                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                                             *Corrected June 2, 2009

                                        2008-1482

                                 PURECHOICE, INC.,

                                                      Plaintiff-Appellant,

                                           v.

                        HONEYWELL INTERNATIONAL, INC.,

                                                      Defendant-Appellee.


        Donald W. Rupert, Marshall, Gerstein & Borun LLP, of Chicago, Illinois, argued
for plaintiff-appellant. With him on the brief were Bradford P. Lyerla, Thomas L. Duston,
and Margaret L. Begalle.

      M. Miller Baker, McDermott Will & Emery LLP, of Washington, DC, argued for
defendant-appellee. With him on the brief was David M. Stein, of Irvine, California.

Appealed from: United States District Court for the Eastern District of Texas

Judge T. John Ward




* Corrected spelling of attorney name
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                        2008-1482

                                  PURECHOICE, INC.,

                                                            Plaintiff-Appellant,

                                            v.

                        HONEYWELL INTERNATIONAL, INC.,

                                                            Defendant-Appellee.


Appeal from the United States District Court for the Eastern District of Texas in case no.
2:06-CV-00244, Judge T. John Ward.

                           __________________________

                           DECIDED: June 1, 2009
                           __________________________


Before MAYER, GAJARSA, and LINN, Circuit Judges.

PER CURIAM.

       PureChoice, Inc. appeals the judgment of the United States District Court for the

Eastern District of Texas which found several claims of U.S. Patent No. RE38,985

invalid under the 35 U.S.C. § 112 definiteness requirement because two claim terms

present in each claim could not be construed. PureChoice, Inc. v. Honeywell Int’l Inc.,

No. 2:06-cv-00244 (E.D. Tex. Mar. 14, 2008).             PureChoice also appeals the

construction of “air quality” present in these claims, upon which the district court relied
to find indefiniteness. Because we agree that “air quality” was properly construed and

that the two dependent limitations are unable to be construed, we affirm.

                                    BACKGROUND

       PureChoice is the owner of the RE38,985 patent (“’985 patent”) entitled

“Environment Monitoring System” which is a reissue of U.S. Patent No. 5,892,690 (“’690

patent”).   The patent discloses a system and method for acquiring and monitoring

certain types of air and water quality data, including a set of sensors and data storage

devices coupled to the sensors.         In 2006, PureChoice merged an ex parte

reexamination request of the ’690 patent with its own reissue request to amend

independent claims 1 and 16, and add claims 21 through 76. The ’985 patent followed,

and Claim 1 is representative:

       1. An air quality monitoring system comprising:
       a data acquisition system for collecting air quality data at a data
           acquisition site, said data acquisition system including:
           at least one sensor for measuring environmental air quality data;
           a second plurality air quality sensor adapted to measure non-weather
               data;
           a data storage device coupled to the sensor for storing data measured
               by the sensor;
           a remote access device coupled to the data storage device for
               electronically accessing measured data stored on the data storage
               device from a remote system;
           a remote database for storing air quality data from a plurality of data
               acquisition systems;
           a remote access device coupled to the remote database for
               electronically accessing the remote database for uploading and
               storing measured data from data acquisition sites; and
           means for systematically and automatically uploading data from
               acquisition sites to the remote database.

       The original claim comprised at least one sensor for measuring air quality data,

coupled to a data storage device and a remote access device. During reexamination,

PureChoice amended claim 1 to add that the air quality data measured by at least one



2008-1482                                  2
sensor would be “environmental air quality data,” and the limitation of a second plurality

of air quality sensors to measure “non-weather data.”       The specification does not,

however, define either environmental air quality or non-weather data.

       PureChoice asserted claims 1, 16, 21, and 62 against Honeywell monitoring

systems, including their Enterprise Building Integrator and ComfortPoint systems and

others. Honeywell defended by arguing that its systems did not infringe, and that the

’985 patent was invalid for indefiniteness.

       The district court held a hearing to construe the terms of the ’985 patent.

PureChoice argued that the term “air quality” as mentioned in each asserted claim

should be read broadly and construed simply as “the quality of the air.” Honeywell, on

the other hand, argued that because the claims, the specification, the prosecution

history, and extrinsic evidence suggested that the invention only addressed particulates

in the air, “air quality” should be construed only as “the concentration of pollutants or

contamina[nts] in the air.” It specifically excluded “meteorological, climate, or comfort

related variables, such as temperature and humidity.”          PureChoice also argued

constructions for two other terms, “sensor for measuring environmental air quality data”

and its homologue, and “air quality sensor adapted to measure non-weather data.” It

argued that the sensor for measuring limitation should be construed as a “sensor for

measuring quantitative information regarding an air quality of the environment in the

data acquisition site.”   It argued that “air quality sensor adapted to measure non-

weather data” means an “air quality sensor adapted to measure quantitatively an air

property in the controlled environment of a type not normally identified with weather

(e.g. not temperature or humidity).”




2008-1482                                     3
      Honeywell responded that both terms were indefinite under 35 U.S.C. § 112

based on its argument that air quality excludes meteorological variables.          It also

rebutted PureChoice’s proposed constructions, arguing that they were so vague and

ambiguous as to require constructions that would reclaim in reexamination that which

PureChoice surrendered in its initial prosecution.

      The district court largely agreed with Honeywell and held that “air quality” means

the “concentration of pollutants or contamina[nts] in the air.” The court then agreed with

Honeywell that it is impossible to construe or differentiate “sensor for measuring

environmental air quality data” and “air quality sensor adapted to measure non-weather

data,” and thus held that these terms were indefinite. PureChoice timely appealed the

constructions. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

                                      DISCUSSION

      Claim construction is a question of law that we review de novo. Cybor Corp. v.

FAS Techs., Inc., 138 F.3d 1448, 1454-55 (Fed. Cir. 1998). Claim indefiniteness is also

a question of law that we review de novo. Intellectual Prop. Dev., Inc. v. UA-Columbia

Cablevision of Westchester, Inc., 336 F.3d 1308, 1318 (Fed. Cir. 2003).

      We first address the proper construction of air quality and start with the

specification. “The specification is the single best guide to the meaning of a disputed

term,” and we read the claim terms in view of the specification. Phillips v. AWH Corp.,

415 F.3d 1308, 1321 (Fed. Cir. 2005) (internal quotations removed).

      PureChoice argues that the term should be construed as its plain meaning, “the

quality of the air.” This definition however does not inform the public what qualities the

invention is concerned with, and is overbroad.        The specification never mentions




2008-1482                                   4
sensing temperature, humidity or other meteorological attributes of the air. However, it

does discuss sensing contaminants and pollutants extensively throughout.                For

instance, at column 4 lines 38 through 40, the specification discusses examples of

“smoke or particle sensors, volatile organic compound sensors, [and] carbon monoxide

sensors” but does not include any meteorological sensing. Mindful not to impute an

attribute of a preferred embodiment into a claim term, see Electro Med. Sys., S.A. v.

Cooper Life Sci., Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994), preferred embodiments

nevertheless are evidence of its meaning. In the ’985 patent, the preferred embodiment

also does not disclose any meteorological sensing, but rather “employs a particle

sensor and a volatile organic compound sensor.” ’985 patent col. 4 ll. 40-41. Indeed

among the listed “various sensors 14a-n” that may be employed for testing air quality

attributes, all sense particles or contaminants: other sensors that can produce an

electrical signal proportional to the amount of foreign substances, toxins or other

chemicals, and ionizing smoke or particle detectors. Id. col. 4 ll. 40-60.

       Other evidence in the specification also suggests to persons having ordinary skill

that the relevant attributes comprising air quality are contaminants and particles only.

While PureChoice argues that air quality should be read broadly because the

specification speaks to attributes that affect the health and well-being of a population,

the surrounding text in the specification deals with particles and contaminants as the

attributes of air quality that adversely affect health and well-being:

       Certain environments are more susceptible to pollutants that negatively
       effect [sic] air quality, such as a bar, restaurant, nightclub or casino where
       a high percentage of people smoke. Other environments require a
       consistent and predetermined air quality, which is free from pollutants,
       toxins and chemicals, such as hospitals, nursing homes, pharmaceutical




2008-1482                                     5
      manufacturing facilities or other manufacturing facilities that require “clean
      rooms.”

Id. col. 1 ll. 20-28 (emphasis added). The specification clearly shows that the invention

is concerned with contaminants and pollutants, and not meteorological attributes.

      The lack of any suggestion of meteorological attributes in air quality in the

specification and the many mentions at various points of contaminants and particles is

enough to conclude that the claimed invention is narrower than the claim language

might imply, making it proper to limit the claims. See Alloc, Inc. v. Int’l Trade Comm’n.,

342 F.3d 1361, 1370 (Fed. Cir. 2003). However, further buttressing the construction is

PureChoice’s disavowal of the inclusion of meteorological attributes in air quality during

prosecution. To overcome a rejection in light of a Gilbert reference that disclosed a

system comprising sensors that monitor temperature and sensors that measure

pollution, PureChoice amended its claims, replacing the term “measuring environment

data” to “measuring air quality data.” This amendment is the source of the “air quality”

term, which PureChoice argued was distinguishable over Gilbert because it was related

to measuring specific pollutants. In particular, PureChoice told the examiner,

      Applicants’ invention relates to measuring air quality, and . . . discloses
      use of such sensors as smoke sensors, particle sensors, volatile organic
      compound sensors, or carbon monoxide sensors for collecting and
      monitoring air quality. Such sensors produce an electronic signal
      proportional to the presence of foreign substances. The electronic signal is
      converted to an air quality measurement, such as particles per cubic
      meters [sic] of air.

In other words, Gilbert disclosed measuring meteorological attributes, and the

application that became the ’985 patent disclosed sensing particles.          PureChoice

argues that this is not a clear and unmistakable disavowal of meteorological attributes

because, while Gilbert collected environmental data, PureChoice amended the claims to



2008-1482                                   6
expressly limit the sensors to the collection of air quality data. This is unpersuasive,

however, because the response makes clear that the difference between environmental

data, as the examiner stated was present in Gilbert, and air quality data, is the

contaminant and particle data mentioned in the passage above. Therefore, PureChoice

has clearly and unmistakably disavowed environmental data insofar as it extends

beyond contaminants and particles.

       PureChoice points out that temperature was mentioned as an attribute the

invention senses during prosecution, when it stated to the examiner that “the digital [air

quality] value [reported by a sensor] must be put into the context of what is being

sensed (for example, smoke level, CO level, temperature).”            We are, however,

unconvinced that the scant appearance of meteorological attributes in the hundreds of

pages of specification and prosecution history would inform a person of ordinary skill

that air quality extends beyond contaminants and pollutants, when weighed against

references to the latter attributes found throughout the specification and prosecution

history. Therefore, we affirm the construction of “air quality.”

       With the construction of air quality fixed, we look to whether the two remaining

terms in dispute are indefinite under 35 U.S.C. § 112, paragraph 2. A claim satisfies the

definiteness requirement “[i]f one skilled in the art would understand the bounds of the

claim when read in light of the specification.” Exxon Research & Eng’g Co. v. United

States, 265 F.3d 1371, 1375 (Fed. Cir. 2001). A claim will be found indefinite only if it

“is insolubly ambiguous, and no narrowing construction can properly be adopted.” Id.

       As observed above, environmental data was disavowed during prosecution

insofar as it extended beyond air quality data as construed. When the patent originally




2008-1482                                     7
issued as the ’690 patent, these two claim terms were a single term: “sensor for

measuring air quality data.” During reexamination, the term was split into a “sensor for

measuring environmental air quality data” and “air quality sensor adapted to measure

non-weather data.” Because PureChoice did not reduce the interviews that resulted in

the amended claim terms to writing pursuant to 37 C.F.R § 1.560(b), and because

neither “environmental air quality” nor “non-weather data” appears in the written

description, the court is left without a record to explain the difference or relationship

between the two terms that provoked allowance. Applying the construction of air quality

to the terms, the first becomes a sensor for measuring a concentration of environmental

pollutants or contaminants in the air, but not meteorological data, while the second

becomes a sensor for measuring a concentration of pollutants or contaminants, but not

meteorological data, adapted to measure non-weather data. Not only are these two

terms identical in meaning, but they are insolubly ambiguous.     An air quality attribute

cannot simultaneously be environmental, understood during prosecution as including

weather attributes such as temperature and humidity, yet limited to non-meteorological

attributes.

       Furthermore, the claim cannot be read on the preferred embodiment, described

as employing “a particle sensor and a volatile organic compound sensor.” ’985 patent

at col. 4 ll. 41-42. Because the claim clearly requires at least one of each type of

environmental air quality sensors and non-weather air quality sensors, the particle

sensor and the volatile organic compound sensor must be of different types. However,

the specification does not describe which sensor is which. PureChoice argues that the

two types of claimed sensors can cover both the particle sensor and the volatile organic




2008-1482                                  8
compound sensor, but this is clearly forbidden as the examiner clearly stated allowable

subject matter requires “a second plurality of sensor[s] adapted to measure different air

quality attributes than the first air quality sensor.” The terms are indefinite. We affirm

the district court’s finding thus the asserted claims are invalid.

                                       CONCLUSION

       Accordingly, the judgment of the United States District Court for the Eastern

District of Texas is affirmed.



                                         AFFIRMED




2008-1482                                     9
