Combined Systems v. Defense Technology Corporation, 03-1251.

• Citation: 350 F.3d 1207
• Decision Date: 20 November 2003
• Docket Number: No. 03-1251.,03-1251.
• Parties: COMBINED SYSTEMS, INC., Plaintiff-Appellant, v. DEFENSE TECHNOLOGY CORPORATION OF AMERICA and Federal Laboratories, Inc., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1207

350 F.3d 1207

COMBINED SYSTEMS, INC., Plaintiff-Appellant, v. DEFENSE TECHNOLOGY CORPORATION OF AMERICA and Federal Laboratories, Inc., Defendants-Appellees.

No. 03-1251.

United States Court of Appeals, Federal Circuit.

DECIDED: November 20, 2003.

Lance C. Venable, Ellis & Venable. P.C., of Phoenix, Arizona, argued for plaintiff-appellant.

Jay R. Campbell, Renner, Otto, Boisselle & Sklar LLP, of Cleveland, Ohio, OH, argued for defendents-appellees. With him on the brief was Donald L. Otto.

Before MAYER, Chief Judge, MICHEL and BRYSON, Circuit Judges.

MICHEL, Circuit Judge.

Combined Systems, Inc. ("CSI") appeals from the order of the United States District Court for the Southern District of New York granting the motion for summary judgment of noninfringement of Defense Technology Corporation of America and Federal Laboratories, Inc. (together, "DTCA"). Combined Sys., Inc. & Def. Tech., No. 01 CIV. 7833 230 F.Supp.2d 544 (S.D.N.Y. Nov. 18, 2002) ("Nov. 18 Op. and Order"). Because the district court correctly construed the disputed terms of the asserted claim and its methodology in reaching its construction was consistent with our case law, we affirm.

BACKGROUND

CSI and DTCA compete in the manufacture and sale of low-lethality anti-personnel munitions — shotgun projectiles designed for use by law enforcement, corrections, and military personnel, for example, to distract or incapacitate individuals without causing serious injury or death. CSI owns U.S. Patent No. 6,202,562 B1 ("`562 patent"), issued March 20, 2001 to Michael Brunn and Jacob Kravel and entitled "Method of Preparing a Low Lethality Projectile for Flight."

On August 21, 2001, CSI sued DTCA alleging that DTCA's manufacture of its "Drag Stabilized Bean Bag Round" or "23DS" projectile infringes the `562 method patent. Following briefing and argument, the district court construed the disputed limitations of claim 1, the only claim of the `562 patent, which reads as follows:

1. A method of shaping a projectile so as to have a specified low lethality consequence upon impact against an individual, said shaping method comprising the steps of

using an empty 12 gauge shotgun shell having a cylindrical wall bounding a projectile compartment and a front edge and a rear edge at opposite ends of said cylindrical wall respectively bounding a front and a rear opening into said projectile compartment,

closing said rear opening of said 12 gauge cartridge shell with projectile-propelling explosive means,

using preliminarily an unfilled tubular sock-like projectile body of fabric construction material having a closed front end and a rear edge bounding a rear opening thereinto,

filling through said rear opening of said tubular sock-like projectile body a selected amount of lead shot to assume a position therein against said closed end,

forming folds in said tubular sock-like projectile body immediately forward of said rear opening thereof,

inserting said formed folds of said tubular sock-like projectile body into said projectile compartment front opening,

urging in movement said lead shot-filled closed front end of said tubular sock-like projectile body fully into said projectile compartment to an extent causing said formed folds thereof into firm contact against a said closed 12 gauge shotgun shell end and said lead shot-filled closed front end to expand radially into contact with said 12 gauge shotgun shell cylindrical wall so as to assume said cylindrical shape thereof characterized by a blunt front end, and

igniting said projectile-propelling means, whereby said tubular sock-like projectile body exits from said 12 gauge shotgun shell projectile compartment in said blunt-ended cylindrical shape against a force of air resistance to flight exerted against a front thereof and pushed by a force urging said shape in flight exerted against a rear thereof such that said blunt-ended cylindrical shape is maintained during flight and at impact to thereby contribute to a low lethality consequence.

`562 patent, col. 4, ll. 10-44 (formatting and emphasis added). The limitations at issue in this appeal are the "forming folds" and "inserting said formed folds" limitations.

The district court construed the "forming folds" limitation to require "the deliberate and systematic creation of folds." Combined Sys., Inc. v. Def. Tech. Corp., No. 01 CIV. 7833 (S.D.N.Y. Apr.19, 2002) ("Apr. 19 Op."). According to the court, "[t]he `forming folds' clause does not refer to any gathers in the material that incidentally occur when a string is pulled to close the [projectile] compartment" and it "cannot be read as the gathering of material that occurs incidental to securing the shot in a compartment of the projectile, a gathering that may or may not form `folds.'" Id. Additionally, the court held that "the folds referenced in the claim are formed prior to — not during — insertion in the empty shotgun shell[,]" citing "the ordinary meaning" of the "inserting said formed folds" limitation. Id.

Subsequently, DTCA filed a motion for summary judgment of noninfringement. Applying the above-described construction, the district court granted the motion. Nov. 18 Op. and Order, 230 F.Supp.2d at 551, slip op. at 17. It noted that, like the projectile "shaped" by the claimed method, the accused product is a "low lethality antipersonnel projectile[,] ... also constructed from a tubular product that has been filled with lead shot and tied off to create a compartment containing the shot and an open end." Id. at 546. However, after viewing CSI's evidence on infringement — a videotape of DTCA's manufacturing process — the court found that "to the extent any `folds' are ever formed [in the DTCA process], they are created as part of the process of insertion [of the projectile into the shell] and not prior to it." Id. at 548. It further found that "folds are not formed in any systematic or deliberate manner." Id. at 548. In sum, according to the district court, CSI "has not presented evidence that [DTCA] systematically form[s] folds in the projectile or ... do[es] so prior to the insertion of the projectile into the shotgun shell[,]" and did not, therefore, raise a question of fact as to literal infringement. Id.¹

CSI timely appealed the grant of summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

DISCUSSION

We review de novo a district courts grant of summary judgment. Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir. 1998). Summary judgment is appropriate if, drawing all factual inferences in favor of the non-movant, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Analysis of infringement involves two steps. Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 988 (Fed.Cir.1999). First, the trial court determines the scope and meaning of the asserted claims. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372-74, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The trial courts claim construction is an issue of law reviewed without deference. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc). Second, the claims as construed by the court are compared to the allegedly infringing device. Johnson, 175 F.3d at 988. We affirm a district court's summary judgment of non-infringement only if, after viewing the alleged facts in the light most favorable to the non-movant, there is no genuine issue whether the accused device is encompassed by the claims. Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999).

CSI does not challenge the district courts conclusion that, as a matter of law, claim 1, as construed, is not infringed literally or under the doctrine of equivalents. Accordingly, the only issue on appeal is whether the district court correctly construed the claim.

I.

The language of the claim defines the boundary of its scope. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed.Cir.2002). Accordingly, "the claim construction inquiry ... begins and ends in all cases with the actual words of the claim." Id. (quoting Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998)). Claim terms must be construed as they would be understood by a person of ordinary skill in the art to which the invention pertains. Specialty Composites v. Cabot Corp., 845 F.2d 981, 986 (Fed.Cir.1988).

"The words used in the claim[] are interpreted in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence." Teleflex, 299 F.3d at 1324. "In the absence of an express intent to impart a novel meaning to the claim terms, the words are presumed to take on the ordinary and customary meanings attributed to them by those of ordinary skill in the art." Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed.Cir.2003).

II.

Claim 1 recites a "method of shaping a projectile so as to have a specified low lethality consequence upon impact against an individual," including the step of "filling through [the] rear opening of [a] tubular sock-like projectile body a selected amount of lead shot to assume a position therein against [its] closed end...."`562 patent, col. 4, ll. 21-24. It further recites the steps of "forming folds in said tubular sock-like projectile body immediately forward of said rear opening thereof," and "inserting said formed folds of said tubular sock-like projectile body into [the front opening of the] projectile compartment" of "an empty 12 gauge shotgun shell...." `562 patent, col. 4, ll. 13-14, 24-28 (emphasis added).

The district court relied in part on the American Heritage Dictionary definition of "fold," namely "[t]o bend over or double up so that one part lies on another part,"...