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A. Noninfringement
The district court’s determination of infringement is a question of fact that we review for clear error. Abraxis Bioscience, Inc. v. Mayne Pharm. (USA) Inc., 467 F.3d 1370, 1375 (Fed. Cir. 2006). “Under the clear error standard, the court's findings will not be overturned in the absence of a definite and firm conviction that a mistake has been made.” Impax Labs., Inc. v. Aventis Pharm. Inc., 468 F.3d 1366, 1375 (Fed. Cir. 2006) (quotation omitted).

On appeal, Leapfrog does not challenge the district court’s construction of the phrase “selection of a depicted letter,” but argues that the court clearly erred in applying that construction to the facts of the case. More specifically, Leapfrog argues that the PowerTouch does allow “choosing a particular depicted letter” because in at least some cases each letter of a word corresponds to a separate crosspoint. Thus, the fact that the response of the device is the same, no matter which letter the user touches, is irrelevant because the user may still choose particular letters.

Fisher-Price also does not challenge the district court’s claim construction, and Fisher-Price responds that the district court correctly determined that selection by choosing a particular letter is only meaningful if making one letter choice results in an outcome different from making a different letter choice. Fisher-Price argues that the district court correctly found that only the word can be selected if the choice of letter, within a particular word, is irrelevant to the response of the device.

We find no clear error in the district court’s application of the claim to the essentially undisputed facts of this case. The court’s conclusion that the Fisher-Price PowerTouch only allows selection of a word rather than “a depicted letter” comports with its construction of “selection” to mean “choosing.” The ordinary meaning of choice requires that the alternatives from which the choice is made will result in different possible outcomes. With the PowerTouch device, the same outcome results no matter which letter in the word the user touches. This understanding is also consistent with the way that selection of a depicted letter is described in the patent.

Every time the child depresses a letter key, the book will recite the phoneme of the letter associated with that letter, in the context that the letter is used in the word or phrase depicted on the card, here “ball.” Thus, for the example where the subject is “ball” as shown if the child depresses the correct letter key of “b” the processor will sound the phoneme “b” as “b” is pronounced in “ball.”

’861 patent, col.6 ll.17-23. Most importantly, this understanding of selection is also most consistent with the language of claim 25 itself. The PowerTouch device does not generate a signal corresponding to a sound associated with the selected letter, as the claim requires. A signal corresponding to a word is not the same as a signal corresponding to a letter. If the claim were meant to encompass a device that always enunciates all the letters of a word no matter which letter was selected, the claim language requiring that “the sound be[] determined by a position of the letter in the sequence of letters” would be superfluous because no such determination would be necessary.

Leapfrog comes well short of supporting a definite and firm conviction that a mistake has been made, and we therefore affirm the district court’s entry of judgment of noninfringement in favor of Fisher-Price.  Next Page ->

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