                        NOTE: This disposition is nonprecedential.


   United States Court of Appeals for the Federal Circuit
                                         2008-1098

                        AMAZIN’ RAISINS INTERNATIONAL, INC.,

                                                      Plaintiff-Appellant,

                                              v.


                           OCEAN SPRAY CRANBERRIES, INC.,

                                                      Defendant-Appellee.

        Rachel K. Zimmerman, Merchant & Gould P.C., of Minneapolis, Minnesota, argued for
plaintiff-appellant. With her on the brief were Christopher J. Sorenson, Joshua P. Graham,
and Elizabeth A. Zidones.

     Jeffrey L. Snow, Kirkpatrick & Lockhart Preston Gates Ellis LLP, of Boston,
Massachusetts, argued for defendant-appellee. With him on the brief was Michael E. Zeliger.

Appealed from: United States District Court for the District of Massachusetts

Chief Judge Mark L. Wolf
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2008-1098


                      AMAZIN’ RAISINS INTERNATIONAL, INC.,

                                                             Plaintiff-Appellant,

                                           v.

                         OCEAN SPRAY CRANBERRIES, INC.,

                                                             Defendant-Appellee.


Appeal from the United States District Court for the District of Massachusetts in Case
No. 04-CV-12679, Chief Judge Mark L. Wolf

                           __________________________

                            DECIDED: October 31, 2008
                           __________________________


Before NEWMAN and LOURIE, Circuit Judges, and ALSUP, * District Judge.

ALSUP, District Judge.

                                   INTRODUCTION

      Amazin’ Raisins International, Inc. (“ARI”), appeals a final judgment by the United

States District Court for the District of Massachusetts. Amazin’ Raisins Int’l, Inc. v.

Ocean Spray Cranberries, Inc., Cr. No. 04-12679-MLW, 2007 WL 2386360 (D. Mass.

August 20, 2007). ARI appeals both the district court’s claim construction and its grant

      *
             Honorable William Alsup, District Judge, United States District Court for
the Northern District of California, sitting by designation.
of summary judgment of non-infringement of U.S. Patent No. 5,188,861 (“’861 patent”)

in favor of Ocean Spray Cranberries, Inc. (“OSC”).          Because we conclude that the

district court did not err in its claim construction or its infringement analysis, we affirm.

                                        STATEMENT

       The ’861 patent is directed toward a process for preparing a flavored dried-fruit

product having a flavor that does not substantially correspond to the natural flavor of the

dried fruit. The process involves two or three steps. First, dried-fruit pieces are treated

with an acidulant in an amount and for a period of time sufficient to remove the dried

fruit’s natural flavor. The acidulant may be chosen from the group consisting of tartaric

acid, malic acid, citric acid, ascorbic acid, phosphoric acid, and fumaric acid. Second,

the resulting dried-fruit pieces are dehydrated until a desired moisture content is

reached. Third, as part of the acidulant treatment (i.e., the first step of the process) or

after dehydration (i.e., the second step of the process), a flavoring agent is added to the

dried-fruit pieces in an amount and for a period of time which is sufficient to impart the

dried fruit with a flavor that is substantially the same as the flavoring agent.

       All illustrative examples detailed in the ’861 specification describe the process as

applied to raisins. For instance, syrup containing a cherry-flavor solution and malic acid

could be added to dried raisins for a period of six hours “to allow the solution to be

absorbed into the raisins” (col. 6:65–col. 7:2).        The treated raisins could then be

dehydrated and cooled. The resultant fruit product is a raisin with a cherry taste.

       Claim 1 of the ’861 patent — the sole claim at issue — is the only claim directed

to all types of dried fruit. The remaining claims are limited to treating raisins. Claim 1

provides (emphases added):




2008-1098                                      2
       A process for preparing a flavored dried fruit product said process
       comprising:

              (a) treating a dried fruit with an acidulant being selected from the
              group consisting of tartaric acid, malic acid, citric acid, ascorbic
              acid, phosphoric acid, and fumaric acid, in an amount and for a
              period of time which is sufficient to substantially remove the natural
              flavor of the dried fruit;

              (b) dehydrating the treated dried fruit to obtain a desired moisture
              content; and

              (c) treating the dried fruit during step (a) or after step (b) with a
              flavoring agent having a flavor which does not substantially
              correspond to the natural flavor of the dried fruit, said flavoring
              agent being employed in an amount sufficient and a period of time
              which is sufficient to impart to the dried fruit a flavor which is
              substantially the same as the flavoring agent; and so forming a
              flavored dried fruit product having an outer surface which is
              substantially non-sticky whereby the flavored dried fruit product
              may be easily handled.

       The examiner originally rejected all claims of the ’861 patent as obvious in light of

the combination of U.S. Patent No. 1,717,489 (“Barlow”), U.S. Patent No. 4,542,033

(“Agarwala”), and the Chemical Rubber Company Book of Food Additives. In response,

ARI argued that while Barlow did disclose a process for treating dried fruit, it only taught

repeatedly exposing the external surface of the dried fruit to fruit juice and did not

employ the use of any acidulant. Next, ARI distinguished Agarwala by arguing that it

only suggested the application of an acidulant to fresh-fruit pieces.        Following the

response, all claims were allowed.

                               *             *             *

       OSC’s process produces sweetened cranberries that are infused with various

flavors, such as orange and cherry. The process operates in three steps. Significantly,

the accused process consists solely of steps two and three. First, frozen cranberries




2008-1098                                    3
are sorted, sliced, defrosted, and discharged into a piece of equipment called the

“counter current extractor” (“CCE”). Water or permeate then flows down the CCE onto

the cranberries thereby removing a substantial portion of the cranberries’ natural-flavor

components. Put in another way, the sugars, acids, and other natural substances in the

cranberries are displaced by the incoming water or permeate. The parties agree that

the moisture content of the cranberries that enter the CCE is approximately 87%. OSC

refers to the cranberries that come out of the CCE as “decharacterized fruit.” The

parties disagree as to the moisture content of the decharacterized fruit exiting the CCE.

OSC maintains that the moisture content is roughly 90%, while ARI argues that it is

unknown because it was not measured by either party.

       Second, the decharacterized fruit enters the “counter current infuser” (“CCI”)

where it is immersed in an infusion syrup containing sugar, a coloring agent, and citric

acid for roughly three hours. The citric acid is used to add a tart flavor to the fruit. The

cranberries leaving the CCI are then washed or shaken to remove any excess infusion

syrup. At this point, the record is undisputed that the cranberries have a moisture

content between 46 to 60%.

       Third, the cranberries are conveyed into what OSC refers to as a “dryer.” In the

dryer, the cranberries are subjected to forced air for approximately two hours. The

moisture content of the cranberries exiting the dryer is below 18%.

                               *             *             *

       ARI filed suit against OSC in July 2004, alleging that OSC’s process for

producing its cranberries infringed claim 1 of the ’861 patent. OSC moved for summary

judgment of non-infringement with respect to three limitations in claim 1: (1) “treating a




2008-1098                                    4
dried fruit;” (2) “with an acidulant . . . in an amount and for a period of time which is

sufficient to substantially remove the natural flavor of the dried fruit;” and (3) “an outer

surface which is substantially non-sticky whereby the flavored dried fruit product may be

easily handled.” The district court granted summary judgment of non-infringement as to

the first two limitations and did not address the third limitation.          Amazin’ Raisins

International, Inc. v. Ocean Spray Cranberries, Inc., Cr. No. 04-12679, 2007 WL

2386360 (D. Mass. August 20, 2007) (“Summary Judgment Order”).

       With respect to the first limitation, the district court construed the term “dried fruit”

to mean “fruit from which natural moisture has been removed which has approximately

10 to 18% moisture remaining.”        This was based on the leading paragraph of the

detailed description of the invention in the specification, stating (col. 3:58–63) (emphasis

added):

       The dried fruits which may be flavored employing the processes of the
       invention include peach, apple, pear, raisins, prunes, apricots and
       cherries. Any dried fruit which contains between about 10% to 18%
       moisture may be employed. The process can be employed on whole or
       sectioned pieces of dried fruit.

Using this construction, the district court found that OSC’s accused process did not treat

“dried fruit” because the decharacterized cranberries entering the CCE had a moisture

content well above 10 to 18%.

       The district court also found that OSC’s accused process did not meet the

second limitation because the purpose of the acidulant in OSC’s process was to add its

own tart flavor to the cranberries and not to “substantially remove” the cranberries’

natural flavor. More specifically, the district court found that the cranberries’ natural

flavor was removed during step one of its process — i.e., in the CCE.




2008-1098                                      5
       On August 20, 2007, the district court entered final judgment in favor of OSC and

ARI timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

                                        ANALYSIS

       We review the district court’s claim construction and grant of summary judgment

of non-infringement de novo. Netscape Commc’ns Corp. v. Konrad, 295 F.3d 1315,

1319 (Fed. Cir. 2002). 1     Summary judgment is appropriate “if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). In addition, in deciding a motion for summary

judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). On appeal, ARI challenges the district court’s construction of the term

“dried fruit” and the district court’s grant of summary judgment of non-infringement of

claim 1. We will address each argument in turn.

       A.     Claim Construction

       The district court construed the term “dried fruit” to mean “fruit from which natural

moisture has been removed which has about 10 to 18% moisture remaining.” Summary

Judgment Order, slip op. at 30. The district court also construed the term “about” to

mean “approximately.”      ARI argues that the district court erroneously imported a

numerical limitation into the claim and that the term “dried fruit” should not be limited by

any particular moisture range. Instead, ARI contends that the term “dried fruit” should

have been construed to mean “fruit that has had a portion of its natural moisture



       1
              Internal citations are omitted from all quoted authorities.


2008-1098                                    6
removed.”    After reviewing the intrinsic record, we conclude that the district court

correctly construed the term “dried fruit.”

       Significantly, the first paragraph of the detailed description of the invention in the

specification states in whole part (col. 3:58–63) (emphasis added):

       The dried fruits which may be flavored employing the processes of the
       invention include peach, apple, pear, raisins, prunes, apricots and
       cherries. Any dried fruit which contains between about 10% to 18%
       moisture may be employed. The process can be employed on whole or
       sectioned pieces of dried fruit.

This passage appears before any preferred embodiments are discussed or any specific

examples detailed.

       ARI contends that this paragraph should be discounted because those skilled in

the art would have read the entirety of the specification to suggest that any piece of fruit

with some of its natural moisture removed could be employed. ARI, however, cites to

no other portion of the specification that repudiates the plain language of the opening

paragraph. Nor can it.

       “In light of the statutory directive that the inventor provide a ‘full’ and ‘exact’

description of the claimed invention, the specification necessarily informs the proper

construction of the claims.” Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir.

2005). It is hard to understand the import of the underscored sentence other than as

defining the dried fruit to which the invention was directed. ARI now requests that this

language be deleted from the specification or completely ignored. But the language

employed by the patentee could not have been more clear in explaining the dried fruit to

which the invention was directed: “Any dried fruit which contains between about 10% to




2008-1098                                     7
18% moisture may be employed.” To now say that these limits should be ignored would

be a direct contradiction to the public-notice function of a patent.

       ARI next argues that importing a numerical range into the claim would be

improper because the claim does not expressly contain any such limitation. Although it

is generally true that we will not limit a claim written in general, descriptive words by a

numerical range appearing only in the written description, see Renishaw PLC v.

Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998), “when a patentee

uses a claim term throughout the entire patent specification, in a manner consistent with

only a single meaning, he has defined that term ‘by implication.’” Bell Atl. Network

Servs., Inc. v. Covad Commc’ns Group, Inc., 262 F.3d 1258, 1271 (Fed. Cir. 2001).

Again, the passage at issue announces the scope of the detailed description of the

invention and precedes all other discussion of any embodiments or examples. In those

decisions declining to import a numerical limitation into a claim, the specifications

provided varying definitions and usage for the claim terms at issue. See Johnson

Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 991 (Fed. Cir. 1999); see also

Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1310 (Fed. Cir. 1999).

Here, however, the specification contains no varied usage or ambiguity.

       ARI also contends that the district court’s construction is incorrect because the

’861 specification teaches that the dried fruit need only be sufficiently dry to allow

absorption of the flavoring solution in an amount somewhat less than 10% by weight of

the final product (col. 2:37–39) (“said flavor solution being employed in an amount of

about 10 to 100% by weight of final product”). This may be true but is irrelevant. That

the flavoring solution can be used in an amount as low as 10% of the final weight of the




2008-1098                                     8
product does not speak to the amount of moisture content in the product at the

beginning of the process.       Even if the final fruit product absorbs only 10% of the

flavoring solution, that does not necessarily imply that the dried fruit had a 90% moisture

content before being treated.

       Accordingly, we conclude that the district court did not err in its construction of

the term “dried fruit.”

       B.      Non-Infringement

       ARI maintains that the district court erred in granting summary judgment of non-

infringement as to the “substantially remove” limitation and, even using the district

court’s construction, as to the “dried fruit” limitation.      We address each limitation

separately.

               1.     “dried fruit”

       ARI’s appeal with respect to the “dried fruit” limitation is limited to the district

court’s grant of summary judgment of non-infringement under the doctrine of

equivalents. 2 The district court found that OSC’s accused process did not infringe claim

1 under the doctrine of equivalents because: (1) ARI had expressly surrendered fresh

fruit during prosecution and (2) any finding of equivalency would necessarily vitiate the

“dried fruit” limitation out of the claim. We affirm on the latter ground.

       According to ARI, OSC’s decharacterized fruit represents an insubstantial

change from the “dried fruit” of claim 1. Under the doctrine of equivalents, “a product or

process that does not literally infringe upon the express terms of a patent claim may

       2
             ARI’s arguments regarding literal infringement are based solely on its
proposed construction for the term “dried fruit.” That proposed construction has already
been rejected. We therefore only address infringement under the doctrine of
equivalents.


2008-1098                                     9
nonetheless be found to infringe if there is ‘equivalence’ between the elements of the

accused product or process and the claimed elements of the patented invention.”

Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17, 21 (1997). The “all-

limitations” rule, however, restricts the doctrine of equivalents in circumstances where

its application would necessarily vitiate a claim limitation. In determining whether the

application of the all-limitations rule is appropriate, we consider “the totality of the

circumstances of each case and determine whether the alleged equivalent can be fairly

characterized as an insubstantial change from the claimed subject matter without

rendering the pertinent limitation meaningless.” Freedman Seating Co. v. Am. Seating

Co., 420 F.3d 1350, 1359 (Fed. Cir. 2005).

       We agree with the district court that a finding that OSC’s decharacterized fruit is

an equivalent would essentially render the “dried fruit” limitation meaningless, and thus

vitiate that limitation from the claim. As construed, claim 1 requires that the process be

applied to a fruit product having a moisture content of approximately 10 to 18%. The

undisputed record here is that the decharacterized fruit pieces entering the CCI have

roughly a 87 to 90% moisture content. 3 To find that an item of fruit with a moisture

content between 87 to 90% is insubstantially different from an item of dried fruit with a

       3
               In two footnotes in its opening brief, ARI argues that this issue is disputed.
More specifically, ARI contends that OSC never actually measures the moisture content
of the decharacterized fruit that enters the CCI. For its part, however, ARI has provided
no evidence indicating otherwise despite its burden to prove infringement. The parties
have stipulated that the moisture content of the fruit pieces entering the CCE is
approximately 87%. OSC has proffered evidence in the form of sworn declarations
stating that the moisture content of the fruit remains roughly the same throughout the
extraction process where the cranberries’ natural juices are replaced by water or
permeate. There is therefore simply nothing on the current record supporting ARI’s
argument that the moisture content of the decharacterized fruit is below 87 to 90%.
Again, ARI could have easily measured the moisture content of the decharacterized fruit
and chose not to.


2008-1098                                    10
moisture content between 10 to 18% would defy reason and necessarily render the

“dried fruit” limitation meaningless. Accordingly, we affirm the district court’s finding that

OSC’s accused process does not employ “dried fruit” as contemplated by claim 1.

              2.      “substantially remove”

       Although the above is dispositive, we also affirm the district court’s grant of

summary judgment of non-infringement on the ground that OSC’s process does not

meet the “substantially remove” limitation of claim 1.        Step (a) of claim 1 requires

“treating a dried fruit with an acidulant . . . in an amount and for a period of time which is

sufficient to substantially remove the natural flavor of the dried fruit.” The district court

found that OSC’s process does not infringe because its acidulant is not used to

substantially remove the natural flavor from the cranberries. Rather, in OSC’s process

the natural flavor of the cranberries is removed in the CCE by water or permeate; the

acidulant is only added in the later infusion process. In addition, the district court found

that claim 1 required that the acidulant not add its own flavor to the treated fruit. The

acidulant in OSC’s process, by contrast, adds a tart flavor to the cranberries.           No

express construction was given for “substantially remove” by the district court.

       As an initial matter, we question the district court’s finding that claim 1 requires

that the acidulant not add its own flavor to the treated fruit. The ’861 specification itself

states that “[t]he acidulant may also give the dried fruit product a tart taste” (col. 4:39–

40).   Nothing in the remaining portions of the specification nor in claim 1 remotely

suggest otherwise. In its brief, OSC admits as much.

       Nonetheless, we find that OSC’s process does not meet the “substantially

remove” limitation.    It is undisputed that the cranberries in OSC’s process are run




2008-1098                                      11
through the CCE where they are treated with water or permeate to thereby substantially

remove the cranberries’ natural-flavor components. The acidulant is only added in the

CCI where the treated cranberries are infused with flavoring syrup. At no point in the

process is the acidulant used by OSC to “remove” the natural flavor from the

cranberries.

       ARI contends that claim 1 does not require that the acidulant physically remove

the natural flavor of the fruit, but only that it be used so as to mask it. According to ARI,

the question is not whether the natural flavor of the fruit has actually been removed, but

instead, whether the natural flavor of the fruit can be tasted. We reject this argument for

it is in direct contradiction with the express language employed in claim 1. The claim

requires that the acidulant “substantially remove” the natural flavor from the dried fruit —

not that it “mask,” “cover,” or “conceal” it. “[W]e have repeatedly declined to rewrite

unambiguous patent claim language” and will decline to do so here. Chef Am., Inc. v.

Lamb-Weston, Inc., 358 F.3d 1371, 1375 (Fed. Cir. 2004).            ARI has pointed to no

forceful intrinsic evidence supporting its position. The express claim language requires

that the acidulant be added to remove the natural flavor disregarding whether or not

other flavors are added for masking purposes. Put in another way, the acidulant can

both add its own flavor and physically remove the natural flavor.

       We reject ARI’s argument that the specification teaches this masking effect by

providing (col. 4:47–54):

       The selection of a particular acidulant will be made with knowledge of the
       flavor compatibility of the acidulant with the particular dried fruit to be
       flavored and the flavoring agent. Thus, flavoring of particular dried fruit or
       even a particular raisin using the processes of the invention will require a
       balancing of the flavoring agent and acidulant to achieve a desired result.




2008-1098                                    12
First, the passage does not change the fact that the claim language expressly states

that the acidulant’s purpose is to remove the natural flavor from the fruit. Remove

means remove, it does not mean merely mask. The specification repeatedly draws a

distinction between adding flavor and removing flavor even with respect to the acidulant

itself. With this distinction in mind, the patentee chose to use “remove” when claiming

the invention. Second, claim 1 only requires that the acidulant “substantially remove”

the natural flavor of the fruit, not that it remove all of it. Flavor compatibility between the

natural flavor and the acidulant would therefore still be at issue even after the natural

flavor is removed in the patented process. Third, the above-quoted passage does not

speak to the compatibility of the acidulant with the natural flavor of the dried fruit. It only

discusses the compatibility between the acidulant and the dried fruit itself. There could

be various reasons why a particular acidulant would be better matched with a particular

fruit having nothing to do with the fruit’s natural flavor. Accordingly, summary judgment

of non-infringement was appropriate as to this limitation. 4

                                       CONCLUSION

       For the foregoing reasons, we affirm the judgment of the district court.




       4
              On appeal, ARI makes no argument as to infringement under the doctrine
of equivalents with respect to the “substantially remove” limitation.


2008-1098                                     13
