       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

          LEXINGTON LUMINANCE LLC,
                Plaintiff-Appellant

                           v.

             AMAZON.COM INC.,
        AMAZON DIGITAL SERVICES, INC.,
              Defendants-Appellees
             ______________________

                      2014-1384
                ______________________

    Appeal from the United States District Court for the
District of Massachusetts in No. 1:12-cv-12216-DJC,
Judge Denise J. Casper.
                 ______________________

               Decided: February 9, 2015
                ______________________

    ROBERT D. KATZ, Katz PLLC, Dallas, Texas, argued
for plaintiff-appellant. Also represented by DAVID S.
GODKIN, Birnbaum & Godkin, LLP, Boston, MA.

    MICHAEL J. MCKEON, Fish & Richardson P.C., Wash-
ington, DC, argued for defendants-appellees. Also repre-
sented by ROBERT P. COURTNEY, Minneapolis, MN; KURT
LOUIS GLITZENSTEIN, Boston, MA; INDRANIL MUKERJI,
2              LEXINGTON LUMINANCE LLC    v. AMAZON.COM INC.



Washington, DC; JEFFREY H. DEAN, Amazon.com Inc.,
Seattle, WA.
              ______________________

    Before LOURIE, CHEN, and HUGHES, Circuit Judges.
LOURIE, Circuit Judge.
    Lexington Luminance LLC (“Lexington”) appeals from
the decision of the United States District Court for the
District of Massachusetts construing claim 1 of U.S.
Patent 6,936,851 B2 (the “’851 patent”) and granting
judgment on the pleadings that the claim was indefinite.
See Lexington Luminance LLC v. Amazon.com Inc., 6 F.
Supp. 3d 179 (D. Mass. 2014) (“Opinion”). Because we
conclude that the district court erred in construing the
claim and in holding the claim indefinite, we vacate the
judgment of invalidity and remand.
                       BACKGROUND
     Lexington owns the ’851 patent relating to “the fabri-
cation of semiconductor devices such as light-emitting
devices in misfit systems.” ’851 patent col. 1 ll. 8–10. The
’851 patent’s specification explains that, in certain light-
emitting devices, multiple layers of crystalline semicon-
ductor material are grown on a crystalline substrate that
has different crystal lattice constants. Id. col. 1 l. 17–col.
2 l. 9. The crystal lattices of the substrate and the adja-
cent semiconductor layer do not align perfectly, leading to
lattice defects that can propagate in a direction perpen-
dicular to the surface of the substrate through the semi-
conductor layers into the light-emitting active layer. Id.
    Addressing this problem, the ’851 patent teaches us-
ing a substrate that has a “textured surface district” in
order to direct lattice defects to the sides and to reduce
the defect density in the active layer. Id. col. 2 ll. 12–26.
The textured district is fabricated “using conventional
lithographic methods, followed by thermal anneal to
LEXINGTON LUMINANCE LLC   v. AMAZON.COM INC.               3



smooth out sharp corners and etching defects.” Id. col. 2
ll. 27–34. The patent describes the textured district as
comprising “a plurality of etched features such as trench-
es and mesa having a smooth rotation of micro-facets,” id.
col. 3 ll. 33–46, and also describes the surface features as
“stripe or mesa,” id. col. 2 ll. 30–32, col. 3 ll. 47–50. The
patent provides several cross-sectional views of the etched
features in its figures, including Figures 1C, 2A, and 2B.




Id. figs. 1C, 2A, 2B.
    Claim 1 is at issue and reads as follows:
    1. A semiconductor light-emitting device compris-
       ing:
       a substrate;
       a textured district defined on the surface, of
       said substrate comprising a plurality of etched
       trenches having a sloped etching profile with a
       smooth rotation of micro-facets without a pre-
       scribed angle of inclination;
       a first layer disposed on said textured district;
       comprising a plurality of inclined lower por-
       tions so as to guide the extended lattice defects
       away from propagating into the active layer,
4             LEXINGTON LUMINANCE LLC    v. AMAZON.COM INC.



       said first layer and said substrate form a lat-
       tice-mismatched misfit system, said substrate
       is selected from the group comprising group III-
       V, group IV, group II-VI elements and alloys,
       ZnO, spinel and sapphire; and
       a light-emitting structure containing an active
       layer disposed on said first layer.
Id. col. 8 ll. 36–52 (emphases added).
    In 2012, Lexington sued Amazon.com Inc. and Ama-
zon Digital Services, Inc. (collectively, “Amazon”), alleging
that Amazon’s Kindle e-readers infringed claim 1 of the
’851 patent. Opinion, 6 F. Supp. 3d at 184–85. Amazon
moved for judgment on the pleadings, urging that the
claim was indefinite. The parties concurrently filed claim
construction briefs. After a hearing, the district court
issued an order in which it construed the claim and
granted Amazon’s motion. Id. at 185–90, 195.
     The district court construed “trenches having a sloped
etching profile with a smooth rotation of micro-facets
without a prescribed angle of inclination” as follows:
(1) the word “trenches” means “depressions bounded on
the sides and bottom and open at the top”; (2) the word
“having” means “consisting of”; (3) “micro-facets” means
“very small planar crystal surfaces”; (4) “sloped etching
profile with a smooth rotation of micro-facets” means
“when viewed in cross-section, the side and bottom walls
of the etched trenches are made up of micro-facets with a
gradual, incremental rotation in slope from micro-facet to
micro-facet such that there are no sharp corners”; and
(5) “sloped etching profile . . . without a prescribed angle
of inclination” means “when viewed in cross-section, the
side and bottom walls of the etched trenches have no
constant angle of inclination, and so they have no linear
portions.” Id. at 185–90.
LEXINGTON LUMINANCE LLC    v. AMAZON.COM INC.                5



    In construing the claim, the district court rejected
Lexington’s proposed construction of “trenches” based on
the ’851 patent’s disclosure that the substrate surface
features can be mesas. The court noted that “[a]n aerial
view of ‘mesa’ . . . does not appear in the specification,”
and adopted an ordinary meaning construction based on
the definitions of “trench” in general-purpose dictionaries.
Id. at 186. The district court also rejected Lexington’s
proposed constructions of “having” and “sloped etching
profile with a smooth rotation of micro-facets without a
prescribed angle of inclination,” which would encompass
the embodiments disclosed in Figures 2B and 4B, in
which the surface features are spaced by areas of a flat
bottom. Id. at 187–90. The court reasoned that “a flat
bottom is inconsistent with the purpose of the invention,”
which is “to guide the lattice defects away from the active
layer,” because “a proportionately higher amount of . . .
defects would propagate directly up at a 90 degree angle”
to the active layer. Id. at 187, 189. The court also rea-
soned that the claim language required the trenches to
have no sharp corners or linear portions and it thus
mandated the exclusion of the embodiments disclosed in
Figures 2B and 4B. Id. at 189.
     The district court next considered Amazon’s motion
for judgment on the pleadings in which Amazon alleged
that claim 1 was indefinite on two grounds. Amazon first
argued that the expression “so as to guide the extended
lattice defects away from propagating into the active
layer” rendered the claim indefinite because the claim
failed to specify which extended lattice defects were
guided away. Id. at 191. The court, however, reasoned
that “it is clear that the goal of the invention is to ‘reduce’
the number of lattice defects” and held that the claim was
not indefinite for not specifying “exactly how many defects
[were] reduced.” Id. at 191–92. The court then construed
the term to mean “such that free propagation of extended
lattice defects into the active layer is significantly reduced
6             LEXINGTON LUMINANCE LLC   v. AMAZON.COM INC.



relative to a device made by the same process without the
textured districts.” Id. at 192.
     Amazon also argued that the claim was indefinite in
its use of the phrase “said substrate is selected from the
group comprising group III-V, group IV, group II-VI
elements and alloys, ZnO, spinel and sapphire.” The
district court granted Amazon’s motion on that ground.
Id. at 192–95. Specifically, the court concluded that the
phrase at issue constituted a Markush group. Id. at 193.
The court then reasoned that a Markush group using the
term “comprising” instead of “consisting of” was not
closed, id., and thus the substrate may be one of the
enumerated elements or alloys, but may also be an inde-
terminate number of other elements or alloys, id. at 194.
The court thus concluded that the claim was indefinite
because it “fail[ed] to narrow down the composition of the
claimed substrate to any degree of substantial certainty.”
Id. (citing M.P.E.P. § 2173.05(h) (Markush groups)).
    In March 2014, the district court entered final judg-
ment of invalidity, and Lexington timely appealed to this
court. We have jurisdiction under 28 U.S.C. § 1295(a)(1). 1



    1    In 2013, while the action was pending at the dis-
trict court, a third party requested ex parte reexamination
of the ’851 patent, which the United States Patent and
Trademark Office (“PTO”) granted. During reexamina-
tion, Lexington amended the two limitations of claim 1
that Amazon asserted to be indefinite, even though the
PTO did not reject the claim as indefinite. In December
2014, the PTO issued a reexamination certificate, affirm-
ing the patentability of the amended claim 1. U.S. Patent
6,936,851 C1. Amazon argues that this appeal then
became moot. We disagree. While it is true that the
originally issued claim 1, which the district court invali-
dated, may no longer exist, the PTO has affirmed the
LEXINGTON LUMINANCE LLC   v. AMAZON.COM INC.             7



                       DISCUSSION
                    I. Indefiniteness
    We apply regional circuit law, here the law of the
First Circuit, when reviewing a district court’s grant of a
motion for judgment on the pleadings. Merck & Co. v. Hi-
Tech Pharmacal Co., 482 F.3d 1317, 1320 (Fed. Cir. 2007).
The First Circuit reviews a district court’s grant of judg-
ment on the pleadings de novo. Pérez-Acevedo v. Rivero-
Cubano, 520 F.3d 26, 29 (1st Cir. 2008). “A motion for
judgment on the pleadings is treated much like a Rule
12(b)(6) motion to dismiss.” Id. To survive a motion for
judgment on the pleadings, the pleadings must contain
factual allegations that raise a right to relief above the
speculative level. Id.
    Indefiniteness is a question of law that we review de
novo. Interval Licensing LLC, v. AOL, Inc., 766 F.3d
1364, 1370 (Fed. Cir. 2014). 2 A patent must “conclude
with one or more claims particularly pointing out and
distinctly claiming the subject matter which the applicant



patentability of the amended claim 1. If, and as indicated
herein, the district court erroneously invalidated the
original claim, then on remand Lexington may be entitled
to past damages for infringement of the original claim,
absent a finding of intervening rights or a judgment of
noninfringement or invalidity on other grounds. Accord-
ingly, an actual controversy based on the originally issued
claim still exists, and the parties maintain a legally
cognizable interest in the outcome of this appeal. See
Already, LLC v. Nike, Inc., 568 U.S. __, 133 S. Ct. 721,
726–27 (2013). We therefore conclude that the appeal is
not moot.
    2   We also note that the district court’s indefinite-
ness determination here was based on the pleadings and
the attached ’851 patent.
8              LEXINGTON LUMINANCE LLC    v. AMAZON.COM INC.



regards as his invention.” 35 U.S.C. § 112, ¶ 2 (2006). 3 A
patent claim is invalid for indefiniteness if its language,
when read in light of the specification and the prosecution
history, “fail[s] to inform, with reasonable certainty, those
skilled in the art about the scope of the invention.” Nauti-
lus, Inc. v. Biosig Instruments, Inc., 572 U.S. __, 134 S. Ct.
2120, 2124 (2014). Patents are presumed to be valid and
the burden of establishing invalidity rests on the chal-
lenger. 35 U.S.C. § 282; Nautilus, 134 S. Ct. at 2130 n.10.
    We first consider the district court’s conclusion that
the claim was indefinite in its use of the phrase “said
substrate is selected from the group comprising group III-
V, group IV, group II-VI elements and alloys, ZnO, spinel
and sapphire.” Lexington argues that the court erred in
construing the phrase as a Markush group that is not
limited to the enumerated members. According to Lex-
ington, the phrase means that the substrate must contain
one or more of the enumerated members. Lexington
argues that this construction is consistent with the speci-
fication and narrower than the construction adopted by
the court, and thus does not unfairly expand the claim
scope. Lexington also argues that the court erred in not
evaluating definiteness from the perspective of those
skilled in the art.
    Amazon responds that the claim uses the Markush
group claiming technique, but recites a group not limited


    3    Paragraph 2 of 35 U.S.C. § 112 has been replaced
with newly designated § 112(b) when the Leahy-Smith
America Invents Act (“AIA”) took effect, and the AIA
makes the change applicable “to any patent application
that is filed on or after” September 16, 2012. Pub. L. No.
112-29, § 4(c), (e), 125 Stat. 284, 296–97 (2011). Because
the application resulting in the ’851 patent was filed
before that date, we refer here to the pre-AIA version of
§ 112.
LEXINGTON LUMINANCE LLC   v. AMAZON.COM INC.               9



to the enumerated members because it uses “comprising”
to modify the preceding word “group,” rather than “con-
sisting of,” the usual terminology in Markush practice.
Amazon argues that the claim lacks boundaries because
the substrate can be one of those enumerated members or
any other material. Amazon responds that Lexington
failed to proffer evidence of the understanding of those
skilled in the art and, moreover, the record is bereft of any
indication that a skilled artisan would disagree with the
court’s conclusion.
    We conclude that the district court erred in holding
the claim indefinite in reciting an open Markush group.
The issue before us on review from the district court is
whether the claim is indefinite, not whether it recites an
“improper” Markush group. A Markush group is common-
ly used in certain areas of patent practice to indicate with
definiteness that a claim limitation is “selected from the
group consisting of . . . ,” meaning only those recited
members of the group. Gillette Co. v. Energizer Holdings,
Inc., 405 F.3d 1367, 1372 (Fed. Cir. 2005); Abbott Labs. v.
Baxter Pharm. Prods., Inc., 334 F.3d 1274, 1280 (Fed. Cir.
2003). It is the job of the Patent and Trademark Office to
ensure, on examination, that a claim is definite and that,
when a Markush expression is used, it is used properly.
But that is not our task in reviewing a claim that has
been held to be indefinite. Our task involves determining
the definiteness of a claim, i.e., whether the district court
erred in finding the claim to be indefinite, not evaluating
the propriety of Markush language.
    Definiteness involves more than an examination of
the technical correctness of the use of a Markush expres-
sion that may have slipped past the examining process. It
involves evaluation of the claim in light of the written
description. Here, the written description provides a clear
description of the substrates that are part of the claim.
’851 patent col. 3 ll. 52–54 (“Exemplary substrates include
GaAs, InP, spinel, sapphire, GaN, GaN-on-sapphire,
10            LEXINGTON LUMINANCE LLC    v. AMAZON.COM INC.



GaAs, Si, Si-on-insulator, SiC, SiC-on-Si.”). The intrinsic
record is reasonably definite in indicating what the claim
covers because the specification lays out a considerable
list of exemplary substrates that correspond to the mate-
rials specified in the claim and combinations thereof, see
id. (listing GaN-on-sapphire and SiC-on-Si as exemplary
substrates). We therefore conclude that the reasonably
ascertainable meaning of the contested claim language is
that the substrate must contain one or more of the enu-
merated members of the claimed group.
    While other “improper” Markush usage in other pa-
tents may not pass the definiteness test, depending upon
what else is in the record, the written description here
provides support for the claim to satisfy the test for defi-
niteness that the Supreme Court laid out in Nautilus,
that is, that the claim, in light of the specification, in-
forms one skilled in the art, with reasonable certainty, of
the scope of the invention. Nautilus, 134 S. Ct. at 2124.
We therefore hold that the district court erred in finding
the claim to be indefinite because of the imperfect usage
of Markush terminology.
    We also note that the substrate that is described in
the contested language is not the essence of the invention
that is being claimed. The claim is particularly directed
to a textured district having trenches with a sloped etch-
ing profile. A person skilled in the art would therefore
reasonably ascertain the scope of the invention in view of
the intrinsic record.
    As an additional argument for affirming the invalidity
judgment, Amazon contends that the district court erred
in not invalidating the claim for indefiniteness based on
the expression “so as to guide the extended lattice defects
away from propagating into the active layer.” The es-
sence of Amazon’s contention is that the word “the” has no
antecedent. We have considered Amazon’s arguments on
that point but find them unpersuasive. As the district
LEXINGTON LUMINANCE LLC    v. AMAZON.COM INC.              11



court correctly noted, the specification explains that “the
goal of the invention is to ‘reduce’ the number of lattice
defects.” Opinion, 6 F. Supp. 3d at 191–92. The contested
claim language specifies the intended function or purpose
of the claimed structure. It thus applies wherever the
function or purpose requires. We therefore agree with the
district court that the claim is not indefinite for not speci-
fying “exactly how many defects [were] reduced.” Id.
Accordingly, we affirm the district court’s decision not to
invalidate the claim on that basis.
     Moreover, we vacate the district court’s construction
of the limitation “so as to guide the extended lattice
defects away from propagating into the active layer.”
Both parties focused their arguments to the district court
on whether this limitation was definite. After determin-
ing that the limitation was definite, and without perform-
ing its own analysis of the proper construction of the
limitation, the district court simply adopted the construc-
tion of another district court. 4 On remand, the district
court may construe this limitation or, as both parties
initially proposed, determine that no construction is
necessary.
    For the foregoing reasons, we conclude that claim 1 of
the ’851 patent is not invalid for indefiniteness and vacate
the judgment of invalidity.
                  II. Claim Construction
    The district court construed “trenches having a sloped
etching profile with a smooth rotation of micro-facets
without a prescribed angle of inclination” as five separate
limitations: (1) trenches, (2) having, (3) micro-facets,


    4   The district court was not required to adopt the
construction of another district court under principles of
collateral estoppel because there the parties settled the
dispute before a final judgment was entered.
12            LEXINGTON LUMINANCE LLC   v. AMAZON.COM INC.



(4) sloped etching profile with a smooth rotation of micro-
facets, and (5) sloped etching profile . . . without a pre-
scribed angle of inclination. On appeal, Lexington chal-
lenges all five constructions. Amazon asks us to decline
review because those constructions are unrelated to the
invalidity judgment. In the alterative, Amazon argues
that those constructions should generally be affirmed.
     Under our precedent, we have the discretion to review
a non-dispositive claim construction in the interest of
judicial economy, if the construction may become im-
portant on remand. Interval Licensing, 766 F.3d at 1376
(citing Deere & Co. v. Bush Hog, LLC, 603 F.3d 1349,
1357 (Fed. Cir. 2012); Advanced Software Design Corp. v.
Fiserv, Inc., 641 F.3d 1368, 1378 (Fed. Cir. 2011)). Be-
cause we now vacate the invalidity judgment and remand
for further proceedings at the district court, we address
the claim construction issues raised by the parties. 5
    In this case, we review the district court’s claim con-
structions de novo, because the intrinsic record fully
determines the proper constructions and the district
court’s constructions were not based on expert testimony.
See Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. __,


     5  The joint appendix and arguments before us do
not include the prosecution history of the reexamination
proceeding. We leave it to the district court to determine
whether the meanings of the disputed claim limitations
have been altered by the reexamination history. Moreo-
ver, on remand, the district court may supplement its
claim constructions consistent with the controlling appel-
late mandates as the case moves forward. See Jack
Guttman, Inc. v. Kopykake Enters., Inc., 302 F.3d 1352,
1361 (Fed. Cir. 2002) (“District courts may engage in a
rolling claim construction, in which the court revisits and
alters its interpretation of the claim terms as its under-
standing of the technology evolves.”).
LEXINGTON LUMINANCE LLC   v. AMAZON.COM INC.             13



135 S. Ct. 831, 840–42 (2015). A patent is a fully inte-
grated written instrument and the claims must be read in
view of the specification, of which they are a part. Phil-
lips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005)
(en banc). A court should also consult the patent’s prose-
cution history, which can provide further evidence of how
the inventor understood the claimed invention. Id. at
1317. Extrinsic evidence, including dictionaries, can at
times shed useful light on the relevant art; but extrinsic
evidence is less significant than the intrinsic record in
determining the meaning of claim language. Id.
    The district court construed “trenches” as “depres-
sions bounded on the sides and bottom and open at the
top.” Opinion, 6 F. Supp. 3d at 187. Lexington argues
that the district court erred by construing “trenches”
based on general-purpose dictionaries and that the court’s
construction is inconsistent with “mesas” described in the
specification. According to Lexington, “trenches” has a
special meaning in the semiconductor art as three-
dimensional areas that are removed from the surface of
the substrate. Amazon responds that the construction is
largely consistent with the plain and ordinary meaning of
“trench.” Amazon nonetheless asks us to modify the
construction by requiring the claimed trenches to be
“generally elongated.”
    We agree with Lexington that the district court erred
by adopting a construction based on general-purpose
dictionaries that is inconsistent with the intrinsic record.
Phillips, 415 F.3d at 1316 (“A construction that stays true
to the claim language and most naturally aligns with the
patent’s description of the invention will be, in the end,
the correct construction.”). “Trenches” as described in the
’851 patent are not necessarily “bounded on the sides and
bottom and open at the top.” According to the ’851 patent,
trenches are formed by etching away certain material
from the surface of the substrate, leaving behind three-
dimensional surface features, which the patent describes
14              LEXINGTON LUMINANCE LLC      v. AMAZON.COM INC.



in the alternative as “stripe” or “mesa.” See, e.g., ’851
patent col. 2 ll. 30–32, col. 3 ll. 47–50. Moreover, the
patent describes “trenches” and “mesa” in the conjunctive,
id. at col. 3 ll. 35–37, 62–65, col. 4 ll. 5–13, col. 5 ll. 41–44,
suggesting that “trenches” and “mesa” are complementary
to each other as, respectively, areas removed and areas
retained after a given etching process. When the surface
features are island-shaped mesas, rather than elongated
stripes, the corresponding trenches are not necessarily
“bounded” on the sides and bottom.
    We therefore hold that the district court erred in con-
struing “trenches.” We adopt Lexington’s proposed con-
struction that “trenches” means “areas in the surface of
the substrate from which some amount of material is
removed in order to create a pattern on the surface of the
substrate.” They are not necessarily elongated.
    The district court construed “having” as “consisting
of.” Opinion, 6 F. Supp. 3d at 188. Under that construc-
tion, the claimed trenches consist entirely and exclusively
of a “sloped etching profile” and cannot have a flat bottom.
Lexington argues that the district court’s construction
incorrectly excludes the embodiments disclosed in Figures
2B and 4B, which have areas with a flat bottom in addi-
tion to a “sloped etching profile.” Amazon responds that
the flat bottom shown in Figures 2B and 4B cannot be
reconciled with the claim language “etched trenches
having a sloped etching profile with a smooth rotation of
micro-facets without a prescribed angle of inclination,”
and thus that the claim language requires the exclusion of
those disclosed embodiments.
    We agree with Lexington that the district court erred
in construing the claim to exclude the embodiments
disclosed in Figures 2B and 4B because the claim lan-
guage does not require the exclusion of those embodi-
ments and there is no basis in the specification or
prosecution history of the ’851 patent for doing so. It is
LEXINGTON LUMINANCE LLC   v. AMAZON.COM INC.              15



true that the claim includes the phrase “with a smooth
rotation of micro-facets without a prescribed angle of
inclination,” but that phrase modifies the “sloped etching
profile” rather than “trenches.” Accordingly, the claimed
trenches can have, in addition to sloped areas, areas of a
flat bottom as well as corners where the flat bottom and
the inclined slope intersect with each other, as shown in
Figures 2B and 4B.
    As we have stated, constructions that exclude dis-
closed embodiments without a clear justification are
disfavored. In re Katz Interactive Call Processing Patent
Litig., 639 F.3d 1303, 1324 (Fed. Cir. 2011). Here, the
district court erroneously concluded that the embodiment
disclosed in Figure 2B conflicts with the purpose of the
invention, Opinion, 6 F. Supp. 3d at 187, when in fact the
specification describes Figure 2B as accomplishing “re-
sults [that] are similar” to Figure 2A and that “[t]he
defect level is much reduced.” ’851 patent col. 5 ll. 16–20.
    The district court construed “micro-facets” as “very
small planar crystal surfaces,” Opinion, 6 F. Supp. 3d at
188; “sloped etching profile with a smooth rotation of
micro-facets” as “when viewed in cross-section, the side
and bottom walls of the etched trenches are made up of
micro-facets with a gradual, incremental rotation in slope
from micro-facet to micro-facet such that there are no
sharp corners,” id. at 189; and “sloped etching profile . . .
without a prescribed angle of inclination” as “when
viewed in cross-section, the side and bottom walls of the
etched trenches have no constant angle of inclination, and
so they have no linear portions,” id. at 190. Lexington
challenges each of those constructions on appeal.
    On this record, we find no error in the district court’s
construction of “micro-facet.” However, the district court’s
constructions of “sloped etching profile with a smooth
rotation of micro-facets” and “sloped etching profile . . .
without a prescribed angle of inclination” require the side
16             LEXINGTON LUMINANCE LLC   v. AMAZON.COM INC.



and bottom walls of the etched trenches (not just the
sloped portions of the trenches) to have no sharp corners
or linear portions, which in effect excludes the embodi-
ments disclosed in Figures 2B and 4B. As indicated, such
constructions are inconsistent with the intrinsic record.
We therefore vacate the district court’s constructions of
“sloped etching profile with a smooth rotation of micro-
facets” and “sloped etching profile . . . without a pre-
scribed angle of inclination” and remand for the district
court to construe those limitations in a manner that does
not exclude Figures 2B and 4B, consistent with this
opinion.
                       CONCLUSION
    Because the district court erred in granting judgment
on the pleadings that claim 1 of the ’851 patent was
indefinite and in construing certain claim limitations in
the phrase “trenches having a sloped etching profile with
a smooth rotation of micro-facets without a prescribed
angle of inclination,” we vacate the judgment of invalidity
and remand the case to the district court for further
proceedings consistent with this opinion.
             VACATED AND REMANDED
                           COSTS
     Costs to Lexington.
