Friday, May 27, 2016

Netzer Consulting appeal to CAFC re: summary judgment fails; what is "fractionation"?

Netzer lost his appeal to the CAFC of an adverse summary judgment of non-infringement in favor of Shell Oil:

David Netzer Consulting Engineer LLC (“Netzer”)*
appeals from the decision of the United States District
Court for the Southern District of Texas granting summary
judgment of noninfringement of the asserted claims
of U.S. Patent 6,677,496 (“the ’496 patent”). David Netzer
Consulting Eng’r LLC v. Shell Oil Co., No. 4:14-cv-00166,
ECF No. 45 (S.D. Tex. Aug. 26, 2015) (“Decision”). For the
reasons that follow, we affirm.

The relevant claim was to process for the coproduction of ethylene and
purified benzene and a relevant claim element was:

fractionating the pyrolysis gasoline to form a
purified benzene product comprising at least
about 80 wt % benzene.

In the absence of anything else, one might think "fractionating" would
include ANY process to create fractions. Here, that argument did NOT

Shell argued that the term “fractionating”
should be construed to mean “conventional distillation,
i.e., separating compounds based on difference in their
boiling points,” which excludes extraction, i.e., separating
compounds based on solubility differences. Shell argued
that the patentee disclaimed extraction in the specification
and prosecution history. According to Shell, its
accused process does not meet the fractionating step
because it uses extraction—more specifically, the Sulfolane
process developed by Shell in the 1960s—to form a
benzene product with 99.9% purity. Netzer responded
that “fractionating” should be construed to mean “separating
a chemical mixture into fractions, no matter the
process units used.”


We agree with Shell that the claim term “fractionating”
in this patent
means separating compounds based on
differences in boiling points, i.e., distillation, which excludes
extraction, such as in the Sulfolane process. The
specification repeatedly and consistently uses “fractionating”
or “fractionation” to describe separating petrochemicals
based on boiling point differentials. Moreover,
importantly, the patentee made clear and unmistakable
statements in the intrinsic record, distinguishing the
claimed invention from and disclaiming conventional
extraction methods that produce 99.9% pure benzene.


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