According to Akeva, the specifications of the '300 and '471 patent describe a “flexible member” improvement that can be incorporated in rear soles that are detachable, or rotatable, or permanently secured. The district court construed these patents as covering shoes with rotatable or detachable rear soles only. See Akeva L.L.C. v. adidas Am., Inc., 1:03-CV-01207 (M.D.N.C. May 17, 2005) (Claim Construction Decision); Akeva L.L.C. v. adidas Am., Inc., 385 F. Supp. 2d 559 (M.D.N.C. 2005) (Reconsideration Decision)3. Because adidas shoes have permanently-fixed rear soles that do not rotate, Akeva accepted entry of summary judgment of non-infringement and appealed the district court's claim construction to this court. Akeva L.L.C. v. adidas Am., Inc., 1:03-CV-01207 (M.D.N.C. Oct. 28, 2005) (Final Judgment).

Akeva argues that the ordinary meaning of the claim should be given to the term and that the ordinary meaning would encompass permanent, removable, and rotatable soles to athletic shoes. adidas argues that the specifications of the '300 and '471 patents disavow rear soles that are not detachable or rotatable.

This court construes claims in accordance with the principles set forth in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). Claim language governs claim interpretation. Id. at 1312. Claim terms, however, are construed in light of the specification. Id. at 1315. The ordinary meaning of a term may be narrowed when interpreted in light of the specification. Id. at 1316.

Akeva argued for '471 that the boilerplate catch-all last paragraph of "cover all possible embodiments," earned them a dictionary reading of the disputed claim term. The one-size-fits-all closer is consistently the most worthless verbiage found in a patent, as courts grant it no credence. The problem for Akeva was that detachable heels were, as the CAFC put it, "the scoop of the invention." Almost ironically, then, the claim term "secured" necessarily means, for these patents, "detachably secured."

While Akeva argues that the invention of the '471 patent is the flexible membrane, the language of the '471 specification specifically states that the invention of the '471 patent is an athletic shoe with a detachable heel: “However, in a radical departure from conventional shoes, the shoe of the present invention incorporates a heel structure, including a detachable rear sole, that significantly alleviates heel wear problems associated with conventional soles and provides enhanced cushioning and/or spring.”. Id. at col. 4 ll.56-61 (emphasis added).

Akeva argues that the catch-all phrase at the end of the '471 patent specification, which states “[t]hus, it is intended that the present invention cover all possible combinations of the features shown in the different embodiments, as well as modifications and variations of this invention, provided they come within the scope of the claims and their equivalents,” precludes a claim construction which comprises only detachable heels. Col. 13 ll.1-5. No embodiments, however, of the '471 patent include permanently attached heels. Of course, the absence of an embodiment does not necessarily exclude that embodiment from the scoop of the invention. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004). But here, the specification when read as a whole clearly demonstrates that the scoop of the invention is athletic shoes with detachable heels which may include an optional flexible plate. See '471 patent, col. 4 ll.62-col. 5 ll.4 (“An embodiment of the heel structure . . . includes . . . a rear sole detachable secured to the rear sole support . . . . In addition, the heel structure may include a flexible plate for providing spring to the heel of the user and reducing wear caused by midsole compression.”). Akeva cites Golight, Inc. v. Wal-Mart Stores, Inc., 355 F.3d 1327, 1331 (Fed. Cir. 2004), in which the court found no disclaimer where the specification states the invention “includes” some feature where it is only one of several features described as significant or important. However, this case is distinguishable because the detachable sole of the '471 patent is not one of several features, it is the primary feature of the invention.

Indeed, when the '471 patent uses the term “secured,” it uses it to describe a rear sole which is “detachably secured.” Col. 3 ll.14-17. Finding that the term “secured” applies only to shoes with detachable heels does not take the term outside its ordinary meaning. Rather, the term is interpreted as it is used in accordance with the specification; “secured” does allow for removablity. As this court has stated in Phillips, “[t]he construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction.” 415 F.3d at 1316. In other words, an inventor cannot get more than he or she invents.

The '300 patent suffered the same fate as the '471.

In SciMed Life Systems Inc. v. Advanced Cardiovascular Systems Inc., 242 F.3d 1337, 1341 (Fed. Cir. 2001), this court stated “[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.”

[T]he “permanently attached” language, when read in the context of the specification, supports a finding that the '300 patent specification disclaims permanently attached rear soles that do not at least rotate.

Akeva had conceded that, as construed, there was no infringement.