Brilliant Instruments, Inc. v. Guidetech, LLC. , 707 F.3d 1342 ( 2013 )

United States Court of Appeals
for the Federal Circuit
_________________________
BRILLIANT INSTRUMENTS, INC.,
Plaintiff-Appellee,
v.
GUIDETECH, LLC,
Defendant-Appellant.
__________________________
2012-1018
__________________________
Appeal from the United States District Court for the
Northern District of California in No. 09-CV-5517, Judge
Claudia Wilken.
__________________________
Decided: February 20, 2013
__________________________
THOMAS W. LATHRAM, Silicon Edge Law Group LLP,
of Pleasanton, California argued for plaintiff-appellee.
With him on the brief were MARK P. GUIDOTTI and
ARTHUR J. BEHEIL. Of counsel on the brief were MARK S.
DAVIES and ROSS C. PAOLINO, Orrick Herrington & Sut-
cliffe, LLP, of Washington, DC.
EINAV COHEN, Attorney at Law, Sunnyvale, Califor-
nia, argued for defendant-appellant. Of counsel was
JEFFREY W. GLUCK, Connolly Bove Lodge & Hutz LLP, of
Washington, DC.
BRILLIANT INSTRUMENTS v. GUIDETECH 2
__________________________
Before DYK, MOORE, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge MOORE.
Opinion concurring-in-part and dissenting-in-part filed by
Circuit Judge DYK.
MOORE, Circuit Judge.
GuideTech, LLC (GuideTech) appeals from the dis-
trict court’s grant of summary judgment that Brilliant
Instruments, Inc. (Brilliant) did not infringe three related
GuideTech patents: U.S. Patent Nos. 6,226,231 (’231
patent), 6,091,671 (’671 patent), and 6,181,649 (’649
patent). See Brilliant Instruments, Inc. v. GuideTech,
Inc., No. C. 09-5517 SW, 2011 WL 3515904 (N.D. Cal.
Aug. 11, 2011) (Summary Judgment Order). Because the
court erred in granting summary judgment, we reverse
and remand.
BACKGROUND
This appeal arises from a declaratory judgment action
that Brilliant filed after the inventor of the patents-in-
suit left GuideTech to found Brilliant. GuideTech’s pa-
tents generally relate to circuits that measure the timing
errors of digital signals in high-speed microprocessors.
These circuits, which are referred to as time interval
analyzers, detect timing errors by analyzing a digital
circuit’s clock signal and output signals.
The patents share a common specification and claim
different aspects of the time interval measuring circuit.
The ’231 patent claims the circuit at a high level, reciting
that the circuit comprises a “signal channel,” a “plurality
of measurement circuits defined within said signal chan-
nel,” and a “processor circuit.” Claim 1 is representative
of the claims at issue:
3 BRILLIANT INSTRUMENTS v. GUIDETECH
A time interval analyzer for measuring time in-
tervals between signal events, said analyzer
comprising:
a signal channel that receives an input signal;
a plurality of measurement circuits defined within
said signal channel in parallel with each
other, . . . ; and
a processor circuit in communication with said
signal channel . . . .
’231 patent claim 1 (emphasis added). The issue on
appeal with regard to the ’231 patent is whether Bril-
liant’s time interval analyzers have “a plurality of meas-
urement circuits defined within said signal channel.” For
purposes of this appeal, the parties agree that Brilliant’s
accused BI200 and BI220 products operate identically.
Both products employ a “One-Channel-Two-Edge” mode
in which they operate using “a single channel” and use
two measurement circuits. J.A. 776.
The ’671 and ’649 patent claims are directed to inter-
nal circuitry of a measurement circuit. Claim 1 of the
’671 patent is representative:
A time interval analyzer for measuring time in-
tervals between events in an input signal,
said analyzer comprising:
. . . a first current circuit having a constant cur-
rent source or a constant current sink . . .;
a second current circuit . . . ;
a capacitor; [and] a shunt,
wherein said shunt and said capacitor are opera-
tively disposed in parallel with respect to
said first current circuit,
BRILLIANT INSTRUMENTS v. GUIDETECH 4
wherein said shunt is disposed between said first
current circuit and said second current cir-
cuit . . . .
’671 patent claim 1 (emphasis added). The issue on
appeal regarding the ’671 and ’649 patents is whether the
measurement circuits in the BI200 and BI220 contain a
capacitor “operatively disposed in parallel” with respect to
a first current circuit. In its infringement allegations,
GuideTech identified a capacitor that is part of the al-
leged “first current circuit.”
The district court construed the disputed claim terms
and entered summary judgment of noninfringement in
favor of Brilliant for all three patents. GuideTech ap-
peals. We have jurisdiction under 28 U.S.C. § 1295(a)(1).
DISCUSSION
I. STANDARD OF REVIEW
We review summary judgment decisions under re-
gional circuit law. Lexion Med., LLC v. Northgate Techs.,
Inc., 641 F.3d 1352, 1358 (Fed. Cir. 2011). The Ninth
Circuit reviews the grant of summary judgment de novo.
Greater Yellowstone Coalition v. Lewis, 628 F.3d 1143,
1148 (9th Cir. 2010). 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 judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). At the
summary judgment stage, we credit all of the non-
movant’s evidence and draw all justifiable inferences in
its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).
Infringement, either literal or under the doctrine of
equivalents, is a question of fact. Crown Packaging Tech.,
Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1312
(Fed. Cir. 2009). “Thus, on appeal from a grant of sum-
mary judgment of noninfringement, we must determine
whether, after resolving reasonable factual inferences in
5 BRILLIANT INSTRUMENTS v. GUIDETECH
favor of the patentee, the district court correctly conclud-
ed that no reasonable jury could find infringement.” Id.
(quoting IMS Tech., Inc. v. Haas Automation, Inc., 206
F.3d 1422, 1429 (Fed. Cir. 2000)).
II. INFRINGEMENT OF THE ’231 PATENT
GuideTech challenges the district court’s grant of
summary judgment of noninfringement of the ’231 patent.
At summary judgment, the court construed the “defined
within said signal channel” limitation as “contained
within a signal channel.” Summary Judgment Order,
2011 WL 3515904, at *3–4. It further defined a “signal
channel” as “an electrical circuit that includes a signal
path for transmitting electrical signals.” Id. at *3. Nei-
ther party challenges these constructions.
The district court concluded that GuideTech failed to
present sufficient evidence that the BI200 and BI220 have
multiple measurement circuits contained within a signal
channel. Id. at *8–9. The court held that, although the
accused products require the use of two measurement
circuits, “it does not follow that both circuits are contained
in a single channel.” Id. at *8. The court concluded that
the testimony of GuideTech’s expert, Dr. West, failed to
show that the measurement circuits were “contained” in
the same channel. Id.
GuideTech argues that the district court erred in con-
cluding that there was no genuine issue of material fact.
GuideTech points to Dr. West’s expert report, arguing
that it shows that the BI200 and BI220 employ two
circuits contained within a single channel when operating
in the One-Channel-Two-Edge mode. GuideTech also
argues that Brilliant’s datasheets show that the accused
products operate on a single channel and use two meas-
urement circuits.
Brilliant argues that the district court properly grant-
ed summary judgment. Brilliant argues that it cannot
BRILLIANT INSTRUMENTS v. GUIDETECH 6
infringe because the district court, as a matter of claim
construction, rejected GuideTech’s argument that “defined
within” allowed a measurement circuit to be present in
more than one channel. Brilliant argues that the BI200
and BI220 do not infringe because each signal channel
contains only one measurement circuit and simply bor-
rows a second measurement circuit during One-Channel-
Two-Edge mode.
We agree with GuideTech that the district court erred
when it granted summary judgment. A genuine issue of
material fact exists as to whether the BI200 and BI220,
when operating in One-Channel-Two-Edge mode, have
two measurement circuits contained within a signal
channel, i.e., an electrical circuit that includes a signal
path for transmitting electrical signals. Dr. West ex-
plained how the BI200 and BI220 meet the asserted
claims when operating in One-Channel-Two-Edge mode.
J.A. 968–69, 1005–06, 1062. Brilliant’s schematics also
show that, during operation in One-Channel-Two-Edge
mode, the only active signal path flows from the input to
two measurement circuits:
J.A. 1263 (color modified). In the above schematic, a user
sets the circuit to One-Channel-Two Edge Mode with
7 BRILLIANT INSTRUMENTS v. GUIDETECH
Channel A as the input. The signal path during operation
in this mode is highlighted in the above schematic. Once
received, the signal first flows through a comparator. The
signal then flows into two multiplexers. The outputs of
the multiplexers are then input into two measurement
circuits (the timetag circuits).
This schematic and Dr. West’s testimony, viewed in
GuideTech’s favor, shows that the only signal channel
operative during One-Channel-Two-Edge mode contains
two measurement circuits. This evidence raises a genuine
issue of material fact as to whether Brilliant’s products
literally infringe the ’231 patent claims. Accordingly, the
district court erred when it granted Brilliant’s motion for
summary judgment, and we reverse and remand for
further proceedings.
III. INFRINGEMENT OF THE ’671 AND ’649 PATENTS
GuideTech also challenges the district court’s grant of
summary judgment that Brilliant’s accused products do
not infringe the ’671 and ’649 patents. The district court
construed the term “operatively disposed in parallel” to
mean “arranged in a manner capable of forming alterna-
tive paths of current such that current can flow across one
or the other path.” Summary Judgment Order, 2011 WL
3515904, at *5–6. The parties do not challenge that
construction on appeal.
The district court concluded that Brilliant was enti-
tled to summary judgment because Dr. West conceded
that the capacitor in Brilliant’s products is “part of the
first current circuit.” Id. at *9. The court concluded that
Dr. West’s testimony indicated “that the capacitor is not
on an alternative path on which current flows from the
first current circuit.” Id. Because it was undisputed that
the capacitor in the accused products was part of the first
current circuit and not arranged in parallel with the first
current circuit, the court concluded that the accused
products do not infringe the ’671 and ’649 patents, either
BRILLIANT INSTRUMENTS v. GUIDETECH 8
literally or under the doctrine of equivalents. Id. at *9–
10.
GuideTech argues that nothing in the claims pre-
cludes the capacitor from being part of the first current
circuit and, at the same time, operatively disposed in
parallel with the shunt. It points to Dr. West’s expert
report, arguing that he opined that the measurement
capacitor and the shunt are arranged to form alternate
current paths during operation. Finally, GuideTech
argues that Dr. West explained how the operation of the
accused products was equivalent to operatively disposing
the shunt and capacitor in parallel with respect to the
first current circuit.
Brilliant responds that its products cannot literally
infringe because it was undisputed that the accused
capacitor is part of the first current circuit, not disposed
in parallel with respect to it. Brilliant argues that
GuideTech’s infringement theory under the doctrine of
equivalents fails because it would vitiate the requirement
that the claimed “first current circuit” and the “capacitor”
are separate elements.
We agree with Brilliant that the district court proper-
ly granted summary judgment that Brilliant’s accused
products do not literally infringe. The claims recite “said
shunt and said capacitor are operatively disposed in
parallel with respect to said first current circuit.” It is
undisputed that in Brilliant’s accused product the capaci-
tor is part of the first current circuit. Because, according
to the undisputed facts, GuideTech cannot establish
literal infringement, summary judgment of no literal
infringement was appropriately granted.
We agree with GuideTech, however, that the district
court erred when it granted summary judgment that
Brilliant does not infringe under the doctrine of equiva-
lents. To find infringement under the doctrine of equiva-
lents, any differences between the claimed invention and
9 BRILLIANT INSTRUMENTS v. GUIDETECH
the accused product must be insubstantial. Graver Tank
& Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608
(1950). One way of proving infringement under the
doctrine of equivalents is to show, for each claim limita-
tion, that the accused product “performs substantially the
same function in substantially the same way with sub-
stantially the same result as each claim limitation of the
patented product.” Crown Packaging Tech., Inc. v. Rexam
Beverage Can Co., 559 F.3d 1308, 1312 (Fed. Cir. 2009).
This is a question of fact. Id.; Anchor Wall Sys., Inc. v.
Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1313
(Fed. Cir. 2003).
In this case, GuideTech submitted an expert report by
Dr. West that detailed its doctrine of equivalents theory
under the function-way-result test. J.A. 1027. Brilliant
does not contest Dr. West’s recitations of the function,
way, and result of the asserted claims or the accused
products. Nor does Brilliant provide any contrary evi-
dence. Instead, it argues that GuideTech’s doctrine of
equivalents infringement theory vitiates the requirement
that the claimed “first current circuit” and the “capacitor”
are separate claim elements.
Brilliant’s vitiation argument fails. As we recently
explained in Deere & Co. v. Bush Hog, LLC, _ F.3d _, Nos.
2011-1629, -1630, -1631, 2012 WL 6013405 (Fed. Cir. Dec.
4, 2012):
“Vitiation” is not an exception to the doctrine of
equivalents, but instead a legal determination
that “the evidence is such that no reasonable jury
could determine two elements to be equivalent.”
The proper inquiry for the court is to apply the
doctrine of equivalents, asking whether an assert-
ed equivalent represents an “insubstantial differ-
ence” from the claimed element, or “whether the
substitute element matches the function, way, and
result of the claimed element.” If no reasonable
BRILLIANT INSTRUMENTS v. GUIDETECH 10
jury could find equivalence, then the court must
grant summary judgment of no infringement un-
der the doctrine of equivalents.
Id. at *5 (citations omitted). The vitiation concept has its
clearest application “where the accused device contain[s]
the antithesis of the claimed structure.” Planet Bingo,
LLC v. Game Tech Int’l, Inc. 472 F.3d 1338, 1345 (Fed.
Cir. 2006). This makes sense; two elements likely are not
insubstantially different when they are polar opposites.
As we explained in Deere, “[c]ourts should be cautious not
to shortcut this inquiry by identifying a ‘binary’ choice in
which an element is either present or ‘not present.’
Stated otherwise, the vitiation test cannot be satisfied by
simply noting that an element is missing from the
claimed structure or process because the doctrine of
equivalents, by definition, recognizes that an element is
missing that must be supplied by the equivalent substi-
tute.” Deere, _ F.3d at _, 2012 WL 6013405, at *5. The
vitiation test cannot be satisfied merely by noting that the
equivalent substitute is outside the claimed limitation’s
literal scope. Rather, vitiation applies when one of skill in
the art would understand that the literal and substitute
limitations are not interchangeable, not insubstantially
different, and when they do not perform substantially the
same function in substantially the same way, to accom-
plish substantially the same result. In short, saying that
a claim element would be vitiated is akin to saying that
there is no equivalent to the claim element in the accused
device based on the well-established “function-way-result”
or “insubstantial differences” tests.
To succeed on a doctrine of equivalents theory, the pa-
tentee must demonstrate equivalence under one of these
two tests. This will be more difficult when the accused
structure has an element that is the opposite of the
claimed element, especially where the specification or
prosecution history highlights the differences. If the
claimed and accused elements are recognized by those of
11 BRILLIANT INSTRUMENTS v. GUIDETECH
skill in the art to be opposing ways of doing something,
they are likely not insubstantially different. The concept
of vitiation is an acknowledgement that each element in
the claim must be present in the accused device either
literally or equivalently. And we have applied this con-
cept to cases where we have recognized that two alterna-
tives exist that are very different from each other and
therefore cannot be equivalents for infringement purpos-
es. See, e.g., Planet Bingo, 472 F.3d at 1345 (concluding
that determining a winning combination after a game
starts was not equivalent to determining a winning
combination before the game starts); Moore U.S.A., Inc. v.
Std. Register Co., 229 F.3d 1091, 1106 (Fed. Cir. 2000)
(“[I]t would defy logic to conclude that a minority—the
very antithesis of a majority—could be insubstantially
different from a claim limitation requiring a majority, and
no reasonable juror could find otherwise.”).
Applying these concepts to the facts of this case, we
conclude that summary judgment must be reversed. The
element at issue is: “wherein said shunt and said capaci-
tor are operatively disposed in parallel with respect to
said first current circuit.” Dr. West, GuideTech’s expert,
agreed that in the accused device, the measurement
capacitor is a component of the first current circuit.
While this disposes of literal infringement, the doctrine of
equivalents inquiry is: did GuideTech create a genuine
issue of material fact regarding whether Brilliant’s capac-
itor, located within the first current circuit, performs
substantially the same function in substantially the same
way to achieve substantially the same result as the
claimed capacitor, which is operatively disposed in paral-
lel to the shunt? Everyone agrees that the capacitor in
the accused device is not located in exactly the same place
as the claimed capacitor, but is the change in location an
insubstantial difference? We conclude that, viewing all
factual inferences in favor of GuideTech, it has created a
BRILLIANT INSTRUMENTS v. GUIDETECH 12
genuine issue of material fact which precludes summary
judgment. Dr. West explained:
The electrical disposition of the shunt and the ca-
pacitor with respect to the first current circuit of
the BI200 and BI220 is equivalent to the electrical
disposition of the shunt and the capacitor with re-
spect to the first current circuit of this claim limi-
tation because it performs substantially the same
function (allowing the shunt to control the path of
current flow to or from the first current circuit) in
substantially the same way (wherein an electrical
path from the first current circuit can be traced to
either the capacitor or the shunt) to achieve sub-
stantially the same result (providing an electrical
relationship wherein, e.g., the shunt can direct
current to flow from the first current circuit to the
second current circuit or from the first current cir-
cuit to the capacitor).
J.A. 1027. This detailed application of the function-way-
result test to the claim element and the allegedly equiva-
lent feature of the accused product is sufficient to create a
genuine issue of material fact for the jury to resolve. The
main difference between the accused circuit and the
claimed circuit is that the capacitor in the accused circuit
aids in delivering power and is thus part of the first
current circuit. There is, however, no evidence suggesting
that this added advantage of the accused design alters Dr.
West’s function-way-result analysis. On this record,
GuideTech has created a genuine issue of material fact
which precludes summary judgment of noninfringement
under the doctrine of equivalents.
13 BRILLIANT INSTRUMENTS v. GUIDETECH
CONCLUSION
We have considered the parties’ remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the judgment of the district court is
REVERSED AND REMANDED.
United States Court of Appeals
for the Federal Circuit
__________________________
BRILLIANT INSTRUMENTS, INC.,
Plaintiff-Appellee,
v.
GUIDETECH, LLC,
Defendant-Appellant.
__________________________
2012-1018
__________________________
Appeal from the United States District Court for the
Northern District of California in case no. 09-CV-5517,
Judge Claudia Wilken.
__________________________
Decided: February 20, 2013
__________________________
DYK, Circuit Judge, concurring in part and dissenting in
part.
I agree with the majority with respect to the ’231 pa-
tent, and with its holding that there is no literal in-
fringement of the ’671 patent and ’649 patent. However, I
disagree with the majority that a genuine issue of materi-
al fact remains as to infringement of the ’671 and ’649
patents under the doctrine of equivalents.
The only relevant claim limitation at issue with re-
spect to the ’671 and ’649 patents requires that the “shunt
BRILLIANT INSTRUMENTS V. GUIDETECH 2
and . . . capacitor [be] operatively disposed in parallel
with respect to [the] first current circuit.” J.A. 61 (’671
Patent col.16 ll.63-65). The district court construed the
“operatively disposed in parallel” portion of this limitation
to mean “arranged in a manner capable of forming alter-
native paths of current such that current can flow across
one or the other path.” See Brilliant Instruments, Inc. v.
GuideTech, Inc., 2011 WL 3515904, at *5-6, 9 (N.D. Cal.
Aug. 11, 2011) (“Summary Judgment Order”). It also
implicitly recognized, however, that the remaining portion
of this limitation required that this current flow be “with
respect to” the first current circuit. See id. at *9.
There is no dispute in this case that the capacitor in
the accused device was part of the first current circuit and
therefore inside of that circuit. Id. Thus, the capacitor
could not possibly be disposed in parallel “with respect to”
something of which it is already a part. The district court,
in rendering a judgment of noninfringement for Brilliant,
therefore emphasized that “the capacitor is not on an
alternative path on which current flows from the first
current circuit.” Id. (emphasis added). The majority
acknowledges that “in Brilliant’s accused product the
capacitor is part of the first current circuit,” and holds
that “GuideTech cannot establish literal infringement” of
either the ’671 or the ’649 patent. Maj. Op. at 8. However,
the majority rejects the district court’s conclusion that
this fact “preclude[d] a finding of infringement . . . under
the doctrine of equivalents.” Summary Judgment Order,
2011 WL 3515904, at *9. In so doing, it relied on Guide-
Tech’s expert report from Dr. West as raising a genuine
issue of material fact. See J.A. 1027; Maj. Op. at 9.
I disagree. The function-way-result test for equiva-
lents requires “showing on a limitation by limitation basis
that the accused product performs substantially the same
function in substantially the same way with substantially
the same result.” Crown Packaging Tech., Inc. v. Rexam
3 BRILLIANT INSTRUMENTS V. GUIDETECH
Beverage Can Co., 559 F.3d 1308, 1312 (Fed. Cir. 2009)
(emphasis added). Similarly, we have recently reiterated
that “[r]egardless [of] how the equivalence test is articu-
lated, ‘the doctrine of equivalents must be applied to
individual limitations of the claim, not to the invention as
a whole.’” Mirror Worlds, LLC v. Apple Inc., 692 F.3d
1351, 1357 (Fed. Cir. 2012) (quoting Warner-Jenkinson
Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29 (1997)
(emphasis added)). This guidance to consider each claim
limitation under the doctrine of equivalents flows from
the principles of claim vitiation, which require a determi-
nation of whether there is a substantial difference or a
difference in kind between each individual claim limita-
tion and the accused product. See Trading Techs. Int’l,
Inc. v. eSpeed, Inc., 595 F.3d 1340, 1355 (Fed. Cir. 2010).
While Dr. West purports to follow this guidance, in
fact Dr. West’s report is inconsistent with the approach
articulated in the cases. It applies the equivalent to the
invention as a whole rather than to the particular claim
limitation at issue. The Dr. West expert report, in reciting
the function-way-result of the claimed invention, states:
[T]he electrical disposition of the shunt and the
capacitor with respect to the first current circuit
of the BI200 and BI220 is equivalent to the elec-
trical disposition of the shunt and the capacitor
with respect to the first current circuit of this
claim limitation because it performs substantially
the same function (allowing the shunt to control
the path of current flowing to or from the first cur-
rent circuit) in substantially the same way (where-
in an electrical path from the first current circuit
can be traced to either the capacitor or the shunt)
to achieve substantially the same result (providing
an electrical relationship wherein, e.g., the shunt
can direct current to flow from the first current cir-
BRILLIANT INSTRUMENTS V. GUIDETECH 4
cuit to the second current circuit or from the first
current circuit to the capacitor).
J.A. 1027 (emphasis added). As the majority properly
asks, “[e]veryone agrees that the capacitor in the accused
device is not located [such that it is operatively disposed
in parallel with respect to the first current circuit], but is
the change in location an insubstantial difference?” Maj.
Op. at 11. Dr. West’s report fails to even address this
question.
The “same result” Dr. West contends is achieved by
the accused device is a result where “the shunt can direct
current to flow from the first current circuit to the second
current circuit or from the first current circuit to the
capacitor.” J.A. 1027 (emphasis added). But this “same
result” cannot occur in the accused device, as it is undis-
puted that, because the capacitor is inside the first cur-
rent circuit, current cannot flow from the first current
circuit to the capacitor. An appropriate doctrine of equiva-
lents analysis would have identified an identical result
that was achieved in both the claimed invention and the
accused invention, thereby demonstrating that the differ-
ence between the two was insubstantial. But there is no
evidence in the record—from Dr. West or elsewhere—
explaining why the difference between the claimed inven-
tion and the accused device (i.e., that the capacitor in the
accused device is located inside, as opposed to outside, the
first current circuit) is insubstantial or how the function-
way-result test is satisfied as to this limitation.
Once Brilliant brought forth expert evidence that its
devices were outside the scope of the claim limitations
under a doctrine of equivalents analysis, the burden fell
on “the nonmoving party [in this case, Guidetech] to set
forth specific facts showing that there is a genuine dispute
for trial.” Minkin v. Gibbons, P.C., 680 F.3d 1341, 1349
(Fed. Cir. 2012); Shum v. Intel Corp., 633 F.3d 1067, 1076
(Fed. Cir. 2010). This Guidetech did not do. Indeed, given
5 BRILLIANT INSTRUMENTS V. GUIDETECH
that no evidence exists showing that Brilliant’s accused
products met the “with respect to” portion of the relevant
limitation under the doctrine of equivalents, Brilliant
merely needed to point out, as it did, “that there is an
absence of evidence to support [Guidetech’s infringement]
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Accordingly, I respectfully dissent as to this aspect of
the majority’s opinion, and I would affirm the district
court’s judgment of noninfringement as to the ’671 and
’649 patents under the doctrine of equivalents.