       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               WALTER J. ALBECKER,
                 Plaintiff-Appellant,

                           v.

       CONTOUR PRODUCTS, INC. (FL), AND
        CONTOUR PRODUCTS, INC. (NC),
              Defendants-Appellees.
             ______________________

                      2014-1318
                ______________________

   Appeal from the United States District Court for the
Northern District of Illinois in No. 1:09-cv-00631, Judge
Edmond E. Chang.
                ______________________

                Decided: August 7, 2014
                ______________________

   WALTER J. ALBECKER, of Chicago, Illinois, pro se.

    J. MARK WILSON, Moore & Van Allen PLLC, of Char-
lotte, North Carolina, for defendants-appellees.
                 ______________________

   Before PROST, Chief Judge, NEWMAN and TARANTO,
                    Circuit Judges.
2                  ALBECKER   v. CONTOUR PRODUCTS, INC. (FL)



PER CURIAM.
    Pro se appellant Walter J. Albecker appeals from the
summary judgment of the United States District Court for
the Northern District of Illinois holding that certain
chairs made by Contour Products (“Accused Products”) do
not infringe Albecker’s U.S. Patent No. 5,836,653 (“’653
patent”). Specifically, the district court held that, as a
matter of law, the Accused Product’s one-piece construc-
tion does not satisfy the limitations of the ’653 patent.
    We conclude that the district court correctly construed
the claims and properly granted summary judgment of
noninfringement. Accordingly, we affirm.
                       BACKGROUND
     Albecker is the sole owner of the ’653 patent, which is
directed to a backrest/leisure chair. In 2009, Albecker
filed a complaint against Contour Products, Inc. (FL) and
Contour Products, Inc. (NC), (collectively, “Contour”)
alleging that certain products sold by Contour infringed
upon numerous claims of the ’653 patent. Independent
claim 10, representative of those claims, covers a
backrest/leisure chair comprising a face, a base, a back,
and “a top cushion having an upper and lower portion
secured to the face of the generally wedge shaped founda-
tion.” ’653 patent col. 18 ll. 14-41 (emphasis added).
    After a claim construction hearing, the district court
held that the term “secured to” means “attached using
attachment means, such as an adhesive or mechanical
type fasteners that might be used with material that is
selected for the top cushion and foundation.” Memoran-
dum Opinion and Order at 13, Albecker v. Contour Prods.,
Inc., 1:09-cv-00631, ECF No. 54 (N.D. Ill. May 3, 2010)
(“Claim Construction Order”). As articulated by the
district court, “That construction resolved the principal
dispute in this case: whether Claim 10 is infringed by a
one-piece chair with a top cushion that is ‘integral and
ALBECKER   v. CONTOUR PRODUCTS, INC. (FL)                 3



continuous’ with the foundation (as Albecker argued), or
infringed only by a two-piece chair whose top cushion is
physically attached or ‘secured to’ the foundation (as
Contour argued).” Order at 2, Albecker v. Contour Prods.,
Inc., 1:09-cv-00631, ECF No. 135 (N.D. Ill. Jan. 6, 2014)
(“Summ. J. Order”).
    Subsequently, Albecker moved the district court to
reconsider its claim construction. The district court
denied that motion and confirmed its prior construction.
Contour then moved for summary judgment of nonin-
fringement, and the district court granted the motion
holding that no reasonable jury could find that the Ac-
cused Products—one-piece chairs—infringe the ’653
patent.
   Albecker timely appealed. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(1).
                         ANALYSIS
    Albecker argues that the district court erred in con-
struing the claims and, consequently, in granting sum-
mary judgment of noninfringement.              Specifically,
Albecker alleges that the district court erred in its claim
construction by, in effect, nullifying a valid dependent
claim.
    Claim construction is a question of law that we review
without deference. Lighting Ballast Control LLC v.
Philips Elecs. N. Am. Corp., 744 F.3d 1272, 1276–77 (Fed.
Cir. 2014) (en banc); Cybor Corp. v. FAS Techs., Inc., 138
F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). In construing
claims, this court relies primarily on the claim language,
the specification, and the prosecution history. Phillips v.
AWH Corp., 415 F.3d 1303, 1314–17 (Fed. Cir. 2005) (en
banc). A court may seek guidance from extrinsic evidence
such as expert testimony, dictionaries, and treatises. Id.
at 1317–18.
4                   ALBECKER     v. CONTOUR PRODUCTS, INC. (FL)



    Albecker’s main argument is that the district court
erred in its construction of “secured to” “by ignoring the
most important element in the present case – Claim 11.”
Appellant’s Br. 3.
Claim 11 states:
        11. The backrest/leisure chair of claim 10
    wherein the top cushion is integral and continu-
    ous with the generally wedge shaped foundation.
’653 patent col. 18 ll. 42–44.
     As an initial matter, the parties spend considerable
effort arguing about whether claim 11, having been
withdrawn during prosecution in a species election, was
properly reinstated and allowed. Ultimately, though we
need not wade into that dispute. Claim 11 was issued,
survived reexamination, and was not attacked for validity
in the appealed summary judgment. Indeed, in granting
summary judgment, the district court appeared to accept,
at least for the purposes of that opinion, the validity of
claim 11. It stated, “Contour’s motion does not assert the
affirmative defense that Claim 11 is invalid, not even in
the alternative.” Summ. J. Order at 5. And, “[b]ecause
Contour has moved only for a judgment of noninfringe-
ment on Claim 10, the invalidity of Claim 11 is not dis-
puted here.” Id. at 6. Thus, for this appeal, we will
simply assume claim 11 is valid and may properly inform
claim construction.
    We now turn to the extent it should inform the claim
construction. Albecker’s position is that “if claim 11
depends on claim 10, it is axiomatic that claim 10 is broad
enough to include embodiments that have a top cushion
which is integral and continuous with the foundation.”
Appellant’s Br. 8. This is essentially a claim differentia-
tion argument. And, importantly, “[c]laim differentiation
is a guide, not a rigid rule.” Laitram Corp. v. Rexnord,
Inc., 939 F.2d 1533, 1538 (Fed. Cir. 1991)) (quoting Auto-
ALBECKER   v. CONTOUR PRODUCTS, INC. (FL)                  5



giro Co. of Am. v. United States, 384 F.2d 391, 404 (Ct. Cl.
1967)); see also Seachange Int’l, Inc. v. C–COR, Inc., 413
F.3d 1361, 1369 (Fed. Cir. 2005) (reiterating that claim
differentiation is “not a hard and fast rule and will be
overcome by a contrary construction dictated by the
written description or prosecution history” (citation
omitted)). Thus, our task is to determine if the evidence
supporting the district court’s construction is strong
enough to overcome Albecker’s claim differentiation
argument.
     We turn first to the claims themselves. As the district
court pointed out, “[a]side from its presence in limitation
(c) [of claim 10] and comparable usage in independent
claims 1 and 21, the term ‘secure’ or ‘secured’ is used four
times throughout the ’653 patent claims.” Claim Con-
struction Order at 10. For example, claim 18 recites “a
seat cushion having an attachment means secured to the
lower portion of the foundation,” and claim 20 recites a
“pillow [with] an attachment means to secure it near the
top of the generally wedge shaped foundation.” ’653
patent col. 19 ll. 3–8; col. 19 ll. 13–16 (emphasis added).
We agree with Contour and the district court that in all of
these instances the term is used to refer to the physical
attachment of two separate pieces.
    Turning to the specification, Contour argues that the
specification “consistently use[s] ‘secured to’ and ‘integral
and continuous’ as mutually exclusive alternatives.”
Appellee’s Br. 17. Contour points to the description of the
convex lumbar support that “can be integral and continu-
ous with the foundation, or can be secured to the top of
the lower portion of the foundation as might be the case if
the foundation was made of a rigid material such as
plywood, particle board etc.” ’653 patent col. 6 ll.48–52
(emphasis added). We agree with the district court that
the use of the disjunctive “or” strongly suggests that the
term ‘secured to’ in independent claim 10 cannot also
6                  ALBECKER   v. CONTOUR PRODUCTS, INC. (FL)



mean “integral and continuous.”       Claim Construction
Order at 12.
     We also agree with Contour that the specification uses
variations of the word “secure” to describe two pieces
being attached together using attachment means.” Appel-
lee’s Br. 18. For example, the specification states the
following:
    Unlike the head pillow straps mentioned above,
    this upholstery attachment means 35 or a similar
    means of securing the seat cushion 34 to the foun-
    dation 42 are essential to proper working of the
    [sic] of this embodiment. . . . The seat cushion 34
    is designed to prevent the user from sliding down,
    and needs to be secured so that the user won’t
    slide down and move the seat cushion 34 while he
    or she slides down. . . . The same type of tech-
    nique could be used to close the bottom of the up-
    holstery 30 on the top cushion 26––though it is
    not necessary that both the seat cushion 34 and
    top cushion 26 be secured together in this manner.
    Other methods that would be suitable for attach-
    ing the seat cushion 34 to the foundation 42 or
    upholstery 30 such as straps etc. are known in the
    art related to upholstery.
’653 patent col. 8 ll. 27-61 (emphases added).
     Overall, the specification strongly supports the dis-
trict court’s construction of “secured to.”
    The prosecution history also supports the district
court’s construction. During prosecution the examiner
stated that “[w]hile the [prior art] supports do not show
an overlying cushion member, to have provided such for
additional comfort, would have been an obvious modifica-
tion to one with ordinary skill in the art . . . .” Office
Action, No. 08/492,170 at 3 (Oct. 10, 1996). Contour
argues that this statement indicates that “the USPTO
ALBECKER   v. CONTOUR PRODUCTS, INC. (FL)                 7



examined the ’653 patent application by interpreting the
claimed invention to require two pieces, where one over-
lies the other.” Appellee’s Br. 22. We agree.
    Contour also argues that the examiner’s statements
during reexamination support the conclusion that the
claims do not cover integral and continuous, one-piece
products. In holding that the claimed invention was not
anticipated, the examiner stated that “Johnson fails to
teach a top cushion secured to the face (limitation in
independent claims 1, 10, and 21) because Johnson only
teaches a pillow with a cover.” Notice of Intent to Issue
Ex Parte Reexamination No. 90/010,398 at 3 (Sept. 18,
2009). Similarly, “Smith fails to teach a top cushion
secured to the face (limitation in independent claims 1,
10, and 21) because Smith only teaches a single pillow
structure.” Id. at 4. The examiner’s statements during
reexamination support Contour’s position and the district
court’s construction.
    Accordingly, we hold that the presence of claim 11 is
insufficient to overcome the strong evidence in the claims,
specification, prosecution history, and reexamination
record that the district court’s construction is correct.
    Albecker argues several other points in his informal
briefing. Of these, he spends the most time arguing that
the district court did not recognize the significance of the
“special definition” of “top cushion.” Appellant’s Br. 11.
We also do not understand the significance of this point.
The district court adopted Albecker’s proposed construc-
tion of “top cushion.” Albecker now appears to argue that
the district court somehow applied that construction
incorrectly. But Albecker fails to articulate that supposed
error or how it affects the noninfringement ruling. As
such this argument is unpersuasive, as are his other
remaining arguments.
    Having concluded that the district court’s relevant
construction is correct, we also hold its corresponding
8                  ALBECKER   v. CONTOUR PRODUCTS, INC. (FL)



grant of summary judgment to be correct. Even Albecker
conceded that under the district court’s construction his
infringement claims were “doomed to failure.” Appellee
App. 101.
                      CONCLUSION
    We conclude that the district court did not err in its
claim construction or its grant of summary judgment of
noninfringement. We thus affirm the district court.
                      AFFIRMED
