CCD Holdings, LLC v. Wal Mart Stores Inc

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

CCD HOLDINGS, LLC PLAINTIFF

V. Case No. 4:19cv102 JM

CENERGY USA, INC.; WAL-MART

STORES, INC.; WAL-MART.COM USA, LLC;

MAGIC DIRT LLC; and

MAGIC DIRT HORTICULTURAL

PRODUCTS LLC. DEFENDANTS

ORDER

The Court has several issues to address in this order. First, some disputed terms in the

three patents at issue need to be construed, after deciding whether to grant Plaintiff CCD

Holdings, Inc.’s motion to exclude evidence presented by Defendants at the Markman hearing.

(Doc. 92). Second, CCD has filed a motion for sanctions against all Defendants and their lead

counsel. (Doc. 106). Third, Defendants have filed a motion for severance and to stay the action

against Defendants Walmart Stores, Inc. and Walmart.com USA LLC (collectively “Walmart”)

pending determination of the patent issues. (Doc. 108-1).

Claim Construction

This dispute involves three patents in a family of patents described by CCD as being

“generally [] directed to novel preparation of lignocellulosic fibrous composites via methods of

ruminant and anaerobic digestion” in order “to convert waste to resources” and solving “issues

associated with durability, absorbency, waste, compostability, biodegradability.” (Doc. 78, p. 4).

The patents are: U.S. Patent No. 8,893,652 (the “652 Patent”); U.S. Patent No. 8,894,879 (the

“879 Patent”), and (3) U.S. Patent No. 10,244,730 (the “730 Patent”). Each of these patents is

based on a provisional application filed on March 22, 2011. The ‘652 and the ‘879 Patents were

filed on June 3, 2014 and issued on November 25, 2014. The ‘730 Patent was filed on May 4,

2018 and issued on April 2, 2019, which was during the course of this action, leading CCD to

file a second amended complaint to include claims related to this patent. (Doc. 62).

Following the Markman hearing on January 8, 2020, the parties submitted a revised joint

chart of disputed terms, (Doc. No. 102-2). The parties agree that “animal bedding” as found in

these claims is “a material on which or in which an animal can rest.” They also agree that

“lignocellulosic fiber” means “natural fiber.” At issue are terms that remain in dispute—solvent,

density fiber of the animal bedding, dried, density of the lignocellulosic fibrous composite, and

density fiber of the digestate composition. (Revised Joint Chart of Disputed Terms and Proposed

Interpretations, Doc. 102-2, “the Revised Chart.”). CCD maintains that these terms do not need

construction and should be given their ordinary and customary meaning or, in the case of

“density fiber” was a term created and defined by the inventor.

“The words of a claim ‘are generally given their ordinary and customary meaning.’

Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (quoting Vitronics Corp. v.

Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). “Absent a special and particular

definition created by the patent applicant, terms in a claim are to be given their ordinary and

accustomed meaning.” See York Prods., Inc. v. Central Tractor Farm & Family Ctr., 99 F.3d

1568, 1572, 40 USPQ2d 1619, 1622 (Fed.Cir.1996) “[T]he ordinary and customary meaning of

a claim term 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.”

Id. (citations omitted). It is the claims themselves “that measure the invention.” SRI Int'l v.

Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (citation omitted).

“When claim construction is required, claims are construable … in light of the

specification.” SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985).

The specification is “the single best guide to the meaning of a disputed term.” Vitronics, 90 F3d.

at 1582

“It is well-settled that, in interpreting an asserted claim, the court should look first to the

intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in

evidence, the prosecution history. Such intrinsic evidence is the most significant source of the

legally operative meaning of disputed claim language. Vitronics, 90 F.3d at 1582 (citing

Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995), aff'd, 517 U.S. 370,

116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996)). “Extrinsic evidence, which includes all evidence

external to the patent and prosecution history, including expert and inventor testimony,

dictionaries, and learned treatises, is less significant than the intrinsic record in the construction

process. It should be considered by the court only when intrinsic evidence cannot be used to

resolve ambiguities in the claim language.” 3rd Eye Surveillance, LLC v. United States, 140 Fed.

Cl. 39, 53–54 (2018) (internal quotations and citations omitted).

At the Markman hearing, Defendants offered evidence in the form of (a) statements made

during the prosecution of Plaintiff’s then-pending patent application, No. 16/2782521 and (b) the

expert testimony of John F. Hunt as a person of ordinary skill in the art. CCD’s motion to

exclude this evidence from consideration (Doc. 92), is granted. Defendants are correct that

statements made by the inventor during continued prosecution of a related patent application or

made during the continued prosecution of a sibling application “can, in some circumstances, be

1 According to the USPTO website, the patent was issued on September 7, 2021 as Patent No.

11,109,564.

relevant to claim construction”2 and may “inform the meaning of the claim language by

demonstrating how the inventor understood the invention.”3 However, the Court is not

persuaded that statements made by the Examiner to which CCD did not object are entitled to the

same probative value.4 As to the testimony of Mr. Hunt, the Court did not find his testimony

helpful as a POSITA; it is unnecessary to rely on his expert testimony because the intrinsic

evidence is sufficient to properly construe the disputed terms.

Turning to the five terms remaining in dispute—solvent, density fiber of the animal

bedding, dried, density of the lignocellulosic fibrous composite, and density fiber of the digestate

composition—here they are in context:

652 Patent, Claim 1:

Animal bedding comprising: at least one solvent, wherein the at least one solvent

comprises water and is present in a concentration of less than approximately 25%

weight; a lignocellulosic fiber, wherein the lignocellulosic fiber comprises

processed lignin, hemicellulose, and cellulose, and wherein the lignocellulosic

fiber has been processed by ruminant digestion and anaerobic digestion; and

wherein the density fiber of the animal bedding ranges from approximately

0.950 grams per cubic centimeter to approximately 1.40 grams per cubic

centimeter.

879 Patent, Claim 1:

A lignocellulosic fibrous composite, comprising: at least one solvent, wherein the

at least one solvent comprises water; a lignocellulosic fiber, wherein the

lignocellulosic fiber comprises processed lignin, hemicellulose, and cellulose, and

wherein the dried lignocellulosic fiber has been processed by ruminant digestion

and anaerobic digestion; wherein the at least one solvent is present in a

concentration of less than approximately 25% by weight; and wherein the density

2 Ventana Med. Sys., Inc. v. Biogenex Lab'ys, Inc., 473 F.3d 1173, 1184 (Fed. Cir. 2006) (citing

Microsoft Corp. v. Multi–Tech Sys., Inc., 357 F.3d 1340, 1349 (Fed.Cir.2004)).

3 Id. (quoting Phillips v. AWH Corp., 415 F.3d 1303, 1317(Fed. Cir. 2005)).

4 Especially when, as acknowledged by Defendants at the Markman hearing, it was “really

unusual to have this type of after-the-fact expression of [the Examiner’s] understanding. It was

not prompted by any of the parties here. It really just came out of the blue.” (Doc. 115, p. 12).

of the lignocellulosic fibrous composite ranges from approximately 5 pounds per

cubic foot to approximately 19 pounds per cubic foot.

730 Patent, Claim 1:

Digestate composition, comprising: at least one solvent; a lignocellulosic fiber

processed by ruminant digestion and anaerobic digestion; and wherein a density

fiber of the digestate composition ranges from between approximately 0.400

grams per cubic centimeter to approximately 1.40 grams per cubic centimeter.

1. Solvent. This term appears in all the asserted claims. After the initial claim

constructions briefs were filed, and by the time of the Markman hearing, the parties had worked

through several of their initial disputes as to this term to arrive at this remaining issue: whether

the solvent had to be functioning as a solvent or only be capable of functioning as a solvent in

the claims. (Hrg. Transcript, Doc. 115, p. 21). Referring to the Revised Chart, Plaintiff asserts

that a solvent is “a substance combined with the lignocellulosic fiber, and which dissolves or

disperses, or is capable of dissolving or dispersing, one or more other substances.” Defendants’

proposed construction would eliminate the italicized phrase. Both proposed definitions reflect

the plain and ordinary meaning of the word. To the extent construction is needed, in the context

of the patents-in-suit, the solvents are actually functioning and not just capable of functioning.

As presented in the claims, (1) the solvent is part of “animal bedding, comprising” one or more

solvents and lignocellulosic fiber (‘652 Patent); (2) “a lignocellulosic fiber composite,

comprising” at least one solvent and lignocellulosic fiber (‘879 Patent); and (3) “digestate

composition, comprising” at least one solvent and lignocellulosic fiber (“730 Patent). The

solvent of these patents is not sitting in a container, ready for action; it has been employed.

Therefore, the Court construes the term “solvent” to mean “a substance combined with the

lignocellulosic fiber, and which dissolves or disperses one or more other substances.”

2. Density fiber of the animal bedding. This term appears in Claims 1, 13, and 19 of the

‘652 Patent. The parties agree that term “density fiber” has no customary and ordinary meaning.

Defendants point to the Examiner’s statement in the September 17, 2020 Office Action that the

term is indefinite and has “no known meaning in the art.” (Doc. 118-1, p. 7). CCD’s proposed

construction for this term is: “the density of the fiber processed by both ruminant digestion and

anaerobic digestion.” Defendants argues that the term should include the qualifier “without

solvent.”

In Column 5 of 52 at lines 63-65, the specifications states: “After being processed by

both ruminant digestion and supplemental anaerobic digestion, the density fiber of the animal

bedding preferably ranges ….” (Doc. 78-2, p. 7). A claim interpretation “must, in the end,

accord with the words chosen by the patentee to stake out the boundary of the claimed property.”

Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). As CCD

points out, the specification supports its proposed definition. The Court construes the term as

proposed by CCD. Parenthetically adding the words “without solvent” would impermissibly add

a limitation to the claim.

3. Dried. This term as it appears in claims 1 and 3 of the ‘879 Patent does not need

construction and is given its plain and ordinary meaning. The Court does not find the “moisture

removed beyond ambient conditions” definition put forth by Defendants to be inconsistent with

the term’s plain and ordinary meaning, but to the extent Defendants’ proposed definition places a

limitation to the claim, that definition is rejected. See Renishaw PLC v. Marposs Societa' per

Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998) (“If we need not rely on a limitation to interpret

what the patentee meant by a particular term or phrase in a claim, that limitation is “extraneous”

and cannot constrain the claim.”).

4. Density of the lignocellulosic fibrous composite. Appearing in Claims 1, 11 and 16 of

the ‘879 Patent, the Court construes this term to mean “the density of the lignocellulosic fiber

composite comprising lignocellulosic fiber processed by both ruminant digestion and anaerobic

digestion” as proposed by CCD. Defendants proposed definition would “include[e] any odor

suppressant and/or indicator of animal soiling.” The Court agrees with CCD that this

construction would include a limitation found in a dependent claim (Claim 5) on an independent

claim (Claims 1, 11 and 16) and impermissibly narrow the scope of the independent claim.

5. Density fiber of the digestate composition. This term appears in Claim 1 of the ‘730

Patent. For the reasons discussed above regarding “density fiber of the animal bedding,” the

Court construes this term to mean: “the density of the digestate composition comprising

lignocellulosic fiber processed by both ruminant digestion and anaerobic digestion.”

CCD’s Motion for Sanctions

Plaintiff CCD has moved for sanctions against all Defendants and their counsel, Joseph

David Calhoun, III, pursuant to Fed. R. Civ. P. 11(b). (Doc. No. 106). CCD argues that

Defendants’ third affirmative defense and their fourth counterclaim alleging unenforceability

because of CCD’s inequitable conduct are baseless and fail to use “objective facts to establish

intent of any specific person.” (Doc. 106, p. 2).

Pursuant to Rule 11, when an attorney signs and presents a pleading to the Court, the

attorney certifies that “after an inquiry reasonable under the circumstances,” that: (1) the

pleading is not being presented for any improper purpose, such as to harass, cause unnecessary

delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal

contentions are warranted by existing law or by a nonfrivolous argument for extending,

modifying, or reversing existing law or for establishing new law; (3) the factual contentions have

evidentiary support or, if specifically so identified, will likely have evidentiary support after a

reasonable opportunity for further investigation or discovery; and that (4) the denials of factual

contentions are warranted on the evidence or, if specifically so identified, are reasonably based

on belief or a lack of information. “[T]he standard under Rule 11 is whether the attorney's

conduct, ‘viewed objectively, manifests either intentional or reckless disregard of the attorney's

duties to the court.’” Clark v. United Parcel Serv., Inc., 460 F.3d 1004, 1010 (8th Cir. 2006)

(quoting Perkins v. Spivey, 911 F.2d 22, 36 (8th Cir. 1990)). Under the safe harbor provision of

the Rule, the alleged offending party must receive at least twenty-one days’ notice and have an

opportunity to correct or withdraw the challenged pleading before the motion is filed with the

court. Fed.R.Civ.P. 11(c)(2); Olson v. Bank of Am., N.A., 518 F. App'x 488, 490 (8th Cir. 2013).

Defendants have filed both an Amended Counterclaims and Answer (“ACA,” Doc. No.

90) and a Second Amended Counterclaims and Answer (“SACA,” Doc. No. 104). In response to

the motion, Defendant argue that Plaintiffs failed to satisfy Rule 11’s safe-harbor provision with

respect to the SACA, and the motion should be denied on this point.

Following their receipt of CCD’s draft motion for Rule 11 sanctions related to their ACA

on February 10, 2020, Defendants filed a motion for leave to again amend their challenged

answer and counterclaims—specifically their third affirmative defense and fourth counterclaim

relating to CCD’s inequitable conduct—to “among other things, clarify and augment the

examples of inequitable conduct committed by Plaintiff in the prosecution of the patents” at

issue. (Doc. No. 97, ¶ 3). CCD did not respond to the motion, which was granted. Among other

changes, the SACA added allegations that CCD intentionally hid the Dvorak Patent among the

80 other prior art references and failed to re-disclose it in prosecution of the ‘730 patent. (Doc.

No. 104, ¶¶ 32-33, 74, 79).

The Court agrees that CCD failed to follow the safe-harbor provision of Rule 11 with

respect to allegations in the SACA. CCD’s motion makes no mention of providing notice to

Defendants that it considered allegations in the SACA to still be in violation of Rule 11. CCD

states that it sent Mr. Calhoun a draft motion for sanctions as required by Rule 11 that was

“substantially similar to this motion” but rather than remove the “offending material,”

Defendants responded by filing the SACA on March 25, 2020. The motion also assumes that

inequitable conduct allegations are only directed at the ‘730 patent (Doc. No. 106, fn. 1), which

may have been true for the ACA but is clearly not true for the SACA.5 Absent a motion setting

forth the “specific conduct that allegedly violates Rule 11(b),” the Court cannot make a

determination that a violation occurred. Fed. R. Civ. P. 11(c)(2).6

The Court advises, however, that the conduct complained of does not appear to

objectively manifest intentional or reckless disregard of Mr. Calhoun’s duties to the Court. CCD

challenges the following allegations made by Defendants and their counsel as sanctionable.

1. Failing to disclose the Dvorak Patent. As of the filing of the SACA, the parties

disagree on whether the Dvorak Patent should have been redisclosed in prosecution of the ‘730

patent (the only patent CCD’s motion addresses). CCD relies on section 609.02 of the Manual

for Patent Examining Procedure (“MPEP”) as support for its argument that the law did not

require it to re-disclose the Dvorak Patent when it had been disclosed previously in the parent

patent application. A quick legal search indicates that CCD’s argument is supported by

5 SACA at pp. 13-16, 36-37 contains allegations of inequitable conduct concerning the ‘652

Patent and the ‘879 Patent as well.

6 Defendants say they removed the allegations in the SACA that CCD failed to disclose the

Dvorak Patent—but the allegations remain as part of the third affirmative defense. (SACA p. 13,

¶ 4(a); p. 14, ¶ 6, p. 24 ¶ 55). Defendants did remove the failure to disclose claims in the

inequitable conduct counterclaim, replacing it with allegations of “intentionally hiding” and

failing to re-disclose the Dvorak Patent. (SACA, p. 20, ¶ 33; p. 21, ¶ 36, p. 22, ¶¶ 40, 44, 48, 52).

authority. 7 In response, Defendants argue that section 2001.06(c) imposed a duty on CCD to re-

disclose the Dvorak Patent during the prosecution of the ‘730 Patent primarily because of the

litigation between the parties in the present lawsuit and Case No. 3:15-cv-00644 in the Southern

District of Illinois, which arose after the prosecution of the parent patent. The Court has

considered this argument and the authority cited by Defendants (Doc. No. 107, pp. 7-10), and,

while not speaking to the strength of Defendants’ argument, the Court does not find the

allegations complained of to be sanctionable.

2. Failure to disclose the Zauche Patent. CCD’s motion also challenges the allegations

that it had knowledge of “the number of the prior art Zauche Patent … that would invalidate the

‘879 Patent” and failed to disclose it to the Patent Office. 8 CCD argues that the Zauche Patent

was “clearly cumulative and therefore immaterial” and therefore it had no duty to submit it

pursuant to 37 C.F.R. 1.56. A Rule 11 motion is not the proper vehicle for challenging the

strength of allegations regarding whether prior art is material or cumulative. The motion for

sanctions regarding the Zauche Patent is denied.

3. Failure to disclose material litigation information and prior art.” CCD takes issue with

Defendants’ allegations throughout the SACA that it failed to disclose material litigation

information regarding the ‘730 Patent application when it “was preparing to file (or at least

considering filing) the Second Amended Complaint” to bring in claims of infringement of the

‘730 Patent. CCD argues that these allegations are “self-serving conjecture, wholly unsupported

7 eBay Inc. v. IDT Corp., No. 08-CV-4015, 2009 WL 2706395 (W.D. Ark. Aug. 24, 2009)

(quoting ADT Corp. v. Lydall, Inc., 159 F.3d 534, 547 (Fed.Cir.1998), holding that “it can not be

inequitable conduct for an applicant not to resubmit, in the divisional application, the

information that was cited or submitted in the parent application.”).

8 There is no reference to allegations in the SACA in this section of the motion for sanctions, but

the allegations regarding the Zauche Patent appear unchanged from the ACA to the SACA.

by facts, and completely fail to meet the high burden of pleading inequitable conduct.” (Doc.

106, p. 7). These arguments would have been appropriate in a motion to dismiss for failure to

state a claim. They do not support a claim that Mr. Calhoun either intentionally or recklessly

disregarded his duties to the Court.

CCD also argues that Defendants’ allegations that it failed to disclose certain prior art

sales are “legally meritless,” pointing to section 609.02 of the MPEP. Again, the parties are

arguing about the duty to re-disclose which the Court has addressed above. For the reasons stated

above, CCD’s motion for sanctions is denied.

Defendants’ Motion for Severance and for Stay of Action

In this motion (Doc. No. 108-1), joined by all Defendants, Walmart asks the Court to

sever the claim against it pursuant to Rule 21 of the Federal Rules of Civil Procedure and to stay

the causes of action against it until the issues of patent invalidity, enforceability, and non-

infringement against Magic Dirt have been resolved. Walmart asserts the “customer exception”

rule and states that it “will agree to be bound by any issues of law and fact determined by the

Court with respect to patent infringement in this action.” (Doc. 108-1). Plaintiff disagrees that

the customer exception rule applies and argues that the motion to stay the claim against Walmart

is premature and that it would require additional time and expense contrary to Walmart’s

assertions.

Under the “customer suit” exception, “litigation against or brought by the manufacturer

of infringing goods takes precedence over a suit by the patent owner against customers of the

manufacture.” Katz v. Lear Siegler, Inc., 909 F.2d 1459, 1464 (Fed. Cir. 1990). This exception

arises from “the recognition that, in reality, the manufacturer is the true defendant in the

customer suit.... it is a simple fact of life that a manufacturer must protect its customers, either as

a matter of contract, or good business, or in order to avoid the damaging impact of an adverse

ruling against its products.” Id. at 1464 (quoting Codex Corp. v. Milgo Electronics Corp., 553

F.2d 735, 194 USPQ 49 (1st Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 133

(1977)). “Generally speaking, courts apply the customer suit exception to stay earlier-filed

litigation against a customer while a later-filed case involving the manufacturer proceeds in

another forum.” Spread Spectrum Screening LLC v. Eastman Kodak Co., 657 F.3d 1349, 1357

(Fed. Cir. 2011).

CCD is correct that the traditional customer-suit exception does not apply in this

situation, where there is only one case at issue. In re Dell Inc., 600 F. App'x 728, 730 (Fed. Cir.

2015) (“[W]e are aware of [no appellate court case] that sets forth the proposition that a district

court must stay proceedings against a customer in the very same litigation that will, regardless of

the requested stay, go forward against the supplier.”) However, as the Federal Circuit

recognizes, “[t]he policies expressed in the duplicative-case context are certainly relevant in a

district court's decision how to proceed within the context of a single case.” Id. Furthermore,

“the power to stay proceedings is incidental to the power inherent in every court to control the

disposition of the causes on its docket with economy of time and effort for itself, for counsel, and

for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254–55, 57 S. Ct. 163, 166, 81 L. Ed. 153

(1936).

In its Second Amended Complaint, Plaintiff makes six infringement claims against

Walmart (representing the three patents at issue and the two Walmart defendants). (Doc. No. 62,

¶¶ 102-131). Each claim asserts that Walmart “infringed and/or continues to infringe” the

patents at issue by offering to sell and/or selling infringing products. CCD seeks both injunctive

relief and compensatory damages against Walmart.

Walmart has agreed to be bound by “any issues of law and fact determined by this Court

with respect to patent infringement in this action.” (Doc. No. 108). Walmart is being

indemnified by Magic Dirt Horticultural Products LLC. (Doc. No. 108-1). A resolution of the

patent infringement claims against the Magic Dirt defendants (including the defenses of

invalidity and unenforceability) will resolve these claims as to Walmart. Furthermore, Walmart

has asserted that it no longer buys the Magic Dirt product as of March 27, 2020. (Doc. 108, ¶ 4),

which, unless this changes, would alleviate prejudice to CCD insofar as it is seeking injunctive

relief.

CCD argues that granting the motion “would increase judicial and resource expenditure”

without saying how. (Doc. 111, p. 6). Its citation to the order of the Illinois District Court,

before the case was transferred to this Court, in which that court declined to sever the claims of

the Cenergy and Walmart defendants is misplaced. The Illinois court found that granting the

motion to sever at that time would result in a “second, immaterially different action proceeding

in another district”—that does not apply to the circumstances currently before the Court. CCD

also argues that the motion to stay is premature at this point since discovery has barely begun.

However, the record before the Court is sufficient for the Court to make a determination that

staying the action as to Walmart, including Walmart’s pursuit of its counterclaims, will best

serve the interests of “economy of time and effort for itself, for counsel, and for litigants.” The

Court finds that a bifurcation under Rule 42 of the Federal Rules of Civil Procedure, however, is

a better procedural vehicle to manage these claims than a severance under Rule 21 that would

create two separate actions.9

9 Under Rule 42(b), the Court has the discretion to “order a separate trial of one or more separate

issues, claims, crossclaims, counterclaims, or third-party claims” in the interest of “convenience,

to avoid prejudice, or to expedite and economize.” This rule allows courts to “separate a single

For these reasons, the claims against Walmart are bifurcated from the claims against the

remaining defendants and any remaining claims against it will be tried following a determination

of the patent infringement claims against Cenergy and the Magic Dirt Defendants.

Conclusion

For the reasons stated above, Plaintiff’s motion to exclude certain evidence from

consideration in claim construction (Doc. No. 92) is GRANTED; Plaintiff’s motion for sanctions

(Doc. No. 106) is DENIED and Defendants’ motion for severance and stay (Doc. No. 108-1) is

GRANTED as stated above; and the disputed terms are construed as follows:

Patent Term Construction

“solvent” a substance combined with the lignocellulosic

fiber, and which dissolves or disperses one or

more other substances

“density fiber of the animal bedding” the density of the fiber processed by both

ruminant digestion and anaerobic digestion

“dried” plain and ordinary meaning

“density of the lignocellulosic fibrous the density of the lignocellulosic fiber

composite” composite comprising lignocellulosic fiber

processed by both ruminant digestion and

anaerobic digestion

“density fiber of the digestate composition” the density of the digestate composition

comprising lignocellulosic fiber processed by

both ruminant digestion and anaerobic

digestion

action into separate components without dividing them into separate cases.” Strandlund v.

Hawley, 532 F.3d 741, 744, fn. 1 (8th Cir. 2008).

IT IS SO ORDERED this 27th day of September, 2021.

CG M. MS |

United States District Judge

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