Wash World Inc. v. Belanger Inc., Fka Piston Opw Inc.

United States Court of Appeals
for the Federal Circuit
______________________
WASH WORLD INC.,
Plaintiff-Appellant
v.
BELANGER INC., FKA PISTON OPW INC.,
Defendant-Appellee
______________________
2023-1841
______________________
Appeal from the United States District Court for the
Eastern District of Wisconsin in No. 1:19-cv-01562-WCG,
Chief Judge William C. Griesbach.
______________________
Decided: March 24, 2025
______________________
MICHAEL DAVID GANNON, Baker & Hostetler LLP, Chi-
cago, IL, argued for plaintiff-appellant. Also represented
by A LAINA LAKAWICZ , Philadelphia, PA; SHERRY DAWN
C OLEY, TIFFANY WOELFEL, Amundsen Davis LLC, Green
Bay, WI.
CHRISTOPHER R OBERT DILLON, Fish & Richardson P.C.,
Boston, MA, argued for defendant-appellee. Also repre-
sented by WHITNEY REICHEL; N ITIKA GUPTA F IORELLA , Wil-
mington, DE.
______________________
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WASH WORLD INC. v. BELANGER INC. 2
Before L OURIE , P ROST, and STARK, Circuit Judges.
STARK, Circuit Judge.
Resolution of this case requires us to consider when a
litigant fairly presents an issue to the trial court judge. Ap-
pellant-adjudicated infringer Wash World Inc. (“Wash
World”) seeks to reverse a final judgment that it infringed
Appellee-patentee Belanger Inc.’s (“Belanger”) 8,602,041
patent (the “’041 patent”). Wash World’s principal conten-
tions are that the district court erred in connection with
construing – or, more accurately, not construing – three
claim terms, and that Belanger could not prove infringe-
ment under the correct constructions. Wash World also
quarrels with the jury’s decision to award Belanger $9.8
million in lost profits damages and specifically asks us to
direct the district court to subtract approximately $2.6 mil-
lion from this figure by ordering remittitur.
For its part, Belanger asserts that every issue Wash
World presses on appeal was forfeited by not being pre-
served in or in some instances not even being presented to,
the district court. Belanger points to distinctions between
the claim constructions proposed by Wash World below and
those Wash World now asks us, on appeal, to adopt. It fur-
ther insists that Wash World did not do enough to make
clear to the district court that among the remedies it was
seeking with respect to damages was remittitur of approx-
imately $2.6 million.
We conclude that neither side is completely correct.
With respect to claim construction, for two of the three
terms it asks us to construe ourselves, Wash World pro-
poses a materially different construction than it did in the
district court, so Wash World’s requests come too late. For
the remaining term, we agree with the district court’s im-
plicit construction. Finally, on damages, while Wash
World was somewhat vague in the district court about
what relief it was seeking, it did enough to let Belanger and
the court know that it was asking for remittitur of
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WASH WORLD INC. v. BELANGER INC. 3
approximately $2.6 million. Because, on the merits, we
agree with Wash World that the jury did not have sufficient
evidence to include the $2.6 million as part of its damages
award – since this amount corresponds to Belanger’s losses
for nonpatented “convoyed sales,” yet the requirements for
such damages were not met – and because Belanger is ju-
dicially estopped from arguing that we do not know the ba-
sis for the jury’s damages award, we will remand with
instructions that the district court remit the damages.
I
Belanger manufactures car wash systems and is the
owner of the ’041 patent. The ’041 patent, entitled “Vehicle
Spray Washer with Lighted Spray Arm,” generally dis-
closes a spray type car wash system that comprises “the
combination of a wash system having a lighting system to
provide a visual cue for centering a vehicle within the en-
velope of the wash apparatus while entering the bay.”
’041 patent 1:38-45. The system has “twin, laterally
spaced-apart spray arms” which each include lights for
providing visual cues to drivers entering the car wash. Id.
at 1:46-47. The patent further describes “additional fea-
tures to prevent damage to the spray arm or arms or light
supports such as soft or resilient arm structures and a
breakaway joint.” Id. at 1:65-67. The spray arms “depend
pivotally from a carriage which is mounted on longitudi-
nally extending overhead rails,” and can wash and rinse
the car by “travel[ing] along and around the exterior of a
vehicle parked in the bay” during the wash and rinse
phases. Id. at 2:16-19.
An embodiment of the car wash system is illustrated in
Figure 1, which is reproduced below. It shows a wash bay
(10) from the perspective of an entering vehicle (12). Id.
at 2:29-30. The wash bay (10) is wide enough to receive a
car and is typically around 25 feet long; it may be fully en-
closed or essentially open in warmer climates. Id. at 2:39-
44. The L-shaped spray arms (30, 32) carry a water supply
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WASH WORLD INC. v. BELANGER INC. 4
conduit and are equipped with inwardly-directed nozzles
(34); they direct water and other chemicals toward the ve-
hicle when it reaches the appropriate position in the bay.
Id. at 2:59-65. Elongate tubular lights (38, 40) are attached
to and extend along the vertical portion of the L-shaped
arms. Id. at 3:22-24. The lights may be operated in an
intermittent flashing mode by means of a data line (42) ex-
tending from the control (26) to the individual light devices
(38, 40), see id. at 3:22-27, which are themselves made up
of translucent yellow plastic tubes of specified dimensions,
see id. at 3:28-31. The illuminated lights are intended to
have a “goal-post” effect, helping the driver maneuver the
vehicle through the center of the L-shaped arms, and main-
tain that position until the end of the bay. Id. at 3:31-38.
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WASH WORLD INC. v. BELANGER INC. 5
Claim 7 is illustrative of the issues on appeal. It re-
cites:
A spray-type car wash system comprising:
a carriage for translating a vertically ori-
ented spray arm relative to a predefined
wash area;
wherein the vertically oriented spray arm
is dependingly mounted from the carriage
so as to extend substantially vertically into
the wash area for controlled travel relative
to a vehicle in the area; said arm compris-
ing a fluid conduit and a plurality of verti-
cally spaced apart nozzles arranged along a
vertical axis for directing fluids laterally of
the arm toward a vehicle in the wash area;
and
a lighting system comprising a plurality of
light sources carried by the arm and dis-
tributed along substantially the entire ver-
tical length of the arm so as to be capable
of producing illumination along substan-
tially the entire vertical length of the arm,
wherein at least a portion of the light
sources and at least a portion of the nozzles
are partially enclosed within an outer cush-
ioning sleeve that encloses the fluid conduit
of the spray arm.
’041 patent at 5:24-41 (emphasis added).
In May 2018, Belanger sent a cease-and-desist letter to
Wash World, another car wash system manufacturer. Bel-
anger alleged that Wash World’s “Razor EDGE” car wash
system infringes the ’041 patent. The Razor EDGE em-
ploys a single lighted spray arm called a “LumenArch” de-
signed to move around a car as the arm washes it. The
LumenArch’s spray arm is enclosed within a blue-colored
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WASH WORLD INC. v. BELANGER INC. 6
plastic covering. In response to Belanger’s letter, Wash
World sued Belanger, seeking a declaratory judgment that
its Razor EDGE car wash system did not infringe the
’041 patent. Belanger counterclaimed, asserting infringe-
ment and seeking damages.
The parties filed claim construction briefs and the dis-
trict court decided it did not need to hold a claim construc-
tion hearing. It issued an opinion addressing several claim
construction disputes. In particular, the court sided with
Belanger and held that “no construction is needed” of any
disputed term. J.A. 19. This included two terms at issue
in this appeal: “outer cushioning sleeve” and “predefined
wash area.” J.A. 5-19.
For “outer cushioning sleeve,” the district court held
that “the terms do not require additional construction” and
explained that “Wash World’s proposed constructions
would unnecessarily narrow the claims.” J.A. 13. The
court repeatedly noted that “outer cushioning sleeve” is
“perfectly understandable when [its] components are given
their plain and ordinary meanings, – i.e., cushion (‘to pro-
tect against force or shock’), [and] sleeve (‘a tubular part
designed to fit over another part’).” J.A. 14 (citing
MERRIAM -WEBSTER DICTIONARY).
With respect to “predefined area,” the district court re-
jected Wash World’s proposed construction, “substantially
centrally within a wash area,” reasoning that “the terms
are understandable under their plain and ordinary mean-
ings and require no further construction.” J.A. 11-12. The
court added that, under the plain and ordinary meaning,
“the wash area is predetermined by the location and oper-
ation of the equipment that performs the washing.”
J.A. 12.
Following claim construction, Wash World moved for
summary judgment of noninfringement, arguing that its
Razor EDGE system did not meet the “outer cushioning
sleeve” or “predefined wash area” limitations. Wash World
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WASH WORLD INC. v. BELANGER INC. 7
contended that its system lacks an “outer cushioning
sleeve” because the LumenArch’s “hard plastic cover is not
‘cushioning’ and is not intended to perform a cushioning
function.” J.A. 2911. Wash World further asserted that its
LumenArch “does not translate a spray arm relative to a
predefined wash area” because it instead “determines the
path of the spray arm based on the dimensions of the vehi-
cle and where the vehicle is located in relation to the spray
arm, which are measured via sonars.” J.A. 2910. Wash
World also argued that the Razor EDGE does not have a
spray arm “dependingly mounted” from the carriage (an-
other claim requirement) because the LumenArch spray
arm is mounted to a trolley, and that trolley is connected
to the carriage. J.A. 2921. The district court rejected each
of these arguments and denied Wash World’s motion.
Following a four-day trial, a jury returned a general
verdict finding that Wash World’s Razor EDGE car wash
system infringes independent claim 7 and dependent
claims 11-14 of Belanger’s ’041 patent. The jury awarded
Belanger lost profit damages of $9,800,000 as well as
$260,000 in reasonable royalties for a total damages award
of $10,060,000. The district court entered judgment con-
sistent with this verdict and enjoined Wash World’s use,
manufacture, or sale of the Razor EDGE car wash system.
Subsequently, Wash World moved for judgment as a
matter of law that claim 7 is not infringed and, alterna-
tively, for a new trial or remittitur of the damages award.
In its motion, Wash World addressed each of the three lim-
itations it had disputed at trial, arguing (1) the “outer cush-
ioning sleeve” should have been construed as “a thick
sleeve of extruded foam plastic that acts as a protective
cushion to prevent damage, thereby suggesting that the
sleeve should be made of material that could be compressed
and spring back into shape,” J.A. 7191; (2) the “predefined
wash area” limitation “required that the spray arm move
in a manner established by the location of the equipment
that performs the washing,” J.A. 7199; and (3) the
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WASH WORLD INC. v. BELANGER INC. 8
LumenArch was not “dependingly mounted” because it was
not directly mounted to the carriage, J.A. 43-44. Wash
World also challenged the jury’s damages award on several
grounds, including, as relevant here, that Belanger had
failed to prove it was entitled to lost profits based on con-
voyed sales.
The district court denied Wash World’s motion in its
entirety. For the “outer cushioning sleeve,” the district
court explained that it had “never construed ‘outer cush-
ioning sleeve’ to be a sleeve that acts like a cushion” and it
would not now “narrow the plain and ordinary meaning of
‘outer cushioning sleeve’ in the way that Wash World sug-
gests.” J.A. 41-42. The court rejected Wash World’s “pre-
defined wash area” arguments, explaining that “the jury
was free to credit” testimony “that the claims require move-
ment relative to a car and to the predefined wash area and
that Wash World’s products do both.” J.A. 43. With respect
to the “dependingly mounted” limitation, the court noted
that the jury could have found the LumenArch was “de-
pendingly mounted” because it was indirectly mounted to
the carriage, and “there is no requirement in the claim lim-
itations or the ’041 Patent that the spray arm must be di-
rectly mounted to the carriage.” J.A. 43-44.
Turning to damages, the district court upheld the jury’s
award. It interpreted Wash World’s challenge to Bel-
anger’s convoyed sales evidence as an argument that Bel-
anger had failed to present sufficient evidence of
apportionment. So viewed, the court rejected Wash
World’s contentions.
Wash World appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(1).
II
We review a district court’s rulings on post-trial mo-
tions, including for judgment as a matter of law or a new
trial, under the law of the regional circuit. See Finjan, Inc.
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WASH WORLD INC. v. BELANGER INC. 9
v. Secure Computing Corp., 626 F.3d 1197, 1202 (Fed. Cir.
2010). Under Seventh Circuit law, denial of a motion for
judgment as a matter of law is reviewed de novo and re-
quires “examin[ing] the evidence presented, combined with
any reasonably drawn inferences, and determin[ing]
whether that evidence sufficiently supports the verdict
when viewed in the light most favorable to the non-moving
party.” E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 834-35
(7th Cir. 2013). Reversal of a trial court’s denial of such a
motion is appropriate only “if no rational jury could have
found for the prevailing party.” Id. at 835. The Seventh
Circuit reviews the denial of a motion for a new trial, or for
remittitur of damages, for abuse of discretion, and is gen-
erally extremely deferential to a district court’s decision on
these types of motions. See id. at 832-33.
Claim construction, reviewed under Federal Circuit
law, is “a question of law we review de novo where, as here,
it is decided on the intrinsic evidence.” Best Med. Int’l, Inc.
v. Elekta Inc., 46 F.4th 1346, 1355 (Fed. Cir. 2022) (inter-
nal citation omitted). Vacatur and remand for a new trial
is necessary when a legally erroneous claim construction
had a prejudicial effect on the jury’s verdict. See Avid
Tech., Inc., v. Harmonic, Inc., 812 F.3d 1040, 1047
(Fed. Cir. 2016).
III
Wash World challenges the district court’s construc-
tions of “outer cushioning sleeve,” “predefined wash area,”
and “dependingly mounted from.” Each of Wash World’s
challenges is either forfeited or fails on the merits.
A
Wash World failed to preserve the claim construction
position it presses before us with respect to “outer cushion-
ing sleeve.” On appeal, Wash World insists that the proper
construction of this term is “an outer sleeve that is soft or
resilient (i.e., can be compressed and spring back into
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WASH WORLD INC. v. BELANGER INC. 10
shape, like a cushion).” Open. Br. at 43 (internal capitali-
zation altered). It never proposed this construction to the
district court. When the meaning of the term was being
litigated in the district court, Wash World’s proposed con-
struction was “thick sleeve of extruded foam plastic that
acts as a protective cushion to prevent damage.” J.A. 2117.
Wash World gave no indication to the trial court that it was
contending the “outer cushioning sleeve” had to be “soft
and resilient” and had to be capable of being “compressed
[to] spring back into shape.” The district court, therefore,
had no opportunity to evaluate this position (one with
which Belanger disagrees) and we find it is forfeited. See
Digital-Vending Servs. Int’l, LLC v. Univ. of Phx., Inc.,
672 F.3d 1270, 1273-74 (Fed. Cir. 2012) (noting that “party
may not, as a general rule, change the scope of its claim
construction on appeal” and refusing to consider “new con-
struction [that was] substantially different” from that pre-
sented to district court) (internal citations omitted);
Conoco, Inc. v. Energy & Environ. Int’l, L.C., 460 F.3d
1349, 1359 (Fed. Cir. 2006) (“[L]itigants [may not] present
new claim construction disputes if they are raised for the
first time after trial.”) (internal citation omitted).
Citing our decision in Vectura Limited v. Glax-
osmithkline LLC, 981 F.3d 1030, 1038 (Fed. Cir. 2020),
Wash World argues that its “soft and resilient” construc-
tion on appeal is sufficiently similar to the construction it
proposed to the trial court such that we should not find for-
feiture. To be sure, a party is not always confined to the
precise wording of the constructions it advanced below, and
on appeal it may “present[] new or additional arguments in
support of the scope of [its] claim construction.” O2 Micro
Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351,
1359 (Fed. Cir. 2008). In doing so, however, a party must
still “incorporate an understanding of the parties’ dispute
that has developed through the course of litigation.” Id.
at 1360.
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WASH WORLD INC. v. BELANGER INC. 11
Here, Wash World seeks to go further than simply of-
fering new arguments, and new words, to resolve essen-
tially the same dispute with essentially the same
construction. In the district court, the parties’ dispute cen-
tered on whether the “outer cushioning sleeve” had to be a
“thick sleeve of extruded foam plastic,” as Wash World pro-
posed, or was not limited to such material, as Belanger ad-
vocated. J.A. 2721-22. The district court resolved this
dispute by adopting the plain and ordinary meaning and
finding the sleeve is not limited to thick extruded foam
plastic. On appeal, Wash World has dropped its prior pro-
posal that the “outer cushioning sleeve” be “thick” and
made of “extruded foam plastic,” and instead urges us to
hold that the sleeve must be “soft and resilient” and, there-
fore, “can be compressed and spring back into shape.” That
is, on appeal Wash World has conceded the dispute it pre-
sented to the district court (“thick . . . extruded foam plas-
tic”) and presses only a dispute it did not fairly present to
that court (“soft and resilient . . . and [can] spring back into
shape”). Although Wash World can point to places in the
trial court record where it used the words “soft and resili-
ent” in connection with discussing the “outer cushioning
sleeve,” see J.A. 2117 (“[T]his construction is supported by
the plain and ordinary meaning of ‘to cushion,’ which is to
soften or lessen the impact thereof.”); J.A. 2118 (“The spec-
ification discusses that the invention comprises additional
features to prevent damage to the spray arm . . . such as
soft or resilient arm structures. . . .”) (internal emphasis
omitted), at no point did it propose “soft and resilient” (or
anything like it) be made part of the construction, nor did
it, in any other way, alert the district court that there was
a dispute over “soft and resilient.”1
1 The closest Wash World came was when it stated
in its claim construction brief, “Therefore, the term
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WASH WORLD INC. v. BELANGER INC. 12
We have previously held that where, as here, “there is
no indication that the [district] court was aware of the sup-
posed [claim construction] dispute, a party is considered to
have forfeited” it, “and cannot resurrect its argument on
appeal by pointing to ambiguous statements in the record.”
Kaufman v. Microsoft Corp., 34 F.4th 1360, 1369 (Fed. Cir.
2022). The focus of Wash World’s district court arguments
was that “[c]ushioning must be construed as limiting the
purpose of the sleeve,” with the purpose being “to prevent
damage.” J.A. 2117. Wash World did not attempt to show
that this purpose could only be served by “soft and resili-
ent” materials. Thus, nothing about Wash World’s earlier
argument indicated that Wash World was proposing to
limit the term to “soft and resilient” materials, as it now
asks us to do on appeal.
We may excuse forfeiture under exceptional circum-
stances. See In re Google Tech. Holdings LLC, 980 F.3d
858, 863 (Fed. Cir. 2020) (“[A] position not presented in the
tribunal under review will not be considered on appeal in
the absence of exceptional circumstances.”). No such cir-
cumstances are present here. Wash World chose what con-
struction to propose to the district court, was fully heard on
its reasoning for its proposal, and never – at claim con-
struction, at summary judgment, or in preparing jury in-
structions – indicated to the trial court that there was a
dispute over whether the “outer cushioning sleeve” had to
be made of “soft and resilient” material. The case,
‘cushioning’ should be construed to require a softening or
protective function to the outer sleeve.’” J.A. 2118. Even
here, however, its contention was that the construction
should be based on the function of the sleeve, which was
either to soften or to protect – and Wash World never ar-
gued that only soft and resilient sleeves could protect.
Wash World also failed to show that even a “softening”
could only be accomplished by a “soft” material.
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WASH WORLD INC. v. BELANGER INC. 13
therefore, proceeded through trial without a construction
imposing such a requirement. We see no reason to absolve
Wash World of the consequences of its decision not to pur-
sue, in a timely manner in the trial court, the claim con-
struction it now wishes us to adopt. See Kaufman, 34 F.4th
at 1370 (“A proper claim construction provides a legal
standard for the jury to apply, and so the requirement of
clear, timely raising of an argument for claim construction
reflects the strong requirement of timely raising of distinct
objections to jury instructions.”); Power Integrations, Inc.
v. Fairchild Semiconductor Int’l, Inc., 904 F.3d 965, 975
(Fed. Cir. 2018) (finding claim construction position for-
feited where party “fail[ed] either to request that the dis-
trict court modify or clarify its claim construction earlier in
the litigation proceedings or to object to the jury instruc-
tions”).
Thus, we will not reverse the district court based on its
construction of “outer cushioning sleeve.”
B
Wash World likewise forfeited the position it presently
takes with respect to the proper construction of “predefined
wash area.” In the district court, Wash World proposed
that “predefined wash area” be construed as “substantially
centrally within a wash area,” arguing that a car to be
washed had to be “positioned so that it is centrally located”
within the wash area. J.A. 2109-10. Wash World further
advanced a construction of “wash area” as the “area in
which a vehicle to be washed is positioned.” J.A. 2103.
On appeal, Wash World presses a more elaborate, and
materially different, construction. It begins by proposing
that “the wash area inside the wash bay is defined before
the vehicle enters the car wash and does not change after
the vehicle enters the car wash.” Open. Br. at 51 (internal
capitalization altered). These timing-related constraints
were never even mentioned to the district court. For the
first time on appeal, Wash World further asserts that
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WASH WORLD INC. v. BELANGER INC. 14
“predefined” requires that “the spray arms . . . cannot be
moved laterally from side-to-side, which means that the di-
mensions of the wash area (defined by the movement of the
spray arms . . . around the sides, front, and rear of the ve-
hicle) are exactly the same for every vehicle.” Open. Br.
at 52.
Wash World directs us to several statements it made
during the district court proceedings that it contends were
“substantially similar” to its current construction, but
these statements say nothing about restricting the lateral
movement of the spray arms or otherwise restricting the
boundaries of the wash area. See J.A. 2107-09 (arguing
“wash area” is different from “wash bay”); J.A. 2820 n.4
(same); J.A. 2106 (arguing “there is a specific area to which
the driver should be navigated”); J.A. 2833 (“[T]he specifi-
cation clearly disavows a general, undefined wash area and
identifies that the wash area must have a positional com-
ponent.”). In the district court, the only issue Wash World
urged upon the court relating to this term was whether the
car being washed had to be located essentially in the center
of the wash area. Wash World did nothing to alert the
court to its present concern that the wash area must be
kept constant for all cars at all times.
Wash World’s position before us is too far removed from
its district court construction to be considered simply new
arguments for essentially the same claim construction and
is, therefore, forfeited.2 No exceptional circumstances are
2 Wash World preserved its related argument con-
cerning the general relationship between the “wash area”
and “wash bay.” Compare Open. Br. at 55 (“[A] ‘wash area’
. . . is different than a ‘wash bay. . . .’”) with J.A. 2109
(“[T]he Court should reject any argument by Belanger to
construe ‘wash area’ as ‘wash bay’ and instead construe
‘wash area’ as the ‘area in which a vehicle is positioned.’”).
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WASH WORLD INC. v. BELANGER INC. 15
present to excuse that forfeiture. We will not reverse the
district court based on its construction of “predefined wash
area.”
C
Wash World preserved its challenge to the district
court’s construction of “dependingly mounted,” but we
agree with that court’s construction. Claim 7 of the
’041 patent includes the limitation “wherein the vertically
oriented spray arm is dependingly mounted from the car-
riage so as to extend substantially vertically into the wash
area.” ’041 patent at 5:24-41 (emphasis added). Although
neither party identified “dependingly mounted” as requir-
ing construction during the claim construction stage of the
district court proceedings, a dispute over the scope of this
term became apparent during briefing on Wash World’s
motion for summary judgment. See generally Conoco,
460 F.3d at 1359 (“[A] district court may engage in claim
construction during various phases of litigation.”). In its
motion, Wash World contended that the Razor EDGE does
not infringe claim 7 because it lacks a direct connection be-
tween the LumenArch spray arm and the carriage. In-
stead, the LumenArch spray arm is directly connected to a
trolley, which is itself directly connected to the carriage,
leaving the spray arm of the accused system only indirectly
connected to the carriage via the trolley. Wash World ar-
gued in support of summary judgment that the “depend-
ingly mounted” limitation requires that the spray arm be
connected directly to the carriage. In denying Wash
World’s request for summary judgment of non-infringe-
ment, the district court rejected Wash World’s contention,
But no material dispute remains on this point. As Bel-
anger notes, the district court did not construe “wash area”
as having the same meaning as “wash bay,” and Belanger
does not question this (or any other of the district court’s
constructions).
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WASH WORLD INC. v. BELANGER INC. 16
holding “there is no requirement in the claim limitations or
the ’041 Patent that the spray arm must be directly
mounted to the carriage.” J.A. 43. While neither the par-
ties nor the district court expressly referenced “claim con-
struction,” they were plainly addressing the scope of the
claims and were, thereby, engaging in claim construction.
See Google LLC v. EcoFactor, Inc., 92 F.4th 1049, 1055
(Fed. Cir. 2024) (“If the outcome of the analysis of the claim
term establishes the scope (e.g., boundaries) and meaning
of the patented subject matter, the court (or the Board) has
mostly likely construed the claim.”) (internal emphasis
omitted).
On appeal, Wash World is more explicit that its argu-
ment is one of claim construction, and we find no forfeiture.
This is because Wash World’s “direct connection” argument
has always been one of claim construction, whether de-
scribed that way or not, and the substantive position it
presses on us is identical to what it argued to the district
court. Before us, Wash World contends that the district
court erred by finding “no requirement in the claim limita-
tions of the ’041 Patent that the spray arm must be directly
mounted to the carriage.” J.A. 43. We must resolve this
issue on the merits. See Google, 92 F.4th at 1056-57 (re-
solving implicit claim construction dispute not recognized
as claim construction by tribunal being reviewed).
Doing so, we agree with the district court that claim 7
is not limited to direct connections between the spray arm
and the carriage and, instead, permits the presence of in-
tervening structures. Nothing in the claim language –
“wherein the vertically oriented spray arm is dependingly
mounted from the carriage so as to extend substantially
vertically into the wash area for controlled travel relative
to a vehicle in the area” – suggests the claim is limited to
direct connections. In general, a structure can be “depend-
ingly mounted” from another structure either by being at-
tached directly to it (for example, a poster taped to a wall)
or by being attached indirectly to it (such as a framed
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WASH WORLD INC. v. BELANGER INC. 17
poster hung on a nail attached to the wall). That the spec-
ification of the ’041 patent only depicts embodiments hav-
ing a direct connection, see, e.g., ’041 patent at Figures 1-3,
does not exclude indirect connections from the scope of the
claims. Apple Inc. v. Wi-LAN Inc., 25 F.4th 960, 967 (Fed.
Cir. 2022) (“Embodiments in the specification – even if
there is only one embodiment – cannot limit the scope of
the claims absent the patentee’s words or expressions of
manifest exclusion or restriction.”).
Thus, the district court was correct to conclude that
claim 7 encompasses both indirect and direct connections
between the spray arm and the carriage. As it is undis-
puted that the accused Razor EDGE includes a LumenArch
that is indirectly “dependingly mounted” to that system’s
carriage, by virtue of its direct connection to a trolley, we
have no basis to reverse the district court’s judgment of in-
fringement.3
3 Wash World faults the district court for relying on
our decision in Texas Digital Systems, Inc. v. Telegenix,
Inc., 308 F.3d 1193, 1202 (Fed. Cir. 2002), whose overruling
we have recognized several times, see, e.g., Philips v. AWH
Corp., 415 F.3d 1303, 1320 (Fed. Cir. 2005) (en banc) (hold-
ing Texas Digital approach “improperly restricts the role of
the specification in claim construction”). While Texas Dig-
ital no longer sets out the proper approach courts should
follow in undertaking claim construction, see, e.g., Trustees
of Columbia Univ. in City of New York v. Symantec Corp.,
811 F.3d 1359, 1363 (Fed. Cir. 2016) (“Phillips makes clear
that . . . . [t]he only meaning that matters in claim con-
struction is the meaning in the context of the patent.”), any
error the district court may have committed by relying on
it is harmless, given our rulings today.
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WASH WORLD INC. v. BELANGER INC. 18
IV
Wash World also challenges the jury’s award of
$9.8 million in lost profits damages. According to Wash
World, the district court abused its discretion by entering
judgment on a damages award that improperly included
$2,577,848 (i.e., approximately $2.6 million) in lost profits
from auxiliary products lacking any functional relationship
to Belanger’s patent claim. We agree.
A
As an initial matter, we must explain our rejection of
Belanger’s contention that Wash World forfeited its re-
quest for remittitur by failing to ask the district court to
remit any part of the damages award. It is true that remit-
titur did not feature prominently in Wash World’s briefing
in support of its motion for judgment as a matter of law or
a new trial. At no point in the district court did Wash
World plainly and expressly request a reduction of a spe-
cific amount ($2,577,848) or set out the number of infring-
ing units (182) or lost-profits-per-unit that it wanted
deducted from the jury’s verdict ($14,164).4
In context, however, we conclude that Wash World pre-
served its remittitur argument. First, Wash World indis-
putably preserved its objection to Belanger obtaining any
lost profits damages for convoyed sales. “A ‘convoyed sale’
refers to the relationship between the sale of a patented
product and a functionally associated non-patented prod-
uct.” Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262,
1268 (Fed. Cir. 2008). Wash World pressed the convoyed
4 It is undisputed that Wash World adequately pre-
sents the remittitur issue to us on appeal. See Oral Arg. at
26:24-28:00 (Counsel for Belanger: “I believe it’s [the re-
mitter issue] in the blue brief”), available at
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=23
-1841_10102024.mp3.
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WASH WORLD INC. v. BELANGER INC. 19
sale issue in its Daubert motion challenging the opinions of
Belanger’s expert, Dr. McDuff, (“[I]t was inappropriate and
contrary to federal law for Dr. McDuff to base his lost prof-
its off of the entire car wash system under a convoyed sales
theory.”); moved during trial for judgment as a matter of
law based on the record lacking sufficient evidence to sat-
isfy the requirements for lost profits based on convoyed
sales, J.A. 7222-25; see also J.A. 6931 (jury instruction on
“collateral products” including: “Belanger may not recover
lost profits on other products that might be sold along with
the patented product for convenience or business ad-
vantage but that are not functionally part of the patented
product.”); and it renewed this argument in its post-trial
motion for judgment as a matter of law, J.A. 7183 (“Bel-
anger’s lost profits award includes lost profit on convoyed
sales for which there is no evidence in the record.”) (inter-
nal capitalization altered). From this repeated objection,
Belanger and the district court were on notice of Wash
World’s position that any lost profits damages for convoyed
sales would not be warranted, and could not be proven.
The district court had an opportunity to consider these is-
sues and sided with Belanger on them. J.A. 36-64, 74,
5291-92.
Second, all the specific data supporting Wash World’s
request for remittitur was included in its opening brief in
support of its renewed motion for judgment as a matter of
law. In a section of that brief with the header “Belanger’s
Lost Profits Award Includes Lost Profit on Convoyed Sales
for Which There is No Evidence in the Record,” Wash
World wrote:
Dr. McDuff improperly opined that if Belanger cap-
tured 20% of the Wash[ W]orld accused products
sales, it would be entitled to lost profits on 182
units at $53,866 per unit for a total of $9.8 million.
The jury appears to have adopted that calculation
in awarding $9.8 million in lost profits. However,
the $9.8 million is based on a $53,866 per unit
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WASH WORLD INC. v. BELANGER INC. 20
profit, which encompasses convoyed sales of items
that were never identified and for which there is no
evidence to support the convoyed sale. As such, Dr.
McDuff’s lost profit analysis overinflated Belanger’s
lost profits by over $14,000 per unit, resulting in a
lost profits award that is almost $2.6 million
greater than can be supported by any evidence in
the record.
J.A. 7222 (emphasis added).
Third, Wash World’s briefing supporting its renewed
post-trial motion for judgment as a matter of law expressly
referred to remittitur as potential relief, J.A. 7228 (asking
district court to remit damages for portion of period for
which jury awarded damages); see also J.A. 7182 (showing
that motion was entitled, in part, “Rule 59 Motion for Re-
duced Damages”) (internal capitalization altered and em-
phasis omitted), and, in another part of its briefing, it also
fully articulated why convoyed sales should not have been
included in the damages awarded, J.A. 7222-25. Although
Wash World did not expressly ask the district court for re-
mittitur of a specific amount based on wrongful inclusion
of convoyed sales, it did broadly argue in its opening brief
supporting the renewed motion that “[b]ecause the dam-
ages calculation includes lost profits for convoyed sales for
which there is no evidence to support an award of lost prof-
its, the Court must overturn the jury’s damages award,”
which, in context, could feasibly be read as encompassing a
request for remittitur. J.A. 7225. In its reply brief in sup-
port of the motion, Wash World was finally explicit, stat-
ing: “The Court must either reduce Belanger’s damages by
$14,164 per unit or order a new trial on damages.”
J.A. 7556. As a general rule, requests for new forms of re-
lief in a reply brief are considered untimely. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
1319 (Fed. Cir. 2006) (“[A]rguments not raised in the open-
ing brief are [forfeited].”) (internal citation omitted). How-
ever, an elaboration on a request that, in context, was
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WASH WORLD INC. v. BELANGER INC. 21
present in the opening brief may be sufficient to preserve
the issue, particularly where, as here, the appellee ad-
dresses the initial request in its responsive briefing. See
McIntosh v. Dep’t of Def., 53 F.4th 630, 641 (Fed. Cir. 2022)
(noting that party may rely on any “ground for reversal”
presented in opening brief); Xianli Zhang v. United States,
640 F.3d 1358, 1371 (Fed. Cir. 2011) (noting that “we retain
case-by-case discretion over whether” to address argu-
ments presented for first time in reply brief) (citation omit-
ted).
While Wash World certainly could have been clearer in
its opening brief that its renewed motion sought, as one
form of potential relief, remittitur of approximately
$2.6 million for convoyed sales, our review of the record
persuades us that the district court and Belanger under-
stood that this was a component of Wash World’s request.
Even if we were to conclude that Wash World had for-
feited its request for remittitur, exceptional circumstances
are present that would lead us to reach the merits nonethe-
less. Those exceptional circumstances are that we can dis-
cern the precise amount of damages the jury awarded
based on convoyed sales, Belanger is judicially estopped
from contending otherwise, and (as explained in the next
section) the requirements for obtaining lost profits for con-
voyed sales are plainly not satisfied in this case.
Belanger’s own arguments to the district court con-
firmed that Belanger understood the precise amount of
damages the jury had attributed to lost profits for convoyed
sales. In opposing Wash World’s renewed motion, Belanger
explained its position:
The jury considered each side’s arguments regard-
ing whether to include Belanger’s sales of unpat-
ented components in the lost profits damages.
WashWorld did not object to Dr. McDuff’s testi-
mony or assert it was insufficient to prove the
amount of lost profit. The jury accepted Dr.
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WASH WORLD INC. v. BELANGER INC. 22
McDuff’s opinion, and there is no reason to review
or reverse that decision or overturn the jury’s dam-
ages award.
J.A. 7455 at 25 (emphasis added); see also J.A. 7030 (Bel-
anger reiterating, in support of its own post-trial motion,
that “the jury accepted his [i.e., Dr. McDuff’s] damages cal-
culation, awarding damages within his stated range”) (em-
phasis added). Dr. McDuff’s opinion was that “Belanger’s
lost profit was $53,866 per unit,” which included $14,164
for unpatented components, on 182 units. J.A. 3390 (ex-
pert report); 6535-36, 6574 (trial testimony). Given that
Belanger prevailed on Wash World’s renewed motion
based, in part, on Belanger’s argument that the court could
identify the amount of damages the jury awarded based on
convoyed sales, it would be inequitable to allow Belanger
to prevail on appeal by telling us, in direct contradiction,
that we cannot determine the amount of damages that
were based on convoyed sales. See generally Biomedical
Pat. Mgmt. Corp. v. Cal., Dept. of Health Servs., 505 F.3d
1328, 1341 (Fed. Cir. 2007) (“The doctrine of judicial estop-
pel provides that ‘where a party assumes a certain position
in a legal proceeding, and succeeds in maintaining that po-
sition, [it] may not thereafter, simply because [its] interests
have changed, assume a contrary position, especially if it
be to the prejudice of the [opposing] party.’”) (quoting New
Hampshire v. Maine, 532 U.S. 742, 749 (2001)); see also Ad-
kins v. VIM Recycling, Inc., 644 F.3d 483, 495 (7th Cir.
2011) (“[A] party who prevails on one ground in a prior pro-
ceeding cannot turn around and deny that ground in a later
proceeding.”). Thus, even if the remittitur issue had been
forfeited in the district court, and it was not, we would ex-
cuse such forfeiture based on exceptional circumstances.
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WASH WORLD INC. v. BELANGER INC. 23
B
Turning to the merits, we agree with Wash World that
there is not sufficient evidence in the record to support
damages for convoyed sales.5
To prove entitlement to lost profits for convoyed sales,
a patentee must prove that the unpatented products and
the patented product together constitute a “functional
unit,” such that they are “analogous to components of a sin-
gle assembly or . . . parts of a complete machine.” Rite-
Hite, 56 F.3d at 1550. Convoyed sales damages are not
available for “items that have essentially no functional re-
lationship to the patented invention and that may have
been sold with an infringing device only as a matter of con-
venience or business advantage.” Id.
Taking the trial record in the light most favorable to
Belanger, no reasonable juror could have found that the
5 The district court incorrectly viewed Wash World’s
motion as presenting an issue of apportionment rather
than as one of convoyed sales. Apportionment, and more
generally the Panduit factors, apply “when a patentee is
seeking lost profits for a device covered by the patent in
suit.” Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1548
(Fed. Cir. 1995); see also Panduit Corp. v. Stahlin Bros. Fi-
bre Works, Inc., 575 F.2d 1152 (6th Cir. 1978). Where, as
here, the issue is incremental damages for portions of prod-
ucts not covered by the patent, the proper inquiry is
whether the unpatented components are convoyed sales.
See, e.g., Am. Seating, 514 F.3d at 1268 (“A patentee may
recover lost profits on unpatented components sold with a
patented item, a convoyed sale, if both the patented and
unpatented products ‘together were considered to be com-
ponents of a single assembly or parts of a complete ma-
chine, or they together constituted a functional unit.’”)
(quoting Rite-Hite, 56 F.3d at 1550).
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WASH WORLD INC. v. BELANGER INC. 24
unpatented components of Belanger’s Razor EDGE system
constitute a functional unit with the patented portions of
the system.
The principal evidence Belanger points to as support-
ing the inclusion of convoyed sales in Belanger’s lost profits
was the testimony of Dr. McDuff, to the effect that his
$53,866 lost profits per unit calculation included “the typi-
cal set of components that are sold with a Belanger sys-
tem.” J.A. 6574; see also J.A. 6576 (Dr. McDuff describing
dryer as “not some add-on, it’s what the customers are buy-
ing as part of the car wash package”). Dr. McDuff also tes-
tified that approximately three quarters of Belanger’s
customers purchased the in-bay automatic (“IBA”) car
wash systems, which practice the patent claims, with an
unpatented dryer already installed. J.A. 6574-75. Bel-
anger’s general manager responsible for the IBA business
line, David Dougherty, similarly testified that the IBAs are
“typically” sold as an “entire system,” including the unpat-
ented dryers. J.A. 6894. That these additional components
were sold as a “package” with the patented car wash sys-
tem does not demonstrate the requisite functional relation-
ship necessary to establish Belanger’s entitlement to the
additional lost profits. To the contrary, selling the products
together as a package is the exact sort of “matter of conven-
ience or business advantage” that does not, in and of itself,
give rise to damages liability. See Rite-Hite, 56 F.3d
at 1550. As Belanger has not directed us to any other evi-
dence of a functional relationship between Belanger’s car
wash and the listed additional components, we conclude
that there is no evidence in the record that could support
awarding damages for convoyed sales.
Belanger contends that, even if we conclude that the
record cannot support inclusion of lost profits damages for
convoyed sales, the jury’s award of $9.8 million must still
be affirmed because the jury could have arrived at that
amount without crediting Dr. McDuff’s convoyed sales evi-
dence. Belanger observes that the verdict was a general
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WASH WORLD INC. v. BELANGER INC. 25
verdict; the jury was not asked to break down the portion
of its award attributable to convoyed sales. In such a situ-
ation, Belanger asserts, Seventh Circuit law requires affir-
mance. See, e.g., Kossman v. Ne. Ill. Reg’l Commuter R.R.
Corp., 211 F.3d 1031, 1037 (7th Cir. 2000) (“[W]hen a jury
only returns a general verdict, we need only find support
in the record for one of the theories presented to the jury in
order to affirm the jury award.”) (internal citation omitted).
We are not persuaded. At trial, Dr. McDuff presented
five possible lost profits damages amounts, ranging from
$9.8 million to $29.3 million, all of which included damages
for convoyed sales. See J.A. 7727. The jury’s verdict is pre-
cisely equal to the $9.8 million bottom figure of
Dr. McDuff’s proposed damages calculations. See J.A. 3390
(calculating $53,866 profit per unit based on base profit
and ancillary profit, i.e., convoyed sales); J.A. 7727 (calcu-
lating $9.8 million based on $53,866 profit per unit). As
Dr. McDuff never presented the jury with any damages fig-
ure that excluded convoyed sales, and the jury verdict is
equal to the bottom number in Dr. McDuff’s proposed
range, it is overwhelmingly likely that the jury adopted all
components of Dr. McDuff’s opinion, and did not coinci-
dentally reach the same figure as he did by some alterna-
tive, independent calculation.
Moreover, as we have already explained, our under-
standing of the jury’s damages calculation is the same as
Belanger’s own understanding, at least in the trial court.
There, Belanger repeatedly told the district court that “the
jury accepted his [i.e., Dr. McDuff’s] damages calculation.”
J.A. 7030 (emphasis added); see also J.A. 7478 n.13 (“Dr.
McDuff testified that if the jury believed that Belanger
would have captured 20% of the infringing sales, then it
should award $9.8 million in lost profit damages and
$260,000 in royalty damages . . . which is what the jury
awarded.”). Belanger is estopped from arguing to us that
the jury did not accept Dr. McDuff’s opinion, including his
convoyed sales opinion, so we need not determine if the jury
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WASH WORLD INC. v. BELANGER INC. 26
could have conceivably arrived at its damages award based
on some other theory.
For these reasons, we vacate and remand the damages
portion of the judgment. On remand, the district court
shall remit the damages award by $2,577,848 and shall en-
ter judgment in the amount of $7,482,152 in favor of Bel-
anger.
V
We have considered the parties’ remaining arguments
and find them unpersuasive. Accordingly, we affirm the
district court’s judgment of infringement, and we vacate
and remand its damages judgment. On remand, the dis-
trict court shall remit the damages award by $2,577,848
and shall enter judgment in the amount of $7,482,152 in
favor of Belanger.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
C OSTS
Each party shall bear its own costs.
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