       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

  MICH & MICH TGR, INC., A CORPORATION OF
                DELAWARE,
              Plaintiff-Appellant

                           v.

BRAZABRA CORPORATION, A CORPORATION OF
            MASSACHUSETTS,
             Defendant-Appellee
           ______________________

                      2016-1057
                ______________________

   Appeal from the United States District Court for the
Eastern District of New York in No. 2:14-cv-05758-KAM-
AKT, Judge Kiyo A. Matsumoto.
                 ______________________

               Decided: August 11, 2016
                ______________________

   GERARD F. DUNNE, Law Office of Gerard F. Dunne,
P.C., New York, NY, argued for plaintiff-appellant.

    MILTON SPRINGUT, Springut Law PC, New York, NY,
argued for defendant-appellee.
                 ______________________

      Before LOURIE, DYK, and STOLL, Circuit Judges.
2            MICH & MICH TGR, INC.   v. BRAZABRA CORPORATION



STOLL, Circuit Judge.
    Mich & Mich TGR, Inc. appeals the United States
District Court for the Eastern District of New York’s
grant of summary judgment finding that Brazabra Corp.’s
accused bra strap retainer does not infringe the asserted
claims of U.S. Patent No. RE 43,766. Mich & Mich TGR,
Inc. v. Brazabra Corp. (Summary Judgment Order), 128
F. Supp. 3d 621 (E.D.N.Y. 2015). For the reasons below,
we affirm.
                        BACKGROUND
      The ’766 patent is directed to a bra strap retainer to
prevent straps from slipping off of shoulders, and methods
of using the same. The specification explains that “[t]he
inventive device includes a retaining member having an
elongate main portion and opposite end portions which
are adapted to keep straps of a bra on a user’s back in
proximate relationship to one another.” ’766 patent col. 1
ll. 36–40. An embodiment of the claimed bra strap re-
tainer, with elongate main portion 11 and end portions 12
and 13, is depicted in Figure 2 below:
MICH & MICH TGR, INC.   v. BRAZABRA CORPORATION             3



’766 patent Fig. 2. Claim 12, the only claim at issue in
this appeal, recites:

   12. A method of preventing the slippage of bra
   straps off of the shoulders of a person wearing a
   bra, comprising:

       providing a bra strap retainer comprising at
   least a pair of strap-retaining members positioned
   at opposite ends of the retainer, respectively, and
   an elongated member extending between the
   strap-retaining members;
       positioning the bra strap retainer in the back
   region of the person, between the straps of a bra
   being worn by the person;
       placing a first bra strap into a retained posi-
   tion by placing the strap in a first pair of slots lo-
   cated between the strap-retaining members and
   the elongated member; and
        placing a second bra strap into a retained po-
   sition by placing the strap in a second pair of slots
   located between the strap-retaining members and
   the elongated member;
       wherein the bra strap retainer brings the first
   and second straps in close proximity with each
   other in a location on the person’s back, thereby
   preventing the straps from slipping off the per-
   son’s shoulder.
’766 patent col. 6 ll. 37–56 (emphasis added).
    Mich & Mich brought a patent infringement suit
against Brazabra, alleging that Brazabra’s bra strap
retainer infringes the ’766 patent. Brazabra’s accused
product is depicted below:
4           MICH & MICH TGR, INC.   v. BRAZABRA CORPORATION




Summary Judgment Order, 128 F. Supp. 3d at 636.
Mich & Mich asserted that the segments labeled “A1” to
“A4” in the accused product together met the “elongated
member” claim limitation. After construing “elongated
member” as “a main structure that is longer than it is
wide, and that extends continuously across the opposite
ends of the apparatus without a substantial break or
gap,” the district court granted summary judgment of
noninfringement with respect to the asserted claims of the
’766 patent. Id. at 645, 657, 661.
     Mich & Mich appeals, disputing the district court’s
construction of “elongated member” and asserting that
the district court erred in granting summary judgment of
noninfringement of claim 12 of the ’766 patent. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).
MICH & MICH TGR, INC.   v. BRAZABRA CORPORATION             5



                        DISCUSSION
    “We review de novo the district court’s grant of sum-
mary judgment of noninfringement.” PC Connector Sols.
LLC v. SmartDisk Corp., 406 F.3d 1359, 1362 (Fed. Cir.
2005). Summary judgment is appropriate if “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56.

     “Evaluation of summary judgment of noninfringement
is a two-part inquiry: construing the claims and compar-
ing the properly construed claims to the accused product.”
Akzo Nobel Coatings, Inc. v. Dow Chem. Co., 811 F.3d
1334, 1339 (Fed. Cir. 2016). “The ultimate construction of
the claim is a legal question and, therefore, is reviewed de
novo.” Info-Hold, Inc. v. Applied Media Techs. Corp., 783
F.3d 1262, 1265 (Fed. Cir. 2015). While subsidiary factu-
al findings regarding extrinsic evidence are reviewed for
clear error, we review a claim construction based solely
upon intrinsic evidence de novo. Teva Pharm. USA, Inc.
v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). Because the
district court considered only intrinsic evidence in con-
struing the disputed claim term here, our review is
de novo. “Infringement, whether literal or under the
doctrine of equivalents, is a question of fact. As such, it is
amenable to summary judgment when no reasonable
factfinder could find that the accused product contains
every claim limitation or its equivalent.” Akzo, 811 F.3d
at 1339 (internal citation omitted).

                   I. Claim Construction
    The district court construed the claim 12 limitation
“elongated member” as “a main structure that is longer
than it is wide, and that extends continuously across the
opposite ends of the apparatus without a substantial
break or gap.” Summary Judgment Order, 128 F. Supp.
3d at 639. Mich & Mich does not dispute that the “elon-
6            MICH & MICH TGR, INC.   v. BRAZABRA CORPORATION



gated member” must be longer than it is wide, but argues
that the district court improperly imported requirements
that the “elongated member” be the “main structure” of
the apparatus and “extend[] continuously across the
opposite ends of the apparatus.” We disagree and adopt
the district court’s construction.
    The term “elongated member” does not appear in the
specification, but was added to claim 12 during prosecu-
tion of the reissue application to overcome a written
description rejection and an indefiniteness rejection. In
adding this claim term, the patentee stated that the
original specification described the “elongated member.”
As the specification refers to only an “elongate main
portion,” depicted as segment 11 in Figures 2–4 of the
’766 patent, the district court properly concluded that the
’766 patent uses the terms “elongate main portion” and
“elongated member” interchangeably.           Moreover, in
briefing to the district court, Mich & Mich described the
“elongated member” as “a main central portion of the
invention that is elongated.” Joint Appendix (“J.A.”) 372
(emphasis added). As such, we agree with the district
court’s inclusion of “main structure” in its construction of
“elongated member.”
     Mich & Mich next argues that the “elongated mem-
ber” need not extend continuously across the apparatus,
asserting that the district court’s construction imports
limitations from dependent claims 13 and 15 into inde-
pendent claim 12. To determine whether the “elongated
member” must be continuous, we first examine the claims
of the ’766 patent, because “the claims themselves provide
substantial guidance as to the meaning of particular
claim terms.” Phillips v. AWH Corp., 415 F.3d 1303, 1314
(Fed. Cir. 2005) (en banc). The term “elongated member”
first appears in independent claim 12, which describes the
“elongated member” as “extending between the strap-
retaining members” and requires the strap-retaining
members be “positioned at opposite ends of the retainer.”
MICH & MICH TGR, INC.   v. BRAZABRA CORPORATION            7



’766 patent col. 6 ll. 40–42. In order to extend between
the strap-retaining members, located at opposite ends of
the retainer, the elongated member must be a continuous
structure between the strap-retaining members. Mich &
Mich points to nothing in the specification or prosecution
history that suggests the “elongated member” can have a
split or break. Instead, the specification only depicts the
“elongated member” as a continuous structure, see ’766
patent, Figures 2–4, and provides no description to the
contrary.
     The doctrine of claim differentiation does not dictate a
different result here. Claim differentiation “only creates a
presumption that each claim in a patent has a different
scope; it is not a ‘hard and fast’ rule of construction.”
Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246
F.3d 1368, 1376 (Fed. Cir. 2001) (citing Comark
Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187
(Fed. Cir. 1998)). “[T]he doctrine of claim differentiation
cannot broaden claims beyond their correct scope, deter-
mined in light of the specification and the prosecution
history and any relevant extrinsic evidence.” Multiform
Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1480
(Fed. Cir. 1998). As explained above, the language of
claim 12 dictates that the “elongated member” extend
continuously, and the additional limitations in claims 13
and 15 cannot broaden the scope of the “elongated mem-
ber.” We therefore adopt the district court’s construction
of “elongated member” as “a main structure that is longer
than it is wide, and that extends continuously across the
opposite ends of the apparatus without a substantial
break or gap.”
                        II. Infringement
    Mich & Mich concedes that if the “elongated member”
must be continuous, Brazabra’s bra strap retainer does
not literally infringe claim 12. See Appellant’s Reply
Br. 3. Thus, because we adopt the district court’s con-
8            MICH & MICH TGR, INC.   v. BRAZABRA CORPORATION



struction that the “elongated member” extends continu-
ously across the opposite ends of the apparatus, we affirm
the district court’s grant of summary judgment finding no
literal infringement of claim 12.
    Mich & Mich argues, however, that claim 12 is none-
theless infringed under the doctrine of equivalents.
Brazabra counters that Mich & Mich waived this argu-
ment because it did not raise infringement of claim 12
under the doctrine of equivalents before the district court.
We agree with Brazabra and find that Mich & Mich
cannot assert infringement of claim 12 under the doctrine
of equivalents on appeal. “If a litigant seeks to show error
in a trial court’s overlooking an argument, it must first
present that argument to the trial court. In short, this
court does not ‘review’ that which was not presented to
the district court.” Sage Prods., Inc. v. Devon Indus., Inc.,
126 F.3d 1420, 1426 (Fed. Cir. 1997). Before the district
court, in its claim construction submission, Mich & Mich
asserted only that “the accused Brazabra Clip infring[es]
the asserted claims 1, 3, 5, 6, and 8 under the ‘doctrine of
equivalents.’” J.A. 272. And in Mich & Mich’s opposition
to Brazabra’s motion for summary judgment, it reiterated
that “[t]he accused Brazabra Clip infringes the asserted
claims 1, 3, 5, 6, and 8 under the ‘doctrine of equivalents.’”
J.A. 375. Mich & Mich does not point us to any place in
the record where it asserted before the district court
infringement of claim 12 under the doctrine of equiva-
lents. As such, we find that Mich & Mich waived this
issue and is precluded from raising it on appeal.
                        CONCLUSION
    Accordingly, because the district court correctly con-
strued the claim limitation “elongated member” and
because Mich & Mich waived any argument that claim 12
is infringed under the doctrine of equivalents, we affirm
the district court’s grant of summary judgment of nonin-
MICH & MICH TGR, INC.   v. BRAZABRA CORPORATION       9



fringement with respect to claim 12. We decline to award
fees under 35 U.S.C. § 285 as requested by Brazabra.
                         AFFIRMED
