In the Matter of
`CERTAIN SOFT-EDGED TRAMPOLINES
`AND COMPONENTS THEREOF
`
`337-TA-908
`
`Publication 4867
`February 2019
`U.S. International Trade Commission
`
`Washington, DC 20436
`
`

`

`U.S. International Trade Commission
`
`COMMISSIONERS
`
`Meredith Broadbent, Chairman
`Dean Pinkert, Vice Chairman
`Irving Williamson, Commissioner
`David Johanson, Commissioner
`Rhonda Schmidtlein, Commissioner
`
`
`Address all communications to
`Secretary to the Commission
`United States International Trade Commission
`Washington, DC 20436
`
`

`

`U.S. International Trade Commission
`
`Washington, DC 20436
`www.usitc.gov
`
`In the Matter of
`CERTAIN SOFT-EDGED TRAMPOLINES
`AND COMPONENTS THEREOF
`
`337-TA-908
`
`Publication 4867
`
`February 2019
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`In the Matter of
`
`C E R T A IN SOFT-EDGED
`TRAMPOLINES AND COMPONENTS
`T H E R E OF
`
`Investigation No. 337-TA-908
`
`NOTICE OF FINAL DETERMINATION OF NO VIOLATION;
`TERMINATION OF T HE INVESTIGATION
`
`AGENCY: U.S. International Trade Commission.
`
`ACTION:
`
`Notice.
`
`SUMMARY: Notice is hereby given that the U.S. International Trade Commission has
`determined that no violation of section 337 has been proven in the above-captioned investigation.
`The Commission's determination is final, and this investigation is terminated.
`
`F OR F U R T H ER INFORMATION CONTACT: Lucy Grace D. Noyola, Office ofthe
`General Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C.
`20436, telephone 202-205-3438. Copies of non-confidential documents filed in connection with
`this investigation are or will be available for inspection during official business hours (8:45 a.m.
`to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street,
`S.W., Washington, D.C. 20436, telephone 202-205-2000. General infonnation concerning the
`Commission may also be obtained by accessing its Internet server (http://www.usitc.gov). The
`public record for this investigation may be viewed on the Commission's electronic docket
`(EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information on this
`matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810.
`
`SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on
`January 30, 2014, based on a complaint filed by Springfree Trampoline, Inc. of Markham,
`Canada, Springfree Trampoline USA Inc. of Markham, Canada, and Spring Free Limited
`Partnership of Markham, Canada (collectively, "Springfree"). 79 Fed. Reg. 4956 (Jan. 30,
`2014). The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19
`U.S.C. § 1337, in the importation, sale for importation, or sale within the United States after
`importation of certain soft-edged trampolines and components thereof by reason of infringement
`of claims 1 and 13 of U.S. PatentNo. 6,319,174 ("the '174 patent"). Id. The notice of
`investigation names Vuly Trampolines Pty. Ltd. of Brisbane, Australia ("Vuly") as the sole
`respondent. Id. at 4957. The Office of Unfair Import Investigations did not participate in the
`investigation. Id.
`
`

`

`On December 5, 2014, the administrative law judge ("ALJ") issued a final ID finding no
`violation of section 337. On December 18, 2014, the ALJ issued a recommended determination
`("RD") on remedy and bonding. On December 22, 2014, Springfree and Vuly filed petitions for
`review challenging various findings in the final ID. On January 2, 2015, the parties filed
`responses. The Commission did not receive any post-RD public interest comments from the
`public or the parties.
`
`On February 5, 2015, the Commission determined to review the final ID in part and
`requested additional briefing from the parties on certain issues. The Commission also solicited
`briefing from the parties and the public on the issues of remedy, bonding, and the public interest.
`On February 19, 2015, the parties filed briefs addressing the Commission's questions and the
`issues of remedy, bonding, and the public interest. On March 2, 2015, the parties filed reply
`briefs.
`
`Having examined the record of this investigation, including the ALJ's final ID and
`submissions from the parties, the Commission has determined to affirm the ALJ's determination
`of no violation. As explained more fully in the forthcoming Commission opinion, the
`Commission has determined to construe "flexible mat" in the first instance, modify the ALJ's
`construction of "first retaining means," and affirm, but on modified grounds, the ALJ's
`construction of "flexible elongated rod." The Commission has determined to affirm, but on
`modified grounds, the ALJ's findings that Vuly's products infringe claim 13, that Springfree's
`products practice claim 13, that claim 1 is not invalid as anticipated by the prior art, that claim 13
`is invalid as anticipated by the prior art, and that claims 1 and 13 are not invalid due to lack of
`enablement. The Commission has determined to reverse the ALJ's findings that Vuly's products
`infringe claim 1, that Springfree's products do not practice claim 1, and that Springfree did not
`satisfy the technical prong of the domestic industry requirement as to claims 1 and 13. The
`Commission has determined to affirm the ALJ's finding that Springfree did not satisfy the
`economic prong of the domestic industry requirement. The Commission has determined not to
`reach the issue of whether claim 13 is obvious.
`
`The authority for the Commission's determination is contained in section 337 of the
`Tariff Act of 1930, as amended (19 U.S.C. § 1337), and in Part 210 ofthe Commission's Rules
`ofPractice and Procedure (19 C.F.R. Part 210).
`
`By order of the Commission.
`
`Issued: April 6, 2015
`
`Lisa R. Barton
`Secretary to the Commission
`
`

`

`Page 1 - Certificate of Service
`
`C E R T A IN SOFT-EDGED TRAMPOLINES AND COMPONENTS
`T H E R E OF
`
`337-TA-908
`
`C E R T I F I C A TE OF S E R V I CE
`
`I, Lisa R. Barton, hereby certify that the attached COMMISSION NOTICE has been served by
`hand upon the following parties as indicated, on April 6, 2015.
`
`Lisa R. Barton, Secretary
`U.S. International Trade Commission
`500 E Street, SW
`Washington, DC 20436
`
`On Behalf of Complainants Springfree Trampoline,
`Inc., Springfree Trampoline USA Inc., and Spring
`Free Limited Partnership:
`
`Kevin Wheeler, Esq.
`FISH & RICHARDSON P.C.
`1425 K Street, NW, 11th Floor
`Washington, DC 20005
`
`On Behalf of Respondent Vuly Trampolines Pry. Ltd.:
`
`Christine E. Lehman, Esq.
`FINNEGAN, HENDERSON, FARABOW, G A R R ET
`& DUNNER L LP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`
`• Via Hand Delivery
`• Via Express Delivery
`m Via First Class Mail
`• Other:
`
`• Via Hand Delivery
`• Via Express Delivery
`
`M Via First Class Mail
`• Other:
`
`

`

`PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMIVIISSION
`Washington, D.C.
`
`In the Matter of
`
`€ERTAIN SOFT_EDGED
`TRAMPOLINES AND COMPONENTS
`THEREOF
`
`Investigation No. 337-TA-908
`
`COMMISSION OPINION
`
`This investigation concerns U.S. Patent No. 6,319,174 (“the ’l74 patent”), which relates
`
`to a soft-edged trampoline. The Commission determined to review in part the final initial
`
`detennination (“ID”) of the presiding administrative law judge (“ALJ”) finding no violation of
`
`section 337 of the Tariff Act of 1930, as amended, l9 U.S.C. § 1337. For the reasons set forth
`
`/
`
`below, we affirm the ALJ’s finding of no violation.
`
`'
`
`I.
`
`BACKGROUND
`
`A.
`
`Procedural History
`
`The Commission instituted this investigation on January 30, 2014, based on a complaint
`
`filed by Springfree Trampoline, Inc. of Markham, Canada, Springfree Trampoline USA lnc. of
`
`Markham, Canada, and Spring Free Limited Partnership of Markham, Canada (collectively,
`
`“Springfree”). 79 Fed. Reg. 4956 (Jan. 30, 2014). The complaint alleges violations of section
`
`337 in the importation, sale for importation, or sale Withinthe United States after importation of
`
`certain soft-edged trampolines and components thereof by reason of infringement of claims 1
`
`and 13 of the ’174 patent. Id. The notice of investigation names Vuly Trampolines Pty. Ltd. of
`
`Brisbane, Australia (“Vuly”) as the sole respondent. Id. at 4957. The Office of Unfair Import
`
`Investigations did not participate in the investigation. Id.
`
`

`

`PUBLIC VERSION
`
`On December 5, 2014, the ALJ issued a final ID finding no violation of section 337.
`
`Specifically, the ALJ found claim 1 of the ’l 74 patent to be infringed, not practiced by
`
`Springfree’s products, and not invalid. The ALJ found claim 13 to be infringed, practiced by
`
`Springfree’s products, and invalid as anticipated by the prior art. Because he found claim 13
`
`invalid, the ALJ found that Springfree did not meet the technical prong of the domestic industry
`
`requirement as to claim 13. The ALJ further found that Springfree failed to satisfy the economic
`
`prong of the domestic industry requirement.
`
`On December 18, 2014, the ALJ separately issued a Recommended Determination on
`
`Remedy and Bond (“RD”) in the event that the Commission found a section 337 violation.
`
`Specifically, the ALJ recommended that a limited exclusion order issue with an exception for
`
`replacement, repair, and warranty parts, and that the bond rate be set at zero percent.
`
`On December 22, 2014, the parties filed petitions for review of the final ID. Springfree
`
`sought review of the ALJ’s construction of a single tenn, the ALJ’s findings conceming the
`
`technical and economic prongs of the domestic industry requirement, and the ALJ’s finding of
`
`invalidity of claim 13. Vuly filed a contingent petition for review of nearly all of the ALJ’s
`
`findings that were adverse to it. On January 2, 2015, the parties filed responses.
`
`On February 5, 2015, the Commission determined to review the final ID in pan and
`
`requested additional briefing from the parties on certain issues. The Commission also solicited
`
`briefing from the parties and the public on the issues of remedy, bonding, and the public interest.
`
`On February 19, 2015, the parties filed briefs in response to the Commission’s request. On
`
`March 2, 2015, the parties filed reply briefs.
`
`2
`
`

`

`_
`
`PUBLIC VERSION
`
`B.
`
`Patent and Products at Issue
`
`The ’174 patent explains that conventional trampolines use a mat that is surrounded by a
`
`metal frame such that springs attached to the frame are in the same plane as the mat. JX-1 at
`
`1:20-28. This conventional design carries the risk of users landing on the springs, or the gaps
`
`between the springs, instead of the mat. Id. The present invention provides an improved
`
`trampoline that ameliorates such risks of injury. Id. at 1:43-45.
`
`The patented invention incorporates a flexible mat supported above a support frame by
`
`flexible rods. Id. at Abstract. Each rod is secured at one end to the mat and at the other end to
`
`the support frame. Id. Figure 1 of the ’174 patent (shown below) depicts a preferred
`
`embodiment in the fonn of a “trampoline (1) comprised of a flexible mat (2), a support element
`
`in the form of an annular ring frame (3) and a plurality of flexible elongated rods (4) (having a
`
`t\2-\\
`
`first and second ends).” Id. at 2:42-46.
`
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`
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`I
`
`Springfree asserts claims 1 and 13 of the ’174 patent.
`
`ID at 13. Those claims read as
`
`follows:
`
`1. A trampoline comprising
`a flexible mat with a plurality of first retaining means located around the
`mat perimeter,
`a plurality of second retaining means located about the periphery of a
`support element and
`a plurality of flexible elongated rods,
`
`3
`
`

`

`PUBLIC VERSION
`
`such that in use on a flat horizontal surface, said mat forms a horizontal
`plane having an upper contact surface and a lower non-contact surface
`orientated vertically above said support element, wherein each said
`flexible rod is retained at a first and second end by said first and
`second retaining means respectively.
`
`i
`
`13. A trampoline comprising:
`a flexible mat
`a support element
`a plurality of spaced flexible elongated rods secured between said mat and
`said support element so as to support said mat above said support
`element.
`
`JX-1 at 4:38-49, 6:1-9.
`
`The application for the ’174 patent was filed on October 26, 2000, and the claims were
`
`allowed as filed without amendment or remarks. JX-1; see JX-2 at 99.
`
`Springfree Trampoline, Inc. is the exclusive licensee of the “I74 patent. ID at 1. Spring
`
`Free Trampolines Limited Partnership sub-licensed the right to practice the patent from
`
`Springfree Trampoline, Inc. Id. Springfree alleges that a number of its trampolines practice
`
`claims l and 13 ofthe ’174 patent. Id. at 2.
`
`The accused products are trampolines marketed and sold under the name “Vuly
`
`Thunder.” Id.
`
`II.
`
`ANALYSIS
`
`A.
`
`Standards on Review
`
`The Commissi0n’s review is conducted de nova. Certain Polyethylene Terephthalaie
`
`Yarn and Products Containing Same, Inv. No. 337-TA-457, USITC Pub. No. 3550, Comm’n Op
`
`at 9 (June 18, 2002). Upon review, “the Commission has ‘all the powers which it would have in
`
`making the initial determination,’ except where the issues are limited on notice or by rule.”
`
`Certain Flash Memory Circuits and Products Containing Same, Inv. No. 337-TA-382, USITC
`
`Pub. No. 3046, Comm’n Op. at l4 (June 26, 1997) (quoting Certain Acid- Washed Denim
`
`4
`
`

`

`PUBLIC VERSION
`
`Garments and Accessories, Inv. No. 337-TA-324, USITC Pub. No. 2576, Comm’n Op. at 5
`
`(Aug. 28, 1992)). Upon review, “the Commission may affirm, reverse, modify, set aside or
`
`remand for further proceedings, in whole or in part, the initial determination of the administrative
`
`law judge.” 19 C.F.R. § 21O.45(c). “The Commission also may make any findings or
`
`conclusions that in its judgment are proper based on the record in the proceeding.” Id.
`
`B.
`
`Claim Construction
`
`The Commission determined to review the ALJ’s construction of “flexible mat,” “first
`
`retaining means,” and “flexible elongated rod.”
`
`1.
`
`“flexible mat” (claims 1 and 13)
`
`The ALJ did not provide a construction of the term “flexible mat,” which appears in both
`
`of the asserted claims. ID at 15-16. The ALJ, however, rejected Vuly’s proposed construction,
`
`which requires a mat larger in area than the support element. Id. The ALJ did not address
`
`Springfree’s proposed construction, but apparently adopted it when he relied on Springfree‘s
`
`expert testimony in finding infringement. See id. at 48.
`
`Claims are interpreted in view of the claim language, the specification, and the
`
`prosecution history. Phillips v. AWHCorp, 415 F.3d 1303, 1313-17 (Fed. Cir. 2005) (en bane).
`
`In construing the claims, a tribunal may also seek guidance from extrinsic evidence such as
`
`expert testimony, dictionaries, and treatises. Id. at 1317-18.
`
`We find that the plain and ordinary meaning of “flexible mat” in the context of the entire
`
`patent is a mat that is capable of being flexed. To begin with, the claims of the ’174 patent are
`
`“valuable sources of enlightenment as to the meaning of [the] claim term.” See id. at 1314.
`
`“[T]he presence of a dependent claim that adds a particular limitation gives rise to a presumption
`
`that the limitation in question is not present in the independent claim.” Id. at 1315. This
`
`doctrine of claim differentiation is at its “strongest” where the limitation sought to be read into
`
`5
`
`

`

`PUBLIC VERSION
`
`an independent claim already appears in a dependent claim. Liebel-Flarsheim C0. v. Medrad,
`
`Inc., 358 F.3d 898, 910 (Fed. Cir. 2004). As the ALJ noted, the language of claims 1 and 13
`
`does not require that the mat have a larger area than the support element. See ID at 15. By
`
`contrast, the language of claim 5, which depends on claim 1 and recites a “mat [that] is larger in
`
`plan view than said support element,” strongly suggests, and is consistent with, a construction of
`
`the term that does not include a size limitation. See id. at 16; JX-1 at 4:59-60.
`
`The words of a claim are generally given their ordinary and customary meaning as
`
`Luiderstoodby a person of ordinary skill in the art when read in the context of the specification
`
`and prosecution history. See Phillips, 415 F.3d at 1313. “The written description and other parts
`
`of the specification, for example, may shed contextual light on the plain and ordinary meaning;
`
`however, they cannot be used to narrow a claim term to deviate from the plain and ordinary
`
`meaning unless the inventor acted as his own lexicographer or intentionally disclaimed or
`
`disavowed claim scope.” Aventis Pharms. Inc. v. Amino Chems. Ltd, 715 F.3d 1363, 1373 (Fed.
`
`Cir. 2013). The standards for finding lexicography and disavowal are “exacting.” GE Lighting
`
`Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014). Except in those two
`
`circumstances, the “patentee is free to choose a broad tenn and expect to obtain the full scope of
`
`its plain and ordinary meaning.” Thorner v. Sony Computers Entm ’tAm. LLC, 669 F.3d 1362,
`
`1367 (Fed. Cir. 2012) (“It is the claims that define the metes and bounds of the patentee’s
`
`invention”).
`
`I
`
`There is no lexicography or disavowal in this case. The specification does not clearly
`
`define “flexible mat” or include any indication of a disavowal. The claims of the ’174 patent
`
`were allowed as filed without amendment or remarks by the patentee, so the prosecution history
`
`likewise lacks a definition or any disavowal of the scope of this term. See JX-2 at 99.
`
`6
`
`

`

`PUBLIC VERSION
`
`.
`
`The patent’s detailed disclosure of a single embodiment does not rise to the level of
`
`lexicography or disavowal. “[I]t is improper to read limitations from a preferred embodiment
`
`described in the specification—even if it is the only embodimentiinto the claims absent a clear
`
`indication in the intrinsic record that the patentee intended the claims to be so limited.” Liebel­
`
`Flarsheim, 358 F.3d at 913; GE Lighting Solutions, 750 F.3d at 1309 (“A patent that discloses
`
`only one embodiment is not necessarily limited to that embodiment”).
`
`Vuly argues that the specification’s statements regarding the “present invention” compel
`
`a construction requiring a mat that is larger than the support element. Vuly Resp.] at 1-2, 4-6;
`
`Vuly Pet.2 at 17-18. As Vuly notes, the Federal Circuit has found disavowal or disclaimer based
`
`on statements by the patentee describing the “present invention” in a way that limits the claims.
`
`See, e.g., Pacing Techs, LLC v. Garmin 1nt’l, Inc., _ F.3d _, 2015 WL 668828, at *3 (Fed. Cir.
`
`Feb. 18, 2015); Honeywell Int ’l,Inc. v. 1TTIndus., Inc., 452 F.3d 1312, 1318 (Fed. Cir. 2006);
`
`Edwards LzfiasciencesLLC v. Cook Inc, 582 F.3d 1322, 1327-31 (Fed. Cir. 2009). The Federal
`
`Circuit has found disclaimer when the specification described a feature as “an important feature
`
`of the present invention.” SafeTCare Mfg, Inc. v. Tele-Made, Ina, 497 F.3d 1262, 1269-70
`
`(Fed. Cir. 2007). The Federal Circuit also has found disclaimer when the “inventor makes clear
`
`that [an] attribute of the invention is important in distinguishing the invention over the prior art,”
`
`id., or when the patent repeatedly disparaged an embodiment as inadequate and then detailed the
`
`1Respondent Vuly’s Response to the Commission Determination to Review the Final Initial
`Determination in Part and Written Submission on the Issues Under Review and on Remedy,
`Public Interest, and Bonding.
`
`2 Respondent Vu1y’s Contingent Petition to Review the Initial Determination on Violation of
`Section 337 and Recommended Determination on Remedy and Bond.
`
`7
`
`

`

`PUBLIC VERSION
`
`“deficiencies [that] make it difficult” to use, Chi. Bd. Options Exch., Inc. v. Int ’lSec. Exch., LLC,
`
`677 F.3d 1361, 1372 (Fed. Cir. 2012).
`
`Such circumstances are not present in this case. The few references in the ’174 patent
`
`concerning the size of the mat pertain only to the preferred embodiment of the invention. See
`
`JX-1 at 2:3-6 (“The diameter of said mat preferably exceeds the said base . . . .”), 2:42-43
`
`(“FIGS. 1-6 show a preferred embodiment of the present invention . . . .”), 3:45-49 (“The mat (2)
`
`is diametrically larger than . . . the said ring frame (3). This configuration (as shown in FIGS. 1­
`
`3) produces an inverted frustoconical shaped trampoline . . . .”). The specification does not
`
`describe the mat’s size as the present invention or as essential to the present invention. Nor is
`
`there any discussion distinguishing the invention from the prior art based on the mat’s size.
`
`Contrary to Vuly‘s suggestions, the specification’s discussion of the present invention is silent as
`
`to the mat’s size.
`
`Instead, the present invention is described as “a soft-edged trampoline without any
`
`exposed springs adjacent to the bouncing surface.” Id. at 1:6-9. The specification distinguishes
`
`the invention from conventional trampolines with “springs [] in the same plane as the bouncing
`
`surface as the mat, with the attendant risk that the user will land on the springs (and/or the gaps
`
`between springs) instead of the mat.” Id. at 1:20-28, 1:43-45. The specification also states that
`
`the “innovative design of the present invention” results in a bouncing surface that “extends
`
`across the entire upper surface of the trampoline [], Without any exposed springs.” Id. at 4:18-22.
`
`We find that these statements describing the “present invention” do not require a mat larger than
`
`the support element, but rather a mat with a bouncing surface across the trampoline’s upper
`
`surface—without springs or a frame in the same plane.
`
`8
`
`

`

`PUBLIC VERSION
`
`Vuly argues that the ’174 patent does not describe “how one of ordinary skill in the art
`
`can make the trampoline claimed in the ’174 patent without using a mat that is larger than the
`
`support element.” Vuly Resp. at 6; see also Vuly Pet. at 17. This argument is confusing in the
`
`claim construction context. Vuly appears to argue that the ’174 patent does not enable one of
`
`ordinary skill in the art to make and use the claimed invention if the claims were construed
`
`broadly without a mat size limitation. But nowhere in its post-hearing or petition papers did
`
`Vuly argue that claims 1 and 13 are invalid due to lack of enablement of a “flexible mat” or
`
`otherwise argue that a mat of any size would have required undue experimentation. We do not
`
`address such undeveloped arguments, particularly where Vuly bears the burden of establishing
`
`lack of enablement with clear and convincing evidence. In addition, as noted by Springfree, the
`
`’174 patent describes various embodiments, including a trampoline with rods oriented “vertically
`
`upright,” resulting in a mat that is the same size as the support element. See JX-l at 3:57-62;
`
`Springfree Reply3 at 4.
`
`Springfree proposes that we construe “flexible mat” as “sheet or fabric that is tensioned
`
`to provide a botmcing surface.” Although that construction is consistent with the specification
`
`and the purpose of the invention, a bouncing ftmction need not be attributed to the purely
`
`structural term “flexible mat.” An invention claimed in purely structural terms generally resists
`
`functional limitation. Ecolab, Inc. v. Envirochem, Ina, 264 F.3d 1358, 1367 (Fed. Cir. 2001)
`
`(“Where the function is not recited in the claim itself by the patentee, we do not import such a
`
`limitati0n.”).
`
`3 Springfree’s Reply Submission to Vuly’s Responses on the Issues Identified in the Notice of
`Commission Determination to Review the Final Initial Determination in Part.
`
`9
`
`

`

`PUBLIC VERSION
`
`The American Heritage Dictionary defines “flexible” as “[c]apable of being bent or
`
`flexed; pliable” and “[c]apable of being bent repeatedly without injury or damage.” CX-177C at
`
`Q/A 61; CX-147. This dictionary definition further informs our claim construction.
`
`As the Federal Circuit has noted, “[i]n some cases, the ordinary meaning of claim
`
`language as understood by a person of skill in the art may be readily apparent even to lay judges,
`
`and claim construction in such cases involves little more than theiapplication of the widely
`
`accepted meaning of commonly understood Words.” Phillips, 415 F.3d at 1314. This is one of
`
`those cases. Neither party contends that “flexible mat” is a technical tenn of art. Vuly admits as
`
`much. See Vuly Resp. at 3-4 (“[T]here is no special meaning of ‘flexible mat’ known to those in
`
`the trampoline art”). Nor does the patent, read in its entirety, require a more elaborate
`
`construction.
`
`Accordingly, we construe “flexible mat” according to its plain and ordinary meaning as a
`
`mat that is capable of being flexed.
`
`2.
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`“first retaining means” (claim 1)
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`The tenn “first retaining means” appears in claim l of the ’174 patent. The ALJ found
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`that “first retaining means” is a means-plus-function limitation govemed by 35 U.S.C. § 112, 116
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`ID at 19. The ALJ determined that the function of the “first retaining means” is “to retain a first
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`end of a flexible elongated rod.” Id. at 20. The ALJ then identified three corresponding
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`structures in the specification that perform that function: “(1) a pocket or pouch formed with an
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`aperture on the non-contact (a.k.a., lower surface) of the flexible mat; (2) a pouch sewn into the
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`fabric of the mat with an aperture on the non-contact (a.k.a., lower surface) of the flexible mat;
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`or (3) an end piece [sic] and a pouch formed with an aperture on the non-contact (a.k.a., lower
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`surface) of the flexible mat adapted to retain the end piece [sic].” Id. at 25. The ALJ found
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`prosecution history disclaimer based on statements made by the inventor, Dr. Alexander, during
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`the prosecution of a later-filed patent application, U.S. Patent Application No. 12/406,572 (“the
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`’572 application”), which resulted in U.S. Patent No. 8,105,211 (“the ’211 patent”). Id. Relying
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`heavily on Goldenberg v. Cytogen, Ina, 373 F.3d 1158 (Fed. Cir. 2004), the ALJ found that,
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`during the prosecution of the ’572 application, Dr. Alexander had disclaimed the ball-and-socket
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`design of that application from the “first retaining means” of claim 1 of the ’174 patent. ID at
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`23-25.
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`As an initial mater, the parties agree that the “first retaining means” is a means-plus­
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`function limitation that invokes 35 U.S.C. § 112, 116.4 See id. at 19. Construction of a means­
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`plus-function limitation involves two steps. JVW Enters., Inc. v. Im‘eractAccess0ries, 1nc., 424
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`F.3d 1324, 1330 (Fed. Cir. 2005). The first step is determining the claimed function; the second
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`is identifying the corresponding structure in the written description that performs that function.
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`1d. The parties disagree as to whether the ALJ correctly identified both the function and the
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`corresponding structures of “first retaining means.”
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`We turn first to determining the function of “first retaining means.” We “may not
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`construe a means-plus-function limitation by adopting a function different from that explicitly
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`recited in the claim.” Id. at 1331 (internal quotation marks omitted). In addition, we should read
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`means-plus-function claims for their meaning “independent of any working embodiment.” Id.
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`Vuly contends that the function includes retaining an end-piece of a first end of a rod.
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`Vuly Pet. at 22. In support, Vuly relies on testimony by Springfree’s expert that including
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`language referencing the end-pieces “would be a good addition” to the claim construction, as
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`the prior
`4Although this provision has been amended and is now codified as 35 U.S.C. § ll2(f),
`version containing fi 6 applies here because the ’174 patent was filed before Sept. 16, 2012. See
`Leahy-Smith America lnvents Act, Pub. L. No. 112-29 § 4(e), 125 Stat. 284.
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`well as Dr. Alexander’s testimony that the invention would not work without end-pieces attached
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`to the first end of the rod. Id. We reject Vuly’s attempts to add a function that is not recited in
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`the claims or that is supported solely by inventor testimony on a working embodiment. Claim 1
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`recites that “each said flexible rod is retained at a first . . . end by said first . . . retaining means.”
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`IX-1 at 4:38-49. Claim l does not contain any language limiting the ftmction to retaining an
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`end-piece of a first end of a rod. We therefore agree with the ALJ’s finding that the function of
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`“first retaining means” is to retain a first end of a flexible elongated rod.
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`After identifying the function of the means-plus-function limitation, we then turn to the
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`written description to identify the structure corresponding to that function. “In order to qualify
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`as corresponding, the structure must not only perfonn the claimed function, but the specification
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`must clearly associate the structure with perfonnance of the function.” Cardiac Pacemakers,
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`Inc. v. St. Jude Med, 1nc., 296 F.3d 1106, 1113 (Fed. Cir. 2002). “A means-plus-function claim
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`encompasses all structure in the specification corresponding to that element and equivalent
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`structures.” Micro Chem, Inc. v. Great Plains Chem. C0., 194 F.3d 1250, 1258 (Fed. Cir. 1999).
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`“When multiple embodiments in the specification correspond to the claimed function, proper
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`application of § 112, 1]6 generally reads the claim element to embrace each of those
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`embodiments.” Id. A means-plus-function limitation includes all “distinct and alternative”
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`structures described in the specification that perform the claimed function. Ishida C0. v. Taylor,
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`221 F.3d 1310, 1316 (Fed. Cir. 2000) (citing Serrano v. Telular Corp, 111 F.3d 1578, 1583
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`(Fed. Cir. 1997) (“Disclosed structure includes that which is described in a patent specification,
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`including any altemative structures identified.”)); Creo Prods,
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`Inc. v. Presstek, 1nc., 305 F.3d
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`1337, 1345 (Fed. Cir. 2002). Further, where a specification discloses different embodiments of a
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`limitation for performing a claimed function, we are not required to craft a single construction to
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`cover all those embodiments. See Ishida, 221 F.3d at 1316. “Rather, § 112, fl 6 requires only
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`identification of the structure, or structures, in the specification that perform the recited
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`function.” Id.
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`Here, the ALJ correctly identified more than one structure corresponding to the “first
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`retaining means” because the specification of the ’l 74 patent discloses multiple, alternative
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`structures that retain a first end of a rod. The ALJ found that the specification disclosed three
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`alternative structures: “(l) a pocket or pouch forrned with an aperture on the non-contact (a.k.a.,
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`lower surface) of the flexible mat; (2) a pouch sewn into the fabric of the mat with an aperture on
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`the non-contact (a.k.a., lower surface) of the flexible mat; or (3) an end piece [sic] and a pouch
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`formed with an aperture on the non-contact (a.k.a., lower surface) of the flexible mat adapted to
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`retain the end piece [sic].” ID at 25.
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`In fact, the specification discloses only the following structures as distinct and alternative
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`structures: (1) a pouch or pocket or (2) an end-piece and a sewn pouch. The specification
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`generally describes one structure as a pocket or pouch, without any reference to, and thus
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`requirement of, an end-piece: “Preferably, said first retaining means comprises a plurality of
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`pockets/pouches each formedlwith an aperture on said non-contact surface.” JX-1 at 2:7-9. The
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`specification also describes an alternative structure used in the preferred embodiment that
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`consists of a pouch sewn into the fabric of the mat and a rod end-piece that is inserted into the
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`pouch. Specifically, the specification discloses, as part of the preferred embodiment, “a plurality
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`of first retaining means in the fOfITlof pouches (5) sewn into the fabric of the mat with an
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`aperture formed on the lower surface of said mat (2).” Id. at 2:49-53. The specification further
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`describes the preferred embodiment as including end-pieces that retain the rods within the
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`pouches:
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`The rods (4) are each equipped at a first end with a protective end­
`piece (6), as shown in two altemative embodiments in FIG. 4. The end­
`pieces (6) are configured to be releasably inserted and retained within
`pouches (5). . . . Both the end-pieces (6) shown are exemplary and
`alternative shapes may be employed providing they afford a secure means '
`of retaining a rod (4) within a pouch (5) whilst Lmdertension, without
`damage the mat (2) [sic] or its surrounds and prevent injury [sic] to a user
`falling on the trampoline edge.” Id. at 2:62-3:11 (emphasis added).
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`The specification of the ’174 patent, with its disclosures of a pouch or pocket and the
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`combination of a sewn pouch and end-piece, is similar to the specification in Micro Chemical.
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`In that case, the Federal Circuit held that the district court erred in restricting the “weighing
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`means