Case: 20-1132   Document: 35    Page: 1    Filed: 08/27/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

   STEVE NEVILLE, SUBSTRUCTURE SUPPORT,
           INC., TDP SUPPORT, INC.,
               Plaintiffs-Appellants

                           v.

       FOUNDATION CONSTRUCTORS, INC.,
           FOUNDATION PILE, INC.,
              Defendants-Appellees
             ______________________

                       2020-1132
                 ______________________

    Appeal from the United States District Court for the
 Central District of California in No. 5:17-cv-02507-AG-
 AGR, Judge Andrew J. Guilford.
                  ______________________

                Decided: August 27, 2020
                ______________________

    JOEL KAUTH, KPPB LLP, Anaheim, CA, for plaintiffs-
 appellants. Also represented by MARK YEH.

     TYSON K. HOTTINGER, Maschoff Brennan, Irvine, CA,
 for defendants-appellees. Also represented by JARED J.
 BRAITHWAITE, Salt Lake City, UT; ROBERT PARRISH
 FREEMAN, JR., Park City, UT.
                 ______________________

   Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
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 2                  NEVILLE   v. FOUNDATION CONSTRUCTORS, INC.



 CHEN, Circuit Judge.
     Plaintiff-appellants Steve Neville, Substructure Sup-
 port, Inc., and TDP Support, Inc. (collectively, “Substruc-
 ture”) appeal the district court’s ruling of summary
 judgment that certain accused products of Foundation Con-
 structors, Inc. and Foundation Pile, Inc. (“Foundation”) do
 not infringe claims 1, 2, 4, 6–9, 16–20, 22–30, 32, and 33 of
 U.S. Patent No. 7,914,236 and claims 1–6, 25–29, 31, and
 39 of U.S. Patent No. 9,284,708. We affirm.
                          BACKGROUND
      The ’708 patent and its parent ’236 patent relate to
 foundation piles, which are tubular structures placed into
 the ground to provide stability for the foundations built
 over them. Such foundation piles can be driven into the
 ground through direct application of force (similar to a
 hammer and nail), or through rotational torque (like a
 screwdriver and screw). The claimed inventions are di-
 rected to the latter, screw-type, foundation pile. The spec-
 ification explains that rotational torque is applied through
 a “helical flight” at the tip of the foundation pile, which
 “draws the pile into a soil bed” and is depicted in the figures
 as a structure similar to the helical structure of a screw.
 ’236 patent at col. 4 ll. 3–6, Fig. 1.
      The tip of the foundation pile, or pile tip, contains an
 end plate—a “bottom surface” that “caps off the end of the
 conical body of the pile tip [], closing it off from the soil in
 which it is to be placed.” Id. at col. 4 ll. 26–28, col. 6 ll. 57–
 59. The surface of the end plate exerts forces “on the sur-
 rounding soil bed as it is driven into the soil.” Id. at col. 7
 ll. 28–35; see also id. at Fig. 7 (illustrating “force vectors”
 depicted as arrows from end plate 79 to the surrounding
 soil). “Likewise, the surrounding soil bed exerts reaction
 forces on the pile tip [] in response” to the end plate. Id. at
 col. 7 ll. 35–37. But because the reactionary forces from the
 surrounding soil “are not of as great a magnitude” as with
 prior pile systems, “the disturbance to the soil surrounding
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 the pile [] is minimized as the pile [] is sunk into the soil
 bed.” Id. at col. 7 ll. 35–44. As a result, the invention’s pile
 tip converts rotational torque into a downward force ap-
 plied to the soil by the surface of the end plate in a way that
 minimizes “disturbance to the soil surrounding the pile,”
 with the result that the “surrounding soil [is] packed
 tighter and therefore provide[s] a more solid support for the
 pile [], leading to greater ultimate load capacities.” Id. at
 col. 7 ll. 35–48.
     Some embodiments provide an attachment that pro-
 trudes from the surface of the end plate to help “break up
 the soil.” Id. at col. 7 ll. 4–27 (describing the addition of
 cutting teeth, a point shaft, or an “extended shaft thinner
 in diameter than the end plate” which “extend[s] out axi-
 ally from the end plate”); see also id. at Figs. 1, 4–6. Fig. 1
 below illustrates a pile tip 10 including both an end plate
 19 and protruding attachments (i.e., point shaft 17 and cut-
 ter teeth 18). As previously explained, point shaft 17 and
 cutter teeth 18 break up the underlying soil while down-
 ward force is applied through helical flight 15 and the sur-
 face of end plate 19.
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 Id. at Fig. 1.
     The parties dispute the construction of two claim limi-
 tations relating to the “end plate,” which separate the
 claims at issue into two groups.
      The first set of claims require an “end plate having a
 substantially flat surface disposed perpendicular to the
 centerline of the tubular pile.” Claim 1 of the ’236 patent
 is representative:
     1. A screw pile substructure support system, com-
     prising:
     a tubular pile having a centerline and a first diam-
     eter, wherein the tubular pile comprises a first
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    cylindrical section and a second cylindrical section
    attached by a weld;
    a substantially conically shaped pile tip sharing a
    centerline with the tubular pile, the substantially
    conically shaped pile tip having a first end and a
    second end, the first end being connected to the
    tubular pile and having a second diameter;
    a helical flight attached to an exterior surface of the
    substantially conically shaped pile tip, wherein the
    helical flight extends along the exterior surface for
    a distance of at least one third of a circumference
    of the substantially conically shaped pile tip; and
    an end plate fixedly attached to the second end of
    the pile tip, the end plate having a substantially flat
    surface disposed perpendicular to the centerline of
    the tubular pile;
    wherein the first diameter is substantially similar
    to the second diameter.
 ’236 patent at claim 1 (emphasis added).
     The second set of claims require “at least one protru-
 sion extending outwardly from the end plate.” Claim 1 of
 the ’708 patent is representative:
    1. A screw pile substructure support system com-
    prising:
    a tubular pile having a centerline and a substan-
    tially constant diameter throughout a length of the
    tubular pile; and
    a pile tip comprising:
    a tapered portion comprising a first end having a
    first diameter and a second end having a second di-
    ameter, wherein the first diameter is greater than
    the second diameter and about equal to the
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 6                NEVILLE   v. FOUNDATION CONSTRUCTORS, INC.



     diameter of the tubular pile, and wherein the first
     end is attached to the tubular pile;
     a first helical flight attached to and extending
     along an exterior surface of the tapered portion;
     an end plate closing the second end of the tapered
     portion; and
     at least one protrusion extending outwardly from
     the end plate.
 ’708 patent at claim 1 (emphasis added).
     The district court granted summary judgment of non-
 infringement as to accused products having Foundation’s
 ED2M and ED3 pile tips, concluding that these accused
 products did not include any “end plate” to a pile tip as
 claimed. J.A. 14. In particular, the district court found
 that the accused ED2M and ED3 pile tips “lack (1) an end
 plate having a substantially flat surface and (2) an end
 plate with at least one protrusion extending outwardly
 from it.” Id. The ED2M and ED3 pile tips are substantially
 the same for the purposes of this appeal and will be re-
 ferred to jointly as the ED2M/ED3 pile tip. 1
     The parties’ claim construction disputes are best illus-
 trated by reference to the accused ED2M/ED3 pile tip. As
 shown in an annotated photograph provided by Substruc-
 ture’s expert, Substructure alleges that a horizontal slice
 of the accused pile tip is the claimed “end plate”:




     1   The ED2M and ED3 pile tips differ only with re-
 spect to the widths of the helical flights on the exterior of
 the pile tip. J.A. 2457.
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 J.A. 1269. 2 Substructure’s expert testified that this high-
 lighted region of the accused pile tip is an “end plate” hav-
 ing two “substantially flat surfaces”—a first surface
 “fac[ing] the interior of the pile tip” and a second surface
 “that interfaces with the point shaft.” Id. Substructure’s
 expert further testified that the point shaft is a “protru-
 sion” extending outwardly from the alleged end plate of the




     2  In some instances, it appears that the top of the
 ED2M/ED3 pile tips is “cut off” and replaced with a “more
 aggressive fishtail.” J.A. 15.
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 8                 NEVILLE   v. FOUNDATION CONSTRUCTORS, INC.



 accused pile tip. Id. at 1256 (referring to the point shaft as
 a fishtail-shaped protrusion).
      The district court reasoned that, contrary to Substruc-
 ture’s infringement theory, the plain meaning of “end plate
 having a substantially flat surface” did not encompass “an
 interior surface facing into the rest of the pile tip.” J.A. 15.
 Examining the intrinsic record, the district court concluded
 that “the patent applicant intended the ‘substantially flat
 surface’ of the end plate to refer to the side of the end plate
 facing outward.” Id. at 15–16. The district court explained
 that “[t]his is apparent from each of the patent figures, as
 well as from how Plaintiff used the phrase ‘substantially
 flat surface’ to distinguish the pending claims in the appli-
 cation leading to the ’236 patent from certain prior art ref-
 erences.” Id. at 16.
     As to the claims to a protrusion extending outwardly
 from the end plate, the district court reasoned that
 “[b]ecause the end piece of the ED2M/ED3 pile tip is a sin-
 gle, conically-shaped piece, there is not a demarcation of
 where an ‘end plate’ should end and the ‘protrusion’ should
 begin.” Id. at 17. The district court thus rejected Plaintiff’s
 interpretations that the “end plate” can be “fully interior to
 another portion of the pile tip” and that the “protrusion”
 can be “a component that fully surrounds and is exterior to
 the item it is purportedly ‘protruding’ from.” Id. at 17–18.
     Substructure appeals the district court’s grant of sum-
 mary judgment of noninfringement, and we have jurisdic-
 tion under 28 U.S.C. § 1295(a)(1).
                          DISCUSSION
     We review the district court’s grant of summary judg-
 ment according to the law of the regional circuit. Phil–In-
 sul Corp. v. Airlite Plastics Co., 854 F.3d 1344, 1353 (Fed.
 Cir. 2017). In the Ninth Circuit, “summary judgment is
 reviewed de novo.” Brunozzi v. Cable Comms’ns, Inc., 851
 F.3d 990, 995 (9th Cir. 2017). “Summary judgment is
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 NEVILLE   v. FOUNDATION CONSTRUCTORS, INC.                    9



 appropriate when, viewing the evidence in the light most
 favorable to the nonmoving party, there is no genuine dis-
 pute as to any material fact.” Zetwick v. Cty. of Yolo, 850
 F.3d 436, 440 (9th Cir. 2017) (citation omitted).
     “[T]he ultimate issue of the proper construction of a
 claim should be treated as a question of law.” Teva Pharm.
 USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 328–29 (2015). We
 review any “subsidiary factual findings [on extrinsic evi-
 dence] under the ‘clearly erroneous’ standard.”          Id.
 “[W]hen the district court reviews only evidence intrinsic
 to the patent (the patent claims and specifications, along
 with the patent’s prosecution history), the judge’s determi-
 nation will amount solely to a determination of law, and
 the Court of Appeals will review that construction de novo.”
 Id. at 841.
     On appeal, Substructure argues that that the district
 court’s ruling of noninfringement must be overturned be-
 cause it incorrectly construed the claims. Specifically, Sub-
 structure challenges the district court’s construction of the
 “end plate having a substantially flat surface,” ’236 patent
 at claim 1, and also the “protrusion extending outwardly
 from the end plate.” ’708 patent at claim 1. We address
 each in turn.
   I. END PLATE HAVING A SUBSTANTIALLY FLAT SURFACE
     We agree with the district court that, read in light of
 the specification, the phrase “substantially flat surface dis-
 posed perpendicular to the centerline of the tubular pile”
 does not refer to any interior-facing surface. The claim re-
 cites a “substantially conically shaped pile tip,” with a “first
 end” attached to a “tubular pile” and an “end plate fixedly
 attached to the second end of the pile tip.” ’236 patent at
 claim 1. The claim further recites “the end plate having a
 substantially flat surface disposed perpendicular to the
 centerline of the tubular pile.” Id. As suggested by the
 word “end,” the relevant surface of the end plate is the ex-
 ternal one at the second end of the pile tip.
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 10                NEVILLE   v. FOUNDATION CONSTRUCTORS, INC.



      The specification reinforces the view that the invention
 is directed to the exterior surface of the end plate as being
 “substantially flat,” through which the pile tip applies force
 to the underlying soil. The specification is silent as to any
 interior surface of the end plate. Nor does Substructure
 point to any part of the specification that suggests that the
 shape of the end plate’s interior surface serves any pur-
 pose. Instead, the specification describes the end plate in
 the context of the exterior surface of the pile tip structure
 as a whole. Id. at col. 6 ll. 57–59 (“An end plate 49 is pro-
 vided as a bottom surface to the conical body of the pile tip
 40.”). Moreover, the specification explains, by reference to
 the end plate depicted as having a flat exterior surface in
 Figs. 7 and 8, that the pile tip converts rotational torque
 into a downward force applied to the soil by the surface of
 the end plate in a way that minimizes “disturbance to the
 soil surrounding the pile,” such that the “surrounding soil
 [is] packed tighter and therefore provide[s] a more solid
 support for the pile [], leading to greater ultimate load ca-
 pacities.” Id. at col. 7 ll. 28–48.
      Substructure argues that the specification “implicitly
 teaches” that an end plate having a substantially flat sur-
 face perpendicular to the tubular pile could be fully interior
 to another portion of the pile tip. Appellant’s Opening Br.
 at 41–42. In particular, Substructure points to the specifi-
 cation’s disclosure that the pile tip, including the end plate,
 “could be cast as a single unit.” Id. at col. 4 ll. 53–59. To
 the contrary, that the end plate and the remaining portions
 of the pile tip could be cast as an integral unit emphasizes
 that the only relevant surface of the end plate is the exte-
 rior-facing one. The claimed surface cannot be an imagi-
 nary one, yet Substructure’s infringement theory would
 permit Substructure to point to an imaginary slice of a solid
 cast pile tip as the claimed “end plate having a substan-
 tially flat surface.” Under Substructure’s logic, that same
 pile tip would simultaneously infringe claims reciting an
 end plate with a curved surface, simply because one could
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 imagine an interior curved surface within the solid mate-
 rial of the pile tip.
     The prosecution history likewise confirms that the sub-
 stantially flat surface of the end plate does not refer to
 some arbitrary interior surface. The end plate limitation
 was added during prosecution of the ’236 patent to over-
 come rejections based on U.S. Patent Publication No.
 2004/0076479 (Camilleri) and Japanese Patent No. 5-
 106223 (JP ’223). J.A. 432–34. The patent examiner had
 determined that both Camilleri and JP ’223 disclosed “a
 substantially conically shaped pile tip.” J.A. 422. As the
 applicant explained, the amendment was in response to the
 examiner’s “suggest[ion] that a limitation including an end
 plate extending perpendicularly to the longitudinal axis of
 the pile would potentially [overcome] the prior art of rec-
 ord.” J.A. at 432. The applicant’s explanation of the mu-
 tual understanding reached with the patent examiner
 reinforces that the introduction of the end plate, with its
 substantially flat surface, was intended to distinguish the
 “substantially conically shaped pile tip(s)” of the prior art.
      Substructure argues that the JP ’223 and Camilleri
 pile tips have hollow interiors, drawing a distinction be-
 tween pile tips having hollow interiors and solid interiors.
 Effectively, Substructure takes the position that the
 claimed end plate with a substantially flat surface is pre-
 sent in all cone-shaped pile tips that are solid, but not cone-
 shaped pile tips that are hollow. But Substructure fails to
 identify anything in the claims, specification, or prosecu-
 tion history suggesting that the end plate limitation delin-
 eates between solid and hollow pile tips; nor do we see any.
 Moreover, Substructure’s alleged distinction rings hollow
 in light of the applicant’s later assertion during prosecution
 that U.S. Patent No. 108,814 (“Moseley”), which discloses
 a “pile with solid conical point,” J.A. 932 (emphasis added),
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 12                NEVILLE   v. FOUNDATION CONSTRUCTORS, INC.



 “does not appear [to] teach[] an end plate disposed at an
 end of a pile tip having a conical portion.” J.A. 511–12. 3
     For the above reasons, we agree with the district court
 that the claimed “substantially flat surface” of the end
 plate does not refer to “an interior surface facing into the
 rest of the pile tip.” J.A. 15. To the extent that Substruc-
 ture contends there is a substantially flat surface that is
 interior, but facing outward away from the tubular pile, the
 district court correctly noted that Substructure cannot
 manufacture a factual dispute by drawing imaginary lines
 through the accused pile tip to create an “end plate” and
 “substantially flat surface” where none exist. Id. at 16 (ex-
 plaining that Substructure’s expert, Dr. Decker, “has not
 shown that there is indeed a substantially flat surface of
 an end plate somewhere interior to the ‘fish-tail protru-
 sion,’ beyond his own annotations of pictures showing only
 the exterior of the pile tips”). Although Substructure urges
 that, even under the district court’s construction, the “cir-
 cumferential walls” of the accused pile tip are an “exterior”
 surface, Substructure does not contend that the circular
 circumference of the pile tip is a “substantially flat sur-
 face.” Appellant’s Opening Br. at 42–43. Thus, the district
 court correctly determined that the accused ED2M/ED3
 pile tip does not include the claimed “end plate having a
 substantially flat surface.”




      3   Substructure also argues that Foundation waived
 its prosecution history arguments by failing to raise them
 before the district court. But the district court’s claim con-
 struction relied in part on “how Plaintiff used the phrase
 ‘substantially flat surface’ to distinguish the pending
 claims in the application leading to the [’236] Patent from
 certain prior art references.” J.A. 16. We decline Substruc-
 ture’s invitation to disregard the basis for the district
 court’s ruling.
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             II. PROTRUSION FROM THE END PLATE
      We also agree with the district court that the accused
 ED2M/ED3 pile tip does not include “at least one protru-
 sion extending outwardly from the end plate.” ’708 patent
 at claim 1. As the district court explained, “[b]ecause the
 end piece of the ED2M/ED3 pile tip is a single, conically-
 shaped piece, there is not a demarcation of where an ‘end
 plate’ should end and a ‘protrusion’ should begin.” J.A. 17.
 We agree with the district court that the plain meaning of
 the claim, which requires that the “protrusion” is “extend-
 ing outwardly” from the “end plate,” does not extend to a
 structure in which the alleged “end plate” is an indistin-
 guishable part of the alleged “protrusion”; an object cannot
 protrude from itself. “A claim construction that renders as-
 serted claims facially nonsensical cannot be correct.” Bec-
 ton, Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d
 1249, 1255 (Fed. Cir. 2010) (quotation and citation omit-
 ted). While the “protrusion” and “end plate” structures
 must be connected in some fashion, the use of these “two
 terms in a claim requires that they connote different mean-
 ings.” Applied Med. Res. Corp. v. U.S. Surgical Corp., 448
 F.3d 1324, 1333 n.3 (Fed. Cir. 2006). Under Substructure’s
 view, there is no meaningful difference between the “pro-
 trusion” and “end plate,” since any object could be arbitrar-
 ily partitioned into a portion labeled as an “end plate” and
 a remaining “protrusion.”
     Nothing in the specification remotely suggests that,
 contrary to the plain meaning of a “protrusion” and “ex-
 tending outwardly,” the protrusion could be an indistin-
 guishable part of the end plate from which it protrudes.
 The only structures in the specification that could be de-
 scribed as protruding from an end plate are distinct from
 any “end plate” consistent with the plain meaning of the
 term. See ’708 patent at Fig. 1 (depicting point shaft 17
 and cutter teeth 18 extending from the flat surface of end
 plate 19), Fig. 4 (depicting cutter teeth 48 extending from
 end plate 49), Fig. 4A, Fig. 5; see also id. at col. 6 ll. 2–6
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 14                NEVILLE   v. FOUNDATION CONSTRUCTORS, INC.



 (describing Fig. 4A as illustrating “an extended shaft thin-
 ner in diameter than the end plate 49 and extending out
 axially from the end plate 49 in place of a point shaft”).
      Substructure argues that the specification’s disclosure
 that the pile tip “could be cast as a single unit” supports its
 reading of the claimed “protrusion” and “end plate.” Id. at
 col. 4 ll. 53–59. But regardless of whether the joint between
 the end plate and the protrusion is a weld or a seamless
 transition made by casting the two structures together,
 that does not expand the plain meaning of the claim, which
 continues to require a “protrusion extending outwardly
 from the end plate.” Id. at claim 1. Thus, the district court
 correctly ruled that the “single, conically-shaped” end piece
 of the accused pile tips does not meet the claimed “protru-
 sion extending outwardly from the end plate.” J.A. 17.
                         CONCLUSION
     We have considered Substructure’s remaining argu-
 ments and find them unpersuasive. For the reasons stated
 above, we affirm the district court’s claim constructions
 and ruling at summary judgment of noninfringement as to
 the ED2M/ED3 pile tip.
                         AFFIRMED
