*1 communication spawned by any and 7 to connection zone was not Details 5 allegedly limiting reference government with the concerning manual it makes to them. But these references— balancing damper installation, nor was it specifically, “see and “see detail.7/M6.02” based information received after the clearly detail do not serve to Thus, 5/M6.02”— contract had been awarded. limit the of.the details to applicability uncertainty about the requirements of depicted in 10. those situations Detail dampers manual balancing should have They merely inform serve to further Detail manifested before Mortenson had submit- having depict without such informa- ted its bid. Mortenson therefore should tion space. in so small a we Because sought ambiguity clarification of the disagree contention that with Mortenson’s procurement process, before end of the Details 5 applicability have limited not after installment of balanc- the manual due to Detail and because the board’s dampers, its to do “and failure so findings factual amply supported precludes acceptance of interpretation.” its record, in- with the board’s Statistica, Id. (quoting Christopher, Inc. v. terpretation drawings. of the contract (Fed.Cir.1996)); 102 F.3d see require balancing The drawings manual v. also Dalton Cessna 98 F.3d Aircraft dampers each point where a smaller (Fed.Cir.1996) (quoting Grum- connect, larger duct duct regardless and a Sys. Corp. Dalton, Data v. man Id. integrated building system zone. (Fed.Cir.1996)). 990, 998 Mortenson’s contention that points” reads “at be- 15895.2.7.2.5 various Conclusion drawings require, then,
cause so incorrect. Accordingly, the decision of the Armed Services Board of is af- Appeals Contract alternative,
In ar Mortenson firmed. that, gues minimum, interpretation its
was reasonable therefore rendered the AFFIRMED. latently contract ambiguous. disagree that Mortenson’s rea interpretation was
sonable, given plain language of
specification and the requirements of the
drawings. argument, For the sake of how
ever, any ambiguity pertaining manu PHILLIPS,
al balancing dampers did exist within the H. Plaintiff- Edward contract, ambiguity patent. See Appellant, USA, Stratos Mobile Networks LLC States, (Fed. United CORPORATION, Hopeman Cir.2000) (“A patent ambiguity present Brothers, Corpora Lofton facially when the contains contract incon tion, Defendants-Cross-Appellants. sistent provisions place that would a rea prompt sonable contractor on notice and 03-1269, Nos. 03-1286. rectify inconsistency contractor to by inquiring parties.”). of the appropriate Appeals, United States Court of After installation of the initial manual bal Circuit. Federal ancing dampers, quality Mortenson’s own April DECIDED: control officer—not the government’s —re quested verification that the installation
complied request with the contract. This *2 Manthei, Law, F. Attorney Carl
. Boulder, Colorado, argued plaintiff-ap- pellant. Fischer', Faegre
Mark W. & Benson *3 LLP, Boulder, Colorado, argued for de- him appellants. fendants-cross With the brief was Scott Holwick. NEWMAN, LOURIE, DYK,
Before Judges. Circuit Opinion for the court filed Circit Judge Opinion dissenting LOURIE. n part Judge filed Circuit DYK. LOURIE, Judge. Circuit Edward Phillips appeals from the deci sion of the district court the de granting fendants’ motion noninfringement 4,677,798. Patent Phillips Corp., No. 97-MK-212 (D.Colo. 2003) (“Noninfringement Jan. Decision”). Phillips appeals also from the dismissal his claim of trade secret mis appropriation. Phillips v. AWH (D.Colo. 22, ’1999) No. 97-N-212 Mar. (“Trade Misappropriation Secret Deci sion”). below, For the reasons set forth we affirm.
BACKGROUND is the Phillips inventor and owner patent, '798 which is directed to vandal- building consisting ism-resistant modules panels. modular wall The invention is useful prison in the field of construction panels exhibit sound desirable resistance, (ie., impact and fire resistance bullets, bombs), against, and lat- and axial bearing eral A issue in qualities. key load this case relates to the term “baffle.” The use the term “baf- typified fle” reads Claim which follows: Building adapted together modules to fit fire, for construction of sound and im- pact security resistant barriers 2002) (D.Colo. (“Claim MK-212 Nov. securing records and rooms for use combination, Order”). term “baffle” comprising persons, Construction ..., ..., sealant means although outer shell primary importance, was of disposed the shell means inside expressly it was defined in written further capacity increasing bearing its load stipulated description, parties steel extend- comprising internal obstructing, term meant “means for inwardly the steel shell walls. checking the flow of some- impeding, 6, ll. (emphasis Id., 22-34 add patent, spite col. In thing.” slip op. at 23. ed). the court concluded that stipulation, because “it does not ambiguous term agree- into an
In entered *4 or force the flow of identify the substance Corporation, Hopeman ment with AWH Brothers, Inc., check, Corporation impede, and Lofton which it is intended “AWH”) (collectively for AWH to market Although Id. court ac- obstruct.” agree- That Phillips’ sell invention. and subject knowledged language that “[t]he 1990, 1991, early in in and ment ended structure,” and it de- includes means an Phillips obtained AWH sales brochure not language cided that claim “does him that AWH was con- which convinced adequately describe of function Phillips’ technology without tinuing added). Id. (emphasis structure.” at 23-24 January to June his consent. From 1991 court therefore concluded district 1992, parties exchanged regard- letters lan- means-plus-function claim contains infringe- Phillips’ allegations patent of ing subject construction guage under misappropriation, secret ment and trade ¶ 112, § and limited U.S.C. but no resolution was ever reached. at 24. specification. Id. 3, 1997, February Phillips sued On specification The court found that in District Court United States AWH the properties sound and heat referred Colorado, asserting District of resistance, and as fire resistance well misappropriated had his trade se- AWH projectile Particularly, deflection. 22, 24, infringed crets and had “every court noted that textual reference In March patent. and '798 Specification diagrams in the and its show granted the court AWH’s motion for an than deployment angle baffle at partial summary Phillips’ judgment faces,” figures 90° to the wall misappropriation for trade secret claim in all displayed baffles three-year stat- was barred Colorado’s positions. placed interlocking in Id. The limitations, ute of dismissed that “baffle,” that a court therefore concluded Phillips The court claim. reasoned patent, has within the context alleged or should have known his knew first, ex- required properties: two diligence injury and failed to exercise due at oblique tend inward from the shell walls in claim pursuing misappropriation. his second, angles; or acute baffles form Decision, Misappropriation Trade Secret intermediate, in the interlocking barrier The court also slip op. 7. decided Id. interior of the wall module. presented had not Phillips evidence wrongful pre- in conduct engaged AWH not Phillips conceded that he could discovering venting him from that claim. prove infringement under the claim court’s Id. at 7-8. construction, granted and the court AWH’s summary judgment motion for nonin-
In November
the district court
Decision,
fringement.
slip op. at 1. Phil-
patent’s
its construction of the '798
issued
lips timely appeals
No. 97-
both
claims.
AWH
noninfringement
requires
and the
every
dis
determination that
misappropria
secret
missal of
trade
equivalent
limitation or its
is found in the
tions claim.
cross-appeals, challeng
accused device. Warner-Jenkinson
v.Co.
ing the
court’s
district
treatment
certain
17; 29,
Hilton Davis Chem.
520 U.S.
claim terms
its claim construction. We
(1997).
S.Ct.
L.Ed.2d 146
jurisdiction
appeals pursuant
over the
Those
questions
determinations are
of fact.
1295(a)(1),
to 28
because a claim
U.S.C.
Inc.,
L
Wings,
Bai v. & L
patent infringement
well-pleaded
was
(Fed.Cir.1998).
complaint.
Group,
See Holmes
Inc. v.
appeal, Phillips
On
argues that
Sys.,
Vornado Air Circulation
term “baffle”
means-plus-func-
122 S.Ct.
corded
mean-
DISCUSSION
clearly
and unequivocally re-
*5
butted.
asserts that
thé district
grant
We review a district court’s
improperly
court
read
limitations
novo,
judgment de
reapplying
the specification into the
baf-
claims—that
the same
used
standard
the district
must
positioned
fles
be
at an acute or
court.
Endo-Surgery,
Ethicon
Inc. v.
faces,
angle
obtuse
to wall
baf-
Surgical Corp.,
U.S.
that
1315
(Fed.Cir.1998). Summary
intermediate,
judgment
ap
fles must form an
interlock-
“if
propriate
pleadings, depositions,
Next,
the
an
ing
support, Phillips
barrier.
for
interrogatories,
swers to
and admissions
points to descriptions in the
patent
file,
affidavits,
the
together
any,
with
angle
baffles that he states are at an
genuine
show that there is no
issue as to
of 90° to the
face
wall
that
any material fact and that the moving par
pattern.
do not form an
Fi-
interlocking
ty is
entitled to a
aas matter of nally, Phillips
that
the
asserts
district
56(c).
law.” Fed.R.Civ.P.
court
“im-
improperly defined
term
pact
to
to
resistance”
refer
deflection
Infringement
I. Patent
bullets, bombs,
projectiles.
or other
of patent
infringe
Determination
“impact”
He argues that the term
is used
two-step
“First,
ment
requires
analysis.
conjunctive
disjunc-
and the
both
the court
the scope
determines
and mean
deflection,”
tive with the
“projectile
term
...,
ing of the
claims
patent
asserted
then
which he
indicates
the term
believes
properly
construed
claims
com
“impact”
meaning
takes on a broader
to the
pared
allegedly infringing device.”
unduly
the court’s construction was
Inc.,
Cybor
Techs.,
FAS
narrow.
(Fed.Cir.1998)
banc)
(en
(cita
1454
responds that
district court
AWH
omitted).
one,
Step
tions
claim construc
correctly construed the term “baffle.”
tion,
law,
is an issue of
Markman West
court,
argues,
looked
properly
AWH
Instruments,
52
view
970-
scope
to the
to determine the
(Fed.Cir.1995) (en banc), aff'd,
517 support
the claimed invention. To
S.Ct.
L.Ed.2d 577
construction,
emphasizes
court’s
(1996),
novo,
AWH
Cybor,
we
review de
two,
patent
purport
statements
the '798
Step
comparison
method,
distinguish
claim to the
prior
accused device or
to
the invention from the
§
avoid the ambit of
nite
to
art,
great
resistance
forces
structure
e.g., “impact
¶
AWH
6.”
Media Communica-
explosions
projectiles.”
Personalized
such
key
tions,
innovative feature of
resistance and and However, segments merely support those that specifically states con “[t]he modules predominant angled portions that im- tain and strengthening deflecting bullet in part deflection properties bullet ternally directed It steel baffles.” further Phillips identifies as essential to his inven- explains panels that steel “form the inter tion and are not identified as baffles. angles deflecting nal baffles at bullets.” In the section marked “Disclosure specification’s explicit From the de Invention,” the patentee states that scriptions invention, we conclude are “disposed angles baffles such patentee regarded his invention as which might penetrate bullets the outer panels providing impact or projectile resis panels patent, steel are deflected.” '798 tance and that the baffles must be oriented 2, ll.13-15. col. angles than 90°. other Baffles directed at 90° deflect projectiles cannot as de Additionally, specification addresses and, patent, any scribed in the '798 art, distinguishes prior asserting and event, See, art. facilities, protective prior disclosed “[i]n secured and barriers, e.g., 2,717,664 4,505,101. projectiles may it is Patents and feasible encountered, from The term high such bullets “baffle” is used in consistent powered guns claims, fragments.” bomb Id. at manner all throughout the asserted added.) (Emphasis None of bullets.” analysis equally to the foregoing applies our
so so construe claims. Because we is not figures all those shows baffle because AWH does patent, and than angle at an 90°. angled pan- in its angles or obtuse not use acute claims with the non-re- It is true that els, we affirm the district court’s were allowed. strictive term “baffles” noninfringement. However, patent specification is in- argues The that we dissent-in-part claims, to inform the support tended and erroneously interpreted fo- claims unmistakably clear here makes it cusing only “preferred on the embodi- angled baffles that the invention involves Inspection of disagree. ment.” We It is in the interests of at other than 90°. at other angled patent shows inventors, patent system sound disclosed than is the embodiment 90° It the invention. patent; in the it is hold to public, as the to inventors well from the anything else impossible derive trial correct- judge their disclosures. The specification. need, ly mistakenly this albeit perceived ground, relying means-plus-function at column
The indicates 2, line 15 under DIS- line 65 to column interpreted the claims accordance OF THE INVENTION CLOSURE specification. with the provides modular This invention formulating detention equipment Misappropriation II. Trade Secrets multi- comprising [sic]
structures
interchangeable modules of
plicity of
court
The district
dismissed the
steel
inner and
having
plate
similar size
plaintiffs
misappropriation
defining end
outer wall sections
closures
on a
trade secrets
statute
limitations
internally
supporting
load
directed
ground.
decision
with
court’s
comprise
The modules
three
baffles.
apply the
on that basis. Federal courts
partial-
wall
sections of
plate
panel
steel
they
trade secret law the state which
shape posi-
section
ly triangular cross
Calco, Ltd.,
sit. See Water Techs.
internally
provide
directed
tioned
(Fed.Cir.1988);
Sun
baffles....
Assocs.,
Studs,
Theory
Inc. Applied
provided by
triangular
The baffles
1557, 1561
inwardly
shaped
panels to extend
Act
Colorado Uniform Trade Secrets
interlocking
an intermediate
barrier
(“CUTSA”),
§§ 7-74-101
Colo.Rev.Stat.
disposed
angles
at such
with the baffles
(1998), applies
-110
of trade
might
penetrate
that bullets which
*8
misappropriation brought under
secret
panels
outer
are deflected.
steel
law, including
Colorado
those in federal
only
The
actual references
Rubber Co. v. Bando Chem.
courts. Gates
27,
are
numbers
(10th
Indus., Ltd.,
Cir.
30, 31,
angled
of
are
in the
all
which
1993). Here,
dispute
there
no
between
patent.
It further
figures of the
states
parties
that Colorado trade secret law
additional fea-
column
lines 5-19: “The
interpreta
The district court’s
controls.
gives
is that it
addi-
ture of this module
of Colorado trade secret
law
a
tion
against projectile pen-
tional protection
of
that we review de novo. See
matter
law
may
Thus
seen from
etration.
it
been
Russell,
Regina Coll. v.
499 U.S.
Salve
penetrate
FIG. 6
were to
bullet
Colorado state ances that was not tech- Phillips’ period statute of limitations of nology. misappropriation. trade secret response, In highlights AWH the strong, An of a misappropriation action specific language Phillips used in his 1991 brought trade shall within secret letters, and all which indicate that years misappropriation three after the is his of possible awareness trade secret mis- byor discovered the exercise of reason- appropriation had risen well mere above diligence able should have been discov- suspicion. argues letters, AWH that in his section, purposes ered. For of this Phillips particularity indicated with continuing misappropriation constitutes technology that he believed was mis- a single claim. appropriating, citing the AWH sales bro- Colo.Rev.Stat. 7-74-107 The Phillips chure that had possession. his stated, Supreme Colorado Court has with appellees further assert that under respect tort, to actions in that “[t]he stat law, disability Colorado state mental must begins ute of limitations to run when exist at the right time such accrues for claimant has knowledge facts which equitable operate. tolling to AWH states put
would
person
a reasonable
on notice of
Phillips
its assurances to
amounted to
injury
extent
nature and
of an
and that
liability
wrongful
mere denial
and not
injury
wrongful
was caused
implicating
equita-
conduct
the doctrine of
Brodie,
conduct of another.” Mastro v.
tolling.
ble
(Colo.1984).
682 P.2d
“[T]he
cause of action does not accrue until the
with the district court
knows,
plaintiff
know,
has reason to
Phillips’
misap
of trade secret
diligence,
exercise
reasonable
all propriation is
time-barred
Colorado
material facts essential to show elements
possessed
state law. Phillips
an AWH
of that
City
cause
action.”
Aurora
companies’
sales brochure that detailed the
(10th
Bechtel
Cir. alleged use of
technology
prompt
and
1979).
correspondence
ed
parties.
between the
Phillips argues that
did not
he
“discov-
AWH,
In his letters to
Phillips referred to
alleged
er”
misappropriation
AWH’s
until
contents,
specific
the brochure’s
identified
August
so
three-year
statute
technology that
being
he believed
used
was
did not expire
limitations
before he filed
permission,
without his
detailed
the lawsuit. He asserts that the 1991 and
explicit
leading
timeline of events
1992 correspondence
lacked
de-
alleged misappropriation. Phillips
AWH’s
tails of
alleged
Phillips’
AWH’s
tech-
even used terms such as “steal” and “mis
nology
unable
indicating
appropriated,”
very
that he was
discern
true
injury.
nature of his
Phil-
actions,
much
they
aware of
how
AWH’s
lips
the argument
advances
that accrual of
technology,
they
related to his
how
the tort
misappropriation
of trade secret
interests,
affected his own
financial or oth
under Colorado law occurs
when both
Phillips’ possession
erwise.
of the AWH
injury
and its cause are known. Be-
convincingly
brochure
his letters
indi
cause he did not know of AWH sales of the
*9
cate
or
Phillips
knew
should have
technology
August
accused
until
to support
known facts sufficient
his claim
Phillips
alleges
he could not deter-
misappropriation.
Phillips
of
That
was not
mine
damages
recoverable
and that his
aware of
of his technolo
Moreover,
claim
incomplete.
Phillips
sales,
gy,
specific
AWH’s
exact
equitable
arguments
raises
or of the
tolling
based
disability
on
monetary damage
mental
and AWH’s
conse-
assur-
inflicted is not of
af-
in
grounds
alternative
the record
not need to know the
quence. One does
Bailey v. Dart
bring
firming
judgment.
in order to
specific damage inflicted
Mich.,
7-74-107
a
See
crued the commence years before remaining 1 994—three Phillips’ We have considered court, ment of suit in district unpersuasive. find arguments and them hence out time. district therefore conclude We granted properly court equitable toll Phillips’
forAs
patent
in-
Phillips’
in favor of
on
AWH
are
convinced that
ing arguments, we
fringement
misappropria-
trade secret
disability warrants ex
alleged
mental
claims,
accordingly
affirm.
tion
equitable tolling
ercise of
doctrine of
im-
appeal
cross
as
We dismiss AWH’s
exist
dis
did not
when
and,
event,
moot.
proper
alleged misappropriation.
covered the
See
(2002). Fur
§ 13-81-103
Colo.Rev.Stat.
AFFIRMED.
thermore,
interpreting
courts
Colorado law
liabili
have held that
mere denial of
DYK,
“[t]he
Judge, dissenting-in-part.
Circuit
ty,
indepen
which is what an
assertion
majori-
respectfully
I
dissent from the
to in
face of
development
dent
amounts
judg-
affirmance
ty’s
court’s
district
claim,
misappropriation
a trade secret
is
majority
non-infringement.
ment of
implicates the
‘wrongful
conduct’ which
to the
effectively
decision
limits the claims
equitable tolling.” Chasteen v.
doctrine of
embodiment, contrary
our re-
preferred
Corp., 216 F.3d
UNISIA JECS
cent
in Liebel-Flarsheim Co.
decision
(10th Cir.2000) (citing
Reyn
Dean Witter
(Fed.Cir.2004),
Medrad,
My dispute majority’s is with the imposi- tion of additional structural limitation upon patentee’s preferred em-
based Nor is this a case like SciMed Sys Life bodiments that baffles to tems, limits structures Inc. v. Advanced Cardiovascular angles “oriented at other than 90°.” Ante (Fed.Cir. Systems, contrary at 1213. This is plain 2001), the specification where specifically meaning, suggestion and there no disclaimed non-disclosed embodiments lexicogra- his patentee, acting as own stating that the “structure defined above is pher, gave special meaning to the term ... the basic structure all embodi The ar- majority baffles. marshals three ments the present contemplat invention guments in support limiting the claims ed and disclosed herein.” Id. at 1343 angles to baffles oriented at 90°. other than issue). patents (quoting the at The specifi is convincing. None cation patent '798 contains no such First, majority concludes that baffles language clearly limiting claims to a must limited to structures at oriented specific structure. angles other than 90° because “the paten- Second, majority contends that the regarded such, tee invention” ante baffles must be limited to ori structures 1212-13, only at describing such baffles angles ented at 90° in other than order to specification. It states that “baffles realize purpose the invention’s of providing angled at 90° only other than is the em- panels are impact projectile or resis patent; bodiment disclosed in the it is the tant. theory departure for this invention.” Ante at 1213. We however “[bjaffles plain the broader is that “expressly rejected the contention projectiles directed at 90° cannot deflect patent if a single describes patent,” the '798 ante at embodiment, patent the claims must projectile deflection is critical because be construed as limited em- being to that the “specification is rife with references to Liebel-Flarsheim, bodiment.” resistance, impact especially against pro 906. jectiles bombs,” such as bullets and ante at precedent Our also makes clear specification 1212. The merely however interprets] pertinent “this court impact identifies resistance as one of sev language narrowly, merely objectives eral pat the invention. The not describe a d[oes] broader objectives ent also identifies other includ embodiment, specification, but because the ing “high bearing strength” load using claim, prosecution history clear ma[kes] guage “thinner steel panels,” pat [sic] that the invention limited to particular ent, 3, ll.16-25, col. and “thermal and Liebel-Flarsheim, structure.” walls,” Liebel-Flarsheim, spaced acoustical isolation of two As in 907-08. the spec- suggest ification here does id. at col. 1.16.2As made clear in “not [baf- Liebel-Flarsheim, fles oriented at angles than patent 90°] fact that a “[t]he panel’s This “thermal and acoustical re- physi- isolation” each side of the do interior touch, to the lack cally fers of a continuous link across the flow of sound and heat from panels. interior of the Since the one side to the other is restricted. *11 1218 validity not an preserve to is an achieves several construed
asserts that
invention
the
objectives
require
unambigu
that each of
narrowly
does not
to
construe
invitation
as limited
struc
be construed
contrary
plain
claims
language
claim
to its
ous
achieving all of
capable
tures that are
Liebel-Flarsheim,
See, e.g.,
358
meaning.
908;
also
objectives.”
F.3d at
see
the
358
911;
S.A. v.
at
Elekta Instrument
F.3d
Techs.,
343
Corp.,
Inc. v. 3Com
E-Pass
Inc.,
Intl.,
1302,
214 F.3d
O. U.R. Scientific
too,
1370
So
(Fed.Cir.2000). Nor, was there here
1309
“[ajbsent
particular
a clear disclaimer of
distinguish
prior
the
art on the
an effort
matter,
subject
fact
the
the
that
inventor
that
art baffles were oriented
prior
basis
may
that
the invention
anticipated
have
SciMed,
angles.
Pass F.3d at 1367-68. grant summary
The district court’s be vacated should because was solely
based on erroneous construction patentee’s
of baffles and the concession product accused did contain I so defined. do not reach the
district court’s construction of other claim question
terms or the whether
judgment of non-infringement could or on granted grounds.
should be I majority with the opinion
trade secret claim. TECHNOLOGY, INC.,
SUMMIT
Plaintiff-Appellant, CO., LTD., Nidek, Inc.,
NIDEK Technologies, Inc.,
Nidek
Defendants-Appellees.
No. 03-1214.
United States Court Appeals,
Federal Circuit. March
DECIDED: