                  NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                    is not citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit
                                          05-1555

                            MEADE INSTRUMENTS CORP.,

                                                  Plaintiff-Appellant,

                                             v.

                                     YAMCON, INC.,

                                                  Defendant-Appellee.

                            ___________________________

                            DECIDED: August 25, 2006
                            ___________________________


Before MAYER, BRYSON, and LINN, Circuit Judges.

BRYSON, Circuit Judge.

       Meade Instruments Corp. brought this patent infringement suit alleging that

Yamcon, Inc., infringes one of Meade’s patents, U.S. Patent No. 5,311,203 (“the ’203

patent”). The district court granted Yamcon’s motion for summary judgment, holding

that Yamcon’s accused “SkyScout” device does not infringe the ’203 patent. Meade

appeals, challenging the district court’s claim construction. We affirm.

                                              I

       The ’203 patent relates to a handheld device for locating and identifying celestial

objects that are visible to the naked eye. The device described in the patent is capable

of determining the direction it is pointing and uses that information to find and to identify

objects whose celestial coordinates are stored in the device’s database.              When
operating the device in the “find” mode, the user selects an object he wishes to view

and the device then directs the user to point the device to the part of the sky where the

object is located. When operating the device in the “identify” mode, the user points the

device at a particular celestial object and the device identifies the object. In either

mode, the device can present information to the user about the celestial object of

interest.

       Yamcon’s accused SkyScout is a handheld viewing device that allows the user to

look through an eyepiece to see a portion of the sky. Like the patented device, the

Skyscout incorporates a find mode and an identify mode. The SkyScout, however,

presents information to the user on a display screen that is situated on the side of the

device. Because of the location of the screen, the user must take the device away from

his eye and turn the device 90 degrees in order to view the information on the screen.

In find mode, the user inputs a celestial object and the SkyScout displays arrows in the

field of view that direct the user to move the device so that the selected object will

appear in the field of view.

       Yamcon moved for summary judgment of noninfringement. After construing the

pertinent claim language, the district court ruled that Yamcon’s device does not infringe

any of the asserted claims of the ’203 patent. Meade Instruments Corp. v. Yamcon,

Inc., No. SACV 04-1213 (C.D. Cal. Aug. 22, 2005). On appeal, Meade argues that

under the proper construction of the claim language, Yamcon infringes claims 1 and 15

of the patent.




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                                             II

       In pertinent part, claim 1 recites:

              A portable, hand-holdable viewing apparatus for use in viewing a
       predetermined subject, said apparatus having a field of view of a
       predetermined size and presenting information to the user about features
       of the subject visible in the field of view, comprising:
              ...
              an electronic database containing data about the predetermined
       subject, the data being arranged in said database to be correlated with
       three-dimensional direction;
              output means for providing data from said database to a user; and
              microprocessor means . . . coupled to said database and to said
       output means to provide data about the subject to the user in real-time,
       the provided data being correlated with three-dimensional directions falling
       within said field of view of predetermined size;
              whereby the provided data is automatically and simultaneously
       presented to the user as the user observes the field of view in a selected
       three-dimensional direction.

Claim 15 contains similar limitations but uses slightly different language:

               A method of providing information to a user about a predetermined
       subject with a hand-held viewing apparatus with which the user may view
       the predetermined subject comprising the steps of:
               providing an electronic database in said hand-held viewing
       apparatus containing data about the predetermined subject correlated with
       three-dimensional direction;
               ...
               searching said database for data correlated with three-dimensional
       directions within a prescribed range about the three-dimensional
       coordinates of said viewing direction; and
               providing data result from said searching step to the user, . . .
       whereby said data are provided in real-time as the user observes the field
       of view of the apparatus in said viewing direction.

       Meade argues that the court erred in its interpretation of the claim term “data”

and in its interpretation of the requirement that data be “simultaneously presented to the

user as the user observes the field of view” (claim 1) or that data be provided “to the

user . . . in real-time as the user observes the field of view of the apparatus” (claim 15).

Under the district court’s interpretation, claims 1 and 15 do not read on Yamcon’s



05-1555                                      3
accused device because there is no “data”—as that term is used in the ’203 patent—

that is presented or provided to the user as the user observes the field of view. The

court ruled that neither the information displayed on the side screen of the SkyScout nor

the directional arrows displayed in the SkyScout’s field of view meet the disputed

limitation. The court held that, although the information displayed on the side screen of

the SkyScout device is “data,” it is not presented or provided to the user as the user

observes the field of view; and although the directional arrows are presented to the user

as the user observes the field of view, the directional arrows do not constitute “data.”

                                             A

       We agree with the district court that claims 1 and 15 require that information be

presented to the user in a manner that allows the user to access the information at the

same time that he is observing the field of view. Claim 1 requires the information to be

“simultaneously presented to the user as the user observes the field of view” (emphasis

added), and claim 15 requires the information to be “provid[ed] . . . to the user . . . in

real-time as the user observes the field of view.”       Especially when followed by the

preposition “to,” the verb “present” (or “provide,” in the case of claim 15) suggests the

act of making something immediately accessible for the user to view. Webster’s New

International Dictionary 1955 (2d ed. 1954) (defining “present” as “[t]o exhibit or offer to

view”); id. at 1994 (defining “provide” as “[t]o supply for use”). It would be strange to say

that an image is “presented to” a user as the user observes the field of view if the user

is not in a position to view the image while observing the field of view.

       In the context of the ’203 patent, there is a significant difference between

displaying information on a side screen that the user cannot see while observing the




05-1555                                      4
field of view, as opposed to simultaneously presenting information to a user as the user

observes a celestial object in the field of view. The specification makes it clear that one

of the key features of the invention is that the user can receive information about a

particular celestial object while using the device to observe the object in the field of

view. For example, the patent explains that one of the main disadvantages of observing

aids such as star charts is that the observer “has to refer back and forth from the sky to

the star chart.”   ’203 patent, col. 1, ll. 30-31.     But that is precisely what users of

Yamcon’s accused device must do with respect to the screen display, because

Yamcon’s device lacks the simultaneity feature touted in the patent.

        All of the embodiments described in the patent allow information to be presented

so that the user is exposed to the information and the field of view at the same time. In

one embodiment, the device “superimposes on the observed night sky within the

instrument’s field of view an image in the form of a graphic representation of a

prominent astronomical feature such as a constellation.” ’203 patent, col. 2, ll. 22-25.

In discussing alternative embodiments, the specification notes that the “display is placed

in the user’s line of sight for direct viewing.” ’203 patent, col. 4, ll. 20-21. Nothing in the

specification indicates that the relevant claim language can be interpreted to cover

devices that do not present information to the user while the user is viewing the field of

view.

        Meade makes several arguments in support of its interpretation, but they are not

persuasive. First, Meade challenges the district court’s conclusion that the “user of the

device must actually be aware of and receive the data at the same time that he or she is

viewing the celestial object.” Meade argues that the claims do not require “awareness”




05-1555                                       5
of the information on the part of the user, but only require that the information be

“presented or provided.” While it is true that the claim limitations are directed to the

capabilities of the device, not the capabilities of the user, we do not interpret the district

court’s claim construction to require that the user actually absorb textual information at

the same time that he is viewing an object. All that is required is that the information be

made available to the user so that the user can access it while observing the field of

view. In that regard, the district court’s claim construction is entirely consistent with the

prosecution history of the ’203 patent, in which the applicant asserted that the invention

“provides a device that a user can hold in his or her hand, point it in a desired direction,

look through it at the night sky, and see both the actual night sky (in some limited field of

view) and also see educational information about the prominent feature or features in

that portion of the sky.”

       Second, Meade makes the related argument that the district court’s claim

construction excludes the embodiments disclosed in the specification, because even in

the embodiments that call for overlaying information on the field of view it would be

impossible for a user to read the displayed textual information and look at a celestial

object in the field of view at the same moment. That is because, according to Meade, a

user must shift the focus of his eyes away from the celestial object in order to focus on

the overlaid visual display. Again, that argument overlooks the claim language. The

claims require that the user be able to access the information at the same time that he

is “observ[ing] the field of view.” If the user can detect the information while using the

device to observe the field of view, then even if the user must shift his attention from the

celestial object in order to read the information that is displayed in or around the




05-1555                                       6
eyepiece field of view, the user is still observing the field of view as he accesses the

information.

       Finally, Meade raises a claim differentiation argument in support of its

interpretation of the claim language. Meade argues that the only distinction between

independent claim 1 and some of the dependent claims, such as claims 2 and 3, is that

the dependent claims require real-time display of textual information overlaid on the field

of view. Thus, in Meade’s view, claim 1 must include some means of presentation other

than overlaying information on the field of view. Although we agree that claim 1 must be

broader than the claims that depend on claim 1, we disagree that the broader scope of

claim 1 includes Yamcon’s side screen display. Rather, the additional breadth of claim

1 includes methods of simultaneous presentation to the user other than overlaying the

information as text on the field of view.        For example, claim 1 may include audio

presentation of information, see ’203 patent, col. 11, ll. 39-42 (“certain data from the

database may be provided to the user aurally with known speech synthesis integrated-

circuit chips in place of the visual display”), or overlaying textual information within the

observer’s vision but outside the field of view of the eyepiece. Particular embodiments

are not at issue in this appeal, so we need not rule on whether they would fall within the

scope of claim 1; it is sufficient simply to note that there are various embodiments that

might fall within claim 1 but outside the dependent claims.          Therefore, we reject

Meade’s claim differentiation argument.

                                             B

       Meade also challenges the district court’s construction of the term “data.” The

crux of the dispute over that term is whether directional arrows that guide a user to a




05-1555                                      7
selected object, when the device is operated in the find mode, constitute “data,” as that

term is used in the ’203 patent. The directional arrows are overlaid on the field of view

in Yamcon’s device so that they are “simultaneously presented to the user as the user

observes the field of view.”    Thus, if directional arrows constitute “data,” Yamcon’s

device would meet the disputed limitation.

       Meade argues that directional arrows constitute “data,” as broadly defined, and

that the district court erred by concluding that the claims use the term in a narrower

sense. The problem with Meade’s argument is that the claims and the specification

make it clear that the claim is referring to a predetermined set of data that has been

entered into the device’s database, not merely to any abstract bit of data in the broadest

sense of the term.

       The disputed limitation in claim 1 refers to “the provided data.” The antecedent

basis in the claims for that “provided data” requires that it be taken from a database

“containing data about the predetermined subject [i.e., celestial feature], the data being

arranged in said database to be correlated with three-dimensional direction.” Claim 15

contains a similar antecedent basis for “data.” Thus, the word “data” in claims 1 and 15

refers to a preselected set of information that is entered into the database about

predetermined celestial features and is then provided to the user during operation of the

device.

       The specification provides several examples of such data, including “such

information as the equatorial coordinates of the [celestial] object, its apparent

magnitude, and a label for the object.” ’203 patent, col. 5, ll. 65-67; see also col. 2, ll.

21-27 (discussing an embodiment that displays graphic representation and labels for




05-1555                                      8
prominent astronomical features); col. 11, ll. 39-47 (noting that a potential data display

might read “The bright star is Betelgeuse in the constellation Orion”). Thus, as used in

claims 1 and 15, the word “data” refers to preselected facts about celestial features that

can be stored in the device’s database and then presented to the user when the user

views that particular celestial feature.

       In Yamcon’s device, neither the directional arrows nor the information that they

represent (i.e., the direction from the user’s current field of view to the relevant celestial

feature) is part of any preselected set of data that is stored in the database. Rather, the

directional arrows are purely the result of dynamic real-time calculations. Moreover, the

claims require that the data be “about features of the subject visible in the field of view,”

those “subjects” being “predetermined.” When Yamcon’s device displays directional

arrows, the only information those arrows convey is that the targeted celestial object is

in the current field of view or that the device must be moved in a particular direction to

put the object in the field of view. It strains the ordinary meaning of the phrase to say

that such information is information “about features of the subject visible in the field of

view,” and it is contrary to the meaning of the phrase as used in the ’203 patent.

       Meade points out that all of the information displayed on the screen of the

patented device is in a sense the product of calculations, just as Yamcon’s directional

arrows are the product of calculations. Thus, in order for the device to display the

relevant educational fact (e.g., “This is Saturn, the sixth plant from the Sun”), the device

must perform calculations to match the three-dimensional location of the field of view

with the location of the relevant celestial object (e.g., Saturn). For that reason, Meade

argues, it is inappropriate to exclude the arrows from the definition of “data” merely




05-1555                                       9
because the arrows are the result of calculations. That argument, however, obscures a

critical distinction. In the case of matching Saturn with the field of view, the calculations

involve determining which data to pull from the database by ascertaining the direction

the device is pointing. The data that is ultimately displayed is information that is stored

in the database about the target celestial object. Yamcon’s directional arrows, on the

other hand, are purely the result of a real-time calculation. They are not data that is

preselected and stored in the database, and they are not “about” the target celestial

object in the sense referred to in the specification. Based on that distinction, the district

court correctly ruled that the directional arrows in Yamcon’s device are not “data” within

the meaning of claims 1 or 15.

       As an alternative ground for affirmance, Yamcon argues that its SkyScout device

does not meet the claim requirement that the reference data that is presented to the

user must be automatically updated to correspond to where the device is being pointed.

The district court found it unnecessary to address that issue, and for the same reason

we decline to do so. In addition, although the district court addressed and rejected

Meade’s argument of infringement under the doctrine of equivalents, Meade did not

raise that argument in its opening brief, and we therefore treat that argument as waived.

See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006);

Amoco Oil Co. v. United States, 234 F.3d 1374, 1377 (Fed. Cir. 2000).




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