       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  IRA PAZANDEH,
                  Plaintiff-Appellant

                           v.

     YAMAHA CORPORATION OF AMERICA,
              Defendant-Appellee
            ______________________

                      2018-1275
                ______________________

   Appeal from the United States District Court for the
Central District of California in No. 8:16-cv-01849-JVS-
DFM, Judge James V. Selna.
                 ______________________

                Decided: April 6, 2018
                ______________________

   IRA PAZANDEH, Placentia, CA, pro se.

    JEFFRY HOWARD NELSON, Nixon & Vanderhye P.C.,
Arlington, VA, for defendant-appellee. Also represented
by SHERI LEA GORDON.
                 ______________________

Before O’MALLEY, WALLACH, and HUGHES, Circuit Judges.
PER CURIAM.
2             PAZANDEH   v. YAMAHA CORPORATION OF AMERICA



     Appellant Ira Pazandeh (“Pazandeh”), proceeding pro
se, appeals the district court’s entry of summary judgment
that two audio speaker models sold by Appellee Yamaha
Corporation of America (“Yamaha”) do not infringe claims
of U.S. Patent No. 7,577,265 (“the ’265 patent”) literally or
under the doctrine of equivalents. He also seeks reversal
of the district court’s exceptional case determination.
Because we conclude that the district court did not err in
its construction of the term “respective . . . enclosure[s]”
and further conclude that Pazandeh failed to properly
appeal the district court’s exceptionality determination,
we affirm in part and dismiss in part.
                       BACKGROUND
    Pazandeh owns the ’265 patent, which is directed to a
loudspeaker system that uses multiple “sound radiators”
in a “specific arrangement resulting in a wider dispersion
of sound over the full range of audio frequencies.” ’265
patent, col. 1, ll. 15–18. The ’265 patent’s independent
claims, claims 1 and 4, are reproduced below:
    1. A speaker system comprising:
        first, second and third sound radiators,
        each sound radiator mounted in a respec-
        tive enclosure; the second sound radiator
        radiating at high audio frequencies and
        positioned medially between the first and
        third sound radiators, only the respective
        enclosure of the second sound radiator
        having a reflective surface (reflectively
        dispersive shape) and having a height no
        greater than the height of the respective
        first and third radiator enclosures; the
        first and third sound radiators radiating
        at low to mid audio frequencies and tilted
        generally toward each other; the sound
        radiators projecting first, second and third
        sound vectors, respectively, with the sec-
PAZANDEH   v. YAMAHA CORPORATION OF AMERICA                3



        ond sound vector oriented vertically and
        the first and third sound vectors directed
        generally toward each other al [sic] angles
        above the horizontal so as to intersect at
        an inclusive angle of between 90 and 170
        degrees; the first and third sound radia-
        tors spaced horizontally apart by at least a
        horizontal width of the second sound radi-
        ator, the first, second and third sound ra-
        diators providing wide dispersion of sound
        produced by the first and third sound ra-
        diators.
    4. A speaker system comprising; first, second and
    third sound radiators, the sound radiators mount-
    ed in respective first, second and third mutually
    spaced apart sound enclosures; the second sound
    enclosure positioned medially between the first
    and third sound enclosures, the first, second and
    third sound radiators projecting first, second and
    third sound vectors, respectively, with the second
    sound vector oriented vertically and the first and
    third sound vectors directed generally toward
    each other at angles above the horizontal; only the
    second sound enclosure having an upwardly facing
    semispherical convex reflective surface terminat-
    ing upwardly above dispersion angles of the first
    and third sound radiators such that a portion of
    sound radiated from each of the first and third
    sound radiators is reflected from the reflective
    surface; the second sound vector directed away
    from the reflective surface.
Id. col. 6, ll. 26–47 (emphasis added); col. 6, l. 66–col. 8,
l. 6 (emphasis added).
    On October 6, 2016, Pazandeh, at the time represent-
ed by counsel, sued Yamaha in the U.S. District Court for
the Central District of California, accusing the company’s
4             PAZANDEH   v. YAMAHA CORPORATION OF AMERICA



ID Series and STM M28 audio speakers (“the accused
speakers”) of infringing claims 1 and 4 of the ’265 patent. 1
Thereafter, the parties engaged in discovery, and Pazan-
deh served formal infringement contentions on Yamaha in
May 2017. [JA 144–170] After receiving these infringe-
ment contentions, Yamaha moved for summary judgment
of noninfringement, arguing, among other things, that the
accused speakers do not contain “respective . . . enclo-
sure[s],” as this term is properly construed. J.A. 82–91.
According to Yamaha, the proper construction of this term
requires that each sound radiator be mounted in its own,
separate enclosure, and because it is undisputed that the
accused speakers are mounted in a single cabinet, there
can be no infringement. [JA 82–91]
    On July 25, 2017, the district court granted Yamaha’s
motion for summary judgment. See generally Pazandeh v.
Yamaha Corp. of Am., No. SACV 16-01849 JVS, 2017 WL
6940551 (C.D. Cal. July 25, 2017). The court began its
analysis by construing the term “sound radiator” to mean
“at least one loudspeaker and not just the diaphragm of
the loudspeaker.” Id. at *4–5. It then construed the term
“respective . . . enclosure[s]” to mean “that each sound
radiator is mounted in its own cabinet or housing,” reject-
ing Pazandeh’s argument that the term should be con-
strued to mean that “each sound radiator is mounted so
that it is acoustically directed and oriented as claimed.”
Id. at *5–6. In reaching this construction, the district
court examined the plain language of the claims, in addi-



    1   Pazandeh also asserted a claim under California’s
Unfair Competition Law (“UCL”), but did not amend his
operative pleading after the district court dismissed this
cause of action pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. See J.A. 19, 64–65. He does not
argue on appeal that the dismissal of his UCL claim
should be reversed.
PAZANDEH   v. YAMAHA CORPORATION OF AMERICA                5



tion to the ’265 patent’s specification and prosecution
history. Id. at *5–8. The district court concluded that,
because there is no dispute that the accused speakers
have loudspeakers that are housed in a single, hollow
cabinet, the speakers do not satisfy the claims’ require-
ment that each sound radiator be contained within a
“respective enclosure,” and therefore do not literally
infringe the claims. Id. at *8–9. And, “even if the devices
project sound similarly to the ’265 patent,” as Pazandeh
argued, “they do not infringe [under] the doctrine of
equivalents because each device’s single cabinet material-
ly differs from the three respective enclosures,” such that
Pazandeh’s argument “would render the ‘respective
enclosure’ requirement meaningless.” Id. at *9.
    Thereafter, Yamaha moved for its attorneys’ fees
pursuant to 35 U.S.C. § 285. [JA 33] The district court
granted Yamaha’s motion, finding the case “exceptional”
in view of evidence that Pazandeh did not perform an
adequate pre-suit investigation, did not conduct a reason-
able post-filing infringement analysis, and advanced
meritless and unsupported infringement arguments. J.A.
372–73.
    We have jurisdiction under 28 U.S.C. § 1295(a)(1)
(2012).
                        DISCUSSION
    Pazandeh raises three arguments on appeal. First, he
contends that the district court erred in its construction of
the “respective . . . enclosure[s]” limitation, submitting
that the word “respective” simply describes the spatial
relationship between the sound radiators. Appellant Br.
5–6, 8–9. Second, he argues that the district court im-
properly entered summary judgment in Yamaha’s favor
on the question of whether the accused speakers infringe
claims 1 and 4 of the ’265 patent under the doctrine of
equivalents, contending that the accused speakers “per-
form the same function by the same means to yield the
6              PAZANDEH   v. YAMAHA CORPORATION OF AMERICA



same results.” Id. at 13. Finally, he asks this court to
reverse the district court’s “exceptional case” determina-
tion. Id. at 15. We address these arguments in turn.
             A. “Respective . . . Enclosure[s]”
      Pazandeh raises three arguments why he believes the
district court erred in its construction of the “respective
. . . enclosure[s]” limitation. First, he contends that the
’265 patent uses the word “respective” to refer to the
orientation or arrangement of the sound radiators, which
is confirmed by the Merriam-Webster online dictionary’s
definition of the word. Id. at 8–9. He also claims that the
district court erred in failing to consider the declaration of
his expert, John Koval. Id. at 12. Finally, he argues that,
because the terms “respective enclosure” and “respective
enclosures” do not appear in the written description of the
’265 patent, the claims do not require separate enclosures.
Id.
    “[T]he ultimate issue of the proper construction of a
claim should be treated as a question of law.” Teva
Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 839
(2015). To ascertain the scope and meaning of the assert-
ed claims, we look to the words of the claims themselves,
the specification, the prosecution history, and any rele-
vant extrinsic evidence. Phillips v. AWH Corp., 415 F.3d
1303, 1315–17 (Fed. Cir. 2005) (en banc). We review any
“subsidiary factual findings [on extrinsic evidence] under
the ‘clearly erroneous’ standard.” Teva, 135 S. Ct. at 839.
“[W]hen the district court reviews only evidence intrinsic
to the patent (the patent claims and specifications, along
with the patent's prosecution history), the judge’s deter-
mination will amount solely to a determination of law,
and the Court of Appeals will review that construction de
novo.” Id. at 841.
    In this case, the district court correctly observed that
Pazandeh failed to provide any evidence to support his
proposed construction that “each sound radiator is
PAZANDEH   v. YAMAHA CORPORATION OF AMERICA                 7



mounted so that it is acoustically directed and oriented as
claimed.” Pazandeh, 2017 WL 6940551 at *6. Pazandeh
does not provide any such intrinsic evidence on appeal
that supports his reading. Moreover, his expert, Mr.
Koval, did not offer any opinion on the meaning of the
term “respective” recited in the claims. Cf. J.A. 333. In
any event, we agree with the district court’s conclusion
that Pazandeh’s proposed construction improperly reads
out the claims’ requirement that each sound radiator be
mounted in a “respective” enclosure. See Elekta Instru-
ment S.A. v. O.U.R. Sci. Int’l, Inc., 214 F.3d 1302, 1307
(Fed. Cir. 2000).
     Moreover, we agree with the district court that the
claims, specification, and prosecution history employ the
phrase “respective . . . enclosure[s]” in a manner con-
sistent with the plain meaning of these words. The claims
recite first, second, and third “sound radiators” mounted
in “respective . . . enclosure[s],” and specify particular
characteristics for each enclosure that suggest they are
separate. ’265 patent col. 6, ll. 31–34; id. at col. 6, l. 66–
col. 7, l. 3. For example, as the district court correctly
pointed out, claim 1 states that only the second sound
radiator’s “respective enclosure” has a “reflective surface”
and has “a height no greater than the height of the re-
spective first and third radiator enclosures.” Id. at col. 6,
ll. 31–34. Similarly, claim 4 states that the enclosures are
“mutually spaced apart,” with “the second enclosure
positioned medially between the first and third sound
enclosures.” Id. at col. 7, ll. 1–3.
    The specification similarly describes the enclosures’
physical characteristics, reinforcing the conclusion that
each enclosure is a separate structure. For example,
when discussing Figure 1, the specification describes the
sound radiators as “preferably common loudspeakers
mounted in speaker cabinets” and states that “the enclo-
sure of the second sound radiator 20 preferably presents a
curved surface” that suppresses “the radiation of sound
8              PAZANDEH   v. YAMAHA CORPORATION OF AMERICA



that bounces . . . between the several radiator enclosures.”
Id. at col. 4, ll. 24–25; id. at col. 5, ll. 8–9, 22–23. Other
figures depict physical separation between each sound
radiator, suggesting that each sound radiator’s respective
enclosure is a separate cabinet. Id. at Figs. 2, 3, 4a, 4b.
Together, these descriptions suggest that the radiators’
enclosures are separate physical structures that have
outer surfaces exposed to the other radiators’ sound.
    Finally, the prosecution history confirms that “respec-
tive . . . enclosure[]” means a separate enclosure for each
sound radiator. “The prosecution history limits the inter-
pretation of claim terms so as to exclude any interpreta-
tion that was disclaimed during prosecution.” Southwall
Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.
Cir. 1995). During prosecution, Pazandeh amended his
claims by adding the term “respective . . . enclosure[]” to
overcome obviousness challenges, arguing that a particu-
lar reference does not disclose or suggest, among other
things, “that sound radiators mounted in respective first,
second and third mutually spaced apart sound enclo-
sures.” J.A. 208–09 (emphasis added). Following this
amendment, the Patent and Trademark Office issued a
notice of allowance, with the examiner noting that alt-
hough “[s]peaker systems with reflective surfaces or
surfaces used to shape speaker output are well known in
the art,” he could not find prior art that suggested the
claimed “combination of the second sound radiator radiat-
ing at high audio frequencies and positioned medially
between the first and third sound radiators, only the
respective enclosure of the second sound radiator having a
reflective surface [and] the first and third sound radiators
radiating at low to mid audio frequencies and tilted
generally toward each other.” J.A. 223–24.
    Finally, we owe deference to the district court’s fact-
findings, all of which are based on dictionary definitions,
(1) that the plain meaning of “enclosure” is “something
that encloses (as a barrier)”; (2) that the plain meaning of
PAZANDEH   v. YAMAHA CORPORATION OF AMERICA                9



“respective” is “separate”; and (3) that the plain meaning
of “respective enclosure” is therefore “something separate
that closes something else in.” Pazandeh, 2017 WL
6940551 at *8. Although Pazandeh argues that the
Merriam-Webster online dictionary includes other defini-
tions of “respective” that support his preferred construc-
tion, see Appellant Br. 11–12, all of the definitions found
in the webpage he offers relate to “separateness,” see id.
at 14. Therefore, the district court did not clearly err in
relying on these dictionary definitions.
    Because the district court did not err in its construc-
tion of the term “respective . . . enclosure[s],” and because
Pazandeh does not separately argue that the district court
erred in its literal infringement analysis, we affirm the
district court’s summary judgment that the accused
speakers do not literally infringe.
              B. The Doctrine of Equivalents
     Pazandeh next argues that the district court erred by
failing to consider that sound radiators housed in a single
enclosure “substantially perform the same function by the
same means to yield the same results.” Appellant Br. 13.
We disagree.
    Infringement, whether literal or under the doctrine of
equivalents, is a question of fact. Bai v. L & L Wings,
Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998). On appeal
from a grant of summary judgment of noninfringement,
we determine whether, after resolving reasonable factual
inferences in favor of the patentee, the district court
correctly concluded that no reasonable jury could find
infringement. IMS Tech., Inc. v. Haas Automation, Inc.,
206 F.3d 1422, 1429 (Fed. Cir. 2000).
    The only evidence that Pazandeh introduced regard-
ing infringement under the doctrine of equivalents came
in the form of a one-page declaration from Dr. Koval, who
opined that, “[i]n loudspeaker design, if two identical
10            PAZANDEH   v. YAMAHA CORPORATION OF AMERICA



speakers (drivers) are in two adjacent identical enclo-
sures, acoustically the system is the same as the two
drivers in a single larger cabinet with twice the volume of
one of the single cabinets.” J.A. 333 ¶ 6. As the district
court correctly found, this testimony is entirely concluso-
ry, and is therefore insufficient to demonstrate that there
is a genuine dispute of material fact as to infringement
under the doctrine of equivalents. Dynacore Holdings
Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1278 (Fed. Cir.
2004) (“It is well settled that an expert’s unsupported
conclusion on the ultimate issue of infringement is insuf-
ficient to raise a genuine issue of material fact, and that a
party may not avoid that rule simply by framing the
expert’s conclusion as an assertion that a particular
critical claim limitation is found in the accused device.”).
    Even if we were to assume that Dr. Koval’s opinion
had adequate support, it would not support a cognizable
legal theory. Although infringement under this doctrine
is a question of fact, “if a theory of equivalence would
entirely vitiate a particular claim element, partial or
complete judgment should be rendered by the court.”
Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520
U.S. 17, 39 n.8 (1997); see also Lockheed Martin Corp. v.
Space Sys./Loral, Inc., 324 F.3d 1308, 1321 (Fed. Cir.
2003) (“[I]f a court determines that a finding of infringe-
ment under the doctrine of equivalents ‘would entirely
vitiate a particular claim[ed] element,’ then the court
should rule that there is no infringement under the
doctrine of equivalents.” (citation omitted)). Pazandeh’s
theory would vitiate the “respective . . . enclosure[s]”
limitation that he added during prosecution in order to
overcome the prior art. We therefore affirm the district
court’s summary judgment that the accused speakers do
not infringe under the doctrine of equivalents.
PAZANDEH   v. YAMAHA CORPORATION OF AMERICA               11



            C. Exceptional Case Determination
     Finally, Pazandeh asks the court to reverse the dis-
trict court’s exceptional case finding and award of attor-
neys’ fees. Appellant Br. 15. He did not oppose Yamaha’s
fees motion below, does not offer any reason for reversing
the exceptionality finding in his opening brief, and does
not challenge the court’s finding that he failed to perform
an adequate pre-suit investigation. J.A. 370–72. He also
failed to properly appeal the district court’s exceptionality
determination, as his notice of appeal does not identify
the order containing this determination as one he is
appealing. See Fed. R. App. P. 3(c)(1)(B) (“The notice of
appeal must . . . designate the . . . order . . . being ap-
pealed.”). Although Rule 3(c)(1)(B)’s designation require-
ment is jurisdictional, see Gonzalez v. Thaler, 565 U.S.
134, 147 (2012), courts construe the designation require-
ment liberally. Thus, “[a] mistake in designating the
judgment appealed from is not always fatal, so long as the
intent to appeal from a specific ruling can fairly be in-
ferred by probing the notice and the other party was not
misled or prejudiced.” Sanabria v. United States, 437
U.S. 54, 67 n.21 (1978).
    On these facts, we find that Yamaha would be preju-
diced by having to defend the district court’s exceptionali-
ty determination. Pazandeh neither opposed Yamaha’s
fees motion below, nor included any argument regarding
the merits of the district court’s determination in his
opening appeal brief. Furthermore, he has not presented
any evidence suggesting that he conducted an adequate
pre-suit investigation. We therefore decline to consider
the merits of the district court’s exceptionality determina-
tion.
                       CONCLUSION
    For the foregoing reasons, we affirm the district
court’s summary judgment of noninfringement.       We
dismiss Pazandeh’s request for reversal of the district
12          PAZANDEH   v. YAMAHA CORPORATION OF AMERICA



court’s exceptionality determination under 35 U.S.C.
§ 285.
     AFFIRMED IN PART, DISMISSED IN PART
