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Le-Jo Enterprises Inc. v. Lincoln Food Service Products

U.S. Court of Appeals, Federal Circuit


February 08, 1999

LE-JO ENTERPRISES, INC., PLAINTIFF-APPELLANT, AND MILTON INDUSTRIES, INC., PLAINTIFF,
v.
LINCOLN FOOD SERVICE PRODUCTS, INC, NEMCO, INCORPORATED AND NATIONAL PRODUCTS CO., DEFENDANTS-APPELLEES.

Before Michel, Bryson, and Gajarsa, Circuit Judges.

The opinion of the court was delivered by: Bryson, Circuit Judge.

Le-Jo Enterprises, Inc., owns U.S. Patent No. 4,569,280 (the `280 patent). In 1994, Le-Jo brought suit against Lincoln Food Services Products, Inc.; Nemco Incorporated; and National Products Co. (collectively Lincoln) alleging infringement of the `280 patent. The district court granted summary judgment of non-infringement, and Le-Jo appealed. We affirm.

BACKGROUND

The `280 patent discloses a food preparation implement designed to slice produce having a roughly spherical shape. The produce is held within a bowl-shaped top surface of a pedestal. The pedestal is connected to guide rods extending upwards. The cutting device consists of a cone-shaped set of blades, which connect at their apex in a small metal ball. The cutting device slides along the rods and can be pushed down against produce placed on the pedestal. The pedestal is divided by gaps that correspond to the placement of the blades so that the blades can cut completely through the produce. Because the blades are configured in a cone shape, the initial slicing contact occurs at several points around the upper surface of the produce, and the slicing pressure is directed down and towards the center of the produce. The bowl-shaped surface holds the produce pieces together during and after slicing.

Lincoln's accused device is designed to make "flowering" or "blooming" onions. It provides a pedestal on which to place the onion. Upwardly extending guide rods are rigidly connected to the pedestal and a platform containing blades is configured to move along the rods. The blades are configured as a truncated cone, and each blade is attached at its top to the circumference of a metal ring. The initial slicing contact occurs at several points around the onion and the slicing pressure is directed inwardly. The Lincoln device includes stops that prevent the complete slicing of the onion. It also includes an ejector pin, which is intended to free the cone of blades from the onion by holding the onion down as the cone is moved upwardly out of the onion.

After Le-Jo filed this action charging that Lincoln's device infringed the `280 patent, Lincoln moved for summary judgment of non-infringement. In response, Le-Jo offered argument and evidence in support of its contention that the Lincoln device literally infringed the patent. The district court granted Lincoln's summary judgment motion. In light of the court's construction of the asserted claim of the `280 patent, the court held that Le-Jo had failed to point to any material factual dispute regarding infringement. After the court's entry of judgment, Le-Jo moved for reconsideration, arguing that Lincoln's device infringed the `280 patent, both literally and under the doctrine of equivalents. The district court denied the motion for reconsideration without addressing Le-Jo's doctrine of equivalents argument.

DISCUSSION

On appeal Le-Jo states that it does not challenge the district court's summary judgment of no literal infringement. Le-Jo's arguments, however, address many of the issues that surround the interpretation and application of claim limitations under 35 U.S.C. § 112 ¶6. We therefore assume for purposes of this Disposition that Le-Jo has disputed the district court's determination that summary judgment of no literal infringement was appropriate.

A.

The first step in determining literal infringement is to construe the relevant claims. The `280 patent has only one independent claim. That claim (claim 1) contains several elements that are written in "means plus function" form, including the following element:

"(b) movable means for engaging said produce to force it against said holding means and slice it into sections . . . ."

The parties dispute whether this limitation encompasses a device that is unable to slice produce into unconnected wedges.

A claim element expressed in language covered by 35 U.S.C. §112 ¶6 is construed by first determining the function of the element as a matter of law. See Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1308 (Fed. Cir. 1998). Element (b) of claim 1 requires the movable means to engage the produce and slice it into sections. Le-Jo contends that the district court erred in construing the term "sections" in the claim to require that the produce be cut into unconnected pieces.

The language of claim 1 supports the district court's claim construction. Claim 1 describes as a further limitation that "the sections are not substantially separated by the action of the movable means." Such separation would not be a concern if the sections were connected.

The prosecution history of the `280 patent likewise supports the district court's construction. In an amendment filed July 1, 1985, seeking to traverse a rejection, the applicant described a prior art device as allowing a sectioned fruit to fall "in disarray from beneath the apparatus." The applicant contrasted his own device as retaining the sections in juxtaposition with each other. These concerns indicate that the "sections" referred to in claim 1 are unconnected. We conclude that the function of the movable means includes slicing produce into unconnected pieces.

Literal infringement of a claim containing a means plus function element requires that the recited function is performed exactly in the accused device. See Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934 (Fed. Cir. 1987) (en banc). Both parties agree that the accused product cannot cut produce into unconnected pieces. We therefore affirm the summary judgment as to literal infringement.

B.

Le-Jo also contends that the district court should have granted it a trial on the issue of infringement under the doctrine of equivalents. We decline to consider Le-Jo's arguments on the doctrine of equivalents, however, because Le-Jo failed to preserve that issue for review. In particular, Le-Jo did not raise the issue of infringement under the doctrine of equivalents before the district court in its response to Lincoln's motion for summary judgment or during the district court's hearing on that motion. Although Le-Jo sought to raise the issue of infringement under the doctrine of equivalents in its motion for reconsideration in the district court, the court declined to address the merits of that issue.

This court will not consider an issue that was not properly presented to the trial court. See Cedar Lumber, Inc. v. United States, 857 F.2d 765, 767 (Fed. Cir. 1988). Moreover, an issue is not preserved for review when it is raised for the first time on a motion for reconsideration in the district court and the district court does not address the issue on the merits. See National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 500 (9th. Cir. 1997). Because the doctrine of equivalents argument that Le-Jo seeks to press here was not properly preserved for review, we decline to address it.

19990208


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