**United States Court of Appeals for the Federal Circuit**

03-1606

MARLANE C. SEARFOSS and TIMOTHY K. SEARFOSS,

> Plaintiffs-Appellants,

v\.

PIONEER CONSOLIDATED CORPORATION,

> Defendant-Appellee.

[John A. Artz]{.underline}, Artz & Artz, of Southfield, Michigan, argued
for plaintiffs-appellants. Of counsel were [John S. Artz]{.underline}
and [Robert P. Renke]{.underline}.

[Thomas E. Bejin]{.underline}, Young & Basile, P.C., of Troy, Michigan,
argued for defendant-appellee. Of counsel on the brief was [Thomas N.
Young]{.underline}.

Appealed from: United States District Court for the Eastern District of
Michigan

Judge Robert H. Cleland

United States Court of Appeals for the Federal Circuit

03-1606

MARLANE C. SEARFOSS and TIMOTHY K. SEARFOSS,

> Plaintiffs-Appellants,

v\.

PIONEER CONSOLIDATED CORPORATION,

> Defendant-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: July 6, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before NEWMAN, MICHEL, and SCHALL, [Circuit Judges]{.underline}.

MICHEL, [Circuit Judge]{.underline}.

Plaintiffs-Appellants Marlane and Timothy Searfoss (collectively
"Searfoss") appeal from an order granting summary judgment of
non-infringement to Pioneer Consolidated Corporation ("Pioneer") based
on a finding that no reasonable jury could find that Pioneer's accused
products infringe the claims of United States Patent No. 5,031,955 ("the
'955 patent") under the doctrine of equivalents, the sole type of
infringement asserted. [Searfoss v. Pioneer Consol. Corp.]{.underline},
No. 99-CV-76394-DT (E.D. Mich. Aug. 6, 2003) ("[Summary Judgment
Order]{.underline}"). Because we find that the district court did not
err in either its construction of the disputed claim terms or its
resulting finding of non-infringement as a matter of law under the
doctrine of equivalents, we affirm.

BACKGROUND

On June 4, 1999, Searfoss filed suit against Pioneer for the alleged
infringement of the '955 patent through its sale of moveable cover
systems for truck beds. The '955 patent relates to:

> A truck cover is provided \[that\] includes a flexible cover for
> selectively covering and uncovering the load bed of a truck. A winding
> assembly is mounted on the front end of the load bed and includes a
> reel for winding a flexible cover. A motor drives the reel through a
> worm drive. An extension assembly is provided which includes a pivoted
> rear bail connected to the rear and \[sic\] of the cover and a spring
> bias assembly which pivots the bail to the rear of the truck so as to
> extend the cover over the bed. A tension assembly is provided which
> utilizes a tension bail over the front of the cover having legs which
> are attached to the rear bail so the tension bail is lowered onto the
> front of the cover as the rear bail unwinds the cover from the winding
> assembly. Each leg of the rear bail is secured to the load bed through
> an offset pivot through which bias forces are transmitted when the
> cover is wound on the winding assembly to reduce strain on the winding
> assembly motor.

'955 patent, Abstract. The claimed invention of the '955 patent was
aimed at solving two problems in the truck bed cover art: (1) ease of
use and (2) a gap between the side of the truck bed and the cover
proximate to the front of the truck (near the cab) that allowed wind to
blow under the cover and disturb particles or items in the truck bed.
The claimed invention sought to resolve these problems by providing a
truck cover that may be "conveniently motor operated from the cab of a
truck while simultaneously extending the cover over the truck bed and
pressing down on the front of the cover proximate a winding assembly
which winds up the cover at the front of the truck bed."
[Id.]{.underline} at col. 1, ll. 23-29. A diagram of a preferred
embodiment is set out below:

> ![](media/image1.jpeg){width="5.320138888888889in"
> height="2.979861111111111in"}

Searfoss argues that Pioneer infringes claim 3 of the '955 patent, which
reads:

> A cover assembly for covering a vehicle load bed defined by first and
> second ends and first and second sides, said cover assembly
> comprising, in combination, a flexible cover; a winding assembly for
> winding and storing said cover so as to uncover said load bed, said
> winding assembly including a reel proximate said first load bed end
> and winding means for winding said cover on said reel; an extension
> assembly for extending said cover over said load bed, said extension
> assembly including an extension bail, said extension bail including a
> cover support section substantially extending across said load bed and
> first and second legs, each of said extension bail legs being
> connected to said cover support section and respectively extending
> downwardly to said first and second sides of said load bed, extension
> bail attachment means for attaching each of said extension bail legs
> to said load bed sides, and bias means for biasing said extension bail
> cover support section toward said second load bed end so as to extend
> said cover over said load bed; and a tension bail assembly for
> pressing downwardly on said cover proximate said first load bed end,
> said tension bail assembly including a center section substantially
> extending across said load bed and first and second legs, said first
> and second tension bail legs each having one end connected to said
> tension bail center section and another end respectively extending
> downwardly to said first and second sides of said load bed, and
> [actuation means for connecting said tension bail to said extension
> assembly and applying a downward force through said tension bail
> center section to said cover]{.underline}, said actuation means
> including first and second pivot connections respectively between said
> first and second tension bail legs and a midpoint on said respective
> first and second extension bail legs so as to selectively apply said
> downward force on said cover proximate said load bed first end while
> said cover is extended over said load bed by said extension assembly
> by lowering said tension bail onto said cover while said cover is
> being extended over said load bed [whereby said load bed is
> selectively covered by said extension assembly pulling said cover off
> said reel so as to extend said cover over said load bed toward said
> second load bed end while said tension bail assembly applies said
> downward force on said cover over said load bed proximate said first
> load bed end and said load bed is selectively uncovered by said
> winding assembly winding said cover onto said reel while said tension
> bail assembly downward force is substantially reduced on said cover
> proximate said first load bed end.]{.underline}

[Id.]{.underline} at col. 6, l. 28 -- col. 7, l. 8 (emphases added).
Though Searfoss concedes that Pioneer does not infringe the '955 patent
literally, Searfoss alleges infringement under the doctrine of
equivalents. A diagram of the accused product is set out below:[^1]

> ![](media/image2.jpeg){width="5.240277777777778in"
> height="3.170138888888889in"}

On September 13, 2002, the district court issued its Markman Order
construing claim 3 of the '955 patent. [Searfoss v. Pioneer Consol.
Corp.]{.underline}, No. 99-CV-76394-DT (E.D. Mich. Sept. 13, 2002)
("[Markman Order]{.underline}"). Though the district court construed
each limitation of the claim, its written decision focused on the term
"actuation means for connecting said tension bail to said extension
assembly and applying a downward force through said tension bail center
section to said cover." The district court held the term to be a
means-plus-function limitation under section 112(6), with two claimed
functions: (1) to connect the tension bail and extension assembly; and
(2) to apply a downward force through the tension bail to the cover.
[Markman Order]{.underline} at 6.

With respect to the first function, the parties debated whether the term
"connecting" required a direct connection or could include a tangential
connection, such as through the cover. Searfoss argued that an indirect
connection is still a "connection" while Pioneer argued that "connect"
requires a direct pivotal connection. In support of its contention,
Searfoss cited to dictionary definitions of "connect." The court held
that, as used in claim 3, the term "connecting" requires a direct
pivotal connection between the tension bail and the extension assembly,
such that, in the context of claim 3, "connecting" is synonymous with
"attaching." [Id.]{.underline} at 7. The court further held that the
actuation means could not include the cover because one function of the
actuation means is to apply downward force to the cover and a
construction of actuation means to include cover would be "nonsensical."
[Id.]{.underline} at 6-7.

With regard to the second function, Pioneer asserted that the downward
force applied through the tension bail is substantially reduced as the
cover is being wound onto the reel, and that to achieve this, a direct
pivotal connection between the tension bail and the extension assembly
is necessary to decrease the force upon rewinding. Searfoss argued that
the downward force is nothing but gravity, and that no direct connection
is required to achieve this downward force. Searfoss also argued that
the reduction in force need not occur upon rewinding; instead, all that
is required is that the force on the cover needs to be substantially
reduced when the bed is in an uncovered state, as opposed to when the
bed is covered. The district court held that, based on the language of
the claim, a direct pivotal connection is necessary to perform the
second function of the actuation means. [Id.]{.underline} at 9. Though
the district court agreed with Searfoss that gravity supplies the
downward force (and noted that no other explanation was plausible), the
district court held that because the actuation means is described in
relation to its function of applying a downward force through the
tension ball onto the cover, there must be some relation between the
actuation means and the downward force. [Id.]{.underline}

The court found further support for this interpretation in the final
section of the claim ("said load bed is selectively uncovered by said
winding assembly winding said cover onto said reel while said tension
bail assembly downward force is substantially reduced on said cover
proximate said first load bed end") because it found the "winding . . .
while" language to indicate that the downward force is substantially
reduced at the same time the cover is winding back onto its reel.
[Id.]{.underline} The court found that the direct pivotal connections
between the tension bail and the extension assembly are what makes this
possible \-- as the cover is wound onto the reel, the extension assembly
is pulled toward the cover, simultaneously decreasing the downward
force. [Id.]{.underline} The court pointed to the specification, which
states that "the extension assembly raises the tension bail assembly
when the winding assembly retracts the cover by partially lifting the
tension bail off the cover." '955 patent, col. 1, ll. 54-56.

On October 28, 2002, Pioneer moved for summary judgment of
non-infringement. The court conducted a hearing on January 15, 2003, and
issued its decision granting summary judgment of non-infringement on
August 6, 2003. In its order granting summary judgment, the district
court described Pioneer's accused system. The Pioneer system operates
with two U-shaped bows \-- an extension arm and a tension bail. [Summary
Judgment Order]{.underline} at 4. It has a U-shaped extension assembly
which is attached at the ends of the side of the load bed; the center
section extends across the load bed and is attached to the cover
allowing it to pull the cover across the load bed. [Id.]{.underline} The
Pioneer system also has a U-shaped tension bail which applies a downward
force on the cover. [Id.]{.underline} Unlike the Roll-Rite System (the
embodying product of the '955 patent), the legs of the Pioneer system's
tension bail assembly are not attached to the legs of the extension
assembly, and instead are attached on or near the winding assembly to
the cab of the truck. [Id.]{.underline}

In deciding the motion for summary judgment of non-infringement, the
district court primarily addressed the "actuation means" limitation that
it had previously construed in its claim construction decision.

As a threshold matter, the district court noted that both Searfoss and
Pioneer argued that the district court erred in finding the limitation
to be a means-plus-function limitation because the claim limitation
recited sufficient structure to remove it from the purview of 35 U.S.C.
§ 112(6). The court declined to address this argument for two reasons:
(1) neither party had filed a motion for reconsideration and (2) the
parties conceded that the means-plus-function issue would not affect the
pending summary judgment motion because the question of whether an
indirect connect was equivalent to a direct connection would be the same
whether equivalency is judged under section 112(6) or under the doctrine
of equivalents. [Id.]{.underline} at 9.

Addressing the merits of the equivalency challenge, the district court
determined that "a reasonable jury could not find that the Pioneer
System contains the equivalent of an 'actuation means,' with a structure
'connecting' the tension bail to the extension assembly" and that the
difference between the two systems was "substantial as a matter of law."
[Id.]{.underline} at 10-13. The district court declined to address
Searfoss' argument that the Pioneer System literally infringed the
"whereby" clause of claim 3 of the '955 patent because it found that
Pioneer did not infringe the "actuation means" limitation of claim 3
under the doctrine of equivalents. [Id.]{.underline} at 14.

Searfoss appeals from the entry of summary judgment of non-infringement.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

This opinion follows the court's review of the record and consideration
of the parties' oral argument, heard on May 7, 2004.

DISCUSSION

We review de novo a district court's grant of summary judgment. [Ethicon
Endo-Surgery, Inc. v. U.S. Surgical Corp.]{.underline}, 149 F.3d 1309,
1315 (Fed. Cir. 1998). Summary judgment is appropriate if, drawing all
factual inferences in favor of the non-movant, he cannot show there is a
genuine issue of material fact and the movant is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c); [Anderson v. Liberty Lobby,
Inc.]{.underline}, 477 U.S. 242, 255 (1986).

Analysis of infringement involves two steps. [Johnson Worldwide Assocs.,
Inc. v. Zebco Corp.]{.underline}, 175 F.3d 985, 988 (Fed. Cir. 1999).
First, the trial court determines the scope and meaning of the asserted
claims. [Markman v. Westview Instruments, Inc.]{.underline}, 517 U.S.
370, 372-74 (1996). The trial court's claim construction is an issue of
law reviewed without deference. [Cybor Corp. v. FAS Techs.,
Inc.]{.underline}, 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc).
Second, the claims as construed by the court are compared limitation by
limitation to the features of the allegedly infringing device. [Johnson
Worldwide]{.underline}, 175 F.3d at 988. We affirm a district court\'s
grant of summary judgment of non-infringement only if, "after viewing
the alleged facts in the light most favorable to the non-movant, there
is no genuine issue whether the accused device is encompassed by the
claims." [Pitney Bowes, Inc. v. Hewlett-Packard Co.]{.underline}, 182
F.3d 1298, 1304 (Fed. Cir. 1999).

On appeal, Searfoss challenges both the claim construction ordered by
the district court and the resultant grant of summary judgment of
non-infringement. We address these challenges below.

I.

The language of the claim defines the boundary of its scope. [Teleflex,
Inc. v. Ficosa N. Am. Corp.]{.underline}, 299 F.3d 1313, 1324 (Fed. Cir.
2002). Accordingly, "the claim construction inquiry . . . begins and
ends in all cases with the actual words of the claim." [Id.]{.underline}
(quoting [Renishaw plc v. Marposs Societa' per Azioni]{.underline}, 158
F.3d 1243, 1248 (Fed. Cir. 1998)). Claim terms must be construed as they
would be understood by a person of ordinary skill in the art to which
the invention pertains. [Specialty Composites v. Cabot
Corp.]{.underline}, 845 F.2d 981, 986 (Fed. Cir. 1988). What the claim
terms would mean to laymen is irrelevant. "The words used in the claim\[
\] are interpreted in light of the intrinsic evidence of record,
including the written description, the drawings, and the prosecution
history, if in evidence." [Teleflex]{.underline}, 299 F.3d at 1324.

As a threshold matter, we agree with both parties that the "actuation
means" limitation of claim 3 is not a means-plus-function limitation, as
the district court found. The claim specifically recites the structure
that performs the claimed function ("said actuation means including
first and second pivot connections respectively between said first and
second tension bail legs and a midpoint on said respective first and
second extension bail legs"), thus overcoming the presumption resulting
from use of the word "means." Though we find that the district court
erred in construing the "actuation means" limitation to be a
means-plus-function limitation, the error was harmless. Indeed both
parties agree that it was harmless because they agree the scope of the
claim would be identical, whether under the doctrine of equivalents or
under the literal scope of the means-plus-function claim.

With regard to the substance of the district court's claim construction,
Searfoss argues that the district court erred in not giving the term
"connecting" its ordinary meaning, as shown in general usage
dictionaries, which encompasses both direct and indirect connections,
and instead improperly limited its construction to direct
connections.[^2] Searfoss cites to several general usage, non-technical
dictionaries, which it argues support a definition of "connecting" to
encompass both direct and indirect connections. [See]{.underline}
[Webster's Third New International Dictionary]{.underline} (1986)
(defining "connect" as "to join, fasten or link together usually by
means of something intervening"). Searfoss also points to the other
dictionaries referenced by the trial court. [See]{.underline} [American
Heritage Dictionary]{.underline} (4th ed. 2000) (defining connect as
"(1) to join or fasten together; (2) to associate or consider as related
. . . ; (3) to join to or by means of a communications circuit . . . ;
(4) to plug in (an electrical cord or device) to an outlet."); [see
also]{.underline} [Oxford English Dictionary]{.underline} (2d ed. 1989).
According to Searfoss, neither the district court nor Pioneer has
pointed to anything in the specification to overcome the "heavy
presumption" of the "ordinary meaning" of "connect," and the proper
construction must encompass both direct and indirect connections.

We disagree. The district court clearly acknowledged the competing
general dictionary definitions of "connect," including direct and
indirect connections. [Markman Order]{.underline} at 7 ("Indeed, the
court need not look to the dictionary at all, inasmuch as the court is
familiar with the competing definitions advocated by the parties. The
court need only decide which meaning, whether it be a direct connection
or a tangential connection, is described in claim 3."). In construing
the claim, however, the district court did not, and indeed must not,
stop with the dictionary definitions offered by Searfoss. Instead, the
district court did as it must, and consulted the written description.
[Bell Communications Research, Inc. v. Vitalink Communications,
Corp.]{.underline}, 55 F.3d 615, 619 (Fed. Cir. 1995) ("\[I\]t is
equally 'fundamental that claims are to be construed in light of the
specifications and both are to be read in view of ascertaining the
invention.'") (quoting [United States v. Adams]{.underline}, 383 U.S.
39, 49 (1966)). The district court found that, as used in claim 3, the
term "connecting" refers to a "direct pivotal connection between the
tension bail and the extension assembly" because the patent referred to
the term "connecting" as synonymous with "attaching." We agree.
Throughout the specification we find references to direct connections
between the legs of the tension bail and the legs of the extension
assembly; and indeed, every pertinent figure depicts a direct connection
between the legs of the tension bail and those of the extension
assembly. [See]{.underline} '955 patent, col. 3, ll. 39-44, col. 6, ll.
39-55, figs. 1, 5-8. Moreover, we agree with the district court that a
construction of the word "connect" to include "indirect" and non-rigid
connections (such that the canvas cover itself could be the connection
between the tension bail and the extension leg assembly) is problematic
because it would lead to a reading of the claim such that the cover (as
the actuation means) is exerting a downward force upon itself. We hold
that the district court was correct in interpreting "connecting" as used
in this patent to include only direct, rigid, pivotal connections.

II\.

"An element in the accused product is equivalent to a claim limitation
if the differences between the two are 'insubstantial' to one of
ordinary skill in the art." [Eagle Comtronics, Inc. v. Arrow
Communication Labs., Inc.]{.underline}, 305 F.3d 1303, 1315 (Fed. Cir.
2002). In determining whether the differences between the accused
product and the claim limitation are "insubstantial," it is axiomatic
that we may determine whether the accused product performs the same
function, in the same way with the same result.

In the present case, Searfoss argues that the only difference between
the claimed system and the accused system is that the accused system
relocated the pivot points for the tension assembly from a direct
pivotal connection with the legs of the extension assembly to a pivotal
connection with the load bed that indirectly connects to and pivots with
respect to the extension assembly through the cover. Despite this
difference, Searfoss argues that the accused device is equivalent to the
patented invention because the two systems perform the same function in
the same way to achieve the same result (the center member of the
tension assembly applies a downward force on the cover when the cover is
fully extended and the force is substantially reduced when the cover is
being retracted).

There is no real dispute that the accused device performs the same
function as the claimed invention with the same result \-- in both the
claimed invention and the accused device a center member of the tension
assembly exerts a downward force on the cover, thus closing any gap
between the cover and the sides of the load bed proximate to the front
of the load bed. The only real issue is whether the accused device
operates in the "same way" as the claimed invention. In support of its
argument that the two operate in the same way, Searfoss asserts that the
accused device's combination of the pivot connection between the tension
assembly and the load bed together with the cover operates in the same
way as the direct pivotal connection in the claimed invention.

We agree with Searfoss that a combination of physical components may
serve as an equivalent to a single limitation of the claimed invention.
[See]{.underline} [Ethicon Endo-Surgery]{.underline}, 149 F.3d at 1320
("\[T\]wo physical components of an accused device may be viewed in
combination to serve as an equivalent of one element of a claimed
invention."). But "\[i\]t is important to ensure that the application of
the doctrine \[of equivalents\], even as to an individual element, is
not allowed such broad play as to effectively eliminate that element in
its entirety." [Warner-Jenkinson Co., Inc. v. Hilton Davis Chem.
Co.]{.underline}, 520 U.S. 17, 29 (1997). And, as the district court
noted, "in cases where the patentee's theory of equivalents would
'entirely vitiate a particular claim element, partial or complete
summary judgment should be rendered by the court.'" [Sage v. Devon
Indus., Inc.]{.underline}, 126 F.3d 1420, 1429 (Fed. Cir. 1997).

It is for this reason we must reject Searfoss' argument and agree with
the district court that, "\[t\]o find, as \[Searfoss\] argue\[s\], that
the 'indirect connection' constitutes an equivalent of the direct
connection function described in Claim 3 would, in effect, completely
vitiate the connection function." When the extension assembly operates
to cover the load bed, the accused device requires the cover to move the
tension bail into position such that it can exert a downward force on
the cover; in the claimed invention, the direct connection automates the
process of placing the tension bail in position to exert a downward
force. As the district court found, the acceptance of Searfoss'
arguments would require this court to ignore the construction of
"connecting" discussed in detail above, as the accused device
indisputably lacks any direct, physical, rigid connection.

Because a finding of infringement under the doctrine of equivalents
would vitiate the requirement of a direct connection through an
actuation means, no reasonable jury could find that the accused device
is insubstantially different than the claimed invention. Summary
judgment of non-infringement is thus appropriate.

CONCLUSION

Because the district court correctly construed the disputed claim terms
of the '955 patent and thus Pioneer did not infringe claim 3 under the
doctrine of equivalents, the district court's entry of summary judgment
on non-infringement is

[AFFIRMED.]{.underline}

[^1]: This diagram is from U.S. Patent No. 5,957,523, which the parties
    agree shows the structure of the accused product.

[^2]: Searfoss also challenges the district court's construction of what
    it calls the "whereby clause" of claim 3. Because, as discussed in
    section II below, we affirm the district court's grant of summary
    judgment on the basis of the "actuation means" limitation, we need
    not address the construction of the "whereby clause."