                   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

                                        05-1017

                                E. MICHAEL MATTOX,

                                                               Plaintiff-Appellant,
                                            v.

                       INFOTOPIA, INC., TOTAL TIGER, INC.,
                       MARK LEVINE, and DAVID RICHMOND,

                                                               Defendants-Appellees.


                           __________________________

                           DECIDED: May 23, 2005
                           __________________________


Before MAYER, CLEVENGER, and SCHALL, Circuit Judges.

Opinion for the court filed by Circuit Judge CLEVENGER. Circuit Judge MAYER
dissents.

CLEVENGER, Circuit Judge.


      Mattox appeals from the decision of the United States District Court for the

Central District of California granting summary judgment of noninfringement in favor of

Infotopia, Inc., Total Tiger, Inc., Mark Levine, and David Richmond (collectively

"Infotopia"). See Mattox v. Infotopia, No. CV 03-6169, 2004 WL 1638202 (C.D. Cal.

July 22, 2004). Because the district court misconstrued certain claim limitations of the

patent-in-suit, we vacate the grant of summary judgment and remand.
                                             I

       United States Patent No. 5,499,961 ("the '961 patent"), entitled "Kneeling-Prone-

Kneeling Exercise Device" is generally directed to an exercise device. As described in

the patent, a person desiring to use the device kneels on kneepads that are relatively

centrally located, places the heels or lower legs in contact with a "heel brace" near the

posterior of the machine, and places the arms upon, or grips, a "glide" located near the

anterior of the machine. See generally the '961 patent, Figures 1 & 8. To perform

exercise, the person moves the glide forward, which elongates the torso. The motion is

followed by contracting the torso, to resume a kneeling position.

       The parties have stipulated that claim 1 is representative. See Mattox, 2004 WL

1638202, at *1. Claim 1 of the '961 patent is directed to a device. It states:

       1. An exercise device having:

       a glide for supporting arms of a user in a forward kneeling position and
         gliding along a support surface[1] while extending the body in a forward
         direction;

       a heel brace adapted to be positioned behind and bear against the rear
         surface of the heels of a user for restraining upward movement of the
         heels of a user in a forward kneeling position and as the user pushes
         the glide in the forward direction;

       a knee rest for supporting knees of a user in a forward kneeling position
          as the user glides the glide in the forward direction; and

       a connector between the knee rest and the heel brace to maintain the heel
          brace and the knee rest in a relatively fixed position, at least while the
          user rests his or her knee on the knee rest and pushes the glide in the
          forward direction;




       1
               The word "surface" was made part of the claim on February 19, 2002, by
Certificate of Correction.



05-1017                                  2
       whereby as the user pushes the glide in the forward direction, with knees
         on the knee rest and heels abutting the heel brace, the user can use at
         least one of back, buttock and leg muscle groups to extend and support
         his or her body and return his or her body to the kneeling position.

The '961 patent, claim 1 (emphases added).

       Among others, the district court construed the "glide" and "heel brace" limitations.

According to the district court, the "glide" limitation defines: "a device that supports the

arms of a user to facilitate the forward and backward movement of the user along an

object that holds up and moves the user in a certain course," Mattox, 2004 WL

1638202, at *7, while the "heel brace" limitation defines: "a heel brace made to fit so it

is positioned behind and bears against the rear surface of the heels of a user for

restraining upward movement of the heels of a user in a forward kneeling position and

as the user pushes the glide in the forward direction," id. at *9.

       Based on its interpretation of the "glide" and "heel brace" limitations, the district

court entered summary judgment in favor of Infotopia. The reasons, according to the

district court, are that "[u]nlike the '961 Patent, the [accused device] employs the use of

a wheeled structure that glides on the floor, rather than along a support . . . [and]

[u]nlike the '961 Patent, whose 'heel brace' restrains the user's legs by bearing against

the user's heels, the [accused device] . . . restrains the user's legs by bearing against

the user's ankles." Id. at *11.

       Mattox appeals, and we have jurisdiction to review this decision pursuant to

28 U.S.C. § 1295(a)(1) (2000).

                                              II

       The proper interpretation of the claims of a patent is a legal question, see

Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed.



05-1017                                   3
Cir. 2004), and this court conducts a complete and nondeferential review when a district

court grants summary judgment, see Conroy v. Reebok Int'l, Ltd., 14 F.3d 1570, 1575

(Fed. Cir. 1994).

                                               III

       Mattox contests the grant of summary judgment on two points. First, Mattox

contends that the district court erroneously construed the "glide" limitation. Second,

according to Mattox, the trial court either misconstrued or misapplied the "heel brace"

limitation. We agree with Mattox on both points.

                                               A

       The district court's misconstruction of the "glide" limitation flows from its

misunderstanding of the claim language, "gliding along a support," which according to

the district court requires that the glide "moves the user in a certain course," see Mattox,

2004 WL 1638202, at *7. As the decision on infringement makes clear, the district court

understood "in a certain course" to mean along a path directed by a guide.               Put

differently, the district court believed that claim 1 defines the "glide" using language that

requires the glide to travel along a directional support that limits nonlinear movement,

e.g., a "guide track." See, e.g., the '961 patent, Figure 8. This is incorrect.

       The claim language, "gliding along a support," plainly includes traveling over a

floor. Consequently, the district court erred when it read out of claim 1 embodiments of

the glide structure that "glide[] on the floor." See Mattox, 2004 WL 1638202, at *11.

Absent statements in the intrinsic record to the contrary, where claim language is plainly

susceptible to an interpretation that includes the described embodiments, that

interpretation is the better interpretation.    See Vitronics Corp. v. Conceptronic, Inc.,




05-1017                                   4
90 F.3d 1576, 1583 (Fed. Cir. 1996) (reasoning that an interpretation that excludes a

preferred embodiment is unlikely to be correct).

       Such is the case here. A glide that travels along a support surface which can be

a floor is depicted in the '961 patent. See, e.g., the '961 patent, Figures 1, 4, 5, 6, & 7.

Clearly, as the depicted glide moves along the support surface, it is not subject to the

constraints of a "guide track." See id. Moreover, in one embodiment, item 114, which is

described as elastic tubing, see the '961 patent, col. 5, l. 38, is not present, see id., col.

9, ll. 50-52. In such an embodiment the only feature controlling the course of the gliding

motion is the ability and decisionmaking of the user.

       Based on its misapprehension of the claim meaning, the district court

erroneously held that the "glide" limitation could not be met. Because the accused

device contains "a glide for supporting arms of a user in a forward kneeling position and

gliding along a support," the accused device meets the "glide" limitation of the '961

patent. As the district court understood, a glide is a device for facilitating the movement

of something. As set forth in the record, the glide of the accused device is clearly

capable of supporting the arms of a user in the operation of the device. The user can

keep both arms parallel or otherwise. Furthermore, the glide in the accused device

facilitates "gliding along a support" because it permits the user to travel over a floor.

                                              B

       As Mattox contends, the district court also misconstrued the structure defined by

the "heel brace" limitation of the claimed device. The district court construed "adapted

to be positioned behind and bear against the rear surface of the heels" to mean that the

heel brace must necessarily "restrain[] upward movement of the heels" by touching the




05-1017                                   5
heels of each and every user who operates the exercise device. Under the district

court's interpretation, if a user could use an accused device by engaging restraining

force against the part of the leg above the rear surface of the heels, then this limitation

would not be met. This interpretation is incorrect because it fails to respect that the

claim language defines a structural element, not a method of use.

       The proper interpretation of this limitation flows from the correct understanding of

the term "adapted." The term "adapted" plainly means to make fit (as for a specific or

new use or situation). Thus, the language, "heel brace adapted to be positioned behind

and bear against the rear surface of the heels," defines a structure fit to be positioned

"behind and bear[ing] against the rear surface of the heels" and fit for performing the

function of "restraining upward movement of the heels." In other words, the structure

defined by the claim language must be capable of performing the function in the manner

described. If a user can put his or her heels in contact with the heel brace such that the

heel brace restrains the upward movement of the user's heels in the course of operating

the device, then the limitation is met.

       Notwithstanding the fact that Infotopia's marketing materials state that the user's

"heels should be secure" under the bracing structure of the accused device, the district

court held that the "heel brace" limitation of the '961 patent could not be met by the

accused device. After a review of the record, we are convinced that this holding was

based on a misapprehension of the claim meaning. Accordingly, it is vacated. As

noted, if an accused device is capable of use so as to restrain upward movement of the

heels by engaging the rear surface of the heels with the heel brace, that device literally

meets the heel brace limitation.




05-1017                                   6
                                            IV

      On this record, the district court did not abuse its discretion in refusing to give

effect to the word "surface" as added by the Certificate of Correction. Otherwise, for the

reasons discussed above, the grant of summary judgment is vacated and the case is

remanded for further proceedings consistent with this opinion.

      No costs.



MAYER, Circuit Judge, dissents.




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