Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TREE DEFENDER, LLC,

Plaintiff,

v. Case No. 8:24-cv-2520-VMC-NHA

MIKE HURST CITRUS SERVICE, INC.,

Defendant.

_______________________________/

ORDER

This matter is before the Court on consideration of

Defendant Mike Hurst Citrus Service, Inc.’s (“Hurst Citrus”)

Motion for Reconsideration of Claim Construction Order (Doc.

# 52), filed on February 25, 2026. Plaintiff Tree Defender,

LLC responded on March 11, 2026. (Doc. # 53). For the reasons

stated below, the Motion is denied.

I. Legal Standard

“Federal Rules of Civil Procedure 59(e) and 60 govern

motions for reconsideration.” Beach Terrace Condo. Ass’n,

Inc. v. Goldring Invs., No. 8:15-cv-1117-VMC-TBM, 2015 WL

4548721, at *1 (M.D. Fla. July 28, 2015). “The time when the

party files the motion determines whether the motion will be

evaluated under Rule 59(e) or Rule 60.” Id. “A Rule 59(e)

motion must be filed within 28 days after the entry of the

judgment.” Id. “Motions filed after the 28–day period will be

decided under Federal Rule of Civil Procedure 60(b).” Id.

Here, the Motion was filed within 28 days of the entry

of the Claim Construction Order, so Rule 59 applies. “The

only grounds for granting [a Rule 59] motion are newly-

discovered evidence or manifest errors of law or fact.” Arthur

v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (citation

omitted). Granting relief under Rule 59(e) is “an

extraordinary remedy to be employed sparingly in the

interests of finality and conservation of scarce judicial

resources.” United States v. DeRochemont, No. 8:10-cr-287-

SCB-MAP, 2012 WL 13510, at *2 (M.D. Fla. Jan. 4, 2012)

(citation omitted). Furthermore, “a Rule 59(e) motion [cannot

be used] to relitigate old matters, raise argument or present

evidence that could have been raised prior to the entry of

judgment.” Michael Linet, Inc. v. Vill. of Wellington, 408

F.3d 757, 763 (11th Cir. 2005).

II. Analysis

Tree Defender initiated this action against Hurst

Citrus, alleging that the individual plant covers (“IPCs”)

sold by Hurst Citrus infringe upon two patents possessed by

Tree Defender: U.S. Patent Nos. 11,730,092 (“the ‘092

Patent”) and 12,058,965 (“the ‘965 Patent”). (Doc. # 1, 32).

Central to this patent infringement action is the

construction of the claim term “mesh” in the ‘092 and ‘965

Patents. Following the parties’ briefing (Doc. ## 46, 47, 48)

and a claim construction hearing (Doc. # 49), the Court

entered its Claim Construction Order on February 11, 2026.

(Doc. # 51). As the Court noted,

[T]he parties both agree that the construction of

“mesh” in the ‘092 and ‘965 Patents must refer to

a material that provides “water permeability and

light transmissivity.” Accordingly, the sole

dispute for the Court to decide is whether the claim

term “mesh” must refer to a material that also

prevents intrusion by insects. Tree Defender seeks

a construction of “mesh” that requires preventing

intrusion by insects, whereas Hurst Citrus seeks a

construction of “mesh” without reference to

preventing intrusion by insects.

(Id. at 6-7) (citations omitted). Ultimately, the Court

ordered that the claim term “mesh” is to be construed as “[a]

net-like material having a mesh size which provides water

permeability and light transmissivity, but prevents intrusion

by small insects such as psyllids.” (Id. at 6).

That construction rested on two independent grounds.

First, the ‘092 and ‘965 Patents’ specifications impliedly

define “mesh” as a material that prevents intrusion by

insects. (Id. at 8-14). Second, the prosecution history of

related U.S. Patent Application No. 15/359,111 (“the ‘111

Application”) provided a clear and unequivocal definition of

“mesh” as a material that prevents intrusion by insects,

giving rise to prosecution disclaimer. (Id. at 14-21).

In the Motion, Hurst Citrus seeks reconsideration of the

Court’s Order “to the extent that it construes ‘mesh’ to

require that it ‘prevent[] intrusion by small insects such as

psyllids.’” (Doc. # 52 at 1). According to Hurst Citrus:

Reconsideration of the Court’s Order is warranted

to correct clear error and prevent manifest

injustice. The error and resulting injustice arise

here from the misapplication of the doctrine of

prosecution history estoppel. . . .

The Court’s clearly erroneous finding of

prosecution history disclaimer rests on a single

sentence in the Applicant’s Reply Brief to the

Patent Trial and Appeal Board (“PTAB”).

Importantly, the sentence relied upon by the Court

was not the Applicant’s own statement. The sentence

was, in fact, a quote of a quote. The Applicant’s

Reply Brief quoted the Examiner’s quotation of a

part of the ‘111 Patent’s specification. Further,

the quote was not used to distinguish the Hart prior

art reference based on insect intrusion.

The appeal to which Applicant’s Reply Brief

pertained did not hinge on insect intrusion. It

turned on whether the water resistant “canvas,

cloth or paper” hood of the Hart prior art reference

satisfied a “mesh” limitation requiring open

texture, water permeability, and light

transmissivity. The PTAB reversed on those

permeability and transmissivity grounds only and

did even not mention insects.

Prosecution history disclaimer applies only when

the applicant clearly and unmistakably surrenders

claim scope. No such disclaimer exists here.

Accordingly, the Court should reconsider its Order

and construe “mesh” as “a net-like material which

provides water permeability and light

transmissivity,” without an insect intrusion

limitation.

(Id. at 1-2) (citations omitted).

As an initial matter, Hurst Citrus’s Motion is

inappropriate. Again, “a Rule 59(e) motion [cannot be used]

to relitigate old matters, raise argument or present evidence

that could have been raised prior to the entry of judgment.”

Michael Linet, Inc., 408 F.3d at 763. “This prohibition

includes new arguments that were ‘previously available, but

not pressed.’” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,

957 (11th Cir. 2009) (citation omitted). Additionally, a

“motion for reconsideration should not be used as a vehicle

to present authorities available at the time of the first

decision.” Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp.

1561, 1563 (S.D. Fla. 1992). That is, Hurst Citrus “cannot

rely on cases that do not represent an intervening change in

controlling law and that could have been cited in” the claim

construction briefing. Atl. Specialty Ins. Co. v. Mr. Charlie

Adventures, LLC, No. CIV.A. 13-458-CG-N, 2015 WL 2095650, at

*4 (S.D. Ala. May 5, 2015).

All the authorities cited by Hurst Citrus in the Motion

were available at the time the Court entered its Order (many

were cited in the briefing and the Court’s Order). All of

Hurst Citrus’s arguments about prosecution disclaimer in the

Motion could have been raised prior to entry of that Order.

Indeed, the Motion attempts to relitigate the issue of

prosecution disclaimer that was extensively discussed in the

Court’s Order. The Motion is due to be denied on this basis

alone. Nonetheless, even considering Hurst Citrus’s arguments

and authorities, the Motion fails on the merits.

A. The Specification

As reflected in the Motion, Hurst Citrus only seeks

reconsideration based on its argument that the Court erred in

finding prosecution disclaimer. Accordingly, the Motion is

due to be denied because Hurst Citrus fails to address the

first independent ground for the Court’s construction, i.e.,

that the ‘092 and ‘965 Patents’ specifications impliedly

define “mesh” as a material that prevents intrusion by

insects. (Doc. # 51 at 8-14).

As the Court noted in the Claim Construction Order (Id.

at 4-5, 12), “[t]he specification acts as a dictionary . . .

when it defines terms by implication,” and the specification

usually “is dispositive; it is the single best guide to the

meaning of a disputed term.” Vitronics Corp. v. Conceptronic,

Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Intrinsic evidence,

such as the specification, “is the most significant source of

the legally operative meaning of disputed claim language.”

Id. In the Claim Construction Order, the Court found that the

‘092 and ‘965 Patents’ specifications characterize the

claimed inventions as “insect repelling” and, read as a whole,

lead to the conclusion that the claimed inventions must

prevent insect intrusion. (Doc. # 51 at 13-14).

Accordingly, even if Hurst Citrus were correct that the

Court erred as to prosecution disclaimer, the Motion would

still be denied because the ‘092 and ‘965 Patents’

specifications’ implied definition independently supports the

Court’s construction of “mesh.” Hurst Citrus has presented no

argument challenging the implied definition of “mesh” in the

‘092 and ‘965 Patents’ specifications.

B. Prosecution Disclaimer

In any event, the Court did not err in finding

prosecution disclaimer. Indeed, the prosecution history only

confirms the implied definition of “mesh.”

Beyond the implied definition of “mesh,” the ‘092 and

‘965 Patents’ specifications also each contained an express

definition of the claim term. (Doc. ## 46-1 at 15, 46-2 at

15) (“a mesh material, which provides water permeability and

light transmissivity, but prevents intrusion by small insects

such as psyllids.”). However, the Court did not rely upon

this express definition in the specifications (Doc. # 51 at

13) because the specifications both contained disclaimers

which explicitly state that the ‘092 and ‘965 Patents’ claims

“should not be construed as limited to only the embodiments

described here” and are “not limited to the only the examples

described here.” (Doc. ## 46-1 at 14-15, 46-2 at 15-16). Thus,

the Court found that the purported express definition of

“mesh” in the specifications was negated by the explicit

disclaimers in the specifications, but that the implied

definition of “mesh” was not negated by the disclaimers. (Doc.

# 51 at 13-14). Hurst Citrus does not challenge this finding.

After reviewing the specifications, the Court turned to

a review of the prosecution history of the related ‘111

Application. (Doc. # 51 at 14). The Court found that the ‘111

Application’s applicant (“Applicant”) had asserted an

explicit definition of “mesh.” (Id. at 19). In fact, that

definition was entirely aligned with the purported express

definition contained in the ‘092 and ‘965 Patents’

specifications.

During the prosecution of the ‘111 Application, the

USPTO examiner contended that the ‘111 Application “does not

define what [Applicant] considers to be a mesh surface.” (Doc.

# 46-3 at 3). Using a dictionary definition, the examiner

interpreted the claim term “mesh” as “(1) any knit, woven or

knotted fabric of open texture and (2) an interwoven or

intertwined structure.” (Doc. ## 46-3 at 3-4; 46-4 at 5).

Under this definition, the examiner concluded that a prior

art pertaining to cloth (the “Hart Reference”) had already

disclosed the ‘111 Application’s claim, reasoning that “cloth

is understood as a material comprising an interlaced

structure i.e., mesh.” (Doc. # 46-4 at 5). Accordingly, the

USPTO examiner rejected the ‘111 Application’s claims as

unpatentable. (Id.).

The Applicant appealed the examiner’s decision to the

Patent Trial and Appeal Board (“PTAB”). (Id. at 1). In its

“Reply” brief before the PTAB, the Applicant stated the

following:

As correctly quoted by the Examiner yet somehow

wrongly disputed in the same paragraph, the

Specification defines a mesh as ‘provid[ing] water

permeability art, light transmissivity, but

prevent[ing] intrusion by small insects such as

psyllids. The mesh size may for example, 50 mesh or

50 by 25 threads per square inch. Such a mesh size

will be sufficient to prevent intrusion by

psyllids, aphids, white flys, mealy bugs, leaf

miners, thrips, grasshoppers, ants, and orange

dogs.’

(Doc. # 46-3 at 4) (alterations in original).

Thus, the Reply brief shows that the Applicant asserted

to the PTAB the same express definition of “mesh” that is

contained in the specifications, but without any disclaimer.

The Applicant did so to rebut the examiner’s argument that

the ‘111 Application’s specification did not provide a

definition of mesh. Accordingly, this Court found that the

‘111 Applicant had put forth a clear and unequivocal

definition of “mesh” that includes preventing intrusion by

insects, and under the doctrine of prosecution disclaimer,

that definition attaches to the ‘092 and ‘965 Patents.

In its Motion, Hurst Citrus levies various arguments to

avoid this conclusion. None are persuasive.

i. Distinguishing Prior Art

First, Hurst Citrus argues that the Applicant’s

definition of “mesh” was “not used to distinguish the [Hart

Reference] based on insect intrusion” (Doc. # 52 at 2)

(emphasis removed), and that “[u]nder Federal Circuit law,

prosecution history disclaimer requires that the applicant

clearly invoke the limiting feature as a basis to overcome

prior art or otherwise surrender claim scope.” (Id. at 5-6)

(emphasis removed) (citing Spectrum Int’l, Inc. v. Sterilite

Corp., 164 F.3d 1372, 1378 (Fed. Cir. 1998); Seachange Int’l,

Inc. v. C-COR, Inc., 413 F.3d 1361 (Fed. Cir. 2005). The Court

observes that Hurst Citrus provides no parenthetical

explanation or quoted language as to why these cases support

its argument. Indeed, neither case supplies the support that

Hurst Citrus seeks.

In Spectrum Int’l, Inc., the Federal Circuit stated that

“explicit statements made by a patent applicant during

prosecution to distinguish a claimed invention over prior art

may serve to narrow the scope of a claim.” 164 F.3d at 1378

(emphasis added) (citations omitted). In Seachange Int’l,

Inc., the Federal Circuit stated that “[w]here an applicant

argues that a claim possesses a feature that the prior art

does not possess in order to overcome a prior art rejection,

the argument may serve to narrow the scope of otherwise broad

claim language.” 413 F.3d at 1372-73 (emphasis added)

(citations omitted).

Both cases reflect that invoking a limiting feature to

distinguish prior art is one potential method of effectuating

prosecution disclaimer, but not the only method. That is

because the underlying rationale of the doctrine of

prosecution disclaimer is that an applicant provides notice

to the public as to what the applicant considers the claims

to cover, and distinguishing prior arts is one way to do that.

See Spectrum Int’l, Inc., 164 F.3d at 1378-79 (discussing

notice and the public’s reliance on an applicant’s statements

as the justification for prosecution disclaimer) (citations

omitted); see also Seachange Int’l, Inc., 413 F.3d at 1372

(“The prosecution history constitutes a public record of the

patentee’s representations concerning the scope and meaning

of the claims, and competitors are entitled to rely on those

representations when ascertaining the degree of lawful

conduct . . . we consider the prosecution history to determine

‘whether the patentee disclaimed or disavowed subject matter,

narrowing the scope of the claim terms.’” (citations

omitted)). Neither case stands for Hurst Citrus’s proposition

that an applicant’s limiting statements about claim scope are

only relevant if the limitation is at issue in the prior art.

Indeed, none of the authorities cited by Hurst Citrus

disagree with the Federal Circuit holding that “any

explanation, elaboration, or qualification presented by the

inventor during patent examination is relevant, for the role

of claim construction is to capture the scope of the actual

invention that is disclosed, described, and patented.”

Iridescent Networks, Inc. v. AT&T Mobility, LLC, 933 F.3d

1345, 1352-52 (Fed. Cir. 2019) (emphasis added) (cleaned up)

(citing Fenner Invs., Ltd. v. Cellco P’ship, 778 F.3d 1320,

1323 (Fed. Cir. 2015); and Aptalis Pharmatech, Inc. v. Apotex

Inc., 718 F. App’x 965, 971 (Fed. Cir. 2018)). The very reason

that courts look to the prosecution history is because it

“can often inform the meaning of the claim language by

demonstrating how the inventor understood the invention and

whether the inventor limited the invention in the course of

prosecution, making the claim scope narrower than it would

otherwise be.” Id. at 1353 (emphasis added) (quoting Phillips

v. AWH Corp., 415 F.3d 1303, 1317 (Fed. Cir. 2005) (en banc)).

Here, the Applicant’s Reply brief to the PTAB

demonstrates that the Applicant understood “mesh” to refer to

a material that provides water permeability and light

transmissivity, but prevents intrusion of small insects such

as psyllids. That the insect-blocking feature was not framed

as a distinction from the Hart Reference does not detract

from the significance of the Applicant’s express statement

about the scope of the claim term.

ii. Unmistakable Surrender

Next, Hurst Citrus argues that the Applicant’s

definition of “mesh” in the Reply brief “cannot be treated as

an unmistakable surrender.” (Doc. # 52 at 6). According to

Hurst Citrus, the Court’s finding of prosecution disclaimer

“rests on a single sentence in the Applicant’s Reply Brief”

that “was not the Applicant’s own statement” but a “quote of

a quote.” (Id. at 2) (emphasis removed) (“The Applicant’s

Reply Brief quoted the Examiner’s quotation of a part of the

‘111 Patent’s specification.”).

As demonstrated by the very cases cited by Hurst Citrus,

the relevant inquiry is not whether the Applicant quoted the

examiner but whether the Applicant adopted the statement as

its own position during prosecution. See, e.g., Johnson &

Johnson Vision Care, Inc. v. Ciba Vision Corp., 540 F. Supp.

2d 1233 (M.D. Fla. 2008) (“[I]t is the applicant and not the

examiner who must ‘give up or disclaim subject matter’ that

would otherwise be included within the scope of the claim”

and “[t]he statement of an examiner alone will not necessarily

limit a claim.” (citations omitted)); see also Salazar v.

Procter & Gamble Co., 414 F.3d 1342, 1346-47 (Fed. Cir. 2005)

(requiring that disavowal of claim scope is based on the

applicant’s arguments during prosecution); see also Omega

Eng’g, Inc, v. Raytek Corp., 334 F.3d 1314, 1325 (Fed. Cir.

2003) (“[P]rosecution history . . . cannot be used to limit

the scope of a claim unless the applicant took a position

before the PTO that would lead a competitor to believe that

the applicant had disavowed coverage of the relevant subject

matter.” (emphasis added) (citation omitted)).

Here, in quoting the examiner’s quotation of the ‘111

Application’s specification, the Applicant expressly took the

position that “the Specification defines a mesh” in a manner

that includes prevention of insect intrusion. (Doc. # 46-3 at

4). That the Applicant supplied its definition of “mesh” in

a “single sentence,” or that the PTAB’s decision makes no

reference to insect intrusion, is not material. The

Applicant’s definition was an affirmative representation to

the PTAB regarding the Applicant’s understanding of the

meaning of a claim term central to patentability. Indeed, the

very reason the Applicant supplied the definition was to

obtain its patent by rebutting the examiner’s position that

the ‘111 Application does not define “mesh.” The Applicant’s

articulation of the meaning of “mesh” was made while

contesting the examiner’s construction and formed part of the

Applicant’s overall argument that the examiner’s

interpretation was incorrect. This is exactly the scenario in

which the prosecution history limits claim scope. The Court

declines to isolate portions of the Applicant’s express

representation or treat them as non-limiting.

iii. Alleged Ambiguity

Finally, Hurst Citrus contends that “the prosecution

record is ‘amenable to multiple reasonable interpretations,’

which requires rejection of prosecution history disclaimer as

a matter of law.” (Doc. # 52 at 7). As the Court has noted,

the doctrine of prosecution disclaimer does not apply where

the alleged disavowal of claim scope is ambiguous or amenable

to multiple reasonable interpretations. (Doc. # 51 at 20)

(citing Omega Eng’g, Inc, 334 F.3d at 1324). Nonetheless,

Hurst Citrus’s argument fails because the Applicant’s

definition of “mesh” in the Reply is not ambiguous. (Id.).

First, Hurst Citrus argues that the ‘092 and ‘965

Patents’ specifications use “explicitly permissive language”

and “contain express statements that the disclosure describes

example aspects and embodiments and should not be construed

as limited to only the embodiments described.” (Doc. # 52 at

7). Indeed, as the Court has noted, the specifications’

purported express definition of “mesh” is negated by the

“example aspects and embodiments” disclaimer contained

therein. (Doc. # 51 at 11-14). But “[c]laims may not be

construed one way in order to obtain their allowance and in

a different way against accused infringers.” Spectrum Int’l,

Inc., 164 F.3d at 1379. Thus, after the Court’s finding of

prosecution disclaimer, the “example aspects and embodiments”

disclaimer in the specifications would not necessarily apply

to the construction of “mesh,” because the Applicant had

previously construed “mesh” in a clear and unequivocal

definition. See Omega Eng’g, Inc., 334 F.3d at 1323

(prosecution disclaimer “preclud[es] patentees from

recapturing through claim interpretation specific meanings

disclaimed during prosecution.”). As the Applicant quoted to

the PTAB the very definition contained in the specifications,

the Applicant in effect took the definition of “mesh” outside

the operation of the “example aspects and embodiments”

disclaimer, thereby disavowing any construction of “mesh”

that would allow insects to intrude.

Second, Hurst Citrus merely states that “[e]xtracting a

single sentence from a PTAB Reply Brief that quotes the

Examiner’s quotation, and converting it into a categorical

insect-blocking limitation is the kind of ambiguity-driven

narrowing that the doctrine forbids.” (Doc. # 52 at 7).

Without parenthetical explanation or quotation, Hurst Citrus

cites to various cases for the unremarkable proposition that

ambiguous disavowals do not affect prosecution disclaimer.

See (Id.) (citing Omega Eng’g, Inc., 334 F.3d at 1324; Avid

Tech., Inc. v. Harmonic, Inc., 812 F.3d 1040, 1045 (Fed. Cir.

2016); 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d

1315 (Fed. Cir. 2013); Computer Docking Station Corp. v. Dell,

Inc., 519 F.3d 1366, 1374-75 (Fed. Cir. 2008); and Glob. Tech

Led, LLC v. HiLumz Int’l Corp., No. 2:15-cv-553-JES-CM, 2017

WL 2241053 (M.D. Fla. May 23, 2017)).

But Hurst Citrus fails to explain how anything in the

Reply brief could indicate that “mesh” might allow insects to

intrude. Indeed, to do so would not be possible. The Reply

brief clearly and expressly stated the Applicant’s position

that “the Specification defines a mesh as providing water

permeability art, light transmissivity, but preventing

intrusion by small insects such as psyllids.” (Doc. # 46-3 at

4) (cleaned up). Nothing in that definition, or any other

statement by the Applicant in the prosecution history, could

reasonably indicate that “mesh” could allow insects to

intrude. The only reasonable interpretation of the

Applicant’s definition is that “mesh” must prevent insect

intrusion. That interpretation wholly aligns with and

confirms the implied definition in the ‘092 and ‘965 Patents’

specifications.

The other authorities cited by Hurst Citrus do not alter

this conclusion. In AAMP of Florida, Inc v. Auto. Data Sols.,

Inc., No. 8:13-cv-2019-MSS-TGW, 2015 WL 6672257 (M.D. Fla.

July 22, 2015), the court rejected prosecution disclaimer

because the at-issue language was “nothing more than a

description of a preferred embodiment.” Id. at *7. In Wi-LAN

USA, Inc. v. Telefonaktiebolaget TM Ericsson, No. 12-CV-

23569, 2015 WL 6673742 (S.D. Fla. Jan. 13, 2015), the court

rejected prosecution disclaimer because the at-issue

construction was “simply incomprehensible.” Id. at *5. Here,

in contrast, the Applicant’s definition of “mesh” in the Reply

brief clearly and unmistakably requires that it prevent

insect intrusion. Thus, prosecution disclaimer applies.

Hurst Citrus fails to establish any basis for

reconsideration.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

Hurst Citrus’s Motion for Reconsideration of Claim

Construction Order (Doc. # 52) is DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this

3rd day of April, 2026.

tina 90. Husmerby Coe

VIR IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

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