ImageCube loses at CAFC

ImageCube, represented by Niro, Haller, & Niro, lost at the CAFC:

ImageCube LLC (“ImageCube”) appeals a decision of
the United States District Court for the Northern District
of Illinois granting judgment of noninfringement with
respect to claims 1, 25, 32, and 34, and the claims de-
pendent therefrom, of United States Reissue Patent
37,875 (“’875 patent”) as to defendant The Boeing Com-
pany (“Boeing”). ImageCube LLC v. Boeing Co., No. 04-
CV-7587, 2009 WL 2178831 (N.D. Ill. July 22, 2009)
[hereinafter Summary Judgment Decision]. We affirm.

Of a 56(f) motion at district court:

the court characterized the question
of whether a single powdered alloy falls within the scope
of the patent as a question of claim construction, the
resolution of which would not be helped by discovery.


Of claim construction:

ImageCube primarily objects to the district court’s
construction of the term “components,” which the court
construed to exclude metallurgical phases of a single
alloy.3 We review the district court’s claim construction
without deference. Cybor Corp. v. FAS Techs., Inc., 138
F.3d 1448, 1451 (Fed. Cir. 1998) (en banc).

The CAFC noted:

ImageCube
argues that the ’875 patent specifically recognizes that
metallurgical phases of the same alloy can be components.
We disagree. The claims require “homogenizing . . . to
form an alloy of components A and B,” see e.g., ’875 Pat-
ent, col.16 ll.65–67, and the specification discusses “alloy
formation upon . . . exposure to radiation,” id. col.5 ll.8–9;
see also id. col.3 ll.19–21. The components must be se-
lected “so as to be capable of alloying under the exposure
of imagewise radiation,” thus suggesting that they must
alloy during the process.

The last paragraph of the decision:

To the extent ImageCube attempts to raise issues
other than claim construction, we find that these issues
have been waived. Following summary judgment, Im-
ageCube filed a motion for entry of judgment under Rule
54(b), stipulating that, “given the present claim construc-
tion, [ImageCube cannot] prove infringement by Boeing;”
thus, “[t]his case is final with respect to Boeing.” J.A.
3298. In so stipulating, ImageCube waived issues other
than claim construction with respect to Boeing. In any
event, we find ImageCube’s arguments relating to these
issues to be without merit.