       NOTE: This disposition is nonprecedential


  United States Court of Appeals
      for the Federal Circuit
              __________________________

         COGNEX CORPORATION AND
     COGNEX TECHNOLOGY & INVESTMENT
              CORPORATION,
                Appellants,

                          v.
     INTERNATIONAL TRADE COMMISSION,
                 Appellee,

                         AND
   MVTEC SOFTWARE GMBH AND MVTEC, LLC,
               Intervenors.
              __________________________

                      2011-1098
              __________________________

   On appeal from the United States International Trade
Commission in Investigation No. 337-TA-680.
             __________________________

              Decided: December 16, 2013
              __________________________

    STEVEN M. BAUER, Proskauer Rose LLP, of Boston,
Massachusetts, argued for appellants. With him on the
brief was JACOB K. BARON.
2                                       COGNEX CORP.   v. ITC


    CLINT A. GERDINE, Attorney, Office of the General
Counsel, United States International Trade Commission,
of Washington, DC, argued for appellee. With him on the
brief were JAMES M. LYONS, General Counsel, and
ANDREA C. CASSON, Assistant General Counsel for Litiga-
tion.

    MATTHEW B. LOWRIE, Foley & Lardner, LLP, of Bos-
ton, Massachussetts, argued for intervenors. With him on
the brief were AARON W. MOORE and KEVIN M. LITTMAN.
               __________________________

    Before REYNA, CLEVENGER, and LINN,* Circuit Judges.
LINN, Circuit Judge.

    Cognex Corporation and Cognex Technology & In-
vestment Corporation (collectively, “Cognex”) appeal from
a decision of the United States International Trade Com-
mission (“Commission”) finding that respondents, includ-
ing MVTec Software GmbH and MVTec, LLC (collectively,
“MVTec”), did not violate section 337 of the Tariff Act of
1930, as amended in 19 U.S.C. § 1337 (“section 337”), by
the importation, sale for importation, or sale following
importation of products alleged to infringe U.S. Patent
No. 7,016,539 (“’539 Patent”) and No. 7,065,262 (“’262
Patent”). Certain Mach. Vision Software, Mach. Vision
Sys., & Prods. Containing Same, Inv. No. 337-TA-680
(USITC Nov. 16, 2010) (Commission Opinion); Certain
Mach. Vision Software, Mach. Vision Sys., & Prods.
Containing Same, Inv. No. 337-TA-680, 2010 WL 4778782
(USITC July 16, 2010) (Initial Determination) (“Initial
Determination”). Because the Commission correctly found
noninfringement of the asserted claims of the ’539 Patent
based on at least two claim limitations, this court affirms
COGNEX CORP   v. ITC                                        3
the Commission’s determination of no section 337 viola-
tion. 1

                        I. BACKGROUND

                       A. The ’539 Patent

     On March 21, 2006, the PTO issued Cognex’s ’539 Pa-
tent, titled “Method for Fast, Robust, Multi-Dimensional
Pattern Recognition.” The ’539 Patent is generally di-
rected to “machine vision,” which is “a system or set of
procedures for taking in images, analyzing them, and
then making decisions. The decisions are made by algo-
rithms running in software and, sometimes, in hardware.”
Initial Determination, at *5. “Pattern location methods
are of particular importance in industrial automation,
where they are used to guide robots and other automation
equipment in semiconductor manufacturing, electronics
assembly, pharmaceuticals, food processing, consumer
goods manufacturing, and many others.” ’539 Patent col.
1 ll. 25–30. Machine vision is useful in a variety of indus-
trial processes; for example, it can be used “to detect and
to remove randomly dispersed, mislabeled medicine
bottles on a high-speed production line,” “segregate pen-
cils moving down a production line, at a rate of several
hundred pencils per second, into sorting bins according to
the color of their lead,” or “to inspect electronic boards for

    *   Circuit Judge Linn assumed senior status on No-
vember 1, 2012.
    1   While this appeal was pending, the United States
Patent and Trademark Office (“PTO”) issued a reexami-
nation certificate cancelling all asserted claims of the ’262
Patent, rendering the issue of their validity moot. See
Am. Citation of Supplemental Authorities Pursuant to
Fed. R. App. P. 28(j) and Fed. Cir. R. 28(i), June 21, 2013,
ECF No. 65. Therefore, the ’262 Patent is not addressed.
4                                            COGNEX CORP.    v. ITC
missing and misaligned components and to locate parts
with a high degree of spatial accuracy such that they can
be placed on to a printed circuit board.” Initial Determi-
nation, at *6.

    The ’539 Patent discloses “a method for determining
the absence or presence of one or more instances of a
predetermined pattern in an image, and for determining
the location of each found instance within a multidimen-
sional space.” ’539 Patent, at Abstract. The claimed
pattern detection process generally involves: (1) creating,
from a training image or geometric description, a “model
that represents the pattern to be found,” id. col. 4 ll. 63–
65; (2) providing a run-time image, id. col 40 l. 4, such as
the digital images from “TV cameras operating on visible
or infrared light, line-scan sensors, flying spot scanners,
electron microscopes, X-ray devices including CT scan-
ners, [and] magnetic resonance imagers,” id. col. 1 ll. 8–
12; and (3) utilizing algorithms to compare the model with
the run-time image to detect the presence of the pattern
at a given “pose,” see id. col. 4 l. 65 to col. 5 l. 9, col. 12 ll.
28–39.

     The specification defines a number of terms used in
the written description and claims. A “pose” is defined as
“the location of a pattern in a multidimensional space.”
Id. col. 4 ll. 46–47. The ’539 Patent specification defines
“image” as “[a] 2-dimensional function whose values
correspond to physical characteristics of an object . . . and
measured by any image-forming device, or whose values
correspond to simulated characteristics of an object, and
generated by any data processing device,” id. col. 3 l. 66 to
col. 4 l. 5 (emphases added), and defines “model” as “[a]
set of data encoding characteristics of a pattern to be
found for use by a pattern finding method,” id. col. 4 ll.
25–26 (emphasis added).

    Representative claim 1 of the ’539 Patent recites:
COGNEX CORP   v. ITC                                       5
    1. A method for determining the presence or ab-
    sence of at least one instance of a predetermined
    pattern in a run-time image, and for determining
    the multidimensional location (pose) of each pre-
    sent instance, the method comprising:

    providing a model that represents the pattern to
    be found, the model including a plurality of
    probes, each probe representing a relative position
    at which at least one test is performed in an im-
    age at a given pose, each such test contributing
    evidence that the pattern exists at the pose;

    providing the run time image;

    comparing the model with the run-time image at
    each of a plurality of poses;

    computing a match score at each pose to provide a
    match score surface;

    locating local maxima in the match score surface;

    comparing the magnitude of each local maxima
    with an accept threshold; and

    returning the location of each local maxima with
    magnitude that exceeds the accept threshold so as
    to provide the location [of] any instances of the
    pattern in the image.

’539 Patent col. 39 l. 62 to col. 40 l. 14 (emphases added to
reflect disputed claim limitations). The other asserted
claims are all dependent, directly or indirectly, from claim
1.
6                                     COGNEX CORP.   v. ITC
              B. Commission Proceedings

     In July 2009, the Commission initiated Investigation
No. 337-TA-680 based on complainant Cognex’s allega-
tions that respondents MVTec, Omron Corp., Daiichi
Jitsugyo Viswill Co., Resolution Technology, Inc., and
Visics Corp. violated section 337 by importing or selling
following importation into the United States certain
machine vision systems containing software that in-
fringed claims 1–4, 18–21, and 24 of the ’539 Patent. All
of the claims in dispute are method claims.

    In July 2010, the Administrative Law Judge (“ALJ”)
determined that all asserted claims of the ’539 Patent
were directed to abstract ideas and thus invalid under 35
U.S.C. § 101 for failing to claim patent eligible subject
matter, and that Cognex failed to prove infringement with
respect to any asserted claims. MVTec intervened in the
action in support of the Commission’s determinations on
these issues. On review of the Initial Determination, the
Commission supplemented and affirmed the ALJ’s § 101
determinations, and adopted the ALJ’s claim construction
and noninfringement findings with respect to the ’539
Patent. Cognex timely appealed the Commission’s § 101
determination, claim construction, and noninfringement
determination with respect to the asserted claims of the
’539 Patent. This court has jurisdiction under 28 U.S.C.
§ 1295(a)(6).

                     II. DISCUSSION

                 A. Standard of Review

     “Claim construction is a question of law that we re-
view de novo.” Linear Tech. Corp. v. Int’l Trade Comm’n,
566 F.3d 1049, 1054 (Fed. Cir. 2009). The Commission’s
infringement determinations are questions of fact that we
review for substantial evidence. Id. at 1060.
    COGNEX CORP   v. ITC                                       7
          B. Infringement of Claim 1 the ’539 Patent

    The Commission found that the accused product did
not satisfy five of the seven limitations of claim 1 of the
’539. For this court to reverse the Commission’s nonin-
fringement determination, we would have to find that the
Commission erred in its findings with respect to all five
limitations.      We affirm the Commission’s non-
infringement findings with respect to claim limitations 1
and 6, and thus do not reach the other claim limitations
on appeal.

       Table 1: Limitations in claim 1 of the ’539 Patent

Limitation                 Claim Language          Commission
                                                     Finding

Preamble       A method for determining the Satisfied
               presence or absence of at least
               one instance of a predetermined
               pattern in a run-time image,
               and for determining the multi-
               dimensional location (pose) of
               each present instance, the
               method comprising:

1              providing a model that repre- Not
               sents the pattern to be found, Satisfied
               the model including a plurality
               of probes, each probe represent-
               ing a relative position at which
               at least one test is performed in
               an image at a given pose, each
               such test contributing evidence
               that the pattern exists at the
               pose

2              providing the run-time image        Satisfied
8                                        COGNEX CORP.   v. ITC

3             comparing the model with the Satisfied
              run-time image at each of a
              plurality of poses

4             computing a match score at each Not
              pose to provide a match score satisfied
              surface

5             locating the local maxima in the Not
              match score surface;             Satisfied

6             comparing the magnitude of Not
              each local maxima with an Satisfied
              accept threshold

7             returning the location of each Not
              local maxima with magnitude Satisfied
              that exceeds the accept thresh-
              old so as to provide the location
              [of] any instances of the pattern
              in the image

    i. Limitation 6: “comparing the magnitude of each local
               maxima with an accept threshold”

    The Appellees argue that Cognex has failed to chal-
lenge each of the independent grounds upon which the
Commission found noninfringement, primarily the sixth
limitation: “comparing the magnitude of the local maxima
with an accept threshold.” ’539 Patent col. 40 ll. 9–14.
The ALJ’s undisputed construction of the term “accept
threshold” was “a value that a match must exceed to be
considered an instance of a pattern.” Initial Decision at
*19. Based thereon, the ALJ found that the accused
software did not use an “accept threshold,” and thus did
not practice the sixth claim limitation. Id. at 46–47.
Cognex does not dispute, or even mention, the Commis-
COGNEX CORP   v. ITC                                       9
sion’s construction of “accept threshold” in its opening
appeal brief; and in its reply brief, in response to the
Appellee’s waiver argument, Cognex fails to point out
where it presented the issue in its opening brief.
Smithkline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
1319 (Fed. Cir. 2006) (holding that waiver exists where,
“in response to [the Appellees’] argument that the issue
had been waived by failure to include it in the opening
brief, [Appellant] did not point out . . . where the issue
had been presented in its opening brief.”). Accordingly,
Cognex waived any argument with respect to the Com-
mission’s construction of “accept threshold.” Id. (“Our law
is well established that arguments not raised in the
opening brief are waived.”). Based on Cognex’s waiver,
this court affirms the Commission’s finding that the
accused product does not practice claim limitation 6.

   ii. Limitation 1: “each probe representing a relative
      position at which at least one test is performed”

    The ALJ determined that, while the accused software
“does have probes,” it does not practice the first limitation
of claim 1 because “it does not perform a test at ‘each
probe’ as required by claim 1.” Initial Decision at *23.
Cognex asserts that the Commission erroneously equated
data elements (which it asserts are not necessarily tested)
with probes (which it admits must be tested). According
to Cognex, a data element becomes a “probe” only when a
test is actually performed at that data element, and thus
the accused software necessarily tests “each probe” at a
given pose. The Appellees counter that a data element is
always a “probe,” ’539 Patent col. 5 ll. 5–6 (“According to
the invention, a model includes a set of data elements
called probes.”), and thus a test must be performed at
each data element or “probe” at a given pose: “i.e., if there
are 64 probes, 64 separate tests are performed,” MVTec
Br. 26.
10                                         COGNEX CORP.   v. ITC
    Cognex’s argument that a data element somehow
transforms into a probe only upon testing is unavailing.
The specification defines a data element as a “probe,” ’539
Patent col. 5 ll. 5–6, and the plain language of the claim
requires that “at least one test is performed” at each
“probe,” id. col. 40 ll.1–2 (emphasis added). The specifica-
tion also confirms that “[e]ach probe represents a relative
position at which certain measurements and tests are to be
made in an image at a given pose.” Id. col. 5 ll. 6–9
(emphasis added). Accordingly, this court affirms the
Commission’s claim construction with respect to this
claim limitation.       Because the Commission’s nonin-
fringement determination based thereon is supported by
substantial evidence, this court affirms the Commission’s
finding of noninfringement with respect to claim 1 of the
’539 Patent.

    Further, because all other asserted claims depend
from claim 1, and a dependent claim necessarily cannot
be infringed if the independent claim is not infringed,
Wahpeton Canvas Co., Inc. v. Frontier, Inc., 870 F.2d
1546, 1552 (Fed. Cir. 1989) (“One who does not infringe
an independent claim cannot infringe a claim dependent
on (and thus containing all the limitations of) that
claim”), we also affirm the Commission’s finding of nonin-
fringement with respect to asserted claims 2–4, 18–21,
and 24 of the ’539 patent.

                   C. Patent Eligibility

    The Commission’s finding of non-infringement of the
asserted claims of the ’539 patent alone is sufficient to
support its termination of the investigation based on no
violation of section 337. Accordingly, this court need not
COGNEX CORP   v. ITC                                      11
and does not address the Commission’s determination
with respect to 35 U.S.C. § 101. 2

                       III. CONCLUSION

    For the foregoing reasons, this court affirms the
Commission’s determination that claims 1–4, 18–21, and
24 of the ’539 Patent are not infringed. Accordingly, the
Commission’s termination of the investigation based on
no violation of section 337 is affirmed.

                        AFFIRMED




    2   See Texas Instruments Inc. v. Cypress Semicon-
ductor Corp., 90 F.3d 1558, 1569 (Fed. Cir. 1996) (Legisla-
tive history and prior decisions of this court reveal
Congressional intent that “decisions of the ITC involving
patent issues have no preclusive effect in other forums . . .
.”)
