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

06-1090 AKEVA L.L.C., Plaintiff-Appellant,

v. ADIDAS-SALOMON AG, Defendant, and ADIDAS AMERICA, INC., Defendant-Appellee.

__________________ _________ DECIDED: November 13, 2006

__________________ _________ Before MICHEL, Chief Judge , PLAGER, Senior Circuit Judge , and RADER, Circuit Judge

. RADER, Circuit Judge

. Akeva L.L.C. (Akeva) is a company wh ich has been assigned and licenses a portfolio of footwear patents. Akeva sued adidas America, Inc. (adidas) for infringement of certain claims of two of its patents: U.S. Patent No. 6,662, 471 (the '471 patent) and U.S. Patent No. 6, 604,300 (the '300 patent). 1 These patents descr ibe improvements to athletic shoe heels. According to Akeva, t he specifications of th e '300 and '471 patent

1 Akeva asserted claims 93, 94, 1 00-106, 109, 117, 118, 121-154, 192-194, and 204-232 of the '300 patent, and claims 1-32 of the '471 patent against adidas.describe a “flexible m e mber” 2 improvement that can be inco rporated in rear soles that are detachable, or rotatable, or permanently secured. The district court construed these patents as covering shoes with rotatabl e or detachable rear soles only. See Akev a L.L.C. v. adidas Am., Inc. , 1:03-CV-01207 (M.D.N. C. May 17, 2005) ( Claim Constructio n Decis i on ); Akeva L.L.C. v. adidas Am., Inc., 385 F. Supp. 2d 559 (M.D.N.C. 2005) ( Reconsideration Dec i sion ) 3 . Bec ause adidas shoes have permanently-fixed rear soles that do not rotate, Akeva accepted entry of summary judgment of non-infringement and appealed the district court's clai m construction to this court. Akeva L.L.C. v. adidas Am., Inc. , 1:03-CV-01207 (M.D.N. C. Oct. 28, 2005) ( Final Judgment ). Because the district court correctly construed the te rm "secured," the summ ary judgment of noninfringement is affirm ed

. I. A district c ourt's claim construction find ing s are reviewed de novo on a p peal. Cybor Corp. v. FAS Techs. Inc. , 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). A grant of summary judgment is also reviewed de nov o. Bell Atl. Network Servs., Inc

. v. Covad Commc'ns Group, Inc. , 262 F.3d 1258, 1266-67 (Fed. Cir . 2001). This court has jurisdiction under 28 U.S.C. § 1295(a)(1). The central issue of this appeal is the meani ng of the term “secured” as it is used in the '300 and '471 patents. Claim 93 of the '300 pat ent, for example, claims: A shoe comprising:

2 “Flexible member” is an inclus iv e te rm given to describe the U-shaped member of the '471 patent and the flexib le plate of the '300 patent. 3 The district court reconsidered its clai m construction decision in light of this court's intervening decision in Ph illips v. AWH Corp. , 415 F.3d 1303 (Fed. Cir. 2005) (en banc), but did not deviate from its original construction.

06-1090 2an upper having a heel region; a rear sole secured below the heel region of the upper; and a flexible plate having upper and lower surfaces and positioned betw een at least a portion of the heel r egion of the upper. . . . '300 patent, col. 20 ll.29-43 (emphasis added). The '471 patent also uses the term "secu red." For example, claim 1 states: A shoe comprising: an upper, and a rear sole secured below a portion of the upper , the rear sole comprising: a member having a top wall with a lowe r surface . . . the member having a bottom wall . . . the forward regions of the top and bottom walls being connected at a close end by a curved wall . . . . '471 patent, col. 13 ll.6-50 (emphasis added). Akeva argues that the ordi nary meaning of the claim s hould be given to the term and that the ordinary meaning would encom pass permanent, removable, and rotatable soles to athletic shoes. adidas argues that the specifications of the '300 and '471 patents disavow rear soles that ar e not detachable or rotatable. This court construes claims in acco rdance with the principles set forth in Ph illip s v. AWH Corp. , 415 F.3d 1303 (Fed. Cir. 2005) (en banc). Claim language governs claim interpretation. Id. at 1312. Claim terms, however, are construed in light of the specification. Id. at 1315. The ordinary meaning of a term may be narrowed when interpreted in light of the specification. Id. at 1316. A. The '471 Patent The '471 patent is dir e cted to athlet ic soles with interchangeable soles which “provide extended and more versatile life and better performance in terms of cushion i ng

06-1090 3and spring.” Col. 1 ll.13-17. The '471 patent states that “an at hletic shoe can be changed dramatically if it is simply given int e rchangeable rear soles.” Id. at col. 2 ll.54- 55. In particular, the specification de scribes shoes with “int erchangeable/ detachable rear soles” to addres s problem s with uneven wear patterns. Id. at ll.14-15, 26-27. While Akev a argues t hat the in v ention of the '471 patent is the flexible membrane, the language of the '471 specification specifically states that the invent ion of the '471 patent is an athletic shoe with a detac hable heel: “Howev er, in a radical departure from conventional shoes, the shoe of the present invention incorporates a heel structure, inclu d ing a detachable rear sole , that signific antly alleviates heel wear problems associated with conv entional soles and provides enhanced cu s h ioning and/or spring.”. Id. at col. 4 ll.56-61 (emphasis added). Akeva argues that the catc h-all phrase at the end of th e '471 patent specifica t ion, which states “[t]hus, it is intended that the present in vention cover all poss i bl e combinations of the features shown in the different embodi ments, as well a s modifications and var i ations of t h is inv enti on, provided they come within t he scope of the claims and their equivalent s,” precludes a claim co nstr uction which com p rises only detachable heels. Col. 13 ll.1- 5. No embodiments, however , of the '471 pat ent include permanently attached heels. Of course, the absenc e of an embodiment does not necessarily exclude that embodiment from the sc oop of the invention. Liebel-Flarsheim Co. v. Medrad, Inc. , 358 F.3d 898, 906 (Fed. Cir. 2004). But here, the specification when read as a whole clearly demonstrates that the scoop of the invention is athletic shoes with detachable heels which may incl ude an optional flexible plate. See '471 patent, col. 4 ll.62-col. 5 ll.4 (“A n embodiment of the heel stru cture . . . includes . . . a

06-1090 4rear sole detachable secured to the rear sole support . . . . In addition, the heel structure may include a flexible plate for providing spring to the heel of the user and reducing

wear caus ed by mids ole compression.”). Akeva cites Golight, Inc. v. Wal- Mart Store s , Inc. , 355 F.3d 1327, 1331 (Fed. Cir. 2004), in wh ich the court found no disclaimer wher e the specification states the inv ention “inc l udes” some feature wher e it is only one of several features described as significant or important. However, this case is distinguishable because the detachable sole of the '471 pat ent is not one of several features, it is the primary f eature of the invention. Indeed, when the '471 patent uses the term “secured,” it uses it to describe a rear sole which is “detach ably sec u red.” Col. 3 ll.14-17. Finding that the term “secured” applies only to shoes with det ac hable heels does not take t he term outside its ordinary meaning. Rather, the term i s interpret ed as it is used in accordance with the specification; “secured” does allow for remo vablity. As this court has stated in Ph illips , “[t]he construction that stays true to the claim language and most naturally aligns with the patent's description of the in vention will be, in the end, the correct construction.” 415 F.3d at 1316. In other word s, an inventor cannot get more than he or she invents

. On Demand Mach. Corp. v. Ingram Indus. Inc. , 442 F.3d 1331, 1344 (Fed. Cir. 2006) (citing Phillips , 415 F. 3d at 1316 and Autogiro Co. of Am. v. United States , 384 F.2d 381, 397-98 (1967)) (“[while] each term standi ng alone can be construed as having varying degrees of breadth, each term must be construed to implement the invention described in the spec ification”). The distri ct court construed this term as used in the '471 patent to mean “a rear sole detachably secured below a portion of the upper.”

06-1090 5Cla im Con s truction Decisio n at 28. As such, this court wil l not dist urb the district court's claim construction that the '471 patent covers shoes with detachable heels.

B. The '300 Patent The '300 patent specification als o disclos es athletic shoes with extended life by improving the rear sole such that the rear sole is rotat able, detachable, or both. The '300 patent notes that the soles of prior art athletic shoes t end to wear out faster than the shoe itself. Col. 1 ll.2- 42. Further, athletic shoe per formance cushioning also tends to wear out faster than the shoe itself. Id. at ll. 44-46. In order to solve this pr oblem, the '300 patent specification disc lo ses shoes that can be rotated into different positions to allow for more even wear to the sole of the athletic shoe. Col. 6 ll.56-59. Or, in a preferred embodiment, the rear sole can be detac hed, allowing the at hletic s hoe owner to change the sole depending on the cushio ning and other features desired for a particular activity. Col. 4 ll.42-46. The distric t court construed the term “s ecured” in the '300 patent to mean “selectively or permanently fastened, but not permanently-fixed into position.” Cla im Construction Decis i on at 25. Akeva argues on appe al t hat the invention of the '300 patent is a flexible plate t hat can be us ed in shoes with rot a table, det a chable, or permanently fixed heels. To support its argument for this claim interpretation here, Akeva points to language in the '300 patent spec ification which states “[t]he flex ible region also need not be used onl y in c onjunction with a detac hable rear sole, but can be used with permanently attached rear soles as well.” Col. 10 ll.12 -16. Akeva als o argues that a related patent, U.S. Pat ent 5,560,126 (the '126 patent), claims a

06-1090 6“detachably secured” rear sole and a rear sole that allows for “selective rotation” and that this supports its claim that such sole s are not the claimed invention of the '300 patent. Thus, Akeva argues, the asserted c l ai ms of the '300 patent cover permanentlyfixed so les that will or will not rotate and whic h contains a flexible p l ate. In SciMed Life Systems Inc. v. Adv anced Cardiovascular Systems Inc. , 242 F.3d 1337, 1341 (Fed. Cir. 2001), this c ourt stated “[w]here the spec ific ation makes clear that the invention does not include a particular feature, that feat ure is deemed to be outside the reach of the claims of the patent, even though the la nguage of the claims, read without reference to the spec ific ation, mi ght be considered broad enough to encompass the feature in question.” In SciMed , the language of the spec ification contained a “broad and unequivoc al” disclaim e r of dual lumens in c a theters. 242 F.3d at 1344. The language of the '300 patent specification is less equi v o cal than that in SciMed . Here, the '300 patent states contains t he “all em bodiments” language discussed in SciMed : “[i]n all embodiments, the in vention includes mechanical m eans for selectively locking the rear sole relative t o t he rear sole s upport and upp e r of the s hoe.” Col 7 ll.17-20. The “all embodiments” language of the '300 patent specific ation howev e r, appears at first blush to conflict with the “permanently attached rear soles” language, creating a less equiv o cal disclaimer than that of SciMed . Col. 7 ll.17-20; col. 10 ll.12-16. Nevertheless, the “permanent ly attached” languag e, when read in the context of the specification, supports a finding that the '300 patent specification disclaims permanently attached rear soles t hat do not at least rotate. Phillip s , 415 F.3d at 1316. The “permanently attached” language in t he specific ation cont em plates shoes with heels that are permanently fixed (cannot be interchanged) but are rotatable. For

06-1090 7example, the '300 patent spec ific ation states t hat “the rear sole may not be removable but only rot a tably pos itionable.” Col. 7 ll.42- 43, see als o col 6:58-63, col. 7 ll. 35-44; Fig. 3 of the '300 patent. In addition, the '300 pat ent specification disc usses as a problem of prior art shoes with heels the shoe owner is "stu ck” with. Col. 2 ll.2-3. In order to solve this problem and other problems, the '300 patent contemplates athletic shoes with rear soles that can be rotated or r eplaced. Col. 6 ll.33-45. As the dist rict court noted: “Akeva has cited no statement in the '300 Pat ent's specification, and this court has found none, that would contem plate a rear sole that is permanently locked into position.” Claim Co nstruction Decis i on at 25. Accordingly, one skilled in t he art reading the s pecificati on of the '300 patent specification would understand the term “secured” as used in the ' 300 patent to mean s hoes with r ear soles that are secured to the shoe, but not permanently fixed. Further, w h ile this c ourt has considered prosecution of earlie r patents in the construction of claim terms used in later is sued patents, s ee Microsoft Corp. v. MultiTech Sys., Inc. , 357 F.3d 1340, 1349-50 (Fed. Cir. 2004), in those cases, the patents had the same specification. Here, the '126 patent on which Ak ev a relies has a different disclos ure than the '300 patent. Therefore, this court c onstrues the term “secured” in ac cordanc e with the dis t rict
court. II. Infringement Akeva concedes that if the claims ar e construed to only cover detachable or rotatable heels, adidas does no t infringe its claims. T hus, th is c ourt affirms the district court's entry of summary judgment of non- infringement in favor of adidas.

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