       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

         HOMELAND HOUSEWARES, LLC,
   Plaintiff/Counterclaim Defendant-Cross Appellant,

                         AND

  HASTIE2MARKET, LLC, C-SQUARED TV, INC.,
  INFOMERCIAL CONSULTING CORPORATION,
   BRENTWOOD CORPORATE SERVICES, INC.,
   BABY BULLET, LLC, CAPITAL BRANDS, LLC,
               AND DOES 1-10,
            Counterclaim Defendants,

                           v.

  SORENSEN RESEARCH AND DEVELOPMENT
                    TRUST,
      Defendant/Counterclaimant-Appellant.
             ______________________

                   2013-1345, -1383
                ______________________

   Appeals from the United States District Court for the
Central District of California in No. 11-CV-3720, Judge
George H. Wu.
                 ______________________

              Decided: September 8, 2014
                ______________________
2        HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH



    R. JOSEPH TROJAN, Trojan Law Offices, of Beverly
Hills, California, argued for plaintiff/counterclaim de-
fendant-cross appellant. With him on the brief was
DYLAN C. DANG.

    PATRICIA A. SHACKELFORD, Law Office of Patricia A.
Shackelford, of Encinitas, California, argued for defend-
ant/counterclaimant-appellant. With her on the brief was
CHRISTIAN FENTON, Law Office of Christian Fenton, of
San Diego, California.
                 ______________________

    Before LOURIE, BRYSON, and CHEN, Circuit Judges.
BRYSON, Circuit Judge.
    Declaratory judgment defendant Sorensen Research
and Development Trust (“Sorensen”) appeals from the
decision of the United States District Court for the Cen-
tral District of California granting the plaintiff Homeland
Housewares, LLC (“Homeland”) summary judgment of
noninfringement of U.S. Patent No. 6,599,460 (“the ’460
patent”).    Homeland has conditionally cross-appealed
from the district court’s decision granting Sorensen sum-
mary judgment of validity and denying Homeland’s
motion for summary judgment of invalidity of the ’460
patent. We affirm summary judgment of noninfringement
and do not reach the invalidity cross-appeal.
                             I
    The ’460 patent recites a method for manufacturing
“thin wall” plastic products by injection molding. Injec-
tion molding is a process in which molten plastic is inject-
ed under pressure into a mold shaped in the form of the
desired final product, such as a plastic cup.
    Using injection molding to manufacture plastic prod-
ucts with thin walls can pose difficulties, because molten
plastic cools and solidifies rapidly upon contact with a
HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH         3



mold. In a thin-wall mold, cooling plastic may solidify
and fill the parts of the mold near where the molten
plastic is injected (referred to as the “injection gate”),
blocking the further flow of plastic before the mold is
filled. One solution to that problem, well known in the art
of injection molding, is to use “flow chambers,” also known
as “flow leaders.” Flow chambers are portions of a plastic
mold that are relatively thick compared to adjacent thin-
wall sections. Because the flow chambers are thicker,
they do not fill with solidified plastic before the molten
plastic has filled the entire mold. Flow chambers can
therefore be used to direct molten plastic into adjacent
thin-wall portions of the mold that are relatively far from
the injection gate and that might otherwise have been
blocked off from the flow of molten plastic.
    Under some circumstances, using injection molding to
manufacture thin-wall plastic products can result in
undesirable “gaseous voids” in the thin-wall portions of
the final product. Such voids can result in gaps in the
plastic walls, discoloration, or areas of reduced wall
strength.
    Jens Ole Sorensen and Paul Brown—the named in-
ventors of the ’460 patent—sought to solve the problem of
gaseous voids in plastic products having thin walls that
increase in thickness in the direction that the plastic
flows in the mold during manufacturing. They discovered
that they could eliminate the risk of gaseous voids in such
products by ensuring that the wall thickness increased at
less than a “threshold rate.” They did not discover how to
calculate the threshold rate for any given mold under any
given set of injection parameters. Instead, they discov-
ered only that there is such a threshold rate, which they
defined, with some circularity, as the rate below which
gaseous voids are not observed for any given injection-
molding process.
4        HOMELAND HOUSEWARES, LLC        v. SORENSEN RESEARCH



    Claim 1 is the primary independent claim in the ’460
patent and is representative of the claims on appeal. The
portions of claim 1 relevant to this appeal read as follows:
    A method of injection-molding a product that in-
    cludes at least one thin wall, comprising the steps
    of:
       (a) combining a plurality of mold parts to define
           a mold cavity for forming the product and at
           least one gate from which fluid plastic mate-
           rial may be injected into the mold cavity,
           wherein the mold cavity includes at least
           one thin-wall cavity section and at least two
           opposed flow chambers that adjoin opposite
           edges of the thin-wall cavity section for di-
           recting injected fluid plastic material . . . in-
           to . . . the at least one thin-wall cavity section
           ...
                                 ***
    wherein . . . the thickness of the at least one thin-
    wall cavity section increases in the general direc-
    tion of flow within the flow chambers . . . at less
    than a threshold rate . . . .
’460 patent, col. 7, ll. 5-33 (emphases added).
                               II
    Homeland manufactures the Magic Bullet and Baby
Bullet food blender systems. Those products are sold with
an assortment of plastic cups and mugs that fit directly
onto the blender. Homeland uses a plastic injection
molding process to manufacture the cups that are sold
with the blenders. In that process, plastic is injected
through an injection gate located at the part of the mold
that forms the closed, bottom portion of the cup. The
mold is shaped so that the completed cups have ribs that
run lengthwise along the insides of the cups and that are
slightly thicker than the adjoining plastic cup walls.
HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH         5



     In March 2011 Sorensen sent a cease-and-desist letter
to Homeland accusing certain of Homeland’s plastic cups
of infringing the ’460 patent. The following month, Home-
land filed suit seeking a declaratory judgment that its
cup-manufacturing process did not infringe the ’460
patent and that the patent was invalid and unenforceable.
Sorensen filed a counterclaim alleging infringement of the
manufacturing process used to make three of Homeland’s
cups: the Magic Bullet Short Cup, the Baby Bullet Stor-
age Cup, and the Baby Bullet Short Cup.
    After the district court issued a claim construction
ruling and substantial discovery had been completed,
Homeland moved for summary judgment of noninfringe-
ment. The district court granted Homeland’s motion on
three primary grounds. First, the court found that
Sorensen had no evidence to support its contention that
the portions of the molds that formed the ribs along the
cup walls were “flow chambers” that directed plastic into
the allegedly thin-wall portions of the mold.
    Second, the court found that Sorensen had not pointed
to any evidence that the thickness of the walls of the
accused cups increased at less than a threshold rate
because there was no admissible evidence that the walls
increased in thickness at all. The court ruled that three
drawings submitted by Sorensen that depicted measure-
ments of wall thickness increasing in the direction of flow
for each accused cup were unauthenticated and therefore
inadmissible.
    Finally, the district court determined that there was
no evidence that Homeland’s accused manufacturing
processes met the “threshold rate” limitation. The court
had construed “threshold rate” to mean “the rate of in-
crease in the thickness of the thin wall section as empiri-
cally determined by conducting test strips at the time the
mold is made in order to prevent gaseous voids.” Because
there was no evidence that Homeland had ever performed
6        HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH



empirical testing to determine a “threshold rate,” the
court found that there was no infringement under the
court’s construction of that term.
    After the entry of summary judgment of noninfringe-
ment, Homeland continued to prosecute its claim that the
’460 patent was invalid for obviousness and for indefi-
niteness of the claim term “threshold rate.” The district
court subsequently denied Homeland’s motion for sum-
mary judgment of invalidity and granted Sorensen’s cross-
motion, holding that Homeland had presented insufficient
evidence to create a genuine dispute of fact over the
validity of the patent.
     Sorensen subsequently took this appeal from the dis-
trict court’s noninfringement ruling and the district
court’s construction of the term “threshold rate.” Home-
land cross-appealed from the district court’s ruling on
validity. During oral argument, Homeland clarified that
its cross-appeal was conditional and that it was asking us
to reach the question of validity only if we reversed the
district court’s claim construction.
                            III
    1. Sorensen argues that the district court erred in
holding that it had presented no admissible evidence to
establish that the walls of the accused cups increase in
thickness, as required by the ’460 patent. Sorensen
points to three drawings offered through the declaration
of Mr. Sorensen, one of the named inventors of the patent.
Those drawings depict measurements of wall thickness
that increase along the direction of plastic flow in a dis-
crete “accused zone” of each accused cup. According to
Sorensen, the measurements depicted in its drawings
contradicted measurements offered by Homeland and
thereby created a factual dispute over whether the ac-
cused products had walls of increasing thickness.
Sorensen asserts that the district court erred when it
HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH          7



found that the three drawings were inadmissible because
they had not been authenticated.
    A careful review of the record in this case reveals that
Sorensen did not present the district court with sufficient
evidence from which a reasonable finder of fact could
conclude that the measurements depicted in the three
drawing were authentic. See Fed. R. Evid. 901(a) (“To
satisfy the requirement of authenticating . . . an item of
evidence, the proponent must produce evidence sufficient
to support a finding that the item is what the proponent
claims it is.”). In his declaration, Mr. Sorensen testified
that the drawings were “based upon [Mr. Brown’s and Mr.
Sorensen’s] physical examination of actual product sam-
ples.” Mr. Sorensen, however, acknowledged that he was
not the one who measured the accused cups. Instead, the
other inventor, Mr. Brown, was responsible for making
the measurements and the drawings on which the meas-
urements are depicted. Mr. Sorensen’s contribution to the
drawings was limited to assigning Mr. Brown the task of
producing drawings of products that might infringe the
’460 patent. Sorensen has pointed to no other testimony
from Mr. Sorensen that could serve to authenticate meas-
urements that Mr. Sorensen did not himself take. His
declaration is therefore inadequate to authenticate the
measurements depicted in Sorensen’s three drawings.
    To the extent that Sorensen’s argument on appeal is
that Mr. Sorensen’s declaration incorporated authenticat-
ing testimony from Mr. Brown by reference, that argu-
ment fails. In its brief opposing Homeland’s summary
judgment motion in the district court, Sorensen cited two
brief excerpts from Mr. Brown’s deposition. In those
excerpts, totaling four and a half pages, Mr. Brown testi-
fied that he examined one of the three accused cups (the
Magic Bullet cup), that he “found there was an increase in
wall thickness . . . between the flow chambers” in that
cup, and that he believed the difference in wall thickness
was “sufficient to go beyond manufacturing tolerances.”
8        HOMELAND HOUSEWARES, LLC     v. SORENSEN RESEARCH



Setting aside the fact that those excerpts do not mention
the other two accused cups, Mr. Brown did not authenti-
cate, or even mention, Sorensen’s three drawings, nor did
he testify that the measurements depicted on those draw-
ings were accurate. Instead, testimony from Mr. Brown
that might have authenticated the drawings’ measure-
ments occurred in a much later portion of the deposition,
which was not before the district court. Sorensen failed to
refer to that testimony in its brief in opposition to sum-
mary judgment, and it did not even include the relevant
portions of the Brown deposition as an exhibit accompa-
nying its brief. Sorensen cannot now rely on portions of
the Brown deposition that were not presented to the
district court at the time of the summary judgment mo-
tion. See In re Cygnus Telecomm. Tech., LLC, Patent
Litig., 536 F.3d 1343, 1352-53 (Fed. Cir. 2008), quoting
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d
1026, 1029-31 (9th Cir. 2001) (district court cannot be
expected to “examine reams or file cabinets full of paper
looking for genuine issues of fact” when the attorneys fail
to point out the evidence that supports their case).
    On appeal, Sorensen does not argue that the brief ex-
cerpts of Mr. Brown’s testimony that it cited to the district
court were sufficient to create a factual dispute for a jury.
Nor would such an argument be plausible given the
conclusory nature of that portion of Mr. Brown’s testimo-
ny. See Moore U.S.A., Inc. v. Standard Register Co., 229
F.3d 1091, 1112 (Fed. Cir. 2000) (“A party may not over-
come a grant of summary judgment by merely offering
conclusory statements.”); see also Regents of Univ. of
Minn. v. AGA Med. Corp., 717 F.3d 929, 941 (Fed. Cir.
2013), quoting Sitrick v. Dreamworks, LLC, 516 F.3d 993,
1001 (Fed. Cir. 2008) (“Conclusory expert assertions
cannot raise triable issues of material fact on summary
judgment.”).
    Rather than relying on Brown’s conclusory statement
in his deposition that he “found that there was an in-
HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH          9



crease in wall thickness . . . between the flow chambers”
in the Magic Bullet cup, Sorensen makes a number of
arguments attacking the wall-thickness measurements
that Homeland provided in photographic form through
the declaration of Joe Meyer. Sorensen asserts that
Homeland’s measurements were not properly authenti-
cated and that the district court applied a more lenient
standard of authentication to Homeland’s measurements
than it did to Sorensen’s. Sorensen also argues that
Homeland’s measurements are flawed because they do
not represent the average wall thickness from two oppos-
ing sides of a cup, which Mr. Sorensen testified was the
correct way to measure wall thickness.
     Sorensen’s arguments attacking Homeland’s meas-
urements, however, miss the point. Under the Supreme
Court’s decision in Celotex Corp. v. Catrett, 477 U.S. 316
(1986), Homeland was not required to produce affirmative
evidence of noninfringement. Instead, as the moving
party that would not have the burden of proof at trial,
Homeland needed only to point out to the district court
“the absence of evidence to support the nonmoving party’s
case.” Id. at 325. Once that occurred, the burden shifted
to Sorensen, the nonmoving party with the burden of
proof, to “designate ‘specific facts showing that there is a
genuine issue for trial.’” Id. at 324. Even if Homeland’s
measurements were not properly authenticated and were
otherwise flawed, that would not help Sorensen, as
Sorensen had no authenticated evidence that the accused
cups had walls of increasing thickness. The district court
therefore correctly concluded that Sorensen had not met
its burden under Celotex in opposing summary judgment.
    2. As an alternative ground for summary judgment
of noninfringement, the district court found that Sorensen
had failed to produce any evidence that the accused cup
molds have “flow chambers” that direct the flow of plastic
into adjacent thin-wall areas. Sorensen did not conduct
testing of its own to determine whether molten plastic
10       HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH



flowed from the thicker rib-forming portions of the ac-
cused molds into the adjacent walls. Instead, Sorensen
relied on evidence that Homeland generated and offered
in an effort to prove noninfringement with respect to the
“flow chambers” limitation. Sorensen argued that Home-
land’s evidence actually proved infringement. Additional-
ly, Sorensen sought to undercut the probative value of
other evidence that Homeland offered to prove nonin-
fringement with respect to the flow-chambers limitation.
    In an effort to demonstrate that molten plastic in the
accused molds does not flow from the rib-forming portions
to the adjacent walls, Homeland produced a series of
“short shots.” The short shots are a set of incomplete,
partially formed cups that are intended to show how
plastic flows through an accused mold during production.
Each cup in the series is made by partially filling an
accused mold with plastic; each time, the mold is filled
with somewhat more plastic than the time immediately
before. The first cup in the series therefore consists of
just the bottom portion of a cup, while the final one is an
almost completely formed cup that is missing only the cup
rim. The ridge that forms the top of each short shot is
called the “flow front.” The flow front shows how far the
plastic in the mold had flowed in each partially formed
cup.
    The flow fronts of each of Homeland’s short shots ex-
hibit a slight scalloping around the four ribs of each
partially formed cup. Even though each of the four ribs in
each of the short shots is a different height, the flow
fronts slope gently downward on either side of each rib.
    Before the district court, the parties offered competing
interpretations of the short-shot evidence. Homeland
argued that the short-shot flow fronts do not resemble the
flow fronts illustrated in the ’460 patent, which are highly
scalloped relative to the flow chambers. Homeland there-
fore asserted that plastic in the accused molds does not
HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH         11



flow as required by the ’460 patent. Sorensen, on the
other hand, offered the declaration of Mr. Sorensen, who
explained that one could establish the direction of plastic
flow in a mold by drawing a series of lines perpendicular
to the flow front. Because such lines drawn with respect
to the slightly concave flow fronts of the Homeland short
shots would intersect the ribs, Mr. Sorensen asserted that
the short shots prove that plastic flows from the rib-
forming portions to adjacent walls in the accused molds.
    While Sorensen is entitled to rely on evidence offered
by Homeland as affirmative evidence of infringement, the
short-shot evidence does not help Sorensen.
    As Sorensen itself argues on appeal, the short shots
were not made with the same injection-molding parame-
ters used to make the accused cups. The record shows
that the accused cups are manufactured with an injection
pressure value between 100 and 120 and an injection
speed of 35 cubic centimeters per millisecond (cm3/ms).
The short shots, however, were manufactured with injec-
tion pressures ranging from 40 to 70 and injection speeds
ranging from 40 to 50 cm3/ms. Sorensen did not offer any
evidence to explain why short shots made with a different
process than the accused processes are probative of how
plastic flows in the accused processes.
    Mr. Sorensen, who was not offered as an expert, testi-
fied that the opinion he formed about the short shots was
based on his experience in the field of plastic injection
molding. Even assuming his testimony would be admis-
sible as lay opinion evidence, see Fed. R. Evid. 701, he did
not explain why the evidence of short shots that were
made under different conditions nonetheless proved that
the accused processes infringed.
     As in the case of the wall-thickness limitation,
Sorensen’s showing on the “flow chambers” limitation
failed to satisfy the requirements of Celotex. Sorensen’s
affirmative evidence that plastic flows from the rib-
12       HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH



forming portions to the adjacent walls in the accused
molds during manufacturing consists solely of a lay
opinion based on observations of the output of a process
that is different from the accused process. As the district
court held, that is not sufficient evidence from which a
jury could find that Sorensen has met its burden to prove
that the accused injection-molding processes use flow
chambers to direct the flow of plastic in the mold.
    Sorensen contends that statements made in two prior
art patents and in the specification of the ’460 patent are
sufficient to create a factual dispute over the “flow cham-
bers” limitation. Those statements, Sorensen asserts,
“show that it was known and understood in the prior art
that the thicker walled sections of a mold cavity that form
the flow chambers or ribs feed plastic resin into adjacent
thin-wall cavity sections.” The prior-art patents that
Sorensen points to, however, describe thin-walled plastic
lids of the sort used, for example, on coffee cans and that
have thinner walls than those on Homeland’s cups.
Because those patents describe products that are com-
pletely different from Homeland’s accused cups, they are
not probative of infringement. Likewise, the statement in
the ’460 patent that “[s]ome thin-wall portions of some
plastic products” use flow chambers to direct the flow of
plastic into adjacent walls, ’460 patent, col. 1, ll. 13-17,
says nothing about how plastic flows in the accused
molds.
    Finally, Sorensen attacks the significance of “dye
tests” conducted by Homeland and offered through the
declaration of Mr. Meyer to prove noninfringement.
Those tests purportedly trace the flow of plastic in a mold
by placing red dye at certain locations in the mold and
then observing how the dye has spread in a finished
product. Sorensen offered evidence that Homeland’s dye
tests were not reliable and were not properly admitted
through the testimony of Mr. Meyer, a nonexpert witness.
Even assuming that the dye tests are unreliable, however,
HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH          13



Sorensen is still left with no affirmative evidence to
support its infringement case with respect to the “flow
chambers” limitation. Because Sorensen failed to meet its
burden under Celotex, summary judgment of nonin-
fringement was properly granted on the “flow chambers”
issue.
    3. Because Homeland was entitled to summary
judgment of noninfringement on both grounds discussed
above, we do not need to address the district court’s
construction of the claim term “threshold rate,” which was
not implicated in the two portions of the court’s summary
judgment decision reviewed above. As to the district
court’s third ground for summary judgment of nonin-
fringement, which relied on the court’s construction of the
term “threshold rate,” we need not and do not address
that ground for decision.
    At oral argument, Homeland clarified that it was ask-
ing us to reach the validity of the ’460 patent, as raised in
its cross-appeal, only if we modified the district court’s
construction of the term “threshold rate.” Because we
have decided this case without addressing the construc-
tion of “threshold rate,” we decline to reach Homeland’s
invalidity cross-appeal.
    Sorensen also argues that the district court abused its
discretion when it denied Sorensen’s motion to revise (i.e.,
reconsider) the summary judgment of noninfringement.
Sorensen asserts that the district court should have
reconsidered its grant of summary judgment after it was
discovered that Mr. Meyer’s declaration contained the
false statement that the short shots were made according
to the same injection-molding process that was used to
make the accused products. The false nature of Mr.
Meyer’s statement, however, does not change the fact that
Sorensen had no affirmative evidence of infringement. In
fact, the revelation that the short shots were made using
a different injection-molding process from that used to
14       HOMELAND HOUSEWARES, LLC    v. SORENSEN RESEARCH



make the accused cups substantially undermines the force
of Sorensen’s reliance on the short-shot evidence as af-
firmative evidence of infringement. In any event, Mr.
Meyer’s false statement did not relate to whether the
walls of the accused cups increase in thickness, which was
an alternative and independent ground of noninfringe-
ment. The district court therefore did not abuse its dis-
cretion by denying Sorensen’s motion for reconsideration.
    Finally, Homeland has requested sanctions against
Sorensen for filing this appeal, which it characterizes as
frivolous. Homeland’s request is rejected, however, be-
cause Homeland did not comply with the requirements of
Rule 38 of the Federal Rules of Appellate Procedure,
which requires that a request for sanctions for a frivolous
appeal be filed as a separate motion, not simply included
in the appellee’s brief. See Riverwood Int’l Corp. v. R.A.
Jones & Co., 324 F.3d 1346, 1358-59 (Fed. Cir. 2003);
Nordberg, Inc. v. Telsmith, Inc., 82 F.3d 394, 398 (Fed.
Cir. 1996). In any event, we do not view this case as an
appropriate case for sanctions based on a frivolous appeal.
                      AFFIRMED
