The '722 patent, however, claims a rifle and, therefore, the court must look to whether the fully assembled rifle meets the limitations of the asserted claims. See, e.g., Sunbeam Prods., Inc. v. HoMedics, Inc., 412 F. App'x 263, 268 (Fed. Cir. 2010) (holding that the patent at issue "claims a utility scale, not an unassembled scale or a method of assembling a scale, so the relevant state for purposes of infringement is the fully assembled scale"). When assembled, the barrel coupling and the end plug of the operating system sit within and/or extend past the cut-away portion of the forward end of the handguard.
In other words, the patentee disclaimed the equivalent, as opposed to merely limiting the literal scope of the claims by "disclaiming" that the claims are more limited than the claim language itself might suggest. See id.; see also Sunbeam Prod., Inc. v. HoMedics, Inc., 412 F. App'x 263, 267 (Fed. Cir. 2010) (by disparaging bearings that "rock and pivot" in the Background of the patent, and distinguishing the invention from such bearings, the patentee disclaimed equivalents that rock and pivot). Smith & Nephew does not contend that the '907 patent disparages devices that secure suture using a pinching mechanism.
Moreover, the Federal Circuit has strictly cautioned against "importing limitations from the specification into the claims," because of the difficult nature of doing so. Voda v. Cordis Corp., 536 F.3d 1311, 1320 (Fed. Cir. 2008) (citing Phillips, 415 F.3d at 1323; Comark Commc'ns, Inc v. Harris Corp., 156 F.3d 1182, 1186-87 (Fed. Cir. 1998). The Federal Circuit has, for instance, found disavowal in the following cases: (1) where the patent stated that "[a]ll data subject to encryption by operation of the present invention is maintained in an encrypted state in the [kernel memory] buffer pool," this constituted a disavowal that the patent covered data maintained in an unencrypted state, Data Encryption Corp. v. Microsoft Corp., 248 Fed. App'x 166, 169 (Fed. Cir. 2007); and (2) where the patent expressly criticized prior art and touted its own novelty, this constituted a disavowal of the prior art, see, e.g., Sunbeam Prods., Inc. v. HoMedics, Inc., 412 Fed. App'x 263, 268 (Fed. Cir. 2010), L.B. Plastics, Inc. v. Amerimax Home Prods., Inc., 499 F.3d 1303, 1309-10 (Fed. Cir. 2007), Schwing GmbH v. Putzmeister Aktiengesellschaft, 305 F.3d 1318, 1329 (Fed.Cir.2002). The language here is much more ambiguous.
Moreover, the doctrine of equivalents may not be used to recapture a disavowed claim. Sunbeam Prods. Inc. v. Homedics, Inc., 412 Fed.Appx. 263, 268 (Fed.Cir.2010); see also Phillips, 415 F.3d at 1316 (a specification may reveal an intentional disclaimer); J & M Corp. v. Harley–Davidson, Inc., 269 F.3d 1360, 1366 (Fed.Cir.2001) (the scope of equivalents may be limited by disclaimers in the specification). “When a patent thus describes the features of the ‘present invention’ as a whole, this description limits the scope of the invention.”
(D.I. 115 at 2) ("Mr. Thomas's reasonable royalty opinions based on either a hypothetical negotiation date of July 1999 or January 2002 are, as a matter of law, improper.") These circumstances, combined with a review of well-established Federal Circuit case law, should have put Cordis on notice that the court might reach the opposite conclusion with respect to its proffered date of hypothetical negotiation. See Sunbeam Prods., Inc. v. HoMedics, Inc., 2010 WL 5230892, at *6 (Fed. Cir. Dec. 15, 2010) (finding that granting summary judgment in favor of defendant should have come as no surprise to plaintiff, who had notice that the court was considering adjudicating the dispute without trial because plaintiff itself sought summary judgment of infringement); see also Telecris Biotherapuetics, 510 F. Supp. 2d at 362. Even if Cordis were not sufficiently notified that the court might grant summary judgment in favor of BSC based on Cordis' motion for summary judgment and BSC's response thereto, the exception to the notice requirement applies in this case.