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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

VOITH PAPER GMBH & CO. KG.,
Plaintiff V. JOHNSONFOILS, INC., Defendant

Civil Action No. 07-226 (JJF)

PLAINTIFF VOITH PAPER GMBH & CO. KG'S OPENING MARKMAN BRIEF

Adam W. Poff (No. 3990) Chad S.C. Stover (No. 4919)
YOUNG CONAWAY STARGATT & TAYLOR, LLP The Brandywine Building 1000 West Street, 17th Floor Wilmington, Delaware 19899 Tel: (302) 571-6600

Fax: (302) 571-1253
Attorneys for PlaintiffVoith Paper GMBH & Co. Kg.

OF COUNSEL:
GREENBLUM & BERNSTEIN, P.L.C. Neil F. Greenblum Michael J. Fink Neal Goldberg

1950 Roland Clarke Place Reston, VA 20191
Tel: (703) 716-0081 Fax: (703) 716-1180 Dated: January 16, 2008

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES .......................................................................................... ii 1. 11. III. STATEMENT OF NATURE AND STAGE OF PROCEEDINGS ................... I SUMMARY OF THE ARGUMENT ................................................................. 2 BACKGROUND ................................................................................................ 3 A. B. C. IV. PAPER MAKING MACHINES ............................................................3 THE INVENTION ................................................................................. S THE PATENTS

ARGUMENT ....................................................................................................17 A. THE LAW OF CLAIM CONSTRUCTION ........................................17
Ordinary and Accustomed Meaning to a Person of Ordinary Skill in the Art At the Time of the Invention ...................................................................................17 2. B. Definition of Person of Ordinary Skill in the Art ..................... 20

PROPOSED CLAIM CONSTRUCTION ............................................ 20

V.

CONCLUSION ................................................................................................27

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TABLE OF AUTHORITIES
Page Cases Applied Medical Resources Corp. v. United States Surgical Corp., 448 F.3d 1324 (Fed. Cir. 2006) .....................................................................................19 Conoco, Inc. v. Energy & Environmental Intern., L. C., 460 F.3d 1349 (Fed. Cir. 2006) ..................................................................................... 18 Electro Sci. Indus., Inc. v. Dynamic Details, Inc., 307 F.3d 1343 (Fed. Cir. 2002) ..................................................................................... 18 Genrstar-TV Guide International, Inc. v. International Trade Commission, 383 F.3d 1352 (Fed. Cir. 2004 ) ....................................................................................18 Glaxo Group Ltd v. Apotex, Inc., 376 F.3d 1339 (Fed. Cir. 2004) .....................................................................................19 Innova/Pure Water, Inc. v. Safari Water Filtrations Sys., hzc., 381 F.3d 1111 (Fed. Cir. 2004 ) .....................................................................................18 I.umi Products Co. v. Koninklijke Philips Electronics N. V, 140 Fed. Appx. 236 (Fed. Cir. 2005) ............................................................................17 Johnson Wor ldtivide Assoc., Inc. v. Zebco Corp., 175 F.3d 985 (Fed. Cir. 1999) ......................................................................................17 Laitrarn Corp. v. Morehouse Indus., Inc., 143 F.3d 1456 (Fed. Cir. 1998) .....................................................................................19 Laitram Corp. v. NEC Coi p., 163 F.3d 1342 (Fed. Cir. 1998) ..................................................................................... Is Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) .......................... ...............................................................18 Medrad, Inc. v. MRI Devices Corp., 491 F.3d 1313 (Fed. Cir. 2005) .....................................................................................17 Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340 (Fed. Cir.2004) ......................................................................................19 Paymaster Technologies, Inc. v. U.S., 180 Fed. Appx. 942 (Fed. Cir. 2006) ............................................................................ 18 PC Connector Solutions LLC v. SmartDisk Corp.,

406 F.3d 1359 (Fed. Cir. 2005) .....................................................................................17 Phillips v. AWHCorp.,
17,19 415 F.3d 1303 (Fed. Cir. 2005) (en bane) ...............................................................17, Phonometrics, Inc. v. Northern Telecom Inc.,

133 F.3d 1459 (Fed. Cir. 1998) .....................................................................................19
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Z4 Technologies, Inc. v. Microsoft Corp., 507 F.3d 1340 (Fed. Cir. 2007) .....................................................................................19 Statutes 35 U.S.C. § 112 .....................................................................................................22, 23, 24 Other Authorities

Gary A. Smook, HANDBOOK OF PULP & PAPER TERMINOLOGY, 1990 .................21 21,25 John. R. Lavigne , Pulp & Paper Dictionary, 1986, 1992 ............................................21,

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L

STATEMENT OF NATURE AND STAGE OF PROCEEDINGS
The parties are still conducting factual discovery. Exchange and completion of

contention interrogatories, identification of fact witnesses and document production are to be completed by February 15, 2008. The following motions are presently pending before the Court: (1) Defendant's Motion To Stay The Proceedings Pending Reexamination Of The Patents In Suit Or In The Alternative For Leave To File A Motion For Summary Judgment Prior To August 20, 2008 That U.S. Patents 5,718,805 And 5,972,168 Are Invalid; (2) Voith Paper GMBH & Co. Kg's Motion To Compel Defendant JohnsonFoils, Inc. To Provide Information Requested In Voith's First And Second Sets Of Interrogatories And To Produce Documents Responsive To Voith's First And Second Requests For Documents; (3) Plaintiff Voith Paper GMBH & Co. Kg's Motion For A Protective Order Pursuant To Federal Rules Of Civil Procedure 26(c) Prohibiting The Disclosure Of Voith's Highly Confidential Information To Individuals Engaged In Competitive Business Practices For Or On Behalf Of Voith's Competitor JohnsonFoils, Inc.; (4) Defendant JohnsonFoils, Inc.'s Motion To Compel Production Of Documents In Response To Its First Set Of Document Requests And Rule 7. 1.1 Statement; and (5) Defendant JohnsonFoils, Inc.'s Motion For Leave To Amend Its Counterclaims. A Markman Hearing is scheduled for January 30, 2008 at 10:00 a.m. In a letter dated December 18, 2007, Voith's counsel proposed that each side submit an opening Markman brief, an opposition, and a reply, and invited JohnsonFoil's counsel to discuss a briefing schedule. JohnsonFoil's counsel responded in a letter dated December 19, 2007, that it was too late to agree to a briefing schedule, and that the parties were to simultaneously exchange briefs on January 16, 2008. Voith's counsel disagreed and in a letter dated December 20, 2007, again requested JohnsonFoil's counsel to agree to a briefing schedule:

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I disagree with your statement that it is too late for us to agree to a Markman briefing schedule. 1 also disagree with you that the date set for simultaneous exchange of Markman briefs is January 16, 2008. The Scheduling Order states that the Markman briefing is to be completed 10 days prior to the January 30, 2008, hearing. While the Scheduling Order does not expressly set dates for filing initial briefs, oppositions, and replies, it does not preclude the filing of such responsive pleadings, otherwise called for under Del. Local Rule 7.1.2. Consequently, a brief filed without providing any time for the opposing party to file an opposition by January 16, does not comply with the Scheduling Order. Thus, the parties must either file their opening briefs so as to permit the filing of an opposition by January 16, or, as we have proposed, ask the Court to modify the Scheduling Order to permit the parties to file their opposition briefs after January 16. To that end, we propose that the parties agree to submit their respective opening Markman briefs on January 14, and jointly request leave for each party to file a responsive brief by January 22. JohnsonFoil's counsel , in a letter dated December 21, 2007, restated that they believed that simultaneously briefs were due on January 16, 2008, and clearly stated that they were "not interested in agreeing to a different briefing schedule." Additionally, in its December 20 letter , Voith identified terms which might benefit from construction, and requested JohnsonFoils to identify any other terms which might benefit from construction . Prior to submitting its Markman brief, JohnsonFoils did not identify any additional terms.

11.

SUMMARY OF THE ARGUMENT
The claims ofU.S. Patent Nos . 5,718,805 ("the `805 patent") ' and 5,972,168 ("the `168

patent")2 (collectively "the Patents-in-suit") recite elements configured within a twin-wire former which were new and unobvious . Each element recited in the claims should be construed using its ordinary and accustomed meaning, i.e., how the elements would have been understood by one

1

z

A copy of the `805 patent is attached as Exhibit 1. A copy of the '168 patent is attached as Exhibit 2.

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of ordinary skill in the art in view of the claims themselves, the patent specification, the prosecution histories,3 and extrinsic evidence.

111.

BACKGROUND A. PAPER MAKING MACHINES

A paper making machine is a machine used to manufacture paper. Paper making machines are very large and expensive. Today, a typical paper machine is longer than a football field. The cost of a complete paper making machine installation can exceed $500 million dollars. Although paper making machines have a long history, the industry has yet to develop theoretical models which fully explain the paper forming process. Consequently, the paper making field is largely an empirical science in which innovations--even if resulting from novel rearrangements of mechanical paper forming components previously known must be subject to extensive testing before achieving the status of an acceptable design. Declaration of Michael H. Waller In Support Of Plaintiff Paper GMBH & Co. KG'S Opening Markman Brief ("Waller Dec.") ^J 9-10. The inventions of the Patents-in-suit relate to a section of the paper making machine especially critical to paper formation commonly known as the "wet end." In the wet end, a fiber suspension made up of small fibers, mixed with water and other additives, is dewatered through a wire or fabric mesh to form a web. Mechanical elements such as rolls, shoes, and blades, contact the mesh and facilitate the forming process. As water is drained from this fiber suspension through the mesh, fibers are pulled to the mesh surface in the direction of the draining water, forming a web consisting of the partially matted fibers and the remaining fiber

3

A copy of the prosecution history of the `805 patent is attached as Exhibit 3 and a copy of the prosecution history of the `168 patent is attached as Exhibit 4.

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suspension. After wet end dewatering, the web is transferred to other parts of the paper making machine for pressing, drying, and finishing. Waller Dec. % 11-13. The basic idea of dewatering a fiber suspension to form a web or sheet sounds simple enough, but, in practice, this simply stated process requires the solution of problems of immense complexity. First, before even being applied to the wire mesh, the fiber suspension, typically 99% water, must be maintained in a very turbulent state to ensure uniformity. This fiber suspension, even though mostly composed of water, typically contains hundreds of thousands of fibers per cubic inch. The primary processing job of the wet end is to drain this fiber suspension uniformly, that is, without undesirable patterns or imperfections. Complicating matters, the suspended fibers have a strong tendency to bind together to form undesirable clumps called "flocs." In a typical fiber suspension, such flocs form in a matter of milliseconds. Once formed, these flocs are very difficult to break apart, with the difficulty increasing by orders of magnitude as the amount of water remaining in the fiber suspension is reduced. Because this phenomenon, called flocculation, cannot be completely eliminated, measures must be taken to reduce the impact of flocs on the final product by breaking the flocs apart-a process called defloccing---as they form. Thus, to obtain a high quality product, the wet end part of the paper former must, simultaneously, uniformly dewater the fiber suspension and agitate the remaining fiber suspension to reduce flocculation. Waller Dec. T¶ 14-18. There are three basic types of wet end forming sections used in paper forming machines: The Fourdrinier, the Twin Wire Former, and the Hybrid Former. These basic wet end paper forming machine types are distinguished by the number and position of wire meshes used to dewater the fiber suspension. The Fourdrinier uses a single mesh. The Twin Wire Former uses two meshes, with one positioned on each side of the web. Finally, the Hybrid former primarily

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consists of a single mesh, with another mesh positioned on the top side of the web for a portion of the wet end. Waller Dec . ^ I9-22. These basic types of wet end paper forming

configurations are described in more detail below. The Fourdrinier, shown in the Figure below (Figure 4 from U .S. Patent No . 4,999,087, Exhibit 5), utilizes a single horizontally oriented and continuously moving wire mesh.

F

G. 4 (PRIOR ART)

(Figure 4 from U.S. Patent No. 4,999,087)
As shown in the above Figure, a j et of fiber suspension is discharged from a container, called a headbox, onto the surface of the mesh . Water is removed from the fiber suspension through the mesh below by the force of gravity assisted by the action of strips, rolls and/or vacuum boxes. Although adequate for many applications and benefitting from its relative simple design compared to the alternatives , dewatering the fiber suspension from one side only results in a web with different surface characteristics on each side - called hvo-sidedness . These differences render the resulting web unsuitable for applications in which the uniformity of both sides of the paper is important. In addition , dewatering from one side necessarily requires that the web formation process take longer than in paper formers able to simultaneously dewater the fiber

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suspension from both sides of the web . As explained above, with each passing second undesirable flocs form . To make matters worse, the single wire drainage model of the Fourdrinier provided limited opportunity to agitate and defloc the fiber suspension during web formation. Waller Dec .'s 23-28. For applications in which the Fourdrinier ' s problems of flocculation and web twosidedness were unacceptable , a modified Fourdrinier design, called a Hybrid former, as shown in the Figure below (Figure 1 from DE 3138133 Al, Exhibit 6), was developed.

RgA

(Figure 1 from DE 3138133 Al)
In a Hybrid former, as in the Fourdrinier , the fiber suspension is discharged onto a single wire mesh and is dewatered through the action of gravity in conjunction with various strips, rolls, and vacuum boxes . Unlike the Fourdrinier, however, the Hybrid former has a region in which a second wire mesh , attached to a component called a top former, is positioned above the web. In the part of the wet end containing the top foriner, the web is simultaneously dewatered from above and from below. As a result , the time needed for dewatering, as well as the two-sidedness of the web, are reduced to some extent. Waller Dec. ¶ 29-31. In a Twin Wire Former, the entire web formation process is performed by simultaneously dewatering the fiber suspension from both sides. As shown in the Figure below (Figure 1 from

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U.S. Patent No. 4,609,435, Exhibit 7), in a Twin Wire Former the entire wet end forming region is bounded above and below by a wire mesh.

F

IG- 1

(Figure 1 from U.S. Patent No. 4,609,435)
As a result, the time needed to dewater the web, as well as two-sidedness, is reduced yet further from the levels possible with either the Fourdrinier or the Hybrid Former. On the down side, because of the absence of a single wire predrainage zone, the Twin Wire Former subjects the forming web to high stress at the very beginning of web formation, risking damage to the web. Waller Dec. 132-34. Despite the comparative reduction in web formation time, flocculation, and sheet twosidedness over the Fourdrinier and the Hybrid Former, these problems persisted. As the demands on paper forming machines, such as increased production speed and quality, increased,

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once widely adopted paper forming machine designs became unacceptable. Waller Dec. J 35-

36.
As disclosed in the Patents-in-suit: [ilt has been attempted for decades with twin-wire formers of the known type to produce fiber webs (in particular, paper webs) of the highest possible quality with relatively high operating speeds. Due to the forming of the web between two wires, the result, in particular, is obtained that the final fiber web has substantially the same properties on both sides (little "two-sidedness"). However, it is difficult to obtain as uniform as possible a distribution of the fibers in the final fiber web.

`805 patent, col. 1:45-53.
The Patents-in-suit further disclose that it had been difficult to obtain a good `formation' since while the web is formed, there is always the danger that fibers will agglomerate and form flocculations. Therefore, it is attempted to form a jet of pulp slurry which pulp slurry is as free as possible of flocculations in the headbox (for instance, by means of a turbulence producer). It is, furthermore, endeavored so to influence the drainage of the fiber suspension during the web-forming that `reflocculation' is avoided as far as possible or that, after possible flocculation, a `deflocculation' (i. e., a breaking up of the flocculations) takes place.

`805 patent, col. 1:53-63.
As described in detail below, the invention claimed in the Patents-in-suit dramatically addresses this pressing need with a novel combination of elements.

B.

THE INVENTION

To address the aforementioned problems in prior art Twin Wire Formers--problems that had persisted in the paper making industry for decades-Voith invented a novel Twin Wire Former that dramatically reduces the incidence of flocs in the web during formation as well as undesirable web two-sidedness, even under the demands of modern production quality and speed requirements. As disclosed in the Patents-in-suit, among other innovations, Voith discovered that introducing resiliently mounted strips, or blades, in the claimed configuration, effectively

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reduced flocculation while, at the same time, maintaining relatively constant pressure in the fiber suspension and, thereby, facilitating proper web formation. This innovation was accomplished despite the failure of others in the paper making industry to discover Voith's novel combination, and despite the long felt need to improve Twin Wire Formers. Voith's invention is all the more remarkable considering that the dramatic improvement was achieved using components which, though employed in disparate paper forming applications, were never, before the teachings of the Patents-in-suit, known to achieve, in combination, the long sought improvements. Waller Dec. J^ 39-42. A more detailed description of Voith's invention as described in the Patents-in-suit follows. As with Twin Wire Formers generally, Voith's novel Twin Wire Former utilizes two opposing wire meshes to form a web from a fiber suspension. The "wires" referred to in the Patents-in-suit are actually mesh belts, usually made of fabric. During web formation, each mesh travels in an endless, i.e., closed, loop. At the beginning of, or entrance to, the twin-wire zone, the two wire meshes form a wedge shaped entrance slot. A headbox is used to discharge the fiber suspension, also referred to as "pulp slurry" or "stock," into the twin wire zone. Prior to discharge, the headbox maintains the fiber suspension in a turbulent state in order to inhibit flocculation. The fiber suspension is discharged from the headbox onto the wire meshes into the wedge shaped slot. The two wire meshes thereafter travel together through the twin wire forming zone. Waller Dec. J 43-45.

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Fig. 1 of the `805 patent (and `168 patent), reproduced below, shows an embodiment of components, described in more detail below, which further comprise the invention.

x Y r

F i g.

To form the web, water is removed from the fiber suspension as it travels between and along the path of the wires. As water is removed through the two meshes, fibers collect in a mat against each mesh, leaving a relatively liquid fiber suspension center. Because this liquid center persists during much of the web formation process, it is a fertile ground for the formation of undesirable flocs, which, as explained above, may take only milliseconds to form. An important aspect of the invention is to maintain turbulence in this liquid center of the forming web while reducing the risk that the partially formed web is broken. As described in more detail below, a specific combination of resiliently mounted and rigidly mounted strips or blades contributes to accomplishing this result. At the end of the twin wire zone, the opposing twin wire meshes separate and one of the meshes carries the formed web through the next processing component of the paper making machine for pressing, drying, and finishing. Waller Dec. T 46-50. To practice the invention, the twin wire formers claimed in the patents-in-suit are constrained to include at least some drainage and forming elements positioned relative to one

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another in a specified way. Unlike the Hybrid former and the Fourdrinier described above, the invention precludes the use of a single-wire pre-drainage zone. As explained above, any substantial single wire predrainage is likely to result in undesirable web two-sidedness and increased flocculation. Thus, another important aspect of the invention is that the web formation begins in the twin-wire zone. Waller Dec. T 51. To illustrate how the above described aspects of the invention are realized, the following provides a more detailed description of a preferred embodiment. As described above, in the beginning of the twin-wire zone, the fiber suspension is discharged from the headbox4 onto the two wire meshes at the wedge shaped entrance slot. At least one of the wire meshes passes over at least one drainage element in order to partially dewater the fiber suspension and begin the formation of the web. In a preferred embodiment, this drainage element is curved, e.g., a rotating forming cylinder or a (stationary) curved forming shoe. Additional drainage elements may also be present in the beginning of the twin-wire zone. Waller Dec. T 52-54. Following the wedge shaped entrance slot and initial drainage element(s), the invention includes a plurality of drainage strips (blades) that contact each wire mesh in an offset nonopposing relationship. These blades contact the wire mesh at points along the mesh path that are different from any blade in contact with an opposite wire mesh. The drainage strips (blades) further remove water from the web by stripping water from the surface of the passing wire mesh. In addition to providing intensive drainage, these blades also inhibit the formation of flocs in the liquid center of the partially formed web. This is achieved by imparting a slight deflection of the wires so that turbulence is constantly produced in the still liquid part of the web. `805 patent, col. 5:19-24. Importantly, drainage strips (blades) on one side of the wire meshes are resiliently
a

As previously explained, the headbox maintains the stock in a turbulent condition prior to application to the wires.

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supported while drainage strips (blades) on the other side are rigidly supported. As described in the specification, the use of resiliently supported blades allows for the blade to temporarily move in response to changes in pressure of the fiber suspension, thus maintaining a relatively constant forming pressure and avoiding undesirable damage to the partially formed web. `805 Patent, col. 7;16-21; Waller Dec. ¶J 55-57. As explained in the patent: Due to the resilient supporting of the lower strips 57, the adjustment, once effected, is insensitive to changes in the quantity or quality of pulp, so that no backing up takes place in front of the strips and, nevertheless, an effective introduction of turbulence forces into the fiber suspension takes place. Id. The actual number of drainage strips on each side of the wires can be varied. `805 patent, col. 7:60-65; see also Figs. 1-5, elements 27, 28, 50, 57, 58. Waller Dec. ¶ 55-59. After the drainage strips there may be one or more additional drainage elements. See Figs. 1-5, elements 23, 29, 31, 45. Waller Dec. 60.

As explained in the Patents-in-suit, a paper making machine containing at least the elements as claimed produces improved quality paper, i.e., with reduced flocculation, and at desirably high speed. Waller Dec. 61.

During the prosecution of U.S. Patent No. 5,389,206, a grandparent of the `805 patent, the applicants explained that the elements which make up the invention were known in the prior art, and that it was the claimed combination of elements which was new and patentable: applicants are not claiming that any of the specific features are new. What applicants are claiming however is that they are the first to have combined these features ... and that such combination provide unforeseeable improvements in the resultant product, to wit, the combination ... results in extremely high increase in quality of the finished fiber web while at the same time being insensitive to changes in the amount of suspension fed and to changes in the drainage behavior of the fiber suspension. Thus it is possible to obtain both a high increase in quality with respect to the

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formation and also good values with regard to the retention of fillers and fines. `206 patent prosecution history, Amendment dated November 19, 1992, p. 5. Exhibit 8. Waller Dec. T 62. The patents-in-suit also disclose that the invention relates to a combination of known features: The inventors have found that a combination of known features, namely: A. Twin-wire former without a single-wire pre-drainage zone or at least without a single-wire pre-drainage zone of any substantial length such as to cause any appreciable pre-drainage Start of the drainage in the twin-wire zone at a preferably curved drainage element, for instance on a rotating forming cylinder or, even better, on a curved stationary forming shoe Further drainage in the twin-wire zone between strips which are arranged along a "zig-zag" line, the strips which rest against the one wire belt being resiliently supported.

B.

C.

leads to an extremely high increase in the quality of the finished fiber web, so that it satisfies even the highest requirements.

`805 patent, col. 3:1-17. Waller Dec. ¶ 63.
As explained by the applicants, although each feature used in the claimed combination had been used in disparate paper forming applications, prior to the Voith's invention, despite intense pressure to improve the production quality and production speed of paper produced by Twin Formers over the course of decades, no one had discovered the claimed combination or its dramatic properties. See, e.g., `805 patent, col. 1:45-63; 2:44-45. Waller Dec. ^ 64.

C.

THE PATENTS

U.S. Patent No. 5,718,805 is entitled "Twin wire former" and issued on February 17, 1998. The application which matured into the `805 patent was filed on November 2, 1995, and

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claims the benefit of German Patent Application P 39 27 597.3 dated August 22, 1989. The inventors named on the `805 patent are Egelhof; Dieter (Heidenheim, DE), Henseler; Klaus (Heidenheim, DE), Kade; Werner (Neenah, WI), Meinecke; Albrecht (Heidenheim, DE), Wanke; Wilhelm (Heidenheim, DE), Wulz; Hans-Jurgen (Heidenheim, DE), and deceased Buck, Rudolf (late of Heidenheim, DE). The `805 patent has a total of 5 claims, all of which are independent and directed to an apparatus. Each claim recites a twin-wire former for the production of a paper web from a fiber suspension with specific elements. For example, Claim 3 of the `805 patent is reproduced below: 3. A twin-wire former for the production of a paper web from a fiber suspension, the twin wire former comprising: first and second web forming wire belts, means for directing the wire belts to travel along a path together for forming a twin wire zone of the twin wire former, with the web between the wire belts as the wire belts travel along the path through the twin wire zone, neither wire belt defining a single wire predrainage zone; each wire belt forming an endless loop; the twin wire zone having a first section which includes a first drainage element at the start of the path through the twin wire zone, means for supporting the belts for forming a wedge shaped entrance slot into the first section, a fiber suspension supplying headbox having an outlet placed and directed for delivering fiber suspension from the headbox to the wedge shaped entrance slot of the first section of the twin wire zone; the twin wire zone having a second section following the first section along the path of the belts through the twin wire zone; in the second section, a plurality of first drainage strips are positioned within the loop of the first wire belt and are for contacting the first wire belt; in the second section, a plurality of second drainage strips are positioned within the loop of the second wire belt and are for contacting the second wire belt; the first strips being shifted in position along the path of the wire belts with respect to the second strips so that the first and second strips are offset and in a non-

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opposing relationship; first support means for resiliently supporting the first drainage strips against the respective wire belt that the strips contact, the last one of the second drainage strips being located downstream of the last one of the first drainage strips;

second support means supporting the second drainage strips rigidly against the second wire belt; the twin wire zone having a third section following the second section along the path of the wire belts through the twin wire zone; a second drainage element in the third section for being engaged by one of the wire belts as the wire belts travel over the second drainage element, the second drainage element having an open surface to enable water to be drained through the wire belt in contact therewith; and the twin wire zone being free of rolls which deflect the twin wire zone. U.S. Patent No. 5,972,168 is also entitled "Twin Wire Former" and issued on October 26, 1999. The `168 patent is a continuation of the `805 patent, and thus claims the same benefit of priority and names the same inventors. The `168 patent has a total of 8 claims, 4 independent and 3 dependent. The patent contains both apparatus claim (see claims 3-4 and 7-8) and method claims (see claims 1-2 and 56). For example, the following is Claim 7 of the ` 168 patent: 7. A twin-wire former for the production of a paper web from a fiber suspension, the twin wire former comprising: first and second web forming wire belts which travel along a path together for forming a twin wire zone of the twin wire former, with the web between the wire belts as the wire belts travel along the path through the twin wire zone, neither wire belt defining a single wire predrainage zone; each wire belt forming an endless loop; the twin wire zone having a first section which includes a stationary curved forming shoe at the start of the path of the wire belts through the twin wire zone; supports which support the wire

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belts for forming a wedge shaped entrance slot into the first section;
a fiber suspension supplying headbox having an outlet placed and directed for delivering fiber suspension from the headbox to the wedge shaped entrance slot of the first section of the twin wire zone;

said stationary curved forming shoe having an open surface to enable drainage of water from the fiber suspension and being curved along the path of the wire belts through the twin wire zone, the forming shoe being engaged by one of the wire belts and being arranged for curving the path of both wire belts around the forming shoe after the entrance of the suspension into the entrance slot; the twin wire zone having a second section following the first section along the path of the wire belts through the twin wire zone; in the second section, a plurality of the first drainage strips are positioned within the loop of the first wire belt and are for contacting the first wire belts; in the second section, a plurality of second drainage strips are positioned within the loop of the second wire belt and are for contacting the second wire belt; the first strips being shifted in position along the path of the wire belts with respect to the second strips so that the first and second strips are offset and in a non-opposing relationship; a first strip support which resiliently supports the first drainage strips against the first wire belt that the first strips contact; a second strip support which supports the second drainage strips rigidly against the second wire belt;
the twin wire zone having a third section following the second section along the path of the wire belts through the twin wire zone; a stationary drainage element followed by a suction roll in the third section, for being engaged by one of the wire belts as the wire belts travel over the stationary drainage element and said suction roll, the stationary drainage element and said suction roll having an open surface to enable water to be drained through the wire belt in contact therewith; and

the twin wire zone apart from said suction roll being free of rolls which deflect the twin wire zone. The claimed paper making machine, and method for making paper, provide improved quality paper in a twin wire former.

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IV.

ARGUMENT A. THE LAW OF CLAIM CONSTRUCTION
1. Ordinary and Accustomed Meaning to a Person of Ordinary Skill in the Art At the Time of the Invention.

When construing claim terms, "a court must presume that the terms in the claim mean what they say, and, unless otherwise compelled , give full effect to the ordinary and accustomed meaning of claim terms." Johnson Worldti,ide Assoc., Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed. Cir. 1999). See also Lurni Products Co. v. Koninklijke Philips Electronics N. V., 140 Fed. Appx. 236, 245 (Fed. Cir. 2005) (" Claim terms are to be given their ordinary and customary meaning to one of skill in the relevant art ." (citing Johnson 97orldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed. Cir. 1999))); see also PC Connector Solutions LLC v. S» rartDisk Corp., 406 1`3d 1359, 1363 (Fed. Cir. 2005) (citing Carroll Touch, Inc. v. Electra 11fechanical Systems, Inc., 15 F.3d 1573, 1577 (Fed. Cir. 1993)). The ordinary and accustomed meaning "is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention , i.e., as of the effective filing date of the patent application ." Phillips v. AWHCorp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) ( en bane). To ascertain the plain and ordinary meaning to one of skill in the art, the Court objectively reviews: ... those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean. Those sources include the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art. Phillips, 415 F.3d at 1313. In other words, the claim terms are not viewed in a "vacuum ", but in the context of the specification and prosecution history. See Medrad, Inc. v. MR1 Devices Corp., 401 F.3d 1313, 1319 (Fed. Cir. 2005); see also Markman v. Westview Instruments, Inc., 52 F.3d

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967, 979 (Fed. Cir. 1995). While the claims are viewed in light of the specification, however, embodiments appearing in the written description will not be used to limit claim language that has broader effect. Paymaster Technologies, Inc. v. U.S., 180 Fed . Appx. 942, 946 (Fed. Cir. 2006) ("It is axiomatic that claims are only rarely, if ever, construed as limited to the preferred embodiment." (citing Johnson Woi·ldiodde Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 992 (Fed. Cir. 1999))); see also Innova/Pure Water, Inc. v. Safari Water Filtrations Sys., Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004); see also Electro Sci. Indus., Inc. v. Dynamic Details, Inc., 307 F.3d 1343, 1349 (Fed. Cir. 2002); see also Laitrarn Corp. v. NEC Corp., 163 F.3d 1342, 1347-48 (Fed. Cir. 1998). Importantly, the presumed ordinary meaning of a claim term will only be `rebutted if the inventor has disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope. " Geinstar-TV Guide International, Inc. v. International Trade Coininission, 383 F.3d 1352, 1364 (Fed. Cir. 2004); see also Conoco, Inc. v. Energy & Environmentallntern ., L. C., 460 F.3d 1349, 1357 (Fed. Cir. 2006) (" an inventor may use the specification to intentionally disclaim or disavow the broad scope ofa claim ... However, this intention must be clear." (citing Teleflex, Inc. v. Ficosa N. Ain. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002) (" The patentee may demonstrate an intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope."))); see also Innova/Pure Water, Inc., 381 F.3d at 1117 (noting claims are not to be read restrictively "unless the patentee has demonstrated a clear intention to limit the claim scope using words or expressions of manifest exclusion or restriction").

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Where, as here , related patents are involved, claim terms should be construed identically across the related patents . Glaxo Group Ltd v. Apotex, Inc., 376 F.3d 1339, 1347 (Fed. Cir. 2004). See also Z4 Technologies, Inc. v. Microsoft Corp., 507 F.3d 1340, 1348 (Fed. Cir. 2007) (citing Omega Eng'g, Inc., v. Raytek Corp., 334 F.3d 1314, 1334 (Fed.Cir.2003) ("[W]e presume, unless otherwise compelled , that the same claim term in the same patent or related patents carries the same construed meaning.")); see also Phonornetrics, Inc. v. Northern Telecom Inc., 133 F.3d 1459, 1465 (Fed. Cir. 1998) ("A word or phrase used consistently throughout a claim should be interpreted consistently."). The patent claims must also be construed in light of the prosecution history, although it is recognized that the prosecution history "often lacks the clarity of the specification and thus is less useful for claim construction purposes." Phillips, 415 F.3d at 1318 . As with claim terms, where there are related patents, the statements made during the prosecution of one patent are relevant to the scope of all sibling patents. Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1350 {Fed. Cir. 2004); Laitrarn Corp. v. Morehouse Indus., Inc., 143 F.3d 1456, 1460 & n. 2 (Fed. Cir. 1998) (proper to consider for claim construction the prosecution histories of two related re-examination patents originating from same parent). Claim construction of a means-plus-function limitation includes two steps. First, the court must determine the claimed function . Applied Medical Resources Corp. v. United States Surgical Corp., 448 F.3d 1324, 1352 (Fed. Cir. 2006). Second, the court must identify the corresponding structure in the written description of the patent that performs that function. Id

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2.

Definition of Person of Ordinary Skill in the Art.

For purposes of claim construction, a person of ordinary skill in the art as of 1989 was someone with an engineering degree and 1-3 years of experience working with paper making machines. Waller Dec.'s 95.

B.

PROPOSED CLAIM CONSTRUCTION

In view of the language of the claims, the specification, the prosecution history and relevant extrinsic evidence, Voith introduces the ordinary and accustomed meaning of the claim terms as would have been understood by a person of ordinary skill in the art. 1. twin-wire former

A twin-wire former is a paper forming machine in which the web is formed between two moving "wires." A twin wire former is distinguished from single wire formers and Hybrid formers. Waller Dec. 2. 68. wire

A wire in the context of a twin wire former is a mesh belt. The Patents-in-suit use the terms "wire" and "belt" together and interchangeably. See `805 patent, col 4:6-8, 17-18: "the two wire belts 11 and 12"; col. 4:39: "wire 12"; cal. 4:55: "wire 11"; col. 2:63-67: "drainage strips against one belt are offset along the path of the wire belts with respect to the drainage strips against the other belt, providing a zig zag or staggered array, and the drainage strips against at least one of the belts are resiliently supported." Consistent with the specification of the Patents-in-suit, The Handbook of Pulp and Paper Terminology defines the term "wire" as an endless belt of woven wire cloth for the drainage of stock and forming a fiber web. See Gary A. Smook, HANDBOOK OF PULP & PAPER

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TERMINOLOGY, 1990, p. 206. In current practice, few metallic wires are used, but the term is usually applied to synthetic forming fabrics. Waller Dec. 3. web 69.

A web is a partially dewatered fiber suspension. Consistent with the specification of the Patents-in-Suit, the Handbook of Pulp & Paper Terminology states that the term web is applied to the full width of the paper sheet in the process of being formed, pressed, dried, finished or converted. See Gary A. Smook, HANDBOOK OF PULP & PAPER TERMINOLOGY, 1990, p. 205. Waller Dec. $ 70. 4. fiber suspension

A fiber suspension is a mixture of pulp fiber, water and additives. The fiber suspension is also commonly referred to as "stock'" or "pulp slurry." See `805 patent, col. 1:1-3; col. 1:27-28; col. 1:32-33. Consistent with the specification of the Patents-in-suit, the Pulp & Paper Dictionaq defines "stock," a synonym for fiber suspension, as the fibrous mixture in a paper mill which is ready to make into paper. John. R. Lavigne, Pulp & Paper Dictionary, 1986, 1992, p. 413. The fiber suspension may consist of one or more types of beaten or refined pulps, with or without suitable fillers, dyes, additives, and other chemicals. Id. Waller Dec. 1 71. 5. means for directing the wire belts

The "means for directing the wire belts" is a means plus function limitation. The recited function is "directing the wire belts." The structures disclosed in the specification which direct the wire belts include rolls, shoes, strips, and other structures which determine the path the belts

s

Stock: The fibrous mixture in a paper mill which is ready to make into paper. It may consist of one or more types of beaten or refined pulps, with or without suitable fillers, dyes, additives, and other chemicals. John R. Lavigne, Pulp & Paper Dictionaly, 1986, 1992, p. 413.

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travel. See `805 patent, Figs. 1-5. Waller Dec. ¶ 72. This limitation includes these disclosed structures and equivalents thereof. 35 U.S.C. § 112 16. 6. twin wire zone

The twin wire zone is where web formation occurs in a twin wire former. Waller Dec. 73. 7. single wire predrainage zone

A single wire predrainage zone is the part of a single wire former or Hybrid former in which the web is partially formed initially only in a lower layer of the fiber suspension while the upper layer remains liquid. `805 patent, col. 3:44-48. The twin wire former claimed in the Patents-in-suit does not have a single wire predrainage zone. `805 patent, col. 3:3-6; col. 8:11-12 (describing the invention as a twin wire former with "neither wire belt defining a single wire predrainage zone"). Waller Dec. 8. first section 74.

The first forming section of a twin wire former is where web formation begins. Waller Dec. T 75. 9. drainage element

An element which removes water from the fiber suspension or web. Examples of drainage elements disclosed in the specification include rolls, suction boxes, shoes and strips. See, e.g., '805 patent, col. 3:7-10 ("Start of the drainage in the twin-wire zone at a preferably curved drainage element, for instance on a rotating forming cylinder or, even better, on a curved stationary forming shoe"); col. 5:16-18 ("two drainage boxes 17 and 18 with the alternately resiliently and firmly supported ledge strips 27 and 28."); col. 1:42-44 ("in a third section of the

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twin-wire zone there are a plurality of stationary drainage elements developed as flat suction boxes."). Waller Dec. 176, means for supporting the belts for forming a wedge shaped entrance slot This element is a means plus function limitation. The recited function of this limitation is "forming a wedge shaped entrance slot." The structures disclosed in the specification for supporting the belts (wires) to form a wedge-shaped entrance slot are the two rolls at the start of the twin wire former. See `805 patent, Figs. 1-5; cal. 4:4- 6. Waller Dec . ^ 77. This limitation includes these disclosed structures and equivalents thereof. 35 U.S.C. § 112 ¶ 6. 11. wedge shaped entrance slot 10.

The wedge shaped entrance slot is the wedge-shaped area between the two wires at the start of the twin wire zone where the two wires approach each other. See, e.g. `805 patent, col. 4:1-6 ("The endless wire belts (lower wire 11 and upper wire 12), shown only in part, travel in the direct vicinity of a headbox 10 over, in each case, a breast roll 13 and 14 respectively, so that the two wire belts together form a wedge-shaped entry slot 15 at the start of the twin-wire zone."); see also Figs. 1-5. Waller Dec. 78.

12.

headbox

A container at the beginning of the twin wire former which discharges the fiber suspension onto the wires. See, e.g., `805 patent, cal. 1:29-32. Waller Dec. ^ 79. 13. second section

The forming section after the first forming section of a twin wire former. Waller Dec.( 80.

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14,

drainage strips

A drainage strip is a blade which contacts the wire. `805 patent, col. 4:20-28, 37-38 ("The strips scrape the water from the wires.") Waller Dec. ^ 81. 15. offset and in a non-opposing relationship

Positioned so that the contact points of the blades on the wire do not oppose one another, e.g., positioned in a zig-zag or staggered array. See, e.g., `805 patent, col. 2:63-66. Waller Dec. 82. 16. support means for resiliently supporting

The "support means for resiliently supporting" is a means plus function limitation. The recited function is "resiliently supporting." Exemplary structures disclosed in the specification for resiliently supporting the blades are springs and pneumatic pressure cushions. See, e.g., `805 patent, col. 4:19-26. Waller Dec. ¶ 83. This limitation includes these disclosed structures and equivalents thereof. 35 U.S.C. § 112' 6. 17. means for collecting the water

The "means for collecting the water" is a means plus function limitation. The recited function is "collecting water." The structures disclosed in the specification for collecting water include water-collection containers and channels. See, e.g., `805 patent, col. 6:25-26 ("Further

elements of the twin-wire former shown in Fig. 2 are water-collection containers 41, 42 and 43."); `805 patent col. 4:44-47 ("Accordingly, a vertical channel 21a is positioned in front of the first upper strip 28 to carry away or collect the water scraped off by the first strip 28"). Waller Dec. ¶ 84. This limitation includes these disclosed structures and equivalents thereof. 35 U.S.C. § 1126.

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18.

third section

The forming section after the second forming section of a twin wire former. Waller Dec.

85.
19, roll

A rotating, cylindrically shaped, solid or hollow structure. This definition is consistent with the specification and the understanding of one of skill in the art. See John R. Lavigne, Pulp & Paper Dictionary, 1986, 1992, pp. 372-73. Examples of rolls disclosed in the `805 patent specification are breast rolls (col. 4:4), guide rolls (col. 3:51, cot. 5:12), suction rolls (col. 5:12), and forming rolls (col. 5:42). Waller Dec. 86.

20.

endless loop

A continuous wire forming a closed loop. See `805 patent, Figs. 4 and 5 showing wire 12 in an endless loop. Waller Dec. ^ 87. 21. means for supplying a vacuum

The "means for supplying a vacuum" is a means plus function limitation. The recited function is "supplying a vacuum." The structures disclosed in the specification for supplying a vacuum is a chamber which applies a vacuum. See e.g., vacuum chamber 51. `805 patent, Fig. 4 and col. 6:53. Waller Dec. ¶ 88. This limitation includes these disclosed structures and equivalents thereof. 35 U.S.C. § 112 T 6. 22. resiliently supported

The term "resiliently supported" means supported by flexible structures such as springs, pneumatic pressure cushions, or equivalent structures. The specification of the Patents-in-suit discloses that the resiliently supported strips are supported by springs or pneumatic pressure cushions. See, e.g., `805 patent, col. 4:19-26; `805 patent, col. 7:6-8. Waller Dec.'s 89.

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23.

rigidly supported

The term "rigidly supported" means firmly or non-resiliently supported. This definition is consistent with the specification of the Patents-in-suit and the understanding of one of ordinary skill in the art. See `805 patent, col. 5:17-34. Waller Dec. T 90. 24. dewatering element

The term "dewatering element" means an element which removes water. Waller Dec.

91.
25. suction roll

A roll which includes suction to remove water. See, e.g., `805 patent, suction roll 20 in Fig. 1, col. 5:11-14. Waller Dec. ¶ 92. 26. forming roll

A forming roll is a roll used to form the web. The Patents-in-suit disclose that the forming roll may be a suction roll. See, e.g., `805 patent, forming roll 40 in Fig. 2, col. 5:42; cal. 6:20-21. Waller Dec. ^ 93. 27, forming shoe

A stationary drainage element which removes water. See, e.g., `805 patent, Fig. 1 (element 16), col. 3:8-10. The Patents-in-suit disclose that the forming shoe may be curved or straight. `805 patent, col. 4:13-15. Waller Dec. $ 94.

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V.

CONCLUSION
Plaintiff respectfully requests the Court to adopt the ordinary and accustomed meanings

of the claim terms as set forth herein.

YOUNG CONAWAY STARGATT & TAYLOR, LLP

dlx^A n P ff . 3990)
Cliad S.C. Stover (No, 4919) The Brandywine Building 1000 West Street, 17tH floor Wilmington. Delaware 19899 Tel: (302) 571-6600 Fax: (302) 571-1253 `Itlorl7eys for
P1Cll1?11f

Voith Palter GiVIBII & Co. Kg.

OF COUNSEL:
GREENBLUM & BERNSTEIN, P.L.C. Neil F. Greenblum Michael J. Fink Neal Goldberg 1950 Roland Clarke Place Reston, VA 20191 (703} 716-0081

Dated: January 16, 2008

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CERTIFICATE OF SERVICE
1, Adam W. Poff, hereby certify that on January 16, 2008, 1 caused to be electronically filed a true and correct copy of the foregoing document with the Clerk of the Court using CM/ECF, which will send notification that such filing is available for viewing and downloading to the following counsel of record: George H . Seitz, 111, Esquire Patricia P. McGonigle , Esquire SEITZ, VAN OGTROP & GREEN, P.A. 222 Delaware Avenue

Suite 1500 P.O. Box 68 Wilmington , DE 19899

I further certify that on January 16, 2008, 1 caused a copy of the foregoing document to be served by hand delivery on the above-listed counsel of record and on the following nonregistered participants in the manner indicated: BY E-MAIL Anthony S. Volpe, Esquire Ryan W. O'Donnell, Esquire Volpe and Koenig United Plaza, Suite 1600 30 South 170' Street, Philadelphia, PA 19103

YOUNG CONAWAY STARGATT & TAYLOR, LLP
/s/Adatn uJ. Po Adam W. Poff (No. 3990) Chad S.C. Stover (No. 4919) The Brandywine Building 1000 West Street, 17th Floor Wilmington, Delaware 19801 (302) 571-6600 [email protected] Attorneys for Voith Paper GmbH & Co. KG

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EX HIBIT 3 PART 2

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Case 1:07-cv-00226