Lead Opinion
Opinion for the court filed by Circuit Judge LOURIE. Concurring opinion filed by Circuit Judge DYK.
Sunglass Hut International, Lenscraft-ers, Inc., Ray Ban Sun Optics, Luxottica Group S.p.A., and Leonardo Del Vecchio (collectively, “Sunglass Hut”) appeal from the decision of the United States District Court for the Central District of California granting a preliminary injunction affecting certain of the defendants’ sunglass lenses that the court held to be likely to infringe Oakley’s U.S. Patent 5,054,902. Oakley Inc. v. Sunglass Hut Int’l,
BACKGROUND
Oakley owns the '902 patent, issued to William J. King and directed to a sunglass lens. The claimed lens comprises three layers: a substrate, a middle semireflec-
1. A lens for sunglasses to be worn by a wearer, comprising
a light transmissive substrate constituting the lens body, and having a first side for facing the wearer and a second side of [sic] facing outwardly from the wearer,
a semireflective layer intimately bonded to the second side, and
a dielectric layer over said semireflec-tive layer, said dielectric layer being of substantially uniform thickness,
the- reflectance of said semireflective layer and the thickness of said dielectric layer producing, at one or more wavelengths, a differential effect in intensity, of reflected light incident upon said lens from the direction faced by said second side, by interference between incident light reflected from said dielectric layer and light transmitted through said dielectric layer and reflected from said smi-reflecting [sic] layer, said differential effect altering the spectral distribution of light in an amount for producing a vivid colored appearance formed by said two layers when viewing toward the wearer from the direction faced by said second side.
Id. at col. 23, 1. 55 col. 24, 1. 66 (emphases added).
The optics of the differential effect is illustrated in Figure 6(a) of the patent, which follows:
[[Image here]]
The specification sets forth a formula for calculating the “differential effect,” also called “differential level,” as follows:
Differential Level = (Ic — Ir)/Ir
where Ic is the enhanced intensity of reflected light at a given wavelength \c, and IR is a reference intensity. E.g., id. at col. 7, 11. 12-24. The enhanced intensity Ic is the algebraic sum of the reflected rays Rx, R2, R3, etc. (e.g., Ic = R4 + R2-R3 + R4 for the lens shown in Figure 6(a), constructively interfering rays being added, and destructively interfering rays being subtracted). See id. at col. 10, 11. 25-28 (omitting the term R4 because it is negligible). In the formula, different reference intensities are utilized throughout the '902 specification. For example, the formula is first introduced with “the random background intensity” IB (calculated as IB ~ R4 ) used as the reference. Id. at col. 7, 11. 12-24. Later, the specification calculates IB as R2 ~ [ (Ri + R4) R3]. Id. at col. 9, 11. 48-58. In other places, the reference is at an “average noncoherent [wavelength] XA,” calculated as R2 + /¿(Ri R3). Id. at col. 10, 11. 29-35, 66-68. In still other places, the specification utilizes as the reference the intensity of light at a different wavelength X.D that is reflected from the lens in a net destructive fashion. E.g., id. at col. 10,11. 42-54.
The '902 specification discloses a number of embodiments, and for each embodiment calculates a differential effect in multiple ways, under multiple circumstances. In the embodiment illustrated in Figure 6(a), reproduced above, in which the reflectance of the semireflective layer 9 is 20%, the specification calculates the differential effect to be 44% above X.D or 8.3% above \A . Id. at col. 10,11. 15-54. When that same embodiment is additionally subjected to light incident from the back surface of the lens, the specification calculates the differential effect above \D to be 7.5% in the worst case or 29.8% in a realistic case. Id. at col. 12, 11. 22-60. In a similar embodiment, in which the reflectance of the semi-reflective layer is 30%, the specification calculates the differential effect as 25.96% above X.D or 5.45% above XA. Id. at col. 10, 1. 58 to col. 11, 1. 12. In another embodi
In distinction to the claimed invention, which includes a “semireflective” middle layer, the patent disclaims the same basic three-layer lens structure having a middle layer that is highly reflective. Such a lens is illustrated in the specification’s Figure 5(b), reproduced below:
[[Image here]]
As can be seen, the prior art depicted in Figure 5(b) includes a 90% reflectance middle layer 7 where the Figure 6(a) embodiment had a 20% reflectance middle layer 9. The specification calculates the maximum differential effect for that prior art lens to be 2.3%. Id. at col. 9, 11. 59-65. The specification explains that this is a poor result, stating: “Interference colors on such highly reflecting metal surfaces therefore tend to be weak or washed out to the eye because of the small differential intensities involved.” Id. at col. 10, 11. 11-14.
During prosecution of the application that led to the '902 patent, the patent examiner rejected the claims as being un-patentable over U.S. Patent 3,679,291, issued to Joseph H. Apfel, et al. King overcame that rejection by amending the independent claim to include the phrase “said differential effect altering the spectral distribution of light in an amount for producing a vivid colored appearance formed by said two layers when viewing toward the wearer from the direction faced by said second side.” While acknowledging that Apfel disclosed a three-layer lens structure resembling his claimed lens structure, King distinguished Apfel’s lens from his invention on the basis of the reflectance of the middle layer and the resulting vividness. Specifically, King represented to the examiner that Apfel’s middle layer, being a material named IN-CONEL and having a thickness of 675 Angstroms, had a 94% reflectance. Thus, according to King, Apfel did not disclose or suggest his invention’s “vividly colored reflected light produced by interference.” The Patent and Trademark Office (“PTO”) then issued the '902 patent, and the pat-entability of claim 1 was later confirmed in
Oakley manufactures sunglasses having metallic green and blue colored lenses that Oakley refers to as “Emerald” and “Ice” respectively. See Oakley,
Alleging that the sunglasses newly marketed by Sunglass Hut contained infringing lenses, Oakley sued Sunglass Hut on November 6, 2001, for, inter alia, infringement of the '902 patent, and sought a temporary restraining order (“TRO”) and a preliminary injunction. Id. at 1660. The court entered the TRO on November 20, and after briefing and argument, entered a preliminary injunction on December 3. Id. The preliminary injunction order stated: “Defendants ... are hereby enjoined from making, using, importing, selling, or offering to sell any products with Emerald (green) or Ice (blue) lenses that infringe the '902 patent.” Id. at 1669.
In granting the preliminary injunction, the court made findings favorable to Oakley on the issues of irreparable harm, the balance of hardships, public interest, and likelihood of success on the merits. Id. at 1667-68. Sunglass Hut challenged Oakley’s likelihood of success on the merits by arguing that the '902 patent was invalid and not infringed. More specifically, Sun-glass Hut made the following invalidity arguments: (1) the phrase “vivid colored appearance” is indefinite, in violation of 35 U.S.C. § 112, ¶ 2, id. at 1666; (2) Apfel anticipates the '902 patent claims and King misrepresented Apfel to the PTO, id. at 1665; (3) certain Foster Grant sunglass lenses in existence more than one year before the filing of the application that led to the '902 patent anticipate the patent claims, id. at 1663; and (4) the claims would have been obvious, in violation of 35 U.S.C. § 103, in view of certain prior art references, id. at 1665. The court did not agree with Sunglass Hut that any of its arguments raised a substantial question of invalidity. See id. at 1667. On the issue of likelihood of infringement, the court did not accept Sunglass Hut’s argument that King’s prosecution comments regarding Apfel disclaimed coverage of its products, whose color peaks are less than Apfel’s. Id. at 1663.
Sunglass Hut appeals from the district court’s grant of the preliminary injunction. We have jurisdiction under 28 U.S.C. § 1292(c)(1) in view of 28 U.S.C. §§ 1292(a)(1) and 1295(a)(1).
DISCUSSION
A decision to grant or deny a preliminary injunction is within the sound discretion of the district court, based upon its assessment of four factors: (1) the likelihood of the patentee’s success on the merits; (2) irreparable harm if the injunc
An assessment of the likelihood of infringement, like a determination of patent infringement at a later stage in litigation, requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... [Secondly,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc.,
An assessment of the likelihood of validity of a patent claim over the prior art also involves a two-step process. The first step is the same claim construction implicated in an infringement analysis. See Smiths Indus. Med. Sys., Inc. v. Vital Signs, Inc.,
In the context of a preliminary injunction, while “the burden of proving invalidity is with the party attacking validity,” the party seeking the injunction “re-taints] the burden of showing a reasonable likelihood that the attack on its patent’s validity would fail.” H.H. Robertson Co. v. United Steel Deck, Inc.,
Whether the terms of an injunction fulfill the mandates of Federal Rule of Civil Procedure 65(d) is a question of law that we review de novo. Signtech USA, Ltd. v. Vutek, Inc.,
Sunglass Hut argues in this appeal that it raised below substantial questions concerning, inter alia, the indefiniteness, anticipation, and noninfringement of the '902 patent claims. Sunglass Hut also contends that the court clearly erred in evaluating irreparable harm and the balance of hardships. Finally, Sunglass Hut contends that the court’s injunctive order fails to comply with the specificity requirements of Fed.R.Civ.P. 65(d).
A. Claim Definiteness
Sunglass Hut argues that the phrase “vivid colored appearance” appearing in claim 1 is indefinite. Even if vividness is based on the disclosed “differential effect,” according to Sunglass Hut, one skilled in the art cannot tell which values of differential effect qualify as vivid and which do not. Sunglass Hut further contends that the district court did not and could not define the bounds of the phrase.
Oakley responds that the phrase can be defined from the structure, formula, and examples disclosed in the patent. Oakley cites the proposition that compliance with section 112, paragraph 2, does not require a particular number as a cutoff. According to Oakley, the specification’s numerical examples, including some values of differential effect that do create a “vivid colored appearance” and one that does not, are sufficient.
We agree with Oakley that Sun-glass Hut has not raised a substantial question as to whether the phrase “vivid colored appearance” renders the claims indefinite in violation of 35 U.S.G. § 112, ¶ 2. That paragraph provides: “The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.” 35 U.S.C. § 112, ¶ 2 (2000). “The primary purpose of the definiteness requirement is to ensure that the claims are written in such a way that they give notice to the public of the extent of the legal protection afforded by the patent, so that interested members of the public, e.g., competitors of the patent owner, can determine whether or not they infringe. That determination requires a construction of the claims according to the familiar canons of claim construction.” All Dental Prodx, LLC v. Advantage Dental Prods.,
One of those canons is that claims are construed as one skilled in the
Unlike the situation in Marosi, the numerical value of the differential effect in this case is a distinguishing feature over the prior art. That is so because the language of the claim associates vividness with the differential effect, and the specification presents examples of numerical values of the differential effect that either qualify as vivid or do not. More precisely, the language of the claim itself confirms that the lens’s “vivid colored appearance” results directly from the “differential effect.” '902 patent, col. 24, 11. 62-64 (reciting “said differential effect ... producing a vivid colored appearance” in claim 1). Moreover, the claim itself defines the lens’s structural .attributes that produce the “differential effect.” Id. at col. 24, 11. 67-69 (reciting “the reflectance of said semireflective layer and the thickness of said dielectric layer producing ... a differential effect”).
Accordingly, the specification presents a formula for calculating the differential effect for a number of examples in which the differential effect is either great enough to produce a “vivid colored appearance” or not. Those values'that qualify as producing a “vivid colored appearance” range from 5.45% to 405% under various circumstances, whereas the only disclosed value of maximum differential effect that does not produce a “vivid colored appearance” is 2.3%. Id. at col. 9,11. 59-65. Thus, while the specification does not indicate so explicitly, the dividing line must be somewhere between 2.3% and 5.45%. Although the difference between those values is seemingly slight, and comparison of one differential effect value to another may present an apples-to-oranges problem due to the different reference intensities involved, the specification purports to indicate that the difference is significant, brushing aside any comparison difficulties. See '902 patent, col. 11,11. 5-16 (purporting that differential effects of 5.45% above X.D and 25.96% above \A are “much larger than the ~ 2.2% found for the 90% reflecting case” (emphasis added)); see also id. at col. 12,11. 37-40 (purporting that 7.5% is “much greater than that obtained (± 2.2%) for a 90% reflecting layer case” (emphasis added)). Faced with those examples and comments, we conclude that one skilled in the art would, in reasonable likelihood, understand that a lens exhibiting a maximum ■ differential effect not substantially greater than 2.2% does not have a “vivid colored appearance.”
Indeed, we conclude that one skilled in the art would interpret the phrase “vivid
That is not to say that Sunglass Hut cannot ultimately succeed on the merits of its indefiniteness argument later in the litigation, after further development of the record. We simply hold that, recognizing the presumption of validity and the fact that the '902 patent has already been subjected to reexamination, Oakley has at this point in the case shown that it is reasonably likely to withstand such a validity challenge.
B. Anticipation
1. Apfel
Sunglass Hut, once again attempting to take another bite at Apfel, argues that Apfel, particularly Figures 1-5 of the Apfel patent, anticipates claim 1. According to Sunglass Hut, the PTO allowed the '902 patent claims over Apfel only because King misrepresented to the PTO that Ap-fel’s middle layer of INCONEL is 94% reflective, rather than “semireflective,” as called for in claim 1. To support its allegation of misrepresentation, Sunglass Hut points to other, allegedly inconsistent statements by King concerning Apfel.
Oakley responds that Apfel’s middle layer is highly reflective and thus no different from the admitted prior art depicted in Figure 5(b) of the '902 patent. Oakley also contends that the PTO twice allowed the '902 patent claims over Apfel, and that King’s statements concerning the reflectivity of Apfel’s INCONEL layer, when properly understood, are neither inconsistent nor misrepresentative of the facts of Apfel’s disclosure.
Sunglass Hut’s Apfel argument succeeds no better here than it has previously. We agree with Oakley that Apfel, like Figure 5(b), is different from what is claimed in the '902 patent. Apfel discloses a number of multilayer lenses, the relevant one of which is a three-layer lens depicted in Figure 1. '291 patent, fig. 1. The three layers are a substrate 21, a metal layer 26, and a dielectric layer 27, in that order. Id. at col. 2, 11. 40-51. The metal layer 26 is further described as being INCONEL 67.5 millimicrons thick. Id. at col. 3, 11. 19-21, 28-30. Apfel states that an object of his invention is to provide “strong color.” Id. at col. 1,11. 33-36, col. 3,11. 60-62. Whether Apfel’s “strong color” equates with “vivid colored appearance” as that phrase is used in the '902 patent we need not decide,
Sunglass Hut’s only evidence that Ap-fel’s metal layer 26 is “semireflective” seems to be King’s deposition testimony that INCONEL’s reflectance is “very low” and King’s statements during prosecution of another patent application, in which Sunglass Hut contends that King stated that the same reflectance is 20%. Both of those statements, according to Sunglass Hut, contradict King’s statement before the PTO during prosecution of the application that led to the '902 patent that Apfel’s
The district court found Sunglass Hut’s evidence unconvincing, noting that the PTO twice allowed the '902 claims over Apfel. Oakley,
In sum, Sunglass Hut has not raised a substantial question whether Apfel anticipates the '902 patent claims. Of course, as the litigation progresses Sunglass Hut may try to present even more evidence (e.g., physical measurements of the lenses Apfel describes) that Apfel’s metal layer 26 is “semirefleetive” and that Apfel’s disclosed lenses otherwise satisfy all of the claim limitations.
2. Foster Grant
Sunglass Hut next argues that certain sunglass lenses sold by Foster Grant more than one year before the filing of King’s application are prior art to the '902 patent under 35 U.S.C. § 102(b). To support this assertion, Sunglass Hut submitted a number of declarations describing the Foster Grant lenses. According to Sunglass Hut, those declarations corroborate each other and are corroborated by contemporaneous memoranda. Sunglass Hut contends that the court failed to recognize that corroboration and, moreover, misread the declarations when it found that the Foster Grant lenses were like those depicted in Figure 5(b) in the '902 patent and therefore lacked a “vivid colored appearance.”
Oakley responds that the declarations do not establish that the reflectance of the middle layer and thickness of the dielectric layer in the Foster Grant lenses created a differential effect, as claim 1 requires. Oakley also contends that the supposed corroboration is similarly deficient, and that the declarations cannot cross-corroborate each other.
We agree with Oakley that the district court’s finding that the Foster Grant declarations fail to raise a substantial question of anticipation is not clearly erroneous. While the Foster Grant declarations do state that the Foster Grant prior art lenses had a “vivid colored appearance” produced by a “differential effect between light reflected from the dielectric and light transmitted through the dielectric and reflected from the semirefleetive [chromium layer],” e.g., Declaration of Theodore A. Haddad at 5, Oakley, (No. SA CV 01-1065 AHS), such statements are conclusory. For example, no basis is provided to explain why the chromium layer is asserted to be “semirefleetive.” Moreover, the declarations fail to address whether the thickness of the dielectric layer is causally related to the alleged differential effect. As another example, there is no quantitative assessment of the differential effect to support the conclusion that a “vivid colored appearance” is produced.
Because the Foster Grant declarations are facially deficient, whether corroborated or not, we need not address the corroboration issue. We caution again that our decision on this issue at this stage in the case carries no implication that Sunglass Hut cannot prevail on the merits after fuller development of the evidence.
C. Infringement
The preliminary injunction against Sun-glass Hut can be upheld only if Oakley has demonstrated a reasonable likelihood of prevailing on the infringement issue at trial. See Amazon.com,
In this case, we, not the district court, have provided the construction of one of the relevant claim limitations — “vivid colored appearance.” Because the parties before the district court did not have the benefit of our construction in terms of quantitative differential effect, Oakley did not present evidence of infringement tracking that construction; nor did Sun-glass Hut have an opportunity to respond to the infringement issue in terms of that construction. Rather than construing the language and determining whether the accused lenses meet that aspect of the claims, the district court focused its infringement analysis on the structure of the accused lenses. In particular, the court made factual findings regarding the thickness of the accused’s dielectric layer, Oakley,
We conclude that the court’s undisputed factual findings do establish that Oakley has indeed shown a likelihood of infringement. In making the pertinent factual findings regarding the structure of the accused lenses, the district court relied heavily on the declaration of Oakley’s optics expert, Dr. Jack Feinberg. As explained in the part of that declaration cited by the court, the thickness of the dielectric layer and the reflectivity of the semireflec-tive layer in the Sunglass Hut lenses are within the same ranges as the embodiments disclosed in the '902 patent’s specification. Because those disclosed embodiments have a differential effect sufficient to produce a “vivid colored appearance,” the accused lenses should necessarily also exhibit a differential effect that produces a “vivid colored appearance.” It follows that Oakley’s evidence of structural similarity is indirect evidence of a sufficiently high differential effect. Thus, the district court’s factual findings support its conclusion that the accused lenses are likely to infringe.
Sunglass Hut argues that the prosecution history limits the meaning of the phrase “vivid colored appearance” to color peaks having a magnitude greater than those depicted in Apfel’s Figure 4. Because the accused lenses have smaller color peaks, Sunglass Hut contends that they cannot infringe. Oakley responds that Sunglass Hut did not propose such a con
Sunglass Hut’s proposed construction of the phrase “vivid colored appearance” is based on an incorrect reading of the prosecution history. As discussed above, King distinguished his invention from Apfel during prosecution on the basis of the lens structure, specifically the fact that Apfel’s middle layer 26 was not “semireflective.” Although King also stated that Apfel’s “Figure 4 does not indicate a strong color peak,” that one vague statement from the prosecution history does not have much bearing on the meaning of the claim phrase “vivid colored appearance,” which we derive from the specification’s clear teachings, as detailed above. Sunglass Hut has therefore not made convincing arguments that the district comb erred in finding a reasonable likelihood that Oakley would succeed on the merits of its infringement assertion.
In sum, because Oakley presented evidence sufficient to establish a likelihood of infringement, we affirm the district court’s finding of a likelihood of infringement.
D. Nonr-Merits Factors
1. Irreparable Harm
Sunglass Hut principally argues that because Oakley failed to make a strong showing of likely success on the merits, irreparable harm cannot be presumed. Oakley responds that it is entitled to the presumption. Furthermore, Oakley contends that it established actual irreparable harm by evidence of exclusive market share and Sunglass Hut’s sizable impending marketing efforts.
We agree with Oakley that it has made a sufficiently strong showing of likelihood of success on the merits to entitle it to a presumption of irreparable harm. See Amazon.com,
2. Balance of Hardships
Sunglass Hut argues that the court performed no true balancing when
We conclude that the court’s factual finding regarding the balance of hardships is not clearly erroneous. The court expressly acknowledged that the injunction would cause Sunglass Hut some hardship, id., but the court determined that the harm to Oakley without issuance of the injunction would be greater. That determination was supported by ample evidence and was not clearly erroneous.
E. Adequacy of the Injunctive Order Under Rule 65(d)
Sunglass Hut’s final argument is that the injunctive order does not satisfy the specificity requirement of Fed.R.Civ.P. 65(d) because Sunglass Hut does not sell lenses or sunglasses denominated “Ice (blue)” or “Emerald (green),” which are Oakley’s trade names. Sunglass Hut further contends that the order is not limited to the accused lenses, nor does it specify which shades of green or blue are infringing. According to Sunglass Hut, its recall may have been too broad or too narrow, and the order’s vagueness prevents it from designing around the patent.
Oakley responds that the order’s reference to colors is sufficiently specific, and that the order is clear in the context of the record in this case. Moreover, according to Oakley, Sunglass Hut understands the scope of the order, as evidenced by its response to the TRO.
We agree with Oakley that the order complies with Rule 65(d), which states:
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance, shall be specific in terms, shall describe in reasonable detail, and not by reference to the complaint or other documents, the act or acts sought to be restrained....
Fed.R.Civ.P. 65(d). The purposes of that rule are to minimize confusion as to how the enjoined party can conform its conduct with the order, Int'l Longshoremen’s Ass’n, Local 1291 v. Phila. Marine Trade Ass’n,
The language of the present order is sufficiently specific. It is true that it is directed only at Sunglass Hut products having two particular types of lenses, designated by trade names of Oakley: “Emer-
Sunglass Hut’s argument that it cannot with any degree of certainty attempt to design around the preliminary injunction likewise fails in light of the record of this case. Whether Sunglass Hut can redesign the two types of enjoined lenses such that they are not likely to be found infringing is an open question. If, for example, Sun-glass Hut can produce lenses having a demonstrable maximum differential effect less than about 5.45%, such lenses would not literally infringe the '902 patent claims by failure to have a “vivid colored appearance,” as we have construed that phrase for purposes of the preliminary injunction. The district court might conclude that such a redesign is not reasonably hkely to infringe the '902 patent. In any event, the wording of the order is sufficiently clear and leaves open to Sunglass Hut such avenues of argument.
In sum, we perceive no legal error in the district court’s wording of-the preliminary injunction.
CONCLUSION
The district court did not abuse its discretion in granting the preliminary injunction, and the injunctive order complies with Rule 65(d). Accordingly, we
AFFIRM.
Notes
. During reexamination, King corrected a typographical error, changing the word “smi-reflecting” to "semireflective,” but did not otherwise amend claim 1. U.S. Patent B1 5,054,902, col. 1, 1. 45 (reexamination certificate).
. Sunglass Hut argues that King admitted during his deposition that the terms "vivid” and "strong” are synonymous. We consider that testimony to be of little value in the definiteness analysis or claim construction. See Solomon v. Kimberly-Clark Corp.,
. Although we uphold the court's finding of a likelihood of infringement, we caution that we do so under a claim construction that is preliminary. Just as a district court can issue "tentative” or “rolling” claim constructions when "faced with construing highly technical claim language on an expedited basis,” such as in a preliminary injunction proceeding, Jack Guttman, Inc. v. Kopykake Enters., Inc.,
Concurrence Opinion
concurring.
This is a close and difficult case. I generally agree with the majority opinion, but write separately to emphasize three points. First, the majority’s tentative claim construction in response to the indefiniteness argument may or may not be correct. Presumably at trial those of ordinary skill in the art will testify as to whether the specification should be so interpreted by the skilled artisan. At. the preliminary injunction stage the claims enjoy a presumption of validity. Appellants have not shown that a person having ordinary skill in the art could not interpret the language of the claims in a sufficiently definite manner. That skilled artisan would have the details provided in the written description including specific examples. The record before us, in view of the presumption of validity of the claims, is simply insufficient for us to conclude that Oakley has failed to meet its burden of showing a likelihood of success on the merits of the validity of the claims under 35 U.S.C. § 112, ¶ 2, or that appellants have raised a “substantial question” of invalidity. Amazon.com, Inc. v. Barnesandnoble.com, Inc.,
Second, in my view, we should not be applying a new claim construction to the facts of this case to uphold a district court’s discretionary preliminary injunction as the majority does, ante at 1344. See Bell & Howell Document Mgmt.
Finally, the parties at trial are free to offer new claim constructions to the district court and evidence as to why the accused lenses do or do not infringe under those claim constructions. Guttman,