                NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                  is not citable as precedent. It is a public record.


   United States Court of Appeals for the Federal Circuit

                                   05-1269, -1270

             JON E. KINZENBAW and KINZE MANUFACTURING, INC.,

                                                    Plaintiff/Counterclaim Defendants-
                                                    Appellants,

                                        and

                     JAMES J. HILL and EMRICH & DITHMAR,

                                                    Counterclaim Defendants,

                                         v.

               CASE LLC (formerly known as Case Corporation,
  now known as CNH America LLC) and NEW HOLLAND NORTH AMERICA, INC.
                    (now known as CNH America LLC),

                                                    Defendants / Counterclaimants-
                                                    Cross Appellants.



                          __________________________

                          DECIDED: April 26, 2006
                          __________________________


Before SCHALL, BRYSON, and DYK, Circuit Judges.

SCHALL, Circuit Judge.

                                     DECISION

      Jon E. Kinzenbaw and Kinze Manufacturing, Inc. (collectively “Kinze”) appeal the

judgment of the United States District Court for the Northern District of Iowa in
Kinzenbaw v. Case, LLC, No. 01-CV-133, slip. op. (N.D. Iowa Feb. 4, 2005). Following

a jury trial, the district court entered judgment of non-infringement in favor of Case, LLC

and New Holland North America, Inc. (collectively “Case”) on Kinze’s claim that Case

infringed claims 1, 2, 3, 9, and 22 of U.S. Patent No. 4,721,168 (the “‘168 patent”). For

its part, Case cross-appeals the district court’s denial of its motion for judgment as a

matter of law (“JMOL”) that claims 1 and 22 of the ‘168 patent, the only independent

claims of the patent, are indefinite. We affirm.

                                       DISCUSSION

                                              I.

       The ‘168 patent relates to a large agricultural planter. ‘168 patent, col. 1, ll. 7-10.

When in use, it is pulled behind a tractor. To switch the planter from its use to its

transport position, the patent describes the lifting and rotating of the entire lift frame 90

degrees so that the width of the implement is diminished, thereby facilitating transport.

       Independent claims 1 and 22 of the ‘168 patent read as follows:

              1. An agricultural implement adapted to be pulled by a
              tractor with a hitch and convertible between a use position
              and a transport position without unhitching from the tractor
              hitch, comprising: a carrier frame including a plurality of
              ground support wheels; draft tongue means connecting said
              carrier frame to the tractor hitch for permitting pivotal
              movement between said tractor and said implement about a
              first vertical hitch axis; lift frame means including a lift frame
              and plurality of work units spaced along said lift frame, said
              lift frame including at least an integral center frame section
              extending to either side of the centerline of the implement in
              the use position; mounting means for mounting said lift
              frame such that said center frame section thereof is rotatable
              about a second vertical axis of rotation; powered lift linkage
              means connecting said lift frame to said carrier frame for
              lifting said lift frame and said work units above said carrier
              frame to a raised position wherein all of said units are
              elevated above said support wheels; and power swing



05-1269, -1270                                2
              means for rotating said lift frame in said raised position about
              said second vertical axis between said use position and said
              transport position in which said lift frame is elongated in the
              direction of travel; and characterized in that the said second
              vertical axis of rotation is located such that the weight of said
              lift frame means is substantially uniformly distributed to
              either side thereof in the direction of elongation of said lift
              frame means.

              22. An agricultural implement adapted to be pulled by a
              tractor with a hitch and convertible between a use position
              and a transport position without unhitching from the tractor,
              comprising: a carrier frame including a plurality of ground
              support wheels; draft tongue means connected to said
              carrier frame for connecting said carrier frame to the tractor
              hitch for permitting pivotal movement between said tractor
              and said implement about a hitch axis; lift frame means
              including a laterally elongated integral lift frame and plurality
              of ground-engaging work units spaced along said lift frame,
              said lift frame being extended in a direction transverse of the
              direction of travel of said tractor when said lift frame is in the
              use position; powered lift linkage means connecting said lift
              frame to said carrier frame for selectively lifting said lift frame
              and said work units to a first raised position wherein said
              work units are above the ground to permit said implement to
              turn and to a second raised position above said first raised
              position, wherein all of said work units are above said carrier
              frame and above said ground support wheels in said second
              raised position; and power swing means for rotating said lift
              frame in said second raised position about a vertical axis
              between said use position and said transport position in
              which said lift frame is elongated in the direction of travel
              and characterized in that said vertical axis of rotation of said
              lift frame is substantially on the center line of said implement
              and proximate the mid-point of said lift frame in its direction
              of elongation and is located forwardly of at least two of said
              ground support wheels of said carrier frame.

‘168 patent, col. 18, l. 45-col. 19, l. 4; col. 21, l. 41-col. 22, l. 21 (emphasis added).

       Case manufactures and sells large agricultural planters. As indicated above,

Kinze sued Case for infringement of claims 1, 2, 3, 9, and 22 of the ‘168 patent. In its

answer, Case counterclaimed for a declaratory judgment of noninfringement and




05-1269, -1270                                 3
invalidity on the ground of indefiniteness with respect to all five claims. After the district

court construed the pertinent limitations of the claims at issue, see Kinzebaw v. Case,

LLC, 318 F. Supp. 2d 778 (N.D. Iowa 2005) (“Claim Construction Order”), the case

proceeded to trial before a jury.      After deliberating, the jury returned a verdict of

noninfringement with respect to all five claims. However, the jury did not find the claims

indefinite. In due course, the district court denied the parties’ respective motions for

JMOL and proceeded to enter judgment in favor of Case on Kinze’s infringement claims

and in favor of Kinze on Case’s invalidity claim. Kinze’s appeal and Case’s cross-

appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a).

                                             II.

       We consider Kinze’s appeal first. On appeal, Kinze argues that the district court

erred in construing three limitations of claim 1 of the ‘168 patent. According to Kinze,

the district court’s erroneous claim construction and eventual instructions to the jury

amounted to harmful error, resulting in the jury’s verdict of noninfringement with respect

to the five asserted claims of the patent.1 We note that Kinze does not challenge the

jury’s verdict under the district court’s claim construction. Thus, claim construction is

the only issue before us on the direct appeal.




       1
               Kinze challenges the jury’s verdict of noninfringement of claim 9 alleging
that the district court erred by construing the claim to be in means-plus-function form.
Case responds that the construction of claim 9 was not at issue in the Markman hearing
and that Kinze made no objection to the jury instruction regarding this claim at trial. In
its reply brief, Kinze was unable to point to anything in the record to dispute Case’s
contentions. Accordingly, we find that Kinze failed to preserve for appeal this challenge
to the construction of claim 9.


05-1269, -1270                                4
         The three limitations of claim 1 that are the focus of Kinze’s appeal are the “draft

tongue means” limitation, the “power lift linkage means” limitation, and the “power swing

means” limitation. Pursuant to 35 U.S.C. § 112 ¶ 6,

               [a]n element in a claim for a combination may be expressed
               as a means or step for performing a specified function
               without the recital of structure, material or acts in support
               thereof, and such claim shall be construed to cover the
               corresponding structure, material or acts described in the
               specification and equivalents thereof.

         We have stated that “[once] the court has concluded the claim limitation is a

means-plus-function limitation, the court must identify the function of the limitation.”

Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1375 (Fed. Cir. 2003) (citing Micro

Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999)). Next,

the court “ascertains the corresponding structure in the written description that is

necessary to perform that function.”        Id. (citing Micro Chem., 194 F.3d at 1258)

(emphasis added); accord Omega Eng’g. Inc. v. Raytek Corp., 334 F.3d 1314, 1321

(Fed. Cir. 2003) (“[T]he structure must be necessary to perform the claimed function.”).

Lastly, “[s]tructure disclosed in the specification is ‘corresponding’ structure only if the

specification or prosecution history clearly links or associates that structure to the

function recited in the claim.” Altiris, 318 F.3d at 1375 (quoting B. Braun Med. v. Abbott

Labs., 124 F.3d 1419 (Fed. Cir. 1997)). We turn now to the three claim limitations at

issue.

A.       draft tongue means

         Claim 1 of the ‘168 patent provides: “draft tongue means connecting said carrier

frame to the tractor hitch for permitting pivotal movement between said tractor and said

implement about a first vertical hitch axis . . . .” ‘168 patent, col. 18, ll. 49-53 (emphasis


05-1269, -1270                                5
added). The district court held that “the functional language associated with the term

‘means’ in this clause is connecting the carrier frame to the tractor hitch and permitting

pivotal movement between the tractor and the implement about a first vertical hitch

axis.” Claim Construction Order, 318 F. Supp. 2d at 789 (emphasis added). The court

then determined that “the structures disclosed in the specification which are necessary

to perform the connecting function are the telescoping hitch 15, the clevis 16 and the

bifurcated rear section of the telescoping hitch 17.” Id. at 791 (emphasis added). Next,

the court identified the telescoping hitch 15 and the clevis 16, but not the bifurcated rear

section of the telescoping hitch 17, as structures necessary to perform the pivoting

function. Id. The magnified portion of Figure 1 below provides a helpful illustration of

the structure at issue.




‘168 patent, Fig. 1.

       Kinze argues that “connecting said carrier frame to the tractor hitch” is a

structural limitation, not a functional limitation. Kinze contends that “the connecting

phrase merely provides a structural orientation for the structure that corresponds to the


05-1269, -1270                               6
means for permitting pivotal movement.” Appellant Br. at 33. We agree. The only

function in the claim for 112 ¶ 6 purposes is “permitting pivotal movement between said

tractor and said implement.”2

      Case contends that even if “connecting” is not a function, the court’s claim

construction error is harmless because the bifurcated rear section of the telescoping

hitch 17 is necessary to carry out the function of “permitting pivotal movement between

said tractor and said implement.” Case explains that without the connection created by

the bifurcated rear section, the carrier frame would not be coupled to the tractor hitch,

thus preventing such relative pivotal movement. In other words, Case argues that, even

if the district court did err by construing the function of the draft tongue means as

including both connecting and pivoting, the error was harmless because, contrary to the

court’s construction, the bifurcated rear section of the telescoping hitch 17 is structure

necessary for performing the pivoting function.      Consequently, as the district court

charged the jury, the bifurcated rear section of the telescoping hitch 17, along with the

hitch 15 and the clevis 16, are structure necessary for performing the function

associated with the draft tongue means limitation. See Claim Construction Order, 318

F. Supp. 2d at 791. Having considered Kinze’s arguments to the contrary, we agree

with Case. We therefore find no error in the district court’s charge to the jury with

respect to the draft tongue means limitation of claim 1.




      2
               In other words, the claim limitation could be reorganized as follows while
keeping the same meaning: draft tongue means, that connects said carrier frame to the
tractor hitch, for permitting pivotal movement between said tractor and said implement
about a first vertical hitch axis.


05-1269, -1270                              7
B.     power lift linkage means

       Claim 1 of the ‘168 patent further provides: “powered lift linkage means

connecting said lift frame to said carrier frame for lifting said lift frame and said work

units above said carrier frame to a raised position wherein all of said units are elevated

above said support wheels . . . .” ‘168 patent, col. 18, ll. 59-64 (emphasis added). As in

the case of the draft tongue means limitation, the district court construed this limitation

to have two functions: connecting the lift frame to the carrier frame and lifting the lift

frame and work units. Claim Construction Order, 318 F. Supp. 2d at 795. For the same

reason that the district court erred in construing “connecting said carrier frame to the

tractor hitch” to be a function of the draft tongue means, the court erred in construing

“connecting the lift frame to the carrier frame” to be a function of the powered lift linkage

means. Again, however, the error was harmless. The reason is that the structure

determined by the district court to be necessary for performance of the erroneous

“connecting” function was also determined to be necessary for performance of the lifting

function. The structure the district court found necessary for performing both functions

included the forward bracket on the bell housing 147, the center struts 109 of the arched

rear mounting bar of the lift frame, and the horizontal mounting section 111 of the

arched rear mounting bar. Id. at 796.

       It is not disputed that the “powered lift linkage means” limitation is in means-plus-

function form and that lifting is a function. Kinze contends that the district court erred

when it found the structure corresponding to the lifting function to include items 109,

111, and 147. See id. Figures 11, 12, and 13 are reproduced below and depict the

structures at issue. Figure 11 is a side view of the lift linkage in the use position, Figure



05-1269, -1270                               8
12 is a similar side view with the lift frame in the raised position, while Figure 13 is a

fragmentary top view of the main lift mechanism shown in Figure 12.




‘168 patent, Figs. 11-13. Kinze asserts that the only structures necessary to perform

the lifting function are the four bars of the linkage, consisting of the upper and lower

links 152 and 157, which form two of the bars, and the rigid lift frame (28 on Figure 1)

and rigid carrier frame (24 on Figure 1), which form the other two bars. Kinze argues

that these links can be attached to the lift frame at any point because the lift frame is all

one rigid and integral welded structure, as is the carrier frame. Kinze further argues that

the four-bar linkage is a conventional and well-known mechanical device for performing

a lifting function, which can be connected to any part of the lift frame and to any part of

the carrier frame. Appellant Br. at 36.

       Case responds that “[w]ithout the center struts 109, horizontal mounting section

111 and forward bracket 147 of the disclosed four bar linkage, the powered lift linkage

assembly 52 could not possibly connect the lift frame to the carrier frame or lift the lift

frame from a lower position to a raised position.” Cross-appellant Br. at 56. Case


05-1269, -1270                               9
continues, “In fact, absent these items 109, 111, and 147, the remaining structure of the

linkage would lose its mechanical integrity and be incapable of performing any function.”

Id.

       We agree with Case that items 109, 111, and 147 are necessary corresponding

structure to the lifting function. Kinze is correct that one could weld the linkage bars 152

and 157 directly to the lift frame while maintaining the lifting function and mechanical

integrity. However, this is more of a doctrine of equivalents argument than a claim

construction argument. The specification discloses specific components (structure) that

are essential to the lifting function, and such disclosures must be given due

consideration. Because we find that items 109, 111, and 147 were properly found to be

necessary corresponding structure to the lifting function, the district court’s error in

construing “connecting the lift frame to the carrier frame” to be a functional, rather than

a structural, limitation was harmless. Thus, the instruction ultimately given to the jury

concerning this limitation, see Claim Construction Order, 318 F. Supp. 2d at 796, was

correct.

C.     power swing means

       Finally, claim 1 of the ‘168 patent provides: “power swing means for rotating said

lift frame in said raised position about said second vertical axis between said use

position and said transport position in which said lift frame is elongated in the direction

of travel . . . .” (emphasis added). ‘168 patent, col. 18, ll. 64-68. The parties agree that

the “power swing means” limitation is in means-plus function form and that the function

recited is “rotating said lift frame in said raised position about said second vertical axis

between said use position and said transport position.”         The parties dispute what


05-1269, -1270                              10
structure in the specification corresponds to the claimed function. Figure 19 provides a

helpful illustration of the use position while Figure 20 depicts the transportation position

of this structure.




       As demonstrated by Figure 19, when the rod of the hydraulic cylinder 225 is fully

extended, the lift frame is perpendicular to the center line of the planter, as depicted in

Figure 1 below. When the hydraulic cylinder 225 retracts the rod to the position shown

in Figure 20, the link 221 rotates clockwise around the pivot 222, which causes the link

218 and crank arm 217 to rotate the circular plate 215 counterclockwise, as shown in

Figure 20. When the plate 215 rotates from the position in Figure 19 to the position in

Figure 20, the lift frame 28 rotates about the center post from the use position

(perpendicular) to the transport position (parallel to the center line), as depicted in

Figure 4 below.




05-1269, -1270                              11
       The district court found the following structures to be necessary to perform the

claimed function:

              the power swing linkage assembly 65 which includes a
              circular plate 215, a crank arm 217 welded to the circular
              plate 215, a connecting link 218 pivotally connected at one
              end 219 to the crank arm 217 and pivotally connected at the
              other end 220 to a link 221. Link 221 is pivotally mounted at
              222 to the carrier frame. The structure further includes a
              hydraulic cylinder 225 with its butt end pivotally connected at
              226 to the carrier frame for horizontal movement about a
              vertical axis with its rod end pivotally connected at 227 to the
              link 221. Accordingly, the court concludes the power swing
              means limitation covers each of these structures and their
              equivalents.


Claim Construction Order, 318 F. Supp. 2d at 798.

       Kinze contends that the district court committed an error of claim construction by

including intermediate links 218 and 221 as structure for the power swing means. Kinze

argues that these linkages perform the over-center and deceleration functions, as

opposed to the function recited in the claim. Kinze states, “The mere fact that they are

activated during the swing mechanism is no [ ] reason to include them in the swinging

function.” Appellant Br. at 38.




05-1269, -1270                              12
       Case responds that the intermediate links 218 and 221 are integral to the

operation of the swing linkage assembly. Case argues that without these links, the

mechanical connection between the hydraulic cylinder 225 and the plate 215 would be

severed, preventing the cylinder from moving the plate and rotating the lift frame.

Moreover, Case notes that it is unimportant that the intermediate links 218 and 221

perform additional operations of deceleration over-centering, as the relevant inquiry is

whether they are necessary for rotating the lift frame.

       We agree with Case. Because the intermediate links 218 and 221 are necessary

to perform the function of “rotating said lift frame in said raised position about said

second vertical axis between said use position and said transport position,” the district

court was correct to construe this limitation to require such intermediate links.

                                            III.

       Case cross-appeals the district court’s denial of its motion for JMOL with respect

to its claim of invalidity by reason of indefiniteness. JMOL against a party is appropriate

when “a party has been fully heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on that issue.” Fed. R. Civ.

P. Rule 50(a)(1).

       “In ruling on a claim of patent indefiniteness, a court must determine whether

those skilled in the art would understand what is claimed when the claim is read in light

of the specification.” Bancorp Servs., L.L.C. v. Hartford Life Ins. Co., 359 F.3d 1367,

1371 (Fed. Cir. 2004); Exxon, 265 F.3d at 1375. “A claim is indefinite if its legal scope

is not clear enough that a person of ordinary skill in the art could determine whether a




05-1269, -1270                              13
particular composition infringes or not.” Geneva Pharm., Inc. v. Glaxosmithkline PLC,

349 F.3d 1373, 1384 (Fed. Cir. 2003).

       Case argues that it met its burden to show by clear and convincing evidence that

claims 1 and 22 of the ‘168 patent are indefinite. Case challenges the final limitation in

claim 1: “characterized in that the said second vertical axis of rotation is located such

that the weight of said lift frame means is substantially uniformly distributed to either

side thereof in the direction of elongation of said lift frame means. ‘168 patent, col. 18, l.

68-col. 19, l. 4 (emphasis added). Case also challenges a limitation in claim 22 relating

to the lift frame means: “characterized in that said vertical axis of rotation of said lift

frame is substantially on the center line of said implement and proximate the mid-point

of said lift frame in its direction of elongation . . . .” ‘168 patent, col. 22, ll. 16-19

(emphasis added). Case urges that use of the words “substantially” and “proximate”

renders claim 22 indefinite.

       While construing the term “substantially constant wall thickness,” Verve v. Crane

Cams, Inc., 311 F.3d 1116, 1119-20 (Fed. Cir. 2002), we explained that “[t]he question

is not whether the word ‘substantially’ has a fixed meaning as applied to ‘constant wall

thickness,’ but how the phrase would be understood by persons experienced in this field

of mechanics, upon reading the patent documents.” We wrote that “[e]xpressions such

as ‘substantially’ are used in patent documents when warranted by the nature of the

invention, in order to accommodate the minor variations that may be appropriate to

secure the invention” and “indeed may be necessary in order to provide the inventor

with the benefit of his invention.” Id. at 1120. Likewise, in Ecolab Inc. v. Envirochem,

Inc., 264 F.3d 1358, 1367 (Fed. Cir. 2001), the court held that “the use of the term



05-1269, -1270                               14
‘substantially’ to modify the term ‘uniform’ d[id] not render this phrase so unclear such

that there is no means by which to ascertain the claim scope.”

       The district court heard testimony from Mr. Kinzenbaw that substantially equal

weight means that the weight can vary plus or minus 10 to 15 percent right or left. The

court also heard testimony from Mr. Deckler, Kinze’s technical expert who has been in

the agricultural equipment field since 1960, that a 10% variation is not significant and

that most engineers would agree that 10% to 15% would be the outer limit of how far

the pivot could be offset while still conforming to the language of the claim specifying

“substantially uniform” weight distribution and “proximate the centerline.” Also, Kinze

points to sections of the specification showing that an objective of the invention is to

have substantially equal weight distribution about the centerline in both the transport

and use positions and that the claimed planters could be configured in many different

ways with the presence or absence of heavy equipment that would alter the weight

distribution. See, e.g., ‘168 patent, col. 4, ll. 4-16, ll. 45-53, col. 18, ll. 17-21, 32-35.

       Case argues that the opinions of Kinzenbaw and Deckler were conclusory and

biased, and that neither witness could identify a single published document supporting

their 10 to 15 percent leeway theories.          Case also argues that “substantially” and

“proximate” are words of degree and that no standard for measuring the degrees is

provided in the specification. Finally, Case adds that the words of degree are not as

precise as the subject matter permits in the farm machinery art.

       It appears that in addition to reviewing the ‘168 patent and the documentary

evidence, the district court made credibility determinations after hearing live testimony.

Furthermore, considering the case law discussed above, we think Case fell far short of


05-1269, -1270                                 15
proving by clear and convincing evidence that the disputed claim limitations are

indefinite. Accordingly, the district court did not err by denying Case’s motion for JMOL

with respect to indefiniteness of the disputed claim limitations.

       For the foregoing reasons, we affirm the district court’s judgments of

noninfringement and non-invalidity.

       Each party shall bear its own costs.




05-1269, -1270                                16
