NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1404

TIME’ N TEMPERATURE COMPANY, Plaintiff-Appellant,

v.

SENSITECH, INC. and DONALD W. BERRIAN, Defendants-Appellees.

Daniel M. Cislo , Cislo & Thomas LLP, of Sant a Monica, California, argued for plaintiff-appellant. With him on the brief was David B. Sandelands

. Francis H. Morrison III , Day, Berry & Howard LLP, of Boston, Massachusetts, argued for defendants-appellees. With him on the brief was John T. Gutkoski . Of counsel was Alexandra C. Fennell

. Appealed from: United States District Cour t for the Central District of California Judge Manuel L. RealNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1404 TIME ’N TEMPERATURE COMPANY, Plaintiff-Appellant,

v. SENSITECH, INC., and DONALD W. BERRIAN, Defendants-Appellees.

___________________________ DECIDED: January 30, 2007

___________________________ Before MAYER, BRYSON, and DYK, Circuit Judges

. PER CURIAM. Donald W. Berrian and Sensitech, Inc., (collectively, “Sensitech”) are the assignee and exclusive licensee of U.S. Pat ent No. Re. 36,200 (“the ’200 patent”). The patent is directed to an electronic monito ring device that is capable of sensing and recording external parameters su ch as temperature, humidity, pressure, or acceleration. Appellant Time ’N Temperature Co. (“T NT”) makes and sells several types of temperature recorders for use in connection with the shipment of perishable foods. Sensitech filed this action for patent infringement against TNT in the United States District Court for the District of Massa chusetts. On TNT’s motion, the district court transferred the case to the United States District Court for the Central District ofCalifornia, where it was conso lidated with a separate ac tion filed by TNT. In that action, TNT brought antitrust claims against Sensit ech and sought a declaratory judgment of invalidity and noninfringement of the ’200 patent. The di strict court subsequently granted TNT’s motion to dismiss the antitrust claims with prejudice. After the close of discovery, both parti es moved for summary judgment as to liability. The district court denied TNT’s mo tions with respect to infringement and patent invalidity, granted Sensitech’s motions on the same subjects, and issued a permanent injunction barring TNT from selling the accu sed devices. TNT now appeals from the issuance of the injunction, raising issues of claim construction, anticipation, and

obviousness. We hold that the district court erred in concluding that none of the claims of the ’200 patent are in valid for anticipation. Claim 1 of the ’200 patent provides as follows: Apparatus for monitoring an externa lly applied parameter, comprising a housing enclosing: A. a sensor having a characteristic that varies in a predetermined manner with variation of said parameter; B. a monitoring and output network including: i. means coupled to said s ensor for generating a signal representative of variations of sa id characteristic over time, ii. first storage means for storing values associated with selected portions of said signal, said se lected portions including other than the most recent portion of said signal, and iii. selectively operative means for generating an output signal representative of selected ones of said stored values; and C. a power supply in operable communication with said sensor and said network. On appeal, TNT asserts that each of three prior art references anticipates the claims of the ’200 patent. One of the three prior art references, U.S. Patent No. 4,745,564 to Tennes (“the ’564 patent”), discloses an apparatus for meas uring and recording externally applied

2006-1404 2parameters relating to goods in transit. S ensitech argues that the Tennes reference does not anticipate the ’200 patent because Tennes does not disclose the storage of values “associated with” selected portions of the external parameter signal, as required by claim 1 of the ’200 patent. That argument is rebutted by an examinat ion of the text of the Tennes patent. Tennes is directed to an impact-detection apparatus “for measuring and recording accelerations or other physical quantitie s experienced by eas ily damaged items of commerce such as fruit and electronic comput ers.” The specific ation of the Tennes patent states: This invention provides an apparatus adapted to measure and record the acceleration history of commodities while they are being handled or transported. . . . It can sense accele rations along each of three coordinate axes. All three accelerations are stored as data if any one exceeds a predetermined acceleration magnitude. The apparatus also stores the time of occurrence of such accelera tions, thereby providing an event-time history. This history can be read fr om the memory for analysis after the handling or transportation is completed. ’564 patent, col. 2, line 61, through col. 3, line 4. Thus, the Tennes patent plainly discloses the storage of values corresponding to selected signals relating to acceleration (or other parameters).

That disclosure in Tennes satisfies t he allegedly missing claim limitation. Sensitech, however, argues that the limitation of the ’200 pat ent that refers to “values associated with selected portions of [the] si gnal” requires that the stored value reflect some type of mathematical computation. Sensitech c haracterizes measurements indicative of a particular parameter (such as temperature) as “simpl e readings,” while it refers to the results of a comparison or ca lculation involving one or more readings (such as a figure representing the maximum tem perature recorded within a certain time2006-1404 3frame) as “computed values.” Under Sensitec h’s theory, “storing values associated with selected portions of [the] signal” refers to the storage of “computed values,” whereas Tennes teaches only the stor age of “simple readings.” Both aspects of Sensitech’s theory are fl awed. First, the ’200 patent clearly uses the phrase “values associated with the signal ” in a manner that encompasses the storage of “simple readings” such as tem perature measurements. The specification explicitly states that “[v]al ues associated with the signal, e.g. actual temperature values, are stored in a memory device for subsequent, sele cted retrieval.” ’200 patent, col. 3, ll. 1-3. Moreover, the disclosures in the Tennes patent satisfy even Sensitech’s narrow construction requiring the storage of “comput ed values.” Claim 6 of Tennes recites “[t]he acceleration event detector/recorder of claim 4, wherein t he arithmetic logic means processes the digital signals to produc e a digital signal representing the area under the acceleration time-history curve.” ’564 patent, col. 11, ll. 26-29. Claim 8 of Tennes describes a similar arithmetic logic means that “processes the digital signals to produce digital signals represent ing the frequency contents of accelerations which meet predetermined criteria.” ’564 pat ent, col. 11, ll. 34-38. Those claims clearly disclose the computation of values that r epresent a comparison with or ca lculation involving multiple readings of the input signal. And contrary to Sensitech’s asserti on, the Tennes patent teaches the storage of such fi gures; both claims 6 and 8 of the Tennes patent ultimately depend from claim 2, which ex plicitly requires the stor age of the digital signal representing the computed values. ’564 patent, col. 10, line 66, through col. 11, line 3. Thus, even under Sensitech’s proffered claim construction, the Tennes patent anticipates the claimed invention.

2006-1404 4Sensitech attempts to rebut the sho wing of anticipation based on Tennes by pointing to a statement made by TNT’s expert, that the Tennes patent does not teach the storage of any “calculations, comparis ons, of acceleration values, between or among themselves to determine a high or a low.” According to Sensitech, that statement supports Sensitech’s theory t hat Tennes does not teach the storage of “computed values.” There are two defects in that line of reasoning, however. First, the expert’s statement is direct ed solely to claim 24 of the Tennes patent and does not address the remainder of the patent. Second, the statement is limit ed to the issue of

whether claim 24 of the T ennes patent teaches the dete rmination of a minimum or maximum acceleration over a particular period of time. Sensitech’ s argument therefore relies on the false premise that the calculation of a minimum or maximum acceleration

is coextensive with the meani ng of the term “computed value. ” Even under Sensitech’s construction of the term, the meaning of “computed value” encompasses any comparison or calculation involving multiple signal readings. That definition is clearly broad enough to capture the com putation of the area under an acceleration time-history curve, which is expressly taught by Tennes. Under the proper construction of the cl aim limitation “values associated with selected portions of [the] signal,” it is clear fr om the record before th e district court that no reasonable jury could find that limitation not to be anticipated by the prior art Tennes patent. That limitation was the only basis invoked by Sens itech, either in the district court or in this court, for distinguishing Tennes from the ’200 patent.

We hold that the district court should have granted TNT’s motion for summary judgment of anticipation bas ed on TNT’s showing that T ennes anticipates the ’200

2006-1404 5patent and, for that reason, s hould not have issued an injunction. In the district court, TNT alleged in general that all the claims of the ’200 patent were invalid, but it focused in particular and with specificity on claims 1, 24, and 42 of that patent. Because Sensitech’s response to TNT’s anticipation ar gument in the district court and in this court was predicated on the “values associat ed with selected portions of [the] signal” limitation, we hold that clai ms 1, 24, and 42 are anticipated by Tennes, and we therefore

reverse the decision of the district court as to those claims. In their briefs before this court, the parties did not s eparately address the issue of the validity of each of the remaining dependent claims of the ’200 paten t. In further proceedings before the district court, the district c ourt should consider, in light of the analysis set forth above, the validity of any remaining dependent claims as to which there may be a continuing dispute between the parties. Based on our ruli ngs on the issue of li ability, we reverse the injunction entered against TNT.

2006-1404 6