NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1114 JAMES P. LOGAN, JR., Plaintiff-Appellant, and LOGAN FARMS, INC., Plaintiff,

v. HORMEL FOODS, INC., Defendant-Appellee, and WAL-MART, INC., Defendant-Appellee.

Robert M. Bowick , Matthews, Lawson, Bowick and Al-Azem, PLLC, of Houston, Texas, argued for plaintiff-appellan t. With him on the brief was Guy E. Matthews

. J. David Mayberry , Kilpatrick Stockton LLP, of Washington, DC, argued for defendant-appellee Hormel Foods, Inc. With him on the brief was Eric L. Sophir

. Joining in the brief was Lee L. Kaplan , Smyser, Kaplan & Veselka, L.L.P., of Houston, Texas, for defendant-appel lee Wal-Mart, Inc. Appealed from: United States District C ourt for the Southern District of Texas Judge Simeon Timothy Lake IIINOTE: This dis pos ition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1114 JAMES P. LOGAN, JR., Plaintiff-Appellant, and LOGAN FARMS, INC., Plaintiff,

v. HORMEL FOODS, INC., Defendant-Appellee, and WAL-MART, INC., Defendant-Appellee.

_______________________ DECIDED: January 25, 2007

_______________________ Before LOURIE, LINN, and MOORE, Circuit Judges

. MOORE, Circuit Judge

. James P. Logan, Jr. (“Logan”) appeals the final judgment of th e United States District Court for the Southern District of Texas granting summa ry judgment in favor of defendants Hormel Foods, Incor porated and Wal-Mart, Inco rporated (collectively “Hormel”). Logan v. Hormel Foods, Inc. , No. 4:05-CV-00055, 2005 WL 2171893 (S.D. Tex. Sept. 2, 2005). While the district court erred in its claim construction, we concludethe error was harmless and that summary j udgment of non-infringe ment of United States Patent No. Re 35,374 (“the ’374 pat ent”) was proper even under the correct claim construction. Therefore, we affirm

. I. BACKGROUND Logan filed suit against Hormel alleging that Hormel’s CURE 81® bo neless, spiral-slic ed hams infringe claim 1 of t he ’ 374 patent. The ’374 patent describes a spirally-slic ed meat pr oduct and the apparatus and method for spir ally s lic ing the meat. Claim 1, the only independent claim at i ssue on this appeal, recites as follows: A boneles s sliced meat having it s meat arranged in the form of a continuous spiral cut about an axis of the meat, the axis being created by temporary insertion of a support member in the meat , wherein the depth of said cut is limited to leave an uncut core of meat, said core being of sufficient cross-section to cause the boneless sliced meat to retain its shape when the support member is removed. ’374 patent , col.10, ll.4-10 (emphasis added). The district court construed the te rm “support member” to mean “a s p it (or pointed rod) that traverses the length of the spiral cu t and helps the boneless meat maintain its shape or integrit y during slicing operations.” Logan , 2005 WL 2171893 at *6. The district court granted summary j udgment on the issue of literal infringement because Hormel’s CURE 81® hams were m ade by impaling them on a prong which wa s either 1” or 2 3/8” in length, 1 and therefore did not traverse the length of the spiral cut. Id. at *7-8. Furthermore, the district cour t determined that summ ary judgment of noninfringement under the doctrine of equivalent s was appropriate because Hormel’s prong did not perform the function of helping the bonel ess meat maintain it s shape or integrity during s lic ing operations. Id. at *8. The district court found that Logan offered no

1 Hormel changed the length of its spit after Logan ins t ituted the present litigation.

2006-1114 2evidenc e to contradic t an experiment conduc ted by Hormel showing that the prong did not support the boneless meat during slicing operations. Id. On appeal, Logan challenges th e district c ourt’s claim construction and gr ant of summary judgment of non-infringement. We hav e jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).
II. DISCUSSI ON
A. Cla im Con s truction We agree with the portion of t he district court’s claim construction that requires that the support member “help [] the boneles s meat maintain it s shape or integrity during slicing operations,” however, the intrinsic rec o rd does no t require t he “support member” to “traverse the length of the spiral cut,” so long as it is performing the function of helping “the boneless meat maintain its shape or integrity during slicing operat ions.” Logan argues that the “support member” should only be required to hold the meat. Logan cites numerous dictionary definitions in an attempt to bolster his argument. However, these dic t ionary definitions ar e inconsist ent with t he intrins i c record and therefore, are not pr obative. See Ph illips v. AWH Corp. , 415 F.3d 1303, 1322-23 ( F ed. Cir. 2005) (en banc) (stating that courts may rely “on dictionary definitions when cons truing cl aim terms, so long as the dictionary definition does not contradict any definit ion found in or ascertained by a re ading of the patent documents.”). The ’374 patent uses the term “hold” in refe rence to the chuck assembly, which inclu d es a number of short spikes to help hold the meat. See, e.g. , ’374 patent, col.3, ll.53-57 (“The apparatus includes an electrically dr iven, rotating meat chuck as sembly for holding the meat . . . dur ing cutting operations”); id. , col.4, ll.1-2 (“The chuck assembly

2006-1114 3is designed to hold and rotate the meat duri ng cuttin g operations.”). The specification indic a tes that the support member does more than “hold” the bonele ss meat—it provides support for the meat. See id. , col.5, ll.61-64 (“The meat spit 400 is used in the slicing of boneless m eats to provide support by inserting the stem member 404 into the meat during slicing operations.”). The prosecution history also s upports this construction. During prosecut ion, Logan informed the Patent and Trademark Office that the support member “provides the boneless meat product with sufficient structural stabilit y during the slic ing op eration” and that the spit “maintain[ed] m eat integrity during t he s lic ing operation.” Moreover, during prosecution, Logan submitted vi deotaped experiments to establis h that a particular reference was not enabled. T hese experiment s are part of t he intrinsic record, are properly considered in constr uing the claims, and further support this construction. Thus, we conclude that the support member “helps the boneless meat maintain it s shape or integrity during slicing operations.” We do not agree, however, that the support member must “traverse the length of the spiral c u t” as the district court required. Logan argues that Horme l's 1 ” and 2 3/8” prongs are “in the meat.” Hormel argues that the support member must extend into the
meat so as to traverse the length of the sp iral cut. We c onclude that the claim language “in the meat” does not require that the sup port member extend through the entire meat product nor does it r equire the support member traverse the entire spiral cut portion. Nothing in the specific ation or prosecution history requires this narrow construction. Claim 1 requires only that the s upport mem ber be “in the meat .” ’374 patent, col.10, ll.6- 7. Other cl aims require that the “s upport member [be] inserted th r o u g h the

2006-1114 4annular core [of meat] prior to s l icing . . . .” Id. , at col.10, ll.13-14 (claim 2) ( e mphasis added); see als o id. , at col.10, ll.27-28 (claim 4), col.11, ll.7-8 (claim 10). Hence, wh ile claims 2, 4, and 10 require the s u pport mem ber be inserted through t he meat, claim 1 in contrast only requires that the support member be in the meat. Because the patentee used different terminology in di fferent claims, there is a pr esumption that there is a difference in the scope of the claims. See Forest Labs., Inc. v. Abbott Labs. , 239 F.3d 1292, 1310 (Fed. Cir . 2001) (citing Tandon Corp. v. U n ited Stat es Int’l Trade Comm’n , 831 F.2d 1017, 1023 (Fed. Cir. 1987)). We conclude that “in the meat” must be read in conjunction with “support member” and that t herefore the claim requires that the support member be in the meat far enough to “support” the meat during s l icing (i.e., to maintai n its shape or integrity during slic ing). While the specification disclos es only a single embodiment, the i n trinsic record does not limit the scope of the term “s upport member” to the only disclosed embodiment. See Phillips , 415 F.3d at 1323 (“[W ]e have expressly rejected the contention that if a patent de scribes only a single embodiment, the claims of the paten t must be construed as being limit ed to that embodiment.”). T hus , it is improper to read the sole embodiment from the specification into claim 1 and require that the support member extend through the meat. We also do not believe that the support member must extend the length of the spiral cut because while the claim requires the support member to define an “axis” of the meat, there is no reas on why a support member that does not traverse the length of the spiral cut cannot define such an axis. We conclude that the support member must extend int o the meat to a sufficient length to s upport the meat during cutting (to help the meat maintain its shape or integrity

2006-1114 5during s lic ing), but not necessarily extend thr ough the meat or traverse the entire length of the spira l cut. B. Infringement While the district court erred in construing the term “support member in the meat,” that error was harmless. Logan fails t o point to any evidenc e that Hormel’s 1” or 2 3/8” prong used to make its CURE 81® boneles s hams “help[] the boneless meat maintain its shape or integrity during slicing,” as required by claim 1. Moreover, as the district court noted, Logan prov ided no evidence to contradict Hormel’s evidence that it s prongs do not perform this function. We find the remainder of Logan’s arguments regarding infringement to be without merit. T herefore, we affirm the district court’s judgment that the Hormel CUR E 81® hams do not infringe claim 1 of the ’374 paten t either literally or under the doc trine of equivalents. No costs.

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