       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

     CAMBRIAN SCIENCE CORPORATION, A
        CALIFORNIA CORPORATION,
              Plaintiff-Appellant

                           v.

  COX COMMUNICATIONS, INC., A DELAWARE
  CORPORATION, 360 NETWORKS USA INC., A
   NEVADA CORPORATION, TELEKENEX, A
    DELAWARE CORPORATION, INFINERA,
 CORPORATION, A DELAWARE CORPORATION,
   XO COMMUNICATIONS SERVICES LLC, A
  DELAWARE LIMITED LIABILITY COMPANY,
 GLOBAL CROSSING TELECOMMUNICATIONS,
  INC., A MICHIGAN CORPORATION, LEVEL 3
COMMUNICATIONS, LLC, A DELAWARE LIMITED
 LIABILITY COMPANY, ELECTRIC LIGHTWAVE
    LLC, A DELAWARE LIMITED LIABILITY
     COMPANY, IXC HOLDINGS INC, DBA
  TELEKENEX, A DELAWARE CORPORATION,
              Defendants-Appellees
             ______________________

                      2014-1686
                ______________________

   Appeal from the United States District Court for the
Central District of California in No. 8:11-CV-01011 AG
(JPRx), Judge Andrew J. Guilford.
2    CAMBRIAN SCIENCE CORPORATION   v. COX COMMUNICATIONS,
                                                      INC.


                  ______________________

                  Decided: June 29, 2015
                  ______________________

    C. DALE QUISENBERRY, Polasek, Quisenberry & Err-
ington, LLP, Bellaire, TX, argued for plaintiff-appellant.

    RUFFIN B. CORDELL, Fish & Richardson, P.C., Wash-
ington, DC, argued for defendants-appellees. Also repre-
sented by JOSEPH V. COLAIANNI, JR., LINHONG ZHANG;
JOHN A. DRAGSETH, Minneapolis, MN; OLGA I. MAY, San
Diego, CA; AUDRA A. DIAL, Kilpatrick Townsend & Stock-
ton LLP, Atlanta, GA.
                ______________________

    Before PROST, Chief Judge, LOURIE and CHEN, Circuit
                          Judges.
PROST, Chief Judge.
     This appeal arises from the judgment of the United
States District Court for the Central District of California
following its entering of a final judgment in favor of Cox
Communications, Inc. et al. (collectively “Cox”). Cambri-
an Science Corporation (“Cambrian”) asserted claims 57
and 58 of United States Patent No. 6,775,312 (“’312
patent”) against Cox’s Generation 2 photonic integrated
circuit (“Gen 2”). 1 While Cox moved for summary judg-
ment on several grounds, the district court reached only
the issue of non-infringement based on the “active wave-
guide coupler” claim limitation.



     1  While Cambrian also accused two other chips, the
Generation 1 photonic integrated circuit and the Genera-
tion 3 photonic integrated circuit, Cambrian appeals only
the district court’s ruling as it relates to the Gen 2 chip.
CAMBRIAN SCIENCE CORPORATION     v. COX COMMUNICATIONS,     3
INC.


    Because we agree with Cox that the district court did
not err in either its claim construction or its summary
judgment holdings, we affirm the district court’s final
judgment.
                       BACKGROUND
    This case involves fiber optic data communication sys-
tems in which lasers are used to produce light beams that
are then transmitted over fiber optic cables. Data is
transmitted through the fiber optic cables by modulating
the light that is produced by the laser. To increase the
amount of data carried on a fiber optic cable, it is regular
practice to combine multiple light beams, each light beam
calibrated to a different wavelength. An optical compo-
nent called a “coupler” is responsible for receiving and
combining the multiple modulated light beams onto the
single fiber optic cable.
    During the transmission of an optical signal across a
fiber optic cable, the optical signal gradually loses intensi-
ty. To counteract this, components called amplifiers are
attached to the system to boost the intensity of the optical
signals. A component that boosts the power of an optical
signal is said to produce “gain.” Furthermore, adding
gain to the system is referred to as “pumping.”
     Optical components can be made of either active ma-
terials or passive materials. Active material is capable of
being pumped to provide gain, thus increasing the inten-
sity of the light traveling through it. Conversely, passive
material does not allow for the light traveling through it
to increase intensity, even when pumped. 2




    2   The parties disagree as to the meaning of “active”
and “passive.” However, as we find below, these terms
are clearly defined in the specification.
4   CAMBRIAN SCIENCE CORPORATION     v. COX COMMUNICATIONS,
                                                       INC.


    The patent at issue is directed to the physical inter-
face between passive and active components. Specifically,
the patent uses an active waveguide coupler to facilitate
the coupling of multiple lasers into a single fiber optic
cable. ’312 patent abstract. The patent explains that the
use of the active coupler alleviates many of the problems
surrounding the use of both active and passive compo-
nents within the same integrated chip, i.e., the active to
passive transition points. The patent states that by using
an active coupler, it overcomes the prior art’s increased
manufacturing complexity and the signal refraction
caused by misalignment between active and passive
materials. Id. at col. 2 ll. 21-55.
   The only asserted independent claim is claim 57,
which reads:
    A photonic integrated circuit comprising:
    a laser array formed in a crystalline lattice struc-
    ture semiconductor material;
    an active waveguide coupler receiving outputs of
    the laser array; and
    wherein at least one portion of the photonic inte-
    grated circuit is formed at a non-orthogonal angle
    with respect to a cleavage plane of the semicon-
    ductor material.
Id. at col. 17 l. 25–col. 18 l. 3 (emphasis added).
    Following a Markman hearing the district court con-
strued the phrase “active waveguide coupler” to mean “a
component that forms a portion of the optical path, that
combines light from multiple sources, and in which the
absorption of an optical signal can be changed to gain by
application of pumping.” J.A. 88. In construing the
phrase, the district court held that only the word “active”
was actually in dispute.
CAMBRIAN SCIENCE CORPORATION    v. COX COMMUNICATIONS,     5
INC.


    Thereafter, Cox moved for summary judgment on var-
ious grounds; however, the district court only reached the
issue of non-infringement based on the “active waveguide
coupler” requirement. Cambrian requested a Rule 56(d)
continuance, which was denied on the ground that the
district court found that Cambrian had not acted diligent-
ly in seeking the discovery of the information it now
sought. The district court granted summary judgment of
non-infringement as to both claims 57 and 58.
    Cambrian timely appealed to this court, arguing that
the district court erred in its claim construction and
summary judgment ruling. This court has jurisdiction
over this case under 28 U.S.C. § 1295(a)(1).
                        DISCUSSION
                    Claim Construction
    The ultimate construction of a claim term is a legal
question reviewed de novo by this court. Teva Pharm.
USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015).
Underpinning the ultimate construction of the claims are
both findings of fact and law. The Supreme Court has
held that district court findings regarding the intrinsic
record are solely a determination of law, while those
findings relying on the extrinsic record are findings of fact
to be reviewed for clear error. Shire Dev., LLC v. Watson
Pharm., Inc., No. 13-1409, 2015 WL 3483245, at *4 (Fed.
Cir. June 3, 2015) (quoting Teva, 135 S. Ct. 841-42).
    When determining the construction of a claim term,
we look to how a person of ordinary skill in the art under-
stands the term. Phillips v. AWH Corp., 415 F.3d 1303,
1313 (Fed. Cir. 2005). “Importantly, the person of ordi-
nary skill in the art is deemed to read the claim term not
only in the context of the particular claim in which the
disputed term appears, but in the context of the entire
patent, including the specification.” Id.
6   CAMBRIAN SCIENCE CORPORATION    v. COX COMMUNICATIONS,
                                                      INC.


    Cambrian appeals only the last clause of the district
court’s claim construction, “and in which the absorption of
an optical signal can be changed to gain by application of
pumping,” which correlates with the term “active.” Cam-
brian argues that the district court erred in its construc-
tion, as the claim language does not include any of the
aforementioned limitations.       For example, Cambrian
points to the fact that the words, “absorption,” “optical,”
“gain,” and “pumping” are not included in the claim.
Furthermore, Cambrian contends that the district court’s
inclusion of these terms violates both the rule against
limiting the scope of the claims to the embodiments
disclosed in the specification, under Rexnord Corp. v.
Laitram Corp., 274 F.3d 1336, 1344 (Fed. Cir. 2001), and
the rule against importing limitations from the specifica-
tion into the claim, under Phillips, 415 F.3d. at 1320.
    Cox responds that the district court’s claim construc-
tion matches the plain claim language and aligns with the
specification, as it makes clear that the waveguide coupler
must be active. We agree.
    First, we look to the claim language, as “[t]he actual
words of the claim are the controlling focus.” Digital
Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed.
Cir. 1998). The claims in question, by their plain lan-
guage, require an “active waveguide coupler,” not simply
a “waveguide coupler.” Therefore this case turns on the
meaning of “active.”
    Second, “claims must be read in view of the specifica-
tion, of which they are a part.” Phillips, 415 F.3d at 1315
(internal quotation marks omitted). The ’312 patent
specification clearly defines “active” and “passive.” An
active region or component is one that is made of active
material, which is capable of being pumped to produce
gain to an optical signal. This description of the active
region is found repeatedly throughout the specification.
See ’312 patent col. 7 ll. 62-64, col. 8 ll. 9-12, 13-16.
CAMBRIAN SCIENCE CORPORATION     v. COX COMMUNICATIONS,     7
INC.


Furthermore, the specification draws a distinction be-
tween active and passive material, by specifically defining
passive material as material not capable of being pumped.
See id. at col. 2 ll. 29-31, 20-23, col. 5 ll. 46-49. Cambrian
points to nothing in the intrinsic record—and we cannot
find anything—that indicates that passive material is
capable of producing gain when pumped. Thus, the
ability to provide gain when pumped is required for a
material to be active, and therefore must be required of
the “active waveguide coupler.”
    Cambrian cites to various portions of the specification
arguing that providing gain is an optional, but not re-
quired, characteristic of an active waveguide coupler. We
disagree. Cambrian cites to the following sections of the
specification:
    The MMI coupler 100 of FIG. 6 is optionally
    pumped substantially over the entire active region
    thereof. In this manner, maximum gain may be
    obtained. Alternatively, MMI coupler 100 or any
    other active region of the photonic integrated cir-
    cuit of the present invention may be pumped only
    at selected portions thereof, as discussed below.
Id. at col. 7 ll. 62-67 (emphases added).
    Referring now to FIG. 7, another embodiment of
    the present invention has an MMI coupler 101,
    which is pumped only partially. That is, the elec-
    trodes of the MMI coupler 101 are configured so
    as to only pump the active material of the MMI
    coupler 101 at certain locations, e.g., at the loca-
    tions therein of maximum light intensity.
Id. at col. 8 ll. 1-6 (emphases added). Cambrian argues
that these passages show that active material may be
composed of regions that are both capable and not capable
of being pumped. However, this is a misreading of the
specification. The passages instead indicate that while
8   CAMBRIAN SCIENCE CORPORATION   v. COX COMMUNICATIONS,
                                                     INC.


active material must be capable of being pumped, the
described invention does not require that every portion of
the material capable of being pumped actually be
pumped.
    Cambrian makes the additional argument that the
district court should not have relied upon Mr. Koch’s
expert testimony. We need not reach that issue here, as
the intrinsic evidence fully determines the proper con-
struction of the contested claim term. See Shire Dev.,
2015 WL 3483245, at *4.
                   Summary Judgment
    We review the district court’s grant or denial of sum-
mary judgment under the law of the regional circuit, here
the Ninth Circuit. Halo Elecs., Inc. v. Pulse Elecs., Inc.,
769 F.3d 1371, 1377 (Fed. Cir. 2014). The Ninth Circuit
reviews the grant or denial of summary judgment de
novo. Humane Soc’y of the U.S. v. Locke, 626 F.3d 1040,
1047 (9th Cir. 2010).
    For an accused product to literally infringe a patent
claim, every limitation recited in the claim must be found
in the accused device. Engel Indus., Inc. v. Lockformer
Co., 96 F.3d 1398, 1405 (Fed. Cir. 1996). Here, it is clear
that the accused device, Gen 2, does not contain an “active
waveguide coupler” and thus cannot literally infringe the
asserted claims.
    For Cox’s Gen 2 device to infringe it must contain an
“active waveguide coupler,” which, by our construction,
requires that a component of the system both (1) “com-
bine[] light from multiple sources” and (2) be made of
active material, i.e., material “in which the absorption of
an optical signal can be changed to gain by application of
pumping.” As the district court found, and as we agree,
the evidence leads to only one possible conclusion—that
there is no “active waveguide coupler” present in the Gen
2 circuit. Instead, the waveguide coupler used in the Gen
CAMBRIAN SCIENCE CORPORATION   v. COX COMMUNICATIONS,     9
INC.


2 device is passive. 3 Cambrian’s argument that one
should look to the combination of both the coupler and its
attached amplifier is unavailing. The claim term requires
that the waveguide coupler be active, not that the wave-
guide coupler in combination with other components may
be considered active.
    Further, Cambrian argues that because it is possible
that the coupler found in the Gen 2 device contains some
material that in some cases may be considered active,
there is a genuine factual question as to whether the
waveguide coupler is active or passive. We disagree.
Even if the coupler contains some portions that are active,
this does not satisfy the claim construction for an “active
waveguide coupler,” as an active coupler must be capable
of being pumped at any location. Furthermore, the un-
disputed testimony makes clear that the Gen 2 waveguide
coupler is incapable of being pumped, and thus cannot
meet the claim construction of an “active waveguide
coupler.” Appellees’ Br. 47 (citing the testimony of Cam-
brian’s expert, Dr. Dutta, at J.A. 9088 (104:7-16)).
    Cambrian’s doctrine of equivalents argument is equal-
ly unavailing. Under the doctrine of equivalents, “a
product or process that does not literally infringe upon the
express terms of a patent claim may nonetheless be found
to infringe if there is ‘equivalence’ between the elements
of the accused product or process and the claimed ele-
ments of the patented invention.” Warner-Jenkinson Co.
v. Hilton Davis Chem. Co., 520 U.S. 17, 21 (1997). How-
ever, “the range of equivalents cannot be divorced from
the scope of the claims.” Vehicular Techs. Corp. v. Titan


   3    The parties’ briefs are not consistent as to wheth-
er or not it is confidential that the Gen 2 coupler is pas-
sive. Nevertheless, as Cox’s attorney referred to it as
passive during oral argument, any confidentiality that
may apply to this fact has been waived.
10 CAMBRIAN SCIENCE CORPORATION v. COX COMMUNICATIONS,
                                                  INC.


Wheel Int’l, Inc., 212 F.3d 1377, 1382 (Fed. Cir. 2000).
The Supreme Court has held that the proper inquiry is:
Whether “the accused product or process contain elements
identical or equivalent to each claimed element of the
patented invention?” Warner-Jenkinson Co., 520 U.S. at
19.
    Cambrian fails to demonstrate that there is a genuine
dispute of material fact as to whether the Gen 2 product
satisfies the doctrine of equivalents. Cambrian’s factual
support for its doctrine of equivalents claim is limited to
two paragraphs from its expert report, both of which are
conclusory. J.A. 9197 ¶ 163, 9206 ¶ 195. Both para-
graphs simply conclude that if literal infringement is not
met, then it is the expert’s opinion that the “active wave-
guide coupler” limitation is met under the doctrine of
equivalents because any differences between the structure
and the claim limitations are insubstantial. Id. The
paragraphs are devoid of any particularized testimony or
linking arguments. In fact, the paragraphs lack any
factual statements. Thus, as with literal infringement,
we affirm the district court’s ruling as to the doctrine of
equivalents.
   We have reviewed Cambrian’s remaining arguments
and find them unpersuasive.
                       CONCLUSION
    For the reasons stated above, we affirm the district
court’s claim construction for the term “active waveguide
coupler” and the district court’s grant of summary judg-
ment of non-infringement.
                      AFFIRMED
