                   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


                                        04-1090

                               ALLTRADE TOOLS, LLC,

                                                               Plaintiff-Appellee,
                                            v.

                               OLYMPIA GROUP, INC.,

                                                               Defendant-Appellant.

                           __________________________

                           DECIDED: February 8, 2005
                           __________________________


Before NEWMAN, CLEVENGER, and GAJARSA, Circuit Judges.

CLEVENGER, Circuit Judge.


      Olympia Group, Inc. ("Olympia") appeals the decision of the United States

District Court for the Central District of California denying Olympia's Motion for

Preliminary Injunction against the manufacture and sale of the Cobra Bar by Alltrade

Tools, LLC ("Alltrade"). Alltrade Tools, LLC v. Olympia Group, Inc., No. 03-CV-0458

(C.D. Cal. Oct. 8, 2003) ("Order"). We affirm.

                                             I

      Both Alltrade and Olympia are in the business of making and selling hand tools

including pry bars.   Olympia owns U.S. Patent No. 6,257,553 ("the '553 patent")

covering a "utility bar." Olympia manufactures and sells the Gorilla Bar, an embodiment
of the '553 patent with a linear shank and oval cross section. Alltrade markets the

Cobra Bar, a slightly curved pry bar with an hourglass-shaped cross sectional shank.

       In opposition to the preliminary injunction motion, Alltrade asserted that it did not

meet three limitations of Olympia's patent: (1) "an elongate shank having a generally

oblong cross section . . . and shank having a major axis within said common plane

greater than a minor axis along a direction transverse to said common plane"; (2) "an

elongate shank . . . defining a longitudinal axis"; and (3) "a generally U-shaped portion."

See '553 patent, col. 8, ll. 37-50. Only the first two limitations are at issue in this appeal.

       The district court found that the disputed claim language was unambiguous. The

court construed the term "generally oblong" to require a shank that was elliptical based

on the inclusion of the terms "major axis" and "minor axis" in the claim. These terms

were given their strict meaning from geometry. The claim term "longitudinal axis" was

found to require a shank that had a linear or straight axis. Using this claim construction,

the court found that Olympia had not shown a substantial likelihood that the Cobra Bar

infringed claim 19 of the '553 patent because Alltrade's Cobra Bar did not have an

elliptical cross section or a linear shank. Therefore the district court held that Olympia

had failed to show a likelihood of success on the merits and denied the motion for a

preliminary injunction.

       Olympia now appeals to this court. According to Olympia, the district court erred

in construing the claim limitations "generally oblong" and "longitudinal axis." We have

jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1292(c)(1).




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                                              II

       The grant or denial of a preliminary injunction is within the discretion of the

district court. Novo Nordisk of N. Am., Inc. v. Genentech, Inc., 77 F.3d 1364, 1367

(Fed. Cir. 1996). This court reviews a denial of a preliminary injunction by the district

court for abuse of discretion, which can be established by showing the district

court decision is based on clearly erroneous factual findings, an error of law, or a

clear error of judgment in weighing the relevant factors.            Amazon.com, Inc. v.

Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001). In order for the court

to grant Olympia a preliminary injunction, it must show: (1) a reasonable likelihood of

success on the merits of the case; (2) it will suffer irreparable harm if an injunction is not

granted; (3) the hardships balance in its favor; and (4) the injunction is in keeping with

the public interest. Id. Irreparable harm will be presumed when patent validity and

infringement have clearly been shown. Id. "[W]hen a preliminary injunction is denied,

the movant carries a heavier burden to obtain a reversal." New England Braiding Co. v.

A.W. Chesterton Co., 970 F.2d 878, 882 (Fed. Cir. 1992).

       The court must first construe the meaning of the relevant claims before

determining if there is a likelihood of infringement. Claim construction is a question of

law this court reviews without deference to the district court.        Cybor Corp. v. FAS

Techs., Inc., 138 F.3d 1448, 1454-56 (Fed. Cir. 1998) (en banc).

                                              III

       Before determining if the district court abused it discretion by denying Olympia's

preliminary injunction, the construction of the claims must be revisited by this court. We

begin with the language of disputed claim 19 of the '553 patent:




04-1090                                   3
       A prying bar comprising an elongate shank having a generally oblong
       cross section and defining a longitudinal axis and having a prying hook at
       one end and a prying chisel at the other end, said prying hook having a
       tapered portion and together generally U-shaped portion integrally formed
       with said shank and said tapered portion generally defining a common
       plane of symmetry extending through the centers of said shank, prying
       hook, prying chisel and U-shaped portion, said tapered and U-shaped
       portions forming a prying footprint surface facing a direction away from
       said shank, said prying footprint surface forming the fulcrum point about
       which prying takes place, said shank having a major axis within said
       common plane greater than a minor axis along a direction transverse to
       said common plane.

'553 patent, col. 8, ll. 37-50 (emphases added). Olympia included several figures in the

patent. Figures 1 through 4 describe an embodiment of the claimed tool.




'553 patent, figs. 1-4.




04-1090                                 4
                                               A

         The disputed phrase "generally oblong cross section" must be read in the context

of the entire claim as part of "an elongate shank having a generally oblong cross

section . . . said shank having a major axis within said common plane greater than a

minor axis along a direction transverse to said common plane." Id. at col. 8, ll. 37-38,

48-50. Simplified, this means that the cross section of the shank is "generally oblong"

with a major axis in the plane of the hook, shank, and chisel, and a minor axis

transverse or perpendicular to that plane.         "Generally" is understood to mean "in a

general manner" or "in disregard of specific instances and with regard to an overall

picture" or "on the whole." Webster's Third New International Dictionary 945 (3d. ed

1993).     "Oblong" is understood to mean "deviating from a square or circular form

through elongation." Id. at 1557. "Generally oblong" is therefore a shape that is longer

in one direction than the other, but not necessarily true to a specific geometrical shape,

i.e., not a perfect oval or rectangle.

         The district court interpreted the phrase in conjunction with the terms "major axis"

and "minor axis," as used in the particular geometrical shape of an ellipse.          When

defined in reference to an ellipse, a "major axis" is "the axis passing through the foci of

an ellipse," id. at 1363, and a "minor axis" is "the chord of an ellipse passing through the

center perpendicular to the major axis," id. at 1440.          We do not think this strict

geometrical meaning should be assigned to the claims. The terms "major axis" and

"minor axis" in the claim serve to orient the "generally oblong" shape with respect to the

common plane of the hook, shank, and chisel.          In the claim, "major axis" and "minor

axis" are simply used to refer to the dimensions of the shape where a "major axis" is the




04-1090                                    5
longer dimensional cross section and the "minor axis" is the shorter dimensional cross

section. The terms are used this way in the specification, which for example, refers to

the minor axis as the "smaller of the dimensional cross sections." '553 patent, col. 4,

ll. 43-44. The terms are used to denote the relative dimensions of the orthogonal cross

sections.

       Interestingly, the terms "ellipse" and "elliptical" do not appear in the patent

claims or specification. "Oblong" appears in the specification only once when the

patentee states that "by providing an oblong or oval cross sectional dimension for the

shank, as opposed to a sheet of flat metal or hex cross section shank, the user can

apply significantly greater forces to the shank without incurring discomfort or pain, or

possible injury." '553 patent, col. 6, ll. 27-32. Because the patentee requires an arcuate

surface on the edge of the shank along the major axis to provide the comfortable grip

described in the patent, a rectangular shaped cross section, like that of a flat bar, is not

included in claim 19. The cross sectional shapes covered by the claim could be similar

to ovals or rounded rectangles, or other geometrical shapes that have been elongated

or stretched.

       The use of the terms "major axis" and "minor axis" does not limit the shank to

only elliptical cross sections. However, the use of the terms does limit the orientation of

the shank with respect to the common plane of the tool and limits the shank cross

section to a shape that has a longer dimension in the direction of the common plane

and a shorter dimension transverse or perpendicular to the common plane of the tool.

The district court therefore erred when it defined the shank cross section to be elliptical.

This error, however, is harmless to the denial of the preliminary injunction motion.




04-1090                                  6
                                             B

       Olympia also asserts the district court was incorrect when it construed the claim

limitation "an elongate shank . . . defining a longitudinal axis" to require a linear shank.

Olympia argues against defining the claim element to require a straight tool shank and

argues that "longitudinal axis" just means the line—curved, straight, or both—that is

defined by the shank itself. We agree with the district court that the scope of the claims

should be limited to cover pry bar shanks that are straight.

       "Longitudinal" means "running lengthwise," Webster's, supra, at 1333, and "axis"

is "a straight line about which a body or a 3-dimensional figure rotates or may be

supposed to rotate," id. at 153. Other definitions of axis used in various technical fields

also explicitly include a straight line. See id. In general math parlance, a coordinate

system in three dimensions has an x, y, and z axis, which are straight lines that are

perpendicular to each other and used as a reference system to define points in

geometric space. See id.

       Requiring "longitudinal axis" to mean the strict geometrical definition of an axis

of rotation or axis of symmetry would read the embodiment disclosed in Figure 1 of the

patent out of the claims. See '553, Figure 1 (disclosing a shank that does not have an

axis of rotational symmetry). The "axis" in claim 19 does not include a requirement of

rotational symmetry. An axis can simply be "a line actually drawn and used as the basis

of measurements in an architectural or other working drawing" or "a main line of

direction, motion, growth, or extension." Webster's, supra, at 153. These definitions

incorporate the use of the word "line" and state that the line must be such that it can be

used as a measurement reference or a direction. A line of reference is necessarily




04-1090                                  7
straight. In the specification, the axis is used to define various angles and distances, for

example angle α and distances d and c in figure 1. The angle of the hook is measured

in reference to the axis of the tool. Therefore, the ordinary meaning of the term "axis"

as linear is supported by the specification.

       Olympia argues that this meaning is contradicted by usage in the prior art, which

it suggests teach axes that are not straight.       The references relied on by Olympia

actually teach the contrary, and show axes drawn as straight reference lines in the

patent figures. See U.S. Patent No. 5,577,711, Fig. 1 ("the '711 patent" or "Shine");

U.S. Patent No. 4,844,416, Figs. 1-2 ("the '416 patent" or "Hand").        In fact, the Shine

reference uses the "longitudinal axis" in measuring the length of the body of the tool,

a linear dimension.    '711, col. 3, ll. 5-7.   The other reference that Olympia claims

discloses a curved axis also shows a straight line.         See '416, Fig. 1.     The Hand

reference actually discloses that "[c]rowbar 10 includes a reference vertical plumb line

or axis 12 and a reference horizontal line or axis 14, which is disposed normal to line

12." Id. at col. 2, l. 24. This description suggests an "axis" is a line that can be vertical,

horizontal, plumb, or used as a reference. These terms are used in the context of a

straight line. Olympia's own references to prior art do not support its assertion that an

axis, as used in the prior art, can be curved or nonlinear; rather the art uses the term for

straight lines.

       Finding that the axis must be linear or straight does not improperly import

limitations from the specification.   It only incorporates the ordinary meaning of axis

found not only in the dictionary but as used in the art. Therefore, the "longitudinal axis"

in claim 19 is a straight line that follows the center of the shank lengthwise. Although




04-1090                                   8
Olympia argues that the shank curvature of the Alltrade tool is de minimus, they never

put in evidence of the deviation.     Because the court correctly found that the claim

required a linear axis and that this axis is not present in the Cobra Bar, the court did not

err in finding that Olympia had not demonstrated a likelihood of success on

infringement.

                                              IV

       Although the district court erred in its construction of "generally oblong" by

restricting the claim to an elliptical cross section, the court was correct when it found

that the claim element "longitudinal axis" necessitated a shank that defined a straight

reference line. Based on the district court's proper analysis with respect to that claim

element, Olympia did not meet its burden of showing a likelihood of success on the

merits of the infringement claim. The decision of the district court is therefore affirmed.

                                          COSTS

       No costs.




04-1090                                   9
