton. (Dkt. 80-6 at 2-6.) The PTO also
rejected claims 2-10 as unpatentable over Muderlak in view of Clayton, further in view of
U.S. Patent No. 4,671,976 to Vidal and claims 17-19 as unpatentable over Muderlak in
view of Clayton. (Id. at 7-8.) On September 27, 2017, Fresh Products argued in response
that it was improper to combine Clayton and Muderlak for purposes of obviousness
because Clayton was not analogous art or in the same field of endeavor as the claims or
Muderlak. (Id. at 16.) Fresh Products further argued that “[t]he field of endeavor for
both Muderlak and the present application is apparatuses for use inside of a urinal to
reduce splash and/or to screen debris from entering a urinal drain” while “Clayton, on the
other hand, discusses a floor for use in a restroom, beneath and outside of a urinal” and
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“discusses sanitary flooring.” (Id. at 18-20.) In making this argument, Fresh Products
relied in part on the following figure from Clayton:
(Id. at 19; see also Dkt. 80-7 at 2 (Clayton).) The object of Clayton’s invention was to
“obviate” unsanitary floors in “toilet rooms” by “providing a perforated floor with raised
knob or small projecting surfaces, and underneath to employ a flushing pan which
receives all of the water or urine falling upon the floor and conveys it to the trap and is
discharged so that it may be flushed out . . . .”7 (Dkt. 80-7, at 1:12-30.)
Vectair responds to this prosecution disclaimer argument in two ways. (Dkt. 84 at
7-11.) First, Vectair argues that other products similar to Clayton, such as the Britex
SUPERSTEP and SANISTEP urinals, refer to themselves as “urinals.” (Id. at 7-8; see
7 	In Clayton’s figures, the urinal is numbered as 3, the floor as 7, the projecting
knobs as 11 and 12, and the pan as 13. (Dkt. 80-7, at lines 47-63.)
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also Dkt. 78-7 (Britex publication).) Vectair also contends that statements made by Fresh
Products during the ʼ098 prosecution about Clayton do not amount to an unequivocal
disclaimer because Fresh Products’ responses to Office Actions, including its September
27, 2027 Response, contained the following “No Disclaimers or Disavowals” section at
the end:
No Disclaimers or Disavowals
Although the present communication may include alterations to the
application or claims, or characterizations of claim scope or referenced art,
Applicant is not conceding in this application that previously pending claims
are not patentable over the cited references. Rather, any alterations or
characterizations are being made to facilitate expeditious prosecution of this
application. Applicant reserves the right to pursue at a later date any
previously pending or other broader or narrower claims that capture any
subject matter supported by the present disclosure, including subject matter
found to be specifically disclaimed herein or by any prior prosecution.
Accordingly, reviewers of this or any parent, child or related prosecution
history shall not reasonably infer that Applicant has made any disclaimers or
disavowals of any subject matter supported by the present application.
(Dkt. 80-6 at 23.) According to Vectair, this renders any disavowal by Fresh Products
“equivocal” rather than “unequivocal.” (Dkt. 84 at 10-11.)
“The doctrine of prosecution disclaimer precludes patentees from recapturing
through claim interpretation specific meanings disclaimed during prosecution.” Mass.
Inst. of Tech. v. Shire Pharms., Inc., 839 F.3d 1111, 1119 (Fed. Cir. 2016) (citation
modified). “In order for prosecution disclaimer to attach, the disavowal must be both
clear and unmistakable.” Id. (citation modified). Where “the alleged disavowal is
ambiguous, or even amenable to multiple reasonable interpretations, [courts] have
declined to find prosecution disclaimer.” Avid Tech., Inc. v. Harmonic, Inc., 812 F.3d
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1040, 1045 (Fed. Cir. 2016) (citation modified); see also Genuine Enabling Tech. LLC v.
Nintendo Co., 29 F.4th 1365, 1374 (Fed. Cir. 2022) (“For a statement during prosecution
to qualify as a disavowal of claim scope, it must be so clear as to show reasonable clarity
and deliberateness, and so unmistakable as to be unambiguous evidence of disclaimer.”
(citation modified)).
Here, Fresh Products did not describe Clayton’s features without relying on those
features to distinguish the proposed claims of the application resulting in the ’098 patent.
See Computer Docking Station Corp. v. Dell, Inc., 519 F.3d 1366, 1375 (Fed. Cir. 2008)
(“Prosecution disclaimer does not apply, for example, if the applicant simply describes
features of the prior art and does not distinguish the claimed invention based on those
features.”). Fresh Products relied on the fact that Clayton’s invention was for “a floor for
use in a restroom, beneath and outside of a urinal,” while the claims presented to the
PTO were directed to an invention for “use inside of a urinal.” (Dkt. 80-6 at 20.) In
doing so, Fresh Products disclaimed certain scope insofar as the claimed “urinal screen”
is not for use outside of a urinal. This is reinforced by the Interview Summary of a May
10, 2018 interview between the patent examiner and the applicant’s representative,
during which they agreed that “Clayton discloses a floor, not a urinal screen.” (Id. at 24.)
The Court finds Vectair’s reliance on the “No Disclaimers or Disavowals” section
similarly unpersuasive. To the extent Vectair argues this language is intended to preclude
a court from finding prosecution disclaimer, the Court has serious doubts as to whether a
patentee can avoid such a finding in this manner. More importantly, when read in
context, the “No Disclaimers or Disavowals” section only seeks to make clear that
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20
concessions made by the applicant to obtain claims during that prosecution do not
preclude the applicant from seeking patent protection for other subject matter “supported
by the present application” in another prosecution. The Court finds this language does
not render equivocal Fresh Products’ disclaimer of uses outside of a urinal, particularly
given the language distinguishing Clayton in the Response and the patent examiner’s
acceptance of this distinction (as noted in the Interview Summary).
Finally, Vectair relies on extrinsic evidence establishing “that a ‘urinal screen’ is
usable in sinks or other non-urinal fixtures with drains.” (Dkt. 69 at 18.) The Court is
not persuaded, including because such extrinsic evidence is less significant than and
cannot overcome the intrinsic evidence supporting the conclusion that the “urinal screen”
recited in the preambles is limiting. See Interactive Gift Express, 256 F.3d at 1331;
Phillips, 415 F.3d at 1317.
For all of these reasons, the Court finds that the “urinal screen” terms in the
preambles are limiting.
Vectair also argues that the word “reversible” in the preamble is not limiting
because it merely “extols a usage benefit rather than reciting a structural element of the
claimed apparatus.” (Dkt. 69 at 18; see also Dkt. 84 at 11.) The Court disagrees. For
example, claim 1 of the ’924 patent claims a “reversible urinal screen” where the last
three limitations recite:
when the reversible urinal screen is placed upon the urinal surface in a
first orientation, a first plurality of tips of the plurality of posts support the
plurality of braces above the urinal surface, and a second plurality of tips of
the plurality of posts are positioned above the plurality of braces, and
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21
when the reversible urinal screen is placed upon the urinal surface in a
second orientation, the second plurality of tips of the plurality of posts
support the plurality of braces above the urinal surface, and the first plurality
of tips of the plurality of posts are positioned above the plurality of braces,
and
wherein at least some of the plurality of braces comprise contoured
upper and lower surfaces to deflect urine when the reversible urinal
screen is placed upon the urinal surface in either of the first or second
orientations.
(’924 patent, claim 1.)
This language (and similar language in the other claims directed to a “reversible
urinal screen”) clearly links structural elements—the plurality of posts and their tips as
supporting braces having contoured upper and lower surfaces—to the fact that the urinal
screen deflects urine when “placed upon the urinal surface in either of the first or second
orientations.” This confirms the limiting nature of the “reversible” term in the preamble.
Finally, other district courts have found that the term “urinal screen” in the
preamble was limiting because it was necessary to give meaning to the claims. (Dkt. 80-
8 at 3-4; Dkt. 80-9 at 5.) While not binding authority, they support the Court’s
independent conclusion based on the arguments presented in this action that these
preamble terms are limiting. See NUTech Ventures v. Syngenta Seeds, Inc., 984 F. Supp.
2d 957, 967 (D. Neb. 2013) (“Therefore, although prior claim construction rulings with
respect to the same patent-in-suit may not be binding on the Court, they will generally be
entitled to reasoned deference under the broad principals [sic] of stare decisis and the
goals articulated by the Supreme Court in Markman, even though stare decisis may not
be applicable per se.” (citation modified)).
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2. 	Claim Construction
Having found that the “urinal screen” and “reversible urinal screen” terms in the
preambles are limiting, the Court turns to their claim construction. Fresh Products argues
that the terms are straightforward and easy to understand such that there is no need for the
Court to impose a definition beyond their ordinary meaning. (Dkt. 79 at 15-16.) Vectair
contends that its proposed constructions are appropriate because they are “adapted from
the specification and general dictionaries” and points out that the utility patents describe
fluids other than urine (water, discarded beverages, etc.) passing through such screens.
(Dkt. 69 at 18-19.) Vectair also seeks a construction of “reversible” as meaning “having
two finished usable sides.” (Id. at 17.)
As to the term “urinal screen,” at times, claim construction “involves little more
than the application of the widely accepted meaning of commonly understood words.”
Phillips, 415 F.3d at 1314. This is one of those times. The Complaint states that
“[u]rinal screens are widely used as air fresheners and to prevent debris from being
flushed down a urinal drain.” (Dkt. 1 ¶ 8.) This supports the conclusion that persons of
ordinary skill in the art understand what a “urinal screen” is. Indeed, Vectair’s marketing
materials use the term “urinal screen.” (E.g., Dkts. 78-37, 78-38.) The Court is
reasonably confident that a jury in this case would include persons who have previously
encountered a urinal screen and sees no reason to elaborate on the meaning of a term used
to describe products that (as Vectair alleges in its Complaint) are “widely used.” See U.S.
Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) (“Claim
construction is a matter of resolution of disputed meanings and technical scope, to clarify
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23
and when necessary to explain what the patentee covered by the claims, for use in the
determination of infringement. It is not an obligatory exercise in redundancy.”).
The term “reversible” requires slightly more discussion. Fresh Products contends
that if the Court finds this term requires further construction, the Court should construe it
to mean “adapted to be reversed such that either side is usable as the top or bottom side.”
(Dkt. 79 at 16.) Vectair responds that the “top” and “bottom” sides proposed by Fresh
Products lack any explanation and, citing a reference that discusses installation of a urinal
screen on the back wall of a urinal, argues that “[s]ome urinal screens are arranged
vertically rather than horizontally,” meaning that “reversible,” standing alone, does not
justify “reading-in a horizontal arrangement limitation.” (Dkt. 69 at 19.)
The “reversible” term appears in the claims of the ʼ924 and ʼ745 patents. The
specification states:
In some embodiments, the urinal screen 10 is configured such that a plurality
of posts 22 space the frame 14 from the installation surface of a urinal or
other fixture onto which the urinal screen 10 is installed. The posts 22 space
the 	frame 	14 	from 	the 	installation 	surface 	independent 	from 	the
orientation of the urinal screen 10. For example, the second plurality of
posts 22b can form a base of the urinal screen 10 and can space the frame 14
from the installation surface when the screen 10 is installed with the second
surface 30 of the frame 14 facing the installation surface. On the other hand,
the first plurality of posts 22a can form a base of the urinal screen 10 and can
space the frame 14 from the installation surface when the screen 10 is
installed with the first surface 26 of the frame facing the installation surface.
(’924 patent, at 6:58-7:4 (emphasis added); see also ’745 patent, at 6:58-7:4 (same).)
The Abstract states: “In some embodiments, posts extend from a first face and a
second face of the frame” and Figure 5 depicts the urinal screen 10 having a frame 14
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24
with posts 22a on one face and posts 22b on the opposite face. (E.g., ’924 patent, at [57]
& Fig. 5.) The Summary of the Invention states:
 	“In some cases, the screen includes a plurality of first posts extending
from the first face of the frame. The screen can include a plurality of
second posts extending from the second face of the frame.”
 	“According to some variants, a urinal screen includes a frame. The
frame can have: a first face; a second face opposite the first face;
and a plurality of openings extending through the frame between the
first face and the second face. The urinal screen can include a plurality
of first posts extending from the first face of the frame. In some
embodiments, the urinal screen includes a plurality of second posts
extending from the second face of the frame. In some embodiments,
a plurality of ends of the plurality of second posts form a base
upon which the urinal screen rests when the plurality of first posts
point away from a surface upon which the urinal screen is set.”
(’924 patent, at 1:29-33, 2:19-31 (emphases added).)
All of this is consistent with the description of the “first orientation” and “second
orientation” of the urinal screen’s placement in the claims of the ’924 patent and the
placement of the “first face” and “second face” (described as “opposite” to each other)
relative to the “urinal surface” in the claims of the ’745 patent. (E.g., ’924 patent, at 8:6-
26, 9:44-10:11, 10:59-11:20; ’745 patent, at 7:66-67, 8:10-27, 9:27-28, 9:42-10:13.)
In sum, it is clear that the claimed reversibility corresponds to the fact that the
urinal screen has two opposite faces, where posts (or protrusions) extend from each face
and the posts on these opposing faces form a base on which the urinal screen rests when
placed in the urinal regardless of which of the opposing faces is placed on the urinal
surface. That said, given the detailed description of the structural relationship between
the various surfaces and the posts (or protrusions) in the claims themselves, it is unclear
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25
why any construction of “reversible” is necessary. To the extent Vectair proposes
“having two finished usable sides” as a construction for this term, the Court rejects this
construction because the term “finished” lacks any connection to the intrinsic record.
Finally, neither party has articulated any reason why the infringement or invalidity
analysis requires construction of “reversible.” Based on the current record, there is no
need (or good reason) to further define “reversible,” and the Court therefore construes
this term as having its plain and ordinary meaning.
B. 	“Surface Area” Terms
Claims 1, 13, 15, and 48-50 of the ’098 patent recite the term “surface area of the
frame as observed perpendicular to.” (’098 patent, claims 1, 13, 15, and 48-50.) Claims
24 and 31 of the ’924 patent recite the term “surface area of the urinal screen as observed
perpendicular to.” (’924 patent, claims 24 and 31.) Claims 1, 2, 15, and 16 of the ’745
patent recite the term “overall surface area of the flexible frame as viewed normal to.”
(’745 patent, claims 1, 2, 15 and 16.) Vectair contends these terms are indefinite and, in
the alternative, proposes certain constructions for those terms. (Dkt. 69 at 19-26; Dkt. 84
at 11-14.) Fresh Products responds that the terms are not indefinite, no construction is
needed, and, if any construction is needed, all three terms should be construed as “the
surface area of the frame as observed perpendicular to the first face when the frame is set
on a flat surface.” (E.g., Dkt. 79 at 17-22; Dkt. 86 at 12-16.) The parties’ respective
positions for the three “surface area” terms are reproduced in the following table.
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CASE 0:24-cv-01454-JMB-ECW
Doc. 119 Filed 03/09/26 Page 26 of 78
Claim Term
Patent Claim(s)
Vectair's Proposed Construction
Fresh Products' Proposed Construction
"surface area of the frame as observed perpendicular to"
'098 patent, claims 1, 13, 15, and 48-50
Indefinite
Plain and ordinary meaning
If amenable to construction:
If further defined, "the surface area of the frame as observed perpendicular to the first face when the frame is set on a flat surface"
"exposed surface area of the entire frame (but not including portions covered or overlaid by posts, protrusions, or other structures)"
Alternatively:
"the surface area of the visible portion of the frame as observed perpendicular / orthogonal / at right angles to"
"surface area of the urinal screen as observed perpendicular to"
'924 patent, claims 24 and 31
Indefinite
Plain and ordinary meaning
If amenable to construction:
"exposed surface area of the entire urinal screen"
If further defined, "the surface area of the frame as observed perpendicular to the first face when the frame is set on a flat surface"
Alternatively:
"the surface area of the visible portion of the urinal screen as observed perpendicular / orthogonal / at right angles to"
26

CASE 0:24-cv-01454-JMB-ECW
Doc. 119 Filed 03/09/26 Page 27 of 78
Claim Term
Patent Claim(s)
Vectair's Proposed Construction
Fresh Products' Proposed Construction
"overall surface area of the flexible frame as viewed normal to"
'745 patent, claims 1, 2, 15 and 16
Indefinite
Plain and ordinary meaning
If amenable to construction:
If further defined, "the surface area of the frame as observed perpendicular to the first face when the frame is set on a flat surface"
"exposed surface area of the entire flexible frame (but not including portions covered or overlaid by posts protrusions, or other structures)"
Alternatively:
"the surface area of the visible portion of the frame as observed perpendicular / orthogonal / at right angles to"
1. Indefiniteness
Vectair makes several arguments why the "surface area" terms are indefinite. First, relying on the Declaration of Richard W. Klopp, Ph.D., P.E., F.A.S.M.E., Vectair argues that the surface area terms are indefinite because "two materially different types of measurements [of the claimed surface areas] are possible, rendering the terms indefinite." (Dkt. 69 at 21-26 (citing Dkt. 72 ("Klopp Decl." or "Klopp Declaration")).) According to Vectair, this is for several reasons: (1) it is unclear whether the area being measured is the physical surface area (the "skin") of the three-dimensional urinal screen or its frame or a two-dimensional "projected" surface area (id. at 21-22); (2) the fact that some of the claimed "posts" and "protrusions" are angled makes the "measurement boundaries"
27

28
unclear because the openings in the frame will look different depending on the
viewing/observation angle (id. at 22); and (3) the “frames” recited in the ’098 and ’745
patents raise further confusion, including due to the posts/protrusions (id. at 23-26).
Fresh Products responds that the “surface area” terms are not indefinite and are not
susceptible to multiple meanings when read in light of the specification and the claim
language. (Dkt. 79 at 18-22.) According to Fresh Products, “the claims convey” that
when the urinal screen is observed perpendicular to a flat surface when placed on that flat
surface, that “the urinal screen or frame has a surface area, and the openings occupy a
given percentage of that surface area.” (Id. at 21.)
As the Federal Circuit has explained, “a claim may be invalid as indefinite when
(1) different known methods exist for calculating a claimed parameter, (2) nothing in the
record suggests using one method in particular, and (3) application of the different
methods result in materially different outcomes for the claim’s scope.” Saso Golf, Inc. v.
Nike, Inc., 843 F. App’x 291, 296 (Fed. Cir. 2021) (quoting Ball Metal Beverage
Container Corp. v. Crown Packaging Tech., Inc., No. 2020-1212, 838 F. App’x 538, 542
(Fed. Cir. Dec. 31, 2020)). With this principle in mind, the Court reproduces the “surface
area” terms below.
For the ’098 patent, the “surface area” terms in claims 1, 13, 15, and 48-50 are
reproduced below:
1. . . . wherein the plurality of openings occupy at least half of a surface
area of the frame as observed perpendicular to the first face of the frame
when the frame is set on a flat surface.
(ʼ098 patent, at 8:7-10.)
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13. The urinal screen of claim 1, wherein the plurality of openings occupy
at least 75% of the surface area of the frame as observed perpendicular to
the first face of the frame when the frame is set on a flat surface.
(ʼ098 patent, at 9:7-10.)
15. The urinal screen of claim 1, wherein perimeter structures that define the
plurality of openings occupy less than one fifth of a surface area of the
frame as observed perpendicular to the first face of the frame when the frame
is set on a flat surface.
(ʼ098 patent, at 9:14-18.)
48. The urinal screen of claim 38, wherein the plurality of openings occupy
at least half of a surface area of the frame as observed perpendicular to the
first face of the frame when the frame is set on a flat surface.
49. The urinal screen of claim 38, wherein the plurality of openings occupy
more than ⅔ of a surface area of the frame as observed perpendicular to the
first face of the frame when the frame is set on a flat surface.
50. The urinal screen of claim 38, wherein the plurality of openings occupy
at least ¾ of a surface area of the frame as observed perpendicular to the
first face of the frame when the frame is set on a flat surface.
(ʼ098 patent, at 12:19-31.)
For all of these claims in the ’098 patent, the “frame” is an element of the claimed
“urinal screen,” the “faces” are elements of the “frame,” and the “openings” extend
“through the frame between the first face and the second face.” (’098 patent, at 7:64-
8:2.)
For the ’924 patent, the “surface area” terms in claims 24 and 31 are reproduced
below:
24. . . . wherein the tessellation of openings comprise at least half of a
surface area of the urinal screen as observed perpendicular to a flat surface
when the urinal screen is placed on the flat surface.
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(ʼ924 patent, at 10:32-35.)
31. The reversible urinal screen of claim 28, wherein the tessellation of
openings comprise at least half of a surface area of the urinal screen as
observed perpendicular to a flat surface when the urinal screen is placed on
the flat surface.
(ʼ924 patent, at 12:13-16.)
For all of these claims in the ’924 patent, the claimed “reversible urinal screen”
includes a “tessellation of openings” formed by “a plurality of interconnected cells.”
(’924 patent, at 9:32-34, 10:47-49.)
Finally, for the ’745 patent, the “surface area” terms in claims 1, 2, 15, and
16 are reproduced below:
1. . . . wherein the plurality of openings occupy more than ⅓ of an overall
surface area of the flexible frame as viewed normal to a flat surface when the
reversible urinal screen is set on the flat surface with the first face facing the
flat surface and the second face facing away from the flat surface.
(ʼ745 patent, 8:28-33.)
2. The reversible urinal screen of claim 1, wherein the plurality of openings
occupy more than ⅜ of an overall surface area of the flexible frame as viewed
normal to the flat surface when the reversible urinal screen is set on the flat
surface with the first face facing the flat surface and the second face facing
away from the flat surface.
(ʼ745 patent, at 8:46-51.)
15. . . . wherein the plurality of openings occupy more than ⅓ of an overall
surface area of the flexible frame as viewed normal to a flat surface when
the reversible urinal screen is set on the flat surface.
(ʼ745 patent, 10:14-17.)
16. . . . wherein the plurality of openings occupy more than ⅜ of an overall
surface area of the flexible frame as viewed normal to the flat surface when
the reversible urinal screen is set on the flat surface.
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(ʼ745 patent, at 10:22-27.)
For all of these claims in the ’745 patent, the claimed “reversible urinal screen”
includes a “flexible frame” having first and second opposing faces where the “plurality of
openings” are “through the first face and the second face.” (’745 patent, at 7:65-8:2,
9:27-32.)
The Court begins with Vectair’s first indefiniteness argument, which is that
“surface area” terms are ambiguous because it is unclear “whether a physical or projected
‘surface area’ measurement is recited.” (Dkt. 69 at 21.) This argument is based on the
fact that a non-planar three-dimensional object (such as a three-dimensional urinal
screen) has a different physical surface area (i.e., its “skin”) than its “projected” surface
area (a two-dimensional measurement that could vary based on the viewing angle). (Id.)
The problem with this argument is that it ignores the claim language itself, which
specifies that the surface area is measured as observed and specifies the observation angle
(perpendicular), as well as other intrinsic evidence, and instead relies on Dr. Klopp’s
opinions and dictionary definitions—both of which are extrinsic evidence. (See id.)
“[T]he use of a term within the claim provides a firm basis for construing the
term.” Phillips, 415 F.3d at 1314. Here, all of the “surface area” terms state that the
surface area is as observed perpendicular (or normal)8 to a defined physical object—the
urinal screen, its frame, or a face of the frame—when the screen or frame is set on a flat
8 	The parties do not dispute that a person of ordinary skill in the art would
understand “normal” to mean “perpendicular.”
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surface. In other words, the claim language tells a person of ordinary skill in the art that
the “surface area” terms refer to what Vectair describes as a “projected” rather than a
“physical” measurement and specifies the observation angle. Moreover, the specification
is consistent with this interpretation because it states: “The openings 18 can occupy a
large percentage of the overall surface area of the frame 14 as viewed in FIG. 2,”
where Figure 2 (reproduced below) is a “top view” (i.e., perpendicular to) the urinal
screen. (’098 patent, at 4:42-43 (emphases added), Fig. 2.)
This is persuasive evidence that the “surface area” terms describe the surface area
as observed from a view perpendicular to the screen (or frame) when it is placed on a flat
surface. See Phillips, 415 F.3d at 1315 (“[T]he specification ‘is always highly relevant to
the claim construction analysis. Usually, it is dispositive; it is the single best guide to the
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meaning of a disputed term.’”) (quoting Vitronics, 90 F.3d at 1582). While the Court
could make this determination based on the intrinsic evidence alone, the Declaration of
Randy Hurd, Ph.D., that “[b]ased on [his] review of the claim language, specification,
and patent figures, a person of ordinary skill would understand, with reasonable certainty,
that the disputed ‘surface area’ limitations refer to a ‘projected’ or ‘two-dimensional’
surface area, as viewed in Figure 2” supports this conclusion. (Dkt. 88 (“Hurd Decl.” or
“Hurd Declaration”) ¶ 32.) In contrast, Vectair ignores the claim language and
description of Figure 2 and attempts to create ambiguity based on the Klopp Declaration
and dictionary definitions.9 (Dkt. 69 at 21.) This is unpersuasive. See Phillips, 415 F.3d
at 1324 (holding that extrinsic evidence is “less significant than the intrinsic record” and
should not be “used to contradict claim meaning that is unambiguous in light of the
intrinsic evidence”).
The claim language and specification also dispose of Vectair’s argument that it is
unclear how to account for the effect of angled posts/protrusions (shown as 22 in the
following reproduction of Figure 6) when measuring surface area.
9 	Vectair also relies on an unrelated Fresh Products patent to support its argument
that “surface area” could refer to the physical surface area. (Dkt. 69 at 21, 23 n.5 (citing
Dkt. 78-15, at 2:57-59, which states “Preferably, the protrusions 14 are located
substantially across the screen 10, thus increasing its surface area.”)); see also Dkt. 84 at
12 (same).) While this confirms that “surface area” could—as a general matter—mean a
physical (rather than projected) surface area, this extrinsic evidence has little bearing on
the meaning of the “surface area” terms in the utility patents asserted in this action. As
for Vectair’s argument relating to the “underlying provisional” (Dkt. 69 at 23 n.5), this
argument appears to be based on a theory that the frame “excludes posts/protrusions” but
the screen itself does not. Given the lack of evidentiary support that a person of ordinary
skill in the art would read the claims as such (see id. at 23-24), the Court does not give
this minimally articulated argument much weight.
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(’098 patent, at Fig. 6.) According to Vectair, the view of the openings and the frame
“could” be obscured or change depending on the observation angle if the urinal screen is
opaque. (Dkt. 69 at 22.) But this argument ignores the fact that the claim language itself
states the observation angle—it is perpendicular to the screen or frame when on a flat
surface—and that the surface area is measured based on that angle (which is also
confirmed by the specification). The surface area measurement based on other
observation angles is not relevant. Vectair also argues indefiniteness based on arguments
about what “overall surface area” means and which “faces/sides of a ‘frame’ or ‘urinal
screen’” should be measured, including whether they can be seen due to a transparent or
translucent material. (Dkt. 69 at 21-22.) These arguments appear to be based on the
alleged ambiguity of whether the measurement is physical or projected, and those
questions are resolved by the intrinsic evidence showing the surface area is measured as
observed at a perpendicular angle.
Next, Vectair asks a series of questions intended to show that the “surface area”
terms are ambiguous (and therefore indefinite), including whether the surface area of a
frame covered by a post/protrusion should be measured because the posts/protrusions
“are not unambiguously part of the frame,” whether the physical surface area of the
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35
posts/protrusions should be measured as part of the frame, and whether the frame or
urinal screen is a unitary structure. (Dkt. 69 at 23-26; see also Dkt. 84 at 12-13.) The
fact that Vectair can pose questions about how the “surface area” terms could be
interpreted falls well short of proving by clear and convincing evidence that the terms are
indefinite. See ClearOne, Inc. v. Shure Acquisition Holdings, Inc., 35 F.4th 1345, 1351
(Fed. Cir. 2022) (“ClearOne’s arguments for indefiniteness merely identify different
ways one could interpret self-similar. Just because a term is susceptible to more than one
meaning does not render it indefinite. ‘Such a test would render nearly every claim term
indefinite so long as a party could manufacture a plausible construction.’”) (quoting
Nevro Corp. v. Bos. Sci. Corp., 955 F.3d 35, 41 (Fed. Cir. 2020)). Further, many of these
questions are answered based on the intrinsic record demonstrating that the “surface area”
terms are to be measured based on observation, and they are all unsupported by
persuasive evidence (at times, by any evidence) that a person of ordinary skill in the art
would not understand how to measure the surface area of the screen or frame as recited in
the claims. Given the fact that Figure 2 and the language describing it suggests that the
relevant measurement is how much of the frame is open (see ’098 patent, at Fig. 2 &
4:42-49), and that Vectair has not shown that including or excluding the areas beneath or
hidden by posts/protrusions would “result in materially different outcomes for the claim’s
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36
scope,” Vectair has not shown that the difference in such measurements renders the
“surface area” terms indefinite. 10 See Saso Golf, 843 F. App’x at 296.
For all these reasons, the Court finds that Vectair has failed to meet its burden to
show that the “surface area” terms, “viewed in light of the specification and prosecution
history,” fail to “inform those skilled in the art about the scope of the invention with
reasonable certainty.” Nautilus, 572 U.S. at 910; see also Nevro, 955 F.3d at 41 (“The
test is not merely whether a claim is susceptible to differing interpretations. Such a test
would render nearly every claim term indefinite so long as a party could manufacture a
plausible construction.”).
2. 	Claim Construction
The Court turns to construction of the “surface area” terms. Vectair’s primary
proposed constructions use the term “exposed surface area” of the frame, two of those
primary constructions exclude the frame’s surface area to the extent it is “covered or
overlaid by posts, protrusions, or other structures,” and Vectair’s alternative constructions
similarly refer to the “visible portion of the frame.” (Dkt. 69 at 19-20.) In other words,
Vectair seeks a construction that expressly excludes areas directly underneath or in the
“shadow” of the posts/protrusions from the calculation of the frame’s surface area. Fresh
10 	Relying on Saso Golf, Vectair argues that it is “unclear where boundaries are
located to take a claimed measurement.” (Dkt. 69 at 20.) In Saso Golf, however, the
calculations “require[d] picking a specific point on the ‘toe’ and ‘heel’ [of a golf club
head] from which to measure,” where the definitions of “toe” and “heel” were disputed,
namely “the size, shape, and locations of these regions and where within them to begin
measurements are reasonably certain.” 843 F. App’x at 293. Here, the type of
measurement (projected) and angle (perpendicular) are ascertainable from the claims.
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Products responds that Vectair ignores the figures showing the posts “only as an outline
overlying the frame,” which Fresh Product contends show the goal of the “surface area”
terms “is to specify the portion of the frame occupied by openings.” (Dkt. 86 at 16
(citing ’098 patent, Fig. 2).) Fresh Products further argues: “It makes no sense that the
portion occupied by openings would change based on the number of posts extending
from the frame as would be the case with Vectair’s proposed construction.” (Id.)
The Court rejects Vectair’s proposed constructions because Vectair has not
identified any language in the claims or specification suggesting that the area of the frame
covered by the posts/protrusions should be excluded or the surface area should be limited
to the “visible portion of the frame.” The Court agrees with Fresh Products that the
intrinsic record suggests the relevant measurement is the observed surface area of the
openings compared to the frame’s surface area. Vectair also has not explained how its
proposed constructions would “clarify” or are “necessary to explain what the patentee
covered by the claims, for use in the determination of infringement.” See U.S. Surgical,
103 F.3d at 1568. The Court finds that no construction of the “surface area” terms is
necessary and gives them their plain and ordinary meaning.
C. 	“Reduce Splashing” Terms
Claims 38 and 54 of the ’098 patent recite “such that the posts positioned between
the frame and the surface upon which the urinal screen is set can reduce splashing” and
“wherein the plurality of openings comprise a contoured side surface to further reduce
splashing,” respectively. (’098 patent, at 11:26-28, 12:49-52.) Claims 21 and 28 of the
’924 patent recite “at least a portion of the plurality of posts between the [first/second]
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plurality of tips and plurality of braces can reduce splashing." ('924 patent, at 9:53-56, 9:66-7:10:2, 11:5-7, 11:14-17.) Claims 1 and 15 of the '745 patent recite "such that the [first/second] plurality of protrusions can reduce splashing on a user of the urinal." ('745 patent, at 8:16-18, 8:24-26, 10:2-3, 10:10-12.) Vectair argues that these "reduce splashing" terms are indefinite, and Fresh Products argues that they are not indefinite and should be given their plain and ordinary meaning. (Dkt. 68 at 11-14.) Fresh Products further contends that, "If a term is construed, it should be the entire term in which 'reduce splashing' appears." (Id. at 11.) The parties' positions are summarized in the following table.
Claim Term
Patent Claim(s)
Vectair's Proposed Construction
Fresh Products' Proposed Construction
Vectair:
'098 patent, claims 38 and 54
Indefinite
Plain and ordinary meaning
"reduce splashing"
'924 patent, claims 21 and 28
Fresh Products:
'745 patent, claims 1 and 15
The entire term in which "reduce splashing" occurs
1. Indefiniteness
To put Vectair's indefiniteness arguments in context, the "reduce splashing" terms are "terms of degree" in that they "necessarily call[] for a comparison against some baseline." Liberty Ammunition, Inc. v. United States, 835 F.3d 1388, 1395-96 (Fed. Cir. 2016), cert. denied, 581 U.S. 940 (2017). Vectair's indefiniteness arguments can be
38

39
summarized as follows: (1) “reduce splashing” is indefinite because there is no objective
baseline or benchmark for comparison (in other words, it is unclear how one would know
if splashing is reduced) and (2) different tests for whether splashing is reduced may yield
different results. (Dkt. 69 at 26-31; Dkt. 84 at 14.) Fresh Products responds that a person
of ordinary skill in the art 11 would understand that the “features of the claimed urinal
screen can reduce splashing associated with the use of a urinal” (Dkt. 79 at 24), further
clarifying that the “features” are the posts and protrusions of claims 38 of the ’098 patent,
claims 21 and 28 of the ’924 patent, and claims 1 and 15 of the ’745 patent; and the
contoured side surface of claim 54 of the ’098 patent (Dkt. 86 at 16). Fresh Products also
responds that a dispute over test methods does not support a conclusion of indefiniteness.
(Id. at 19.)
Beginning with Vectair’s first argument, “[t]erms of degree are problematic if
their baseline is unclear to those of ordinary skill in the art.” Liberty Ammunition, 835
F.3d at 1395. “[C]laims having terms of degree will fail for indefiniteness unless they
‘provide objective boundaries for those of skill in the art’ when read in light of the
specification and the prosecution history.” Id. at 1396 (quoting Interval Licensing LLC v.
AOL, Inc., 766 F.3d 1364, 1370-71 (Fed. Cir. 2014)). However, “a patentee need not
define [the] invention with mathematical precision in order to comply with the
definiteness requirement.” Sonix Tech. Co. v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377
11 	Vectair takes issue with Fresh Products’ inclusion of “one to two years of
experience with the design or testing of splash reduction methods and devices” in its
definition of a person of ordinary skill in the art. (See Dkt. 84 at 5.) But Vectair does not
elaborate on why this matters, so the Court does not decide this issue in this Order.
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(Fed. Cir. 2017) (quoting Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d 1374, 1384
(Fed. Cir. 2005)). Moreover, what can be seen by the normal human eye” may provide
“an objective baseline through which to interpret the claims.” Sonix Tech., 844 F.3d at
1378.
Liberty Ammunition is instructive. In Liberty Ammunition, the Federal Circuit
addressed a claim for a bullet with a “reduced area of contact.” 835 F.3d at 1395-96.
Noting that the term “reduced area of contact” called for a comparison, the Federal
Circuit acknowledged that the claim did not provide any clues “as to what the area of
contact has been reduced from.” Id. at 1396 (quoting Liberty Ammunition, Inc. v. United
States, 119 Fed. Cl. 368 (2014)), aff’d in part, vacated in part, rev’d in part, 835 F.3d
1388 (Fed. Cir. 2016). The Federal Circuit turned to the specification and determined
that a specific bullet, referenced in the specification, was the proper point of comparison,
avoiding indefiniteness. Id.
Here, the claim language recited above shows that the “reduced splashing” results
from specific claimed structure, namely the posts, protrusions, and contoured surfaces.
The specification further states as to the contoured surfaces:
In some cases, the sides 42 and/or corners 46 of the openings 18 have
contoured (e.g., convex) upper and/or lower surfaces. The contoured surfaces
of the sides 42 and corners 46 can deflect fluid (e.g., urine) to reduce splash
in the urinal, toilet, or other environment in which the urinal screen 10 is
installed.
(’098 patent, at 5:4-9.) In other words, sometimes the openings have sides or corners (or
both) that have contoured upper and/or lower surfaces which can deflect fluid to reduce
splashing.
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As to the posts, the specification states that in some embodiments, the screen is
configured such that a plurality of posts space the frame from the surface where the urinal
is installed and:
In some embodiments, the posts 22 positioned between the frame 14 and the
installation surface can reduce splashing in the urinal by deflecting urine or
other fluids which pass between the frame 14 and the installation surface
(e.g., fluid that passes through the openings 18 or around the perimeter of the
frame 14).
(’098 patent, at 6:58-60, 7:14-19.) In other words, sometimes the urinal screen includes
posts between the frame and the installation surface that can reduce splashing.
This language indicates that the baseline or comparator for the “reduce splashing”
terms is a urinal screen not having the structure required by the claims to reduce
splashing, i.e., posts, protrusions, or contoured surfaces of the openings, depending on the
claim. For example, a urinal screen having posts positioned as claimed would have
reduced splashing compared to a screen without such posts. This is confirmed by the
opinions of Dr. Hurd, reproduced below.
36. I disagree that a [person of ordinary skill in the art] would not understand
the “standard against which the reduction is measured.” Each of the above
limitations recites a feature that can reduce splashing. A [person of ordinary
skill in the art] would understand that each claimed feature can “reduce
splashing” as compared to without such feature.
37. For example, a [person of ordinary skill in the art] would understand that
the claimed posts can reduce splashing—relative to without such posts—
because the claimed posts (1) space the urinal screen from the urinal, which
can reduce splashing caused by urine directly impinging the urinal surface,
(2) break up the impinging stream of urine impacting the urinal screen from
above, and (3) deflect urine that has passed through the openings of the urinal
screen. Thus, the claimed posts can reduce splashing.
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38. Similarly, a [person of ordinary skill in the art] would understand that the
claimed “contoured” surface can reduce splashing—relative to without such
contoured surface—because the claimed contoured surface (1) can reduce
the area perpendicular to the impinging stream of urine impacting the urinal
screen and (2) can reduce the angle at which the impinging stream impacts
the urinal screen. Thus, the claimed contoured surface can reduce splashing.
(Dkt. 88 ¶¶ 36-38.)
Vectair’s evidence to the contrary is the opinion of Dr. Klopp that:
Fresh Products opines that the term “reduce splashing” should be construed
as its plain and ordinary meaning. This term appears in ’098 Patent claims
38-55, ’924 Patent claims 21-33, and ’745 Patent, all claims. I disagree
because this construction is over-broad and would not help a trier of fact
understand the scope of the claims. In particular, “reduce splashing” is
indefinite because it places no limits on the amount of reduction required to
meet the claim, nor does it define the standard against which the reduction is
measured.
(Dkt. 72 ¶ 45.)
Dr. Klopp’s conclusory opinion is insufficient to support a finding of
indefiniteness for several reasons. First, “a claim is not indefinite just because it is
broad.” Niazi Licensing, 30 F.4th at 1347. Second, Dr. Klopp does not address the
specification and claims or explain why, in view of the relevant language, a person of
ordinary skill in the art would not understand that the comparator is the absence of the
claimed structure that reduces splashing. Third, neither Vectair nor Dr. Klopp addresses
the fact that Vectair itself performs splash testing. (See Dkt. 90 (email discussing testing,
including “Splash Back Reduction Testing”); Dkt. 90-1 (test results documenting
“SPLASH BACK” of various products).) While this is extrinsic evidence, it still
suggests that persons of ordinary skill in the art understand what it means to reduce
splashing in the context of the utility patents.
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The Court turns to Vectair’s second indefiniteness argument, which basically
consists of “hypothetical[s]” intended to show that different tests could result in different
measures. (Dkt. 69 at 29-31.) None of these hypotheticals—which are overwhelmingly
attorney argument—appear to be based on the experience of a person of ordinary skill in
the art. Moreover, “disagreements with regard to testing are more appropriately
addressed in the context of an infringement analysis.” 3M Innovative Props. Co. v. GDC,
Inc., 109 F. Supp. 3d 1115, 1121 (D. Minn. 2015) (collecting cases). The fact that
Vectair can imagine a variety of tests that could result in different measurements of
splashing is insufficient to show indefiniteness. Vectair also attempts to create ambiguity
by positing a conflict between “acceptable deflection” of fluid and “undesired splashing.”
(See Dkt. 69 at 28.) The Court sees no conflict, as the claims do not require “acceptable
deflection.” For all these reasons, the Court concludes that Vectair has not met its burden
of clear and convincing evidence to show the “reduce splashing” terms are indefinite.
2. 	Claim Construction
Turning to construction of the “reduce splashing” term, Fresh Products proposes
no construction other than “plain and ordinary meaning.” Vectair did not propose any
construction as an alternative to its indefiniteness arguments. The Court concludes that
the “reduce splashing” terms are readily understandable to a person of ordinary skill in
the art, and need not be construed. See U.S. Surgical, 103 F.3d at 1568 (“Claim
construction is a matter of resolution of disputed meanings and technical scope, to clarify
and when necessary to explain what the patentee covered by the claims, for use in the
determination of infringement. It is not an obligatory exercise in redundancy.”).
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D. "Contoured" Terms
Claim 54 of the '098 patent recites a "contoured side surface." ('098 patent, at 12:50.) Claims 1 and 21 of the '924 patent recite "contoured upper and lower surfaces." ('924 patent, at 8:22-26, 10:8.) Vectair asserts that these terms are indefinite and that claim 54 is in "improper dependent form under § 112(d)." (Dkt. 68 at 14.) In the alternative, Vectair proposes constructions (set forth in the following table) for these terms. (Id.) Fresh Products argues that the terms are not indefinite and that no construction is necessary. (Id.) In the alternative, Fresh Product proposes "non-planar"
as a construction for "contoured." (Id.)
Claim Term
Patent Claim(s)
Vectair's Proposed Construction
Fresh Products' Proposed Construction
"contoured side surface"
'098 patent, claim 54
Indefinite and/or improper dependent form under § 112(d)
Plain and ordinary meaning
If amenable to construction:
If "contoured" is further construed, "non-planar"
"when the overall urinal screen is oriented horizontally, a contoured side surface is a side-facing surface along one of the openings that is not vertically planar"
"contoured upper and lower surfaces"
'924 patent, claims 1, 21
If amenable to construction:
Plain and ordinary meaning
"when the overall urinal screen is oriented horizontally, contoured upper and lower surfaces are uppermost and lowermost surfaces of braces that are not horizontally planar"
If "contoured" is further construed, "non-planar"
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1. 	Indefiniteness
Vectair contends that the “contoured” terms are indefinite for several reasons.
First, the specification does not expressly define “contoured,” and, according to Vectair,
the specification and drawings of the utility patents and the provisional application to
which they claim priority provide no guidance. (Dkt. 69 at 32.) Then, relying on
dictionary definitions and a case construing “contoured” for an unrelated patent directed
to a kayak, Vectair argues that “contour” is defined “as a shape defined in relation to
something else.” (Id. at 33-35 & n.8 (citing Old Town Canoe Co. v. Glenwa, Inc., 229 F.
Supp. 2d 1151, 1158 (D. Or. 2002)).)12 According to Vectair, this renders the
“contoured” terms here indefinite “because urine is a liquid, and liquids have no fixed
shape but instead flow to take the shape of their container.” (Id. at 34-35.) Next, relying
on a definition of “contour” from a technical dictionary, Vectair argues that “contour”
only “refers to an inherent quality of any object” and “does not specify any particular
shape or configuration.” (Id. at 35.) Finally, Vectair points to statements made by one of
the inventors of the Patents at Issue in an email that “‘contoured’ means 3D bending of
braces of a frame when placed in a particular urinal (which depends on varying
installation conditions and screen flexibility) rather than a non-planar surface shape of
those braces” as confirming that there is no plain and ordinary meaning to “contoured.”
(Id. at 36.)
12 	The Federal Circuit found this construction was incomplete and further construed
the term as “a surface shaped to fit the outline or form of something concave or similarly
at least partially rounded.” See Old Town Canoe Co. v. Glenwa, Inc., 55 F. App’x 918,
922-23 (Fed. Cir. 2003).
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The Court begins where claim construction should begin, with the intrinsic record.
See Phillips, 415 F.3d at 1317. Claim 54 of the ’098 patent recites:
54. The urinal screen of claim 38, wherein the plurality of openings comprise
a contoured side surface to further reduce splashing on the user of the urinal
by deflecting a flow of urine.
(’098 patent, at 12:48-51.) Claims 1 and 21 of the ’924 patent similarly recite that the
“the plurality of braces comprise contoured upper and lower surfaces to deflect urine”
when the urinal screen is placed on the urinal surface. (’924 patent, at 8:22-23,10:7-8.)
From this language it is clear that the “contoured side surface[s]” of the openings and
“contoured upper and lower surfaces” of the braces have the effect of deflecting urine
and, in the case of the ’098 patent, deflecting urine to further reducing splashing.
The specification states as follows with respect to “contoured”:
In some cases, the sides 42 and/or corners 46 of the openings 18 have
contoured (e.g., convex) upper and/or lower surfaces. The contoured
surfaces of the sides 42 and corners 46 can deflect fluid (e.g., urine) to
reduce splash in the urinal, toilet, or other environment in which the urinal
screen 10 is installed.
(Dkt. 78, 5:4-9 (emphases added).)
According to Vectair, “This means some but not all embodiments are convex and
unspecified non-convex embodiments are possible.” (Dkt. 69 at 32 (citing Klopp Decl.
¶ 46).) Fresh Products does not appear to disagree that “contoured” can include “convex”
surfaces. That “contoured” surfaces include “convex” surfaces is confirmed by claims 4
and 27 of the ’924 patent, which recite:
The reversible urinal screen of claim [1/21], wherein the contoured upper
and lower surfaces comprise convex surfaces.
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(’924 patent, 8:35-37; 10:44-46 (emphasis added).) The fact that dependent claims
further specify the “contoured upper and lower surfaces comprise convex surfaces”
creates a presumption that “contoured” both includes and is broader than “convex.” See
Seachange Int’l, 413 F.3d at 1368 (“The doctrine of claim differentiation stems from the
common sense notion that different words or phrases used in separate claims are
presumed to indicate that the claims have different meanings and scope.” (citation
modified)). This intrinsic evidence suggests that “contoured” refers to a fixed shape and
includes convex shapes (which are non-planar).
However, Dr. Klopp contends: “The embodiment depicted in ’098 Patent Fig. 1
seems to show that the openings have flat side surfaces.” (Dkt. 72 ¶ 46 (emphasis added)
& Fig. 5 (citing ’098 patent, Fig. 1).) Fresh Products responds that, on the contrary,
Figures 1 and 2 depict “contoured surfaces” to reduce splash. (Dkt. 86 at 20 (citing ’098
patent, Figs. 1 & 2).) The Court reproduces Figures 1 and 2, as annotated in Fresh
Products’ brief, below.
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48
’098 patent, Fig. 1 (as annotated and cropped by Fresh Products)
Fig. 2
’098 patent, Fig. 2 (as annotated and cropped by Fresh Products)
The Court agrees that Figures 1 and 2 of the utility patents show openings having
sides (braces) that are not (as Dr. Klopp suggests) flat. This conclusion is supported by
the specification, which states:
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As illustrated in FIGS. 2 and 3, one or more of the openings 18 (e.g., cells)
can have a perimeter which includes a plurality of sides (e.g., braces) 42
and corners 46. In some cases, all or a portion of the frame 14 forms a
tessellation of openings 18 wherein a plurality of the sides 42 of the openings
18 are shared between two or more openings 18. In some embodiments, each
of the openings 18 shares at least one side and at least one corner with another
opening.
In some cases, the sides 42 and/or corners 46 of the openings 18 have
contoured (e.g., convex) upper and/or lower surfaces. The contoured
surfaces of the sides 42 and corners 46 can deflect fluid (e.g., urine) to
reduce splash . . . .
(’098 patent, at 4:63-5:8 (emphases added).)
In sum, Dr. Klopp’s opinion that Figure 1 “seems to show” flat side surfaces is
unpersuasive, as is Vectair’s argument that the specification and figures provide no
guidance as to the meaning of the “contoured” term. Rather, they instruct that
“contoured” includes convex shapes and that the contouring can deflect fluid to reduce
splashing.
Vectair’s reliance on dictionary definitions to support its indefiniteness arguments
(see Dkt. 69 at 32-35) is similarly unpersuasive. While judges are free to consult
dictionaries when construing claims, dictionaries remain extrinsic evidence that cannot
contradict the intrinsic record. See Phillips, 415 F.3d at 1317-24 (discussing role of
dictionaries in claim construction). As the Federal Circuit has explained, “[t]he main
problem with elevating the dictionary to such prominence is that it focuses the inquiry on
the abstract meaning of words rather than on the meaning of claim terms within the
context of the patent.” Id. at 1321. That problem is illustrated here. Vectair relies on
dictionary definitions, including those from Merriam-Webster (see Dkt. 78-6 at 7)—to
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support its contention that “contour” means “a shape defined in relation to something
else,” and builds an indefiniteness argument from that premise. (Dkt. 69 at 32-35 (citing
Dkt. 78-6 at 7).) In doing so, Vectair ignores another definition of “contour” in the same
dictionary stating that “contour” can mean a shape that is independent of “something
else.” (See Dkt. 78-6 at 7 (defining “contour” as “an outline especially of a curving or
irregular figure”).) The Court declines to find indefiniteness based on Vectair’s selective
reliance on dictionary definitions—whether general or technical.
Also unpersuasive is Vectair’s reliance on inventor Jeff Smith’s email discussing
alleged infringement by an entity other than Fresh Products. (See Dkt. 69 at 36; see also
Dkt. 86 at 21 (describing circumstances of email).) Vectair argues that Smith’s email
supports a meaning of “contour” that is defined in reference to something else (in the
email, the urinal surface), and also relies on this email to support its indefiniteness
arguments. But the Federal Circuit has cautioned against relying on an inventor’s
statement to invalidate claims under Section 112, stating: “It is particularly inappropriate
to consider inventor testimony obtained in the context of litigation in assessing validity
under section 112, paragraph 2, in view of the absence of probative value of such
testimony.” Solomon v. Kimberly-Clark Corp., 216 F.3d 1372, 1379 (Fed. Cir. 2000).
Indeed, inventor testimony is extrinsic evidence, and carries less weight than the intrinsic
record. See Phillips, 415 F.3d at 1317. Here, while Smith’s statement shows that
“contoured” could have a meaning other than that proposed by Fresh Products here, that
is not enough to show indefiniteness given the intrinsic record. See ClearOne, 35 F.4th at
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1351 (“Just because a term is susceptible to more than one meaning does not render it
indefinite.”).
Finally, Dr. Klopp opines that “[a]ny surface can deflect fluid.” (Dkt. 72 ¶ 46.) In
response, Dr. Hurd opined that a person of ordinary skill in the art would understand that
a contoured surface is a non-planar surface because such a surface can reduce splashing
compared to a flat, planar surface by reducing the area perpendicular to the impinging
stream of urine impacting the urinal screen and reducing the angle at which the stream
impacts the urinal screen. (Dkt. 88 ¶ 43.) Dr. Hurd cited a journal article relating to
“[s]plash-free urinals” to support this opinion. (Id. (citing Thurairajah et al., Splash-free
urinals for global sustainability and accessibility: Design through physics and
differential equations, 4 PNAS Nexus 4 (2025) (available at
https://academic.oup.com/pnasnexus /article/4/4/pgaf087/8098745 #google_vignette)).)
To the extent Vectair relies on Dr. Klopp’s opinion to show indefiniteness, the Court is
not persuaded for two reasons. First, this “any surface” argument would read the word
“contoured” out of the claims. Second, this argument ignores the language in the
specification contrasting a “generally planar or flat shape” for the frame with a shape that
is “curved or otherwise shaped in a non-planar fashion” and can “match the contours of
a urinal or toilet.” (See ’098 patent, at 6:26-30 (emphasis added).) While this discussion
relates to the frame, it is informative insofar as it distinguishes a flat or planar shape from
a curved or otherwise non-planar shape that “matches the contours” of something else.
Moreover, Dr. Hurd’s opinion—while also extrinsic evidence—is more persuasive
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because it is consistent with the intrinsic record and supported by a journal article about
reducing splashing in urinals.
For all these reasons, the Court finds that Vectair has not shown by clear and
convincing evidence that the “contoured” terms are indefinite.
2. 	Improper Dependent Form
Vectair also argues that claim 54 of the ’098 patent violates 35 U.S.C. § 112(d)
and therefore is invalid for improper dependent form. (Dkt. 69 at 35, 37.) Section 112(d)
states that “a claim in dependent form shall contain a reference to a claim previously set
forth and then specify a further limitation of the subject matter claimed.” 35 U.S.C.
§ 112(d).
Vectair’s argument is based on two theories. First, Vectair argues § 112(d) is
violated because the definition of “contour” in the McGraw-Hill Dictionary of Scientific
and Technical Terms (6th ed.) is “[a] curve drawn up on a two-dimensional diagram
through points which satisfy f(x,y) = c, where c is a constant and f is some function, such
as the field strength for a transmitter.” (Dkt. 69 at 35 (citing Dkt. 78-14 at 4).) For the
reasons explained above, the Court rejects Vectair’s reliance on dictionary definitions,
including this mathematical definition, and consequently rejects this improper dependent
form argument.
Second, Vectair argues improper dependent form because “contoured side
surface” is not used anywhere in the specification, and while the specification uses the
term “sides” and refers to “upper and lower surfaces,” a “side” is different from “upper”
and “lower.” (Dkt. 69 at 37.) Vectair also argues that “an opening is a void and voids do
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not have a ‘surface’ as such.” (Id. (citing Klopp Decl. ¶ 47).) As the Court understands
it, Vectair is basically arguing that a person of ordinary skill in the art would not
understand the meaning of “wherein the plurality of openings comprise a contoured side
surface to further reduce splashing on the user of the urinal by deflecting a flow of urine.”
(See ’098 patent at 12:48-51.)
Vectair cites no authority supporting the proposition that every term recited in a
patent claim must be found in the specification to avoid invalidity under § 112. As for
the argument that openings are voids and voids do not have sides, the specification states
that: “In some cases, the sides 42 and/or corners 46 of the openings 18 have contoured
(e.g., convex) upper and/or lower surfaces” and “the openings 18 (e.g., cells) can have a
perimeter which includes a plurality of sides (e.g., braces) 42 and corners 46.” (’098
patent, at 4:63-65, 5:4-6.) Vectair’s argument ignores this language defining the
openings using sides and surfaces. Vectair has not shown by clear and convincing
evidence that a person of ordinary skill in the art would not understand that an opening in
a physical object can have a “side surface.”
For all these reasons, the Court finds that Vectair has not shown by clear and
convincing evidence that claim 54 of the ’098 patent is invalid for failure to comply with
§ 112(d).
3. 	Claim Construction
The Court turns to whether the “contoured” terms require construction. Vectair
contends that construction is necessary to resolve the disputed meaning of “contoured”
but does not identify the dispute or explain how its proposed construction would clarify
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or is necessary to determining infringement. (See Dkt. 69 at 37.) Moreover, Vectair does
not explain how the intrinsic record supports its proposed construction of “when the
overall urinal screen is oriented horizontally, a contoured side surface is a side-facing
surface along one of the openings that is not vertically planar.”13 (See Dkt. 69 at 31.)
In the absence of any support for this proposed construction and any explanation
of why “contoured” requires construction for purposes of infringement, the Court adopts
the plain and ordinary meaning of “contoured.” See U.S. Surgical, 103 F.3d at 1568.
While not dispositive, this independent conclusion based on the arguments presented to
this Court is also supported by the fact that another district court adopted plain and
ordinary meaning for the term “at least some of the plurality of braces comprise
contoured upper and lower surfaces.” (See Dkt. 80-8 at 6.)
IV. 	LEGAL STANDARD – DESIGN PATENTS
The Patent Act states: “Whoever invents any new, original and ornamental design
for an article of manufacture may obtain a patent therefor, subject to the conditions and
requirements of this title.” 35 U.S.C. § 171. “A design patent only protects the novel,
ornamental features of the patented design.” OddzOn Prods., Inc. v. Just Toys, Inc., 122
F.3d 1396, 1405 (Fed. Cir. 1997); see also Richardson v. Stanley Works, Inc., 597 F.3d
1288, 1293 (Fed. Cir. 2010) (“[A] design patent, unlike a utility patent, limits protection
to the ornamental design of the article.”). A patentable “design must present an
13 	The Court notes that Vectair’s proposed construction, by reciting “not vertically
planar,” seems to accept that “contoured” means “non-planar.”
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aesthetically pleasing appearance that is not dictated by function alone.” Bonito Boats,
Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 148 (1989).
Trial courts must engage in claim construction for design patents, just as they must
for utility patents. Egyptian Goddess Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir.
2008). However, neither the Federal Circuit nor the Supreme Court has prescribed a
“particular form” that the claim construction must take. Id. On the contrary, design
patents “typically are claimed as shown in drawings,” and that claim construction “is
adapted accordingly.” Id. (citation modified). “As the Supreme Court has recognized, a
design is better represented by an illustration ‘than it could be by any description and a
description would probably not be intelligible without the illustration.’” Id. (quoting
Dobson v. Dornan, 118 U.S. 10, 14 (1886)). The PTO also recognizes that “as a rule the
illustration in the drawing views is its own best description.” Manual of Patent
Examining Procedure (“MPEP”) § 1503.01 (8th ed. 2006). That said, a court has
discretion to provide verbal elaboration to a design patent if “necessary or helpful.”
Egyptian Goddess, 543 F.3d at 679.
Design patents, like utility patents, are presumed to be valid. See Ethicon Endo-
Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1328 (Fed. Cir. 2015) (citing 35 U.S.C.
§ 282). Consequently, invalidity of a claim in a design patent must be shown by clear
and convincing evidence. See id.
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V. 	ANALYSIS – DESIGN PATENT
A. 	Invalidity
Vectair argues invalidity for several reasons: (1) indefiniteness because the
drawings are “entirely in evenly spaced dashed lines of varying line weights” or illegible;
(2) failure to comply with the written description requirement because Fresh Products
amended the drawings in an impermissible manner; (3) indefiniteness because the
boundaries of the claimed design are indefinite; and (4) indefiniteness and lack of
enablement because there are insufficient views of the claimed design. (Dkt. 69 at 41-
55.) Vectair also argues invalidity because the claimed design is primarily functional
rather than ornamental. (Id. at 69-71.) Fresh Products responds that these invalidity
arguments should not be addressed during claim construction, but also responds to
Vectair’s arguments. (Dkt. 79 at 32-33; see also Dkt. 79 at 33-35 (response).)
As to the relevant legal standards for invalidity, beginning with indefiniteness,
“[b]ecause design patent claims are limited to what is shown in the application drawings,
there is often little difference in the design patent context between the concepts of
definiteness (whether the scope of the claim is clear with reasonable certainty) and
enablement (whether the specification sufficiently describes the design to enable an
average designer to make the design).” In re Maatita, 900 F.3d 1369, 1375 (Fed. Cir.
2018) (citation modified). “A visual disclosure may be inadequate—and its associated
claim indefinite—if it includes multiple, internally inconsistent drawings.” Id. The
ultimate purpose “of § 112’s definiteness requirement, then, is to ensure that the
disclosure is clear enough to give potential competitors (who are skilled in the art) notice
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of what design is claimed—and therefore what would infringe.” Id. at 1376 (citing
Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403, 437 (1902)). “Thus, a design
patent is indefinite under § 112 if one skilled in the art, viewing the design as would an
ordinary observer, would not understand the scope of the design with reasonable certainty
based on the claim and visual disclosure.” Id. at 1377.
As to written description, the test is “whether the disclosure of the application
relied upon reasonably conveys to those skilled in the art that the inventor had possession
of the claimed subject matter as of the filing date.” In re Owens, 710 F.3d 1362, 1366
(Fed. Cir. 2013) (quoting Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351
(Fed. Cir. 2010) (en banc)). “In the context of design patents, the drawings provide the
written description of the invention.” Id.
1. 	Section 112 Invalidity
The Court agrees with Fresh Products that Vectair’s § 112 invalidity arguments
are premature. As background, the D’411 patent contains fourteen figures illustrating
two embodiments of a urinal screen embodying the claimed design, where those figures
include top and bottom plan views, a perspective view, and right, left, front, and back
elevation views. (D’411 patent, at 1 (DESCRIPTION).) The D’411 patent then explains
that “evenly dashed broken lines are used to illustrate features of the urinal screen which
form no part of the claimed design” while “dash-dot-dash broken lines illustrate the
boundary of the claimed invention and form no part of the claimed design.” (Id.)
Vectair’s indefiniteness and written description arguments are based on reproductions of
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these figures (with additional annotations by Vectair’s attorneys) and attorney argument.
(See Dkt. 69 at 41-55; see also Dkt. 84 at 15-19.)
The problem for Vectair is that its § 112 theories all require evidence as to the
perspective of one of ordinary skill in the art. See Maatita, 900 F3.d at 1377 (“[A] design
patent is indefinite under § 112 if one skilled in the art, viewing the design as would an
ordinary observer, would not understand the scope of the design with reasonable
certainty based on the claim and visual disclosure.” (emphasis added); see id. at 1375
(explaining that “there is often little difference in the design patent context between the
concepts of definiteness” and enablement); In re Owens, 710 F.3d at 1366 (holding the
written description test is “whether the disclosure of the application relied upon
reasonably conveys to those skilled in the art that the inventor had possession of the
claimed subject matter as of the filing date,” where “the drawings provide the written
description of the invention” (emphasis added)). “Compliance with the written
description requirement is a question of fact,” Scriptpro, LLC v. Innovation Assocs., Inc.,
762 F.3d 1355, 1359 (Fed. Cir. 2014), requiring that the patentee “convey with
reasonable clarity to those skilled in the art that, as of the filing date sought, he or she was
in possession of the invention,” New Railhead Mfg., L.L.C. v. Vermeer Mfg. Co., 298
F.3d 1290, 1295 (Fed. Cir. 2002).
Vectair has not offered any evidence of what a person of ordinary skill in the art
would understand from the figures of the D’411 patent, or that such a person could not
understand those figures with reasonable certainty. At the July 2, 2025 hearing, Vectair
conceded that its expert had not opined as to the ability of a person of ordinary skill in the
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art or an ordinary observer’s ability to understand the drawings. (See Dkt. 104 at 99:15-
100:15 (admitting no expert opinion).) Vectair’s arguments relating to how to interpret
various lines in the figures of the D’411 patent, whether the August 12, 2016 Amendment
introduced new matter and therefore violated the written description requirement,
whether there are sufficient views in the D’411 patent, and whether the boundaries of the
claimed design are indefinite rely on its attorneys’ characterizations of the figures rather
than any evidence from the perspective of a person of ordinary skill in the art. Such
attorney argument does not constitute clear and convincing evidence that the D’411
patent is invalid under § 112, particularly where “[e]rrors and inconsistencies between
drawings do not merit a § 112 rejection . . . if they do not preclude the overall
understanding of the drawing as a whole.” Maatita, 900 F.3d at 1375-76 (citation
modified).
However, the Court will address in this Order certain issues arising from Vectair’s
§ 112 arguments that do not require the perspective of a person of ordinary skill in the art.
First, the parties dispute whether Fresh Products can rely on the higher resolution
drawings within the “Supplemental Content” of the USPTO Supplemental Complex
Repository for Examiners (“SCORE”) database of the D’411 patent prosecution file
available on the PTO website. (Dkt. 79 at 29 & n.4; Dkt. 84 at 15-16.) Vectair argues
that these higher resolution drawings should not be considered because they do not
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“directly appear in the D’411 certified file wrapper.”14 (Dkt. 84 at 15.) Vectair did not
file a certified copy of the prosecution history of the D’411 patent, and by saying
“directly appear,” seems to concede that a reference to this Supplemental Content appears
in the certified file wrapper, even if the Supplemental Content itself does not. In any
event, the Supplemental Content is readily available from the PTO website by searching
the patent number at https://patentcenter.uspto.gov/. The Court concludes that the public
notice function is not undermined by reference to documents referenced in the file history
and publicly available on the PTO website. See Panasonic Corp. v. Getac Tech. Corp.,
No. SA CV 19-01118-DOC (DFM), 2022 WL 1599634, at *6 (C.D. Cal. Feb. 28, 2022)
(finding it “appropriate to reference the SCORE images to determine the scope of the
patents at issue since they are in the patents’ prosecution histories” (citation modified)).
Vectair also characterizes the allegedly illegible drawings as an “error” that Fresh
Products should have corrected pursuant to 35 U.S.C. § 254. (Dkt. 84 at 16.) This
ignores the rationale for the higher resolution drawings, which is that the PTO had
“received feedback that the images published as part of design patent grants were
degraded compared to the images that applicants provided to the Office with initial
filings,” due to its “specific conversion process” that was “mainly responsible for the
degraded quality of the images,” and the PTO therefore “implemented a new process [on
October 4, 2016] for publishing design patent grants, which has significantly improved
14 	“File wrapper” is another way to refer to the entire record of proceedings in the
PTO, that is, the prosecution history. See Standard Oil Co. v. Am. Cyanamid Co., 774
F.2d 448, 452 (Fed. Cir. 1985).
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the image quality.” (Dkt. 89-2 at 2.) Moreover, the PTO explained that it was “also
loading these patent grants, with improved images, into the Supplemental Content of the
electronic files of our patent application files to allow external stakeholders to
download an exact, clear copy of the patent grant images.” (Id. (emphasis added).)
This confirms both the public notice function of the Supplemental Content available from
the PTO website and that the quality of originally published images did not constitute a
“mistake” that required correction under § 254; but instead an issue caused by the PTO’s
image conversion process. The Court sees no basis for precluding reliance on the higher
resolution drawings because Fresh Products did not seek their correction under § 254.
Finally, Vectair argues that Fresh Products should not be able to rely on the higher
resolution images because Fresh Products “did not request construction about the effect
of prosecution history” and “[a] request to substitute different drawings is a new and
different claim construction position.” (Dkt. 84 at 16.) This argument fails because
Fresh Products cited “Figs. 1-14,” “D’411 supplemental content,” and the “D’411
prosecution history” to support its position in the parties’ First Amended Joint Claim
Construction Statement. (Dkt. 68 at 17 (emphasis added).) This is sufficient to inform
Vectair that Fresh Products was relying on the higher resolution drawings included in the
Supplemental Content for purposes of claim construction.
In sum, the Court finds that Vectair has not met its burden as to § 112 invalidity at
this time. And while the Court has its doubts (based on the arguments to date) as to
whether Vectair can ultimately succeed on its § 112 arguments as to the D’411 patent,
Vectair may make those arguments at summary judgment or trial, as appropriate.
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2. 	Vectair Has Not Met Its Burden as to Lack of Ornamentality
Vectair contends that the D’411 patent is invalid because every aspect of its design
is primarily functional rather than ornamental. (Dkt. 69 at 69.) Fresh Products responds
that Vectair has not shown by clear and convincing evidence that the D’411 patent is
invalid for lack of ornamentality. (Dkt. 86 at 37.)
The Federal Circuit has described as “stringent” the clear and convincing
evidentiary standard as it applies to invalidating design patents on grounds of
functionality. Rosco, Inc. v. Mirror Lite Co., 304 F.3d 1373, 1378 (Fed. Cir. 2002).
To begin, “[a]rticles of manufacture necessarily serve a utilitarian purpose, but
design patents are directed to ornamental designs of such articles.” Ethicon Endo-
Surgery, 796 F.3d at 1328 (Fed. Cir. 2015). “Being ornamental is not the inverse of
being functional, and the two are not mutually exclusive. Rather, the two characteristics
can—and often do—coexist.” Graphic Packaging Int’l, LLC v. Inline Packaging, LLC,
No. 15CV03476 (ECT/LIB), 2019 WL 4786148, at *3 (D. Minn. Oct. 1, 2019) (citing
L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1123 (Fed. Cir. 1993)), clarified
on other grounds, 2019 WL 13177147 (D. Minn. Nov. 12, 2019). “If a particular design
is essential to the use of an article, it cannot be the subject of a design patent.” Ethicon
Endo-Surgery, 796 F.3d at 1328. The Federal Circuit has “found designs to be essential
to the use of an article when the claimed design is dictated by the use or purpose of the
article.” Id. (citation modified). Design patents on primarily functional rather than
ornamental designs are invalid. Id.
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Although there is no “particular test for determining whether a claimed design is
dictated by its function and therefore impermissibly functional,” the Federal Circuit has
“often focused . . . on the availability of alternative designs as an important—if not
dispositive—factor.” Ethicon Endo-Surgery, 796 F.3d at 1330; see also Auto. Body Parts
Ass’n v. Ford Glob. Techs., LLC, 930 F.3d 1314, 1319 (Fed. Cir. 2019) (stating the
Federal Circuit “ha[s] often emphasized the presence or absence of alternative designs” in
the functionality inquiry). “[T]o be considered an alternative, the alternative design must
simply provide the same or similar functional capabilities.” Ethicon Endo-Surgery, 796
F.3d at 1131 (citation modified); see also Rosco, 304 F.3d at 1378-79 (reversing
functionality finding because alternative mirror designs could still provide a similar level
of performance).
A court may also consider the following “Berry Sterling” factors:
whether the protected design represents the best design; whether alternative
designs would adversely affect the utility of the specified article; whether
there are any concomitant utility patents; whether the advertising touts
particular features of the design as having specific utility; and whether there
are any elements in the design or an overall appearance clearly not dictated
by function.
Sport Dimension, Inc. v. Coleman Co., 820 F.3d 1316, 1322 (Fed. Cir. 2016) (quoting
PHG Techs., LLC v. St. John Cos., 469 F.3d 1361, 1366 (Fed. Cir. 2006), quoting Berry
Sterling Corp. v. Pescor Plastics, Inc., 122 F.3d 1452, 1455 (Fed. Cir. 1997)).
Relying on the Klopp Declaration, Vectair argues that “[e]very aspect of the
claimed article of D’411 is dictated by function.” (Dkt. 69 at 69 (citing Klopp Decl.
¶ 71).) Dr. Klopp recites the Berry Sterling factors and then opines:
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51. The D’411 Patent shows but does not definitely claim a flat urinal screen
with multiple “posts”. The structure shown has a top face and a bottom face
(opposite the top face), and hexagonal features that could be multiple
openings extending through the top face and bottom face. These features are
defined by a hexagonal perimeter structure with braces and corners.
52. The design illustrates that the braces and corners are shared between two
or more openings. The D’411 Patent contains fourteen figures that present
different views of two embodiments of the urinal screen.
(Dkt. 72 ¶¶ 50-52 (footnotes omitted).) This description of the D’411 patent does not
constitute an opinion on the ornamentality or functionality of the entire design. Dr.
Klopp next engages in an element-by-element analysis of the functions of the claimed
design, including opining that:
 	“Openings” perform the function of filtering and screening debris while
allowing urine, water, and other liquids to pass (id. ¶ 53);
 	“Hexagonal perimeter structure” performs the function of saving material
(id. ¶¶ 54-60);
 	“Non-planar brace faces” perform the function of reducing splashing (id.
¶ 61);
 	“Size and number of openings” perform the functions improving filtering
and 	screening 	debris; 	reducing 	splashing; 	minimizing 	weight; 	and
improving odor control (id. ¶¶ 62-64);
 	“Posts” perform the function of reducing splashing (id. ¶ 65);
 	“Post 	geometry” 	performs 	the 	functions 	of 	reducing 	splashing,
controlling flow and odor, and cost-effective manufacturing (id. ¶ 66);
 	“Post 	location” 	performs 	the 	function 	of 	reducing 	splashing 	and
increasing structural strength (id. ¶¶ 67-68);
 	“Post length” performs the function of improving filtration and screening
debris (id. ¶ 69); and
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 	“Flat/planar 	shape 	of 	the 	urinal 	screen” 	performs 	the 	function 	of
improving filtration and screening debris and improving odor control (id.
¶ 70).
Dr. Klopp concludes: “From my review of the D’411 Patent, the claimed articles
of the D’411 Patent are significantly functional and dictated by functionality that is, in
some cases, disclosed in the Utility Patents . . . .” (Id. ¶ 71.)
Vectair relies on these opinions, as well as the fact that Fresh Products owns
several utility patents and a pending application directed to the claimed urinal screen, to
support its argument that the D’411 patent is invalid for lack of ornamentality. (Dkt. 69
at 69-70.) Fresh Products responds that “Vectair’s failure to address alternative designs
is reason enough to reject Vectair’s lack-of-ornamentality argument.” (Dkt. 86 at 37.)
Fresh Products further argues that “a design patent is not invalid merely because the
patentee owns related utility patents.” (Id.)
While Dr. Klopp opined that various elements of the urinal screen are functional,
he did not address alternative designs for those elements. (See Dkt. 72 ¶¶ 50-70.) Given
that the existence of alternative designs is “an important—if not dispositive—factor in
evaluating the legal functionality of a claimed design,” the absence of any opinions as to
alternative designs weighs strongly against any finding that the D’411 patent is invalid
for lack of ornamentality. See Ethicon Endo-Surgery, 796 F3d at 1329-30. Indeed, in
L.A. Gear, the Federal Circuit rejected a finding of invalidity for lack of ornamentality
where the accused infringer “argue[d] that each element comprising the ʼ081 design has a
utilitarian purpose” because “the utility of each of the various elements that comprise the
design is not the relevant inquiry with respect to a design patent.” 988 F.2d at 1123.
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Rather, “the claimed design is viewed in its entirety, for the ultimate question is not the
functional or decorative aspect of each separate feature, but the overall appearance of the
article, in determining whether the claimed design is dictated by the utilitarian purpose of
the article.” Id.
Further, Fresh Products identified three designs that Fresh Products says do not
practice the ’411 patent and, based on Dr. Hurd’s opinions, achieve the same or similar
functionalities identified by Vectair with respect to the D’411 design patent. (Dkt. 79 at
35; Dkt. 86 at 34-36 (citing Dkt. 88 ¶¶ 48-52).) Images of those three screens are
reproduced below.
(Dkt. 86 at 35.)
According to Dr. Hurd, the Impact Eclipse Urinal Screen achieves similar
functionality using an alternative design that is different from that claimed in the D’411
design patent, where the Impact Eclipse is made of a fragranced polymer, which forms a
lattice-like structure with four-sided openings in a swirled arrangement and posts
extending from both sides. (Dkt. 88 ¶ 50.) Marketing materials for the Impact Eclipse
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screen state that it “eliminates virtually all splash back,” contains fragrance, is “designed
to fit virtually all urinal shapes and sizes,” and provides “effective drain and trap
protection.” (Dkt. 89-3 at 31.)
The second screen identified by Dr. Hurd is the Big D Diamond 3D Urinal Screen
(“Diamond 3D”) (Dkt. 88 ¶ 51.) The Diamond 3D screen is made from a fragranced
polymer, which forms a lattice-like structure with diamond-shaped openings emanating
from the center and many posts extending from both sides of the urinal screen. (Id.) Dr.
Hurd opined that the Diamond 3D screen achieves similar functionality using an
alternative design that is different from that claimed in the D’411 design patent. (Dkt. 88
¶ 51.) Marketing materials for the Diamond 3D urinal screen state that it has “anti-
splash” spikes of three varying lengths on both sides of the mat, is made of a polymer
impregnated with fragrance, is flexible thereby allowing it to fit any urinal contour, it is
translucent allowing viewing to ensure that the drain remains free flowing, and it contains
an area for writing. (Dkt. 89-4 at 2-3.)
As noted above, Vectair does not address the alternatives, except in a conclusory
fashion, by asserting that alternative designs are not the “best design,” arguing that Fresh
Products’ marketing materials and internal communications establish functional
performance, and again relying on the “utility patent claims and disclosures” (including
the best mode requirement under 35 U.S.C. § 112(a)). (Dkt. 84 at 20 & n.5.) This is
unpersuasive because Vectair’s “best design” argument is not supported by any evidence
or authority linking the “best mode” requirement of § 112 to whether a protected design
represents the “best design” under Berry Sterling, and the existence of related utility
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patents is relevant but not dispositive as to the question of ornamentality. See Sport
Dimension, 820 F.3d at 1322 (listing factors).
Finally, the fact that certain elements of the claimed urinal screen may perform
functions does not preclude them from “contribut[ing] to the overall ornamentation of the
design.” See id. at 1323 (“And the design includes the shape of the armbands and side
torso tapering, to the extent that they contribute to the overall ornamentation of the
design.”); see also Ethicon Endo-Surgery, 796 F.3d at 1329 (“We explained that a
claimed design was not invalid as functional simply because the ‘primary features’ of the
design could perform functions.”) (citing High Point Design LLC v. Buyers Direct, Inc.,
730 F.3d 1301, 1316 (Fed. Cir. 2013)). This is why the Federal Circuit has cautioned that
“[i]n determining whether a claimed design is primarily functional, the function of the
article itself must not be confused with ‘functionality’ of the design of the article.” Id.
(citation modified).
Given the lack of evidence showing the absence of alternative designs and that the
claimed design is the “best design,” and Dr. Hurd’s opinion that there are alternative
designs, the Court concludes that Vectair has not met its burden to shown that the design
claimed by the D’411 patent is invalid due to lack of ornamentality. See Ethicon Endo-
Surgery, 796 F.3d at 1332; see also Deetsch v. Lei, No. 22-CV-1166-RSH-BLM, 2024
WL 4700642, at *5 (S.D. Cal. Nov. 6, 2024) (“Plaintiff has provided the Court with
evidence showing that alternative designs exist and are available. Defendants have not
provided the Court with any evidence regarding alternative designs. In their claim
construction brief, Defendants simply argue: ‘alternative designs are certainly not the best
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design, and they adversely affect the functionality of the patented design.’ But attorney
argument is not evidence and cannot rebut other admitted evidence. Therefore,
Defendants have failed to demonstrate that the overall design of the ‘529 Design Patent is
purely functional.” (citation modified)).
3. 	Claim Construction
The Court turns to claim construction. First, Vectair asserts that the “Urinal
Screen” title of the D’411 patent is limiting and proposes: “[A] filter, mat, grate, guard,
or the like capable of allowing urine, water, and other fluid to pass through it when used
in, on, or otherwise as part of a urinal, toilet, or other bathroom appliance. And a ‘urinal’
is a vessel for receiving urine or a fixture used for urinating.” (Dkt. 69 at 55; see also id.
at 17 (proposed construction for the utility patents).) Fresh Products does not disagree
that the title is limiting, but argues that the term should be given its plain and ordinary
meaning. (Dkt. 86 at 31.)
“Where a design is claimed ‘as shown and described’. . . then the patent’s scope of
protection is limited by the drawings and accompanying description in the patent.” See
Smartrend Mfg. Grp. , Inc. v. Opti-Luxx Inc., 159 F.4th 1322, 1329-30 (Fed. Cir. 2025)
(quoting Curver Lux., SARL v. Home Expressions Inc., 938 F.3d 1334, 1340-41 (Fed. Cir.
2019)). Here, for the reasons stated in Section III.A.2, the Court gives “urinal screen” in
the title its plain and ordinary meaning.
Second, Vectair proposes a claim construction that require construction of “the use
of various lines and line type descriptions,” identification of multiple embodiments, and
identification of functional aspects and elements. (Dkt. 69 at 57-69.) Vectair’s proposed
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construction, as set forth in the First Amended Joint Claim Construction Statement, spans
multiple pages and includes references to figures in the D’411 patent that have been
annotated by counsel. (Dkt. 68 at 16-25.) Fresh Products responds that Vectair’s verbal
descriptions are inaccurate, improper, and “illustrate[] the Federal Circuit’s precise
concerns with verbal descriptions of design patents.” (Dkt. 86 at 30-31.)
The Court begins with Vectair’s multi-paragraph proposed construction and
explanation of lines and line descriptions, which includes annotations of the figures. (See
Dkt. 69 at 57-59; Dkt. 68 at 17-22.) The D’411 patent states that “evenly dashed broken
lines are used to illustrate features of the urinal screen which form no part of the claimed
design” while “dash-dot-dash broken lines illustrate the boundary of the claimed
invention and form no part of the claimed design.” (D’411 patent, at 1
(DESCRIPTION).) Given the absence of any evidence that a person of ordinary skill in
the art would not understand what the various lines show in the figures based on the
intrinsic record, the Court declines to adopt Vectair’s verbose restatement of the two-
sentence description of those lines set forth in the D’411 patent itself.
The Court then turns to Vectair’s argument that the Court must construe the
claimed design as including two embodiments. (Dkt. 69 at 60-61.) Vectair proposes: “‘a
first embodiment’, shown in FIGS. 1-7, and ‘a second embodiment’, shown in FIGS. 8-
14, represent different embodiments of the overall ornamental design, with those first and
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second embodiments claimed in the alternative (like a Markush group).”15 (Dkt. 68 at
24-25.) But the D’411 patent already states that Figure 1 shows “a first embodiment of a
urinal screen embodying our new design” (where Figures 2-7 are different views
“thereof”) and Figure 8 shows “a second embodiment of a urinal screen embodying our
new design” (where Figures 9-14 are different views “thereof”). (D’411 patent, at 1
(DESCRIPTION).) No claim construction is necessary to understand that Figures 1 to 7
and Figures 8 to 14 describe first and second embodiments. It appears that Vectair wants
the Court to add to this description by describing the embodiments as “alternatives” and
similar to a Markush group, but cites no authority supporting this proposed
construction—and admits it could find none. (Dkt. 69 at 61.) Vectair contends “this
dispute” will affect expert reports and dispositive motions and asks: “If the claimed
embodiments are not alternatives, how else are they to be compared to the accused
product or prior art?” (Id.) The Court declines to adopt Vectair’s proposed limitations
due to questions asked in the abstract. If the parties actually need to resolve the question
of whether the first and second embodiments are “alternatives” for purposes of
infringement and prior art invalidity, they should address the question at that time when
any such disputes are ripe and sufficiently articulated.
Third, Vectair proposes a verbal description of the “[f]unctional aspects/elements”
that is so lengthy that Vectair presented it in “shorted [sic] form for readability” in its
15 	“A Markush group is a listing of specified alternatives of a group in a patent claim,
typically expressed in the form: a member selected from the group consisting of A, B,
and C.” Abbott Labs. v. Baxter Pharm. Prods., Inc., 334 F.3d 1274, 1280 (Fed. Cir.
2003).
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brief. (Compare Dkt. 69 at 38 & n.9 (Vectair’s opening brief), with Dkt. 68 at 16-25
(First Amended Joint Claim Construction Statement).) For context, it is worth reciting
Vectair’s entire proposal:
 	Functional aspects/elements:
o 	Filtering/screening (ability to block or retain foreign objects/debris
while allowing urine, water, and other fluid to pass through)
o 	Reducing or preventing the risk of the article from floating away
from a desired installation location, by spacing portions of the
article from the surface on which the article is set
o 	Splash management / deflection or directing of urine or other fluid
o 	Structural support and connecting/arranging elements of the article
o 	Mass reduction (such as the amount of open space compared to the
amount of solid material, the amount, density, and/or cost of
material, and shipping weight)
o 	Fragrance delivery over time (such as being made of a sufficient
amount of solid material that can releasably hold a sufficient
amount of impregnated fragrance, preventing the article from
being completely submerged in water during use which would
block fragrance release)
o 	Manufacturability (for example, physical structure able to be
molded from a fragranced polymer material, physical structures
such as braces and posts/protrusions shaped with tapers/draft
angles, chamfers, rounded surfaces, fillet radii, etc. to release
easily from a mold, solid portions provide surface area for ejection
pins in mold tooling to help release the article from the mold,
avoiding stress concentrations and/or structural failure points)
o 	Fit in urinal, toilet, or other bathroom appliance (for instance, the
overall shape can fit over a drain and cover it sufficiently,
accommodation of many different varied shapes of urinal, toilet,
or other bathroom appliance structures)
o 	Ease of installation (for instance, any attachment requirements,
reversibility, impacts of installation on subsequent performance)
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o 	Display 	of 	information 	(for 	instance, 	branding 	and/or 	other
markings, installation/replacement date-tracking tabs, etc.)
o 	Visibility of debris/clogging underneath (such as the amount, size,
and arrangement of openings in relation to translucent/transparent
nature of solid material of the article)
(Dkt. 68 at 22-24.)
It is true that “[w]here a design contains both functional and non-functional
elements, the scope of the claim must be construed in order to identify the non-functional
aspects of the design as shown in the patent.” OddzOn Prods., 122 F.3d at 1405. But it
is also true that:
[T]he court is not obligated to issue a detailed verbal description of the design
if it does not regard verbal elaboration as necessary or helpful. In addition,
in deciding whether to attempt a verbal description of the claimed design, the
court should recognize the risks entailed in such a description, such as the
risk of placing undue emphasis on particular features of the design and the
risk that a finder of fact will focus on each individual described feature in the
verbal description rather than on the design as a whole.
Egyptian Goddess, 543 F.3d at 679-80. Moreover, “design patents protect the overall
ornamentation of a design, not an aggregation of separable elements.” Sport Dimension,
820 F.3d at 1322.
In Richardson v. Stanley Works, Inc., the Federal Circuit affirmed the district
court’s decision to separate the functional and ornamental aspects of the claimed design
for a multi-function tool. 597 F.3d at 1294. In doing so, the Federal Circuit noted that
“[b]y definition, the patented design is for a multi-function tool that has several
functional components.” Id. The Federal Circuit explained:
Richardson’s multi-function tool comprises several elements that are driven
purely by utility. As the district court noted, elements such as the handle, the
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hammerhead, the jaw, and the crowbar are dictated by their functional
purpose. The jaw, for example, has to be located on the opposite end of the
hammer head such that the tool can be used as a step. The crowbar, by
definition, needs to be on the end of the longer handle such that it can reach
into narrow spaces. The handle has to be the longest arm of the tool to allow
for maximum leverage. The hammer-head has to be flat on its end to
effectively deliver force to the object being struck. As demonstrated by the
prior art, those are purely functional elements whose utility has been known
and used in the art for well over a century.
Id.
In the underlying claim construction decision, the district court explained: “[The]
design incorporates four primary utilitarian elements: the handle, the hammer-head, the
jaw, and the crow-bar. The overall configuration of these four elements is dictated by the
functional purpose of the tool and therefore is not protected by his design patent.”
Richardson v. Stanley Works, Inc., 610 F. Supp. 2d 1046, 1050 (D. Ariz. 2009), aff’d, 597
F.3d 1288 (Fed. Cir. 2010). The district court explained why different configurations
would not work, noted that “[e]very piece of prior art identified by the parties that
incorporates similar elements configures them in the exact same way,” and explained that
“[t]he number of other patented designs that use this configuration and the absence of
alternative designs strongly suggest that this configuration is the best configuration and
that it is dictated by functional, not ornamental, considerations.” Id. In addition to
finding that the “overall configuration,” where the hammer-head and jaw were at one end
of the handle and the crow-bar at the other end, was not protected, the Richardson district
court found that the jaw’s design consisting “of two straight sides that could slot over a
wooden board at a right angle to the handle, which would then serve as the step,” also
was not protected. 610 F. Supp. 2d at 1050. But the design patent did protect “the
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ornamental aspects of Richardson’s design, which include[d], among other things, the
standard shape of the hammer-head, the diamond-shaped flare of the crow-bar and the top
of the jaw, the rounded neck, the orientation of the crowbar relative to the head of the
tool, and the plain, undecorated handle,” as well as the particular number and size of the
teeth of the jaw. Id.
Similarly, in OddzOn Products, the claim construction approved by the Federal
Circuit was:
a ball shaped like a football, with a slender, straight tailshaft projecting from
the rear of the football. In addition, the ’001 Patent design has three fins
symmetrically arranged around the tailshaft, each of which has a gentle curve
up and outward which creates a fin with a larger surface area at the end
furthest from the ball. The fins flare outwardly along the entire length of the
tailshaft, with the front end of the fin extending slightly up along the side of
the football so that the fins seemingly protrude from the inside of the football.
122 F.3d at 1400. The Federal Circuit observed that “the district court carefully noted the
ornamental features that produced the overall ‘rocket-like’ appearance of the design” and
found it “properly limit[ed] the scope of the patent to its overall ornamental visual
impression, rather than to the broader general design concept of a rocket-like tossing
ball.” Id. at 1405.
Here, Vectair’s proposed construction consisting of bullet points reciting alleged
functionality bears no resemblance to the constructions in Richardson and OddzOn
Products. In fact, the Court cannot even determine what aspects of the design Vectair is
asking the Court to exclude. For example, it is unclear whether Vectair is asking the
Court to exclude the openings entirely, or to exclude openings having the size, shape, and
spacing shown in the figures. If Vectair is proposing that the openings are not protectable
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at all because they perform filtering and screening functions, Vectair invites the Court to
“eliminat[e] structural elements from the claim,” which would “improperly convert[] the
claim scope of the design patent from one that covers the overall ornamentation to one
that covers individual elements.” Sport Dimension, 820 F.3d at 1322 (finding district
court erred in excluding “armbands and side torso tapering from the claim entirely” even
though they “serve[d] a functional purpose”). 16 If Vectair is proposing the posts having
the size, shape, and spacing shown in the figures are not protectable, Vectair has come
nowhere close to showing that those aspects of the posts are the “best design” for filtering
and screening or whether alternative designs would affect the utility of the claimed urinal
screen. See id.
In sum, Vectair could have proposed a construction that excluded certain elements
of the design as functional and could have supported that proposed construction with
evidence that those elements as shown in the design were the best design for achieving
the urinal screen’s functionality or that no alternative designs were as effective. It may
well be that the openings (for example) themselves are functional and should be excluded
because they are necessary to perform the functions of filtering and screening debris
while permitting urine to drain from the urinal, while the openings’ size, shape, and
positioning should not be excluded because there is no evidence that those features are
16 	The claim construction adopted by the district court was: “The ornamental design
for a personal flotation device, as shown and described in Figures 1-8, except the left and
right armband, and the side torso tapering, which are functional and not ornamental.”
Sport Dimension, 820 F.3d at 1319.
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dictated by function. Indeed, several cases support that conclusion. See Graphic
Packaging Int’l, 2019 WL 4786148, at *5 (D. Minn. Oct. 1, 2019) (quoting Calphalon
Corp. v. Meyer Corp., No. CIV. S-05-971 WBS DAD, 2006 WL 2474286, at *2 n.3, n.5
(E.D. Cal. Aug. 25, 2006) (“The holes are functional in that they serve the purpose of
dissipating heat, but the position and shape of the holes is not ‘dictated by’ this function.
Therefore, the court construes the shape and position of the holes in describing the
overall appearance of the design. . . As with the other holes on the handle, this hole is not
part of the patent claim by virtue of its presence on the handle (it clearly has a functional
purpose—it allows the pan to be hung from a hook). However, the functional purpose
does not require a certain shape for the hole, and it is therefore an element of the design
patent that the court must construe.”); Nordock Inc. v. Sys. Inc., 927 F. Supp. 2d 577, 589
(E.D. Wis. 2013) (“[T]here are many shapes of lugs, and lugs with gussets and partial
gussets. The shape, spacing, pairing and the difference in shapes between the lugs
attached to the header plate and the lip are also ornamental features of the ’754 patent.”);
Black & Decker (U.S.) Inc. v. Pro-Tech Power Inc., No. 97-1123-A, 1998 WL 633636, at
*6 (E.D. Va. June 2, 1998) (“Must the aperture in the handle support be triangular, or
would a circular (or square) aperture work?”)), opinion clarified on other grounds, 2019
WL 13177147 (D. Minn. Nov. 12, 2019). But there certainly is no basis in the record for
Vectair’s proposed construction. The Court finds that verbal elaboration construing the
claimed designs is not necessary or helpful, see Egyptian Goddess, 543 F.3d at 679, and
therefore construes the D’411 patent’s claim as: “The overall ornamental appearance of
the urinal screen as shown in Figures 1-14.”
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VI. 	ORDER
Based on the files, records, and proceedings herein, IT IS ORDERED that the
claims of U.S. Patent Nos. 10,145,098; 10,501,924; 11,396,745; and D778,411 are
construed as set forth above.
DATED: March 9, 2026 	s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge
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