       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               __________________________

           SUNBEAM PRODUCTS, INC.,
      (DOING BUSINESS AS JARDEN CONSUMER
                   SOLUTIONS),
                 Plaintiff-Appellant,

                            v.
                   HOMEDICS, INC.,
                   Defendant-Appellee.
               __________________________

                       2010-1197
               __________________________

   Appeal from the United States District Court for the
Western District of Wisconsin in case No. 08-CV-0376,
Magistrate Judge Stephen L. Crocker.
             ___________________________

              Decided: December 15, 2010
              ___________________________

   THOMAS G. PASTERNAK Steptoe & Johnson, LLP, of
Chicago, Illinois, argued for plaintiff-appellant. With him
on the brief were RICHARD K. WILLARD and TIFFANY A.
MILLER, of Washington, DC.
SUNBEAM PRODUCTS   v. HOMEDICS                           2


   JOHN M. HALAN, Brooks Kushman P.C., of Southfield,
Michigan, argued for defendant-appellee. Of counsel were
MARK A. CANTOR and THOMAS W. CUNNINGHAM.
              __________________________

Before BRYSON, PLAGER, and CLEVENGER, Circuit Judges.
BRYSON, Circuit Judge.

    This case concerns a patent on the force-transmitting
bearings for a platform scale that Sunbeam Products,
Inc., asserted against its competitor HoMedics, Inc.
Sunbeam moved for summary judgment of infringement;
HoMedics moved for summary judgment on its invalidity
counterclaim. The trial court granted summary judgment
of noninfringement in favor of defendant HoMedics,
although HoMedics never specifically moved for that
order. Because the ground on which the court granted
summary judgment was well developed in this case, we
hold that Sunbeam was not unfairly surprised or preju-
diced by the termination of this case in favor of HoMedics.
And because the patent in suit clearly excluded the struc-
ture found in the accused devices from the scope of its
claims, we affirm.

                             I

    The patent in suit, U.S. Patent No. 5,133,420 (“the
’420 patent”), is entitled “Bearing Support for a Scale
Platform.” The patent has nine claims. The two inde-
pendent claims, claim 1 and claim 8, are at issue in this
appeal. Claim 1 recites a platform scale including bear-
ings that are

   mounted on the underside of said platform to sup-
   port said platform with respect to said base with
   said bearing members engaging said levers inter-
3                            SUNBEAM PRODUCTS    v. HOMEDICS


    mediate their ends to apply a rotating force to
    said levers in response to a load on said platform,
    said bearing members being loosely coupled to
    said platform permitting horizontal displacement,
    said bearing members each having stand portions
    and depending column portions each, said depend-
    ing column portions having a lower end, assembly
    means on said stand portions and on said plat-
    form retaining said stand portions in face-to-face
    engagement with the underside of said platform
    and permitting limited displacement of said bear-
    ing members in a horizontal direction . . . .

’420 patent, col. 5, ll. 4-18. Claim 8 is similar, although it
claims a bearing that is in “sliding engagement” rather
than in “face-to-face engagement” with the underside of
the platform. Id., col. 6, ll. 23-32. The district court
treated the two claims identically.

    The bearings transmit the force applied against the
upper platform of the scale to the force-sensing levers on
the scale’s base. The bearings, located at each corner of
the scale, are designed to ensure that a vertical force is
applied against the force-collection levers even if weight is
unevenly distributed on the platform, or if a non-vertical
force is applied against the platform, or if the upper and
lower platforms of the scale are out of alignment. Figure
3 of the ’420 patent illustrates a bearing attached to one
corner of the scale and engaging with a force-collecting
lever. Figure 10 illustrates a single, unattached bearing.
In an assembled scale, the bearing depicted in figure 10 is
attached to the underside of the platform.
SUNBEAM PRODUCTS   v. HOMEDICS                             4




    The bearing described in the ‘420 patent has a base
portion consisting of coplanar flanges 42b, 42c, and 42d.
Two of the flanges, 42b and 42c, contain a slot 42e.
During assembly, a corresponding tab on the underside of
the platform is inserted into each of the slots and is bent
against the underside of the platform, thus connecting the
bearing to the scale. Because the slot is larger than the
tab, the connection is loose and the bearing is free to move
horizontally, to a limited degree, with respect to the
platform. ’420 patent, col. 3, ll. 50-56. The columnar
section 42f of the bearing is perpendicular to the flanges.
It includes a slot 42g into which fits the force-sensing
lever 18c. The lever in turn transfers the force from the
bearing to the weight-sensing mechanics of the scale. Id.,
col. 3, ll. 63-68; col. 4, ll. 1-3. Allowing for horizontal
movement between the bearing and the underside of the
platform ensures that the slot 42g will align with the
force-sensing lever at lever notch 44 while remaining
vertical vis-à-vis the platform. The bearing must remain
vertical, according to the ’420 specification, so as to cause
“rotational movement of the force collecting levers” but
prohibit the application of any “twisting or lengthwise
moment of force on the force levers or additional friction,”
which would produce inaccuracies and inconsistent
weight measurement.” Id., col. 4, ll. 6-11.
5                             SUNBEAM PRODUCTS     v. HOMEDICS


     The ’420 patent includes a detailed discussion of the
prior art bearings, including those disclosed in U.S.
Patent No. 4,452,326 (“the ’326 patent”). The specifica-
tion of the ’420 patent characterizes the ’326 patent as
teaching “the concept of having a one-piece bearing mem-
ber which is loosely connected to the platform so that it
may pivot or rock to adjust itself to the proper engage-
ment with the bearing portion on the force collection
lever.” ’420 patent, col. 1, ll. 42-46. The scale disclosed in
the ’326 patent has a dimpled indentation on the under-
side of the base at each of its four corners. Each bearing
has a rounded nose that fits into the dimple. ’326 patent,
col. 1, ll. 44-53. That construction allows the bearing to
rock and pivot in the dimple. The resulting tilting motion
of the bearing ensures that the columnar portion of the
bearing properly engages the force-collection lever even if
an uneven or skew force is applied against the platform or
if the upper and lower portions of the scale are not in
precise alignment.

    The ’420 patent specification criticizes the prior art
pivoting bearing on the ground that it “prevents the
application of pure vertical force to the force collecting
lever and increases the possibility that an undesired
binding or force moment will be applied to the force
collection lever.” ’420 patent col. 1, ll. 46-51. The bearing
design claimed in the ’420 patent, by contrast, is intended
to ensure that the forces transmitted by the bearing “are
applied vertically with no binding or twisting between the
force collection levers and their mounting means” and
that, as a result, the bearing will “apply only vertical
forces to the [force collection] levers.” Id., col. 2, ll. 9-12,
16-17.

    HoMedics’s accused scales all include bearings similar
to the bearing disclosed in the ’326 patent. Each of the
SUNBEAM PRODUCTS   v. HOMEDICS                            6


HoMedics bearings is machined with a nose-like protru-
sion that fits into a corresponding dimple on the under-
side of the platform. The trial court noted that the
accused bearings all rock and pivot within their corre-
sponding dimples in the underside of the platform. Sun-
beam does not dispute that the HoMedics bearings rock
and pivot in that manner. Sunbeam’s position is that in
addition to rocking and pivoting, the HoMedics bearings
are capable of some horizontal movement and therefore
infringe the ’420 patent.

    The parties focus their dispute on the limitation in
claim 1 (and the corresponding limitation in claim 8) that
describes the relationship between the underside of the
platform and the bearing: “retaining said stand portions
in face-to-face engagement with the underside of said
platform and permitting limited displacement of said
bearing members in a horizontal direction.” Id., col. 6, ll.
14-16. In a claim construction order issued on April 29,
2009, the district court ruled that in both claims 1 and 8,
“the bearing member and the platform are parallel to
each other, they are not on a ‘pivot.’” The claimed assem-
bly means, according to the court, “allows the bearing
member and the platform to stay in face-to-face (claim 1),
sliding engagement (claim 8) with limited horizontal
movement.” That structure, the court explained, “insures
the desired ‘pure downward force.’” By contrast, the court
noted, in the prior art design the bearing member “pivots
about a point on the platform [thus] prevent[ing] the
application of a pure vertical force.”

    During the claim construction proceedings, HoMedics
argued that the “horizontal direction” limitation prohibits
any vertical movement at all between the underside of the
platform and the face of the bearing. The district court
rejected that argument and held that in the claimed
7                           SUNBEAM PRODUCTS    v. HOMEDICS


structure, there must be “sufficient clearance so that the
bearings may move horizontally with respect to the plat-
form” and that “for the claimed horizontal movement to
occur, there has to be some vertical movement, however
minuscule; the scale would not work at all if it completely
disclaimed vertical movement.”

     Subsequently, on October 14, 2009, the court entered
an order granting summary judgment for HoMedics.
Again focusing on the disputed “face-to-face” and “sliding
engagement” limitations, the court noted that the ’420
patent criticized the prior art bearing that rocks and
pivots on the ground that “a bearing member that can
pivot or rock is undesirable because it could lead to bind-
ing or torque on the force collection lever, which would
decrease the accuracy of the scale.” The ’420 patent
bearing, according to the court, purports to improve on
the prior art “by exerting ‘a pure downward force between
the scale platform and the force-collection lever.’” The
court therefore ruled that the claims required the base of
the bearing to be “oriented parallel to the platform and
remain parallel to the platform at all times.” The court
stated that in so ruling it was not altering or amending its
April 2009 claim construction order, in which the court
had stated that the claims allowed vertical movement to
the extent required to facilitate the desired horizontal
movement. Instead, the court explained that its “rejection
of a vertical movement limitation did not—indeed, could
not—endorse any sort of pivotal movement by the bearing
member since this would defeat the critical improvement
claimed by the ’420 patent.” Sunbeam Prods. v. HoMed-
ics, Inc., 670 F. Supp. 2d 873, 878 n.2 (W.D. Wis. 2009).

    In light of its claim construction and the undisputed
evidence regarding the operation of the bearings in the
accused HoMedics products, the district court granted
SUNBEAM PRODUCTS   v. HOMEDICS                            8


summary judgment of noninfringement. The court de-
termined that no reasonable juror could find that bear-
ings that rock and pivot remain parallel to the underside
of the platform; accordingly, it held that the pivoting
bearings in all of the accused products do not literally
infringe the ’420 patent. As to infringement under the
doctrine of equivalents, the court held that to treat a
bearing that rocks and pivots about a point on the under-
side of the platform as falling within the reach of the ’420
patent claims would vitiate the “face-to-face” and “sliding”
engagement limitations of claims 1 and 8.

    Sunbeam moved to alter or amend the summary
judgment order, arguing that the court’s claim construc-
tion in that order was inconsistent with its prior claim
construction and that the court’s sua sponte grant of
summary judgment had denied Sunbeam an opportunity
to argue that the accused scales infringed under the new
claim construction. The district court denied the motion,
and Sunbeam appealed to this court.

                             II

                             A

    This court has recognized that a specification may re-
veal an intentional disclaimer, or disavowal, of claim
scope by the inventor. Phillips v. AWH Corp., 415 F.3d
1303, 1316 (Fed. Cir. 2005) (en banc); SciMed Life Sys. v.
Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1341
(Fed. Cir. 2001) (“[w]here the specification makes clear
that the invention does not include a particular feature,
that feature is deemed to be outside the reach of the
claims of the patent, even though the language of the
claims, read without reference to the specification, might
be considered broad enough to encompass the feature in
9                             SUNBEAM PRODUCTS    v. HOMEDICS


question.”). We agree with the district court that the ’420
patent disclaims coverage of bearings that employ the
rocking and pivoting mechanism disclosed in the ’326
patent. The Background of the Invention section of the
’420 patent specification highlights the problem inherent
in bearings that rock and pivot: They “prevent the appli-
cation of a pure vertical force to the force collecting lever
and increase[] the possibility that an undesired binding or
force moment will be applied to the force collection lever.”
’420 patent, col. 1, ll. 48-51. The Summary of the Inven-
tion section of the specification states that Sunbeam
improved upon the prior art by inventing a bearing that
“exerts a pure downward force between the scale platform
and the force collection lever.” Id., col. 1, ll. 55-57. The
Summary of the Invention goes on to explain the objective
of the claimed invention: a bearing that can apply purely
vertical forces against the force-collection levers. Id., col.
2, ll. 6-17. The specification adds that “the force applied
through the bearing members 42 must be vertical, caus-
ing rotational movement of the force collecting levers but
may not include a twisting or lengthwise moment of force
or additional friction would be introduced to produce
inaccuracies and inconsistent weight measurements.” Id.,
col. 4, ll. 5-11.

     The description of the horizontal movement of the
bearing along the underside of the platform, and thus the
transmission of “strictly vertical” force, is not limited to a
preferred embodiment of the ’420 patent, but is the prin-
cipal feature of the invention as a whole. That movement
allows for the transmission of a “pure vertical application
of forces to the levers,” ’420 patent, col. 4, l. 53, something
that bearings that rock and pivot cannot do. Thus, we
hold that the district court was correct in concluding that
the claim limitations requiring that the bearings be
coupled in “face-to-face engagement” or “sliding engage-
SUNBEAM PRODUCTS   v. HOMEDICS                         10


ment” with the underside of the platform do not encom-
pass bearings that rock and pivot.

                            B

    Sunbeam and HoMedics agree that the accused bear-
ings rock and pivot in a dimple on the underside of the
platform. The accused bearings thus implement exactly
what the prior art ’326 patent disclosed and Sunbeam’s
’420 patent disavowed. Nonetheless, Sunbeam argues
that there are open questions of fact as to whether the
accused bearings move horizontally, both within the
dimple and across the underside of the platform and that
for that reason the district court should not have granted
summary judgment of noninfringement.

     Sunbeam predicates its argument in large part on the
differences among the “assembly states” of the accused
scales, which it identifies as (1) unassembled, (2) during
assembly, (3) assembled and unloaded, and (4) as assem-
bled and loaded.      However, the ’420 patent claims a
utility scale, not an unassembled scale or a method of
assembling a scale, so the relevant state for purposes of
infringement is the fully assembled scale. The evidence
in the summary judgment proceedings showed that all
accused devices include a dimple on the underside of the
platform at each corner of the platform and a bearing
with a nose-like protrusion that pivots and rocks within
the dimple. Sunbeam fails to show how that structure
satisfies the horizontal movement that is required by the
“face-to-face engagement” and “sliding engagement”
limitations. To the extent that Sunbeam relies on scrape
marks on the undersides of the platforms in samples of
the accused devices as an indication that the bearings
move horizontally, that evidence does not show that the
bearings move horizontally to more than a de minimis
11                          SUNBEAM PRODUCTS   v. HOMEDICS


extent in the assembled scales, and it is thus not suffi-
cient to avoid summary judgment.

                            C

    Sunbeam also argues that the accused bearings in-
fringe under the doctrine of equivalents. Relying on
principles of claim vitiation, the court concluded that to
allow bearings that rock and pivot to infringe would
render the “face-to-face engagement” limitation of claim 1
and “sliding engagement” limitation of claim 8 meaning-
less. While there may be merit to that analysis, there is
an even simpler explanation for why the accused devices
do not infringe under the doctrine of equivalents: The
specification of the ’420 patent explains what is not the
claimed invention, and because that explanation excludes
the accused bearings from falling within the reach of the
patent, those devices cannot infringe under the doctrine of
equivalents. See SciMed Life Sys., 242 F.3d at 1347 (“The
unavailability of the doctrine of equivalents could be
explained either as the product of an impermissible
vitiation of the ‘non-metallic’ claim limitation, or as the
product of a clear and binding statement to the public
that metallic structures are excluded from the protection
of the patent”); J & M Corp. v. Harley-Davidson, Inc., 269
F.3d 1360, 1366 (Fed. Cir. 2001) (“The scope of equiva-
lents may also be limited by statements in the specifica-
tion that disclaim coverage of certain subject matter”).

    The doctrine of equivalents is not a license to rewrite
the claims to encompass what a patentee believes to be an
equivalent structure. That is especially true in a case
such as this one, where the accused product is not later-
developed technology that is insubstantially different
from the claimed invention, but instead embodies dis-
avowed prior art. Thus, the district court correctly held
SUNBEAM PRODUCTS   v. HOMEDICS                          12


that the accused bearings do not infringe the ’420 patent
under the doctrine of equivalents.

                            III

    Finally, Sunbeam argues that the district court com-
mitted procedural error by granting summary judgment
sua sponte. Under Seventh Circuit law, which governs
this procedural issue, a district court may enter summary
judgment sua sponte if the losing party has “(1) proper
notice that the district court was considering entering
summary judgment and (2) a fair opportunity to present
evidence in opposition to the court's entry of summary
judgment.” Simpson v. Merch. Recovery Bureau, 171 F.3d
546, 549 (7th Cir. 1999).

    Sunbeam had notice that the court was considering
adjudicating the dispute without a trial, as Sunbeam
itself sought summary judgment of infringement. Sun-
beam argues, however, that it regarded the court’s April
claim construction order as not precluding infringement
“by bearings that could rock and pivot as well as move
horizontally.” Sunbeam asserts that it was surprised by
the court’s reliance on the pivoting action of the accused
bearings, and it contends that in the October summary
judgment ruling the court adopted a different claim
construction from the one it had issued in the April order.

     We disagree with Sunbeam’s contention that the dis-
trict court adopted a new claim construction in its sum-
mary judgment ruling. In its April claim construction
order, the court observed that the “face-to-face engage-
ment” and “sliding engagement” limitations did not
preclude all vertical movement of the bearing vis-à-vis the
platform, because some minimal vertical movement would
be necessary to facilitate the horizontal movement of the
13                           SUNBEAM PRODUCTS   v. HOMEDICS


bearing needed to maintain the bearing in face-to-face or
sliding engagement with the platform, i.e., horizontal to
the platform. The court did not suggest that rocking and
pivoting of the bearing was consistent with maintaining
the claimed face-to-face and sliding engagement of the
bearing and platform. Indeed, it clearly stated that “[i]n
both claims 1 and 8, the bearing member and the plat-
form are parallel to each other, they are not on a ‘pivot.’”
As the district court stated in its order denying Sun-
beam’s motion for reconsideration, it had “explained
repeatedly [that] the bearing can have vertical movement
normal to the platform without leaving a parallel plane;
however, it cannot rock and pivot.”

    Sunbeam has acknowledged throughout the litigation
that the accused bearings rock and pivot, and Sunbeam
was aware that the rocking of the accused bearings was
the principal focus of HoMedics’s argument against
infringement. The parties both offered the court a com-
prehensive factual and legal presentation on that issue in
the context of the claim construction proceeding and
Sunbeam’s motion for summary judgment of infringe-
ment. Nothing in the record suggests that Sunbeam
lacked notice of the central role of that issue for purposes
of infringement or of the possibility of a pretrial resolu-
tion of the case. Because Sunbeam was not denied notice
of the potentially dispositive legal issue or the opportunity
to introduce any available evidence as to that issue, the
district court did not commit legal error by granting
summary judgment of noninfringement sua sponte.

                       AFFIRMED
