       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 MARK N. CHAFFIN,
                  Plaintiff-Appellant

                           v.

 MICHAEL R. BRADEN, LBC MANUFACTURING,
             Defendants-Appellees
            ______________________

                      2016-2572
                ______________________

   Appeal from the United States District Court for the
Southern District of Texas in No. 6:14-cv-00027, Judge
Nancy F. Atlas.
                ______________________

                Decided: June 23, 2017
                ______________________

    LLOYD LEE DAVIS, III, Andrews Kurth Kenyon LLP,
Houston, TX, argued for plaintiff-appellant. Also repre-
sented by DOUGLAS WILLIAM ROMMELMANN, BRIAN KENT
WUNDER.

   MIGUEL VILLARREAL, JR., Gunn, Lee & Cave, PC, San
Antonio, TX, for defendants-appellees.
                  ______________________
2                                        CHAFFIN   v. BRADEN



     Before NEWMAN, CLEVENGER, and WALLACH, Circuit
                      Judges.
CLEVENGER, Circuit Judge.
    Mark Chaffin brought suit against Michael Braden
and LBC Manufacturing (collectively, “LBC”) for alleged
infringement of U.S. Patent No. 6,932,912 (“the ’912
patent”). The district court granted summary judgment of
non-infringement in favor of LBC, ruling that there was
no genuine dispute that the accused products did not
practice all of the limitations of the asserted claims. The
district court subsequently granted LBC’s motion for
“exceptional case” attorneys’ fees under 35 U.S.C. § 285
(2012). Chaffin appeals the district court’s rulings. For
the reasons that follow, we reverse the district court’s
grant of summary judgment. Consequently, we also
vacate the district court’s award of attorneys’ fees and
remand for further proceedings.
         BACKGROUND AND PROCEDURAL HISTORY
     The ’912 patent, titled “Wastewater Treatment Sys-
tem for Residential Septic Systems,” relates to the treat-
ment and disposal of sewage for residential or commercial
settings. The most important aspect of the invention, as
it relates to this appeal, is the mechanism for treating
wastewater with chlorine disinfectant, prior to its dispos-
al. Prior art septic systems oftentimes used a solid tablet
of a chlorine compound, which would dissolve in the
wastewater as it flowed over the tablet. ’912 patent col. 1,
ll. 45–53.
     In contrast, the ’912 patent describes a system where-
in liquid chlorine is housed in its own canister and is
consistently supplied to the flowing wastewater using a
fluid mechanics principle known as the “venturi effect.”
In essence, when a fluid flows through a constricted space
(e.g., when the diameter of a pipe decreases), the fluid’s
velocity necessarily increases, resulting in a correspond-
CHAFFIN   v. BRADEN                                      3



ing drop in fluid pressure. The constriction that causes
this physical effect is known as a “venturi.” The ’912
patent explains its use of the venturi effect as follows:
   The flow of wastewater through the venturi (re-
   strictor disc) develops a significant drop in pres-
   sure in the venturi chamber, which is less than
   atmospheric pressure, allowing the atmospheric
   pressure to push chlorine solution from the stor-
   age canister, through the filter and orifice assem-
   bly, the supply tubing, and into the flowing
   treated effluent stream. The layman term for this
   phenomenon is referred to as “suction.”
’912 patent col. 2, ll. 10–17. As the wastewater circulates
through the venturi chamber, it maintains a lower-
pressure environment—chlorine flows from its higher-
pressure canister to the venturi, where it mixes with and
disinfects the circulating wastewater.
    Each of the asserted claims (claims 7, 20–22, 24) in-
corporates this general concept. For example, claim 7
recites:
   A wastewater treatment system for septic sys-
   tems, comprising:
       a storage-mixing tank having an inlet for
       receiving sewage effluent from a source;
       a pump located within said storage-mixing
       tank and having an inlet opening and a
       pump discharge in said storage-mixing
       tank;
       a recirculation pipe within said storage-
       mixing tank receiving sewage effluent
       from said pump discharge and having a
       terminal end located within said storage-
       mixing tank and defining a recirculation
       dis-charge opening;
4                                       CHAFFIN   v. BRADEN



       a chlorine supply canister having an in-
       ternal volume adapted to contain a supply
       of chlorine; and
       a venturi chamber in communication with
       said recirculation pipe;
       a chlorine supply tube having a first end
       and a second end, said tube first end in
       communication with said venturi chamber
       and said tube second end in constant fluid
       communication with substantially the en-
       tire contained chlorine supply in said in-
       ternal volume of said chlorine supply
       canister,
    wherein as recirculating pumped sewage effluent
    flows through said venturi chamber, chlorine from
    said internal volume of said supply canister is
    continuously drawn into said venturi chamber and
    into said recirculation pipe.
’912 patent, claim 7 (emphasis added). Critical to this
appeal is the meaning of “continuously drawn,” which also
appears, with different phrasing, in the additional inde-
pendent claims 20 and 22. See id. claim 20 (“A method for
treating sewage effluent . . . , the method comprising the
steps of: . . . pumping sewage effluent though a venturi
chamber in communication with the recirculation pipe
and developing a suction to continuously draw chlo-
rine . . . .” (emphasis added)); claim 22 (“A wastewater
treatment system for septic systems, comprising: . . . a
venturi chamber . . . , wherein pumped sewage effluent
flowing through said venturi chamber creates a suction
continuously drawing chlorine . . . .” (emphasis added)).
    Chaffin and LBC are competitors in the wastewater
treatment industry. On February 24, 2014, Chaffin,
through his counsel, sent a cease-and-desist letter to LBC
demanding that it stop selling all products infringing the
CHAFFIN   v. BRADEN                                     5



’921 patent, in addition to a number of other conditions.
Chaffin asserted that he had tested LBC’s LBC500 prod-
uct and had confirmed it to infringe the ’921 patent’s
claims.    The letter’s demands were styled “NON-
NEGOTIABLE.” Joint Appendix at 1904. LBC refused
Chaffin’s terms. Consequently, Chaffin filed his patent
infringement complaint in the Southern District of Texas
on April 16, 2014. Chaffin filed an amended complaint on
November 19, 2014, adding allegations of false marking;
unfair competition and false advertising; and tortious
interference with prospective relations. Following discov-
ery, however, Chaffin ultimately dropped these additional
claims, leaving only the claim for patent infringement at
issue.
    The district court conducted a Markman hearing on
September 29, 2015, and issued its claim construction
order on October 1, 2015. None of the terms at issue in
the district court’s order are disputed on appeal, and the
parties did not seek the court’s construction of “continu-
ously draw.”
    The parties then filed a series of summary judgment
motions, including LBC’s motion for summary judgment
of non-infringement. In its motion, LBC argued that the
claim element concerning “continuously drawing” chlorine
requires a continuous flow of chlorine from the supply
container to the venturi chamber. LBC maintained that
the undisputed evidence showed that the accused prod-
ucts did not demonstrate continuous flow but, rather,
“intermittent” and “broken” flow, with “identifiable
breaks”—i.e., the flow is discontinuous. LBC SJ of Non-
Infringement Brief at 15–16.
    In response, Chaffin rejected LBC’s interpretation of
“continuously draw.” Chaffin argued that a plain reading
of the claim language does not require an unbroken
stream or flow of chlorine—instead, the claims only
require that chlorine be continuously drawn. Since there
6                                        CHAFFIN   v. BRADEN



was evidence showing that the volume of chlorine in the
accused products was constantly increasing as the
wastewater circulated, Chaffin explained that the chlo-
rine must be “continuously drawn” in the LBC systems.
Regardless of whether there are breaks in the flow of
chlorine, Mr. Chaffin argued that “continuously drawing a
mixture of chlorine with air still amounts to continuously
drawing chlorine.” Chaffin SJ Opposition Brief at 4.
    The district court granted LBC’s motion for summary
judgment of non-infringement. Without addressing the
parties’ apparent disagreement regarding the proper
reading of “continuously draw,” the district court implicit-
ly adopted LBC’s view, holding that, “[a]t times, only air
is drawn into the venturi chamber and, as a result, there
is an interruption in the drawing of chlorine. . . . An
interrupted draw of chlorine is not a continuous draw of
chlorine.” Joint Appendix at 7–8. Because the undisput-
ed evidence showed “periods of time where only air, with
no chlorine, is being drawn from the supply canister,” the
district court ruled for LBC. Id. at 9.
    Following the district court’s decision, Chaffin filed a
motion for clarification and reconsideration. Chaffin
explained that, even though the parties never requested a
construction for the terms “continuously drawn,” “contin-
uously draw,” or “continuously drawing,” the court was
nonetheless obligated to provide a construction in light of
the disagreement that manifested itself during the course
of summary judgment proceedings.           Citing intrinsic
evidence from the specification and prosecution history, in
addition to dictionary definitions, Chaffin argued the
correct plain and ordinary meaning of “continuously
draw” was “continuously move by suction.” Moreover,
Chaffin maintained that the district court erred by adopt-
ing LBC’s mistaken position, which required an “uninter-
rupted stream” of chlorine.
CHAFFIN   v. BRADEN                                         7



    The district court found that Chaffin had waived any
right to propose a particular claim construction for “con-
tinuously draw” by “failing to identify it as a disputed
term and failing to seek construction during the Mark-
man briefing and hearing.” Joint Appendix at 16. None-
theless, setting aside the issue of waiver, the district court
concluded the plain and ordinary meaning of the term is
“pull without interruption.” Joint Appendix at 16–17.
Applying this construction, the district court maintained
its original judgment, repeating that, “[w]hen only air is
being drawn from the chlorine canister into the venturi
chamber, the drawing of chlorine is interrupted and,
therefore, not continuous.” Id. at 17.
     On motion from LBC, the district court subsequently
ordered that Chaffin pay LBC’s attorneys’ fees, finding
the case to be exceptional under 35 U.S.C. § 285. The
district court found the case exceptional “both with re-
spect to the substantive weakness of [Chaffin’s] position
on infringement and the unreasonable manner in which
[Chaffin] has handled this dispute.” Id. at 27. Specifical-
ly, as to the substantive weakness of Chaffin’s case, the
district court noted that he was aware from the outset
that the accused products “did not continuously draw
chlorine”; nonetheless, he “persisted in asserting merit-
less positions for over two years.” Id. And regarding
Chaffin’s unreasonable handling of the litigation, the
district court pointed to the harshly worded pre-suit
demand letter; Chaffin’s unfounded allegations of false
marking, unfair competition, and tortious interference,
which were ultimately voluntarily dropped; and Chaffin’s
filing of a substantively weak motion for reconsideration.
    Chaffin appealed to this court.
                      STANDARD OF REVIEW
    The “ultimate question of the proper construction” of a
patent is a question of law, which we review de novo.
Teva Pharm. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335,
8                                         CHAFFIN   v. BRADEN



1339 (Fed. Cir. 2015). “[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 determination will amount solely to a
determination of law.” Id.
    Applying Fifth Circuit law, we review a grant of
summary judgment de novo. Ineos USA LLC v. Berry
Plastics Corp., 783 F.3d 865, 868 (Fed. Cir. 2015) (citing
Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th
Cir. 2007); see also Profectus Tech. LLC v. Huawei Techs.
Co., 823 F.3d 1375, 1379 (Fed. Cir. 2016) (“We review a
grant of summary judgment in accordance with the law of
the regional circuit.”). Summary judgment is appropriate
when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
    “[A]n appellate court should apply an abuse-of-
discretion standard in reviewing all aspects of a district
court’s § 285 determination.” Highmark Inc. v. Allcare
Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1749 (2014).
“The abuse-of-discretion standard does not preclude an
appellate court’s correction of a district court’s legal or
factual error: ‘A district court would necessarily abuse its
discretion if it based its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evi-
dence.’ ” Id. at 1748 n.2 (quoting Cooter & Gell v. Hart-
marx Corp., 496 U.S. 384, 405 (1990)).
                        DISCUSSION
    On appeal Chaffin contends that the district court ap-
plied an incorrect construction for the “continuously
draw” terms. As a result, Chaffin argues the district
court erred in granting LBC’s motion for summary judg-
ment of non-infringement. Alternatively, Chaffin also
argues that, even if summary judgment were appropriate,
the district court abused its discretion in awarding attor-
neys’ fees because the case is not exceptional.
CHAFFIN   v. BRADEN                                       9



                             I
    Chaffin argues the district court reached the incorrect
plain and ordinary meaning construction of “continuously
draw,” which led to its mistaken grant of summary judg-
ment. Recognizing that the parties did not request a
formal construction during Markman proceedings, Chaf-
fin nevertheless maintains that the district court, faced
with the parties’ disagreement, should have conducted a
full claim construction analysis. Chaffin contends that
the proper plain and ordinary meaning of “continuously
drawn,” in light of the intrinsic evidence, is “continuously
move by suction.”
     We first address the question of whether the doctrine
of waiver precludes Chaffin from asserting a construction
not raised during the Markman phase. We hold that it
does not. In its order regarding Chaffin’s motion for
clarification and reconsideration, the district court ruled
that Chaffin had waived its claim construction position.
The district court nonetheless addressed, in the alterna-
tive, the construction of “continuously draw,” construing
the term to mean “pull without interruption.” Joint
Appendix at 16–17. While “[a]n argument made for the
first time in a motion for reconsideration comes too late
and is ordinarily deemed waived,” Golden Bridge Tech.,
Inc. v. Apple Inc., 758 F. 3d 1362, 1369 (Fed. Cir. 2014),
the “general rule” is that a party does not waive and “may
raise on appeal any issue that was raised or actually
decided below.” Lifestyle Enter., Inc. v. United States, 751
F.3d 1371, 1377 (Fed. Cir. 2014) (citing United States v.
Williams, 504 U.S. 36, 41 (1992)). The district court
reached the merits of and “passed upon” Chaffin’s claim
construction argument. See Williams, 504 U.S. at 41.
Chaffin is entitled to raise the issue for review on appeal.
See id.
    As explained, the court ultimately did provide its own
construction of “continuously draw,” ruling that it meant
10                                         CHAFFIN   v. BRADEN



“pull without interruption.” From the language alone, the
district court’s construction does not seem to differ mean-
ingfully from Chaffin’s own proposal: “continuously move
by suction.” Yet it is clear the district court implicitly
adopted and imported LBC’s view into its construction,
emphasizing whether the flow of chlorine into the venturi
was constant and uninterrupted. Joint Appendix at 17
(“When only air is being drawn from the chlorine canister
into the venturi chamber, the drawing of chlorine is
interrupted and, therefore, not continuous.”). Chaffin’s
construction, however, focuses on the force of suction—
acting on the chlorine—being continuous and constant.
Chaffin Opening Brief at 18 (“The verb ‘draw’ means ‘to
cause to move after or toward one by applying continuous
force;’ or ‘to cause to move in a given direction or to a
given position.’ In this case, the force applied on the
chlorine is suction . . . .” (internal citation omitted)); see
also id. at 23 (“The nature of the chlorine stream [in the
accused products] is of no consequence. The drawing (or
sucking) is still continuous . . . .”).
    The prosecution history cited by Chaffin is most illu-
minating. See Phillips v. AWH Corp., 415 F.3d 1303, 1317
(Fed. Cir. 2005) (“The prosecution history, which we have
designated as part of the ‘intrinsic evidence,’ consists of
the complete record of the proceedings before the PTO and
includes the prior art cited during the examination of the
patent.”). “[T]he prosecution history can often inform the
meaning of the claim language by demonstrating how the
inventor understood the invention . . . .” Id.
    During prosecution, the examiner issued a 35 U.S.C.
§ 102(e) rejection to Chaffin, in light of a U.S. Patent No.
6,627,071 (“the ’071 patent”), invented by Braden. The
rejection stated that the ’071 patent already taught a
system comprising each of the structural elements of
claim 7 (among other claims). In his effort to traverse the
rejection, Chaffin added the language containing the
disputed term, now present in the issued claim 7: “where-
CHAFFIN   v. BRADEN                                          11



in as recirculating pumped sewage effluent flows through
said venturi chamber, chlorine from said internal volume
of said supply canister is continuously drawn into said
venturi chamber and into said recirculation pipe.” Joint
Appendix at 297. Chaffin argued:
   [The ’071 patent] does not disclose a system in
   which chlorine is continuously drawn into the
   venturi chamber and the recirculation pipe as the
   sewage effluent flows through the venturi cham-
   ber. Rather, [the ’071 patent] discloses a chlorina-
   tor for dispensing a set volume of chlorine,
   regardless of how long the pump runs and recircu-
   lates   the    sewage     effluent. . . . [A]pplicant’s
   claimed invention siphons chlorine continuously
   as the pump flows the sewage effluent through
   the venturi chamber, whereas [the ’071 patent]
   draws the entire volume of chlorine (typically in
   under a minute) and then ceases to supply chlo-
   rine and instead supplies air.
Joint Appendix at 306–07.
     Ultimately, the examiner maintained its rejection,
and Chaffin amended the claims in other ways. But what
is clear from the statements in the prosecution history is
that Chaffin added the “continuously drawn” language to
distinguish the claimed invention from a particular piece
of prior art—whereas the system described in the ’071
patent supplied chlorine quickly and then “cease[d] to
supply additional disinfectant fluid,” the ’912 patent’s
claimed invention draws chlorine “continuously”: “as the
pump flows the sewage effluent through the venturi
chamber.” See id.
    In other words, during prosecution, Chaffin equated
“continuously draw” with the ongoing supply of chlorine to
the circulating wastewater. As the pump continues to
operate and wastewater continues to flow through the
venturi, chlorine continues to be supplied—to be “drawn”
12                                        CHAFFIN   v. BRADEN



through suction. The period of chlorine dispensing is
equal to the period of wastewater circulation. It is this
relationship that must be captured in the construction.
Nowhere in the intrinsic record is there ever mention of a
constant, uninterrupted flow or stream of chlorine. We
thus hold that the terms “continuously [draw; drawn;
drawing]” means “[dispense; dispensed; dispensing] in an
ongoing fashion, as long as sewage effluent flows through
the venturi chamber.” But the flow of chlorine need not be
uniform or uninterrupted.
    Because the district court’s grant of summary judg-
ment in favor of LBC was grounded in the mistaken view
that the asserted claims required an uninterrupted
stream of chlorine entering the venturi chamber, we
reverse the district court’s judgment and remand for
additional infringement proceedings.
                             II
     “The court in exceptional cases may award reasona-
ble attorney fees to the prevailing party.” 35 U.S.C. § 285.
“To be a ‘prevailing party,’ our precedent requires that the
party have received at least some relief on the merits.”
Shum v. Intel Corp., 629 F.3d 1360, 1367 (Fed. Cir. 2010).
Because we reverse the grant of summary judgment and
remand for further proceedings, LBC is no longer the
“prevailing party.”
    Therefore, we vacate the district court’s award of at-
torneys’ fees. We need not reach the question of whether
the district court abused its discretion in finding this case
to be “exceptional.”
                       CONCLUSION
     For the foregoing reasons, we reverse the district
court’s grant of summary judgment in favor of LBC and
vacate the award of attorneys’ fees. We remand the case
for further proceedings, consistent with our holding.
CHAFFIN   v. BRADEN                   13



 REVERSED-IN-PART, VACATED-IN-PART, AND
               REMANDED
                      COSTS
   No costs.
