686 F.3d 1335 (Fed. Cir. 2012), 2010-1519, Grober v. Mako Products, Inc.

Docket Nº:2010-1519, 2010-1527.
Citation:686 F.3d 1335
Opinion Judge:RADER, Chief Judge.
Party Name:David GROBER, Plaintiff-Appellant, v. MAKO PRODUCTS, INC., Air Sea Land Productions, Inc., CineVideoTech, Inc., Spectrum Effects, Inc., and Blue Sky Aerials, Inc., Defendants-Cross Appellants, and Voice International, Inc., Plaintiff-Appellant, and Does 1-10, Jordan Klein, Sr., Jordan Klein, Jr., and Oppenheimer Cine Rental, LLC, Defendants.
Attorney:Jon E. Hokanson, Lewis, Brisbos, Bisgaad & Smith LLP, of Los Angeles, CA, argued for all plaintiffs-appellants. On the brief was David Grober, of Marina Del Rey, CA. Of counsel was Edwin P. Tarver Lauson & Tarver, LLP, of El Segundo, CA. Brian W. Warwick, Varnell & Warwick, P.A., of The Villages,...
Judge Panel:Before RADER, Chief Judge, PROST and MOORE, Circuit Judges.
Case Date:July 30, 2012
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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686 F.3d 1335 (Fed. Cir. 2012)

David GROBER, Plaintiff-Appellant,

and

Voice International, Inc., Plaintiff-Appellant,

v.

MAKO PRODUCTS, INC., Air Sea Land Productions, Inc., CineVideoTech, Inc., Spectrum Effects, Inc., and Blue Sky Aerials, Inc., Defendants-Cross Appellants,

and

Does 1-10, Jordan Klein, Sr., Jordan Klein, Jr., and Oppenheimer Cine Rental, LLC, Defendants.

Nos. 2010-1519, 2010-1527.

United States Court of Appeals, Federal Circuit.

July 30, 2012

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Jon E. Hokanson, Lewis, Brisbos, Bisgaad & Smith LLP, of Los Angeles, CA, argued for all plaintiffs-appellants. On the brief was David Grober, of Marina Del Rey, CA. Of counsel was Edwin P. Tarver Lauson & Tarver, LLP, of El Segundo, CA.

Brian W. Warwick, Varnell & Warwick, P.A., of The Villages, FL, argued for defendants-cross appellants.

Before RADER, Chief Judge, PROST and MOORE, Circuit Judges.

RADER, Chief Judge.

The United States District Court for the Central District of California granted summary judgment of noninfringement to the defendants (Mako Products, Inc.; Air Sea Land Productions, Inc.; CineVideoTech, Inc.; Spectrum Effects, Inc.; Blue Sky Aerials, Inc.; Jordan Klein's, Sr.; Jordan Klein's, Jr.; and Oppenheimer Cine Rental, LLC) on the patent owned by David Grober and Voice International, Inc. (" Appellants" ). Several defendants cross-appeal the district court's denial of attorney's fees. For the reasons recited below, this court affirms-in-part, vacates-in-part, and remands to the district court.

I.

Appellant David Grober invented a platform that stabilizes a camera for filming motion pictures from moving vehicles. This technology, known in the entertainment industry as the Perfect Horizon, won Grober an Academy Award in technical achievement. He also received U.S. Patent No. 6,611,662 (" '662 patent" ), entitled " Autonomous Self Leveling, Self Correcting Stabilized Platform," for this technical advance. The invention " compensate[s] for motion caused by waves, currents, wind, and other motion during land, air, and sea operations of a camera." '662 patent Abstract.

For the purposes of this appeal, claim 1 is representative:

1. A stabilized platform comprising:

a payload platform for supporting an article to be stabilized;

a base;

a stabilizing system connected between the payload platform and the base, the stabilizing system including means for moving the payload platform with respect to the base about two different axes for providing the payload platform with stabilization in two dimensions;

a first sensor package for determining, in two transverse directions, motion of a moving object on which the stabilized platform is mounted;

a second sensor package comprising sensor means for sensing a position of the payload platform and for providing

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information based on the position of the payload platform relative to a predetermined position; and

a control system connected to the means for moving for stabilizing the platform in response to information provided by the first sensor package and the second sensor package, wherein the second sensor package is fixed to the payload platform, and the first sensor package is fixed with respect to the base.

'662 patent col. 7 ll. 50-col. 8 ll. 6 (emphasis added).

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Fig. 2 illustrates the side view of the platform 100 with its stabilizing technology along two axes. '662 patent col. 3 ll. 6-8. On one axis, the stabilized platform 100 compensates for unwanted movement. This compensation occurs with the assistance of a first drive mechanism 10, which is mounted on a fixed side plate 8. The drive mechanism 10 includes a motor and, potentially, a gear box. The preferred embodiments teach an encoder attached to the motor to give feedback based on the position of the bottom platform 2. This mechanism provides one of the two stabilized axes. A protective housing 16 encloses the drive mechanism 10 (including the motor, gear box, encoder, and associated wiring). Id. at col. 3 ll. 14-31.

The second stabilizing mechanism involves platform 22 which holds the camera. A second drive mechanism 30 attaches to this mounting platform and stabilizes the platform along another axis. Figs. 2 and 3 show that the second drive mechanism 30— fixed to the bottom platform 2— mounts orthogonally (i.e., perpendicularly) to the first drive mechanism 10. In sum, the second drive shaft 24 is orthogonal to the first drive shaft 4 to permit two-dimensional stabilization of the camera platform 22. Id. at col. 3 ll. 31-65. Fig. 2 shows the stabilized platform 100 in an upright orientation with the ability to compensate for pitch and roll of the vehicle 64. Id. at col. 4 ll. 6-11.

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The '662 patent further teaches a method to achieve a third axis of stabilization along the azimuth axis. Fig. 3 compensates for azimuth motion by adding a third set of orthogonally positioned drive components to the stabilized platform 100. This third drive mechanism stabilizes the platform with input from sensor packages A and B. Sensor package A appears on the housing 82, or other disclosed areas; package B on the camera platform 22. Id. at col. 5 ll. 26-39; col. 4 ll. 25-27.

David Grober and Voice International, Inc. sued Cross-Appellants in October 2004 alleging that their manufacture, sale, and lease of a movie stabilization device known as the MakoHead infringed the '662 patent. Cross-Appellants then commenced an inter partes reexamination of the '662 patent before the U.S. Patent and Trademark Office (" PTO" ). The district court stayed the infringement suit.

In 2006, the trial court lifted the stay and authorized commencement of discovery. The district court held a Markman hearing and construed the claim term " payload platform." Based on this interpretation, the district court sua sponte concluded that the MakoHead did not infringe the '662 patent. Appellants filed a motion to vacate the district court's summary judgment order, which was denied.

Cross-Appellants sought attorneys fees as sanctions under Rule 11 and attorney fees under 35 U.S.C. § 285. The district court declined to award attorneys fees under either rationale. The district court issued its final judgment of non-infringement and the Appellants timely appealed to this court, which has jurisdiction under 28 U.S.C. §§ 1292(c)(1) and 1295(a)(1).

The PTO completed the reexamination of the '662 patent after Appellants' notice of appeal and confirmed patentability of independent claims 1 and 38 as well as several dependent claims.

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II.

This court reviews a district court's claim construction without deference. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1451 (Fed.Cir.1998) (en banc). In this case, the district court erred in construing the claim term " payload platform" to mean " the horizontal plate, piece of surface upon which the device (e.g., a camera) is directly mounted upon or affixed to." Grober v. Mako Prods., Inc., No. 2:04-CV-04-8604, 2009 WL 1587158, at *12 (C.D.Cal. June 4, 2009) (" Markman Order " ).

Before the Markman hearing, the parties proposed competing constructions of the term " payload platform." The district court found significant differences in those proposals. Id. at *3. Most notably, Cross-Appellants limited the disputed term to a " horizontal surface or plate" upon which the device is mounted or affixed. Appellants, on the other hand, included the three-dimensional " supporting structure" of said " horizontal surface or plate." Id. The district court relied heavily on the reexamination history of the '662 patent where Grober narrowed the claims " in order to avoid a significant body of prior art." Id. at *2. The prior art was U.S. Patent No. 5,922,039 to Welch et al. (" Welch patent"...

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