Advanced Steel Recovery, LLC v. X-Body Equipment, Inc.

United States Court of Appeals
for the Federal Circuit
______________________

ADVANCED STEEL RECOVERY, LLC,
Plaintiff-Appellant

v.

X-BODY EQUIPMENT, INC., JEWELL
ATTACHMENTS, LLC,
Defendants-Appellees
______________________

2014-1829
______________________

Appeal from the United States District Court for the
Eastern District of California in No. 2:12-cv-01004-GEB-
DAD, Judge Garland E. Burrell, Jr.
______________________

Decided: November 12, 2015
______________________

WAYNE M. BARSKY, Gibson, Dunn & Crutcher LLP,
Los Angeles, CA, argued for plaintiff-appellant. Also
represented by BLAINE H. EVANSON, JENNIFER RHO; CASEY
JAMES MCCRACKEN, Irvine, CA; DANIEL M. CISLO, KELLY
W. CUNNINGHAM, MARK D. NIELSEN, Cislo & Thomas LLP,
Los Angeles, CA.

ROBERT M. HARKINS, JR., Locke Lord, LLP, San Fran-
cisco, CA, argued for defendants-appellees. Also repre-
sented by HUGH S. BALSAM, Chicago, IL.
______________________
2 ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC.

Before PROST, Chief Judge, MOORE and STOLL, Circuit
Judges.
STOLL, Circuit Judge.
Advanced Steel Recovery, LLC (“Advanced Steel”) ap-
peals the district court’s summary judgment that X-Body
Equipment, Inc. and Jewell Attachments, LLC (collective-
ly, “X-Body”) do not infringe the asserted claims of U.S.
Patent No. 8,061,950 (“the ’950 patent”). For the reasons
below, we affirm as to both literal infringement and
infringement under the doctrine of equivalents.
BACKGROUND
Advanced Steel owns by assignment the ’950 patent,
describing systems and methods of loading shipping
containers with bulk material for storage or transport.
Material is loaded into the top of a rectangular container
packer, which is moved along a transfer base by a hydrau-
lically powered piston-and-cylinder unit towards a ship-
ping container. A second piston-and-cylinder unit then
pushes the material out of the container packer and into
the shipping container by a push blade. Figure 10 of the
’950 patent shows a container packer system with the
container packer depicted as extending partly into a
shipping container.
ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC. 3

Relevant to this appeal, the asserted claims of the
’950 patent require that the first piston-and-cylinder unit
(the “container packer piston-and-cylinder unit”) be
connected to the “transfer base proximate end” and the
“container packer proximate end.” ’950 patent col. 5
ll. 23–25 (emphases added). Representative claim 1, with
the disputed claim terms italicized for emphasis, recites
the following:
1. A container packing system, which comprises:
a transfer base including proximate and
distal ends and a container packer guide;
a container packer including a proximate
end, a distal end with an opening, opposite
sidewalls, a floor and an interior;
said container packer being movable lon-
gitudinally along said container packer
guide between a retracted position on said
transfer base and an extended position ex-
tending at least partially from said trans-
fer base distal end;
a container packer drive connected to said
transfer base and said container packer
and adapted for moving said container
packer between its extended and retracted
positions;
a material transfer assembly mounted in
said container packer interior and adapted
for discharging bulk material through said
container packer distal end opening;
a material transfer assembly drive con-
nected to said material transfer assembly
and adapted for operating said material
transfer assembly;
4 ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC.

said material transfer assembly compris-
ing a push blade assembly located in and
affixed to said container packer and mov-
able longitudinally between a retracted
position in proximity to said container
packer proximate end and an extended po-
sition in proximity to said container pack-
er distal end;
said push blade assembly including a push
blade extending transversely across said
container packer interior;
said container packer drive comprising a
container packer piston-and-cylinder unit
connected to said transfer base proximate
end and said container packer proximate
end;
an hydraulic power source mounted on
said transfer base and connected to said
container packer piston-and-cylinder unit;
said material transfer assembly drive
comprising a push blade assembly piston-
and-cylinder unit connected to said hy-
draulic power source and adapted for ex-
tending and retracting said push blade
assembly between an extended position
distally beyond said transfer base distal
end and a retracted position adjacent to
said container packer proximate end with-
in said container packer interior, said
push blade assembly movement sequen-
tially cooperating with said container
packer movement whereby said push
blade assembly is adapted for compacting
bulk material in said container; and
ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC. 5

a transport container selectively located in
proximity to said transfer base distal end
and adapted for selectively receiving at
least a portion of said container packer
with said container packer in its extended
position.
In the accused Acculoader device, which Jewell manu-
factures and X-Body sells, the container packer piston-
and-cylinder unit is connected to the floor of the container
packer, approximately 35% down its length. The claim
construction dispute regarding the meaning of “proximate
end” arose when X-Body moved for summary judgment of
noninfringement, arguing that “the piston-and-cylinder[]
for the [container packer] [of the Acculoader] [is] not
connected to the proximate end of the [container packer]
at all,” but instead is connected “at a point on the bottom
of the container packer far from the proximate end.”
Advanced Steel Recovery, LLC v. X-Body Equip., Inc.,
No. 2:12-cv-1004-GEB-DAD, 2014 WL 3939356, at *3
(E.D. Cal. Aug. 11, 2014) (“Summary Judgment Order”).
The district court determined that the ’950 patent did
not contemplate a particular definition of the term “prox-
imate end” and that the ordinary meaning applies. The
court then looked to a dictionary definition of “end” and
construed the term as “the extreme or last part length-
wise.” Id. at *4 (citing Webster’s Third New International
Dictionary, definition 1(c)(2) (1986)). In doing so, the
court rejected Advanced Steel’s broad construction of
“proximate end” as “back half.”
Turning to the infringement issue, the district court
found that, in the Acculoader, the “connection point [of
the container packer piston-and-cylinder unit to the
container packer] is not at the proximate end.” Id. As
such, the court determined that “the Acculoader does not
literally infringe the ’950 patent.” Id. On the doctrine of
equivalents, the court determined that “[n]o reasonable
6 ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC.

jury could find [the Acculoader’s] connection point to be
equivalent to the ‘container packer proximate end.’” Id. at
*5. Accordingly, the district court granted summary
judgment of noninfringement to X-Body for both literal
infringement and infringement under the doctrine of
equivalents.
Advanced Steel timely appealed to this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(1).
DISCUSSION
We review a district court’s summary judgment deci-
sion under the law of the regional circuit, here the Ninth
Circuit. Halo Elecs., Inc. v. Pulse Elecs., Inc., 769 F.3d
1371, 1377 (Fed. Cir. 2014). The Ninth Circuit reviews
the grant or denial of summary judgment de novo. Hu-
mane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1047 (9th Cir.
2010). Summary judgment is proper where “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
Determining infringement requires two steps: con-
struing the claims and comparing the properly construed
claims to the accused product. Abbott Labs. v. Sandoz,
Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009). The “ultimate
interpretation” of a claim term, as well as interpretations
of “evidence intrinsic to the patent (the patent claims and
specifications, along with the patent’s prosecution histo-
ry),” are legal conclusions, which this court reviews de
novo. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct.
831, 841 (2015). Where a district court “make[s] factual
findings about . . . extrinsic evidence[, however,] th[e]
subsidiary factfinding must be reviewed for clear error on
appeal.” Id. “[T]he words of a claim are generally given
their ordinary and customary meaning.” Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (internal
quotation marks omitted). To determine the scope and
meaning of the asserted claims, we look to the words of
ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC. 7

the claims themselves, the specification, the prosecution
history, and if necessary, any relevant extrinsic evidence.
Id. at 1315–17.
“Infringement, whether literal or under the doctrine
of equivalents, is a question of fact.” Absolute Software,
Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129–30
(Fed. Cir. 2011). Summary judgment of noninfringement
is proper when no reasonable jury could find that every
limitation recited in a properly construed claim is found
in the accused device either literally or under the doctrine
of equivalents. PC Connector Sols. LLC v. SmartDisk
Corp., 406 F.3d 1359, 1364 (Fed. Cir. 2005).
A. Claim Construction
On appeal, Advanced Steel faults the district court for
too narrowly construing “proximate end” to mean the
extreme or absolute edge of the container packer. Ad-
vanced Steel argues that the “proximate end” of the
container packer should instead be construed as the “back
half” or “the portion or region that is opposite the distal
end.” Appellant’s Br. 13. But Advanced Steel mischarac-
terizes the district court’s construction. The court did not
actually construe “proximate end” as the “extreme edge,”
“absolute edge,” or the like. Instead, the district court
interpreted “proximate end” as “the extreme or last part
lengthwise.” Summary Judgment Order at *4 (emphasis
added). The district court’s use of the disjunctive “or” is
most properly understood as meaning that the proximate
end of the container packer includes not just the “ex-
treme” end, but also the “last part.” See SkinMedica, Inc.
v. Histogen Inc., 727 F.3d 1187, 1199 (Fed. Cir. 2013)
(explaining that “or” “plainly designates” alternatives).
Indeed, the court’s cited examples of common use of the
term “end,” such as “the rear [end] of an automobile,”
support this understanding. Summary Judgment Order
at *4.
8 ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC.

As properly understood, the district court’s construc-
tion is supported by the claims and specification. The
specification does not expressly define “proximate end.”
Yet every figure that depicts the disputed connection
shows the container packer piston-and-cylinder unit
connected to the container packer at the container pack-
er’s extreme edge. See, e.g., ’950 patent Figs. 1, 2, 4, 5, 6,
10; see also CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d
1146, 1153 (Fed. Cir. 1997) (“[P]atent drawings are highly
relevant in construing the . . . limitations of the claims.”).
The specification also depicts other “ends” as the
structure’s extreme edge. For example, the multi-stage
insertion/extraction piston-and-cylinder unit (30) has a
proximate end (28) and distal end (32), both of which are
depicted in the figures as the extreme parts of the unit
lengthwise. ’950 patent col. 3 ll. 28–33, Figs. 2, 4. In
addition, the description of the piston-and-cylinder proxi-
mate end (58) describes the anchor structure (62) as
connected to the piston-and-cylinder proximate end (58),
which is shown at the unit’s extreme edge. Id. col. 3
l. 66 – col. 4 l. 2, Fig. 5. And the “ends” of the container
packer itself (34, 36) are labeled as the extreme ends. See
id. Figs. 5, 6, 7.
Advanced Steel advocates against the district court’s
construction by pointing to the connection of the piston-
and-cylinder unit (30) to the transfer base (4) in Figure 2
to argue that the “proximate end” is shown as offset from
the absolute edge by as much as 10%. Thus, according to
Advanced Steel, the district court’s construction excludes
this preferred embodiment. We do not find this argument
persuasive. The district court’s construction, understood
as “the extreme or last part lengthwise,” allows for the
connection point to be offset from the absolute edge. We
find the district court’s construction of “proximate end” to
be consistent with the connection at the transfer base as
depicted in Figure 2.
ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC. 9

Advanced Steel also points to alternative dictionary
definitions to support its position that “proximate end”
should be construed as “the portion or region that is
opposite the distal end.” Appellant’s Reply Br. 13. For
example, Advanced Steel cites dictionaries that define
“end” as “the portion of an area or territory that lies at or
by the termination and that often serves as a delimitation
or boundary”; “the part of an area that lies at the bounda-
ry”; and a “part or place at or adjacent to an extremity.”
Id. at 27–28. These dictionaries, however, define “end”
relative to the termination or extremity—i.e., at or near
where the structure ceases to exist—and are consistent
with the district court’s construction. They certainly do
not support Advanced Steel’s broad construction, defining
“end” as the back half or any portion or region opposite
the other end. We thus agree with the district court’s
construction of “proximate end” as “the extreme or last
part lengthwise.”
B. Literal Infringement
We affirm the district court’s summary judgment of
no literal infringement. It is undisputed that the contain-
er packer piston-and-cylinder unit in X-Body’s Acculoader
is connected to the bottom of the container packer, ap-
proximately 35% down its length. This connection is
shown in the drawing below:
10 ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC.

Appellees’ Br. 24 (figure modified); see also Summary
Judgment Order at *3.
“To establish literal infringement, every limitation set
forth in a claim must be found in an accused product,
exactly.” Southwall Techs., Inc. v. Cardinal IG Co.,
54 F.3d 1570, 1575 (Fed. Cir. 1995). Here, the asserted
claims are narrowly and specifically drawn, reciting “a
container packer including a proximate end, a distal end
with an opening, opposite sidewalls, a floor, and an inte-
rior.” ’950 patent col. 4 ll. 65–66 (emphases added). The
claims thus define the “floor” of the container as being a
separate element from the proximate end. Because the
piston-and-cylinder unit in X-Body’s Acculoader attaches
to the floor, nearly 35% away from the extreme end, no
reasonable jury could find that the Acculoader’s piston-
and-cylinder unit is connected to the container packer’s
proximate end. Thus, we affirm the district court’s sum-
mary judgment of no literal infringement.
We note that, while the district court properly con-
strued “proximate end” as the “extreme or last part
lengthwise,” its infringement analysis compared the
accused device to the extreme end as opposed to the
“extreme or last part lengthwise.” See Summary Judg-
ment Order at *4 (“The container packer piston-and-
cylinder unit is connected to the Acculoader container
packer 164.81 inches from the proximate end of the
sidewalls of the container packer . . . .”). But “[w]e sit to
review judgments, not opinions,” Stratoflex, Inc. v.
Aeroquip Corp., 713 F.2d 1530, 1540 (Fed. Cir. 1983), and
ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC. 11

we agree with the district court’s ultimate determination
that “this connection point [in the Acculoader] is not at
the proximate end,” as construed to mean “the extreme or
last part lengthwise,” Summary Judgment Order at *4.
C. Infringement Under the Doctrine of Equivalents
While infringement under the doctrine of equivalents
is a question of fact, “[w]here the evidence is such that no
reasonable jury could determine two elements to be
equivalent, district courts are obliged to grant partial or
complete summary judgment.” Warner-Jenkinson Co. v.
Hilton Davis Chem. Co., 520 U.S. 17, 39 n.8 (1997). “[A]
patentee must . . . provide particularized testimony and
linking argument as to the insubstantiality of the differ-
ences between the claimed invention and the accused
device or process, or with respect to the function, way,
result test when such evidence is presented to support a
finding of infringement under the doctrine of equivalents.”
AquaTex Indus., Inc. v. Techniche Sols., 479 F.3d 1320,
1328 (Fed. Cir. 2007) (second alteration in original) (em-
phasis omitted) (quoting Texas Instruments Inc. v. Cy-
press Semiconductor Corp., 90 F.3d 1558, 1567 (Fed. Cir.
1996). Our case law also establishes that there are limi-
tations to the doctrine of equivalents. “Whether the result
of the All Limitations Rule, prosecution history estoppel,
or the inherent narrowness of the claim language, many
limitations warrant little, if any, range of equivalents.”
Moore U.S.A., Inc. v. Standard Register Co., 229 F.3d
1091, 1106 (Fed. Cir. 2000) (internal citations omitted).
“‘Vitiation’ is not an exception to the doctrine of equiva-
lents, but instead a legal determination that ‘the evidence
is such that no reasonable jury could determine two
elements to be equivalent.’” Deere & Co. v. Bush Hog,
LLC, 703 F.3d 1349, 1356 (Fed. Cir. 2012) (quoting Warn-
er-Jenkinson, 520 U.S. at 39 n.8).
To survive summary judgment of noninfringement
under the doctrine of equivalents, Advanced Steel had to
12 ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC.

present evidence of equivalence under each prong of the
function-way-result test. Augme Techs., Inc. v. Yahoo!
Inc., 755 F.3d 1326, 1335–36 (Fed. Cir. 2014). “That a
claimed invention and an accused device may perform
substantially the same function and may achieve the
same result will not make the latter an infringement
under the doctrine of equivalents where it performs the
function and achieves the result in a substantially differ-
ent way.” Perkin-Elmer Corp. v. Westinghouse Elec.
Corp., 822 F.2d 1528, 1532 n.6 (Fed. Cir. 1987). Here,
Advanced Steel failed to meet its burden of showing that
the Acculoader performs in substantially the same way as
the claimed invention.
Advanced Steel’s evidence on equivalence was submit-
ted in the form of expert affidavits. In opining on the
“way” prong of the function-way-result test, the expert
stated that “there is no substantial difference between
having a connection in the bottom middle and having a
connection at the absolute back end” of the container
packer because “in both cases, the Acculoader’s container
packer rides along horizontal guides, and the cylinder
unit is hydraulically powered.” J.A. 1492. But the fea-
tures Advanced Steel’s expert points to—the guides and
hydraulically powered piston-and-cylinder unit—are just
additional claim elements. ’950 patent col. 5 ll. 1–2
(“container packer being movable longitudinally along
said container packer guide”), ll. 28–30 (“an hydraulic
power source . . . connected to said container packer
piston-and-cylinder unit”). So his testimony, purporting
to establish equivalence of “proximate end” with “floor,”
disregards the limitation at issue and merely points to
satisfaction of other claim limitations.
A patentee, bearing the burden of showing equiva-
lence, cannot merely point to other claim limitations to
satisfy the doctrine of equivalents. Doing so runs afoul of
the “all-elements rule” articulated in Warner-Jenkinson.
See 520 U.S. at 40 (“A focus on individual elements and a
ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC. 13

special vigilance against allowing the concept of equiva-
lence to eliminate completely any such elements should
reduce considerably the imprecision of whatever language
is used.”). Advanced Steel’s attempt to establish that the
Acculoader functions in substantially the same way as the
claimed invention by reference only to other claim ele-
ments does not satisfy its burden on the doctrine of equiv-
alents. See also AquaTex Indus., 479 F.3d at 1328
(“Generalized testimony as to the overall similarity be-
tween the claims and the accused infringer’s product or
process will not suffice.” (quoting Texas Instruments, 90
F.3d at 1567)).
It is undisputed that the Acculoader’s piston-and-
cylinder unit is connected to the floor of the container
packer approximately 35% away from the extreme proxi-
mate end. While the term “proximate end” by no means
precludes some offset from the absolute end, we find no
error in the district court’s conclusion that “no reasonable
jury could find this connection point to be equivalent to
the ‘container packer proximate end.’” Summary Judg-
ment Order at *5. In view of the evidence of equivalence
presented here and the narrowness of the asserted claims,
we find the range of equivalents does not extend to the
connection point in the Acculoader. See Vehicular Techs.
Corp. v. Titan Wheel Int’l, Inc., 212 F.3d 1377, 1382
(Fed. Cir. 2000) (“[T]he range of equivalents cannot be
divorced from the scope of the claims.”). To find otherwise
would ignore the precise and specific structural limita-
tions in the claims. We thus conclude that the district
court did not err in granting summary judgment of nonin-
fringement under the doctrine of equivalents.
Advanced Steel complains that the district court erred
because it relied solely on vitiation to support its determi-
nation of noninfringement. But we review judgments, not
opinions. Stratoflex, 713 F.2d at 1540. And as we have
explained, “saying that a claim element would be vitiated
is akin to saying that there is no equivalent to the claim
14 ADVANCED STEEL RECOVERY, LLC v. X-BODY EQUIPMENT, INC.

element in the accused device based on the well-
established ‘function-way-result’ or ‘insubstantial differ-
ences’ tests.” Brilliant Instruments, Inc. v. GuideTech,
LLC, 707 F.3d 1342, 1347 (Fed. Cir. 2013). Here, for the
reasons discussed above, we agree with the district court’s
judgment that there is no equivalence based on the func-
tion-way-result test.
Because we affirm summary judgment of nonin-
fringement, we do not reach X-Body’s alternative argu-
ments for affirmance.
CONCLUSION
For the foregoing reasons, we affirm the district
court’s grant of summary judgment that X-Body does not
infringe the asserted claims of the ’950 patent literally or
under the doctrine of equivalents.
AFFIRMED