Error: Bad annotation destination
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2006-1245

                               ASPEX EYEWEAR, INC.,

                                         Plaintiff/Counterclaim Defendant-Appellee,

                                           and

      MANHATTAN DESIGN STUDIO, INC. (formerly known as Ira Lerner, Inc.),
               CONTOUR OPTIK, INC., CHIC OPTIC, INC., and
         ASAHI OPTICAL CO., LTD. (now known as Pentax Corporation),

                                         Plaintiffs-Appellees,

                                            v.

                             CONCEPTS IN OPTICS, INC.,

                                         Defendant/Counterclaimant-Appellant,

                                           and

                                 RONALD L. DARATA,

                                         Counterclaimant-Appellant.



       Michael A. Nicodema, Greenberg Traurig, LLP, of New York, New York, argued
for plaintiff/counterclaim defendant-appellee and plaintiffs-appellees. With him on the
brief was Barry J. Schindler.

       Gary E. Lambert, Lambert & Associates, of Boston, Massachusetts, argued for
defendant/counterclaimant-appellant and counterclaimant-appellant. With him on the
brief was Joseph W. Beasley, Josephs Jack, of Miami, Florida.

Appealed from: United States District Court for the Southern District of Florida

Magistrate Judge Robert L. Dubé
                     NOTE: This disposition is nonprecedential.

     United States Court of Appeals for the Federal Circuit
                                     2006-1245

                              ASPEX EYEWEAR, INC.

                                       Plaintiff/Counterclaim Defendant-Appellee,

                                        and

      MANHATTAN DESIGN STUDIO, INC., (formerly known as Ira Lerner, Inc.),
               CONTOUR OPTIK, INC., CHIC OPTIC, INC., and
         ASAHI OPTICAL CO., LTD. (now known as Pentax Corporation),

                                       Plaintiffs-Appellees,

                                         v.

                           CONCEPTS IN OPTICS, INC.,

                                       Defendant/Counterclaimant-Appellant,

                                        and

                             RONALD L. DARATA,

                                       Counterclaimant-Appellant.

                          _______________________

                            DECIDED: January 9, 2007
                          _______________________


Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and MOORE, Circuit
Judge.

ARCHER, Senior Circuit Judge.

      Concepts in Optics, Inc. and Ronald L. Darata (collectively “Concepts”) appeal

the judgment of the United States District Court for the Southern District of Florida

granting partial summary judgment in favor of Aspex Eyewear, Inc., Manhattan Design
Studio, Contour Optik, Inc., and Asahi Optical Co., Ltd. (collectively “Aspex”). Aspex

Eyewear, Inc. v. Concepts in Optics, Inc., No. 00-7067-CIV (S.D. Fla. Jul. 22, 2005)

(“Aspex”). Because we adopt the claim construction set forth by this court in Aspex

Eyewear, Inc. v. Miracle Optics, Inc., 170 Fed. Appx. 710 (Fed. Cir. 2006), (“Miracle”)

(construing the same terms in different claims of the same patent), and conclude that

under that claim construction Concepts’ product infringes U.S. Patent RE37,545 (“the

‘545 patent”), we affirm.

                                            I

       The ‘545 patent is drawn to eyeglasses that have a primary spectacle frame and

an auxiliary spectacle frame attached thereto by magnetic members.           The primary

spectacle frame typically includes prescription lenses while the auxiliary frame typically

includes sunglass lenses. Claims 1 and 17 are at issue in this case and recite as

follows:

       1. An eyeglass device comprising:
       a primary spectacle frame for supporting primary lenses therein, said
       primary spectacle frame including two side portions each having an
       extension extended therefrom for pivotally coupling a leg means thereto,
       said primary spectacle frame including two rear and side portions each
       having a projection secured thereto, said primary spectacle frame
       including an upper side portion,
       a pair of first magnetic members secured in said projections respectively,
       an auxiliary spectacle frame for supporting auxiliary lenses therein, said
       auxiliary spectacle frame including two side portions each having an arm
       extended therefrom for extending over and for engaging with said upper
       side portion of said primary spectacle frame, and
       a pair of second magnetic members secured to said arms respectively for
       engaging with said first magnetic members of said primary spectacle
       frame so as to secure said auxiliary spectacle frame to said primary
       spectacle frame,
       said arms being engaged with and supported on said upper side portion of
       said primary spectacle frame so as to allow said auxiliary spectacle frame
       to be stably supported on said primary spectacle frame and so as to
       prevent said auxiliary spectacle frame from moving downward relative to



2006-1245                                   2
       said primary spectacle frame and so as to prevent said auxiliary spectacle
       frame from being disengaged from said primary spectacle frame.

       17. An eyeglass device comprising:
       a primary spectacle frame having two side portion extensions, each of
       said extensions extending laterally away from one another and rearwardly
       of said frame, each of said extensions having a top side, a front side and a
       rear side with a first magnetic member secured to said rear side, and
       an auxiliary spectacle frame including two side portions each having an
       arm extending from said front side over said top side, said arms containing
       corresponding second magnetic members, said arms and said first and
       second magnetic members supporting said auxiliary spectacle frame on
       said primary spectacle frame.

‘545 pat, col. 3, l. 34 – col. 5, l. 54 (emphases added).

       The district court concluded that the arms could not extend past the rear edge of

the projection containing the magnetic members of the primary frame1 and that this

limitation as to the extension of the arms did not preclude any other components

attached to the arms from extending past the rear edge of the projections. Aspex, slip

op. at 2. Based on this claim construction, the district court concluded that Concepts’

eyeglass device infringed the ‘545 patent.

       On appeal, Concepts challenges this claim construction and resulting

infringement finding. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

                                              II

       When the district court construed claims 1 and 17 in this case, he did not have

the benefit of our decision in Miracle, where we construed claims 12, 16, and 24 of the

‘545 patent. There we concluded that “the district court erred in its construction of

claims 12, 16, and 24 by imposing a limitation on the claims that the arms extending

       1
             This part of the claim construction was based on another district court’s
construction of the same auxiliary spectacle frame arm limitation in a different patent
infringement suit involving the ‘545 patent, Aspex Eyewear, Inc. v. Miracle Optics, Inc.,
No. CV 01-10396 (C.D. Cal. Feb. 14, 2003).


2006-1245                                     3
back from the auxiliary spectacle frame cannot extend past the rear edge of the

projection containing the magnetic members of the primary frame.” Miracle, 170 Fed.

Appx. at 715. The same claim element, the arms of the auxiliary spectacle frame, is

contained in both claim 1 and claim 17.

      Concepts makes several arguments why Aspex should not be able to take the

position that this court’s decision in Miracle should be followed in this case. However,

Concepts’ arguments do not contain any suggestion, legal or otherwise, that we cannot

adopt the claim construction in the Miracle decision. Because claim construction is a

question of law which we review de novo, Cybor Corp. v. FAS Techs., Inc., 138 F.3d

1448, 1454 (Fed. Cir. 1998) (en banc), we are not precluded from adopting the claim

construction made by another panel of this court with respect to the same limitation in

other claims of the ‘545 patent.    Thus, Concepts’ arguments that Aspex should be

prevented from “advocating any position before this Court and the district court, that

attempts to ‘moot,’ modify, erase or otherwise interfere with the district court’s claim

construction of the term ‘arm’ that concerns whether or not the ‘arms’ can ‘extend past

the rear edge of the projections” are unpersuasive and irrelevant.

      After a detailed analysis of the specification and the prosecution history of the

‘545 patent, the Miracle court concluded that there was no limitation on the claims that

the arms extending back from the auxiliary spectacle frame cannot extend past the rear

edge of the projection containing the magnetic members of the primary frame. We see

no reason to depart from this claim construction. Accordingly, for the reasons stated in

our decision in Miracle, we reject the district court’s claim construction related to the

auxiliary spectacle frame arms and adopt the Miracle court’s claim construction.




2006-1245                                   4
       Even under this claim construction, however, Concepts’ eyeglasses device

infringes the ‘545 patent. We have also considered Concepts’ other contentions on

appeal and conclude that they lack merit. Accordingly, the judgment of the district court

is affirmed.




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