Case: 13-1650 Document: 41-2 Page: 1 Filed: 02/18/2014
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`OTTO BOCK HEALTHCARE LP,
`Plaintiff-Appellant,
`
`v.
`
`ÖSSUR HF AND ÖSSUR AMERICAS, INC.,
`Defendants-Appellees.
`______________________
`
`2013-1650
`______________________
`
`Appeal from the United States District Court for the
`Central District of California in No. 13-CV-0891, Judge
`Cormac J. Carney.
`______________________
`
`Decided: February 18, 2014
`______________________
`
`
`BRIAN R. MATSUI, Morrison & Foerster, LLP, of Wash-
`ington, DC, argued for plaintiff-appellant. With him on
`the brief was DEANNE E. MAYNARD. Of counsel on the
`brief was CHARLES S. BARQUIST, of Los Angeles, Califor-
`nia.
`
`BRENTON R. BABCOCK, Knobbe, Martens, Olson &
`Bear, LLP, of Irvine, California, argued for defendants-
`appellees. With him on the brief was NICHOLAS M.
`ZOVKO.
`
`Page 1
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`Össur Ex. 1041
`Össur v. Otto Bock
`Case IPR2014-00145
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`

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`Case: 13-1650 Document: 41-2 Page: 2 Filed: 02/18/2014
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` OTTO BOCK HEALTHCARE LP v. OSSUR HF
`
`______________________
`
`Before LOURIE, DYK, and WALLACH, Circuit Judges.
`LOURIE, Circuit Judge.
`Otto Bock HealthCare LP (“Otto Bock”) appeals from
`the decision of United States District Court for the Cen-
`tral District of California denying a motion for a prelimi-
`nary injunction against Össur HF and Össur Americas,
`Inc. (“Össur”) because Otto Bock is unlikely to succeed on
`the merits of
`its
`infringement claim.
` Otto Bock
`HealthCare LP v. Össur HF and Össur Ams., Inc., No. 13-
`CV-00891, 2013 WL 4828791 (C.D. Cal. Aug. 22, 2013).
`Because the district court did not abuse its discretion in
`view of the construed claim terms, we affirm.
`BACKGROUND
`Otto Bock owns U.S. Patent 6,726,726 (the “’726 pa-
`tent”), which is directed to an apparatus and method for
`managing residual limb volume in an artificial limb. ’726
`patent col. 1 ll. 15–18. The claimed invention prevents
`volume loss in the amputee’s residual limb that results
`from weight-bearing forces placed on that limb. Id. The
`’726 patent describes a vacuum socket for amputees that
`incorporates, inter alia, a liner, a single socket, and a
`vacuum source to draw the residual limb into firm and
`total contact with the socket. Id. col. 4 ll. 39–60. The ’726
`patent further incorporates by reference U.S. Patent
`Application 09/534,274 (the “’274 application”), which
`discloses a combination multi-chamber piston/cylinder
`pump and shock absorber to maintain the vacuum. Id.
`col. 13 ll. 7–8.
`Claim 1 is exemplary and reads as follows:
`1. In an artificial limb for amputees who
`have a residual limb, an apparatus for managing
`residual limb volume, wherein application of a
`vacuum prevents loss of residual limb volume due
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`OTTO BOCK HEALTHCARE LP v. OSSUR HF
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`to weight-bearing pressures and locks the residual
`limb to the artificial limb without causing swell-
`ing of the residual limb, the apparatus compris-
`ing:
`(a) a flexible liner having a cavity with a volume
`less than that of the residual limb, whereby the
`liner is tensioned into a total contact relation-
`ship with the residual limb;
`(b) a single socket with a volume and shape to re-
`ceive a substantial portion of the residual limb
`and the liner, the socket having a cavity
`adapted to receive the residual limb and the
`liner;
`(c) a vacuum source connected to the socket cavity
`between the liner and the socket, wherein ap-
`plication of the vacuum source to the socket
`cavity draws the residual limb and liner into
`firm and total contact with the socket, thereby
`locking the residual limb to the socket without
`causing swelling of the residual limb into the
`socket;
`(d) a seal means for sealing the socket cavity;
`(e) a means to maintain a vacuum in the socket
`cavity, in the presence of some air leakage past
`the seal means; and
`(f) further comprising a thin sheath between the
`liner and the socket, to assist the even distribu-
`tion of vacuum in the cavity about the liner;
`wherein application of the vacuum source of the
`socket cavity prevents the loss of residual limb
`volume due to weight-bearing pressures.
`’726 patent col. 14 ll. 35–65 (emphases added). Claims 6,
`9, 15, and 18, which are dependent, also require a “seal
`means” and a “means to maintain a vacuum.” Id. col. 15 l.
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` OTTO BOCK HEALTHCARE LP v. OSSUR HF
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`9–col. 16 l. 8. Those claim limitations are crucial to this
`appeal.
`Claims 1 and 10 recite a “seal means for sealing the
`socket cavity,” and claims 1 and 11 recite a “means to
`maintain [a] vacuum in the [socket] cavity. ’726 patent
`col. 14 l. 55–col. 15 l. 50. Claims 6 and 18 depend from
`Claims 1 and 10, respectively, and further limit the “seal
`means” to an “annular seal.” Id. col. 15 l. 9–col. 16 l. 17.
`Claims 9 and 15 depend from claims 1 and 11, respective-
`ly, and further limit the “means to maintain a vacuum” to
`a “weight-actuated vacuum pump.” Id. col. 15 l. 20–col.
`16 l. 7.
`Össur makes mechanical vacuum pump prosthetic
`products, including the Iceross Seal-In® V liner and
`UnityTM vacuum suspension module. Otto Bock, 2013 WL
`4828791 at *2. The Iceross Seal-In® V liner compensates
`for the volume fluctuations and shape changes of an
`amputee’s residual limb by expanding and exerting pres-
`sure against the interior socket wall. A “dual-seal” mech-
`anism prevents the outer surface of the Iceross Seal-In® V
`liner from fully contacting the sockets, resulting in vary-
`ing levels of pressure from the liner against the socket.
`Össur’s UnityTM module uses a heel-actuated membrane
`to create a vacuum. The UnityTM module in combination
`with the Iceross Seal-In® V liner can be used to create an
`artificial limb for amputees.
`Otto Bock sued Össur for infringement of claims 6, 9,
`15, and 18 of the ’726 patent by importing, selling, and
`offering for sale and use in the United States the follow-
`ing combination of Össur products: (1) the Iceross Seal-
`In® V liner; (2) the Re-Flex Rotate Foot or Re-Flex Shock;
`and (3) the UnityTM vacuum pump module and valve
`(collectively the “Accused Products”). Id. at *2. Otto Bock
`moved for a preliminary injunction. Id. at *1.
`The district court construed the two means-plus-
`function claim limitations pursuant to 35 U.S.C. § 112, ¶ 6
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`and found that Otto Bock was unlikely to succeed on the
`merits of its infringement claim.* Id. at *3–6. Agreeing
`with Otto Bock’s expert Dr. Gard, the court construed
`“seal means” as an annular seal with a narrow ring
`around the liner that has a rectangular cross-section. Id.
`The court then concluded that Otto Bock failed to clearly
`show that Össur’s Seal-In® V liner’s membrane seal
`performed the sealing function in substantially the same
`way as the annular seal disclosed in the ’726 patent. Id.
`at *4.
`Next, the district court construed “means to maintain
`a vacuum.” Id. The court noted that the “weight-
`actuated vacuum pump” limitation in claims 9 and 15
`might cover an indefinite number of structures, but found
`that the term should be informed by the written descrip-
`tion’s disclosure that a vacuum-maintaining means may
`take the form of a “weight-actuated vacuum pump as
`disclosed in [the ’274 application].” Id. at *5. The court
`then concluded that Össur’s UnityTM module and the
`weight-actuated vacuum pump as disclosed in the ’274
`application were neither structurally identical nor equiva-
`lent. Id. at *5–6.
`Accordingly, the district court found that Otto Bock
`was unlikely to prevail in showing that Össur’s accused
`products satisfied the “seal means” limitation in claims 6,
`9, 15, and 18 and the “means to maintain a vacuum”
`limitation in claims 6, 9, and 15 because Össur’s products
`used a different seal means and did not use a pis-
`ton/cylinder pump as a means to maintain a vacuum. Id.
`
`* Paragraph 6 of 35 U.S.C. § 112 was replaced with
`newly designated § 112(f) when § 4(c) of the Leahy-Smith
`America Invents Act (“AIA”), Pub. L. No. 112-29, took
`effect on September 16, 2012. Because this case was filed
`before that date, we will refer to the pre-AIA version of
`§ 112.
`
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`at *6. The court thus denied Otto Bock’s motion for a
`preliminary injunction. Id.
`Otto Bock appealed. We have jurisdiction pursuant to
`28 U.S.C. § 1295(a)(1).
`DISCUSSION
`We review a grant or denial of a preliminary injunc-
`tion for abuse of discretion.
` Amazon.com, Inc. v.
`Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir.
`2001). An abuse of discretion is only established if “the
`court made a clear error of judgment in weighing relevant
`factors or exercised its discretion based upon an error of
`law or clearly erroneous factual findings.” Sanofi-
`Synthelabo v. Apotex, Inc., 470 F.3d 1368, 1374 (Fed. Cir.
`2006). We address claim construction as a matter of law,
`which we review without deference. See Cybor Corp. v.
`FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en
`banc).
`The district court’s denial of a preliminary injunction
`as unlikely to succeed on the merits was premised in part
`on its interpretation of the limitations “seal means” and
`“means for maintaining a vacuum” as claimed in Otto
`Bock’s ’726 patent. To construe a claim limitation, the
`trial court must determine the meaning of any disputed
`words from the perspective of one of ordinary skill in the
`pertinent art at the time of filing. Phillips v. AWH Corp.,
`415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). Although
`it is unacceptable to import limitations into a claim from
`the written description, “the specification ‘is always
`highly relevant to the claim construction analysis. Usual-
`ly, it is dispositive; it is the single best guide to the mean-
`ing of a disputed term.’” Id. at 1315 (quoting Vitronics
`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.
`1996)).
`In order to establish infringement of a means-plus-
`function term, a patentee must show that “the relevant
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`OTTO BOCK HEALTHCARE LP v. OSSUR HF
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`structure in the accused device perform[s] the identical
`function recited in the claim and [is] identical or equiva-
`lent to the corresponding structure in the specification.”
`Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259,
`1267 (Fed. Cir. 1999) (citations omitted).
`I. Seal Means
`Otto Bock argues that the term “seal means” in claims
`6, 9, 15, and 18 of the ’726 patent is defined broadly in the
`dependent claims and the written description as “an
`annular seal between the liner and the socket.” Össur
`responds that the patent expressly links “a narrow ring
`with a rectangular cross section” to the function of “seal-
`ing the socket activity,” a more narrow interpretation.
`We agree with Össur that the ’726 patent expressly
`links two structures, namely, the polyurethane sleeve and
`an annular seal, to the function of “sealing the socket
`cavity.” ’726 patent col. 6 ll. 49–54; col. 12 ll. 55–58; col.
`13 ll. 24–41. No other structures are described in the
`written description for performing the sealing function.
`Our focus, therefore, is on the construction of “annular
`seal.”
`The ’726 patent depicts an “annular seal” as a narrow
`ring with a rectangular cross-section around the liner in
`figures 17, 18, and 20. “The annular seal . . . is adapted to
`sealingly engage the suspension sleeve 86, producing a
`seal against the vacuum in cavity 62 at the point of con-
`tact with the suspension sleeve 86.” Id. col. 13 ll. 27–31.
`In another embodiment, “the annular seal 140 does not
`make contact with the suspension sleeve 86, but rather
`makes contact with the inner wall 63 of the socket 60, and
`makes a seal at that point.” Id. col. 13 ll. 35–38. These
`two passages, in combination with figures 17, 18, and 20,
`make clear that the “annular seal” is properly construed
`as a narrow ring with a rectangular cross-section.
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` OTTO BOCK HEALTHCARE LP v. OSSUR HF
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`Although dependent claims 6 and 18 recite “wherein
`the seal means further comprises an annular seal be-
`tween the liner and the socket,” those claims do not stand
`alone. Phillips, 415 F.3d at 1315. The claims must be
`interpreted in light of the written description, which
`requires a more narrow interpretation of the term “annu-
`lar seal.” The district court thus did not err in construing
`the term “means for sealing” to mean a narrow ring
`around the liner that has a rectangular cross-section.
`Össur’s Seal-In® V liner does perform the function of
`sealing the socket cavity; however, the disclosed annular
`seal in the ’726 patent and the Seal-In® V liner are not
`structurally identical to the “seal means” as disclosed.
`The Seal-In® V liner’s membrane seal is not structurally
`identical to the annular seal disclosed in the ’726 patent
`because, unlike in the patent, the membrane seal (1) has
`a wide band of contact with the socket; (2) has two narrow
`seal rings on the exterior surface; (3) has pliable blades on
`the interior surface; (4) has chamfered edges; and (5) is
`bonded to a recess in the liner.
`The Seal-In® V liner’s membrane is also not structur-
`ally equivalent to the annular seal disclosed in the ’726
`patent. First, the membrane seal’s “dual-sealing mecha-
`nism” performs the sealing function in a substantially
`different manner from the smooth-surface annular seal
`disclosed in the patent. Össur’s membrane seal does not
`completely press against the socket’s interior wall; rather,
`the two outer seal rings press against the interior wall of
`the socket. Otto Bock, 2013 WL 4828791 at *3. According
`to Otto Bock’s expert, Dr. Gard, other portions of the
`membrane seal’s wide surface, however, “may not press
`against the socket, and further may not touch the socket
`wall at all.” Id. Second, the interior blades cause the
`Seal-In® V liner’s membrane seal to perform the sealing
`function differently. Dr. Gard found that “when a force is
`exerted to pull the liner out of a socket, the blades expand
`outwardly, which in turn creates extra pressure of the
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`OTTO BOCK HEALTHCARE LP v. OSSUR HF
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`seal wall against the socket wall, thereby making it more
`difficult to lose suspension of the liner.” Id. The district
`court thus did not clearly err in finding that the Seal-In®
`V liner’s membrane seal does not perform the sealing
`function in substantially the same way as the annular
`seal disclosed in the ’726 patent.
`II. Means to Maintain a Vacuum
`Otto Bock argues that the term “means to maintain a
`vacuum” in claims 6, 9, and 15 of the ’726 patent is de-
`fined in the dependent claims and the written description
`as “a weight-actuated vacuum pump” and that the claims
`therefore encompass all weight-actuated vacuum pumps.
`Otto Bock also asserts that Atmel Corp. v. Info Storage
`Devices, 198 F.3d 1374 (Fed. Cir. 1999), forecloses the use
`of a patent application incorporated by reference to add
`structure to a means-plus-function claim. Appellant Br.
`31–32. Össur responds that the only structure described
`in the written description of the patent is “a weight actu-
`ated vacuum pump and shock absorber as disclosed in
`[the ’274 application].”
`We agree with Össur. The parties do not dispute that
`the key structure at issue is the “weight-actuated vacuum
`pump” as claimed in claims 9 and 15 and as further
`disclosed in the specification in combination with an
`incorporation by reference to the ’274 application. Id. at
`*4. Although it is true that claims 9 and 15 do not refer to
`the ’274 application, “[those] claims, of course, do not
`stand alone.” Phillips, 415 F.3d at 1315. The only refer-
`ence in the specification to the term states: “To maintain
`the vacuum in the cavity, either a regulator means 80, a
`vacuum reservoir 110, or a weight-actuated vacuum pump
`and shock absorber as disclosed in [the ’274 application],
`may be employed.” ’726 patent col. 13 ll. 5–8 (emphasis
`added). And all of the claims must be interpreted in light
`of the written description, which requires an interpreta-
`tion that includes the ’274 application.
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`Further, Otto Bock’s reliance on Atmel is misplaced.
`Atmel only foreclosed the use of the content of a nonpa-
`tent publication incorporated by reference to add struc-
`ture to a means-plus-function claim. Atmel, 198 F.3d at
`1382. Atmel did not purport to include U.S. patent appli-
`cations. In fact, 37 C.F.R. 1.57(d) specifically envisions
`using a U.S. patent application incorporated by reference
`to define structure for the purpose of 35 U.S.C. § 112, ¶ 6.
`The court thus did not err in using the ’274 application’s
`incorporation by reference to construe the term “means
`for maintaining a vacuum” to mean a “weight-actuated
`vacuum pump as disclosed in [the ’274 application].”
`In view of this claim construction, we further agree
`with the analysis of the district court that the structures
`of Össur’s UnityTM module and the weight-actuated
`vacuum pump as disclosed in the ’274 application are
`neither identical nor equivalent. The structures are not
`identical because the vacuum pump disclosed in the ’274
`application has a piston/cylinder module that is integrat-
`ed into the pylon of the prosthetic limb, ’274 application
`col. 7 ll. 5–17, whereas the UnityTM module attaches to
`the foot module and has no piston and no preexisting air
`chamber. Otto Bock, 2013 WL 4828791 at *5.
`The two structures are not equivalent because they
`maintain the vacuum in different ways. The pump dis-
`closed in the ’274 application draws air out of the socket
`cavity by using the amputee’s body weight to force a
`piston downward within a cylinder against a chamber of
`compressed air. Id. col. 14 ll. 55–col. 15 l. 4. The UnityTM
`module, in contrast, draws air from the socket cavity by
`using heel pressure to pull apart two blades located on the
`foot module, thereby deforming an elastic membrane that
`has zero, or near-zero, air chamber volume in its unde-
`formed state. Otto Bock, 2013 WL 4828791 at *5. The
`district court thus did not clearly err in finding that the
`structure of the UnityTM module was not identical or
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`OTTO BOCK HEALTHCARE LP v. OSSUR HF
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`equivalent to the structure of the weight-actuated vacuum
`pump disclosed in the ’274 application.
`CONCLUSION
`Because the Accused Products do not satisfy either
`
`the “seal means” or “means to maintain a vacuum” limita-
`tions of the ’726 patent as properly construed, Otto Bock
`is unlikely to establish infringement of asserted claims 6,
`9, 15, and 18. We therefore conclude that the district
`court did not abuse its discretion in denying preliminary
`injunctive relief. Thus, the decision of the district court
`denying the motion for a preliminary injunction is af-
`firmed.
`
`AFFIRMED
`
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`Case: 13-1650 Document: 42 Page: 1 Filed: 02/21/2014
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`February 21, 2014
`
`
`
`ERRATA
`______________________
`
`Appeal No. 2013-1650
`
`OTTO BOCK HEALTHCARE LP
`
`v.
`
`ÖSSUR HF AND ÖSSUR AMERICAS, INC.,
`
`Decided: February 14, 2014
`Nonprecedential Opinion
`______________________
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