Yufa v. Lockheed Martin Corporation , 575 F. App'x 881 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALEKSANDR L. YUFA,
Plaintiff-Appellant,
v.
LOCKHEED MARTIN CORPORATION,
Defendant-Appellee,
AND
DOE DEFENDANTS, 1 through 10,
Defendants.
______________________
2014-1256
______________________
Appeal from the United States District Court for the
Central District of California in No. 2:06-cv-03923-BRO-
FFM, Judge Beverly Reid O'Connell.
______________________
Decided: August 6, 2014
______________________
ALEKSANDR L. YUFA, of Colton, California, pro se.
RYAN KEN YAGURA, O’Melveny & Myers LLP, of Los
Angeles, California, for defendant-appellee. With him on
the brief were VISION WINTER and MICHAEL KOPLOW.
2 YUFA v. LOCKHEED MARTIN CORPORATION
______________________
Before MOORE, REYNA, and TARANTO, Circuit Judges.
PER CURIAM.
Aleksandr Yufa sued Lockheed Martin, alleging pa-
tent infringement. The district court granted summary
judgment of non-infringement with respect to all five
Lockheed Martin products that Mr. Yufa alleged to be
infringing. Because the district court correctly held that
there was no genuine issue of material fact for trial, we
affirm.
BACKGROUND
Mr. Yufa owns U.S. Patent Nos. 6,034,769 and
6,346,983, both of which claim methods and devices for
counting particles in gases or fluids and measuring their
size. Such particle detectors are useful for determining
the cleanliness of gas or fluid samples, because contami-
nating particles are often known to fall within certain size
ranges. J.A. 1558. For example, the semiconductor
industry uses particle detectors to monitor the cleanliness
of fabrication rooms, known as “clean rooms,” where
electronic circuits are manufactured. See ’769 patent, col.
2, lines 49-63; ’983 patent, col. 3, lines 6-21.
Many particle detectors use a “light scattering” meth-
od: a light is shined onto a stream of particles and the
reflections are measured. Because larger particles reflect
(or “scatter”) more light than smaller ones, the amount of
light reflected by a particle provides information about its
size. J.A. 1559-61. A light detector measures the intensi-
ty of the reflected light and outputs an analog electrical
current with a voltage proportional to the measured
intensity. The larger the particle, the greater the intensi-
ty of the reflected light measured by the light detector,
and the greater the output voltage.
YUFA v. LOCKHEED MARTIN CORPORATION 3
The patent describes prior-art particle detectors that,
using the “light scattering” method, convert the (ampli-
fied) analog electrical current sent by the light detector
into a digital signal that represents the number of parti-
cles of a given size. A standard method—well-known in
the prior art and referenced in both patents, see ’769
patent, col. 3, lines 3-15; ’983 patent, col. 2, lines 18-29—
is to compare the voltage of the analog current with a
reference voltage that corresponds to a particular particle
size. If the light detector’s voltage output is greater than
the reference voltage—indicating that the particle exceeds
the threshold size determined by the reference voltage—a
digital value of “true” is output. On the other hand, if the
light detector’s voltage output is less than the reference
voltage—indicating that the particle does not meet the
threshold size—a digital value of “false” is output. The
figure below illustrates how a particle detector converts
the analog electrical current that is sent from the light
detector into a digital signal that corresponds to the
particle’s size.
Br. of Appellee 17. In this way, a particle detector can use
a reference voltage to count particles exceeding a specified
threshold size. If it uses multiple reference voltages at
different levels, it can count the number of particles
within each of several different ranges.
4 YUFA v. LOCKHEED MARTIN CORPORATION
The ’769 and ’983 patents identify problems with this
process, specifically that “compar[ison] with the prede-
termined reference voltage for the particle size qualifying
. . . cannot provide a sufficiently high sensitivity related to
the increasing environmental requirements, because of
the non-precise analog method of comparison.” ’769
patent, col. 3, lines 12-18; ’983 patent, col. 2, lines 28-33.
The patents, therefore, “provide an improved method and
device for counting and measuring particles.” ’769 patent,
col. 3, lines 24-25; see also ’983 patent, col. 3, lines 50-52
(“It is the object of the invention to provide an improved
method and apparatus for increasing the sensitivity of the
particle counting and measuring means.”). It is not
necessary to describe the details of the “improved method”
here, except to say that all the asserted claims of the ’769
and ’983 patents, as originally issued, required use of
“strobe pulse packs”—or “strobe pulses” in a “strobe pulse
sequence.” E.g. ’769 patent, col. 4, lines 34-38; ’983 pa-
tent, col. 6, lines 22-28.
In June 2006, Mr. Yufa sued Lockheed Martin in the
Central District of California, alleging that Lockheed
Martin infringed certain claims in the ’769 and ’983
patents. During litigation, Mr. Yufa named what amount
to five allegedly infringing Lockheed Martin products (or
groups of products), some that Lockheed Martin acknowl-
edged contain and use particle detectors (though Lock-
heed Martin disputed that those detectors infringe) and
others that Lockheed Martin said contained no particle
detectors at all.
Lockheed Martin conceded that particle detectors are
part of its Biological Aerosol Warning System (“BAWS”),
an anti-terrorism warning system that monitors an area
for signs of a biological threat. Lockheed Martin has
marketed different BAWS models, many of which were
alleged by Mr. Yufa to infringe, including the
MetroGuard®; the Chemical, Biological, Radiological
Early Warning System (“CBREWS”); and the AbleSentry.
YUFA v. LOCKHEED MARTIN CORPORATION 5
In addition to that group of products, Lockheed Martin
conceded that particle detectors are part of its Building
Protection Systems Integration (“BPSI”), a system that
detects chemical, biological, and radiological airborne
hazards.
Lockheed Martin advanced evidence that the remain-
ing three accused products do not have particle detectors
of any kind. One of those products, the Multipurpose
Integrated Chemical Agent Alarm System (“MICAD”),
designed for use by ground troops and in vehicles and
shelters, automatically detects and reports chemical,
biological, and radiological threats. The second of those
products, LaserNet Fines, uses laser imaging techniques
and advanced image processing software to detect signs of
wear in mechanical systems. The remaining product
group asserted to infringe consists of Lockheed Martin’s
unmanned aerial vehicles (“UAVs”). In support of that
generic allegation, Mr. Yufa never identified any specific
Lockheed Martin UAV model as infringing.
In February 2007, the United States Patent &
Trademark Office ordered the ex parte reexamination of
all claims in the ’769 and ’983 patents, and in March
2007, the district court stayed proceedings in this case to
await the PTO’s determinations. During reexamination
of the ’769 patent, which originally issued with 6 claims,
Mr. Yufa cancelled claims 2 and 3 and amended claims 1,
and 4-6. J.A. 97. During reexamination of the ’983 pa-
tent, which originally issued with 8 claims, Mr. Yufa
cancelled claims 1-5 and amended claims 6-8. J.A. 126.
To overcome prior-art rejections made in both reexamina-
tion proceedings, Mr. Yufa (as relevant here) amended the
surviving claims of each patent to include a negative
claim limitation—requiring that the particle detector not
use a reference voltage. The surviving claims of the ’769
patent require (with some minor variations in language)
“converting each amplified signal to a digital form pulse
without using a reference voltage,” J.A. 97-98 (emphasized
6 YUFA v. LOCKHEED MARTIN CORPORATION
language added during reexamination), while the surviv-
ing claims of the ’983 patent require “conversion of each of
said voltage value signals to a digital form pulse without a
reference voltage to convert each of said voltage value
signals.” J.A. 126 (same).
After the district-court action resumed, Mr. Yufa
amended his complaint to allege direct infringement of all
of the reexamined claims. 1 In October 2013, Lockheed
Martin moved for summary judgment of non-infringement
with respect to all of the accused products. It argued that
the evidence would not support a finding that some of the
products even contain a particle detector or a finding that
the other products met either one, let alone both, of the
two limitations present in every asserted claim: the
“without using a reference voltage” limitation; and the
“strobe pulse” limitation.
In an opinion granting summary judgment of non-
infringement, the district court first construed “without
using a reference voltage.” Mr. Yufa argued that the
language was not a substantive limitation, but the district
court disagreed, concluding that the ’769 and ’983 patents
“require a system that converts a light detector’s ampli-
fied output into a digital signal without comparing the
light detector’s amplified output to a predetermined
reference voltage.” J.A. 10. The district court next turned
to whether each of the accused products infringe the ’769
and ’983 patents. For two accused products—MICAD and
1 In addition, Mr. Yufa sought leave from the dis-
trict court to add claims of indirect infringement, direct
infringement under the doctrine of equivalents, and
willful infringement, and claims for enhanced damages,
attorneys’ fees, and injunctive relief—none of which were
included in his original complaint. The district court
denied his motion in those respects, and Mr. Yufa does
not appeal that order here.
YUFA v. LOCKHEED MARTIN CORPORATION 7
UAV—the district court held that the evidence would not
support a finding that the products contained any particle
detector whatsoever. J.A. 11. For two additional accused
products—the BAWS systems and BPSI—the district
court concluded that, as a matter of law, the products
“use[] a reference voltage to convert analog particle sig-
nals into digital pulses,” and thus do not meet the nega-
tive, “without using a reference voltage” limitation
present in some form in every asserted claim. J.A. 14.
With respect to the fifth and final accused product—
LaserNet Fines—the district court concluded, again as a
matter of law, that “LaserNet Fines determines the
detected particles’ size through an analysis and compari-
son of captured images, not strobe pulse packs, and
therefore does not embody a limitation of the ’769 and
’983 [p]atents,” namely, using “strobe pulse packages”—or
“strobe pulses” in a “strobe pulse sequence”—to convert
the analog electrical current output by the light detector
into a digital representation of the particle’s size. J.A. 15-
16. The district court thus concluded that there was
insufficient evidence, as to each accused product, that it
met at least one claim limitation. Because infringement
requires meeting all claim limitations, the district court
granted summary judgment of non-infringement with
respect to all of the accused products.
After Lockheed Martin agreed to dismiss its counter-
claims for a declaratory judgment of invalidity, unen-
forceability, and non-infringement of the ’769 and ’983
patents, the district court entered final judgment of non-
infringement on January 23, 2014. Mr. Yufa timely
appeals. This court has jurisdiction under 28 U.S.C.
§ 1295(a)(1).
DISCUSSION
A determination of infringement requires a two-step
analysis. “First, the claim must be properly construed to
determine its scope and meaning.” Carroll Touch, Inc. v.
8 YUFA v. LOCKHEED MARTIN CORPORATION
Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed. Cir.
1993). “Second, the claim as properly construed must be
compared to the accused device or process.” Id. Mr. Yufa
alleges that the district court erred only with respect to
the latter, which—when only literal infringement is
alleged, as in this case in its present posture—“requires a
factual determination that every claim limitation . . . is
found in the accused device.” Int’l Rectifier Corp. v. IXYS
Corp., 361 F.3d 1363, 1369 (Fed. Cir. 2004).
We review a district court’s grant of summary judg-
ment de novo. Crown Packaging Tech., Inc. v. Rexam
Beverage Can Co., 559 F.3d 1308, 1311 (Fed. Cir. 2009).
Summary judgment of non-infringement is proper if and
only if “no reasonable jury could find that every limitation
recited in the properly construed claim either is or is not
found in the accused device.” Gart v. Logitech, Inc., 254
F.3d 1334, 1339 (Fed. Cir. 2001). It has long been estab-
lished that the patent owner has the burden to prove
infringement. Medtronic, Inc. v. Mirowski Family Ven-
tures, LLC, 134 S. Ct. 843, 849 (2014). Lockheed Martin,
in moving for summary judgment, bore the initial burden
of either “providing evidence that would preclude a find-
ing of infringement” or “showing that the evidence on file
fails to establish a material issue of fact essential to [Mr.
Yufa’s] case.” Novartis Corp. v. Ben Venue Labs., Inc., 271
F.3d 1043, 1046 (Fed. Cir. 2001). Once Lockheed Martin
did so, the summary-judgment question is whether there
is evidence—not argument—that a reasonable jury could
find sufficient given Mr. Yufa’s burden of proof. Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The district court in this case applied the proper
standards in granting summary judgment of non-
infringement for all five accused Lockheed Martin (groups
of) products. It concluded that there was insufficient
proof to support a reasonable finding that any of the
products met every limitation of any of the asserted
claims: two products did not have any particle detectors
YUFA v. LOCKHEED MARTIN CORPORATION 9
whatsoever, two products that did have particle detectors
used a reference voltage to convert the analog signal
output by the light detector to a digital signal, and the
fifth and final product did not use “strobe pulse packages”
or “strobe pulses” in a “strobe pulse sequence. Because
we agree with the district court that Mr. Yufa has failed
to raise a triable issue with respect to any of those prod-
ucts, we affirm.
The district court properly held that there was no evi-
dence that two of the accused products—MICAD and
UAV—contain any particle detectors, as the claims re-
quire. With respect to MICAD, Lockheed Martin submit-
ted the sworn declaration of one of its senior engineers
that states: “The MICAD system itself does not include
any nuclear, biological, or chemical sensors. MICAD
interfaces with various sensors but did not actually in-
clude any such sensors.” J.A. 527. With respect to the
UAVs, Lockheed Martin submitted declarations from two
of its engineers, both stating that they were unaware of
any UAVs made or sold by Lockheed Martin that contain
particle detectors. J.A. 530; J.A. 2138. Mr. Yufa cites to
no evidence contrary to the submitted declarations.
Accordingly, we affirm summary judgment with respect to
those two accused products.
We turn next to BAWS and BPSI, the two accused
products that the district court held do not meet the
“without using a reference voltage” limitation present
(with some minor variations) in every asserted claim.
Lockheed Martin submitted the sworn declaration of an
expert witness, who reviewed the schematics and source
code of the particle detectors used in those two products.
According to the expert, neither of the products converts
an analog signal to a digital signal “without using a
reference voltage.” J.A. 1576-81. Mr. Yufa did not supply
evidence creating a genuine evidentiary dispute about the
issue. He merely asserted that he “believes that no
company would continue to use old technology,” i.e., a
10 YUFA v. LOCKHEED MARTIN CORPORATION
reference voltage, and that “consequently . . . there must
have been . . . changes that infringe his patents.” Br. of
Appellant 5; see also, e.g., J.A. 2068-69 (Mr. Yufa opposing
Lockheed Martin’s contention that “us[ing] reference
voltages [is] the only means for determining particle
sizes” in the accused devices by stating: “Disputed . . . due
[to] incorrect language of [Lockheed Martin’s proposed]
fact and not identified type of comparator”). Such bare
allegations and denials are not sufficient to establish a
genuine issue of material fact. E.g., Enzo Biochem, Inc. v.
Applera Corp., 599 F.3d 1325, 1337 (Fed. Cir. 2010)
(“When a motion for summary judgment is properly made
and supported, an opposing party may not rely merely on
allegations or denials in its own pleading; rather, its
response must—by affidavits or as otherwise provided in
this rule—set out specific facts showing a genuine issue
for trial.”). We therefore affirm summary judgment of
non-infringement with respect to BAWS and BPSI.
What remains is the fifth accused product, LaserNet
Fines, which the district court concluded as a matter of
law “determines the detected particle’s size through an
analysis and comparison of captured images, not strobe
pulse packs,” which all asserted claims require. J.A. 16.
In the district court, Mr. Yufa neither submitted nor
identified any substantial evidence that the strobe-pulse
limitation is met by LaserNet Fines. In this court, Mr.
Yufa raises a new series of arguments that LaserNet’s
image comparison meets the strobe-pulse limitation,
basing his arguments only on what he claims are general
principles “widely known” in the industry. Br. of Appel-
lant 52-53. Not only is his appeal too late to present
important new analyses of facts, but a party’s argument
in its legal brief “is no substitute for evidence” and “is
insufficient” to withstand a motion for summary judg-
ment. Enzo Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d
1276, 1284 (Fed. Cir. 2005) (making this point as to
attorney argument). Nor do Mr. Yufa’s arguments in his
YUFA v. LOCKHEED MARTIN CORPORATION 11
brief merely enable us to recognize what the record evi-
dence already says. Evidence would have been needed to
establish that the image comparisons of LaserNet Fines
involve strobe pulses as the asserted claims require.
There is no such evidence. We therefore affirm the grant
of summary judgment with respect to LaserNet Fines.
CONCLUSION
For the foregoing reasons, we affirm the judgment of
non-infringement with respect to every accused product.
AFFIRMED
No costs.