       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                     FENF, LLC,
                   Plaintiff-Appellee,

                           v.

                SMARTTHINGZ, INC.,
                 Defendant-Appellant.
                ______________________

                       2014-1490
                 ______________________

   Appeal from the United States District Court for the
Eastern District of Michigan in No. 2:12-cv-14770-PJD-
MKM, Judge Patrick J. Duggan.
                 ______________________

               Decided: February 6, 2015
                ______________________

    RICHARD W. HOFFMANN, Reising Ethington P.C., of
Troy, Michigan, argued for plaintiff-appellee. With him
on the brief was MICHAEL J. DRUZINSKI.

   CHRISTOPHER K. HU, Blank Rome LLP, of New York,
New York, argued for defendant-appellant.
               ______________________

 Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.
2                             FENF, LLC   v. SMARTTHINGZ, INC.



LOURIE, Circuit Judge.
    SmartThingz, Inc. (“SmartThingz”) appeals from the
decisions of the United States District Court for the
Eastern District of Michigan granting a permanent in-
junction against SmartThingz, and entering final judg-
ment in favor of FenF, LLC (“FenF”). FenF, LLC v.
SmartThingz, Inc., No. 12-cv-14770, 2014 WL 1431692
(E.D. Mich. Apr. 14, 2014) (“Injunction Order”); J.A. 30.
The judgment was entered in accordance with a stipula-
tion by the parties that under the court’s construction of
the term “separators” in FenF, LLC v. SmartThingz, Inc.,
No. 12-cv-14770, 2013 WL 3868071 (E.D. Mich. July 25,
2013) (“Opinion”), SmartThingz’s accused product in-
fringed the asserted claim of U.S. Patent 8,002,675 (“the
’675 patent”) and the claim was not invalid. J.A. 30.
Because we find that the district court erred in construing
the term “separators” in claim 35, we vacate the district
court’s final judgment and the permanent injunction, and
remand for further proceedings.
                       BACKGROUND
    FenF owns the ’675 patent, which is directed to foot
therapy devices for aligning, stretching, and exercising
toes. Claims 1–34 recite, and the majority of the specifi-
cation describes, foot therapy devices comprising one or
more “posts” formed of an elastic material, to be placed
between a user’s toes in order to stretch the toes. At issue
in this case, however, is claim 35, which reads as follows:
    35. A foot-therapy and toe-aligning device, com-
    prising:
    a frame with four separators for separating a plu-
    rality of toes, wherein the frame comprises a top
    portion, a bottom portion, a front portion, and a
    back portion, with the separators connecting the
    top portion with the bottom portion;
FENF, LLC   v. SMARTTHINGZ, INC.                           3



    wherein the separators, in combination with the
    top portion and the bottom portion, form three
    holes through the frame for insertion of a plurali-
    ty of toes, wherein each hole includes an entrance
    into the back portion, an exit from the front por-
    tion, and surrounding walls connecting the en-
    trance with the exit;
    wherein the four separators include two outer
    separators and two inner separators, such that
    each of the two outer separators include an inner
    portion that forms a surrounding wall in a corre-
    sponding hole and an outer portion that does not
    operate as a surrounding wall to a hole; and
    wherein at least one of the top portion and the
    bottom portion includes at least one elongated sec-
    tion that extends beyond the outer portion of at
    least one of the two outer separators.
’675 patent col. 19 l. 7–col. 20 l. 13 (emphasis added).
    FenF sued SmartThingz, alleging infringement of the
’675 patent by SmartToes, a foot therapy product import-
ed by SmartThingz. The parties narrowed the issues by
stipulating that the asserted infringement was based
solely on claim 35, and that SmartThingz would file a
motion for summary judgment of invalidity under § 102(b)
based on U.S. Patent 6,238,357.
    SmartThingz filed its motion for summary judgment,
asserting that no claim construction was necessary.
However, the district court held a claim construction
hearing to consider two phrases containing the term
“separators.” The court construed “separators” to mean
“posts formed of an elastic material (or a material with
elastomeric properties) such that they have the ability to
stretch and elongate vertically and expand outwardly.”
Opinion at *5, *7.
4                             FENF, LLC   v. SMARTTHINGZ, INC.



    Drawing from the specification, the district court not-
ed how the patent emphasizes the “important effects” of
the elastic characteristics and how the improvements over
the prior art are premised on the use of an elastic materi-
al. Id. at *5. The court stated that the patent describes
posts “as a particular formulation of a separator (i.e., one
made from an elastic material)” and determined that “all
posts are separators but not all separators are posts.” Id.
at *6. Nonetheless, the court found that the patent
“equates” posts with separators, rather than treating
them as two different “aspects” of the device. Id. The
court accordingly held that “a device comprised of separa-
tors ‘formed of an elastic material’ is the only invention
the ’675 patent covers.” Id. (emphasis added). The court
therefore concluded that claim 35 uses the term “separa-
tors” to refer to “a specific category of separators” in the
context of the patent as a whole. Id. at *7.
     Under the district court’s construction, SmartThingz
conceded that its motion for summary judgment of inva-
lidity must be denied, and stipulated to infringement of
claim 35 to put the case in a posture for appeal.
    FenF then moved for a permanent injunction, which
the district court granted. Injunction Order at *5. The
court found that SmartThingz’s stipulation of infringe-
ment sufficed for FenF to demonstrate its success on the
merits. Id. The court accordingly issued a permanent
injunction and entered a final judgment in favor of FenF.
J.A. 30.
   SmartThingz timely appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(1).
                       DISCUSSION
    We review the district court’s claim construction de
novo because the intrinsic record—the claims, the specifi-
cation, and the prosecution history—fully informs the
proper construction in this case. See Teva Pharm. USA,
FENF, LLC   v. SMARTTHINGZ, INC.                           5



Inc. v. Sandoz, Inc., 574 U. S. ___, 135 S. Ct. 831, 841
(2015). The district court’s claim construction relied only
on intrinsic evidence, not on any testimony by one of
ordinary skill in the art about the meaning of separators
in the relevant art during the relevant time period.
     The words of a claim are generally given their ordi-
nary and customary meaning, which is the meaning that
the term would have to a person of ordinary skill in the
art when read in the context of the entire patent. Phillips
v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005)
(en banc) (citations and internal quotation marks omit-
ted). “Claims must be read in view of the specification, of
which they are a part.” Markman v. Westview Instru-
ments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc),
aff’d, 517 U.S. 370 (1996). The specification is “the single
best guide to the meaning of a disputed term.” Phillips,
415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic,
Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).
    SmartThingz argues that “separator” did not need to
be construed because the patent uses the ordinary mean-
ing of “something that separates,” without a limitation of
elasticity. SmartThingz contends that the patent differ-
entiates between separators and posts, which the district
court acknowledged in juxtaposition with its conclusion
that separators are posts. According to SmartThingz,
posts in the context of the patent are a subset of separa-
tors, with a specific characteristic of elasticity. All of the
examples cited by the district court to support its con-
struction, SmartThingz notes, refer to the elastic charac-
teristic of posts, not separators. SmartThingz further
asserts that the patent discloses two different embodi-
ments: one with posts, which must be elastic and is
claimed in claims 1–34, and one with separators, which is
more generic and is claimed in claim 35.
    FenF responds that the patent as a whole teaches
that the separators of the invention must be elastic. The
6                              FENF, LLC   v. SMARTTHINGZ, INC.



phrase “the present invention” is repeatedly used, FenF
asserts, to highlight the importance of the elastic nature
of the device and its corresponding ability to conform its
shape to the user’s toes. FenF argues that the specifica-
tion clearly teaches that elasticity is a universal, func-
tional feature for all embodiments of the invention, not
merely a structural feature of the preferred embodiment.
FenF contends that because posts and separators are
related structures and have the same core function, the
characterizations of the desired elasticity of posts in the
specification are equally applicable to separators. Moreo-
ver, FenF argues, the specification distinguishes the
invention as a whole over the prior art based on the
disclosed elastic features, and thus disavows devices with
rigid separators.
     We agree with SmartThingz that “separators” in the
’675 patent are not necessarily formed of an elastic mate-
rial. The word is not so limited in the text of the claim or
in the context of the entire patent.
     Claims 1–34 recite devices with posts, and we note
that no one disputes that posts in the context of this
patent must be formed of an elastic material. But nothing
in the intrinsic record states that a separator is a post.
Posts are not the same as separators, even if they both
serve the same function of separating toes. Claim 35 is
the only claim that recites a device with separators. It is
also the only independent claim that does not recite
“post(s) formed of an elastic material.” Compare ’675
patent col. 16 l. 31 (claim 1), id. col. 17 l. 3 (claim 9), id.
col. 18 l. 12 (claim 24), id. col. 18 l. 49 (claim 31), and id.
col. 18 l. 61 (claim 33), with id. col. 19 l. 7–col. 20 l. 13
(claim 35). The language of claim 35 itself does not limit
the term separators to being formed of an elastic material
or having elastic properties. The scope of the claim,
therefore, does not appear restricted to encompassing only
embodiments formed of an elastic material.
FENF, LLC   v. SMARTTHINGZ, INC.                           7



     The specification also discloses certain embodi-
ments—with posts—that must be formed of an elastic
material, and one particular embodiment—with separa-
tors—that has no associated elastic properties. In a
specification, the phrase “the present invention” is quite
often a keystone for interpreting a claim in light of the
specification rather than in accordance with meanings it
could otherwise be given. G.E. Lighting Solutions, LLC v.
AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014). The
phrase usually prefaces some circumscription of the
meaning of certain claim language. Even though it ap-
pears throughout the specification of the ’675 patent,
however, the phrase here appears to refer to separate
embodiments, with language that is tracked in separate
claims. For example, in the Summary of the Invention
section, the specification describes thirty discrete aspects
of the present invention, of which only the twenty-seventh
aspect uses the word separator. ’675 patent col. 3 l. 13–
col. 5 l. 34. Most of these aspects are incorporated virtual-
ly verbatim throughout claims 1–34, and the twenty-
seventh aspect mirrors claim 35.
    Further support for this differentiation of embodi-
ments comes from the corresponding descriptions of
Figures 1–14, which depict various possible embodiments
with posts, contrasted with the description of Figure 15,
which has separators. As the district court noted, the
Detailed Description section repeatedly emphasizes the
importance of the posts of the invention being formed of
an elastic or elastomeric material. See Opinion at *5.
Those descriptions, however, are all directed to Figures 1–
14 and Claims 1–34.
    Ultimately it is the patent’s very specific description
of Figure 15, which in turn depicts what is claimed in
claim 35, that makes clear that separators need not be of
an elastic or elastomeric material to fall within the
bounds of that claim. Figure 15 is discussed starting in
column 13, where the first and only instance of the word
8                              FENF, LLC   v. SMARTTHINGZ, INC.



separator appears in the Detailed Description section.
’675 patent col. 13 l. 59. There, the patent expressly
states that separators may be made of various suitable
materials, including plastic, silicone, and cork, id. col. 13
ll. 60–62. It then goes on to explain how “an openable toe
hole” allows for “easy insertion” of toes, id. col. 14 ll. 11–
15, and touts the advantages of openable toe holes in
“accommodation of toe movement/articulation,” id. col. 14
ll. 44–54. The description does not state that the device
with separators shown in Figure 15 must be formed of an
elastic or elastomeric material, has posts, or is beneficial
over the prior art for its elastic or elastomeric properties.
We therefore conclude that the district court erred in
construing “separators” as narrowly as it did.
    Although we have determined that the term is not as
limited as construed by the district court, we also note for
purposes of remand that we find no indication that the
patentee acted as his own lexicographer with regard to
the term “separator” or disavowed any particular meaning
of the term. Based on the intrinsic evidence, we under-
stand the plain and ordinary meaning of “separators” in
claim 35 in the context of the ’675 patent to be “structural
features that can be placed between toes.” For the sake of
clarity, we note that separators may be, but are not neces-
sarily, formed of an elastic or elastomeric material.
    Because of the revised claim construction, we vacate
and remand for further proceedings consistent with this
opinion. The concessions and stipulations regarding
invalidity and infringement were based on the erroneous
claim construction; ergo, the permanent injunction must
also be vacated.
                        CONCLUSION
    We have considered the remaining arguments and
conclude that they are without merit. For the foregoing
reasons, we vacate the final judgment and the permanent
injunction, and remand the case.
FENF, LLC   v. SMARTTHINGZ, INC.      9



               VACATED AND REMANDED
                            COSTS
   Costs to SmartThingz.
