Case: 20-1176   Document: 36     Page: 1   Filed: 08/27/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

   STEVE NEVILLE, SUBSTRUCTURE SUPPORT,
           INC., TDP SUPPORT, INC.,
               Plaintiffs-Appellants

                            v.

   ALDRIDGE CONSTRUCTION, INC., HENSEL
  PHELPS CONSTRUCTION CO., M-PILE SALES,
      LLC, MAGCO DRILLING, INC., MATT
 CONSTRUCTION CORP., SHORING ENGINEERS,
   STRUCTURAL SHOTCRETE SYSTEMS, INC.,
   ALDRIDGE ELECTRIC, INC., FOUNDATION
 CONSTRUCTORS, INC., FOUNDATION PILE, INC.,
        GONSALVES & SANTUCCI, INC.,
              Defendants-Appellees
             ______________________

                       2020-1176
                 ______________________

    Appeal from the United States District Court for the
 Central District of California in No. 2:17-cv-08929-AG-
 AGR, Judge Andrew J. Guilford.
                  ______________________

                Decided: August 27, 2020
                ______________________

    JOEL KAUTH, KPPB LLP, Anaheim, CA, for plaintiffs-
 appellants. Also represented by MARK YEH.
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 2                   NEVILLE   v. ALDRIDGE CONSTRUCTION, INC.




     TYSON K. HOTTINGER, Maschoff Brennan, Irvine, CA,
 for defendants-appellees. Also represented by JARED J.
 BRAITHWAITE, Salt Lake City, UT; ROBERT PARRISH
 FREEMAN, JR., Park City, UT.
                 ______________________

     Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
 CHEN, Circuit Judge.
      Plaintiff-appellants Steve Neville, Substructure Sup-
 port, Inc., and TDP Support, Inc. (collectively, “Substruc-
 ture”) appeal the district court’s ruling on summary
 judgment that certain accused products of Aldridge Con-
 struction, Inc. et al. (“Aldridge”) do not infringe claims 1–
 4, 6–11, 14–19, 22–27, 29, and 32–33 of U.S. Patent No.
 7,914,236 and claims 1–16, 19–22, 25–28, 31–32, 34–37,
 and 39 of U.S. Patent No. 9,284,708. This appeal involves
 the same asserted patents and disputed claim terms as its
 companion appeal in Neville v. Foundation Constructors,
 Inc., No. 20-1132 (Fed. Cir. August 27, 2020), in which we
 affirm the district court’s noninfringement ruling of sum-
 mary judgment based on its construction of an “end plate
 having a substantially flat surface” and a “protrusion ex-
 tending outwardly from the end plate.” We likewise affirm
 here.
                         DISCUSSION
     “For much the same reasons provided in the [district
 court’s] summary judgment order in the Foundation case,”
 the district court here granted summary judgment of non-
 infringement against accused foundation piles having “M-
 pile” tips. 1 J.A. 12; see also Neville v. Foundation


      1  The M-pile tips are manufactured by casting or
 welding; we refer only to the products manufactured by
 casting, as the welded versions are not at issue on appeal.
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 NEVILLE   v. ALDRIDGE CONSTRUCTION, INC.                   3



 Constructors, Inc., No. EDCV 17-02507 AG (AGRx), 2019
 WL 6894522, at *6–7 (C.D. Cal. Aug. 19, 2019). Substruc-
 ture appeals the district court’s ruling that certain accused
 foundation piles with “M-pile” tips do not infringe the as-
 serted claims because the M-pile tip lacks an “end plate
 having a substantially flat surface” and a “protrusion ex-
 tending outwardly from the end plate.” J.A. 12–14.
     For the reasons set forth in our Foundation opinion,
 the district correctly construed an “end plate having a sub-
 stantially flat surface” as referring to an exterior-facing
 surface, id. at 12, and a “protrusion extending outwardly
 from the end plate” as not encompassing a “single, coni-
 cally-shaped piece” for which “there is not a demarcation of
 where an ‘end plate’ should end and the ‘protrusion’ should
 begin.’” Id. at 13; Foundation, No. 20-1132, slip op. at 8–
 12 (Fed. Cir. August 27, 2020).
     Substructure maintains that its expert’s testimony al-
 leging that portions of the M-pile tip matched the claimed
 “end plate” and “protrusion” elements was sufficient to
 raise a genuine issue of material fact. We disagree. Sub-
 structure’s expert, Dr. Decker, provided the following an-
 notated photographs illustrating what he contended was
 the claimed “end plate” and “protrusion”:
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 4                    NEVILLE   v. ALDRIDGE CONSTRUCTION, INC.




 J.A. 718, 734. As apparent from Dr. Decker’s annotated
 photographs, the alleged “end plate” does not have any ex-
 terior-facing surface that is “substantially flat.” To the ex-
 tent that Substructure argues that the annotated “end
 plate” contains a flat surface facing the interior of the pile
 tip, that infringement theory is incompatible with the dis-
 trict court’s construction. Nor does Dr. Decker’s labeling of
 a region of the pile tip as a “protrusion” create a material
 dispute where, as the district court correctly noted, the
 “single, conically-shaped piece” cannot be differentiated
 into an end plate and a protrusion from that end plate. J.A.
 13. Thus, we agree with the district court that “Plaintiffs
 cannot satisfy their burden of showing that the cast M-Pile
 tips have an ‘end plate’ with a ‘substantially flat surface’ or
 an ‘end plate’ with a ‘protrusion.’” Id.
                         CONCLUSION
    We have considered Substructure’s remaining argu-
 ments and find them unpersuasive. For the reasons stated
 above, we affirm the district court’s claim constructions
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 NEVILLE   v. ALDRIDGE CONSTRUCTION, INC.                  5



 and ruling at summary judgment of noninfringement as to
 the accused products containing the M-pile pile tip.
                         AFFIRMED
