dissenting.
The court today determines that the “ordinary and accustomed meaning” of the claim term “permanently affixed” summarily precludes both literal infringement and infringement under the doctrine of equivalents. My reading of patent law and the patent in this case suggest a different result.
With regard to claim interpretation, this court reaches a hasty, unsupported judgment on the meaning of the term “permanently.” This court opines that it “need only recognize that claim construction is firmly anchored in reality by the understanding of those of ordinary skill in the art.” Yet, this court does not even consider the meaning an ordinary in-line skate artisan would attach to “permanently.” Instead, this court summarily concludes that the term “permanent” should mean what it thinks it should mean.
Divorced from context, words lose their ordinary and accustomed meanings. See, e.g., Autogiro Co. of America v. United States, 181 Ct.Cl. 55, 384 F.2d 391, 397, 155 USPQ 697, 702 (Ct.Cl.1967) (“Claims cannot be clear and unambiguous on their face.”). “Permanent” in the context of mountain ranges can mean millennia; “permanent” in the context of hair treatments can mean until the next rain storm; “permanent” in the context of creased pants can mean until the next long airline trip in coach class; “permanent” in the context of genetic combinations can mean until the next mutation. When judges intuit an ordinary and accustomed meaning divorced from context, they are (usually unwittingly) imposing their own subjective linguistic values on a public decision.
As this court verbally recognizes but substantively ignores, the understanding of one of ordinary skill in the art sets the proper context for the meaning of claim terms. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 986, 34 USPQ2d 1321, 1335 (Fed.Cir.1995) (en banc) (“[T]he focus in construing disputed terms in claim language is ... on the objective test of what one of ordinary skill in the art at the time of the invention would have understood the term to mean.”). The art in this case is in-line skates. The reexamined ’466 patent claims an in-line skate with improved responsiveness to the foot movements of a skater. The patent achieves this result by permanently affixing a flexible shoe upper to the base. The terms “permanent” and “non-removable,” therefore, in proper context, refer to a relationship between the shoe and the base.
*1371This court’s opinion gives absolutely no context or support for its “ordinary and accustomed meaning” of “permanently affixed.” Instead, it begins with its conclusion — “[t]he ordinary and accustomed meaning of this phrase ... does not encompass affixation via removable screw” - and does not consider any evidence from those of ordinary skill in the art. This court’s extremely narrow interpretation of this phrase could potentially deny the pat-entee almost any coverage, because, in the theoretical, out-of-context reading of this court, almost nothing is permanent. After all, those of skill in this art may recognize that even lamination (the method of affixation described in the patent) is removable with a chemical solvent. In fact, an adhesive affixation may, to those of skill in this art, in fact be less permanent (becoming loose over time) than screws for connecting shoes to skates. This summary proceeding record does not supply the context necessary for an accurate decision. Nonetheless, this court dismisses the question on the basis of a supposed ordinary and accustomed meaning.
Although the court construed the claim language out of context, its biggest stretch is its fact-finding on appeal about the nature of the accused skate. This court hastily finds that the accused skate affixes the shoe to the base with a “removable screw.” On this purely factual issue (nonetheless resolved summarily and on appeal), the record contains no evidence that the accused skate’s screw was ever removed or would ever be removed for any purpose. Hence, a conclusion about whether the screw was or was not “meant to be unscrewed” is premature. Indeed, the record shows that the flexible shoe of the accused skate was permanently attached to the base at the toe area by use of rivets and an (unremovable?) screw. Therefore, even if a user disassembled the accused shoe to gain access to the allegedly “removable” heel screw, that user could not remove the shoe from the base because the four rivets and the apparently unremova-ble screw in the toe would ensure the “shoe portion” remained “permanently affixed” to “said base portion.” This court nevertheless finds that the heel screw is “removable” without any evidence that it was ever removed or “meant to be” removed at all - a particularly egregious stretch on appeal from summary judgment.
This court protests (too much?) that it will “not create a genuine issue of material fact where the parties agree that none exists.” In doing so, however, it betrays the dangers of fact-finding on appeal. Specifically, this court states that K-2 “fully acknowledges ... that the heel screw is ‘removable.’ ” Certainly, K-2 did not concede away its entire case. Indeed, an examination of the full context of K-2’s statement shows that this court has taken sides in a factual dispute. K-2 in their reply brief explains:
Though the screw at the heel of the [accused] skate can be removed with effort, it is not substantially different from a permanent or non-removable connection. As with gluing or laminating, the base and shoe are held tightly together and “become one.” Indeed, unlike the Johnson soft shoe, the heel portion of the non-rigid [accused] skate shoe cannot be removed from the base. Rather, at most it can be pried up slightly so that a piece of paper can be wedged underneath.
(Emphasis added.) Again, at the other place cited to show that K-2 “fully acknowledges” that the screw is removable, K-2 in fact explains in its reply brief:
Though the screws can be removed with effort, the rivets prevent the shoe (which includes the integrally-connected toe and heel portions) from being removed without destroying it.
Thus, this court has imposed its definition of “removable” and its factual view of the accused skate on K-2, thus resolving on appeal - without testimony and without a full record - the factual issues which are the heart of this dispute in the first place. The point is that the record shows no instance of removal of the heel screw and *1372no purpose for ever removing the heel screw because the connection of shoe to skate remains “permanent” in any event. Is a screw that has never been removed and will never be removed “removable?” Does it make a difference if it is removable (in the surreal sense adopted by this court) because the shoe remains “permanently affixed” to the skate “for substantially preventing movement therebetween?” This court decides these factual issues on appeal and on summary judgment.
This court’s hasty judgment about the nature of the accused skate includes reasoning about prosecution history. In this case, however, the Johnson prior art and the prosecution history indisputably discuss only skates which accommodated complete removal and replacement of the shoe. Thus the prior art emphasized dis-assembly and removal, not permanent fixation. The rivets in the toe and the unremovable “removable screw” already removes this accused device from any similarity with the prior art from which the patentee distinguished itself.
In sum, this court could only have resolved infringement in this case (particularly infringement by equivalents) by undertaking extensive fact finding on summary judgment and on appeal. Sadly, finding on appeal that the screw is “removable” and summarily importing a meaning for “permanent” removes this judgment from any permanent connection with the in-line skate art.