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“Pulsed” Means “On/Off”, Not “High/Low”

On December 22, 2015, District Judge Nelson D. Roman denied plaintiff Radiancy Inc.’s (“Radiancy”) motion for reconsideration of the Court’s construction of the claim term “pulsed heating.”

The Court had previously construed “pulse heating of said one or more heat elements” to mean “(1) periodic switching on and off of current to said one or more heat elements or (2) generation of pulses of heat by other means (e.g., by mechanical means).”  Radiancy urged the Court to reconsider its decision and hold that “pulsed heating” includes not just a binary on/off pulses, but pulses that switch “between discrete high values and low values.”

The Court denied Radiancy’s motion.  The Court reasoned that  when describing pulsed heating, pulsed heat, and pulsed current, “the specification consistently speaks in terms of on/off and an interruptible power supply,” and that this language clarified the meaning of “pulsed” in the claims to mean on and off, as opposed to high and low.  The Court noted, “When current is pulsed between high and low energies, some level of energy is always provided and therefore, the energy is continuous.  If the Court were to hold that pulses of high and low energy constitute pulsed heating, this would belie the distinction between continuous and pulsed energy.”  The specification, on the other hand, speaks in terms of switching the current on and off, not varying the voltage periodically.

Radiancy also argued that dependent claim 2, which further requires “wherein the one or more heat elements are heated for a period of between 10 and 100 msec for each on-off cycle” (emphasis added), supported its construction under claim differentiation principles.  The Court rejected this argument, and noted that claim 2 assumes that the pulses of the independent claim are on-off and just adds the length of the pulses i.e., 10 and 100 msec.   Thus, the Court concluded that claim 2 actually supports the Court’s construction.

-By Ryan Mott and Lewis Popovski

Case: Radiancy, Inc. v. Viatek Consumer Prods. Grp., Inc., No. 13-CV-3767 (NSR) (LMS), 2015 BL 423068 (S.D.N.Y. Dec. 22, 2015).  The patent is suit is U.S. 7,170,034.