Gammino v. Sprint Communications Company

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN R. GAMMINO,
Plaintiff-Appellant,
v.
SPRINT COMMUNICATIONS COMPANY, L.P.,
SPRINT SPECTRUM L.P., AND
VIRGIN MOBILE USA, L.P.,
Defendants-Cross Appellants.
______________________
2013-1636, 2014-1016
______________________
Appeals from the United States District Court for the
Eastern District of Pennsylvania in No. 2:10-CV-2493-
CMR, Judge Cynthia M. Rufe.
______________________
Decided: August 15, 2014
______________________
GINA M. STOWE, Stradley Ronon Stevens & Young,
LLP, of Malvern, Pennsylvania, argued for plaintiff-
appellant. On the brief was KEVIN R. CASEY. Of counsel
was JEFFREY M. LUTSKY. Of counsel on the brief was W.
MARK MULLINEAUX, Astor Weiss Kaplan & Mandel LLP,
of Philadelphia, Pennsylvania.
2 GAMMINO v. SPRINT COMMUNICATIONS CO.
JOHN J. COTTER, K&L Gates LLP, of Boston, Massa-
chusetts, argued for defendants-cross appellants. With
him on the brief were DAVID A. SIMONS and SOLANDRA J.
CRAIG.
______________________
Before LOURIE, BRYSON, and CHEN, Circuit Judges.
LOURIE, Circuit Judge.
John R. Gammino (“Gammino”) appeals from a stipu-
lated judgment of noninfringement following a decision of
the United States District Court for the Eastern District
of Pennsylvania construing claims 8–14, 22–28, and 35–
41 of U.S. Patent 5,809,125 (the “’125 patent”). See
Gammino v. Sprint Commc’ns Co., No. 10-2493, 2013 WL
3343661 (E.D. Pa. July 2, 2013) (claim construction or-
der); Gammino v. Sprint Commc’ns Co., No. 10-2493, ECF
No. 161 (E.D. Pa. Aug. 23, 2013) (stipulated judgment).
Sprint Communications Company, L.P., Sprint Spec-
trum L.P., and Virgin Mobile USA, L.P. (collectively
“Sprint”) conditionally cross-appeal from the district
court’s decision denying Sprint’s motion for summary
judgment of invalidity. See Gammino v. Sprint Commc’ns
Co., No. 10-2493, 2011 WL 3240830 (E.D. Pa. July 29,
2011). Because the court did not err in construing the
claims, we affirm the judgment of noninfringement and
therefore do not reach Sprint’s conditional cross-appeal
concerning invalidity.
BACKGROUND
Gammino is the named inventor and owner of the ’125
patent directed to devices and methods for blocking
potentially fraudulent international access calls, such as
those made from public phones using a stolen calling card
or via a private branch exchange (“PBX”) system after an
unauthorized access to the system. ’125 patent, at [57]
(abstract). An international access call can be identified
GAMMINO v. SPRINT COMMUNICATIONS CO. 3
by the sequence of numbers dialed by the caller. The
numbers in the sequence can be divided into groups, or
pluralities, with each plurality conveying specific infor-
mation. For example, a caller may dial “101-XXXX-011+”
followed by a country code and line number. In that
sequence, the first plurality “101” indicates that the call is
an access call to be routed to a carrier other than the
default carrier; the second plurality “XXXX” identifies the
selected carrier; and the third plurality “011” signals that
the call is an international call billable to the caller. If
the third plurality is “01” instead, then the call becomes
an operator-assisted call billable to a calling card or to the
recipient.
The ’125 patent describes methods and devices for
blocking international access calls if, for example, the first
and third pluralities of a dialing sequence are identified to
match predetermined digits. Id. col. 2 ll. 43–50. In one
exemplary embodiment shown in figure 1A below, a user
inputs digits into a phone’s keypad 110, which is detected
by a decoder 120. Id. col. 3 ll. 58–60, 63–64. A micropro-
cessor 130 examines the sequence of the digits, and if
particular digits appear at particular positions in the
sequence, then the microprocessor causes switch 150 to
open, thus disconnecting the call. Id. col. 4 ll. 29–33.
4 GAMMINO v. SPRINT COMMUNICATIONS CO.
Id. fig. 1A.
Figures 3A and 3B illustrate further embodiments, in
which a PBX system 310 and a PC system 360 containing
a decoder 330 and a signaling device 340 are connected to
telecommunications lines 350. Id. col. 8 ll. 43–67. The PC
system evaluates the dialing sequence of a call and elects
to disconnect the call, if appropriate, by opening switch
370.
Id. fig. 3B.
GAMMINO v. SPRINT COMMUNICATIONS CO. 5
At issue in this appeal are independent claims 8, 22,
and 35, as well as dependent claims 9–14, 23–28, and 36–
41. Claim 8 is representative of apparatus claims 8–14
and reads as follows:
8. Telecommunications apparatus for selectively
enabling establishment of a telephone call to a
telephone number having a central office ex-
change code via a communications pathway, said
telecommunications apparatus being capable of
transmitting a dialing sequence which includes a
first plurality of dialing signals followed by a sec-
ond plurality of dialing signals followed by a third
plurality of dialing signals, said telecommunica-
tions apparatus comprising:
means for receiving said dialing sequence prior to
receiving said central office exchange code;
means for evaluating said third plurality of dial-
ing signals in a location in said dialing sequence
used for international dialing by determining if
said third plurality of dialing signals are used to
accomplish international dialing;
means for transmitting said dialing sequence to
said communications pathway if
said evaluated third plurality of dialing signals
are determined to not be predetermined signals
which are used to accomplish international dial-
ing irrespective of said second plurality of dialing
signals.
Id. col. 11 ll. 5–25 (emphases added). Claim 22 is repre-
sentative of method claims 22–28 and 35–41 and reads as
follows:
22. A method for at least partially preventing op-
eration of a telecommunications device which is
6 GAMMINO v. SPRINT COMMUNICATIONS CO.
capable of transmitting a plurality of signal val-
ues, said method comprising the steps of:
a) receiving said plurality of signal values;
b) comparing at least two of said plurality of sig-
nal values respectively located at predetermined
locations used for international dialing with re-
spective predetermined digit sequences which are
used for international dialing and comparing a
further signal value located at a further prede-
termined location with a further predetermined
signal value, wherein a plurality of further signal
values are located between said at least two of
said plurality of signal values and said further
signal value; and
c) at least partially preventing operation of said
telecommunications device irrespective of said
plurality of further signal values if said at least
two of said plurality of signal values and any one
of said respective predetermined digit sequences
are found to be identical in step b) and if said fur-
ther predetermined signal value is found to be
identical to said further signal value.
Id. col. 12 ll. 39–60 (emphases added). Claims 9 and 23,
which depend from claims 8 and 22 respectively, provide
that the predetermined signals correspond to, or the digit
sequences include, a “01” dialing sequence. Id. col. 11 ll.
26–28; col. 12 ll. 61–62. Furthermore, claims 13, 26, and
41, which depend from claims 8, 22, and 35 respectively,
provide that the predetermined signals or sequences used
for international dialing are “one of a) an international
access code and b) an international area code.” Id. col. 11
ll. 45–48; col. 13 ll. 5–8; col. 14 ll. 40–43.
Gammino has asserted the ’125 patent against other
parties in the past. He sued Southwestern Bell Tele-
phone, L.P. and SWBT Texas, LLC (collectively “SWB”) in
GAMMINO v. SPRINT COMMUNICATIONS CO. 7
2005 in the district court for the Northern District of
Texas for infringement of forty-two claims in the ’125
patent. SWB counterclaimed for a declaration of invalidi-
ty and noninfringement and moved for summary judg-
ment on those grounds. While SWB’s motion was
pending, in response to the district court’s request to
narrow down the claims to simplify the case, Gammino
filed an amended disclosure document purportedly with-
drawing claims 8, 10–14, 22, 24–28, and 35–41 from his
infringement contentions. The Texas court then granted
summary judgment of invalidity, holding that the “assert-
ed claims” were invalid under 35 U.S.C. § 102(b) because
the accused products were prior art and thus Gammino’s
own infringement allegations invalidated his patent
claims. Gammino v. Sw. Bell Tel., L.P., 512 F. Supp. 2d
626, 646 (N.D. Tex. 2007), aff’d, 267 F. App’x 949 (2008)
(affirming the invalidity ruling only). The district court,
however, did not specify which claims in the ’125 patent it
considered “asserted” and therefore invalidated. In the
alternative, the court granted summary judgment of
noninfringement after it construed the claims in the ’125
patent, including the term “preventing” in claims 22 and
35 as requiring blocking all international calls. Id.In 2010, Gammino sued Sprint in the district court for
the Eastern District of Pennsylvania, asserting that
Sprint infringed claims 8–14, 22–28, and 35–41 of the ’125
patent. Sprint moved for summary judgment of invalidi-
ty, arguing that claims 8, 10–14, 22, 24–28, and 35–41
had been invalidated in the SWB litigation despite Gam-
mino’s attempt to withdraw those claims. The district
court denied Sprint’s motion, holding that there was
insufficient evidence to conclude that those claims were
specifically invalidated by the Texas court. Gammino,
2011 WL 3240830, at *8.
The district court then construed several claim limita-
tions. Gammino, 2013 WL 3343661, at *13–14. First, the
court construed all of the following terms as requiring
8 GAMMINO v. SPRINT COMMUNICATIONS CO.
blocking all, rather than selected, international access
calls: (i) “selectively enabling” and “transmitting [or
transmits] said dialing sequence” of claims 8 and 10, (ii)
“predetermined signals [or predetermined digit sequence,
or test signal value sequences] which are used to accom-
plish [or for] international dialing” of claims 8, 22, and 35,
and (iii) “means for preventing” and “at least partially
preventing operation of” of claims 14, 22, 28, 35, and 38.
Id. at *6. The court noted that its construction was
consistent with the intrinsic evidence as well as the prior
construction by the Texas court, which the court regarded
as non-binding but persuasive authority. Id. at *6–7. The
court also reasoned that Gammino’s proposed construc-
tion of selective disablement of some, but not all, interna-
tional access calls was “completely inconsistent” with the
representations he made to the United States Patent and
Trademark Office (“PTO”) during prosecution of the ’125
patent that his claimed invention blocked all internation-
al calls in order to distinguish prior art including U.S.
Patent 4,577,066 of Bimonte (“Bimonte”). Id. at *6.
Secondly, the court construed the term “telecommuni-
cations apparatus” in claims 8–14 and the related means-
plus-function structural elements, “means for receiving,”
“means for evaluating,” and “means for transmitting,” and
concluded that the limitation “telecommunications appa-
ratus” requires a telephone or telecommunications device
and interface unit to be “located outside of an external
network (or on the same side of a commercial telecommu-
nications network).” Id. at *13–14. In reaching that
conclusion, the court reasoned that “the specification is
clear that digit sequences are analyzed to determine if
they are international access code calls before being
transmitted to a telecommunications line” and that “each
embodiment of the claim discloses a system on one side of
the telecommunications line.” Id. at *9–10 & n.54.
Finally, the court construed “signal value” in claims
22 and 35 and related dependent claims to mean “a dual-
GAMMINO v. SPRINT COMMUNICATIONS CO. 9
tone multi-frequency (‘DTMF’) analog signal transferred
by hertz tones” to be consistent with the constructions
initially proposed by both parties in their Joint Statement
on Disputed Claim Terms and Gammino’s prior argu-
ments made in opposing Sprint’s invalidity motion. Id. at
*14; Gammino v. Sprint Commc’ns Co., No. 10-2493, ECF
No. 105, at 7–8 (E.D. Pa. Sept. 22, 2011) (joint statement);
ECF No. 89, at 7 (E.D. Pa. May 5, 2011) (Gammino’s brief
arguing that claims 22 and 35 recited “signal values
which are transferred by hertz tones”); ECF No. 87, at 4
(E.D. Pa. Apr. 20, 2011) (Gammino’s sworn declaration
stating the same). Despite those prior statements, one
month after the court’s deadline for filing the joint state-
ment and two weeks before the Markman hearing, Gam-
mino moved to expand his proposed construction to
include electrical, optical, and digital signals in an at-
tempt to cover Sprint’s accused digital devices. Gammino,
2013 WL 3343661, at *2 n.24; Gammino v. Sprint
Commc’ns Co., No. 10-2493, ECF No. 102 (E.D. Pa. Sept.
9, 2011) (scheduling order). The court denied Gammino’s
motion because his amendment “came too late in the
litigation” and was inconsistent with the definition he
previously advanced in the litigation. Gammino, 2013
WL 3343661, at *2 n.24.
After the court issued its Markman ruling, the parties
stipulated to a judgment of noninfringement. Gammino
appeals from that judgment, challenging the court’s claim
construction. Sprint conditionally cross-appeals from the
denial of its motion for summary judgment of invalidity.
We have jurisdiction under 28 U.S.C. § 1295(a)(1).
DISCUSSION
I. Claim Construction
A patent is a fully integrated written instrument and
the claims must be read in view of the specification of
which they are a part. Phillips v. AWH Corp., 415 F.3d
1303, 1315 (Fed. Cir. 2005) (en banc). A court should also
10 GAMMINO v. SPRINT COMMUNICATIONS CO.
consult the patent’s prosecution history, which, like the
specification, provides evidence of how the PTO and the
inventor understood the claimed invention. Id. at 1317.
In reviewing those sources, if the specification or prosecu-
tion history defines a claim term, then that definition
shall apply even if it differs from the term’s ordinary
meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d
1359, 1366–67 (Fed. Cir. 2002). Moreover, if a patentee
makes a clear and unambiguous disavowal of claim scope
during prosecution, that disclaimer informs the claim
construction analysis by “narrow[ing] the ordinary mean-
ing of the claim congruent with the scope of the surren-
der.” Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314,
1324 (Fed. Cir. 2003). Likewise, the definition of a claim
term can be affected through repeated and definitive
remarks in the written description. Computer Docking
Station Corp. v. Dell, Inc., 519 F.3d 1366, 1374 (Fed. Cir.
2008); Honeywell Int’l, Inc. v. ITT Indus., Inc., 452 F.3d
1312, 1318 (Fed. Cir. 2006).
A
We first consider the construction of the claim terms
(i) “selectively enabling” and “transmitting [or transmits]
said dialing sequence,” (ii) “predetermined signals [or
predetermined digit sequence, or test signal value se-
quences] which are used to accomplish [or for] interna-
tional dialing,” and (iii) “means for preventing” and “at
least partially preventing operation of.” Gammino argues
that the court erred in construing those limitations as
requiring blocking all international access calls. Accord-
ing to Gammino, the claims only require blocking selected
international access calls having dialing sequences that
match a predetermined set of digit sequences. Gammino
contends that the doctrine of claim differentiation compels
that interpretation because otherwise dependent claims
such as claims 9 and 13 are rendered superfluous. Gam-
mino argues that the exemplary dialing sequences dis-
closed in the specification of the ’125 patent further
GAMMINO v. SPRINT COMMUNICATIONS CO. 11
support his construction. Gammino also maintains that
the statements made during prosecution of the ’125
patent were taken out of context and did not constitute a
clear and unequivocal disavowal of claim scope.
Sprint responds that those claim limitations require
blocking all international access calls because, during
prosecution, Gammino repeatedly distinguished prior art
that did not block all international calls and eventually
confirmed and acquiesced to the examiner’s understand-
ing that his claimed invention blocks all international
calls. Sprint contends that those extensive prosecution
statements were not taken out of context. Sprint also
responds that the court’s construction is consistent with
the specification.
We agree with Sprint and the district court that the
contested claim limitations require blocking all interna-
tional access calls. During prosecution of the ’125 patent,
the PTO examiner repeatedly rejected Gammino’s appli-
cation in view of Bimonte. Gammino sought to distin-
guish Bimonte on multiple occasions by representing to
the examiner that his invention would block a call upon a
determination that the call is international. E.g., J.A.
280–81 (“[I]f certain signals in the dialing sequence are
determined to be used for international dialing, then
prevent the call . . . if, while determining whether certain
signals in the dialing sequence are used for international
dialing, certain signals in the dialing sequence are deter-
mined to not be used for international dialing then allow
the call.”) (emphases omitted); J.A. 332 (“If Applicant’s
invention ‘finds’ international dialing digits, then estab-
lishment of the call is prevented.”); J.A. 355 (“If the digits
in the third plurality of digits are digits which are used
for international dialing then the call is prevented.”); J.A.
356–57 (“Thus, my claimed invention restricts dialing of
international calls based upon a determination that the
dialed call is an international one.”).
12 GAMMINO v. SPRINT COMMUNICATIONS CO.
In light of Gammino’s statements, the examiner un-
derstood that the claimed invention would block all inter-
national calls. J.A. 414–15 (The “claimed invention . . .
prevents all international calls (every single international
call is prevented).”). Gammino confirmed and acquiesced
to the examiner’s understanding by stating that “the fact
the Applicant’s claimed invention will block ALL interna-
tional calls is irrelevant to the decision of patentability of
the claimed invention,” J.A. 472 (emphasis in original),
and continued to make similar unqualified arguments in
subsequent responses. E.g., J.A. 566, 569, 778, 780; see
also J.A. 771 (“If the third plurality of dialing digits are
determined to be dialing digits which are used for inter-
national dialing, and if the third plurality of dialing digits
are in a location in the dialing sequence where they are
used for international dialing, the call is prevented.”)
(emphases omitted). Given the extensive file history, we
agree with the district court’s conclusion that Gammino’s
own representations to the PTO established that his
invention blocks all international access calls. See
Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570,
1576 (Fed. Cir. 1995) (“Claims may not be construed one
way in order to obtain their allowance and in a different
way against accused infringers.”).
Gammino now contends that the examiner and Gam-
mino did not specifically discuss international access calls
during prosecution and that his reference to “all interna-
tional calls” was only intended to mean that the invention
“is blocking all international calls (‘good’ and ‘bad’).”
Appellant’s Br. 38. We disagree that his prosecution
statements have such limited import. First, it is clear
that the ’125 patent only addresses access calls, those that
begin with three pluralities of digits such as “101-XXXX-
011+,” rather than direct calls beginning with one plurali-
ty of digits such as “011+.” The examiner and Gammino
therefore used the phrase “international calls” as a short-
hand for “international access calls” during prosecution.
GAMMINO v. SPRINT COMMUNICATIONS CO. 13
Secondly, while it is true that a prosecution disclaimer
requires “clear and unambiguous disavowal of claim
scope,” Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d
823, 833 (Fed. Cir. 2003), Gammino’s repeated and un-
qualified statements that his claimed invention will block
“all international calls” extend beyond merely illuminat-
ing “how the inventor understood the invention,” Phillips,
415 F.3d at 1317, and provide an affirmative definition for
the disputed claim terms. Given such definitive state-
ments during prosecution, the interested public is entitled
to conclude that the claimed devices and methods of the
’125 patent block all international access calls.
Moreover, the court’s construction is consistent with
the claim language, the specification, and other portions
of the file history. Nowhere in the specification or the file
history did Gammino state that his claimed invention
only blocks a selected subset of international access calls.
The dialing sequences disclosed in the specification are
characterized as “exemplary” and the specification further
teaches that “[b]y blocking a telephone call when any of
these exemplary digit sequences are entered, the unau-
thorized use of calling card numbers for long distance and
international calls may be effectively prevented.” ’125
patent col. 5 ll. 5–34 (emphasis added). Likewise, de-
pendent claims such as claims 9 and 13 do not compel a
different construction. As we have held, the doctrine of
claim differentiation only creates a presumption that can
be overcome by contrary evidence in the written descrip-
tion and file history. Andersen Corp. v. Fiber Composites,
LLC, 474 F.3d 1361, 1369–70 (Fed. Cir. 2007). And that
is the case here.
We therefore conclude that the limitations (i) “selec-
tively enabling” and “transmitting [or transmits] said
dialing sequence” of claims 8 and 10, (ii) “predetermined
signals [or predetermined digit sequence, or test signal
value sequences] which are used to accomplish [or for]
international dialing” of claims 8, 22, and 35, and (iii)
14 GAMMINO v. SPRINT COMMUNICATIONS CO.
“means for preventing” and “at least partially preventing
operation of” of claims 14, 22, 28, 35, and 38 require
blocking all, rather than selected, international access
calls.
B
We next consider the construction of “telecommunica-
tions apparatus” and its related means-plus-function
structural elements. Gammino argues that the district
court erred in concluding that the telephone or telecom-
munications device and interface unit must be located
outside of an external network. Gammino asserts that
the claims contain no such limitation on location. Accord-
ing to Gammino, the means-plus-function structures of
the “telecommunications apparatus” may be located
anywhere that is connected to or along one or more tele-
communications lines within the external network and
separately from the telephone. Gammino also contends
that the court did not properly consider all of the exem-
plary embodiments in the ’125 patent, including those of
figures 3A and 3B. Sprint responds that there is no
disclosure in the specification or figures placing the
“telecommunications apparatus” or interface unit at a
central switching office or elsewhere within a carrier’s
external network. Sprint contends that the specification
and figures, including figures 3A and 3B, only disclose
devices including a processor and switch located on the
telephone side of the network to block calls before they
are transmitted to an external commercial network.
We agree with Sprint that the district court did not
err in construing “telecommunications apparatus” and its
means-plus-function structural elements. The primary
dispute between the parties concerning those claim terms
was the location of the apparatus, and Gammino proposed
a construction that allows the apparatus to be located in
devices including switches within the external network.
Gammino, ECF No. 105, at 6. After examining the disclo-
GAMMINO v. SPRINT COMMUNICATIONS CO. 15
sures of the specification including the embodiments
illustrated in figures 1A, 1B, 2A, 2B, 2C, 3A, and 3B, the
court determined that “each embodiment of the claim
discloses a system on one side of the telecommunications
line” and therefore construed “telecommunications appa-
ratus” to require a telephone or telecommunications
device and interface unit located outside of an external
network or on the same side of a commercial telecommu-
nications network. Gammino, 2013 WL 3343661, at *10
& n.54. We find no reversible error in that determination.
Figures 3A and 3B do not compel a different construc-
tion. In those figures, the PC system 360, which contains
detector 330 and signaling device 340, is depicted as
connected to incoming phone lines 350 of the PBX system
310. As explained in the ’125 patent, fraudulent callers
may attempt to access a company’s PBX system to place
international access calls through the PBX system in
order to charge the calls to the company. ’125 patent, at
[57]. Even assuming that figures 3A and 3B illustrate
further embodiments of the telecommunications appa-
ratus of claim 8, the PC system blocks an international
access call by disrupting the incoming phone line of the
PBX system, not at a central switching office or elsewhere
within a commercial carrier’s external network. Those
figures accordingly do not support Gammino’s proposed
construction.
We therefore conclude that the district court did not
err in construing the term “telecommunications appa-
ratus” of claims 8–14 and its related means-plus-function
structural elements.
C
We further consider the court’s construction of the
claim term “signal value” as “a dual-tone multi-frequency
(‘DTMF’) analog signal transferred by hertz tones.”
Gammino contends that the court erred in adopting the
construction initially proposed by both parties and in
16 GAMMINO v. SPRINT COMMUNICATIONS CO.
denying his motion to amend the proposed construction.
Gammino argues that the court’s prior ruling on validity
was not premised on any interpretation of “signal value”
and that Sprint would not have been prejudiced. Sprint
responds that the court did not abuse its discretion in
denying Gammino’s motion to amend because Gammino
failed to show good cause for the late amendment after he
had argued a narrow interpretation earlier in the litiga-
tion.
We agree with Sprint that the district court did not
abuse its discretion in denying Gammino’s motion and did
not err in adopting the construction jointly proposed by
the parties. In its September 2011 scheduling order, the
court set the deadline for the parties’ joint statement
concerning claim construction. More than one month
after that deadline and more than 17 months after the
litigation had commenced, Gammino moved to expand his
proposed construction, but failed to make a showing of
good cause for the late amendment.
Moreover, the court correctly found that allowing
Gammino to change his position on the definition of
“signal value” would be inequitable and would result in
prejudice to Sprint. In his opposition to Sprint’s motion
for summary judgment of invalidity, Gammino argued
that claims 22 and 35 were patentably distinct from claim
29, which he conceded had been asserted against SWB
and had been determined to be invalid. Gammino stated
in a sworn affidavit and argued in his briefs that, unlike
claim 29, claims 22 and 35 included the limitation “signal
value,” which he interpreted as analog signals transferred
by hertz tones. Gammino, ECF No. 87, at 4; ECF No. 89,
at 7. Accordingly, the court did not abuse its discretion in
declining to allow Gammino to adopt an expanded con-
struction of “signal value” that is inconsistent with the
definition he previously advanced and swore to in oppos-
ing Sprint’s motion.
GAMMINO v. SPRINT COMMUNICATIONS CO. 17
We have considered Gammino’s additional arguments
challenging the district court’s construction of claim terms
but find them unpersuasive. For the foregoing reasons,
we affirm the district court’s construction of all of the
claim terms as well as the judgment of noninfringement.
II. Cross-Appeal
Sprint only conditionally cross-appeals from the deni-
al of summary judgment of invalidity “[i]n the event this
[c]ourt reverses the judgment of noninfringement.” Cross-
Appellant’s Br. 14–15. In light of our decision affirming
the judgment of noninfringement, we do not address the
merits of the cross-appeal and therefore express no opin-
ion on the district court’s validity determination with
respect to claims 8, 10–14, 22, 24–28, and 35–41 of the
’125 patent. See Boss Control, Inc. v. Bombardier Inc.,
410 F.3d 1372, 1381 (Fed. Cir. 2005) (affirming nonin-
fringement judgment without addressing the cross-appeal
concerning invalidity), citing Power Mosfet Techs., L.L.C.
v. Siemens AG, 378 F.3d 1396, 1414 n.3 (Fed. Cir. 2004)
(rejecting the argument that Cardinal Chemical Co. v.
Morton International Inc., 508 U.S. 83 (1993) requires
review of conditionally appealed invalidity finding).
These issues were raised only in connection with the
conditional cross-appeal.
CONCLUSION
For the foregoing reasons, we affirm the district
court’s claim construction and the judgment of nonin-
fringement in favor of Sprint and do not reach Sprint’s
conditional cross-appeal concerning invalidity.
AFFIRMED