                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit

                                        05-1340

        GLOBAL MAINTECH CORPORATION and GLOBAL MAINTECH, INC.,

                                                       Plaintiffs-Appellants,
                                            v.

                                  I/O CONCEPTS, INC.,

                                                       Defendant-Appellee.

                           __________________________

                               DECIDED: May 2, 2006
                           __________________________


Before LOURIE, GAJARSA, and LINN, Circuit Judges.

LINN, Circuit Judge.

      Global Maintech Corporation and Global Maintech, Inc. (collectively, “Global”)

appeal from the decision of the United States District Court for the District of Minnesota

(“district court”) granting the motion of I/O Concepts, Inc. (“I/O Concepts”) for summary

judgment of non-infringement of U.S. Patent Nos. 6,035,264, 6,044,393, 6,112,237, and

6,157,956 (collectively, “the patents-in-suit”).   See Global Maintech Corp. v. I/O

Concepts, Inc., No. 03-4184 (D. Minn. Mar. 7, 2005) (“Non-infringement Order”).

Because the district court properly granted I/O Concepts’ motion for summary judgment

of non-infringement, we affirm.
                                    I. BACKGROUND

        Global is the owner of record of the patents-in-suit, all of which relate to the

monitoring and control of “heterogeneous computer systems.” In particular, the patents-

in-suit describe a process that translates signals sent by dissimilar host computer

systems, each of which effectively speaks different languages, to either a common

message signal format or a universal character set that is understood by a monitoring

and control computer. Non-infringement Order, slip op. at 1-2. If the implemented

procedures result in control signals that must be sent to a host computer, the monitoring

and control computer translates the control signal from the common message signal

format or universal character set to the message signal format of that host computer.

Id., slip op. at 2.

        The patent applications that issued as the ’237 patent, the ’393 patent, and the

’264 patent were all filed on November 26, 1997. All three patents include identical

drawings and describe the same computer monitoring and controlling system. The only

differences between the patents lie in the claimed subject matter.       Specifically, the

claims of the ’237 patent are directed to the monitoring aspects of the monitoring and

controlling system, while the claims of the ’393 patent are directed to the control aspect

of the system. The claims of the ’264 patent are also directed to the monitoring aspect

of the system, but are more limited in scope and coverage in that they relate specifically

to automation using a script language. Id., slip op. at 2-3.

        The United States Patent and Trademark Office (“PTO”) initially rejected each of

the applications that resulted in these three patents because the claims were

anticipated and/or obvious. To gain issuance of the patents, Global amended each




05-1340                                  2
independent claim of the three patents to clarify that they were limited to the external

monitoring and controlling of “heterogeneous computer systems.”        Ultimately, these

patents were issued in March and August 2000.

       The ’956 patent application was filed on March 28, 1977. Like the other three

patents, the ’956 patent relates exclusively to the monitoring and controlling of

“heterogeneous computer systems.” The ’956 patent has three independent claims,

each of which specifically relates to performing operations using a “universal character

set” in “heterogeneous computer systems.” In addition, certain claims of the ’956 patent

also require the presence of an “intelligent card” that translates data into a “universal

character set.”

       I/O Concepts markets three software programs: Console Consolidation System,

CCS/SmartClient, and Websession. In 2003, Global sued I/O Concepts for infringement

of the patents-in-suit.   On December 6, 2004, both Global and I/O Concepts filed

competing motions for summary judgment.          I/O Concepts filed three motions for

summary judgment relating to (1) non-infringement of the ’264, ’393, and ’237 patents;

(2) invalidity of the ’264, ’393, and ’237 patents; and (3) non-infringement of the ’956

patent. Global filed a motion for partial summary judgment, which sought dismissal of

all of I/O Concepts’ affirmative defenses and counterclaims.

       On March 7, 2005, the district court issued a Memorandum and Order relating to

the four pending summary judgment motions.           The district court construed the

“heterogeneous computer system” limitation, which appears in all the asserted claims,

as a system in which at least two host computers use different operating systems. The

district court granted summary judgment of non-infringement, concluding that there was




05-1340                                 3
no evidence that any I/O Concepts’ product simultaneously monitors and controls

multiple mainframes using different operating systems. The district court concluded that

Global had failed to create a dispute of fact as to whether I/O Concepts sold or offered

for sale a product that literally infringed the patents-in-suit. The district court denied, as

moot, all the remaining motions for summary judgment.

       On March 7, 2005, the district court entered final judgment. Global Maintech

Corp. v. I/O Concepts, Inc., No. 03-4184 (D. Minn. Mar. 7, 2005). Global timely appeals

to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

                                       II. ANALYSIS

                                  A. Standard of Review

       “We review a district court’s grant of summary judgment de novo.” Ethicon Endo-

Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed. Cir. 1998). Summary

judgment is appropriate only when there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). “In

determining whether there is a genuine issue of material fact, the evidence must be

viewed in the light most favorable to the party opposing the motion, with doubts

resolved in favor of the opponent.” Chiuminatta Concrete Concepts, Inc. v. Cardinal

Indus., Inc., 145 F.3d 1303, 1307 (Fed. Cir. 1998). If there are no material facts in

dispute precluding summary judgment, “our task is to determine whether the judgment

granted is correct as a matter of law.” Marathon Oil Co. v. United States, 177 F.3d

1331, 1337 (Fed. Cir. 1999).

       Claim construction is an issue of law, see Markman v. Westview Instruments,

Inc., 52 F.3d 967, 970-71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996), that we




05-1340                                   4
review de novo. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir.

1998) (en banc); Phillips v. AWH Corp., 415 F.3d 1303, 1328 (Fed. Cir. 2005) (en

banc). Infringement is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350,

1353 (Fed. Cir. 1998).

                                        B. Discussion

       On appeal, Global argues that the district court erred in construing

“heterogeneous computer system” too narrowly, and argues that the proper construction

should be “computer systems having dissimilar processors and/or operating systems.”

Global further argues that the district court erred in including “simultaneous,” which is

not present in any claim, as a claim limitation. Global argues that the district court erred

in determining that I/O Concepts did not make, offer to sell, or sell its products for

heterogeneous use. Finally, Global argues that the district court erred in requiring the

presence of an “intelligent card” in the method claims of the ’956 patent.

       I/O Concepts responds that the district court correctly construed the

“heterogeneous computer system” limitation. I/O Concepts further contends that the

terms “simultaneously” and “simultaneous” were not used by the district court as words

of limitation, but rather as explanatory terms describing how a person skilled in the art

would understand the phrase “heterogeneous computer system.” Finally, I/O Concepts

argues that the district court did not err in granting summary judgment of non-

infringement because Global failed to make any showing regarding whether I/O

Concepts’ products monitor and/or control anything other than homogeneous computer

systems.




05-1340                                  5
       Because    we    conclude   that   the   district   court   correctly   construed   the

“homogeneous computer systems” limitation, and because summary judgment of non-

infringement was proper on that basis, we do not consider Global’s argument relating to

the presence of “intelligent card” in the ’956 method claims.

                                    1. Claim construction

       The claim limitation disputed by the parties is “heterogeneous computer system,”

and the primary issue is whether it should be restricted to encompass only systems in

which at least two host computers use a different operating system as the district court

held. In determining the meaning of the disputed claim limitation, we look primarily to

the intrinsic evidence of record, examining the claim language itself, the written

description, and the prosecution history, if in evidence. See Phillips v. AWH Corp., 415

F.3d 1303, 1312-1317 (Fed. Cir. 2005) (en banc). Each of the asserted claims includes

the “heterogeneous computer systems” limitation, but the claims do not provide

guidance on what that limitation means.         While the written description does not

expressly define the disputed limitation, it lists examples of the monitored computer

system. Specifically, the specification of the ’237 patent states that

              The computer system, which is to be monitored, may take
              many forms. For example, the computer system may be a
              data center, an enterprise computing system, a network of
              computers, a mainframe computer, a mini-computer, a
              server, a workstation, and/or a personal computer.
              Alternatively, the computer system may be an MVS
              operating system-based computer (or one of its derivative
              like IBM’s OS/390), a UNIX operating system-based
              computer, an IBM AS400 computer, a Microsoft Windows
              operating system-based computer, an Apple Macintosh
              operating system-based computer, an OS/2 operating
              system-based computer, or a DOS-based computer.




05-1340                                   6
’237 patent, col. 46, l. 62-col. 47, l. 6. Contrary to Global’s assertions, the first portion of

the cited text does not set forth computer systems with different hardware. Rather, it

merely lists different forms of computer systems.          The second portion of the text,

however, distinguishes computer systems running different operating systems. Thus,

the written description supports the conclusion that one of ordinary skill in the art would

understand “heterogeneous computer systems” to refer to systems in which at least two

host computers use a different operating system. Nowhere does the written description

disclose or describe the context of the claimed invention in broader terms.

       The prosecution history is consistent with the conclusion noted above. As the

district court observed, the “heterogeneous computer system” limitation was added

during prosecution in response to rejection of the claims over the prior art.                In

distinguishing over the prior art, the prosecuting attorney explained that “Any monitoring

features performed by [Windows] NT are not with respect to heterogeneous computer

systems. For example, [Windows] NT has no facility to monitor operational processes

(as provided on the system console) in a VMS and MVS system.” In other words, the

prosecuting attorney clarified that the prior art did not encompass monitoring host

computers with different operating systems, such as a VMS and MVS system.

Additionally, during prosecution of the ’264 patent, the prosecuting attorney stated that

“the language of the claim has been clarified to indicate that the system of the claimed

invention controls the operating systems of the heterogeneous computers.” Thus, the

prosecution history supports the district court’s conclusion that the “heterogeneous

computer systems” are restricted in scope to encompass only systems in which at least

two host computers use different operating systems.




05-1340                                    7
       Global contests the district court’s reliance on expert testimony in its claim

construction ruling.     Specifically, the district court noted that Global’s own expert

“expressly defined a ‘heterogeneous computer system’ as one that simultaneously

controls multiple computers that use different operating systems.” Non-infringement

Order, slip op. at 8. In Phillips, we reaffirmed that “extrinsic evidence may be useful to

the court, but it is unlikely to result in a reliable interpretation of patent claim scope

unless it is considered in the context of the intrinsic evidence.” 415 F.3d at 1319. Here,

the district court considered the context of the intrinsic evidence and properly relied on

the extrinsic evidence merely to support the conclusion reached on claim construction

from the claims, the written description, and the prosecution history. We discern no

error in the district court’s analysis.

       We disagree with Global’s contention that the district court improperly imposed a

“simultaneous” requirement in its claim construction. Indeed, we commend the district

court for its thorough, careful, and precise analysis in this technically complex case.

Recognizing that the two host computers are unable to communicate directly with each

other because they speak different languages, the district court explained that “the

monitoring and control computer must understand and speak the language of both host

computers[, and thus] it simultaneously translates between the host computers.” Non-

infringement Order, slip op. at 9. The district court’s use of the word “simultaneous”

merely clarifies and explains a characteristic inherent in its claim construction of

“heterogeneous computer systems,” and does not further limit the claims.




05-1340                                   8
                                  2. Non-infringement

      The district court granted summary judgment of non-infringement based on its

conclusion that Global failed to present sufficient evidence to create a dispute of fact

relating to whether I/O Concepts’ products monitor and control “heterogeneous

computer systems.”     Specifically, the district court concluded that Global failed to

present evidence relating to the sale by I/O Concepts of any infringing product to AIG or

to any offer to sell, within the meaning of 35 U.S.C. § 271(a), of any infringing product

by I/O Concepts. See Non-infringement Order, slip op. at 9-13.

      Without pointing to any specific errors by the district court, Global contends on

appeal that “Appellants have raised an issue of fact relating to the sale of Appellee’s

infringing product to AIG.”   The district court considered the evidence presented,

including the testimony of an AIG representative who testified that, after remedying

some initial problems, “AIG now uses I/O Concepts to manage and control both MVS

and VM operating systems.” Non-infringement Order, slip op. at 10. The district court

also excluded portions of an affidavit of John Kaster as inadmissible hearsay, and

Global does not challenge that evidentiary ruling.      The district court noted that the

record merely indicated that “AIG uses one CCS system to monitor and control

computers running on the MVS operating system, and another CCS system to monitor

and control computers using the VM operating system.” Id., slip op. at 10-11. We

agree with the district court that the cumulative evidence submitted by Global is

insufficient to create a dispute of fact as to whether I/O Concepts has sold a product

that controls and monitors “heterogeneous computer systems,” as required by all the




05-1340                                 9
asserted claims. Thus, the district court did not err in granting summary judgment of

non-infringement.

                                  III. CONCLUSION

       For the foregoing reasons, the district court’s grant of summary judgment of non-

infringement is affirmed.




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