Barrday, Inc., Barrday Corp. v. Lincoln Fabrics Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BARRDAY, INC., BARRDAY CORP.,
Plaintiffs-Appellants
v.
LINCOLN FABRICS INC.,
Defendant-Appellee
______________________
2022-1903
______________________
Appeal from the United States District Court for the
Western District of New York in No. 1:15-cv-00165-LJV-
MJR, Judge Lawrence J. Vilardo.
______________________
Decided: November 16, 2023
______________________
MICHAEL J. BERCHOU , Harter Secrest & Emery, Buf-
falo, NY, argued for plaintiffs-appellants.
ROBERT J. F LUSKEY , J R., Hodgson Russ LLP, Buffalo,
NY, argued for defendant-appellee. Also represented by
CHARLES RAUCH .
______________________
Before H UGHES , C UNNINGHAM , and STARK, Circuit Judges.
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BARRDAY , INC. v. LINCOLN FABRICS INC. 2
Opinion for the court filed by Circuit Judge CUNNINGHAM .
Dissenting opinion filed by Circuit Judge S TARK.
CUNNINGHAM , Circuit Judge.
Barrday, Inc. and Barrday Corp. (collectively,
“Barrday”) appeal from the stipulated final judgment of
noninfringement of the United States District Court for the
Western District of New York, which was entered in favor
of Lincoln Fabrics Inc. (“Lincoln”) as to two of Barrday’s
patents: U.S. Patent Nos. 8,573,261 and 9,127,379 (collec-
tively, the “Asserted Patents”). See J.A. 1–4. The stipu-
lated final judgment of noninfringement was predicated on
the district court’s construction of the securing yarns claim
term. See Barrday, Inc. v. Lincoln Fabrics Inc., No. 15-CV-
165-LJV-JWF, 2021 WL 3076869 (W.D.N.Y. July 21, 2021)
(“Claim Construction Order”); Barrday, Inc. v. Lincoln Fab-
rics Inc., No. 15-CV-165-LJV-JWF, 2021 WL 8263498
(W.D.N.Y. Oct. 28, 2021) (“Clarification Order”). Because
the district court did not err in its construction of the se-
curing yarns claim term, we affirm the district court’s judg-
ment of noninfringement of the Asserted Patents.
I. BACKGROUND
A. The Asserted Patents
The Asserted Patents, both entitled “Woven Multi-
Layer Fabrics and Methods of Fabricating Same,” cover
certain woven, multi-layer fabrics used in ballistic applica-
tions. See, e.g., ’261 patent col. 10 ll. 10–25; see also id. col.
1 ll. 15–17, col. 2 ll. 12–13.1 The fabrics comprise an upper
(or first) layer and a lower (or second) layer, where each
layer is made up of “warp” and “weft” yarns. Id. col. 2 ll.
14–31. “Warp” and “weft” refer to yarn direction, with
1 Because the Asserted Patents are related and
share a specification, we generally cite to the specification
of the ’261 patent.
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BARRDAY , INC. v. LINCOLN FABRICS INC. 3
warp yarns “run[ning] lengthwise along the fabric” and
weft yarns “run[ning] across the length of the fabric” such
that they “are interwoven with and generally perpendicu-
lar to the warp yarns.” Id. col. 1 ll. 23–26; see also id. col.
5 ll. 55–58. The upper and lower layers are “secured to-
gether” by “securing yarns.” Id. col. 2 ll. 42–46.
Figure 1 shows an embodiment with “an overhead per-
spective view”:
Id. fig. 1, col. 1 ll. 55–56. “[T]he woven fabric 10 is formed
by interweaving the securing yarns 22 with” the upper
warp yarns 12, lower warp yarns 15, upper weft yarns 14,
and lower weft yarns 17 “as the fabric 10 is formed.” Id.
col. 2 ll. 48–50; see also id. col. 2 ll. 14–31.
The Asserted Patents each have only one independent
claim, and both of these independent asserted claims con-
tain the disputed “securing yarns” claim term. See id. col.
10 ll. 10–25; ’379 patent col. 10 ll. 9–23. Independent claim
1 of the ’379 patent recites:
1. A multi-layer ballistic woven fabric, comprising:
a. an upper woven layer having upper warp
yarns and upper weft yarns that are inter-
woven together;
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BARRDAY , INC. v. LINCOLN FABRICS INC. 4
b. a lower woven layer having lower warp
yarns and lower weft yarns that are inter-
woven together;
c. a plurality of securing yarns, each secur-
ing yarn interwoven with at least some of
the upper yarns and some of the lower yarns
so as to secure the upper and lower woven
layers together;
d. wherein the multi-layer ballistic woven
fabric is formed by interweaving the secur-
ing yarns with the warp yarns and weft
yarns as the upper woven layer and lower
woven layer are made: and further wherein
at least some of the upper and lower yarns
are offset from each other so as to overlap
by more than 10%.
’379 patent col. 10 ll. 9–23 (emphasis added to relevant lim-
itation). Independent claim 1 of the ’261 patent contains
the same relevant limitation. See ’261 patent col. 10 ll. 15–
18.
Dependent claims 10 through 14 of the ’379 patent, re-
cited below, also contain limitations relevant to the claim
construction issue on appeal:
10. The multi-layer ballistic woven fabric of claim
1, wherein the securing yarns include one or more
of the upper warp yarns, the lower warp yarns, the
upper weft yarns and the lower weft yarns.
11. The multi-layer ballistic woven fabric of claim
1, wherein the securing yarns include one or more
of the upper warp yarns and the upper weft yarns.
12. The multi-layer ballistic woven fabric of claim
1, wherein the securing yarns include one or more
of the lower warp yarns and the lower weft yarns.
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BARRDAY , INC. v. LINCOLN FABRICS INC. 5
13. The multi-layer ballistic woven fabric of claim
1, wherein the securing yarns include one or more
of the upper warp yarns and the lower warp yarns.
14. The multi-layer ballistic woven fabric of claim
1, wherein the securing yarns include one or more
of the upper weft yarns and the lower weft yarns.
’379 patent col. 10 ll. 52–67 (emphases added to relevant
limitations).
B. Procedural History
On February 24, 2015, Barrday sued Lincoln, alleging
that Lincoln’s fabrics infringed one or more claims of the
’261 patent. See J.A. 54–58. In response, Lincoln sent a
letter to Barrday on March 10, 2015, explaining that
Barrday lacked a reasonable basis for suit because the ac-
cused Lincoln fabrics interweave the upper (or first) and
lower (or second) layers without using securing yarns. See
J.A. 559–60. A few weeks later, on April 2, 2015, Barrday
amended the claims of the pending patent application that
issued as the ’379 patent, including by adding the claims
that issued as dependent claims 10 through 14. See J.A.
567; see also J.A. 564, 572, 574. After this amendment, the
examiner issued a notice of allowance; the ’379 patent is-
sued; and Barrday filed an amended complaint to add in-
fringement allegations for the ’379 patent. See J.A. 82, 86–
87.2
In July 2021, the district court issued its claim con-
struction order, construing securing yarns to mean “yarns,
2 We take judicial notice of the relevant portions of
the publicly-accessible ’379 patent file history not included
in the appellate record. See, e.g., Hoganas AB v. Dresser
Indus., Inc., 9 F.3d 948, 954 n.27 (Fed. Cir. 1993) (citations
omitted); Standard Havens Prods., Inc. v. Gencor Indus.,
Inc., 897 F.2d 511, 514 n.3 (Fed. Cir. 1990).
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BARRDAY , INC. v. LINCOLN FABRICS INC. 6
other than yarns from the upper and lower woven layers,
that secure the upper and lower woven layers together.”
Claim Construction Order at *13–14. In doing so, the dis-
trict court adopted in substantial part Lincoln’s proposed
construction. See id. at *6, *14; J.A. 542. The district court
rejected Barrday’s argument that no construction was nec-
essary, Claim Construction Order at *6 n.4, and rejected
Barrday’s alternative proposed construction of “yarns for
securing or holding upper and lower woven layers to-
gether.” J.A. 200; Claim Construction Order at *6. Subse-
quently, Barrday filed a motion for clarification of the claim
construction order, which the district court denied. See
J.A. 768–76; Clarification Order at *1–2.
Following the district court’s orders, the parties stipu-
lated to noninfringement of the asserted claims of the As-
serted Patents based on the district court’s securing yarns
construction, and the district court entered final judgment
in accordance with the stipulation on May 12, 2022. See
J.A. 1–4.
II. D ISCUSSION
Barrday presents only one issue on appeal: whether
the district court erred in construing securing yarns as
“yarns, other than yarns from the upper and lower woven
layers, that secure the upper and lower woven layers to-
gether.” See Claim Construction Order at *13–14; Appel-
lants’ Br. 18–21. We agree with the district court’s
construction.
A. Standard of Review
“Where the district court’s claim construction relies
only on intrinsic evidence,” as is the case here, “the con-
struction is a legal determination reviewed de novo.” Poly-
Am., L.P. v. API Indus., Inc., 839 F.3d 1131, 1135–36 (Fed.
Cir. 2016) (citing Teva Pharms. USA, Inc. v. Sandoz, Inc.,
574 U.S. 318, 331–33 (2015)); see also Allergan Sales, LLC
v. Sandoz, Inc., 935 F.3d 1370, 1373 (Fed. Cir. 2019)
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BARRDAY , INC. v. LINCOLN FABRICS INC. 7
(citation omitted). “Claim terms are generally 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.” Poly-Am., 839 F.3d at 1136 (cit-
ing Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed.
Cir. 2005) (en banc)). The skilled artisan “is deemed to
read a claim term not only in the context of the particular
claim in which it appears, but in the context of the entire
patent” and terms are interpreted in view of “the intrinsic
evidence of record, including the written description, the
drawings, and the prosecution history.” Allergan, 935 F.3d
at 1373 (cleaned up).
B. Claim Construction
The crux of the parties’ dispute is whether the securing
yarns claim term can include yarns from the upper and
lower woven layers when such yarns are serving the secur-
ing function. See Appellants’ Br. 18; Appellee’s Br. 13.
Barrday first argues that the district court should not have
construed the securing yarns claim term because no con-
struction is required. See Appellants’ Br. 18. Alterna-
tively, Barrday contends that the intrinsic evidence does
not support the district court’s construction and rather sup-
ports its proposed construction: “yarns for securing or
holding upper and lower woven layers together.” Id. at 25;
see also id. at 21, 41–42. Under Barrday’s proposed con-
struction and contrary to the district court’s construction,
securing yarns include, rather than exclude, yarns from the
upper and lower layers. See id. at 25, 38; Appellants’ Reply
Br. 5. We address each argument in turn.
Barrday first contends that the securing yarns claim
term requires no construction “[g]iven the language of the
claims.” Appellants’ Br. 25; see also id. at 23–24. We disa-
gree. “When the parties present a fundamental dispute re-
garding the scope of a claim term, it is the court’s duty to
resolve it.” Eon Corp. IP Holdings LLC v. Silver Spring
Networks, Inc., 815 F.3d 1314, 1318 (Fed. Cir. 2016)
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BARRDAY , INC. v. LINCOLN FABRICS INC. 8
(quoting O2 Micro Int’l, Ltd. v. Beyond Innovation Tech.
Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008)). Though the par-
ties agree that “securing yarns” secure the upper and lower
woven layers together, they dispute whether the term ap-
plies to warp and weft yarns from the upper and lower lay-
ers when such yarns are serving the securing function. See
Appellants’ Br. 18; Appellee’s Br. 13, 17–18. In other
words, the dispute is whether the securing yarns are sepa-
rate from the yarns of the upper and lower layers. See Ap-
pellants’ Br. 18; Appellee’s Br. 13, 17–18. Because the
parties raise “a fundamental dispute regarding the scope”
of securing yarns, it was proper for the district court—and
is now proper for this court—to resolve the dispute. See
Eon, 815 F.3d at 1318 (quoting O2 Micro, 521 F.3d at 1362);
Claim Construction Order at *5–14 & n.4.
Moving to Barrday’s challenge to the district court’s
construction and starting with the claim language, as-
serted independent claims 1 of the Asserted Patents con-
tain the identical relevant limitation: “a plurality of
securing yarns, each securing yarn interwoven with at
least some of the upper yarns and some of the lower yarns
so as to secure the upper and lower woven layers together.”
’261 patent col. 10 ll. 15–18; ’379 patent col. 10 ll. 14–17.
Barrday concedes that these claims refer to the upper
yarns, lower yarns, and securing yarns as “separate struc-
tural limitations.” Oral Arg. at 5:42–53, https://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=22-1903_0504202
3.mp3; see also id. at 4:35–43 (Barrday admitting same).
Where a claim lists elements separately, as done here,
there is “a presumption that those components are dis-
tinct.” Kyocera Senco Indus. Tools Inc. v. Int’l Trade
Comm’n, 22 F.4th 1369, 1382 (Fed. Cir. 2022) (citation
omitted); see also Helmsderfer v. Bobrick Washroom
Equip., Inc., 527 F.3d 1379, 1382 (Fed. Cir. 2008) (“Our
precedent instructs that different claim terms are pre-
sumed to have different meanings.”) (citations omitted).
Moreover, it would be “nonsensical” to interpret yarns from
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BARRDAY , INC. v. LINCOLN FABRICS INC. 9
the upper and lower layers as the same structure as the
securing yarns when these distinct terms are used and
these yarns are “interwoven with” one another as claimed.
See Neville v. Found. Constructors, Inc., 972 F.3d 1350,
1357 (Fed. Cir. 2020) (citation omitted) (finding it would be
“nonsensical” to construe an “end plate” as an indistin-
guishable part of a “protrusion” because the latter was “ex-
tending outwardly” from the former as claimed).
Therefore, the language of the independent claims sup-
ports the district court’s securing yarns construction ex-
cluding yarns from the upper and lower layers.
The specification, which is often “the single best guide
to the meaning of a disputed term,” similarly supports the
district court’s construction. See Phillips, 415 F.3d at 1315
(citation omitted). The specification exclusively refers to
securing yarns as structures that are separate and distinct
from warp and weft yarns of the upper and lower layers.
See, e.g., ’261 patent col. 8 ll. 17–19 (“The upper and lower
woven layers 411, 413 are secured together using one or
more securing yarns 422[.]”); id. col. 5 ll. 49–52 (“The first
[i.e., upper] and second [i.e., lower] layers 111, 113 are se-
cured together by securing yarns 122 that are interwoven
with the first and second warp and weft yarns as the fabric
110 is woven together.”); id. col. 2 ll. 66–col. 3 l. 2 (“[T]he
securing yarns 22 may be generally parallel to or aligned
with the warp yarns 12, 15 and generally perpendicular to
the weft yarns 14, 17.”). Furthermore, in at least some em-
bodiments, the specification repeatedly describes the se-
curing yarns as having different characteristics from the
warp and weft yarns of the upper and lower layers. See,
e.g., id. col. 4 ll. 23–26 (“[T]he securing yarns 22 are gener-
ally of significantly smaller denier than the warp yarns 12,
15 and/or weft yarns 14, 17 and may have significantly
lower tenacities and tensile moduli.”); id. col. 4 ll. 42–44
(“[T]he securing yarns 22 may be generally of a much
smaller size than the warp yarns 12, 15 and weft yarns 14,
17.”).
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BARRDAY , INC. v. LINCOLN FABRICS INC. 10
“Where, as here, a patent repeatedly and consistently
characterizes a claim term in a particular way, it is proper
to construe the claim term in accordance with that charac-
terization.” Wis. Alumni Rsch. Found. v. Apple Inc., 905
F.3d 1341, 1351 (Fed. Cir. 2018) (internal quotation marks
and citation omitted). The specification’s “clear, repeated,
and consistent statements” treating the securing yarns as
“different and distinct” from the warp and weft yarns of the
upper and lower layers and statements describing how the
characteristics of the yarns are different supports a secur-
ing yarns construction that excludes yarns from the upper
and lower layers. See SkinMedica, Inc. v. Histogen Inc.,
727 F.3d 1187, 1203–04 (Fed. Cir. 2013); see also Wis.
Alumni, 905 F.3d at 1351–52; In re Abbott Diabetes Care
Inc., 696 F.3d 1142, 1150 (Fed. Cir. 2012).
And even more notably, the specification expressly crit-
icizes the interweaving practice where securing yarns in-
clude yarns of the upper and lower layers—i.e., the
construction proposed by Barrday and endorsed by the dis-
sent. This excerpt states:
Generally, the yarns of one layer are not interwoven
with the yarns of another layer because such inter-
weaving tends to increase the degree of crimp for
the yarn in relation to [the] rest of the yarns in the
fabric, which can create ballistic weak points. In
particular, the first or upper yarns 12, 14 are not
interwoven with the second or lower yarns 15, 17,
and vice versa. Instead, as shown, the first or upper
layer 11 and second or lower layer 13 are secured
together by one or more securing yarns 22. The se-
curing yarns 22 are interwoven with at least some
of the upper yarns 12, 14 and some of the lower
yarns 15, 17 so as to secure the upper and lower
layers 11, 13 together.
’261 patent col. 2 ll. 36–46 (emphases added). As Barrday
concedes, this excerpt describes the advantages of
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BARRDAY , INC. v. LINCOLN FABRICS INC. 11
interweaving with securing yarns that are distinct from
yarns of the upper and lower layers. See Appellants’ Reply
Br. 9.
Although Barrday argues that this excerpt does not
“amount to an express disavowal of claim scope,” Appel-
lants’ Br. 34, “[o]ur case law does not require explicit re-
definition or disavowal.” Trs. of Columbia Univ. in City of
N.Y. v. Symantec Corp., 811 F.3d 1359, 1363 (Fed. Cir.
2016) (citation omitted). “When the scope of the invention
is clearly stated in the specification, and is described as the
advantage and distinction of the invention,” as is the case
here, “it is not necessary to disavow explicitly a different
scope.” Id. at 1364 (quoting On Demand Mach. Corp. v.
Ingram Indus., Inc., 442 F.3d 1331, 1340 (Fed. Cir. 2006)).
The “repeated description” of securing yarns as separate
and distinct structures from yarns of the upper and lower
layers, the “extolling of the virtues” of separate securing
yarns, and the “criticism” of the interweaving practice
where securing yarns include yarns of the upper and lower
layers “clearly point to the conclusion” that the construc-
tion of securing yarns excludes yarns from the upper and
lower layers. See UltimatePointer, L.L.C. v. Nintendo Co.,
816 F.3d 816, 823 (Fed. Cir. 2016).
The Asserted Patents’ figures further support the dis-
trict court’s securing yarns construction that excludes
yarns from the upper and lower layers. Each of the nine
figures depicts securing yarns as separate from yarns of the
upper and lower layers. See ’261 patent figs. 1–9, col. 1 l.
51–col. 2 l. 8. Indeed, Barrday and the dissent concede that
none of the nine figures “show[s] an embodiment in which
the securing yarns include upper or lower warp or weft
yarns.” Appellants’ Reply Br. 11; see also Oral Arg. at 2:38–
47 (Barrday admitting that “[t]here’s no figure that shows
the use of the warp and weft yarns . . . as securing yarns.”);
Dissent at 10 (“I recognize that all of the figures in the spec-
ification only depict embodiments in which the securing
yarns are separate from the warp and weft yarns.”). Where
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BARRDAY , INC. v. LINCOLN FABRICS INC. 12
each figure in the asserted patent aligns with a particular
construction, as is the case here, such figures offer further
support for that particular construction. See, e.g., Ad-
vanced Steel Recovery, LLC v. X-Body Equip., Inc., 808 F.3d
1313, 1317 (Fed. Cir. 2015) (affirming district court’s con-
struction because, in part, the “construction [wa]s sup-
ported by . . . every figure” and “patent drawings are highly
relevant in construing the limitations of the claims”) (em-
phasis in original) (cleaned up); ICU Med., Inc. v. Alaris
Med. Sys., Inc., 558 F.3d 1368, 1375 (Fed. Cir. 2009);
Howmedica Osteonics Corp. v. Zimmer, Inc., 822 F.3d 1312,
1321 (Fed. Cir. 2016); Apple Inc. v. Samsung Elecs. Co., 839
F.3d 1034, 1063 (Fed. Cir. 2016). Barrday conceded as
much at oral argument, agreeing that “all of the figures in
the [Asserted] Patents support the district court’s claim
construction.” Oral Arg. at 2:27–37.
In the face of such overwhelming intrinsic evidence
supporting the district court’s securing yarns construction,
Barrday directs this court to a specification excerpt and
certain dependent claims of the ’379 patent as the intrinsic
support for its proposed construction. See Oral Arg. at
8:20–58. Neither undermines the district court’s construc-
tion. The specification excerpt on which Barrday relies
states:
In some embodiments, one or more of the warp
yarns 12, 15 and/or weft yarns 14, 17 could be used
in addition to, or in place of, one or more securing
yarns 22 for holding the two or more layers to-
gether. For example, one or more the [sic] of the
warp yarns 12, 15 and/or weft yarns 14, 17 could
be interwoven along a path similar to the path of
the securing yarn 22 as shown in FIG. 2 to secure
the first layer 11 to the second layer 13.
’261 patent col. 3 ll. 35–42 (emphasis added); see Appel-
lants’ Br. 26–27, 38. Barrday contends that this excerpt
“spells out exactly how the warp and weft yarn may be used
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BARRDAY , INC. v. LINCOLN FABRICS INC. 13
as a securing yarn.” Appellants’ Br. 26. However, as the
district court correctly explained, “the relevant question is
one of definition, not function.” Claim Construction Order
at *10. Although this excerpt suggests that warp and weft
yarns of the upper and lower layers can be substituted for
and serve as the functional equivalent of securing yarns, it
does not indicate that the latter refers to the former.
Although Barrday argues that the district court’s con-
struction “exclude[s] the embodiment” disclosed in this ex-
cerpt where the yarns of the upper and lower layers are
substituted for the securing yarns, see Appellants’ Br. 38,
“[o]ur precedent is replete with examples of subject matter
that is included in the specification, but is not claimed.”
TIP Sys., LLC v. Phillips & Brooks/Gladwin, Inc., 529 F.3d
1364, 1373 (Fed. Cir. 2008) (citations omitted) (refusing “to
construe the claim term to encompass the alternative em-
bodiment” because such a construction “would contradict
the language of the claims” and “the [other] intrinsic evi-
dence”); see also Kyocera, 22 F.4th at 1382–83 (similar).
“[T]he mere fact that there is an alternative embodiment
disclosed [here] that is not encompassed by [the] district
court’s claim construction does not outweigh the language
of the claim, especially when the court’s construction is
supported by the intrinsic evidence.” TIP, 529 F.3d at
1373. Additionally, on the other hand, Barrday contends
that the district court’s construction erroneously reads in a
limitation from the specification—namely, “other than
yarns from the upper and lower woven layers.” Appellants’
Br. 32; see also id. at 33–35. We disagree. “[R]ather than
improperly reading a limitation . . . into the claims, the dis-
trict court’s construction, with which we agree, properly
reads the claim term in the context of the entire patent.”
Wis. Alumni, 905 F.3d at 1352.
Aside from the specification excerpt on which Barrday
relies, Barrday points to the independent-dependent claim
structure of the ’379 patent as alleged support for its pro-
posed construction. See Appellants’ Br. 32; see also id. at
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BARRDAY , INC. v. LINCOLN FABRICS INC. 14
27–31, 39–42. Dependent claims 10 through 14 of the ’379
patent, each of which relies on independent claim 1, recite
that “the securing yarns include” various combinations of
upper warp yarns, upper weft yarns, lower warp yarns, and
lower weft yarns. See ’379 patent col. 10 ll. 52–67. Barrday
argues that the securing yarns term recited in the inde-
pendent claim must therefore include the upper warp
yarns, upper weft yarns, lower warp yarns, and lower weft
yarns terms recited in the dependent claims. See Appel-
lants’ Br. 24–25, 27–29. Barrday also contends that the
district court’s construction violates this court’s precedent
discouraging constructions that render dependent claims
“meaningless” because the district court’s construction ren-
ders dependent claims 10 through 14 of the ’379 patent
meaningless. See id. at 27–29 (first citing Littelfuse, Inc. v.
Mersen USA EP Corp., 29 F.4th 1376, 1380 (Fed. Cir.
2022); then citing Baxalta Inc. v. Genentech, Inc., 972 F.3d
1341, 1346 (Fed. Cir. 2020); then citing Intell. Ventures I
LLC v. T-Mobile USA, Inc., 902 F.3d 1372, 1378 (Fed. Cir.
2018); then citing Ortho-McNeil Pharm., Inc. v. Mylan
Labys., Inc., 520 F.3d 1358, 1362 (Fed. Cir. 2008); and then
citing Wright Med. Tech. Inc. v. Osteonics Corp., 122 F.3d
1440, 1445 (Fed. Cir. 1997)).
We do not find Barrday’s argument persuasive. “While
it is true that dependent claims can aid in interpreting the
scope of claims from which they depend, they are only an
aid to interpretation and are not conclusive.” Multilayer
Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp.,
831 F.3d 1350, 1360 (Fed. Cir. 2016) (citations omitted).
“[C]laim differentiation is a rebuttable presumption that
may be overcome by a contrary construction dictated by the
written description or prosecution history.” Howmedica,
822 F.3d at 1323 (citation omitted). This court has adopted
a construction rendering dependent claims meaningless
when that construction was supported by either the speci-
fication or the prosecution history. See Marine Polymer
Techs., Inc. v. HemCon, Inc., 672 F.3d 1350, 1358–59 (Fed.
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BARRDAY , INC. v. LINCOLN FABRICS INC. 15
Cir. 2012) (en banc) (construction supported by specifica-
tion); Regents of Univ. of Cal. v. Dakocytomation Cal., Inc.,
517 F.3d 1364, 1371–76 (Fed. Cir. 2008) (construction sup-
ported by prosecution history); Enzo Biochem Inc. v. Ap-
plera Corp., 780 F.3d 1149, 1154–57 (Fed. Cir. 2015)
(construction supported by specification); Multilayer
Stretch, 831 F.3d at 1358–62 (construction supported by
specification).3 Similarly, we do so here where the claim
language, specification, and figures all support a securing
yarns construction that excludes yarns from the upper and
lower layers.4
The lack of weight afforded to the dependent claims is
particularly appropriate here because such claims were
added after the filing of the original patent application and
3 Contrary to the dissent’s contention, independent
claim 1 of the Asserted Patents is “clear on its face.” Dis-
sent at 7 (quoting Multilayer, 831 F.3d at 1360). Independ-
ent claim 1 of the Asserted Patents refers to the upper
yarns, lower yarns, and securing yarns as separate struc-
tural limitations “interwoven with” one another. ’261 pa-
tent col. 10 ll. 15–18; ’379 patent col. 10 ll. 14–17.
4 Even the one specification excerpt on which
Barrday affirmatively relies that we addressed above does
not support Barrday’s proposed construction, which
Barrday argues is supported by these dependent claims.
The excerpt suggests that warp and weft yarns of the upper
and lower layers can only serve as the functional equivalent
of securing yarns, not that securing yarns can be warp and
weft yarns of the upper and lower layers as recited in the
dependent claims. Compare ’261 patent col. 3 ll. 35–42
with ’379 patent col. 10 ll. 52–67. Counsel for Barrday did
not have an explanation for this linguistic difference at oral
argument, stating “I don’t have an answer for that” when
asked why the excerpt fails to employ the same language
as the dependent claims. See Oral Arg. at 4:12–23.
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BARRDAY , INC. v. LINCOLN FABRICS INC. 16
because the motive for adding such claims appears to be
litigation-driven. See ICU, 558 F.3d at 1376 (affirming
summary judgment of noninfringement based on a con-
struction rendering a dependent claim superfluous be-
cause, in part, the claim was only added “after the filing
date of the original patents” and after “the introduction of
the allegedly infringing [competitor] products”); Cave Con-
sulting Grp., LLC v. Optum Insight, Inc., 725 F. App’x 988,
995 (Fed. Cir. 2018) (adopting a construction rendering de-
pendent claims meaningless because it was “significant”
that the claims “were added after the filing of the original
application”), cert denied, 139 S. Ct. 825 (2019); Barkan
Wireless Access Techs., L.P. v. Cellco P’ship, 748 F. App’x
987, 992 (Fed. Cir. 2018) (same). Dependent claims 10
through 14 were not only added after the filing of the un-
derlying litigation, but also mere weeks after Barrday re-
ceived a letter from Lincoln explaining that there was no
reasonable basis for suit as to the ’261 patent because the
accused Lincoln fabrics interweave the upper and lower
layers without using securing yarns. See J.A. 559–60 (Lin-
coln’s March 10, 2015 letter); J.A. 564, 567, 572, 574
(Barrday’s April 2, 2015 prosecution amendment adding
claims that issued as claims 10 through 14 of the ’379 pa-
tent). On these facts, “[t]he dependent claim tail cannot
wag the independent claim dog.” Multilayer, 831 F.3d at
1360 (citations omitted).5
5 The dissent argues that “broadening claims during
prosecution to capture a competitor’s product is not im-
proper.” Dissent at 13 (quoting Synthes USA, LLC v. Spi-
nal Kinetics, Inc., 734 F.3d 1332, 1341 (Fed. Cir. 2013) and
citing Texas Instruments Inc. v. U.S. Intern. Trade
Comm’n, 871 F.2d 1054, 1065 (Fed. Cir. 1989)). However,
in Synthes and Texas Instruments, this court explained
that such broadening was permissible when the specifica-
tion already disclosed the embodiments covered by the
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BARRDAY , INC. v. LINCOLN FABRICS INC. 17
The cases on which Barrday relies, where this court re-
jected a construction that rendered dependent claims
meaningless, are inapposite. In those cases, the specifica-
tion did not support such a construction, unlike the speci-
fication here. See Littelfuse, 29 F.4th at 1379–81; Baxalta,
972 F.3d at 1347–48; Intell. Ventures, 902 F.3d at 1377–78;
Ortho-McNeil, 520 F.3d at 1362; Wright, 122 F.3d at 1444–
45. And in none of those cases did the motive for adding
the dependent claims at issue appear to be litigation-
driven, as is the case here.
In sum, based on the intrinsic evidence,6 we conclude
that the district court correctly construed securing yarns in
the Asserted Patents as “yarns, other than yarns from the
upper and lower woven layers, that secure the upper and
lower woven layers together.” Claim Construction Order
broadened claims. See Synthes, 734 F.3d at 1341; Texas
Instruments, 871 F.2d at 1065. As discussed in the previ-
ous footnote, the single specification excerpt on which both
Barrday and the dissent relies for support for their pro-
posed construction does not actually disclose the embodi-
ments covered by the dependent claims. See supra note 4
(explaining the linguistic differences between column 3
lines 35 through 42 of the ’261 patent and dependent claims
10 through 14 of the ’379 patent).
6 Although Lincoln points to extrinsic evidence in the
form of a related foreign application as alleged claim con-
struction support, see Appellee’s Br. 30–32, we—like the
district court—decline to consider this extrinsic evidence.
See J.A. 272, 289–91 (Lincoln raising arguments on related
foreign application); Claim Construction Order at *5–14
(district court not addressing such extrinsic evidence). Be-
cause the intrinsic evidence “resolves any ambiguity” as to
the meaning of securing yarns, “it is improper to rely on
extrinsic evidence to contradict the meaning so ascer-
tained.” Helmsderfer, 527 F.3d at 1382 (citation omitted).
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BARRDAY , INC. v. LINCOLN FABRICS INC. 18
at *13–14. Because the parties stipulated to noninfringe-
ment of the asserted claims of the Asserted Patents based
on the district court’s construction of securing yarns, see
J.A. 1–4, we affirm the district court’s judgment of nonin-
fringement. See Eon-Net LP v. Flagstar Bancorp, 653 F.3d
1314, 1323 (Fed. Cir. 2011); Vasudevan Software, Inc. v.
MicroStrategy, Inc., 782 F.3d 671, 681 (Fed. Cir. 2015).
III. CONCLUSION
We have considered Barrday’s remaining arguments,
and we find them unpersuasive. For the above reasons, we
affirm the district court’s judgment of noninfringement of
the asserted claims of the Asserted Patents.
AFFIRMED
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N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BARRDAY, INC., BARRDAY CORP.,
Plaintiffs-Appellants
v.
LINCOLN FABRICS INC.,
Defendant-Appellee
______________________
2022-1903
______________________
Appeal from the United States District Court for the
Western District of New York in No. 1:15-cv-00165-LJV-
MJR, Judge Lawrence J. Vilardo.
______________________
S TARK, Circuit Judge, dissenting.
As is often the case, the claim construction dispute be-
fore us today presents a close call. Determining what a
person of ordinary skill in the art, reading the claims in the
context of the patent, would understand to be the scope of
the claims is frequently entirely contestable, with reasona-
ble (even strong) arguments on both sides. That is cer-
tainly the situation we confront here. For the reasons I
explain below, I think the patentee, who proposes a broader
construction than was adopted by the district court, has the
more persuasive position. Therefore, I respectfully dissent.
I
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BARRDAY , INC. v. LINCOLN FABRICS INC. 2
The disputed claim term is “securing yarns,” which ap-
pears in all of the claims at issue in this appeal. Independ-
ent claim 1 of the ’379 patent is representative and recites:
1. A multi-layer ballistic woven fabric, comprising:
a. an upper woven layer having upper warp
yarns and upper weft yarns that are inter-
woven together;
b. a lower woven layer having lower warp
yarns and lower weft yarns that are inter-
woven together;
c. a plurality of securing yarns, each secur-
ing yarn interwoven with at least some of
the upper yarns and some of the lower
yarns so as to secure the upper and lower
woven layers together;
d. wherein the multi-layer ballistic woven
fabric is formed by interweaving the secur-
ing yarns with the warp yarns and weft
yarns as the upper woven layer and lower
woven layer are made; and further wherein
at least some of the upper and lower yarns
are offset from each other so as to overlap
by more than 10%.
’379 patent col. 10 ll. 9-23 (emphasis added).1
1 Claim 1 of the ’261 patent contains the identical
“securing yarns” limitations (i.e., limitations c and d) and
only differs from claim 1 of the ’379 patent by reciting the
“offset” limitation (i.e., the second half of limitation d of
claim 1 of the ’379 patent) as a separate limitation (e), with
a different range: “wherein at least some of the upper yarns
and lower yarns are offset from each other so as to overlap
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BARRDAY , INC. v. LINCOLN FABRICS INC. 3
The patentee, Barrday, proposed that “securing yarns”
be construed as “yarns for securing or holding upper and
lower woven layers together.”2 By contrast, the accused in-
fringer, Lincoln, argued that “securing yarns” should be
more narrowly construed as “[y]arns, other than yarns from
the upper and lower woven layers, that tie the upper and
lower woven layers together.” J.A. 283 (emphasis added).
The difference between the proposals, and the only issue
before us on appeal, is whether the construction should, as
Lincoln proposed, exclude embodiments in which an upper
or lower layer warp or weft yarn may also be a securing
yarn. The district court included Lincoln’s narrowing lim-
itation in the construction it adopted: “yarns, other than
yarns from the upper and lower woven layers, that secure
the upper and lower woven layers together.” Barrday, Inc.
v. Lincoln Fabrics Inc., No. 15-CV-165-LJV-JWF, 2021 WL
3076869, at *14 (W.D.N.Y. July 21, 2021) (“Claim Con-
struction Order”) (emphasis added).
The Majority affirms the district court’s construction.
Reviewing the issue de novo, see Poly-Am., L.P. v. API In-
dus., Inc., 839 F.3d 1131, 1135-36 (Fed. Cir. 2016), I would,
instead, side with Barrday. I believe that a skilled artisan
considering the claims in the context of the intrinsic and
by between 10% and 95%.” ’261 patent col. 10 ll. 10-25.
These differences are not relevant to this appeal.
2 I agree with my colleagues that the district court
properly rejected Barrday’s alternative position that “se-
curing yarns” requires no construction. Where, as here, the
parties present “a fundamental dispute regarding the scope
of a claim” – such as whether the securing yarns must be
separate from the yarns of the upper and lower layers – “it
is the court’s duty to resolve it.” O2 Micro Int’l, Ltd. v. Be-
yond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1362 (Fed.
Cir. 2008).
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BARRDAY , INC. v. LINCOLN FABRICS INC. 4
extrinsic evidence would conclude that an upper or lower
layer warp or weft yarn may serve as a securing yarn.
II
The claim language, specification, prosecution history,
and extrinsic evidence all favor Barrday’s proposed broader
construction rather than the narrower construction pre-
ferred by Lincoln and adopted by the district court.
A
The claims do not expressly indicate whether upper
and lower layer warp and weft yarns may also be securing
yarns. Importantly, the claim language is broad and non-
limiting. The claims, including representative claim 1 of
the ’379 patent (reproduced above), contain no language
that excludes embodiments in which the same yarn serves
as both a warp or weft yarn and also, at the same time, as
a securing yarn. Given that “[t]here are no words of mani-
fest exclusion,” Hill-Rom Servs., Inc. v. Stryker Corp., 755
F.3d 1367, 1378 (Fed. Cir. 2014), a person of ordinary skill
would likely understand that the patentee intended to
claim the full scope of what is captured by the plain mean-
ing of “securing yarns,” which includes when upper and
lower layer yarns serve the function of holding two or more
layers together. See also Thorner v. Sony Comput. Ent.
Am. LLC, 669 F.3d 1362, 1367 (Fed. Cir. 2012) (“The pa-
tentee is free to choose a broad term and expect to obtain
the full scope of its plain and ordinary meaning unless the
patentee explicitly redefines the term or disavows its full
scope.”).
Because the claims identify, on the one hand, upper
and lower layer yarns and, on the other hand, securing
yarns, it is presumed that these separately described yarns
are different structures. See Kyocera Senco Indus. Tools
Inc. v. Int’l Trade Comm’n, 22 F.4th 1369, 1382 (Fed. Cir.
2022); see also Maj. Op. at 8. This presumption, however,
may be rebutted. A patentee is free to claim embodiments
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BARRDAY , INC. v. LINCOLN FABRICS INC. 5
in which a single structure performs the functions of mul-
tiple, separately recited claim limitations. See, e.g., Powell
v. Home Depot USA, Inc., 663 F.3d 1221, 1231-32 (Fed. Cir.
2011) (“[T]he specification teaches that the cutting box may
also function as a ‘dust collection structure.’”) (emphasis
added); Retractable Techs., Inc. v. Becton, Dickinson & Co.,
653 F.3d 1296, 1303 (Fed. Cir. 2011) (“The claims and the
specifications indicate that the ‘needle holder’ and ‘retainer
member’ need not be separately molded pieces.”). That is
just what a person of skill in the art would understand to
be the case here, since the presumption of separate struc-
tures is rebutted by the claims (and by the specification, as
I describe below in Part II.B).
In my view, the presumption that securing yarns must
be a separate structure from the warp and weft yarns is
persuasively rebutted by the existence of claims that un-
ambiguously claim embodiments in which warp or weft
yarns are performing the agreed-upon function of securing
yarns. I am referring here to dependent claims 10-14 of the
’379 patent, which expressly claim embodiments wherein,
for example, “the securing yarns include one or more of the
upper warp yarns, the lower warp yarns, the upper weft
yarns and the lower weft yarns.” ’379 patent col. 10 ll. 52-
54 (emphasis added); see also Maj. Op. at 4-5 (reproducing
all pertinent dependent claims). No one – not Lincoln, not
the district court, and not the Majority – disputes that
these dependent claims read on embodiments in which an
upper or lower layer warp or weft yarn is holding two lay-
ers together and there is no separate securing yarn.
Nonetheless, the district court’s construction requires
that the securing yarns be “yarns, other than yarns from
the upper and lower woven layers,” and thereby reads the
undisputed embodiments of claims 10-14 out of independ-
ent claim 1, from which they depend. This results in the
scope of dependent claims 10-14 being broader than the
scope of independent claim 1, an outcome not permitted by
the law – making the district court’s construction a
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BARRDAY , INC. v. LINCOLN FABRICS INC. 6
strongly disfavored one. See Alcon Research, Ltd. v. Apotex
Inc., 687 F.3d 1362, 1367 (Fed. Cir. 2012) (“It is axiomatic
that a dependent claim cannot be broader than the claim
from which it depends.”); see also 35 U.S.C. § 112 ¶ 4 (“A
claim in dependent form shall be construed to incorporate
by reference all the limitations of the claim to which it re-
fers.”). The district court’s construction is problematic for
the additional reason that it renders dependent claims 10-
14 unintelligible, as it means these claims simultaneously
allow and prohibit warp and weft yarns serving as securing
yarns. We have directed courts to “strive[] to reach a claim
construction that does not render claim language in de-
pendent claims meaningless,” Ortho-McNeil Pharm., Inc.
v. Mylan Labs., Inc., 520 F.3d 1358, 1362 (Fed. Cir. 2008),
and also to apply a “strong presumption against a claim
construction that excludes a disclosed embodiment,” In re
Katz Interactive Call Processing Patent Litig., 639 F.3d
1303, 1324 (Fed. Cir. 2011). The construction affirmed by
the Majority is inconsistent with these instructions.
I recognize that “[c]anons of claim construction, such as
the doctrine of claim differentiation and the canon of inter-
preting claims to preserve their validity, are not absolute.”
Cave Consulting Grp., LLC v. Optum Insight, Inc., 725 F.
App’x 988, 995 (Fed. Cir. 2018); see also ICU Med., Inc.
v. Alaris Med. Sys., Inc., 558 F.3d 1368, 1376 (explaining
claim differentiation “is not a rigid rule but rather is one of
several claim construction tools”). While not dispositive,
neither are these canons irrelevant, and both of them here
support Barrday’s construction, which complies with the
presumption that dependent claims should be “of narrower
scope than the independent claims from which they de-
pend,” AK Steel Corp. v. Sollac & Ugine, 344 F.3d 1234,
1242 (Fed. Cir. 2003), and which may preserve the validity
of the claims, see generally Ruckus Wireless, Inc. v. Innova-
tive Wireless Solutions, LLC, 824 F.3d 999, 1004 (Fed. Cir.
2016) (“If, after applying all other available tools of claim
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BARRDAY , INC. v. LINCOLN FABRICS INC. 7
construction, a claim is ambiguous, it should be construed
to preserve its validity.”).
The Majority rightly notes that the “dependent claim
tail” cannot be permitted to wag the “independent claim
dog,” echoing our warning in Multilayer Stretch Cling Film
Holdings, Inc. v. Berry Plastics Corp., 831 F.3d 1350, 1360
(Fed. Cir. 2016). See Maj. Op. at 16. I do not find Barrday’s
construction to run afoul of this guidance. Our point in
Multilayer was that “the language of a dependent claim
cannot change the meaning of an independent claim whose
meaning is clear on its face.” Multilayer, 831 F.3d at 1360
(emphasis added). Here, it is far from “clear on its face”
that independent claims 1 of the ’261 and ’379 patents do
not include embodiments lacking separate securing yarns.
The other cases the Majority relies on, see Maj. Op. at
14-15, provide little support for its conclusion that depend-
ent claims 10-14 should not factor heavily in the claim con-
struction analysis. In Marine Polymer Techs., Inc.
v. HemCon, Inc., 672 F.3d 1350, 1358-59 (Fed. Cir. 2012),
we adopted a construction that rendered dependent claims
meaningless because any other construction would have re-
sulted in the scope of these claims contradicting limiting
statements we read as referring to all embodiments “of the
invention.” See also id. at 1359 (analogizing to cases in-
volving patents with specifications referring to “the present
invention.”). Barrday’s specifications do not similarly use
the term “of the invention” (or the like) to limit claim
scope.3 In Regents of Univ. of Cal. v. Dakocytomation Cal,
Inc., 517 F.3d 1364, 1371-76 (Fed. Cir. 2008), we noted that
3 To the contrary, Barrday’s specification expressly
states that “[t]he drawings included herewith are for illus-
trating various examples . . . and are not intended to limit
the scope of what is taught in any way.” ’261 patent col. 1
ll. 51-54.
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BARRDAY , INC. v. LINCOLN FABRICS INC. 8
the presumption of claim differentiation can be rebutted by
prosecution history. Here, nothing in the prosecution his-
tory does so. See infra Part II.C. And in Enzo Biochem Inc.
v. Applera Corp., 780 F.3d 1149, 1154-57 (Fed. Cir. 2015),
we held that “dependent claims cannot broaden an inde-
pendent claim from which they depend,” but there is noth-
ing in Barrday’s proposed construction that results in the
independent claims being any broader than a person of or-
dinary skill in the art would find them to be, even without
the dependent claims. See generally Curtiss-Wright Flow
Control Corp. v. Velan, Inc., 438 F.3d 1374, 1381 (Fed. Cir.
2006) (“[C]laim differentiation can not broaden claims be-
yond their correct scope.”) (emphasis added; internal quota-
tion marks omitted).
Thus, I conclude that the claim language, and particu-
larly that of dependent claims 10-14 of the ’379 patent, fa-
vors a construction which allows the warp and weft yarns
of the upper and lower layers to be securing yarns.
B
That securing yarns do not have to be separate struc-
tures from the upper and lower layer warp and weft yarns
is further confirmed by the specification, which explicitly
contemplates embodiments in which a warp or weft yarn is
also a securing yarn. Although the specification generally
distinguishes between securing yarns and the yarns in the
upper and lower woven layers, and teaches that embodi-
ments using a separate securing yarn are preferred, the
specification also states:
[i]n some embodiments, one or more of the warp
yarns and/or weft yarns could be used in addition
to, or in place of, one or more securing yarns for
holding the two or more layers together.
’261 patent col. 3 ll. 35-38 (emphasis added; internal cita-
tions to numbered elements omitted). The specification
even describes one way such an embodiment could be
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BARRDAY , INC. v. LINCOLN FABRICS INC. 9
structured: “one or more of the warp yarns and/or weft
yarns could be interwoven along a path similar to the path
of the securing yarn . . . to secure the first layer to the sec-
ond layer.” ’261 patent col. 3 ll. 38-42 (internal citations to
numbered elements omitted); see also Appellant Br. at 26-
27 (“For example, every fifth lengthwise yarn could be a
‘securing yarn’ holding the layers together, while the first
to fourth lengthwise yarns in this example would be warp
yarns.”); Reply Br. at 3 (“If, for example, every fifth length-
wise (warp) yarn in the upper layer of the claimed multi-
layer fabric is interwoven with ‘at least some’ of the upper
yarns and some of the lower yarns, so as to secure the up-
per layer to the lower layer, that fifth lengthwise yarn
would constitute a ‘securing yarn’ performing the function
of holding the layers together and that fifth lengthwise
yarn would be structurally distinct from the other four
lengthwise yarns in the pattern.”).4 The Majority is incor-
rect, then, when it asserts that “[t]he specification exclu-
sively refers to securing yarns as structures that are
separate and distinct from warp and weft yarns of the up-
per and lower layers.” Maj. Op. at 9 (emphasis added).
Since the specification calls out that “in some embodi-
ments” the warp and weft yarns may be used “in place of”
securing yarns, a claim construction that mandates sepa-
rate securing yarns – and thereby excludes disclosed em-
bodiments – is most likely incorrect. See, e.g., Oatey Co.
v. IPS Corp., 514 F.3d 1271, 1276 (Fed. Cir. 2008) (“We
4 I see nothing in the record to support a conclusion
that these embodiments would be a “physical impossibil-
ity,” Becton, Dickinson & Co. v. Tyco Healthcare Group, LP,
616 F.3d 1249, 1254-55 (Fed. Cir. 2010) (holding “hinged
arm” could not be connected to itself), or otherwise “non-
sensical,” Maj. Op. at 9. After all, Lincoln contends that its
accused products are precisely such embodiments. See,
e.g., J.A. 560.
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BARRDAY , INC. v. LINCOLN FABRICS INC. 10
normally do not interpret claim terms in a way that ex-
cludes embodiments disclosed in the specification.”). This
is yet another mark against the district court’s construc-
tion.
In discussing this portion of the specification, the Ma-
jority says: “The excerpt suggests that warp and weft yarns
of the upper and lower layers can only serve as the func-
tional equivalent of securing yarns, not that securing yarns
can be warp and weft yarns of the upper and lower layers
as recited in the dependent claims.” Maj. Op. at 15 n.4; see
also id. at 13 (explaining concern is with “definition, not
function”). I do not understand how this distinction leads
to a decision to affirm the district court, especially because
the definition of securing yarns is all about their function,
i.e., to hold two layers together. Elsewhere, the Majority
recognizes that “[t]he crux of the parties’ dispute is
whether the securing yarns claim term can include yarns
from the upper and lower woven layers when such yarns
are serving the securing function.” Maj. Op. at 7 (emphasis
added). The district court likewise framed the dispute as
one about function, writing:
As a general matter, the parties agree that, for pur-
poses of the ’261 and ’379 patents, “securing yarns”
are yarns that serve the function of holding the up-
per and lower woven layers together. What they
dispute is whether the term applies to a warp or
weft yarn from the upper or lower layer when such
yarn is serving that function.
Claim Construction Order at *6 (emphasis added). To me,
then, this appeal is about whether warp and weft yarns can
function as securing yarns, and the specification (like the
claims) makes clear that they can.
I recognize that all of the figures in the specification
only depict embodiments in which the securing yarns are
separate from the warp and weft yarns. The specification,
however, “did not need to include a drawing of [an
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BARRDAY , INC. v. LINCOLN FABRICS INC. 11
embodiment] to cover that particular embodiment.” CCS
Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1367 (Fed.
Cir. 2002). I further recognize that the specification
teaches that the preferred embodiments of the invention
employ separate securing yarns and criticizes embodi-
ments lacking them. But “statements about the difficulties
and failures in the prior art, without more, do not act to
disclaim claim scope.” Retractable Techs., 653 F.3d at
1306; see also Epistar Corp. v. Int’l Trade Comm’n, 566
F.3d 1321, 1335 (Fed. Cir. 2009) (“[D]iscussion of the short-
comings of certain techniques is not a disavowal of the use
of those techniques in a manner consistent with the
claimed invention.”). Moreover, claims are not limited to
their preferred embodiments, even when the specification
discloses only a single embodiment. See Apple Inc. v. Wi-
LAN Inc., 25 F.4th 960, 967 (Fed. Cir. 2022) (“Embodi-
ments in the specification – even if there is only one em-
bodiment – cannot limit the scope of the claims absent the
patentee’s words or expressions of manifest exclusion or re-
striction.”) (internal quotation marks omitted).5
5 Lincoln suggests that various passages in the spec-
ification do contain words of exclusion, but all of the state-
ments on which Lincoln relies are discussing exemplary
embodiments, not the full scope of the claims. See ’261 pa-
tent col. 2 l. 65 – col. 3 l. 9 (“As shown, in some embodiments
the securing yarns may be aligned with the warp or weft
yarns.”) (emphasis added; (internal citations to numbered
elements omitted); id. at col. 3 ll. 10-25 (describing specific
embodiment illustrated in Figure 2); id. at col. 3 ll. 58-67
(“The ratio between securing yarns and ballistic yarns . . .
tends to depend on the desired inter-layer stability.”) (em-
phasis added); id. at col. 4 ll. 23-26 (“In some embodiments,
the securing yarns are generally of significantly smaller de-
nier than the warp yarns.”) (emphasis added; internal
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BARRDAY , INC. v. LINCOLN FABRICS INC. 12
Barrday’s specification, when describing the ad-
vantages of embodiments with separate securing yarns, re-
iterates that embodiments lacking these advantages are
also contemplated, stating:
Generally the yarns of one layer are not interwoven
with the yarns of another layer because such inter-
weaving tends to increase the degree of crimp for
the yarn in relation to [the] rest of the yarns in the
fabric, which can create ballistic weak points.
’261 patent col. 2 ll. 36-39 (emphasis added). The pa-
tentee’s statement that the claims “generally” have sepa-
rate securing yarns tells a person of ordinary skill in the
art that the claims also extend to specific embodiments –
which are expressly called out in column 3, lines 35-42 of
the ’261 patent – that do not have separate securing yarns.
In sum, then, the specification, like the claim language,
would most likely be understood by a person having ordi-
nary skill in the art as supporting the conclusion that “se-
curing yarns” include upper and lower layer warp and weft
yarns when those yarns hold the upper and lower layers
together.
C
“[T]he prosecution history provides evidence of how the
PTO and the inventor understood the patent.” Phillips
v. AWH Corp., 415 F.3d 1303, 1317 (Fed. Cir. 2005). For
purposes of the claim construction dispute we resolve to-
day, the most significant event in the prosecution of
Barrday’s patents was the addition, by amendment, of
citations to numbered elements omitted); id. at col. 4 ll. 42-
50 (“In some embodiments, the securing yarns may be gen-
erally of a much smaller size than the warp yarns and weft
yarns.”) (emphasis added; internal citations to numbered
elements omitted).
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BARRDAY , INC. v. LINCOLN FABRICS INC. 13
dependent claims 10-14 of the ’379 patent. These are the
claims which expressly claim embodiments in which the
upper and lower layer warp and weft yarns function as se-
curing yarns. The record shows that Barrday applied for
dependent claims 10-14, in its then-pending application for
the ’379 patent, only after learning that Lincoln’s accused
products directly interweave upper and lower layers with-
out separate securing yarns. See J.A. 559-60. The district
court placed little weight on these dependent claims be-
cause of concerns about the timing and motivation by
which Barrday obtained them. See Claim Construction Or-
der at *11 (“[T]he probative value of a dependent claim in
defining the scope of an independent claim is vitiated
where the motive for creating the dependent claim appears
to be litigation-driven.”) (internal quotation marks omit-
ted).
In my view, these facts are not relevant to the claim
construction analysis. All patent claims – even those added
by amendment, during litigation, and with the specific in-
tent to aid an infringement case – are presumed valid. See
35 U.S.C. § 282. Neither the statute nor our cases makes
any distinction in the strength of this presumption on the
basis of the timing or motivation underlying acquisition of
a claim. To the contrary, we have said “[i]t is not improper
to amend or insert claims intended to cover a competitor’s
product the applicant’s attorney has learned about during
the prosecution of a patent application.” Texas Instruments
Inc. v. U.S. Intern. Trade Com’n, 871 F.2d 1054, 1065 (Fed.
Cir. 1989) (internal quotation marks omitted); see also Syn-
thes USA, LLC v. Spinal Kinetics, Inc., 734 F.3d 1332, 1341
(Fed. Cir. 2013) (“[B]roadening claims during prosecution
to capture a competitor’s product is not improper.”).6
6 My colleagues distinguish Texas Instruments and
Synthes as cases in which “the specification already
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BARRDAY , INC. v. LINCOLN FABRICS INC. 14
My colleagues state that “[t]he lack of weight afforded
to the dependent claims is particularly appropriate here
because such claims were added after the filing of the orig-
inal patent application and because the motive for adding
such claims appears to be litigation-driven.” Maj. Op. at
15-16. The Majority’s conclusion is not well-supported in
the cases on which it relies. In ICU Med., Inc. v. Alaris
Med. Sys., Inc., 558 F.3d 1368, 1376 (Fed. Cir. 2009), we
repeated the district court’s observation that a dependent
claim “was only added . . . years after the filing date of the
original patents . . . and the introduction of the allegedly
infringing . . . products.” We did not, however, accord any
importance to this fact; for instance, we did not use it to
devalue the weight of the dependent claims or to question
their validity. In Cave Consulting, 725 F. App’x at 995, a
nonprecedential opinion, we allowed that application of the
doctrine of claim differentiation could be affected by the
fact that dependent claims were added after the filing of an
original application, finding this to be a “significant” but
“not dispositive” factor. But we also stressed that “had the
originally filed application . . . in any way indicated that its
invention included direct standardization, the later-added
dependent claims” – which indisputably claimed direct
standardization – “could have lent support to [the patent
owner’s] contention that the independent claims cover di-
rect standardization.” Id. Here there is just such an “indi-
cation,” as Barrday’s original specification always and
expressly disclosed embodiments with no separate secur-
ing yarns. See ’261 patent col. 3 ll. 35-42. This would lead
a skilled artisan to conclude that the dependent claims
disclosed the embodiments” covered by the added claims.
Maj. Op. at 16 n.5. As explained above (see supra Part
II.B), I read Barrday’s specification as disclosing embodi-
ments that use the warp/weft yarn “in place of” securing
yarns – that is, the embodiments that are also the subject
of the dependent claims.
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BARRDAY , INC. v. LINCOLN FABRICS INC. 15
were added for clarification and not as an (improper) ex-
pansion of claim scope. In Barkan Wireless Access Techs.,
L.P. v. Cellco P’ship, 748 F. App’x 987, 992 (Fed. Cir. 2018),
another nonbinding opinion, we found that dependent
claims identified by the patentee did “not compel a con-
struction of [a disputed claim term that is] inconsistent
with the specification, particularly where these claims
were added after the patent application filing date.” Here,
by contrast, Barrday is not relying on dependent claims to
compel a construction that is inconsistent with the specifi-
cation.
From all this, I believe a person of ordinary skill in the
art would find the prosecution history to be supportive of
Barrday’s proposed construction. Certainly, there is noth-
ing in the prosecution history that detracts from the con-
clusion the skilled artisan would derive from the claims
and the specification. At worst, from Barrday’s perspec-
tive, the prosecution history is neutral.
In reaching these conclusions, I do not mean to suggest
that one or more of Barrday’s claims cannot be found inva-
lid or unenforceable. It may be that the breadth of the con-
struction preferred by Barrday makes its claims more
vulnerable to an obviousness or anticipation defense. See
generally 01 Communique Lab., Inc. v. Citrix Sys., Inc., 889
F.3d 735, 742 (Fed. Cir. 2018) (“[I]f a claim term must be
broadly interpreted to read on an accused device, then this
same broad construction will read on the prior art.”). It
may also be that some or all of the claims would capture
embodiments that are unsupported by the specification’s
written description or are not adequately enabled. See,
e.g., Idenix Pharm. LLC v. Gilead Sci. Inc., 941 F.3d 1149,
1155-59 (Fed. Cir. 2019) (applying patentee’s preferred
construction and invalidating claims for lack of adequate
written description and enablement); Liebel-Flarsheim Co.
v. Medrad, Inc., 481 F.3d 1371,1380 (Fed. Cir. 2007) (“The
irony of this situation is that [patent owner] successfully
pressed to have its claims include a jacketless system, but,
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BARRDAY , INC. v. LINCOLN FABRICS INC. 16
having won that battle, it then had to show that such a
claim was fully enabled, a challenge it could not meet.”).
Because this case ended at the claim construction stage,
the district court did not reach issues of validity or enforce-
ability.7 I would remand to allow the parties to resume
their litigation based on application of the correct claim
construction.
D
The district court did not consider any extrinsic evi-
dence. I agree it is unnecessary to do so. See Seabed Ge-
osolutions (U.S.) Inc. v. Magseis FF LLC, 8 F.4th 1285,
1287 (Fed. Cir. 2021) (“If the meaning of a claim term is
clear from the intrinsic evidence, there is no reason to re-
sort to extrinsic evidence.”). However, the parties have
presented extrinsic evidence and have briefed their argu-
ments regarding it. Therefore, I will briefly address it.
Like the intrinsic evidence, the extrinsic evidence here
supports Barrday’s proposed construction. The extrinsic
evidence is the prosecution history of Barrday’s application
for a European patent related to its ’261 and ’379 patents.
See J.A. 289-91, 420-23, 548-49; see also Starhome GmbH
v. AT&T Mobility LLC, 743 F.3d 849, 858 (Fed. Cir. 2014)
(“[S]tatements made before foreign patent offices are some-
times relevant to interpreting the claims.”). As part of the
European prosecution, in responding to an examiner
7 Barrday filed a motion seeking clarification as to
whether the district court’s construction rendered depend-
ent claims 10-14 invalid or unenforceable. It was denied
without prejudice because the magistrate judge who han-
dled the motion had only been referred the matter of claim
construction. See Barrday, Inc. v. Lincoln Fabrics Inc., No.
15-CV-165-LJV-JWF, 2021 WL 8263498 (W.D.N.Y. Oct.
28, 2021).
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BARRDAY , INC. v. LINCOLN FABRICS INC. 17
objection, Barrday stated that the specification paragraph
I highlighted above – including the statement that “one or
more of the warp yarns . . . and/or weft yarns . . . could be
used in addition to, or in place of, one or more securing
yarns” – described features that “are not illustrated in a
drawing or claimed, [although] these features [neverthe-
less] form part of an embodiment of the invention.” J.A.
349 (emphasis added). Barrday eventually amended the
European specification to strike reference to embodiments
in which warp or weft yarns are used “in place of” separate
securing yarns; thereafter, the European claims were al-
lowed. See J.A. 355, 361.
This history – which relates to a different patent with
different claim scope, examined and granted under a dif-
ferent set of patent laws – does not support a conclusion
that the U.S. patents at issue in this appeal likewise fail to
claim embodiments lacking separate securing yarns. To
the contrary, because the “in place of” language remains in
the specifications of the ’261 and ’379 patents, a person of
ordinary skill in the art would understand the European
application to have been prosecuted with a different claim
scope in mind.
Additionally, the European claims require securing
yarns having different characteristics – such as tenacity,
tensile moduli, and denier (i.e., are finer) – than the warp
and weft yarns. See J.A. 440. The claims of the patents we
are considering, by contrast, contain no requirement that
the securing yarns and warp/weft yarns differ in any of
these characteristics (and Lincoln does not contend other-
wise).
From all this, a person of ordinary skill in the art would
conclude, once again, that embodiments without separate
securing yarns are within the scope of the claims of the U.S.
patents that are the subject of this appeal. The extrinsic
evidence, then, confirms what such an artisan would al-
ready have concluded based on the intrinsic evidence.
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BARRDAY , INC. v. LINCOLN FABRICS INC. 18
III
For all of these reasons, I would vacate the district
court’s judgment of non-infringement and remand with in-
structions to conduct further proceedings based on a con-
struction of “securing yarns” as “yarns for securing or
holding upper and lower woven layers together.” Accord-
ingly, I respectfully dissent.
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