Case: 19-2249   Document: 57     Page: 1    Filed: 07/16/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                    AKEVA L.L.C.,
                Counterclaimant-Appellant

                            v.

         NIKE, INC., ADIDAS AMERICA, INC.
             Counter-Defendants-Appellees
                ______________________

                       2019-2249
                 ______________________

    Appeal from the United States District Court for the
 Middle District of North Carolina in No. 1:09-cv-00135-
 LCB-JEP, Judge Loretta C. Biggs.
                  ______________________

                 Decided: July 16, 2020
                 ______________________

    MATIAS FERRARIO, Kilpatrick Townsend & Stockton
 LLP, Winston-Salem, NC, for counter-defendant-appellee
 Adidas America, Inc. Also represented by MITCHELL G.
 STOCKWELL, Atlanta, GA.

     CHRISTOPHER J. RENK, Banner & Witcoff, Ltd., Chi-
 cago, IL, for counter-defendant-appellee Nike, Inc. Also
 represented by MICHAEL JOSEPH HARRIS, JANICE V.
 MITRIUS, VICTORIA R. M. WEBB, KEVIN DAM.
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 2                                    AKEVA L.L.C.   v. NIKE, INC.



     DANIEL A. KENT, Kent & Risley, LLC, Alpharetta, GA,
 for counterclaimant-appellant.    Also represented by
 STEPHEN ROBERT RISLEY, CORTNEY ALEXANDER, OLIVIA
 MARBUTT, SAMUEL NAJIM.
                 ______________________

     Before NEWMAN, O’MALLEY, and CHEN, Circuit Judges.
 CHEN, Circuit Judge.
      Akeva L.L.C. (Akeva) owns a portfolio of footwear pa-
 tents including U.S. Patent Nos. 5,560,126 (’126 patent);
 6,966,130 (’130 patent); 7,114,269 (’269 patent); 5380,350
 (’350 patent); and 7,540,099 (’099 patent); (collectively, the
 Asserted Patents). The ’130, ’269, ’350, and ’099 patents
 all claim priority to the ’126 patent and are referred to as
 the Continuation Patents. Asics filed for declaratory judg-
 ment that it does not infringe the Asserted Patents and, in
 response, Akeva countersued for patent infringement. Ak-
 eva also added Nike, Inc., adidas America, Inc., New Bal-
 ance Athletic Shoe, Inc., and Puma North America, Inc. to
 the suit alleging infringement of certain claims of the As-
 serted Patents. The district court granted the Defendants
 summary judgment of no infringement as to the ’126 pa-
 tent, and invalidity as to the asserted claims of the Contin-
 uation Patents. Akeva now appeals. Because the district
 court correctly construed the claim term “rear sole secured”
 to exclude conventional fixed rear soles and also properly
 concluded that the Continuation Patents are not entitled
 to claim priority to the ’126 patent, we affirm the district
 court’s grant of summary judgment.
                        BACKGROUND
      The Asserted Patents describe improvements to ath-
 letic shoe rear soles and midsoles. The specification of the
 ’126 patent describes the problem of rear sole wear in
 which “the heel typically wears out much faster than the
 rest of the athletic shoe, thus requiring replacement of the
 entire shoe even though the bulk of the shoe is still in
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 AKEVA L.L.C.   v. NIKE, INC.                                3



 satisfactory condition.” ’126 patent col. 1 ll. 30–33. “An-
 other problem associated with outsole wear is midsole com-
 pression.” Id. at col. 1 ll. 34–35. The ’126 patent
 specification explains that “after repeated use, the midsole
 is compressed, . . . thereby causing it to lose its cushioning
 effect.” Id. at col. 1 ll. 37–39. “[I]n accordance with the
 purpose of the invention,” the Summary of the Invention
 describes a shoe having “a rear sole detachably secured or
 rotatably mounted to the heel support.” Id. at col. 3 ll. 25–
 42. The specification describes that midsole compression
 can be alleviated by placing a graphite insert into the mid-
 sole. Id. at col. 3 ll. 34–42. The Abstract likewise describes
 the invention as “[a] shoe includ[ing] a heel support for re-
 ceiving a rotatable and replaceable rear sole to provide
 longer wear. The shoe may also include a graphite insert
 supported by the heel support between the heel and the
 rear sole to reduce midsole compression and provide addi-
 tional spring.” ’126 patent Abstract. The ’126 patent thus
 discloses a solution to the problem with a conventional
 fixed rear sole by replacing it with either a detachable rear
 sole that can be replaced or a rear sole that is rotatable.
     The Continuation Patents claim priority to the ’126 pa-
 tent through a chain of intervening continuations, includ-
 ing the previously litigated U.S. Patent No. 6,604,300 (’300
 patent). The ’300 patent is a continuation-in-part of the
 ’126 patent. In a previous appeal, we found that the ’300
 patent specification disclaimed conventional fixed rear
 soles, thus preventing the claims of the ’300 patent from
 encompassing shoes with a conventional fixed rear sole.
 Akeva L.L.C. v. Adidas-Salomon AG, 208 F. App’x 861,
 864–65 (Fed. Cir. 2006) (Akeva I). In keeping with the dis-
 closure of the ’300 patent, we construed the claim term
 “rear sole secured”—the same disputed claim term we con-
 front here for the ’126 patent—to mean “selectively or per-
 manently fastened, but not permanently-fixed into
 position.” Id. at 864. More specifically, this means that the
 “rear soles that can be rotated or replaced,” but they are
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 4                                    AKEVA L.L.C.   v. NIKE, INC.



 not permanently fixed in position. Id. at 865. As filed, the
 ’296 continuation patent had the same specification as the
 ’300 patent, including the disclaimer, but Akeva amended
 the specification during prosecution to circumvent the dis-
 claimer language relied on in Akeva I and filed an Infor-
 mation Disclosure Statement (IDS) disclosing our decision
 in Akeva I and a statement explaining that it intended to
 rescind that disclaimer from the ’296 patent. Asics Am.
 Corp. v. Akeva L.L.C., 1:09–cv–00135, at 29–30 (M.D.N.C.
 Mar. 29, 2019) (Asics). The remaining Continuation Pa-
 tents are continuations of the ’296 patent and either in-
 cluded these amendments at filing or similarly amended
 the specification during prosecution. Id.
     In the present case, all of the accused shoes have a con-
 ventional fixed rear sole, and, in a motion for summary
 judgment, Defendants argued that the term “rear sole se-
 cured” in claim 25 of the ’126 patent, just as with the claims
 of the ’300 patent asserted in Akeva I, could not include a
 shoe with a conventional fixed rear sole. Claim 25 states:
     25. A shoe comprising:
         an upper having a heel region;
         a rear sole secured below the heel region of
         the upper; and
         a flexible plate having upper and lower sur-
         faces and supported between at least a por-
         tion of the rear sole and at least a portion
         of the heel region of the upper, peripheral
         edges of the plate being restrained from
         movement relative to an interior portion of
         the plate in a direction substantially per-
         pendicular to a major axis of the shoe so
         that the interior portion of the plate is de-
         flectable relative to the peripheral edges in
         a direction substantially perpendicular to
         the major axis of the shoe.
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 AKEVA L.L.C.   v. NIKE, INC.                                5



 ’126 patent claim 25 (emphasis added).
     As an initial matter, the district court in the present
 case declined to apply collateral estoppel against Akeva’s
 proposed construction, in light of the final decision in Ak-
 eva I as to the meaning of “rear sole secured,” because the
 ’300 patent is a continuation-in-part of the ’126 patent and
 the patents, although very similar in content, do not share
 an identical written description. Asics at 4. Nevertheless,
 after thoroughly reviewing the ’126 patent specification,
 the district court found that the ’126 patent disclaimed con-
 ventional fixed rear soles from its invention, concluding
 that “rear sole secured,” in the context of the ’126 patent,
 means “rear sole selectively or permanently fastened, but
 not permanently fixed into position.” See id. at 18–19. In
 other words, the rear sole could be (1) detachable or (2) at-
 tached and rotatable, but a conventional fixed rear sole is
 not within the scope of the claim term. The district court
 thus entered summary judgment that Defendants did not
 infringe the ’126 patent.
     As for the Continuation Patents, the district court rec-
 ognized that Akeva had amended the specifications to cir-
 cumvent the disclaimer language this court relied on for
 the ’300 patent in deciding Akeva I, in an effort to claim
 shoes having conventional fixed rear soles. Id. at 28–33. It
 was undisputed, however, that if the Continuation Patents
 were not entitled to claim priority to the ’126 patent, then
 the asserted claims would be invalid under 35 U.S.C. § 102
 due to Nike’s sales of its accused shoes with conventional
 fixed rear soles in the United States more than one year
 prior to the Continuation Patents’ filing dates. Id. at 35–
 36. In light of this court’s Akeva I ruling that the ’300 pa-
 tent specification disclaimed and disavowed conventional
 fixed rear sole shoes as well as the district court’s own rul-
 ing that the ’126 patent specification also disclaimed and
 disavowed conventional fixed rear sole shoes, the district
 court concluded that Akeva’s amendments to the specifica-
 tions of the Continuation Patents added new matter by
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 6                                     AKEVA L.L.C.   v. NIKE, INC.



 broadening the scope of the disclosure and therefore they
 could not claim priority to the ’126 patent. Id. at 29–33. As
 a result, because Nike’s accused product was on sale before
 the filing date of the Continuation Patents, the Continua-
 tion Patents were “invalid under 35 U.S.C. § 102 to the ex-
 tent that they purport to include shoes with” conventional
 fixed rear soles. Id. at 36.
     Akeva timely appealed. We have jurisdiction pursuant
 to 28 U.S.C. § 1295(a)(1).
                          DISCUSSION
                               I.
     Claim construction is as a question of law that may in-
 volve underlying fact inquiries. Teva Pharm. USA, Inc. v.
 Sandoz, Inc., 574 U.S. 318, 326 (2015); Wi-LAN USA, Inc.
 v. Apple Inc., 830 F.3d 1374, 1381 (Fed. Cir. 2016). This
 court reviews the district court’s claim construction based
 solely on intrinsic evidence de novo, and reviews subsidiary
 fact findings for clear error. Teva Pharm. USA, Inc. v.
 Sandoz, Inc., 789 F.3d 1335, 1337 (Fed. Cir. 2015).
      Claim terms are given their ordinary and customary
 meaning, as would be understood by a person of ordinary
 skill in the art at the time of invention in light of the claim
 language, the specification, and prosecution history. Phil-
 lips v. AWH Corp., 415 F.3d 1303, 1312–17 (Fed. Cir. 2005).
 “A claim term should be given its ordinary meaning in the
 pertinent context, unless the patentee has made clear its
 adoption of a different definition or otherwise disclaimed
 that meaning.” Ancora Techs., Inc. v. Apple, Inc., 744 F.3d
 732, 734 (Fed. Cir. 2014). The patent may provide such a
 clear intent either expressly or by implication. Luminara
 Worldwide, LLC v. Liown Elecs. Co., 814 F.3d 1343, 1353
 (Fed. Cir. 2016).
     The crux of the claim construction dispute in this ap-
 peal is similar to an issue we confronted in Akeva I as to
 the ’300 patent: whether the claim term “rear sole secured,”
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 AKEVA L.L.C.   v. NIKE, INC.                                7



 this time in the context of the ’126 patent, encompasses
 conventional fixed rear soles. We agree with the district
 court that the ’126 patent specification, like the related
 ’300 patent, clearly disclaims conventional rear fixed soles
 and therefore affirm its claim construction. As we stated
 in SciMed Life Systems Inc. v. Advanced Cardiovascular
 Systems Inc., “[w]here the specification makes clear that
 the invention does not include a particular feature, that
 feature is deemed to be outside the reach of the claims of
 the patent.” 242 F.3d 1337, 1341 (Fed. Cir. 2001); Ancora,
 744 F.3d at 734.
      As discussed above, numerous statements in the speci-
 fication make it clear a conventional fixed rear sole is not
 within the scope of the invention. ’126 patent col. 1 l. 9–
 col. 3 l. 43. Under Field of Invention, the patent describes
 “[t]he present invention” as “relat[ing] generally to an im-
 proved rear sole for footwear and, more particularly, to a
 rear sole for an athletic shoe with an extended and more
 versatile life and better performance in terms of cushioning
 and spring.” Id. at col. 1 ll. 9–12. The Background of the
 Invention section observes that, with conventional athletic
 shoes, “the sole is attached to the upper as a one-piece
 structure, with the rear sole being integral with the for-
 ward sole.” Id. at col. 1 ll. 14–22. The Background then
 disparages this conventional design for two reasons: (1)
 outsole wear, particularly in the heel, “requiring replace-
 ment of the entire shoe even though the bulk of the shoe is
 still in satisfactory condition,” and (2) midsole compression
 where the midsole, after repeated use, loses its cushioning
 effect. Id. at col. 1 ll. 23–42. The Background asserts that
 “[t]o date, there is nothing in the art to address the com-
 bined problems of midsole compression and outsole wear in
 athletic shoes, and these problems remain especially se-
 vere in the heel area of such shoes.” Id. at col. 1 ll. 52–55.
     The Summary of the Invention states that the inven-
 tion is a shoe that “includes an upper, a forward sole at-
 tached to the upper, a heel support attached to the upper,
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 8                                     AKEVA L.L.C.   v. NIKE, INC.



 and a rear sole detachably secured or rotatably mounted to
 the heel support.” Id. at col. 3 ll. 25–30 (emphasis added).
 The forward sole and heel support are thus conventionally
 attached to the upper, but the rear sole is not. In “another
 aspect” of the invention, the Summary describes a shoe
 with a heel support defining a “recess” and the rear sole,
 rather than being conventionally fixed to the shoe, is in-
 stead “receivable in the recess of the heel support . . . .” Id.
 at col. 1 ll. 34–42. The Abstract likewise focuses on the rear
 sole being replaceable or rotatable, by describing the inven-
 tion as a shoe that “includes a heel support for receiving a
 rotatable and replaceable rear sole to provide longer wear.”
 Id. at Abstract.
      The Description of the Preferred Embodiments section
 discloses a multitude of embodiments illustrated across 36
 figures, with each embodiment requiring either a detacha-
 ble or rotatable rear sole that is received within a recess of
 the heel support, as the district court correctly found. Asics
 at 14. For example, for the first disclosed embodiment,
 “[t]he rear sole 28 is detachable from the heel support 26.”
 ’126 patent col. 5 l. 42. Alternatively, “[t]he rear sole 28
 can also be rotatably mounted on the heel support 26.” Id.
 at col. 5 ll. 47–48. “The general features of the first embod-
 iment,” according to the patent, “will apply to all embodi-
 ments unless otherwise noted.” Id. at col. 8 ll. 9–12
 (emphasis added). The patent then stresses again that the
 purpose of the detachable or rotatable rear sole is to com-
 pensate for rear sole wear as well providing the user differ-
 ent performance characteristics:
     The ability to remove the rear sole serves several
     purposes. The user can rotate and/or invert the
     rear sole to relocate the worn section to a less crit-
     ical area of the sole, and eventually replace the rear
     sole altogether when the sole is excessively worn.
     Additional longevity in wear may also be achieved
     by interchanging removable rear soles as between
     the right and left shoes, which typically exhibit
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 AKEVA L.L.C.   v. NIKE, INC.                                    9



     opposite wear patterns. However, some users will
     prefer to change the rear soles not because of ad-
     verse wear patterns, but because of a desire for dif-
     ferent performance characteristics.
 Id. at col. 7 ll. 50–59. Moreover, the specification also con-
 templates a rear sole that is rotatable without also being
 removable. Id. at col. 8 ll. 32–34 (“[T]he same benefits of
 this invention can be achieved if only a portion of the rear
 sole is rotatable or removable.”); col. 8 ll. 37–40 (“For ex-
 ample, this invention includes the embodiment whereby a
 portion of the rear sole, e.g., the center area, remains sta-
 tionary while the periphery of the ground-engaging surface
 rotates and/or is detachable.”).
     The overwhelming focus of the remainder of the writ-
 ten description is devoted to different ways of securing the
 rear sole within the recess of the heel support, whether by
 press-fitting, protrusions and slots, tongue and groove,
 locking ring, and/or spiral grooves to screw the rear sole
 into the recess, all described in the context of a rear sole
 that is removable and/or rotatable. See, e.g., id. at col. 6 ll.
 30–46, col. 6 l. 66–col. 7 l. 14, col. 7 ll. 35–49, col. 8 ll. 13–
 29, col. 8 ll. 41–67, col. 9 l. 45–col. 10 l. 4. In sum, given the
 patent’s disparagement of conventional fixed rear sole
 shoes which suffer from rear sole wear, its characterization
 of the invention as a removable and/or rotatable rear sole,
 and its uniform, lengthy disclosure of such rear soles, we
 agree with the district court’s construction of “rear sole se-
 cured” to mean “rear sole selectively or permanently fas-
 tened, but not permanently fixed into position.” 1 Asics at
 18–19 (explaining further that this construction reflects
 the core invention of overcoming the problem “of the rear



     1   As the district court noted, this construction is con-
 sistent with our construction of “secured” for the related
 ’300 patent in Akeva I. Asics at 22–24.
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 10                                    AKEVA L.L.C.   v. NIKE, INC.



 sole wearing out faster than the rest of the shoe” by provid-
 ing “rear soles that can be rotated or replaced”).
     Akeva argues that the ’126 patent specification did not
 disclaim conventional fixed rear soles because, in its view,
 the specification discloses two distinct inventions that do
 not depend on each other: (1) rotatable and/or detachable
 rear soles and (2) a flexible plate in the midsole. We disa-
 gree, because the specification consistently describes the
 invention as a shoe with a detachable or rotatable rear sole
 that may additionally have a flexible plate (e.g., graphite
 insert). As the Abstract makes clear, the invention is “[a]
 shoe [that] includes a heel support for receiving a rotatable
 and replaceable rear sole to provide longer wear. The shoe
 may also include a graphite insert.” ’126 patent Abstract
 (emphasis added). Moreover, when the Summary of the In-
 vention refers to a “graphite insert,” it is combined with a
 “rear sole receivable in the recess of the heel support,” not
 a conventional fixed rear sole. Id. at col. 3, ll. 34–42. Akeva
 argues that Figure 28’s depiction of one possible configura-
 tion of the graphite insert supports its view. But Figure 28
 is stated to be “an isometric view of a graphite insert for
 use in the shoe of the present invention,” Id. at col. 4 ll. 48–
 49, and, as already explained, the disclosed invention ex-
 cludes conventional fixed rear soles, as the “purpose of the
 invention” is to overcome rear sole wear with a shoe having
 a detachable or rotatable rear sole that may additionally
 include a graphite insert. See SciMed Life Sys., Inc. v. Ad-
 vanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1343–44
 (Fed. Cir. 2001) (finding that “the SciMed patents distin-
 guish the prior art on the basis of the use of dual lumens
 and point out the advantages of the coaxial lumens used in
 the catheters that are the subjects of the SciMed patents”
 and that the specification included these dual lumens as
 part of “the present invention”); Alloc, Inc. v. Int’l Trade
 Comm’n, 342 F.3d 1361, 1371 (Fed. Cir. 2003) (“[T]he ’907
 specification indicates that the invention is indeed exclu-
 sively directed toward flooring products including play.
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 AKEVA L.L.C.   v. NIKE, INC.                               11



 Moreover, unlike the patent-at-issue in Sunrace, the ’907
 specification also distinguished the prior art on the basis of
 play.”).
      Akeva also relies on the specification’s statement that
 “[t]he graphite insert also need not be used only in conjunc-
 tion with a detachable rear sole, but can be used with per-
 manently attached rear soles as well” as proof that the
 specification contemplates a flexible plate inserted into the
 midsole of a shoe with a conventional fixed rear sole. Ap-
 pellant’s Br. at 30–31; ’126 patent col. 13 ll. 59–61. In Ak-
 eva I, we considered essentially the same statement in the
 ’300 continuation-in-part patent specification, which
 stated “[t]he flexible region also need not be used only in
 conjunction with a detachable rear sole, but can be used
 with permanently attached rear soles as well.” Akeva I,
 208 F. App’x at 864–65 (quoting ’300 patent col. 10 ll. 12–
 16). There, “when read in the context of the specification,”
 we held that “[t]he ‘permanently attached’ language in the
 specification contemplates shoes with heels that are per-
 manently fixed (cannot be interchanged) but are rotatable.”
 Id. at 865. We find that the same is true for the “perma-
 nently attached” language in the ’126 patent, when read in
 the context of its specification. Although the specifications
 of the two patents are not identical, the ’126 patent, as we
 observed above, describes an embodiment having a rear
 sole that is rotatable but not removable, using language
 virtually identical to a passage in the ’300 patent we cited
 and relied on in Akeva I. Compare ’126 patent, col. 8 ll. 30–
 40, with ’300 patent, col. 7 ll. 35–42; see also ’126 patent,
 col. 3, ll. 29–30 (describing “a rear sole detachably secured
 or rotatably mounted to the heel support”). Accordingly,
 when read in the context of the ’126 patent specification,
 we agree with the district court that the “permanently at-
 tached rear soles” discussed are rotatable (but not remova-
 ble) rear soles. At no point in the ’126 patent specification
 is a shoe with a conventional fixed rear sole contemplated
 as part of the invention.
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 12                                    AKEVA L.L.C.   v. NIKE, INC.



     Akeva also argues that the doctrine of claim differenti-
 ation supports its position. We disagree. Independent
 claim 25 requires the rear sole to be “secured.” ’126 patent
 at claim 25. Claims 33 and 40 both depend from claim 25
 and include a rear sole “detachably secured” and a “means
 for detachably securing the rear sole,” respectively. Id. at
 claims 33, 40. Akeva argues that claim 25 must be broader
 than these dependent claims and therefore must include a
 conventional fixed rear sole. But claim 25 encompasses
 both non-detachable, rotatable rear soles as well as detach-
 able rear soles under the district court’s construction, with
 which we agree. Akeva’s claim differentiation argument
 therefore is inapposite.
     In view of the foregoing, we agree with the district
 court that the ’126 specification clearly disclaims shoes
 with conventional fixed rear soles. Accordingly, we agree
 with the district court’s ruling that the Defendants’ ac-
 cused products do not infringe the ’126 patent.
                               II.
      We now turn to whether the Continuation Patents may
 properly claim priority to the ’126 patent. Akeva does not
 dispute that the asserted claims of the Continuation Pa-
 tents are invalid if they are not entitled to the ’126 patent’s
 priority date. To claim priority to a patent earlier in the
 priority chain, our case law emphasizes that there must be
 a continuity of disclosure. Hollmer v. Harari, 681 F.3d
 1351, 1355 (Fed. Cir. 2012); Zenon Envtl., Inc. v. U.S. Filter
 Corp., 506 F.3d 1370, 1378 (Fed. Cir. 2007); Lockwood v.
 Am. Airlines, Inc., 107 F.3d 1565, 1571–72 (Fed. Cir. 1997).
 Thus, in this case, to be entitled to claim priority to the ’126
 patent, there must be adequate written description support
 for the Continuation Patent claims through the chain of ap-
 plications leading back to the ’126 patent, which here in-
 cludes the ’300 patent. The disclaimer in the ’300 patent
 specifically excluded an athletic shoe with the conventional
 fixed rear sole and midsole insert from the patent’s scope,
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 AKEVA L.L.C.   v. NIKE, INC.                              13



 breaking any continuity of disclosure for that embodiment.
 As a result, the Continuation Patents cannot reach through
 the ’300 patent to claim an earlier priority date for claims
 directed to a shoe having a conventional fixed rear sole.
     As the district court correctly concluded, the funda-
 mental problem with Akeva’s priority argument is that the
 ’300 patent disclaims and therefore does not disclose shoes
 with conventional fixed rear soles. Akeva I, 208 F. App’x at
 865. Due to this break in the priority chain, the asserted
 claims of the Continuation Patents cannot claim priority to
 the ’126 patent for a shoe having a conventional fixed rear
 sole. Hollmer, 681 F.3d at 1355; Zenon, 506 F.3d at 1378;
 Lockwood, 107 F.3d at 1571–72. And as explained above,
 because we agree with the district court that the ’126 pa-
 tent likewise disclaims and therefore does not disclose
 shoes with a conventional fixed rear sole, Akeva’s priority
 claim argument fails for this reason as well.
     Akeva’s argument that the Continuation Patents re-
 scinded the prior disclaimers and that the Continuation
 Patents should thus be able to claim priority to the ’126
 patent is not persuasive. Akeva has provided no case law
 support for its position that a disclaimer in the specifica-
 tion can be later rescinded and undone by amendments to
 a subsequent continuation specification without this new,
 expanded scope of the disclosure constituting new matter
 in that subsequent continuation.
     Akeva would have us look to Hakim v. Cannon Avent
 Group, PLC, 479 F.3d 1313, 1317–18 (Fed. Cir. 2007), and
 Luv N’ Care, Ltd. v. Jackel International Limited, 115 F.
 Supp. 3d 808, 819–21 (E.D. Tex. 2015), as examples of dis-
 claimers of claim scope that were successfully rescinded in
 a later-filed continuation patent. But those cases involve
 disclaimers regarding the claim scope made during prose-
 cution, unlike the specification disclaimer in the present
 case. In those cases, the written description support for the
 asserted claims always existed in the prior patents, and the
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 14                                   AKEVA L.L.C.   v. NIKE, INC.



 patent owner then in the subsequent application filed a
 statement explicitly rescinding that prior-made prosecu-
 tion disclaimer. Hakim, 479 F.3d at 1317–18.
     A disclaimer in the specification, on the other hand,
 specifically excludes subject matter from the invention pos-
 sessed by the patentee. Moreover, we have previously ex-
 plained that removing limitations often broadens the
 description. Anascape, Ltd. v. Nintendo of Am. Inc., 601
 F.3d 1333, 1338 (Fed. Cir. 2010). In this case, for example,
 rescinding the specification disclaimer would bring an en-
 tirely new embodiment into the Continuation Patents that
 had originally been excluded from the ’300 patent’s disclo-
 sure. Such an embodiment would be “classical new matter”
 and is not within the scope of the invention as disclosed in
 the prior patent. Id. We therefore disagree with Akeva
 that it could rescind the specification disclaimer in the ’300
 patent by amending the specifications of the subsequent
 continuation patents, thereby adding new matter to the
 Continuation Patents, and then reach through that patent
 to the ’126 patent for priority. Moreover, given our holding
 as to the specification disclaimer in the ’126 patent, the as-
 serted claims of the Continuation Patents cannot claim pri-
 ority to the ’126 patent for the separate, additional reason
 that the ’126 patent disclaimed and thus does not disclose
 a shoe having a conventional fixed rear sole. The asserted
 claims of the Continuation Patents thus are not entitled to
 the ’126 patent’s priority date for that reason as well. 2




      2  Because we affirm the district court’s invalidity
 ruling as to the Continuation Patents, we need not address
 the Defendants’ alternative argument that the Continua-
 tion Patents are invalid because Akeva impermissibly
 added new matter to their specifications, and thus lacked
 adequate support for the asserted claims at the time those
 continuation applications were filed. See 35 U.S.C. 132(a)
Case: 19-2249       Document: 57   Page: 15   Filed: 07/16/2020




 AKEVA L.L.C.   v. NIKE, INC.                              15



      We agree with the district court that the ’300 patent
 broke the chain of priority for the asserted claims of the
 Continuation Patents and that the Continuation Patents
 cannot claim priority to the ’126 patent. As a result, be-
 cause the parties have admitted that the accused Nike shoe
 is prior art if the Continuation Patents cannot claim prior-
 ity to the ’126 patent, Asics at 35–36, the asserted claims
 of the Continuation Patents are invalid under the on-sale
 bar. Vanmoor v. Wal-Mart Stores, Inc., 201 F.3d 1363,
 1366–67 (Fed. Cir. 2000).
                            CONCLUSION
     We hold that the ’126 patent disclaimed a shoe with a
 conventional fixed rear sole. As a result, such a shoe is not
 within the scope of claim 25 of the ’126 patent. Further,
 the Continuation Patents cannot claim priority to the ’126
 patent for claims covering a conventional fixed rear sole be-
 cause the chain of priority was broken by the ’300 patent.
 Thus, the asserted claims of the Continuation Patents are
 anticipated. We have considered Akeva’s remaining argu-
 ments and find them unpersuasive. The district court’s
 grant of summary judgment is
                            AFFIRMED




 (“No amendment shall introduce new matter into the dis-
 closure of the invention.”).
