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

05-1340 GLOBAL MAINTECH CORPORATION and GLOBAL MAINTECH, INC., Plaintiffs-Appellants, v. I/O CONCEPTS, INC., Defendant-Appellee.

__________________________ DECIDED: May 2, 2006

__________________________ Before LOURIE, GAJARSA, and LINN, Circuit Judges

. LINN, Circuit Judge

. Global Maintech Corporation and Global Main tech, Inc. (collectively, “Global”) appeal from the decision of the United States District Court for the District of Minnesota (“district court”) granting the motion of I/O Concepts, Inc. (“I/O C oncepts”) for summary judgment of non-infringement of U.S. Patent Nos. 6,035, 264, 6,044,393, 6,112,237, and 6,157,956 (collectively, “t he patents-in-suit”). See Global Maintech Corp. v. I/O Concepts, Inc. , No. 03-4184 (D. Minn. Mar. 7, 2005) (“ Non-infringement Order ”). Because the district court properly granted I/O Concepts’ motion for summary judgment of non-infringement, we affirm

.I. BACKGROUND Global is the owner of record of the pat ents-in-suit, all of which relate to the monitoring and control of “het erogeneous computer systems.” In particular, the patentsin-suit describe a process that translates signals sent by dissimilar host computer systems, each of which effectively speaks different languages, to either a common message signal format or a universal charac ter set that is understood by a monitoring and control computer. Non-infringement Order , slip op. at 1-2. If the implemented procedures result in control signals that must be sent to a host com puter, the monitoring and control computer translates the contro l signal from the common message signal format or universal character set to the me ssage signal format of that host computer. Id. , slip op. at 2. The patent applications that issued as the ’237 patent, the ’393 patent, and the ’264 patent were all filed on November 26, 1997. All thr ee patents include identical drawings and describe the same computer monitoring and controlling system. The only differences between the patents lie in the cl aimed subject matter. Specifically, the claims of the ’237 patent are directed to t he monitoring aspects of the monitoring and controlling system, while the claims of the ’ 393 patent are directed to the control aspect of the system. The claims of the ’264 patent are also directed to the monitoring aspect of the system, but are more lim ited in scope and coverage in that they relate specifically to automation using a script language. Id. , slip op. at 2-3. The United States Patent and Trademark Offi ce (“PTO”) initially rejected each of the applications that resulted in thes e three patents because the claims were anticipated and/or obvious. To gain iss uance of the patents, Global amended each

05-1340 2independent claim of the three patent s to clarify that they we re limited to the external monitoring and controlling of “heterogeneous co mputer systems.” Ultimately, these patents were issued in March and August 2000. The ’956 patent application was filed on Ma rch 28, 1977. Like the other three patents, the ’956 patent relates exclusiv ely to the monitoring and controlling of “heterogeneous computer system s.” The ’956 patent has three independent claims, each of which specifically relates to perfo rming operations using a “universal character set” in “heterogeneous computer systems.” In addition, certain claims of the ’956 patent also require the presence of an “intelligent card” that translates data into a “universal character set.” I/O Concepts markets three software progr ams: Console Consolidation System, CCS/SmartClient, and Websession. In 2003, Global sued I/O Concepts for infringement of the patents-in-suit. On December 6, 2004, both Global and I/O Concepts filed competing motions for summary judgment. I/O Concepts filed three motions for summary judgment relating to (1) non-infri ngement of the ’264, ’393, and ’237 patents; (2) invalidity of the ’264, ’393, and ’237 pat ents; and (3) non-infrin gement of the ’956 patent. Global filed a motion for partial su mmary judgment, which sought dismissal of all of I/O Concepts’ affirmative defenses and counterclaims. On March 7, 2005, the district court i ssued a Memorandum and Order relating to the four pending summary j udgment motions. The district court construed the “heterogeneous computer system” lim itation, which appears in all the asserted claims, as a system in which at least two host com puters use different oper ating systems. The district court granted summary judgment of non-infringement, concluding that there was

05-1340 3no evidence that any I/O Concepts’ produc t simultaneously monitors and controls multiple mainframes using different operating systems. The district court concluded that Global had failed to create a dis pute of fact as to whether I/O Concepts sold or offered for sale a product that literally infringed the patents-in-suit. The district court denied, as moot, all the remaining motions for summary judgment. On March 7, 2005, the district court entered final judgment. Global Maintech Corp. v. I/O Concepts, Inc. , No. 03-4184 (D. Minn. Mar. 7, 2005). Global timely appeals to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(1). II. ANALYSIS A. Standard of Review “We review a district court’ s grant of summary judgment de novo .” Ethicon EndoSurgery, Inc. v. U.S. Surgical Corp. , 149 F.3d 1309, 1315 (Fed. Cir. 1998). Summary judgment is appropriate only w hen there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). “In determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the opponent.” Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc. , 145 F.3d 1303, 1307 (Fed. Cir . 1998). If there are no material facts in dispute precluding summary judgment, “our task is to determine whether the judgment granted is correct as a matter of law.” Marathon Oil Co. v. United States , 177 F.3d 1331, 1337 (Fed. Cir. 1999). Claim construction is an issue 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), that we

05-1340 4review de novo

. See Cybor Corp. v. FAS Techs., Inc. , 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc); Phillips v. AWH Corp. , 415 F.3d 1303, 1328 (Fed. Cir. 2005) (en banc). Infringement is a question of fact. See Bai v. L & L Wings, Inc. , 160 F.3d 1350, 1353 (Fed. Cir. 1998). B. Discussion On appeal, Global argues that the dist rict court erred in construing “heterogeneous computer system” too narrowly, and argues that the proper construction should be “computer systems having dissimila r processors and/or operating systems.” Global further argues that the district cour t erred in including “simultaneous,” which is not present in any claim, as a claim limitation. Global argues that the district court erred in determining that I/O Concepts did not make , offer to sell, or sell its products for heterogeneous use. Finally, Global argues that the district court erred in requiring the presence of an “intelligent card” in t he method claims of the ’956 patent. I/O Concepts responds that the distri ct court correctly construed the “heterogeneous computer system” limitation. I/O Concepts fu rther contends that the terms “simultaneously” and “simultaneous” were not used by the district court as words of limitation, but ra ther as explanatory terms describi ng how a person skilled in the art would understand the phrase “heterogeneous com puter system.” Finally, I/O Concepts argues that the district court did not err in granting summa ry judgment of noninfringement because Global failed to ma ke any showing regarding whether I/O Concepts’ products monitor and/or contro l anything other t han homogeneous computer systems.

05-1340 5Because we conclude that the dist rict court correctly construed the “homogeneous computer systems” limitation, and because su mmary judgment of noninfringement was proper on that basis, we do not consider Global’s argument relating to the presence of “intelligent card” in the ’956 method claims. 1. Claim construction The claim limitation disput ed by the parties is “het erogeneous computer system,” and the primary issue is whet her it should be restricted to encompass only systems in which at least two host computers use a diffe rent operating system as the district court held. In determining the meaning of the disput ed claim limitation, we look primarily to the intrinsic evidence of record, examin ing the claim language itself, the written description, and the prosecution history, if in evidence. See Phillips v. AWH Corp. , 415 F.3d 1303, 1312-1317 (Fed. Cir. 2005) ( en banc). Each of the asserted claims includes the “heterogeneous computer syst ems” limitation, but t he claims do not provide guidance on what that limitat ion means. While the written description does not expressly define the disputed lim itation, it lists examples of the monitored computer system. Specifically, the specificat ion of the ’237 patent states that The computer system, which is to be monitored, may take many forms. For example, the computer system may be a data center, an enterprise com puting system, a network of computers, a mainframe co mputer, a mini-computer, a server, a workstation, and/ or a personal computer. Alternatively, the com puter system may be an MVS operating system-based computer (or one of its derivative like IBM’s OS/390), a UNIX operating system-based computer, an IBM AS400 com puter, a Microsoft Windows operating system-based comput er, an Apple Macintosh operating system-based com puter, an OS/2 operating system-based computer, or a DOS-based computer.

05-1340 6’237 patent, col. 46, l. 62-col. 47, l. 6. Contrary to Global’s assertions, the first portion of the cited text does not set fo rth computer systems with differ ent hardware. Rather, it merely lists different forms of computer systems. The second portion of the text, however, distinguishes computer systems r unning different operati ng systems. Thus, the written description supports the conclusion that one of ordinary sk ill in the art would understand “heterogeneous computer systems” to refer to systems in which at least two host computers use a different operating syst em. Nowhere does the written description disclose or describe the context of t he claimed invention in broader terms. The prosecution history is consistent with the conclusion noted above. As the district court observed, the “heterogeneous computer syst em” limitation was added during prosecution in response to rejection of the claims over the prior art. In distinguishing over the prior art, the prosecut ing attorney explained t hat “Any monitoring features performed by [Windows] NT are not with respect to heterogeneous computer systems. For example, [Wi ndows] NT has no facility to monitor operational processes (as provided on the system cons ole) in a VMS and MVS system.” In other words, the prosecuting attorney clarifi ed that the prior art did not encompass monitoring host computers with different operating systems, such as a VMS and MVS system. Additionally, during prosecution of the ’264 pat ent, the prosecuting attorney stated that “the language of the claim has been clarified to indicate that the system of the claimed invention controls the operating systems of the heterogeneous com puters.” Thus, the prosecution history supports the district court’s conclu sion that the “heterogeneous computer systems” are restri cted in scope to encompass only systems in which at least two host computers use diffe rent operating systems.

05-1340 7Global contests the district court’s reliance on expert testimony in its claim construction ruling. Specifically, the dist rict court noted that Global’s own expert “expressly defined a ‘heterogeneous computer system’ as one that simultaneously controls multiple computers that use different operating systems.” Non-infringement Order , slip op. at 8. In Phillips , we reaffirmed that “extrinsic evidence may be useful to the court, but it is unlikely to result in a reliable interpretation of patent claim scope unless it is considered in the context of the intrinsic evidence.” 415 F.3d at 1319. Here, the district court considered the context of the intrinsi c evidence and properly relied on the extrinsic evidence merely to support t he conclusion reached on claim construction from the claims, the written description, and the prosecution histor y. We discern no error in the district court’s analysis. We disagree with Global’s contention that the district court improperly imposed a “simultaneous” requirement in its claim cons truction. Indeed, we commend the district court for its thorough, careful, and precise anal ysis in this technically complex case. Recognizing that the two host computers ar e unable to communicate directly with each other because they speak different languages, the district court explained that “the monitoring and control computer must under stand and speak the langu age of both host computers[, and thus] it simultaneously tr anslates between the host computers.” Noninfringement Order , slip op. at 9. The district c ourt’s use of the word “simultaneous” merely clarifies and explains a characterist ic inherent in its cl aim construction of “heterogeneous computer systems,” and does not further limit the claims.

05-1340 82. Non-infringement The district court granted summary judgm ent of non-infringem ent based on its conclusion that Global failed to present suffi cient evidence to create a dispute of fact relating to whether I/O Concepts’ produc ts monitor and control “heterogeneous computer systems.” Specifica lly, the district court concluded that Global failed to present evidence relating to the sale by I/O C oncepts of any infringing product to AIG or to any offer to sell, within the meaning of 35 U.S.C. § 271(a), of any infringing product by I/O Concepts. See Non-infringement Order , slip op. at 9-13. Without pointing to any specific errors by the district court, Global contends on appeal that “Appellants have raised an issue of fact relating to the sale of Appellee’s infringing product to AIG.” The district court considered the evidence presented, including the testimony of an AIG representat ive who testified that, after remedying some initial problems, “AIG now uses I/O Concepts to manage and control both MVS and VM operating systems.” Non-infringement Order , slip op. at 10. The district court also excluded portions of an affidavit of John Kaster as inadmissible hearsay, and Global does not challenge that evidentiary ru ling. The district court noted that the record merely indicated that “AIG uses one CCS system to monitor and control computers running on the M VS operating system, and another CCS system to monitor and control computers using the VM operating system.” Id. , slip op. at 10-11. We agree with the district court that the cumulative evidence submitted by Global is insufficient to create a dispute of fact as to whether I/O Concepts has sold a product that controls and monitors “heterogeneous co mputer systems,” as required by all the

05-1340 9asserted claims. Thus, the district court did not err in granti ng summary judgment of non-infringement. III. CONCLUSION For the foregoing reasons, the district c ourt’s grant of summa ry judgment of noninfringement is affirmed.

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