     In the United States Court of Federal Claims
                                        No. 10-540 C

                                  (E-Filed: March 31, 2016)

                                            )
CANVS CORPORATION,                          )
                                            )
                     Plaintiff,             )
                                                       Patent case; claim construction
                                            )
                                                       for U.S. Patent No. 6,911,652;
v.                                          )
                                                       single term in dispute
                                            )
THE UNITED STATES,                          )
                                            )
                     Defendant.             )
                                            )

Joseph J. Zito, Washington, DC, for plaintiff.

Michel E. Souaya, Trial Attorney, with whom were Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, and John Fargo, Director, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, DC, for defendant.

                                   OPINION AND ORDER

CAMPBELL-SMITH, Chief Judge

      This is a patent infringement action brought, pursuant to 28 U.S.C. §1498(a), by
CANVS Corporation (CANVS or plaintiff) against the United States, acting through the
Department of the Army (government or defendant).1 Compl., ECF No. 1. CANVS
1
       Subsection 1498(a) of Title 28 provides:

       Whenever an invention described in and covered by a patent of the United
       States is used or manufactured by or for the United States without license
       of the owner thereof or lawful right to use or manufacture the same, the
       owner's remedy shall be by action against the United States in the United
       States Court of Federal Claims for the recovery of his reasonable and entire
       compensation for such use and manufacture.

28 U.S.C. § 1498(a) (2012).
alleges the government unlawfully used or manufactured an invention covered by
plaintiff’s U.S. Patent No. 6,911,652 (the ‘652 patent or patent-in-suit). The ‘652 patent
is directed toward a device optimizing the user’s ability to see in low-light conditions and
is particularly useful in military applications. Compl. ¶¶ 3, 15-19; see also ‘652 patent,
ECF No. 59-1. Claims four and five of the patent-in-suit survived summary judgment on
the ground that a genuine dispute of material fact remained as to whether the
“independent brightness adjustment” feature of the patent-in-suit was anticipated by the
prior art. CANVS Corp. v. United States, 114 Fed. Cl. 59 (2013), amended in part by,
116 Fed. Cl. 294 (2014).

       Now before the court are the parties’ briefs on claim construction of the term “an
optical input structured to define a line of sight” (Disputed Term).

I.     Background
        Plaintiff’s ‘652 patent was filed with the United States Patent and Trademark
Office on February 20, 2003 and issued on June 28, 2005. The invention described by
the patent-in-suit is a “Low Light Imaging Device” which enhances the user’s ability to
see in low-light and no-light conditions through the use of a photon image intensifier and
a thermal imager. See, e.g., ‘652 patent at [57]. A detailed description of the invention
claimed by the ‘652 patent has been provided in previous decisions of this court. See
CANVS, 116 Fed. Cl. at 297-98; CANVS, 114 Fed. Cl. at 62-63.

        The patent-in-suit consists of seven claims, including three dependent claims
which rely upon claim one. This court previously invalidated five of the seven claims by
partial summary judgment finding that they were anticipated by prior art, CANVS, 116
Fed. Cl. 294, leaving only claims four and five to be considered for infringement
purposes. Defendant has requested claim construction of the Disputed Term, “an optical
input structured to define a line of sight,” which appears in both claims four and five of
the ‘652 patent. Pl.’s 2d Claim Constr. Br. (Pl.’s 2d Br.), ECF No. 135; Def.’s 2d Claim
Constr. Br. (Def.’s 2d Br.), ECF No. 136; Def.’s Resp. 1, ECF No. 142. More
specifically, the Disputed Term, underlined below, appears in claim one – upon which
claim four depends – and in claim five.

       Taken together with claim one, claim four provides:

       1. A low light imaging device comprising:

       a) an optical input structured to define a line of sight;




                                               2
      b) a thermal imaging assembly responsive to radiation signatures disposed within
      said line of sight;

      c) an image intensification assembly responsive to photons at least within said line
      of sight;

      d) said thermal imaging assembly structured to generate a real time thermal image
      representative of said radiation signatures;

      e) said image intensification assembly structured to generate a real time enhanced
      photon based image;

      f) an image adjustment assembly including a thermal image adjustment assembly
      and a photon image adjustment assembly;

      g) said thermal image adjustment assembly structured to adjust an intensity of said
      thermal image;

      h) said photon image adjustment assembly structured to adjust said image
      intensification assembly so as to adjust an intensity of said enhanced photon based
      image generated thereby;

      i) said thermal image adjustment assembly and said photon image adjustment
      assembly being structured to be operable independent from one another; and

      j) an output image generation assembly structured to combine said thermal image
      and said enhanced photon based image to generate a real-time, direct view output
      image.

             4. A low light imaging device as recited in claim 1 wherein said thermal
             image adjustment assembly and said photon image adjustment assembly are
             structured to be independently and separately adjusted relative to one
             another.

‘652 patent, Claims 1, 4 (emphasis added).

      Claim five of the ‘652 patent is an independent claim which provides:

      5. A low light imaging device comprising:

      a) an optical input structured to define a line of sight;



                                              3
       b) a first imaging assembly structured to generate a thermal image corresponding
       to radiation signatures disposed at least within said line of sight;

       c) a second imaging assembly structured to generate an enhanced photon based
       image upon detected photons disposed at least within said line of sight;

       d) a first image adjustment assembly and a second image adjustment assembly,
       said first and said second image adjustment assemblies being operable to adjust
       said first and said second imaging assemblies so as to adjust an intensity of said
       thermal image and said enhanced photon based image generated thereby;

       e) an output image generation assembly structured to combine said thermal image
       and said enhanced photon based image to generate a single output image.

‘652 patent, Claim 5 (emphasis added).

II.    Procedural History

        Plaintiff filed this action on August 11, 2010, alleging infringement of all seven
claims of its ‘652 patent by ten other night vision systems that were manufactured by or
for the United States without license. Compl. 1-2; CANVS Corp. v. United States, 110
Fed. Cl. 19, 25 n.3 (2013) (listing the ten accused devices). Plaintiff’s claims for eight of
the ten accused devices were later dismissed for failure to prosecute. CANVS Corp. v.
United States, 107 Fed. Cl. 100 (2012) (dismissing plaintiff’s claims with respect to
devices three through ten); CANVS, 110 Fed. Cl. 19 (denying reconsideration).

       Defendant filed a motion for summary judgment arguing the “invalidity of all
claims of U.S. Patent No. 6,911,652 as anticipated under 35 U.S.C. § 102(e)(1) by U.S.
Patent No. 5,035,472 to Hansen.” Def.’s Mot. 1, ECF No. 59 (internal citations omitted).
The court granted defendant’s motion in part, CANVS, 114 Fed. Cl. at 59, invalidating
claims one through three and claim six as anticipated by the prior art. Granting
reconsideration in part, the court also invalidated claim seven finding it too was
anticipated by the same prior art. CANVS, 116 Fed. Cl. at 294.

        The parties agreed that claim construction was not required before the court’s
decision on defendant’s motion for summary judgment. See Def.’s Mot. 2 (adopting
plaintiff’s position that claim construction is not necessary except for the first term of
claim three); see also Pl.’s Claim Constr. Statement, ECF No. 29-1. A schedule for
proceeding with claim construction was set following the court’s summary judgment
decision. Order, ECF No. 96. The parties filed a joint claim construction statement on
October 6, 2014, in which defendant identified fifteen terms needing construction. Jt.
Claim Constr. Statement, ECF No. 104 App’x B.


                                              4
       While claim construction briefing was underway, defendant filed two motions to
stay proceedings pending an Inter Partes Review (IPR) by the Patent Trial and Appeal
Board (PTAB). See Def.’s 1st Mot. to Stay (Def.’s 1st Mot.), ECF no. 95; and Def.’s 2d
Mot. to Stay (Def.’s 2d Mot.), ECF No. 106. The court denied as premature defendant’s
first motion to stay for IPR because the United States Patent and Trademark Office
(USPTO) had yet to institute an IPR. CANVS Corp. v. United States, 118 Fed. Cl. 587,
589 (2014). The USPTO later issued a decision instituting IPR proceedings. Def.’s 2d
Mot. 2 (citing FLIR Sys., Inc., No. IPR2014–00773 (PTAB Oct. 23, 2014) (“[FLIR Sys.]
demonstrates a reasonable likelihood of prevailing in showing the unpatentability of
claims 1–7 of the ’652 patent.”), ECF No. 106 App’x). On December 19, 2014, the court
granted defendant’s second motion and stayed proceedings pending the IPR by the
PTAB, ECF No. 114.

       The stay interrupted the parties’ briefing schedule. Plaintiff’s opening brief on
claim construction was filed prior to the stay, ECF No. 107, but defendant’s responsive
brief was not. In its brief, plaintiff maintained that no terms required construction. In the
alternative, plaintiff proposed a construction for each of the fifteen terms identified by
defendant. P.’s Claim Constr. Br. (Pl.’s 1st Br.), ECF No. 107.

       Upon notice of the IPR’s resolution, the court lifted the stay, and the next month
defendant filed its responsive claim construction brief.2 Order, ECF No. 116; Def.’s
Claim Constr. Br. (Def.’s 1st Br.), ECF No. 117. Defendant narrowed its proposal for
construction to five terms – regarded as dispositive of the litigation – relating to the
optical input and line of sight. Compare Jt. Claim Constr. Statement, ECF No. 104
App’x B with Def.’s 1st Br. 2, 18-19, ECF No. 117. In its reply, plaintiff’s focused on
the phrases “optical input” and “line of sight” which were the only phrases in dispute in
the remaining five terms. Pl.’s Reply, ECF No. 118. 3

2
       By Joint Status Report, the parties advised that:

       The Inter Partes Review of the ‘652 patent in suit has concluded pursuant to
       an agreement between Patent Owner CANVS and Petitioner FLIR as part
       of a resolution of all disputes between those parties. The agreement
       includes a withdrawal of the accusations regarding the Dual-Band
       Universal Night Sight (DUNS) device made in this proceeding in the Court
       of Claims… The PTAB made no final determinations with respect to
       invalidity, and thus Claims 4 and 5 of the '652 patent remain valid and
       asserted in this proceeding.

Jt. Status Rep., ECF No. 115.
3
       To its reply brief plaintiff attached a new declaration, dated July 23, 2015 and
labeled exhibit N, from its expert, James B. Gillespie, a scientist with three decades of

                                              5
        In light of defendant’s new position, the court amended the hearing schedule to
clarify with the parties the extent of the construction deemed necessary. See Order, ECF
No. 124; Order, ECF No. 130. As clarified in the parties’ subsequent briefing, a single
dispositive term was identified for construction (Disputed Term). Def.’s Status Rep.,
ECF No. 132; See generally, Pl.’s 2d Br., ECF No. 135; Def.’s 2d Br., ECF No. 1364;
Def.’s Resp., ECF No. 142; Pl.’s Resp., ECF No. 143.5 Following the submission of
briefs, the parties offered oral argument only at the Markman hearing held on January 21,
2016; no expert witness testimony was presented.6 As explained more fully below, the
court adopts the following construction of the Disputed Term.


experience in the field of night vision technology and Director of Business Development
and Product Development for Northrop Grumman Corporation. See Gillespie Expert
Report 2-3 (Gillespie Rep.) (filed as Ex. C to Pl.’s 2d Br., ECF No. 107-3). Defendant
moved wither to strike Mr. Gillespie’s declaration or in the alternative, defendant moved
to file a responsive expert declaration and surreply brief. Def.’s Mot., ECF No. 119.
Plaintiff responded by withdrawing Mr. Gillespie’s declaration stating that it did not
oppose defendant’s motion to strike it, but it did oppose the filing of additional expert
reports and briefing. Pl.’s Resp., ECF No. 120. Defendant replied reasserting its motion
and requesting further briefing in the alternative. Def.’s Reply, ECF No. 121.
Thereafter, the court struck Mr. Gillespie’s declaration from the record. Order, ECF No.
122.
4
       In its November 23, 2015 brief on claim construction, defendant requested
additional term construction. Compare Order, ECF No. 130, and Def.’s Status Rep., ECF
No. 132, with Def.’s 2d Br. 31, ECF No. 136 (“For the reasons stated herein, Defendant,
the United States, respectfully requests that the Court issue an order which adopts
Defendant’s proposed constructions of terms 1, 4, 5, 8 and 9 of the asserted claims of the
patent-in-suit.”). Plaintiff moved to strike those portions of defendant’s brief seeking
construction of terms 4, 5, 8 and 9, because the parties already had agreed to seek
construction of term 1 only (Disputed Term). Pl.’s Mot., ECF No. 137. Defendant
responded stating that it would not seek further construction. Def.’s Resp., ECF No, 138.
The court denied the motion to strike noting that defendant had asked for further
construction in its brief but then clarified in its response to the motion to strike that it
sought construction of term 1 only (Disputed Term). Order, ECF No. 139.
5
        For the purposes of this order on claim construction, the court relies on the parties’
clarifying briefs (ECF Nos. 135, 136, 142, 143) and notes that the parties reference the
same set of exhibits throughout their briefs, Exhibits A-M (submitted with ECF Nos. 107,
117, 118, and 135).
6
       Appearing for defendant were counsel of record, Michel E. Souaya, and counsel
from the Intellectual Property Division for the Department of Justice, Scott Bolton. Mr.

                                              6
III.   Legal Standards for Claim Construction
       “It is a ‘bedrock principle’ of patent law that the claims of a patent define the
invention to which the patentee is entitled the right to exclude.” Phillips v. AWH Corp.,
415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water, Inc. v.
Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). “The
purpose of claim construction is to ‘determin[e] the meaning and scope of the patent
claims asserted to be infringed.’” O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co.,
521 F.3d 1351, 1360 (Fed. Cir. 2008) (quoting Markman v. Westview Instruments, Inc.,
52 F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff’d 517 U.S. 370 (1996)). The
construction and meaning of patent claims are questions of law for the court. Markman,
517 U.S. at 388–90. Claim construction is reserved exclusively for claim terms in
dispute; the court is not required to construe every claim term of a patent. O2 Micro Int’l
Ltd., 521 F.3d at 1362; accord Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197,
1207 (Fed. Cir. 2010).

        When construing patent claims, the court looks first to intrinsic evidence, then if
needed, to extrinsic evidence. Suffolk Techs., LLC v. AOL Inc., 752 F.3d 1358, 1362
(Fed. Cir. 2014) (“After considering this intrinsic evidence, a court may also seek
guidance from extrinsic evidence such as expert testimony, dictionaries, and treatises.”)
(citing Phillips, 415 F.3d at 1317-18). Intrinsic evidence includes the patent claims and
specification as well as the patent prosecution file history. This evidence “is the most
significant source of the legally operative meaning of disputed claim language.”
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996) (citing
Markman, 52 F.3d at 979). The purpose of consulting the prosecution history in
construing a claim is to "exclude any interpretation that was disclaimed during
prosecution." ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1580 (Fed. Cir.
1988). Accordingly, "where the patentee has unequivocally disavowed a certain meaning
to obtain his patent, the doctrine of prosecution disclaimer attaches and narrows the
ordinary meaning of the claim congruent with the scope of the surrender." Omega
Eng'g., Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003). Such a use of the
prosecution history ensures that claims are not “construed one way in order to obtain their
allowance and in a different way against accused infringers.” Chimie v. PPG Indus., Inc.,




Joel Lofgren from the Department of the Air Force also participated on the side of
defendant. Appearing for plaintiff were counsel of record, Joseph J. Zito, and Luiz Felipe
Oliveira. Johnathan Walkenstein, Chief Executive Officer of CANVS Corporation and
inventor of the patent in dispute, and Dr. Edward Currie from CANVS Corporation were
also in attendance and seated with plaintiff’s counsel.


                                             7
402 F.3d 1371, 1384 (Fed. Cir. 2005) (citing Southwall Tech., Inc. v. Cardinal IG Co., 54
F.3d 1570, 1576 (Fed. Cir. 1995).

        Extrinsic evidence also can be considered when determining the meaning and
scope of patent claims. Such evidence is “external to the patent and prosecution history,
[and may] includ[e] expert and inventor testimony, dictionaries, and learned treatises.”
Markman, 52 F.3d at 980. In claim construction, the weight given to the extrinsic record
is “less significant than [that given to] the intrinsic record.” Phillips, 415 F.3d at 1317
(quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)).
The court may look to extrinsic evidence to resolve the underlying factual issues that
inform the construction of a patent claim (“evidentiary underpinnings”), and make the
requisite findings. Teva Pharm. USA, Inc., 135 S. Ct. at 841-43.

        The court need not rely on extrinsic evidence to learn how one of ordinary skill in
the art at the time of invention would construe a claim if such perspective can be
ascertained from the intrinsic record alone. V–Formation, Inc. v. Benetton Group
SpA, 401 F.3d 1307, 1310 (Fed. Cir. 2005) (“[The intrinsic record] usually provides the
technological and temporal context to enable the court to ascertain the meaning of the
claim to one of ordinary skill in the art at the time of invention."). In general, claim terms
are given the ordinary and customary meaning as would be given by one skilled in the art
at the time of invention, when reading the claim terms in the context of the specification
and prosecution history. See Phillips, 415 F.3d at 1313.

        There are, however, two distinct exceptions. Thorner v. Sony Computer Entm't
Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (citing Vitronics Corp., 90 F.3d at
1580). The first is the circumstance in which a patentee sets forth a definition by acting
as his own lexicographer (the lexicographer exception). The second is the circumstance
in which a patentee disavows the full scope of a claim term either in the specification or
during prosecution (the disavowal exception). Id.

        Invoking the lexicographer exception provides the patentee with the ability to
create new meanings for the terms used in the patent. In order to be recognized as his
own lexicographer, the patentee must “clearly set forth” an alternative definition that
differs from the term’s ordinary meaning. CCS Fitness, Inc. v. Brunswick Corp., 288
F.3d 1359, 1366 (Fed. Cir. 2002).

        In contrast, invoking the disavowal exception allows the patentee to narrow the
scope of a term. Without wording in the intrinsic evidence that reflects a clear disavowal,
a patentee is entitled to the “full scope of its claim language.” Home Diagnostics, Inc. v.
LifeScan, Inc., 381 F.3d 1352, 1358 (Fed. Cir. 2004).




                                              8
       Clarity of intent is needed for a patentee to invoke either the lexicographer or the
disavowal exception. “There are no magic words that must be used, but to deviate from
the plain and ordinary meaning of a claim term to one of skill in the art, the patentee
must, with some language, indicate a clear intent to do so in the patent.” Hill-Rom
Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1373 (Fed. Cir. 2014) cert. denied, 135 S.
Ct. 719 (2014).

        When possible, claims are to be construed in a manner that maintains their
validity. But, “where claim language is clear [, the court] must accord it full breadth even
if the result is a claim [that] is clearly invalid.” Tate Access Floors, Inc. v. Interface
Architectural Res., Inc., 279 F.3d 1357, 1372 (Fed. Cir. 2002).

IV.    Discussion

       The Disputed Term to be construed by the court is found in claim one – on which
claim four depends – and in claim five of the ‘652 patent. Claims four and five are the
only remaining claims in plaintiff’s infringement action.

 Disputed Term          Plaintiff’s Proposed               Defendant’s Proposed
                        Construction                       Construction
 an optical input       None necessary.                    The entrance aperture and
 structured to define                                      optical elements that determine
 a line of sight        But in the alternative:            the imaging line of sight.
                        The entrance aperture(s) that      Def.’s 2d Br. 17.
                        determine(s) the line of sight
                        between the low light imaging
                        device and external objects.

                        Or

                        One or more optical inputs
                        structured to define a single
                        line of sight between the
                        device and the tactical
                        environment. Pl.’s 2d Br. 3.

       The parties’ dispute is two-fold. E.g., Def.’s Resp. 1. First, the parties disagree as
to the meaning of “an optical input.” Defendant asserts that these three words allow for
only a single, “entrance aperture.” Defendant asks that the court add the phrase “and
optical elements” when it construes the first part of the Disputed Term.

      Plaintiff, on the other hand, argues that the Disputed Term needs no construction
beyond its ordinary meaning. Invoking long established principles of claim construction,

                                               9
plaintiff posits that because the claim’s preamble ends with the word “comprising,” the
subsequent phrase “an optical input” must be open-ended. Thus, plaintiff reasons, the
first part of the Disputed Term allows for more than one optical input.

        Second, the parties disagree as to the meaning of the phrase “line of sight” in the
second part of the Disputed Term. While the parties agree that it allows for only a single
line of sight, they dispute the definition of “line of sight” and in turn, the scope of claims
four and five. Relying in part on the report of its expert astrophysicist, Dr. Allen
Waxman, Ph.D., defendant asserts that, as used in the ‘652 patent, the phrase “line of
sight” impermissibly broadens the Disputed Term’s ordinary meaning. Def.’s 2d Br. 18-
21, 26 (quoting Waxman Expert Report 6 (Waxman Rep.) (filed as Ex. F to Pl.’s 1st Br.,
ECF No. 107-6)). Defendant’s argument about the meaning of the phrase “line of sight”
is closely tied to its argument about how many optical inputs are allowed by the ‘652
patent. Based on the definition of “line of sight” cited by Dr. Waxman in his report,
defendant contends that the Disputed Term in the ‘652 patent contradicts itself.
Defendant reasons that each optical input (if more than one were to be allowed) would
have “a [unique] line of sight,” and in contravention of that limiting claim language,
multiple optical inputs would produce multiple lines of sight.

        Refuting defendant’s position, plaintiff contends that the court can determine the
ordinary meaning of the Disputed Term from the intrinsic evidence alone. Plaintiff
asserts that as construed, the Disputed Term allows for a single line of sight from
overlapping views of the “tactical environment,” generated by any number of optical
inputs.

       The court addresses in turn the parties’ two points of disagreement.

       A.     “[A]n optical input” is part of an open-ended claim

        Defendant asserts that “an optical input,” means that claims four and five allow for
a single optical input only. Def.’s 2d Br. 21. Defendant acknowledges the longstanding
presumption that if a claim preamble ends with the word “comprising,” the articles “a” or
“an” in the claim elements that follow are interpreted to mean “one or more.” But
defendant contends that here, the exception to this presumption applies, and as applied, it
limits the claims at issue to one optical input. Id.; Def.’s Resp. 2-3; Claim Construction
Hr’g Tr. 20 (Tr.), Jan. 21, 2106, ECF No. 152.

        In Baldwin Graphic Systems, Inc. v. Siebert, Inc., the Federal Circuit referred to
this longstanding presumption as a rule that has extremely limited exceptions:

       That “a” or “an” can mean “one or more” is best described as a rule, rather
       than merely as a presumption or even a convention. The exceptions to this


                                              10
       rule are extremely limited: a patentee must “evince[ ] a clear intent” to limit
       “a” or “an” to “one.” The subsequent use of definite articles “the” or “said”
       in a claim to refer back to the same claim term does not change the general
       plural rule, but simply reinvokes that non-singular meaning. An exception
       to the general rule that “a” or “an” means more than one only arises where
       the language of the claims themselves, the specification, or the prosecution
       history necessitate a departure from the rule.

512 F.3d 1338, 1342-43 (Fed. Cir. 2008) (emphasis added) (citations omitted).

        To support its position that the Baldwin exception applies in this case, defendant
contends that more than one optical input would create more than one line of sight and
thus, would give rise to an ambiguity as to the scope of the claims. Def.’s Resp. 3. But,
as addressed below, see section IV.B, it is defendant’s own proposed claim interpretation
that brings about the ambiguity of which defendant complains. Defendant’s suggested
construction does not comport with Baldwin’s own teaching that the presumption of
open-endedness gives way only if there is intentional intrinsic language that is either
exclusive or restrictive. Defendant makes a bare argument without referring to any
particular language in the claims, specification, or prosecution history that would limit
the claims to a single optical input only.

        Plaintiff, however, has identified specific language in the specification of the ‘652
patent suggesting that more than one optical input is allowed. Plaintiff points to language
in the specification providing: “The present invention is directed towards a low light
imaging device which includes preferably a single optical input which defines a line of
sight of the device.” Pl.s’ 2d Br. 7 (quoting ‘652 patent, Summary of the Invention, col.
2, [48-53]). The phrase “preferably a single optical input” neither limits nor effects a
disavowal of other embodiments; instead, it indicates that multiple optical inputs are
contemplated.

       The construction defendant seeks would require the court to import a limitation
from a preferred embodiment into a claim; this is a disfavored practice. Def.’s Resp. 8;
Phillips, 415 F.3d at 1323 (“[W]e have expressly rejected the contention that if a patent
describes only a single embodiment, the claims of the patent must be construed as being
limited to that embodiment.”) (citing Gemstar-TV Guide Int’l, Inc. v. Int’l Trade
Comm’n, 383 F.3d 1352, 1366 (Fed. Cir. 2004)). “Even when the specification describes
only a single embodiment, the claims of the patent will not be read restrictively unless the
patentee has demonstrated a clear intention to limit the claim scope using ‘words or
expressions of manifest exclusion or restriction.’” Liebel–Flarsheim Co. v. Medrad, Inc.,
358 F.3d 898, 906 (Fed. Cir. 2004) (quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299
F.3d 1313, 1327 (Fed. Cir. 2002). The intrinsic evidence simply does not support
defendant’s position that an exception to the Baldwin rule applies here. In accordance


                                             11
with the Baldwin rule, the phrase “an optical input” is construed as open-ended and thus,
one or more optical input(s) are claimed.

       B.     “[L]ine of sight” can be construed based on intrinsic evidence alone

        Although the parties’ briefs are somewhat convoluted on this point, the parties
clarified at oral argument that they agree that the Disputed Term claims a single “line of
sight.” Plaintiff explains that defendant repeatedly has mischaracterized CANVS’s
position about how many lines of sight are claimed in the second clause of the Disputed
Term (“a line of sight”). Plaintiff asserts that it never has sought to claim more than a
single line of sight. Pl.’s Resp. 1-2. Rather, plaintiff points out, it is defendant that has
made the argument that multiple optical inputs would result in multiple lines of sight.
The argument about these multiples turns on the dictionary definition defendant has put
forward for the phrase “line of sight.”

        Relying on the extrinsic evidence of a dictionary definition provided as
background information in Dr. Waxman’s expert report, defendant asserts that in the field
of low-light imaging, the phrases “line of sight” and “field of view” have difference
meanings. The phrase “line of sight” is defined as “the straight line connecting the object
and the objective lens of the viewing device.” Def.’s 2d Br. 26 (quoting Waxman Rep.
6). The phrase “field of view,” however, is defined as “[t]he maximum area that can be
seen through a lens or an optical instrument.” Waxman Rep. 6. It is the meaning for
“field of view” that plaintiff seeks in claim construction. Defendant challenges such
construction, arguing that the ‘652 patent record does not contain a reasonably clear,
deliberate, and precise intent to depart from the ordinary meaning of the selected phrase,
as would be required if the patentee were acting as his own lexicographer. Absent that
intent, defendant asserts, the phrase cannot be construed to mean anything other than its
ordinary dictionary definition. Def.’s Resp. 9 (citing In re Paulsen, 30 F.3d 1475, 1480
(Fed. Cir. 1994)). But, defendant misses the mark.

        The Federal Circuit has made clear that the ordinary meaning of words as gleaned
from the intrinsic record should not be set aside for a dictionary definition that plainly
contradicts the use of the words in the patent. Phillips, 415 F.3d at 1322-23 (Courts may
rely on dictionary definitions “so long as the dictionary definition does not contradict any
definition found in or ascertained by a reading of the patent documents.”) (quoting
Vitronics, 90 F.3d at l584 n.6); Novartis Pharm. Corp. v. Eon Labs Mfg., Inc., 363 F.3d
1306, 1310 (Fed. Cir. 2004) (“For more than 45 years we, and our predecessor court,
have looked to the intrinsic record to determine as a matter of claim interpretation which
of the available, relevant [dictionary] definitions should be applied to the claim term at
issue.”) (citing Liebscher v. Boothroyd, 258 F.2d 948, 951 (C.C.P.A. 1958) (“One need
not arbitrarily pick and choose from the various accepted definitions of a word to decide
which meaning was intended as the word is used in a given claim. The subject matter,


                                              12
the context, etc., will more often than not lead to the correct conclusion.”); Inverness
Med. Switz. GmbH v. Warner Lambert Co., 309 F.3d 1373, 1379 (Fed. Cir. 2002) (“[W]e
must determine whether the specification or prosecution history clearly demonstrates that
only one of the multiple meanings was intended.”); Texas Digital Sys., Inc. v. Telegenix,
Inc., 308 F.3d 1193, 1203 (Fed. Cir. 2002); Renishaw PLC v. Marposs SpA, 158 F.3d
1243, 1250 (Fed. Cir. 1998) (“[A] common meaning, such as one expressed in a relevant
dictionary, that flies in the face of the patent disclosure is undeserving of fealty.”).

        The Federal Circuit also has made clear that extrinsic evidence for claim
construction, including expert testimony about a dictionary definition, does not determine
how a term is defined. Rather, what is dispositive is how that term is construed by one
skilled in the art at the time of invention and in view of the intrinsic evidence. Phillips,
415 F.3d at 1313-14 (citing Unitherm Food Sys., Inc. v. Swift–Eckrich, Inc., 375 F.3d
1341, 1351 (Fed. Cir. 2004) (proper definition is the “definition that one of ordinary skill
in the art could ascertain from the intrinsic evidence in the record”), rev’d on other
grounds, 546 U.S. 394 (2006)).

        Defendant’s expert cited to “The Photonics Dictionary” in his expert report for the
different definitions of “line of sight” and “field of view,” Exhibit F 6, but he did not
provide a copy of the relevant excerpts with the report he prepared in 2014.7 To support
its legal argument, defendant relied on the different dictionary definitions noted in Dr.
Waxman’s expert report even though Dr. Waxman himself ultimately decided to “treat
the patentee’s use of the phrase ‘line of sight’ as being synonymous with the phrase ‘field
of view’ throughout the remainder of [his] report based on the use of this term in the
context of the patent specification.” Waxman Rep. 6 (emphasis added). Defendant has
misplaced its reliance.

        Defendant seeks both to assert the dictionary definition of “line of sight” furnished
by its expert, Tr. 27; Def.’s 2d Br. 26, and to disavow its expert’s interpretation of the
phrase in the same manner as plaintiff, Tr. 23. Defendant’s conflicted position appears to
have been prompted by Dr. Waxman’s own determination that the intrinsic evidence was

7
        Nor could defendant point to a record location at the claim construction hearing.
Tr. 27-28. Moreover, defendant provided no evidence that the definitions Dr. Waxman
cited from The Photonics Dictionary were the same at the time the patent was filed in
2003. Making an independent effort to obtain a copy of The Photonics Dictionary to
assess its relevance, the court found only a publication bearing that title and containing
those exact definitions on a website that allows its users to submit content. See The
Photonics Dictionary, http://www.photonics.com/edu/Dictionary.aspx (last visited Mar.
15, 2016).




                                             13
sufficient to instruct him as to how to define the Disputed Term. See Waxman Rep. 6;
Unitherm Food Sys., 375 F.3d at 1351 (The proper definition is the “definition that one of
ordinary skill in the art could ascertain from the intrinsic evidence in the record.).

        Plaintiff argues that the Disputed Term needs no construction. Plaintiff adds that
if it does, defendant should not be “allowed to selectively pick and choose from [its] own
expert’s report the parts [it] like[s] and the parts [it doesn’t] like.” Tr. 38.

       The court is of the view that the intrinsic record is sufficient to inform this claim
construction. Limiting a line of sight to a discrete imaginary line, as defendant has
proposed, is a strained claim construction that would render the device inoperable. Pl.’s
2d Br. 8-9; Tr. 15-16. “[T]he straight line connecting the object and the objective lens of
the viewing device” cannot define the line of sight when the specification expressly
speaks to a “line of sight through which a tactical environment may be viewed.”
Compare Def.’s 2d Br. 26 (quoting Waxman Rep. 6), with the ‘652 patent at col. 4, [3]
(emphasis added). Even if defendant’s definition were the more customary meaning
accepted in the field at the time of invention, it directly contradicts the intrinsic evidence
and thus, cannot stand. See Renishaw PLC, 158 F.3d at 1250.

        Importantly, the court does not look to extrinsic evidence when the intrinsic
evidence is sufficient for determining how a person of ordinary skill in the art would
interpret, at the time of invention, a claim term. V–Formation, Inc., 401 F.3d at 1310.
The intrinsic record here needs no supplementation. As plaintiff has noted, a separate
element could be added to claims four and five of the ‘652 patent that could create a
distinct line of sight, Tr. 10 (such as a rear-facing camera Tr. 50), but the “line of sight”
iterated in those claims describing the element of “an optical input structured to define a
line of sight” is the same “line of sight” referred to as “said line of sight” in the later
elements of those two claims. As construed in the context of the specification and
claims, the tactical area to be viewed is conserved by the elements of the claim that refer
back to that “said line of sight,” such as the thermal imaging assembly (col. 6, [35]),
image intensification assembly (col. 6, [37]), first imaging assembly (col. 7, [28]), and
second imaging assembly (col. 7, [30]). Thus, one or more optical input(s) create a
single, overlapping line of sight.

        Defendant puts forward yet another argument about the two disputed phrases in
the Term. Defendant asserts that if plaintiff relies on the Baldwin presumption to
characterize “an optical input” as an open-ended claim allowing more than one optical
input, then the same presumption must extend to the second indefinite article of the
Disputed Term, specifically the “a” preceding in “a line of sight.” Def.’s Resp. 3. As
reasoned, defendant maintains its position that the number of optical inputs tracks the
number of lines of sight.



                                              14
        The Baldwin rule, however, does not lend the support defendant suggests. The
Baldwin rule does not effect further limitations in a claim. “While the term ‘comprising’
in a claim preamble may create a presumption that a list of claim elements is
nonexclusive, it ‘does not reach into each [limitation] to render every word and phrase
therein open-ended.’” Promega Corp. v. Life Techs. Corp., 773 F.3d 1338, 1350 (Fed.
Cir. 2014) (quoting Dippin' Dots, Inc. v. Mosey, 476 F.3d 1337, 1343 (Fed. Cir. 2007)).
Because the phrase “structured to define a line of sight” is a limitation on the claim
element “an optical input,” the article “a” contained therein does not become open-ended
under the Baldwin rule. Instead, it instructs only a single line of sight.

       Accordingly, the Disputed Term is construed to allow one or more optical input(s)
structured to define a single line of sight.8

V.     Conclusion
       For the reasons explained above, the Disputed Term of the ‘652 patent shall be
construed as stated.

       The schedule for proceeding with expert reports set in the October 14, 2015 order
is SUSPENDED. The parties shall file a joint status report by Monday, May 2, 2016,
stating whether they intend to file dispositive motions following this order and if so, the
parties shall propose a briefing schedule.


       IT IS SO ORDERED.



                                               s/ Patricia Campbell-Smith
                                               PATRICIA CAMPBELL-SMITH
                                               Chief Judge




8
       This construction is consistent with the Middle District of Florida’s finding in
another case in which CANVS asserted infringement of the same ‘652 patent. CANVS
Corp. v. Nivisys, LLC, No. 2:14-CV-99-FTM-38MRM, 2015 WL 6560621, at *2-3
(M.D. Fla. Oct. 29, 2015), ECF No. 134.


                                            15
