       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

APPLIED MEDICAL RESOURCES CORPORATION,
             Plaintiff-Appellant,

                            v.

 TYCO HEALTHCARE GROUP LP (doing business
               as Covidien),
             Defendant-Appellee.
           ______________________

                       2012-1412
                 ______________________

   Appeal from the United States District Court for the
Central District of California in No. 11-CV-4203, Senior
Judge Mariana R. Pfaelzer.
                 ______________________

                Decided: August 27, 2013
                 ______________________

    JOSEPH R. RE, Knobbe, Martens, Olson & Bear, LLP,
of Irvine, California, argued for plaintiff-appellant. With
him on the brief were JOSEPH F. JENNINGS and SEAN M.
MURRAY.

    J. MICHAEL JAKES, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, of Washington, DC, argued for
defendant-appellee.   With him on the brief were
KATHLEEN A. DALEY and DAVID K. MROZ.
                ______________________
2    APPLIED MEDICAL RESOURCES   v. TYCO HEALTHCARE GROUP

      Before PROST, SCHALL, and REYNA, Circuit Judges.
PER CURIAM.
     Applied Medical Resources Corporation (“Applied”)
appeals from the grant of summary judgment by the
United States District Court for the Central District of
California. Applied sued Tyco Healthcare Group LP,
doing business as Covidien (“Covidien”), for infringement
of U.S. Patent No. RE 42,379 (’379 patent). The district
court addressed claim construction, infringement, and
validity together, granting summary judgment that
the ’379 patent was not infringed and denying summary
judgment that the patent was invalid. Only infringement
is at issue in this appeal. For the reasons that follow, we
affirm the grant of summary judgment that the accused
device neither infringes literally nor under the doctrine of
equivalents.
                     I. BACKGROUND
    This case concerns “trocars,” which are a type of sur-
gical device used in laparoscopic surgery. In laparoscopic
surgery, the surgeon uses thin tools to operate through
several small incisions. Trocars are placed in each inci-
sion to provide airtight ports through which instruments
may be passed into the abdominal cavity. The trocars
also allow surgeons to inflate the patient’s abdominal
cavity in order to provide space for the doctor to operate:
APPLIED MEDICAL RESOURCES   v. TYCO HEALTHCARE GROUP     3




J.A. 732. In the above diagram, three trocars can be seen
inserted into the abdomen.
     The ’379 patent claims certain improvements in seals
for trocars. In particular, the patent claims a seal assem-
bly that can move laterally but not axially. The ability to
move laterally allows the trocar to accommodate a wider
variety of tools.
    Applied asserted claims 1, 65, 74, 87, 89, and 90 of
the ’379 patent against a Covidien trocar known as the
VersaSeal Plus and several other trocars containing the
VersaSeal Plus seal assembly (the “Covidien Trocars”).
Only claims 1 and 87 are independent. Claim 1 provides:
   1. Apparatus for use in a surgical instrument to
   provide a gas-tight seal with an instrument
   passed through the seal, the instrument having a
   diameter in a wide range of diameters, the appa-
   ratus comprising:
       a seal body including a bore wherethrough
         the instrument is passed, the bore defin-
         ing an axis; and
4    APPLIED MEDICAL RESOURCES   v. TYCO HEALTHCARE GROUP

       an instrument seal assembly, including: a
         rigid annulus, and an instrument seal of
         an elastic material, the instrument seal:
         including an instrument port wher-
         ethrough the instrument is passed; and
         being attached to the rigid annulus with
         the instrument port inside the annulus,
       the instrument seal assembly being mount-
         ed in the seal body in a manner restrict-
         ing axial movement and permitting free
         lateral movement of the instrument seal
         assembly in response to movement of the
         instrument passed through the instru-
         ment port, . . . .
’379 patent col. 17 ll. 29-47 (emphasis added). The claim
defines an apparatus in which an instrument seal assem-
bly is mounted in a seal body. The instrument seal as-
sembly is made up of an instrument seal of elastic
material attached to a rigid annulus. A port allows
instruments to be passed through the instrument seal.
Thus, the instrument seal is contained within the instru-
ment seal assembly, which moves freely laterally within
the seal body.
    Claim 1 requires the instrument seal assembly to be
“mounted in the seal body in a manner restricting axial
movement and permitting free lateral movement of the
instrument seal assembly.” ’379 patent col. 17 ll. 42-44.
The court construed “axial” to mean “on or along the axis:
up-and-down” and construed “lateral” to mean “by, to, or
from the side: sideways.” Thus, claim 1 required the
instrument seal assembly to be capable of freely moving
sideways.
   Claim 87 also contains limitations on lateral move-
ment:
    87. Apparatus for use in a surgical instrument to
    provide a gas-tight seal with an instrument
    passed through the seal, the instrument having a
APPLIED MEDICAL RESOURCES   v. TYCO HEALTHCARE GROUP    5

    diameter in a wide range of diameters, the appa-
    ratus comprising:
        a seal body including a bore wherethrough
          the instrument is passed, the bore defin-
          ing an axis; and
        an instrument seal assembly, including: a
          rigid annulus, and an instrument seal of
          an elastic material, . . .
        the instrument seal assembly being
          mounted in the seal body in a manner
          restricting axial movement of the in-
          strument seal assembly along the axis
          and permitting free lateral movement of
          the instrument seal assembly within a
          defined range of motion in response to
          movement of the instrument passed
          through the instrument port, wherein
          the instrument seal assembly is laterally
          compliant in that the instrument seal
          moves laterally in response to lateral
          movement of the instrument passed
          through the instrument port and is axi-
          ally restricted in that the instrument
          seal is generally held in position axially
          when an instrument is inserted into or
          withdrawn from the instrument port,
          ....
’379 patent col. 26 ll. 1-30 (emphasis added).
    Covidien was concerned that, in the italicized portion
of claim 87 above, the use of the term “instrument seal
assembly” in the beginning and “instrument seal” at the
end created an ambiguity as to whether it was the in-
strument seal assembly or the instrument seal that
moved laterally. The district court concluded that the
immediately preceding clause, which required the in-
strument seal assembly to be mounted in a manner
“permitting free lateral movement of the instrument seal
6    APPLIED MEDICAL RESOURCES      v. TYCO HEALTHCARE GROUP

assembly,” made it clear that it was the instrument seal
assembly—not just the instrument seal—that must move
laterally. As in claim 1, the court required the instru-
ment seal assembly to be able to “move[] from side to side”
in response to movement of the instrument passed
through the instrument port.
    In the Covidien Trocars, the instrument seal assembly
is composed of a hemispherical gimbal containing an
elastomeric instrument seal. Covidien argued that the
trocars did not infringe because “[t]he gimbal . . . rotates
within the housing of the trocar around a laterally fixed
point of rotation. . . . [it] does not move laterally or side-to-
side relative to the housing.” In the diagram below, the
gimbal can be seen rotated to the left, at rest in the center
position, and rotated to the right:




Applied explains this diagram as follows:
    The plastic gimbal slides in an annular recess in
    the housing of the trocar, enabling the seal as-
    sembly to rotate back and forth . . . . When the
    gimbal rotates to the left, the seal moves to the
    left side of the trocar; and when the gimbal ro-
    tates to the right, the seal moves to the right side
    of the trocar. This enables the seal to move with a
    surgical instrument as it moves laterally within
    the trocar.
Appellant’s Br. 12 (citations omitted).
     After construing the claims, the district court granted
summary judgment of non-infringement.             Regarding
literal infringement, much of the court’s analysis focused
on the forces experienced by the instrument seal assembly
in response to a lateral movement of the instrument. The
APPLIED MEDICAL RESOURCES   v. TYCO HEALTHCARE GROUP      7

court’s analysis did not relate to whether the asserted
claims read on the Covidien Trocars, and we do not repeat
it here. The court did, however, observe that “[i]n a
gimbal design, the seal assembly moves about an imagi-
nary fixed point of reference,” and that “if one considers
the lateral boundaries of the seal assembly, one finds no
change” as the gimbal rotates.
    The district court denied Applied’s claim that the
Covidien Trocars infringed under the doctrine of equiva-
lents stating: “Here, the claim limitation requires both
axial restriction and lateral freedom. The claim limita-
tion would be rendered meaningless if the Court were to
allow the patent to read on the gimbal design through the
doctrine of equivalents.” Applied Med. Res. Corp. v. Tyco
Healthcare Grp., No. 11-CV-4203, slip op. at 14 (C.D. Cal.
Mar. 26, 2012).
   Applied timely appealed the summary judgment of
non-infringement. This court has jurisdiction under 28
U.S.C. § 1295(a)(1).
                      II. DISCUSSION
    Infringement is analyzed in two steps: first, the court
construes the patent’s claims, and second, the court
compares the properly construed claims to the device
accused of infringement. See Markman v. Westview
Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en
banc), aff’d, 517 U.S. 370 (1996). In the first step of this
analysis, claim construction, the district court clarified
that it is the instrument seal assembly (not just the
instrument seal) that must move laterally. It construed
laterally to mean “sideways” or “from side to side.” Ap-
plied does not dispute this claim construction on appeal.
    In the second step, proving infringement, “the patent-
ee must show that the accused device contains each
limitation of the asserted claim, or an equivalent of each
limitation.” Bowers v. Baystate Techs., Inc., 320 F.3d
1317, 1334 (Fed. Cir. 2003) (citations omitted). This is a
question of fact. Id. The district court granted summary
8    APPLIED MEDICAL RESOURCES   v. TYCO HEALTHCARE GROUP

judgment of non-infringement both literally and under
the doctrine of equivalents. Applied challenges both of
these rulings.
    We review a district court’s grant or denial of sum-
mary judgment under the law of the regional circuit; in
this case, the Ninth Circuit. See MicroStrategy, Inc. v.
Bus. Objects, S.A., 429 F.3d 1344, 1349 (Fed. Cir. 2005).
The Ninth Circuit “determine[s], viewing the evidence in
the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether
the district court correctly applied the relevant substan-
tive law.” Suzuki Motor Corp. v. Consumers Union of
U.S., Inc., 330 F.3d 1110, 1131-32 (9th Cir. 2003). In-
fringement, although an issue of fact, may be decided on
summary judgment so long as the evidence in the record
does not raise any genuine dispute about material facts.
See General Elec. Co. v. Nintendo Co., 179 F.3d 1350,
1353 (Fed. Cir. 1999).
               A. LITERAL INFRINGEMENT
    Applied argues that the district court improperly
found no literal infringement by comparing the accused
device to an embodiment and by considering material
outside the record. In addition, Applied contends that
there is a disputed issue of material fact regarding
whether the instrument seal assembly in the accused
device is capable of lateral movement. Covidien responds
that there is no infringement because the instrument seal
assembly does not move laterally.
    We agree with Covidien. The instrument seal assem-
bly in the Covidien Trocars does not move laterally—it is
a hemisphere that rotates in place. As the district court
observed, “[i]n a gimbal design, the seal assembly moves
about an imaginary fixed point of reference.” Examining
the Covidien Trocars, the court determined that “if one
considers the lateral boundaries of the seal assembly, one
finds no change.” Even Applied describes the gimbal’s
motion as rotation. In light of the undisputed physical
APPLIED MEDICAL RESOURCES   v. TYCO HEALTHCARE GROUP     9

structure of the Covidien Trocars, we conclude that the
instrument seal assembly does not move freely from side
to side—it is fixed laterally and rotates in place.
    Applied argues that the summary judgment of non-
infringement nevertheless must be reversed because the
district court analyzed infringement improperly by com-
paring the Covidien Trocars to an embodiment disclosed
in the patent and because the court considered material
that was outside of the record. While we agree that the
court’s analysis was flawed in both of these respects,
these deficiencies do not require reversal. Our review of
the grant of summary judgment is de novo, and, as we
have explained above, the undisputed structure of the
Covidien Trocars is sufficient to support our conclusion
that the trocars do not satisfy the limitation that the
instrument seal assembly must be capable of free lateral
movement.
     We also reject Applied’s argument that there is a gen-
uine issue of material fact that precludes summary judg-
ment. Applied points to an expert declaration explaining
that when “the gimbal seal assembly rotates[,] each point
of the gimbal and elastomeric seal moves freely laterally
or sideways.” Appellant’s Br. 29. But the fact that indi-
vidual points on the instrument seal assembly move
laterally during rotation is not material because the claim
construction requires that the entire instrument seal
assembly must move laterally from side to side. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49
(1986) (“Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual dis-
putes that are irrelevant or unnecessary will not be
counted.”). The summary judgment that there is no
literal infringement is therefore affirmed.
              B. DOCTRINE OF EQUIVALENTS
   The district court also granted summary judgment of
non-infringement under the doctrine of equivalents.
10   APPLIED MEDICAL RESOURCES    v. TYCO HEALTHCARE GROUP

Under this doctrine, “a product or process that does not
literally infringe upon the express terms of a patent claim
may nonetheless be found to infringe if there is ‘equiva-
lence’ between the elements of the accused product or
process and the claimed elements of the patented inven-
tion.” Warner-Jenkinson Co., Inc. v. Hilton Davis Chem.
Co., 520 U.S. 17, 21 (1997). The doctrine of equivalents is,
however, not without its limits. For instance, in applying
the doctrine of equivalents to the facts of a particular
case, it is imperative that “equivalence be assessed on a
limitation-by-limitation basis.” Freedman Seating Co. v.
Am. Seating Co., 420 F.3d 1350, 1358 (Fed. Cir. 2005)
(citing Warner-Jenkinson, 520 U.S. at 29). Moreover, the
doctrine of equivalents is unavailable as a matter of law
“if a theory of equivalence would entirely vitiate a particu-
lar claim element.” Warner-Jenkinson, 520 U.S. at 39 n.8.
    The district court’s doctrine of equivalents analysis is
brief. The court stated: “Here, the claim limitation re-
quires both axial restriction and lateral freedom. The
claim limitation would be rendered meaningless if the
Court were to allow the patent to read on the gimbal
design through the doctrine of equivalents.” Applied, No.
11-CV-4203, slip op. at 14. We take this to mean that
allowing rotation to be equivalent to side to side move-
ment would vitiate the free lateral movement limitation.
We agree.
    Applied argues that there is a disputed issue of mate-
rial fact sufficient to preclude summary judgment of non-
infringement under the doctrine of equivalents on the
ground that equivalence in this case may be found under
the function-way-result test. See Ethicon Endo-Surgery,
Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed. Cir.
1998). Specifically, Applied points to the following illus-
tration—provided by its expert—showing how an embod-
iment of the ’379 patent could be transformed into an
embodiment similar to the Covidien Trocars:
APPLIED MEDICAL RESOURCES   v. TYCO HEALTHCARE GROUP   11




J.A. 4816. At the top of the diagram is an embodiment of
the ’379 patent. By gradually curving this embodiment,
the expert arrived at a hypothetical instrument seal
assembly that he claims is similar to the Covidien Tro-
cars’ gimbal seal assembly. According to the expert, this
demonstrates that the ’379 patent instrument seal as-
sembly and the gimbal seal perform the same function in
the same way to achieve the same result.
    Even accepting Applied’s evidence as true, we find no
genuine issue of material fact sufficient to preclude sum-
mary judgment. As evinced by the figure above and
Applied’s expert’s declaration, the hypothetical instru-
ment seal assembly moves from side to side within the
annular recess. The instrument seal assembly of the
Covidien Trocars, however, does no such thing. To the
contrary, as discussed above, the instrument seal assem-
bly of the Covidien Trocars does not move freely from side
12   APPLIED MEDICAL RESOURCES    v. TYCO HEALTHCARE GROUP

to side—it is fixed laterally and rotates in place. Accord-
ingly, the expert’s testimony concerning the hypothetical
instrument seal assembly on this point is insufficient to
create a genuine issue of material fact.
    We conclude that Applied’s theory of equivalence viti-
ates the “free lateral movement” limitation of the claims.
While the claims require free lateral movement of the
instrument seal assembly, the instrument seal assembly
of the Covidien Trocars does not possess free lateral
movement. Indeed, the instrument seal assembly of the
Covidien Trocars not only does not move freely laterally,
it does not move laterally at all—rather it is fixed lateral-
ly and rotates in place. Accordingly, allowing Applied to
capture the accused instrument seal assembly through
the doctrine of equivalents would vitiate the claim limita-
tion requiring “free lateral movement” of the instrument
seal assembly.
    Applied’s theory of equivalence would vitiate the “free
lateral movement” claim limitation for another reason as
well. Our case law indicates that a finding of infringe-
ment under the doctrine of equivalents vitiates a claim
limitation when the aspect of the accused device that
allegedly meets that limitation represents a difference in
kind from what is claimed in the limitation. For example,
in Ethicon, 149 F.3d at 1321, we found that the applica-
tion of the doctrine of equivalents did not vitiate a partic-
ular claim limitation because the difference between the
asserted claim and the accused device was “a subtle
difference in degree, not a clear, substantial difference or
difference in kind.” Subsequently, in Freedman Seating,
we were faced with the question of whether the claim
limitation “a movable end slidably mounted to said seat-
base” was equivalently met by an accused device in which
the moveable end was rotatably mounted, not slidably
mounted, to the seatbase. 420 F.3d at 1361. We found
that application of the doctrine of equivalents would
vitiate the slidably mounted limitation, stating: “We think
that this structural difference in the mounting of the
APPLIED MEDICAL RESOURCES   v. TYCO HEALTHCARE GROUP      13

moveable end to the seatbase is not a ‘subtle difference in
degree,’ but rather, ‘a clear, substantial difference or
difference in kind.’” Id. (citing Ethicon, 149 F.3d at 1321);
see also Depuy Spine, Inc. v. Medtronic Sofamor Danek,
Inc., 469 F.3d 1005, 1017 (Fed. Cir. 2006) (recognizing
“difference in kind” as a constraint on application of the
doctrine of equivalents).
     We conclude that what we have in this case is a dif-
ference in kind. The reason is that the instrument seal
assembly claimed in the ’379 patent is one that moves
freely laterally. Put another way, the “kind” of instru-
ment seal assembly claimed is one that moves, at least to
some extent, from side to side. The instrument seal
assembly of Covidien Trocars is, however, not that “kind”
of instrument seal assembly. It does not move side to side
at all. Rather, as we have noted, it is fixed in its location
and rotates in place. Because their instrument seal
assembly differs in kind from what is claimed in the ’379
patent, the Covidien Trocars cannot be found to infringe
under the doctrine of equivalents.
                       CONCLUSION
    We affirm the district court’s judgment of no literal in-
fringement because the instrument seal assembly in the
Covidien Trocars does not move laterally—it rotates in
place. We likewise affirm the judgment of no infringe-
ment under the doctrine of equivalents, because Applied’s
theory of equivalence vitiates a claim limitation.
                       AFFIRMED
