       Note: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

          IMPULSE TECHNOLOGY LTD.,
               Plaintiff-Appellant

                           v.

MICROSOFT CORPORATION, ELECTRONIC ARTS
           INC., UBISOFT, INC.,
            Defendants-Appellees

THQ, INC., KONAMI DIGITAL ENTERTAINMENT,
                     INC.,
                   Defendants
             ______________________

                      2016-1015
                ______________________

    Appeal from the United States District Court for the
District of Delaware in No. 1:11-cv-00586-RGA-CJB,
Judge Richard G. Andrews.
                ______________________

              Decided: December 7, 2016
               ______________________

   BRIAN ROSENTHAL, Mayer Brown LLP, Washington,
DC, argued for plaintiff-appellant. Also represented by
ALAN M. GRIMALDI, MICHAEL LOUIS LINDINGER.
2       IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION



    SONAL NARESH MEHTA, Durie Tangri LLP, San Fran-
cisco, CA, representing defendants-appellees Microsoft
Corporation, Electronic Arts Inc., argued for all defend-
ants-appellees.

   ERIC ALLAN BURESH, Erise IP, P.A., Overland Park,
KS, for defendant-appellee Ubisoft, Inc. Also represented
by MICHELLE LYONS MARRIOTT.
                ______________________

        Before NEWMAN and LOURIE, Circuit Judges. 1
LOURIE, Circuit Judge.
     Impulse Technology Ltd. (“Impulse”) appeals from the
decision of the United States District Court for the Dis-
trict of Delaware, granting Microsoft Corporation’s (“Mi-
crosoft”)    motion     for   summary       judgment      of
noninfringement of fourteen of the fifteen asserted claims
across U.S. Patents 6,308,565 (“the ’565 patent”),
6,430,997 (“the ’997 patent”), 6,765,726 (“the ’726 pa-
tent”), 6,876,496 (“the ’496 patent”), 7,359,121 (“the ’121
patent”), and 7,791,808 (“the ’808 patent”) (collectively,
the “asserted patents”). See Impulse Tech. Ltd. v. Mi-
crosoft Corp., No. 11-586-RGA, 2015 WL 5568618, at *1
(D. Del. Sept. 22, 2015). For the reasons that follow, we
affirm.
                       BACKGROUND
    Impulse owns the asserted patents, which share a
written description and are directed to the use of three-
dimensional motion tracking for interactive fitness and
gaming applications. See, e.g., ’565 patent Abstract.



    1  This appeal is decided by a panel of two judges,
unanimously, upon recusal of the third member of the
panel prior to oral argument of the appeal.
IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION         3



    Claim 1 of the ’565 patent is generally representative
of the asserted claims 2 and reads as follows:
    A testing and training system comprising:
    a tracking system for continuously tracking an
    overall physical location of a player in a defined
    physical space; and
    a computer operatively coupled to the tracking
    system
        for updating in real time a player virtual
        location in a virtual space corresponding
        to the physical location of the player in the
        physical space,
        for updating a view of the virtual space,
        and
        for providing at least one indicium of per-
        formance of the player moving in the
        physical space,
    wherein the at least one indicium is or is derived
    from a measure of a movement parameter of the
    player.
’565 patent col. 38 l. 62–col. 39 l. 7 (emphasis added).
        Microsoft makes and sells the Xbox 360 video
game console and the Kinect sensor, which, when used
with video games (collectively, the “accused products”)
made and sold by Microsoft and the other defendants
(Electronic Arts, Inc., and Ubisoft, Inc., collectively, “the



    2   The asserted claims are claims 1, 5, 9, 30, 36, and
57 of the ’565 patent; claim 1 of the ’979 patent; claim 16
of the ’726 patent; claims 1, 3, and 5 of the ’496 patent;
claim 22 of the ’121 patent; and claims 12, 15, and 17 of
the ’808 patent.
4      IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION



other Defendants”), translate a user’s natural movement
into gameplay, using physical gestures or audible speech,
rather than relying on handheld game controllers. The
accused products employ proprietary algorithms to output
the location of 20 points that correspond to various joints
in a user’s body, using a coordinate system centered at the
Kinect sensor. The Kinect system employs an infrared
sensor that can track motion within a cone-shaped area in
front of it, extending from the camera in the front of the
Kinect sensor outward to create a vertical field of view of
about 57 degrees, a horizontal field of view of about 43
degrees, and a practical viewing depth of approximately
0.8 to 4.0 meters. The Xbox 360 coordinates with the
Kinect to display the game’s virtual environment, typical-
ly on a television screen. For example, depending on the
game, the virtual environment could be a raft moving
down a river or a car driving on a race track.
      On June 1, 2011, Impulse sued Microsoft and the
other Defendants in the United States District Court for
the District of Delaware, alleging infringement of fifteen
claims of the asserted patents. On March 27, 2012, the
district court referred the case to a magistrate judge to
hear and resolve all pretrial matters, up to and including
the resolution of case-dispositive motions.
    The magistrate judge held a Markman hearing on
November 20, 2012, and issued a report and recommenda-
tion on May 13, 2013. See Impulse Tech. Ltd. v. Microsoft
Corp., No. 11-586-RGA-CJB, 2013 WL 2020055, at *2 (D.
Del. May 13, 2013) (“Claim Construction Report and
Recommendation”). The magistrate judge recommended,
inter alia, a construction for “defined physical space” of
“indoor or outdoor space having known size and/or bound-
aries,” wherein the physical space is “known prior to
adaptation of the testing and training system” and is
defined independently of the sensor viewing area. Id. at
*9–10. On September 19, 2013, the district court issued
an order adopting the magistrate judge’s proposed claim
IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION         5



construction. See Impulse Tech. Ltd. v. Microsoft Corp.,
NO. 11-586-RGA-CJB, ECF No. 314 (D. Del. Sept. 19,
2013).
     On January 17, 2014, Microsoft filed a motion for par-
tial summary judgment of noninfringement and on March
27, 2015, the magistrate judge issued another report and
recommendation, recommending that the motion be
granted as to fourteen of the fifteen asserted claims. See
Impulse Tech. Ltd. v. Microsoft Corp., NO. 11-586-RGA-
CJB, 2015 WL 5675569, at *1 (D. Del. Mar. 27, 2015)
(“Summary Judgment Report and Recommendation”).
The magistrate judge based his recommendations on the
conclusion that the accused products’ “hardcoded values”
were “abstract,” “mathematical construct[s]” which could
not infringe the claimed “defined physical space,” literally
or under the doctrine of equivalents. Id. at *5. On Sep-
tember 22, 2015, the district court adopted the magistrate
judge’s recommendations, granting Microsoft’s motion for
summary judgment as to fourteen of the fifteen asserted
claims. See Impulse Tech. Ltd. v. Microsoft Corp., NO. 11-
586-RGA-CJB, 2015 WL 5568616, at *3 (D. Del. Sept. 22,
2015) (“Decision”).
    Impulse timely appealed to this court. We have juris-
diction under 28 U.S.C. § 1295(a)(1).
                       DISCUSSION
    On appeal, Impulse argues that: (1) the district court
erred in its construction of the claim term “defined physi-
cal space”; and (2), even under the court’s construction,
the court erred in granting Microsoft’s summary judg-
ment motion. We discuss each issue in turn.
                             I
    We first consider whether the district court erred in
its construction of “defined physical space.” “The proper
construction of a patent’s claims is an issue of Federal
Circuit law.” Absolute Software, Inc. v. Stealth Signal,
6      IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION



Inc., 659 F.3d 1121, 1129 (Fed. Cir. 2011). We review a
district court’s ultimate claim constructions de novo and
any underlying factual determinations involving extrinsic
evidence for clear error. Teva Pharm. U.S.A., Inc. v.
Sandoz, Inc., 135 S. Ct. 831, 841–42 (2015). Here, be-
cause the district court relied only on the intrinsic record
to construe “defined physical space,” we review the dis-
trict court’s construction de novo. See Shire Dev., LLC v.
Watson Pharm., Inc., 787 F.3d 1359, 1364, 1368 (Fed. Cir.
2015) (citing Teva, 135 S. Ct. at 840–42).
    The words of a claim “are generally given their ordi-
nary and customary meaning” as understood by a person
of ordinary skill in the art at the time of the invention.
Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir.
2005) (en banc). Because that meaning is “often not
immediately apparent, and because patentees frequently
use terms idiosyncratically,” the court looks to the intrin-
sic record, including “the words of the claims themselves,
the remainder of the specification, [and] the prosecution
history,” as well as to extrinsic evidence when appro-
priate, to construe a disputed claim term. Id. at 1314,
1319.
    Impulse argues that the district court erred in con-
struing “defined physical space” as an “indoor or outdoor
space having size and/or boundaries known prior to the
adaptation of the testing and training system.” Decision,
2015 WL 5568616, at *1 (emphasis added). Impulse
maintains that in so construing that claim limitation, the
district court improperly imported a “temporal limitation”
from what the court perceived to be a feature of a pre-
ferred embodiment. Appellant’s Br. 25. Impulse asserts
that the claims are silent as to when the physical space
must be defined and that nothing in the written descrip-
tion suggests that the size or boundaries of the physical
space must be known before the system is adapted for
use. Impulse interprets the district court’s construction of
“prior to the adaptation of the testing and training sys-
IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION         7



tem” to mean prior to the system being turned on, rather
than prior to game play. Thus, Impulse argues, the
district court erred because the written description is
broad enough to encompass a system that, after the
sensor is placed and turned on, can adapt to a physical
space per the user’s preferences. Furthermore, Impulse
argues that the district court incorrectly concluded that
the physical space cannot be defined in relationship to the
sensor itself, but rather must be known independently of
the sensor viewing area. Impulse maintains that the
intrinsic evidence does not compel such a narrow con-
struction.
    Microsoft responds that, as an initial matter, Impulse
has waived its right to appeal the district court’s claim
construction because it never objected to the magistrate
judge’s claim construction report and recommendation.
Appellee’s Br. 30 (citing 28 U.S.C. § 636(b)(1)(A)). Even if
Impulse did not waive its argument, Microsoft argues, the
district court correctly concluded that the physical space
must be known prior to adaptation of the system and
defined independently of the sensor.
    First, Microsoft points to passages of the written de-
scription, which teach that the training system may be
portable and thus “adaptable to” the physical space. ’565
patent col. 9 ll. 16–17, 19–24 (“It will be appreciated that
the system . . . may be adaptable to physical spaces of
various sizes. In as much as the system is portable, the
system may be transported to multiple sites for specific
purposes.” (emphasis added)). Microsoft interprets the
district court’s construction of “prior to the adaptation of
the testing and training system” as meaning prior to
game play, rather than turning the system on. Under this
interpretation, Microsoft maintains that the written
description supports the district court’s construction
because it makes clear that the physical space is known
before game play starts; otherwise, the system could not
be portable and “adaptable to” various physical spaces.
8       IMPULSE TECHNOLOGY LTD.    v. MICROSOFT CORPORATION



Second, Microsoft asserts that the written description
refers to the viewing range of the sensor using different
language from that of the “defined physical space.” See,
e.g., ’565 patent col. 10 ll. 29–34 (referring to the “tracking
volume” and, separately, to the “defined physical space”).
For those reasons, argues Microsoft, the “defined physical
space” must be defined prior to, and independently of, the
tracking system.
      First, we agree with Microsoft that the district court’s
construction of “prior to the adaptation of the testing and
training system” means prior to game play. Decision,
2015 WL 5568616, at *1. The district court’s discussion,
as well as the magistrate judge’s report and recommenda-
tion, make clear that the relevant time point is when the
sensor begins to track movement of the user, i.e., during
game play. See, e.g., id. at *1 ([T]he patent claims
. . . systems that are set up in relation to a particular
physical space (for example, in a gym or on a field) so that
the system can ‘assess[] and quantify[] distance and time
measurements relative to the player’s conditioning, sport
and ability.’” (emphasis added)) (citing ’565 patent col. 9
ll. 9–12); Claim Construction Report and Recommenda-
tion, 2013 WL 2020055, at *9 (noting that, in order to
adapt the system to a particular physical space, the
sensors must be positioned so as to “track movement [of
the user] in the desired physical space” (emphasis added))
(internal quotations omitted) (citing ’565 patent col. 9 ll.
29–34).
     Second, we agree with Microsoft that the district court
correctly concluded that the “defined physical space” must
be (1) known prior to adaptation of the system, and
(2) defined independently of the sensor viewing area. The
written description explains that the physical space “may
be any available area, indoors or outdoors [o]f sufficient
size to allow the player to undertake the movements” and
that “the system . . . may be adaptable to physical spaces
of various sizes.” ’565 patent col. 9 ll. 8–17. Furthermore,
IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION         9



the written description explains that, in adapting the
system to a particular physical space, the sensors must be
“centered laterally with respect to the defined physical
space . . . at a distance sufficiently outside the front
boundary . . . to allow the sensors . . . to track movement
in the desired physical space.” ’565 patent col. 9 ll. 29–34.
The foregoing passages suggest that the “defined physical
space” is known and defined prior to game play, so that
(1) the physical space is of sufficient size to allow game
play and (2) the system can be portable and adaptable to
various physical spaces. We agree with the district court
that the written description supports the construction
that “the space itself must be known prior to the adapta-
tion of the system to that (now, already known) space.”
Summary Judgment Report and Recommendation, 2015
WL 5675569, at *5.
    We also agree with the district court that the “defined
physical space” must be defined independently of the
sensor viewing area. The written description describes
the sensor viewing area (i.e., “tracking volume”) and the
“defined physical space” using different terms, thus
suggesting that they are two separate concepts. See, e.g.,
’565 patent col. 10 ll. 29–34 (“[T]he position-sensing
hardware tracks the player . . . in the defined physical
space . . . over a tracking volume of approximately 432
cubic feet.” (emphases added)).
    We therefore conclude that the district court correctly
construed the limitation “defined physical space.” Thus,
we need not address Microsoft’s waiver argument.
                             II.
    We next consider whether the district court erred in
granting summary judgment of noninfringement. We
review the district court’s grant of summary judgment
under the law of the regional circuit, here, the Third
Circuit. Classen Immunotherapies, Inc. v. Elan Pharm.,
Inc., 786 F.3d 892, 896 (Fed. Cir. 2015). Applying the law
10     IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION



of the Third Circuit, we review the grant of summary
judgment de novo. Nicini v. Morra, 212 F.3d 798, 805 (3d
Cir. 2000) (en banc). Infringement, whether literal or
under the doctrine of equivalents, is a question of fact.
Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d
1121, 1129–30 (Fed. Cir. 2011). As such, a grant of sum-
mary judgment of noninfringement is proper when no
reasonable factfinder could find that the accused product
contains every claim limitation or its equivalent. PC
Connector Sols., LLC v. SmartDisk Corp., 406 F.3d 1359,
1364 (Fed. Cir. 2005); see Warner-Jenkinson Co. v. Hilton
Davis Chem. Co., 520 U.S. 17, 29, 39 n.8 (1997).
    Although infringement under the doctrine of equiva-
lents is a question of fact, summary judgment is proper
“[w]here the evidence is such that no reasonable jury
could determine two elements to be equivalent.” Warner-
Jenkinson, 520 U.S. at 39 n.8. A patentee must establish
“equivalency on a limitation-by-limitation basis” by “par-
ticularized testimony and linking argument” as to the
insubstantiality of the differences between the claimed
invention and the accused device or process. Texas In-
struments Inc. v. Cypress Semiconductor Corp., 90 F.3d
1558, 1566 (Fed. Cir. 1996). The function-way-result test
“often suffice[s] to show the substantiality of the differ-
ences.” Id.
     Impulse argues that, even under the district court’s
construction of “defined physical space,” the court erred in
granting summary judgment of noninfringement because
material questions of fact remain as to infringement.
Impulse maintains that a reasonable jury could conclude
that the software “hardcoded values” of the accused
products infringe, literally or under the doctrine of equiv-
alents, the claim limitation “defined physical space.”
Each of the accused products has software code that
specifies the size of a physical space within which the user
can play the game. Impulse argues that, because these
hardcoded values are fixed, i.e., burned onto a disc at the
IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION       11



factory, the physical space for which they code is prede-
termined and thus known prior to adaptation of the
system. Impulse focuses on the “and/or” in the district
court’s construction, see Decision, 2015 WL 5568616, at *1
(construing the term as “indoor or outdoor space having
size and/or boundaries known prior to the adaptation of
the testing and training system” (emphasis added)), and
thus argues that, because the size of the physical space is
known prior to adaptation, the accused products may
meet that claim limitation, even though the location is not
known in advance.
    Microsoft responds that the district court’s grant of
summary judgment of noninfringement was proper.
First, Microsoft argues, the district court correctly con-
cluded that the accused hardcoded values are “just num-
bers, . . . not an actual physical space at all” and, thus,
they could not literally meet the claim element “defined
physical space.” Summary Judgment Report and Recom-
mendation, 2015 WL 5675569, at *4. Microsoft maintains
that the district court correctly concluded that, because
the hardcoded values are “purely abstract,” merely “a
mathematical construct,” they “cannot be characterized as
any particular physical space that exists indoors or out-
doors.” Id. at 5 (emphasis added). Finally, Microsoft
asserts that, to the extent that the hardcoded values could
be characterized as a “defined physical space,” that space
is not defined prior to adaptation of the system to a par-
ticular space because the location, which is defined in
relation to the Kinect sensor, is not known in advance of
adaptation. Microsoft maintains that in its decision, the
district court explained that the “and/or” phrase in its
construction was adopted solely to account for the “de-
fined physical space” lacking a vertical boundary, as some
of the examples of physical spaces disclosed in the specifi-
cation were outdoor spaces. See Decision, 2015 WL
5568616, at *2.
12     IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION



    We agree with Microsoft that the district court cor-
rectly granted summary judgment of noninfringement.
First, we reject Impulse’s interpretation of the district
court’s construction that a physical space with either a
known size or a known set of boundaries would constitute
a “defined physical space.” As the district court ex-
plained, the “and/or” phrase in its construction was
adopted to “account for the possibility that an outdoor
physical space would have no vertical boundary.” Id. We
agree with the district court’s construction, as discussed
above, and therefore conclude that both the size and the
location of any boundaries that exist must be known prior
to adaptation of the system in order to constitute a “de-
fined physical space.”
    Second, we agree with the district court that no rea-
sonable jury could have found that the hardcoded values
of the accused products literally meet the “defined physi-
cal space” claim limitation. The district court correctly
concluded that, properly construed, the claims require a
space that “exists in the physical world (either indoors or
outdoors),” not a space defined in the “abstract.” Id. As
the district court stated, the hardcoded values define a
space in relation to the sensor, which “might constitute a
defined relational space, but it is not a defined physical
space.” Id. at *1.

     Finally, we agree with the district court that Impulse
failed to establish a genuine issue of material fact as to
whether the hardcoded values operate in substantially
the same way as the claimed “defined physical space” so
as to infringe under the doctrine of equivalents. Impulse
failed to provide evidence from which a reasonable jury
could conclude that the hardcoded values of the accused
products operate in substantially the same way as the
claimed “defined physical space.” Rather, as the district
court correctly concluded, the accused hardcoded values
operate in “essentially the opposite fashion” of the claimed
“defined physical space.” Id. at *3. The accused hardcod-
IMPULSE TECHNOLOGY LTD.   v. MICROSOFT CORPORATION        13



ed values, which are abstract, mathematical constructs
coding for a physical space that is known only after adap-
tation of the system, and the claimed “defined physical
space,” known prior to adaptation of the system, are
essentially the antithesis of one another. Thus, no rea-
sonable jury could conclude that they are equivalents.
See, e.g., Brilliant Instruments, Inc. v. GuideTech, LLC,
707 F.3d 1342, 1347 (Fed. Cir. 2013) (“The vitiation
concept has its clearest application ‘where the accused
device contain[s] the antithesis of the claimed structure.’”)
(quoting Planet Bingo, LLC v. GameTech Int’l, Inc., 472
F.3d 1338, 1345 (Fed. Cir. 2006)).
   We therefore uphold the district court’s grant of
summary judgment.
                       CONCLUSION
    We have considered Impulse’s remaining arguments
but find them to be unpersuasive. For the foregoing
reasons, we affirm the judgment of the district court.
                       AFFIRMED
                           COSTS
    No costs.
