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

04-1097

INNOVA/PURE WATER, INC.,

Plaintiff-Appellant,

v\.

SAFARI WATER FILTRATION SYSTEMS, INC.

(doing business as Safari Outdoor Products),

Defendant-Appellee.

[Robert A. Vanderhye]{.underline}, Nixon & Vanderhye P.C., of Arlington,
Virginia, argued for plaintiff-appellant.

[Catherine E. Stetson]{.underline}, Hogan & Hartson, LLP, of Washington,
DC, argued for defendant-appellee. On the brief were [Raymond A.
Kurz]{.underline} and [Celine Jimenez Crowson]{.underline}.

Appealed from: United States District Court for the Middle District of
Florida

Judge Steven D. Merryday

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

04-1097

INNOVA/PURE WATER, INC.,

Plaintiff-Appellant,

v\.

SAFARI WATER FILTRATION SYSTEMS, INC.

(doing business as Safari Outdoor Products),

Defendant-Appellee.

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

DECIDED: August 11, 2004

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

Before CLEVENGER, RADER, and LINN, [Circuit Judges]{.underline}.

CLEVENGER, [Circuit Judge]{.underline}.

Plaintiff-Appellant Innova/Pure Water, Inc. (\"Innova\") appeals the
decision of the United States District Court for the Middle District of
Florida granting summary judgment of noninfringement in favor of
Defendant-Appellee Safari Water Filtration Systems, Inc. (\"Safari\")
and denying Innova\'s attempt to amend its complaint to add a later
issued patent. [Innova/Pure Water, Inc. v. Safari Water Filtration Sys.,
Inc.]{.underline}, No. 8:99-CV-1781 (M.D. Fla. Oct. 28, 2003). Because
the district court erred in its interpretation of the term \"operatively
connected,\" we vacate the district court\'s summary judgment of
noninfringement and remand for further proceedings. Because the district
court did not abuse its discretion in refusing to allow Innova to amend
its complaint to add a later issued patent, we affirm that decision.

I

Innova sued Safari for infringement of U.S. Patent No. 5,609,759 (\"the
\'759 patent\"). The \'759 patent, entitled, \"Bottle Filter Cap,\" is
directed to a water filter assembly and a container incorporating the
assembly. In general terms, the filter assembly described includes a
tube of filtering material (alternatively, \"filter tube\"), a bottle
cap, and a valve for dispensing water. In some of the depicted
embodiments, the assembly is positioned at the mouth of a container
which is a bottle, sealing the bottle and suspending the tube of
filtering material in the bottle. More broadly, the filter assembly
operates to place the tube of filtering material between the water in
the bottle and the valve so that water is filtered before it exits the
bottle. Various embodiments are depicted in Figures 1-12 of the \'759
patent.

Safari\'s accused product is a water bottle with a tube of filtering
material, a bottle cap, and a valve. In operation, the tube of filtering
material is suspended in the mouth of the bottle by means of an annular
flange that rests on the mouth of the bottle. The tube of filtering
material is mechanically sealed in position when the bottle cap is
screwed over the mouth of the bottle, thereby contacting the annular
flange and fixing the tube of filtering material in position to filter
water before it exits the bottle.

At the district court, Innova moved for summary judgment of
infringement, asserting literal infringement, or, barring that,
infringement under the doctrine of equivalents, of independent claims 1
and 15, and dependent claims 5, 11, and 17-20. Safari moved for summary
judgment of noninfringement.

In part, the independent claims at issue in the \'759 patent state:

> 1\. A filter assembly for use with a bottle having a circular
> cross-section neck or open end to simultaneously cap the neck or open
> end and filter liquid poured out of the bottle through the neck or
> open end, comprising:
>
> a tube of filtering material . . . a cap . . . said cap having first
> and second substantially opposite surfaces . . . a manual valve
> operatively associated with said cap, in fluid communication with said
> tube of filtering material and manually movable between a position
> defining means for allowing liquid flow through said tube and a
> position defining means not allowing liquid flow through said tube;
> and
>
> said tube [operatively connected]{.underline} to said cap second
> surface at said tube second open end . . . .

\'759 patent, col. 6, ll. 46-64 (emphasis added).

> 15\. A container for dispensing filtered water, comprising:
>
> a plastic bottle . . . a plastic cap . . . said cap having first and
> second substantially opposite surfaces . . . a . . . tube of or
> containing filtering material . . . a manual valve operatively
> associated with said cap, in fluid communication with said tube of
> filtering material and manually movable between a position defining
> means for allowing liquid flow through said tube and a position
> defining means not allowing liquid flow through said tube; and
>
> said tube [operatively connected]{.underline} to said cap second
> surface, and said tube having an outside diameter less than said
> inside diameter of said neck, and positioned with respect to said-cap
> within said bottle so that said tube axis is substantially transverse
> to said second surface and so that flow of liquid through said tube is
> primarily radial with respect to said tube axis during filtering, and
> through said side wall.

[Id.]{.underline}, col. 7, l. 55 to col. 8, l. 17 (emphasis added).

The district court construed the claim term \"operatively connected\" to
require that the tube of filtering material be affixed to the cap,
[i.e.]{.underline}, \"not merely adjoining or abutting, but affixing the
tube to the cap by some tenacious means of physical engagement that
results in a unitary structure.\" Concluding that the annular flange
arrangement of Safari\'s accused product is such that the filter tube is
\"never affixed to the cap by some tenacious means of physical
engagement as required by claims 1 and 15,\" the district court denied
Innova\'s motion for summary judgment and granted Safari\'s motion for
summary judgment of noninfringement.

On appeal, Innova argues that the district court erred when it
interpreted the claims to require that the tube of filtering material be
affixed to the cap \"by some tenacious means of physical engagement that
results in a unitary structure.\" Innova thus asserts that the district
court\'s conclusions regarding literal infringement and infringement
under the doctrine of equivalents cannot stand in light of the proper
claim construction and proposes that we reverse, order summary judgment
of infringement, and remand for trial on damages and intentional
infringement. Safari insists that the district court properly understood
the meaning of \"operatively connected\" and, particularly in light of
the written description and prosecution history, asserts that the claims
can only be interpreted as requiring the tenacious physical engagement
of the tube of filtering material and the cap. Therefore, argues Safari,
the district court did not err in granting summary judgment.

Innova\'s appeal also challenges the district court\'s refusal to allow
Innova to amend its complaint to add claims of infringement of U.S.
Patent No. 6,165,362 (\"the \'362 patent\"). The \'362 patent issued on
December 26, 2000, from an application that claimed priority to the
application that issued as the asserted \'759 patent. Innova\'s motion
to amend was filed June 13, 2001, approximately six months after
issuance, ten months after the close of discovery (August 1, 2000), and
nine months after the filing of summary judgment motions (September
2000). According to the district court, allowing \"\[a\]mendment at
\[that\] stage of the litigation, following Innova\'s delay, would
unduly prejudice Safari.\" Innova now argues that the district court
abused its discretion by denying the motion to amend because there was
no delay on Innova\'s part, and no unfair prejudice to Safari would
result from allowing the motion.

II

This is an appeal from a final decision of a district court and we have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). We review summary
judgment [de novo]{.underline}. [Conroy v. Reebok Int\'l,
Ltd.]{.underline}, 14 F.3d 1570, 1575 (Fed. Cir. 1994). It is well
established that determining infringement is a two-step process.
[Markman v. Westview Instruments, Inc.]{.underline}, 52 F.3d 967, 976
(Fed. Cir. 1995) ([en banc]{.underline}), [aff\'d]{.underline}, 517 U.S.
370 (1996). First, the meaning and scope of the relevant claims must be
ascertained. [Id.]{.underline} Second, the properly construed claims
must be compared to the accused device. [Id.]{.underline} Claim
construction, or interpretation, is a question of law. [Markman v.
Westview Instruments, Inc.]{.underline}, 517 U.S. 370 (1996); [Cybor
Corp. v. Fas Techs., Inc.]{.underline}, 138 F.3d 1448, 1454-56 (Fed.
Cir. 1998) ([en banc]{.underline}). When exercising the power to review
claim construction, this court determines the meaning and scope of the
relevant claim language and decides whether the district court\'s
determination of the meaning and scope of the relevant claim language is
coterminous with that construction. Where it is not, the district court
has erred in its construction of the claims.

Summary judgment is proper \"if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.\"
Fed. R. Civ. P. 56(c); [see]{.underline} [Anderson v. Liberty Lobby,
Inc.]{.underline}, 477 U.S. 242, 247-48 (1985). Summary judgment is
improper where \"the evidence is such that a reasonable jury could
return a verdict for the non-moving party.\" 477 U.S. at 248. Thus,
after determining the proper meaning and scope of the relevant claim
language, we decide without deference if the district court was correct
in its judgment that no reasonable jury could find, either literally or
by application of the doctrine of equivalents, each and every limitation
recited in the properly construed claims in the accused device.
[Middleton, Inc. v. 3M]{.underline}, 311 F.3d 1384, 1387 (Fed. Cir.
2002); [Gart v. Logitech, Inc.]{.underline}, 254 F.3d 1334, 1339 (Fed.
Cir. 2001); [Bai v. L&L Wings, Inc.]{.underline}, 160 F.3d 1350, 1353
(Fed. Cir. 1998).

III

It is a bedrock principle of patent law that the claims of a patent
define the invention to which the patentee is entitled the right to
exclude. [Aro Mfg., Co. v. Convertible Top Replacement Co.]{.underline},
365 U.S. 336, 339 (1961) (\"\[T\]he claims made in the patent are the
sole measure of the grant.\"); [Altoona Publix Theaters, Inc. v. Am.
Tri-Ergon Corp.]{.underline}, 294 U.S. 477, 487 (1935) (\"Under the
statute it is the claims of the patent which define the invention.\");
[Smith v. Snow]{.underline}, 294 U.S. 1, 11 (1935) (\"\[T\]he claims of
the patent, not its specifications, measure the invention.\"); [Cont\'l
Paper Bag Co. v. E. Paper Bag Co.]{.underline}, 210 U.S. 405, 419 (1908)
(\"In making his claim the inventor is at liberty to choose his own form
of expression, and while the courts may construe the same in view of the
specifications and the state of the art, they may not add to or detract
from the claim.\" (citation omitted)); [White v. Dunbar]{.underline},
119 U.S. 47, 52 (1886) (\"The claim is a statutory requirement,
prescribed for the very purpose of making the patentee define precisely
what his invention is; and it is unjust to the public . . . to construe
it in a manner different from the plain import of its terms.\");
[Merrill v. Yeomans]{.underline}, 94 U.S. 568, 570 (1876) (\"\[The
statutorily required\] distinct and formal claim is, therefore, of
primary importance, in the effort to ascertain precisely what it is that
is patented to the appellant in this case.\"); [SRI Int\'l v. Matsushita
Corp. of Am.]{.underline}, 775 F.2d 1107, 1121 (Fed. Cir. 1985) ([en
banc]{.underline}) (\"It is the [claims]{.underline} that measure the
invention.\"). Attending this principle, a claim construction analysis
must begin and remain centered on the claim language itself, for that is
the language the patentee has chosen to \"particularly point\[ \] out
and distinctly claim\[ \] the subject matter which the patentee regards
as his invention.\" [Interactive Gift Express, Inc. v. Compuserve,
Inc.]{.underline}, 256 F.3d 1323, 1331 (Fed. Cir. 2001) (quoting 35
U.S.C. § 112 ¶ 2); [see also]{.underline} [Johnson Worldwide Assocs.,
Inc. v. Zebco Corp.]{.underline}, 175 F.3d 985, 989-90 (Fed. Cir. 1999).

A court construing a patent claim seeks to accord a claim the meaning it
would have to a person of ordinary skill in the art at the time of the
invention. [See, e.g.]{.underline}, [SmithKline Beecham Corp. v. Apotex
Corp.]{.underline}, 365 F.3d 1306, 1313 (Fed. Cir. 2004); [Resqnet.com,
Inc. v. Lansa, Inc.]{.underline}, 346 F.3d 1374, 1378 (Fed. Cir. 2003);
[Rexnord Corp. v. Laitram Corp.]{.underline}, 274 F.3d 1336, 1342 (Fed.
Cir. 2001); [Johnson Worldwide]{.underline}, 175 F.3d at 989; [Renishaw
PLC v. Marposs Societa\' Per Azioni]{.underline}, 158 F.3d 1243, 1249
(Fed. Cir. 1998); [Carroll Touch, Inc. v. Electro Mech. Sys.,
Inc.]{.underline}, 15 F.3d 1573, 1577 (Fed. Cir. 1993). The inquiry into
the meaning that claim terms would have to a person of skill in the art
at the time of the invention is an objective one. This being the case, a
court looks to those sources available to the public that show what a
person of skill in the art would have understood disputed claim language
to mean. Those sources include the words of the claims themselves, the
remainder of the specification, the prosecution history, and extrinsic
evidence concerning relevant scientific principles, the meaning of
technical terms, and the state of the art. [See]{.underline}
[Markman]{.underline}, 52 F.3d at 979-80; [accord]{.underline} [Pitney
Bowes, Inc. v. Hewlett-Packard Co.]{.underline}, 182 F.3d 1298, 1305-15
(Fed. Cir. 1999); [Vitronics Corp. v. Conceptronic, Inc.]{.underline},
90 F.3d 1576, 1582-83 (Fed. Cir. 1996).

The written description provides a context for the claims, and is
appropriately resorted to \"for the purpose of better understanding the
meaning of a claim,\" [White]{.underline}, 119 U.S. at 51, and for
\"showing the connection in which a device is used,\" [McCarty v. Leigh
Valley R.R. Co.]{.underline}, 160 U.S. 110, 116 (1895). The claims of a
patent may incorporate parts of the written description by reference,
thus \"limit\[ing\] the patent to the form described.\"
[Smith]{.underline}, 294 U.S. at 11. A patent applicant thus has the
flexibility to imbue new or old terms with a different meaning than they
would otherwise have to a person of ordinary skill in the art.
[See]{.underline} [Autogiro Co. of Am. v. United States]{.underline},
384 F.2d 391, 397 (Ct. Cl. 1967) (\"\[P\]atent law allows the inventor
to be his own lexicographer.\"). All that is required is that the patent
applicant set out the different meaning in the specification in a manner
sufficient to give one of ordinary skill in the art notice of the change
from ordinary meaning. [In re Paulsen]{.underline}, 30 F.3d 1475, 1480
(Fed. Cir. 1994); [Intellicall, Inc. v. Phonometrics, Inc.]{.underline},
952 F.2d 1384, 1387-88 (Fed. Cir. 1992). Because the inquiry into the
meaning of claim terms is an objective one, a patentee who notifies the
public that claim terms are to be limited beyond their ordinary meaning
to one of skill in the art will be bound by that notification, even
where it may have been unintended. [See, e.g.]{.underline},
[Liebel-Flarsheim Co. v. Medrad, Inc.]{.underline}, 358 F.3d 898, 905-09
(Fed. Cir. 2004); [Scimed Life Sys., Inc. v. Advanced Cardiovascular
Sys., Inc.]{.underline}, 242 F.3d 1337, 1344 (Fed. Cir. 2001) (stating,
in the written description, \"\[the\] structure . . . is the basic . . .
structure for all embodiments\"); [Watts v. XL Sys., Inc.]{.underline},
232 F.3d 877, 883 (Fed. Cir. 2000) (stating, in the written description,
\"\[t\]he present invention utilizes \[the\] feature\").

The longstanding difficulty is the contrasting nature of the axioms that
(a) a claim must be read in view of the specification and (b) a court
may not read a limitation into a claim from the specification.
[See]{.underline} [Liebel-Flarsheim]{.underline}, 358 F.3d at 904-05
(acknowledging the \"fine line\" and \"inherent tension\" attending the
question presented by these axioms). For, as Justice Bradley famously
stated:

> Some persons seem to suppose that a claim in a patent is like a nose
> of wax which may be turned and twisted in any direction, by merely
> referring to the specification, so as to make it include something
> more than, or something different from, what its words express. The
> context may, undoubtedly, be resorted to, and often is resorted to,
> for the purpose of better understanding the meaning of the claim; but
> not for the purpose of changing it, and making it different from
> what it is. The claim is a statutory requirement, prescribed for the
> very purpose of making the patentee define precisely what his
> invention is; and it is unjust to the public, as well as an evasion of
> the law, to construe it in a manner different from the plain import of
> its terms. This has been so often expressed in the opinions of this
> court that it is unnecessary to pursue the subject further.

[White]{.underline}, 119 U.S. at 51-52; [see also]{.underline} [Cont\'l
Paper Bag]{.underline}, 210 U.S. at 419; [McCarty]{.underline}, 160 U.S.
at 116 (\"\[W\]e know of no principle of law which would authorize us to
read into a claim an element which is not present . . . .\").
Accordingly, particular embodiments appearing in the written description
will not be used to limit claim language that has broader effect.
[See]{.underline} [Electro Sci. Indus., Inc. v. Dynamic Details,
Inc.]{.underline}, 307 F.3d 1343, 1349 (Fed. Cir. 2002); [Laitram Corp.
v. NEC Corp.]{.underline}, 163 F.3d 1342, 1347-48 (Fed. Cir. 1998). And,
even where a patent describes only a single embodiment, claims will not
be \"read restrictively unless the patentee has demonstrated a clear
intention to limit the claim scope using \'words or expressions of
manifest exclusion or restriction.\'\" [Liebel-Flarsheim]{.underline},
358 F.3d at 906 (quoting [Teleflex, Inc. v. Ficosa N. Am.
Corp.]{.underline}, 299 F.3d 1313, 1327 (Fed. Cir. 2002)).

IV

Innova\'s appeal with respect to the asserted claims of the \'759 patent
turns on the correct interpretation of the disputed claim term,
\"operatively connected.\" According to the district court, the ordinary
meaning of \"said tube operatively connected to said cap\" requires that
the two components be \"affix\[ed\] . . . by some tenacious means of
physical engagement that results in a unitary structure.\" Innova
challenges this construction as improperly importing a tenacious
physical engagement limitation into claim language that does not require
any such thing. Safari concurs with the district court. The district
court erred. The asserted claims do not require that the filter tube and
cap be affixed to one another in a manner that results in the two
components forming a unitary structure. Neither party asserts that the
term \"operatively connected\" is a technical term having a special
meaning in the art of water filtration. Rather, it is a general
descriptive term frequently used in patent drafting to reflect a
functional relationship between claimed components. Generally speaking,
and as used in the \'759 patent, it means the claimed components must be
connected in a way to perform a designated function. In the absence of
modifiers, general descriptive terms are typically construed as having
their full meaning. [See]{.underline} [Johnson Worldwide]{.underline},
175 F.3d at 992 (refusing to import a modifier for the term
\"coupled\"); [Va. Panel Corp. v. MAC Panel Co.]{.underline}, 133 F.3d
860, 865-66 (Fed. Cir. 1997) (refusing to import a modifier for the term
\"reciprocating\"). Thus, the district court was correct to look to the
ordinary meaning of the terms \"operatively\" and \"connected\" and we
discern no error in the district court\'s initial understanding that
\"the ordinary and customary meaning of \'operatively connected\'
requires the . . . linking together of the tube and the cap to produce
the intended or proper effect.\" But the district court erred when it
proceeded beyond this plain meaning based on the \"\[e\]xamples of means
for connecting the tube to the cap disclosed in the \'759 patent,\" all
of which reflect a \"physical engagement \[between the tube and the
cap\] that results in a unitary structure.\" [See]{.underline}
[Teleflex]{.underline}, 299 F.3d at 1328.

The district court also erred in interpreting the \"intended or proper
effect,\" [i.e.]{.underline}, the designated function, to be the
operation of \"creat\[ing\] a filter assembly\" with a unitary
structure. Instead, as Innova contends, the proper designated function
is the operation of the assembly, [i.e.]{.underline}, filtering. Thus,
\"said tube \[is\] operatively connected to said cap\" when the tube and
cap are arranged in a manner that affects filtering. Safari contends
that the district court was correct because for a connection to be
operative for filtering, the structure performing the filtering must
also be associated with a bottle, a limitation not found in claim 1 of
the \'759 patent. We disagree because the claims, and also the written
description, reflect that an intended purpose for the claimed invention
is for use with a bottle to filter water.

Focusing first on the claims, we observe that the preamble of claim 1
recites: \"A filter assembly for use with a bottle . . . to
simultaneously cap the neck or open end [and]{.underline} filter liquid
poured out of the bottle . . . .\" \'759 patent, col. 6, ll. 45-49
(emphasis added). Language in a preamble limits a claim where it
breathes life and meaning into the claim, [see]{.underline} [In re
Paulson]{.underline}, 30 F.3d at 1479, but not where it merely recites a
\"purpose or intended use of the invention.\" [Id.]{.underline} In this
case, we need not decide whether the preamble adds a limitation to the
claim because we hold that it recites a purpose or intended use of the
claimed \"filter assembly\" as, [inter alia]{.underline},
\"filter\[ing\] liquid poured out of the bottle.\" Other parts of claim
1 also show that the intended function of the claimed structure is
filtering. Beyond stating that the \"tube is operatively connected to
said cap,\" the claim also states that a \"valve\" is \"operatively
associated with said cap, in fluid communication with said tube of
filtering material.\" \'759 patent, col. 6, ll. 58-59. The claim further
explains that the \"valve\" controls the flow of liquid through the
\"tube of filtering material\" as the valve is \"manually movable
between a position defining means for allowing liquid flow through said
tube and a position defining means not allowing liquid flow through said
tube.\" [Id.]{.underline}, ll. 59-63. In sum, we think the operation
defined by controlling the flow of liquid through the \"tube of
filtering material\" is the operation of filtering.

As Safari acknowledges, Innova\'s argument that \"operatively\" refers
to the function of filtering, has even \"more traction\" when applied to
claim 15. Claim 15 is directed to \"\[a\] container for dispensing
filtered water.\" \'759 patent, col. 7, l. 55. It expressly claims a
bottle as an element of the disclosed structure. [Id.]{.underline}, ll.
56-58. It contains the \"in fluid communication\" limitation present in
claim 1. [Id.]{.underline}, col. 8, ll. 4-9. And, it contains additional
language explaining the position of the tube of filtering material
relative to the cap, the bottle, and the liquid flow:

> said tube operatively connected to said cap second surface, and said
> tube having an outside diameter less than said inside diameter of said
> neck, and positioned with respect to said-cap within said bottle so
> that said tube axis is substantially transverse to said second surface
> and so that flow of liquid through said tube is primarily radial with
> respect to said tube axis during filtering, and through said side
> wall.

[Id.]{.underline}, ll. 10-17.

Not only do both claims evidence that an intended function or operation
of the claimed structure is filtering, such a function is also evident
from the written description, [e.g.]{.underline}, \"\[t\]here is a
significant demand for filtered drinking water . . . ,\" \'759 patent,
col. 1, l. 6; \"a filter assembly is provided . . . capable of
effectively treating drinking water to remove chlorine and organic taste
contaminants therefrom and reduces a variety of chemical contaminants.\"
[Id.]{.underline}, ll. 25-29. Unless otherwise compelled, when different
claims of a patent use the same language, we give that language the same
effect in each claim. [See]{.underline} [Omega Eng\'g, Inc. v. Raytek
Corp.]{.underline}, 334 F.3d 1314, 1334 (Fed. Cir. 2003). Here, we are
not otherwise compelled. \"Operatively connected\" carries the same
meaning in both claims.

Furthermore, we observe that Safari\'s interpretation largely reads the
term \"operatively\" out of the phrase \"operatively connected.\" While
not an absolute rule, all claim terms are presumed to have meaning in a
claim. [Cf.]{.underline} [Pickholz v. Rainbow Techs., Inc.]{.underline},
284 F.3d 1365, 1373 (Fed. Cir. 2002). If, as Safari proposes, the claim
refers in the abstract to the creation of a filter assembly structure,
without any grounding to an intended use, the term \"operatively\" is
unnecessary and superfluous as the patentee could have as easily used
the term \"connected\" alone.

Safari also proposes that the district court\'s construction can be
supported by the patentee\'s use, in claim 15, of \"operatively
connected\" and \"operatively associated.\" The argument is that the
patentee\'s use of the term \"connected\" to claim the tube-cap
relationship stands in such stark contrast to the patentee\'s choice of
\"associated\" to define the valve-cap relationship, that the patentee
could only have intended that \"connected\" and \"associated\" were of
different scope. Despite Innova\'s assertion to the contrary, when an
applicant uses different terms in a claim it is permissible to infer
that he intended his choice of different terms to reflect a
differentiation in the meaning of those terms. [See]{.underline}
[Bancorp Servs., L.L.C. v. Hartford Life Ins. Co.]{.underline}, 359 F.3d
1367, 1373 (Fed. Cir. 2004); [Ethicon Endo-Surgery, Inc. v. U.S.
Surgical Corp.]{.underline}, 93 F.3d 1572, 1579 (Fed. Cir. 1996). For
this argument to be dispositive of a particular claim construction,
however, one must accept that \"connected\" and \"associated\" can be
discerned along the lines Safari urges. In particular, one must accept
the argument that although both terms can, by their plain meaning,
include nonphysical attachment, \"associated\" was meant to define both
nonphysical and physical attachment while \"connected\" was used in a
narrower sense, incorporating only a physical attachment definition.
Safari urges that we can make the distinction based on the disclosed
embodiments. We disagree. While an inference that \"connected\" and
\"associated\" have different meanings in this case may be particularly
appropriate because the words here define the relationship between two
objects, the terms \"connected\" and \"associated\" are very similar in
meaning. The context does not make clear to us that Innova\'s use of
both terms means that \"connected\" should be limited to tenacious
physical engagement. Moreover, we observe that in at least one
circumstance, Innova described the filter as \"associated\" with the
cap. \'759 patent, col. 1, ll. 41-43 (\"a cap with which the filter is
associated being adaptable to fit any type of closure mechanism on a
conventional plastic bottle\"). Finally, as we discuss in further
detail, [infra]{.underline}, we decline to limit the claims based only
on the embodiments in the written description. Thus, the context does
not show that \"connected\" and \"associated\" should be differentiated
into the definitions proposed by Safari, and we must conclude that this
is simply a case where the patentee used different words to express
similar concepts, even though it may be confusing drafting practice.
[Bancorp Servs.]{.underline}, 359 F.3d at 1373.

In sum, subject to any clear and unmistakable disavowal of claim scope,
the term \"operatively connected\" takes the full breadth of its
ordinary meaning, [i.e.]{.underline}, \"said tube \[is\] operatively
connected to said cap\" when the tube and cap are arranged in a manner
capable of performing the function of filtering.

A

Safari contends that in the written description and prosecution history
the patentee clearly and unmistakably disavowed the full breadth of
meaning of \"operatively connected\" and put the public on clear notice
that the claims should be limited to cover only embodiments where the
filter tube and cap are tenaciously physically engaged. Concerning the
written description, Safari relies most heavily on the argument that at
\"every point\" in the written description where \"operatively
connected\" is discussed, it is discussed as having the \"common
denominator\" of tenacious physical engagement. However, at argument,
Safari\'s counsel had difficulty pointing to a statement in the written
description that clearly and unmistakably shows the applicant\'s intent
to limit the scope of the claims to tenacious physical engagement.
Undaunted, Safari contends that even if we disagree that the written
description contains specific language clearly showing disavowal, the
applicant\'s clear and unmistakable disavowal of all embodiments in
which the tube is not tenaciously engaged to the cap is evident from
reading the written description as a whole. According to Safari, when
one reads the written description from beginning to end, there is no
disclosure of a tube and cap arrangement where the tube and cap are not,
in the words of the district court, \"affix\[ed\] . . . by some
tenacious means of physical engagement that results in a unitary
structure.\" Safari also relies heavily on the observation that not a
single drawing in the written description depicts an arrangement of tube
and cap in other than tenacious engagement.[^1] Thus, contends Safari,
because courts do not construe claims beyond what is disclosed in the
written description, the written description demands a finding by this
court that \"operatively connected\" is limited to tenacious physical
engagement. Making the same argument, although in different terms,
Safari argues that, acting as his own lexicographer, the patentee in
this case defined \"operatively connected\" as requiring tenacious
physical engagement. Again, we disagree.

1

The abstract of the written description contains the statement: \"The
tube is operatively connected to the cap second surface at the tube
second open end by sonic welding, a mechanical connection, or
adhesively.\" \'759 patent, Abstract. While a statement in the Abstract
may operate as a clear expression of manifest exclusion, for several
reasons, this statement does not. Nor does this statement weigh heavily
when considering whether the applicant has acted as his own
lexicographer. To begin, this statement is in the Abstract of the
patent. This section of a patent speaks generally to the invention and,
much like the syllabus of an opinion, sets forth general information
about the document\'s content, which is described in more detail in the
remainder of the document. Second, in our view, this statement reflects
the applicant\'s attempt to disclose the broad array of means by which
the tube can be connected to the cap. This observation begs a third
point. Safari, and it seems the district court, appear to believe the
term \"mechanical connection\" requires tenacious physical engagement,
and accordingly, cannot include within its scope Safari\'s product,
which suspends the tube of filtering material in the bottle mouth by
means of an annular flange sealed in place by a cap screwed over the
mouth of the bottle. We simply do not agree. By a twist of the wrist,
the bottle cap is screwed tight, thus mechanically locking the filter to
the lip of the bottle.

The connection of the filter and cap is addressed in other portions of
the written description. The paragraph beginning: \"According to the
present invention . . . ,\" \'759 patent, col. 1, l. 23, describes the
\"filter assemblies and containers according to the present invention,\"
[id.]{.underline}, ll. 38-39, as having \"the actual filter element
being connected to the other components either adhesively, mechanically,
or by welding (e.g. sonic welding), a cap with which the filter is
associated being adaptable to fit any type of closure mechanism on a
conventional plastic bottle . . . .\" [Id.]{.underline}, ll. 38-44.
Although at first glance one might think that the use of the word
\"associated\" creates a requirement that the filter and cap be affixed
in tenacious physical engagement, it does not. Without doubt, a
structural element \"associated\" with a separate structural element can
be tenaciously physically engaged. However, there is no requirement that
this be so because the word \"associated\" merely reflects that the
recited elements be joined in some kind of relationship. Thus, in
contrast to, for example, [Scimed]{.underline}, this language is less
direct, clear, and defining than the phrase \"\[the\] structure . . . is
the basic . . . structure for all embodiments.\" 242 F.3d at 1344.

The kernel of Safari\'s position is that the embodiment, or embodiments,
depicted in the figures and written description show \"not merely
adjoining or abutting, but affixing the tube to the cap by some
tenacious means of physical engagement that results in a unitary
structure.\" Perhaps the most straightforward answer to Safari\'s
argument is that the law does not require the court, where an applicant
describes only a single embodiment, to construe the claims as limited to
that one embodiment. [See, e.g.]{.underline},
[Liebel-Flarsheim]{.underline}, 358 F.3d 906-09. Indeed, such a
construction is not encouraged or presumed. [Id.]{.underline} From
another level of abstraction, of course, the patentee\'s disclosures in
this case could be viewed as the disclosure of many embodiments. So
viewed, the patentee presented several examples of the types of
connections between the filter tube and cap useful for the invention and
in all examples depicted the connection as a tenacious physical
engagement. Here, this is a difference without substance. As noted
earlier, the specification as a whole reflects the patentee\'s efforts
to describe and claim all operative connections. Also, the written
description discloses that the operative connection can be
\"mechanical,\" a feature we conclude is present in the arrangement of
the filter tube and cap in Safari\'s product as presented to this court.
Finally, and most importantly, Safari\'s argument flies into the sun
that is the plain import of the claim language \"operatively
connected.\" We thus decline to apply Safari\'s reasoning.

2

According to Safari, the prosecution history is \"consistent with\"
their proposed definition of \"operatively connected,\" and, based on
\"representations made to secure the \'759 patent,\" \"Innova is
estopped\" from arguing that any other construction is possible. We
conclude that the prosecution history does not preclude the construction
advanced by Innova and adopted in this opinion.

Safari first refers to a section 103 rejection made by the examiner to
pending claims 1-18. In that rejection, the examiner stated:

> Regarding the various means of attaching the tube to the cap, such as
> welding, adhesion, etc., these features are considered to be
> conventional and would have been obvious in the device of \[the prior
> art\] to provide alternative conventional attachment means.

We note here, that claim 13 ultimately issued as claim 1. At the time of
the rejection however, claim 13 was merely a claim depending from then
claim 1 and recited a type of filtering material. Claim 1, from this
point in the prosecution history later issued as claim 22.[^2] Even so,
this claim contained the relevant \"said tube operatively connected to
said cap\" language, and the cited portion of the examiner\'s rejection
is properly read as referring to this connection.

Responding, the patentee made a number of arguments concerning pending
claim 1, of which the district court and appellee make no issue. Then,
addressing dependent claims 2-18, the applicant made the statement:

> In fact, it is believed that the dependent claims even more clearly
> and unequivocally distinguish from the art. For example, no place in
> either \[prior art reference\] are the mutually exclusive adhesive
> connection of claim 2, welding, (e.g., ultrasonic welding) of claim 3,
> or mechanical connection of claim 5 pointed out in the previous action
> or seen in the references, let alone the particular O ring connection
> recited in claim 6, or the particular mechanical connection flanges of
> claim 17.

Although asserting that the \"significance placed on this feature by
Innova estops Innova from disclaiming that the filter tube is affixed to
the cap,\" Safari fails to explain how this

statement demands such a conclusion. After careful consideration of the
content of the statement, we conclude that it does not clearly and
unambiguously disavow mechanical connections where the filter tube is
not tenaciously physically engaged to the cap. [See]{.underline} [Omega
Eng\'g]{.underline}, 334 F.3d at 1323-24. In particular, we note that
dependent claims are typically narrower and, by so being, are more
likely to clearly distinguish the prior art. Generally speaking, this
is, in part, their function. In addition, it is of little moment that
the dependent claims mentioned in the response refer to connections that
result in a unitary structure. This is so for at least two reasons.
First, the language of the response refers to claims that specifically
claim embodiments in which the filter tube and cap are tenaciously
physically engaged. By the patentee\'s selection of language, which the
examiner allowed, claims 1 and 15 are not facially limited to such
embodiments. Second, to accommodate Safari\'s argument now, we would
have to conclude that it would be appropriate to limit an independent
claim by the additional limitations of claims depending from that claim.
Although, in some cases this [might]{.underline} be possible, the
doctrine of claim differentiation \"normally means that limitations
stated in dependent claims are not to be read into the independent claim
from which they depend.\" [Karlin Tech., Inc. v. Surgical Dynamics,
Inc.]{.underline}, 177 F.3d 968, 971-72 (Fed. Cir. 1999) (stating that
this interpretative tool stems from \"the common sense notion that
different words or phrases used in separate claims are presumed to
indicate that the claims have different meanings and scope\"). In sum,
the argument that dependent claims, which require tenacious engagement,
\"more clearly . . . distinguish from the art\" does not mean that
claims from which those claims depend are equally limited.

Next, Safari points to a dialog between the examiner and patentee where
the examiner rejected then-pending claim 17 because \"\[i\]t would have
been obvious to utilize the flange/projections of \[the prior art\] . .
. to provide an alternative but equivalent connection means.\" The claim
addressed by this rejection literally claims a connection between the
tube and cap that uses a flange extending from the filter tube to engage
the cap. The applicant responded to the rejection thus:

> For example, \[the prior art\] shows an axial filter that is sealed at
> the top and employs a mixture of anion and cation resins, using the
> flange to suspend the filter of ion exchange resins which operate in
> axial flow mode . . . . This is contrary to \[other prior art\] and
> the claimed invention.

Safari contends that this statement disavows the use of a flange to
suspend the filter tube. Innova contends that this statement was
directed to the distinction of radial as opposed to axial filtering.
Careful inspection of the prosecution history indicates that Innova has
the better argument. Beginning with the statement itself, we cannot
distinguish whether it is referring to the filter or the flange.
Examining the following Office Action, we observe that the examiner
understood Innova\'s statement to be referring to the filter: \"The
applicants also argue that \[the prior art\] discloses an axial filter;
however \[the prior art\] was cited solely for the feature of a
conventional flange on the rim of the tubular filter.\" Following this
discourse, a telephone interview occurred, after which the examiner
allowed the claim, unamended, and still directed to the use of a flange
to make the tube-cap connection.[^3] This series of communications does
not reflect the clear and unambiguous disavowal of caps and filters
connected by mechanical means short of tenacious physical engagement.
Rather, it reflects first, the

examiner and applicant talking past one another. It reflects second,
that the applicant was able to convince the examiner, by off the record
communications, to retreat from her position. However unfortunate it is
that the public and this court are prevented from knowing what arguments
caused the examiner to abandon her position, the record finally reflects
the examiner\'s acquiescence to the claim language chosen by the
applicant. This is not clear evidence of the patentee\'s disavowal of
claim scope.

Safari also points to a rejection entered by the examiner, where the
examiner describes a piece of asserted prior art as \"considered to
disclose a tubular filter attached to a cap as instantly claimed.\" It
is well settled, however, that it is the applicant, not the examiner,
who must give up or disclaim subject matter that would otherwise fall
within the scope of the claims.

V

Innova argues the district court erred by denying the motion to amend
the complaint to add the \'362 patent because there was no delay on
Innova\'s part, and no unfair prejudice to Safari would result from
granting the motion. At the outset, this is a nonpatent matter where we
apply the law of the circuit in which the district court sits.
[See]{.underline} [Cultor Corp. v. A.E. Staley Mfg. Co.]{.underline},
224 F.3d 1328, 1332-33 (Fed. Cir. 2000). This appeal is from the middle
district of Florida, within the eleventh circuit, which reviews the
refusal of leave to amend for abuse of discretion. [Lowe\'s Home Ctrs.,
Inc. v. Olin Corp.]{.underline}, 313 F.3d 1307, 1314-15 (11th Cir.
2002). On this deferential standard of review, we detect no abuse of
discretion.

In the eleventh circuit, the court freely grants leave to amend when
justice so requires. [Carruthers v. BSA Adver., Inc.]{.underline}, 357
F.3d 1213, 1217-18 (11th Cir. 2004). However, a motion to amend may be
denied on \"numerous grounds, such as undue delay, undue prejudice to
the defendants, and futility of the amendment.\" [Maynard v. Bd. of
Regents of Div. of Univs. of Fla. Dep\'t. of Educ.]{.underline}, 342
F.3d 1281, 1287 (11th Cir. 2003) (citation and internal quotation marks
omitted). In addition, \"it is not an abuse of discretion for a district
court to deny a motion for leave to amend following the close of
discovery, past the deadline for amendments, and past the deadline for
filing dispositive motions.\" [Lowe\'s]{.underline}, 313 F.3d at 1315.

A number of these considerations are present in this case. In
particular, Innova sought to amend the complaint approximately six
months after the \'362 patent issued, ten months after discovery closed,
and nine months after the filing of summary judgment motions.
Accordingly, the district court did not abuse its discretion when it
denied Innova\'s motion to amend.

VI

In conclusion, the correct claim construction does not limit claims 1
and 15 to only embodiments where \"said tube \[is\] operatively
connected to said cap\" by mechanical means that result in tenacious
physical engagement. Accordingly, the district court erred when it
granted Safari\'s motion for summary judgment of no literal infringement
based on the fact that in Safari\'s accused product the filter tube is
\"never affixed to the cap by some tenacious means of physical
engagement as required by claims 1 and 15.\" For the same reasons, the
district court erred in granting summary judgment of no infringement
under the doctrine of equivalents based on its factual conclusion that
\"merely adjoining or abutting . . . is not the equivalent of affixing
the tube to the cap.\" And, finally, as discussed, we disagree with the
district court that the applicant, in the course of prosecution,
surrendered the method employed in the Safari product of using a flange
to position the filter element.

On the record before us, however, we cannot be certain that reversing
and entering summary judgment in favor of Innova is the proper course of
action. We leave that decision, in the first instance, to the district
court. Thus, we vacate the district court\'s grant of summary judgment
of noninfringement in favor of Safari and remand for further proceedings
in light of the correct claim interpretation. Because we detect no abuse
of discretion, we affirm the district court\'s denial of Innova\'s
motion to amend the complaint to add the \'362 patent.

COSTS

No costs.

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

[^1]: Innova unsuccessfully disputes this aspect of the disclosure.

[^2]: At this stage in the prosecution, the claim that would issue as
    claim 15 in the \'759 patent was claim 19. Although it contained,
    \"said tube operatively connected to said cap,\" the examiner did
    not include it in this rejection.

[^3]: It issued as claim 14 of the \'759 patent.