                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                   2007-1380, -1407

                               ASPEX EYEWEAR, INC.,
                             and CONTOUR OPTIK, INC.,

                                                      Plaintiffs-Appellants,

                                           v.

                               ALTAIR EYEWEAR, INC.,

                                                      Defendant-Cross Appellant.


        Michael A. Nicodema, Greenberg Traurig, LLP, of New York, New York, argued for
plaintiffs-appellants. Of counsel on the brief were Matthew C. Wagner and Jeffrey A.
Lindenbaum, Collen IP Intellectual Property Law, P.C., of Ossining, New York.

      Brian G. Bodine, Merchant & Gould P.C., of Seattle, Washington, argued for
defendant-cross appellant. With him on the brief was Kaustuv M. Das.

       Richard M. Saccocio, Richard M. Saccocio, P.A., of Plantation, Florida, amicus
curiae Designer’s Eyewear Studio, Inc., et al.

Appealed from: United States District Court for the Southern District of New York

Judge Stephen C. Robinson
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                   2007-1380, -1407


                               ASPEX EYEWEAR, INC.,
                             and CONTOUR OPTIK, INC.,

                                                      Plaintiffs-Appellants,
                                           v.


                               ALTAIR EYEWEAR, INC.,

                                                      Defendant-Cross Appellant.

Appeal from United States District Court for the Southern District of New York in case
no. 02-CV-6195, Judge Stephen C. Robinson

                           __________________________

                             DECIDED: August 1, 2008
                           __________________________


Before MICHEL, Chief Judge, LINN, Circuit Judge, and ZAGEL, ∗ District Judge.

MICHEL, Chief Judge.

      Aspex Eyewear, Inc. (“Aspex”) and Contour Optik, Inc. (“Contour”) appeal from

the district court’s summary judgment of non-infringement. Aspex Eyewear Inc. v. Altair

Eyewear, Inc., 485 F. Supp. 2d 310 (S.D.N.Y. 2007). We heard oral argument on June

4, 2008. We reverse the district court’s construction of “frame” and thus its summary

judgment of non-infringement as to U.S. Patent No. 5,737,054 (“the ’054 patent”), but



      ∗
                 Honorable James B. Zagel, United States District Court for the Northern
District of Illinois, sitting by designation.
we affirm the district court’s summary judgment of non-infringement as to U.S. Patent

Nos. 6,012,811 (“the ’811 patent”) and 6,092,896 (“the ’896 patent”) and its

determination that material issues of fact remain as to whether Aspex has standing to

sue as an exclusive licensee. We remand for additional proceedings on infringement of

the ’054 patent in light of the corrected claim construction and on standing to sue on

that patent.

                                            I.

       Contour, a Taiwanese company, is the assignee of the patents-in-suit: the ’054

patent entitled “Auxiliary Lenses for Eyeglasses,” with Richard Chao as the named

inventor; the ’811 patent entitled “Eyeglass Frames with Magnets at Bridges for

Attachment,” a continuation-in-part of the application that issued as the ’054 patent, with

named inventors David and Richard Chao; and the ’896 patent entitled “Eye-Wear with

Magnets,” a continuation of the application that issued as the ’811 patent with named

inventors David and Richard Chao. The patents-in-suit claim eyeglasses with auxiliary

lenses (e.g., sunglasses) that attach to the primary glasses using magnets. Before the

assignment to Contour, Richard Chao granted an exclusive license to Chic Optic, Inc.

(“Chic”), a Canadian company. Aspex, a Delaware corporation, alleges that it received

an exclusive license to the patents-in-suit from Chic under an oral or implied agreement.

Both Chic and Aspex are owned by the Ifergan Trust.

       Altair Eyewear, Inc. (“Altair”) is a California company that distributes eyewear;

some of the eyeglasses that Altair distributes include auxiliary sunglasses that attach to

the primary glasses with magnets. In Altair’s accused products (Diamontite Magnetics,

Joseph Abboud, and Sunlites), some of the glasses have rims around the primary

                                            2

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lenses, but all of the sunglasses (which attach to the primary glasses) are rimless. In

rimless glasses, holes are drilled in the lenses, and the bridge and earpieces are

attached to the lenses with pins.

       In August 2002, Aspex and Contour 1 sued Altair in the Southern District of New

York alleging that Altair infringed certain claims of the patents-in-suit by selling glasses

with auxiliary sunglasses that attach to the primary glasses with magnets. 2 In August

2004, Altair moved for partial summary judgment that Aspex lacked standing, and in

March 2005, the district court denied that motion. At the district court, Aspex argued

that it had standing based on two sources of patent rights: (1) a written agreement

between Chic and Aspex and (2) oral and implied agreements between Contour, Chic,

and Aspex. The district court held that the Chic-Aspex agreement was insufficient to

confer standing because it was executed before the patents-in-suit issued, and the

agreement referred only to patents already in existence. But the district court concluded

that there was “without doubt, more than enough evidence on which a reasonable jury

could believe that there was an oral and/or implied exclusive license between Chic and

Aspex.” Thus, the district court denied Altair’s motion for partial summary judgment.

       Following briefing on claim construction by the parties, the district court held a

Markman hearing on July 28, 2005. In September 2005, the district court issued an

opinion construing various claim terms in the patents-in-suit.

       Claim 1 of the ’054 patent recites:

              1.     An eyeglass device comprising:

       1
              Aspex and Contour are referred to collectively as Aspex, except in the
discussion of standing in which references to Aspex are to Aspex alone.
       2
              Aspex also alleged that Altair infringed another patent, but those
allegations were dropped when Aspex filed an amended complaint.
                                            3

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              a primary spectacle frame for supporting primary lenses therein,
       said primary spectacle frame including a middle bridge portion,
              a first magnetic member secured in said middle bridge portion of
       said primary spectacle frame,
              an auxiliary spectacle frame for supporting auxiliary lenses therein,
       said auxiliary spectacle frame including a middle bridge portion having a
       projection extended therefrom for extending over and for engaging with
       said middle bridge portion of said primary spectacle frame, and
              a second magnetic member secured to said projection of said
       auxiliary spectacle frame for engaging with said first magnetic member of
       said primary spectacle frame and for allowing said auxiliary spectacle
       frame to be attached to said primary spectacle frame with only one hand
       by a user.

’054 patent, col.2 l.64 – col.3 l.14 (emphases added). The district court determined that

“frame” in the claims of the ’054 patent “is an eyeglass device that includes, at least, a

bridge and rims.” The court reached this construction based primarily on the language

of the claims and specification. The court stated:

       Because the claim discloses a frame that supports lenses ‘therein,’ the
       frame must be capable of supporting the lenses in the frame. In addition,
       the claim language requires that the frame ‘includ[e]’ a middle bridge
       portion, which indicates that the frame must also have other components,
       i.e. rims.

The court specifically noted that it relied solely on the intrinsic evidence and did not rely

on inventor testimony, expert testimony, and defendant’s marketing materials which the

parties had submitted in support of their claim constructions.

       Claim 1 of the ’811 patent recites:

              1.       An eyeglass device comprising:
              a first frame including
              two retaining mechanisms for supporting a pair of lenses, and
        defining a frontal plane,
              a bridge connecting the two retaining mechanisms and holding the
        two retaining mechanisms together, and
              a first magnetic member at the bridge for magnetically coupling to
        another magnetic member at the bridge of a second frame;
              such that when coupled,
              the two frames are attached together,
                                             4

2007-1380, -1407
               due to the locations of the magnetic members, one of the frames is
        restricted from moving downwards relative to the other frame, and
               the two magnetic members are coupled at a surface that is not
        parallel to the frontal phase.

’811 patent, col.9 ll.16-31 (emphasis added).

       The district court concluded that the claim limitation “two retaining mechanisms

for supporting a pair of lenses, and defining a frontal plane” was a means-plus-function

limitation under 35 U.S.C. § 112, ¶ 6. Because rims were the only structure disclosed in

the specification, the district court limited the scope of the limitation to “a structure that

keeps the lenses in place using rims.”

       Following claim construction, the parties cross-moved for summary judgment on

infringement, Altair arguing that it did not infringe and Aspex arguing that Altair infringed

under the doctrine of equivalents. In April 2007, the district court granted summary

judgment of non-infringement.       It was undisputed that while some of the accused

glasses had rims around the primary lenses, none of the accused products had rims

around the sunglass lenses. Thus, the district court concluded that none of the accused

products literally infringed the ’054 patent. The district court also concluded that the

accused products could not infringe the ’054 patent under the doctrine of equivalents

because the rimless glasses supported the lenses in a different way (rims encircle the

lenses, whereas according to the district court, the pins in rimless glasses do not hold

the lenses “therein”). Next, the district court examined infringement as to the asserted

claims of the ’811 and ’896 patents. Since the district court had determined that the

“retaining mechanism” limitation was a means-plus-function limitation and that the only

structure disclosed in the specification was rims, the court evaluated whether the

rimless glasses of the accused product used a retaining mechanism equivalent to rims.
                                              5

2007-1380, -1407
The court concluded that the pins used in a rimless configuration were not equivalent to

rims because the structure differed substantially. Thus, the court granted summary

judgment of non-infringement as to the ’811 and ’896 patents.

       On April 13, 2007, the district court entered judgment and closed the case. On

May 11, 2007, the district court amended its judgment to dismiss Altair’s counterclaims

without prejudice. On May 15, 2007, Aspex and Contour filed their notice of appeal,

and on June 8, 2007, Altair filed its notice of cross-appeal.        We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(1).

                                             II.

       We review a district court’s grant of summary judgment de novo. Ethicon Endo-

Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed. Cir. 1998). At summary

judgment, all ambiguous facts and inferences must be construed in the light most

favorable to the non-movant. Id. Summary judgment is only appropriate if no genuine

issues of material fact exist and the movant is entitled to judgment as a matter of law.

Id.

       A.     Claim Construction

       Claim construction is a question of law reviewed de novo. Cybor Corp. v. FAS

Techs., Inc., 138 F.3d 1448, 1454-56 (Fed. Cir. 1998) (en banc). We determine the

ordinary and customary meaning of undefined claim terms as understood by a person of

ordinary skill in the art at the time of the invention, using the methodology in Phillips v.

AWH Corp., 415 F.3d 1303, 1312-19 (Fed. Cir. 2005) (en banc).




                                             6

2007-1380, -1407
       1.     ’054 Patent: “frame” 3

       Claim 1 of the ’054 patent recites “a primary spectacle frame for supporting

primary lenses therein, said primary spectacle frame including a middle bridge portion”

and “an auxiliary spectacle frame for supporting auxiliary lenses therein, said auxiliary

spectacle frame including a middle bridge portion . . .” ’054 patent, col.2 ll.65-67, col.3

ll.3-7 (emphases added). The district court concluded that a “frame” in the claims of the

’054 patent “is an eyeglass device that includes, at least, a bridge and rims.”           On

appeal, Aspex argues that the district court erred in limiting a “frame” to one with rims.

       In reaching its construction, the district court relied on a linguistic analysis of the

claim language, finding that since the frames must support the lenses “therein,” the

lenses must be supported “in” the frame and finding that since claim 1 requires that the

frame “include[]” a middle bridge portion, it must include other components.              We

disagree. First, “therein” does not limit the “frame” to one that has rims. As noted in the

many dictionaries in the record, “therein” means “in that place.” Altair argues that the

frame in claim 1 must support the lenses “in” the frame, but that structures without rims

“are capable, at most, of supporting lenses at that place or securing lenses to various

components.” Appellee’s Br. at 40 (emphasis in original). But such a hyper-technical

analysis of prepositions is unnecessary. For a glasses frame to support the lenses

“therein,” the frames must hold the lenses in place. Such a view is supported by other

       3
               In its infringement analysis, the district court concluded that the accused
products did not infringe the ’054 patent because none of the accused sunglasses have
rims, and that none of the patents-in-suit infringed under the doctrine of equivalents
because rims were not equivalent to glasses that use only pins to hold the lenses in
place. On appeal, Aspex argues that the district court erred in construing the claim
limitations “not parallel to the frontal plane” and “u-shaped structure having two arms.”
The district court did not rely on its construction of these terms in evaluating
infringement, and thus we decline to reach them in this appeal.
                                               7

2007-1380, -1407
dictionaries in the record which include as definitions of frames: “the framework for a

pair of glasses” and “the constituent of a pair of glasses other than the lenses.” J.A. at

1281, 1292.

        Further, the use of “including” in claim 1 does not support limiting “frame” to one

with rims. “Including” is generally an open-ended term that does not preclude additional

elements, but “including” does not require additional, unspecified elements as the

district court found.

        Moreover, the fact that the claim recites a middle bridge portion does not

necessarily require the presence of rims. The “portion” recited in claim 1 need be no

more than that part of the middle bridge in which a first magnetic member is secured in

the primary frame and from which the projection extends in the auxiliary frame. The use

of the term “portion” does not itself require that the frame contain structure in addition to

the middle bridge. Thus, nothing in the claim language limits a “frame” to only one with

rims.

        Turning to the specification, the disclosure of the ’054 patent is decidedly short

and merely repeats the same language on which the district court relied (“therein” and

“including”). The written description never mentions or describes rims, although rims

are illustrated in the figures. And it makes clear that the precise configuration of the

components of the glasses could be modified and still be within the scope of the claims.

’054 patent, col.2 ll.56-62.   Additionally, the stated objective of the invention is “to

provide auxiliary lenses which may be easily engaged on the primary spectacle frame.”

Id. at col.1 ll.28-30.   This objective is accomplished by the mode of attachment

(magnetic members in the bridge portion of the glasses) and has nothing to do with

                                             8

2007-1380, -1407
whether or not the frames include rims. Thus, the specification does not support the

narrow interpretation requiring that a “frame” be limited to one with rims.

       The district court concluded that the accused products could not infringe either

literally or under the doctrine of equivalents because the accused sunglasses are

rimless. Because we conclude that the claims of the ’054 patent do not require rims, we

reverse the district court’s summary judgment of non-infringement as to the ’054 patent

and remand for further proceedings consistent with our revised claim construction.

              2.     ’811 and ’896 patents: “retaining mechanisms”

       Claim 1 of the ’811 patent recites “two retaining mechanisms for supporting a

pair of lenses, and defining a frontal plane.” The district court held that this limitation

was a means-plus-function limitation under Section 112 ¶ 6.             On appeal, Aspex

challenges this conclusion.

       When a claim limitation does not recite a “means,” there is a rebuttable

presumption that it is not a means-plus-function limitation. E.g., DePuy Spine, Inc. v.

Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1023 (Fed. Cir. 2006). The presumption

can be overcome, however, if “the claim term fails to recite sufficiently definite structure

or else recites function without reciting sufficient structure for performing that function.”

CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1369 (Fed. Cir. 2002). “To help

determine whether a claim term recites sufficient structure, we examine whether it has

an understood meaning in the art.” Id. We have also held that a claim term need not

recite specific structure; instead, “it is sufficient if the claim term is used in common

parlance or by persons of skill in the pertinent art to designate structure, even if the term

covers a broad class of structures and even if the term identifies the structures by their

                                             9

2007-1380, -1407
function.” Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1359-60

(Fed. Cir. 2004).

       On appeal, Aspex argues that the claim limitations that require the “retaining

mechanisms” to “define a frontal plane” and recite “a bridge connecting the two retaining

mechanisms and holding the two retaining mechanisms together” establish that the

“retaining mechanisms” are “physical structures.”        Appellant’s Br. at 27.    But the

question is not whether “retaining mechanisms” are physical structures but whether they

are sufficiently definite structures.

       In Massachusetts Institute of Technology & Electronics for Imaging, Inc. v.

Abacus Software, 462 F.3d 1344 (Fed. Cir. 2006), this court affirmed the district court’s

determination that “colorant selection mechanism” was a means-plus-function limitation.

We stated that “[t]he generic terms ‘mechanism,’ ‘means,’ ‘element,’ and ‘device’

typically do not connote sufficiently definite structure.” Id. at 1354. Thus, we noted that

“[t]he term ‘mechanism’ standing alone connotes no more structure than the term

‘means.’”   Id.   We concluded that “colorant selection” had no generally understood

meaning in the art that would connote sufficiently definite structure. Id.

       On the other hand, in Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580

(Fed. Cir. 1996), this court reversed the district court’s holding that the claim limitation

“detent mechanism” was a means-plus-function limitation.          We stated that “‘detent’

denotes a type of device with a generally understood meaning in the mechanical arts,

even though the definitions are expressed in functional terms.” Id. at 1583 (noting that

dictionaries defined “detent,” among other ways, as a part of a mechanism that locks or

unlocks a movement).

                                            10

2007-1380, -1407
       This case is more analogous to MIT than Greenberg. Here, “mechanism” is a

generic term, and its modifier, “retaining,” is also quite broad, meaning “to hold back,

keep, restrain.” E.g., Webster’s Ninth New Collegiate Dictionary 1006 (1990) (defining

“retain”). Altair’s expert Dr. Leck stated in his expert report that “‘retaining mechanism’

has no common meaning in the eyeglass industry,” and that he had no “mental picture

of a specific structure when [he heard] the term.”        When David Chao, one of the

inventors, was asked whether there was “a commonly recognized structure in the

industry for a retaining mechanism,” he testified only that there were multiple types of

retaining mechanisms that could retain lenses. Thus, there is no indication in the record

that “retaining mechanism” connotes definite structure to a person of ordinary skill in the

art. We affirm the district court’s holding that “retaining mechanism” is a means-plus-

function limitation. Because it is undisputed that the only structure disclosed in the

specification for performing the recited functions (i.e., supporting the lenses and defining

a frontal plane) are rims, the district court correctly construed this claim limitation as “a

structure that keeps the lenses in place using rims.”

       Aspex argues that even if the district court correctly construed “retaining

mechanism,” it erred in concluding that Altair’s rimless configuration was not equivalent

to rims.   It is undisputed that the sunglasses in the accused products are rimless;

instead of rims, holes are drilled in the lenses and pins attach the lenses to the bridge.

       The district court stated that the function of the “retaining mechanisms” in the

claims was to support the lenses and define a frontal plane, but held that even if the

pins in the accused products perform this function, the structure of the accused

products “differs substantially.” In particular, rims hold the lenses in place by encircling

                                             11

2007-1380, -1407
them whereas the pins in a rimless configuration are drilled through the lenses. Based

on this, the district court concluded that the way in which the pins in the accused

products accomplish the function is different.

       Aspex argues that it presented sufficient evidence to establish a disputed issue

of material fact as to equivalency. It points to the declaration of David Chao, one of the

inventors, who declared that “rims are interchangeable with studs, pins, or screws” and

that both pins and rims retain the lenses and attach them to the bridge and/or “end

piece.” J.A. at 2939. Aspex also points to Altair’s marketing materials that refer to

rimless products as having frames.

       We conclude that the evidence presented by Aspex was insufficient to create a

disputed issue of material fact as to equivalency. We agree with the district court that

pins retain the lenses in a substantially different way than rims.      Moreover, David

Chao’s testimony on which Aspex relies is conclusory. Thus, we affirm the district

court’s conclusion that the accused products do not infringe the asserted claims of the

’811 and ’896 patents because they do not use “retaining mechanisms” (i.e., rims or

their equivalents).

       B.     Standing

       Altair cross-appeals solely on the issue of whether Aspex has standing. Whether

a party has standing to sue is a question of law that we review de novo. Additionally,

standing is jurisdictional and cannot be waived. See Mentor H/S, Inc. v. Med. Device

Alliance, Inc., 240 F.3d 1016, 1018-19 (Fed. Cir. 2001) (per curiam). Because the

district court denied summary judgment as to standing, however, we review that




                                            12

2007-1380, -1407
determination for abuse of discretion. See, e.g., Perricone v. Medicis Pharm. Corp.,

432 F.3d 1368, 1372 (Fed. Cir. 2005).

        This court has held that plaintiffs in patent suits fall into three categories for

standing purposes: “those that can sue in their own name alone; those that can sue as

long as the patent owner is joined in the suit; and those that cannot even participate as

a party to an infringement suit.” Morrow v. Microsoft Corp., 499 F.3d 1332, 1339 (Fed.

Cir. 2007). In the first category (i.e., those who can sue in their own name alone) are

those plaintiffs that hold all legal rights to the patent, including assignees and those to

whom “all substantial rights to the patent” have been transferred. Id. at 1340. Exclusive

licensees who do not receive all substantial rights fall into the second category and

must join the patent owner as co-plaintiff to satisfy prudential concerns (i.e., to avoid the

possibility that the accused infringer could later be sued by the patentee also). Id.

Finally, the third category (those who cannot be parties at all) includes those who lack

exclusionary rights, i.e., those licensees who are authorized to make, use, and sell the

patented product but who have no right to prevent others from also doing so. Id. at

1341.

        In this case, Aspex argues that it is in the second category, as an exclusive

licensee, whereas Altair argues that Aspex is in the third category as a “bare” licensee.

The district court concluded that there was sufficient evidence of an oral or implied

exclusive license to preclude summary judgment on the issue of standing. 4


        4
              In the district court, Aspex argued that a 1998 written license agreement
between Chic and Aspex granted Aspex an exclusive license. The district court
rejected this argument. Shortly thereafter, in Aspex Eyewear, Inc. v. E’Lite Optik, Inc.,
127 Fed. Appx. 493, 494 (Fed. Cir. 2005), this court reached the same conclusion
affirming a different district court’s summary judgment for lack of standing because the
                                            13

2007-1380, -1407
       In its cross-appeal, Altair argues: (1) exclusive licenses sufficient to grant

standing to the licensee must be in writing; and (2) even if an oral exclusive license can

confer standing, the evidence here was insufficient to show that Aspex is an exclusive

licensee. 5

       1.     Writing Requirement for Exclusive Licenses

       35 U.S.C. § 261 states in relevant part:

       Applications for patent, patents, or any interest therein, shall be
       assignable in law by an instrument in writing. The applicant, patentee, or
       his assigns or legal representatives may in like manner grant and convey
       an exclusive right under his application for patent, or patents, to the whole
       or any specified part of the United States.

(emphasis added).       We have concluded that both assignments and “virtual

assignments” (i.e., exclusive license agreements that convey all substantial rights) must

be in writing for a party to have standing to sue in its own name. Enzo APA & Son, Inc.

v. Geapag A.G., 134 F.3d 1090, 1093 (Fed. Cir. 1998). This court has also concluded

that an exclusive license need not be in writing for the exclusive licensee to have

standing to sue with the patentee as a co-plaintiff. Waymark Corp. v. Porta Sys. Corp.,

334 F.3d 1358, 1364 (Fed. Cir. 2003); see also Rite-Hite Corp. v. Kelley Co., Inc., 56

F.3d 1538, 1552 (Fed. Cir. 1995) (en banc) (“To be an exclusive licensee for standing

written license agreement did not grant Aspex an exclusive license as to the ’054 and
’811 patents. In that case, we declined to reach Aspex’s argument that it received an
exclusive license through an implied or oral license because Aspex had not properly
raised that argument below. Id. at 497. In this appeal, Aspex no longer argues that the
written license agreement granted it an exclusive license. Thus, we focus only on
whether Aspex has standing based on an oral or implied license.
       5
              Altair also argues that Chic never received an exclusive license to the ’811
patent from Contour and thus could not have granted Aspex an exclusive license.
Because we affirm the district court’s summary judgment of non-infringement as to the
’811 and ’896 patents, we need not determine whether the district court was correct in
denying Altair’s motion for summary judgment that Aspex lacked standing to pursue
infringement claims as to those patents.
                                            14

2007-1380, -1407
purposes, a party must have received, not only the right to practice the invention within

a given territory, but also the patentee’s express or implied promise that others shall be

excluded from practicing the invention within that territory as well.”) (emphasis added);

Weinar v. Rollform, Inc., 744 F.2d 797, 806-07 (Fed. Cir. 1984). While Altair is correct

that none of these cases expressly analyzes the “in like manner” language in Section

261, we are bound to follow our precedent, and thus we hold that an exclusive license

need not be in writing for the licensee to have standing if the patentee or assignee is

also joined, as Contour was here.

       2.     Aspex’s Evidence of an Oral or Implied Exclusive License

       The district court denied summary judgment finding that Aspex had raised at

least a genuinely disputed issue of material fact that it had an implied or oral exclusive

license. The court based its conclusion on the following findings:

       •      Chic and Aspex are both owned by members of the same family and have
              a close business relationship.
       •      Aspex has operated as an exclusive licensee, distributing products made
              pursuant to the patents-in-suit and seeking to enforce its rights under the
              patents.
       •      Thierry Ifergan, a member of the family that owns both Chic and Aspex,
              testified that oral and implied agreements exist that grant Aspex an
              exclusive license to the patents-in-suit.

       We agree that this evidence, along with other evidence in the record, is sufficient

to establish a genuinely disputed issue of material fact as to whether Aspex had an oral

or implied exclusive license. In addition to the above, Nonu Ifergan, another member of

the family that owned both Chic and Aspex, testified that both companies believed the

written license agreement conferred an exclusive license to the patents-in-suit and

operated consistent with that understanding. Altair’s arguments that the evidence was

insufficient simply call into question the credibility of the Ifergans’ testimony; since the
                                            15

2007-1380, -1407
district court simply denied summary judgment, however, credibility is not before us,

only whether there was a disputed issue of material fact. Therefore, we hold that the

district court did not abuse its discretion in denying summary judgment for lack of

standing.

                                           III.

      For the foregoing reasons, we affirm the district court’s summary judgment of

non-infringement as to the ’811 and ’896 patents. We also affirm the district court’s

denial of summary judgment for lack of standing. But we reverse the district court’s

summary judgment of non-infringement as to the ’054 patent because we conclude that

a “frame” as that term is used in the ’054 patent is not limited to one with rims. We

remand for further proceedings as to infringement of the claims of that patent consistent

with our revised claim construction as well as regarding standing to enforce that patent.




                                           16

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