Free Claim Construction Opening Brief - District Court of Delaware - Delaware

Case 1:04-cv-01507-SLR

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EXHIBIT H

Case 1:04-cv-01507-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRJCT OF DELAWARE
LP MATTHEWS, L.L.C. Plainti fc
V.

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Civil Action No. 04-1507 (SLR)

BATH & BODY WORKS, INC.; LIMITED ) BRANDS, INC.; KAO BRANDS CO. ) ) (fn
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CONFDENTIAL

UPDATED EXPERT REPORT OF CHRISTOPHER T. RHODES PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 26(A)(2)(b)
Pursuant to Rule 26(A)(2)(B), Fed. R. Civ. P., and on behalf of Plaintiff L.P. Matthews, LLC ("Matthews"), I submit the following report updating my opinions in this matter. Updating

is necessary because, on February 28, 2006 (the same day my original report was submitted),
Defendants Limited Brands, Inc. and Bath & Body Works, Inc., et al. (collectively, "the Limited defendants") provided to plaintiffs counsel a February 10, 2006 declaration from one of their suppliers. 1 reserve the right to supplement or modify the opinions expressed herein and the bases for these opinions depending on the proofs presented by the Limited defendants and by Kao Corporation and Kao Brands Company (collectively "the Kao defendants") or on additional discovery or other information provided by any defendant.

AS FILED IN ORIGINAL REPORT FEBRUARY 28,2006
INTRODUCTION I. ENGAGEMENT AND COMPENSATION
I have been engaged by the law firm of Robins, Kaplan, Miller & Ciresi L.L.P. to render an opinion regarding whether the claims of U.S. Patent No. 5,063,062 ("the `062 patent") read on
CONFIDENTIAL

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be cleaned, as by rinsing, wiping, or the like. Such cleaning composition may have surfactants and organic solvents such as oils. In these systems, the organic solvent (hydrophobic) has cleaning properties. The surfactant, which also has cleaning properties, disperses organic solvent by acting as stabilizing agent. In the context of the `062 patent, the oat ingredients, which are surfactants fknction as stabilizing agents (emulsifying agents). Other such agents may also be present in he system and play a role in the emulsification process. The orange oil is an organic solvent, though other such agents also may be present in the system.

IV.

CLAIM ELEMENTS
The language used in claims 6 and 9 of the `062 patent would be simple and easy for a

person of ordinary skill in the art of that patent to understand. My opinion about that understanding follows. The claim preambles of both claims call for a cleaning composition for use on human skin. Such a composition is one that is used to treat a substance on the skin in order that the substance may be removed. According to the Limited defendants' corporate designee, the perception of the consumer is a reliable test for the effect of a particular product. (Ex. 3, Transcript of Rule 3O(b)(6) Deposition of Konstantinos Lahanas at 597: 1 1-20.) This is consistent with the kind of testing reported in the specification of the `062 patent to evaluate the cleaning effect of the invention. (Ex. 2 at 3 : 14-17.) The claim term "orange oil" means the non-water soluble part of an orange. (E.g Ex. 25 (defining orange'); Ex. 3 at 149:12-151:14.) Based on U.S. Patent No. 5,013,485 ("the `485 patent"), I conclude that orange oil can perform cleaning at levels of 0.01% or lower. (Ex. 4.)

Mandarin oranges. Navel oranges, bitter oranges, sour oranges, Setille oranges. su eet oranges. and tangerines are oranges. Should the Court construe the term `-orange"inconsistent with this ordmar?;meaning. then, at a miminuin. there arc insubstantial &fferences between each of these types of oranges. CONFIDENTIAL

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