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

04-1291

ON-LINE TECHNOLOGIES, INC.,

> Plaintiff-Appellant,

v\.

BODENSEEWERK PERKIN-ELMER GMBH,

PERKIN-ELMER CORP., PERKIN-ELMER INC.,

SICK UPA GMBH, and SICK, A.G.,

> Defendants-Appellees.

[Gabriel Berg]{.underline}, Berg & Androphy, of New York, New York,
argued for plaintiff-appellant.

[Edward T. Colbert]{.underline}, Kenyon & Kenyon, of Washington, DC,
argued for defendants-appellees. With him on the brief was [C. Kyle
Musgrove]{.underline}. Of counsel on the brief were [Francis H. Morrison
III]{.underline} and [Jonathan B. Tropp]{.underline}, Day, Berry &
Howard LLP, of Hartford, Connecticut.

Appealed from: United States District Court for the District of
Connecticut

Judge Janet Bond Arterton

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

04-1291

ON-LINE TECHNOLOGIES, INC.,

> Plaintiff-Appellant,

v\.

BODENSEEWERK PERKIN-ELMER GMBH,

PERKIN-ELMER CORP., PERKIN-ELMER INC.,

SICK UPA GMBH, and SICK, A.G.,

> Defendants-Appellees.
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: October 13, 2004

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before MICHEL, [Circuit Judge]{.underline}, ARCHER, [Senior Circuit
Judge]{.underline}, and BRYSON, [Circuit Judge]{.underline}.

BRYSON, [Circuit Judge]{.underline}.

The dispute in this case involves a device known as a long-path gas
cell, which is used in an infrared spectrometer to determine the
composition of gases such as emissions from industrial plants. The
spectrometer captures the gas to be tested and directs a beam of
infrared light through the chamber containing the gas. After the light
has passed through the chamber, a detector measures the absorption of
the light, from which the properties of the gas can be determined.

It has long been understood in the art that lengthening the light path
in the gas cell chamber can result in a more accurate absorption
reading. One problem encountered in long-path gas cells, however, was
that over the long path created by multiple reflections of the light
beam within the chamber, the quality of the beam would become degraded,
primarily because of astigmatism induced by the mirrors used in the
system. Astigmatism is an optical aberration created when an optical
element or system has a different focal length in each of two orthogonal
planes. K.D. Moeller, [Optics]{.underline} 448 (1988); H.P. Brueggemann,
[Conic Mirrors]{.underline} 15 (1968).

In 1995, appellant On-Line Technologies, Inc., obtained a patent, U.S.
Patent No. 5,440,143 ("the '143 patent"), on a method for increasing the
length of the light path in a gas cell while correcting for astigmatism
and thereby reducing the diffusion of the beam of light. On-Line
subsequently brought an action in the United States District Court for
the District of Connecticut against a group of related parties,
Bodenseewerk Perkin-Elmer GmbH; Perkin-Elmer Corp.; Perkin-Elmer Inc.;
Sick UPA GmbH; and Sick, A.G. (collectively, "Perkin-Elmer"). [On-Line
Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH]{.underline}, No.
3:99CV2146 (D. Conn. filed Nov. 3, 1999).

In its complaint, On-Line alleged that Perkin-Elmer had made, used, and
sold a device that infringed the '143 patent. In addition, On-Line
asserted several state law claims, including misappropriation of trade
secrets, violation of the state law of unfair competition, breach of
contract, and fraud. In support of the state law claims, On-Line alleged
that, pursuant to a nondisclosure agreement, it had revealed its gas
cell design to Perkin-Elmer scientists in anticipation of a possible
business arrangement between the companies relating to On-Line's device.
Rather than pursuing a joint enterprise, however, Perkin-Elmer allegedly
copied what it had learned from On-Line and incorporated the disclosed
technology into its commercial product, thus breaching the nondisclosure
agreement and violating the state law prohibitions against unfair
competition, theft of trade secrets, and fraud.

After discovery, the district court disposed of the patent infringement
claim by granting summary judgment of noninfringement. The court also
granted summary judgment in favor of Perkin-Elmer on all of On-Line's
state law claims, finding that On-Line had failed to show that there was
a disputed issue of material fact with respect to any of those claims.
Finally, the court dismissed one of the defendants, Sick, A.G., for lack
of personal jurisdiction. On-Line appeals all three aspects of the
judgment.

I

The district court's grant of summary judgment of noninfringement as to
claim 1 of the '143 patent was premised on the court's claim
construction. On-Line contends that the district court erred in
construing the claim and therefore erred in entering summary judgment.

Claim 1 of the '143 patent recites as follows (emphasis added):

> A folded-path radiation absorption gas cell comprising: an enclosure
> having first and second ends, and defining a substantially closed
> chamber therewithin; spaced input radiation and output radiation
> windows formed through said first end of said enclosure and aligned on
> a first axis; a concave reflective field surface extending at least
> partially between said windows at said first end of said enclosure; [a
> pair of substantially spherical, concave reflective objective
> surfaces]{.underline} at said second end of said enclosure disposed in
> confronting relationship to said field surface, said objective
> surfaces being aligned side-by-side on an axis parallel to said first
> axis and in optical registry with said windows, [at least one of said
> objective surfaces having a cylindrical component added thereto to
> increase coincidence of focii in two orthogonal planes]{.underline},
> thereby to maximize the energy throughput characteristic of said cell;
> and means for the introduction and withdrawal of gas into and from
> said chamber of said enclosure.

The invention to which claim 1 is directed is an improvement on a type
of gas cell known as a "White cell." A White cell uses several mirrors
that are aligned to make the light follow a long path as it passes
through the test chamber. In the invention, two mirrors are placed side
by side at the opposite end of the main chamber from a third mirror. A
beam of light enters the chamber and is repeatedly reflected off the
three mirrors until it reaches an exit point. Because the mirrors
reflect the light beam back and forth across the chamber multiple times,
the path of the beam is much longer than the distance from one end of
the chamber to the other.

The '143 patent sought to address the problem of astigmatic diffusion of
the light beam passing through the cell. The solution proposed by the
'143 patent was to shape the secondary mirrors in a manner that would
counteract the astigmatism induced by reflections from the spherical
mirrors used in White cells and thus keep the beam of light focused
during its passage through the cell. '143 patent, col. 4, ll. 52-62. To
achieve that purpose, each claim of the '143 patent required the mirrors
to have "substantially spherical, concave reflective objective surfaces
. . . at least one of said objective surfaces having a cylindrical
component added thereto to increase coincidence of focii in two
orthogonal planes . . . ." [Id.]{.underline}, col. 5, ll. 44-52; col. 6,
ll. 14-22, 40-48.

On-Line asserted that Perkin-Elmer's commercial long-path gas cells
infringed claim 1 of the '143 patent. In particular, On-Line contended
that Perkin-Elmer's cells used objective mirrors of the sort recited in
the claim to correct for astigmatism. In the district court,
Perkin-Elmer did not dispute that its accused gas cells used objective
mirrors shaped to correct for astigmatism. Perkin-Elmer argued, however,
that its objective mirrors had toroidal surfaces, not "substantially
spherical" surfaces "having a cylindrical component added thereto," as
required by claim 1 of the '143 patent. For that reason, Perkin-Elmer
argued, its gas cells were not within the scope of the patent, either
literally or under the doctrine of equivalents. In essence,
Perkin-Elmer's argument was that a toroidal surface is different from a
substantially spherical surface with a cylindrical component added to
it. Because On-Line not only did not claim toroidal mirror surfaces but
specifically omitted them from its claims, Perkin-Elmer contended that
On-Line had dedicated surfaces of that shape to the public. The district
court agreed with Perkin-Elmer and held that Perkin-Elmer's toroidal
surface was not covered by the '143 patent.

In explaining its claim construction ruling, the district court noted
that the specification described the contour of the spherical objective
mirrors as "approach\[ing\] toroidal." '143 patent, col. 4, ll. 8-12.
The court stated that "\[b\]ecause mirrors with a contour which only
'approaches toroidal' cannot be said to be actual toroidal mirrors,
toroidal objective mirrors are not spherical objective mirrors with
cylindrical corrections." In support of that conclusion, the court cited
extrinsic evidence, including testimony from the inventors, which the
court characterized as establishing that "spherical objective mirrors
with cylindrical corrections are not the same as toroidal objective
mirrors." Because the court concluded that the claim language excluded
toroidal surfaces, the court held that Perkin-Elmer's gas cells did not
literally infringe claim 1 of the '143 patent. Moreover, because the
court concluded that toroidal surfaces were disclosed but not claimed in
the '143 patent, the court invoked the principle that a patentee's
disclosure of unclaimed subject matter bars application of the doctrine
of equivalents to that subject matter and held that On-Line could not
rely on the doctrine of equivalents to reach toroidal mirrors such as
Perkin-Elmer's.

On appeal, On-Line contends that the district court erred in ruling that
objective mirrors having a toroidal surface are not within the scope of
claim 1 of the '143 patent. We agree with On-Line that, properly
construed, the reference to a "substantially spherical, concave
reflective surface . . . having a cylindrical component added thereto to
increase coincidence of focii in two orthogonal planes" defines a set of
curved surfaces that includes a toroidal surface. We reach that
conclusion because the specification makes clear that the claim language
referring to spherical surfaces with cylindrical components includes
toroidal surfaces.

A toroidal (or toric) surface is defined as a surface that is "generated
if an arc is rotated about an axis which lies in the same plane as the
arc, but which does not pass through its centre of curvature." M. Jolie,
[The Principles of Ophthalmic Lenses]{.underline} 31 (3d ed. 1977). The
classic example of a toroid is the shape generated when a circle is
rotated about a line that does not intersect the circle, which describes
a torus, a figure resembling a doughnut or tire. A toroidal surface is
the shape of a segment of the surface of a toroid. [Id.]{.underline}

Although the parties agree that the term "toroidal" has a
well-understood definition, neither party suggests that the term
"substantially spherical, concave reflective surface . . . having a
cylindrical component added thereto," used in the claims of the '143
patent, has a precise and well-established meaning in the art. Rather,
the evidence before the trial court indicates that the reference to
spheres and cylinders is borrowed from thin lens theory, and that a lens
characterized as spherical with a cylindrical component is one with an
optical function achieved by "stacking" spherical and cylindrical
lenses. The evidence shows that the same nomenclature is sometimes used,
albeit with some lack of precision, to refer to reflective surfaces
having similar optical properties to such stacked lenses, even though
reflective surfaces cannot be stacked in the same manner as lenses.

Because the phrase "substantially spherical . . . having a cylindrical
component added thereto" has no precise and generally understood meaning
in the art as applied to reflective surfaces, we look to the intrinsic
evidence, in this case the specification, for guidance as to the meaning
of that language as used in the patent. [See]{.underline} [Teleflex,
Inc. v. Ficosa N. Am. Corp.]{.underline}, 299 F.3d 1313, 1324-25 (Fed.
Cir. 2002) ("The words used in the claim are interpreted in light of the
intrinsic evidence of record . . . . The intrinsic evidence may provide
context and clarification about the meaning of claim terms. 'Such
intrinsic evidence is the most significant source of the legally
operative meaning of disputed claim language.'" (citations omitted));
[Genentech, Inc. v. Wellcome Found. Ltd.]{.underline}, 29 F.3d 1559,
1563 (Fed. Cir. 1994) ("Since a definition of \[the critical claim\]
phrase cannot be extracted from the claims themselves, we look to the
specification for guidance."); [see also]{.underline} [United States v.
Adams]{.underline}, 383 U.S. 39, 49 (1966) ("\[C\]laims are to be
construed in the light of the specifications and both are to be read
with a view to ascertaining the invention.").

Although in this case, as in others, "the guidance \[in the
specification\] is not provided in explicit definitional format,"
[Irdeto Access, Inc. v. Echostar Satellite Corp.]{.underline}, No.
04-1154, slip op. at 8 (Fed. Cir. Sept. 14, 2004), the specification of
the '143 patent nonetheless demonstrates that the claim language
encompasses toroidal surfaces. First, the specification refers to the
curved surfaces in the preferred embodiment of the invention as toroidal
surfaces ("the toroids of the surfaces 62, 64," '143 patent, col. 4,
line 16), and in doing so it describes those surfaces by using the same
language that is used in claim 1 ("generally spherical reflective
surfaces," each of which "has a cylindrical component superimposed
thereupon," [id.]{.underline}, col. 4, ll. 7-10). Accordingly, the
specification makes it clear that, for purposes of the '143 patent, a
toroidal surface is a substantially spherical reflective surface that
has a cylindrical component superimposed thereupon.

Second, even if the specification were less explicit in equating the
term "toroid" with a generally spherical surface having a cylindrical
component added thereto, the reference to the preferred embodiment as
having mirrors with toroidal surfaces would give rise to a very strong
inference that the claim should be construed to include such surfaces.
As this court has explained before, "a claim interpretation that
excludes a preferred embodiment from the scope of the claim 'is rarely,
if ever, correct.'" [Globetrotter Software, Inc. v. Elan Computer Group,
Inc.]{.underline}, 362 F.3d 1367, 1381 (Fed. Cir. 2004), quoting
[Vitronics Corp. v. Conceptronic, Inc.]{.underline}, 90 F.3d 1576, 1583
(Fed. Cir. 1996); [see also]{.underline} [Int'l Rectifier Corp. v. IXYS
Corp.]{.underline}, 361 F.3d 1363, 1371 (Fed. Cir. 2004); [Modine Mfg.
Co. v. U.S. Int'l Trade Comm'n]{.underline}, 75 F.3d 1545, 1550 (Fed.
Cir. 1990).

The district court interpreted the reference in the specification to a
"contour that approaches toroidal," '143 patent, col. 4, line 12, as
indicating that the recited surface could include a surface that
approximates a toroidal shape, but could not include the toroidal shape
itself. We disagree with that interpretation. From the description of
the mirror surfaces of the preferred embodiment as "toroids" four lines
later in the specification, we think it clear that the words
"approaching toroidal" were not meant to exclude curves designed to be
toroidal in shape, but simply to indicate that the surfaces recited in
the invention were intended to include all curves that closely
approximate toroidal, including a toroidal surface itself. Indeed, as a
matter of manufacturing tolerances, it is impossible to make a
real-world device with a reflecting surface that is perfectly toroidal,
just as it is impossible to make a reflecting surface that is a perfect
spheroid or a perfect paraboloid. For that reason, even mirrors that are
designed to be toroidal, such as the mirrors in Perkin-Elmer's device,
will necessarily merely "approach" the ideal toroidal shape, although
they may come very close. Accordingly, we do not agree with the district
court that the reference in the specification to a surface that
"approaches toroidal" was meant to exclude a device having a surface
that is characterized in the art of optical engineering as "toroidal."

Finally, the patent describes the effect of adding a cylindrical
component to a generally spherical mirror as being "to reduce the
effective radius of curvature in one plane, thus enabling light incident
on the reflective surface to better approach the focus in the orthogonal
plane," '143 patent, col. 4, ll. 60-62, and "to increase coincidence of
focii in two orthogonal planes," [id.]{.underline}, col. 5, ll. 51-52. A
toroidal surface "has two principal radii of curvature corresponding to
its two principal curves," M. Jolie, [supra]{.underline}, at 31; [see
also]{.underline} Jurgen R. Meyer-Arendt, [Introduction to Classical &
Modern Optics]{.underline} 120 (3d ed. 1989) ("A toric surface has two
radii of curvature (different in the two principal meridians)"); Daniel
Malacara, [Optical Shop Testing]{.underline} 754 (2d ed. 1992). That
characteristic makes toroidal surfaces useful in counteracting
astigmatism. [See]{.underline} Eugene Hecht, [Optics]{.underline} 211-12
(3d ed. 1998). Thus, while the claim language in the '143 patent does
not either expressly include a toroidal surface or exclude other similar
surfaces, the characteristics and function of the surface described in
the specification and the claims are consistent with the characteristics
and function of a toroidal surface.

The district court relied on extrinsic evidence that the court
interpreted as supporting its claim construction. Extrinsic evidence,
however, cannot be used to alter a claim construction dictated by a
proper analysis of the intrinsic evidence. [See]{.underline} [Intel
Corp. v. VIA Techs., Inc.]{.underline}, 319 F.3d 1357, 1367 (Fed. Cir.
2003) ("When an analysis of intrinsic evidence resolves any ambiguity in
a disputed claim term, it is improper to rely on extrinsic evidence to
contradict the meaning so ascertained."); [Frank's Casing Crew & Rental
Tools, Inc. v. PMR Techs., Ltd.]{.underline}, 292 F.3d 1363, 1374 (Fed.
Cir. 2002); [Bell & Howell Document Mgmt. Prods. Co. v. Altek
Sys.]{.underline}, 132 F.3d 701, 706 (Fed. Cir. 1997). In any event, we
do not agree with the district court's analysis of the extrinsic
evidence.

Although the evidence showed, and On-Line's witnesses acknowledged, that
the mathematical description of a toroid differs from that of a
spherocylinder, On-Line offered evidence that a person of skill in
fabricating optics would understand the expression "sphere with
cylindrical correction" or a sphere "having a cylindrical component" to
refer not to a mathematical concept but to the type of optical
correction obtained by stacking thin lenses, one having a spherically
curved surface and another having a cylindrically curved surface.
According to On-Line's expert, a person of ordinary skill in the art
would understand the term "sphere with cylindrical correction," as a way
of describing the curved surfaces used in On-Line and Perkin-Elmer's
commercial products, i.e., toroidal surfaces. The evidence in the
summary judgment record therefore provides further support for On-Line's
contention that the surface of the objective mirrors recited in claim 1
of the '143 patent includes toroidal surfaces, as that term is
understood by persons of skill in the pertinent art, as opposed to the
manner in which it is used by mathematicians.

To be sure, On-Line's inventors acknowledged that as a mathematical
concept a toroidal surface is not the same thing as a spherical surface
with a cylindrical component added to it. That is not to say, however,
that the inventors regarded toroidal surfaces as falling outside the
broader claim language, which referred to "substantially spherical"
surfaces "having a cylindrical component added thereto." As On-Line's
expert explained, "the sphere/cylinder convention does not specify the
exact mathematical surface . . . . A person of ordinary skill in the art
would understand the term 'sphere with cylindrical correction' as a
terse and natural way to describe the modestly curved surfaces of the
objective mirrors in On-Line's or Perkin-Elmer's gas cell \[both of
which are toroidal\]." Moreover, while acknowledging that the
mathematical definition of a toroid differs from that of a spheric
cylinder, co-inventor Robert Carangelo testified that the claim language
"substantially spherical . . . having a cylindrical component added"
includes a toroidal surface. The other co-inventor, David Wright,
testified to similar effect, stating that the claim language was
intended to cover a range of conic sections, including ellipsoids and
toroids, all of which would have the same shape near the axis "to within
the order of machining tolerance." Finally, even the technical article
on which Perkin-Elmer relies to demonstrate that there is a mathematical
distinction between toroidal and spherocylindrical surfaces points out
that the distinction is extremely subtle for most applications and that
toroidal surfaces "are sometimes also \[referred to\] as
spherocylindrical surfaces." Carmen Menchaca & Daniel Malacara,
[Toroidal and Spherocylindrical Surfaces]{.underline}, 25 Applied Optics
3008 (1986).

Because of the lack of precision in the language used to define the
claimed surfaces of the objective mirrors, this case was made more
difficult than it needed to be, and the district court was required to
invest considerable effort in trying to ascertain the meaning of the
critical claim language. While the district court conducted a careful
analysis of the claim language in light of the specification and the
extrinsic evidence, we are nonetheless persuaded, particularly in light
of the specification, that the district court's claim construction was
too restrictive and that a surface designed to be toroidal is within the
scope of claim 1 of the '143 patent. Accordingly, because the summary
judgment of noninfringement was based on an erroneous claim
construction, we vacate the judgment of noninfringement and remand the
case for further proceedings on the remaining issues pertinent to
On-Line's claim of infringement.

II

Invoking the district court's supplemental jurisdiction, On-Line raised
a number of state law claims, including claims that Perkin-Elmer had
misappropriated five trade secrets relating to On-Line's gas cell, in
violation of the Connecticut Uniform Trade Secrets Act, Conn. Gen. Stat.
§ 35-50 [et seq.]{.underline} ("CUTSA"). The district court concluded
that no reasonable jury could find that Perkin-Elmer had misappropriated
any of On-Line's trade secrets. On-Line challenges that ruling with
respect to two of the trade secrets that it alleges Perkin-Elmer
misappropriated: the long-path gas cell and the Norton igniter source.

A.  The Long-Path Gas Cell Trade Secret Claim

    In the district court, On-Line alleged that Perkin-Elmer
    misappropriated confidential information relating to the design of
    On-Line's long-path gas cell. The district court ruled that On-Line
    failed to prove actionable misappropriation because the information
    at issue was disclosed in the '143 patent and because On-Line failed
    to point to any evidence that Perkin-Elmer had improperly used any
    information relating to the gas cell prior to the issuance of the
    patent. Based on the summary judgment record, the district court
    concluded that undisputed evidence showed that Perkin-Elmer did not
    begin to incorporate the features of On-Line's gas cell into its own
    product until 1996, after the issuance of the '143 patent. Although
    On-Line referred to evidence regarding Perkin-Elmer's conduct before
    the issuance of the '143 patent, the district court held that none
    of that evidence was probative of misappropriation because the
    conduct in question all constituted legitimate evaluation of
    On-Line's product pursuant to the nondisclosure agreement entered
    into by On-Line and Perkin-Elmer in 1994. As to On-Line's claim that
    not all of the secrets relating to its gas cell were disclosed in
    the '143 patent, the court found that claim to be unsupported by any
    evidence.

    After a patent has issued, the information contained within it is
    ordinarily regarded as public and not subject to protection as a
    trade secret. [See]{.underline} [Restatement (Third) of Unfair
    Competition]{.underline} § 39 cmt. f (1995) ("Information that is
    generally known or readily ascertainable through proper means . . .
    by others to whom it has potential economic value is not protectable
    as a trade secret. Thus, information that is disclosed in a patent
    or contained in published materials reasonably accessible to
    competitors does not qualify for protection \[as a trade
    secret\]."); [Conmar Prods. Corp. v. Universal Slide Fastener
    Co.]{.underline}, 172 F.2d 150, 155-56 (2d Cir. 1949) (L. Hand).
    Moreover, the nondisclosure agreement in this case specifically
    provided that the obligation of confidentiality created by the
    agreement "will not apply to any information . . . which becomes
    publicly available other than by breach of this agreement."
    Consequently, On-Line cannot claim that Perkin-Elmer's activities
    following the issuance of the '143 patent constituted
    misappropriation of confidential information unless the activities
    related to information not disclosed in the patent.

    In the district court, On-Line claimed that Perkins-Elmer had
    misappropriated information relating to the design of the long-path
    gas cell and had used it to build its own long-path gas cell prior
    to the issuance of the '143 patent. The district court, however,
    concluded that the evidence to which On-Line pointed did not create
    a genuine issue of material fact on that issue, and we agree. As
    characterized by the district court, the evidence showed that
    Perkin-Elmer took various steps to evaluate the On-Line technology
    that it was considering buying, but did not show that Perkin-Elmer
    began building its own gas cell before 1996. Although On-Line
    asserts that the evidence of Perkin-Elmer's course of conduct with
    respect to On-Line's product shows that it made use of On-Line's gas
    cell trade secret before the issuance of the '143 patent, On-Line's
    general characterizations do not satisfy the requirement that it
    point to specific evidence sufficient to create a disputed issue of
    material fact. [See]{.underline} [Celotex Corp. v.
    Catrett]{.underline}, 477 U.S. 317, 324 (1986) (non-movant in
    summary judgment proceedings must "designate specific facts showing
    that there is a genuine issue for trial"); [Crown Operations Int'l,
    Ltd. v. Solutia Inc.]{.underline}, 289 F.3d 1367, 1377 (Fed.
    Cir. 2002) ("non-moving party must affirmatively demonstrate by
    specific factual allegations that a genuine issue of material fact
    exists for trial"); [S. Bravo Sys., Inc. v. Containment Techs.
    Corp.]{.underline}, 96 F.3d 1372, 1376 (Fed. Cir. 1996) (unsupported
    assertions do not satisfy requirement of designating specific
    evidence creating a genuine issue of material fact).

    We also reject On-Line's argument that Perkin-Elmer's acts of
    copying and testing On-Line's gas cell during the period covered by
    the nondisclosure agreement were not authorized by the agreement and
    therefore constituted misappropriation. As the district court noted,
    On-Line did not present any evidence that Perkin-Elmer began to
    develop its own cell during the period covered by the agreement or
    otherwise engaged in conduct prohibited by the nondisclosure
    agreement. Instead, the evidence relating to Perkin-Elmer's conduct
    with respect to the disclosed technology shows merely that
    Perkin-Elmer tested and evaluated that technology, which was conduct
    contemplated by the nondisclosure agreement. Moreover, Robert Hoult,
    a Perkin-Elmer scientist who visited On-Line's facility following
    the execution of the nondisclosure agreement, submitted an affidavit
    in which he averred that he had learned nothing useful about
    On-Line's gas cell that was not already evident from On-Line's
    nonconfidential marketing brochure. On-Line did not offer evidence
    to contradict Dr. Hoult's representation. Because On-Line failed to
    demonstrate a disputed issue of material fact with respect to the
    long-path gas cell trade secret claim, we affirm the district
    court's grant of summary judgment on that issue.

B.  The Norton Igniter Source Trade Secret Claim

On-Line's second trade secret claim is that Perkin-Elmer misappropriated
the infrared light source and assembly used in the On-Line spectrometer.
On-Line uses a device known as the Norton 301-T igniter to produce the
infrared light beam that is directed into its testing chamber. In the
district court, On-Line argued that Perkin-Elmer learned of the Norton
301-T igniter during its visits to On-Line's facility and used that
information to produce its own gas cell, which uses the same igniter as
a light source. The district court concluded that the use of the Norton
301-T igniter as the light source was not a trade secret because that
use was publicly disclosed in a third party's patent, U.S. Patent No.
5,291,022 ("the '022 patent"), which issued in March of 1994.

On appeal, On-Line argues that although the use of the Norton 301-T
igniter as a high-intensity infrared radiation source was known, its use
for that purpose in connection with a long-path gas cell was not. It was
not the Norton 301-T igniter itself that was the protected trade secret,
On-Line argues, but rather the specific purpose to which it was put in
On-Line's product. In support of that argument, On-Line points to a
report by On-Line's expert, Dr. Warren Vidrine, which described the
difference between the use of the Norton 301-T igniter in the '022
patent and its use in the On-Line and Perkin-Elmer devices.
Specifically, On-Line points to Dr. Vidrine's statement that On-Line and
Perkin-Elmer both "use metal mirrors to reflect radiation back to the
source element to reduce the amount of heat which would otherwise be
wasted. The '022 patent source design does not include any reflective
mirrors."

Dr. Vidrine's report does not suggest that the use of the Norton 301-T
igniter as an infrared radiation source in a long-path gas cell
constituted a trade secret. Instead, his report is directed to the
overall design of the source assembly. Moreover, the disclosure in the
'022 patent of the uses to which a source such as the Norton 301-T
ceramic igniter source could be put was very broad. The '022 patent
addresses "the field of light sources, particularly those emitting in
the infrared wavelengths, and more particularly to infrared sources used
in analytical instruments such as infrared spectrometers." '022 patent,
col. 1, ll. 5-9. It also explicitly refers to the Norton 301-T igniter
as a suitable light source. [Id.]{.underline}, col. 6, ll. 50-53.
Moreover, Dr. Hoult stated that Perkin-Elmer had determined
independently that others were using Norton igniters and that by the
time of his visit to On-Line's facility Perkin-Elmer's biggest
competitor had been using Norton igniters in infrared spectrometers for
approximately two years. In light of the breadth of the disclosure in
the '022 patent, the evidence that Perkin-Elmer had learned of the
Norton igniter independently, and in the absence of any contrary
evidence from On-Line, we agree with the district court that no
reasonable jury could conclude that the use of a Norton 301-T igniter in
an infrared spectrometer constituted a protectable trade secret that
Perkin-Elmer misappropriated from On-Line.

On-Line also argued before the district court that Perkin-Elmer
misappropriated an On-Line trade secret when it incorporated into its
source assembly two reflective surfaces similar to those that On-Line
had developed to enhance and collimate the infrared light beam directed
into the testing chamber. In support of that argument, On-Line offered
Dr. Vidrine's report, which asserted that the igniter source assembly in
Perkin-Elmer's devices, including a reflective cavity and a field
mirror, was similar to the source assembly in On-Line's system.

The district court held that On-Line's evidence with regard to the
source assembly claim did not raise a disputed issue of material fact,
and we agree. Although Dr. Vidrine asserted that, in his opinion,
Perkin-Elmer "commenced to copy, adapt and prepare to take advantage of"
features of the On-Line source assembly, including the retroreflective
cavity, he did not cite evidence to support that assertion. Instead, Dr.
Vidrine's assertion was based on his comparison of the optical elements
in the source assembly of the On-Line and Perkin-Elmer instruments. With
respect to the retroreflector, Dr. Vidrine stated that one of
Perkin-Elmer's two products used a "very similar retroreflector" having
a "similarly shaped reflective cavity," and that the retroreflector in
the other Perkin-Elmer product, although "not a simple copy" of
On-Line's design, "produced a functionally similar result." Dr. Vidrine
inferred copying based on the fact that Perkin-Elmer "rapidly adopted" a
reflective cavity design. With respect to the field mirror, Dr. Vidrine
did not claim that Perkin-Elmer's designs were identical to On-Line's
design, but asserted that Perkin-Elmer's designs, like On-Line's, were
"good optical engineering solutions" for matching a small hot area with
the desired beam characteristics of the respective instruments.

In support of its summary judgment motion, Perkin-Elmer offered
affidavits from Dr. Hoult, in which he asserted that Perkin-Elmer did
not make use of anything he learned about On-Line's source assembly as a
result of his visit to On-Line's facility. In particular, he stated that
the optics in the source assembly of the Perkin-Elmer system were "what
I would describe as text-book," that the combination of mirrors used in
Perkin-Elmer's devices had been developed several years before his
contact with On-Line and had first been used in Perkin-Elmer infrared
spectrometers in 1989, that the arrangement of mirrors in the various
source assemblies is in essence the same as the arrangement of mirrors
in an automobile headlight, and that he did not learn from his visit to
On-Line's facility that On-Line used a retroreflector in its source
assembly.

In rebuttal, On-Line relied principally on a contemporaneous report by
Dr. Hoult regarding his trip to On-Line's facility. On-Line argued that
the Hoult trip report demonstrated that Dr. Hoult saw On-Line's source
assembly during his visit. The report described the source as follows:

> Norton gas-igniter, silicon carbide hairpin mounted on a cylinder with
> easy push-fit access from the front top. Source hangs down so that
> debris falls harmlessly away. Source collimation appeared to be an
> off-axis parabola machined directly on the end of an aluminum
> cylinder. No firm details of lifetime for source.

That discussion of the source housing (a cylinder with easy push-fit
access from the front top) could be interpreted to refer to the source
assembly at issue in this case. A reasonable jury could conclude that
the "off-axis parabola machined directly on the end of an aluminum
cylinder" describes a retroreflective cavity designed to focus the
radiation emitted by the Norton igniter, especially given that its
purpose is for "\[s\]ource collimation."

Even accepting the inference from the trip report that Dr. Hoult viewed
On-Line's source assembly, On-Line's evidence is insufficient to avoid
summary judgment because On-Line failed to address the assertions in Dr.
Hoult's affidavit that the mirror array in the source assembly was
"text-book" and that Perkin-Elmer had used a similar combination of
mirrors in a like instrument years earlier. Although On-Line argues that
the earlier device did not use a ceramic igniter as the energy source,
there was no evidence before the district court that the difference in
the energy source rendered On-Line's source assembly sufficiently
distinct to constitute a protectable trade secret. Moreover, nothing in
the Hoult trip report suggests that the structure of the source assembly
was unfamiliar to Dr. Hoult; in fact, the abbreviated description of the
source assembly in the trip report suggests the contrary. In any event,
the mere description of the source assembly in the Hoult trip report is
insufficient to overcome the evidence from Dr. Hoult that the design of
source assemblies of the sort used by On-Line was already familiar to
Perkin-Elmer and that the design of On-Line's source assembly was not a
trade secret that Perkin-Elmer misappropriated as a result of the visit
to On-Line's facility. As to that issue, On-Line is essentially limited
to Dr. Vidrine's conclusory assertion that Perkin-Elmer misappropriated
On-Line's design, and such conclusory assertions by expert witnesses are
not sufficient to avoid summary judgment. [See]{.underline} [Schwing
GMBH v. Putzmeister Aktiengesellschaft]{.underline}, 305 F.3d 1318, 1326
(Fed. Cir. 2002); [Applied Cos. v. United States]{.underline}, 144 F.3d
1470, 1475 (Fed. Cir. 1998); [Arthur A. Collins, Inc. v. N. Telecom
Ltd.]{.underline}, 216 F.3d 1042, 1046-48 (Fed. Cir. 2000). We therefore
uphold the district court's grant of summary judgment as to the source
assembly.

III

In addition to the trade secret claims, On-Line raised state law claims
of fraud, breach of contract, and unfair trade practices. The district
court granted summary judgment for Perkin-Elmer as to each of those
claims. On-Line appeals as to each.

> A. The Fraud Claim

The district court rejected On-Line's fraud claim on the ground that it
fell within the scope of CUTSA and was therefore preempted under CUTSA's
preemption provision, Conn. Gen. Stat. § 35-57(a). On-Line argues that
its claim is not preempted because the facts on which its fraud claim is
based differ from those that support its misappropriation claim. On-Line
contends that its fraud claim is based on the proposed business
transaction being negotiated by the parties, rather than the
misappropriation of trade secrets. The district court concluded
otherwise, and we agree.

Section 35-57(a) of the Connecticut General Statutes states that
"\[u\]nless otherwise agreed by the parties, the provisions of this
chapter supersede any conflicting tort, restitutionary, or other law of
this state pertaining to civil liability for misappropriation of a trade
secret." The preemptive effect of that statute is limited by subsection
(b), which states that it does not affect "\[c\]ontractual or other
civil liability or relief that is not based upon misappropriation of a
trade secret," among other things. Conn. Gen. Stat. § 35-57(b). On-Line
contends that its fraud claims are not based upon the misappropriation
of a trade secret and thus they are not preempted under section 35-57.

The district court concluded that On-Line's fraud claim was based on the
theory that Perkin-Elmer's allegedly fraudulent actions allowed it to
misappropriate On-Line's trade secrets. In the fraud portion of its
complaint, On-Line alleged that Perkin-Elmer had induced it to disclose
a variety of trade secrets. On-Line now contends that the district court
misunderstood its fraud allegations; in its brief On-Line contends that
its fraud claim "is related to the proposed business transaction being
negotiated by the parties," and is not related to the misappropriation
of trade secrets. On-Line focuses in particular on Perkin-Elmer's
termination of the licensing negotiations in November 1994 and
Perkin-Elmer's allegedly false statement that the evaluation of
On-Line's technology was unsatisfactory.

The problem with that characterization of the fraud claim is that it is
unclear how that statement---even if false---misled On-Line to its
prejudice, [see]{.underline} [Paiva v. Vanech Heights Constr.
Co.]{.underline}, 271 A.2d 69, 71 (Conn. 1970), except perhaps to
promote the furtive misappropriation of On-Line's trade secrets by
suggesting that Perkin-Elmer was uninterested in the technology when in
fact Perkin-Elmer intended to copy it. If that is the purpose suggested
by On-Line's argument regarding the November 1994 false statement, it
merely demonstrates that the ultimate injury to which the alleged fraud
was directed was the misappropriation of On-Line's trade secrets. In its
brief, On-Line has not suggested any other injury that On-Line suffered
as a result of Perkin-Elmer's allegedly fraudulent conduct. The district
court therefore properly held that the fraud claim was preempted under
section 35-57.

> B. The Breach of Contract Claim

The district court granted summary judgment with respect to On-Line's
breach of contract claim on the ground that the nondisclosure agreement
between On-Line and Perkin-Elmer provided no greater protection than
that provided by CUTSA. Because the court concluded that no reasonable
jury could find a CUTSA violation, the court held that there could be no
breach of contract, either.

On-Line argues that its breach of contract claim is different from its
trade secret misappropriation claim. On-Line, however, does not suggest
that if it failed to prove misappropriation of trade secrets it would be
nonetheless be entitled to relief on a breach of contract theory for
violating the covenant not to disclose trade secrets. Instead, in its
brief in this court On-Line focuses on the provision of the
nondisclosure agreement that imposed on Perkin-Elmer the obligation to
return "all copies" of information that On-Line designated as
confidential. Because Perkin-Elmer retained some records containing
confidential materials relating to the On-Line spectrometer, On-Line
argues that the district court improperly granted summary judgment on
the breach of contract claim.

The district court addressed On-Line's argument with regard to
Perkin-Elmer's alleged failure to return documents and held that On-Line
did not raise the failure to return documents as a basis for liability
in the breach of contract claim in its complaint. Because On-Line failed
to raise that claim in a timely manner, it was not error for the
district court to reject On-Line's effort to raise that aspect of the
contract as a basis for liability at the summary judgment stage.

> C. The Unfair Trade Practices Claims

The district court held that On-Line's unfair trade practices claims are
preempted by CUTSA. In its complaint, On-Line raised claims against
Perkin-Elmer under the Connecticut Uniform Trade Practices Act.
Specifically, On-Line alleged that Perkin-Elmer had improperly used
trade secrets obtained from On-Line to make its own products and had
represented to a variety of parties that On-Line's trade secrets were
its own. The district court concluded that those allegations constituted
nothing more than CUTSA violations and that the unfair trade practice
claims were therefore preempted by section 37-57(a).

On-Line argues that because Perkin-Elmer gained access to its trade
secrets under the guise of offering a license agreement, its claims are
not preempted by CUTSA. We cannot agree. All of On-Line's allegations
relate to the misappropriation of trade secrets, as is clear from
On-Line's complaint, which relies upon Perkin-Elmer's alleged
acquisition and use of On-Line's confidential information. As a result,
we agree with the trial court that CUTSA preempts On-Line's unfair trade
practices claims.

IV

On-Line contends that the district court erred when it dismissed Sick,
A.G., from the lawsuit based on a lack of personal jurisdiction. In
support of its argument, On-Line points to several events: a visit by a
Sick, A.G., representative to On-Line's facility in East Hartford,
Connecticut; a nondisclosure agreement with On-Line signed by a
representative of Sick, A.G.; a report prepared by a representative of
Sick, A.G., relating to his visit to the On-Line facility; the receipt
by Sick, A.G., of a copy of On-Line's business plan; and a subsequent
inquiry by Sick, A.G., to On-Line.

The trial court concluded that the evidence offered in support of
On-Line's claim of personal jurisdiction over Sick, A.G., was
insufficient to establish personal jurisdiction under Connecticut's
long-arm statute, Conn. Gen. Stat. § 33-929. The court found that none
of the allegations regarding Sick, A.G., were sufficient to constitute
tortious conduct under Conn. Gen. Stat. § 33-929(f), solicitation of
business under Conn. Gen. Stat. § 33-929(f)(2), or a business
transaction under Conn. Gen. Stat. § 33-929(e). On-Line has not
specifically challenged any of those findings, but instead has made only
a general assertion that the district court's ruling is "incorrect and
inequitable." Because On-Line has failed to point out any specific
errors in the district court's analysis, and because the court's
jurisdictional ruling is not otherwise flawed, we uphold the district
court's ruling that it lacked personal jurisdiction over Sick, A.G.

\* \* \* \* \*

In summary, we affirm the grant of summary judgment with respect to
On-Line's state law claims and with respect to the order dismissing
Sick, A.G., on grounds of lack of personal jurisdiction. As to the
patent claim, we vacate the grant of summary judgment of noninfringement
and remand that issue to the district court for further proceedings.

Each party shall bear its own costs for this appeal.

[AFFIRMED IN PART, VACATED IN PART, and REMANDED]{.underline}.