Yufa v. Tsi, Incorporated , 652 F. App'x 939 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALEKSANDR L. YUFA,
Plaintiff-Appellant
v.
TSI, INCORPORATED,
Defendant-Appellee
______________________
2015-1063, 2015-2007, 2016-1134
______________________
Appeals from the United States District Court for the
Central District of California in No. 8:12-cv-01614-FMO-
JCG, Judge Fernando M. Olguin.
______________________
Decided: June 14, 2016
______________________
ALEKSANDR L. YUFA, Colton, CA, pro se.
COURTLAND COLLINSON MERRILL, Anthony Ostlund
Baer & Louwagie P.A., Minneapolis, MN, for defendant-
appellee. Also represented by DANIEL RYAN HALL; BRUCE
HOWARD LITTLE, Lindquist & Vennum PLLP, Minneap-
olis, MN.
______________________
Before NEWMAN, DYK, and WALLACH, Circuit Judges.
2 YUFA v. TSI, INC.
WALLACH, Circuit Judge.
In three separate appeals, Appellant Dr. Aleksandr L.
Yufa challenges various decisions of the United States
District Court for the Central District of California. 1 For
reasons discussed below, we solely address issues raised
in Appeal No. 2015-1063. In that appeal, Dr. Yufa chal-
lenges the district court’s summary judgment decision
that Appellee TSI, Incorporated (“TSI”) did not infringe
U.S. Patent Nos. 5,767,967 (“the ’967 patent”), 5,946,091
(“the ’091 patent”), 6,034,769 (“the ’769 patent”), and
7,439,855 (“the ’855 patent”) (collectively, “the patents-in-
suit”). See Yufa v. TSI, Inc., No. 8:12-cv-01614-FMO-JCG
(C.D. Cal. Sep. 22, 2014) (J.A. 2–28). We affirm.
BACKGROUND
The patents-in-suit relate to methods and devices for
counting and measuring particles in gases and fluids. Dr.
Yufa raises arguments in his opening brief pertaining
only to the district court’s grant of summary judgment of
non-infringement for the ’769 and ’855 patents. Thus,
only the ’769 and ’855 patents are at issue in this appeal.
The ’769 patent claims a method and a device for counting
and measuring particles without using a reference voltage
to determine the size of the detected particles. The ’855
patent is directed to a method and an apparatus for
remotely controlling an environmental monitoring sys-
tem.
1 In September 2015, this court consolidated Appeal
Nos. 2015-1063 and 2015-1007. See Yufa v. TSI, Inc., No.
2015-1063, Docket No. 40 at 2 (Fed. Cir. Sept. 29, 2015).
In November 2015, this court further consolidated Appeal
Nos. 2015-1063, 2015-1007, and 2016-1134. See Yufa v.
TSI, Inc., No. 2015-1063, Docket No. 51 at 1 (Fed. Cir.
Nov. 11, 2015).
YUFA v. TSI, INC. 3
I. The ’769 Patent
The ’769 patent is entitled “Method and Device for
Counting and Measuring Particles” and discloses “devices
and instruments for particle quantity counting and parti-
cle size measuring by light or laser beam.” ’769 patent
col. 1 ll. 6–7.
The prior art’s method of counting and measuring
particles utilized “light scattering focalizing methods,”
which are based “on the collection of the scattered light.”
Id. col. 2 ll. 5–6. Particles are introduced into a laser
beam at a first focal point, which is then “collect[ed] and
focalize[d] at the second focal point [] [via mirrors or
optics], where a light detector is placed and intended for
scattered light detection.” Id. col. 2 ll. 10–13. “The ampli-
fied detected signal is compared with the predetermined
reference voltage for the particle size qualifying.” Id. col.
3 ll. 12–14. However, using this method “creates [] back-
ground (light noises) inside such devices, creat-
ing . . . incorrectness of the resulting information about
the measured environment.” Id. col. 2 l. 66–col. 3 l. 1.
The ’769 patent discloses “[a]n improved method of
counting and measuring particle[] forms [through a]
direct detection process, eliminating the light scattering
detection principles.” Id. col. 4 ll. 19–21. “A light or laser
beam intersects a particle flow inside a light detecting
system in the light detection means area.” Id. col. 4 ll.
25–26. “The signals, detected by light detection means
through an analog-digital subsystem[,] follow to a pro-
cessing system for signal processing and information
displaying.” Id. col. 4 ll. 27–30. “When the particles of
the particle flow intersect the light beam, the intensity of
the light beam on the light detection means [] will be less
than at the time when the particles are missing, because
the presence of a particle in the light beam is an obstruc-
tion for the light in the direction to the light detection
means [].” Id. col. 5 ll. 20–25. “The bigger the particle,
4 YUFA v. TSI, INC.
the less light intensity on the light detection means [].”
Id. col. 5 ll. 25–26.
Independent claim 1 is illustrative and recites, in rel-
evant part:
A method for counting and measuring particles il-
luminated by a light beam and including the steps
of:
providing by a light detecting system an output
which is effectively indicative of a size of said par-
ticles intersecting said light beam within a parti-
cle monitoring region of said light detecting
system so that said particles are monitored within
said particle monitoring region, and wherein a
light, created by [the] an intersection of said par-
ticles with said light beam, is proportional to said
output:
amplifying said output by an amplifying means;
converting each amplified signal to a digital form
pulse [having an adequate duration with said
output] without using a reference voltage to con-
vert each said amplified signal, wherein said digi-
tal form pulse has a duration which is adequate to
a baseline duration of said output of said light de-
tecting system.
Ex Parte Reexamination Certificate to U.S. Patent No.
6,034,769 (Issued Feb. 23, 2010) (“First Reexamination
Certificate”) col. 1 l. 61–col. 2 l. 10 (brackets designate
text removed from the patent and italics designate text
added to the patent). 2 Claims 1, 4, and 6 all require
2 The ’769 patent underwent three ex parte reexam-
inations. During the first reexamination, claims 2 and 3
were canceled; claims 1, 4, and 6 were determined to be
patentable as amended; and claim 5, which depends from
YUFA v. TSI, INC. 5
conversion of the amplified signal “without using a refer-
ence voltage.” See id. col. 2 ll. 6–7 (claim 1); id. col. 2 ll.
52–58 (claim 4); id. col. 4 ll. 1–8 (claim 6).
II. The ’855 Patent
The ’855 patent is entitled “Method and Wireless
Communicating Apparatus for Analysis of Environment”
and discloses a method and a “wireless communicating
apparatus for analysis of [the] environment including a
wireless communication system/means, intended for
wireless communication . . . and wireless control of at
least one of a plurality of environment monitoring sys-
tems . . . .” ’855 patent col. 4 ll. 59–66. The wireless
“control signal can provide, for example, [the] possibility
to switch ‘on/off’, to switch ‘run/stop’, to select and change
the particle counting and measuring channels, to provide
remote sensor diagnostics, to switch the mode [] from
particle counting and measuring to concentration deter-
mination . . . , etc.” Id. col. 2 l. 67–col. 3 l. 7. Wireless
communication with and control of the environmental
monitoring systems allows users “to eliminate the pres-
ence of the operator in the clean rooms,” id. col. 3 ll. 52–
53, as well as eliminate the use of “long wire (long cable)
connections,” which “can create interference [via electro-
magnetic noise] . . . thereby limiting the sensitivity and
efficiency of the environmental analyzers,” id. col. 1 ll. 58–
63.
amended claim 4, was determined to be patentable. See
First Reexamination Certificate col. 1 ll. 52–59. The
second and third reexaminations confirmed the patenta-
bility of claims 1, 4, 5, and 6. See Ex Parte Reexamina-
tion Certificate to U.S. Patent No. 6,034,769 (Issued Apr.
5, 2011) col. 2 ll. 4–5; Ex Parte Reexamination Certificate
to U.S. Patent No. 6,034,769 (Issued June 19, 2012) col. 2
ll. 4–5.
6 YUFA v. TSI, INC.
Independent claim 1 is illustrative and recites, in rel-
evant part:
A method for analysis of an environment moni-
tored by a ray or a light beam, said method,
providing a wireless communication, comprises
the steps of:
forming in a mobile control system at least one of
a plurality of control signals, which provide at
least one of a turning-on, turning-off, and/or
switching of modes of operation of an environment
monitoring system;
converting in said mobile control system said at
least one of said plurality of control signals to the
form for a wireless transmission;
wireless transmitting said at least one of said plu-
rality of control signals to said environment moni-
toring system.
Id. col. 17 ll. 23–34. All of the independent claims require
the “wireless transmitting” of “control signals” to an
“environment monitoring system.” See id. col. 17 ll. 33–34
(claim 1); id. col. 18 ll. 44–45 (claim 5); id. col. 19 ll. 27–29
(claim 8). Additionally, the independent claims all dis-
close substantially the same claim limitations. Compare
id. col. 17 l. 23–col. 18 l. 14 (claim 1), with id. col. 18 l. 34–
col. 19 l. 5 (claim 5), and id. col. 19 l. 20–col. 20 l. 35
(claim 8).
III. TSI’S Accused Products
“TSI manufactures and sells products used to deter-
mine air quality by evaluating the size of particles in the
air.” J.A. 280 (citation omitted). Dr. Yufa alleges that
TSI’s Non-Optical Devices, Pulse Height Detection Devic-
es, Pulse Integration Devices, and other products (collec-
tively, the “Accused Products”) infringe the patents-in-
suit. J.A. 39–58 (Dr. Yufa’s Complaint).
YUFA v. TSI, INC. 7
The Accused Products can be grouped into four cate-
gories: (1) Non-Optical Devices “that count[] and meas-
ure[] particles by utilizing diffusing charging of sample
particles, followed by detection of the charged aerosol
using an electrometer,” 3 J.A. 310 ¶ 14 (declaration of
TSI’s engineering manager, Ricky Holm); (2) Pulse Height
Detection Devices that “detect the intensity or amount of
light scattered off a particle to measure amplitude or
‘height’ of the voltage pulse . . . to infer particle size,” 4 J.A.
311 ¶ 14; (3) Pulse Integration Devices that “measure
particle size by integrating the output signal from the
photodetector over a period of time to calculate a pulse
‘area’ instead of pulse amplitude,” 5 J.A. 312 ¶ 14; and (4)
other products. 6
IV. Proceedings
3 Non-Optical Devices include the AEROTRAK Na-
noparticle Aerosol Monitor—i.e., the AEROTRAK 9000.
J.A. 310 ¶ 14.
4 Pulse Height Detection Devices include:
AEROTRAK Handheld Particle Counters 9303, 9306-01,
9306-02, 9306-V; AEROTRAK Portable Particle Counters
3306, 9110, 9310-01, 9350-01, 9510-01; AEROTRAK
Remote Particle Counters 7110, 7201, 7301, 7301-P, 7310,
7501, 7510; Optical Particle Sizer 3330; and DustTrak.
J.A. 311 ¶ 14.
5 Pulse Integration Devices include: AEROTRAK
Handheld Particle Counters 9306-03, 9306-04, 9306-V2;
AEROTRAK Portable Particle Counters 9310-2, 9350-02,
9500-1, 9510-2, 9550-02, 9350-3; and BIOTRAK Real-
Time Viable Particle Counter 9510-BD. J.A. 312 ¶ 14.
6 Other products include: TSI’s Facilities Manage-
ment System (“FMS”) software; Model 3800 Aerosol Mass
Spectrometers, Particle Size Selector 376060, Models
3321 and M32-01. J.A. 285 (citations omitted).
8 YUFA v. TSI, INC.
In September 2012, Dr. Yufa filed suit against TSI, al-
leging infringement of certain claims of the patents-in-
suit. In August 2013, TSI filed a joint claim construction
statement, which was adopted by the district court. The
remaining disputed terms were construed by the district
court in a September 2014 Order. In the same Order, the
district court granted TSI’s Motion for Summary Judg-
ment, finding the Accused Products do not infringe the
asserted claims of the patents-in-suit.
Dr. Yufa timely appealed. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(1) (2012).
DISCUSSION
In his opening brief, Dr. Yufa concedes that he “does
not raise . . . the issue(s) related to [Appeal Nos.] 2015-
2007 and 2016-1134.” Appellant’s Br. 1–2. The issues in
those appeals concern the district court’s decisions to
award attorney fees and costs to TSI, J.A. 1721–30, and
deny Dr. Yufa’s Motion for Relief under Rule 60(b)(3) of
the Federal Rules of Civil Procedure, J.A. 1769–70. In
any case, Dr. Yufa has not preserved any argument
related to these issues because he did not raise them in
his opening brief. See Engel Indus., Inc. v. Lockformer
Co., 166 F.3d 1379, 1383 (Fed. Cir. 1999) (“An issue that
falls within the scope of the judgment appealed from but
is not raised by the appellant in its opening brief on
appeal is necessarily waived.”).
Thus, we are left to address only the issues raised in
Appeal No. 2015-1063. In Appeal No. 2015-1063, Dr.
Yufa argues the district court erred in granting TSI’s
motion for summary judgment of non-infringement of the
YUFA v. TSI, INC. 9
’769 and ’855 patents. 7 We address these arguments
below.
I. Standard of Review and Legal Framework for Summary
Judgment of Non-Infringement
This court reviews summary judgment decisions un-
der the law of the regional circuit. MicroStrategy Inc. v.
Bus. Objects, S.A., 429 F.3d 1344, 1349 (Fed. Cir. 2005).
Applying the law of the Ninth Circuit, this court reviews
the grant of summary judgment de novo. Coons v. Sec’y of
U.S. Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004).
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
“A material issue of fact is one that affects the out-
come of the litigation and requires a trial to resolve the
7 In Appeal No. 2015-1063, Dr. Yufa also contends
that the district court erred in granting the motion for
summary judgment of non-infringement as to the ’967 and
’091 patents. Appellant’s Br. 20–21. These contentions
are not discussed in the argument portion of Dr. Yufa’s
opening brief and are waived. See In re Baxter Int’l, Inc.,
678 F.3d 1357, 1362 (Fed. Cir. 2012) (holding that a party
waives an argument that it raises in the background
section of its brief, but not in the argument section). Even
if this court were to exercise its discretion and consider
arguments that were not properly raised in the opening
brief, see SmithKline Beecham Corp. v. Apotex Corp., 439
F.3d 1312, 1320 n.9 (Fed. Cir. 2006), we would still find
waiver for failure to present a developed argument, see id.
at 1320 (“When a party includes no developed argumenta-
tion on a point . . . we treat the argument as waived under
our well established rule.” (internal quotation marks and
citation omitted)).
10 YUFA v. TSI, INC.
parties’ differing versions of the truth.” SEC v. Seaboard
Corp., 677 F.2d 1301, 1306 (9th Cir. 1982) (citation omit-
ted). “When determining whether a genuine issue of
material fact remains for trial, we must view the evidence
and all inferences therefrom in the light most favorable to
the non-moving party and may not weigh the evidence or
make credibility determinations.” Hauk v. JP Morgan
Chase Bank USA, 552 F.3d 1114, 1117–18 (9th Cir. 2009)
(citation omitted). However, “[t]he mere existence of a
scintilla of evidence in support of the [non-moving party’s]
position will be insufficient; there must be evidence on
which the [fact finder] could reasonably find for the [non-
moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
To prevail on its summary judgment motion, the mov-
ing party “must either produce evidence negating an
essential element of the nonmoving party’s claim or
defense or show that the nonmoving party does not have
enough evidence of an essential element to carry its
ultimate burden of persuasion at trial.” Nissan Fire &
Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th
Cir. 2000) (citation omitted). “If, however, a moving party
carries its burden of production, the nonmoving party
must produce evidence to support its claim or defense.”
Id. at 1103 (citations omitted). “If the nonmoving party
fails to produce enough evidence to create a genuine issue
of material fact, the moving party wins the motion for
summary judgment.” Id. (citation omitted).
II. The District Court Properly Granted
Summary Judgment
Dr. Yufa alleges that TSI’s Accused Products infringe
the ’769 and ’855 patents. We review questions regarding
patent infringement consistent with our precedent. See,
e.g., Dynacore Holdings Corp. v. U.S. Philips Corp., 363
F.3d 1263, 1273 (Fed. Cir. 2004). “The determination of
infringement requires a two-step analysis: (1) a proper
YUFA v. TSI, INC. 11
construction of the claim to determine its scope and
meaning, and (2) a comparison of the properly construed
claim to the accused device or process.” Conroy v. Reebok
Int’l, Ltd., 14 F.3d 1570, 1572 (Fed. Cir. 1994) (citation
omitted). Claim construction is not an issue in this case.
“With regard to the second step of the infringement
analysis, the patentee must prove that the accused device
embodies every limitation in the claim, either literally or
by a substantial equivalent.” Id. (citation omitted).
A. The ’769 Patent
The district court granted summary judgment of non-
infringement as to the ’769 patent. In doing so, the dis-
trict court reviewed Dr. Yufa’s claims of infringement
against TSI’s Non-Optical and Optical Devices, 8 the
claims of the ’769 patent, and the evidence offered by both
TSI and Dr. Yufa. See generally J.A. 14–21. The district
court applied the proper standards in granting summary
judgment of non-infringement for TSI’s Accused Products.
It concluded that there was insufficient proof to support a
reasonable finding that any of the Accused Products met
every limitation of the asserted claims of the ’769 patent.
We agree with the district court that Dr. Yufa has failed
to raise a triable issue with respect to the Accused Prod-
ucts.
As to TSI’s Non-Optical Devices, the district court
properly held that there was no evidence demonstrating
8 Dr. Yufa alleged that “various AEROTRAK
Handheld Particle Counters 930, AEROTRAK Nanoparti-
cle Aerosol Monitor 9000, AEROTRAK Portable Particle
Counters, AEROTRAK Remote Particle Counters,
BIOTRAK Real-Time Viable Particle Counter 9510-BD,
Optical Particle Sizer 3330, DustTrak, Nanoparticle Sizer
3910, and [FMS] infringe the ’769 patent.” J.A. 16 (inter-
nal quotation marks, footnote, and citations omitted).
12 YUFA v. TSI, INC.
that these products use optical, light beam technology as
claimed in the ’769 patent. The district court relied on
Mr. Holm’s declaration, which explained that “TSI’s Non-
Optical [Devices] do not actually use the optical, light-
beam technology involved” in the ’769 patent. J.A. 17
(internal quotation marks and citation omitted). The
district court further concluded that TSI’s Non-Optical
Devices did not infringe under the doctrine of equivalents,
observing that Dr. Yufa did “not put forth any evidence to
demonstrate that there is an ‘insubstantial’ difference
between illuminating particles using light and the method
employed by the accused [N]on-[O]ptical [Devices].” J.A.
18.
As to TSI’s Optical Devices, the district court properly
held that there was no evidence that demonstrates these
products convert amplified signals to digital signals
without using a reference voltage, as claimed in the ’769
patent. The district court found that Dr. Yufa failed “to
raise a genuine issue of material fact that the use of pulse
width modulation necessarily satisfies the ‘reference
voltage’ claim limitation.” J.A. 20 (footnote omitted). The
district court reviewed the exhibits relied upon by Dr.
Yufa to establish a dispute of material fact and found
them unavailing. For example, the “Introduction To
Interfaces Used in Facility Monitoring Systems” was “a
general reference document that does not inform the
operation of the accused [O]ptical [Devices]” and, further,
it did “not even appear to be a TSI document.” J.A. 20
(citation omitted). Moreover, the “Facility Monitoring
System Design Recommendations” was “a reference
document providing ‘example[s]’ of potential ‘monitoring
system’ designs” that “does not discuss the use of ‘pulse
width modulation’ or conversion without a reference
voltage.” J.A. 20 (citations omitted). The district court
credited Mr. Holm’s declaration, which explained that
“‘[n]one of TSI’s Optical Devices convert analog signals to
digital without use of a reference voltage.’” J.A. 20 (quot-
YUFA v. TSI, INC. 13
ing J.A. 316 ¶ 24). Finally, the district court correctly
determined that Dr. Yufa’s assertions that “the Series
3800 or LT1016” infringe the ’769 patent were, inter alia,
similarly unsupported. J.A. 21.
Dr. Yufa argues the district court erred in granting
summary judgment of non-infringement as to the ’769
patent because his “opposing papers specifical-
ly . . . dispute and present evidence[] . . . [that] TSI’s
Optical Device[s] (Pulse Integration Device[s]/particle
counter[])[,e.g.,]–‘Model 3800 [Aerosol Time-of-Flight
Mass Spectrometer (‘ATOFMS’)] . . . convert the analog
signal to a digital form pulse without the use of the refer-
ence voltage in conversion.” Appellant’s Br. 29–30. Dr.
Yufa also contends that TSI’s Accused Products “use
Pulse Width Modulation/Modulators [components ‘U2’
and ‘U3’ – LT1016CS8 in TSI’s ‘Schematic Diagram-
Timer, Model 3800 ATOFMS’],” id. at 53 (brackets in
original) (citations omitted), and that these pulse width
modulators do not “use the reference voltage [in contrast
to the pulse amplitude (height) method, which uses the
reference voltage (e.g., in the TSI’s ‘Pulse Height Devic-
es’)],” id. at 46–47 (brackets in original). To further
support his assertion that TSI uses pulse width modula-
tion, Dr. Yufa relies upon (1) the document entitled “In-
troduction To Interfaces Used in Facility Monitoring
Systems,” which was rejected by the district court, and (2)
TSI’s Answers to Dr. Yufa’s First Set of Interrogatories
from a related litigation. Id. at 30–31.
Dr. Yufa’s arguments as to the Optical Devices, like
many of his other arguments on appeal, fail to demon-
strate that there was a genuine issue of material fact for
trial. Dr. Yufa is incorrect in his categorization of the
evidence that he relies upon in his opening brief. The
district court determined that the document entitled
“Introduction To Interfaces Used in Facility Monitoring
Systems” was “a general reference document that does not
inform the operation of the accused [O]ptical [Devices]”
14 YUFA v. TSI, INC.
and, further, it did “not even appear to be a TSI docu-
ment.” J.A. 20 (citation omitted). Dr. Yufa has not pro-
vided any record evidence that would demonstrate TSI
was the author of this document or that it relates to the
Accused Products. Dr. Yufa merely offers contradictory
assertions, which are insufficient to survive summary
judgment. See Enzo Biochem, Inc. v. Applera Corp., 599
F.3d 1325, 1337 (Fed. Cir. 2010) (“The requirement that
the nonmovant must set forth specific facts means that
mere denials or conclusory statements are insufficient to
survive summary judgment.” (internal quotation marks,
brackets, and citation omitted)).
Additionally, Dr. Yufa relies on statements made by
TSI in response to Dr. Yufa’s interrogatories from related
litigation in the United States District Court for the
Northern District of California involving U.S. Patent No.
6,346,983 (“the ’983 patent”), a patent related to the
patents-in-suit in the present case. See Yufa v. TSI, Inc.,
No. 09-CV-01315-KAW, 2014 WL 4071902 (N.D. Cal. Aug.
14, 2014). In the present appeal, Dr. Yufa asserts that
“TSI confirmed under oath the use of Pulse Width Modu-
lation.” Appellant’s Br. 45; see J.A. 270–71 (TSI’s An-
swers to Dr. Yufa’s First Set of Interrogatories, where TSI
explained that “[t]o the extent that [] TSI uses pulse
width modulation in any of its products, it does so in a
manner that does not infringe the ’983 [p]atent.”). In
resolving the appeal of this related litigation, we rejected
Dr. Yufa’s argument that TSI’s response reflects an
admission of infringement, holding that the response
“does not constitute an admission. Rather, it is a hypo-
thetical reply that merely serves to address TSI’s stance
on whether its products infringe the ’983 patent. Thus,
Dr. Yufa cannot employ TSI’s response to interrogatory
No. 3 as illustrative of an admission.” Yufa v. TSI, Inc.,
600 F. App’x 747, 751 (Fed. Cir. 2015) (unpublished). Dr.
Yufa’s reliance on TSI’s response to the first set of inter-
rogatories fails to account for this determination or ex-
YUFA v. TSI, INC. 15
plain how it applies differently to the patents-in-suit and,
therefore, does not present specific facts sufficient to
survive summary judgment. See Enzo Biochem, 599 F.3d
at 1337.
Finally, Dr. Yufa further contends that the district
court erred in granting summary judgment of non-
infringement as to TSI’s “Series 3800 and LT1016” prod-
ucts on the basis of insufficient evidence to establish a
genuine issue of material fact “because . . . the [d]istrict
[c]ourt cannot ‘assess’ . . . the technical issues . . . ([e.g.,]
such as conversion without reference voltage . . . ) used in
[] TSI’s [A]ccused [P]roducts . . . .” Appellant’s Br. 53–54.
However, Dr. Yufa is incorrect in his assertion. The
district court determined Dr. Yufa’s “assertions regard-
ing . . . the Series 3800 and LT1016[] are inadequately
supported.” J.A. 21 (citing Yufa v. Lockheed Martin
Corp., 575 F. App’x 881, 887 (Fed. Cir. 2014) (un-
published)). The district court also faulted Dr. Yufa for
failing to timely assert infringement contentions with
respect to those products, observing that Dr. Yufa “re-
fuse[d] to identify which of [TSI’s] products or systems
infringe[d] each patent-in-suit. Instead, [Dr. Yufa] simply
reference[d] his [C]omplaint.” J.A. 1063. In his opening
brief, Dr. Yufa offers nothing more than mere assertions
that series “‘3800 and LT1016’ are [] admissible [] eviden-
tiary material facts.” Appellant’s Br. 55. His unsupport-
ed assertions are insufficient to defeat summary
judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990) (a party may not avoid a motion for summary
judgment by resting on “conclusory allegations of the
complaint” or by answering “with conclusory allegations
of an affidavit.” (citation omitted)).
B. The ’855 Patent
The district court granted summary judgment of non-
infringement as to the ’855 patent. The summary judg-
ment was based on the district court’s determination that
16 YUFA v. TSI, INC.
Dr. Yufa “failed [to] put forth evidence to dispute TSI’s
evidence that the accused products only perform wireless
monitoring in conjunction with the FMS.” J.A. 28. In
reaching that conclusion, the district court reviewed Dr.
Yufa’s claims of infringement against (1) the products
accused of infringing the ’855 patent; 9 (2) the claims of the
’855 patent; and (3) the evidence offered by both TSI and
Dr. Yufa. See generally J.A. 24–28.
As to TSI’s products accused of infringing the ’855 pa-
tent, the district court properly held that there was no
evidence that demonstrates that TSI’s sensors can be
wirelessly controlled as claimed in the ’855 patent. The
district court determined that “the evidence is undisputed
that the sensors still require manual adjustment.” J.A. 27
(footnote and citation omitted). In reaching this determi-
nation, the district court credited the declaration of TSI’s
systems engineer, Sreenath Avula, which explained that
“TSI’s [FMS] requires manually adjusting the controls at
the sensor by, for example, setting the sample time, and
then changing the same parameters in the [FMS] soft-
ware accordingly. In other words, the user must manual-
ly control the sensors, they are never remotely or
wirelessly controlled.” J.A. 26 (internal quotation marks
and citation omitted).
The district court also rejected Dr. Yufa’s reliance on
the document entitled “Facility Monitoring System Design
Recommendation” as evidence demonstrating that TSI’s
sensors are not subject to manual control. J.A. 26–27.
The district court observed that Dr. Yufa did not “put
forth sufficient evidence that the accused TSI products
9 Products accused of infringing the ’855 patent in-
clude: “various AEROTRAK Remote Particle Counters,
[FMS], and AEROTRAK Portable Particle Counters.”
J.A. 25–26 (internal quotation marks, footnote, and
citations omitted).
YUFA v. TSI, INC. 17
wirelessly transmit ‘control signals.’ Rather, the cited
evidence indicates that the ‘sensors’ are connected by
wired network to a ‘monitoring [Local Area Network].’”
J.A. 27 (citation omitted). The district court also deter-
mined that Dr. Yufa’s “citation to general documents,
such as a website description of the ‘AEROTRAK Remote
Particle Counter 7301,’ is insufficient to raise a genuine
issue of material fact that the accused products wirelessly
transmit ‘control signals.’” J.A. 27–28 (citations omitted).
Dr. Yufa argues that the district court erred in grant-
ing summary judgment of non-infringement as to the ’855
patent because “TSI’s own schematic diagrams” conflict
with TSI’s statements that “the user must manually
control the sensors, they are never remotely or wirelessly
controlled.” Appellant’s Br. 56 (internal quotation marks
and citations omitted). The schematics conflict, according
to Dr. Yufa, because they show that “TSI’s [FMS] provide
the wireless monitoring and control of the remote particle
counters via TSI’s Wireless network connection.” Id.(internal quotation marks and citation omitted). Dr. Yufa
further contends that “the remote particle counters (sen-
sor), according to [] TSI’s documents[,] do not have any
organs for manual control at all . . . . The [FMS’s] compo-
nent – ‘Power over Ethernet (POE) Managed Switch’
provides the claimed wireless control, i.e.: ‘turning-on’ and
‘turning-off’ of the remote particle counters (sensors).” Id.at 57–58 (citing J.A. 245, 248, 250).
As with his arguments to the ’769 patent, we find that
Dr. Yufa’s arguments as to the ’855 patent fail to demon-
strate that there is a genuine issue of material fact for
trial. Dr. Yufa has not offered any additional evidence to
demonstrate that TSI’s FMS provides for wireless control
of the remote particle sensors and thus do not require
manual adjustment. See Biotec Biologische Natur-
verpackungen GmbH & Co. KG v. Biocorp, Inc., 249 F.3d
1341, 1353 (Fed. Cir. 2001) (“The party opposing the
[summary judgment] motion must point to an evidentiary
18 YUFA v. TSI, INC.
conflict created on the record at least by a counter state-
ment of a fact or facts set forth in detail in an affidavit by
a knowledgeable affiant. Mere denials or conclusory
statements are insufficient.” (brackets in original) (inter-
nal quotation marks and citation omitted)). Rather, Dr.
Yufa appears to contest the credibility of Mr. Avula’s
declaration that the sensors “are never remotely or wire-
lessly controlled.” J.A. 330 ¶ 9. Such conclusory asser-
tions are not sufficient to overcome a motion for summary
judgment. See TypeRight Keyboard Corp. v. Microsoft
Corp., 374 F.3d 1151, 1158–59 (Fed. Cir. 2004) (“Sum-
mary judgment should not be denied simply because the
opposing party asserts that the movant[’]s witnesses are
not to be believed. However, summary judgment is not
appropriate where the opposing party offers specific facts
that call into question the credibility of the movant[’]s
witnesses.” (citations omitted)).
CONCLUSION
We have considered Dr. Yufa’s remaining arguments
and find them unpersuasive. Accordingly, the decisions of
the United States District Court for the Central District
of California are
AFFIRMED
COSTS
Each party shall bear its own costs.