       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

JOHN MEZZALINGUA ASSOCIATES, INC. (DOING
         BUSINESS AS PPC, INC.),
               Appellant,

                           v.
     INTERNATIONAL TRADE COMMISSION,
                 Appellee.
              __________________________

                      2010-1373
              __________________________

   On appeal from the United States International Trade
Commission in Investigation No. 337-TA-650.
             __________________________

                Decided: April 28, 2011
              __________________________

   RICHARD L. STROUP, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, of Washington, DC, argued for
appellant. With him on the brief were DON O. BURLEY
and TROY E. GRABOW. Of counsel on the brief were JAMES
R. MULDOON and DENIS J. SULLIVAN, Marjama Muldoon
Blasiak & Sullivan LLP, of Syracuse, New York.
JOHN MEZZALINGUA ASSOCIATES   v. ITC                      2


    DANIEL E. VALENCIA, Attorney, Office of the General
Counsel, United States International Trade Commission,
of Washington, DC, argued for appellee. With him on the
brief were JAMES M. LYONS, General Counsel and
MICHELLE W. KLANCNIK, Assistant General Counsel.
              __________________________

     Before BRYSON, DYK, and PROST, Circuit Judges.
PROST, Circuit Judge.

    This patent appeal comes to us from the International
Trade Commission (“ITC”). John Mezzalingua Associates,
Inc. (d/b/a PPC, Inc.) (“PPC”) contends that the ITC erred
in holding that PPC failed to satisfy the technical prong of
the domestic industry requirement of § 337. Tariff Act of
1930 § 337(a)(2), 19 U.S.C. § 1337(a)(2) (2006). PPC
argues that the ITC misconstrued the term “engagement
means” in the patent-in-suit, and that this error led it to
the wrong outcome on domestic industry. We agree, and
so reverse and remand.

                        I. Background

    This appeal concerns U.S. Patent No. 5,470,257 (“’257
patent”) entitled “Radial Compression Type Coaxial Cable
End Connector.” The described invention is a connector
for attaching a coaxial cable to a threaded peg on a
television, cable box, or other equipment:
3                      JOHN MEZZALINGUA ASSOCIATES   v. ITC




Id. at fig.1. A technician who uses the invention partially
strips a coaxial cable 12 and places it into locking member
26. Then, he squeezes the locking member 26 so that it
slides into the connector body 22. This puts the device
into a “closed” or “clamped” position in which the coaxial
cable is securely held. Id. at col.4 l.32–col.5 l.10.

    This case concerns claim 1, which reads:

       1. An end connector for connecting a
       coaxial cable to a system component, said
       end connector comprising:

           a connector body comprising a tubular
       inner post extending from a front end to a
       rear end, and including an outer collar
       surrounding and fixed relative to said
       inner post at a location disposed
       rearwardly of said front end, said outer
       collar cooperating in a radially spaced
       relationship with said inner post to define
       an annular chamber with a rear opening;

           fastener means at the front end of
       said inner post for attaching said end
       connector to said system component;
JOHN MEZZALINGUA ASSOCIATES   v. ITC                      4


           a tubular locking member protruding
       axially into said annular chamber through
       said rear opening; and

            engagement means circumscribing the
       interior of said outer collar and the
       exterior of said locking member, said
       engagement means coacting in circular
       interengagement to inseparably couple
       said locking member to said connector
       body at a first position and to
       accommodate limited axial movement of
       said locking member relative to said
       connector body between said first position
       and a second position, said locking
       member coacting in a first radially spaced
       relationship with said inner post when in
       said first position to accommodate
       insertion of the rear end of said inner post
       into an end of said cable, with a central
       core portion of said cable being received in
       said inner post through said rear end and
       an outer annular portion of said cable
       being received in said annular chamber
       through said rear opening and between
       said locking member and said inner post,
       and said locking member coacting in a
       second radially spaced relationship with
       said inner post when in said second
       position to grip the outer annular portion
       of said cable therebetween.

Id. col.5 l.58–col.6 l.23. The issue before us is the proper
construction of the term “engagement means,” which
appears at the start of the final paragraph above.
5                       JOHN MEZZALINGUA ASSOCIATES    v. ITC


    In April 2008, PPC asserted the ’257 patent, among
others, in an ITC complaint against eight respondents,
none of whom are part of this appeal and four of whom
ultimately defaulted. 1        The ITC instituted an
investigation, Certain Coaxial Cable Connectors and
Components Thereof and Products Containing Same, Inv.
No. 337-TA-650 (hereinafter “Certain Coaxial Cable
Connectors”). Institution of Investigation, 73 Fed. Reg.
31,145 (May 30, 2008). Following an evidentiary hearing,
Administrative Law Judge (“ALJ”) Gildea found that the
defaulting respondents had violated § 337. The ALJ
concluded that a domestic industry existed in the ’257
patent and specifically held that PPC’s “CMP” connector
practiced all elements of claim 1. Initial Determination
on Violation, Certain Coaxial Cable Connectors, slip op. at
105–08, 2009 WL 3694421 (USITC Oct. 13, 2009)
(hereinafter “Init. Determ.”).

    Upon reviewing the Initial Determination, the ITC
adopted a different construction of claim 1’s “engagement
means” limitation than ALJ Gildea. Comm’n Op., Certain
Coaxial Cable Connectors, slip op. at 32 (USITC Mar. 31,
2010) (hereinafter “Comm’n Op.”); see also Comm’n Op.
(Public Version), 2010 ITC LEXIS 570 (USITC Apr. 14,
2010). Based on this new construction, the ITC concluded
that PPC’s CMP connector did not practice the
“engagement means” limitation of claim 1, and so
concluded that PPC had not satisfied the technical prong
of § 337’s domestic industry requirement as to the ’257
patent. Comm’n Op. at 40–41; see also Tariff Act of 1930,
§ 337(a)(2), 19 U.S.C. § 1337(a)(2) (2006). It therefore


    1   It is the potential § 337 violation by these four de-
faulting respondents that gives rise to the present appeal.
PPC does not seek a finding of violation by any of the
other respondents. Appellant’s Br. 7–8.
JOHN MEZZALINGUA ASSOCIATES   v. ITC                     6


concluded that no violation had occurred as to the ’257
patent.

   PPC timely appealed. 2 We have jurisdiction under 28
U.S.C. § 1295(a)(6).

                      II. Discussion

                 A. Standard of Review

    This court reviews the ITC’s claim construction
determinations de novo. Checkpoint Sys., Inc. v. Int’l
Trade Comm’n, 54 F.3d 756, 760 (Fed. Cir. 1995). The
determination of whether a device practices a patent
claim (properly construed) is one of fact, reviewed under
the substantial evidence standard. Oak Tech., Inc. v. Int’l
Trade Comm’n, 248 F.3d 1316, 1325 (Fed. Cir. 2001).

                 B. Claim Construction

    Section 112, paragraph 6 of the Patent Act provides
for the use of “means-plus-function” limitations in patent
claiming. 35 U.S.C. § 112, ¶ 6; see also Lockheed Martin
Corp. v Space Sys./Loral, Inc., 324 F.3d 1308, 1318 (Fed.
Cir. 2003).     When construing a means-plus-function
limitation, the claim “shall be construed to cover the
corresponding structure, material, or acts described in the
specification and equivalents thereof.” 35 U.S.C. § 112, ¶
6.


   2    The other patents raised before the ITC are not
part of this appeal. It is proper for a party to timely
appeal a final decision of the ITC on a subset of asserted
patents; there is no need to wait for final resolution
concerning the other patents. Allied Corp. v. Int’l Trade
Comm’n, 782 F.2d 982, 983–84 (Fed. Cir. 1986).
7                      JOHN MEZZALINGUA ASSOCIATES   v. ITC


   The parties agree that the term “engagement means,”
as used in claim 1, is a means-plus-function limitation.
They further agree that the function of this “engagement
means” tracks the language of claim 1, and is as follows:

       to inseparably couple said locking member
       to said connector body at a first position
       and to accommodate limited axial
       movement of said locking member relative
       to said connector body between said first
       position and a second position . . . .

’257 patent col.6 ll.7–11.         We agree with this
straightforward identification of the claimed means and
function in the claim text. We now must interpret them
“in light of the corresponding structure” from the patent.
In re Donaldson Co., Inc., 16 F.3d 1189, 1193 (Fed. Cir.
1994) (en banc).

    The parties’ dispute turns on the precise reach of the
structure corresponding to the “engagement means.” The
ITC held that the corresponding structure was as follows:

       [A] first and second axially spaced,
       radially protruding, circular shoulders 50a
       and 50b circumscribing the exterior of the
       locking member 26, each shoulder being
       configured and dimensioned to coact in
       circular interengagement with an internal
       groove circumscribing the interior of the
       outer collar 30, and where the first
       radially protruding circular shoulder has a
       generally perpendicular rear face and an
       inclined ramp-like front face.
JOHN MEZZALINGUA ASSOCIATES   v. ITC                     8


Comm’n Op. at 32 (emphasis added). PPC argues that
the ITC erred in holding that “second shoulder 50b” is
part of the structure for the “engagement means”
limitation. 3 The parties make several arguments, all of
which derive from the patent.

    In defense of its construction, the ITC points out that
one function of the “engagement means” is “to
accommodate limited axial movement of said locking
member relative to said connector body between said first
position and a second position.” Appellee’s Br. 29 (citing
’257 patent col.6 ll.4–23). The ITC makes two arguments
from this recitation of function. First, the ITC argues
that the engagement means must “accommodate limited
axial movement between the first and second positions.”
Id. at 35 (emphasis added). It points to the specification
to argue that the “first” position is when the claimed
connector is “open” and the “second” position is when it is
“clamped.” Id. It notes that “shoulder 50b is integral to
the claimed engagement means because it defines the
claimed second position in conjunction with groove 52.”
Id. at 37. If there were no second shoulder, argues the
ITC, “there would be no second position and the locking
member 26 could move forward beyond any potential
second position.” Id.

    PPC disagrees, and so do we.         Comparing an
embodiment in which shoulder 50b is present (as the ITC
would require) to one in which it is not shows why. In
both embodiments, shoulder 50a will prevent the locking
member from falling backwards out of the connector body.
That much is not in dispute. But, the ITC points out, in

       3   The ITC held that PPC’s proffered domestic
industry product lacks a structure corresponding to the
“second shoulder 50b,” or any equivalent. Comm’n Op. at
39–41.
9                      JOHN MEZZALINGUA ASSOCIATES   v. ITC


the two-shoulder embodiment shoulder 50b defines the
“second” position and prevents the locking member from
moving too far forward. We view the single-shoulder
embodiment as not relevantly different.           In that
embodiment, even though shoulder 50b is not present, the
locking member will not be able to move forward beyond
the second, “closed” position because as the locking
member moves forward into the connector body, it will
eventually contact the interior annular face of the outer
collar. The two-shoulder embodiment would tend to
minimize such contact, but we do not view minimization
of contact between these faces as a necessary aspect of
either the claimed invention generally or the “engagement
means” specifically.        In short, shoulder 50a
“accommodates” forward movement between the first and
second positions; shoulder 50b does not perform that
function.

    Second, the ITC notes that the specification,
describing the preferred embodiment, cites both shoulder
50a and second shoulder 50b as part of the “engagement
means.” Id. at 35 (discussing ’257 patent col.4 ll.11–22).
Citing NOMOS Corp. v. BrainLAB USA, Inc., 357 F.3d
1364, 1368 (Fed. Cir. 2004), the ITC argues that because
the sole disclosed embodiment includes a second shoulder
50b as part of the “engagement means,” it is appropriate
to require second shoulder 50b as essential structure for
the “engagement means” limitation. Id. at 39.

    PPC again takes a different view. It argues that the
“engagement means” limitation should be construed to
include only what is necessary to perform the function,
and not import structures that, though present in the
preferred embodiment, are not actually necessary. See
Wenger Mfg., Inc. v. Coating Mach. Sys., Inc., 239 F.3d
1225, 1233 (Fed. Cir. 2001).
JOHN MEZZALINGUA ASSOCIATES   v. ITC                     10


    Once again we agree with PPC. While the ITC is
correct that second shoulder 50b is part of the preferred
embodiment of the ’257 patent, we do not view it as
“necessary” to the function of the “engagement means” for
the reasons set forth above. Claim interpretation under
§ 112, ¶ 6 does not “permit incorporation of structure from
the written description beyond that necessary to perform
the claimed function.” Micro Chem., Inc. v. Great Plains
Chem Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999).

    Finally, the ITC argues that the dependent claims of
the ’257 patent require that the claimed connector, once it
is “closed,” should not easily reopen. Appellee’s Br. 48
(discussing, inter alia, dependent claim 4); see also, e.g.,
’257 patent col.6 ll.33–35 (“4. The end connector of claim 3
wherein said engagement means additionally coacts to fix
said locking member at said second position.”). PPC notes
that the word “additionally coacts” in claims 2–4 was
added during prosecution, and argues that such addition
would not have been necessary if fixing the connector in
position was a necessary aspect of the engagement means.

     We agree again with PPC. We see no reason in this
case why any dependent claim should require narrower
reading of the independent parent. That the patentee
used dependent claims to address a feature of
“fixing”/“locking”/“snap engag[ing]” (as in claims 2–4 and
10) the claimed connector in position does not mean his
independent claims must be limited to structures
embodying this feature. In our view, the independent
claim, properly interpreted, encompasses both connectors
that have features to keep the connector in the “closed”
second position and those that do not.

    Based on the above, we hold that the ITC erred in
determining the structure corresponding to the claimed
11                       JOHN MEZZALINGUA ASSOCIATES    v. ITC


“engagement means.” We further hold that ALJ Gildea
correctly construed this term. Init. Determ., slip op. at
105–08.     The required structure for the claimed
“engagement means,” consistent with ALJ Gildea’s Initial
Determination, is as follows:

        A first radially protruding circular
        shoulder (50a) having a generally
        perpendicular rear face and an inclined
        ramp-like front face circumscribes the
        exterior of the locking member (26) and
        coacts in circular engagement with an
        internal groove (52) circumscribing the
        interior of the outer collar (30).

Init. Determ., slip op. at 37-38.

                    C. Violation of § 337

     Having construed the “engagement means” term, we
turn to resolution of the present appeal. The ITC held
that the sole obstacle to finding violation of § 337 as to the
defaulting respondents was the ITC’s conclusion that PPC
had not satisfied the technical prong of § 337’s domestic
industry requirement. Comm’n Op. at 40–41. That
conclusion was based on the ITC’s erroneous construction
of “engagement means,” which we have reversed.

    Neither PPC nor the ITC disputes that, having
construed the “engagement means” in the same manner
as ALJ Gildea, we have removed the final bar to finding
violation of § 337 as to the defaulting respondents. We
therefore enter judgment of violation as to those
JOHN MEZZALINGUA ASSOCIATES       v. ITC                     12


respondents and remand              for    further   proceedings
consistent with this opinion. 4

            REVERSED AND REMANDED




    4   We decline PPC’s invitation to go further and to
direct entry of a General Exclusion Order against the
defaulting respondents. See Appellant’s Br. 56–57. Such
a step would be premature, at least because the ITC has
not made findings on the proper remedy and bonding.
