`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`PLASTIC OMNIUM ADVANCED INNOVATION AND
`RESEARCH,
`Plaintiff-Appellant
`
`v.
`
`DONGHEE AMERICA, INC., DONGHEE ALABAMA,
`LLC,
`Defendants-Appellees
`______________________
`
`2018-2087
`______________________
`
`Appeal from the United States District Court for the
`District of Delaware in No. 1:16-cv-00187-LPS, Chief Judge
`Leonard P. Stark.
`______________________
`
`SEALED OPINION ISSUED: November 21, 2019
`PUBLIC OPINION ISSUED: December 3, 2019*
`______________________
`
`ALEXANDER HADJIS, Oblon, McClelland, Maier and
`Neustadt, LLP, Alexandria, VA, argued for plaintiff-appel-
`lant. Also represented by ROBERT CARTER MATTSON,
`CHRISTOPHER RICCIUTI.
`
`
`
`* This opinion was originally filed under seal and has
`been unsealed in full.
`
`

`

`2
`
`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
` ERIC SHUMSKY, Orrick, Herrington & Sutcliffe LLP,
`Washington, DC, argued for defendants-appellees. Also
`represented by MELANIE L. BOSTWICK, JEREMY PETERMAN;
`ALYSSA MARGARET CARIDIS, Los Angeles, CA; EDMUND
`HIRSCHFELD, New York, NY.
` ______________________
`
`Before NEWMAN, CLEVENGER, and REYNA, Circuit Judges.
`
`Opinion for the court filed by Circuit Judge REYNA.
`
`Dissenting opinion filed by Circuit Judge CLEVENGER.
`
`REYNA, Circuit Judge.
`Plastic Omnium Advanced Innovation and Research
`appeals from a grant of summary judgment of noninfringe-
`ment by the U.S. District Court for the District of Dela-
`ware. The district court’s determinations on summary
`judgment are consistent with its claim construction and
`supported by undisputed facts in the record. We affirm.
`BACKGROUND
`A. The Asserted Patents
`Plastic Omnium Advanced Innovation and Research
`(“Plastic Omnium”) owns U.S. Patent Nos. 6,814,921 (“the
`’921 patent”) and 6,866,812 (“the ’812 patent”). The pa-
`tents generally relate to manufacturing plastic fuel tanks
`formed by blow molding. The fuel tanks are formed in a
`way that allows accessory components to be installed in-
`side the fuel tank without cutting holes in the tank wall,
`which could compromise the structural integrity of the
`wall. A conventional blow molding system is depicted be-
`low:
`
`

`

`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`3
`
`J.A. 3482 (Appellee’s Technology Tutorial). The image
`shows the general placement and geometry of the extruder
`head, die, parison, and molding cavity in a conventional
`blow molding process.
`The sole figure (shown below) of the ’812 patent is rep-
`resentative of the disclosed system and depicts a tubular
`“parison” that is formed using an extrusion head (compo-
`nent 2) and circular die mounted on the extrusion head. As
`the parison exits the extrusion head, a blade (component 3)
`located at the exit of the die splits the parison.
`
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`

`4
`
`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`
`
`
`’812 patent Fig. 1, col. 5 ll. 28–30; see also ’921 patent
`col. 5 l. 25.
`Claim 1 of the ’921 patent recites the following, includ-
`ing the disputed “extruded parison” limitation:
`1. A process for manufacturing plastic hollow bod-
`ies from two shells formed by molding, which are
`joined together, at least one shell being produced
`by compression-molding a portion of a plastic sheet
`between a mold and a punch and by the remaining
`portion of the sheet being blow-molded in the re-
`gion not compression-molded, characterized in that
`it is applied to the manufacture of a fuel tank and
`in the sheet is obtained in the same manufacturing
`line as the shell which will be produced from this
`sheet, by the cutting and opening an extruded par-
`ison of closed cross section.
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`

`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`5
`
`’921 patent col. 5 l. 44–col. 6 l. 6 (emphasis added to dis-
`puted term). Claim 32 of the ’812 patent includes a similar
`disputed term: “extruding a parison.”
`B. District Court Proceedings
`On March 23, 2016, Plastic Omnium filed suit against
`Donghee America, Inc., and Donghee Alabama, LLC (col-
`lectively “Donghee”) in the District of Delaware, asserting
`infringement of several patents. The ’921 and ’812 patents
`were among the eight patents in Plastic Omnium’s
`amended complaint. After claim construction, Donghee
`moved for summary judgment of noninfringement as to the
`asserted claims of the ’921 and ’812 patents and on other
`bases not at issue in this appeal. On May 22, 2018, the
`district court granted Donghee’s summary judgment mo-
`tion. The district court entered final judgment on June 11,
`2018.
`
`1. Claim Construction
`During claim construction, the parties disputed the
`meaning of the term “parison.” Plastic Omnium Advanced
`Innovation & Research v. Donghee Am., Inc., No. 16-CV-
`187, 2017 WL 5125725, at *3–4 (D. Del. Nov. 6, 2017)
`(“Claim Construction Order”). Donghee argued that it
`should be given its plain and ordinary meaning of “hollow
`plastic tube exiting the die of an extrusion head.” Id. at *3.
`Plastic Omnium argued that the patentee had acted as its
`own lexicographer and that “the ’921 and ’812 patents do
`not use the term ‘parison’ [in] its conventional, plain and
`ordinary meaning.” Id. The district court agreed with
`Plastic Omnium and reasoned that “the patents specify
`that the ‘parison’ is cut in two as it leaves the die at the end
`of the extrusion head” and so “this ‘parison’ cannot be
`strictly limited to a fully-formed tubular structure existing
`in its entirety outside the extrusion head/die.” Id. at *4. It
`recognized that “the principal disagreements between the
`parties [were] identifying the point at which the molten
`plastic within the extrusion head becomes a ‘parison,’ and
`
`

`

`6
`
`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`identifying the location of the die.” Id. The district court
`rejected Plastic Omnium’s contention that the “claimed
`process includes the splitting of molten plastic within the
`extrusion head/die” based on its determination that neither
`specification discloses “splitting of the tubular preform at
`any stage earlier than right as the previously tubular
`structure leaves the die/extrusion head.” Id. (internal quo-
`tations omitted). The district court also clarified that “the
`‘extruded parison’ terms should not include molten plastic
`(or a tubular preform) present inside the die/extrusion
`head and that the “‘die’ is located at the ‘extrusion head[’s]’
`‘lowest point,’” rejecting Plastic Omnium’s contention that
`the “die” could be located anywhere. Id. at *4, *4 n.4 (quot-
`ing ’921 patent col. 3 ll. 4–5; ’812 patent col. 2 ll. 37–38).
`Accordingly, the district court construed “parison” as “re-
`ferring to a plastic tube with a closed cross section that is
`shaped by—and has reached the end of—a die and is split
`either immediately upon exiting the die or at some point
`thereafter.” Id. at *4. Building upon that construction, the
`district court construed “extruded parison of closed cross
`section” and “extruding a [multilayered] parison” as “a tub-
`ular preform with a closed cross-section that has been
`forced through a die and is cut or split as it exits the die or
`at some time thereafter” and “a [multilayered] tubular pre-
`form with a closed cross-section that has been forced
`through a die and is cut or split as it exits the die or at some
`time thereafter,” respectively. Id. at *8 (alterations in orig-
`inal).
`
`2. Summary Judgment
`Donghee moved for summary judgment of noninfringe-
`ment of five asserted patents, including the ’921 and ’812
`patents involved in this appeal.1 Donghee argued that its
`
`1 This appeal also included U.S. Patent Nos.
`7,166,253 and 9,399,327. Plastic Omnium filed a Motion to
`Withdraw those patents from this appeal which we grant
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`

`

`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`7
`
`accused product does not infringe the asserted claims of the
`’921 and ’812 patents because it “does not extrude a pari-
`son.” Plastic Omnium Advanced Innovation & Research v.
`Donghee Am., Inc., 387 F. Supp. 3d 404, 416–17 (D. Del.
`2018) (“Summary Judgment Order”). Relying on its claim
`construction of the “parison” terms, the district court
`granted summary judgment of noninfringement. Id.
`As to literal infringement, the district court recognized
`that there was no dispute that Donghee’s “‘manufacturing
`process begins by forcing plastic through a circular coex-
`trusion head, and then feeding the plastic that exits the
`coextrusion head into a separate piece of equipment, re-
`ferred to as a flat die tool,’ and that once inside ‘the flat die,
`the molten plastic is cut into two streams of plastic which
`are extruded as two sheets.’” Id. at 416 (citing Donghee’s
`brief in support of its motion for summary judgment and
`Plastic Omnium’s brief in opposition). Turning to its claim
`construction holdings, the district court reiterated its de-
`terminations that (1) “parison” was not limited to a fully
`formed tubular structure that exists entirely outside of the
`extrusion head/die, i.e., the “parison” may be cut as it exits
`the die at the end of the extrusion head; (2) the tubular
`preform cannot be split at any stage prior to its exit of the
`extrusion head/die such that molten plastic or a tubular
`preform present inside the extrusion head/die is excluded
`from the claim scope; and (3) the die must be located at the
`extrusion head’s lowest point. Id. (citing Claim Construc-
`tion Order, 2017 WL 5125725, at *4).
`According to the district court, “[b]ecause the splitting
`does not occur ‘at any stage earlier than right as the previ-
`ously tubular structure leaves the die/extrusion head,’ the
`claim construction makes clear that whether the extrusion
`equipment consists of a single combined extrusion head
`
`(see Conclusion) and therefore do not address those patents
`in the Background.
`
`

`

`8
`
`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`with a die or a more complex extrusion head with a sepa-
`rate attached die, the splitting of the molten plastic must
`not occur inside any of the extrusion head/die equipment.”
`Id. (internal citation omitted and emphases added). Quot-
`ing Plastic Omnium’s brief in opposition of summary judg-
`ment, the district court found that there was no genuine
`dispute of material fact that Donghee’s accused product
`does not literally infringe because “for the accused product,
`it is undisputed that ‘[t]he extruded plastic parison is [ ]
`cut in a separate “flat die” tool after it leaves Donghee’s
`coextrusion die.’” Id. (omissions and alterations in origi-
`nal).
`The district court also concluded that Donghee’s ac-
`cused product did not infringe under the doctrine of equiv-
`alents. According to the district court, “a reasonable jury
`could not find [that the] cutting [of] the parison while it is
`extruding within extrusion equipment is insubstantially
`different than [the] cutting [of] the extruded parison out-
`side the extrusion equipment.” Id. at 417. The district
`court also pointed to statements by Dr. Osswald, Plastic
`Omnium’s expert, where he acknowledged differences be-
`tween Donghee’s “flat die tool” and the claimed invention.
`Id. (citing J.A. 387; 431).
`Plastic Omnium appeals. We have jurisdiction under
`28 U.S.C. § 1295(a)(1).
`DISCUSSION
`We review a grant of summary judgment under the law
`of the applicable regional circuit, here the Third Circuit.
`ArcelorMittal Atlantique et Lorraine v. AK Steel Corp., 908
`F.3d 1267, 1273 (Fed. Cir. 2018). The Third Circuit reviews
`a grant of summary judgment de novo. Gonzalez v. Sec’y of
`Dep’t of Homeland Sec., 678 F.3d 254, 257 (3d Cir. 2012).
`Plastic Omnium challenges the district court’s grant of
`summary judgment of no literal infringement and no
`
`

`

`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`9
`
`infringement under the doctrine of equivalents as to the
`’921 and ’812 patents. We address each argument in turn.
`A. Literal Infringement
`Plastic Omnium argues that the court granted sum-
`mary judgment based on an erroneous claim construction.
`Appellant Br. 32. According to Plastic Omnium, the dis-
`trict court’s summary judgment improperly imposed a “cut-
`ting location requirement.” Id. at 35. We disagree.
`We first note that despite its argument that summary
`judgment was based on an erroneous claim construction,
`Plastic Omnium does not dispute the district court’s con-
`struction of “extruded parison of closed cross section” as “a
`tubular preform with a closed cross-section that has been
`forced through a die and is cut or split as it exits the die or
`at some time thereafter.” Nor does it dispute the construc-
`tion of “extruding a [multilayered] parison” as “a [multi-
`layered] tubular preform with a closed cross-section that
`has been forced through a die and is cut or split as it exits
`the die or at some time thereafter.” Rather, Plastic Om-
`nium argues that the district court erred by deviating from
`its claim construction order and requiring “the claimed par-
`ison to be cut or split outside of the extrusion equipment.”
`Id. We therefore determine whether the correct applica-
`tion of the district court’s claim construction excludes the
`accused Donghee product based on the undisputed facts.
`We conclude that it does.
`Claim 1 of the ’921 patent requires “cutting and open-
`ing of an extruded parison of closed cross section.” ’921 pa-
`tent col. 5 l. 44–col. 6 l. 5 (emphasis added). Claim 32 of
`the ’812 patent requires “extruding a parison” and then
`“cutting through said parison so as to form two portions
`separated by a cut . . . .” ’812 patent col. 7 ll. 14–18 (em-
`phasis added). In construing the “parison” terms, the dis-
`trict court made clear that “extruded parison [] should not
`include molten plastic (or a tubular preform) [] inside the
`die [or] extrusion head” and that the “‘die’ is located at the
`
`

`

`10
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`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`‘extrusion head[’s]’ ‘lowest point.’” Claim Construction Or-
`der, 2017 WL 5125725 at *4, *4 n.4. Thus, no “extruded
`parison” is formed until a plastic tube, which implies some
`depth, of a closed cross section passes through and exits the
`die located at the lowest point of the extrusion head. The
`district court rejected Plastic Omnium’s contention that
`the claims included splitting plastic inside the extrusion
`head or die and its contention that the die could be located
`anywhere in the extrusion equipment. See id. at *4.
`The district court’s determination on summary judg-
`ment is consistent with its Claim Construction Order. The
`district court first recognized two undisputed facts about
`Donghee’s process: (1) the process begins with forcing plas-
`tic into a “coextrusion head” and then feeding the plastic
`into a separate “flat extrusion die;” and (2) “once inside the
`flat die, the molten plastic is cut into two streams of plastic
`which are extruded as two sheets.” Summary Judgment
`Order, 387 F. Supp. 3d at 416–17 (internal quotations omit-
`ted). In view of its Claim Construction Order, the district
`court determined that regardless of Plastic Omnium’s ar-
`gument that the “coextrusion head” was itself a “die,” the
`claim construction “makes clear” that “the splitting of the
`molten plastic must not occur inside any of the extrusion
`head/die equipment.” Id. (emphasis added). In other
`words, the claims require that the extruded parison is split
`after passing through the extrusion head and die.
`It is undisputed that Donghee’s accused product is
`manufactured by a process where two separate plastic
`sheets are extruded from the die located at the lowest point
`of the extrusion head using what is referred to as a “flat die
`system.” Appellant Br. 40 (citing J.A. 710–11, 736–38,
`784); see also id. at 19–20. The flat die does not produce an
`extruded parison as required by the claims, but two
`separate plastic sheets, which are not cut at the point of
`exiting the die or thereafter. Instead, in the accused
`system, molten plastic is injected directly from the
`extrusion head into the die mounted directly on the
`
`

`

`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`11
`
`extrusion head where it is split into two sheets and formed
`in the die as shown in the images below.
`
`
`
`J.A. 451.
`As seen in the images, Donghee’s own product
`literature refers to the plastic entering the flat die tool as
`a “parison.” But the district court correctly determined in
`its claim construction—accepting Plastic Omnium’s
`arguments—that the patentee gave the term “parison” a
`special definition, and the patents “do not use the term
`‘parison’
`[in]
`its conventional, plain and ordinary
`meaning.” Claim Construction Order, 2017 WL 5125725,
`at *4. Thus, the patentee’s definition of “parison” in the
`specification and as construed by the court—not Donghee’s
`
`

`

`12
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`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`product literature—controls whether the accused product
`falls withing the scope of the claim. See Martek Biosciences
`Corp. v. Nutrinova, Inc., 579 F.3d 1363, 1380 (Fed. Cir.
`2009); see also Phillips v. AWH Corp., 415 F.3d 1303, 1316
`(Fed. Cir. 2005) (en banc) (“[O]ur cases recognize that the
`specification may reveal a special definition given to a
`claim term by the patentee that differs from the meaning
`it would otherwise possess. In such cases, the inventor’s
`lexicography governs.”). Thus, despite the fact that
`Donghee’s product literature uses the term “parison” to
`refer to plastic at the inlet of the flat die, it does not depict
`that an “extruded parison” as defined by the patentee
`acting as its own lexicographer and construed by the
`district court has formed at that point. Donghee’s product
`literature does not show a tubular structure as required by
`the Claim Construction Order. And as noted above, it is
`undisputed that the plastic passing into the flat die is
`molten, which the Claim Construction Order specifically
`excludes.
`Plastic Omnium argues that the district court’s
`quotation of its brief in opposition to summary judgment
`shows that the district court concluded that there was no
`dispute that an “extruded plastic parison” exits Donghee’s
`“coextrusion die.” See, e.g., Appellant Br. 38; Oral
`Argument
`at
`3:55–4:31,
`available
`at
`http://www.cafc.uscourts.gov/oral-argument-recordings
`(citing J.A. 20). This argument is contrary to the record
`because, at oral argument, Donghee disputed Plastic
`Omnium’s contention. See Oral Argument at 45:56–47:09.
`The district court recognized that the heart of the dispute
`was whether a parison is extruded at all: “Donghee argues
`that the accused product does not infringe the Parison
`Claims because it does not extrude a parison.” Summary
`Judgment Order, 387 F. Supp. 3d at 416 (footnote removed)
`(emphasis added). The district court further characterized
`“the parties’ dispute [as] center[ing] on whether (1) the first
`piece of equipment, the ‘coextrusion head,’ is or has a die,
`
`

`

`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`13
`
`and (2) the extruded parison may continue to be located in
`the second piece of equipement, the ‘flat die,’ and still be
`held to infringe.” Id. (internal citations removed).
`Further, the district court’s Claim Construction Order also
`recognized that “the principal disagreements between the
`parties seem to be identifying the point at which the molten
`plastic within the extrusion head becomes a ‘parison,’ and
`identifying the location of the die.” Claim Construction
`Order, 2017 WL 5125725, at *4.
`We are thus not persuaded by Plastic Omnium’s
`contention that the district court’s citation and quoation of
`Plastic Omnium’s opposition brief shows that the district
`court determined that it was undisputed that an “extruded
`parison” leaves the “coextrusion die.” The district court
`understood that the claims require a parison to be extruded
`from a die located at the lowest point of the extrusion
`equipment and that the splitting of the plastic must not
`occur inside the die. See Summary Judgment Order, 387
`F. Supp. 3d at 416 (“[T]he claim construction makes clear
`that whether the extrusion equipment consists of a single
`combined extrusion head with a die or a more complex
`extrusion head with a separate attached die, the splitting
`of the molten plastic must not occur inside any of the
`extrusion head/die equipment.” (emphasis added)).
`Plastic Omnium’s arguments rely heavily on recasting
`the “coextrusion head” in the accused system as a “coextru-
`sion die,” and Plastic Omnium contends that the plastic
`melt flowing from the extrusion head and directly into the
`flat die satisfies the extruded parison limitation. Appellant
`Br. 40. But “extrusion head” and “die” as used in the as-
`serted patents are distinct terms. E.g., ’812 patent col. 2
`ll. 35–38 (stating “an extruder whose head is terminated by
`the die”); id at col. 2 ll. 46–48 (“In accordance with the pro-
`cess according to the invention, at least one cut is made in
`the parison leaving the die mounted on the extrusion
`head.”); id. col. 5 ll. 23–30 (“The tubular multilayer extru-
`date (1) . . . leaves the extrusion head (2) and is separated
`
`

`

`14
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`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`into two sheets (1), using two steel blades (3) placed at 180˚
`to each other, at the exit of the circular die mounted on the
`extrusion head (2).”); ’921 patent col. 3 ll. 2–5 (“One exam-
`ple is that of a sheet produced by extrusion, in an extruder
`placed vertically, the extrusion head which includes the die
`being located at the lowest point.”). The court’s claim con-
`struction order similarly uses “extrusion head” and “die” as
`distinct terms. Claim Construction Order, 2017 WL
`5125725, at *3–4 (“[T]he patents specify that the ‘parison’
`is cut in two as it leaves the die at the end of the extrusion
`head.”). Thus, the claims require that the extrusion head
`and die are distinct components that the “parison” must
`pass through before it is split.
`Dr. Osswald admitted that the patents disclose that
`there is “a die mounted on the extrusion head” but still took
`the position that there is actually no die mounted on “an
`extrusion head or a co-extrusion die or a co-extrusion head,
`whatever you want to call it.” J.A. 1926 (Osswald Dep. Tr.
`151:11–152:15.). He justified the apparent contradiction of
`his position by asserting that the language of the patents
`“may just be a poor choice of words.” Id. He thus cited no
`contrary evidence and merely speculated that the die is not
`a separate part mounted on the extrusion head in the pa-
`tents.
`Dr. Osswald also asserted that “if there’s nothing that
`comes after [the extrusion head in Donghee’s accused prod-
`uct], you extrude a tube or tubular parison.” J.A. 1926
`(Osswald Dep. Tr. 151:18–20) (emphasis added). Plastic
`Omnium argues that this testimony demonstrates that the
`accused product satisfies the extruded parison limitation.
`It is undisputed, however, that in Donghee’s accused prod-
`uct, the “flat die” comes after the extrusion head. See J.A.
`262 (“Donghee’s process utilizes a separate ‘flat die tool’
`that forms two sheets of plastic . . . .”). The flat die is
`mounted directly on the extrusion head, and thus no tube
`or tubular parison is extruded from the extrusion head.
`That molten plastic may pass through a “spiral mandrel”
`
`

`

`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`15
`
`in the bottom of the extrusion head as it passes directly into
`and is split within the flat die is not sufficient. Donghee’s
`system thus does not satisfy the “extruded parison” limita-
`tion under the district court’s claim construction.
`In summary, Donghee’s accused product is different
`from the claimed system. The asserted claims require that
`a tubular parison is first extruded and cut at the point of
`extrusion or sometime thereafter. In the accused system,
`the plastic is split and formed within the die, and what is
`extruded is two formed plastic sheets, not a parison. Ac-
`cordingly, we affirm the district court’s grant of summary
`judgment of no literal infringement.
`B. Infringement Under the Doctrine of Equivalents
`Plastic Omnium argues that the district court erred in
`granting summary judgment of noninfringement under the
`doctrine of equivalents by improperly reading in a cutting
`location requirement and ignoring that the steps in the
`claimed process and in the accused product are the same
`no matter where the splitting of the parison occurs. Appel-
`lant Br. 41–42.
`“A finding of infringement under the doctrine of equiv-
`alents requires a showing that the difference between the
`claimed invention and the accused product or method was
`insubstantial or that the accused product or method per-
`forms the substantially same function in substantially the
`same way with substantially the same result as each claim
`limitation of the patented product or method.” AquaTex
`Indus., Inc. v. Techniche Sols., 479 F.3d 1320, 1326 (Fed.
`Cir. 2007). “The function, way, result inquiry focuses on an
`examination of the claim and the explanation of it found in
`the written description of the patent.” Id. (internal quota-
`tions omitted).
`While the district court provided little analysis or sup-
`port as to its determination of no infringement under the
`doctrine of equivalents, “we review
`judgments, not
`
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`

`16
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`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`opinions.” Bruno Indep. Living Aids, Inc. v. Acorn Mobility
`Servs., Ltd., 394 F.3d 1348, 1354 (Fed. Cir. 2005) (citing
`Black v. Cutter Labs., 351 U.S. 292, 297 (1956)). We must
`therefore determine whether the record supports the dis-
`trict court’s determination that no reasonable jury could
`find that Donghee’s accused product infringes under the
`doctrine of equivalents.
`The district court’s limited citations to the record in-
`clude a report and testimony from Dr. Osswald admitting
`that “Donghee’s flat die tool may offer improvements (e.g.,
`independent wall thickness manipulation) over the blade
`and roller cutting system of the Asserted Patents.” J.A. 387
`¶ 36; see also J.A. 430–31 (“Q: So I believe in your reply
`report you believe that Donghee’s flat die would offer some
`improvements over cutting -- over other methods of cutting
`where you maybe have a knife . . . A: Well, I mean, I say it
`right there. Like, independent wall thickness manipula-
`tion. That’s one.”). Further, Dr. Osswald referred to this
`ability to control the wall thickness as “an invention” dis-
`tinct from the asserted patents. J.A. 431.
`As such, Dr. Osswald conceded that Donghee’s prod-
`ucts differed
`from the patented
`invention because
`Donghee’s process allowed for the advantageous capability
`of independent wall thickness manipulation resulting from
`the way plastic is split. The question is whether Plastic
`Omnium presented evidence that this conceded advantage
`is an “insubstantial difference.” AquaTex Indus., 479 F.3d
`at 1328 (quoting Texas Instruments, Inc. v. Cypress Semi-
`conductor Corp., 90 F.3d 1558, 1567 (Fed. Cir. 1996)).
`Plastic Omnium’s arguments and the patents’ written
`descriptions tout uniform wall thickness as a feature of the
`patents. In its opening brief, Plastic Omnium states that
`its inventions “avoid[] the prior ‘drawback of having to po-
`sition two extrusion heads and/or extruders capable of sim-
`ultaneously producing two flat sheets, the thickness
`uniformity and the production uniformity of which are
`
`

`

`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`17
`
`[required to be] constant from one sheet to another and at
`any point on each of the sheets.’” Appellant Br. 11 (quoting
`the ’812 patent col. 1 ll. 42–46) (emphasis added). Dr.
`Osswald conceded that, in contrast, independent wall
`thickness manipulation is an advantage of the Donghee
`system. Plastic Omnium failed to present evidence as to
`why the differences between the touted advantage of uni-
`form wall thickness in the ’812 and ’921 patents and the
`capability of independent wall thickness manipulation in
`the accused product were insubstantial. See Appellant Br.
`41–42; Appellant Reply Br. 22–23. Plastic Omnium there-
`fore failed to demonstrate a genuine dispute of material
`fact that would prevent the grant of summary judgment as
`to the doctrine of equivalents.
`CONCLUSION
`The district court’s grant of summary judgment of no
`literal infringement was consistent with its Claim Con-
`struction Order based on undisputed differences between
`the asserted patents and the accused product. The district
`court’s grant of summary judgment of no infringement un-
`der the doctrine of equivalents was correct in light of the
`conceded differences between the claimed process in the as-
`serted patents and process of the accused product. Because
`we affirm based on the “parison” limitations, we need not
`reach the issue of whether Plastic Omnium preserved the
`“preassembled structure” claim construction issue concern-
`ing the ’812 patent. We grant Plastic Omnium’s pending
`Motion to Withdraw U.S. Patent Nos. 7,166,253 and
`9,399,327 (ECF No. 47).
`AFFIRMED
`COSTS
`Each party shall bear its own costs.
`
`

`

`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`PLASTIC OMNIUM ADVANCED INNOVATION AND
`RESEARCH,
`Plaintiff-Appellant
`
`v.
`
`DONGHEE AMERICA, INC., DONGHEE ALABAMA,
`LLC,
`Defendants-Appellees
`______________________
`
`2018-2087
`______________________
`
`Appeal from the United States District Court for the
`District of Delaware in No. 1:16-cv-00187-LPS, Chief Judge
`Leonard P. Stark.
`______________________
`CLEVENGER, Circuit Judge, dissenting.
`The majority frames the parties’ dispute as one focused
`on the meaning of the term “extruded parison.” The major-
`ity concludes, as the district court did, that such a dispute
`cannot preclude summary judgment because the patentee
`acted as his own lexicographer when he defined the term
`“extruded parison” in one of the asserted patent specifica-
`tions. According to the majority, the district court correctly
`construed the term in accordance with the patentee’s defi-
`nition, and then simply applied that construction to the ac-
`cused device, which did not include the claimed parison. To
`both the district court and the majority, the claimed ex-
`truded parison cannot exist in Donghee’s process because
`
`

`

`2
`
`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERICA, INC.
`
`the plastic is cut inside of a “die,” contravening the district
`court’s construction. But by blessing the district court’s
`analysis, the majority commits the same error. Both rely
`on Donghee’s nomenclature—the fact that its cutting struc-
`ture is called a “die”—to find no infringement. That anal-
`ysis elides the key factual dispute: Does Donghee’s accused
`process have more than one die? The real dispute therefore
`is not over an extruded parison and what it takes to create
`one—in fact, the parties agree on that front—but is instead
`over the term “die” and whether Donghee’s extrusion head
`contains one. Plastic Omnium presented sufficient evi-
`dence to create a material factual dispute over the struc-
`ture of Donghee’s extrusion head, and I therefore
`respectfully dissent from the majority’s decision.
`I
`The patents at issue in this case claim an improvement
`on the standard manufacturing process used to create plas-
`tic motor-vehicle fuel tanks. U.S. Patent No. 6,866,812
`(“the ’812 patent”), Abstract (“Process for manufacturing
`hollow plastic bodies, especially motor-vehicle fuel tanks.”);
`U.S. Patent No. 6,814,921 (“the ’921 patent), Abstract
`(“Process for manufacturing a plastic fuel tank.”). Specifi-
`cally, claim 1 of the ’812 patent discloses in relevant part
`“[a] process of manufacturing a hollow body for receiving a
`liquid, comprising the steps of: extruding a parison; cutting
`through said parison so as to form two portions separated
`by a cut . . . .” ’812 patent, col. 5, ll. 43–47. Claim 1 of the
`’921 patent similarly recites in relevant part:
`A process for manufacturing plastic hollow bodies
`from two shells formed by molding, which are
`joined together, at least one shell being produced
`by compression-molding a portion of a plastic sheet
`. . . characterized in that it is applied to the manu-
`facture of a fuel tank and in the sheet is obtained
`in the same manufacturing line as the shell which
`
`

`

`PLASTIC OMNIUM ADVANCED v. DONGHEE AMERIC