NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RED DOG MOBILE SHELTERS, LLC, A
DELAWARE LIMITED LIABILITY COMPANY,
Plaintiff-Appellant
v.
KAT INDUSTRIES, INC., KAT MACHINE,
INCORPORATED,
Defendants-Appellees
______________________
2016-1370
______________________
Appeal from the United States District Court for the
Northern District of Texas in No. 3:13-cv-03756-K, Judge
Ed Kinkeade.
______________________
Decided: November 3, 2016
______________________
ELVIN E. SMITH, III, Law Offices of Elvin E. Smith, III
PLLC, Rockwall, TX, argued for plaintiff-appellant. Also
represented by CLYDE MOODY SIEBMAN, Siebman, Burg,
Phillips & Smith, LLP, Sherman, TX.
RICHARD BRENT COOPER, Cooper & Scully, PC, Dallas,
TX, argued for defendants-appellees. Also represented by
2 RED DOG MOBILE SHELTERS, LLC v. KAT INDUSTRIES, INC.
DIANA L. FAUST, BENTON WILLIAMS, II, ELLIOTT TEALE
COOPER.
______________________
Before REYNA, TARANTO, and HUGHES, Circuit Judges.
TARANTO, Circuit Judge.
Red Dog Mobile Shelters, LLC brought a suit for
infringement against Kat Industries, Inc. and Kat Ma-
chine, Inc. (collectively, KAT), alleging that KAT’s Tuffy
shelter infringes Red Dog’s U.S. Patent No. 8,534,001.
The district court granted summary judgment of non-
infringement. We affirm.
I
Red Dog’s ’001 patent, entitled “Re-Deployable Mobile
Above Ground Shelter,” discloses certain protective shel-
ters having features whose purpose is to help the shelter
stay in place during high winds or similar conditions.
’001 patent, col. 3, lines 37–40. At least some of those
features exploit the Bernoulli effect, which involves
differences in air pressure related to differences in air
speeds, to keep the shelter from moving from the sub-
strate beneath it. Id., col. 3, lines 40–49. Disclosed
features include “one or more members that elevate the
floor above a substrate, a substantially enclosed sub-floor
region bounded by the protected shelter and the sub-
strate, and an air duct providing airflow communication
between the substantially enclosed sub-floor region and
an exterior region of the enclosure via” venting. Id., col. 2,
lines 28–33 (summary of the invention). As to the claims,
the district court in this case observed that although “the
specification describes the shelter as being mobile, above
ground, and as taking advantage of this Bernoulli effect[,]
the claims do not strictly require the claimed invention to
have these features.” J.A. 5.
RED DOG MOBILE SHELTERS, LLC v. KAT INDUSTRIES, INC. 3
According to the record on summary judgment that
governs the decision on review, KAT manufactures mobile
protective shelters that are designed to protect occupants
during storms or tornadoes, and the particular one at
issue here is the Tuffy shelter. Red Dog brought this
infringement suit against KAT in the United States
District Court for the Northern District of Texas, alleging
that KAT’s Tuffy shelter infringed Red Dog’s ’001 patent.
Red Dog asserted claims 44, 45, 47, 48, 55, 57, 60, 77, 89,
90, 91, 92, 93, and 94 of the ’001 patent.
For purposes of this appeal, those claims may be di-
vided into two groups: all of the asserted claims except
claim 60; and claim 60. Essentially, three claim limita-
tions are at issue. The first limitation appears in all
claims except 60 (“support”):
“multiple rails” (claims 44, 45, 47, 48, 55, and 77) /
“elongate members” (claims 89, 90, 91, 92, 93, and
94) “that extend along the first axis, are coupled
to the enclosure, and support the protective shel-
ter on a substrate” (claims 44, 45, 47, 48, 55, 57,
77, 89, 90, 91, 92, 93, and 94).
’001 patent, col. 21, line 7, through col. 25, line 26 (em-
phasis added). The other two (“elevate”; “ballast”) appear
in claim 60:
“multiple rails that elevate the floor above the
substrate” (claim 60);
“a ballast disposed beneath at least one of a set
including the floor, the first deck, and the second
deck” (claim 60).
Id., col. 22, line 55, through col. 23, line 6 (emphases
added).
The district court treated Claim 44 as representative
of all the claims except claim 60. Claim 44 reads:
A protective shelter, comprising:
4 RED DOG MOBILE SHELTERS, LLC v. KAT INDUSTRIES, INC.
an enclosure having at least a floor, at least one
sidewall coupled to the floor, a door, and a roof
coupled to the at least one sidewall, wherein the
protective shelter has a first axis and an orthogo-
nal second axis both parallel to a plane including
the floor of the enclosure, and wherein the protec-
tive shelter has a greater first dimension along
the first axis and a lesser second dimension along
the second axis;
multiple rails that extend along the first axis, are
coupled to the enclosure, and support the protec-
tive shelter on a substrate;
first and second deck sections coupled to the rails,
wherein the first and second deck sections extend
substantially symmetrically from the enclosure
along the first axis; and
a ballast disposed in one or more locations in the
protective shelter, including at least one location
in a set including beneath the floor, in the first
deck section, and in the second deck section.
’001 patent, col. 21, lines 7–27. All claims at issue, includ-
ing claim 60, require multiple rails.
Both parties filed motions for partial summary judg-
ment. Red Dog sought a summary-judgment ruling that
would reject KAT’s defenses of inequitable conduct and
laches, but the district court denied that motion, finding
triable issues. KAT, for its part, sought summary judg-
ment of non-liability on various grounds. As to grounds of
invalidity and unenforceability, the district court denied
the motion. But as to non-infringement, the issue now on
appeal, the district court granted KAT’s motion, ruling
that “there are no genuine disputes of material fact pre-
sent in this issue and the Defendants are entitled to
judgment [of non-infringement] as a matter of law.” J.A.
7.
RED DOG MOBILE SHELTERS, LLC v. KAT INDUSTRIES, INC. 5
The court concluded that Red Dog pointed to insuffi-
cient evidence to create a triable issue about whether the
accused KAT shelter meets the “support” and “elevate”
limitations. In particular, the court found the declaration
of Red Dog’s expert insufficient, because the expert had
“not interpreted the claims and the accused product in a
manner consistent with the way a person having ordinary
skill in the art would interpret” those claim terms in this
patent. J.A. 9–10; see also J.A. 10–12. Those conclusions
alone required summary judgment as to all asserted
claims, but the district court also concluded that Red Dog
lacked sufficient evidence to create a triable issue about
whether the accused shelter meets the “ballast” limitation
of claim 60. J.A. 12–15.
The district court subsequently dismissed all other
claims and counterclaims without prejudice and entered a
final judgment. J.A. 2. Red Dog appeals. This court has
jurisdiction under 28 U.S.C. § 1295(a)(1).
II
We review the grant of summary judgment de novo.
See Akzo Nobel Coatings, Inc. v. Dow Chem. Co., 811 F.3d
1334, 1338 (Fed. Cir. 2016); Wright v. Excel Paralubes,
807 F.3d 730, 732 (5th Cir. 2015). 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.
Infringement, which is a question of fact, “is amenable
to summary judgment when no reasonable factfinder
could find that the accused product contains every claim
limitation or its equivalent.” Akzo, 811 F.3d at 1339.
That determination depends on claim construction. Id.
Claim construction is a matter of law, with any underly-
ing findings about extra-patent understandings or other
facts outside the patent documents calling for clear-error
review. Id.
6 RED DOG MOBILE SHELTERS, LLC v. KAT INDUSTRIES, INC.
Here, the district court’s analysis is best read as based
ultimately on the meaning required by the patent itself:
“[t]his is just simply not what ‘support’ means in this
context,” J.A. 11; Red Dog’s “elevate” construction is
“certainly not an interpretation that a person of ordinary
skill in the art would apply to this patent,” J.A. 13. We
review that context-based determination de novo. But
Red Dog would not be aided even if we read the district
court as making a finding about ordinary meaning outside
the patent. Such a finding would call for the deferential
review of the clear-error standard. Regardless, we con-
clude that the district court must be affirmed in its con-
structions of “support” and “elevate,” which exclude the
accused shelters.
A
The first dispute concerns the meaning of “support.”
Claims 44, 45, 47, 48, 55, 57, and 77 each include a re-
quirement that the patented product include “multiple
rails that extend along the first axis, are coupled to the
enclosure, and support the protective shelter on a sub-
strate.” ’001 patent, col. 21, line 7, through col. 24, line 9.
Claims 89, 90, 91, 92, 93, and 94 each require that the
product include “multiple elongate members extending
along the first axis that are coupled to the enclosure and
support the protective shelter on a substrate.” Id., col. 24,
line 41, through col. 25, line 26.
In order to reach the KAT shelters, Red Dog requires
an interpretation of “support . . . on a substrate” that
would cover certain raised elements in the KAT shelters
that do not sit under the lowered, round central shelter,
which sits on the soil (the substrate). J.A. 276, 298 figure
2. Red Dog relied for such an interpretation on its ex-
pert’s explanation invoking Hooke’s Law and Newton’s
Third Law. J.A. 268, 276–77. The expert drew his “sup-
port” conclusion from the assertion that the KAT shelter’s
raised elements, by their stiffness, bear more load than
the shelter’s bottom plate alone, J.A. 268, because, when
RED DOG MOBILE SHELTERS, LLC v. KAT INDUSTRIES, INC. 7
the shelter sits on the soil and the soil produces an equal
and opposite force, some of that force is transferred to the
raised elements, J.A. 276–77. Although the expert per-
formed calculations to show such transfer, J.A. 299–300,
those calculations add nothing to the just-summarized
explanation of why the “support” conclusion assertedly
follows.
The district court properly rejected Red Dog’s “sup-
port” interpretation. J.A. 11. To the extent that the court
was making a factual finding that Red Dog’s interpreta-
tion is not the ordinary, extra-patent meaning of “sup-
port” (of the structure by rails) in a context like this one,
we find no clear error based on Red Dog’s explanation.
The physics analysis of forces does not clearly establish
the meaning of “support” here. In any event, Red Dog
does not meaningfully contend, and we see no basis for
concluding, that the ’001 patent contemplates a notion of
support by rails other than the common-sense one appar-
ent from the written description—namely, rails sitting
beneath the shelter, see ’001 patent, col. 10, lines 21–26
(shelter “supported above the underlying substrate[,]
rest[ing] upon one or more . . . rails”); id., col. 4, lines 21–
28; id., col. 12, lines 55–62, which is consistent with the
focus on creating “a substantially enclosed sub-floor
region,” id., col. 2, lines 29–30; id., col. 3, lines 45–46
(“substantially enclosed space beneath the shelter floor”).
The district court properly rejected the claim interpre-
tation urged by Red Dog. Without that interpretation,
there is no basis here for finding that KAT’s shelter meets
the “support” claim limitations. Summary judgment as to
all of the asserted claims except claim 60 was proper.
B
Summary judgment also was proper as to claim 60. It
is sufficient to discuss the claim term “elevate.” Claim 60
mandates that the product have “multiple rails that
elevate the floor above a substrate” and “first and second
8 RED DOG MOBILE SHELTERS, LLC v. KAT INDUSTRIES, INC.
decks supported by the rails.” ’001 patent, col. 22, lines
64–65. We conclude that the district court properly held
that the “rails that elevate the floor above a substrate”
limitation could not, on this record, be found to cover
KAT’s shelter, in which the raised elements (the asserted
rails) are to the side of the shelter and do not lift its
bottom plate above the ground.
Red Dog rests its contrary contention on two asser-
tions together: first, KAT’s shelter is elevated because of
the thickness of the bottom plate itself, whose top sur-
face—the “floor”—is necessarily above the bottom surface
and therefore above the substrate; second, the “rails” are
doing the elevating, because the bottom plate is actually
part of the rails. J.A. 280. That interpretation covers
even a solid floorboard that sits flush on the ground.
We think that the district court properly concluded
that Red Dog’s interpretation is not one a person of ordi-
nary skill in the art would adopt, at least for this patent.
As already noted, the ’001 patent clearly contemplates
rails that lift the bottom plate above the ground, creating
a gap between the floor panel and the ground. ’001 pa-
tent, col. 3, lines 45–46; id., col. 2, lines 29–30; see also id.,
col. 4, lines 24–39 (particular embodiment allowing “the
free passage air from any locale beneath the shelter to
any other locale”) (emphasis added). More generally, the
district court explained, under Red Dog’s interpretation,
“it would be impossible to create a floor that was not
elevated,” because the floor would be the (two-
dimensional) top of some (necessarily three-dimensional)
material, which “would have to have a thickness to it.”
J.A. 12. Red Dog’s “expert’s application of ‘elevate’ does
not make any sense.” Id.
CONCLUSION
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED