NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-1292,-1293,-1294,-1295 

LSI INDUSTRIES, INC., 

Plaintiff-Appellee, 

v. 

IMAGEPOINT, INC. (formerly known as Plasti-Line, Inc.), 

Defendant-Appellant, 

and 

MARKETING DISPLAYS, INC., 

 Defendant-Appellant. 

------------------------------------------------------------ 

IMAGEPOINT, INC., 

 Plaintiff-Appellant, 

v. 

KEYSER INDUSTRIES, INC. (also known as Florida Plastics International, Inc.), 

Defendant/Third Party PlaintiffAppellee, 

v. 

MARKETING DISPLAYS, INC., 

 Third-Party Defendant-Appellant. 

Mark G. Davis, McDermott Will & Emery LLP, of Washington, DC, argued for 

plaintiff-appellee and defendant/third party plaintiff-appellee. With him on the brief were 

Evan A. Parke and Amalie M. Weber. Of counsel on the brief were Peter L. Resnik and 

Matthew E. Leno, of Boston, Massachusetts. 
Mark S. Graham, Luedeka, Neely & Graham, P.C., of Knoxville, Tennessee, argued 

for defendant-appellant and plaintiff-appellant ImagePoint, Inc. With him on the brief were 

Geoffrey D. Kressi and J. David Gonce. Of counsel on the brief were L. Clifford Craig, 

John B. Nalbandian, and Ryan M. Bednarczuk, Taft, Stettinius & Hollister LLP, of 

Cincinnati, Ohio. 

John A. Artz, Dickinson Wright PLLC, of Bloomfield Hills, Michigan, argued for 

defendant appellant Marketing Displays, Inc. 

 

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

Senior Judge William O. Bertelsman 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-1292, -1293, -1294, -1295 

LSI INDUSTRIES, INC., 

 Plaintiff-Appellee, 

v. 

IMAGEPOINT, INC. (formerly known as Plasti-Line, Inc.), 

 Defendant-Appellant, 

and 

MARKETING DISPLAYS, INC., 

 Defendant-Appellant. 

------------------------------------------------------- 

IMAGEPOINT, INC., 

 Plaintiff-Appellant, 

v. 

KEYSER INDUSTRIES, INC. (also known as Florida Plastics International, Inc.), 

Defendant/Third Party PlaintiffAppellee, 

v. 

MARKETING DISPLAYS, INC., 

 Third Party Defendant-Appellant. 

Appeals from the United States District Court for the Eastern District of Kentucky in 

case no. 00-CV-197 and 05-CV-105, Senior Judge William O. Bertelsman. 

 
___________________________________ 

REVISED OPINION ISSUED: May 22, 2008 

___________________________________ 

Before RADER and LINN, Circuit Judges, and WOLLE, Senior District Judge.

*

LINN, Circuit Judge. 

 ImagePoint, Inc. (“ImagePoint”) and Marketing Displays, Inc. (“MDI”) appeal from 

a final decision of the United States District Court for the Eastern District of Kentucky 

(Bertelsman, J.), LSI Indus., Inc. v. ImagePoint, Inc., No. 00-CV-197 (E.D. Ky. Mar. 21, 

2007) (“Summary Judgment Order”). That order granted summary judgment of noninfringement to LSI Industries, Inc. (“LSI”) and Keyser Industries, Inc., also known as 

Florida Plastics International, Inc. (“Florida Plastics”), following the district court’s 

construction of numerous claim terms. LSI Indus., Inc. v. ImagePoint, Inc., No. 00-CV197 (E.D. Ky. Oct. 27, 2006) (“Claim Construction Order”).1

 Because the district court 

incorrectly construed many of the terms on which the summary judgment of noninfringement was predicated, and because for the correctly construed terms, the record 

is insufficient for us to determine whether summary judgment of non-infringement was 

appropriate, we vacate and remand. 

 

*

 Honorable Charles Robert Wolle, Senior District Judge, United States 

District Court for the Southern District of Iowa, sitting by designation. 

1

 The second district court action at issue in this appeal, No. 05-CV-105, 

arose from a separate controversy between ImagePoint and Florida Plastics. In March 

2004, ImagePoint filed suit against Florida Plastics in the Eastern District of Tennessee 

alleging infringement of MDI’s patents. Florida Plastics counterclaimed and pled in MDI 

as a Third-Party Defendant. The case was subsequently transferred to the Eastern 

District of Kentucky and consolidated with No. 00-CV-197 for pretrial purposes. The 

issues appealed in these two cases are identical, and for ease of reference, we refer 

only to No. 00-CV-197. 

2007-1292, -1293, -1294, -1295 2 
 A petition for panel rehearing was filed by LSI and Florida Plastics and granted 

by the panel for the limited purpose of supplementing the court’s claim construction of 

“divider member.” The previous opinion of the court, issued on March 19, 2008, is 

withdrawn and this opinion is substituted in its place. The disposition of the appeal is 

unchanged. 

I. BACKGROUND 

 MDI is a provider of a wide assortment of indoor and outdoor products for 

promotional signage and displays. This case involves “menuboards,” which are used in 

the fast food restaurant industry to depict a restaurant’s menu items and prices. MDI is 

the assignee of numerous patents directed to menuboards, in particular, those that are 

easily reconfigurable. The patents at issue in this appeal are U.S. Patent No. 5,682,694 

(“the ’694 patent”), U.S. Patent No. 5,983,543 (“the ’543 patent”), U.S. Patent No. 

6,125,565 (“the ’565 patent”), U.S. Patent No. 6,298,589 (“the ’589 patent”), U.S. Patent 

No. 6,631,576 (“the ’576 patent”), and U.S. Patent No. 6,843,011 (“the ’011 patent”) 

(collectively, “the menuboard patents” or “the patents-in-suit”). MDI’s first patent, the 

’694 patent, issued in 1997. Its second patent, the ’543 patent, issued in 1999 as a 

continuation-in-part of the ’694 patent. All other patents-in-suit issued as continuations 

of the ’543 patent, and consequently, share a common specification with that patent. 

ImagePoint is MDI’s exclusive licensee of the menuboard patents. 

 LSI and Florida Plastics (collectively, “LSI”) are competitors of MDI and 

ImagePoint (collectively, “MDI”). In October 2000, LSI filed suit against MDI in the 

Eastern District of Kentucky, seeking a declaratory judgment that its menuboards did 

not infringe the ’694, ’543, and ’565 patents. LSI moved for summary judgment that the 

2007-1292, -1293, -1294, -1295 3 
three patents-in-suit were invalid over U.S. Patent No. 1,841,026 (“Greenstone”) and 

U.S. Patent No. 2,079,230 (“Shively”). In response, MDI filed a petition for 

reexamination of the patents in light of Greenstone and Shively. The Patent and 

Trademark Office confirmed the patentability of all claims, generating, in the process, a 

voluminous prosecution record. Thereafter, the lawsuit, which was stayed pending 

reexamination, was reopened, and MDI added to the litigation the ’589, ’576, and ’011 

patents, which had issued during the pendency of the reexamination. 

 The district court held a claim construction hearing and subsequently issued the 

Claim Construction Order. Thereafter, the district court considered and granted LSI’s 

motion for summary judgment of non-infringement, concluding that none of the patents, 

as construed, was infringed by any of the accused infringing devices. This appeal 

followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). 

II. DISCUSSION 

A. Claim Construction 

 Claim construction is a question of law, see Markman v. Westview Instruments, 

Inc., 52 F.3d 967, 970-71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996), subject 

to plenary review. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 

1998) (en banc). 

 The parties dispute a number of claim terms of the six patents-in-suit. These 

terms can be generally classified into the following categories: (1) “retention member”; 

(2) “divider member”; (3) “opposed retention members”; (4) “display member”; (5) 

“removably secured”; (6) “channel means,” “channel”; (7) “frame member”; (8) “without 

2007-1292, -1293, -1294, -1295 4 
disassembly”; (9) “mating male and female connection members”; (10) “display device”; 

and (11) “display module.” 

 At the claim construction hearing, the district court judge communicated his lack 

of familiarity with patent law, J.A. at 282 (“I get a patent case about every three years. 

In the 27 years, I’ve only had about five of them. And this seems to be the most 

complex so far.”), and repeatedly requested guidance from counsel on both sides on 

how to construe the claims, id. at 285, 286, 292. The record reveals that counsel made 

little effort to simplify the case, but instead presented the district court with a firestorm of 

issues and arguments, fueled by the voluminous reexamination record and an 

aggressive use of statements in that record to support multiple contentions that subject 

matter was disavowed. In the end, counsel for LSI was successful in persuading the 

district court to adopt constructions for each of the disputed terms that, in most 

instances, inappropriately imported limitations from the specifications and prosecution 

histories into the claims. The victory was short-lived, however, and warrants our 

reemphasizing that an attorney has a duty not only to zealously advocate on behalf of 

his client, but also to aid the court in the fair and efficient administration of justice. Allen 

Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1356 (Fed. Cir. 2002) (“Counsel must 

remember that they are not only advocates for their clients; they are also officers of the 

court and are expected to assist the court in the administration of justice, particularly in 

difficult cases involving complex issues of law and technology.”). The district court also 

has an obligation, despite any obfuscation or lack of assistance of counsel, to carefully 

consider, and independently decide, the issues in the case. Following the claim 

construction hearing, the district court adopted LSI’s proposed findings of fact and 

2007-1292, -1293, -1294, -1295 5 
conclusions of law verbatim. Compare Claim Construction Order, with J.A. at 2674-

2738. While this practice is not prohibited, it is frowned upon because, in situations 

such as these, it gives the impression that there was insufficient independent evaluation 

of the parties’ arguments and evidence. See Wyler Summit P’ship v. Turner Broad. 

Sys., Inc., 235 F.3d 1184, 1196 (9th Cir. 2000). 

 We move now to the construction of the claim terms at issue. 

* * * 

 We have frequently noted that it is inappropriate to import limitations from the 

specification to limit facially broad claims “unless the patentee has demonstrated a clear 

intention to limit the claim scope using ‘words or expressions of manifest exclusion or 

restriction.’” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) 

(citation omitted). It is similarly inappropriate to read statements or actions during 

prosecution to disclaim subject matter encompassed by the literal scope of the claims 

unless “the alleged disavowing actions or statements made during prosecution [are] 

both clear and unmistakable.” Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 

1325-26 (Fed. Cir. 2003); see also id. at 1325 (“[W]e have thus consistently rejected 

prosecution statements too vague or ambiguous to qualify as a disavowal of claim 

scope.”). In this case, each of the claim terms at issue was limited, despite facially 

broad language, based on statements in the specifications or the prosecution histories. 

We have carefully reviewed the specifications and prosecution histories of the patentsin-suit and conclude that, for the “opposed retention members,” “display member,” and 

“removably secured” terms, the district court was correct to limit the claims because the 

statements at issue clearly and unmistakably disavowed claim scope by distinguishing 

2007-1292, -1293, -1294, -1295 6 
prior art references to overcome the examiner’s rejections. See, e.g., J.A. at 1591 

(distinguishing claims of the ’565 patent from the Greenstone reference on the basis of 

certain “distinct differences,” including “display members having translucent portions”). 

With regard to the remainder of the terms, however, we conclude that vague and 

ambiguous statements were inappropriately interpreted to disavow claim scope. 

 Consequently, we affirm the district court’s constructions of “opposed retention 

members,” “display member,” and “removably secured.” We reverse the remainder of 

the district court’s constructions, which we address in turn. 

“retention member”; “divider member”

 The district court construed “retention member” as “an individual projection that 

removably secures in a recess or groove on a divider member.” Claim Construction 

Order at 42 (emphasis added). It construed “divider member” as “a removable member 

with a recess or groove that snaps onto a retention member.” Id. (emphasis added). 

The district court’s construction of the divider member “snap[ping] onto” the retention 

member and the retention member as being “secure[d] in a recess” effectively limited 

the scope of the claims to “male” retention members and “female” divider members. 

The district court’s imposition of these limitations was based primarily on statements 

made during reexamination and figures in the specification showing male retention 

members and female divider members. Id. at 49. The plain language of the claims, 

however, does not require these limitations, and the presence of similar limitations in 

dependent claims strongly suggests that the independent claims should not be so 

limited. Compare, e.g., ’543 patent, claim 9, with id., claim 10. Moreover, the language 

in MDI’s Patent Owner’s Statement, on which the district court relied to find disclaimer, 

2007-1292, -1293, -1294, -1295 7 
is nothing more than a general description of the features of several independent and 

dependent claims. This statement, and the others cited by LSI, are not sufficient to 

constitute a clear and unambiguous disavowal of non-female divider members or nonmale retention members. 

 MDI did make statements during prosecution of the ’694, ’543, and ’565 patents, 

however, which unambiguously disavowed divider members without a “snap-fit” 

connection.2

 For example, during reexamination of the ’694 patent, MDI made the 

following statement in an attempt to overcome the examiner’s rejection based on a 

combination of certain prior art references: 

[A] basic combination of the Greenstone and Clark patents do [sic] not

show any of the following features (all of which are included in 

independent claim 9 unless specifically noted otherwise): . . . 4. 

Removable horizontal bars [i.e., divider members] which are snap-fit in 

position in the frame . . . . 

J.A. at 845 (second emphasis added); see also J.A. at 1311 (similar statement with 

respect to ’543 patent); J.A. at 1891 (similar statement with respect to ’565 patent). 

These statements to the examiner, which related to all claims in those patents with the 

divider member term, clearly and unambiguously defined divider members to have a 

“snap-fit” connection, and therefore disclaimed those that do not. Although these 

statements were made with respect to the ’694, ’543, and ’565 patents, they also supply 

the meaning of “divider member” as it appears in the ’589, ’576, and ’011 patents,3

 each 

 

2

 In the briefs and at oral argument, the parties focused on the male/female 

limitation issue, and did not address whether there was a separate requirement that the 

divider member have a “snap-fit” connection with the frame or retention member 

(regardless of which one snapped “onto” the other). This is the sole issue LSI raises in 

its petition for rehearing. 

3

 The ’011 patent is the only patent-in-suit which expressly contains a “snap-fit” 

limitation. In its response to LSI’s petition, MDI argues that because in some instances 

2007-1292, -1293, -1294, -1295 8 
of which was filed as a continuation of the application resulting in the ’543 patent. See

NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1293 (Fed. Cir. 2005) (“Because 

NTP’s patents all derive from the same parent application and share many common 

terms, we must interpret the claims consistently across the asserted patents.”) (citations 

omitted); Jonsson v. Stanley Works, 903 F.2d 812, 818 (Fed. Cir. 1990) (when two 

patents using the same claim term both stem from the same parent application, the 

prosecution histories of both are relevant to an understanding of the term in both 

patents). 

 The district court also construed retention member to be an “individual” 

projection. In so doing, the district court relied upon vague and ambiguous statements 

in the prosecution history in concluding that MDI had disavowed coverage of nonindividual retention members. Except in claims where the term “individual” expressly 

appears, e.g., ’694 patent, claim 9, the claimed retention members are not so limited. 

 Properly construed, “retention member” means “a member which retains a 

divider member to the frame.” “Divider member” means “an elongated member used to 

divide the open face of a frame module into a plurality of areas for placement of display 

members or menustrips and which is snap-fit in position.” 

 

the limitation only appears in dependent claims, the doctrine of claim differentiation 

prevents it from limiting the “divider member” term standing alone. We disagree. As we 

recently observed, “the presumption created by the doctrine of claim differentiation is 

‘not a hard and fast rule and will be overcome by a contrary construction dictated by the 

written description or prosecution history.’” Regents of Univ. of Cal. v. Dakocytomation 

Cal., Inc., 517 F.3d 1364, 1375 (Fed. Cir. 2008) (citation omitted). 

2007-1292, -1293, -1294, -1295 9 
“channel means”; “channel”

 The district court construed the “channel means” terms as means-plus-function 

claim elements under 35 U.S.C. § 112 ¶ 6. Although use of the word “means” gives rise 

to a presumption that “channel means” is a means-plus-function element, the 

presumption falls “if the claim itself recites sufficient structure to perform the claimed 

function.” Envirco Corp. v. Clestra Cleanroom, Inc., 209 F.3d 1360, 1364 (Fed. Cir. 

2000). A “channel” is “a metal beam or strip having a U-shaped section,” Webster’s 

Third New International Dictionary 374 (2002); see also J.A. at 2629-30, which is a 

structural member that performs the function recited in the claim. Thus, the word 

“channel” itself recites sufficient structure to overcome the presumption. The district 

court’s construction was also based on its determination that judicial estoppel barred 

MDI from arguing that “channel means” was not a means-plus-function claim element. 

Claim Construction Order at 47. The district court’s application of judicial estoppel was 

misplaced, however, primarily because MDI never prevailed on any argument that these 

terms were drafted in means-plus-function format. See New Hampshire v. Maine, 532 

U.S. 742, 750-51 (2001) (discussing factors informing judicial estoppel). 

 The district court construed “first channels” as “channel(s) in a divider member 

that retain portions of display members and prevent light from escaping between a 

divider member and vertical frame members.” Claim Construction Order at 53. It 

construed “second channels” as “channel(s) in the top frame member or in the bottom 

frame member that retain portions of display members and that prevent light from 

escaping between the display members and the frame.” Id. at 52. Thus, the district 

court’s construction requires that both the first channels and the second channels be 

2007-1292, -1293, -1294, -1295 10 
able to block light, id. at 51, 53, and that the second channels be in the horizontal frame 

members (i.e., the top or bottom frame members), id. at 51. Contrary to the district 

court’s determination, nowhere does the specification or prosecution history make 

statements that rise to the level of disavowing first or second channels that do not block 

light or second channels located in vertical frame members. Properly construed, “first 

channels” are “grooves or channels in a divider member that secure portions of the 

display members” and “second channels” are “grooves or channels in a frame member 

that secure portions of the display members.” 

“frame member”

 The district court construed “frame member” as a “beam-like structure 

constituting one of four frame members of the display module outer rectangular frame, 

where the beam-like structure can be comprised of multiple components only where all 

components are directly attached to one another.” Id. at 54. As the district court 

correctly recognized, the plain meaning of “frame member” encompasses single- or 

multi-component beam-like structures, but the plain meaning also requires that if the 

beam-like structure is composed of multiple components, those components must be 

attached, or otherwise it would be “frame members.” Cf. id. at 53. There is no support 

in the claims, the specification, or the prosecution history, however, for limiting the 

invention to four frame members only, and doing so would import limitations from the 

preferred embodiment. Properly construed, “frame member” means “a beam-like 

structure that forms part of the rectangular frame of the display module, where the 

beam-like structure can be comprised of multiple components if the components are 

directly attached to one another.” 

2007-1292, -1293, -1294, -1295 11 
“without disassembly of frame”

The district court construed “without disassembly” to mean the “divider members 

and display members can be removed from or placed in the module with the perimeter 

of the outer frame remaining intact.” Id. at 55. There is nothing in the specification or 

the prosecution history that supports limiting the disassembly to “the perimeter of the 

outer frame remaining intact.” Properly construed, the term “without disassembly of the 

frame” carries its plain and ordinary meaning: “the divider members and display 

members can be removed from or placed in the frame without taking apart the frame.” 

“mating male and female connection members”

 The district court construed “mating male and female connection members” as “a 

set of interlocking ridges and grooves.” Id. at 56. There is no support in the 

specification or prosecution history for limiting the term in this manner. “Mating male 

and female connection members” means no more than “connecting male and female 

structural elements.” 

“display device”

 The district court construed “display device” to mean a “sign box (i.e., 

menuboard) that contains one or more housings with internal illumination and one or 

more removable display panels (i.e., display modules).” Id. at 56. The district court’s 

construction was based on its conclusion that “MDI consistently emphasized in the 

specification and during prosecution that the display device contains an internal 

illumination source.” Id. 

 Some claims specifically recite “an illuminated display device,” while others recite 

only “a display device.” Compare, e.g., ’565 patent, claim 1, with id., claim 5. Thus, the 

2007-1292, -1293, -1294, -1295 12 
language of the claims counsels against imposing an illumination limitation on the 

display device term because it would make the limitation superfluous where it explicitly 

appears. Moreover, the specification and prosecution history do not clearly disavow 

non-illuminated display devices. Thus, properly construed, “display device” means “a 

sign box (i.e., a menuboard) which includes at least a housing and is adapted to mount 

one or more display modules thereto.” 

“display module”

 The district court construed “display module” as a “self-contained subunit with an 

outer, rectangular frame which can be inserted into, removed from, or relocated to a 

new position within a display device.” Claim Construction Order at 57. MDI repeatedly 

emphasized during prosecution this functionality of the display module—namely, it 

being self-contained and able to be inserted into, removed from, etc., the display device. 

For example, during reexamination of the ’543 patent, MDI argued: “‘[M]odule’ is used in 

the specification and the claims to refer to a self-contained subunit which can be 

inserted into, removed from, or relocated to a new position within the overall display 

device, all without the need to disassemble the display device housing. With this 

terminology, [the inventor] has exercised his lawful right to act as his own 

lexicographer.” J.A. at 1316. Nowhere, however, does the specification or prosecution 

history indicate that the display module must have “an outer, rectangular frame.” And 

because that limitation appears elsewhere in the claims, e.g., ’543 patent, claim 9, it 

should not be engrafted onto the “display module” term itself. “Display module” means 

“a menu module (i.e., menupanel) that can be inserted into, removed from, or relocated 

to a new position within a display device.” 

2007-1292, -1293, -1294, -1295 13 
B. Summary Judgment of Non-infringement 

 The district court granted summary judgment of non-infringement to LSI based 

upon its conclusion that the accused infringing devices did not meet a number of the 

various claim elements as construed. We vacate the district court’s grant of summary 

judgment. First, with respect to the terms for which we have substituted a new 

construction, we vacate in order for the district court to reassess infringement based on 

the proper constructions. See Beckson Marine, Inc. v. NFM, Inc., 292 F.3d 718, 724 

(Fed. Cir. 2002) (“[A] change in the claim construction at the appellate level generally 

necessitates a remand to the district court to resolve the new factual issues raised by 

the new claim construction, except, of course, in the rare instance that the record on 

appeal leaves no genuine issues of material fact and entitles the movant to judgment as 

a matter of law.”). Second, with respect to those terms on which the district court 

granted summary judgment and for which we have affirmed the constructions, we find 

the record insufficient for us to determine if summary judgment of non-infringement was 

appropriate. 

 Summary judgment is properly granted when, after drawing all reasonable 

inferences in favor of MDI, there is no genuine issue of material fact as to noninfringement. See Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1301 (Fed. Cir. 

1999); Fed. R. Civ. P. 56(c). We are presented here with no meaningful way to review 

the district court’s determinations. For example, with respect to the “removably 

secured” limitation, the district court found: “Because none of the Accused Products, 

either literally or by equivalent, permit removal of an H-track [(i.e., divider member)] in a 

direction perpendicular to the menu panel frame, none of the Accused Products meet 

2007-1292, -1293, -1294, -1295 14 
2007-1292, -1293, -1294, -1295 15 

the [limitation] . . . .” Summary Judgment Order at 4. There is no analysis, no citation to 

record evidence, nor any accompanying explanation as to why, despite MDI’s vigorous 

and record-based arguments to the contrary, the district court concluded there was no 

genuine issue of material fact as to infringement, either literally or under the doctrine of 

equivalents. Indeed, while we cannot and do not predetermine the question, the 

evidence and argument MDI has presented indicate that the district court, on remand, 

could very well find that genuine issues of fact are present with respect to infringement 

of this limitation. For example, the record suggests that although the divider members 

(i.e., the “H-tracks”) of the accused products must be slid laterally to some minor extent 

prior to their perpendicular removal, they may still be removed in a manner that is 

substantially perpendicular to the frame. J.A. at 2765, 2852. This detail warrants more 

than the cursory disposition it received. Similar questions remain as to infringement of 

the “opposed retention members” and “display member” limitations. We do not decide 

those questions here, as they are properly reserved for the district court to decide in the 

first instance. 

III. CONCLUSION 

For the foregoing reasons, the district court’s grant of summary judgment of noninfringement is vacated, and the case is remanded for further proceedings consistent 

with this opinion. 

VACATED and REMANDED

COSTS 

 Costs are awarded to MDI and ImagePoint.