Vocaltag Ltd. v. Agis Automatisering B.V.

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VOCALTAG LTD., SCR ENGINEERS LTD.,
Plaintiffs-Appellants
v.
AGIS AUTOMATISERING B.V.,
Defendant-Appellee
______________________
2015-1804
______________________
Appeal from the United States District Court for the
Western District of Wisconsin in No. 3:13-cv-00612-JDP,
Judge James D. Peterson.
______________________
Decided: September 1, 2016
______________________
GREGORY A. CASTANIAS, Jones Day, Washington, DC,
argued for plaintiffs-appellants. Also represented by
ISRAEL SASHA MAYERGOYZ, Chicago, IL; ALVIN C. LIN,
FRED H. PERKINS, Morrison Cohen LLP, New York, NY;
BARRY G. MAGIDOFF, PAUL J. SUTTON, Sutton Magidoff
LLP, New York, NY.
JONATHAN H. MARGOLIES, Michael Best & Friedrich,
LLP, Milwaukee, WI, argued for defendant-appellee. Also
2 VOCALTAG LTD. v. AGIS AUTOMATISERING B.V.
represented by KATHERINE W. SCHILL; ANDREW
DUFRESNE, Madison, WI.
______________________
Before PROST, Chief Judge, CHEN, and STOLL, Circuit
Judges.
STOLL, Circuit Judge.
VocalTag Ltd. and SCR Engineers Ltd. (collectively,
“VocalTag”) appeal the United States District Court for
the Western District of Wisconsin’s grant of summary
judgment finding that Agis Automatisering B.V.’s accused
CowManager system does not infringe the asserted claims
of U.S. Patent Nos. 7,350,481 and 7,878,149 as well as the
district court’s grant of summary judgment of no willful
infringement. For the reasons below, we affirm.
BACKGROUND
The ’481 and ’149 patents are directed to devices and
methods for monitoring activity of cattle. VocalTag filed a
patent infringement suit against Agis, accusing Agis’s
CowManager system of infringement. 1 The accused
CowManager system includes an accelerometer and a
microprocessor attached to an ear tag. The accelerometer
measures instantaneous acceleration forces, and the
microprocessor performs statistical calculations for each
sample of acceleration data. Applying an algorithm, the
CowManager system then classifies the data into behav-
ior categories, with certain categories correlating to a cow
that is ruminating or in estrus. After construing several
disputed claim terms, the district court granted Agis’s
motion for summary judgment of noninfringement and no
willful infringement on all asserted claims.
1 VocalTag asserted claims 1, 8, and 9 of the ’481
patent and claims 1–6, 11–17, 23, and 24 of the ’149
patent against Agis.
VOCALTAG LTD. v. AGIS AUTOMATISERING B.V. 3
I.
The ’481 patent, or “rumination” patent, relates to a
method and system for monitoring chewing actions of
ruminant animals, such as cattle, with the use of sensors
and data processors. ’481 patent col. 1 l. 62 – col. 2
l. 3. Ruminant animals have multi-chamber stomachs
and digest food through a process involving chewing,
swallowing, and regurgitation. Id. col. 1 ll. 19–28. Exem-
plary claim 1 recites:
1. A monitoring system for monitoring the suita-
bility of animal feed, of ruminant animals, com-
prising:
at least one sensor for sensing chewing actions
of the animal produced by the animal while chew-
ing animal feed, including the time of each chew-
ing action and the number of chewing actions per
predetermined time interval, for indicating a ru-
minating activity;
and a data processor accumulating both the
time of each said sensed chewing actions and the
number of said chewing actions per unit time in-
terval, for determining the chewing rhythm of the
animal indicating ruminating activities over a
predetermined time period to provide an indica-
tion of desirable changes in the animal feed for
maximizing milk production or for maintaining
animal health.
Id. col. 8 l. 56 – col. 9 l. 3 (emphases added).
The district court determined that the claim limita-
tion “sensor for sensing chewing actions” is a means-plus-
function limitation under 35 U.S.C. § 112, para. 6, 2 with a
2 The version of 35 U.S.C. § 112 that applies here is
the version in force preceding the changes made by the
4 VOCALTAG LTD. v. AGIS AUTOMATISERING B.V.
function of “sensing chewing actions of the animal pro-
duced by the animal while chewing animal feed, including
the time of each chewing action and the number of chew-
ing actions per predetermined time interval.” J.A. 8. The
corresponding structure, according to the district court, is
a sound sensor, including a diaphragm-type microphone,
a piezoelectric device, or any other sound-to-electrical
transducer. J.A. 10.
The district court similarly determined that the
claimed “data processor” is a means-plus-function limita-
tion, with a function of “accumulating both the time of
each of said sensed chewing actions and the number of
said chewing actions per unit time interval, for determin-
ing the chewing rhythm of the animal indicating ruminat-
ing activities over a predetermined time period to provide
an indication of desirable changes in the animal feed for
maximizing milk production or for maintaining animal
health.” J.A. 10. And the district court found the corre-
sponding structures are the algorithms in Figures 8 and
11 of the ’481 patent. J.A. 11.
In view of these constructions, the district court
granted summary judgment of noninfringement because
it found the undisputed operation of the accused Cow-
Manager system does not utilize sound sensors, measure
the time of each chew, or count individual chews. J.A.
15–17.
II.
The ’149 patent, or “estrus” patent, is directed to a
method and device for detecting estrus in cattle by sens-
ing motion of the animal and differentiating eating-
America Invents Act, given the effective filing dates of the
claims of the ’481 and ’149 patents. See Leahy-Smith
America Invents Act, Pub. L. No. 112-29, 125 Stat. 284,
293 (2011).
VOCALTAG LTD. v. AGIS AUTOMATISERING B.V. 5
related motion from other motion. ’149 patent col. 2
ll. 31–41. Representative claim 12 recites:
12. A device for detecting estrus in a cattle ani-
mal, comprising:
at least one acceleration sensor for sensing ac-
celeration level of said cattle animal over a period
of time, wherein the acceleration level is indicated
by energy level of an acceleration signal produced
by the acceleration sensor;
at least one sensor for sensing over a period of
time, data indicative of eating performed by said
cattle animal; and
at least one microprocessor for accumulating
said acceleration signal, attenuating the energy
level of the acceleration signal as the indication of
eating is stronger, the energy attenuated accelera-
tion signal identifying neutralized motion data,
extracting typical activity level of said animal
based on said neutralized motion data and identi-
fying abnormal behavior indicative of said estrus
in said animal by comparing recently identified
neutralized motion data with the extracted typical
activity level.
Id. col. 8 l. 66 – col. 9 l. 15 (emphasis added).
The district court construed the attenuating step as
“requir[ing] that the energy level of the signal from the
acceleration sensor be reduced in proportion to the
strength of the indication that the animal is eating.”
J.A. 25. The district court then granted summary judg-
ment of noninfringement because it found that “at no
point is the energy level of the [CowManager] accelerome-
ter signal attenuated” and any purported attenuation is
not proportionate to the strength of the indication of
eating. J.A. 26–28.
6 VOCALTAG LTD. v. AGIS AUTOMATISERING B.V.
VocalTag appeals, and we have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(1).
DISCUSSION
We review a district court’s grant of summary judg-
ment under the law of the regional circuit, here the Sev-
enth Circuit. Taurus IP, LLC v. DaimlerChrysler Corp.,
726 F.3d 1306, 1322 (Fed. Cir. 2013). The Seventh Circuit
reviews the grant of summary judgment de novo. Id.
Summary judgment is proper where “the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
An infringement analysis requires a two-step process:
construing the claims and then comparing the properly
construed claims to the accused product. Abbott Labs. v.
Sandoz, Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009). Con-
struing means-plus-function claim terms also follows a
two-step process. First, the claimed function must be
identified, and then any structure disclosed in the specifi-
cation corresponding to the claimed function must be
determined. Williamson v. Citrix Online, LLC, 792 F.3d
1339, 1351 (Fed. Cir. 2015). “Regarding questions of
claim construction, including whether claim language
invokes 35 U.S.C. § 112, para. 6, the district court’s de-
terminations based on evidence intrinsic to the patent as
well as its ultimate interpretations of the patent claims
are legal questions that we review de novo.” Id. (citing
Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831,
840–41 (2015)). “To the extent the district court, in
construing the claims, makes underlying findings of fact
based on extrinsic evidence, we review such findings of
fact for clear error.” Id.
I. Rumination Patent
On appeal, VocalTag disputes the district court’s de-
termination of corresponding structure for the “sensor”
VOCALTAG LTD. v. AGIS AUTOMATISERING B.V. 7
and “data processor” claim limitations and consequent
finding of no infringement. VocalTag does not, however,
dispute the district court’s determination that these claim
limitations are in means-plus-function format. Nor does
VocalTag dispute the district court’s interpretation of the
claimed function.
We first consider the proper construction of the “data
processor” limitation. While the parties agree with the
district court’s determination that the algorithms in
Figures 8 and 11 of the ’481 patent are corresponding
structure for the claimed “data processor,” VocalTag
faults the district court for excluding the algorithm in
Figure 6 as additional corresponding structure. This
algorithm is depicted below:
8 VOCALTAG LTD. v. AGIS AUTOMATISERING B.V.
’481 patent, Fig. 6. Agis counters that the Figure 6 algo-
rithm lacks a step for determining the time of each chew
as required by the claimed function, unlike the algorithms
in Figures 8 and 11, which include specific steps for
determining the time (or duration) of each chew.
We agree with VocalTag that the district court erred
by excluding the Figure 6 algorithm as corresponding
structure. Although the determination of the time of each
chew is not made explicit in Figure 6, the specification
explains that the Figure 6 algorithm “determin[es]
whether the detected chewing sounds . . . are ruminating
activities or eating activities . . . by determining the
rhythm (e.g., duration and frequency) of the chewing
sounds at time-spaced intervals . . . .” ’481 patent col. 5
ll. 14–20 (emphasis added). Thus, in view of the explana-
tion in the specification, the Figure 6 algorithm provides
corresponding structure for the claimed function of the
“data processor” of determining the time and number of
chewing actions for a predetermined time interval.
Nevertheless, we agree with the district court’s de-
termination that the accused CowManager system does
not infringe the asserted claims of the ’481 patent. Vo-
calTag’s infringement evidence is directed to whether the
accused system performs the claimed function—
determining the time and number of chewing actions.
But to demonstrate infringement of a means-plus-function
claim limitation, a patentee must also show that the
accused device has the same or equivalent structure as
the corresponding structure disclosed in the specification.
Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d
1324, 1333 (Fed. Cir. 2006) (“Literal infringement of a
means-plus-function claim limitation requires that the
relevant structure in the accused device perform the
identical function recited in the claim and be identical or
equivalent to the corresponding structure in the specifica-
tion.”). While VocalTag asserts that the CowManager
system can detect the time and number of chewing ac-
VOCALTAG LTD. v. AGIS AUTOMATISERING B.V. 9
tions, VocalTag has not presented any evidence or argu-
ment suggesting that the CowManager system uses the
same or equivalent algorithm as any of the algorithms in
Figure 6, 8, or 11 of the ’481 patent. We therefore affirm
the district court’s grant of summary judgment of nonin-
fringement with respect to the asserted claims of the ’481
patent. Because we resolve infringement of the rumina-
tion patent on the “data processor” limitation, we do not
reach the district court’s construction of the corresponding
structure for the claimed “sensor” limitation.
II. Estrus Patent
VocalTag challenges the district court’s construction
of the claim limitation “attenuating the energy level of the
acceleration signal as an indication of eating is stronger”
(the “attenuation” limitation), as well as the district
court’s determination that the accused CowManager
system does not meet this limitation. The district court
construed this limitation as “requir[ing] that the energy
level of the signal from the acceleration sensor be reduced
in proportion to the strength of the indication that the
animal is eating.” J.A. 25. VocalTag proposes this term
be construed as “the microprocessor statistically reduces
the value of the acceleration signal when the indication of
the animal’s eating increases.” Appellant Br. 56 (empha-
sis omitted).
Turning first to claim construction, VocalTag disputes
the district court’s construction because it believes the
construction improperly imposes a requirement that
attenuation occur during transmission of the signal rather
than in the microprocessor. According to VocalTag, the
construction imposes this requirement because it states
“energy level of the signal from the acceleration sensor.”
Id. at 51. But VocalTag misinterprets the construction.
The phrase “energy level of the signal from the accelera-
tion sensor” identifies the acceleration sensor as the
source of the signal. It does not, as VocalTag contends,
10 VOCALTAG LTD. v. AGIS AUTOMATISERING B.V.
require the attenuation to occur during transmission of
the signal rather than in the microprocessor. Rather, the
court’s construction comports with the full context of the
claim language, which describes the acceleration signal
element as being “produced by the acceleration sensor.”
’149 patent col. 9 l. 4. Thus, we see no error with this
aspect of the district court’s construction.
VocalTag also challenges the district court’s inclusion
of a proportionality requirement in its construction of the
attenuation limitation. We agree with VocalTag that the
district court erred by requiring the claimed attenuation
to be “in proportion to” the strength of the indication that
the animal is eating. But as even VocalTag acknowledges
with its proposed construction, the claimed attenuation
must occur when the indication of the animal’s eating
increases. See Appellant Br. 56
Despite the district court’s improper imposition of a
proportionality requirement, we affirm its grant of sum-
mary judgment of noninfringement. Evidence of attenua-
tion alone is not sufficient to demonstrate infringement;
instead, VocalTag was required to present evidence that
attenuation occurs when the indication of the animal’s
eating increases. VocalTag points to various statistical
calculations performed by the CowManager system as
evidence of attenuation. The record evidence, however,
does not show that the purported attenuation performed
by the accused system occurs in response to an increase in
the indication of the animal’s eating. To the contrary, it is
undisputed that the CowManager system performs the
same statistical analysis on every data set it collects. As
such, we affirm the district court’s grant of summary
judgment of noninfringement of the asserted claims of the
’149 patent.
CONCLUSION
For the foregoing reasons, we affirm the district
court’s grant of summary judgment that Agis’s CowMan-
VOCALTAG LTD. v. AGIS AUTOMATISERING B.V. 11
ager system does not infringe the asserted claims of the
’481 and ’149 patents, as well as its grant of summary
judgment of no willful infringement.
AFFIRMED