       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

         CAVE CONSULTING GROUP, LLC,
                Plaintiff-Appellee

                            v.

    OPTUMINSIGHT, INC., FKA INGENIX, INC.,
             Defendant-Appellant
            ______________________

                       2017-1060
                 ______________________

   Appeal from the United States District Court for the
Northern District of California in No. 5:11-cv-00469-EJD,
Judge Edward J. Davila.
                ______________________

                Decided: March 21, 2018
                ______________________

    RICHARD L. BROPHY, Armstrong Teasdale LLP, St.
Louis, MO, argued for plaintiff-appellee. Also represented
by ZACHARY CHARLES HOWENSTINE, MARK A. THOMAS.

    PETER MCCREERY LANCASTER, Dorsey & Whitney
LLP, Minneapolis, MN, argued for defendant-appellant.
Also represented by SHANNON L. BJORKLUND, TIMOTHY J.
DROSKE; PAUL D. ACKERMAN, Andrews Kurth Kenyon
LLP, New York, NY; EDWARD R. REINES, Weil, Gotshal &
Manges LLP, Redwood Shores, CA.
2          CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.



                 ______________________

    Before LOURIE, DYK, and TARANTO, Circuit Judges.
LOURIE, Circuit Judge.
    OptumInsight, Inc. (“Optum”) appeals from the final
judgment by the United Stated District Court for the
Northern District of California. See Cave Consulting
Grp., LLC v. OptumInsight, Inc., No. 5:11-cv-00469-EJD
(N.D. Cal. Apr. 6, 2015), ECF No. 370; J.A. 1. The judg-
ment follows a jury verdict in favor of Cave Consulting
Group, LLC (“Cave”) that U.S. Patent 7,739,126 (“the ’126
patent”) is not invalid and was infringed by Optum,
awarding Cave $12,325,000 in damages. See Cave Con-
sulting Grp., LLC v. OptumInsight, Inc., No. 5:11-cv-
00469-EJD (N.D. Cal. Apr. 3, 2015), ECF No. 366; J.A.
81–85.
    On appeal, Optum challenges the district court’s vari-
ous rulings, including a claim construction order, see Cave
Consulting Grp., LLC v. Ingenix, Inc., No. 5:11-cv-00469-
EJD, 2013 WL 2467930 (N.D. Cal. June 7, 2013) (“Claim
Construction Order”), orders on summary judgment
motions, see Cave Consulting Grp., LLC v. OptumInsight,
Inc., No. 5:11-cv-00469-EJD, 2015 WL 740379 (N.D. Cal.
Feb. 20, 2015) (“SJ Order”); Cave Consulting Grp., LLC v.
OptumInsight, Inc., No. 5:11-cv-00469-EJD (N.D. Cal.
Feb. 23, 2015), ECF No. 293; J.A. 77–79, an order on
Daubert motions, see Cave Consulting Grp., LLC v. Op-
tumInsight, Inc., No. 5:11-cv-00469-EJD, 2015 WL
13413389 (N.D. Cal. Feb. 20, 2015) (“Daubert Order”), an
order on certain pre-trial motions, see Cave Consulting
Grp., LLC v. OptumInsight, Inc., No. 5:11-cv-00469-EJD
(N.D. Cal. Mar. 16, 2015), ECF No. 332; J.A. 80, and an
order on motion for judgment as a matter of law (“JMOL”)
or for a new trial, see Cave Consulting Grp., LLC v. Op-
tumInsight, Inc., No. 5:11-cv-00469-EJD, 2016 WL
4658979 (N.D. Cal. Sept. 7, 2016) (“Post-trial Order”).
CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.         3



Because the district court erred in its claim construction,
we reverse in part, vacate in part, and remand.
                       BACKGROUND
    Cave owns the ’126 patent, which discloses “[a] meth-
od for measuring physician efficiency and patient health
risk stratification.” ’126 patent Abstract. The ’126 patent
describes that a physician’s “efficiency,” i.e., the cost of
care by a physician compared to that of a peer group, can
be determined by analyzing relevant medical claims data.
Id. col. 1 ll. 13–46, col. 7 l. 4–col. 9 l. 26. Independent
claims 22 and 29 are at issue in this appeal; claim 22
reads as follows:
   22. A method implemented on a computer system
   of determining physician efficiency, the method
   comprising:
       obtaining medical claims data stored in a
       computer readable medium on the com-
       puter system;
       performing patient analysis using said ob-
       tained medical claims data to form epi-
       sodes of care utilizing the computer
       system;
       performing output process based on per-
       formed patient analysis utilizing the com-
       puter system, the output process
       comprising:
           assigning episodes of care to phy-
           sicians; and
           applying a first maximum dura-
           tion rule to identify episodes of
           care;
       assigning at least one physician to a re-
       port group utilizing the computer system;
4           CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.



        determining eligible physicians and epi-
        sode of care assignments utilizing the
        computer system;
        calculating condition-specific episode of
        care statistics utilizing the computer sys-
        tem;
        calculating weighted episode of care statis-
        tics across medical conditions utilizing a
        predefined set of medical conditions for a
        specific specialty type utilizing the com-
        puter system; and
        determining efficiency scores for physi-
        cians from said calculated condition-
        specific episode of care statistics and said
        weighted episode of care statistics calculat-
        ed across medical conditions utilizing the
        computer system.
Id. col. 111 l. 55–col. 112 l. 14 (emphases added).
    Similarly, claim 29 requires “[a] computer program
product” that “perform[s] the acts of” the identical steps of
the method delineated in claim 22. Id. col. 112 ll. 38–67.
    The ’126 patent describes its method as employing
what it calls a “marketbasket” based on physicians’ spe-
cialties and discloses calculating “weighted episode statis-
tics” of a peer group and of a physician to determine the
physician’s efficiency score. Id. col. 92 l. 27–col. 94 l. 47.
In particular, the ’126 patent describes that according to
its method of using the “marketbasket,” “regardless of a
physician’s (or peer group’s) actual episode work effort,
the rule standardizes each physician’s actual work effort
to a static set of weight factors,” and that its method
“allows for an apples-to-apples comparison of one physi-
cian’s marketbasket results to another physician’s mar-
ketbasket results.” Id. col. 73 ll. 51–53, 57–61. The
patent further states that its calculation of “weighted
CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.          5



episode statistics” using the “marketbasket” is “referred to
as the indirect standardization rule” and that “[t]he
system of the present invention uses an indirect standard-
ization technique for weighting together the episodes
within the core group of medical conditions.” Id. col. 92 ll.
37–41.
    As background, the ’126 patent discusses the prior art
methods that “use a physician’s actual episode composi-
tion.” Id. col. 1 ll. 50–51. The patent further discusses,
inter alia, a type of measurement error, which “occurs in
most if not all current efficiency measurement systems,
occurs when the physician’s actual episode composition is
used.” Id. col. 2 ll. 32–34. On the other hand, the patent
states that, in calculating a peer group’s “weighted epi-
sode statistics,” its method “does not use the peer group’s
actual episode composition to calculate the weighted
average. Instead, the predetermined standard market-
basket weights are used.” Id. col. 93 ll. 12–14. Similarly,
in calculating an individual physician’s “weighted episode
statistics,” the patent states that “the same indirect
standardization weighting calculations are performed
using the physician’s condition-specific utilization and
charges per episode and the same specialty-specific mar-
ketbasket weights.” Id. col. 93 ll. 31–35.
    In 2011, Cave filed suit against Ingenix, Inc., Optum’s
predecessor, in the Northern District of California, alleg-
ing infringement of the ’126 patent. Optum counter-
claimed, asserting its own patents against Cave. They
were found not to have been infringed and that issue is
not before us in this appeal. It is undisputed that Cave
and Optum both develop and market software and ser-
vices that are used to measure efficiency of healthcare
providers. Appellant’s Br. 3–4; Appellee’s Br. 2–3.
    In August 2012, the district court held a claim con-
struction hearing. In June 2013, the court issued an
order construing, inter alia, certain claim limitations of
6           CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.



the ’126 patent. See Claim Construction Order, 2013 WL
2467930. The court construed “weighted episode of care
statistics” in claims 22 and 29 as “cost or length of care
statistics for a group of medical conditions calculated
using the relative importance of each condition to the
others of the group,” adopting Cave’s proposed construc-
tion. Id. at *2–4. In so doing, the court rejected Optum’s
proposal to construe the limitation as requiring a usage of
“predetermined weight factors” rather than the actual
episode composition. Id. Such requirement would ex-
clude direct standardization from the scope of the claim,
and the district court reasoned that doing so would “es-
sentially read out the nine dependent claims that rely on
direct standardization.” Id. at *4. The court, however,
agreed with Optum and declined to construe the limita-
tion “determining eligible physicians and episode of care
assignments” in claims 22 and 29, adopting the plain
meaning of the language of the claim limitation. Id. at
*5–6. In construing these claim limitations, the district
court did not rely on any extrinsic evidence. See id. at *2–
6.
    In February 2015, the district court issued orders on
the parties’ motions, including their respective motions to
exclude, see Daubert Order, 2015 WL 13413389, and
summary judgment motions on infringement and validity,
see SJ Order, 2015 WL 740379. In its summary judgment
order, the district court determined, inter alia, that Op-
tum had not shown invalidity or noninfringement of the
’126 patent at the summary judgment stage. SJ Order,
2015 WL 740379, at *3–12, *14–15. The court first reject-
ed Optum’s argument that the ’126 patent was invalid for
anticipation, being on sale or in public use under § 102(b),
CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.          7



or due to prior invention by Optum under § 102(g). 1 Id. at
*3–12.
    As for Optum’s noninfringement arguments, the court
rejected them. It determined that they were either an
attempt to relitigate the claim limitations already con-
strued, or dependent upon the plain meaning of the
limitations not construed by the court and must be under-
stood by the jury from the viewpoint of a skilled artisan.
Id. at *14–15.     Thus, the court ruled that, beyond the
limitation specifically construed, namely, “weighted
episode of care statistics,” the remaining language of
“calculating weighted episode of care statistics across
medical conditions utilizing a predefined set of medical
conditions,” which Optum argued it did not meet, should
be understood by the jury according to how a person of
ordinary skill in the art would read the limitation. Id.
The court also rejected Optum’s noninfringement argu-
ment regarding other limitations, including “determining
eligible physicians and episode of care assignments,”
which the court had decided not to construe. Id. at *15.
     Thereafter, the court issued an order clarifying its SJ
Order, and granted “[Cave’s] motion for summary judg-
ment of validity of the ’126 patent under § 102(a), (b), and
(g) for the same reasons set forth in the Order.” J.A. 77–
79. The court also granted Cave’s motion to exclude from
trial Optum’s arguments on whether a certain order of
steps should be required to meet the “determining eligible
physicians and episode of care assignments” limitation.
J.A. 80.


    1   The ’126 patent was filed before the effective date
of the Leahy-Smith America Invents Act (“AIA”), Pub. L.
112-29, 125 Stat. 284 (2011), and is governed by the prior
versions of certain sections of Title 35, including §§ 102
and 112, see id., Pub. L. 112-29, §§ 3(n)(1), 4(e), 125 Stat.
at 293, 297.
8           CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.



    A jury trial was held in March 2015, and, as relevant
to this appeal, the jury was instructed on the meaning of
the claim limitations as construed in the Claim Construc-
tion Order and presented with the questions of invalidity
of the ’126 patent for inadequate written description of
“weighted episode of care statistics” under § 112 and
infringement of claims 22 and 29 by Optum’s Impact
Intelligence software product. Cave Consulting Grp., LLC
v. OptumInsight, Inc., No. 5:11-cv-00469-EJD (N.D. Cal.
Apr. 1, 2015), ECF No. 357; J.A. 13444–50. In addition to
the claim limitations construed in the Claim Construction
Order, the jury was also instructed on the meaning of
“predefined set of medical conditions.” J.A. 13446–47; see
also Post-trial Order, 2016 WL 4658979, at *5. At the
conclusion of the trial, the jury found, inter alia, that the
limitation “weighted episode of care statistics” does not
lack adequate written description support, and that
claims 22 and 29 were infringed by Optum. J.A. 82. The
jury awarded Cave $12,325,000 in damages. J.A. 83.
    Following the jury trial, the parties filed post-trial
motions. The district court denied all but part of Cave’s
motion to amend the judgment, awarding prejudgment
interest, supplemental damages, and post judgment
interest. Post-trial Order, 2016 WL 4658979, at *25–26.
    As relevant here, the district court denied Optum’s
motion for JMOL of noninfringement, noting that Optum
did not seek construction of the “calculating weighted
episode of care statistics across medical conditions utiliz-
ing a predefined set of medical conditions for a specific
specialty type” limitation or make any argument before
the jury on its plain and ordinary meaning. Post-trial
Order, 2016 WL 4658979, at *4–5. The court concluded
that the jury’s infringement verdict was supported by the
substantial evidence of Cave’s expert testimony that
Optum performed that limitation. Id. The court further
determined that the jury reasonably found that the limi-
tation “weighted episode of care statistics” construed as
CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.          9



covering both direct and indirect standardizations was
supported by adequate written description because the
’126 patent’s critical description of direct standardization
was not an express disclaimer of direct standardization.
Id. at *7–9.
    Optum timely appealed. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(1).
                        DISCUSSION
     On appeal, Optum challenges the district court’s claim
construction, denial of summary judgment of nonin-
fringement, and, after the jury trial, denial of JMOL of
noninfringement. Optum alternatively argues that the
district court erred in granting summary judgment when
it concluded that the ’126 patent is not invalid for being in
public use or on sale under § 102(b) or due to prior inven-
tion by Optum under § 102(g), which were raised as
affirmative defenses. Appellant’s Br. 56; Oral Argument
at 1:56–2:38, Cave Consulting Grp., LLC v. OptumInsight,
Inc., No. 17-1060 (Fed. Cir. Feb. 12, 2018), http://
oralarguments.cafc.uscourts.gov/default.aspx?fl=2017-
1060.mp3. Optum also challenges the calculation of the
damages award.
    We conclude that the district court erred in its con-
struction of “weighted episode of care statistics,” which
resulted in an erroneous finding of infringement based on
undisputed facts. As such, we need not evaluate Optum’s
challenge to the damages determination, which is now
moot. Moreover, because the issue of invalidity under
§ 102(b) and (g) were raised only as affirmative defenses
and because neither party is seeking an adjudication on
those issues in case of a finding of noninfringement, we do
not reach the invalidity issues under § 102(b) or (g). See
Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 99–
102 (1993). As the Supreme Court noted in Cardinal
Chemical, “[a]n unnecessary ruling on an affirmative
defense is not the same as the necessary resolution of a
10          CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.



counterclaim for a declaratory judgment.” Id. at 93–94.
Invalidity was not raised here as a counterclaim.
    Furthermore, because our construction of the
“weighted episode of care statistics” limitation is disposi-
tive of the infringement issue based on undisputed facts,
we need not discuss the proper construction of the “de-
termining eligible physicians and episode of care assign-
ments” limitation, or whether Optum has waived its claim
construction argument for that limitation, as Cave has
argued.
    We will discuss the construction of “weighted episode
of care statistics” and infringement issues in turn. We
apply the law of the regional circuit in patent appeals
“unless the issue pertains to or is unique to patent law.”
AbbVie Deutschland GmbH & Co. v. Janssen Biotech, Inc.,
759 F.3d 1285, 1295 (Fed. Cir. 2014) (internal quotation
marks and citation omitted). We review a district court’s
denial of a motion for JMOL under the law of the regional
circuit in which it sits, here, the Ninth Circuit. See Sim-
pleAir, Inc. v. Sony Ericsson Mobile Commc’ns AB, 820
F.3d 419, 424 (Fed. Cir. 2016). The Ninth Circuit reviews
a denial of JMOL de novo, viewing “the evidence in the
light most favorable to the nonmoving party” and
“draw[ing] all reasonable inferences in that party’s favor,”
and a jury’s verdict for substantial evidence. EEOC v. Go
Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)
(internal quotation marks and citation omitted). A grant
of post-verdict JMOL is proper only if “there is no legally
sufficient basis for a reasonable jury to find for that party
on that issue.” Winarto v. Toshiba Am. Elecs. Compo-
nents, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001) (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
149 (2000)) (internal quotation marks and citation omit-
ted).
   “The ultimate construction of claim language is a
question of law reviewed de novo, based upon underlying
CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.        11



factual determinations reviewed for clear error.” Sim-
pleAir, 820 F.3d at 425 (citing Teva Pharm. USA, Inc. v.
Sandoz, Inc., 135 S. Ct. 831, 837–39 (2015)). In constru-
ing claims, courts follow the principles set forth in Phil-
lips v. AWH Corp., starting with the language of the
claims “read in view of the specification, of which they are
a part.” 415 F.3d 1303, 1315 (Fed. Cir. 2005) (en banc)
(quoting Markman v. Westview Instruments, Inc., 52 F.3d
967, 979 (1995) (en banc), aff’d, 517 U.S. 370 (1996))
(internal quotation marks omitted). Accordingly, if a
district court’s claim construction was based only on
intrinsic evidence, and was reached without making any
underlying factual findings relying on extrinsic evidence,
as the court did here, we review the court’s claim con-
struction without deference. SimpleAir, 820 F.3d at 425
(citing Teva, 135 S. Ct. at 842; CardSoft, LLC v. VeriFone,
Inc., 807 F.3d 1346, 1350 (Fed. Cir. 2015)).
    “Where an infringement verdict relies on an incorrect
claim construction, and no reasonable jury could have
found infringement under the proper claim construction,
this court may reverse the district court’s determination
with respect to JMOL without remand.” Id. (citing Fin-
isar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1333 (Fed.
Cir. 2008)).
  I. Construction of “weighted episode of care statistics”
    Optum argues that the district court erred in its claim
construction because this limitation when read in light of
the specification excludes direct standardization. Optum
contends that the patentee distinguished his invention
from, and disparaged the prior art methods that use,
direct standardization, and repeatedly referred to his
invention as using indirect standardization. Optum notes
that at the time of filing, the specification, including the
original claims, did not purport to claim direct standardi-
zation as part of the invention, and that only after five
years following the filing date, did the patentee add
12          CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.



dependent claims reciting “direct standardization.”
According to Optum, the district court erred in relying on
these later-added dependent claims in construing the
independent claims. Optum further argues that the
district court’s construction cannot stand because, if the
claim limitation is interpreted to include direct standardi-
zation, it would lack adequate written description.
    Cave responds that the district court did not err in its
claim construction because the method using indirect
standardization described in the specification is merely a
preferred embodiment, as demonstrated in the patent
itself and prosecution history. Cave argues that because
the language of the independent claims itself is not limit-
ing and because direct standardization is one way of
“weight[ing],” the limitation should be construed to in-
clude direct standardization. Cave further contends that
the dependent claims that specifically recite “direct
standardization” support its reading of the independent
claims, as noted by the district court. Cave also urges
that the description of the prior art methods using direct
standardization, which in some cases may lead to error
according to the specification, does not amount to a dis-
claimer, which must be clear and unmistakable. Accord-
ing to Cave, because direct standardization was a known
weighting technique, the written description requirement
was met under the court’s claim construction despite the
patent’s critical reference to direct standardization.
    We agree with Optum that the district court erred in
construing “weighted episode of care statistics” as includ-
ing direct standardization. The district court first dis-
cussed that the critical description of direct
standardization in the patent does not necessarily amount
to a disclaimer. Claim Construction Order, 2013 WL
2467930, at *4. In reaching the conclusion that the claim
limitation should include direct standardization, however,
the district court’s only support was from the dependent
claims, based on the reasoning that the court should
CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.          13



differentiate the scope of the dependent claims from that
of the independent claims to preserve the validity of the
dependent claims. Id. The error underlying this analysis
is the district court’s presumption of a broad and non-
limiting reading of “weighted episode of care statistics”
with respect to direct versus indirect standardization.
     Claim language is not read in isolation. Phillips, 415
F.3d at 1315. Here, the claim limitation when read in
light of the specification elucidates the meaning of the
claim language as used by the patentee. As both parties
agree, the ’126 patent describes its method as one that
employs indirect standardization. Cave characterizes this
undisputed fact as the patent’s description of merely one
embodiment, presumably one out of many. However, this
contention is unpersuasive. The patent in its specification
affirmatively limits its method to one that uses one par-
ticular technique, namely, indirect standardization, as
opposed to another used in prior art methods.
    Cave does not identify, nor do we find, any indication
in the ’126 patent’s description that its invention employs
direct standardization, and, other than the dependent
claims, Cave’s support for including direct standardiza-
tion comes exclusively from the description of the prior art
methods in the background section. See Appellee’s Br.
31–32. Indeed, the ’126 patent repeatedly and consistent-
ly describes that the calculation of “weighted episode
statistics” according to its method uses indirect standard-
ization. ’126 patent col. 92 ll. 39–41, col. 93 ll. 12–14, 31–
35. Moreover, the patent’s distinguishing its method that
uses indirect standardization from the purportedly error-
generating prior art methods that use direct standardiza-
tion further demonstrates that the scope of this
“weighted” feature of the invention is affirmatively lim-
ited to indirect standardization. Compare id., with id. col.
1 ll. 50–51, col. 2 ll. 32–34; see also Retractable Techs.,
Inc. v. Becton, Dickinson & Co., 653 F.3d 1296, 1305 (Fed.
Cir. 2011) (construing the claim limitation in question to
14          CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.



“tether the claims to what the specifications indicate the
inventor actually invented”).
    Cave’s argument that finding a disclaimer through a
“clear and unmistakable” disavowal is required for Op-
tum’s argument to prevail is also unpersuasive. Contrary
to Cave’s contention, although “[i]n general, statements
about the difficulties and failures in the prior art, without
more, do not act to disclaim claim scope,” Retractable
Techs., 653 F.3d at 1306 (emphasis added), “[o]ur case law
does not require explicit redefinition or disavowal” when
the description itself is affirmatively limiting, Trs. of
Columbia Univ. in City of N.Y. v. Symantec Corp., 811
F.3d 1359, 1363 (Fed. Cir. 2016). Here, the specification
does more than discuss certain disadvantages of the prior
art methods. It distinguishes its invention from them,
particularly pointing out what the invention does not use.
Thus, we conclude that a finding of a disclaimer is not
correct when, as here, the description of the invention
itself is affirmatively limiting, and is without any indica-
tion that direct standardization is within the scope of the
invention.
    Furthermore, certain canons of claim construction ap-
parently employed by the district court also do not compel
a contrary result. Canons of claim construction, such as
the doctrine of claim differentiation and the canon of
interpreting claims to preserve their validity, are not
absolute. See, e.g., Howmedica Osteonics Corp. v. Zim-
mer, Inc., 822 F.3d 1312, 1323 (Fed. Cir. 2016) (noting
that the doctrine of claim differentiation merely creates “a
rebuttable presumption that may be overcome by a con-
trary construction dictated by the written description or
prosecution history”) (citation omitted). Although gener-
ally not dispositive, the fact that the dependent claims
relied upon by Cave were added after the filing of the
original application is significant here. It is true that the
written description and the originally filed claims are part
of the specification. In re Koller, 613 F.2d 819, 823 (CCPA
CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.        15



1980). And, had the originally filed application, including
the original claims, in any way indicated that its inven-
tion included direct standardization, the later-added
dependent claims specifically claiming “direct standardi-
zation” could have lent support to Cave’s contention that
the independent claims cover direct standardization.
However, in view of the specification’s consistently limit-
ing description, we conclude that these interpretive
canons, despite the later-added dependent claims, cannot
overcome the claim scope that is unambiguously pre-
scribed by the specification.
    The prosecution history also does not require a differ-
ent conclusion. Cave’s only reference in the prosecution
history is a single passing remark by the applicant that
states that the disclosed calculation that uses indirect
standardization is “[o]ne embodiment of the present
invention.” J.A. 850. This remark alone, with no sub-
stantive elaboration on what the patented invention is,
has little value. As discussed above, we decline to adopt
Cave’s argument relying on its post-hoc characterization
of the entirety of what is disclosed in the patent as only
“one embodiment.”
    We therefore conclude that the district court erred in
construing “weighted episode of care statistics” and that
that limitation does not encompass direct standardiza-
tion. We also conclude that the jury verdict that there
was no lack of written description support in the patent
cannot stand to the extent that it relied on the erroneous
claim construction.
                     II. Infringement
    It is undisputed that Optum’s method performs direct
standardization. Appellant’s Br. 37 (quoting J.A. 13185–
86 (Cave’s closing argument)). Furthermore, Cave does
not argue that any factual dispute remains if “weighted
episode of care statistics” is interpreted to exclude direct
16           CAVE CONSULTING GRP., LLC   v. OPTUMINSIGHT, INC.



standardization.   Oral Argument at 29:10–23, Cave
Consulting Grp., No. 17-1060 (Fed. Cir. Feb. 12, 2018).
     The jury’s infringement verdict was based on the dis-
trict court’s erroneous construction of “weighted episode of
care statistics,” J.A. 13444–50, applied to the undisputed
fact that Optum performs direct standardization. As
such, the infringement verdict cannot stand as a matter of
law because no reasonable jury could find that Optum
infringes claims 22 and 29 of the ’126 patent under the
correct construction of “weighted episode of care statis-
tics,” which excludes direct standardization. See Sim-
pleAir, 820 F.3d at 425.
    We therefore conclude that Optum does not infringe
claims 22 and 29 of the ’126 patent as a matter of law.
                        CONCLUSION
    For the foregoing reasons, we reverse the district
court’s claim construction in part, vacate the jury verdict
to the extent that it was based on the district court’s
incorrect claim construction, and vacate the judgment of
infringement and award of damages. We remand with
instructions to enter judgment of noninfringement in
favor of Optum.
     REVERSED IN PART, VACATED IN PART, AND
                   REMANDED
                          COSTS
      Costs to Optum.
