Case: 19-1504     Document: 45    Page: 1    Filed: 03/04/2020




         NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                   ______________________

                20/20 VISION CENTER, LLC,
                      Plaintiff-Appellant

                             v.

  VISION PRECISION HOLDINGS, LLC, STANTON
     OPTICAL FLORIDA, LLC, DBA STANTON
 OPTICAL & MY EYELAB, THOMAS CAMPEN MD &
 ASSOCIATES, PLLC, M&D OPTICAL FRANCHISE,
                      LLC,
              Defendants-Appellees
             ______________________

                         2019-1504
                   ______________________

    Appeal from the United States District Court for the
 Southern District of Florida in No. 9:18-cv-80670-RLR,
 Judge Robin L. Rosenberg.
                 ______________________

                   Decided: March 4, 2020
                   ______________________

     K. LEE MARSHALL, Bryan Cave Leighton Paisner LLP,
 San Francisco, CA, argued for plaintiff-appellant. Also rep-
 resented by JOSEPH J. RICHETTI, ALEXANDER DAVID
 WALDEN, New York, NY; TAYLOR FORD, ROBYN KRAMER,
 King, Blackwell, Zehnder & Wermuth, P.A., Orlando, FL.
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 2      20/20 VISION CENTER, LLC v. VISION PRECISION HOLDINGS



    JOSEPH W. BAIN, Shutts & Bowen LLP, West Palm
 Beach, FL, argued for defendants-appellees. Also repre-
 sented by AMY WESSEL, Miami, FL.
                ______________________

     Before PROST, Chief Judge, NEWMAN and WALLACH,
                      Circuit Judges.
 WALLACH, Circuit Judge.
     Appellant 20/20 Vision Center, LLC (“20/20 Vision”)
 sued Appellees Vision Precision Holdings, LLC, Stanton
 Optical Florida, LLC, doing business as Stanton Optical &
 My Eyelab, Thomas Campen MD & Associates, PLLC, and
 M&D Optical Franchise, LLC (collectively, “Vision Preci-
 sion”) in the U.S. District Court for the Southern District
 of Florida (“District Court”), alleging, inter alia, infringe-
 ment of claims 13, 14, 15, and 17 (“the Asserted Claims”) of
 20/20 Vision’s U.S. Patent No. 9,230,062 (“the ’062 pa-
 tent”). Following a claim construction hearing, the District
 Court entered an order construing all disputed claim terms
 in Vision Precision’s favor. See 20/20 Vision Ctr., LLC v.
 Vision Precision Holdings, LLC, No. 9:18-CV-80670-RLR,
 2018 WL 5807654, at *10–11 (S.D. Fla. Nov. 6, 2018). As a
 result, the parties filed a joint motion for entry of final
 judgment, which the District Court entered as a consent
 judgment of non-infringement. J.A. 21–25 (Consent Judg-
 ment).
    20/20 Vision appeals. We have jurisdiction pursuant to
 28 U.S.C. § 1295(a)(1) (2012). We affirm.
                        BACKGROUND
     Entitled “Systems and Methods for Enabling Custom-
 ers to Obtain Vision and Eye Health Examinations,”
 the ’062 patent “generally relates to the fields of optometry
 and ophthalmology and the performance of eye examina-
 tions[,]” where “certain embodiments are directed to sys-
 tems and methods for enabling customers and other users
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 20/20 VISION CENTER, LLC v. VISION PRECISION HOLDINGS       3



 to obtain eye health examinations and vision examinations
 through a customer diagnostic center that includes oph-
 thalmic equipment and instruments for performing various
 tests and procedures pertaining to the customers’ eye
 health and visual ability.” ’062 patent col. 1 ll. 16–24. The
 ’062 patent is directed to the “need for a system having an
 automated or semi-automated customer diagnostic center
 that allows individuals to obtain eye health examinations
 and vision examinations with little or no on-site assis-
 tance.” Id. col. 3 ll. 58–61.
     The ’062 patent discloses “a system . . . that includes a
 customer diagnostic center that is configured to generate
 customer examination data,” and which “provides a user
 interface” and “ophthalmic equipment” to “administer[]
 tests.” Id. col. 4 ll. 15–24. The data is conveyed “over a
 network” from the “customer diagnostic center” to “[a] di-
 agnostic center server” such that the data can be accessed
 remotely “by an eye-care practitioner” for “review and eval-
 uation.” Id. col. 4 ll. 24–34. “An eye health report is [then]
 provided to the customer via the network.” Id. col. 4 ll. 34–
 35. In some embodiments, “the system (or a portion
 thereof) may be configured to be fully automated,” such
 that customers may “obtain vision examinations . . . with
 no assistance from others.” Id. col 32 ll. 12–17.
     Independent claim 13 recites in relevant part:
     A server for providing services related to eye health
     and vision examinations, wherein the server is con-
     figured to:
                              ....
         administer one or more tests to the cus-
         tomer during the eye examination con-
         ducted at the diagnostic center utilizing the
         ophthalmic equipment, the eye examina-
         tion including an objective portion that uti-
         lizes the ophthalmic equipment to derive
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 4     20/20 VISION CENTER, LLC v. VISION PRECISION HOLDINGS



        objective measurements pertaining to the
        one or more tests and a subjective portion
        that utilizes an audio response system that
        is configured to present questions to and re-
        ceive responses from the customer pertain-
        ing to the one or more tests, wherein the
        subjective portion of the eye examination is
        administered using an iterative process
        that includes:
            selecting questions to present to
            the customer based on both the ob-
            jective measurements derived dur-
            ing the objective portion of the eye
            examination and the responses
            that are received from the cus-
            tomer via the audio response sys-
            tem;
            based on the responses received
            from the customer via the audio re-
            sponse system, automatically ad-
            justing ophthalmic equipment
            utilized in administering the sub-
            jective portion of the eye examina-
            tion; and
            determining that the iterative pro-
            cess should be concluded in re-
            sponse to detecting that a
            particular combination of the re-
            sponses received from the customer
            satisfies one or more conditions in-
            dicating that sufficient data has
            been collected for the subjective
            portion of the eye examination
                            ....
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 Id. col. 51 l. 19–col. 52 l. 18 (emphasis added). Claim 13’s
 “ophthalmic equipment” includes “a set of [medical] instru-
 ments” that are “coupled to an equipment controller that is
 configured to receive instructions for controlling the oph-
 thalmic equipment.” Id. col. 51 ll. 35–38.
     Claims 14, 15, and 17 depend from claim 13. Depend-
 ent claim 14 provides for “at least one server [being] inte-
 grated with the diagnostic center.” Id. col. 52 ll. 19–20.
 Dependent claim 15 recites in relevant part:
    The server of claim 13, wherein the request per-
    tains to a synchronous vision examination, and the
    server is further configured to:
        establish a real-time connection between
        the practitioner device associated with the
        selected eye-care practitioner and the diag-
        nostic center to permit communications be-
        tween the customer and the selected eye-care
        practitioner during the synchronous vision
        examinations; [and]
                            ....
        permit the practitioner device associated
        with the selected eye-care practitioner to re-
        motely administer an interactive refraction
        test over the network via the real-time con-
        nection, wherein instructions are transmit-
        ted to the diagnostic center over the
        network to control the ophthalmic equip-
        ment while administering the interactive
        refraction test
                            ....
 Id. col. 52 ll. 21–37 (emphases added). Similarly, depend-
 ent claim 17 recites in relevant part:
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     The server of claim 13, wherein the request per-
     tains to a synchronous eye health examination, and
     the server is further configured to:
         establish a real-time connection between
         the practitioner device associated with the
         selected eye-care practitioner and the diag-
         nostic center to permit communications be-
         tween the customer and the selected eye-care
         practitioner during the synchronous eye
         health examinations; [and]
         permit the practitioner device associated
         with the selected eye-care practitioner to re-
         motely administer one or more tests associ-
         ated with the synchronous eye health
         examination over the network via the real-
         time connection, wherein instructions re-
         ceived by the diagnostic center over the
         network are utilized to control the ophthal-
         mic equipment during the synchronous eye
         health examination
                             ....
 Id. col. 52 l. 62–col. 53 l. 10 (emphases added).
                         DISCUSSION
         I. Standard of Review and Legal Standard
     “The proper construction of a patent’s claims is an issue
 of Federal Circuit law[.]” Powell v. Home Depot U.S.A.,
 Inc., 663 F.3d 1221, 1228 (Fed. Cir. 2011) (citation omit-
 ted). “[C]laim construction must begin with the words of
 the claims themselves.” Amgen Inc. v. Hoechst Marion
 Roussel, Inc., 457 F.3d 1293, 1301 (Fed. Cir. 2006) (citation
 omitted). “[W]ords of a claim are generally given their or-
 dinary and customary meaning” that they “would have to
 a person of ordinary skill in the art [(‘PHOSITA’)] in ques-
 tion at the time of the invention.” Phillips v. AWH Corp.,
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 20/20 VISION CENTER, LLC v. VISION PRECISION HOLDINGS       7



 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc) (internal
 quotation marks and citations omitted). The PHOSITA “is
 deemed to read the claim term not only in the context of
 the particular claim in which the disputed term appears,
 but in the context of the entire patent, including the speci-
 fication.” Id. at 1313. 1 Prosecution history may also be
 used to supply additional evidence of a claim term’s in-
 tended meaning. See Home Diagnostics, Inc. v. LifeScan,
 Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004). 2 “We review the
 district court’s evaluation of the patent’s intrinsic record
 during claim construction de novo.” Info-Hold, Inc. v. Ap-
 plied Media Techs. Corp., 783 F.3d 1262, 1265 (Fed.
 Cir. 2015) (citation omitted). 3
  II. The District Court Properly Construed Independent
      Claim 13’s “Automatically Adjusting” Limitation
    The District Court, relying on intrinsic evidence, deter-
 mined that a PHOSITA would understand the limitation


     1    “A specification includes both the written descrip-
 tion and the claims of the patent.” Monsanto Tech. LLC v.
 E.I. DuPont de Nemours & Co., 878 F.3d 1336, 1341 (Fed.
 Cir. 2018) (internal quotation marks and citation omitted).
      2   “The prosecution history . . . consists of the com-
 plete record of the proceedings before the [U.S. Patent and
 Trademark Office][.]” Phillips, 415 F.3d at 1317 (citation
 omitted).
      3   20/20 Vision argues that “the District Court side-
 stepped its fundamental duty to construe the patent
 claims,” Appellant’s Br. 27 (capitalization altered), because
 it “adopted [Vision Precision’s] propos[ed] [claim construc-
 tion order] largely verbatim, without any independent ex-
 planation or analysis,” id. at 28, such that “the order as-a-
 whole should be viewed with a considerable degree of skep-
 ticism,” id. at 30. First, 20/20 Vision did not raise this ar-
 gument before the District Court. J.A. 23–24 (consenting
 to final judgment of non-infringement based on the District
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 8      20/20 VISION CENTER, LLC v. VISION PRECISION HOLDINGS



 “[b]ased on the responses received from the customer via
 the audio response system, automatically adjusting oph-
 thalmic equipment” in independent claim 13 to mean that
 “the server hardware and software is configured to auto-
 matically transform the responses received through the au-
 dio response system into instructions to adjust the
 ophthalmic equipment without requiring assistance from
 an eye care practitioner or on-site technician.” 20/20 Vi-
 sion, 2018 WL 5807654, at *11 (emphasis added). 20/20
 Vision argues that “the intrinsic record” and “express claim
 language” establish that “automatically adjusting the oph-
 thalmic equipment” means that the ophthalmic equipment
 is adjusted “by the equipment controller based on the in-
 structions received from an eye-care practitioner.” Appel-
 lant’s Br. 53. We disagree with 20/20 Vision.
     The District Court correctly construed “[b]ased on the
 responses received from the customer via the audio re-
 sponse system, automatically adjusting ophthalmic equip-
 ment.” We begin our analysis with the claims. See
 Phillips, 415 F.3d at 1312 (“[W]e look to the words of the
 claims themselves . . . to define the scope of the patented
 invention[.]” (internal quotation marks and citation omit-
 ted)). Independent claim 13 recites “[a] server” that “is con-
 figured to . . . administer one or more tests to the customer
 during [an] eye examination[.]” ’062 patent col. 51 ll. 19–
 20, 45–46. The server’s potential “tests” include “an



 Court’s claim construction). It is accordingly waived. See
 Golden Bridge Tech., Inc. v. Nokia, Inc., 527 F.3d 1318,
 1322 (Fed. Cir. 2008) (“Our precedent generally counsels
 against entertaining arguments not presented to the dis-
 trict court.” (citation omitted)). Second, 20/20 Vision’s ar-
 gument lacks a legal basis. That “the [D]istrict [C]ourt
 adopted many of [a prevailing party’s] proposed findings
 does not alter our basic standard of review.” Roton Barrier,
 Inc. v. Stanley Works, 79 F.3d 1112, 1116 (Fed. Cir. 1996).
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 20/20 VISION CENTER, LLC v. VISION PRECISION HOLDINGS       9



 objective portion” and “a subjective portion.” Id. col. 51 ll.
 48, 50. The server “administer[s] [the subjective portion]
 using an iterative process that includes” employing “an au-
 dio response system . . . configured to present questions to
 and receive responses from the customer” and, “based on
 [those] responses,” “automatically adjusting ophthalmic
 equipment.” Id. col. 51 ll. 19, 54–64. As such, by claim 13’s
 plain language, its server can administer the “subjective
 portion” of an eye examination without assistance from an
 eye care practitioner or technician, utilizing the “audio re-
 sponse system” to “receive[]” customer responses and “au-
 tomatically adjusting the ophthalmic equipment” “based on
 [those] responses.” Id. col. 51 ll. 45–64; see Brookhill-
 Wilk 1, LLC. v. Intuitive Surgical, Inc., 334 F.3d 1294, 1299
 (Fed. Cir. 2003) (“While certain terms may be at the center
 of the claim construction debate, the context of the sur-
 rounding words of the claim also must be considered in de-
 termining the ordinary and customary meaning of those
 terms.”).
      We next look to the broader specification. See Phillips,
 415 F.3d at 1313 (“[T]he [PHOSITA] is deemed to read the
 claim term not only in the context of the particular claim
 in which the disputed term appears, but in the context of
 the entire patent, including the specification.”). The speci-
 fication does not expressly define “automatically adjust-
 ing,” it does, however, repeatedly use variations of the term
 “automatically.” See Irdeto Access, Inc. v. Echostar Satel-
 lite Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004) (“[T]he spec-
 ification may define claim terms by implication such that
 the meaning may be found in or ascertained by a reading
 of the patent documents.” (internal quotation marks and
 citation omitted)). For example, the specification explains
 that the ’062 patent encompasses an “eye testing and eval-
 uation system” that “may be implemented using different
 levels of automation and/or different types of assistance
 from on-site and/or remote individuals.” ’062 patent col. 32
 ll. 5–11 (emphasis added). “[T]he system (or a portion
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 10     20/20 VISION CENTER, LLC v. VISION PRECISION HOLDINGS



 thereof) may be configured to be fully automated,” such
 that customers may “obtain vision examinations . . . with
 no assistance from others.” Id. col 32 ll. 12–16 (emphasis
 added). This supports our understanding that independent
 claim 13 recites a server that is configured to perform eye-
 examination tests automatically—that is, in a way that is
 automated, without requiring the assistance of an eye care
 practitioner or on-site technician. See Retractable Techs.,
 Inc. v. Becton, Dickinson & Co., 653 F.3d 1296, 1305 (Fed.
 Cir. 2011) (explaining that claim construction “tether[s]
 the claims to what the specification[] indicate[s] the inven-
 tor actually invented”).
      Last, we consider the prosecution history. See Phillips,
 415 F.3d at 1317 (“[T]he prosecution history can often in-
 form the meaning of the claim language by demonstrating
 how the inventor understood the invention and whether
 the inventor limited the invention in the course of prosecu-
 tion.”). During patent prosecution, in response to patenta-
 bility and obviousness rejections pursuant to 35 U.S.C.
 §§ 101, 103 (2012), 20/20 Vision amended its proposed
 claims to add the limitation “automatically adjusting oph-
 thalmic equipment.” J.A. 1757. The patent examiner had
 rejected the relevant claims as “directed toward . . . the ab-
 stract idea of remotely conducting eye examinations by
 providing the patient with instructions to administer the
 exam and forwarding results of the exam to a physician for
 analysis,” J.A. 1757, and obvious over prior art that dis-
 closed such a “system for providing eye health and vision
 examinations,” J.A. 1666. In response, 20/20 Vision
 amended its claims to recite a server “configured to,” inter
 alia, “administer one or more tests to the customer,” with
 “a subjective portion that” includes “an iterative process”
 in which the server “automatically adjust[s] ophthalmic
 equipment” “based on the responses received from the cus-
 tomer via the audio response system.” J.A. 1718–19.
     In adding the “automatically adjusting” limitation,
 20/20 Vision explained that “automatically adjusting”
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 20/20 VISION CENTER, LLC v. VISION PRECISION HOLDINGS       11



 meant that “[t]he objective measurements and subjective
 responses,” received from the customer “via the audio re-
 sponse system,” “may be automatically transformed into
 instructions to control or adjust settings for the ophthalmic
 equipment.” J.A. 1736. 20/20 Vision described the process
 as “automated and iterative,” such that, unlike in prior art,
 eye examination tests could be conducted “without assis-
 tance from an eye practitioner or on-site technician.”
 J.A. 1741; see J.A. 1736–37 (explaining that automation
 “permits the subjective portion of an eye examination to be
 conducted without assistance from an eye [care] practi-
 tioner or on-site technician”). The patent examiner ex-
 pressly relied upon these representations in withdrawing
 his § 101 and § 103 rejections. J.A. 1757 (withdrawing the
 § 101 rejection because the “limitations added upon
 amendment including [the] automatically adjusting [limi-
 tation] . . . are limitations considered significantly more [of
 an] improvement to another technology or technical
 field”), 1757 (withdrawing the § 103 rejection “based on the
 changes made by [20/20 Vision] to the claims”). This con-
 firms our understanding that independent claim 13’s
 server is configured to automatically adjust the ophthalmic
 equipment, based on responses received from the customer
 through the audio response system, without requiring as-
 sistance from an eye care practitioner or on-site technician.
 See Arendi S.A.R.L. v. Google LLC, 882 F.3d 1132, 1136
 (Fed. Cir. 2018) (explaining that prosecution disclaimer is
 proper where “the applicant amended the claims and ex-
 plained what was changed and why, and the examiner con-
 firmed the reasons why the amended claims were deemed
 allowable”).
     20/20 Vision’s primary counterarguments are unper-
 suasive. First, 20/20 Vision argues that claim 13 specifi-
 cally, and the Asserted Claims generally, require “that the
 ophthalmic equipment is ‘automatically adjusted’ by the
 equipment controller based on instructions received from
 an eye-care practitioner.”         Appellant’s Br. 53
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 (capitalization altered). 20/20 Vision argues that, while
 “claim 13 does not restrict” who or what automatically ad-
 justs the ophthalmic equipment, id. at 53–54, dependent
 claims 15 and 17 “both . . . recite that the ophthalmic
 equipment is controlled . . . by the eye-care practitioner,”
 such that independent claim 13 must encompass such a
 limitation, id. at 54. This argument is without merit. It is
 contrary to the plain language of independent claim 13.
 See ’062 patent col. 51 ll. 19–20, 45–55 (reciting that the
 “server” “administer[s]” the “subjective portion” of an eye
 examination, including “automatically adjusting ophthal-
 mic equipment” based on customer responses). It also im-
 properly reads a limitation from dependent claims 15 and
 17 into independent claim 13. See Nazomi Commc’ns, Inc.
 v. Arm Holdings, PLC, 403 F.3d 1364, 1370 (Fed. Cir. 2005)
 (explaining that, “normally . . . limitations stated in de-
 pendent claims are not to be read into the independent
 claim from which they depend” (internal quotation marks
 and citation omitted)).
      Second, 20/20 Vision argues that, because the specifi-
 cation includes embodiments in which “eye-care practition-
 ers (and other individuals) provid[e] instructions and
 inputs to the equipment controller to adjust the equipment
 during the eye examinations,” Appellant’s Br. 55, the “spec-
 ification confirms that [the] ophthalmic equipment is auto-
 matically adjusted by eye-care practitioners[,]” id. at 54.
 This argument is similarly without merit. It improperly
 reads limitations from exemplary embodiments into inde-
 pendent claim 13. See Liebel–Flarsheim Co. v. Medrad,
 Inc., 358 F.3d 898, 913 (Fed. Cir. 2004) (“[I]t is improper to
 read limitations from a preferred embodiment described in
 the specification—even if it is the only embodiment—into
 the claims absent a clear indication in the intrinsic record
 that the patentee intended the claims to be so limited.”).
 Accordingly, the District Court properly construed “[b]ased
 on the responses received from the customer via the audio
 response system, automatically adjusting ophthalmic
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 20/20 VISION CENTER, LLC v. VISION PRECISION HOLDINGS       13



 equipment” to mean that “the server hardware and soft-
 ware is configured to automatically transform the re-
 sponses received through the audio response system into
 instructions to adjust the ophthalmic equipment without
 requiring assistance from an eye care practitioner or on-
 site technician.” 20/20 Vision, 2018 WL 5807654, at *11.
                         CONCLUSION
     We have considered 20/20 Vision’s remaining argu-
 ments and find them unpersuasive. 4 Accordingly, the Con-
 sent Judgment of the U.S. District Court for the Southern
 District of Florida is
                         AFFIRMED




     4    20/20 Vision contends that the District Court also
 erred by misconstruing the terms “eye-care practitioner,”
 see Appellant’s Br. 30–42, and “audio response system,” see
 id. at 42–51. However, based on parties’ concessions at oral
 argument, we need not reach these issues. See Oral Arg.
 at 17:07–38, http://oralarguments.cafc.uscourts.gov/de-
 fault.aspx?fl=2019-1504.mp3 (20/20 Vision agreeing that
 affirmance on any one of the three terms at issue is “suffi-
 cient basis for affirming a judgment of non-infringement”
 of the Asserted Claims); id. at 17:56–18:11 (Vision Preci-
 sion stating that affirmance on any one claim construction
 “would be the end of the case”); see also Vivid Techs., Inc. v.
 Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)
 (“[O]nly those terms need be construed that are in contro-
 versy, and only to the extent necessary to resolve the con-
 troversy.”); J.A. 23–24 (Consent Judgment) (providing that
 the parties “stipulate and agree” that the District Court’s
 construction of each claim term “served as a separate
 ground” on which Vision Precision is “entitled to judgment
 as a matter of law on the issue of non-infringement” of the
 Asserted Claims).
