Aspex Eyewear, Inc., v. Altair Eyewear, Inc., [2007-1380, -1407] (August 1, 2008) [MICHEL, Linn, Zagel] NON-PRECEDENTIAL The Federal Circuit reversed summary judgment of non-infringement of U.S. Patent No. 5,737,054, finding an error in the court’s construction of the term “frame”, but affirmed summary judgment of non-infringement as to U.S. Patent Nos. 6,012,811 and 6,092,896, and remanded as to infringement of the ‘054 and standing to sue issues
DISCUSSION: The Federal Circuit said that it determines the ordinary and customary meaning of undefined claim terms as understood by a person of ordinary skill in the art at the time of the invention, using the methodology in Phillips v. AWH Corp. While the district court construed “frame” as requiring a bridge portion and rims, the Federal Circuit found nothing in the claim language limits a “frame” to only one with rims. The Federal Circuit further noted that the written description never mentions or describes rims, although rims are illustrated in the figures, and the written description states that the precise configuration of the components of the glasses could be modified and still be within the scope of the claims. The Federal Circuit concluded that “frame” as used in the claims did not require rims.
The Federal Circuit then turned to the 35 USC §112, ¶6. The district court held that “two retaining mechanisms for supporting a pair of lenses, and defining a frontal plane” was a means-plus-function limitation under Section 112 ¶ 6. The Federal Circuit observed that when a claim limitation does not recite a “means,” there is a rebuttable presumption that it is not a means-plus-function limitation. The Federal Circuit said that the presumption can be overcome, if the claim term fails to recite sufficiently definite structure or else recites function without reciting sufficient structure for performing that function. To help determine whether a claim term recites sufficient structure, the Federal Circuit considers whether it has an understood meaning in the art. The Federal Circuit has also held that a claim term need not recite specific structure; if the claim term is used in common parlance or by persons of skill in the pertinent art to designate structure, even if the term covers a broad class of structures and even if the term identifies the structures by their function. The Federal Circuit found no indication in the record that “retaining mechanism” connotes definite structure to a person of ordinary skill in the art. Thus the Federal Circuit affirmed that “retaining mechanism” is a means-plus-function limitation. Because the only structure disclosed in the specification for performing the recited functions (i.e., supporting the lenses and defining a frontal plane) were rims, the Federal Circuit agreed with the district court that this language required rims.