Cloud Farm Associates LP v. Volkswagen Group of America, Inc.

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CLOUD FARM ASSOCIATES LP,
Plaintiff-Appellant
v.
VOLKSWAGEN GROUP OF AMERICA, INC., ZF
SACHS AG,
Defendants-Appellees
______________________
2016-1448
______________________
Appeal from the United States District Court for the
District of Delaware in No. 1:10-cv-00502-LPS, Chief
Judge Leonard P. Stark.
______________________
Decided: January 9, 2017
______________________
PATRICK J. KELLEHER, Drinker Biddle & Reath LLP,
Chicago, IL, argued for plaintiff-appellant.
GEORG CHRISTIAN REITBOECK, Andrews Kurth Kenyon
LLP, New York, NY, argued for defendant-appellee
Volkswagen Group of America, Inc. Also represented by
MICHAEL LENNON; SUSAN A. SMITH, Washington, DC.
2 CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP OF
AMERICA
MARTIN B. PAVANE, Cozen O'Connor, New York, NY,
argued for defendant-appellee ZF Sachs AG. Also repre-
sented by LISA A. FERRARI, DARREN SCOTT MOGIL.
______________________
Before PROST, Chief Judge, CLEVENGER, and REYNA,
Circuit Judges.
CLEVENGER, Circuit Judge.
Cloud Farm Associates LP (“Cloud Farm”) sued
Volkswagen Group of America (“Volkswagen”) and ZF
Sachs AG (“ZF”) (collectively, “defendants”) in the United
States District Court for the District of Delaware alleging
infringement. Specifically, Cloud Farm alleged that
Volkswagen had infringed four patents directed towards
vehicular tilt control apparatuses, and that ZF had in-
fringed three of those patents. Following two rounds of
claim construction, the parties stipulated that, if the
district court’s constructions were not reversed or modi-
fied on appeal, Cloud Farm could not prove infringement
of any asserted claims. Joint Stipulation 4-5, ECF 349-1.
Cloud Farm and Volkswagen further stipulated that
under the district court’s constructions, two asserted
claims are invalid as indefinite under 35 U.S.C. § 112. Id.at 5–6. The district court adopted the joint stipulation
and entered a final judgment of non-infringement and
invalidity. Final Judgment 1-2, ECF 350. Cloud Farm
appeals the district court’s construction of several claim
terms. Because we agree with the district court’s con-
struction of those terms, we affirm.
I
Cloud Farm is the owner of the four patents at issue:
U.S. Patent Nos. 5,437,354 (“the ’354 Patent”), 5,529,153
(“the ’153 Patent”), 5,971,115 (“the ’115 Patent’), and
5,979,616 (“the ’616 Patent”), each of which is titled “Tilt
Control Apparatus for Vehicles.” Cloud Farm asserted all
patents against Volkswagen, and all but the ’616 patent
CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP 3
OF AMERICA
against ZF. The patents are directed towards devices that
limit body roll or tilt in a car while it is going around a
turn or curve by limiting flow of hydraulic fluid between
chambers within the apparatus. In addition to working
as a tilt control apparatus, the patented device can also be
used as a suspension shock absorber or be used in con-
junction with a vehicle’s conventional shock absorbers.
The patented products include a sensing component that
activates the flow-limiting component at a pre-set level of
body roll, or in response to certain vehicle inputs such as
speed or steering angle. Claim 1 of the ’354 patent is
representative of the asserted claims of the ’354, ’153, and
’115 patents, all of which contain the “seal” and “prevent”
terms at issue on appeal:
1. In a vehicle having an interior and an exterior,
a transverse axle and a body, and being subject to
swaying and tilting when the vehicle turns a cor-
ner or is driven around a curve, the improvement
which comprises an apparatus for limiting the
swaying and tilting movement of said vehicle
comprising, on at least one side of the vehicle, a
chamber partially filled with hydraulic fluid and
having an upper end and a lower end; a moveable
piston sealing the lower end of said chamber, at-
tached to said transverse axle; the upper end of
the chamber being closed and attached to said
body of the vehicle; a plate within said chamber
having a substantially central opening separating
said fluid within the chamber into a lower portion
and an upper portion; movable sealing means
within said chamber and when activated seals
said central opening; means for moving the seal-
ing means to seal said opening; means for sensing
the tilting movement of said vehicle, electrically
combined with means for moving the sealing
means to seal said opening when the sensing
means is activated at a predetermined tilt position
4 CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP OF
AMERICA
of the body to prevent flow of said fluid from the
lower portion of the chamber into the upper por-
tion of the chamber and thus prevent tilting of the
frame or body of the vehicle.
’354 patent col.6 ll.12–35 (filed Feb. 10, 1994).
The ’616 patent is a continuation of the ’153 patent,
and describes additional sensing devices for use in the
tilt-controller system. Cloud Farm asserted claims 1 and
5 of the ’616 patent against Volkswagen only. Those
claims are reproduced in full below:
1. Apparatus for a vehicle having at least the fol-
lowing two structural elements, a transverse axle
and a body comprising, on each side of the vehicle,
a chamber partially filled with hydraulic fluid, a
movable piston at one end of and within said
chamber and attached to one of said structural el-
ements; the other end of said chamber being at-
tached to the other end of said structural elements
of the vehicle; a fixed plate within said chamber
having a sealable opening to separate fluid within
said chamber into two portions above and below
said fixed plate; sealing means within said cham-
ber adapted to seal said sealable opening; a steer-
ing wheel disposed between the two sides of the
vehicle within a steering column rotatable
through an angle from 0 to 180 degrees; sensing
means within said steering column to sense rota-
tion of said steering wheel and a pre-set minimum
speed of said vehicle, such that when rotation of
said steering wheel is below about 20 degrees or
beyond about 160 degrees, at or above said pre-set
minimum speed, said sensing means will send a
signal to said sealing means; thereby, when acti-
vated by said sensing means, said sealing means
will seal said sealable opening in said plate to
prevent flow of said fluid from one portion to the
CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP 5
OF AMERICA
other portion of said chamber, whereby tilting of
one of said structural elements toward said other
structural element is prevented.
5. A vehicle having a suspension system disposed
between a transverse axle and a body of said vehi-
cle wherein the vehicle is equipped with means for
controlling the suspension system, the improve-
ment comprises means for continuously sensing
angular or steering movement of said vehicle and
means for activating said means for controlling
said suspension system at a pre-set angle of
movement of said vehicle depending upon the
speed of the vehicle in accordance with the Table
set forth below:
TABLE
Vehicle Turning Angle to
Speed Activate Suspen-
(miles/hour) sion System Con-
trol (degrees)
120 1
100 2
80 3
60 6
40 7-8
20 9-10
10 13-15
to convert the normally fast rate of movement of
the body toward said axle to a slower rate of
movement of said body toward said axle.
’616 patent col.13 ll.25-38, col.15 l.1 – col.16 l.16
(filed Feb. 6, 1998).
II
The district court conducted two Markman hearings
and construed multiple claim terms. Cloud Farm Assocs.,
L.P. v. Volkswagen Grp. of Am., Inc., No. 10-cv-502, 2012
6 CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP OF
AMERICA
WL 3069405 (D. Del. July 27, 2012) (“Markman I”); Cloud
Farm Assocs., L.P. v. Volkswagen Grp. of Am., Inc., No.
10-cv-502, 2015 WL 4730898 (D. Del. Aug. 10, 2015)
(“Markman II”). Five of those claim terms are at issue
here. The first terms, “seal” and “prevent,” are found in
all asserted claims of the ’354, ’153, and ’115 patents and
in claim 1 of the ’616 patent. 1 The district court con-
strued both of these terms to mean “stop.” Markman I at
*4–6, *8, *13–14; Markman II at *6. As examples, the
district court construed “seal,” “seals,” and “sealing” to
mean “stopping the flow of hydraulic fluid,” and construed
“prevent flow of said fluid” to mean “to stop flow of said
hydraulic fluid.” Id. at *4.
The district court summarized that the parties’ disa-
greements over these terms “concern whether, upon
sensing excessive vehicle tilt, the system claimed in the
patents-in-suit stops (as argued by Defendants) or merely
reduces (as argued by Plaintiff) the flow of hydraulic fluid
from one portion of the tilt controller to the other, the
movement of the piston, and the tilting of the vehicle
body.” Id. at *5. The court sided with defendants, reason-
1 The particular claim terms at issue are: “seal,”
“seals,” and “sealing” (found in claims 1 8, and 16 of the
’354 patent and in claims 1 and 3 of the ’153 patent);
“prevent flow of said fluid” (found in claims 1 and 8 of the
’354 patent and claim 1 of the ’153 patent) and “prevent
any flow of said fluid” (found in claim 16 of the ’354 pa-
tent); “preventing tilting of the frame or body of the
vehicle” (found in claim 1 of the ’354 patent) and “prevent-
ing tilting of the body of the vehicle” (found in claim 8 of
the ’354 patent); “prevent movement of the piston and
further tilting of the body of the vehicle” (found in claim 1
of the ’153 patent); “sealing means” (found in claim 1 of
the ’115 patent, claim 1 of the ’616 patent, claim 1 of the
’153 patent, and claims 1, 8 and 16 of the ’354 patent).
CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP 7
OF AMERICA
ing that their constructions are supported by the intrinsic
evidence. The court found that the terms “seal,” “seals,”
and “sealing” are used consistently throughout the pa-
tents to mean “completely stopping the flow of hydraulic
fluid.” Id. The district court considered and expressly
rejected Cloud Farm’s argument that “seal” and “prevent”
should be construed more broadly to include the reduction
of flow in addition to completely stopping it. The court
noted that the words “hinder flow” (as proposed by Cloud
Farm) never appear in any patent specification, and no
patent explains how it would be possible to accomplish
partial sealing. Id.The remaining terms at issue are limitations in
means-plus-function claims. The first of these, “sensing
means within said steering column to sense rotation of
said steering wheel and a pre-set minimum speed of said
vehicle, such that when rotation of said steering wheel is
below about 20 degrees or beyond about 160 degrees, at or
above said pre-set minimum speed, said sensing means
will send a signal to said sealing means,” is found in claim
1 of the ’616 patent (hereinafter, the “sensing means
within said steering column” term). The district court
construed the function to be “sensing rotation of said
steering wheel and a pre-set minimum speed of said
vehicle, such that said sensing means will send a signal to
said sealing means when rotation of said steering wheel is
below about 20 degrees or beyond about 160 degrees, at or
above said pre-set minimum speed.” Markman II at *8–
10. However, the district court held that the patent does
not describe a structure performing the claimed function.
Id. The district court rejected Cloud Farm’s proposed
structure because it “has nothing to do with sensing
vehicle speed, which is what the claimed function re-
quires” and so it found the claim to be indefinite. Id. at
*8–10 (emphasis in original).
The second is “means for controlling the suspension
system,” and is part of claim 5 of the ’616 patent (herein-
8 CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP OF
AMERICA
after, the “means for controlling” term). The district court
found the function to be “controlling the suspension
system,” but again found no corresponding structure. Id.Cloud Farm argued that the function should be “altering
the suspension system,” but the district court rejected its
proposal, explaining that “altering” is materially different
from “controlling,” because “the latter implies an ability to
dictate how the entire suspension system operates where-
as the former requires only influencing the suspension
system.” Id. at *10. Cloud Farm conceded that there was
no structure disclosed that could control the entire sus-
pension system, and so the district court found this claim
language to be indefinite as well. Id. at *11.
The final term, found in claim 5 of the ’616 patent, is
“means for activating said means for controlling
said suspension system at a pre-set angle of
movement of said vehicle depending upon the
speed of the vehicle in accordance with the Table
[reproduced supra Part I] to convert the normally
fast rate of movement of the body toward said axle
to a slower rate of movement of said body toward
said axle.” (hereinafter, the “means for activating”
term).
The district court construed the function to be
“activating said means for controlling said sus-
pension system at a vehicle wheel turning angle of
• 1 degree if the vehicle speed is 120 miles
per hour,
• 2 degrees if the vehicle speed is 100 miles
per hour,
• 3 degrees if the vehicle speed is 80 miles
per hour,
• 6 degrees if the vehicle speed is 60 miles
per hour,
CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP 9
OF AMERICA
• 7-8 degrees if the vehicle speed is 40 miles
per hour,
• 9-10 degrees if the vehicle speed is 20 miles
per hour, and
• 13-15 degrees is the vehicle speed is 10
miles per hour,
to convert the normally fast rate of movement of
the body toward said axle to a slower rate of
movement of said body toward said axle.”
Id. at *12.
Again, the district court found that the specification
does not describe a corresponding structure. The court
found that the specification only disclosed a microproces-
sor that could implement this term’s function, noting that
this court’s precedent requires that more must be dis-
closed than simply a general purpose computer or micro-
processor. Id. at *13 (citing Aristocrat Techs. Australia
Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed.
Cir. 2008)).
The parties stipulated that under the district court’s
claim constructions, Cloud Farm would not be able to
prove infringement of the asserted claims of the ’354, ’153,
and ’115 Patents, or of claim 1 of the ’616 Patent, at least
because the accused CDC systems “do not stop flow of
hydraulic fluid, do not stop the frame or body of the
vehicle from tilting, and do not stop any further move-
ment of the piston and further tilting of the body of the
vehicle.” Joint Stipulation 4-5, ECF 349-1. Since the
district court also held that the ’616 Patent does not
describe structures for performing the claimed functions
of the “sensing means within said steering column,”
“means for controlling,” and “means for activating” claim
limitations, Cloud Farm and Volkswagen further stipu-
lated that under the district court’s constructions, the
asserted claims 1 and 5 of the ’616 Patent are invalid as
10 CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP OF
AMERICA
indefinite under 35 U.S.C. § 112. Id. at *5–6. Based on
the joint stipulation, the district court entered final
judgment, granting judgment of non-infringement of all
asserted claims of the ’354, ’153, and ’115 Patents, and of
claim 1 of the ’616 Patent, and judgment of invalidity of
claims 1 and 5 of the ’616 Patent. Final Judgment 1-2,
ECF 350.
Cloud Farm appealed to us, and we have jurisdiction
to hear the appeal pursuant to 28 U.S.C. § 1295(a)(1).
III
Where the district court’s claim construction relies on-
ly on intrinsic evidence, the construction is a legal deter-
mination reviewed de novo. Teva Pharm. USA, Inc. v.
Sandoz, Inc., 135 S. Ct. 831, 840–42 (2015). A district
court’s subsidiary fact findings about extrinsic evidence
are reviewed for clear error. Id. Claim terms are general-
ly given their ordinary and customary meaning, which is
the meaning they would have to a person of ordinary skill
in the art at the time of the invention. Phillips v. AWH
Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc).
The same term should be construed consistently through-
out the same patent and any related patents sharing a
common specification. CVI/Beta Ventures, Inc. v. Tura
LP, 112 F.3d 1146, 1159 (Fed. Cir. 1997) (“[W]e are
obliged to construe the [asserted term] consistently
throughout the claims.”).
Claim construction begins with the language of the
claims. Source Vagabond Sys. Ltd. v. Hydrapak, Inc., 753
F.3d 1291, 1299 (Fed. Cir. 2014). While the claims them-
selves “provide substantial guidance as to the meaning of
particular claim terms,” they do not stand alone; rather,
“they are part of a fully integrated written instrument.”
Phillips, 415 F.2d at 1314–15. Thus, the claims should be
read in light of the specification. Edwards Lifesciences
LLC v. Cook Inc., 582 F.3d 1322, 1327 (Fed. Cir. 2009)
(citing Phillips, 415 F.2d at 1315). The specification “is
CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP 11
OF AMERICA
always highly relevant to the claim construction analysis”
and can be dispositive, as “it is the single best guide to the
meaning of a disputed term.” Phillips, 415 F.2d at 1315.
However, it is improper to import a limitation from the
specification into the claims. Golight, Inc. v. Wal-Mart
Stores, Inc., 355 F.3d 1327, 1331 (Fed. Cir. 2004). The
prosecution history may also be considered because it “can
often inform the meaning of the claim language by
demonstrating how the inventor understood the invention
and whether the inventor limited the invention in the
course of prosecution.” Phillips, 415 F.2d at 1317.
We depart from the plain and ordinary meaning in on-
ly two instances. Hill-Rom Servs., Inc. v. Stryker Corp.,
755 F.3d 1367, 1371 (Fed. Cir. 2014). The first is when a
patentee acts as his own lexicographer. Id. The second is
when the patentee disavows the full scope of the claim
term in the specification or during prosecution. Id. If
prosecution history does show disclaimer, then the pa-
tentee is prevented from reclaiming subject matter that
was surrendered through statements or claim amend-
ments. Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314,
1324 (Fed. Cir. 2003).
IV
The first disputed claim construction concerns the
terms “seal” and “prevent,” which are found in all assert-
ed claims of the ’354 , ’153, and ’115 patents and in claim
1 of the ’616 patent. The parties stipulated that, under
the court’s construction, the accused devices do not in-
fringe because they do not stop flow of hydraulic fluid,
stop the frame or body of the vehicle from tilting, or stop
any further movement of the piston and further tilting of
the body of the vehicle. Joint Stipulation 1-7, ECF 349-1.
While Cloud Farm argues that the district court con-
strued these terms too narrowly, Volkswagen contends
that the district court correctly construed the terms. We
12 CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP OF
AMERICA
agree with the district court that the intrinsic evidence
clearly supports its constructions.
Cloud Farm argues that the district court “essentially
imposed the word ‘hermetic’ on the ‘seal’ terms.” Appel-
lant Br. 11. It asserts that the plain meanings of “seal”
and “prevent” are not so narrow, and the district court
should have construed both of these terms to mean “min-
imizing” or “hindering.” According to Cloud Farm, the
specifications support its construction of these terms.
Cloud Farm acknowledges that there is one disclosed
embodiment that completely stops the flow of hydraulic
fluid. Appellant Br. 14 (citing ’354 patent col.4 ll.19–25).
But, Cloud Farm cites another embodiment, where the
device can be used as both a shock absorber and a tilt
controller, in which the opening can be adjusted in size to
provide shock absorption, allowing fluid to continue to
flow. Id. at 14-15 (citing ’354 patent col.5 ll.51–67). As
the district court decided, and defendants argue on ap-
peal, Cloud Farm’s citations to examples in the specifica-
tions are misplaced. Those citations which allow for
partial closure are in relation to the invention’s shock
absorption function, not its tilt controlling function, which
is what is relevant to the asserted claims. Thus, any
language discussing “damping” or “cushioning” is irrele-
vant to the claim constructions here because the asserted
claims are directed only towards the tilt controlling
function.
We find that the district court’s determination of the
plain and ordinary meanings of “seal” and “prevent” are
supported by the intrinsic evidence. The district court
rightly determined that the plain and ordinary meaning
of both terms is “to stop,” after considering the claim
language in light of the specification. See Phillips, 415
F.3d at 1321 (“[T]he ‘ordinary meaning’ of a claim term is
its meaning to the ordinary artisan after reading the
entire patent.” (emphasis added)); see also Netword,
LLC v. Centraal Corp., 242 F.3d 1347, 1352 (Fed. Cir.
CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP 13
OF AMERICA
2001) (“The claims are directed to the invention that is
described in the specification; they do not have meaning
removed from the context from which they arose.”). There
are multiple places in the ’354 and ’153 patent specifica-
tions that state that upon sensing excessive tilt, the
opening in the plate is closed so that fluid flow is stopped,
and any further piston movement and vehicle tilting is
stopped as a result. See, e.g., ’354 patent col.4 ll.19–27
(“However, when tilting or unusual acceleration is en-
countered, the sensing unit will activate the solenoid and
cause the seal to close the opening in the lockplate. No
fluid can then flow from the lower chamber into the
reservoir chamber. This prevents any further downward
movement or tilting of the body of the vehicle.”); id. at
col.4 ll.48–54 (“Basically, the solenoid, activated by the
electrical circuit which in turn was activated by the
mercury switch . . . , serves to seal the opening at a prede-
termined point in the tilting of the vehicle. This closure
prevents any further flow of fluid into reservoir; and also
prevents any further tilt of body.”). The district court’s
constructions also align with the embodiments disclosed
in the specifications. See, e.g., ’354 patent col.5 l.67 – col.6
l.5 (“[Should a tilt be encountered as a car goes around a
turn the sensor will activate the solenoid which will close
the seal so that there is no longer any opening in the
piston assembly and lockplate. Fluid in the bottom cham-
ber can then no longer enter the upper chamber and
movement of the body downwardly is prevented.”); ’153
patent col.9 ll.53–58 (“The tilt sensing means [in figure
2D] sends its signal when excessive tilt is encountered;
solenoid is activated; sealing means is drawn upwardly to
seal the opening; flow of fluid and further movement of
piston ceases; and further tilt is prevented.”).
The district court found, and we agree, that there is
no support in the specification for a tilt controller where
flow is merely slowed. Markman I at *5. As discussed
above, the examples in the specifications cited by Cloud
14 CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP OF
AMERICA
Farm as support for its constructions are not relevant to
claim construction because they do not address the tilt-
controlling function at issue. Because the district court’s
constructions are consistent with the specification, and
Cloud Farm’s are not, the district court’s constructions
are correct. See Phillips, 415 F.3d at 1316 (“The construc-
tion that stays true to the claim language and most
naturally aligns with the patent’s description of the
invention will be, in the end, the correct construction.”
(citation omitted)).
We additionally agree with defendants that the prose-
cution history supports the district court’s constructions.
All parties reference the patentee’s amendment during
prosecution of issued claim 16 of the ’354 patent from
“prevent any substantial flow” to “prevent any flow.” The
district court found, and we agree, that this amendment
supports its constructions. Cloud Farm makes a claim
differentiation argument, alleging that the district court
erred in construing “preventing flow” (in claim 1 of the
’354 patent) and “preventing any flow” (in claim 16 of the
’354 patent) to have the same meaning. Arguing that the
difference in wording is significant, Cloud Farm cites
Chicago Board Options Exchange, Inc. v. International
Securities Exchange, LLC, 677 F.3d 1361 (Fed. Cir. 2012),
for the proposition that there is a “general presumption
that different terms have different meanings.” Id. at
1369. Thus, according to Cloud Farm, the district court
should have construed “prevent” as “hinder” and “prevent
any” as “eliminate.” We do not find Cloud Farm’s argu-
ment persuasive. Rather, we agree with ZF that Cloud
Farm’s amendment of issued claim 16 clearly disclaimed a
claim scope that allows fluid flow when the seal is closed.
Relatedly, the “prevent any flow” language in claim 16
does not alter the meaning of “prevent flow,” as found in
the other claims. Claim differentiation does not apply
here because there are a number of other differences
between claims 1 and 16. See Andersen Corp. v. Fiber
CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP 15
OF AMERICA
Composites, LLC, 474 F.3d 1361, 1370 (Fed. Cir. 2007)
(stating that where the claims are not otherwise identical,
claim differentiation does not apply). Therefore, the
district court did not err by construing “prevent flow” and
“prevent any flow” to both mean “to stop flow.”
V
The next claim term in dispute is the means-plus-
function limitation found in claim 1 of the ’616 patent,
“sensing means within said steering column.” The pa-
tentee has a duty to link the claimed function to a struc-
ture in the specification to express the claim as a means-
plus-function claim under § 112. See B. Braun Med., Inc.
v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997)
(“[S]tructure disclosed in the specification is ‘correspond-
ing’ structure only if the specification or prosecution
history clearly links or associates that structure to the
function recited in the claim. This duty to link or associate
structure to function is the quid pro quo for the conven-
ience of employing § 112, ¶ 6.”). When no structure in the
specification is linked to the function in a means-plus-
function claim element, that claim is indefinite under
35 U.S.C. § 112. AllVoice Computing PLC v. Nuance
Commc’ns, Inc., 504 F.3d 1236, 1241 (Fed. Cir. 2007) (“[A]
means-plus-function clause is indefinite if a person of
ordinary skill in the art would be unable to recognize the
structure in the specification and associate it with the
corresponding function in the claim.” (citation omitted)).
We agree with the district court that no structure is
linked to the function, and thus the claim is invalid.
Neither party objects to the district court’s construc-
tion of the function, which involves both rotation of the
steering wheel and speed of the vehicle. While Cloud
Farm agrees with the district court that the specification
discloses several structures for sensing the rotation of the
steering wheel, it argues that the court erred by not
finding a structure linked to the portion of the function
16 CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP OF
AMERICA
related to speed. Cloud Farm asserts that the specifica-
tion clearly discloses such a structure, which it proposes is
a “speed-measuring device, e.g., the vehicle’s speedometer
or RPM meter.” Appellant Br. 21–22. We agree with
Volkswagen that Cloud Farm’s argument is waived be-
cause it failed to propose this structure at either claim
construction hearing at the district court. Cloud Farm
first proposed “a copper protrusion located on the steering
column,” Cloud Farm’s Opening Claim Constr. Br. 9, ECF
264, and later proposed “a copper protrusion located on
the steering column and a computer or microprocessor.”
Cloud Farm’s Answering Claim Constr. Br. 7–8, ECF 271.
This court’s case law is clear that a party cannot intro-
duce new claim construction arguments on appeal or alter
the scope of the positions it took below. See Interactive
Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1346
(Fed. Cir. 2001) (“As [the doctrine of waiver] relates to
claim construction, the doctrine has been applied to
preclude a party from adopting a new claim construction
position on appeal.”); Sage Prods., Inc. v. Devon Indus.,
Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997) (“With a few
notable exceptions, . . . appellate courts do not consider a
party's new theories, lodged first on appeal. . . . In short,
this court does not ‘review’ that which was not presented
to the district court.”). Here, Cloud Farm is attempting to
do just that by proposing a new structure on appeal, and
thus their argument has been waived. Even if Cloud
Farm’s argument was not waived, its proposed structure
fails. The language of claim 1 requires that the sensing
means are “within said steering column.” The specifica-
tion does not describe the speedometer or RPM meter as
being within the steering column, and Cloud Farm fails to
make any argument about the location of the speedometer
or RPM meter on appeal.
V
The second means-plus-function limitation on appeal,
“means for controlling,” is found in Claim 5 of the ’616
CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP 17
OF AMERICA
patent. We agree with the district court’s construction of
the function and its finding that no corresponding struc-
ture exists. Cloud Farm disputes the district court’s
construction of both the function and structure of this
term. Cloud Farm argues that the patent does not sup-
port the district court’s construction, which requires
complete control of the vehicle’s suspension system;
rather, Cloud Farm contends that the patent only re-
quires that the invention has the ability to merely “affect
or adjust the suspension.” Appellant Br. 22-24. We agree
with the district court and Volkswagen that “the plain
and ordinary meaning of the function associated with this
term is ‘controlling the suspension system.’” Markman II
at *10–11. As cited by the district court, there are multi-
ple places in the ’616 specification that refer to controlling
the entire suspension system. See, e.g., ’616 patent col.1
l.28, col.3 ll.62–67, col.4 ll.4–6, col.12 ll.49–52. Cloud
Farm is unable to offer any evidence for why the term
“controlling” should be replaced by the term “altering.” If,
as Cloud Farm argues, the patentee meant for the claim
language to mean merely altering, the patentee should
have clearly defined this function within the patent. See
Biomedino, LLC v. Waters Techs. Corp., 490 F.3d 946, 948
(Fed. Cir. 2007) (“[I]n return for generic claiming ability,
the applicant must indicate in the specification what
structure constitutes the means.”). As the district court
stated, “altering” is materially different from “control-
ling,” and “suspension damping” is not the same as “sus-
pension.” Markman II at *10–11. Because the patentee
did not offer in the patent its own definition of “control-
ling the suspension system,” and because there is no
evidence that the patentee meant anything but the ordi-
nary meaning, we agree with the district court’s construc-
tion of the function. Cloud Farm acknowledged that if the
district court’s definition of the function is correct, there is
no corresponding structure. Supp. Claim Constr. Hearing
Tr. 17:23 – 18:3, ECF 339. Because this court is also
18 CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP OF
AMERICA
unable to find a corresponding structure to the district
court’s function, the claim is indefinite.
VI
Finally, we agree with the district court that no struc-
ture exists for the “means for activating” limitation in
claim 5 of the ’616 patent. Cloud Farm appears to agree
with the district court’s construction of the function of this
means-plus-function claim, and disagrees only with its
finding that the specification did not disclose a corre-
sponding structure.
Because this means-plus-function term is a computer-
implemented one, the patent must disclose more than a
general purpose processor; it must also include an algo-
rithm to perform the function. See Aristocrat, 521 F.3d at
1333 (“In cases involving a computer-implemented inven-
tion in which the inventor has invoked means-plus-
function claiming, this court has consistently required
that the structure disclosed in the specification be more
than simply a general purpose computer or microproces-
sor.”); see also Ergo Licensing, LLC v. CareFusion 303,
Inc., 673 F.3d 1361, 1365 (Fed. Cir. 2012) (holding that
however an algorithm is expressed, it must be a “step-by-
step procedure for accomplishing a given result” (citation
omitted)). The district court found that the ’616 patent
discloses only a microprocessor and no algorithm that
could implement the claimed function as construed by the
court. Cloud Farm disagrees, asserting that the specifica-
tion does set forth an algorithm, and that the table in-
cluded in the claim is that algorithm. However, that table
is already part of the function construed by the district
court and agreed on by the parties. We find that this
table is not sufficient for structure. Merely restating the
function in the specification is insufficient to provide the
required algorithm. See, e.g., Aristocrat, 521 F.3d at 1334(“The equation thus does not disclose the structure of the
claimed device, but is only another way of describing the
CLOUD FARM ASSOCIATES LP v. VOLKSWAGEN GROUP 19
OF AMERICA
claimed function.”); Noah Sys., Inc. v. Intuit Inc., 675 F.3d
1302, 1317 (Fed. Cir. 2012) (“This type of purely function-
al language, which simply restates the function associated
with the means-plus-function limitation, is insufficient to
provide the required corresponding structure.”). Instead
of offering the algorithm itself, this table merely offers the
output of the algorithm. Nowhere in the patent offers a
step-by-step procedure of how to arrive at the outputs
disclosed in the table. In other words, the patent offers
the ends but not the means, which is not sufficient for
structure. See, e.g., Blackboard, Inc. v. Desire2Learn,
Inc., 574 F.3d 1371, 1384 (Fed. Cir. 2009) (“As such, the
language ‘describes an outcome, not a means for achieving
that outcome.’” (citation omitted)). Therefore, we agree
with the district court that the claim is indefinite.
CONCLUSION
We agree with the district court’s claim constructions,
and we therefore affirm the judgment of the district court.
AFFIRMED
COSTS
No costs.