NOTE: Pursuant to Fed . Cir. R. 47.6, this dispo s ition is not citable as precede nt. It is a pu blic record. 

## United States Court of Appeals for the Federal Circuit

05-1017 E. MICHAEL MATTOX, Plaintiff-Appellant, v. INFOTOPIA, INC., TOTAL TIGER, INC., MARK LEVINE, and DAVID RICHMOND, Defendants-Appellees.

______ ____________________ DECIDED: May 23, 2005

______ ____________________ Before MAYER, CLEVENGER, and SCHALL, Circuit Judges

. Opinion for the court filed by Circuit Judge CLEVENGER. Circuit Judge MAYER dissents. CLEVENGER, Circuit Judge

. Mattox appeals from the decis ion of the Unit ed States District Court for the Central District of California granting summa ry judgment of noninfringement in favor of Infotopia, Inc., Total Tiger, Inc., Mark Levine, and David Richmond (collectively "Infotopia"). See Mattox v. Infotopia , No. CV 03-6169, 2004 WL 1638202 (C.D. Cal. July 22, 2004). Because the district court misconstrued certain claim limitations of the patent-in-suit, we vacate the grant of summary judgment and remand

.I United States Patent No . 5,499,961 ("the ' 961 patent ") , entitled "Kneeling- ProneKneeling Exercise Device" is ge nerally directed to an exercis e device. As described in the patent, a person desiring to use the device knee ls on k neepads that are relatively centrally located, places the heels or lower l egs in cont act with a "heel brace" near the posterior of the machine, and places the ar ms upon, or grips, a " g lide" located near the anterior of the machine. See generally the '961 pat ent, Figures 1 & 8. To perform exercis e , the person moves the glide forward, which elongates the torso. The motion is followed by contracting the torso, to resume a kneeling position. The parties have stipulated that cl aim 1 is re presentative. See Mattox , 2004 WL 1638202, at *1. Claim 1 of t he '961 patent is directed to a device. It states:
1. An exercis e device having: a glide for supporting arms of a user in a f o rward kneeling pos i tion and gliding along a s upport surface [ 1] while extending the body in a for w ar d direction; a heel brace adapted to be positioned behind and bear against the rear surface of the heels of a user for restraining upward m o vement of the heels of a user in a f o rward kneeling pos ition and as the user pushes the glide in the forward direction; a knee rest for supporting knees of a user in a forward kneeling position as the user glides the glide in the forward direction; and a connector between the knee rest and t he heel brace to maintain the heel brace and the knee rest in a relatively fixed position, at least while the user rests his or her knee on the k nee rest and pushes the glide in the forward direction;

1 The word " s urface" was made part of the claim on February 19, 2002, b y Certificate of Correcti on.

05-1017 2whereby as the user pushes the glide in the forward direction, with knees on the knee rest and heels abutting the heel brace, the user can use at least one of back, buttock and leg muscle groups to extend and s upport his or her body and return his or her body to the kneeling position. The '961 patent, claim 1 (emphases added). Among others, the district court construed t he "glide" and "heel brace" limitations. According to the district cour t, the "glide" limitation de fines: "a device that supports the arms of a user to facilitate the f o rward and backward movement of the user alon g a n object that holds up and moves the us er in a certain course," Mattox , 2004 WL 1638202, at *7, while the "heel br ace" limitation defines : "a heel brace made to fit so i t is pos itioned behind and bear s against the rear surface of the hee ls of a us er for restraining upward movement of the heels of a user in a forward k neeling position and as the user pushes the glide in the forward direction," id. at *9. Based on its interpretation of the "glide" a nd "heel br ace" limitations, the district court entered summary judgment in favor of In fotopia. The reas ons, according to the district court, are that "[u]n like the '961 Patent, the [accus ed dev ic e] employs the use of a wheeled structure that glides on the floo r, rather than along a support . . . [and] [u]nlike the '961 Patent, whose ' heel brace' re strains the user's legs by bearing agains t the user's heels, the [accused device] . . . re strains the user's legs by bearing against the user's ankles." Id. at *11. Mattox appeals, and we have jurisdiction to review this decis ion pursuant to 28 U.S.C. § 1295(a)(1) (2000).
II The proper interpretation of the claims of a patent is a legal question, see Innova/Pure Water, Inc. v. Sa fari Water Filtration Sys., Inc. , 381 F.3d 1111, 1115 (Fed.

05-1017 3Cir. 2004), and this court conducts a complete and nondeferential review when a district court grants summary judgment, see Conroy v. Reebok Int'l, Ltd. , 14 F.3d 1570, 1575 (Fed. Cir. 1994).
III Mattox contests the grant of summary judgment on two points. First, Mattox contends that the district c ourt erroneously construed the "g lide" limitation. Second, according to Mattox, the trial court either misconstrued or misapplied the "heel brac e" limitation. We agree with Mattox on both points.
A The distric t court's misconstruction of the "glide" limitation flows from its misunderstanding of the claim language, "gliding along a support," which according to the district court requires t hat the glide "mov es the user in a certain course," see Mattox , 2004 WL 1638202, at *7. As the decision on infringement make s cl ear, the district court understood "in a certain course " to mean along a path di rect ed by a guide. Put differently, the district court believed that claim 1 defin e s the "glide" usin g language that requires the glide to travel along a direct ional support that limit s nonlinear movement,
e.g. , a "guide track." See, e.g. , the '961 patent, Figure 8. This is incorrect. The claim language, "gliding along a supp ort," plainly includes traveling ov er a floor. Consequently, the district court erred when it read out of claim 1 embodiments of the glide structure that "glide[] on the floor." See Mattox , 2004 WL 1638202, at *11. Absent statements in the intrin sic record to th e contrary, w here claim language is plainly susceptible to an interpretation that in c l udes the described embodiments, that interpretation is the better inter p retation. See Vitronics Corp. v. Conceptronic, Inc. ,

05-1017 490 F.3d 1576, 1583 ( F ed. Cir. 1996) (reasoning t hat an interpretation that exc l udes a preferred embodiment is unlikely to be correct). Such is the case here. A glide that tr avels along a support surface which can be a floor is depicted in t he '961 pat ent. See, e.g. , the '961 patent, Figures 1, 4, 5, 6, & 7. Clearly, as the depicted glide moves along the support surface, it is not subject to the constraints of a "guide track." See id. Moreover, in one embodim ent, item 114, which is described as elastic tubing, see the '961 patent, col. 5, l. 38, is not present, see id. , col. 9, ll. 50-52. In such a n em bodim ent the only feature controllin g the course of the glid ing motion is the ability and decisionmaking of the user. Based on its misapprehensio n of the claim m eaning, the district court erroneously held that the "glide" limitation could not be met. Because the accused device cont ains " a glide for supporting arms of a user in a forward kneeling position and gliding along a suppor t," the accused device meets the "glide " limitation of the '961 patent. As the district court understood, a gli de is a de vice for facilitating the movement of something. As set forth in the record , the glide of the accused dev ic e is c l early capable of supporting the arms of a user in the operation of the device. The user can keep both arms parallel or other wise. Furt hermore, the glide in the accus ed devic e facilitates "glid ing alon g a support" because it pe rmits the user to trav el over a floor.
B As Mattox contends, the district court also misconstrued the st ructure defined by the "heel brace" limitation of the claimed device. The dist rict court construed "adapted to be positioned behind and bear agai nst the rear surface of the heels" to mean that the heel brace must necessarily "r es train[] upward movement of the heels" by t o uching the

05-1017 5heels of each and every user who operates the exercise dev ice. Und e r the distric t court's interpretation, if a user could us e an accused device by engaging restraining force against the part of the leg above the rear surface of the heels, then this limitatio n would not be met. This interpretation is inco rrect because it fails to respect that the claim language defines a structural element, not a method of use. The proper interpretation of this limitati on flows from the correct understanding of the term "adapted." The term "a dapted" plainly means to make fit (as for a specific or new use or situation). T hus, the language, "heel brace adapted to be positioned behind and bear against the rear surfac e of the heels," defines a st ructure fit to be position e d "behind and bear[ing] against the rear surfac e of the heels" and fit for performing the function of "restraining upward movement of the heels." In other words, the structure defined by the claim language mu st be capable of performing the function in t he manner described. If a user can put his or her heels in contact with the heel brace s u ch that the heel brace restrains the upward movement of the user' s heels in the course of operating the device, then the lim itation is met. Notwithstanding the fact that Infotopia's ma rketing materials state that the user's "heels should be sec u re" under the bracing stru cture of the accused device, the district court held that the "heel brac e" limitation of the '961 pat ent could not be met by the accused device. After a review of the reco rd, we are convinced t hat this holding was based on a misapprehension of the claim meaning. Accordingly, it is vacated. As noted, if an accused device is capable of us e so as to restrain upward movement of the heels by engaging the rear surfac e of the heels with the heel br ace, that device literally meets the heel brac e limitation.

05-1017 6IV On this record, the district court did not abuse its d i s c retion in refusing to giv e effect to the word "surface" as added by the Ce rtificate of Correction. Otherwise, for the reasons dis c ussed above, the grant of summa ry judgment is vacated and the case is remanded for further proceedings consistent with this opinion. No costs.

MAYER, Circuit Judge , dissents.

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