*1 CARNES, disputes involving pre- Before MARCUS and isdiction over GODBOLD, Judges. vailing wages. Circuit rates of AFFIRMED.
PER CURIAM: “temporary augmentation” Plaintiffs are
employees performed of contractors who
temporary construction work and tempo-
rary operation and maintenance for the Valley Authority. Employees
Tennessee are,
of TVA in accord with the Tennessee Act, § Valley Authority 16 U.S.C. SIGNALS, INC., KUSTOM (1994), paid prevailing wage rates for Plaintiff-Appellant, community. work of a similar nature in the that, allege though Plaintiffs hired con- they perform CONCEPTS, tractors work similar to or APPLIED INC. and John Aker, equivalent employees, Defendants-Appellees. that done TVA L. paid and therefore are entitled to be No. 99-1564. wages paid same to trade and labor em- Appeals, United States Court of ployees of TVA itself. Federal Circuit. allege jurisdictional Plaintiffs federal question. TVA filed a motion to dismiss Sept. Decided: 2001. subject jurisdiction. for lack of matter Rehearing Denied: Oct. The district court found that it lacked sub- ject jurisdiction matter and dismissed the
case.
We review de novo a district
court’s order granting motion to dismiss subject jurisdiction
for lack of matter interpretation
its application of statu
tory provisions. See JBP Acquisitions, U.S., (11th
LP v.
Cir.2000). before issue us is whether the correctly interpreted
district court §
U.S.C. 831b. The statute states in rele part:
vant “In the any dispute event arises what are the prevailing rates of
wages, question shall be referred to Secretary determination, of Labor for
and his decision shall be final.” 16 U.S.C.
§ 831b. The statute is clear on its face.
In this case dispute. there is a The dis
pute prevailing wages. involves the rates
The Secretary jur- of Labor has exclusive *2 L.C., Chase, Yakimo, returning signal may
D.A.N. & Chase of of indicate the Park, KS, distance, target, argued plaintiff- angle Overland size its beam, the surface that reflects the radar appellant. Of counsel was Michael Yaki- mo, object and the material which the Jr. *3 general, stronger signal made. In is Fish, LLP, Fish, Craig Ronald Falk & larger objects received from or closer than Hill, CA, Morgan argued for defen- objects objects from smaller farther him dants-appellees. With on the brief away. King, were Thomas H. Stahl and Gerald A. LLP, Armstrong City, Teasdale of Kansas the systems Before introduction of radar MO. incorporating digital signal processing, traffic designed most radars were to re- MAYER, Judge, Before Chief spond strongest signal to the LOURIE, Judges. NEWMAN and Circuit display target speed the calculated from signal. misleading This could cause NEWMAN, Judge. PAULINE Circuit readings target when a slower with a Signals, appeals judg- Kustom Inc. the (such truck) stronger signal large as a ment of the United States District Court response target obscured the from a faster Kansas, for the granting District sum- (a car). signal speeding with weaker mary judgment noninfringement digital signal process- The introduction of 5,528,246 United States Patent No. issued ing by solved this problem employing a June entitled “Traffic Radar with technique mathematical known as Fast Digital Signal Processing.” We affirm the Transform, analysis Fourier which allowed judgment of the district court.1 greater depth. of the return digital processing, With the returned ana- BACKGROUND log signal may rep- be transformed into a Traffic equipment sig- radar emits radio resentation based on frequency (indicating nals that target bounce off surfaces and target speed) amplitude (indicating tar- return to a receiver that target determines size). get speed upon measurement of various char- Digital systems generally were known at signals. acteristics of the If the radar invention; the time of the '246 there was equipment target moving, or the the evidence at trial that the defendants had returning signals frequen- have a different digital marketed a traffic radar wherein cy from the outgoing signals because of signal and Fast Fourier pro- Transform effect, Doppler the a shift in cessing process were utilized and search proportional to speed the relative of the Doppler radar strongest returns for the Thus, source and the target. to determine signal. analog Multi-mode radars that had vehicle, speed the of a target traffic radar capacity to track either strongest equipment measures the shift target were also known in the and if necessary corrects for speed art. the radar source. addition to frequen- patent, measurement of The '246 filed on June
cy, the amplitude (magnitude strength) system is directed to a traffic radar incor- Inc., Signals, Applied Concepts, 1. Kustom v. Applied Concepts, F.Supp.2d Inc. Inc., F.Supp. (D.Kan.1999) (claim construction, doctrine of (D.Kan.1998) (claim construction, literal in- (Kustom II). equivalents infringement) (Kustom I); fringement) Signals, Inc. porating digital signal processing having target producing sig- operation, nal, user-selectable modes of where- or speeds of both the fastest and by whether identify selects strongest target signals, as determined display speed strong- of either the display selection of the mode. target target est or the fastest vehicle.2 Kustom states that operation is within specification, In accordance with the '246 the scope of the '246 Applied claims. Con- signal processed the return radar is first in cepts states that its calculation of the a series of that include selective fil- speeds of both and fastest window, using a tering Hamming function claims, vehicles is excluded the '246 Transform, digital Fast Fourier a mov- which provide for detection and explicitly *4 validation, ing average and several other display of strongest either the averaging signal steps and validation to Applied vehicle. Concepts also contends misleading signals. control for false or estopped, by Kustom is prosecu- the signals The validated are saved in an in- tion history, obtaining from a claim scope array memory dexed in the of the radar that would embrace the Applied Concepts system. After another validation check system. radar noise, periodic array duplicated for the Claim Construction in memory, the radar’s and one of the Claim a construction is matter of duplicate arrays by decreasing is sorted law, Instruments, Markman v. Westview signal while the other is Inc., 967, 970-71, 52 F.3d by sorted decreasing frequency. (Fed.Cir.1995) (en banc), aff'd, The processing diverges, internal then 517 U.S. 116 S.Ct. 134 L.Ed.2d depending on whether strongest fastest or (1996), plenary and receives on review search by mode was selected the radar’s appeal. Techs., Inc., Cybor Corp. v. FAS (if fastest search mode was not 1448, 1456, USPQ2d 1169, selected, strongest the radar defaults to (Fed.Cir.1998) (en banc). mode). mode, search In fastest search highest frequency (corresponding to the emphasis With added to the words “or” speed) in array fastest fre- sorted “either,” and on which the claim-construc- quency is system, read checked to turns, independent tion issue claims limits, preset assure it is within converted and 20 recite: data, speed into unit displayed. and 1. A processing method of Doppler re- strongest search of turn information in a traffic radar com- signal array is read from the prising of: by magnitude, sorted checked to assure it receiving Doppler informa- [a] return limits, preset is within converted into containing signal tion at least one return units, speed displayed. vehicle, target derived from a Applied Concepts The radar device here presenting Doppler said in- [b] return operates similarly, at issue except data, digital formation as a analysis and a fastest of signal always performed, transforming the return are [c] said data into the fre- subject quency provide and are not to to a spectrum selection. domain displays The radar then either the speed frequency components that includes cor- 2. '246 operation modes also include selections for These modes are not relevant to sources, moving stationary radar dispute. opposite targets. same direction or direction
responding Doppler signals spectrum return that includes com- information, in said ponents corresponding Doppler contained re- turn contained in said informa- storing components [d] said a mem- tion, ory, determining magni- [c] means for searching components
[e] said in mem- tude and frequency of each of said com- ory component prese- for the that meets ponents, criteria, lected storing means for said [d] components, indicating target speed [f] corresponding component vehicle to the search means for providing plu- [e] that meets said criteria. rality operation, including modes radar, In a traffic apparatus target compo- mode which a vehicle processing Doppler return greatest magnitude information nent of in said mem- comprising: ory means is identified and a mode in a target which vehicle for receiving Doppler [a] means highest frequency in said containing information at least one re- *5 identified, means is and signal turn derived a target from vehi- cle, presenting and for said information [f] means under control for data, digital as selecting greatest either a magnitude or search, highest frequency whereby ei- transforming [b] means for said data ther strongest signal signal into frequency the domain to a provide target identification provided. is spectrum that frequency includes com- ponents corresponding Doppler re- added.) (Emphases and clause letters turn in contained said informa- The district court construed the term tion, l[e], 16[d], as used claim clauses memory storing [c] means for said to mean “a 20[f] choice between either components, alternatives, one of two but not both.” for searching compo- [d] means the This construction was the basis for the nents stored in said means to summary court’s judgment infringe- of no identify component pre- that meets ment, only and is the aspect of the claim magnitude selected or crite- construction on appeal. ria, and argues that “or” should not responsive means [e] to the identified have been restricted to a search of either indicating for speed the fastest target (frequency) data or the target corresponding vehicle thereto. strongest target (magnitude) data “but not radar, apparatus a traffic for both.” Kustom states that the district processing Doppler return information court’s construction contradicts the correct comprising: usage term “or.” Kustom points to receiving Doppler [a] means for Computer Press Dictionary, Microsoft information at containing least one re- (3d 24, 1997), ed. which distinguishes turn signal derived target from a vehi- among logical operators, defining “or” cle, presenting and for said information (which returns a “true” value when one or data, digital as (which true), both values are “and” returns for transforming [b] means said data a only “true” value if and if both values are true), (which into the domain to provide a and “exclusive or” returns a true). only any one value is is done for one data set for “true” value when precedent which cautions either Kustom cites criteria. construing patent technical terms The '246 not against any does describe in accordance with non-techni- art at issue for displays embodiment searches definitions, dictionary instead of the cal both modes. inven- usage technical of the field Kustom’s claim amendments and accom- tion. remarks, panying requiring the alternative presumed It technical operation “multi-mode” that is achieved used, patent documents are
words selection of either understood, they intended to be as would fastest are consistent with this con- by persons experi be used and understood filed, struction. As all of the claims of the See, enced in the field of the invention. patent rejected '246 application were Desiccants, Inc. v. Med e.g., Multiform Quip obviousness over the Muni MDR-1 zam, Ltd., 1473, 1478, 45 133 F.3d radar device in combination with United (Fed.Cir.1998); 1429, USPQ2d 3,631,486 Patent States No. to Anders. Chemicals, Corp. v. BP Hoechst Celanese Kustom then rewrote the claims to include Ltd., “magnitude frequen- limitation to (Fed.Cir.1996). However, whatever cy.” Original claim did not include logical meaning operator, of “or” as l[d], l[e], l[f], reciting clauses instead quite patent it is clear from the documents spectrum process validation and the step using that Kustom was not “or” as a tech “determining and fre- operator, nical but in its or programming quency of each component.” valid New If dinary meaning stating alternatives. *6 clause l[e] limited the search to divergent specialized usage were intend “magnitude frequency” (emphasis or add- ed, the context was such that it was re ed). changes Similar were made to claim clearly explained patent in the quired to be 16, which as filed included “means for de- Corp. documents. See Vitronics v. Con termining of Inc., 1576, 1582, 90 F.3d 39 ceptronic, retaining each valid (Fed.Cir.1996) (“[A] 1573, USPQ2d 1576 memory”; same in this clause was can- may lexicog patentee choose be his own celled, added, limiting and clause was 16[d] in rapher and use terms a manner other “magnitude search to or fre- ordinary meaning, long than their as as quency.” Original claim 20 as filed includ- special clearly definition of the term is ed clause with its “either” and “or” 20[f] patent specification in or file stated and tar- limitations on selection history.”). get During prosecution identification. explained court construed “or” and Kustom to the examiner that The district “either” in their common usage desig- “Claim [20] specifically calls for two search nating agree alternatives. We with this modes under selection.” Kustom construction, having for there is no indication that described its invention as “multi- operation,” whereby a* the desired Kustom used these words with different mode magnitude (strongest tar- meaning. Particularly, there is no basis whether (fastest would believing get) target) for that Kustom in- be whatsoever operator. apparent It is usage tended its of “or” somehow to em- selected display of search and were analyzed brace “and.” The district court that modes invention, intended, in the '246 to be se- specifi- the detailed flowcharts the '246 cation, prosecution lected in the alternative. The only which showed that one search
1332 greatest magni- ... either a history requires oper- selecting that means the for “or” limita- highest frequency for tude or search” ator’s choice between search 20, of claim did not read on the ac- target speed, not tion but device. The district court thus claim cused The district court’s construc- both. granted summary judgment of no literal tion is affirmed.
infringement. INFRINGEMENT argues the accused Infringement, whether literal literally in infringes device that the second equivalents, is a under the doctrine amplitude for search —such as a search Wings, L L question of fact. Bai v. & operator requests after the a search for Inc., 1350, 1353, 160 F.3d 48 simply an additional func —is (Fed.Cir.1998). 1674, However, sum 1676 points perfor tion. Kustom out that the mary may appropriate be when judgment an step mance of additional is irrelevant material fact genuine there is no issue of steps performed. when the claimed are when, drawing all factual inferences in CBS, Corp. Moleculon Research See party, no nonmoving favor of the “reason Inc., 1261, 1271, USPQ F.2d 229 jury able could return a verdict for the (Fed.Cir.1986) (“comprising” opens nonmoving party.” Liberty Anderson v. method claim to the inclusion Inc., Lobby, 477 U.S. 106 S.Ct. claim). addition to those stated in the (1986) (the purpose L.Ed.2d un summary judgment is to avoid an However, the accused traffic radar only trial for there can necessary which be merely practice device does not an addi outcome). one We review the district perform tional function or an additional grant summary judgment court’s de step; performs explicitly it a function Am., Group novo. N. Inc. v. See EMI claims, scope of the moved outside the 887, 891, USPQ2d Corp., Intel alternative excludes devices (Fed.Cir.1998) (reviewing sum frequency. search mary judgment infringe of literal issues Although “compris Kustom is correct that infringement ment and under the doctrine ing” means that the do not neces claims *7 equivalents, of based on the claim con sarily recite all of the elements and limita struction). device, method, steps of a tions of or limiting imposing clause term “or” re Infringement Literal quires the exclusion of devices whose reasoning On the that the critical term magnitude search includes and appears every “or” claim the frequency. open-ended of '246 The transition patent, fact undisputed “comprising” that does not free the claim from Int’l, Applied traffic Concepts Spectrum accused radar al- its own limitations. See ways performs 1372, strong- Corp., both a fastest and a Inc. v. Sterilite (Fed.Cir. 1379-80, 1065, USPQ2d est search of the stored radar data 1998) (the intervention, “comprising” without the district term cannot re “searching subject court held that the ... for the store matter otherwise excluded claim). preselected magni- that meets from the The district court cor device, rectly tude or criteria” limitation of held that the accused its 1, searching claim ... magnitude “the means for search of both [for] instruction, preselected magnitude or crite- without is outside the 16, scope ria” limitation of claim and the “means literal the claims. Equivalents The Doctrine of entiates the “or” of the claims and the “and” of the device. Kustom accused that there was court ruled The district a link an states such insubstantial under the doctrine of infringement not difference. finding the ground on the equivalents the claimed equivalent to accused device correctly The district court con the “or” element invention would eliminate history estops cluded that the prosecution claims, thereby violating the ‘all- relying position Kustom from on the that a However, is not an rule. this device which searches for both fastest and elements targets performs substantially application of the all-elements appropriate the same function as a device which rule. searches for either fastest or the that an all-elements rule is The (cid:127)strongest target. During prosecution, every claimed device must contain accused rejection for response to a obviousness equivalent or the element of the invention 103, § under 35 U.S.C. amended See Warner every claimed element. claims 1 and 16 to include this limitation to Co., v. Hilton Davis Chem. -Jenkinson Co. the alternative- search for 17, 29, 1040, 137 117 S.Ct. U.S. frequency, argued that claim 20 was (1997). 146, 1865, 1871 L.Ed.2d operator-selected directed to alternative element, equivalent or an No claimed frequency. search modes for thereof, can if the doctrine of be absent digital signal processing use of The However, all of equivalents is invoked. art, prior traffic radar was known to the claim 1 or or elements of method prosecution and the of the '246 invention undisput 20 are apparatus claims 16 and operator-selected its search of emphasized in the accused device. The edly present identifying for the data the fastest “or” is not an “element” of an word itself target. The amendments and method, of a and its apparatus step or a arguments during prosecution estop Kus elements presence signify alternative equivalency of the ac tom’s assertion does not convert “or” into an element. device, performs cused radar which ruling non-infringement can not be displays search modes. We affirm ground. on this sustained summary judgment of nonin grant However, ground. alternative fringement the district court also consid- on this grounds. on alternative equivalency ered AFFIRMED function/way/result Applying the test of Manufacturing MAYER, Graver Tank & Co. dissenting. Judge, Chief Co., Linde Air Products 339 U.S. case, respectfully I dissent. USPQ 70 S.Ct. 94 L.Ed. inclusively to mean should be construed *8 (1950), no the court held that reason- First, plain “one or another or both.” equivalency. find able trier of fact could “either or both.” meaning of “or” can be The court found that the accused device’s “If it or snows says, If a store owner hails automatically methodology searching store,” today, we will close the then the data was if it happens owner will still close the store substantially way operation, different Moreover, to hail and snow. we because compared operator- '246 device’s with the to the detailed flow- required are to refer search of or fre- initiated either patent specification in the '246 to charts quency argues that data. Kustom in two of the claims suit interpret “or” ¶ incorrect, § that a “link” in analysis appropriate it is under 35 U.S.C. adopt the technical Boolean defi- programming the radar’s is all that differ- for us to nition of the term to determine its mean-
ing ordinary to one of skill in the art. The
structure acts specifica- detailed in the
tion flowcharts are consistent with this Regardless
construction. of whether the
operator selects the strongest fastest or both the and the fastest (as always are “searched” the dis- term).
trict court sig- construed The
nals are saved array, indexed
duplicated, with one set sorted decreas-
ing magnitude (finding “strongest” sig-
nal) and the other sorted decreasing
frequency (finding the signal). “fastest” prosecution history does not limit this
construction. Kustom’s addition of the distinguish limitation did not the in-
vention over the Muni Quip MDR-1 radar
device because that device also had the
capacity track
signal. reasons, For these I would further
interpret “criteria” as “standards used to
search for a fastest or strongest target.” I
would remand for a determination of dis-
puted issues of material fact
operation of the accused device under the
above claim construction. A may device
be an improvement art, prior over and at
the same time infringe. DELONG, Petitioner,
Lois
DEPARTMENT OF HEALTH AND SERVICES,
HUMAN
Respondent.
No. 00-3449.
United States Appeals, Court of
Federal Circuit.
Sept.