NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit
04-1185, -1188 ANHEUSER-BUSCH COMPANIES, INC.,

METAL CONTAINER CORPORATION, and ANHEUSER-BUSCH INC., Plaintiffs-Cross Appellants,

v. CROWN CORK & SEAL TECHNOLOGIES CORPORATION and CROWN CORK & SEAL CO. (USA), INC., Defendants-Appellants.

__________________________ DECIDED: December 23, 2004

__________________________ Before MAYER, Chief Judge , LOURIE, and DYK, Circuit Judges

. LOURIE, Circuit Judge

. Crown Cork & Seal Technologies Corp. and Crown Cork & Seal Co. (USA), Inc. (collectively “Crown”) appeal from the decision of the United States District Court for the Western District of Wisconsin granting summa ry judgment of noninfringement of United States Patent 6,065,634 in fa vor of Anheuser-Busch Companies, Inc., Metal Container Corp., and Anheuser-Busch, Inc. (collectively “Anheuser”). Anheuser-Busch Co. et al. v. Crown Cork & Seal Tech. Corp. and Crown Cork & Seal Co. (USA), Inc. , No. 03-CV137-S (W.D. Wis. Dec. 11, 2003) (“Judgment”). Anheuser cross-appeals from the decision of the district court granting su mmary judgment of noninf ringement of United States Patent D387,987 in favor of Crown. Because we agree that Crown does notinfringe the ’987 patent, we affirm the court’s summary judgment of noninfringement of that patent. However, because the court erred in its construction of Claim 1 of the ’634 patent, we vacate the court’s summary judgment of noninfringement of that patent and remand for the court to redetermine whether Anheuser infringes that patent based on our modified claim construction. BACKGROUND The technology in this case relates to the geometry of can ends. The geometry of a can end may affect both the strength of the can and the amount of metal used to manufacture the can. Because of the enorm ous number of cans t hat are manufactured, a small saving in the amount of metal us ed per can end may result in significant financial savings to the manufacturer. Crow n owns the ’634 patent directed to a can end having a chuck wall that is inclined to an axis perpendicular to the central panel of the can end. Figure 4 of the ’634 patent, s hown below, illustrates a sectioned side view of an embodiment of the cl aimed can end with a chuck wall (24), a chuck wall angle (C  ̊ ), and a central panel (26).

Claim 1, the only independent claim asserted by Crown, reads as follows: A can end comprising; a peripheral cover hook; a chuck wall dependent from an interior of the cover hook;

04-1195, -1188 -2-an outwardly concave annular reinforcing bead extending radially inwards from the chuck wall; and a central panel supported by an inner portion of the reinforcing bead; wherein the chuck wall is incli ned to an axis perpendicular to the exterior of the cent ral panel at an angle between 40  ̊ to 60  ̊ , and a concave cross-sectional radius of the reinforcing bead is less than 0.75 mm. This appeal also involves the ornamental design of can ends. Figures 8 and 9 of the ’987 patent, shown below, are the top and side plan views of the claimed design.

Cross-appellant Metal ContainerCorporation, t he manufacturer of can ends used by Anheuser-Busch and accused by Crown of in fringing the ’634 patent, owns the ’987 patent and is a co-plaintiff in this action. In March 2003, Anheuser filed suit agains t Crown seeking a declaration that its “LOF+” can ends do not infringe the ’634 pat ent. Anheuser’s suit also alleged that Crown’s “SuperEnd” can ends infringe the ’987 patent. Figures 1 and 2 of U.S. Patent D476,889, shown below, disclose the design of SuperEnd. Crown counterclaimed for infringement of its ’634 patent and noni nfringement of the ’987 patent.

04-1195, -1188 -3-On the parties’ competing motions for summary judgment regarding infringement of the ’634 patent, the district court construed claim 1 to require a “flat” chuck wall. Judgment , at slip op. at 11-12. Based on the limitation requiring the chuck wall to be inclined “at an angle,” the court reasoned that “only a flat wall would be described as inclining at ‘an’ angle.” Id. at 12. The court explained that a can end with an arcuate chuck wall, such as LOF+, would have an in finite number of angles and would not be described as having “an angle.” Id. The court also supported its construction of the term “chuck wall” by finding t hat the preferred embodiment and drawings only disclosed can ends with flat chuck walls. Id. at 12-13. The court furt her noted that the single manufacturing method disclosed in the specificat ion would result in a can end with a flat chuck wall. Id. at 13. Finally, the court concluded that the prosecution history did not indicate that the patentee cont emplated a nonflat chuck wall. Id. Based on its claim construction, the court then determined that LO F+ did not infringe t he ’634 patent, either literally or under the doc trine of equivalents. Id. at 13-15. The district court also addressed the parties’ competing motions for summary judgment regarding infringement of the ’987 patent. In dete rmining the points of novelty of the ’987 patent, the cour t considered three prior art United States patents: (1) D365,988; (2) 5,711,488; and (3) D382,481. From the pr ior art, the court discerned

04-1195, -1188 -4-the following three points of novelty: (1) t he tab end of the recess is slightly wider relative to the opening end of the recess in t he ’987 patent than in the prior art; (2) the tab end of the recess is distinctly flatt ened in the ’987 patent, giving the appearance of two distinct corners rather than the c ontinuous arc of the prior art; and (3) the combination of the tab shape and the tab end recess s hape leaves greater space between the tab and the recess edge in the ’987 patent than in the prior art with similar tab shapes (the ’488 and ’481 patents). Id. at 18. In concluding that SuperEnd does not infringe the ’987 patent, the court f ound that the overall appearance of SuperEnd was much closer to the prior art des ign than to the ’987 patent’s design. Id. at 19. Crown has timely appealed and Anheuser has timely cross-appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review a district court's grant of summary judgment de novo , reapplying the same standard used by the district court. Ethicon Endo-Surgery, In c. v. U.S. Surgical Corp. , 149 F.3d 1309, 1315 (Fed. Cir. 1998). Summary judgment is appropriate if there is no genuine issue as to any material fact and that the moving partyis entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). “The evidence of the non-movant is to be believed, and all justifiable infer ences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). A determination of infringement of a ut ility patent requires a two-step analysis. “First, the court determines the scope and meani ng of the patent claims asserted . . . [and second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc. , 138 F.3d 1448, 1454 (Fed. Cir. 1998) ( en

04-1195, -1188 -5-banc ) (citations omitted). Step one, clai m construction, is a question of law, Markman v. Westview Instruments, Inc. , 52 F.3d 967, 970- 71 (Fed. Cir. 1995) ( en banc ), aff’d , 517 U.S. 370 (1996), that we review de novo , Cybor , 138 F.3d at 1456. Step two, comparison of the claims to the accused dev ice, requires a determination that every claim limitation or its equivalent be found in the accused device. Warner-Jenkinson Co. v. Hilton Davis Chem. Co. , 520 U.S. 17, 29 (1997). That determination is a question of fact. Bai v. L & L Wings Inc. , 160 F.3d 1350, 1353 (Fed. Cir. 1998). Similarly, whether a design patent is infringed is also determined by first construing the claim to the design and then co mparing it to the des ign of the accused device. Elmer v. ICC Fabricating, Inc. , 67 F.3d 1571, 1577 (Fed. Cir. 1995). A design patent only protects the novel, ornamental features of the patented design. OddzOn Prods., Inc. v. Just Toys, Inc. , 122 F.3d 1396, 1405-06 (Fed. Cir. 1997) (citations omitted). The comparison step of the infri ngement analysis requires the fact-finder to determine whether the patented design as a whole is substantially similar in appearance to the accused design. T he patented and accused designs do not have to be identical in order for the design patent to infringe. Braun Inc. v. Dynamics Corp. of Am. , 975 F.2d 815, 820 (Fed. Cir. 1992). For there to be infringement, the accused design must also contain substantially the same points of novelty that distinguished the patented design from the prior art. Goodyear Tire & Rubber Co. v. He rcules Tire & Rubber Co., Inc. , 162 F.3d 1113, 1118 (Fed. Cir. 1998). Similarity of overall appearanc e is an insufficient basis for a finding of infringement, unless the similarity embrac es the points of novelty of the patented

04-1195, -1188 -6-design. Id. The points of novelty determi nation is a question of fact. Bernhardt, L.L.C. v. Collezione Europa USA, Inc. , 386 F.3d 1371, 1383 (Fed. Cir. 2004). I. The ’634 Patent On appeal, Crown challenges the distri ct court's summary judgment of noninfringement of the ’634 paten t, arguing that the court err ed in its claim construction analysis. Crown contends that the court erred by reading a “flat” chuck wall limitation into claim 1. The court, acco rding to Crown, mistakenly belie ved that only flat structures could be inclined at an angle. Crown also a lleges that the court improperly imported the “flat” limitation into the cl aims from the preferred em bodiment and a process disclosed in the specification. Finally, Crown assert s that the court erred by relying upon the lack of discussion regarding nonflat chu ck walls in the prosecution hi story to justify its unduly narrow construction. Anheuser responds with numerous arguments to support the district court’s claim construction. Anheuser initially argues that the dictionary definitions of the claim terms “inclined” and “axis” require flat chuck walls . Next, Anheuser contends that because the ’634 patent stresses the import ance of using a frustoconical chuck to manufacture the can end, the claims must be limited to a flat chuck wall. 1 Anheuser also asserts that Crown limited its claims to a flat chuck wall by not distinguishing its claims from the prior art during prosecution on that basis. Finally, Anheuser contends that the testimony of one of the ’634 patent’s invent ors that the patent’s specif ication describes a can end with a flat chuck wall, confirms the court’s construction.

1 A frustoconical chuck is a mechanica l device with a flat cross section that stamps the shape of the chuck wall into the can end.
04-1195, -1188 -7-We agree with Crown that the district court erred in construing the claims to require a flat chuck wall. “Where a specification does not require a[n extraneous] limitation, that limitat ion should not be read from the spec ification into the claims.” E.I. Du Pont de Nemours & Co. v. Phillips Petroleum Co. , 849 F.3d 1430, 1433 (Fed. Cir. 1988). Here, there is no dispute that the cl aims do not expressly require flat chuck walls, and we do not find that t he specification or the prosec ution history expressly or implicitly require the chuck walls to be flat. Indeed, the patent explai ns that an objective of the invention is to develop a sufficiently strong can that uses less metal. ’634 patent, col. 1:20-22; 1:54-65. This objective is accomplished by adj usting the chuck wall angle. Id. The patent does not indica te that the shape of the chuck wall is necessary to accomplish this goal. Thus, no basis exists fo r the court to import the “flat” limitation from the preferred embodiment into the claims. Anheuser’s arguments supporting the di strict court’s construction are unpersuasive. We take each of Anheuser’s ar guments in turn. Anheuser’s definition of the term “incline”—having a leaning or a slope usually from the vertical or horizontal— simply does not require a flat chuck wall. For example, steps of a stair are commonly said to incline at an angle, and there is no question that the steps are not flat. 2 T h e term “axis,” also defined by Anheuser, does not relate to the shape of the chuck wall. Thus, the plain meaning of the claim terms does not require a flat chuck wall. We also reject Anheuser’s argument that the method of manufacture disclosed in the patent requires the chuck wa ll to be flat. The patent discloses that the method of

2 This stair example also overcomes t he district court’s observation that only a flat chuck wall can incline at “an” angle. Like an arcuat e-shaped chuck wall, the steps of a stair have multiple angles and slopes. Nonetheless, the steps have an angle of inclination.
04-1195, -1188 -8-manufacture relied upon by Anheuser is “a sec ond aspect” of the invention, with the first aspect of the invention being the geometry of the can end itself. ’634 patent, cols. 1:56- 2:30. Because claim 1 is a product claim that is not limit ed to a particular method of manufacture, “we decline to super impose a process limitation.” Cordis Corp. v. Medtronic Ave, Inc. , 339 F.3d 1352, 1357 (Fed. Cir. 2003) (citing Vanguard Prods. Corp. v. Parker Hannifin Corp. , 234 F.3d 1370, 1372 (Fed. Cir. 2000) (holding that the limitation of a thin layer “i ntegral therewith” described the product and did not designate a specific manufacturing process, and that a “method of manufacture, even when cited as advantageous, does not of itself convert product claims into claims limited to a particular process”)). Anheuser’s reference to the prosecuti on history to support Crown’s purported acquiescence to the court’s construction of a fl at chuck wall is also unavailing. A critical flaw in Anheuser’s argument is that a flat chuck wall is not a basis of distinction between Crown’s claims and the prior art. As we hav e construed the claims, they cover both flat and nonflat chuck walls. Finally, Anheuser’s reliance upon inventor test imony is misplaced. An inventor’s testimony regarding the scope of his claims is not conclusive of the legal meaning of the claims. E.g., Bell & Howell DMP Co. v. Altek Sys. , 132 F.3d 701, 706 (Fed. Cir. 1997). Nonetheless, we have reviewed the inventortestimony cited by Anheuser and do not find that it compels a construction of a flat chuck wall. In the alternative, if we do not find that claim 1 requires a flat chuck wall, Anheuser contends that the clai m is invalid under 35 U.S.C. § 112, ¶1 for lack of written description and enablement. Anheuser asserts t hat the written description of the ’634

04-1195, -1188 -9-patent does not demonstrate t hat patentees were in posse ssion of a can end with an arcuate-shaped chuck wall. Anheuser also asse rts that in view of the absence of any disclosure of an arcuate chuck wall, claim 1 fails to satisfy the enablement requirement. Whether a patent specificat ion complies with the written description requirement is a question of fact that we re view for substantial evidence. PIN/NIP, Inc. v. Platte Chem. Co. , 304 F.3d 1235, 1243 (Fed. Cir. 2002). T he issue of enablement is a matter of law that we review without deference; however, we revi ew the factual underpinnings of enablement for substantial evidence. BJ Servs. Co. v. Halliburton Energy Servs., Inc. , 338 F.3d 1368, 1371-72 (Fed. Cir. 2003). We reject Anheuser’s lack of written de scription argument. Anheuser’s argument centering on whether there is a written description of an arcuate-shaped chuck wall misses the point. The relevant inquiry is w hether a claim not limited to a flat chuck wall is described. We find that it is. Furthe rmore, Anheuser does not meet its burden of proving lack of written description by merely arguing that the patent ’s sole embodiment has a flat chuck wall. Anheuser cites Gentry Gallery, Inc. v. Berkline Corp. , 134 F.3d 1473 (Fed. Cir. 1998), to support this written description argument, but the facts of Gentry Galleryare distinguishable from this appeal. In Gentry Gallery , the claims were invalid for lack of written description becaus e the specification cl early identified the console as the only location for the controls but the claims did not contain such a limitation. Id. at 1479-80. Here, the written descr iption of the ’634 patent neither discussed the shape of the chuck wall nor requir ed the chuck wall to be flat. Other than the reference to the patent’s preferred embodiment, Anheusercan point to nothing in

04-1195, -1188 -10-the written description requi ring the invention to be narrower than the scope of the claims. We also reject Anheuser’s argument of lack of enablement. “The enablement requirement is met if the description enables any mode of making and using the claimed invention.” Engel Indus., Inc. v. Lockformer Co. , 946 F.2d 1528, 1533 (Fed. Cir. 1991). As explained above, the clai med invention does not requi re an arcuate-shaped chuck wall. Moreover, it is not clear that a different mode of making and using the chuck wall applies depending upon whether it is flat or not. Because the ’634 patent’s written description indisputably enables a person of or dinary skill in the art to make and use the claimed invention with a chuck wa ll, irrespective of whether it is flat or nonflat, the enablement requirement is satisfied. We have considered Anheuser’s remaini ng arguments regarding the ’634 patent and find them not persuasive. II. The ’987 Patent In challenging the district court’s decis ion that SuperEnd does not infringe the ’987 patent, Anheuser makes two arguments. First, Anheuser contends that the court erred by determining the points of novelty as a question of law instead of a question of fact. Secondly, Anheuser asse rts that the court should hav e given it an opportunity to submit evidence and argument contesting the court’s dete rmination of the points of novelty. Although Anheuser raises valid points regarding the district court’s determination of the points of novelty, we nonetheless affirm the decision. SuperEnd does not infringe the ’987 patent under the substantial similarity test, even if Anheuser is correct concerning the district court’s points of novelty characterization. We do not

04-1195, -1188 -11-reach these questions regarding the point of novelty test because we conclude that summary judgment was appropriate due to the absence of a genuine dispute as to any material fact concerning the substantial simila rity test, and both tests must be satisfied. As shown above, in figures 8 and 9 of t he ’987 patent, the clai med invention is characterized by, inter alia , a trapezoid-shaped recess area with the width of the tab side only slightly smaller t han the width of the opening side, a relatively significant amount of space between the end of the tab and the edge of the recess, a relatively small amount of space between the edge of t he central panel and the top of the chuck wall, and the chuck wall is almost perpendicular to the central panel. Based on this partial claim construction, we conclude, as a matter of law, that SuperEnd does not infringe the ’987 patent. The recess area of SuperEnd has a relatively smaller width on the tab side than in the ’987 patent. That gives the recess area of SuperEnd a more pear-like shape compar ed to the more rectangle-like shape of the ’987 patent. The space between the end of the tab and the edge of the recess in SuperEnd is also relatively smaller co mpared to the ’987 patent. Finally, the appearance of the area between t he edge of the central panel and the top of the chuck wall of SuperEnd is clearly di stinguishable from that in t he ’987 patent. The chuck wall of SuperEnd is relatively longer and more angled compared to the ’987 patent. These individual differences contribute to a subs tantial difference in the overall appearance between SuperEnd and the design of the ’ 987 patent, and no reasonable fact-finder could conclude otherwise. Such a conclusion is compelled irrespective of the issue that Anheuser raises, i.e. , whether the district court im properly evaluated the points of novelty issue as a matter of law. Its treatment of that issue was at most harmless error.

04-1195, -1188 -12-CONCLUSION We vacate the district court's order granting summa ry judgment of noninfringement of the ’634 pat ent and we remand for further proceedings. We affirm the judgment of noninfringem ent of the ’987 patent. Costs Each party shall bear its own costs.

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