Patent Law

Air Quality

By Gary Odom and Jordan Kuhn

PureChoice asserted RE38,985 against Honeywell. '985 claims an air quality monitoring system. What exactly is air quality? That was one problem leading to indefiniteness. The other problem was claiming two different sensors that couldn't be differentiated. Another careless prosecution kills what otherwise may have been a quality patent.

PureChoice v. Honeywell International (CAFC 2008-1482) non-precedential

The district court held a hearing to construe the terms of the '985 patent. PureChoice argued that the term "air quality" as mentioned in each asserted claim should be read broadly and construed simply as "the quality of the air." Honeywell, on the other hand, argued that because the claims, the specification, the prosecution history, and extrinsic evidence suggested that the invention only addressed particulates in the air, "air quality" should be construed only as "the concentration of pollutants or contamina[nts] in the air." It specifically excluded "meteorological, climate, or comfort related variables, such as temperature and humidity." PureChoice also argued constructions for two other terms, "sensor for measuring environmental air quality data" and its homologue, and "air quality sensor adapted to measure non-weather data." It argued that the sensor for measuring limitation should be construed as a "sensor for measuring quantitative information regarding an air quality of the environment in the data acquisition site." It argued that "air quality sensor adapted to measure non-weather data" means an "air quality sensor adapted to measure quantitatively an air property in the controlled environment of a type not normally identified with weather (e.g. not temperature or humidity)."

Honeywell responded that both terms were indefinite under 35 U.S.C. § 112 based on its argument that air quality excludes meteorological variables. It also rebutted PureChoice's proposed constructions, arguing that they were so vague and ambiguous as to require constructions that would reclaim in reexamination that which PureChoice surrendered in its initial prosecution.

The district court largely agreed with Honeywell and held that "air quality" means the "concentration of pollutants or contamina[nts] in the air." The court then agreed with Honeywell that it is impossible to construe or differentiate "sensor for measuring environmental air quality data" and "air quality sensor adapted to measure non-weather data," and thus held that these terms were indefinite.

On appeal -

We first address the proper construction of air quality and start with the specification. "The specification is the single best guide to the meaning of a disputed term," and we read the claim terms in view of the specification. Phillips v. AWH Corp., 415 F.3d 1308, 1321 (Fed. Cir. 2005) (internal quotations removed).

PureChoice argues that the term should be construed as its plain meaning, "the quality of the air." This definition however does not inform the public what qualities the invention is concerned with, and is overbroad. The specification never mentions sensing temperature, humidity or other meteorological attributes of the air. However, it does discuss sensing contaminants and pollutants extensively throughout...

The specification clearly shows that the invention is concerned with contaminants and pollutants, and not meteorological attributes.

The lack of any suggestion of meteorological attributes in air quality in the specification and the many mentions at various points of contaminants and particles is enough to conclude that the claimed invention is narrower than the claim language might imply, making it proper to limit the claims. See Alloc, Inc. v. Int'l Trade Comm'n., 342 F.3d 1361, 1370 (Fed. Cir. 2003). However, further buttressing the construction is PureChoice's disavowal of the inclusion of meteorological attributes in air quality during prosecution. To overcome a rejection in light of a Gilbert reference that disclosed a system comprising sensors that monitor temperature and sensors that measure pollution, PureChoice amended its claims, replacing the term "measuring environment data" to "measuring air quality data."

Into indefiniteness for failing to differentiate terms -

With the construction of air quality fixed, we look to whether the two remaining terms in dispute are indefinite under 35 U.S.C. § 112, paragraph 2. A claim satisfies the definiteness requirement "[i]f one skilled in the art would understand the bounds of the claim when read in light of the specification." Exxon Research & Eng'g Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir. 2001). A claim will be found indefinite only if it "is insolubly ambiguous, and no narrowing construction can properly be adopted." Id.

As observed above, environmental data was disavowed during prosecution insofar as it extended beyond air quality data as construed. When the patent originally issued as the '690 patent, these two claim terms were a single term: "sensor for measuring air quality data." During reexamination, the term was split into a "sensor for measuring environmental air quality data" and "air quality sensor adapted to measure non-weather data." Because PureChoice did not reduce the interviews that resulted in the amended claim terms to writing pursuant to 37 C.F.R § 1.560(b), and because neither "environmental air quality" nor "non-weather data" appears in the written description, the court is left without a record to explain the difference or relationship between the two terms that provoked allowance. Applying the construction of air quality to the terms, the first becomes a sensor for measuring a concentration of environmental pollutants or contaminants in the air, but not meteorological data, while the second becomes a sensor for measuring a concentration of pollutants or contaminants, but not meteorological data, adapted to measure non-weather data. Not only are these two terms identical in meaning, but they are insolubly ambiguous. An air quality attribute cannot simultaneously be environmental, understood during prosecution as including weather attributes such as temperature and humidity, yet limited to non-meteorological attributes.

Furthermore, the claim cannot be read on the preferred embodiment, described as employing "a particle sensor and a volatile organic compound sensor." '985 patent at col. 4 ll. 41-42. Because the claim clearly requires at least one of each type of environmental air quality sensors and non-weather air quality sensors, the particle sensor and the volatile organic compound sensor must be of different types. However, the specification does not describe which sensor is which. PureChoice argues that the two types of claimed sensors can cover both the particle sensor and the volatile organic compound sensor, but this is clearly forbidden as the examiner clearly stated allowable subject matter requires "a second plurality of sensor[s] adapted to measure different air quality attributes than the first air quality sensor." The terms are indefinite.

Affirmed.

Westman Champlin & Kelly was responsible for prosecuting the reissue.

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Full post as published by The Patent Prospector on June 02, 2009 (boomark / email).