U.S. Philips Corporation appeals from a final judgment entered pursuant to Fed. R.Civ.P. 54(b) in favor of Iwasaki Electric Company Ltd. by the United States District Court for the Southern District of New York. Specifically, U.S. Philips challenges the district court’s decision to limit U.S. Philips’s right of recovery to acts of infringement after the complaint was filed, based on a failure of notice; its claim construction ruling relating to U.S. Patent No. 5,109,181 (“the '181 patent”); and its decision to grant partial summary judgment of noninfringement as to those accused products not subject to the temporal limitation of liability. Because Iwasaki was properly on notice of potential infringement before the filing of the complaint, we reverse the district court’s determination that notice was inadequate until the instant suit was filed and the concomitant limitation of liability. We affirm the district court’s claim construction, and with it the entry of partial summary judgment of no literal infringement. Finally, because the district court erred in concluding that the doctrine of equivalents is foreclosed as to the disputed claim limitation, we vacate the partial summary judgment of nonin-fringement under the doctrine of equivalents, and we remand for consideration of *1373 infringement under the doctrine of equivalents as well as for consideration of literal infringement from June 7, 2000, the date notice was provided, until the filing of the complaint.
I. BACKGROUND
The '181 patent is directed to high-pressure mercury vapor discharge lamps filled with a gaseous mixture in which “at least one of the halogens Cl, Br or I is present in a quantity between 10 and 10 ^ irmol/mm3.” '181 patent, claim 1. The halogen transports tungsten evaporated during the normal operation of the lamp back onto the electrodes, creating “an improved color rendition and a longer life.” Id., col. 1,1. 49.
U.S. Philips is the assignee of the '181 patent. On June 7, 2000, Mr. Rolfes, an employee of Philips International B.V., Corporate Intellectual Property, sent Iwa-saki a letter on Philips International B.V. letterhead (“the Rolfes letter”). That letter notified Iwasaki of potential infringement of “at least four of our patents and patent applications” by Iwasaki’s UHE-U HSCR 120 E5H lamp. The '181 patent was listed in the letter, and a copy of the patent was enclosed. The letter also contained an offer for a non-exclusive license. The letter did not identify U.S. Philips as the patent owner or identify Mr. Rolfes as an attorney, nor did it disclose the corporate relationship between U.S. Philips and Philips International B.V. The letter did, however, identify Mr. Rolfes as “Patent Portfolio Manager,” speaking on behalf of “Corporate Intellectual Property, Philips International B.V.” Before the district court, witnesses for U.S. Philips testified that the corporate intellectual property department of Philips International B.V. is responsible for prosecution, licensing, and enforcement of many of the patents that belong to the Philips family of companies, including patents assigned to U.S. Philips Corporation. U.S. Philips Corporation is “an IP holding company on behalf of ... the overall Philips organization” and has no employees.
U.S. Philips filed suit against Iwasaki, alleging infringement of independent claim 1 of the '181 Patent, which reads in relevant part:
A high-pressure mercury vapor discharge lamp comprising ... a filling essentially consisting of mercury, a rare gas, and a halogen for maintaining a tungsten transport cycle during lamp operation, characterized in that ... at least one of the halogens Cl, Br or I is present in a quantity between 10 ~6 and 10 ~4 ixmol/mm3.
'181 patent, claim 1. The district court construed the phrase “a quantity between 10 and 10 |xmol/mm3” as “a quantity between 1 divided by 1,000,000 and 1 divided by 10,000 micromoles per cubic millimeter,” or, in alternative terms also stated by the district court, “a quantity between 1 x 10 and 1 x 10-4 ¡xmol/mm3.”
U.S. Philips Corp. v. Iwasaki Electric Co.,
No. 1:03-CV-172-PKC, slip op. at 9,
In a subsequent partial summary judgment opinion, the district court confronted the question of whether the Rolfes letter provided adequate notice within the meaning of 35 U.S.C. § 287(a).
U.S. Philips Corp. v. Iwasaki Electric Co.,
No. 1:03-CV-172-PKC, slip op. at 5-8,
The district court then proceeded to grant summary judgment of noninfringement both as to literal infringement and under the doctrine of equivalents. As to literal infringement, and looking only to lamps sold or manufactured after January 8, 2003, the court concluded that Iwasaki’s entire target concentration range of 1.6 ± 0.4 x 10 pmol/mm3 “unquestionably exceeds the 10 (1/10,000) |xmol/mm3 disclosed in the patent,” and noted that U.S. Philips did not challenge the factual accuracy of Iwasaki’s claims that it had not made or sold any lamps during the relevant period with a bromine concentration below 1.0 x 10 A Id. at 10-11. The court therefore held that summary judgment of noninfringement was appropriate. Under the doctrine of equivalents, the court held that a finding of infringement would vitiate the claim limitation that “a ‘quantity’ ... is ‘present’ and that ‘quantity’ is ‘between’ one value ‘and’ another.” Id. at 18. Accordingly, it concluded that recourse to the doctrine of equivalents was foreclosed as a matter of law.
U.S. Philips appeals the district court’s limitation of liability to acts of infringement after the complaint was filed, the claim construction, and the entry of summary judgment as to infringement by equivalents. We have jurisdiction under 28 U.S.C. § 1295(a)(1).
II. DISCUSSION A. Standard of Review
We exercise plenary review over claim construction.
Cybor Corp. v. FAS Techs., Inc.,
Summary judgment is generally appropriate where, after making all inferences in favor of the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett,
B. Notice Under 35 U.S.C. § 287(a)
We begin with the question of whether the Rolfes letter provided notice of alleged infringement sufficient to satisfy 35 U.S.C. § 287(a). When there has been a failure to mark a patented product, 35 U.S.C. § 287(a) forecloses damages for infringement “except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for infringement shall constitute such notice.”
We have held that actual notice under § 287(a) “requires the affirmative communication of a specific charge of infringement by a specific accused product or device.”
Amsted Indus. Inc. v. Buckeye Steel Castings Co.,
Iwasaki argued before the district court and reiterates here that the Rolfes letter was deficient under
Lans
because it was not sent by, and did not reference, the patent owner U.S. Philips. The district court held in Iwasaki’s favor on both of these grounds. We disagree.
Lans
is distinguishable and does not support Iwasaki’s position. First, unlike the facts in
Lans,
the front page of the '181 patent, which was enclosed with the Rolfes letter, correctly identifies “U.S. Philips Corporation, New York, N.Y.” as the as-signee. Although the assignation printed on the face of a patent is not a conclusive indication of the patent’s current ownership, we hold that when the information printed on the patent is correct, it is enough to put an accused infringer on notice of the patentee’s identity. Second, although the Rolfes letter did not purport to come from U.S. Philips Corporation, it is undisputed that Philips International B.V. had the ultimate responsibility for licensing and enforcement of the '181 patent. Thus, the reasons we articulated in
Lans
for strictly enforcing the notice requirement were all fulfilled: Philips International B.V. — the sender of the letter— was the party “to contact ... about an amicable and early resolution of the potential dispute,” “to consult with ... about design changes to avoid infringement,” and with whom “to negotiate a valid license.”
Lans,
C. Claim Construction
We next turn to the question of claim construction. U.S. Philips argues that the term “between 10~6 and 10 ixmol/mm3” expresses a range of orders of magnitude, not a range of more-precise numbers, and that it was therefore error for the district court to construe the claim to mean “between 1 x 10-® and 1 x 104 |xmol/mm3.” According to U.S. Philips, one of ordinary skill in the art of lamp chemistry would understand “10 to mean something different and less precise than “1 x 10 i.e., the absence of a coefficient (“1”) means that the term encompasses all values that are closer on a logarithmic scale to 10 than to 10 ~5 or 10 ~3, or a range of approximately 3.2 x 10 "5 to 3.2 x 10 A 1 Thus, according to U.S. Philips, the full range should be construed as approximately 3.2 x 10~7 to 3.2 x 10 ~i ¡xmol/mm3, and Iwasaki’s lamps with admitted halogen concentrations of 1.2 x 10 ^ to 2.0 x 10 p,mol/mm3 literally infringe.
We disagree with U.S. Philips and, like the district court, conclude that the claim limitation is properly construed to mean “between 1 x 10and 1 x 104 |rmol/mm3.” Although the upper and lower bounds of the claimed range are expressed as powers of ten, this alone is no reason for treating them as anything other than the ordinary numbers that they are. As the district court observed, the overall phrase — “a quantity between --- and -” — is a construction that “implies a specific range.... It does not imply a range between two values which are themselves ranges.” Claim Construction Opinion at 8. The limitation does not refer to either bound as a range, an order of magnitude, or an approximation.
The specification fully supports this construction. In the LAMP 1 embodiment, under the heading “halogen,” the '181 patent refers to “5 • 10 ~6 p,mol of CH2Br2 [/mm3] (10 ~5 |rmol of Br/mm3).” '181 patent, col. 3, 11. 53-54. The parenthetical expression apparently refers to the fact that one molecule of CH2Br2 contains two bromine atoms, so the concentration of atomic bromine (Br) should be double the concentration of CH2Br2 — two times 5 x 10-6, or 1 x 10 -5. See Tr. of 11/22/2005 motion hearing at 57, 11. 10-11 (Dist Ct. Dckt. No. 64; Fed. Cir. J.A. 1233) (“You simply multiply the number on the first line by 2 because there are two bromines in every mole.”). This suggests that “10 ~5 ” is used as a synonym for “1 x 10 ~5.” Moreover, the LAMP 1 example specifies particular quantities for a number of attributes of the embodiment: e.g., an envelope volume of 23 mm3, filling mercury at a concentration of 0.261 mg/mm3, and power of 50W. It would be odd to infer in this context that “10 ~5 |xmol of Br/mm3,” alone among the specified quantities, refers to a range or order of magnitude, solely because it uses a power of ten. Indeed, there is no use of a power-of-ten quantity such as 10anywhere in the specification that requires the broader construction that U.S. Philips advocates. We therefore affirm the district court’s claim construction of the halogen range “between 10 ~e and 10 |xmo]/mm3” as meaning “between 1 x 10 ~6 and 1 x 104 pjnol/mm3.”
*1377 However, there remains the question of how this construction is to be applied to the accused lamps. Before the district court, U.S. Philips argued that even under a claim construction of “between 1 x 10-6 and 1 x 104 ixmol/mm3,” a lamp with a halogen concentration toward the lower end of Iwasaki’s admitted range — for instance, with a concentration of 1.2 x 10 ^ |xmol/mm3 — might still literally infringe due to rounding. The question of whether and how to apply rounding, it argued, is a question of fact that should have been left for the jury rather than decided as part of the claim construction or at summary judgment. See Summary Judgment Opinion at 11. The district court disagreed and held that the question of whether to apply rounding should be treated solely as a claim construction issue that did not present any factual questions for a jury. Id. at 12. U.S. Philips declined to argue its position as to rounding as a matter of claim construction, instead limiting its claim construction argument to its contentions regarding the meaning of the phrase “between 10 "6 and 10 ~4 |imol/mm3 ,” as discussed supra. Id. at 13.
In its opening brief on appeal, U.S. Philips does not challenge the district court’s decision to treat the question of rounding as an issue of claim construction, nor does it challenge the district court’s entry of summary judgment of no literal infringement under the district court’s claim construction. Its sole infringement arguments on appeal are that the bounds of the claimed range refer to orders of magnitude rather than ordinary numbers — the claim construction argument we reject above— and that the doctrine of equivalents should have been available, an argument we address below. Accordingly, we deem the argument based on rounding to have been waived as to the Iwasaki products that the district court considered.
See SmithKline Beecham Corp. v. Apotex Corp.,
We emphasize that the claim construction we affirm today should not be read to state the endpoints of the claimed range with greater precision than the claim language warrants. In some scientific contexts, “1” represents a less precise quantity than “1.0,” and “1” may encompass values such as 1.1 that “1.0” may not.
See Viskase Corp. v. Am. Nat’l Can Co.,
The claim construction that we affirm today is “between 1 x 10 _6 and 1 x 104 (xmol/mm3,”
not
“between 1.0 x 10 "6 and 1.0 x 10 gmol/mm3.” We leave for another day the question of whether this claim construction is sufficient to answer the infringement questions presented by a future record.
See E-Pass Techs., Inc. v. 3Com Corp.,
D. Infringement Under the Doctrine of Equivalents
The final issue on appeal is whether the doctrine of equivalents is available to extend the claimed concentration range beyond its literal scope. The district court held that the language of the claim was “intended to establish the demarcation of boundaries” and that those boundaries were expressed with “the type of precision that is closely analogous to the metes and bounds of a deed of real property.”
Summary Judgment Opinion
at 18. Thus, the district court reasoned, a finding of infringement would vitiate the claim limitation, and resort to the doctrine of equivalents is foreclosed as a matter of law.
Id.
at 18-19. U.S. Philips argues that the district court’s decision misreads our precedent regarding vitiation and is inconsistent with our decision in
Abbott Laboratories v. Dey, L.P.,
We agree with U.S. Philips and conclude that resort to the doctrine of equivalents is not foreclosed with respect to the claimed concentration range. In
Abbott Laboratories,
we noted that “the fact that a claim recites numeric ranges does not, by itself, preclude ... [reliance] on the doctrine of equivalents.”
Iwasaki contends that our decisions in
Moore U.S.A., Inc. v. Standard Register Co.,
Our decision in
Moore
was based on the claim’s use of the term “majority,” a claim limitation that is qualitatively different from a range.
See
Likewise, the use of “between” in
Cooper Cameron
described a spatial relationship among two “plugs” and a “workover port” that was claimed as lying “between” them on a subsea wellhead.
For similar reasons, Elekta’s use of a claim limitation containing the word “only” presents a question more akin to
Moore
than to
Abbott Labs, Wamer-Jenkinson,
or the instant case.
In short, this case is distinguishable from Moore,
Cooper Cameron,
and Elekta and indistinguishable from
Abbott Labs
and
Wamer-Jenkinson.
Here, as in
Abbott Labs
and
Wamer-Jenkinson,
a numeric range is claimed. The language “between x and y” of the present case has the same meaning as the phrase “x — y” of
Abbott Labs.
Likewise, the phrase is also essentially the same as that used in
Warner-Jenkinson,
with the exception of the absence of the qualifier “approximately.” However, terms like “approximately” serve only to expand the scope of literal infringement, not to enable application of the doctrine of equivalents. Notably, the Supreme Court in
Wamer-Jenkinson
did not even mention the qualifier in allowing consideration of the doctrine of equivalents.
Iwasaki’s final argument against application of the doctrine of equivalents is that
*1380
the upper concentration limit here was included to avoid a prior art German patent, DE-AS 14 89 417, and its American counterpart, U.S. Patent No. 3,382,396 (collectively, both here and at the district court, “the Holmes reference”). The Holmes reference disclosed lamps with a halogen concentration of 5 x 10 ^ to 5 x 10 "2 ixmol/mm3. '181 patent, col. 1,11. 22-23. Iwasaki analogizes the inclusion of an upper bound that avoids Holmes to prosecution history estoppel and argues that U.S. Philips must demonstrate that it has not “surrendered] the particular equivalent in question.”
Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd.,
For the above reasons, we vacate the district court’s summary judgment of non-infringement under the doctrine of equivalents. On remand, the district court should consider on a lamp-by-lamp basis whether Iwasaki’s lamps infringe under the doctrine of equivalents. We do not foreclose partial or complete resolution of this issue at summary judgment based, inter alia, on development of the record on remand with respect to alleged acts of infringement after the date of the Rolfes letter and prior to the filing of the complaint.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED-IN-PART, REVERSED-IN-PART, VACATED-IN-PART, AND REMANDED.
COSTS
No costs.
Notes
. In other words, under U.S. Philips's proffered construction, the term "10 W as an order of magnitude, encompasses a range of values from 10 and 10 _3-5 — the set of numbers with base-10 logarithms that round to - 4. This range is approximately 3.2 x 10 _5 to 3.2 x 10 A Mathematically, 10-4-5 = 10 °-5 x 10-5 = V 10 x io-5, and iq-3.5 = io 0.5 x 10 = V 10 x 10-4; the square root of 10 is approximately 3.2.
. In so doing, we do not decide whether and to what extent this waiver applies to further proceedings in this case on remand with respect to alleged literal infringement occurring between the Rolfes letter and the filing of the complaint.