N OTE : This disposition is nonprecedential. 

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

______________________ POWER PROBE GROUP, INC., Plaintiff

- Appellant

v.

INNOVA ELECTRONICS CORPORATION, Defendant

- Appellee

______________________

2021

- 2354

______________________ Appeal from the United States District Court for the District of Nevada in No. 2:21

- cv

- 00332

- GMN

- EJY, Judge Gloria M. Navarro.

______________________
Decided: April 12, 2022

______________________
S AMUEL A LEXANDER L ONG , J R ., Shumaker, Loop & Kendrick, LLP, Charlotte, NC, argued for plaintiff

- appellant. Also represented by T OM B EN G ERA , L UCAS D. G ARBER ; J AMES D ANIEL B OYLE , Holley Driggs, Las Vegas, NV.

K ENNETH R OBER T A DAMO , Law Office of KRAdamo, Chicago, IL, argued for defendant

- appellee. Also represented by R ICHARD P. B EEM , A LEX S HTRAYM , Beem Patent Case: 21-2354 Document: 54 Page: 1 Filed: 04/12/2022POWER PROBE GROUP , INC

. v. INNOVA ELECTRONICS CORPORATION 2

Law Firm, Chicago IL ; J ARED M. M OSER , Marquis Aurbach Coffing, Las Vegas, NV

.

______________________
Before N EWMAN , L OURIE , and T ARANTO , Circuit Judges

. L OURIE , Circuit Judge

. Power Probe Group, Inc. (“Power Probe”) appeals froma decision of the United States District Court for the District of Nevada denying a preliminary injuncti on against further sales of Innova Electronics Corporation’s (“Innova”) Powercheck # 5420 device (the “Accused Product”)

. See Power Probe Grp., Inc. v. Innova Elecs. Corp. , No. 21

- cv

332, 2021 WL 4484571 (D. Nev. Sept. 15, 2021) (“ Decision ”).

Because the d istrict court erred in its preliminary claim construction, we vacate its decision denying a preliminary injunction and remand for further proceedings consistent with this opinion.

B ACKGROUNDPower Probe owns U.S. Patent 7,184,899 (the “’899 patent”) . Th e patent is directed to an electrical test device having multi

- meter functionality that measures a plurality of parameters. Independent claim 1 reads in part as follows. 1. An electrical test device having multimeter functionality and being adapted to provide current sourcing to an electrical system for selective measurement of a plurality of parameters thereof in at least one of powered and unpowered states, the electrical test device comprising:

. . . . ’899 patent at col. 11 ll. 29

– 51 (emphasis added)

. Dependent claim 3 includes additional components used in “detecting continuity in the electrical s ystem.” Id. at col. 12 ll. 2

– Case: 21-2354 Document: 54 Page: 2 Filed: 04/12/2022POWER PROBE GROUP , INC

. v. INNOVA ELECTRONICS CORPORATION 3

3. Dependent claim 10 includes an additional limitation“wherein the parameters measurable by the test device include at least one of circuit continuity, resistance, voltage, current, load impedance and frequency .” Id. at co l. 12 ll. 21

– 24. Dependent claim 12 further includes “a pair of signal lamps connected to the processor and configured to illuminate in response to continuity measurement.” Id. at col. 12 ll. 52

– 54.

Power Probe sued Innova in the district court , alleg ing that the Accused Product infringes claim s 1
, 2, 5

– 10, 12
, and 13 of the ’899 patent. Additionally, Power Probe movedfor a preliminary injunction against further sales of the Accused Product during the pendency of the litigation.
In ruling on Power Pr obe’s motion for a preliminary injunction , the district court first held that “measurement”in the claims means determining “a numerical or quantitative value associated with and indicative of the parameter under test.” Decision at *4. The court then con ducted a preliminary claim construction and held that a “plurality of parameters” mean s “at least two parameters.” Id. at *5. The court then noted that the Accused Product measures only one parameter, voltage

.The district court added that “continuity” is “the presence of a complete path for current flow ” and cannot be directly measured but can be detected as either existing or
not. Id. Based on this determination, the court found thatthe Accused Product detects, but does not measure, continuity. Accordingly , the court denied Power Probe’s motion for a preliminary injunction because it failed to establish a likelihood of success in pr ov ing infringement. It did notevaluate the other factors necessary for the grant of a preliminary injunction. Power Probe appealed the district court’s denial of its preliminary injunction motion. We have jurisdiction pursuant to 28 U.S.C. §1295(a)(1)

. Case: 21-2354 Document: 54 Page: 3 Filed: 04/12/2022POWER PROBE GROUP , INC

. v. INNOVA ELECTRONICS CORPORATION 4

D ISCUSSION“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he islikely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injuncti on is in the public interest.” Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). Anaccused infringer can defeat a showing of likelihood of success on the merits by demonstrating a substantial question of validity or infringement. See Aria Diagnostics, Inc. v. Sequenom, Inc. , 726 F.3d 1296, 1304 (Fed. Cir. 2013). A preliminary injunction is “an extraordinary remedy thatmay only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter , 555 U.S. at 22.

“The grant, denial, or modification of a preliminary injunction

. . . is not unique to patent law, so this court applies the law of the regional circuit when reviewing and interpreting such a decision.” Aevoe Corp. v. AE Tech Co.

, 727 F.3d 1375, 1381 (Fed. Cir. 2013). The Ninth Circuit“review[s] the district court’s grant of a preliminary injunction for abuse of discretion.” Valle del Sol Inc. v. Whiting

, 732 F.3d 1006, 1014 (9th Cir. 2013).

We have “ built a body of precedent applying the[] general [preli minary injunction] considerations to a largenumber of factually variant patent cases, and [] give dominant effect to [our] precedent insofar as it reflects considerations specific to patent issues.” Mikohn Gaming Corp. v. Acres Gaming, Inc. , 165 F.3d 891, 894 (Fed. Cir. 1998). Claim construction is ultimately an issue of law, which we review de novo

. Shire Dev., LLC v. Watson Pharm s ., Inc. , 787 F.3d 1359, 1364 (Fed. Cir. 2015). We review de

novo the district court’s findings based on evidence “intrinsic to the patent,” which is all that is at issue here. Teva Pharm s . USA, Inc. v. Sandoz, Inc. , 135 S. Ct. 831, 841 (2015)

. Case: 21-2354 Document: 54 Page: 4 Filed: 04/12/2022POWER PROBE GROUP , INC

. v. INNOVA ELECTRONICS CORPORATION 5

Power Probe argues that the district court erred in holding that “continuity” is a parameter not capable of

m easurement. It asserts that the ’899 patent’s specification and the plain language of claims 10 and 12 teach that continuity is capable of measurement.
Innova responds that Power Probe forfeited its arguments because its argument on claim construction on appeal is inconsistent with its argument that there need not be any claim construction at the district court. On the merits, Innova asserts that the court did not construe “continuity” as a matter of law as “a parameter incapable of measurement,” but instead found as a matter of fact that“continuity is not capable of measurement as defined because it cannot be quantified.” Appell ee ’s Br. at 16. It adds that t he court properly found that resistance can be measured, and from that measurement, continuity c an be determined as either existing or not.
We disagree with Innova’s forfeiture argument. Innova accuses Power Probe of advancing inconsistent arguments as to the meaning of “continuity.” Specifically, Innova asserts that Power Probe argues at the dist rict court that “continuity measurement ” should be afforded its plain and ordinary meaning, but that Power Probe seeks a claim construction o n appeal. Power Probe responds that its positions are consistent and that the plain and ordinary meaning of “continuity measurement” is determining the measured value associated with circuit continuity.

Power Probe is correct. Following the district court’s denial of its preliminary injunction motion , Power Probe filed a claim construction brief. In that brief

, Po wer Probe
argue s that no construction i s needed because the plainand ordinary meaning of “continuity measurement” is “determining a measured value associated with circuit continuity .” Power Probe Grp., Inc. v. Innova Elecs. Corp. , No. 21

- cv

- 332, ECF No. 107 at 18

– 22 (D. Nev. Sept. 30, 2021)

. On appeal, Power Probe argues that the district court erred Case: 21-2354 Document: 54 Page: 5 Filed: 04/12/2022POWER PROBE GROUP , INC

. v. INNOVA ELECTRONICS CORPORATION 6

in not applying the proper plain and ordinary meaning of “continuity measurement” because continuity is capable of
measurement. See , e.g

. , Appellant’s Br. at 42

– 43. Power Probe’s claim construction brief is not on the record before us because it was filed after the court denied Power Probe’spreliminary injunction motion. Thus, we need not entertain Innova’s forfeiture argument. However, even if we do consider Innova’s argument and take judicial notice of Power Probe’s brief

, 1 we find that w hile Power Probe’s
statements in its claim construction brief and on appeal arenot verbatim identical, neither are they fundamentally inconsistent. For th ese reasons , we find that Power Probe has not forfeited its “continuity” arguments.
Turning to the merits, w e also agree with Power Probe. As a matter of lexicography, the ’899 patent’s specification defines “parameters measurable by the electrica l test device” as including “circuit continuity.” ’899 patent at col. 9 ll. 9

– 11. Furthermore, c laim 10 specifies that one “parameter [] measurable by the test device” is “circuit continuity.” Id. at col. 12 ll. 22

– 23. Lastly, claim 12 requires “continu ity measurement.” Id. at col. 12 ll. 53

– 54

. Th ese referencesshow that the inventor used the term continuity as a measurable quantity. Although claim 3 recites “detecting continuity,” id. at col. 12 l. 2, the district court wrongly assumed that detecting continuity and measuring continuity are mutually exclusive.

This case is similar to Trustees of Columbia University

, where we considered a situation where an independent claim of a patent was directed to “ [a] method for detecting anomalous program executions.” Trustees of Columbia Univ. in City of New York v. Symantec Corp. , 811 F.3d 1359, 1369 (Fed. Cir. 2016). There, “[t]he district court

1 We may take judicial notice of Power Probe’s claim construction brief in the district court pursuant to Rule 201(b)(2) of the Federal Rules of Evidence. Case: 21-2354 Document: 54 Page: 6 Filed: 04/12/2022POWER PROBE GROUP , INC

. v. INNOVA ELECTRONICS CORPORATION 7

construed ‘anomalous’ to mean ‘[d]eviation/deviating from a model of typical, attack

- free computer system usage’” and later clarified that the model “only uses attack

- free data.” Id. at 1369

– 70. However, on appeal, we recognized that “[t]he claims themselves show that the model can be built with both attack

- free and a ttack data .” Id. at 1370 (emphasis added). That is, in Trustees of Columbia University , we recognized that some dependent claims further limited the claimed scope to “attack

- free” data while other dependent claims limited the claim scope to “attack data.” We concluded that “because the dependent claims [in] patents are presumed to be narrower than the independent claims on which they depend, ‘anomalous’ cannot be read to limit the type of data used to model [] only attack

- free data in the independent cla ims in the absence of other evidence rebutting the presumption.” Id. Similarly, here, the district court improperly construed independent claim 1 to exclude “continuity” limitations included in dependent claims 10 and 12 that describe “continuity” as mea surable

. Independent and d ependent claims must if possible be interpreted to be consistent with each other, so continuity must be construed to be measurable

. We thus hold that the court erred in construing “continuity” as a parameter that is not measurabl e.
C ONCLUSION We have considered Innova’s remaining arguments but find them unpersuasive. For the foregoing reasons, we vacate the district court’s decision denying a preliminary injunction and remand for further proceedings regardingwhether Power Probe satisfied the requirements for a preliminary injunction

. VACATED AND REMANDED

C OSTS
Costs are awarded to Power Probe. Case: 21-2354 Document: 54 Page: 7 Filed: 04/12/2022