                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2006-1114

                                JAMES P. LOGAN, JR.,

                                                      Plaintiff-Appellant,

                                          and

                                LOGAN FARMS, INC.,

                                                      Plaintiff,

                                           v.

                                HORMEL FOODS, INC.,

                                                      Defendant-Appellee,

                                          and

                                   WAL-MART, INC.,

                                                      Defendant-Appellee.



      Robert M. Bowick, Matthews, Lawson, Bowick and Al-Azem, PLLC, of Houston,
Texas, argued for plaintiff-appellant. With him on the brief was Guy E. Matthews.

       J. David Mayberry, Kilpatrick Stockton LLP, of Washington, DC, argued for
defendant-appellee Hormel Foods, Inc. With him on the brief was Eric L. Sophir.
Joining in the brief was Lee L. Kaplan, Smyser, Kaplan & Veselka, L.L.P., of Houston,
Texas, for defendant-appellee Wal-Mart, Inc.

Appealed from: United States District Court for the Southern District of Texas

Judge Simeon Timothy Lake III
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2006-1114

                                JAMES P. LOGAN, JR.,
                                                               Plaintiff-Appellant,
                                           and

                                 LOGAN FARMS, INC.,

                                                              Plaintiff,

                                            v.

                                HORMEL FOODS, INC.,

                                                              Defendant-Appellee,
                                           and

                                   WAL-MART, INC.,

                                                              Defendant-Appellee.


                              _______________________

                              DECIDED: January 25, 2007
                              _______________________


Before LOURIE, LINN, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

      James P. Logan, Jr. (“Logan”) appeals the final judgment of the United States

District Court for the Southern District of Texas granting summary judgment in favor of

defendants Hormel Foods, Incorporated and Wal-Mart, Incorporated (collectively

“Hormel”). Logan v. Hormel Foods, Inc., No. 4:05-CV-00055, 2005 WL 2171893 (S.D.

Tex. Sept. 2, 2005). While the district court erred in its claim construction, we conclude
the error was harmless and that summary judgment of non-infringement of United

States Patent No. Re 35,374 (“the ’374 patent”) was proper even under the correct

claim construction. Therefore, we affirm.

I.      BACKGROUND

        Logan filed suit against Hormel alleging that Hormel’s CURE 81® boneless,

spiral-sliced hams infringe claim 1 of the ’374 patent. The ’374 patent describes a

spirally-sliced meat product and the apparatus and method for spirally slicing the meat.

Claim 1, the only independent claim at issue on this appeal, recites as follows:

        A boneless sliced meat having its meat arranged in the form of a
        continuous spiral cut about an axis of the meat, the axis being created by
        temporary insertion of a support member in the meat, wherein the depth of
        said cut is limited to leave an uncut core of meat, said core being of
        sufficient cross-section to cause the boneless sliced meat to retain its
        shape when the support member is removed.

’374 patent, col.10, ll.4-10 (emphasis added).

         The district court construed the term “support member” to mean “a spit (or

pointed rod) that traverses the length of the spiral cut and helps the boneless meat

maintain its shape or integrity during slicing operations.” Logan, 2005 WL 2171893 at

*6. The district court granted summary judgment on the issue of literal infringement

because Hormel’s CURE 81® hams were made by impaling them on a prong which was

either 1” or 2 3/8” in length,1 and therefore did not traverse the length of the spiral cut.

Id. at *7-8. Furthermore, the district court determined that summary judgment of non-

infringement under the doctrine of equivalents was appropriate because Hormel’s prong

did not perform the function of helping the boneless meat maintain its shape or integrity

during slicing operations. Id. at *8. The district court found that Logan offered no
        1
              Hormel changed the length of its spit after Logan instituted the present
litigation.


2006-1114                                    2
evidence to contradict an experiment conducted by Hormel showing that the prong did

not support the boneless meat during slicing operations. Id.

        On appeal, Logan challenges the district court’s claim construction and grant of

summary judgment of non-infringement. We have jurisdiction pursuant to 28 U.S.C. §

1295(a)(1).

II.     DISCUSSION

        A.    Claim Construction

        We agree with the portion of the district court’s claim construction that requires

that the support member “help[] the boneless meat maintain its shape or integrity during

slicing operations,” however, the intrinsic record does not require the “support member”

to “traverse the length of the spiral cut,” so long as it is performing the function of

helping “the boneless meat maintain its shape or integrity during slicing operations.”

        Logan argues that the “support member” should only be required to hold the

meat.    Logan cites numerous dictionary definitions in an attempt to bolster his

argument.     However, these dictionary definitions are inconsistent with the intrinsic

record and therefore, are not probative. See Phillips v. AWH Corp., 415 F.3d 1303,

1322-23 (Fed. Cir. 2005) (en banc) (stating that courts may rely “on dictionary

definitions when construing claim terms, so long as the dictionary definition does not

contradict any definition found in or ascertained by a reading of the patent documents.”).

The ’374 patent uses the term “hold” in reference to the chuck assembly, which includes

a number of short spikes to help hold the meat. See, e.g., ’374 patent, col.3, ll.53-57

(“The apparatus includes an electrically driven, rotating meat chuck assembly for

holding the meat . . . during cutting operations”); id., col.4, ll.1-2 (“The chuck assembly




2006-1114                                   3
is designed to hold and rotate the meat during cutting operations.”). The specification

indicates that the support member does more than “hold” the boneless meat—it

provides support for the meat. See id., col.5, ll.61-64 (“The meat spit 400 is used in the

slicing of boneless meats to provide support by inserting the stem member 404 into the

meat during slicing operations.”).

       The prosecution history also supports this construction.       During prosecution,

Logan informed the Patent and Trademark Office that the support member “provides the

boneless meat product with sufficient structural stability during the slicing operation” and

that the spit “maintain[ed] meat integrity during the slicing operation.” Moreover, during

prosecution, Logan submitted videotaped experiments to establish that a particular

reference was not enabled. These experiments are part of the intrinsic record, are

properly considered in construing the claims, and further support this construction.

Thus, we conclude that the support member “helps the boneless meat maintain its

shape or integrity during slicing operations.”

       We do not agree, however, that the support member must “traverse the length of

the spiral cut” as the district court required. Logan argues that Hormel's 1” and 2 3/8”

prongs are “in the meat.” Hormel argues that the support member must extend into the

meat so as to traverse the length of the spiral cut. We conclude that the claim language

“in the meat” does not require that the support member extend through the entire meat

product nor does it require the support member traverse the entire spiral cut portion.

Nothing in the specification or prosecution history requires this narrow construction.

       Claim 1 requires only that the support member be “in the meat.” ’374 patent,

col.10, ll.6-7. Other claims require that the “support member [be] inserted through the




2006-1114                                    4
annular core [of meat] prior to slicing . . . .” Id., at col.10, ll.13-14 (claim 2) (emphasis

added); see also id., at col.10, ll.27-28 (claim 4), col.11, ll.7-8 (claim 10). Hence, while

claims 2, 4, and 10 require the support member be inserted through the meat, claim 1 in

contrast only requires that the support member be in the meat. Because the patentee

used different terminology in different claims, there is a presumption that there is a

difference in the scope of the claims. See Forest Labs., Inc. v. Abbott Labs., 239 F.3d

1292, 1310 (Fed. Cir. 2001) (citing Tandon Corp. v. United States Int’l Trade Comm’n,

831 F.2d 1017, 1023 (Fed. Cir. 1987)). We conclude that “in the meat” must be read in

conjunction with “support member” and that therefore the claim requires that the support

member be in the meat far enough to “support” the meat during slicing (i.e., to maintain

its shape or integrity during slicing).

       While the specification discloses only a single embodiment, the intrinsic record

does not limit the scope of the term “support member” to the only disclosed

embodiment.      See Phillips, 415 F.3d at 1323 (“[W]e have expressly rejected the

contention that if a patent describes only a single embodiment, the claims of the patent

must be construed as being limited to that embodiment.”). Thus, it is improper to read

the sole embodiment from the specification into claim 1 and require that the support

member extend through the meat. We also do not believe that the support member

must extend the length of the spiral cut because while the claim requires the support

member to define an “axis” of the meat, there is no reason why a support member that

does not traverse the length of the spiral cut cannot define such an axis.

       We conclude that the support member must extend into the meat to a sufficient

length to support the meat during cutting (to help the meat maintain its shape or integrity




2006-1114                                    5
during slicing), but not necessarily extend through the meat or traverse the entire length

of the spiral cut.

       B.      Infringement

       While the district court erred in construing the term “support member in the

meat,” that error was harmless. Logan fails to point to any evidence that Hormel’s 1” or

2 3/8” prong used to make its CURE 81® boneless hams “help[] the boneless meat

maintain its shape or integrity during slicing,” as required by claim 1. Moreover, as the

district court noted, Logan provided no evidence to contradict Hormel’s evidence that its

prongs do not perform this function.       We find the remainder of Logan’s arguments

regarding infringement to be without merit.       Therefore, we affirm the district court’s

judgment that the Hormel CURE 81® hams do not infringe claim 1 of the ’374 patent

either literally or under the doctrine of equivalents.

       No costs.




2006-1114                                     6
