Yufa v. Tsi, Incorporated

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

ALEKSANDR L. YUFA,
Plaintiff-Appellant,

v.

TSI, INCORPORATED,
Defendant-Appellee.
______________________

2014-1539
______________________

Appeal from the United States District Court for the
Northern District of California in No. 4:09-cv-01315-
KAW, Magistrate Judge Kandis A. Westmore.
______________________

Decided: January 26, 2015
______________________

ALEKSANDR L. YUFA, of Colton, California, pro se.

BRUCE H. LITTLE, Lindquist & Vennum LLP, of Min-
neapolis, Minnesota, for defendant-appellee. With him on
the brief was CHRISTOPHER R. SULLIVAN.
______________________

Before PROST, Chief Judge, BRYSON, and WALLACH, Cir-
cuit Judges.
2 YUFA v. TSI, INCORPORATED

WALLACH, Circuit Judge.
Plaintiff-Appellant Dr. Aleksandr L. Yufa appeals the
decision of the United States District Court for the North-
ern District of California (“district court”) granting sum-
mary judgment to Defendant-Appellee TSI Incorporated
(“TSI”) on Dr. Yufa’s claim that TSI infringed U.S. Patent
No. 6,346,983 (“the ’983 patent”). See Aleksandr L. Yufa
v. TSI Inc., CV 09-01315-KAW (N.D. Cal. May 21, 2014)
J.A. 2–11 (“Order”). Because the district court properly
granted TSI’s motion for summary judgment, this court
affirms.
I. BACKGROUND
A. The ’983 Patent
The ’983 patent is directed to the methods and devices
for determining air, gas and liquid quality by measuring
the quantity and size of airborne particles by utilizing a
light beam. Established methods of measuring particles
include measuring the light scattered by single particles
as they pass through a focused light or laser detecting
system.
A light beam is directed at a particular point and in-
dividual particles are pulled through the beam. When
particles pass through light, it causes the light to scatter.
Light detected is output in the form of an analog voltage
(amplitude) signal corresponding to the intensity of the
light scatter off the particle. Digital signals are generated
by comparing the analog voltage to a “reference voltage.”
A reference voltage is a predetermined voltage which
serves as a point of comparison to amplified detected
signals. “The amplified detected signals are compared
with the predetermined reference voltages [in order to
determine] particle size.” ’983 patent col. 2 ll. 26–28.
Instead of a reference voltage, the ’983 patent introduces
an apparatus that measures particle size by the duration
YUFA v. TSI, INCORPORATED 3

of digital form pulse. Independent claim 6 is illustrative
and recites:
An apparatus for counting and measuring parti-
cles, providing a processing of an output of a light
detecting means, said apparatus comprises:
a current-voltage conversion means, providing
conversion of said output of said light detecting
means to voltage value signals, and wherein said
output is effectively indicative of a size of said
particles;
an amplifying means, providing an amplification
of said voltage value signals;
an analog-digital form pulse duration conversion
means, providing conversion of each of said volt-
age value signals to digital form pulses, and
wherein each of said digital form pulses has a du-
ration, which is adequate to the duration of an
appropriate output of said light detecting means;
a strobe pulse generating means, providing gener-
ating of strobe pulses;
a conjunction means, forming strobe pulse packag-
es by conjunction of each said digital form pulse
and said strobe pulses;
a selecting, sorting and counting means, providing
the selection and sorting of said strobe pulse pack-
ages by an identical quantity of said strobe pulses
within each of said strobe pulse packages.
’983 patent col. 14 ll. 16–41 (emphases added to disputed
claim language).
B. Reexamination
On March 25, 2009, Dr. Yufa filed a complaint alleg-
ing that TSI’s predecessor-in-interest, Adams Instru-
ments (“Adams”) infringed the ’983 patent via sale of
4 YUFA v. TSI, INCORPORATED

wireless communications products believed to be using
technology covered by the ’983 patent.. The case was
stayed pending an Ex Parte Reexamination of the ’983
patent by the United States Patent and Trademark Office
(“PTO”).
As originally issued, the patent included a total of
eight claims. However, the PTO issued a certificate of
reexamination (“Reexamination”) in which only claims 6–
8 of the ’983 patent survived. Although claims 6–8 were
determined to be patentable, the PTO modified claim 6 to
include additional limitations. The modification added
the following limitation: “without using a reference volt-
age to convert each said voltage value signals.” Ex Parte
Reexamination Certificate to U.S. Patent No. 6.346,983
(Issued Aug. 14, 2012) (“Reexamination Certificate”) col. 2
ll. 1–3. In light of this modification, the fourth paragraph
of claim 6 now reads:
an analog-digital form pulse duration conversion
means, providing conversion of each of said volt-
age value signals to a digital form pulse [without
using a reference voltage to convert each of said
voltage value signals], wherein each said digital
form pulse has a duration, which is adequate to a
baseline duration of the appropriate output of said
light detecting means;
Reexamination Certificate col. 2 ll. 1–7 (emphasis added
to disputed claim language and to reflect modification)
II. THE ACCUSED PRODUCTS
TSI manufactures and sells products used to deter-
mine air quality through evaluation of the size of particles
in the air. Dr. Yufa claimed TSI’s Non-Optical Devices,
Pulse Height Detection Devices and Pulse Integration
Devices (the “Accused Products”) all infringed the ’983
patent. Appellant’s Br. 2, 7–8.
YUFA v. TSI, INCORPORATED 5

The Accused Products can be grouped into three cate-
gories: (1) Non-Optical Devices count and measure parti-
cles by “utilizing diffusion charging of sample particles,
followed by detection of the charged aerosol using an
electrometer.” 1 J.A. 279–80; (2) “Pulse Height Detection
Devices detect the intensity or amount of light scattered
off a particle to measure amplitude or ‘height’ of the
voltage pulse, and, thereby, to infer particle size,” 2 id; (3)
Pulse Integration Devices “measure particle size by
integrating the output signal from the photodetector over
a period of time to calculate a pulse ‘area’ instead of pulse
amplitude.” 3 Id. at 280.
On September 18, 2012, Dr. Yusef filed a First
Amended Complaint asserting TSI’s product infringed the
amended claims. On November 22, 2013, the district
court held a claim construction hearing. The claim con-
struction order was issued on February 24, 2014 and TSI
filed a motion for summary judgment on December 12,
2013.

1 Non-Optical Devices include the AEROTRAK Na-
noparticle Aerosol Monitor 9000.
2 Pulse Height Detection Devices include
AEROTRAK Handheld Particle Counters 9303, 9306-01,
9306-02, 9306-V and 8220; AEROTRAK Portable Particle
Counters 9110, 9310-01, 9350-01, 9510-01, 9510-01, 8240
and 8260; AEROTRAK Remote Particle Counters 7110,
7201, 7301, 7301-P, 7310, 7501 and 7510; Optical Particle
Sizer 3330; DustTrak).
3 Pulse Integration Devices include: AEROTRAK
Handheld Particle Counters 9306-03, 9306-04 and 9306-
V2; AEROTRAK Portable Particle Counters 9310-2, 9350-
02, 9500-1, 9510-2, 9550-02 and 9350-3.
6 YUFA v. TSI, INCORPORATED

III. DISCUSSION
A. Standard of Review
This court reviews a district court’s summary judg-
ment decision under the law of the district court’s regional
circuit. Lexion Med., LLC v. Northgate Techs., Inc., 641
F.3d 1352, 1358 (Fed. Cir. 2011). Applying the law of the
Ninth Circuit, this court reviews the grant of summary
judgment de novo. Cousins v. Lockyer, 568 F.3d 1063,
1067 (9th Cir. 2009). Summary judgment is appropriate
when “the pleadings . . . show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); HCA Health
Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d
982, 991 (11th Cir. 2001).
Once the moving party demonstrates the absence of a
genuine issue of material fact, “the non-moving party
must come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
Fed. R. Civ. P. 56(e)) (emphasis included).
“The first step of the infringement analysis is claim
construction, a question of law reviewed de novo.” Nazo-
mi Commc’ns, Inc. v. Nokia Corp., 739 F.3d 1339, 1343
(Fed. Cir. 2014) (citing Cybor Corp. v. FAS Techs., Inc.,
138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc)). Claim
terms are generally given their ordinary and customary
meaning, which “is the meaning that the term would have
to a person of ordinary skill in the art in question at the
time of the invention.” Phillips v. AWH Corp., 415 F.3d
1303, 1313 (Fed. Cir. 2005) (en banc). A skilled artisan
reads the term “in the context of the particular claim in
which the disputed claim appears,” as well as “in the
context of the entire patent, including the specification.”
Id. at 1313.
YUFA v. TSI, INCORPORATED 7

B. Dr. Yufa Did Not Present Evidence Showing the
Accused Products Infringe the ’983 Patent
To establish infringement, Dr. Yufa “must prove that
the [Accused Products] embod[y] every limitation in the
claim, either literally or by a substantial equivalent.”
Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1573 (Fed. Cir.
1994) (citation omitted). In granting TSI’s summary
judgment request, the district court found none of TSI’s
products met every limitation in claim 6 of the ’983 patent
and that Dr. Yufa failed to present any evidence that
would create a genuine issue of material fact to defeat
TSI’s motion for summary judgment.
i. Dr. Yufa Did Not Present Evidence Refuting
TSI’s Claim that the Accused Products Use Ref-
erence Voltage to Convert Analog Signals to a
Digital Form Pulse
As to TSI’s optical devices (Pulse Height Detection
Devices and Pulse Integration Devices), TSI concedes that
these devices “use a light detecting means to measure and
count particle size.” Order at 5 (quoting Def.’s Mot. at 8–
9). In support of this assertion, TSI provided the declara-
tion of Ricky Holm, an “Electrical Engineering Manager
at TSI with over 20 years of professional experience in
research, development and manufacturing of particle
measuring equipment.” Order at 5. Holm testified that
“[c]laim 6 of the ’983 Patent requires a system that con-
verts a light detector’s amplified output into a digital
signal without comparing the light detector’s amplified
output to a predetermined reference voltage.” However,
all of the TSI’s optical devices “use a reference voltage in
connection with detecting particles.” J.A. 282. Therefore,
TSI asserts its optical device products do not embody
every limitation in claim 6. With respect to its Non-
Optical Device, Mr. Holm testified that TSI’s only accused
device (AEROTRAK 9000) “does not use a light detecting
8 YUFA v. TSI, INCORPORATED

means to count and measure particles.” Order at 5 (quot-
ing Holm Decl. ¶ 14).
The district court credited Mr. Holm’s declaration and
held that in response, Dr. Yufa failed to “present any
additional evidence beyond his conclusory contention that
[the Accused Products] infringe” the ’983 patent. Order at
9. Specifically, the court found Dr. Yufa could not show
the Accused Products employed Pulse Width Modulation
(“PWM”) to detect particles as opposed to a reference
voltage as required by the ’983 patent. The district court
also found Dr. Yufa’s “opposition consists almost entirely
of conclusory allegations regarding TSI’s credibility,
which does not create a genuine issue of material fact.”
Order at 9.
On appeal to this court, Dr. Yufa contends “[t]he Dis-
trict Court erred in granting summary judgment on the
grounds of non-infringement to TSI.” Appellant’s Br. 37.
Specifically, Dr. Yufa argues he “produced and identified
at least the TSI’s [sic] interrogatory answer which states
that TSI uses [PWM]” rather than a reference voltage. Id.
at 2. Conversely, TSI contends Dr. Yufa “willfully mis-
reads this statement as an admission.” Appellee’s Br. 16.
Moreover, TSI claims it “amended [its] response to deny
the use of [PWM] in any of its products.” Id.
Dr. Yufa’s argument is related to TSI’s response to the
third question in Dr. Yufa’s first set of interrogatories. In
response to Dr. Yufa’s question concerning whether the
Accused Products use PWM, TSI stated:
TSI objects to the term Pulse Width Modulation
as overly broad, vague and ambiguous. Notwith-
standing such objections and without waiving any
objections, Defendant TSI incorporates by refer-
ence its Answer and denies infringement of the
’983 Patent. To the extent that Defendant TSI us-
es [PWM] in any of its products, it does so in a
manner that does not infringe the ’983 patent.
YUFA v. TSI, INCORPORATED 9

J.A. 214–15 (emphasis added).
Dr. Yufa argues the above response is an admission
by TSI that its products use PWM. This court finds the
response by TSI does not constitute an admission. Rather,
it is a hypothetical reply that merely serves to address
TSI’s stance on whether its products infringe the ’983
patent. Thus, Dr. Yufa cannot employ TSI’s response to
interrogatory No. 3 as illustrative of an admission.
Dr. Yufa next argues the district court erred in grant-
ing summary judgment to TSI on the ground that the
Accused Products use a reference voltage to convert the
analog signal to a digital form pulse. Dr. Yufa contends
the court erred in granting the judgment because “TSI
asserts that [its] Optical Devices use a reference voltage
only for indication of a pulse presence, but not for conver-
sion.” Appellant’s Br. 56–57. Here, Dr. Yufa claims that
TSI, via Mr. Holm’s declaration, establishes inconsisten-
cies regarding whether its optical devices use a PWM. Id.
at 57. Specifically, Dr. Yufa cites the district court’s order
stating: “[TSI] has provided evidence that each of the
particle counters used in connection with the [Accused
Products] uses a reference voltage to convert analog
particle signals into digital form pulses, and, therefore, do
not embody a limitation of the ’983 Patent.” Order at 8.
Dr. Yufa compares the aforementioned statement to one
where the district court states:
TSI asserts that all of its remaining accused Pulse
Integration Devices use pulse area to size parti-
cles instead of pulse amplitude. These products
use a “reference threshold” to prevent false indica-
tions of a particle, and, therefore, only “indicate
the presence of a pulse if the voltage signal ex-
ceeds the reference threshold value.”
Order at 7 (quoting Holm Decl. at 19) (citations omitted)
10 YUFA v. TSI, INCORPORATED

Dr. Yufa contends the two above statements are con-
tradictory and therefore create a “genuine issue of mate-
rial fact in regards to whether the accused products
operate without the use of a reference voltage.” Appel-
lant’s Br. 58.
To the extent Dr. Yufa contends the second quotation
supports the fact that a reference voltage is used only to
indicate the presence of a pulse as opposed to being used
to convert analog particle signals into digital form pulses,
this court does not agree. The fact the second assertion by
Mr. Holm, unlike the first, does not expressly state the
particle counters in the Accused Products use a reference
voltage to convert analog particle signals into digital form
pulses is not indicative of the fact that it does not. TSI,
via the declaration of Mr. Holm, has consistently claimed
its optical devices use a reference voltage in converting
analog particle signals into digital form pulses and Dr.
Yufa has not presented any evidence to the contrary.
In order to survive a motion for summary judgment
after the moving party has presented evidence that the
Accused Products do not meet the claim limitations of the
’983 patent, the non-moving party must go beyond the
pleadings and identify specific facts “showing that there is
a genuine issue for trial.” Matsushita Electric Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quot-
ing Fed. R. Civ. P. 56(e))
Here, Dr. Yufa urges this court to find the optical de-
vices do not use such a method merely because TSI failed
to reference such use in a particular instance. Because
this court does not find the two assertions by Mr. Holm
referenced in the district court’s order to be contradictory,
they do not create a genuine issue of material fact to
defeat TSI’s motion for summary judgment.
ii. The Schematic Diagram Timer Presented by Dr.
Yufa Cannot Be Addressed Because He Failed to
Present it to the District Court
YUFA v. TSI, INCORPORATED 11

Dr. Yufa again argues that the Accused Products do
not use a reference voltage by submitting TSI’s Schematic
Diagram-Timer, Model 3800 ATOFMS (“Schematic Dia-
gram”). Dr. Yufa argues that TSI’s PWM, as illustrated
in the Schematic Diagram “provide the conversion of the
voltage value (analog) signals to a digital form pulses
without the use of reference voltage.” Appellant’s Br. 57.
TSI counters Dr. Yufa did not present this argument to
the district court, nor did he present the schematic dia-
gram as part of his evidence in his opposition to TSI’s
motion for summary judgment. Appellee’s Br. 14.
The Schematic Diagram represents a new and entire-
ly different ground in support of Dr. Yufa’s contention
that TSI’s products use PWM rather than a reference
voltage to convert analog particle signals into digital form
pulses. However, “it is the general rule . . . that a federal
appellate court does not consider an issue not passed
upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976).
“[This court’s] precedent counsels against entertaining
arguments not presented to the district court.” Golden
Bridge Tech., Inc. v. Nokia, Inc., 527 F.3d. 1318, 1322
(Fed. Cir. 2008). Thus, “this court does not ‘review’ that
which was not presented to the district court.” Sage
Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426
(Fed. Cir. 1997).
However, in Forshey v. Principi, 284 F.3d 1335 (2002)
this court articulated a set of circumstances in which
hearing arguments for the first time is appropriate: (1)
“[w]hen new legislation is passed while an appeal is
pending, courts have an obligation to apply the new law if
Congress intended retroactive application even though
the issue was not decided or raised below,” id. at 1355; (2)
“when there is a change in the jurisprudence of the re-
viewing court or the Supreme Court after consideration of
the case by the lower court,” id. at 1356; (3) “appellate
courts may apply the correct law even if the parties did
not argue it below and the court below did not decide it,
12 YUFA v. TSI, INCORPORATED

but only if an issue is properly before the court,” id.; (4)
“where a party appeared pro se before the lower court, a
court of appeals may appropriately be less stringent in
requiring that the issue have been raised explicitly be-
low,” id. at 1357.
Dr. Yufa did not present the Schematic Diagram be-
fore the district court. However, this court finds that Dr.
Yufa fits the fourth category in Forshey because he was a
pro se party appearing before the district court. Although
Forshey permits this court to be less stringent in requir-
ing the issue to be expressly presented to the district
court, this court finds that even under a less stringent
approach, Dr. Yufa cannot now raise this argument.
Here, Dr. Yufa concedes TSI presented him the Sche-
matic Diagram during his inspection of TSI’s products in
July 2013. However, TSI did not file its motion for sum-
mary judgment to the district court until December 12
2013. Moreover, Dr. Yufa filed his opposition on Decem-
ber 23, 2013. Id. Thus, Dr. Yufa had the requisite time
and opportunity to present this argument to the district
court. Additionally, Dr. Yufa has not presented any
extenuating or limiting circumstance that impeded his
ability to present this diagram to the district court.
Therefore, by not presenting this argument before the
district court, Dr. Yufa has waived this argument.
iii. Exhibits H and I Do Not Support the Claim that
TSI’s Accused Products Use PWM
Finally, Dr. Yufa argues that “Exhibits H and I in
[his] First Amended Complaint . . . disclose [] TSI’s use of
the pulse duration (width) in [] TSI’s products for particle
size determination.” Appellant’s Br. 23. Exhibit H is
titled “Introduction To Interfaces Used In Facility Moni-
toring Systems.” Id. at 23–24. As stated by the district
court, “Exhibit H is a document of unknown authorship . .
. which contains an overview of many different compo-
nents, including [PWM], and broadly cites to internet
YUFA v. TSI, INCORPORATED 13

sources.” Order at 8. Exhibit I is a TSI document titled
“Facility Monitoring Systems Design Recommendations”
detailing “larger system networking, including the use of
a local network and IP addresses.” Id.
As the district court found, these documents are not
sufficient to create a genuine issue of material fact. Id. at
8. For example, Exhibit H does not specifically identify
TSI or its products and it is devoid of any evidence sug-
gesting the Accused Products employ PWM as opposed to
a reference voltage.
With respect to Exhibit I, Dr. Yufa asserts “TSI’s [Fa-
cility Monitoring Systems] describes the [PWM] and
provide[s] in those Pulse Width Modulators ‘. . . encod[ing]
an analogue value as a digital pulse where the on time is
proportional to the value.’” Appellant’s Br. 24 (quoting
A122 ¶ 1). Although Exhibit I references remote particle
counters, it does not refer to PWM or provide any support
for Dr. Yufa’s contention that the Accused Products detect
particles without a reference voltage. Rather, it merely
represents conclusory allegations not grounded in actual
facts to support Dr. Yufa’s claim.
Dr. Yufa has not presented sufficient evidence to sup-
port the claim that the Accused Products use PWM as
opposed to a reference voltage. Because Exhibits H and I
do not constitute sufficient evidence to show the Accused
Products infringe the ’983 patent, this court finds the
Exhibits are insufficient to create a genuine issue of
material fact to defeat TSI’s motion for summary judg-
ment. See Matsushita Electric 475 U.S. at 586–87 n.11
(1986) (quoting Fed. R. Civ. P. 56(e)) (“When a motion for
summary judgment is made . . . an adverse party . . . must
set forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary judg-
ment . . . shall be entered against him.”).
14 YUFA v. TSI, INCORPORATED

CONCLUSION
For the foregoing reasons, this court affirms the dis-
trict court’s grant of summary judgment to TSI.
AFFIRMED
COSTS
On August 14, 2014, the district court granted in part
and denied in part “[TSI’s] motion for attorneys’ fees and
non-taxable costs, and award[ed] TSI attorneys’ fees in
the amount of $154,702.75 and non-taxable costs in the
amount of $4,343.05 for work performed between Sep-
tember 9, 2013, and March 7, 2014.” J.A. 433. The dis-
trict court subsequently amended its summary judgment
order to reflect the imposition of attorneys’ fees and costs
on Dr. Yufa (“The Judgment dated May 22, 2014 (DKT#
177) is hereby amended.”). J.A. 395 (emphasis added).
Here, Dr. Yufa’s opening brief did not raise any issue
regarding the district court’s allocation of attorneys’ fees
and costs. Dr. Yufa contends “the District Court on
September 3, 2014 entered a separate Judgment (Doc.
205) awarding TSI with the attorneys’ fees and costs, but
not an amended judgment ‘to include’ the attorneys’ fees
and costs in the non-infringement Judgment.” Reply at
12. This assertion is incorrect. As explained above, the
district court “amended” its Order granting TSI’s sum-
mary judgment motion in order to reflect the imposition of
costs on Dr. Yufa. Therefore, even if Dr. Yufa timely
presented this argument before this court, it would have
been denied. However, this court’s “law is well estab-
lished that arguments not raised in the opening brief are
waived”. See SSL Servs., LLC v. Citrix Sys., Inc., 769 F.3d
1073, 1085 (Fed. Cir. 2014) (quoting SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1319) (Fed. Cir.
2006). Therefore, because Dr. Yufa did not raise this
issue in his opening brief, Dr. Yufa has waived this argu-
ment.