        NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
               __________________________

    JOOVY LLC AND ALBERT T. FAIRCLOUGH,
              Plaintiffs-Appellants,

                            v.
              TARGET CORPORATION,
               Defendant-Cross Appellant.
               __________________________

                    2010-1323, -1351
               __________________________

   Appeals from the United States District Court for the
Northern District of Texas in case no. 06-CV-0616, Judge
W. Royal Furgeson.
              __________________________

                   Decided: August 5, 2011
               __________________________

    PAUL V. STORM, Storm LLP, of Dallas, Texas, argued
for plaintiffs-appellants. With him on the brief was SARAH
M. PAXSON.

    R. TREVOR CARTER, Baker & Daniels LLP, of Indian-
apolis, Indiana, argued for defendant-cross appellant.
With him on the brief were DANIEL M. LECHLEITER,
ANDREW M. MCCOY and BRANDON S. JUDKINS.
              __________________________
2                                 JOOVY LLC v. TARGET CORP.

     Before RADER, Chief Judge, LINN and PROST, Circuit
                        Judges.
LINN, Circuit Judge.

    Plaintiff-Appellant, Joovy LLC (“Joovy”), sued Defen-
dant-Appellee and Cross-Appellant, Target Corporation
(“Target”), in the United States District Court for the
Northern District of Texas alleging infringement of U.S.
Patent No. 5,622,375 (“’375 Patent”). Target moved for
judgment as a matter of law (“JMOL”) that claim 1 of the
’375 Patent is invalid and that the ’375 Patent is unen-
forceable due to inequitable conduct. The district court
denied JMOL of invalidity but granted JMOL of unen-
forceability due to inequitable conduct. Joovy LLC v.
Target Corp., No. 06-616-F, slip op. at 16 (N.D. Tex. Apr.
8, 2010). Joovy appeals and Target cross-appeals. Be-
cause the ’375 Patent is anticipated as a matter of law
under the proper claim construction of “rear wheels,” this
court reverses the district court’s denial of Target’s mo-
tion for JMOL of anticipation. Further, for the reasons
set forth below, this court vacates the district court’s
JMOL of unenforceability.

                       I. BACKGROUND

                    A. The ’375 Patent

    On April 22, 1997, the United States Patent and
Trademark Office (“PTO”) issued the ’375 Patent to Albert
Fairclough (“Fairclough”). The object of Fairclough’s
invention was “to provide a novel form of push-chair
which is capable of carrying a second child” on a “platform
provided at its lower rear.” ’375 Patent, col. 1, ll. 47-52.
Representative claim 1 covers:

    1. A push-chair for transporting a first child and
    a second child, comprising:
JOOVY LLC   v. TARGET CORP                            3

       a frame to which is attached front and rear
    wheels and a seat for the first child;

        a platform on which the second child can
    stand disposed at a lower rear position on the
    frame and including a substantially unobstructed
    trailing edge, the rear wheels being mounted adja-
    cent the trailing edge of the platform; and

        means for mounting the seat to the frame at a
    position substantially forward of the platform;

         wherein a substantially unobstructed space is
    formed above the platform and behind the seat,
    and whereby the second child can step onto and
    off the platform.

Id. at col. 5, l. 24–col. 6, l. 4 (emphases added).

                    Fig. 1 (’375 Patent)




    Fairclough hired European patent attorney, Michael
Harman (“Harman”), to file an international patent
application under the Patent Cooperation Treaty (“PCT”).
Harman associated United States patent counsel Lowe,
Price, LeBlanc & Becker (the “Lowe firm”) to file the
United States patent application preceding the ’375
4                                  JOOVY LLC v. TARGET CORP.

Patent (“’375 Application”) in the PTO. The PTO exam-
iner originally rejected the ’375 Application as anticipated
by U.S. Patent Nos. 3,061,028 (“Konar”) and 2,917,316
(“Gill”), both of which disclose a stroller with a platform
that accommodates a basket. To overcome the rejection,
Fairclough amended claim 14—issued as claim 1—to
require the platform of the stroller to have: (1) “a substan-
tially unobstructed trailing edge” with “rear wheels
mounted adjacent the trailing edge”; and (2) “a substan-
tially unobstructed space [] above the platform and be-
hind the seat.” PTO App. No. 08/307,703, Amendment,
(Nov. 22 1994). These modifications distinguished Fair-
clough’s invention from Konar and Gill by requiring the
platform of the stroller to be able to accommodate a
standing child.

    Another reference, German Patent No. G9109676.6
(“Königer”), was disclosed to the PTO as part of the PCT
International Search Report. Harman wrote to Fair-
clough that because Königer was “concerned with provid-
ing a platform for a second child to stand at the rear, [he]
though it [was] necessary to obtain a full translation, so
that [they could] see precisely what it disclose[d].” Joovy,
No. 06-616-F, Ex. 76, at 2. Harman obtained an unofficial
translation for their “own understanding.” Id. No trans-
lation of Königer was provided to the PTO, and the prose-
cution history indicates that the PTO examiner did not
consider Königer in examining the ’375 Application.

    On April 29, 1996, during the United States prosecu-
tion, Fairclough’s exclusive licensee, Baby Trend, received
a cease and desist letter from Nancy Dronyk regarding
Canadian Patent No. 2,033,896 (“Dronyk”), entitled
“Platform Attachment for a Stroller.” See fig.2.
                     Fig. 2 (Dronyk)
JOOVY LLC   v. TARGET CORP                          5
Baby Trend brought the letter to Fairclough’s attention,
and Fairclough obtained a copy of Dronyk. Fairclough
subsequently provided a letter to Baby Trend stating that
his invention “does not infringe in any way on [Dronyk]”
because, inter alia, it “pertains to a small trailer to be
hooked on to the rear axle of existing strollers and is
towed . . . .” Joovy, No. 06-616-F, Ex. 869. Fairclough
further told Baby Trend: “To the best of my knowledge, to
date there appears no prior art that may prevent the
grant of patent on my invention.” Id. It is disputed
whether Fairclough gave Harman a copy of Dronyk;
however, Harman was certainly aware of Dronyk because,
on June 5, 1996, he wrote in a letter to Fairclough: “I
assume that we have had no reply from Dronyk to your
letter of the 11th May. The ball is in her court, and I
don’t think we need to do anything more unless she comes
back to us.” Id., Ex. 30. Neither Fairclough nor Harman
disclosed Dronyk to the Lowe Firm or to the PTO during
the ’375 Patent prosecution.

                   B. Procedural History

    On April 6, 2006, Joovy sued both Baby Trend and
Target in the United States District Court for the North-
ern District of Texas, alleging that Baby Trend infringed
the ’375 Patent by selling Sit-N-Stand® strollers to Tar-
get—which in turn sold them to customers—after Fair-
clough discontinued Baby Trend’s license in August 2004.
On October 9, 2009, Baby Trend filed a Voluntary Chap-
ter 11 Petition in the United States Bankruptcy Court for
the Central District of California. In Re: Baby Trend,
Inc., No. 09-34090-BB, 2010 WL 4689566 (Bankr. C.D.
Cal. Feb. 25, 2010). On November 17, 2009, the district
court severed Baby Trend from the action below into a
separate action, Joovy LLC v. Baby Trend Inc., No. 09-
2012-F (N.D. Tex. filed Oct. 22, 2009), which is stayed
pending the resolution of the bankruptcy proceedings.
6                                  JOOVY LLC v. TARGET CORP.

    At the district court, Target acknowledged that it in-
fringed claim 1 of the ’375 Patent, but rather defended on
the grounds of invalidity and unenforceability due to
inequitable conduct. Following trial on those issues, the
jury returned a verdict that claim 1 of the ’375 Patent was
neither anticipated nor obvious, but rendered an advisory
verdict that the ’375 Patent was acquired through inequi-
table conduct. Target filed a post-verdict motion for
JMOL that claim 1 is invalid as anticipated and as obvi-
ous and that the ’375 Patent is unenforceable due to
inequitable conduct. On April 8, 2010, the district court
denied Target’s motion for JMOL of anticipation and
obviousness, but granted Target’s motion for JMOL of
inequitable conduct. Joovy appeals and Target cross-
appeals. This court has jurisdiction over both appeals
pursuant to 28 U.S.C. § 1295(a)(1).

                      II. DISCUSSION

                       A. Invalidity

                  1. Standard of Review

      This court reviews the denial of a motion for JMOL
under the law of the regional circuit. Orion IP, LLC v.
Hyundai Motor Am., 605 F.3d 967, 973 (Fed. Cir. 2010).
“The Fifth Circuit reviews a denial of JMOL de novo” and
determines “whether the facts and inferences point so
strongly and overwhelmingly in favor of one party that
. . . reasonable jurors could not arrive at a contrary ver-
dict.” Id. (internal citation omitted). “In our review of the
denial of JMOL, we are mindful of the fact that anticipa-
tion is a question of fact that we review for substantial
evidence.” Id. at 974. Claim construction is a question of
law that this court reviews de novo. Cybor Corp. v. FAS
Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc).
JOOVY LLC   v. TARGET CORP                            7

         2. Claim Construction of “Rear Wheels”

    Target contends that the district court erred in con-
struing “rear wheels” in claim 1 to mean “rear wheels of
the push-chair.” Target argues that the context of the
other limitations in claim 1 imposes two criteria on “rear
wheels”: they must be “(1) ‘attached’ to the ‘frame’ of the
stroller and (2) ‘mounted adjacent the trailing edge of the
platform.’” Cross-Appellant Br. 50. According to Target,
“just as in [Phillips v. AWH Corp., 415 F.3d 1303 (Fed.
Cir. 2005)], the intrinsic evidence does not support a
‘restrictive definition’ of ‘rear wheels’ that includes the
modifier ‘of the push-chair,’ and the ordinary meaning of
the term—‘rear wheels’ means ‘rear wheels’—must govern
here, limited only by the [] criteria imposed by Claim 1.”
Id. at 53.

      Joovy counters that it is clear from the claim language
that “rear wheels” means “rear wheels of the push-chair.”
According to Joovy, “[b]ecause the ‘push-chair [of claim 1]
. . . comprise[s] . . . rear wheels,’ those wheels are neces-
sarily the ‘rear wheels of the push-chair’” and not the rear
wheels on any attached platform. Appellant Resp. &
Reply Br. 22. Joovy also contends that “[a]ll of the refer-
ences to ‘rear wheels’ throughout the specification clearly
denote that the referenced ‘rear wheels’ are the ‘rear
wheels’ of the push-chair.” Id. at 23. Finally, relying on
Rexnord Corp. v. Laitram Corp., Joovy contends that this
court must construe “rear wheels” in claim 1 consistently
with its meaning in dependent Claim 6. 274 F.3d 1336,
1342 (Fed. Cir. 2001) (“[A] claim term should be construed
consistently with its appearance in other places in the
same claim or in other claims of the same patent.”). Joovy
argues that Claim 6 requires the rear wheels to be a part
of the push-chair.

    This court disagrees with Joovy’s argument, which is
contradicted by the words of the claim itself. Claim 1
8                                  JOOVY LLC v. TARGET CORP.

recites, inter alia, (1) “a frame to which is attached front
and rear wheels,” and (2) “a platform . . . , the rear wheels
being mounted adjacent the trailing edge of the platform.”
’375 Patent, col. 5, l. 24-col. 6, l. 2. The limitations in
claim 1 require the rear wheels to be attached to the
frame of the push-chair by means of a platform at a
“lower rear position on the frame.” Id. col. 5, l. 29. Simi-
larly, the specification indicates that the rear wheels are
mounted near the frame, id. col. 2, l. 49, at the trailing
edge of the platform, id. col. 1, ll. 51-52. Thus, the claim
language and specification indicate that the rear wheels
of claim 1 must be attached to the frame of the push-chair
via the platform of the push-chair, with no suggestion
that the rear wheels must be part of the push-chair as
distinct from the platform. Nothing recited in dependent
Claim 6, which calls for the rear wheels to accommodate
“a lever operated braking mechanism” that is “located
forward of axles of the rear wheels” and “coupled” to the
push-chair via a “coupling rod,” changes that conclusion.
Id. col. 6, ll. 23-27. The objective of Claim 6—attaching a
braking mechanism from the push-chair to the rear
wheels—“should not be read restrictively to require that
the [rear wheels] in each case serve all of the recited
functions.” Phillips, 415 F.3d at 1327. The term “rear
wheels” may be construed consistently in both Claims 1
and 6 to mean “rear wheels,” limited only by the specific
attachment and mounting requirements found in the
claims themselves. This construction squarely comports
with the general requirement that claim terms be con-
strued consistently throughout a patent. See Rexnord,
274 F.3d at 1342.

    Accordingly, this court holds that the district court
erred in importing the modifier “of the push-chair” into
the definition of the term “rear wheels” in claim 1.
JOOVY LLC   v. TARGET CORP                            9

                        3. Anticipation

    Target contends that, under the proper claim con-
struction, Dronyk discloses each and every element of
claim 1: “(1) rear wheels that are (2) ‘attached’ to the
‘frame’ of the stroller and (3) ‘mounted adjacent the
trailing edge of the platform.’” Cross-Appellant Br. 56.
Joovy counters that, under the district court’s claim
construction, the jury considered the evidence and “de-
termined that it did not believe that the castor wheel 40
of the platform attachment in Dronyk magically becomes
a rear wheel of the stroller/push-chair just because the
platform is attached to the back of the stroller.” Appel-
lant Resp. & Reply Br. 30. Joovy does not argue whether
a reasonable juror could reach this same conclusion if
instructed that “rear wheels” meant “rear wheels.”

    This court holds that under the proper claim construc-
tion of “rear wheels,” Dronyk unquestionably discloses
each and every element of claim 1 and, thus, anticipates
the claims under 35 U.S.C. § 102(b) as a matter of law.
Dronyk discloses a stroller with “rear wheels 26 []
mounted on a common transverse axle 30” and “a castor
wheel 40 mounted on the platform, towards the back.”
Dronyk at 6, ll. 17-18; 7, l. 9; see fig.2. Dronyk further
discloses that, “where desired, additional castors may be
installed for stability purposes.” Id. at 7, ll. 24-25. When
the term “rearwheels” is not limited to “rear wheels of the
push-chair,” there can be no dispute that the castor
wheels disclosed in Dronyk meet the disputed limitation
in claim 1: They are (1) “wheels” at the “rear,” i.e., “rear
wheels”; (2) they are “attached to the frame” via the
platform; and (3) they are “mounted adjacent the trailing
edge of the platform.”

    This court therefore reverses the district court’s de-
nial of Target’s motion for JMOL on the issue of anticipa-
tion and holds as a matter of law that claim 1 of the ’375
10                                 JOOVY LLC v. TARGET CORP.

Patent is invalid as anticipated. In light of this holding,
we need not address Target’s contention that claim 1 of
the ’375 patent is obvious.

                  B. Inequitable Conduct

    Because the district court held that the ’375 Patent
was unenforceable due to inequitable conduct prior to this
court’s decision in Therasense, Inc. v. Becton, Dickinson, &
Co., ___ F.3d ___, 2011 WL 2028255 (Fed. Cir. May 25,
2011) (en banc), and because Target explicitly waived
remand to the district court to decide the issue of inequi-
table conduct in the event that this court holds, as we now
have, that claim 1 of the ’375 Patent is invalid, oral arg.
at 17:15-19:43, available at http://www.cafc.uscourts.gov/
oral-argument-recordings/all/joovy.html, this court va-
cates the district court’s JMOL of unenforceability.

                      III. CONCLUSION

     For the foregoing reasons, this court reverses the dis-
trict court’s denial of Target’s motion for JMOL on the
issue of anticipation of claim 1 of the ’375 Patent and
vacates the district court’s JMOL that the ’375 Patent is
unenforceable due to inequitable conduct.

     REVERSED-IN-PART AND VACATED-IN-PART

                           COSTS

     Each party shall bear its own costs.
