NEVILLE TDP v. ALDRIDGE CONSTRUCTION INC LLC (2020)

Plaintiff-appellants Steve Neville, Substructure Support, Inc., and TDP Support, Inc. (collectively, “Substructure”) appeal the district court's ruling on summary judgment that certain accused products of Aldridge Construction, Inc. et al. (“Aldridge”) do not infringe claims 1–4, 6–11, 14–19, 22–27, 29, and 32–33 of U.S. Patent No. 7,914,236 and claims 1–16, 19–22, 25–28, 31–32, 34–37, and 39 of U.S. Patent No. 9,284,708. This appeal involves the same asserted patents and disputed claim terms as its companion appeal in Neville v. Foundation Constructors, Inc., No. 20-1132, 972 F.3d 1350 (Fed. Cir. August 27, 2020), in which we affirm the district court's noninfringement ruling of summary judgment based on its construction of an “end plate having a substantially flat surface” and a “protrusion extending outwardly from the end plate.” We likewise affirm here.

Discussion

“For much the same reasons provided in the [district court's] summary judgment order in the Foundation case,” the district court here granted summary judgment of noninfringement against accused foundation piles having “M-pile” tips.¹ J.A. 12; see also Neville v. Foundation Constructors, Inc., No. EDCV 17-02507 AG (AGRx), 2019 WL 6894522, at *6–7 (C.D. Cal. Aug. 19, 2019). Substructure appeals the district court's ruling that certain accused foundation piles with “M-pile” tips do not infringe the asserted claims because the M-pile tip lacks an “end plate having a substantially flat surface” and a “protrusion extending outwardly from the end plate.” J.A. 12–14.

For the reasons set forth in our Foundation opinion, the district correctly construed an “end plate having a substantially flat surface” as referring to an exterior-facing surface, id. at 12, and a “protrusion extending outwardly from the end plate” as not encompassing a “single, conically-shaped piece” for which “there is not a demarcation of where an ‘end plate’ should end and the ‘protrusion’ should begin.’ ” Id. at 13; Foundation, No. 20-1132, 972 F.3d 1350, 1354–57 (Fed. Cir. August 27, 2020).

Substructure maintains that its expert's testimony alleging that portions of the M-pile tip matched the claimed “end plate” and “protrusion” elements was sufficient to raise a genuine issue of material fact. We disagree. Substructure's expert, Dr. Decker, provided the following annotated photographs illustrating what he contended was the claimed “end plate” and “protrusion”:

J.A. 718, 734. As apparent from Dr. Decker's annotated photographs, the alleged “end plate” does not have any exterior-facing surface that is “substantially flat.” To the extent that Substructure argues that the annotated “end plate” contains a flat surface facing the interior of the pile tip, that infringement theory is incompatible with the district court's construction. Nor does Dr. Decker's labeling of a region of the pile tip as a “protrusion” create a material dispute where, as the district court correctly noted, the “single, conically-shaped piece” cannot be differentiated into an end plate and a protrusion from that end plate. J.A. 13. Thus, we agree with the district court that “Plaintiffs cannot satisfy their burden of showing that the cast M-Pile tips have an ‘end plate’ with a ‘substantially flat surface’ or an ‘end plate’ with a ‘protrusion.’ ” Id.

Conclusion

We have considered Substructure's remaining arguments and find them unpersuasive. For the reasons stated above, we affirm the district court's claim constructions and ruling at summary judgment of noninfringement as to the accused products containing the M-pile pile tip.

AFFIRMED

FOOTNOTES

1.   The M-pile tips are manufactured by casting or welding; we refer only to the products manufactured by casting, as the welded versions are not at issue on appeal.

Chen, Circuit Judge.