WIRELESS AGENTS LLC, Plaintiff-Appellant, v. SONY ERICSSON MOBILE COMMUNICATIONS AB and Sony Ericsson Mobile Communications (USA), Inc., Defendants-Appellees, 189 F. App'x 965

DYK, Circuit Judge. In this patent infringement case, Wireless Agents LLC (‘Wireless”) appeals from the district court’s denial of a preliminary injunction to prevent Sony Ericsson Mobile Communications (USA) Inc. (“Sony”) from selling the accused products. We affirm. BACKGROUND Wireless is the assignee of U.S.

Patent No. 6,665,173 B2 (filed Dec. 20, 2000) (“the ’173 patent”), entitled “Physical Configuration of a Hand-Held Electronic Communication Device.” Claim 1, the sole independent claim of the ’173 patent, recites: A hand-held, electronic computing device having a physical configuration comprising: a body portion; a display portion pivotally coupled to the body portion; a constantly visible display carried by the display portion; an alphanumeric keyboard carried by the body portion; wherein the alphanumeric keyboard is at least partially concealed by the display portion when not in use; and wherein the display portion pivots relative to the body portion in a plane that is generally parallel with the alphanumeric keyboard. ’173 patent, col. 13, 11. 30-41 (emphasis added).

On February 10, 2005, Wireless sued Sony alleging that Sony’s S700i and S710a mobile phones literally infringed claim 1 and several dependent claims. The accused phones have twelve keys — ten keys representing the numbers 0-9 as well as “ * ” and “# ” keys. Each letter of the alphabet is assigned to one of the keys representing the numbers 2 to 9. Thus, approximately 3-4 alphabetic characters are associated with each number key. To select the alphabetic characters, the user switches to text-entry mode and presses a numeric key repeatedly until the desired alphabetic character is selected.

The accused phones are also equipped with predictive text software which uses a built-in dictionary to predict common words’ being entered by the user after a certain sequence of key presses. On April 28, 2005, Wireless filed a motion for a preliminary injunction seeking to enjoin Sony from selling the accused products in the United States. The district court (Judge Sidney A.

Fitzwater) denied Wireless’s motion, finding that Wireless had not demonstrated a likelihood of success on the merits of its infringement claim under the district court’s construction of the term “alphanumeric keyboard.” Wireless Agents, LLC v. Sony Ericsson Mobile Commc’ns AB, 390 F.Supp.2d 532, 540 (N.D.Tex.2005). The district court construed “alphanumeric keyboard” to mean an “input device having a QWERTY, FITALY, or Dvorak layout or any other alphanumeric layout that includes a substantially full set of alphabetic and numeric keys.” Id. at 538-39 (internal quotation marks omitted).

The “QWERTY” layout is the standard keyboard arrangement which includes a key for each letter of the alphabet, and the “FITALY” and “Dvorak” layouts are other arrangements which also include a full set of keys. The district court concluded that “[t]he Sony devices do not have an ‘alphanumeric keyboard,’ as the term is properly construed.” Id. at 539. Wireless timely appealed. We have jurisdiction pursuant to 28 U.S.C. §§ 1292(a)(1) and 1292(c)(1).

DISCUSSION This appeal turns entirely on the correct construction of the term “alphanumeric keyboard.” We construe the term “alphanumeric keyboard” without deference to the district court’s claim construction. Free Motion Fitness, Inc. v. Cybex Intl, Inc., 423 F.3d 1343, 1347 (Fed.Cir.2005). The scope of the term “alphanumeric keyboard” is not readily apparent from the face of the claim, and there is no common dictionary definition of this term.

However, the term “alphanumeric keyboard” “must be read in view of the specification, of which [it is] a part.” Phillips, 415 F.3d at 1315 (internal quotation marks and citation omitted). The specification is “the single best guide to the meaning of a disputed term.” Id. (internal quotation marks omitted). Here, it is clear to us, as it was to the district court, that an “alphanumeric keyboard’ is an input device having a QWERTY, FITALY, or Dvorak layout or any other alphanumeric layout that includes a substantially full set of alphabetic and numeric keys, and that it does not include a twelve-digit keypad.

First, the description of the invention in the “Summary of the Invention”

section of the specification states: The keyboard may be a keyboard with a layout such as the common “QWERTY” layout, but need not be limited to this particular layout. Other layouts may include the “FITALY” layout, the “Dvorak” layout or any other alphanumeric layout that includes a substantially full set of alphanumeric keys. ’173 patent, col. 5, 11. 6-11 (emphasis added).

The description clearly depicts the claimed invention as having “the common ‘QWERTY’ layout” or “any other alphanumeric layout that includes a substantially full set of alphanumeric keys.” This description is not merely referring to a preferred embodiment; rather, as part of the “Summary of the Invention,” it is “commensurate with the invention as claimed.” 37 C.F.R. § 1.73 (2004). Therefore, to allow Wireless to claim a keyboard with less than a substantially full set of keys would injure the public’s right “to take the patentee at [his] word.” Honeywell Int’l, Inc. v. ITT Indus.

Inc., 452 F.3d 1312, 1318 (Fed.Cir.2006). Wireless argues that the specification cannot be used to define the term “alphanumeric keyboard” because at the end of the specification the ’173 patent contains the following boilerplate language: Although the invention has been described with reference to a particular embodiment, this description is not meant to be construed in a limiting sense. Various modifications of the disclosed embodiments as well as alternative embodiments of the invention will become apparent to persons skilled in the art....

It is therefore contemplated that the appended claims will cover any such modifications or embodiments that fall within the scope of the invention. ’173 patent, col. 13, II. 20-28. We see nothing in this language that contradicts our reading of the specification. Second, the specification explicitly references the disadvantages of keypads that have only twelve digits, such as the accused device.

For example, in describing the disadvantage of the mobile phone twelve-digit keypad, the specification states: The mobile phone configuration has the following disadvantages ... the keypad is typically a twelve-digit keypad designed for numeric data entry, although the keyboard usually supports alphanumeric character entry ... whereby the commonly used method of accessing alphanumeric characters is to switch the device into a text entry mode, then press a key repeatedly to access a particular one of a subset of characters available for each key, this method being extremely slow, awkward, error prone, and not appropriate for a device intended to transfer textual data on a regular basis ’173 patent, col. 2,11. 39-58 (emphasis added).

Further, the specification distinguishes the “alphanumeric keyboard” from the keypads on most mobile phones by stating “[t]he alphanumeric keyboard is easier and faster to use and learn than the keypads and touch screens on most mobile phones and personal digital assistants.” ’173 patent, col. 5,11. 4-6.

We have previously recognized that “[w]here the specification makes clear that the invention does not include a particular feature, that feature is deemed to be outside the reach of the claims of the patent, even though the language of the claims, read without reference to the specification, might be considered broad enough to encompass the feature in question.” SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc. 242 F.3d 1337, 1341 (Fed.Cir. 2001).

In Honeywell Int’l, Inc., 452 F.3d 1312, a case involving similar circumstances, we found that the claim term “electrically conductive fibers” excluded carbon fibers because the specification’s “repeated derogatory statements concerning one type of material [ (carbon fibers) ] [was] the equivalent of disavowal of that subject matter from the scope of the patent’s claims.” Id., 452 F.3d at 1320. Here too, the specification’s repeated derogatory statements about the twelve-digit keypad convince us that the “alphanumeric keyboard” does not include a twelve-digit keypad.

Wireless also urges that we look to extrinsic evidence, including a statement by its expert witness that “an ‘alphanumeric keyboard’ is a regular arrangement of keys." J.A. at 407 (emphasis added). Wireless’s expert concluded that the accused device “includes a regular arrangement of keys, i.e., a keyboard, which allows users to generate all the letters of the alphabet and the numbers 0 through 9.” J.A. at 415. We find that the expert’s statement is conclusory and is unsupported by reference to any contemporaneous document and therefore of no value in our claim construction analysis. Phillips, 415 F.3d at 1318.

Wireless also points to the fact that the Patent and Trademark Office allowed certain claims of Wireless’s related patent application (“the ’802 application”) to cover a twelve-digit keyboard. The allowed claims of the ’802 application do not include an “alphanumeric keyboard.” That allowance has no bearing on the construction of the term “alphanumeric keyboard.” Wireless also cites to various patent applications filed by Sony, arguing that Sony’s patents describe a twelve-digit keypad as an alphanumeric keyboard.

None of the references cited by Wireless contains a definition of alphanumeric keyboard that is contrary to the district court’s claim construction here. In any event, the specification here is clear and the expert testimony and other extrinsic evidence cannot be used to contradict it. For the foregoing reasons, we conclude that the district court’s claim construction was correct. The undisputed evidence established that the accused device utilized twelve keys rather than a substantially full set of alphanumeric keys. The preliminary injunction was therefore properly denied. We affirm. No costs. .

Wireless included Sony Ericsson Mobile Communications AB (a Swedish company) in its infringement suit but not in its preliminary injunction motion. . See Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed.Cir.2005) (en banc) (noting that where the meaning of a claim term is readily apparent, claim construction involves "little more than the application of the widely accepted meaning of commonly understood words” and, in such cases, "general purpose dictionaries may be helpful”). . This is not a case like Gemstar-TV Guide International v.

International Trade Commission, 383 F.3d 1352 (Fed.Cir.2004), where the references to problems with the prior art appear only in the description of the preferred embodiment. Id. at 1365.