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
05-1351,-1352

PHILIPS ELECTRONICS NORTH AMERICA CORPORATION and U.S. PHILIPS CORPORATION,
Pl aintiffs-Cross Appellants,

v. CONTEC CORPORATION, SEOBY ELECTRONICS CO., LTD., REMOTE SOLUTION, CO., LTD. (formerl y known as Hango Electronics Co., Ltd.), and HANGO REMOTE SOLUTION, INC., Defendants, and COMPO MICRO TECH, INC., Defendant-Appellant.

__________________________ DECIDED: April 18, 2006

__________________________

Before MICHEL, Chief Judge , FRIEDMAN, Senior Circuit Judge , and GAJARSA, Circuit Judge

. MICHEL, Chief Judge. Compo Micro Tech, Inc. (“CMT”) appeals from the district court’s orders (1) construing the phrase “signal structure identification data;” (2) granting summary judgment of infringement of United States Patent No. 4, 703,359, which was concededbased on the aforementioned c o nstruction; (3 ) denying summary judgment on invalidity as to both patents-in-suit; and (4) denying judgment as a matter of law as to invalidity and damages. Philips Electronics North America Corporatio n and U.S. Philips Corporation (collectively “Philips”) cros s-appeal, c hallenging the district court’s constructions of the phrases “entry initiate s i gnal” and “an entry init iate key” as well as its resulting grant of summa ry judgment of non-infringement of United States Patent No. 5,872,562. As described in further det ail below, because we agree wit h the claim constructions of all three disputed phrases, we affirm the grants of summary judgment of infringement of the ’359 patent and non-infringement of t he ’562 patent. We further hold that t he district cour t properly denied CMT’s motions for summary judgment an d judgment as a matter of law. W e thus affirm the final judgment as to infringement and damages. I. BACKGROUND Both paten ts-in-suit are directed to univers al remote controls (“URCs”), which allow cons umers to program a single remote control to operat e a variety of appliances sold by dif f erent manufacturers, particularl y home entertainment devices – i.e., TVs, VCRs and DVD players. On February 12, 2002, Ph ilips filed a compla int alleging patent infringement against Contec Corporation (“C ontec”) in the United States District Court for the Dist r ict of Delaware. The accuse d products can be programmed using both the “scan” method and the “code entr y” method, as described in the operating instructions and on the back of the URC itself. In Septem ber 2002, Philips a m ended its complaint, joining Contec’s suppliers: CMT, S eoby Electronics (“Seoby”) as well as Hango Remote Solution, Inc. and Remo te Solution, Ltd. (collectiv ely “Hango”). Philips settled

05-1351,-1352 2with Contec and Seoby; a consent judgment was entered against those defendants on August 28, 2003. The case against Hango wa s severed for a separate trial. This appeal concerns only the case against CMT. The ’359 patent discloses a “scan” me thod (and apparatus) wh ereby the URC is preprogrammed wit h the infrared signal patte rns corresponding to many different appliances and learn s the correct infrared signal p a ttern for controllin g a particula r appliance by sequentially attempting each format until that applianc e responds appropriately. The ’562 patent, on the other hand, disc loses a “code entry” method (and apparatus) that requires the us er to manually enter a code corresponding to the correct infrared signal pattern for each applia nce to be used with the URC. For reasons not relev ant to this appeal, only method claims of t he ’359 patent were asserted. Independent Claim 1 reads as f o llows , wit h the disputed phras e underlined for emphasis:
1. Method for adapting a remote c ontrol unit to generate applianc e command signa ls ha ving a req u ired sig n a l structure for controllin g a selected one of a plura lity of appliances of di fferent categories and different manufacturers, each applianc e being responsive to a different signal structure, comprising the steps of: generating a selected category si gnal signifying the cat egory of said selected one of said pl urality of app lianc e under user control; setting said selected appliance t o execute a predetermined action upon receipt of a respons e-evoking signal having said required signal structure; transmitting in sequence a plur ality of res ponse c o mmand signals each commanding said predetermined action in a different signal structure until said selected applianc e exec utes said predetermined action, whereby the last

transmitted one of said response c o mmand signals

05-1351,-1352 3constitutes said response-ev oking signal hav ing said required signal structure; storing signal struct ure identific ation data corresponding to said required signal structur e of said response-evoking signal, thereby creatin g stored signal structure identification data ; and generating subsequent applianc e command signals at least in part under control of said s e lected c a tegory signal and said stored signal structure identification data

. All claims of the ’562 patent w e r e a s s e r t e d

. A s t o t h e apparatus claims, independent Claim 1 is representative. It requires, in relevant part: keyboard means having a plurality of keys for providing respective keyboard output signals upon user activation of respective one of said keys, said plurality of keys including a predetermined group of keys each representing a different one of said different categorie s of devic es, each of said memory addresses corresponding to at least one of said keyboard output signals, said keyboard output signals further comprising an entry initiate signal ; As to the method claim s , Claim 9 is representative and reads as follows: 9. Method for generating devic e contro l signa ls remotely controlling a plurality of devices each belonging to a res pective cat egory of devices, at least two of said devices being of t he same category of devices, and at least two being of different categories of devices, two of said devices of the same or different categories requi ring a different signal format, in a remote control transmitter having said signal formats permanently stored at respective memory addresses, said remote control transmitter further having a keyboard having a plurality of keys, said plurality of keys including a predetermined group of keys each corresponding to one of said different categories of devices, comprising the steps of user activation of one key in said predetermined group of keys; user activation of an entry initiate key ; user activation of at l east one address key, after said entry initiate key , said address key sign ifying the memory address storing specific device formatting data for said selected one

05-1351,-1352 4of said plurality of dev ices, t hereby reading out said specific device formatting data; and transmitting devic e c ontrol sign als in accordance with said device formatting data to a sele cted category of devices and said selected one of s a id pluralit y of devices in said s e lected category. A technology tutorial, Markman hearing and cross-motions for summary judgment were all heard by Judge Kent A. Jordan on Novem ber 25, 2003. During the hearing, both sides agreed that, with respec t to the ’359 patent, if t he court adopted the claim const r uction proffered by the other si de, summary judgment of infringement woul d be appropriate. 1
On March 29, 2004, the district court is sued a Markman order, construing (1) ”signal structure i dentific ation data” to mean “informati on (data) that identifies a signal structure;” (2) ”entry initiate signal” to mean “the keyboard output signa l generated by the entry initiate k e y;” and (3) ” an entry initiate key ” to mean “one entry initiate key.” On April 5, 2004, the district c ourt issued an order granting Philips’ motion for summary judgment of infringement (and denying CMT’s cross-motion for summary

1 Counse l for Philips framed it this way: “S o if the Court construes it in Philips' favor, the defendants have pro ffered no reason why s u mmary judgment on infringement should not be grant ed. And vice versa. If the Court construes the term to mean what Compo Micro Tech proposes, t hen Philips could concede that summary judgment on the ’ 359 patent is required. So I don't think with resp ect to infringement on the ’ 359 there is any issue between the parties.” See Joint Appendix 3272. Counsel for CMT agreed: “I concede that if Your Ho nor construed it so br oadly to mean any stored product identif ication data, as they would submit, of any kind, then we would fall within and must fall within the construction and we would be liable for infringement.” Id. The district court confi rmed that CMT stipulated that the cl aim c o nstruction wa s case-dispositive: “The important point for me to know at this junction is, it's n o t disputed that at the end of the day, at least in this Court, if it is determined Philips is right, summary judgment of infringement for Philips is in or der.” To this, couns el for CMT unequivocally responded: “ If your Honor adopts their construction as they have proffered it to the Court, ye s, Your Honor.” JA 3274.
05-1351,-1352 5judgment of non-infringement) on Claims 1, 3 and 4 of the ’359 patent. It emphasized that “signal structure identif ication data” had been the only di sputed term in the ’359 patent. Because Philips’ propos ed construc tion was adopted and CMT had concede d at oral argument that, under t hat construction, the acc u sed pr od ucts literally infringed, summary judgment was appropriate. In the same order, the district court also granted CMT’s motion for summary judgment of non-in fringement of the ’562 pat ent. It noted that in the accused URCs, a user must pr ess two keys, (i.e., both a category key and some other, non-category key), simultaneously in or der to initiate the programming sequence. Because “an entry initiate key” had been construed to mean only one entr y initiate key, the ’562 patent was not literally infri nged. The district co urt further held that Philips was precluded from asserting the doctrine of equi valents due to prosecution history estoppel, as Claim 1 had been amended fr om “user activation of respective one s of said keys” to “one of said keys.” In a separate order, also issued on April 5, 2004, the district court denied CMT’s motion for summary judgment of invalidity. With respect to the ’ 359 patent, the motion was denied becaus e t here remained “genuine iss ues of material fa ct, due to competing expert opinions,” as to whether Claims 1, 3 and 4 were anticipat ed by a particular Japanese reference. Summary judgment on obv iousness was al so inappropriate because CMT had not “undertaken t he analysis, required by G r aham , to support its argument that claims 3 and 4 ar e obvious in li ght of the cited prior art refere nces.” As for the ’562 patent, there remained issues of ma terial fact as to (1) whether a remote control device called “CORE” and its ac companying reference manual constituted invalidating prior art; (2) whether the two ot her remote controls (the UR1 and UR2) were

05-1351,-1352 6adequately disclosed to the PTO; and (3) whether the examiner considered the ’359 patent during prosecution of the ’ 562 patent. A jury trial commenced on April 12, 2004. During the charging c onference, the parties dis agreed on the jury ins t ruction concerning damages, with CMT suggesting an additional s entence. Ult imately, however, the district court declined to d e viate from the standard jury instructi on. On April 19, 2004, the jury returned its verdicts, finding (1) the ’359 patent was not proven invalid as antici pated or obvious; (2) where the parties had agreed to the number of units sold, $1.00/uni t was a reasonable royalty; and (3) CMT’ s infringeme n t was not willfu l . On July 26, 2004, judgment was entered accordingly. CMT was required to pay a reasonable r o yalty of $5 ,793,879 on sales made from September 17, 2002 through Dece mber 31, 2003 as well as $183,923 in pre-judgment
interest. CMT moved for judgment as a matter of law pursuant to FRCP 50 (a) at the clos e of plaintiffs’ case and again at t he clos e of all the ev i dence, but these motions wer e denied without prejudice. On August 9, 2004, CMT renewed its m o tion for judgment as a matter of law pursuant to FRCP 50(b), arguing that (1) the jury’s finding that the ’359 patent was not invalid was not s upported by substantial evidenc e and (2) Philips was not entitled to recover damages because it had not proven that consumers used the accused URCs in a n infringin g way – i.e ., programming with the “scan” method rather than the “code entry” method. This motion was denied on March 8, 2005. CMT’s appeal and Philips’ cros s-appeal we re both filed on April 6, 2005. We have jurisdiction pursuant to 28 U

. S.C. 1295(a)(1).

05-1351,-1352 7II. DISCUSSI ON
A. In fring e ment In this action, the questions of in fringement turned ent irely on the claim constructions adopted by the district court. Claim c onstruction is a ques tion of law reviewed de novo . Cybor Corp. v. FAS Techs., Inc

. , 138 F.3d 1448, 1454-56 (Fed. Cir. 1998) (en banc). We determi ne the customary meaning of c l aim terms as understoo d by a perso n of ordina ry skill in t he art, usin g the methodolo g y first set forth in Vitronic s Corp v. Conceptronics , Inc. , 90 F.3d 1576, 1582-83 (F ed. Cir. 1996), and reaffirmed in Phillips v. AWH Corp. , 415 F.3d 1303, 1312-19 (Fed. C i r. 2005). 1. The ’35 9 patent With respect to the phrase “signal struct ure identification data,” the district court noted that the parti es did not dispute that “signal stru cture” was defined in the specification to mean “infra red signals having particular characteristics that the appliance understands, such as frequency, pulse width, and bit timing.” It thus focused the inquiry on the claim terms “identificat ion” and “data,” adopt ing their ordinary meanings as proffered by Philips. The phrase was construed to mean “information (data) that identifie s a signal structure.” CMT argues that the district court e rred in failing to adopt its own proposed construction, i.e., “informati on (data) that constitutes par t of an address used to address one table in a multiplicity of product code t ables.” It makes three arguments on this issue. First, it argues that the specification uses this phrase only in des cribing the particularly preferred embodiment, wherein it is made clear that “the stored signa l structure identificati on data constitutes part of an addre ss, the remainder of the address

05-1351,-1352 8being provided by us er select ion of the category to whic h the appliance belon gs. . . [which] is used to address one table in a mu ltiplic ity of product c ode tables.” ’359 Patent col. 2, ll. 35-41. Second, it point s out that during prosec ution, the claim was amended from “storing signal struct ure identification dat a corresp onding to said required signal structure of said response-evokin g signal, thereby cr eating stored product identification data ” to “thereby creating stored sign al structure identification data .” Third, CMT stresses that the claim language itse lf requires “ generating subsequent appliance command signals at least in part under cont rol of said selected ca t egory signal and said stored signal structure identifi cation data,” which s uggests that the latter is only p a rt of an address used to look up product codes. We agree with the district court that the phrase “signal structure identific ation data” is entitled to its plain and ordinary meaning. T h e distri ct court correctly rejected CMT’s invitation to read into the phrase a limitation fr om the preferred embodiment. See Electro Med. Sy s., S.A. v. Cooper Life Sciences , 34 F.3d 1048, 1054 (Fed. Cir

. 1994). It also accept ed, as do we, Philips ’ explanatio n that the claim amendment was only made to maintain consistenc y, as the fi nal phrase of Claim 1 re fers to “s aid stored signal structure identificat ion data,” which otherwise does not appear earlier in the claim. We review a district court’ s grant of summary judgment de novo . I PXL Holdin gs, L.L.C. v. A m azon.com, Inc. , 430 F.3d 1377, 1380 (Fed. Cir. 2005). Here, because CMT stipulated that the accused products would literally in fringe the ’359 patent under the definition of “signal structur e identification data” proffere d by Philips and adopted by the district court, we must affirm the summary ju dgment of i n fringement.

05-1351,-1352 92. The ’56 2 patent As for the phrases “an entry initiate key” and “entry initiate signal,” the district court acknowledged that an in definite article normally means “one or more” in open-ended claims, but found sufficient evidence in the specification of the ’562 patent and the prosecution history to limit “an” to the sing ular. We agree that “a” or “an” normally c a rries the meaning of “one or more” in c l aims cont aining the transitional phrase “comprising.” KJC Corp. v. Kinetic Concepts, Inc. , 223 F.3d 1351, 1356 (Fed. Cir. 2000). Here, however, the patentee clear ly intended the use of on ly one entry initiate key. Looking first to the language of Claim 9 itself, the phr as e “user activation of an entry initiate key” is immediatel y followed by a reference to “said entry initiate key,” which reinf o rces the singular meaning. See Abtox, Inc. v. Exitron Corp. , 122 F.3d 1019, 1023-24 (F ed. Cir. 1997). Like wise, Claim 1 refers to a “key board means hav ing a plurality of keys for providing respective key board output signals upon user activation of respective one of said keys . . . said keyboard output si gnals further comprising an entry initiate signal.” The patent t hus c ontemplates pressing only one k e y at a time to provide keyboard output signals, including the entry initiate signal. Signific antly, during prosecution, the claim language was amended from “ones of sa id keys” to “one of said keys,” a disclaimer of the plural. The spec ification further confirms that the patented invention only uses one entry initiate key. In describing how a particula r embodiment could inc o rporate the inventions described by the ’359 patent as well as t he ’562 patent, the specification states tha t pressing more than one key sim u ltaneous ly would in itiate a routine “which is irrelevant

05-1351,-1352 10to an understanding of the presen t invention,” i.e., the “learn” or “scan” method which is described in the ’359 patent. ’562 Patent, col. 5, ll. 7-21. In any cas e , if the number of keys pre ssed exc eeds one, t he routine is not part of the present invention and will not be described in detail her ein. If the number of keys pressed is equal to one, the mic r oprocessor first tests whether this is the record key. If the user has pressed the record key (herein als o referred to as the enter initiate key), he has taken the initial st ep for implementing t he pres ent invention, i.e., for entering the necessary data for identifying a par ticular manufacturer and model number directly on the keyboard. Id. at col. 5, ll. 21-31 (em phasis added). We thus agree with t he district court that “an entry initiat e key” means “one entry initiate key” and “entry initiat e signal” means “the keyboard output signal generated by the entry initiate key.” Because it is undisputed that the accu sed device required a us er to press two keys simultaneously to initiate the code ent ry programming sequence, a routine that was expressly disclaimed by the ’562 paten t, we must affirm the summary judgment of non-infringement. B. Invalidity Unlike a grant of summary judgment, the denial of summary judgment “is not properly reviewable on an appeal from the final judgment entered a fter trial” to the extent it merely indic a tes that ther e are factual disputes to be tried. 2 Glaros v. H.H. Robertson Co. , 797 F

. 2d 1564, 1573 (Fed. Cir. 1986). Here, the denial of summary judgment as to invalidity rest ed squarely on genuine iss ues of ma terial fact. Since there was subsequently a jury trial, we cannot review this decision.

2 In contrast, “[a] denial of a m o tion for summary judgment may be appealed, even after a final judgment at tria l, if the motion involved a purely legal question and the factual disputes resolved at trial do not affect the resolution of that legal question.” United Techs. Corp . v. Chromalloy Gas Turbine Corp. , 189 F.3d 1338, 1344 (Fed. Cir. 1999).
05-1351,-1352 11As for the denial of judgment as a matter of law after the trial, we review that decision by reapply i ng the same standard used below. In other words, the jury’s verdict can only be overturned if the “factual fi ndings were not suppor ted by substantia l evidenc e or . . . the facts we re not suffici ent to support the conclusions necessarily drawn by the jury on t he way to its verdict.” Tec Air, Inc. v. Denso Mfg. Mich. Inc. , 192 F.3d 1353, 1357-58 (Fed. Cir. 1999). The district court found that t he jury was entitled to accept the testimony of either expert as more credible than that of the other and declined to disturb its findings that CMT had failed to meet its burden of proving anticipation or obviousness by clear an d convinc i ng evid ence. We agree that substantial evidence, i.e., the testimony of Philips ’ expert, supports the jury’s findings and affirm the final judgment as to the invalidity issues . We also conclude that just as the jury was legally entitled to believe that expert, his testimony was sufficient to defeat the evidenc e of invalidity. C. Damages With respect to damages, CMT contended t hat the jury verdict could not be sustained because Philips had presented no evidenc e on the nu mber of URCs actua l ly used in an infringing manner. The district court denied judgm ent as a matter of law, finding that CMT had “waived its opportunit y to raise those arguments” because it di d not include them in the final pretrial order. On procedural issues, we app ly the standar d of review of the regional circuit

. Sulzer T e x t il A.G. v. Picanol N. V. , 358 F.3d 1356, 1363 (Fed. Cir. 2004). In the Third Circuit , w hether to permit a change in the pretrial order is within the discreti on of the trial judge. “Appellate interference with this

05-1351,-1352 12discretion should be kept at a minimum. It should only be exer cised wher e there is a clear abus e of discretion. ” Ely v. Reading Co. , 424 F.2d 758, 763-64 (3d Cir. 1970). CMT has demonstrated no such abuse of di scretion. Both parties set forth their respective theories on damages in the Joint Pretrial Order, wherein they agreed that the issue at trial was wha t a r easonable royalty rate was. CMT’s own experts had prepared reports calculating damages as a percentage of net s a les. In s hort, the district court acted within its discretion in re jecting CMT’s last-minute attemp t to deviate f r om what it had previously argued. We thus affirm the final judgment as to the damages awarded by the jury. To the ext ent that CMT is also challenging the district court’s refusal to give its proposed jury instruction limiting damages to t he number of products actually used in a n infringing manner by consumer s, we find no rever s ible error. CMT argues that damages for indirect infringem ent must be tied to identified instances of direct infringement, citing Dynacore v. U.S. Philips Corp. , 363 F.3d 1263, 1274 (Fed. Cir. 2004). CMT misreads this opinion. It is true t hat “[p]laintiffs who identify individua l acts of direct infringement must re strict their theories of vica rious liability – and tie their claims for damages or injunctive re lief – to the identified act.” Id. Yet, the very next sentence recogniz e s that plaintiffs, like Ph ilips, “who identify an entire category of infringers (e.g., the defendant's customers) may cast their t heories of vicarious liability more broadly, and may consequently seek damages or injuncti ons across the entire category.” Id. Here, Philips argued that the reasonabl e royalty reached in a hypothet ical negotiation between the parties would hav e been based on the agreed upon number of

05-1351,-1352 13total sales rather than usage by individual c u stomers, si nce the latter would have been difficult to predict. There was substant ial evidence in the record, including expert testimony and Philips ’ license agreement with Sony Corporation, to supp ort the jury’s calculation of damage s in this wa y. In any e v ent, it co uld be inferred that the jurors did account for CMT’s contention t hat not all t he units sold were used in an infringing manner, since they c onsider ed $1 per unit to be a r easonable royalty despite the testimony of Philips’ expert that the reasonable royalt y w ould have been much higher – i.e., $2 per unit to license both patents-in-suit or $1.50 per unit to license only one of the patents. Although it is true that no survey evidence or expert testimony was presented as to the percentage of units sold that were actually used in an infringing manner, the jurors could have relied on their own per s onal experiences with URCs and common sense in discounting the royalty rate. III. CONCLUS ION For the foregoing reasons, we affirm the district court’s j udgment in all respec ts.

05-1351,-1352 14