  United States Court of Appeals
      for the Federal Circuit
                 ______________________

              INLINE PLASTICS CORP.,
                  Plaintiff-Appellant,

                            v.

                    EASYPAK, LLC,
                   Defendant-Appellee.
                 ______________________

                       2014-1305
                 ______________________

    Appeal from the United States District Court for the
District of Massachusetts in No. 4:11-CV-11470-TSH,
Judge Timothy S. Hillman.
                ______________________

                Decided: August 27, 2015
                 ______________________

   ADAM PHILLIP SAMANSKY, Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., Boston, MA, argued for plaintiff-
appellant. Also represented by PETER CUOMO; BARRY
KRAMER, DAVID JOHN SILVIA, Edwards Wildman Palmer
LLP, Stamford, CT.

    CRAIG M. SCOTT, Hinckley, Allen & Snyder LLP, Prov-
idence, RI, argued for defendant-appellee. Also repre-
sented by CHRISTINE K. BUSH; ANASTASIA ANDREYEVNA
DUBROVSKY, Scott & Bush, Ltd., Providence, RI.
                ______________________
2                      INLINE PLASTICS CORP.   v. EASYPAK, LLC



    Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.
NEWMAN, Circuit Judge.
     Inline Plastics Corporation sued EasyPak, LLC for in-
fringement of United States Patent No. 7,118,003 (the
’003 patent) and No. 7,073,680 (the ’680 patent), directed
to tamper-resistant plastic food containers. Following the
district court’s claim construction, Inline moved for entry
of final judgment of non-infringement of its ’003 patent,
on the premise that the claims as construed are not
infringed. Inline also granted EasyPak a covenant not to
sue on the ’680 patent. The district court then entered
final judgment of non-infringement of the ’003 patent,
dismissed without prejudice EasyPak’s declaratory judg-
ment counterclaims for invalidity, and dismissed Inline’s
count for infringement of the ’680 patent with prejudice. 1
    Inline appeals the district court’s construction of the
claims of the ’003 patent, stating that the terms “frangible
section” and “tamper evident bridge” were incorrectly
construed. We conclude that, on the facts and specifica-
tion of the ’003 patent, the district court erred in limiting
the claims to a specific embodiment, for the invention as
claimed is supported by the patent’s broader disclosure.
We vacate the judgment of non-infringement of the ’003
patent, and remand for determination of infringement in
accordance with the corrected claim construction.
                     THE ’003 PATENT
    The patented products are plastic food containers hav-
ing the described tamper-evident and tamper-resistant
features. The containers have a hinged plastic bridge
between the top and bottom portions of the container, the
bridge having a frangible section that must be severed in



     1 Inline Plastics Corp. v. EasyPak, LLC, No. 11-
11470-TSH, 2014 WL 297224 (D. Mass. Jan. 24, 2014).
INLINE PLASTICS CORP.   v. EASYPAK, LLC                     3



order to open the container. Thus, tampering or opening
of the container is readily evident.
    Figure 1 of the ’003 patent shows an embodiment of
the tamper-resistant container, having a cover portion 12
and a base portion 14 joined by a hinge 16. The hinge
includes a tamper-evident pull strip 18, which upon
removal severs the connection between cover 12 and base
14:




The parties agree that claims 1 and 2 are representative:
   1. A tamper-resistant/evident container compris-
   ing:
       a) a plastic, transparent cover portion includ-
   ing an outwardly extending peripheral flange;
       b) a base portion including an upper peripher-
   al edge forming at least in part an upwardly pro-
   jecting bead extending substantially about the
   perimeter of the base portion and configured to
   render the outwardly extending flange of the cov-
4                      INLINE PLASTICS CORP.   v. EASYPAK, LLC



    er portion relatively inaccessible when the con-
    tainer is closed; and
        c) a tamper evident bridge connecting the cov-
    er portion to the base portion.
    2. A tamper-resistant/evident container as recited
    in claim 1, wherein the tamper evident bridge in-
    cludes a hinge joining the outwardly extending
    flange of the cover portion with the base portion,
    the hinge including a frangible section, which up-
    on severing, provides a projection that extends out
    beyond the upwardly projecting bead of the upper
    peripheral edge of the base portion, for facilitating
    removal of the cover portion from the base portion
    to open the container.
EasyPak’s accused containers embody all of the elements
of claims 1 and 2. However, the EasyPak frangible sec-
tion has a single score line along which the cover is sev-
ered from the base, whereas the ’003 patent’s preferred
embodiment, as shown in Figure 1, has two score lines at
the frangible section. The district court construed “fran-
gible section” to mean “a removable tear strip, delimited
by at least two severable score lines.” Inline Plastics
Corp. v. EasyPak, LLC, No. 11-cv-11470-TSH, 2013 WL
2395998, at *10 (D. Mass. Jan. 22, 2013) (“Claim Con-
struction Order”).
    The district court acknowledged that it limited the
claims to the embodiment shown in Figure 1, and stated
that “declarations made during patent prosecution to
surpass the prior art reveal a definitive focus on the
removability of the frangible section and thus clearly and
unambiguously disavow any other embodiment to the
contrary.” Claim Construction Order, at *6. The district
court recognized that claims 1 and 2 did not contain a
limitation to two severable score lines, but reasoned that
the prosecution history supported this limitation. That is
the issue on appeal.
INLINE PLASTICS CORP.   v. EASYPAK, LLC                    5



                          DISCUSSION
    The district court’s claim construction is reviewed as
set forth in Teva Pharmaceuticals USA, Inc. v. Sandoz,
Inc., 135 S. Ct. 831 (2015). “[W]hen the district court
reviews only evidence intrinsic to the patent (the patent
claims and specifications, along with the patent’s prosecu-
tion history), the judge’s determination will amount solely
to a determination of law, and the Court of Appeals will
review that construction de novo.” Id. at 841. Relevant
factual determinations based on extrinsic evidence, such
as prior art and expert testimony, are reviewed under the
standard of clear error. Id.
                               A
                   FRANGIBLE SECTION
    Applying these criteria, Inline argues that “frangible
section” was incorrectly construed as requiring at least
two score lines at the hinge. Inline states that “frangible
section” should be construed to mean a “section of materi-
al that includes at least one score line or at least one
perforation line.” Inline points out that nothing in the
specification, the prosecution history, or the prior art
limits “frangible section” by the number of score lines by
which the frangible section is severed.
    The ’003 specification describes the invention’s fea-
tures as “intended to prevent and deter opening container
10 without first removing frangible strip 18 from hinge
16.” ’003 Patent, col.5 ll.65–67. The specification de-
scribes the preferred embodiment as:
   Preferably, frangible strip 18 is limited at least in
   part by a pair of parallel score lines 42a, 42b or
   areas that have been weakened or stressed during
   the forming process.
6                        INLINE PLASTICS CORP.   v. EASYPAK, LLC



Id. at col.6 ll.24–26. The specification also states that a
single score line or perforation is an alternative embodi-
ment:
    Alternatively, the integral hinge 16 could be
    formed with a single score line or perforation line,
    rather than a pair of score lines. In this instance,
    the single score line could be severed to create a
    pair of projections which would be used to open
    the container.
Id. at col.6 ll.33–37.
    Despite this explicit disclosure of an alternative single
score line, the district court limited “frangible section” to
require at least two score lines. No prior art or prosecu-
tion argument underlays this limitation. The district
court referred only to the frequency with which the speci-
fication described the frangible section as having two
score lines that form a severable strip.
    Here, the preferred embodiment is not described as
having certain unique characteristics of patentable dis-
tinction from other disclosed embodiments. Nor are other
embodiments inadequately described in relation to the
principles of the invention. Absent such traditional
aspects of restrictive claim construction, the patentee is
entitled to claim scope commensurate with the invention
that is described in the specification. See Phillips v. AWH
Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (“[A]lthough
the specification often describes very specific embodi-
ments of the invention, we have repeatedly warned
against confining the claims to those embodiments.”).
    EasyPak states that the prosecution history supports
construction of “frangible section” to require at least two
score lines. This argument is devoid of support in the
prosecution history. The examiner did not require such
limitation, and it was not a condition of patentability.
There is no prosecution history disclaimer, which requires
INLINE PLASTICS CORP.   v. EASYPAK, LLC                    7



clear and deliberate disavowal. See, e.g., Omega Eng’g,
Inc. v. Raytek Corp., 334 F.3d 1314, 1325 (Fed. Cir. 2003);
Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 833
(Fed. Cir. 2003) (“We therefore do not consider the appli-
cants’ statement to be a clear and unambiguous disavowal
of claim scope as required to depart from the meaning of
the term provided by the written description.”).
    During prosecution, the examiner initially rejected
claims 1 and 2 as anticipated by either of U.S. Patent No.
5,507,406 (Urciuoli) or German Patent DE 7816353
(Menshen), and rejections on the ground of obviousness
were based on these references and also in view of U.S.
Patent No. 4,535,889 (Terauds). In response, Inline
emphasized that no reference showed a frangible section
which, upon severing, “provides a projection that extends
out beyond the upwardly projecting bead of the upper
peripheral edge of the base portion for facilitating remov-
al of the cover portion from the base portion to open the
container.” App. No. 10/895,687, Amendment and Re-
sponse 15 (Jan. 17, 2006). Inline described Urciuoli’s
frangible section as “a perforated line, a groove or the like
around the receptacle 210 in the outer segment 222.” Id.
at 9.
     EasyPak states that Inline distinguished its invention
from Urciuoli on the basis that Urciuoli’s frangible section
features a single perforated line. We cannot find such a
statement in either the reference or the prosecution
history. Inline’s description of Uricuoli as containing a
“perforated line, a groove or the like,” was not the basis of
Inline’s distinction. To the contrary, Inline distinguished
its invention from Urciuoli on the basis that “[n]owhere in
[Urciuoli] is there any disclosure, teaching or suggestion
to modify the container therein to provide a tamper
evident bridge that connects a cover portion to a base
portion.” Id.
8                       INLINE PLASTICS CORP.   v. EASYPAK, LLC




    As depicted in Urciuoli Figure 2, the lid 250 nests
within the edge or lip 222 of the container portion 210.
The frangible breakpoint 235 in Urciuoli is located in this
lip section that lies around the container. To open the
container of Urciuoli, a user applies pressure to a handle
215 on the container portion, breaks the frangible section,
and lifts the lid portion out from its nesting position in
the container portion.
    The device of the ’003 patent, unlike that of Urciuoli,
has a hinge formed by outwardly extending edges on both
the cover and base portions. The distinction between
Urciuoli and the ’003 device has no relation to the number
of score lines on a tear strip, but rather to differences in
the structure and opening mechanism as a whole. The
Urciuoli structure indeed shows when tampering has
occurred, but by a different mechanism. The number of
score lines in the frangible lip of Urciuoli is not part of the
tamper-evidencing mechanism.
    EasyPak also argues that the declarations that Inline
submitted to the PTO limit the claims to a tear strip
having two score lines. That is an inaccurate description
of the declarations. Inline submitted a declaration of
Edward Colombo, a Director on Inline’s Board, who
described Inline’s commercially successful containers as
INLINE PLASTICS CORP.   v. EASYPAK, LLC                   9



having a frangible hinge with a removable tear strip.
App. No. 10/895,687, Decl. of Edward A. Colombo 4 (Jan.
17, 2006). His statements describe the commercial em-
bodiments and focused on the long-felt need met by In-
line’s commercial products:
   The containers disclosed in this patent application
   meet the long-felt needs identified above because
   they utilize a geometry that is suitable for ther-
   moforming containers from a sheet of plastic ma-
   terial. Even more importantly, the containers
   disclosed herein can be thermoformed from a sin-
   gle piece of material, such as a single sheet of
   plastic. This material can be transparent. One of
   the structural features of the container that
   makes this single piece formation possible is the
   skirt that depends down from the peripheral rim
   of the container. This skirt is formed to have a
   vertical height that directly correlates with the
   height of a frangible hinge that includes a tear
   strip.
Id. Mr. Colombo did not address the number of score
lines in the frangible section.
    In correspondence with the PTO, Inline discussed the
advantages of its structure. Inline explained that by
having a “cover that is very difficult to open without
removing the tamper-evident bridge connecting the cover
to the base portion, pilferage is substantially reduced.”
App. No. 10/895,687, Supplemental Response 3 (Mar. 3,
2006). Inline also filed a declaration of its Vice President
of Sales, August Lanzetta, and a statement from a cus-
tomer, Arcade Industries, Inc. Both Mr. Lanzetta and
Arcade Industries describe the Inline containers as fea-
turing removable tear strips. Those declarations, like
that of Mr. Colombo, focused on the commercial success of
Inline’s product, not the scope of the claims.
10                       INLINE PLASTICS CORP.   v. EASYPAK, LLC



    The patent examiner placed no emphasis on the num-
ber of severable lines. In allowing the claims, the exam-
iner explained: “The container also includes a tamper
evident feature, such as a tear strip, connecting the cover
portion to the base portion.” App. No. 10/895,687, Final
Rejection 2 (June 19, 2006). There is no discussion in the
specification or the prosecution history of any patentabil-
ity reliance on the number of score lines by which the
frangible section is severed.
    Thus Inline proposes that the correct construction of
“frangible section” is “a section of material that includes
at least one score line or at least one perforation line,” and
refers to the doctrine of claim differentiation. See Phil-
lips, 415 F.3d at 1315 (“[T]he presence of a dependent
claim that adds a particular limitation gives rise to a
presumption that the limitation in question is not present
in the independent claim.”). Claim 2 of the ’003 patent,
recited ante, includes the frangible limitation:
     the hinge including a frangible section, which up-
     on severing, provides a projection . . . for facilitat-
     ing removal of the cover portion from the base
     portion to open the container.
Claim 4 depends from claim 2 and is specific to the em-
bodiment of two parallel score lines:
     4. A tamper-resistant/evident container as recited
     in claim 2, wherein the frangible section of the
     hinge is delimited at least in part by a pair of par-
     allel score lines.
Since the specification explicitly mentions the “alterna-
tive” of “a single score line or perforation line, rather than
a pair of score lines,” col.6 ll.33–37, there can be no debate
concerning the application of the doctrine of claim differ-
entiation, see Tandon Corp. v. U.S. Int’l Trade Comm’n,
831 F.2d 1017, 1023 (Fed. Cir. 1987) (“There is presumed
INLINE PLASTICS CORP.   v. EASYPAK, LLC                    11



to be a difference in meaning and scope when different
words or phrases are used in separate claims.”).
    Thus we correct the district court’s claim construction,
and construe “frangible section” to mean “a section of
material that includes at least one score line or at least
one perforation line.”
                               B
                 TAMPER EVIDENT BRIDGE
    The term “tamper evident bridge” was not in the ’003
specification as filed. It was added to the claims during
prosecution to distinguish the Urciuoli reference. When
the term was added, Inline explained that Urciuoli does
not show a tamper evident bridge that connects the cover
to the base, and that the container in Urciuoli would have
to be completely redesigned to accommodate the tamper
evident bridge structure of the ’003 patent.
     The district court construed the term “tamper evident
bridge” to mean “a structure that connects the lid and
base portions of the container and also contains a remov-
able tear strip, delimited by at least two severable score
lines, which once removed provides evidence that tamper-
ing has occurred.” Claim Construction Order, at *10.
Except for the limitation of two score lines, which derives
from the district court’s construction of “frangible section,”
we discern no error in this construction. Thus we recon-
struct “at least two” in the Claim Construction Order to
“at least one.”
                         CONCLUSION
    We have corrected the claim construction, whereby
claims 1 and 2 are not restricted to the presence of at
least two score lines or perforation lines. On this claim
construction, the judgment of non-infringement of the ’003
patent cannot stand. We vacate that judgment, and
12                    INLINE PLASTICS CORP.   v. EASYPAK, LLC



remand for further proceedings based on the correct claim
construction as set forth herein.
     REVERSED IN PART, VACATED IN PART, AND
                   REMANDED
