N OTE : This disposition is nonprecedential. 

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

______________________ RICHARD J. BAKER, Plaintiff

- Appellant

v.

MICROSOFT CORPORATION, UBISOFT , INC., NINTENDO OF AMERICA, INC., ELECTRONIC ARTS INC, HARMONIX M USIC SYSTEMS, INC., Defendants

- Appellees

MAJESCO ENTERTAINMEN T, Defendant

______________________

2017

- 2357

______________________ Appeal from the United States Distric t Court for the Western District of Washington in No. 2:16

- cv

- 00396

- RAJ, Judge Richard A. Jones.

______________________

Decided: April 9, 2018

______________________

R ICHARD J. B AKER , Mermaid Waters, Queensland, Australia, pro se.BAKER v. MICROSOFT CORPORATIO N 2

S ONAL N ARESH M EHTA , Durie Tangri LLP, San Fra ncisco, CA, for defendants

- appellees Microsoft Corporation, Electronic Arts Inc. Also represented by A DAM R. B RAUSA

.

M ICHELLE L YONS M ARRIOTT , Erise IP, P.A., Overland Park, KS, for defendant

- appellee Ubisoft, Inc. Also repr es ented by E RIC A LLAN B URESH

.

J ONATHAN L. M C F ARLAND , Perkins Coie, LLP, Seattle, WA, for defendant

- appellee Nintendo of America, Inc.

P ATRICK J OSEPH C OYNE , Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for defendant -appellee Harmonix Music Systems, Inc. Also represented by L INDA J EAN T HAYER , Boston, MA.

______________________

Before R EYNA , W ALLACH , and H UGHES , Circuit Judges.

R EYNA , Circuit Judge

. Richard Baker appeals the United States District Court for the Western Distri ct of Washington’s grant of summary judgment of noninfringement

. We affirm.

B ACKGROUND

I. The ’001 Patent

Mr. Baker is the owner and inventor of U. S. P atent No. 5,486,001 (“the ’001 P atent”)

, which is entitled “Pe rs onal ized Instructional Aid

. ” The ’001 Patent describes an instructional aid intended to provide users with fee dback on their body movements relating to a given activity, such as a golf swing. The ’001 Patent claims a method and an apparatus generally comprising the steps of capturing an image signal of a user’s movement in a first location; using a transceiver at the first location to send the captured signal over a communications network to a computer at a second location; comparing the capturedBAKER v. MICROSOFT CORPORATIO N 3

signal with a pre

- stored, preferred si gnal using the co mputer at the second location; generating and transmit t ing an instructional signal from the computer at the second location to the transceiver at the first location; and di splaying the instructional signal back to the user at the first location.
Relevant to this appeal, d uring prosecution of the ’ 001 P atent, t he U.S. Patent and Trademark Office (“ USPTO ”) rejected Mr. Baker’s application as anticipated by U.S. Patent No. 5,184,295 (“Ma nn ”). Specifically, the Exam i ner noted:
Mann discloses a method for providing an instru ctional aid for assisting a person to emulate a pr eferred movement. The method includes the steps of capturing and storing visual image signals re presentative of a par ticular movement, comparing said captured image signals with stored image signals of a preferred movement, and generating further video image signals based on the original signals.

J.A. 149.

Mr. Baker amended the application, adding language requiring certain functions to occur at diffe rent “loc ations.” C laim 1 of the ’001 Patent was amended , with the amended terms underlined, as follows:
A method for providing an instructional aid for assisting a person to emulate a preferred mov ement, said method co mprising : capturing and storing initial visual image signals representative of a particular movement at a first location

, storing preferred image signals representative of a selected preferred movement at a second loc a-BAKER v. MICROSOFT CORPORATIO N 4

tion remote from said first location in a data base of a computer

, transmitting said captured and stored visual i mage signals from said first location to said compu ter at said second location

, comparing said captured and stored image signals with stored preferred image signals in said data ba se of said computer

, regenerating further visual secondary image si gnals based on said initial image signals of said particular movement adjusted to emulate said stored preferred image signals of said selected
movement in said computer , and
transmitting sa id regenerated signals from said computer at said remote second location to said first location and stored in image presentation means which permits viewing thereof with di alogue relating to said regenerated visual secon dary image signals

. J.A. 90

– 91 (emph ase s added)

. Pending claim 17 (issued claim 10) was similarly amended, and pending claim 25 (issued claim 18) contained originally

- filed language requiring a means for transmission “to a remote location.” J.A. 93, 95

– 96. Following these amendments, and in light of Mr. Baker’s supporting remarks, the USPTO allowed Mr. Baker’s claims and issued the ’001 Patent.

II . The Accused Products

Mr. Baker brought the underlying infringement suit against Microsoft Corporation, Electronic Arts Inc., Ha rmonix Music Systems, Inc., Majesco Entertainment Co., Ubisoft

, Inc., and Nintendo of America

, Inc. (collectively, “Appellees”). As releva nt here, the purportedly infringing products are video game s that incorporate an image capturing device , i.e., a camera, co nnected to a gamingBAKER v. MICROSOFT CORPORATIO N 5

con sole or personal computer . Mr. Baker contends that the accused cameras constitute a “first location,” while the gaming consoles or personal computers constitute a “second location ,” and therefore, Appellees’ products infringe the ’0 01 Patent when combined

. Relying on the claim amendments during prosecution of the ’001 Patent, Appellees moved for summary jud gment of no n infr ingement of the asserted claims

. The district court granted summary judgment for Appellees concluding that Appel lees’ products do not infringe the ’001 Patent either literally or under the doctrine of equi valents. Subsequently, the district court denied Mr. Baker’s motion for reconsideration.
On appeal, Mr. Baker seeks to reverse the district court’s grant of summary judgment of noninfringement. We have jurisdiction under 28 U.S.C. § 1295(a) (2012)

. D ISCUSSION We review summary judgment decisions by applying the law of the regional circuit , here the Ninth Circuit

. See Lexion Med., LLC v. Northgate Techs., In c. , 641 F.3d 1352, 1358 (Fed. Cir. 2011). The Ninth Circuit reviews “the district court’s grant of summary judgment de novo.” Goodman v. Staples The Office Superstore, LLC , 644 F .3d 817, 822 (9th Cir. 2011). Summary judgment is appropr iate when, viewing the evidence in the light most favorable to the nonmoving party, there is “ no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law .” Fed. R. Civ. P. 56(a); Zetwick v. Cty

. of Yolo , 850 F.3d 436, 440 (9th Cir. 2017) (citations omi tted)

. I

. Claim Construction

The district court construed the term “remote” in claims 1, 10, and 18 of the ’001 Patent as requiring “more than physical separation at the same location.” Baker v. Microsoft Corp.

, No. C16

- 396RAJ, 2 017 WL 44517 , at *4–BAKER v. MICROSOFT CORPORATIO N 6

5 (W.D. Wash. Jan. 3, 2017)

. Mr. Baker argues that the district court erred in its claim construction because the intrinsic record does not limit the term “remote” to mean that the separate locations cannot be in the same room. For the reasons discussed below, we agree with the di strict court’s construction.

The ’001 Patent’s specification describes two comp onents of the first location as an “image capturing de vice” and an “audio

- visual signal transceiver.” T he speci fic ation expla ins that at the first location, the image captu ring device may either be “discrete” from the signal transceiver, or the two components “may be one in the same.” ’001 Patent, col. 6

, ll. 5

– 9. The distri ct court therefore rea soned that the use of the term “discrete” to describe physically separated component s at the same location indicates that the term “remote” must require something more than mere physical separation. Baker

, 2017 WL 44517, at * 4–5.

T he district court also noted that during prosecution

, Mr. Baker overcame the Mann prior art reference and achieved patentability by adding the limitation of two separate locations to his pending claims. Id

. at * 5 . Thus, the district court concluded that Mr. Baker “dis avowed the interpretation of ‘remote’ he now seeks to use when he amended [the claims].” Id

. “S tatements made during prosecution may also affect the scope of the claims. Specifically, a patentee may limit the meaning of a claim term by making a clear and u nmistakable disavowal of scope during prosecution.” Computer Docking Station Corp. v. Dell, Inc. , 519 F.3d 1366, 1374 (Fed. Cir. 2008) (citations and internal quot ations omitted). Mann discloses all the features of the ’001 Patent but does not impose the ’001 Patent’s requir ements incorporating separate, remote devices

. See J.A. 151; 256

– 58. R ather, Mann’s specification indicates that the invention’s functions are performed by a peripheralBAKER v. MICROSOFT CORPORATIO N 7

camera connected to a single , capable computer. J.A. 243 (“The computer utilized by the applicants in the practice of this invention is a model VAX 11/750, manufactured by Digital Equipment Corpo ration.”).
In his remarks accompanying the proposed amen dments, Mr. Baker argued that Mann did not anticipate the amended claims because “[n]owhere in Mann is there a teaching that the computer system is located remotely from the teaching station as is emphasized in Applicant’s disclosure.” J.A. 99. Mr. Baker further ar gued that “[t] ransmittance to a separate location for a nalysis and feedback is critical in Applicant’s invention, because the programming can be efficiently performed at the remote computer station.” Id.

Mr. Baker made these amendments to distin guish the ’001 Patent over Mann. We agree with the district cour t that Mr. Baker clearly and unmistakably disavowed any portion of his claim scope which combines the claimed features of the ’001 Patent’s remote computers into a single location or a single computer

- like device , as di sclosed in Mann

. Lastly, for the rea sons discussed by the district court,

we agree that the word “remote” in claim 18 carries the same meaning as it conveys in claims 1 and 10. See Baker , 2017 WL 44517, at * 4.

II . Infringement
Before the district court, both parties stipulated to the fact t hat, at all relevant times, the cameras of Appellees’ products are “located in the same room, and in close proxim ity to,” the game consoles or personal computers

. J.A. 451

– 52. Based on its claim construction that remote data bases cannot be located in a single location , the district court determined that Appellees’ accused products do not literally infringe the ’001 Patent because all co m-BAKER v. MICROSOFT CORPORATIO N 8

ponents of the accused products, when combined, are located in the same room. Id. at * 6–7.

We agree that Appellees’ accused products do not literally infringe the ’001 Patent . R ather than incorpora ting two remote, computer

- like devices ( plus a peripheral camera) as required by the claims , we observe

— and Mr. Baker appears to concede 1

— that the accused products only em ploy a single game console or personal computer in conjunction with a peripheral camera

. As explained, Mr. Baker clearly and unmistakably disclaimed such a system during prosecution. Thus, we agree with the district court’s conclusion that the accused products do
not literally infringe each limitation of claim 1, 10, or 18 of the ’001 Patent

. See Advanced Steel Recovery, LLC v. X- Body Equip., Inc. , 808 F.3d 1313, 1319 (Fed. Cir. 2015) ; Southwall Techs., Inc. v. Cardinal IG Co. , 54 F.3d 1570, 1575 (Fed. Cir. 1995) (“To establish literal infringement, every limitation set forth in a claim must be found in an accused product, exactly

. ”).

The district court also concluded that prosecution history estoppel barred Mr. Baker from p ursuing his infringement claim under the doctrine of equivalents. See Baker , 2017 WL 44517, at *7

– 8. For the same reasons discussed in the district court’s order, w e agree.
C ONCLUSION We have considered Mr. Baker’s remaining arg uments and find them unconvincing. Accordingly, we

1 Mr. Baker’s infringement argument requires ide ntifying a peripheral camera as a first location and a PC or game console as a second location remote from the p eripheral camera. See

, e.g ., Appellant’s Br. 42 (“Again, Appellees [ sic ] use of a peripheral device camera puts them on working [ sic ] camera and computer in two sep arate locations mentioned in the [’]001 patent.”).BAKER v. MICROSOFT CORPORATIO N 9

affir m the district court’s grant of summary judgment in favor of Appellees

. AFFIRMED

C OSTS

No costs.