       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

    ACCENTRA, INC., AND WORKTOOLS, INC.,
          Plaintiffs-Cross Appellants,

                           v.
             STAPLES, INC., AND
    STAPLES THE OFFICE SUPERSTORE, LLC,
             Defendants-Appellants.
              __________________________

                   2012-1237,-1264
              __________________________

   Appeal from the United States District Court for the
Central District of California in Case No. 07-CV-5862,
Chief Judge Audrey B. Collins.
              ___________________________

               Decided: January 4, 2013
              ___________________________

    JOSEPH F. POSILLICO, Fox Rothschild, LLP, of Phila-
delphia, Pennsylvania, argued for plaintiffs-cross appel-
lants. With him on the brief was FRANK T. CARROLL.

   BARBARA L. MOORE, Cooley Manion Jones LLP, of
Boston, Massachusetts, argued for defendants-appellants.
Of counsel on the brief were DAVID COTTA, ANDREW T.
ACCENTRA   v. STAPLES                                            2


O’CONNOR and PETER J. CUOMO, Edwards Wildman
Palmer, LLP, of Boston, Massachusetts.
              __________________________

   Before BRYSON, SCHALL, and MOORE, Circuit Judges.
BRYSON, Circuit Judge.

                                I

     Plaintiffs Worktools, Inc., and Accentra, Inc., (collec-
tively, “Accentra”) are the owners and licensees of several
patents concerning staplers. Three are at issue in these
appeals. The first, U.S. Patent No. 7,080,768 (“the ’768
patent”), issued on July 25, 2006. It is entitled “Spring
Energized Desktop Stapler” and is directed to “a spring-
actuated desktop stapler that . . . relates to an improved
staple track and staple ejection features.” ’768 patent,
col. 2, ll. 17-19. The patent claims a few improvements
for desktop staplers, including an “automatic track open-
ing function.” Id., cols. 1-3. Descriptions of the automatic
track opening feature and its claimed advantages are
repeated throughout the specification. See, e.g., id., col. 2,
line 15, through col. 3, line 3; col. 5, ll. 36-37; col. 3, ll. 42-
46; col. 1, ll. 41-42.

    Claims 20 and 21 are at issue here.             Independent
claim 20 recites:

    20. A desktop stapler comprising:

    an elongated base including sidewalls;

    a body pivotably attached to the base toward a
     rear end of the stapler, the stapler having a
     closed stapler position wherein the body extends
     forward from the pivotal attachment in a sub-
3                                      ACCENTRA   v. STAPLES


     stantially parallel relationship with the base,
     and an open position of the stapler wherein the
     body is pivoted away from the base;

    a track assembly including a track pull disposed
     at a bottom of the body, wherein the base side-
     walls surround the track pull in the closed sta-
     pler position;

    and wherein the track assembly is slidably fitted
     to the body having an inward track position with
     the track assembly under the body, and movable
     to extend rearward from the body in the open
     position of the stapler so that the track pull ex-
     tends beyond the base sidewalls to be exposed
     outside the base sidewalls.

’768 patent, col. 12, ll. 3-23. Dependent claim 21 covers
“[t]he stapler of claim 20, wherein a track chamber is at
least partially exposed when the track assembly is moved
rearward.” Id., col. 12, ll. 24-26.

    The second patent in question is U.S. Patent No.
7,290,692 (“the ’692 patent”), entitled “Stapler Safety
Device to Limit Motion of Striker.” It issued on November
6, 2007. The ’692 patent is directed to a safety mecha-
nism that prevents a stapler’s “striker”—the part that
strikes and discharges staples—from moving until the
safety mechanism on the stapler’s handle comes into
contact with the objects to be stapled, or with the base,
when the handle is pressed all the way down. Asserted
claims 6, 7, and 9 are similar. Claim 6 recites, in relevant
part,

    a locking means disposed at the front end of the
     body and having a first portion that is biased out
ACCENTRA   v. STAPLES                                       4


     from the bottom of the body, the locking means
     having a second portion that is biased to advance
     into at least one of the power spring, striker, and
     handle to prevent at least one of the power
     spring, striker, and handle respectively from
     moving to complete a cycle to eject the fasteners
     from the guide track, wherein the first portion of
     the of the [sic] locking means presses the cover
     plate adjacent to the depression while in the
     pressed position of the base to retract the second
     portion.

’692 patent, col. 13, ll. 34-44.

    U.S. Patent No. 7,178,709 (“the ’709 patent”), entitled
“Spring Energized Desktop Stapler,” also issued in 2007.
It claims a desktop stapler that reduces the amount of
force the user needs to apply to the handle by storing
energy in a spring and releasing it all at once to discharge
a staple. Unlike so-called “direct acting” staplers, in
which the motion of the striker corresponds to the motion
of the handle, the stapler of the ’709 patent has a handle
that “can move more than the striker moves to provide
enhanced leverage.” ’709 patent, col. 1, ll. 49-51. When
the handle is “pressed near its front end,” for example, it
“may move downward one inch as the spring is deflected,
while the striker moves just ½ inch when the spring is
released.” Id., col. 1, ll. 51-54. “[T]he low operating force
makes [the stapler] easy to use with an extended hand on
a desk [or] even . . . by fingertips.” Id., col. 3, ll. 31-33.

    The ’709 patent refers to the invention as embodying
a “very compact” firing mechanism that requires the
application of minimal force by the user but still allows
the stapler to “maintain a conventional looking size.” ’709
patent, col. 3, ll. 9-10; see also id., col. 7, ll. 28-29 (“a
5                                        ACCENTRA   v. STAPLES


reasonably sized device resembling a desktop stapler
requires a very compact design”). Several of the claims
reference specific distances that the handle moves in the
course of the stapling process. E.g., id., col. 18, ll. 36-38.

    Independent claims 24 and 27, along with dependent
claims 25 and 28, are asserted here. Claim 24 reads, in
relevant part:

    24. A desktop stapler, comprising:

    a body with a handle pivotably attached to the
     body, the handle including a pressing area near
     a front end of the handle; . . .

    wherein the handle at the pressing area moves
     about 0.9 to 1 inch inclusive toward the base as
     the handle moves from the rest position to the
     pre-release position.

’709 patent, col. 18, ll. 15-38. Claim 27 reads, in relevant
part:

    27. A desktop stapler, comprising:

    a body with a handle pivotably attached to the
     body, the handle including a pressing area near
     a front end of the handle; . . .

    where the handle is moved toward the base, in-
     cluding a handle pressing area distance defined
     by the distance between the pressing area at the
     rest position and the pressing area at the pre-
     release position; . . .

    and wherein the pressing distance is about double
     the distance that the striker moves toward the
ACCENTRA   v. STAPLES                                     6


     base between the striker pre-release position and
     the striker lowest position.

Id., col. 18, line 48, through col. 19, line 10.

                               II

    In 2004, Accentra entered into an agreement with de-
fendants Staples, Inc., and Staples the Office Superstore,
LLC (collectively, “Staples”), to sell Accentra’s staplers
under Staples’ ONE-TOUCH brand. Accentra terminated
the agreement in 2007. Staples then began to sell sta-
plers of its own design. Later that year, Accentra brought
suit against Staples alleging that those staplers infringed
Accentra’s patents and its common law trademark rights.

    With regard to claim 20 of the ’768 patent, Staples’
claim construction focused on the limitation providing
that the stapler handle is “movable to extend rearward
from the body in the open position of the stapler so that
the track pull extends beyond the base sidewalls to be
exposed outside the base sidewalls.” That limitation,
Staples argued, requires that the stapler automatically
eject the track pull when the handle nears the fully open
position. The district court disagreed and held that claim
20 did not require automatic ejection of the track pull; the
court construed that language to include both automatic
and manual mechanisms for releasing the track pull
when the stapler is opened.

    With respect to the ’692 patent, Staples argued that
the terms “biasing the fasteners” and “biasing at least one
fastener” in claims 6 and 7 should be construed to require
that staples be present in order for an accused device to
infringe. The court rejected that construction, holding
7                                      ACCENTRA   v. STAPLES


that the claims cover the stapler regardless of whether it
is loaded with staples.

    Finally, as to the ’709 patent, Staples argued that as-
serted claims 24 and 27 were invalid for indefiniteness
because the term “pressing area” and the dimensions set
forth in the claims were indeterminate. Based on lan-
guage in the claims, the court defined the “pressing area”
on the handle to be “the surface area on the handle which
moves about 0.9 to 1 inch toward the base as the handle
moves from the rest position to the pre-release position,
measured by whichever creates a smaller area of (a.) the
distance traveled along an axis perpendicular to the base
or (b.) the straight line distance traveled by a point be-
tween the two positions.” In light of that construction,
the court concluded that the claims were not fatally
indefinite.

    Following trial, the jury returned a verdict for Accen-
tra on all counts. The jury found that each of the three
asserted patents was valid and infringed, and that the
infringement was willful. Based on a finding as to the
reasonable royalty, the jury awarded damages of $2.2
million. Staples moved for judgment as a matter of law,
arguing again that the asserted claims of the ’709 patent
were invalid for indefiniteness and that there was insuffi-
cient evidence to support the verdicts of infringement as
to the other two patents. Staples also challenged the
willfulness findings and the damages award. Accentra
moved for enhanced damages based on the jury’s finding
of willfulness.

    The district court granted partial relief to each party.
First, the court reversed its earlier ruling and held that
the ’709 patent was invalid as indefinite. With respect to
the distance the pressing area of the handle was required
ACCENTRA   v. STAPLES                                     8


to move, the court found that the “inability to determine
which method of measurement to use is critical to defi-
niteness because the method used can determine whether
the pressing area is ‘near’ the front end of the handle and
whether an accused stapler has a handle that moves the
required distance at the pressing area.” The court found
“no intrinsic or extrinsic evidence illuminat[ing] the
outcome-determinative issue of which method of meas-
urement [to] use[].” For that reason, the court found the
asserted claims to be ambiguous and therefore invalid.

    The court denied Staples’ challenges to the sufficiency
of the evidence with respect to the ’692 and ’768 patents.
As to the ’692 patent, the court held that the evidence
regarding the structural equivalence between the accused
devices and the embodiments of the safety mechanisms
disclosed in the specification was sufficient to support the
jury’s verdict. As to the ’768 patent, the court held that
the evidence was sufficient to support the jury’s infringe-
ment verdict based on its earlier claim constructions.

     With respect to damages, the court began by rejecting
Staples’ renewed argument that the testimony of Accen-
tra’s damages expert, Glenn Newman, should have been
excluded due to his alleged failure to tie the demand for
accused devices to the patented features. The court noted
that Mr. Newman “testified (albeit summarily) to the link
between the patented features collectively and demand
for the accused staplers,” and it ruled that Mr. Newman’s
testimony about a hypothetical license for all three pat-
ents together was sufficiently reliable to be admissible.
However, the court found the jury’s award of $2.2 million
to be problematic, for two reasons. First, the award
represented an effective royalty rate higher than the 10
percent rate proffered by Mr. Newman. Even in light of
Mr. Newman’s testimony, the court explained, “the most
9                                       ACCENTRA   v. STAPLES


the jury could have awarded in royalty damages was
$1,678,613.” Second, the jury award was based on a
finding of infringement of all three patents, including the
’709 patent, which the court had held invalid. Although
Mr. Newman had not apportioned his royalty rate on a
patent-by-patent basis, the court borrowed the patent-by-
patent apportionment used by Staples’ expert and applied
it to Mr. Newman’s 10 percent rate, leading the court to
conclude that it could uphold an award of damages in the
amount of approximately $1 million. The court left it to
the parties to perform the final damages calculations
based on the court’s formula.

    As to the issue of willfulness, the court agreed with
Staples that “insufficient evidence was offered to demon-
strate willful infringement of the ’768 and ’692 patents.”
The court therefore set aside the jury’s willfulness finding
with regard to those two patents.

    Both parties have appealed and have raised many—
too many—issues.

                             III

                             A

    Our cases instruct that when a patent “describes the
features of the ‘present invention’ as a whole, this descrip-
tion limits the scope of the invention.” Verizon Servs.
Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1308
(Fed. Cir. 2007); see also, e.g., Andersen Corp. v. Fiber
Composites, LLC, 474 F.3d 1361, 1367-68 (Fed. Cir. 2007);
SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys.,
Inc., 242 F.3d 1337, 1340-45 (Fed. Cir. 2001). Applying
that principle to claim 20 of the ’768 patent, we conclude
that the claim is limited to track pulls that open auto-
ACCENTRA   v. STAPLES                                     10


matically when the stapler handle and body are rotated
away from the stapler base.

      The ’768 specification makes it clear that the auto-
matic opening feature is central to the invention of that
patent. Most notably, the specification contrasts the
automatic opening feature with “a typical prior art stapler
without the automatic opening feature of the present
invention.” ’768 patent, col. 5, ll. 27-43. Figures 3 and 4
depict this difference, showing a track pull 60a that is
still closed when the prior art stapler has been rotated to
its open position in Figure 4 and a track pull 60 that has
been automatically opened and needs only to be “urg[ed] .
. . in any way to the rear” in Figure 3:




Id.; see also col. 3, ll. 42-46 (describing the “automatic
opening features” present in Figure 3 and not Figure 4).
The patent also contains several other references that
characterize the automatic opening feature as central to
the “present invention,” see id., col. 2, ll. 32-33 (“present
invention provides an automatic track opening function”);
col. 1, ll. 41-42 (“improvement of the present invention is
an automatic opening mechanism”). A discussion of the
automatic opening feature occupies most of Summary of
Invention, id., col. 2, line 15, through col. 3, line 3, and
11                                       ACCENTRA   v. STAPLES


the Abstract begins by characterizing the invention as a
desktop stapler that “includes an automatic opening
staple track.” Nowhere does the specification describe a
manual opening feature, other than to disparage such
features in the prior art. See, e.g., id., col. 5, ll. 36-43.

     Despite the specification’s focus on automatic opening
track pulls, the district court found that claim 20 does not
require that function. Relying on the distinction between
claims 15 and 20, the court agreed with Accentra that
claim 15 covers automatic opening and claim 20 does not,
because claim 15 uses the verb “moved,” while claim 20
uses the adjective “movable.” Compare ’768 patent, col.
11, line 17 (“the track assembly is moved rearward”), with
col. 12, ll. 17-19 (“the track assembly is . . . movable to
extend rearward”).

    We disagree. The use of “moved” and “movable” in
claims 15 and 20 simply reflects the different positions of
the stapler body described in each claim. Claim 15 speaks
of the “intermediate position” of the stapler body, while
claim 20 references the “open position,” in which the
stapler body has been pivoted all the way back from the
base so that the track pull is fully exposed. In the inter-
mediate position, the stapler body is still in the process of
being opened, and the track assembly is therefore still
being “moved.” Figures 1 and 2 illustrate this “interme-
diate position,” which represents “the initial steps of
automatically opening the track.” ’768 patent, col. 4, ll.
34, 44-45. Claims 7 and 8 similarly describe a track
assembly in the intermediate position as being actively
“pull[ed].” Id., col. 10, ll. 16-22. In the open position that
is the subject of claim 20, by contrast, the automatic
opening mechanism has completed its work. Id., col. 5, ll.
27-28. At that point, the track assembly is still “movable
rearward” to extend all the way out from the stapler body,
ACCENTRA   v. STAPLES                                        12


but it has been automatically opened part of the way. As
the patent explains, “[w]ith the automatic opening opera-
tion the user finds the track in a partially out position
just from opening the stapler body for loading. It is
merely needed to contact any part of the track or track
pull and urge it outward.” Id., col. 2, ll. 48-52; see also id.,
col. 5, ll. 31-33. The track assembly is thus still “movable
rearward” when open, even if it is not in the active proc-
ess of being “moved rearward” as it is in the intermediate
position.1

     We are not persuaded by Accentra’s contention that
claim 20, if construed not to cover automatic opening, is
nonetheless inventive because it claims “sidewalls that
surround.” If “sidewalls that surround” were truly the
“novel and non-obvious feature” that Accentra now as-
serts it to be, we would expect to see it described as such
somewhere in the patent. Tellingly, however, the patent
is replete with descriptions of the “present invention” and
its features, including the automatic opening feature, but
nowhere does it indicate that having “sidewalls that
surround” is inventive.

    Our disposition of this issue obviates the need to con-
sider Staples’ alternative arguments concerning the ’768
patent, including its argument that claim 20 is invalid for
obviousness, as that argument was based on the district
court’s claim construction.

    1   Claim 21, which depends from claim 20 and is
also asserted here, uses the word “moved” to describe “the
stapler of claim 20”; the use of “moved” in claim 21 sug-
gests that the patentee did not intend to draw the sharp
distinction for which Accentra argues between the word
“moveable” (as used in independent claim 20) and the
word “moved” (as used in independent claim 15 and
dependent claim 21).
13                                      ACCENTRA   v. STAPLES


                             B

    With respect to the ’692 patent, Staples appeals the
jury’s finding of infringement on two grounds. The par-
ties agree that the asserted claims of that patent, claims
6, 7, and 9, are “means plus function” claims governed by
35 U.S.C. § 112, ¶ 6 (now recodified as 35 U.S.C. § 112(f)).
Staples argues that its accused staplers do not infringe,
because the safety mechanisms on its staplers are not
equivalent to the structures set forth in the ’692 specifica-
tion corresponding to those claims. Staples points out
that the structures described in the specification use a
one-piece, pivoting mechanism to block the striker when
the safety device is on; the accused staplers use a two-
piece sliding mechanism to block the striker. Both
mechanisms use a cam to move the blocking device out of
the way of the striker to allow the striker to eject staples.
While the structures are slightly different, we agree with
the district court that there was substantial evidence to
support the jury’s finding that Staples’ devices are struc-
turally equivalent to the devices described in the specifi-
cation. That evidence included detailed expert testimony
concerning the patented features and the accused devices,
which gave the jury a sound basis for comparing the two.
While Staples complains that Accentra’s expert did not
articulate his opinion as to equivalence with sufficient
precision, we have reviewed the evidence and are satisfied
that the jury had firm support for its verdict.

    Staples makes a separate argument that the asserted
claims read on a stapler with staples loaded in it. Be-
cause the accused devices were sold empty, Staples ar-
gues, those devices did not infringe. That argument need
not detain us for long. Suffice it to say that we find
nothing in the claim language to support Staples’
ACCENTRA   v. STAPLES                                     14


cramped interpretation that the claims to a stapler are
infringed only when the stapler is sold loaded.

                             C

    Accentra’s cross-appeal focuses mainly on the district
court’s post-trial finding that the ’709 patent is indefinite
and invalid. We agree with Accentra that the court erred
in that respect. Because we find that the district court’s
indefiniteness ruling was based on an error in claim
construction that could have affected the jury’s considera-
tion of Staples’ obviousness challenge, we vacate the
district court’s ruling on indefiniteness and remand for
the district court to reconsider the issue of obviousness in
light of the proper claim construction.

    Representative claim 24 recites a stapler comprising
“a body with a handle pivotably attached to the body, the
handle including a pressing area near a front end of the
handle; . . . wherein the handle at the pressing area
moves about 0.9 to 1 inch inclusive toward the base as the
handle moves from the rest position to the pre-release
position.” ’709 patent, col. 18, ll. 15-38. As noted, the
district court construed the stapler’s “pressing area” as
the area on the surface of the handle that moves “about
0.9 to 1 inch toward the base as the handle moves from
the rest position to the pre-release position.” After de-
termining the location of the “pressing area” by determin-
ing what portion of the handle travels the requisite
distance, the district court then sought to determine
whether the pressing area was “near” the front of the
handle.

    The district court’s claim construction was mistaken
because it defined the pressing area in terms of the dis-
tance the handle at the pressing area was required to
15                                       ACCENTRA   v. STAPLES


move toward the stapler base. That construction is
inconsistent with the structure of the claims as written.
Contrary to the district court’s construction, the claims
first define the pressing area as being “near a front end of
the handle.” ’709 patent, col. 18, ll. 17-18, 50-51. The
claims then instruct that the pressing area must travel a
certain distance—“about 0.9 to 1 inch inclusive toward
the base” in claim 24. Id., col. 18, ll. 36-37. That limita-
tion is not part of the definition of the pressing area, but
is a separate limitation reciting how far the pressing area
may travel. As further evidence that the term “pressing
area” is not defined by its travel distance, it is telling that
claim 27, which also recites “a pressing area near a front
end of the handle,” makes no mention of a travel distance
of 0.9 to 1 inch. Rather, claim 27 recites that the “press-
ing distance,” i.e., “the distance between the pressing area
at the rest position and the pressing area at the pre-
release position,” is “about double the distance that the
striker moves toward the base.” Id., col. 18, ll. 60-62; col.
19, ll. 8-9. Only in dependent claim 28 does the distance
of 0.9 to 1 inch reappear in the claim language. See id.,
col. 18, line 50, through col. 20, line 4.

    Based in part on its erroneous claim construction, the
district court found the ’709 patent to be indefinite. We
disagree with the court’s conclusion. The definiteness
requirement seeks to “ensure that the claims delineate
the scope of the invention using language that adequately
notifies the public of the patentee’s right to exclude.”
Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342,
1347 (Fed. Cir. 2005). To do so does not require “absolute
clarity” or precision in claim language; this court has
ruled that claims are not invalid for indefiniteness unless
they are “‘not amenable to construction’ or ‘insolubly
ambiguous.’” Id. Overcoming the presumption of patent
validity, therefore, demands clear and convincing evi-
ACCENTRA   v. STAPLES                                   16


dence that “a skilled artisan could not discern the
boundaries of the claim.” Halliburton Energy Servs., Inc.
v. M-I LLC, 514 F.3d 1244, 1249 (Fed. Cir. 2008). There
is no such clear and convincing evidence here.

    Much of the district court’s analysis focused on the
parties’ dispute over how to measure the distance that a
stapler’s pressing area moves. The district court accepted
the assertion that there is more than one legitimate way
to measure the distance that a stapler handle travels,
including the so-called “vertical” method (the vertical
distance between the starting point of the pressing area
and its stopping point) and “point-to-point” method (the
diagonal distance traveled by a particular point on the
handle between its starting and stopping points). The
district court found that the patent did not specify which
method should be used and that the selection of a particu-
lar methodology is “outcome-determinative.” Accordingly,
the court held that this court’s decision in Honeywell
International, Inc. v. International Trade Commission,
341 F.3d 1332 (Fed. Cir. 2003), mandated a finding of
invalidity.

    Even assuming that there are several different ways
to measure the handle travel distance, Staples has not
presented clear and convincing evidence that the choice of
one or the other makes enough difference to render the
patent indefinite. Any minor differences can be accounted
for in the claims’ use of the word “about”—a term that,
when considered in context, is not ordinarily regarded as
giving rise to fatal indefiniteness. See, e.g., Modine Mfg.
Co. v. U.S. Int’l Trade Comm’n, 75 F.3d 1545, 1554 (Fed.
Cir. 1996) (“Although it is rarely feasible to attach a
precise limit to ‘about,’ the usage can usually be under-
stood in light of the technology embodied in the inven-
tion.”); BJ Servs. Co. v. Halliburton Energy Servs., Inc.,
17                                        ACCENTRA   v. STAPLES


338 F.3d 1368, 1372-73 (Fed. Cir. 2003) (affirming a jury
verdict that the term “about 0.06” did not render the
claim indefinite, even though the specification did not
describe how to calculate the relevant measurement).
The only evidence cited by the district court to show that
the choice of measurement methodology could place the
same accused device on different sides of the line between
infringement and non-infringement was the recanted
deposition testimony of Accentra’s expert. That is not
enough.

    Nor do we believe that the use of the term “near” in
the claims (“a pressing area near a front end of the han-
dle”) renders the ’709 patent indefinite. “Near” is a word
whose meaning is dictated by context. We have previ-
ously held that the term “near” is not indefinite when
used to denote a particular location and when the context
does not create insoluble ambiguity. See Power-One, Inc.
v. Artesyn Techs., Inc., 599 F.3d 1343, 1348-49 (Fed. Cir.
2010); Young v. Lumenis, Inc., 492 F.3d 1336, 1345-47
(Fed. Cir. 2007). Staplers require leverage on the handle
to operate and, as the patent makes clear, users typically
apply pressure near the front of the handle, where the
lever’s mechanical advantage is the greatest. In this
context, we find that the term is sufficiently precise to
describe the location of the area that is pressed to dis-
charge staples. The word is used throughout the ’709
patent in a variety of contexts, including in other claims.
See, e.g., ’709 patent, col. 1, ll. 51-52; col. 5, line 19; col.
10, line 60; col. 12, line 6; col. 15, ll. 43-44 (claim 8); col.
16, line 65 (claim 12). Consistent with its ordinary mean-
ing, we construe it to mean “at or in the vicinity of.”2

     2  At oral argument, Accentra took the position that
the phrase “near a front end of the handle” means in “the
front half” of the handle. We do not accept that definition,
ACCENTRA   v. STAPLES                                    18


Whatever play remains in that construction is not enough
to render the patent indefinite.

    To summarize, the ’709 patent recites a pressing area
“near” a front end of the handle, which we construe to
mean “at or in the vicinity of” the handle’s front end.
Where the claims further limit the distance over which
the pressing area travels, that distance must be what the
claims say it is—“about 0.9 to 1 inch inclusive toward the
base,” for instance. We have carefully considered Staples’
many arguments about the alleged indefiniteness of the
’709 patent and hold that the patent, as so construed, is
not invalid as indefinite.

     Our ruling on indefiniteness, however, does not mean
that the district court should simply reinstate the jury’s
verdict on the ’709 patent. Staples also contends that the
’709 patent is invalid for obviousness. According to Sta-
ples, prior art staplers had pressing areas on their han-
dles that traveled distances that were slightly more or
slightly less than the 0.9 to 1 inch distance claimed in the
’709 patent. On appeal, Accentra has not even responded
to this argument. Because the obviousness determina-
tions that were made below were made under an errone-
ous claim construction, the issue warrants a fresh look
under the correct construction. We remand for the dis-
trict court’s consideration of the matter in the first in-
stance.




which would treat the term “near a front end of the han-
dle” as if it read “nearer to the front end of the handle
than to the rear end.” We also wonder whether Accentra
would continue to embrace that broad interpretation of
the term “near” in the context of the obviousness chal-
lenge to the claims on remand.
19                                      ACCENTRA   v. STAPLES


                              D

    The jury awarded Accentra approximately $2.2 mil-
lion in reasonable royalty damages based on $16.7 million
in sales of the accused devices. The awarded amount was
higher than any figure proffered by either party’s expert.
Accentra’s expert testified that all three patents would
have together commanded a royalty rate of 10 percent in
a hypothetical negotiation, while Staples’ expert testified
that the appropriate royalty rates were 0.6% each for the
’768 and ’709 patents and 0.3% for the ’692 patent. The
district court reduced the $2.2 million reasonable royalty
award to an amount consistent with the 10 percent rea-
sonable royalty rate that Accentra’s evidence supported.
Both Accentra’s expert testimony and the jury’s verdict,
however, were premised on a judgment finding all three
patents to be valid and infringed. Because we have
vacated the judgment as to two of the three patents, we
believe that the proper course is to vacate the damages
award in its entirety and remand for further proceedings
so that the district court can revisit the damages issue
based on its reevaluation of the liability issues in light of
this decision.

                              E

    We have carefully considered the remaining issues on
appeal, including Accentra’s challenge to the district
court’s disposition on its trademark infringement claim
and on willfulness, and we affirm the district court’s
rulings on each of those issues.

     Each party shall bear its own costs for this appeal.

  AFFIRMED IN PART, REVERSED IN PART, and
      VACATED AND REMANDED IN PART
