       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               WUNDAFORMER, LLC,
                 Plaintiff-Appellant

                           v.

   FLEX STUDIOS, INC., FLEX STUDIOS UNION
    SQUARE, LLC, FLEX STUDIOS NOHO, LLC,
              Defendants-Appellees

 J. SIMON, LLC, MMOD7, LLC, WGI GROUP, LLC,
                   Defendants
             ______________________

                      2016-1301
                ______________________

   Appeal from the United States District Court for the
Southern District of New York in No. 1:15-cv-04802-JSR,
Judge Jed S. Rakoff.
                ______________________

              Decided: February 16, 2017
               ______________________

    MARTIN BADER, Sheppard, Mullin, Richter & Hamp-
ton LLP, San Diego, CA, argued for plaintiff-appellant.
Also represented by MICHAEL MURPHY, WILLIAM JOSEPH
BLONIGAN.
2                   WUNDAFORMER, LLC    v. FLEX STUDIOS, INC.



    SCOTT D. BARNETT, Troutman Sanders LLP, Chicago,
IL, argued for defendants-appellees. Also represented by
JOSHUA A. BERMAN, TIMOTHY P. HEATON, JAMES M.
BOLLINGER, New York, NY.
                 ______________________

    Before MOORE, REYNA, and TARANTO, Circuit Judges.
REYNA, Circuit Judge.
     WundaFormer, LLC sued defendant-appellees (“Flex
Studios”) in district court for infringement of its patented
apparatus for a Pilates reformer. Following claim con-
struction, the parties jointly stipulated to non-
infringement. WundaFormer appeals the district court’s
construction of the terms “stowed” and “transverse end
comprising . . . a transverse member.” Because the dis-
trict court incorrectly construed both terms, we reverse
and remand for further proceedings consistent with this
opinion.
                        BACKGROUND
                 A. Patented Technology
    Pilates is a form of exercise commonly performed on a
specialized type of equipment called a reformer. At its
most basic, a reformer is comprised of a carriage that
slides along rails mounted to a stationary frame. Over
the past century, the reformer has evolved to incorporate
additional components, such as platforms, chairs, bars,
handles, and benches. Initially, these components were
separate from the reformer and needed to be installed or
uninstalled depending on which exercise a user was
performing.     The patent at issue, U.S. Patent No.
8,602,953 (“’953 patent”), discloses a reformer with one or
more built-in components, referred to as “ergonomic
purchases,” that need not be removed between exercises.
   As described in the ’953 patent, an ergonomic pur-
chase is essentially a stable surface that can be used for
WUNDAFORMER, LLC    v. FLEX STUDIOS, INC.                  3



leverage while exercising. The written description ex-
plains that an ergonomic purchase can take “deployed”
and “stowed” positions:
    The improvement generally comprises an ergo-
    nomic purchase that is integral to the reformer
    and that is translatable into both deployed and
    stowed positions. With the purchase translated to
    the stowed position the reformer is collapsed into
    a smaller overall volume for spatial efficiency for
    storage, transport, or during periods of nonuse.
    With the purchase translated into the deployed
    position a user mounted on the carriage may
    reach the purchase with a part of her body to sta-
    bilize herself during exercise.
’953 patent at col. 2 ll. 33−41.
    The specification describes several different ergonom-
ic purchases, including a bench, a ballet bar, handles, and
a jump board. This case involves an embodiment with a
bench that can be moved into deployed and stowed posi-
tions:
    In one embodiment, a conventional reformer de-
    sign is enhanced with an integral ergonomic pur-
    chase translatable into deployed and stowed
    positions, wherein the ergonomic purchase com-
    prises a rotatable bench rotatably confined to one
    end of the reformer. The rotatable bench includes
    a first planar surface, and a second planar surface
    forming a right angle with respect to the first pla-
    nar surface. The reformer is configured so that
    when the bench is translated by rotation to the
    stowed position, the first planar surface lies sub-
    stantially within a plane parallel to the carriage
    at a first elevation. The reformer is further con-
    figured so that when the bench is translated by
    rotation to the deployed position, the first planar
    surface lies substantially within a plane normal to
4                    WUNDAFORMER, LLC   v. FLEX STUDIOS, INC.



    the carriage and the second planar surface lies
    substantially in a plane parallel to the carriage at
    a second elevation. Therefore the bench when
    stowed provides a seat at the carriage level. When
    deployed, the bench may provide a seat at a level
    other than carriage level and a push-off surface
    that faces the carriage.
’953 patent at col. 2 ll. 44−61.




Id. at FIGs 5, 10.
    The patent’s written description defines the terms
“deployed” and “stowed.” As emphasized below, the
definition of deployed includes an intent-to-use limitation:
    The term “deployed” as used herein means a state
    or position of a component of the reformer in
    which the component is intended to be used by a
    user exercising by means of the reformer. For ex-
    ample, an ergonomic purchase in a deployed con-
    dition has been translated, or moved and possibly
WUNDAFORMER, LLC      v. FLEX STUDIOS, INC.                 5



    fixed into a position on the reformer, that allows it
    to be reached for purchase by a user mounted ex-
    ercising with the aid of the reformer. Contempo-
    rary dictionary definitions of the term deployed
    used in this mechanical sense may apply equally
    to the use of the term throughout this disclosure.
’953 patent at col. 5 ll. 46−55. The definition of stowed
does not include an intent-to-use limitation. Instead, the
written description provides that a component in the
stowed position cannot be reached for the same purchase
as when deployed:
    The term “stowed” as used herein means a state
    or position of a component of the reformer which
    collapses the overall volume of the reformer to a
    minimum, insofar as the volume may be affected
    by the component. In other words, it is the posi-
    tion of the component that will allow the reformer
    to be packaged within the smallest possible con-
    tainer, or the position of the component which
    renders the reformer most suitable for storage ac-
    cording to the manufacturer. A component trans-
    lated to a stowed position, in practical terms, is no
    longer reachable for the same purchase achieved
    by a user in the position on the reformer from
    which she gained the purchase when the compo-
    nent was deployed. Contemporary dictionary def-
    initions of the term stowed used in this
    mechanical sense may apply equally to the use of
    the term throughout this disclosure.
Id. at col. 5 l. 56−col. 6 l. 3.
                      B. Proceedings Below
    WundaFormer alleged that Flex Studios infringed in-
dependent claims 11 and 15 of the ’953 patent. Claim 11
describes a reformer comprising a carriage that is at-
tached by springs to a rectangular frame. Attached to the
6                   WUNDAFORMER, LLC    v. FLEX STUDIOS, INC.



frame is an ergonomic purchase that can be moved into
stowed and deployed positions. The full claim language
follows, with emphasis added to designate contested
terms:
    11. A reformer comprising:
        a rectangular frame having two trans-
        verse ends connected by longitudinal rails,
        each transverse end comprising a pair of
        bases and a transverse member connected
        therebetween;
        a planar carriage attached to the frame by
        springs, the carriage moveable horizontal-
        ly against force of the springs by means of
        rollers along the longitudinal rails; and
        an ergonomic purchase confined to the
        frame and translatable into a stowed posi-
        tion for spatial efficiency, and into a de-
        ployed position that enables a user
        mounted on the carriage to reach a pur-
        chase;
        wherein a transverse end arrests the er-
        gonomic purchase in the stowed or de-
        ployed position.
’953 patent at col. 14 ll. 3−18 (emphasis added).
    Claim 15 also describes a reformer comprising a car-
riage that is attached to a rectangular frame. At least one
ergonomic purchase is attached to rectangular frame, and
the purchase can be moved into stowed and deployed
positions. The full claim language follows, with emphasis
added to designate contested terms:
    15. A reformer comprising:
        a rectangular frame and a planar carriage
        attached to the frame by springs, the
WUNDAFORMER, LLC    v. FLEX STUDIOS, INC.                   7



        frame having a transverse end comprising
        a base pair and connecting transverse
        member, the carriage moveable horizontal-
        ly against force of the springs by means of
        rollers along the longitudinal rails mount-
        ed to the frame;
        one or more ergonomic purchases integral
        to the reformer; and
        means for translating the ergonomic pur-
        chase into deployed and stowed positions
        so that the ergonomic purchase is arrested
        by the transverse end in the deployed or
        stowed position.
Id. at col. 14 ll. 32−44 (emphasis added).
      As relevant here, the parties disputed the construc-
tion of the terms “stowed” and “transverse end comprising
. . . a transverse member.”
         1. District Court construction of “stowed”
    The district court construed stowed to mean: “an er-
gonomic purchase movable into a position in which (i) the
ergonomic purchase is not intended for use by a user
exercising by means of the reformer and (ii) the overall
volume is collapsed to a minimum.” The second limita-
tion, limitation (ii), is not in dispute. To justify the first
limitation, the district court reasoned that stowed and
deployed are mutually exclusive alternatives. Therefore,
stowed must be construed to contrast the intent-to-use
requirement found in the definition of deployed. 1




    1   See WundaFormer, LLC v. Flex Studios, Inc., No.
15-cv-4802 (JSR), 2015 WL 6437401, at *2−4 (S.D.N.Y.
Oct. 15, 2015).
8                        WUNDAFORMER, LLC   v. FLEX STUDIOS, INC.



    The district court declined to adopt Flex Studios’ pro-
posed construction of stowed, which would require that a
stowed ergonomic purchase is “not available . . . for use by
a user.” In doing so, the district court relied on intrinsic
evidence, noting that the written description defines
stowed to require only that a purchase in the stowed
position is no longer available for the same purchase as
when deployed. The district court also noted that the
written description describes the bench being used as a
seat when stowed. J.A. 8−9. Then, the district court
referenced extrinsic evidence showing that the bench is
used for exercise in the stowed position:
      [W]hile the Court need not consider extrinsic evi-
      dence to reach its construction, nonetheless, to the
      extent that the term could be considered ambigu-
      ous, the Court notes that the inventor and a Pila-
      tes instructor have testified that the rotatable
      bench component is, in fact, used for exercise in
      practice when in the “stowed” position, which is
      inconsistent with defendants’ proposed construc-
      tion.
Id.
          2. District Court construction of “transverse end
                comprising . . . a transverse member”
    Claims 11 and 15 both include a “transverse end com-
prising . . . a transverse member” limitation. 2 The district



      2 Specifically, claim 11 provides for “a rectangular
frame having two transverse ends connected by longitudi-
nal rails, each transverse end comprising a pair of bases
and a transverse member connected therebetween.” ’953
patent at col. 14. ll. 4−7. Claim 15 provides for “a rectan-
gular frame and a planar carriage attached to the frame
by springs, the frame having a transverse end comprising
WUNDAFORMER, LLC   v. FLEX STUDIOS, INC.                  9



court construed these terms to require that each trans-
verse end could have only one transverse member, which
would take the form of a horizontal crossbar: “an end
portion of the reformer frame comprised of a pair of bases
to support the frame of the reformer connected by a
horizontal crossbar.” 3 WundaFormer argued that these
terms should be construed so that the transverse ends are
connected by at least one horizontal structure. The court
disagreed, finding nothing in the specification that con-
templates more than one connecting transverse member.
    Based on the district court’s claim construction, the
parties jointly stipulated to non-infringement. Following
the joint stipulation of non-infringement, the district
court granted Flex Studios’ motion to dismiss. Wunda-
former appeals. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(1).
                   STANDARD OF REVIEW
    Where the district court’s claim construction relies on
only intrinsic evidence, the construction is a legal deter-
mination reviewed de novo. Teva Pharm. USA, Inc. v.
Sandoz, Inc., 135 S.Ct. 831, 840−42, (2015). A district
court’s subsidiary fact findings about extrinsic evidence
are reviewed for clear error. Id. Here, the district court’s
claim construction mentioned a subsidiary fact finding
based on extrinsic evidence, but the district court’s con-
struction did not rely on that extrinsic evidence. There-
fore, our review is de novo.




a base pair and connecting transverse member. Id. at col.
14 ll. 33−36.
    3    See WundaFormer, No. 15-cv-4802 (JSR), 2015
WL 6437401, at *4 (emphasis added).
10                  WUNDAFORMER, LLC   v. FLEX STUDIOS, INC.



                       DISCUSSION
     WundaFormer argues that the district court erred in
its construction of “stowed” and “transverse end compris-
ing . . . a transverse member.” We agree.
    We hold that the district court erred when it con-
strued the term “stowed” to require that “the ergonomic
purchase is not intended for use by a user exercising by
means of the reformer.” First, the written description
defines “stowed” to require only that an ergonomic pur-
chase in its stowed position “collapses the overall volume
of the reformer to a minimum, insofar as the volume may
be affected by the component.” ’953 patent at col. 5 l.
54−col. 6 l. 3. Second, the written description provides
that a stowed component is not available for the same
purchase as when deployed. Id. That implies that a
component in the stowed position may be available for a
different purchase than when deployed. While the specifi-
cation regularly refers to the “stowed” position as one
ideal for storage and transportation, nothing suggests
that a component in its stowed position cannot be used for
exercise.
    To the contrary, one preferred embodiment describes
using the bench as a seat in its stowed and deployed
positions, implying that a user could use that bench as a
seat while exercising with the reformer. Id. at col. 2 ll.
44−61. As the district court noted, this is entirely con-
sistent with the extrinsic evidence that the bench is used
for exercise in its stowed position.
    Even if the deployed and stowed positions are mutual-
ly exclusive, it does not follow that a component can only
be intended for use during exercise in the deployed posi-
tion. The mutual exclusivity of two positions does not
require that those two positions be exact opposites in
every respect. Instead, it requires only a single incompat-
ible characteristic. Therefore, the district court erred
when it construed stowed to mean that “the ergonomic
WUNDAFORMER, LLC   v. FLEX STUDIOS, INC.               11



purchase is not intended for use by a user exercising by
means of the reformer.” 4
    The district court also incorrectly construed the
“transverse end comprising . . . a transverse member”
limitations as allowing only one transverse member. The
term “comprising” indicates the claim is open-ended and
does not exclude additional, unrecited elements. See e.g.,
Gillette Co. v. Energizer Holdings Inc., 405 F.3d 1367,
1371−73 (Fed. Cir. 2005). The indefinite article “a” is
interpreted to carry the meaning of “one or more.” See
Baldwin Graphic Sys. Inc. v. Siebert, Inc., 512 F.3d 1338,
1342 (Fed. Cir. 2008). Accordingly, the claims themselves
contemplate one or more transverse members. Further,
the specification suggests that “additional transverse
members” may be used to “strengthen the frame” or
“arrest the translation of an ergonomic purchase.” ’953
patent col. 6 ll. 16−21. Absent disavowal of claim scope,
WundaFormer is entitled to the full scope of its claimed
invention. Therefore, the district court erred in adopting
a construction that excludes transverse ends comprising
more than one transverse member.
    For these reasons, we reverse and remand the district
court’s decision for further proceedings consistent with
this opinion.
            REVERSED AND REMANDED
                          COSTS

   Costs to plaintiff-appellant.




   4    Because the limitation was improperly included in
the construction, we do not reach in this opinion the
propriety of construing structural claims to include an
“intent-to-use” limitation.
