# Opinion

> District Court, M.D. Florida · April 3, 2026

URL: https://www.frixlaw.com/law-library/cases/11365117

## Case

- **Full name:** Tree Defender, LLC v. Mike Hurst Citrus Service, Inc.
- **Court:** District Court, M.D. Florida
- **Decided:** April 3, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11365117

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11365117. Public record. Not legal advice.