Before Plager, Lourie, and Clevenger, Circuit Judges.
NOTE: Pursuant to Fed. Cir., R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Opinion for the court filed Per Curiam. Circuit Judge LOURIE concurs in the result.
We must affirm the summary judgment of noninfrigement entered by the District Court. We need not reiterate the facts of this case, of which the parties are of course knowledgeable, and with which we gained close familiarity in a previous appeal in this case. See Kamyr, Inc. v. Clement, 1998 WL 15223 (Fed. Cir. 1998). With respect to the "2 to 10 minute" limitation in claim 1, Clement concedes that the accused processes do not meet that limitation literally. Thus, to prevail, Clement must prove that the "2 to 10 minute" limitation is met under the doctrine of equivalents.
The presumption of Warner-Jenkinson--that prosecution history estoppel applies to this limitation--applies in this case. The district court gave Clement an opportunity to rebut that presumption, and Clement failed to do so. Consequently, Clement is unable to assert the doctrine of equivalents as to that limitation. See Sextant Avionique, S.A. v. Analog Devices, Inc., 172 F.3d 817, 832, 49 U.S.P.Q.2d 1865, 1875 (Fed. Cir. 1999). Clement thus fails to demonstrate infringement of this particular limitation. Since a successful claim of infringement of claim 1 must prove that the accused processes meet each limitation of claim 1, see Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 935, 4 U.S.P.Q.2d 1737, 1740 (Fed. Cir. 1987), we have no choice but to affirm the judgment from which appeal has been taken.
In addition, we think that Clement's appeal from the District Court's order denying his motion to alter or amend the judgment lacks merit. We therefore affirm that order.
Finally, we deny Kamyr's demand that it be awarded attorneys' fees in connection with this appeal. Kamyr failed to present that issue by separate motion, as is required by our rules, and in any event its demand is without merit.
LOURIE, Circuit Judge, concurs in the result.