Smith v. Garlock Equipment Company , 658 F. App'x 1017 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRENT E. SMITH, AES RAPTOR, LLC,
Plaintiffs-Appellees
v.
GARLOCK EQUIPMENT COMPANY,
Defendant-Appellant
______________________
2015-1758
______________________
Appeal from the United States District Court for the
Western District of Missouri in No. 5:13-cv-00104-GAF,
Judge Gary A. Fenner.
______________________
Decided: August 23, 2016
______________________
DAVID LOUIS MARCUS, Bartle & Marcus LLC, Kansas
City, MO, argued for plaintiffs-appellees. Also represent-
ed by DONNA DENISE MASHBURN CHAPMAN, Mashburn
Law Office, LLC, Lee’s Summit, MO.
PAUL SMITH, Larkin Hoffman Daly & Lindgren, Ltd.,
Minneapolis, MN, argued for defendant-appellant. Also
represented by GLENNA GILBERT, LAURIS A. HEYERDAHL.
______________________
2 SMITH v. GARLOCK EQUIPMENT COMPANY
Before O’MALLEY, LINN, and STOLL, Circuit Judges.
O’MALLEY, Circuit Judge.
This appeal arises from a jury verdict finding Garlock
Equipment Company (“Garlock”) liable for infringement
of the asserted claims of U.S. Patent No. 8,240,431 (the
“’431 Patent”), and awarding damages for lost profits and
reasonable royalties. Garlock moved for judgment as a
matter of law on both findings. The district court denied
Garlock’s motions and proceeded to issue an injunction
prohibiting infringing activities involving the accused
products. Garlock now appeals the district court’s denial
of its motions for judgment as a matter of law and the
district court’s injunction order. For the reasons set forth
below, we reverse the district court’s denial of judgment as
a matter of law regarding infringement. Because the
accused devices do not infringe the asserted claims of the
’431 patent, we vacate the jury award of damages and the
district court’s injunction order.
BACKGROUND
A brief review of the patented technology, the accused
products, and the procedural background of the district
court litigation is helpful to understanding the present
appeal.
The Patent in Suit
The ’431 patent claims a fall-arresting safety device
typically used to prevent a worker from falling off a roof.
’431 patent, at Abstract. Generally, the device works such
that a worker’s fall causes an “arrestor arm” to swing
down and connect with the ground, gripping the ground
and halting the worker’s fall. Id. The figures below show
the device in the raised/resting (left) and engaged (right)
position, where the arm swings down to connect with the
ground. The worker is usually connected via a tether to
the ring 32 at the left of each image.
SMITH v. GARLOCK EQUIPMENT COMPANY 3
’431 patent, at Figs. 3 and 4.
The ’431 patent contains independent claims 1 and 5,
which are both at issue in this suit. Claim 1 reads as
follows:
1. An apparatus adapted for use on an elevated
surface, and for arresting the fall of a person from
the surface, the apparatus comprising:
an apparatus support defining lateral and longi-
tudinal extents,
an arrestor assembly connected to said apparatus
support, and further comprising:
an arrestor arm fully contained within the ex-
tents, pivotally mounted to the support at a
first end, and presenting a free second end,
wherein the arm is shiftable between a raised
non-engaged position and a lowered engaged
position, and a gravitational moment-force
acts upon the arm at the second end,
a gripping plate fully contained within the ex-
tents, and secured to the second end, wherein
the plate is spaced from the surface in the
non-engaged position, and bears upon, so as to
grip, the surface in the engaged position
a bias member drivenly coupled to the arm
and generating a second force greater than the
gravitational moment-force so as to normally
4 SMITH v. GARLOCK EQUIPMENT COMPANY
retain the second end in the non-engaged posi-
tion, and
a tether configured for connection to said per-
son, connected to the arm, and operable to
transmit an additional force to the arm when
the person undergoes a fall from the surface,
such that the additional and gravitational-
moment forces cooperatively overcome the
second force and cause the arm to shift to the
engaged position, thereby arresting the fall.
’431 patent, at col. 7, l. 38-col. 8, l. 7 (emphasis added).
The primary claim limitation at issue with respect to
claim 1 is that the apparatus include a tether.
Claim 5 recites:
5. An apparatus for arresting a fall of a person
comprising:
a vehicle having a vehicle structure and tires for
placement on a roof surface;
An arrestor assembly connected to the vehicle
structure, shiftable between a raised position and
a lowered position, and further including,
an arrestor arm spaced away from the roof
surface in the raised position, the arrestor
arm being biased in the raised position by an
arm support, and
an engagement plate connected to the arrestor
arm, the engagement plate being spaced from
the roof surface and adjacent to the vehicle
structure when in the raised position and the
engagement plate engaging the roof surface in
the lowered position;
an internal cable defining a first end and a
second end, the first end being coupled to the
SMITH v. GARLOCK EQUIPMENT COMPANY 5
arrestor assembly to communicate a force to
the arrestor assembly, wherein the force causes
the arm to shift to the lowered position;
a cable passage fixedly connected to the vehi-
cle structure and including an angle mount
defining a cross sectional opening leaving a
maximum diameter through which the inter-
nal cable is entrained; and
a cable connector member connected to the
second end of the internal cable and disposed
adjacent the mount opposite the arm, present-
ing a lateral dimension greater than the di-
ameter, so as to limit cable travel in one
direction and cooperatively define the non-
engaged position, and configured for remova-
ble attachment to at least one safety cable op-
posite the internal cable.
Id. at col. 8, ll. 14-44 (emphases added). The primary
limitation at issue with respect to claim 5 is the require-
ment that the arrestor assembly and the arm be shiftable
to a lowered position.
The Accused Products
Plaintiffs Brent E. Smith and AES Raptor, LLC (col-
lectively, “Smith”) sued Garlock for infringement of claims
1 and 5 based on Garlock’s sales of the Multi-Man and the
Twin-Man, two fall-arresting devices. The Twin-Man is
more portable and restrains only two workers, while the
Multi-Man is capable of restraining more workers. Appel-
lant Br. at 3 n.3. Both the Multi-Man and the Twin-Man
use an arm that digs into the ground to halt a worker’s
fall. Joint Appendix (“J.A.”) 1018, 1024.
Smith alleges that the Multi-Man infringes claim 5 of
the ’431 patent. In the Multi-Man design, an arrestor
arm with a gripping piece at the bottom slides linearly
along an axis to dig the gripping piece into the ground.
SMITH v. GARLOCK EQUIPMENT COMPANY 7
J.A. 1018. The force causing the rotation comes from a
tether connected to the falling worker, depicted in line 62
at the right of each figure.
Procedural History
Smith sued Garlock in February 2013 for infringe-
ment of the ’431 patent. After holding a Markman hear-
ing, the district court issued a claim construction order on
February 14, 2014. The court held that the terms “shift”
and “shift to” mean “pivot” and “pivot to,” respectively.
Following the claim construction order, Garlock
moved for summary judgment of noninfringement regard-
ing the accused Multi-Man product. Garlock argued that
the arrestor arm in the Multi-Man device was capable
only of sliding, and thus could not “pivot,” as required by
the court’s claim construction. Appellant Br. at 5.
The district court noted that Smith’s expert, James
Kernell, Esq., offered testimony of infringement regarding
every limitation of claim 5. Finding that Mr. Kernell’s
testimony demonstrated the existence of a genuine dis-
pute of material fact regarding infringement by the Multi-
Man device, the district court denied Garlock’s summary
judgment motion.
The litigation proceeded to trial. Following trial, the
jury found that the Multi-Man infringed claim 5 of the
’431 patent and that the Twin-Man infringed claim 1 of
the ’431 patent. J.A. 1. The jury proceeded to award
Smith $322,484.94 in lost profits, in addition to reasona-
ble royalties equal to 4.75% of the total sales for each
device. J.A. 6.
Garlock then moved for judgment as a matter of law
that the Multi-Man and Twin-Man do not infringe the
asserted claims of the ’431 patent. Garlock also moved for
judgment as a matter of law, or in the alternative for a
new trial, on damages. The district court denied Gar-
lock’s motions.
8 SMITH v. GARLOCK EQUIPMENT COMPANY
Garlock then moved for an additional stay of the
judgment, pending appeal, beyond the 14 days prescribed
in FRCP 62(a). J.A. 38. Smith did not oppose Garlock’s
request, but Smith requested that the court enjoin Gar-
lock from continuing to sell the Multi-Man and Twin-Man
products. The district court granted both Garlock’s mo-
tion to stay the judgment and Smith’s request for an
injunction. J.A. 40.
Garlock now appeals.
DISCUSSION
Garlock argues that the district court erred in deny-
ing its motions for judgment as a matter of law regarding
noninfringement and damages. Garlock further contends
that the district court erred in entering the injunction
order. For the reasons below, we hold that the district
court erred in denying Garlock’s motion for judgment as a
matter of law of nonfringement regarding the asserted
claims. As a result, we also vacate the jury award of
damages and the district court’s injunction order.
Standard of Review
On issues not unique to patent law, we review district
court decisions on motions for judgment as a matter of
law under the law of the regional circuit. Sulzer Textil
A.G. v. Picanol N.V., 358 F.3d 1356, 1363 (Fed. Cir. 2004).
The Eighth Circuit reviews de novo a district court’s
decision on a motion for judgment as a matter of law.
Shaw Group, Inc. v. Marcum, 516 F.3d 1061, 1064 (8th
Cir. 2008).
Under Eighth Circuit law, “[j]udgment as a matter of
law is only appropriate where the evidence adduced at
trial is entirely insufficient to support the verdict.” Shaw
Grp., Inc. v. Marcum, 516 F.3d 1061, 1064–65 (8th Cir.
2008). Thus, we may not set aside the district court’s
judgment in this case “unless there is a complete absence
of probative facts to support the verdict and only specula-
SMITH v. GARLOCK EQUIPMENT COMPANY 9
tion supports the verdict.” Id. While the standard to set
aside a jury verdict is unquestionably high, in the present
case we find the standard satisfied.
Multi-Man Infringement
Garlock argues on appeal that the district court erred
in denying its motion for judgment as a matter of law on
the Multi-Man infringement issue. Specifically, Garlock
asserts that Smith did not present substantial evidence
that the following limitation of claim 5 was met:
[A]n internal cable defining a first end and a sec-
ond end, the first end being coupled to the arres-
tor assembly to communicate a force to the
arrestor assembly, wherein the force causes the
arm to shift to the lowered position[.]
’431 patent, at col. 8, ll. 28-32. Garlock contends that this
claim limitation specifically requires the arm, and not
another portion of the arrestor assembly, to pivot because
the language reads “the force causes the arm to shift”.
In response, Smith contends that while “there was
conflicting evidence at trial as to how the ‘pivot’ limitation
of claim 5 could be met,” such evidentiary disputes are
precisely the type of instance in which we must defer to
the jury verdict. Smith further argues in the alternative
that “claim 5 is satisfied so long as a pivotal movement is
involved in the operation of the arrestor arm.” Appellee
Br. at 18-20 (emphasis added).
A patent claim is literally infringed only if the accused
device embodies each limitation of the asserted claim.
Research Plastics, Inc. v. Fed. Packaging Corp., 421 F.3d
1290, 1297 (Fed. Cir. 2005) (citation omitted). The ab-
sence of a single limitation in the asserted claim thus
defeats literal infringement. Id. Expert testimony that
fails to show how the accused device meets a particular
limitation cannot constitute substantial evidence support-
10 SMITH v. GARLOCK EQUIPMENT COMPANY
ing a finding of literal infringement. See Johns Hopkins
Univ. v. Datascope Corp., 543 F.3d 1342 (Fed. Cir. 2008).
In support of its infringement allegations, Smith
submitted Mr. Kernell as an expert to explain how the
Multi-Man performs each limitation of claim 5 of the ’431
patent. On cross examination, Garlock focused on demon-
strating that the Multi-Man does not satisfy the claim
limitation “wherein the force causes the arm to shift to
the lowered position.” In particular, Garlock asked Mr.
Kernell to explain how the Multi-Man arm “pivots.” The
following exchange is exemplary of the dialogue between
Garlock’s counsel and Mr. Kernell on this point:
A: That pulley rotates and pivots to drive that
arm down into the surface, and that is the pivotal
movement of that arm.
Q: So it’s your opinion that this arm pivots?
A: Yes. The entire assembly, that pivoting of that
arm around that pulley that is my opinion.
Q: I’m not asking about the entire assembly.
We’re talking about the arm. This item says the
arm pivots. This arm does not pivot, does it?
A: No. That’s not correct. That is not my opinion.
If you look at the claim language, you’re taking
something out of context. In the claim language it
says the arrestor assembly has this pivoting mo-
tion with the arm, and it is the pivoting around
that pulley that causes the arrestor assembly to
shift or pivot between the raised position and the
lowered position.
Q: Sir, back to our infringement definition. Each
and every element of the patent claim must be in-
cluded in the product; and as to Claim 5, the Mul-
ti-Man does not – Multi-Man’s arm does not pivot,
and therefore, it does not infringe, correct?
SMITH v. GARLOCK EQUIPMENT COMPANY 11
A: No. That’s not correct.
J.A. 2104-05. Notably, Mr. Kernell did not answer the
question of whether the Multi-Man’s arrestor arm itself
pivoted. Mr. Kernell instead testified that there was
some pivoting motion involved in the arrestor assembly as
a whole, and that this motion was sufficient to satisfy the
claim limitation requiring that the arm itself pivot. See
id.Garlock also presented its own expert, Dr. Elliot
Stern, who testified that the Multi-Man does not infringe
claim 5 because the arrestor arm does not pivot.
[I]n questioning whether it literally infringes it
must have each and every claim element . . . . for
one example . . . . ‘The force causes the arm to
shift to the lowered position.’ The [c]ourt’s defini-
tion of shift is to pivot. Mechanically one of ordi-
nary [skill] in the art could clearly understand a
pivot to be a rotational motion or an angular dis-
placement about a point or a pin, which is often
called the pivot; and, as such, the Multi-Man does
not pivot. The arm slides in a guide. There is no
fixed end and free end of the arm and it has a lin-
ear motion. It doesn’t rotate about the pin.
J.A. 2370. Dr. Stern emphasized that the arm itself
cannot pivot because its movement is restricted to sliding
within the guide.
Smith contends that the disputed claim limitation
does not require the arrestor arm itself to move, but
instead only requires that pivotal movement be involved
in the operation of the arrestor arm. Specifically, Smith
argues that because the “Multi-Man cart’s use of a pulley
satisfied Claim 5 of the ’431 Patent, there was no need for
the arrestor arm to rotate.” Appellant Br. at 26. Smith’s
argument is belied by the actual language of the disputed
limitation:
12 SMITH v. GARLOCK EQUIPMENT COMPANY
[A]n internal cable defining a first end and a sec-
ond end, the first end being coupled to the arres-
tor assembly to communicate a force to the
arrestor assembly, wherein the force causes the
arm to shift to the lowered position[.]
’431 patent, at col. 8, ll. 28-32 (emphasis added). The
claim limitation unambiguously requires “the arm,” and
not some other component of the assembly, to “shift.”
Because the parties do not appeal the correctness of the
district court’s construction of “shift” to mean “pivot,” we
do not reach this issue. 1 Thus, applying the district
1 In a single footnote in its brief, Smith contends
that “[w]hile Plaintiffs disagree with this construction, as
the prevailing parties below, they lack standing to appeal
the district court’s claim construction order.” Appellee Br.
at 7 n.3 (citing Novartis Pharmaceuticals Corp. v. Abbott
Labs., 375 F.3d 1328, 1339 (Fed. Cir. 2004)). Smith then
stated in an isolated sentence that “if this Court is in-
clined to reverse the district court’s entry of judgment, it
also should reverse the district court’s claim construction
order and hold that the phrase ‘shift to,’ as used in claim
5, must be given its common and ordinary meaning in any
retrial of this matter.” Id. Smith’s comment is appealing
on its face; the plain meaning of the term “shift” does
seem different from the term “pivot.” We nonetheless do
not have occasion to address whether the district court’s
claim construction was proper because Smith has failed to
present any argument on appeal beyond their single
conclusory statement that we “should reverse the district
court’s claim construction.” See SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir.
2006) (holding that when “a party includes no developed
argumentation on a point . . . we treat the argument as
waived”).
SMITH v. GARLOCK EQUIPMENT COMPANY 13
court’s claim construction, the plain language of the claim
requires the arrestor arm itself to rotate. Upon our
review of the record, we see no evidence that could sup-
port Smith’s allegation that the arrestor arm of the Multi-
Man meets this claim limitation.
Our prior decision in Johns Hopkins controls the pre-
sent dispute. In Johns Hopkins, we considered infringe-
ment of a claim to a method for mechanically fragmenting
blood clots to prevent occlusion of blood vessels. Id. at
1343. The patent described a “fragmentation cage” that
first expands to conform to the inner walls of a vein. Id.Smith is also incorrect to assert that Novartis barred
Smith from advancing its claim construction arguments
on appeal. In Novartis, we held as follows:
[A] party who prevails on noninfringement has no
right to file a “conditional” cross-appeal to intro-
duce new argument or challenge a claim construc-
tion, but may simply assert alternative grounds in
the record for affirming the judgment. It is only
necessary and appropriate to file a cross-appeal
when a party seeks to enlarge its own rights un-
der the judgment or to lessen the rights of its ad-
versary under the judgment.
Novartis, 375 F.3d at 1339. Accordingly, we dismissed as
improper the prevailing party’s cross-appeal concerning
the claim construction, precisely because that party
prevailed before the district court. Thus, while Smith
could not have filed a cross appeal in this case concerning
the claim construction, Smith could have asserted “alter-
native grounds in the record for affirming the judgment.”
Because Smith did not raise any such alternate grounds
on appeal, we cannot address the correctness of the dis-
trict court’s claim construction.
14 SMITH v. GARLOCK EQUIPMENT COMPANY
After expanding, the cage rotates to break up the throm-
botic material. Id. at 1343-44.
The asserted claims required a “fragmentation mem-
ber” to “expand[] to conform to the shape and diameter of
the inner lumen.” Id. at 1346. The district court in-
structed the jury that this limitation meant the fragmen-
tation member “remained in contact with the inner lumen
in three dimensions along its length and width.” Id. The
accused infringing device was an S-shaped device that,
while resting, contacted the walls of the vein in only two
places, but could rotate like a corkscrew and thus contact
the “inner lumen” in multiple dimensions. Plaintiff’s
expert opined that the S-wire “expanded and adjusted to
remain in contact with the inner lumen in three dimen-
sions along its length and width.” Id. at 1346. After trial,
the jury found that the accused device infringed the claim.
Id. at 1344. Defendant then moved for judgment as a
matter of law of noninfringement, and the district court
denied defendant’s motion. Id.On appeal, we held that the testimony from Plaintiff’s
expert was not credible, because the expert failed to
address the requirement that the fragmentation member
remain in contact with the lumen in three dimensions
before rotation and because it was impossible for the
accused device to meet the “expand to conform” limitation
while not rotating. Id. Thus, we held that the expert
testimony could not constitute substantial evidence that
the accused infringing device met this limitation. Id. We
accordingly reversed the district court’s denial of Defend-
ant’s motion for judgment as a matter of law of nonin-
fringement. Id.Here, Mr. Kernell’s testimony on Multi-Man in-
fringement is similarly not credible. Mr. Kernell testified
that the pulley in the arrestor assembly performed the
requisite rotating and pivoting motion, and “that is the
pivotal movement of that arm.” J.A. 2104-05. Such
SMITH v. GARLOCK EQUIPMENT COMPANY 15
testimony cannot constitute substantial evidence that the
arrestor arm itself pivots. Instead, the only relevant
evidence of record appears to indicate that the Multi-Man
does not have an arm that is capable of rotational move-
ment. According to Dr. Stern’s unrebutted testimony, the
Multi-Man arm only “slides” along a linear axis.
J.A. 2370.
The present case does not involve a simple “battle of
the experts,” wherein the fact finder must weigh the
merits of the competing expert testimony. Here, the
record does not evidence a disagreement between the
experts as to whether the arrestor arm is pivoting. In
light of the absence in the record of any evidence that
could support the jury’s verdict of infringement, we must
reverse the district court’s denial of Garlock’s motion for
judgment as a matter of law on the issue of whether the
Multi-Man infringes claim 5. See The Shaw Group v.
Marcum, 516 F.3d 1061, 1065 (Fed. Cir. 2008) (holding
that judgment as a matter of law is appropriate where
there is a “complete absence of probative facts and only
speculation supports the verdict”).
Twin-Man Infringement
Garlock next argues that the district court erred in
denying its motion for judgment as a matter of law re-
garding noninfringement of claim 1. Garlock contends
that the jury verdict of infringement must be reversed
because there is no evidence that the Twin-Man meets the
claim limitation requiring a tether. Appellant Br. at 29.
Smith responds that there is substantial evidence
demonstrating that Garlock sold, or at least offered for
sale, the Twin-Man with a tether.
We agree with Garlock that there is no competent ev-
idence of record regarding whether the tether limitation is
met. Therefore, we reverse the judgment of the district
16 SMITH v. GARLOCK EQUIPMENT COMPANY
court denying Garlock’s motion for judgment as a matter
of law of noninfringement concerning claim 1.
First, we consider whether Garlock sold the Twin-
Man with a tether; then we consider whether Garlock
offered for sale the Twin-Man with a tether. Smith ar-
gued that Garlock sold the Twin-Man with a tether be-
cause its sister companies and distributors, Garlock East
and Garlock Chicago, sold units with a tether.
In its Complaint, Smith alleged that Garlock directly
infringes claim 1 of the ’431 patent. Direct infringement
under 35 U.S.C. § 271(a) requires a patentee to prove that
an accused infringer committed “all acts necessary to
infringe the patent, either personally or vicariously.”
Aristocrat Tech. Aust. PTY Ltd. v. Int’l Game Tech., 709
F.3d 1348, 1362 (Fed. Cir. 2013) (citation omitted). Acts
of a subsidiary company are not imputed to a parent
company unless evidence supports “piercing the [corpo-
rate] veil.” United States v. Bestfoods, 524 U.S. 51, 62
(1998).
The parties do not dispute that certain of Garlock’s
separately incorporated “sister” companies, Garlock
Chicago and Garlock East, have sold the Twin-Man with a
tether. J.A. 2179, 2243. Garlock states, however, that it
does not itself sell the Twin-Man unit with a tether. We
note that Smith does not present any affirmative evi-
dence, such as any invoices or receipts, of such sales by
Garlock. Moreover, Smith did not produce any evidence
to support a theory of piercing the corporate veil. In the
absence of such evidence, we cannot hold Garlock liable
for the sales of its sister companies. Bestfoods, 524 U.S.
at 62. Therefore, we hold that the evidence at trial could
not support a finding that Garlock itself sold, either
directly or vicariously, an infringing device.
We next consider Smith’s argument that Garlock of-
fered for sale the Twin-Man with a tether. A party offers
to sell an infringing product when it communicates a
SMITH v. GARLOCK EQUIPMENT COMPANY 17
“willingness to enter into a bargain, so made as to justify
another person in understanding that his assent to that
bargain is invited and will conclude it.” MEMC Elec.
Materials, Inc. v. Mitsubishi Materials Silicon, Inc., 420
F.3d 1369, 1376 (Fed. Cir. 2005) (citation omitted).
Garlock advertised the Twin-Man, formerly called the
Single Man, in the following image:
J.A. 999. The image states a price (“starting at only
$1400”), shows a man connected via a tether to the Twin-
Man product, and provides Garlock’s contact information
for the purchase of the product.
Smith argues that Garlock’s advertisement consti-
tutes an offer for sale. Mr. Kernell testified that this
advertisement and other marketing materials constituted
an offer for sale. J.A. 2084-85. Mr. Kernell also refer-
enced the fact that the Twin-Man could not be used
18 SMITH v. GARLOCK EQUIPMENT COMPANY
without the tether and pointed to a section of the instruc-
tion manual showing a tether attached to the unit. J.A.
2107-09.
In general, advertisements are not considered offers
for sale, but are instead merely solicitations for offers. As
specified in the Second Restatement of Contracts:
Advertisements of goods by display, sign, hand-
bill . . . are not ordinarily intended or understood
as offers to sell. The same is true of catalogues,
price lists and circulars, even though the terms of
some suggested bargains may be stated in some
detail.
Restatement (Second) of Contracts § 26, Comment
b. Accordingly, we have noted that “contract law tradi-
tionally recognizes that mere advertising and promoting
of a product may be nothing more than an invitation for
offers, while responding to such an invitation may itself
be an offer.” Grp. One, Ltd. v. Hallmark Cards, Inc., 254
F.3d 1041, 1048 (Fed. Cir. 2001). Thus, “[g]enerally, it is
considered unreasonable for a person to believe that
advertisements and solicitations are offers that bind the
advertiser.” Mesaros v. United States, 845 F.2d 1576,
1581 (Fed. Cir. 1988). Group One and Mesaros therefore
indicate that Garlock’s general advertisement does not
constitute an offer to sell the Twin-Man with a tether.
Smith argues that the present case is akin to 3D Sys-
tems, Inc. v. Aarotech Laboratories, Inc., 160 F.3d 1373(Fed. Cir. 1988), wherein we held that price quotations
could constitute an offer for sale. In Aarotech, the accused
infringers sent price quotations for an allegedly infringing
device directly targeted at potential customers. Id. at
1376. Noting that such price quotations “generat[ed]
interest in a potential infringing product to the commer-
cial detriment of the rightful patentee,” we held that the
price quotations constituted an offer for sale. Id. at 1379.
Here, Smith has produced only evidence that Garlock
SMITH v. GARLOCK EQUIPMENT COMPANY 19
issued a general advertisement for its Twin-Man product,
which showed use with a tether, with no reference to the
Twin-Man and tether being offered for sale collectively.
Smith’s reliance on Aarotech is therefore misplaced.
Smith has produced no evidence that Garlock issued price
quotations to specific customers for the sale of the Twin-
Man with a tether.
We therefore conclude that there was no evidence in
the record upon which the jury could have found that the
accused Twin-Man device met the limitation of claim 1
requiring use of a tether. Accordingly, we reverse the
judgment of the district court denying Garlock’s motion
for judgment as a matter of law concerning noninfringe-
ment of claim 1.
CONCLUSION
As discussed above, the district court erred in denying
Garlock’s motion for judgment as a matter of law that the
Multi-Man and Twin-Man products do not infringe the
asserted claims of the ’431 patent. Accordingly, we re-
verse the judgment of the district court concerning in-
fringement of the asserted claims. Because the accused
devices do not infringe, we vacate the jury award of
damages and the district court’s injunction order.
REVERSED-IN-PART AND VACATED-IN-PART
COSTS
No costs.