Before Michel, Circuit Judge, Skelton, Senior Circuit Judge, and Lourie, Circuit Judge.
The opinion of the court was delivered by: Michel, Circuit Judge.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Nathaniel H. Kolmes and Harold F. Plemmons (together, "Kolmes") appeal the August 12, 1997 denial of their motion to hold World Elastic Corporation, World Fibers Corporation, Dean R. Andrews and Gregory V. Andrews (together, "World") in contempt for violation of a permanent injunction of the United States District Court for the Middle District of North Carolina. The district court did not abuse its discretion or otherwise err because the yarns being made and sold by World had not been shown to infringe Kolmes's United States Patent No. 5,177,948 (the "patent"). This appeal was submitted for our decision following oral argument on April 1, 1998. We hold there was no infringement, and we therefore affirm, for without infringement there can be no contempt of an injunction to cease infringing.
This appeal arises from the district court's denial of Kolmes's motion to hold World in contempt of that court's injunction against further infringement of Kolmes's patent on the finding that World was not infringing that patent. *fn1 "Infringement is the sine qua non of violation of an injunction against infringements." KSM Fastening Sys., Inc. v. H.A. Jones Co., 776 F.2d 1522, 1528, 227 USPQ 676, 680 (Fed. Cir. 1985). While a contempt proceeding decides a violation vel non of an injunction and not patent infringement, actions which do not infringe cannot violate an injunction against infringement. See id. Therefore, the Disposition of this appeal turns on this court's review of the district court's finding of non-infringement. As the material facts surrounding the composition of World's yarns are not in dispute, the finding of non-infringement turns on the proper construction of the patent claims. Claim construction is a question of law reviewed de novo by this court. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 34 USPQ2d 1321 (Fed. Cir. 1995), aff'd., 116 S. Ct. 1384, 38 USPQ2d 1461 (1996).
The claim construction dispute centers around the classification of wrapped strands as either part of the "core" or part of the "cover" within the meaning of the claims of the patent. Both independent claims require, inter alia, that the core of the yarn contain at least two strands, one of which must be fiberglass. *fn2 Each of World's accused yarns in dispute contains a single strand of fiberglass wrapped first by a strand of Spectra(TM), an extended chain polyethylene, at a rate of just greater than four turns per inch and then by two additional strands, the type of which varies among the different World yarns, at a rate of close to eight turns per inch. Whether these yarns infringe the patent depends upon whether the strand of Spectra(TM) wrapped around the fiberglass strand is part of the core or part of the cover within the meaning of the patent claims. If the Spectra(TM) strand is part of the cover, then World's yarns do not meet the limitations of the claims because they contain only one strand in their core.
Therefore, the inquiry before this court is whether a strand wrapped around a central fiberglass strand is a member of the core of the yarn or a member of the cover of the yarn within the meaning of the patent claims. In determining the proper construction of the claims, a court may consult both intrinsic and, where necessary, extrinsic evidence. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582, 39 USPQ2d 1573, 1576 (Fed. Cir. 1996). The court should first look to the intrinsic evidence of the record, including the claims, the specification and, if in the record, the prosecution history. See id.
In examining the intrinsic evidence, the court looks to the language of the claims, both asserted and nonasserted. See id. Because a patentee can be his own lexicographer and give words in the claim meanings other than their ordinary and customary meaning, the specification must always be examined to determine if the patentee has defined any term in a manner inconsistent with its ordinary meaning. See id.
In the present appeal, the language of the claims provides only limited guidance in distinguishing which strands are part of the core and which strands are part of the cover of any particular yarn. Both independent claims limit the scope of the claimed invention, inter alia, by defining what strands must be included in the core and in the cover. Claim 1 specifies that the core must include a strand of fiberglass and a second strand that is "substantially parallel" to the fiberglass strand. Claim 11, the only other independent claim, specifies that the core must include a strand of fiberglass and a strand formed of an extended chain polyethylene. However, the claims alone do not provide conclusive guidance on how to determine whether a strand is part of the core or part of the cover. Both independent claims describe the cover as being wrapped on the core, but, while this favors a Conclusion that a strand that is wrapped around a core strand is part of the cover, it does not explicitly define all strands so wrapped as part of the cover.
The specification provides more helpful guidance in determining whether a strand wrapped around a central fiberglass strand is part of the core or part of the cover. While the specification does not provide an explicit method for identifying a core strand, the specification does provide enough information about the scope of the invention that a person of ordinary skill in the art would conclude that a strand of Spectra(TM) wrapped around a central fiberglass strand is part of the cover for the purposes of the claims.
The specification states on lines 36-40 of column 5 that "[t]he yarn, according to the principles of the present invention, may be formed on a standard hollow spindle covering machine with the coverings or wrappings being at a rate of 4-12 turns per inch, with 8 turns per inch being preferred." While this statement does not, as World argues, explicitly define any strand wrapped between 4-12 turns per inch as part of the cover, it does favor the Conclusion that a strand wrapped at such a rate is part of the cover. Further, the interchangeable use of the words "coverings" and "wrappings" further supports the Conclusion that a strand so wrapped is considered part of the cover for the purposes of the patent.
Examination of the figures and the descriptions of those figures would also lead one skilled in the art to conclude that World's innermost wrapped Spectra(TM) strand is part of the yarn's cover. Figures 1 through 5 depict yarns composed of varying numbers of strands in their respective cores and covers. Without exception, every strand depicted to be and described as "wrapped" plainly constitutes part of the cover of that particular yarn. Figures 3 and 5 are particularly illuminating. Figure 3 shows a yarn composed of two parallel strands around which three strands are wrapped. The written description of figure 3 defines the two parallel strands as the core and three wrapped strands as the cover. As the three strand cover of the yarn in figure 3 is identical to the three wrapping strands in each of World's yarns in terms of the number of wrapping strands, their respective wrapping directions and their type, the description of the innermost wrapping strand in figure 3 is highly probative of the question of the proper claim construction. The relevant strand, the innermost of the three wrapping strands in figure 3, is described as being part of the cover.
Figure 5 depicts a single strand of fiberglass wrapped by two other strands. The description of the figure defines the single strand of fiberglass as the core and the two wrapping strands as the cover. *fn3 This figure and its description are notable for two reasons. First, the figure demonstrates that, for the purposes of defining the word "core" as it is used by the patentee, a single strand of fiberglass can alone comprise the core. Second, the figure and its description show that a strand wrapped around a single fiberglass strand is part of the cover. Taken together, the figures strongly suggest that an ...