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USFC2006-1090-05
{DEA81 A41 -A304-466A-A56E-F2F4E476ED60}
{70879}
{32-060606:133149}
{052506}
REPLYBRIEF
WESTICRS
06-1090
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL
CIRCUIT
AKEVA
L.L.C.,
Plaintiff-Appellant,
V,
ADIDAS-SALOMON
AG,
Defendant,
and
ADIDAS
AMERICA,
INC.,
Defendant-Appellee,
Appealed
From The United States District Court For The Middle
Of North Carolina, Greensboro
Division,
In Case No. 1:03-cv-012107,
REPLY
BRIEF
Robins, Kaplan, Miller & Ciresi L.L.P.
1801 K Street, N.W., Suite 1200
Date:
D.C. 20006
(202) 775-0725
May 25, 2006
William
L. Osteen
OF PLAINTIFF-APPELLANT
AKEVA L.L.C.
Dirk D. Thomas
Robert A. Auchter
Danielle Avolio
Andr6 J. Bahou
Jason Buratti
Washington,
Telephone:
Judge
District
Munir R. Meghjee
Robins, Kaplan, Miller & Ciresi L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis,
MN 55402-2015
Telephone:
(612) 349-8500
Attorneys for Plaintiff-Appellant
Akeva L.L.C.
TABLE
OF CONTENTS
Pa e
INTRODUCTION
ARGUMENT
I.
.........................................................................................
1
.................................................................................................
THE '471 PATENT CLAIMS
A REAR HEEL STRUCTURE
DETACHABLE
A.
B.
REAR
ARE NOT LIMITED
COMPRISING
SOLES
The Intrinsic Evidence
Meaning Of"Secured"
1.
A Detachable
The inventor
TO
...............................................
Supports The Ordinary
....................................................
The '471 Patent Does Not Disclaim
Lacking
5
Rear Sole ....................................
II.
did not define his inventive
A.
13
The District Court Erred By Limiting The Claims
To The Disclosed Embodiments
...................................
15
THAT
C.
DOES NOT DISCLAIM
ARE PERMANENTLY
REAR
SECURED
..............
16
The Specification
Discloses Multiple Objectives
And Multiple Structures To Meet Those
Objectives, And An Express Statement That The
Structures Can Be Used In Combination
Or
Separately
B.
9
of claim scope ....................................
THE '300 PATENT
SOLES
6
The discussion of the prior art does not
amount to a clear and unmistakable
disavowal
C.
5
All Shoes
concepts, in all instances, as requiring a
detachable rear sole ...............................................
2.
5
......................................................................
adidas Fails In Its Attempt To Justify The District
Court's Forced Reconciliation
Of The Contrary
Evidence With Its Finding Of Disclaimer
....................
17
21
The Prosecution
History Demonstrates
That The
Claims Of The '300 Patent Were Not Limited To
Selectively
Positionable
Rear Soles ..............................
23
D.
III.
The '300 Patent Does Not "Define By
Implication" That The Term "Secured" Means
"Selectively Locked Into Position" ............................... 24
THE DISTRICT COURT PROPERLY CONSTRUED
"FLEXIBLE PLATE" IN THE '300 PATENT ...................... 25
A.
B.
The District Court Correctly Determined That
"Flexible Plate" Should Be Construed According
To Its Plain And Ordinary Meaning ............................. 26
1.
The district court followed the proper
approach to claim construction ........................... 26
2.
The district court's construction is correct
and supported by the intrinsic evidence ............. 27
This Appellate Court Should Not Grant Summary
Judgment Of Noninfringement Before The District
Court Has An Opportunity To Rule In The First
Instance .........................................................................
30
CONCLUSION ............................................................................................
31
ii
TABLE
OF AUTHORITIES
Pa e
Cases
Astrazeneca
AB v. Mutual Pharmaceutical
Co.,
384 F.3d 1333 (Fed. Cir. 2004) .................................................................
14
C.R. Bard, Inc. v. U.S. Surgical Corp.,
388 F.3d 858 (Fed. Cir. 2004) ...................................................................
10
Fabian v. Storage Technology Corp.,
164 F.3d 887 (4th Cir. 1999) ....................................................................
30
Golight,
Inc. v. Wal-Mart
Stores, Inc.,
355 F.3d 1327 (Fed. Cir. 2004) ..........................................................
passim
Honeywell
Inc. v. Victor Co. of Japan, Ltd.,
298 F.3d 1317 (Fed. Cir. 2003) ...........................................................
18, 19
Johnson Worldwide Assoc., Inc. v. Zebco Corp.,
175 F.3d 985 (Fed. Cir. 1999) ...................................................................
Liebel-Flarsheim
Co. v. Medrad,
(Fed. Cir.), cert. denied,
nCube
Corp. v. Seachange
436 F.3d
Inc., 358 F.3d 898
543 U.S. 925 (2004) ....................................
1317 (Fed Cir. 2006) ..................................................
7, 10, 13, 17
passim
NTP, Inc. v. Research In Motion, Inc.,
418 F.3d 1282 (Fed. Cir. 2005) ...................................................................
v. AWHCorp.,
(en banc),
cert. denied,
passim
Int 'l, Inc.,
Northrop Grumman Corp. v. Intel Corp.,
325 F.3d 1346 (Fed. Cir. 2003) ..........................................................
Phillips
25
7
415 F.3d 1303 (Fed. Cir. 2005)
125 S. Ct. 1332 (2006)
iii
........................
5, 17, 26, 27
Rambus Inc. v. Infineon Techs. AG,
318 F.3d 1081 (Fed. Cir.), cert. denied,
540 U.S. 874 (2003) ..............
Resonate Inc. v. Alteon Websystems, Inc.,
338 F.3d 1360 (Fed. Cir. 2003) ...........................................................
SciMed Life Systems, lnc. v. Advanced
Cardiovascular
Systems,
242 F.3d 1337 (Fed. Cir. 2001) ..........................................................
Sunrace
Roots Enter.
7, 21
18, 19
Inc.,
passim
Co., Ltd. v. SRAM Corp.,
336 F.3d 1298 (Fed. Cir. 2003) ...................................................................
Toll Bros., lnc. v. Dryvit Systems, Inc.,
432 F.3d 564 (4th Cir. 2005) .....................................................................
9
30
Statutes
37 C.F.R.
§ 1.83 ......................................................................................
iv
22, 23
INTRODUCTION
adidas'
defense
of the district
themselves--entirely
Patent
("the
No.
result-oriented.
6,662,471
'300 patent")
a novel
("the
a "heel
the upper."
intrinsic
'471
rulings
is--as
The relevant
claim
patent")
is straightforward.
heel structure
includes
court's
and
U.S.
Both patents
that, in part, is comprised
region"
common
evidence
support
meaning
Patent
No.
of an "upper"
below
of "secured"
a construction
language
claim athletic
and "a rear sole secured
The
were the rulings
of U.S.
6,604,300
shoes with
portion
that
the heel region
and
the entirety
of "secured"
of
of the
as "fastened"
or
"attached."
Rather
than examine
history
(as required
picked
portions
exists.
The district
limited
to a "detachably
by this
court's
of the specification
precedents),
secured"
the district
record to create
faulty analysis
and prosecution
a disclaimer
led it to misconstrue
rear sole in the '471 patent,
or permanently
fastened,
court
cherry-
where
none
"secured"
as
and to "a rear
but not permanently
fixed
in the '300 patent.
adidas
ignorance
Court's
of the intrinsic
sole that was selectively
in position"
the entirety
of
mischaracterizes
attempts
the
to save the court's
intrinsic
Akeva's
evidence.
arguments
construction
And,
in
with
to make
support
of
similar
studied
its points,
adidas
the
proper
claim
construction, revises the district
Court's decisions in SciMed
Life Systems,
Inc.,
Medrad,
Inc., 358 F.3d 898 (Fed. Cir.), cert. denied,
disclaimer
respect
that
"detachably
1337 (Fed.
Inc. v. Advanced
Systems,
With
242 F.3d
court's reasoning, and misapplies this
to the
limits
secured"
'471
patent,
the scope
rear sole because
exists.
Instead,
adidas
the district
court's
analysis
alleging
meaning
of"secured,"
appears
attempts
to save the court's
"expressly
defin[ed]
But
adidas
specification
term
"secured"
in a confusing
clear
to only
no such unambiguous
a disclaimer
secured,"
(adidas
ruling
language
of
of the
of claim scope of any
although
"detachably
From
that the inventor
to limit the scope
of
characterization
Br. at 24-28.)
by asserting
a
secured"
there,
adidas
purportedly
of the claims
to soles
(Id. at 24.)
points
without
only
context,
evidence
that the '471 patent
intrinsic
evidence--and
specification
claim
to any
that the court found no disclaimer
the invention"
that are detachable.
points
but rather
in the claims.
Co. v.
543 U.S. 925 (2004).
never
engages
rear sole that was not "detachably
nowhere
and Liebel-Flarsheim
adidas
of the
disclaimer
ordinary
Cir. 2001),
Cardiovascular
more
to
and
general
fails
to address
uses "secured"
germane
language
from
the powerful
as ordinarily
to the present
of the '471 patent and its related
plucked
intrinsic
understood.
appeal,
patents--discloses
the
That
the common
at least two
inventive features--(1)a
flexible member; and (2)a detachable rear sole--
that can be utilized together or independently of each other,
adidas' only
effort to rebut the fact that the '471 patent describes these independent
inventive features is to circularly argue that the patent does not somehow
further describe these features as comprising separate inventions,
adidas
simply ignores the evidence that it is a related patent (the '210 patent) that
has claims specifically reciting
the detachable rear sole, while the '471
patent claims are not limited to athletic shoes with a detachable sole.
Nor can adidas' arguments save the district court's faulty analysis of
the '300 patent,
adidas defends the court's
recitation of this Court's decision in SciMed,
specification
means
that "[i]n all embodiments,
for selectively
and upper
of the shoe."
under the proper
when
placed
evidence
disclaimer
discloses
locking
contrary
of claim
to
that the inventor's
patent,
Here,
conceptions
with a rote
on language
includes
to the rear sole support
col. 7, lines
intrinsic
was
unlike
not
in the
mechanical
17-20.)
that the "all embodiments"
of the entire
a disclaimer),
scope.
the invention
'300
it is apparent
in the context
seizing
the rear sole relative
(A0128,
analysis,
construction
record
a clear
in SciMed,
and contributions
But,
language,
(which
provides
and
unequivocal
the
specification
to the art are not
limited
to
rotatable
rear
soles
but
include
additional
features,
notwithstanding the language on which the court relied.
In the '300 patent, multiple distinct inventive features are separately
discussed in the specification.
The "all embodiments" language is found in
the portion of the specification discussing a detachable and/or rotatable rear
sole that is claimed elsewhere in the '300 patent family.
Another portion of
the specification relates to the flexible member that is a part of the novel
heel structure
claimed
in the '300 patent.
Indeed, the
specification pointedly states that "[t]he flexible region..,
only in conjunction
The court's
need not be used
with a detachable rear sole, but can be used with
permanently attached rear soles as well."
14-16.)
'300 patent
(A0129, '300 patent, col. 10, lines
attempt to reconcile this statement with
the "all
embodiments" language resulted in a nonsensical claim construction--one
that is limited to either a "selectively"
or a "permanently"
fastened rear sole
as long as the rear sole is not "permanently fixed in position."
adidas' backward reasoning in support of the court's faulty rulings
cannot justify a construction of"secured"
in the '471 and '300 patents that is
at odds with its plain and ordinary meaning and inconsistent with the full
intrinsic record.
4
ARGUMENT
I.
THE '471 PATENT CLAIMS ARE NOT LIMITED
TO A REAR
HEEL
STRUCTURE
COMPRISING
DETACHABLE
REAR
SOLES
A.
The Intrinsic
"Secured"
Evidence
The ordinary meaning
the district
court
should
commonly
understood
Supports
of "secured"
have
applied
term.
is one that is readily
the widely
See Phillips
adidas
does not contest
argues
evidence
that
Akeva
Opening
explaining
based
Brief
how the ordinary
upon
requires.
of the claims
1314.
the claims,
(Akeva
adidas
guidance
Akeva
begins
meaning
ignores
which
much
All of the asserted
and
See Phillips,
of this intrinsic
should
as to the meaning
claim
of "secured"
specification,
Br. at 23-27.)
meaning
have
provided
of particular
claims
and
of this
415 F.3d
1303,
of "secured."
Instead,
ignoring
intrinsic
by
(adidas
of Akeva's
the
Of
apparent,
meaning
Corp.,
definitions."
mischaracterization
Meaning
125 S. Ct. 1332 (2006).
Phillips
"in favor of broad dictionary
This is a blatant
its
the ordinary
disregards
accepted
v. AWH
1314 (Fed. Cir. 2005) (en banc), cert. denied,
adidas
The Ordinary
the
Br. at 23.)
arguments.
construction
is the proper
prosecution
Rather,
analysis
in
by
construction
history
as Phillips
415 F.3d at 1314-17.
evidence,
evading
the district
claim terms."
of the '471 patent
court
Phillips,
the language
"substantial
415 F.3d at
recite "secured"
without
any modifiers--such
as the "detachable" modifier that the court imposed.
(A0179-80, '471 patent, col. 13, line 7 - col. 16, line 17.)
Similarly,
adidas fails to address the many instances in which
"secured" is used in its ordinary sensein the '471 patent specification, or the
patentee's use of a modifier when he wanted to say "detachably secured."
(See citations listed in Akeva Br. at 24.)
Finally,
adidas fails to address the prosecution
history
meaningful way. Here, the patentee made clear his intention
of the '471 patent
those
claims
"detachably
when
related
patent
(the
'210
intentions
Liebel-Flarsheim
Co., 358
ignores
B.
by omitting
was expressly
patent).
a disclaimer
skips crucial
there
is "no
history
without
analysis
(adidas
aspects
of claim
in its defense
Not Disclaim
scope
based
this
claims."
important
Br. at 29), and
of the court's
All Shoes
of a claim construction
none exists.
as to the
of the asserted
dismisses
the
of an earlier,
dispute
adidas
history
from
in the claims
at 909.
of claim scope where
a disclaimer
"detachably"
to the meaning
The '471 Patent Does
Detachable
Rear Sole
adidas
the term
F.3d
the prosecution
that the claims
to the rear heel (and not just
recited
Thus,
with respect
of the prosecution
otherwise
finding
secured")
that limitation
applicant['s]
aspect
cover all rear soles "secured"
in any
ruling.
Lacking
analysis
A
to justify
But the law does not permit
on
ambiguous
and
indirect
snippets from the specification such as those on which
district
relies
and the
court based its ruling.
Rather,
requires
this Court has repeatedly
"words
representing
Motion,
expressions
418
F.3d
omitted).
construction
refusing
or
a clear disavowal
Inc.,
quotations
analysis
nCube
(Fed Cir. 2006);
1331-33
Northrop
2003);
Grumman
Rambus
unequivocal
expressly
v. Research
2005)
(citation
on isolated
(Fed.
Cir.
2004);
of the entire
taken
Int'l,
436
Inc.,
Inc. v. Wal-Mart
Techs.
F.3d
Co.,
1346,
AG, 318 F.3d
claim
record,
out of context.
Stores,
Liebel-Flarsheim
325 F.3d
intrinsic
See
1317,
1319-22
Inc.,
355 F.3d
358 F.3d
1354-55
1081,
In
and
held that the proper
statements
to no clear disavowal
secured"
the specification,
disclaimer
defin[ed]
Inc.
an examination
v. Infineon
other than "detachably
from
NTP,
scope."
restriction,
at 905;
(Fed.
1094-95
Cir.
(Fed.
540 U.S. 874 (2003).
adidas points
statements
or
Corp. v. Intel Corp.,
Inc.
Cir.), cert. denied,
exclusion
1308-09
v. Seachange
Cir.
manifest
of claim
see also Golight,
(Fed.
of claim scope
this Court has always
requires
Corp.
held that a disclaimer
of
1282,
Thus,
to find disclaimer
generally,
1327,
adidas
because
the invention
rear heels.
adidas
of claim scope excluding
Instead,
argues
the inventor
as 'including
relying
on three isolated
that there
supposedly
a detachable
anything
is a clear
"consistently
rear sole'"
and
and
and
purportedly distinguished the prior art "on the grounds that the prior art
shoes have many disadvantages due to their failure to utilize detachable rear
soles." (adidas Br. at 24-25.) The first statement describes the general field
of the invention;
the second occurs in the background
specification; and the third discusses one advantage
invention:
athletic
"The
shoes
present
invention
and,
more
interchangeable/detachable
life and better
(A0173,
'471 patent,
(2)
There
and function
feature
of the
the present
is "no apparent
Remarkably,
to
that
in terms
to
multi-purpose
athletic
provide
a radical
shoes
extended
of cushioning
with
and
and
more
spring."
incorporates
of the fact that the use
dramatically
from conventional
a heel structure,
alleviates
asserts
are a disclaimer
awareness
if it is simply
(ld., col. 2, lines 51-54.)
departure
significantly
adidas
industry
shoe can be changed
rear soles."
invention
sole, that
soles
performance
of an athletic
"[I]n
generally
col. 1, lines 13-17.)
given interchangeable
(3)
relates
particularly,
rear
versatile
statements
of one
_
(1)
rear
section of the
heel wear
that Akeva
of claim
scope.
including
problems
does not dispute
(adidas
shoes,
the shoe of
a detachable
associated
with
that two of these
Br. at 31-32.)
In fact,
Akeva discusses in its Opening Brief why all of these particular
statements
do not rise to the level of a clear and unequivocal
disclaimer
of claim scope.
(Akeva Br. at 29-33.)
conventional
shoes and provides
enhanced cushioning
and/or spring."
(A0174, '471 patent, col. 4, lines 56-61 .)
1.
The inventor
instances,
These
detachable
rear sole.
31), general
disclaimer
Sunrace
statements
statements
of claim
Roots
Enter.
did not define
as requiring
do
not
As pointed
a detachable
"define"
the
out in Akeva's
describing
scope.
his inventive
Liebel-Flarsheim
Co., Ltd.
v. SRAM
in all
rear sole
invention
Opening
the invention
concepts,
as
requiring
Brief (Akeva
a
Br. at
do not amount
to an express
Co., 358
at 905, 908;
Corp.,
336
F.3d
F.3d
1298,
1304-05
(Fed. Cir. 2003).
The '471 patent
inventor
a novel way of addressing
structure
conceived
spring
as well as a novel
and the rear sole of an athletic
shoe.
col. 3, line 30 - col. 4, line 25 (discussing
C, 16-21, 23, 24, 26, 27); A0173,
of a heel structure
that allows
way of attaching
(See, e.g., A0174,
a heel
'471 patent,
Figs. 2, 3, 8, 11, 12, 14A-C,
col. 2, lines 4-20 and 32-47;
for
15A-
A0175,
col. 5,
lines 1-4; col. 6, lines 41-58.)
That this heel structure
inventor
patent,
does
acknowledges
may include
was already
col. 2, lines 4-31; A0817,
not
mean
that
detachable
rear
sole.
the
claims
a detachable
known
in the prior art (see A0173,
'210 patent,
are
As discussed
rear sole (which
the
'471
col. 1, line 65 - col. 2, line 25))
limited
in Akeva's
to a heel
Opening
structure
with
Brief,
the court
a
improperly relied on the term "includes" in the specification and on C.R.
Bard,
Inc.
v. U.S.
Surgical
(Akeva
Br. at 30-33.)
analysis
of that authority.
Indeed,
one
adidas
possible,
as
mechanism
for rotating
one
that
least 360°. '' Golight,
limiting
the
description
864
required,
patentees
description."
based
based
logical
on
scope
...
or features
Id.
of an
addresses"
also described
rotation
to include
the
use of the invention
Corp., 436 F.3d at 1321-22.
10
direction
as
Inc.,
for
the "present
horizontal
through
features,
within
Corp.,
because
invention
describing
drive
through
at
this
the
concluding
that
or important
Court
that "all routing
specification
with
360 ° where
each of their claims
as significant
language
discussing
This Court found no disclaimer
other significant
on specification
2004).
flawed
In Golight,
unit in a horizontal
In nCube
simply
a motor-driven
described
Cir.
the court's
features
language
to horizontal
were not required
written
disclaimer
"includes
the lamp
(Fed.
held that language
specification
also described
advantages
nCube
not
858,
no effort to defend
Inc., 355 F.3d at 1331.
claim
of these
history
but
this Court addressed
invention"
"[t]he
makes
F.3d
does not rise to a level of a clear disclaimer.
example,
written
388
this Court has repeatedly
of several
important
Corp.,
other
refused
all
in the
to find
is accomplished
and
addressing
prosecution
schemes.
a
Such is the case here. As discussed in Akeva's Opening Brief, the
specification discloses two aspects of the invention claimed in the '471
patent family--the
flexible
member and the detachable rear sole--and
clearly discloses that these features can be used independently
another.
(Akeva Br. at 9-13.)
of one
adidas fails to address the intrinsic record
evidence describing the flexible member aspect of the inventor's
concepts.
For example, in the Background of the Invention, the inventor specifically
points to problems in the prior art such as "midsole wear" where "no one has
yet addressed heel wear problems in an effective
way,"
enhancement" which is "largely ignored" in the industry.
patent, col. 1, lines 40-50; col. 2, lines 33-47.)
and "spring
(A0173, '471
The '471 patent discloses
two features (separate and apart from the detachable heel) that solve the
patent's "spring enhancement" objective: the flexible plate (A0175, '471
patent, col. 5, lines 1-4; A0177, col. 9, lines 18-30), and the U-shaped
member (A0178, col. 11, lines 3-10 and 48-61).
Indeed, the '471 patent recognizes that any combination
of these
multiple features can be used together to address the multiple objectives of
the inventor's various contributions to the art: "it is intended that the present
invention cover all possible combinations of features shown ...
they come within the scope of the claims" in the patent.
11
provided
(A0179, '471
patent, col. 13, lines 1-3.) adidas attempts to discount this statement through
entirely
circular
logic, contending
that using various
embodiments
in
combination has no applicability here because, in adidas' view, the "scope of
the claims" is limited to a detachable rear heel.
It is this contrary evidence from the intrinsic record that distinguishes
the facts of this case from the holding of SciMed.
states that SciMed
ignores
supports
No such
statement,
taken
disclaimer,
this
"[r]ead
"all
exists
alone,
did not end the analysis.
Court
considered
together"
supported
the entirety
In SciMed,
this Court found no contradictory
that would
support
an alternative
The more analogous
was
found
specification
242 F.3d
because
the
statements,
cases,
entirety
Rather,
invention
But
even
in order
written
of disclaimer.
evidence
result.
at 1343 (emphasis
patent.
of the
it
that this Court
of the present
in the '471
a finding
a different
language
embodiments
SciMed,
repeatedly
does not argue otherwise),
the following
herein."
statement
adidas
the cases that mandate
recited
a disclaimer:
and disclosed
removed).
law," (Akeva
between
the specification
contemplated
which
"good
clear distinctions
In SciMed,
found
remains
While
that
to find
description
/d. at 1342-43.
in the intrinsic
record
construction.
therefore,
are those in which
of the intrinsic
did not reflect
12
record,
no disclaimer
not just
a clear and unmistakable
isolated
disavowal
of claim
nCube,
scope.
436
Grumman
F.3d
conclusory.
at 1321-22;
attempt
(adidas
for
divorced
injector
is provided
Inc.,
on
There,
355
F.3d
F.3d
at 908; see
at 1331;
context.
having
snippets
For example,
of the present
also
Northrop
a front end loadable
pressure
There
was no disclaimer
that an invention
achieves
be construed
all of the objectives."
provided
a "strong
because
there
syringe
there,
that there
specification
stated:
is provided
an
that can be loaded
through
an opening
that
Liebel-Flarsheim,
"[t]he
fact that
does
to structures
And,
the
it is
infringer
patent-in-suit
objectives
as limited
indication"
that
jacket."
several
Id.
from
jacket
because
the alleged
invention,
in the front end of the pressure
at 908.
fails
like here,
isolated
from the injector
each of the claims
history
based
a proper
into and removed
achieving
358
Liebel-Flarsheim
Br. at 30-31.)
to the principles
angiographic
asserts
Golight,
to distinguish
disclaimer
from
"According
F.3d
e.g., Liebel-Flarsheim,
Corp., 325 K3d at 1355.
adidas'
argued
See,
358
a patent
not require
that
that are capable
as here,
of
the prosecution
was no disclaimer.
/d. at
909.
.
adidas
argues
from the '471 patent
The discussion of the prior art does not amount
and unmistakable
disavowal of claim scope
that since the second
specification
relate
13
and third of the cited
to a discussion
to a clear
statements
of the advantages
of
the invention over the prior art, they amount to a disclaimer of claim scope,
relying extensively on Astrazeneca
AB v. Mutual
F.3d 1333 (Fed. Cir. 2004) and SciMed
But
findings
the
in Astrazeneca
summary
Here,
cases,
40-54;
on this point
other products..,
detachable
identifies
also
whereas
any instance
from the prior
discloses
where
art based
'471 patent,
criticizes
solution
the flexible
40; A0177,
describes
on a "general
a feature
multiple
the prior
(See A0175,
inventive
feature."
It discusses
is the
both
the midsole
col. 9, lines 18-31; A0178,
col. 1, lines
wear
to these
rear
sole,
and spring
col. 8, lines 33-
col. 11, lines 3-10 and 48-60.)
14
those
of midsole
solutions
detachable
1-4; A0176,
unlike
and the written
'471 patent,
multiple
the
of a detachable
because
wear
col. 5, lines
in the art, and
Also,
features
shoes
of the
distinguished
on the existence
(See A0173,
addresses
'471 patent,
the inventor
art athletic
for midsole
member
known
col. 2, lines 4-31.)
and for lack of spring.
One
problems.
were based
disclaimer
that lack that same
rear soles
col. 2, lines 32-47 and 54-60.)
problems.
[that]
The
were
the '471 patent
wear problems
different.
in contrast,
(See A0173,
description
this argument.
242 F.3d at 1340-45.
invention
rear heel.
quite
Co., 384
AB, 384 F.3d at 1340; see SciMed,
nowhere
claimed
are
of the invention
and criticizes
Astrazeneca
here
and SciMed
or description
invention..,
adidas
circumstances
to support
Pharmaceutical
C.
The District Court Erred
Disclosed Embodiments
adidas acknowledges
the lack of a disclosure
By Limiting
that the district court's decision
in the written description
featured a rear sole that is not detachably
adidas
admits in its discussion
construe
a patent's
claims
element
is present
in every
Br. at 30.)
commit
the
to require a specific
error
embodiment
that
presumably
because
"definition"
of the invention.
define
his invention
of what
as limited
fact that the inventor
Yet
Br. at 29.)
that "it is improper
element
disclosed
merely
because
in the patent[.]"
adidas
reversal
as
As stated above, however,
with detachable
may have anticipated
Grumman
does not support
the
the court's
rear heels.
"IT]he
embodiments,
the court's
be reversed.
15
at 1355.
limitation
claim
inventor's
did not
that the invention
325 F.3d
did not
the inventor
would
that the scope of the patent
Corp.,
that
in Liebel-Flarsheim,
mischaracterizes
to shoes
to
(adidas
in
Northrop
and disclosed
(adidas
resulted
that context."
preferred
that
that the district court here
way does not mean
evidence
was based upon
contends
in a particular
intrinsic
secured.
To The
of an embodiment
of Liebel-Flarsheim
adidas nonetheless
same
The Claims
be used
is limited
Because
of the claims
construction
to
the
to the
should
II.
THE
'300
THAT
PATENT
DOES
NOT
ARE PERMANENTLY
DISCLAIM
backwards
specification
record,
adidas
invention
includes
relative
from the result, focusing
divorced
on isolated
on the
mechanical
language
means
removed),
language
is a clear and unequivocal
locking
invention
to detachable
selectively
locked into different positions.
adidas
is wrong,
embodiments"
circumstances.
compelling
does
both
legally
not mandate
Here,
evidence
or permanently
unlike
by the "all embodiments"
rear
factually.
the
the rear
sole
Br. at 34-35)
a holding
that this
scope
limiting
the
soles
that can
be
The phrase
of claim
the intrinsic
disclaimer
intrinsic
scope
evidence
of claim scope
"in
all
in all
provides
was intended
language.
The '300 patent specification
a "flexible
of claim
a clear disavowal
in SciMed,
that no broad
compels
attached
and
(adidas
by
from the
all embodiments,
for selectively
disavowal
ruling
by the remaining
that "[i]n
adidas asserts that SciMed
court's
statements
to the rear sole support and upper of the shoe."
(emphasis
both
the district
from the context provided
relies
SOLES
SECURED
As with the '471 patent, adidas defends
working
REAR
member"
and prosecution
and a selectively
features
that can be utilized
context,
the "all embodiments"
together
positionable
clearly
heel
would
disclose
as separate
or apart from one another.
language
16
history
not be understood
In this
by those
of ordinary
to athletic
skill in the art to limit the scope of the claims
shoes having
22; Golight,
both features.
The
Specification
Multiple
Structures
Express
Statement
Combination
In arguing
specification
features,
discussing
read in its entirety,
adidas
patent
to acknowledge
achieves
be construed
all of the objectives."
structures
need
that repeatedly
invention
contradicting
solving
any
"The
of the
position.
inventive
plate
features
and some
fact that a patent
does not require
to structures
that are capable
asserts
that each of
of achieving
358 F.3d at 908; see also Phillips,
that function
to deflect
and consistently
distinct
finding
have
adidas'
two
The specification
objectives
that baffles
also
heel.
by a flexible
heel.
Liebel-Flarsheim,
do not
not disclose
on the portion
that the disclosed
achieved
several
as limited
415 F.3d at 1325 (stating
exclusively
does not support
some
does
positionable
by a detachable/positionable
the claims
specification
relies
the selectively
objectives,
that an invention
evidence
Discloses
Multiple
Objectives
And
To Meet Those Objectives,
And An
That The Structures
Can Be Used In
adidas
however,
refuses
multiple
achieved
436 F.3d at 1321-
Or Separately
that the '300
inventive
achieve
Corp.,
Inc., 355 at 1331.
A.
distinct
See nCube
of the '300 patent
problems
of disclaimer.
17
as part of internal
impact
discloses
provides
support
weapons).
multiple
features
compelling
See Phillips,
415
Intrinsic
F.3d
of the
evidence
at 1325;
Golight,
Inc.,
Northrop
355
F.3d
Grumman
Websystems,
325
Inc., 338 F.3d
1360,
invention.
•..
of the
addresses
problem
patent,
'300
problem
is that purchasers
personal
2.)
It is the flexible
that addresses
gait cycle
(A0126,
A0128,
of conventional
member/plate,
and reduces
in that it is more durable
'300 patent,
compression
objectives
in
athletic
member
athletic
states
shoes
shoes ....
that
"[a]nother
cannot
customize
own
body
provides
or eliminates
see also, A0127,
col. 7, lines 50-53; col. 8, lines 30-34.)
18
"
weight,
col. 1, line 66 - col. 2, line
than conventional
col. 3, lines 39-42;
of the
compression
and not the detachable/positionable
flexible
Inc. v.
in the art that successfully
It also
(ld., '300 patent,
v. Alteon
of the Invention
of midsole
in the heel of a shoe to their
or need."
heel strike
43-65.)
at 908;
Cir. 2003)•
states that "midsole
compression
1, lines
Inc.
Honeywell
as separate
there is nothing
midsole
this issue: "[t]he
upon
compression
col.
or spring
preference,
the issues
described
F.3d
Resonate
and the Background
the specification
of
(A0125,
the cushioning
1355;
358
1367 (Fed. Cir. 2003);
are
acute problem..,
the
at
specification,
heel
For example,
is another
F.3d
of the Invention
of the '300 patent
cushioning
Liebel-Flarsheim.,
Ltd., 298 F.3d 1317, 1326 fled.
In the Summary
and
1331;
Corp.,
Victor Co. of Japan,
portions
at
spring
interior
heel,
to the user's
rear midsole
midsole
material."
col. 6, lines 36-45;
The Abstract and the Summary of the Invention of the '300 patent
discuss only the flexible plate aspect of the inventor's contributions to the
art. adidas fails to distinguish Resonate
Court
was
found
no disclaimer
"conspicuously
Invention,
missing"
and there
problem
The portion
relates
exclusively
that
specification
embodiments,
the
to
states,
invention
'300 patent,
Contrary
to adidas'
stating
argument
of the advantages
and
language
relating
on which
as
disclaimer
Summary
includes
the
to the alleged
adidas
relies
(adidas
Br. at
rear
heel,
detachable/positionable
to
of
298 F.3d at 1326.
by that inventive
assertion
explicit
adidas'
Abstract
this
that
feature.
particular
mechanical
It is only there
feature,
in
for
selectively
means
and upper
"all
of the shoe."
col. 7, lines 17-19.). z
two separately
2
of the purported
to the rear sole support
demonstrating
when
claim
the
addressed
the rear sole relative
(A0128,
the
of the specification
the problems
locking
from
See also HoneywellInc.,
discussing
the
any mention
was no explicit
to be solved.
34-37)
where
Inc., 338 F.3d at 1366, in which
that Akeva
usable
inventive
that the two inventive
has pointed
features,
features
that a finding
of disclaimer
of the selectively
positionable
to no language
the specification
can be used
can be found
is
separately
in discussions
rear sole over the prior art
must also fail because, as the inventor expressly acknowledged,
the generic
concept of a movable rear sole was already in the prior art and could not
provide the basis for patentability.
(See A5501.)
19
or together: "[t]he flexible
with a detachable
rear
soles
region
also need not be used only in conjunction
rear sole, but can also be used with permanently
as well."
(A0129,
'300
patent,
col. 10, lines
attached
14-16)
(emphasis
added).
adidas
a separate
limited
dismisses
inventive
this statement
feature,
to a heel structure
doing,
adidas
(adidas
Br.
relies
multiple
"preferred
focusing
on a different
embodiment
focuses
but is rather
with
exclusively
at 43, citing
aspect
first
rear sole, which
patent,
combines
flexible
plurality
feature),
patent,
col.
feature)
focuses
35-col,
the disclosed
9, line
features
are replaceable
of separate
positions."
15.)
and notes
(A0127,
2O
In so
17-20.)
But
each
The first preferred
in the
(A0128,
preferred
'300
patent
'300 patent,
embodiment
(or the
on a shoe with a detachable
The third
that "both
and a given
rear sole.
of the specification.
invention.
plate in the rear sole.
in contrast,
and
in the specification,
disclosed
The second
plate is not
embodiment
7, lines
may or may not be used with a flexible
col. 8, lines
member
portion
are disclosed
inventive
on a shoe with a flexible
inventive
'300
of the disclosed
col. 7, line 45 - col. 8, line 34.)
second
positionable
on one isolated
A0128,
that the flexible
the preferred
a selectively
embodiments"
(or the
by arguing
plate.
preferred
(A0128,
embodiment
the rear sole and the
rear sole can be locked
'300 patent,
'300
col. 6, lines
in a
42-44.)
The '300 patent's inclusion of language
embodiments
as "the present
to all the features
multiplexed,
present
even
invention"
B.
(finding
though
included
district
court
specification--"[t]he
with
permanently
attached
disclaimer
language.
to limit the claims
of the invention.
the specification
See Rambus
Inc.,
requiring
the claimed
"bus"
be
contained
a statement
that "the
it).
clearly
a
recognized
region
also
need
rear
sole,
but
detachable
rear
of claim
that
soles
the
language
not
can
be
also
as well"--contradicted
scope
it found
from
used
be
"all
the
only
in
used
a finding
the
in
with
of the
embodiments"
(A0017-25.)
Instead
the
specification:
permanently
added).)
is not sufficient
no disclaimer
flexible
conjunction
scope,
to just one of the preferred
adidas Fails In Its Attempt To Justify The District Court's
Forced Reconciliation
Of The Contrary
Evidence
With Its
Finding Of Disclaimer
The
broad
invention,"
of that embodiment
318 F.3d at 1094-95
referring
of recognizing
court
adopted
"a rear
fixed
The district
not illustrated
sole
that this language
a claim
court's
construction
selectively
in position"
refutes
to the
without
or permanently
shoe
upper.
claim interpretation
in any of the figures
in the patent.
21
a disclaimer
defines
of claim
support
fastened,
(A0025
but
not
(emphasis
a structure
If the Patent
in the
that is
Office
had
understood the claims to define such structure, it would
have required
drawings showing such structure, as required by 37 C.F.R. § 1.83.
Examiner
never
required
any
amendments
to
the
figures,
The
thereby
demonstrating that the district court's claim construction conflicts with the
applicant's intended claim scope and the Patent Office's understanding of the
claimed subject matter. 3
adidas responds initially
by wordplay, contending that the district
court did not construe "secured" as "permanently attached and adjustable."
(adidas Br. at 38.) But there is no other way to read the court's construction.
According to the court, the rear sole must be either (l) permanently fastened
but not permanently fixed in position, or (2)selectively
fastened but not
permanently fixed in position. (A0025.)
adidas also argues that the '300 patent discloses a rear sole that can be
rotated into different positions, but is not detachable. (ld.)
statement
does
to which
not disclose
adidas
points
(A0128,
an embodiment
meeting
'300 patent,
But the isolated
col. 7, lines 42-43)
the requirements
of 37 C.F.R.
3 As pointed out in Akeva's Opening Brief at 21, and unrebutted by adidas,
this construction
of the claims is nonsensical
as the patent Examiner, in her
Notice of Allowability,
(A4268-71),
distinguished
the allowed claims over
U.S. Patent
No. 5,185,943
to Tong,
(A0668-86),
which
does not include
a
movable rear sole. If the Examiner had interpreted the '300 patent claims to
require a selectively
positionable
rear sole, she would not have distinguished
the allowed claims over Tong for the reasons she stated.
22
§ 1.83. In Figure 3, to which adidas also points, the rear sole is held to the
remainder of the shoe by a threaded band but is not permanently attached-the heel can be removed by unscrewing the threaded band from the heel
support. (See also A0128-29,
Just because
not make
district
the heel portion
it "permanently
court's
C.
dismisses
meaning
to the remainder
to be rotated
of the shoe
does
as the
requires.
of "secured"
prosecution
that
history
when claimed,
'126 patent
is claimed
claims
by narrowly
patent,
ignoring
focusing
entirely
by use of specific
application,
of positions.
of this patent
claims.)
as a basis
the detachable/selectively
for applying
on one claim
the evidence
positionable
modifiers.
the inventor
shoes that have a "detachably
to a plurality
history
the
(claim
in the full
rear
sole,
(See, e.g., A0726-27,
10, 14, 19, 33 and 40.)
In the original
patent
does not need to be removed
the prosecution
'126
the claims
col. 8, line 34 - col. 9, line 3.)
The Prosecution
History Demonstrates
That The Claims Of
The
'300
Patent
Were
Not
Limited
To Selectively
Positionable
Rear Soles
19) of the ancestral
athletic
patent,
fastened"
construction
adidas
ordinary
'300
(A0856,
address
secured"
'497 patent,
disclosed
23
which
invention
of
rear sole that is also rotatable
col. 2, lines 35-45.)
a shoe with these features.
It was in the '384 patent,
his
issued
(A0860-61,
All of
'497
from a continuation-
in-part of the '497 patent (and from which the '300 patent is a continuation
(A0095, '300 patent)), that the inventor addressed flexible members and
removed language relating to the moveable rear sole.
(A0095-0140,
'300
patent, Figs. 1-26; col. 2, lines 16-60; col. 3, lines 33-42; col. 6, lines 33-45;
col. 7, line 45 - col. 8, line 34; col. 9, line 10 - col. 13, line 1; col. 13, lines
26-48; A0849-60, '497 patent, Figs. 1-12; col. 2, line 35 - col. 3, line 8; col.
3, lines 52-55; col. 5, line 3 - col. 6, line 44; col. 7, line 30 - col. 9, line 39.)
The
inventor
prosecution
intended
positionable
to
none
a detachable
"secured"
locked
demonstrates
a flexible
attached
of the asserted
"defined
into position.
The
adidas
inventor
gave
Johnson
Worldwide
'300
patent,
with
both
selectively
used
varied
that term its broad
of the '300
positionable
to evade
the term
No such implied
Assoc.,
in the
Not "Define
By Implication"
Means
"Selectively
Locked
attempts
by implication"
speciflcation's
plate
claims
or selectively
is recited,
that,
the
rear soles.
The '300 Patent Does
The Term
"Secured"
Position"
Finally,
inventor
claim
or fixedly
D.
recites
history
use
sole.
this
by arguing
Instead,
that
only
the
to mean
selectively
establishes
that
exists.
of "secured"
meaning
rather
than
Inc. v. Zebco
Corp.,
175 F.3d
24
specifically
rear
"secured"
definition
patent
That
Into
a limited
the
definition.
985, 991 (Fed.
Cir.
1999). The specification
necessary,
with a modifier.
specification
- col.
no discussion
4, line
Elsewhere,
identifies
and without
mechanism,
or detachable
where
(See, A0127-29,
col.
such
demonstrates
10, lines
as
4-8.)
"fixedly,"
or
'300 patent,
adidas
the term "secured"
without
using
col. 6, lines 3-45;
the
to explain
Br.
'300
patent
how
the rear
at 45-47.
adidas
is used alone
but there are at least four places
'300 patent,
the heel
col. 3, line
A0126,
that
use "secured"
position."
rear sole is described
below
'300 patent,
patent,
where
col. 8, lines 7-8.)
adidas
into
'300
or,
is first used in the
sole
(A0126,
a modifier,
exception"
locked
only two places
the locking
by
rear
col. 9, lines 41-42;
'300 patent,
identified
is "selectively
with
'300 patent,
col. 4, line 44; A0128,
"consistently,
A0129,
is used
(A0129,
Nothing
way--"secure
also
generically,
when "secured"
of movability.
1; see
"secured"
"detachably."
sole
For example,
it is in a general
region"--with
65
uses "secured"
where
to refer to
the movable
the term "secured"
at all.
col. 6, line 61 - col. 7, line
44; col. 8, line 57- col. 9, line 3; col. 9, lines 46-66.)
III.
THE
DISTRICT
"FLEXIBLE
PLATE"
COURT
PROPERLY
IN THE '300 PATENT
adidas
the district
here
challenges
court's
construction
plate" even though it was not a basis for the stipulated
has never been identified
as an issue for appeal.
25
CONSTRUED
of "flexible
entry of judgment
and
It was clear to the court and
all parties that the issue for appeal was construction of "secured."
specifically
acknowledged
construction
of 'secured,'
the Asserted
Claims
notice
of appeal
"Akeva
concedes
defendant
adidas..,
of the patents
was narrow
that,
does not..,
in suit ....
and clearly
under
"
limited
The court
the
Court's
infringe
(A0071.)
Akeva's
any of
ensuing
to the claim term "secured."
(A1033-34.)
Accordingly,
the district
this issue
court properly
A.
construed
nearly
bendable."
court
"flexible
properly
fiat, and relatively
the Court.
Moreover,
plate."
Determined
That "Flexible
According
To Its Plain And
construed
"flexible
thin piece of metal
plate"
as a "smooth,
or other material
that is
(A0032.)
1.
The district
construction
The thrust of adidas'
this term,
"did not have
approach
to claim
Although
Phillips
both parties
Phillips
before
The District
Court
Correctly
Plate" Should Be Construed
Ordinary Meaning
The district
usually
is not properly
was
court's
followed
argument
decided
briefs
claim
the proper
is that the district
the benefit
construction.
"submitted
on the
court
of Phillips"
(adidas
after
Br.
the district
[to the district
construction
26
approach
court,
to claim
in construing
and thus took an improper
at 50.)
This
court's
Markman
court] discussing
ruling."
is not
(A0053.)
true.
ruling,
the impact
Although
of
adidas did not argue that "flexible
plate" should be construed differently,
(A1002-1011), the court revisited its construction of "flexible plate" in light
of Phillips
and confirmed
after consideration
Contrary
on broad
of the written
to adidas'
dictionary
but rather
plate."
2.
relative
description."
the intrinsic
does not support
to a piece of material
be designed
provide
spring
member
can flex under the weight
optimized
'300 patent,
to provide
by acting
clearly
the best
as a trampoline
through
and
record,
construing
the
flex
plate disclosed
discloses
portion
is not restricted
(A0128,
flexible
materials
elevated
to one of ordinary
and
it need
plate
col. 8,
also emphasizes
region
and geometries.
The specification
only
of the flexible
'300 patent,
The specification
col. 9, lines 29-33 and 58-62.)
27
the flexible
performance--i.e.,
by the
the use of differing
and supported
plate region
of the user").
provided
is correct
(i.e., that "the middle
see also col. 7, lines 50-65.)
spring
before
that has a central
The '300 patent
should
the
record
limiting
skill in the art that the shape of the flexible
that
with the intrinsic
rely
(A0028-65.)
to its periphery.
lines 28-32;
meaning
the court did not improperly
The district court's construction
by the intrinsic evidence
patent
and ordinary
(A0063-64.)
that are inconsistent
evaluated
The specification
in the '300
given its plain
characterization,
definitions
thoroughly
term "flexible
that it "was
can
be
(A0129,
also describes
a flexible plate without an elevated central portion.
For example, the
flexible plate of Figure 2 is fiat and described in the patent specification as
"supported at its peripheral region by an upward facing top surface of rear
sole support 140...
[where] a ledge 148 may be formed in rear sole support
140 to support and laterally stabilize flexible member 200."
(A0128, '300
patent, col. 7, line 66 - col. 8, line 5.) In addition, the flexible plate depicted
in Figure 18 is concave. (A0116.)
A flexible plate having an elevated central portion is discussed only as
a preferred embodiment or an optional design characteristic that "may" be
employed.
(See A0128,
'300 patent, col. 7, lines 45-50
(preferred
embodiment); A0129, col. 9, lines 20-25 (preferably); col. 10, lines 17-24
(flexible member may be curved or convex); A0130, col. 11, lines 56-59
(flexible
member may be convex).)
Thus, the two
portions
of the
specification that adidas relies on to argue for disclaimer (see adidas Br. at
51) relate only to the specific embodiments shown in Figures 4-17. In the
context of the entire disclosure, it is apparent that the statement that "in each
of the embodiments the central portion of the flexible member is raised
relative
to its outer perimeter
embodiments,
specification.
but
only
..."
does not encompass all possible
the preferred
(A0029.)
28
embodiment
described
in
the
adidas' proposed claim construction also limits "flexible
"separate and removable piece of material."
plate" to a
(adidas Br. at 51.)
provides no evidence to support this construction.
adidas
To the contrary, one
passage adidas quotes confirms that the flexible member/plate can be either
"incorporated into the shoe or can be a separate flexible member or plate."
(adidas Br. at 50) (emphasis removed).
discusses the removability
embodiment
The specification
of the flexible
member/plate
consistently
as a preferred
or a design option, with another option being a flexible
member/plate that could be fixedly secured to, or incorporated as an integral
part of, either the rear sole support or rear sole. (A0129, col. 9, lines 41-43;
see also A0127,
A0129,
patent
4
'300 patent,
col. 10, lines 27-31;
claims
adidas'
and "flexible
162-165,
argument
region"
col. 6, lines 42-45;
A0130,
A0128,
col. 12, lines 47-54;
col. 8, lines 6-22;
A0137-138,
'300
173-176.) 4
that there
or "flexible
is a difference
member"
between
discussed
the "flexible
in the patent
plate"
is wrong.
As the district court noted, the patent uses the term "plate" and "region" and
"member"
interchangeably.
"The written description
refers to both 'flexible
region 200' and 'flexible member 200,' and also to 'flexible member 500'
and 'flexible plate 500.'
Additionally,
the specification
states that 'any of
the above-described
flexible members may be used as flexible region 700.'"
(A0031.)
In addition,
the patent claims make clear that the inventor
contemplated
a flexible "plate" that was integral with various parts of the
shoe and therefore not removable.
(A0137-138,
'300 patent claims 162-165
and 173.)
29
B.
This
Appellate
Court
Should
Not
Grant
Summary
Judgment
Of Noninfringement
Before The District
Has An Opportunity
To Rule In The First Instance
Even if this Court reviews
plate," it is premature
noninfringement
the district court's
for this appellate
based
only entered
because
district court's
construction
ruled on adidas' motion
as here,
allow
of"secured."
(refraining
(A0071.)
for summary judgment
from ruling
before
of noninfringement
Systems,
on alternative
of
the
was
under the
The district court never
of noninfringement.
on adidas'
court to address adidas'
See, e.g., Toll Bros., Inc. v. Dryvit
2005)
Judgment
limitation
that there is no infringement
the district court never ruled
the district
plate" claim
to rule.
Akeva conceded
of "flexible
Court to grant summary judgment
on the "flexible
district court has an opportunity
construction
Court
motion,
arguments
Where,
this Court should
in the first instance.
Inc., 432 F.3d 564, 572 (4th Cir.
grounds
for affirmation
because
the district court had not yet addressed the issue); see also Fobian
v. Storage
Technology
to rule on
Corp.,
164 F.3d
887, 892 (4th Cir. 1999) (declining
summary judgment
motions
to avoid usurping
court in considering
the motions
the proper
in the first instance).
The district court did not rule on the pending
judgment
parties
and numerous
have
yet
discovery
to develop
role of the district
issues
a full factual
30
motions
are unresolved.
record
for summary
Therefore,
on infringement
the
under
adidas'
proposed
construction,
either
literally
or under
the
doctrine
of
equivalents.
Thus,
properly
if this Court decides
raised
construction,
the district
on
appeal
the proper
that the construction
and
if it reverses
disposition
would
of "flexible
the
district
be to remand
plate"
court's
is
claim
for consideration
by
court in the first instance.
CONCLUSION
The district
patents
should
noninfi'ingement
The district
court's
be
reversed,
should
court's
construction
and
be vacated
construction
of"secured"
the
district
and remanded
of"flexible
in the '471 and the '300
plate"
court's
for further
judgment
proceedings.
in the '300 patent
be left undisturbed.
Date:
May 25, 2006
Respectfully
submitted,
Dirk D. Thomas
Robert A. Auchter
Danielle Avolio
Andr6 J. Bahou
Jason Buratti
Robins, Kaplan, Miller & Ciresi L.L.P.
1801 K Street, N.W., Suite 1200
Washington,
D.C. 20006
Telephone:
(202) 775-0725
31
of
should
Munir R. Meghjee
Robins, Kaplan, Miller & Ciresi L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
Telephone: (612) 349-8500
Attorneys for Plaintiff-Appellant
Akeva L.L.P.
Of Counsel:
Scott A. Schaaf, Esq.
Tuggle, Duggins & Meschan,
P.O. Box 2888
Greensboro,
Telephone:
P.A.
NC 27401
(336) 378-1431
32
CERTIFICATE
OF SERVICE
I certify that on May 25, 2006, the original
foregoing Reply Brief of Pialntiff-Appellant
Akeva
the Court by hand delivery
and 12 copies of the
L.L.C. were filed with
to:
Clerk
U.S. Court of Appeals for the Federal
717 Madison Place, NW
Washington,
D.C. 20439
In addition,
delivering
I certify
that on May 25, 2006,
2 copies to Federal
Express
Telephone:
NC
I served
the foregoing
for next day delivery
James H. Kelly, Jr., Esq.
Steven Gardner, Esq.
J. Jason Link, Esq.
KILPATRICK
STOCKTON
1001 West Fourth Street
Winston-Salem,
Circuit
to:
LLP
27101
(336) 607-7300
Douglas J. Kline, Esq.
Richard B. Myrus, Esq.
Keith A. Zullow, Esq.
William A. Meunier, Esq.
GOODWIN
PROCTER
LLP
Exchange Place
53 State Street
Boston,
MA
Telephone:
Date:
May 25, 2006
02109
(617) 570-1000
,
_fl'_--____,
/__
,1AZ
__f_
Attomey for Plaintiff-Appellant
Akeva L.L.P.
MP3 20179968.5
_
by
CERTIFICATE
with
The undersigned
the "Introduction"
OF COMPLIANCE
hereby certifies that the body of this Brief, beginning
on page 1 and ending with the last line of the
"Conclusion"
on page 34 contains 6,911 words, as measured
processing
system used to prepare this Brief, and complies
Rules of Appellate Procedure 32(a)(2)(7)(B).
Dated:
MP3
20179968.5
May 25, 2006
.y
by the word
with Federal