Ross-Hime Designs, Inc. v. United States

In the United States Court of Federal Claims

No. 11-201C

Filed: November 2, 2020

Refiled: November 17, 2020

ROSS-HIME DESIGNS, INC., Keywords: Patent; Non-

Infringement; RCFC 56; Mas-

Plaintiff, Hamilton Grp. v. LaGard, Inc.,

156 F.3d 1206 (Fed. Cir.

v.

1998); Celotex Corp. v.

THE UNITED STATES, Catrett, 477 U.S. 317 (1986);

Doctrine of Equivalents;

Defendant. Anticipation; 35 U.S.C. § 112.

Vytas M. Rimas, Rimas Law Firm, PLLC, Minnetonka, MN, for Plaintiff.

Conrad J. DeWitte, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, Washington, DC, with whom were Joshua Miller, Of Counsel, Gary L.

Hausken, Director, Commercial Litigation Branch, U.S. Department of Justice, Joseph H. Hunt,

Assistant Attorney General, and Kurt Hammerle, Of Counsel, Office of the Chief Counsel,

NASA Johnson Space Center, for Defendant.

MEMORANDUM OPINION AND ORDER

GRANTING SUMMARY JUDGMENT

TAPP, Judge. 1

Before the Court in this patent infringement case is the United States’ Motion for

Summary Judgment. (Def.’s Mot. for Summ. J., ECF No. 309 (“Def.’s Mot.”)). In this action,

Plaintiff, Ross-Hime Designs, Inc. (“Ross-Hime”), alleges that the National Aeronautics and

Space Administration (“NASA”) infringed on two of Ross-Hime’s patents for robotic, hand-like

manipulators—U.S. Patent Nos. 5,967,580 (the ’580 Patent) and 6,658,962 (the ’962 Patent)

(collectively, the “patents-in-suit”) 2—through NASA’s use and manufacture of two

anthropomorphic robotics systems, designated Robonaut 1 and Robonaut 2. 3 (See generally,

1

This case was originally assigned to then-Chief Judge Emily Hewitt, reassigned to Judge Mary

Ellen Coster Williams in 2013, (see ECF No. 79), and reassigned to Judge David A. Tapp on

December 3, 2019 (ECF No. 304).

2

A copy of the ’580 Patent is found in Exhibit 1 of the Complaint. A copy of the ’962 Patent is

found in Exhibit 2 of the Complaint.

3

NASA created two iterations of Robonaut 1, designated Robonaut 1A and Robonaut 1B. On

September 19, 2018, the Court dismissed the claims relating to Robonaut 1B as time-barred. (See

ECF No. 287). For clarity, the Court will refer to Robonaut 1A as simply “Robonaut 1.”

Compl., ECF No. 1). Ross-Hime asserts that Robonaut 1 infringes on Claim 5 of the ’580 Patent,

that Robonaut 2 infringes on Claims 1, 5, 14, and 15 of the ’580 Patent, and that Robonaut 2

infringes on Claims 11 and 14 of the ’962 Patent. (Def.’s Mot., Ex. C (Ross-Hime’s March 14,

2017 Infringement Claim Chart), Ex. D (email from Pl.’s counsel to Def.’s counsel regarding

Ross-Hime’s March 14, 2017 Amended Infringement Claim Chart)).

On April 29, 2016, the Court issued a decision, pursuant to Markman v. Westview

Instruments, Inc., 517 U.S. 370, 372–74 (1996), construing the disputed terms in the patents-in-

suit. See Ross-Hime Designs, Inc. v. United States, 126 Fed. Cl. 299 (Apr. 29, 2019) (ECF No.

205). Particularly relevant to the present motion, the Court determined that the term “linear

actuator,” which is used in all the asserted claims, would be understood by a person of ordinary

skill in the art to mean “a device, with ends defined by a base piece and an extending piece, that

converts some kind of power into linear motion such that the extending piece moves in a straight

line relative to the base piece.” 4 Id. at 321. The Court was explicit that the term does not include

“‘specialized’ or ‘converted end’ linear actuators because these ‘specialized’ features are also

separate structures, such as . . . flexible tape.” Id. Based on this construction, the United States

asserts Ross-Hime cannot prove that either Robonaut 1 or Robonaut 2 meets every limitation of

the asserted claims. In addition, the United States argues that Claim 11 of the ’926 Patent is

anticipated by U.S. Patent No. 4,367,891 (Wauer). For the reasons set forth below, the Court

agrees that Ross-Hime cannot prove that NASA infringed on the ’580 or ’962 Patents and,

therefore, GRANTS summary judgment in favor of the United States.

I. Background

Ross-Hime is a Minnesota corporation specializing in the design of humanoid robotic

systems, including robotic manipulators, and is the assignee of the patents-in-suit. (Compl. at 1–

2, ECF No. 1). The inventions disclosed in the patents-in-suit relate to anthropomorphic robotic

manipulators, which mimic movements being performed by a human operator. Ross-Hime

Designs, 126 Fed. Cl. at 301.

A. The ’580 Patent

The invention disclosed in the ’580 Patent “relates to controlled motion mechanical

members used as a mechanical manipulator and, more particularly, to a motion controllable,

anthropomorphic mechanical manipulator providing some of the capabilities of an upper human

torso.” ’580 Patent 1:8–12. Ross-Hime asserts that NASA infringed on independent Claims 1

and 5 of the ’580 Patent, and dependent Claims 14 and 15, both of which depend from Claim 1.

(Compl. at 2–3, Ex. 1; Def.’s Mot., Exs. C, D, F, G). Specifically, Ross-Hime asserts that

Robonaut 1 infringes on Claim 5 of the ’580 Patent, and that Robonaut 2 infringes on Claims 1,

5, 14, and 15 of the ’580 Patent. (See Def.’s Mot., Exs. C, D, F, G).

The asserted claims of the ’580 Patent aim to robotically simulate a gripping mechanism,

and describe various actuators using differential movement to achieve the dexterous motion of a

4

The Court determined that a person of ordinary skill in the art is “someone with a Bachelor’s

degree, or equivalent, in mechanical engineering with a minimum of two years of experience

following graduation, including work with mechanisms.” Ross-Hime Designs, 126 Fed. Cl. at

314.

2

thumb and forefinger and grasping motion of a human palm. Claim 1 of the ’580 Patent is

illustrative and teaches:

1. An articulated manipulating system for mounting on a base in a robotic

manipulator and capable of engaging selected objects, said system

comprising:

a support frame having a base support for mounting on said base with said

base support having a first frame extension so as to extend therefrom in a first

direction and a second frame extension rotatable connected to said base

support and extending therefrom in a second direction at an angle to said first

direction;

a first effector base rotatably connected to said first frame extension so as to

be rotatable with respect thereto in plural different directions;

a second effector base rotatable connected to said second frame extension so

as to be rotatable with respect thereto in plural different directions;

first pair of base linear actuators each having an end thereof rotatably

connected to said first frame extension at corresponding extension connection

locations thereon, and each having that opposite end thereof rotatably

connected to said first effector base at corresponding effector connection

locations thereon so that any substantial differentials in movement of these

actuators cause corresponding substantial motions of said first effector base

towards a corresponding one of said extension connection locations and so

that substantial common movements of these actuators causes substantial

motions of said first said effector toward or away from both of said extension

connection locations; and

a second pair of base linear actuators each having an end thereof rotatable

connected to said second frame extension at corresponding extension

connection locations thereon, and each having that opposite end thereof

rotatably connected to said second effector base at corresponding effector

connections locations thereon.

’580 Patent 27:42-28:9.

Claim 14 depends from Claim 1 and states:

14. The apparatus of claim 1 wherein said first pair of base linear actuators

are rotatably connected to said first effector base as aforesaid so as to be also

on a further common side thereof.

’580 Patent 30:31–30:34.

Claim 15 of the ’580 Patent depends from Claim 14 and, in turn, Claim 1, and provides:

15. The apparatus of claim 14 wherein said first pair of base linear actuators

are rotatably connected to said first frame extension as aforesaid on either

side of where said first effector base is rotatably connected thereto.

3

’580 Patent 30:35–30:38.

Claim 5 of the ’580 Patent is similar to Claim 1 and teaches:

5. An articulated manipulating system for mounting on a base in a robotic

manipulator and capable of engaging selected objects, said system

comprising:

a support frame having a base support with a first frame extension so as to

extend therefrom in a first direction, a base arrangement for mounting on said

base comprising an output effector being rotatably mounted in a drive

housing, said drive housing having a pair of housing sectorial frames affixed

thereto, each having a bearing race following a circular arc therein for holding

corresponding ball bearings against a corresponding bearing race following

a circular arc in a corresponding one of a pair of housing sectorial mounts

affixed to a support standard to result in said drive housing being rotatably

connected to said support standard;

a first effector base rotatably connected to said first frame extension so as to

be rotatable with respect thereto in plural different directions; and

a first pair of base linear actuators each having an end thereof rotatable

connected to said first frame extension at corresponding extension connection

locations thereon, and each having that opposite end thereof rotatably

connected to said first effector base at corresponding effector connection

locations thereon so that any substantial differentials in movement of these

actuators cause corresponding substantial motions of said first effector base

towards a corresponding one of said extension connection locations and so

that substantial common movements of these actuators causes substantial

motions of said first said effector toward or away from both of said extension

connection locations.

’580 Patent 28:49–29:13.

Of particular relevance here, independent Claims 1 and 5 both contain the same

limitations requiring a “first pair of base linear actuators each having an end thereof rotatable 5

connected to first frame extension at corresponding extension connection locations thereon, and

each having that opposite end thereof rotatably connected to said first effector base.” ’580 Patent

27:57–27:63, 29:1–29:5.

The hand-like manipulator of Claim 1 is depicted in Figure 11 of the ’580 patent, and a

version of the relevant linear actuators are depicted in Figure 15. The relevant structures in

Claims 1, 5, 14, and 15 are located within the palm, thumb, and finger components of Figure 11:

5

The parties agreed to construe “rotatable” to be “rotatably” in both Claims 1 and 5. Ross-Hime

Designs, 126 Fed. Cl. at 310–11.

4

’580 Patent Figs. 11 & 15.

5

B. The ’962 Patent

The asserted claims of the ’962 Patent also relate to hand-like manipulators “capable of

engaging selected objects . . . .” ’962 Patent 27:9–27:10. Ross-Hime alleges that Robonaut 2

infringes on Independent Claims 11 and 14 of the ’962 Patent. (Def.’s Mot., Exs. C, D).

Independent Claim 11 recites a hand-like structure and provides:

11. An articulated manipulating system for mounting on a base in a robotic

manipulator and capable of engaging selected objects, said system

comprising:

a subbase rotatably mounted on said base to have a single subbase rotation

axis therethrough;

a first linear actuator coupled at one end thereof to said base and coupled at

an opposite end thereof to said subbase to be capable of rotating said subbase

about said subbase rotation axis;

a first effector base rotatably connected to said subbase to have a first effector

rotation axis;

a second linear actuator coupled at one end thereof to said subbase and

coupled at an opposite end thereof to said first effector base to be capable of

rotating said first effector base about said first effector rotation axis.

’962 Patent 27:9–27:23.

Independent Claim 14 recites a human thumb-like structure and teaches:

14. An articulated manipulating system for mounting on a base in a robotic

manipulator and capable of engaging selected objects, said system

comprising:

a plurality of shackles each having a pair of arms spaced apart by a recess

space with said arms being joined in a joining structure on one side of said

recess space;

a plurality of effector bases each rotatably mounted at a pivot location thereof

to and between said separate arms of a corresponding shackle so as to leave

a recess space between an end of that said effector base rotatably mounted to

said shackle and said joining structure thereof;

a fixed pedestal affixed to said base and having said joining structure of a

corresponding one of said plurality of shackles rotatably coupled thereto;

a moveable pedestal rotatably connected to said base and having said joining

structure of a corresponding one of said plurality of shackles rotatably

coupled thereto;

a pedestal linear actuator coupled at one end thereof to said base and coupled

at an opposite end thereof to said moveable pedestal to be capable of rotating

said moveable pedestal with respect to said base.

6

’962 Patent 27:56–28:10.

The hand-like manipulator is depicted in Figure 10B of the ’962 patent, and the linear

actuators depicted in Figure 10C. Figure 5 depicts the palm side of the hand-like manipulator of

Claim 14 that contains the “shackle” system supported on a “fixed pedestal.” The “shackles” are

labeled as 106'A, 106'B, and 106'C in Figure 5.

’962 Patent Figs. 5, 10B, 10C.

C. NASA’s Robonauts

NASA developed the Robonaut hand to assist with extravehicular activity on the then-in-

progress International Space Station. Ross-Hime Designs, Inc. v. United States, 139 Fed. Cl. 444,

449–50 (2018) (Op. Granting-in-Part and Denying-in-Part Def.’s Mot. to Dism.) (ECF No. 287).

Because many space station systems and tools were designed for human operators, it was

essential that this robotic system have a high degree of anthropomorphic dexterity. Id. The

Robonaut hand was one of several robotic hands that were being developed to reduce the number

of instances where astronauts were forced to leave the space vehicle and expose themselves to

the dangers of space. Id. In order to limit an astronaut's extravehicular time, the Robonaut hand

needed to possess the dexterity equal to that of an astronaut wearing a pressurized spacesuit. Id.

7

This would allow the robotic hand to work with human-rated tools and interface with systems on

the space vehicle that were designed for human operation. Id.

Robonaut 1 is described in U.S. Patent No. 6,244,644 (“the ’644 Patent”). (See Def.’s

Mot., Ex. J). NASA presented a version of its Robonaut 1 hand at the 1999 International

Conference on Robotics and Automation of the Institute of Electrical and Electronics Engineers.

Ross-Hime Designs, 139 Fed. Cl. at 452. At that conference, the named inventors of the ’644

Patent, Dr. Diftler and Mr. Lovchik, presented the assembled hand with an accompanying paper

entitled The Robonaut Hand: A Dexterous Robot Hand for Space, subsequently published in the

proceedings of the conference. Id.

The ’644 Patent generally teaches a compact dexterous robotic hand, which resembles a

human hand and forearm. The motors for the finger actuators are housed in the forearm section

and connected to a flexible tube, which is in turn, connected to a “lead screw assembly.” (See

Def.’s Mot., Ex. I at § 3.1). As the motor turns the flexible tube, the lead screw in the lead screw

assembly rotates, causing a nut to slide forward and backward within the shell of the lead screw

assembly. (Id.). The other end of the nut is connected to a flexible cable, which runs through the

wrist-like structure. (Id.). These flexible cables are fixed to finger segments in cammed grooves

by a piece of metal that is screwed into the side of the finger shells. (Id. at § 3.1–3.2; Def.’s Mot.,

Ex. H). Thus, as the nut in the lead screw assembly moves forward and backward, the flexible

cable causes the finger segments to curl or extend. A model of the Robonaut 1 hand is provided

in Figure 2 of the ’644 Patent, with lead screw assemblies labeled 54 and flexible cable labeled

60. The lead screw assemblies are depicted in Figure 5:

’644 Patent, Figs. 2, 5.

8

The ’644 Patent depicts how the flexible cables 60 connect with and articulate the finger

segments in Figures 9A, 9B, and 10A:

’644 Patent, Figs. 9A, 9B, 10A.

9

Eventually, NASA developed a second-generation version of the Robonaut unit,

designated Robonaut 2. Ross-Hime Designs, 139 Fed. Cl. at 454. Articles detailing the progress

NASA had made on the Robonaut were featured in Volume 14 of Autonomous Robots, published

in 2003, in the 2005 and 2007 Proceedings of the IEEE International Conference on Robotics

and Automation, and in the Proceedings of the 2004 Conference on Human-Computer

Interaction. Id. Robonaut 2 is described in U.S. Patent No. 8,467,903 to Ihrke et al. (“the ’903

Patent”), (Def.’s Mot., Ex. M), U.S. Patent No. 8,498,741 to Ihrke et al. (“the ’741 Patent”),

(Def.’s Mot., Ex. N), and U.S. Patent No. 8,562,049 to Ihrke et al. (“the ’049 Patent”), (Def.’s

Mot., Ex. O). The linear actuators in Robonaut 2 are located in the forearm, and are comprised of

a motor, gear head, and ball screw assembly. (See Def.’s Mot., Exs. K, L). The linear actuators

are connected to tendons which run from the forearm, through the wrist, to designated finger

segments. (Def.’s Mot., Ex. K at 17–27). The extending piece of the linear actuators contains a

“tendon hook,” which connect a “tendon loop.” (Def.’s Mot., Ex. K at 27). The tendon is then

routed through the wrist inside of a conduit and is “mechanically anchored” using a “tendon

terminator” to the finger or thumb segment. (Def.’s Mot. at 23, Ex. K at 30, Ex. L at § III.D &

Fig. 9). Thus, as the extending end of the linear actuator retracts, the tendon pulled and exerts

force on the finger or thumb segment to which it is connected. (Def.’s Mot., Ex. L at § III.D).

The Robonaut 2 finger actuation system is depicted in Figure 4 of the ’903 Patent, and

the finger actuator assemblies are depicted in Figure 5:

10

’903 Patent, Figs. 4, 5 (Def.’s Mot., Ex. M).

D. Procedural History

On April 29, 2016, the Court issued its Claim Construction Opinion, construing four

disputed terms found in the patents-in-suit. Ross-Hime Designs, 126 Fed. Cl. at 299. Those terms

included “linear actuator,” “differentials in movement,” “common movements,” and “shackle.”

Id. The Court construed the first three terms but declined to construe “shackle,” reasoning its

meaning was discernably clear from the claim language. Id. The Court determined that the term

“linear actuator,” which is used in all the asserted claims, would be understood by a person of

ordinary skill in the art to mean “a device, with ends defined by a base piece and an extending

piece, that converts some kind of power into linear motion such that the extending piece moves

in a straight line relative to the base piece.” Id. at 321. The Court was explicit that the term does

not include “‘specialized’ or ‘converted end’ linear actuators because these ‘specialized’ features

are also separate structures, such as . . . flexible tape.” Id.

On March 14, 2017, Ross-Hime served its final infringement contentions on the United

States, as required by the Court’s December 6, 2016 Order, (ECF No. 229). (See Def.’s Mot., Ex.

C). Nearly two months later, on May 12, 2017, Ross-Hime served an updated version of its final

infringement contentions as to Robonaut 1. (Def.’s Mot., Ex. F (Updated Final Infringement

Contentions), Ex. G (Updated Final Infringement Claim Chart Showing Changes From

Original)). Ross-Hime’s “updated” final claim infringement chart only contained modifications

to Ross-Hime’s claims of infringement of the ’580 Patent by Robonaut 1. (See Def.’s Ex. F at 1).

Fact discovery closed on June 4, 2019. (See ECF No. 294). The parties exchanged initial

expert reports on October 3, 2019, and responsive expert reports on December 20, 2019. Expert

discovery opened on January 8, 2020, and closed on January 17, 2020. The United States filed

the present Motion for Summary Judgment on January 30, 2020. Ross-Hime filed its Response

on February 24, 2020 (Pl.’s Resp., ECF No. 314), and on March 10, 2020, the United States filed

its Reply (Def.’s Reply, ECF No. 323).

In addition, the United States filed a motion in limine on February 28, 2020, seeking to

exclude the testimony and reports of Ross-Hime’s expert, Theodore Neils, from trial. (Def.’s

Mot. in Lim., ECF No. 318). This motion became fully briefed on March 11, 2020. (See ECF

11

No. 325). On March 13, 2020, the Court stayed all proceedings in this case in light of the

ongoing pandemic. (ECF No. 327). On October 26, 2020, the Court lifted the stay. (ECF No.

328).

II. Legal Standards

A. Patent Infringement

This Court possesses exclusive jurisdiction to adjudicate infringement claims against the

United States “[w]henever an invention described in and covered by a patent of the United States

is used or manufactured by or for the United States without license of the owner thereof or

lawful right to use or manufacture the same.” 28 U.S.C. § 1498(a). Section 1498 serves as a

limited waiver of sovereign immunity and, therefore, must be construed narrowly. Liberty

Ammunition, Inc. v. United States, 835 F.3d 1388, 1394 n.3 (Fed. Cir. 2016); see also Leesona

Corp. v. United States, 599 F.2d 958, 966 (Ct. Cl. 1979) (en banc).

In a patent infringement analysis, the Court first “determines the scope and meaning of

the asserted claims,” then compares the properly construed claims to the allegedly infringing

device. Mas-Hamilton Grp. v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed. Cir. 1998) (citing

Markman v. Westview Instruments, Inc., 517 U.S. at 372–74). The interpretation of a patent’s

claims is the assembly by which either literal infringement or infringement by the doctrine of

equivalents is measured. See id.

“To prove literal infringement, the patentee must show that the accused device contains

every limitation in the asserted claims. If even one limitation is missing or not met as claimed,

there is no literal infringement.” Mas-Hamilton Grp., 156 F.3d at 1211. Under the doctrine of

equivalents, “a product of process that does not literally infringe upon the express terms of a

patent claim may nonetheless be found to infringe if there is ‘equivalence’ between the elements

of the accused product or process and the claimed elements of the patented invention.” Warner-

Jenkinson Co. v. Hilton Davis Chem., Co., 520 U.S. 17, 21 (1997) (citing Graver Tank & Mfg.

Co. v. Linde Air Prods. Co., 339 U.S. 605, 609 (1950)). Because “[e]ach element contained in a

patent claim is deemed material to defining the scope of the patented invention, . . . the doctrine

of equivalents must be applied to individual elements of the claim, not to the invention as a

whole.” Warner-Jenkinson Co., 520 U.S. at 29. However, “a court may not, under the guise of

applying the doctrine of equivalents, erase a plethora of meaningful structural and functional

limitations of the claim on which the public is entitled to rely in avoiding infringement.” Perkin–

Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1532 (Fed. Cir. 1987).

B. Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a).

The moving party bears the initial burden of proof, but this burden may be discharged by

showing the absence of evidence supporting the opposing party’s claim. See Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986). In moving for summary judgment of non-infringement, “all

that is required is ‘notice to the party with the burden of proof that she had to come forward with

all of her evidence.’” Exigent Tech., Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1308 (Fed.

Cir. 2006) (quoting Celotex Corp., 477 U.S. at 326) (internal alterations omitted). In other words,

“nothing more is required than the filing of a summary judgment motion stating that the patentee

12

had no evidence of infringement and pointing to the specific ways in which accused systems did

not meet the claim limitations.” Id. at 1309.

If the moving party makes such a showing, the burden shifts to the non-moving party to

present such evidence. Celotex Corp., 477 U.S. at 324. The nonmoving party “must do more than

simply show that there is some metaphysical doubt as to the material facts,” it must come

forward with “specific facts showing that there is a genuine issue for trial.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (emphasis and citations omitted).

“A nonmoving party’s failure of proof concerning the existence of an element essential to its

case on which the nonmoving party will bear the burden of proof at trial necessarily renders all

other facts immaterial and entitles the moving party to summary judgment as a matter of law.

Dairyland Power Co-op v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Celotex

Corp., 477 U.S. at 323).

III. Discussion

The United States moved for summary judgment of non-infringement as to all asserted

claims, and invalidity of Claim 11 of ’962 Patent. (See generally Def.’s Mot.). With respect to its

non-infringement contentions, the United States argues “Plaintiff cannot show that [Robonaut 1]

meets every limitation of ’580 Claim 5 because the actuators used in [Robonaut 1] do not have

rotatable connections as claimed.” (Def.’s Mot. at 18). An actuator, the parties agree, is simply a

device that converts power to motion. Ross-Hime Designs, 126 Fed. Cl. at 315. Similarly, the

United States contends that “Plaintiff cannot show that [Robonaut 2] meets every limitation of

any asserted claim of either the ’580 Patent or the ’962 Patent because the linear actuators used

in [Robonaut 2] are located in the forearm and fixedly connected there.” (Def.’s Mot. at 22).

Regarding its invalidity argument, the United States submits that U.S. Patent No. 4,367,891

(Wauer) anticipates Claim 11 of the ’962 Patent. (Id. at 32).

In response, Ross-Hime relies exclusively on the testimony of its expert, Theodore Neils,

and its infringement contention charts, to argue that NASA’s Robonauts contain every limitation

in the asserted claims. 6 (See generally Pl.’s Resp.). Ross-Hime also contends that Wauer does

not anticipate Claim 11 of the ’962 Patent because, according to Ross-Hime, Wauer does not

have any members with a “single member rotation axis extending through it to meet [C]laim 11.”

(Pl.’s Resp., at 20–23).

In its Reply, the United States argues that Ross-Hime “ignores the Court’s claim

construction and reads out clear structural limitations of the asserted claims.” (Def.’s Reply at 1,

ECF No. 323). Additionally, the United States contends that, with respect to the invalidity

argument of ’962 Claim 11, Ross-Hime’s argument “would add limitations to the claims that are

simply not there.” (Def.’s Reply at 1).

6

Large sections of Ross-Hime’s brief are merely word-for-word quotations of Neils’ expert

reports and Ross-Hime’s infringement contention charts. (Compare Pl.’s Resp. at 4–5, with Pl.’s

Resp., Ex. 4 at 13–14, 15–16 (Neils’ Reply Report), and Pl.’s Resp. at 6–9, with Pl.’s Resp., Ex.

1-1 at 3–7).

13

As explained below, the Court concludes that neither Robonaut 1 nor Robonaut 2 infringe

on the asserted claims in the ’580 and ’962 Patents. In light of this determination, there is no

need to address the United States’ argument regarding the invalidity of ’962 Patent Claim 11.

A. Infringement of the ‘580 Patent by Robonaut 1

Ross-Hime asserts that NASA’s Robonaut 1 infringes on Claim 5 of the ’580 Patent. In

moving for summary judgment of non-infringement, the United States argues that Robonaut 1

does not contain all the limitations included in Claim 5, namely, “a first pair of base linear

actuators each having an end thereof rotatabl[y] connected to said first frame extension at

corresponding extension connection locations thereon, and each having that opposite end thereof

rotatably connected to said first effector base at corresponding effector connection locations

thereon.” (Def.’s Mot. at 1, 18–22). According to the United States, Robonaut 1 does not include

any actuator with one end “rotatably” connected to a “first frame extension,” and an opposite end

“rotatabl[y] connected to a “first effector base,” because the linear actuators are connected to the

“forearm” on one end, rather than to a “first frame extension,” and fixedly connected to a flexible

cable, rather than to a “first effector base,” on the opposite end. (Def.’s Mot. at 18–22). The

United States contends that because the Court expressly excluded “specialized” or “converted

ends” from the construction of the term “linear actuator,” see Ross-Hime Designs, 126 Fed. Cl. at

299, 321, Ross-Hime cannot prove that Robonaut 1 contains all of the limitations included in

Claim 5. (Def.’s Mot. at 20–22).

In response, Ross-Hime identifies the connection between the lead screw assembly and

palm housing, whereby the lead screw rotates inside the lead screw assembly relative to the palm

housing via a motor affixed to Robonaut 1’s forearm, as the “rotatable” connection between the

actuator and “first frame extension” taught by Claim 5. (Pl.’s Resp. at 2–5). Ross-Hime further

identifies the flexible cables 60 in Robonaut 1, which connect the lead screw assemblies to

proximal finger half shells, as the “rotatable” connection between the actuator and “first effector

base.” (Pl.’s Resp. at 5). Recognizing that the Court’s construction of the term “linear actuator”

expressly excluded “specialized” and “converted end” linear actuators, Ross-Hime argues that

“only the straight line motion end of a cable 60 is included as being in the distributed linear

actuator.” (Pl.’s Resp. at 5). According to Ross-Hime, “[Robonaut 1] as described in [the ’644

Patent] shows cables 60 each extending from corresponding lead screw assembly 54 to a

corresponding finger segment which rotates with an end of that cable locked therein so that the

cable bends (rotates to various degrees) to follow the finger segment rotation.” (Pl.’s Resp. at 5).

Alternatively, Ross-Hime contends that the flexible cable “can be considered in its entirety as a

rotatable connection thereby omitting any part of it being a part of a linear actuator, and thereby

leaving the cable in its entirety in the claimed rotatable connection between the lead screw

assembly 54 and the finger segment.” (Pl.’s Resp. at 6).

In its Reply, the United States maintains that Robonaut 1 does not contain a rotatable

connection between a linear actuator and first frame extension, reasoning “the shell of the

leadscrew assembly is part of the actuator and not part of the palm [and] [t]he actuator is actually

fixed to the palm at the shell of the leadscrew assembly.” (Def.’s Reply at 2–3). Similarly, the

United States argues Ross-Hime has failed to establish that Robonaut 1 contains an actuator

“rotatabl[y] connected to said first effector base at corresponding effector connection locations”

because Ross-Hime “fails to recognize that cable 60 (as identified in the ’644 Patent) is a

separate structure from the nut (body 100 as identified in the ’644 Patent), and so is not part of

14

the linear actuator under the Court’s claim construction of the term.” (Def.’s Reply at 3–4). With

respect to Mr. Neils’ assertion that “only the straight line motion end of a cable 60 is included as

being in the distributed linear actuator,” the United States argues that this statement likewise

“ignores the Court’s claim construction, which specifically excluded ‘separate structures’ from

the construction of linear actuator” by “split[ting] the separate structure (cable 60 as identified in

the ’644 Patent) into two sub-structures: one that moves with ‘straight line motion’ and another

that (apparently) does not move in a straight line.” (Def.’s Reply at 4). The United States further

contends that Ross-Hime’s argument reads out the limitation that the opposite end of the actuator

be “rotatably connected to said first effector base at corresponding effector connection locations

thereon.” (Def.’s Reply at 5) (emphasis in original). Finally, with regard to Mr. Neils’ expected

testimony that “cable 60 just as clearly can be considered in its entirety as a rotatable connection

. . . ,” the United States argues that this likewise reads out the limitation that the opposite end of

the actuator is “rotatably connected to said first effector base at corresponding effector

connection locations thereon. (Def.’s Reply at 5) (emphasis in original).

In light of the Court’s construction of the term “linear actuator” and the parties’

stipulations as to other pertinent terms, the Court concludes that Robonaut 1 does not infringe on

Claim 5 of the ’580 Patent. The relevant portion of Claim 5 describes a pair of linear actuators

positioned between, and rotatably connected to, a “first frame extension” on one end, and a “first

effector base” on the other. See ’580 Patent 29:1–29:6. The Court construed the term “linear

actuator” to mean “a device, with ends defined by a base piece and an extending piece, that

converts some kind of power into linear motion such that the extending piece moves in a straight

line relative to the base piece.” Ross-Hime Designs, 126 Fed. Cl. at 321.

Under this construction, Ross-Hime contends that the “linear actuators” in Robonaut 1

are comprised of: “actuators 91 as power sources, flexible shafts 92, lead screw assemblies 54

and cables 60.” (See Pl.’s Resp. at 6–7) 7. Putting aside that the actuators in Robonaut 1 are

specifically identified in the ’644 Patent, Ross-Hime identifies the “lead screw 102,” which is

itself a sub-structure of the lead screw assembly 54, as the “end” of the linear actuator that is

rotatably connected to a first frame extension, which Ross-Hime identifies as the palm housing

16. (Id.). Ross-Hime then identifies the connection between one end of the lead screw and

“coupling end 62 of sleeve 117” as the rotatable connection between the actuator and first frame

extension. (Id. at 7). According to Ross-Hime, this is so because “[t]he lead screw 102 includes

an opposing end 110 rotatably mounted within the coupling end 62 of sleeve 117,” and the

“upper end of each tubular sleeve 117 is securely clamped to the palm housing 16.” (Id.)

(emphasis added).

7

Quizzically, Ross-Hime cites to Mr. Neils’ expert report on infringement of the ’580 Patent by

Robonaut 2 for this proposition, in the section arguing that Ross-Hime’s Infringement Claim

Charts support its contentions as to Robonaut 1. (See Pl.’s Resp. at 6–9 (citing Pl.’s Ex. 2); see

also Pl.’s Resp., Ex. 1.1 at 3–7 (Expert Report ‘580 R1 Infringement Claim Chart); Def.’s Ex. G

at 4–7 (Pl.’s Second Am. Infringement Claim Chart)). Further, Ross-Hime copies large portions

of Mr. Neils’ rebuttal infringement report, (Pl.’s Ex. 4), with citations but without quotation

marks. As the United States correctly observes, this “creates the confusing impression that Mr.

Neils’ expert reports are merely attorney argument masquerading as expert opinion.” (Def.’s

Reply at 4 n.6).

15

Ross-Hime’s arguments are flawed and fail to rebut the United States’ non-infringement

contentions as to Robonaut 1. Principally, Ross-Hime, by its own terms, identifies the “linear

actuators” in Robonaut 1 as being comprised of several elements, including “actuators 91 as

power sources, flexible shafts 92, lead screw assemblies 54 and cables 60.” (See Pl.’s Resp. at 6–

7). It then separates the sub-structures in the lead screw assembly and disregards other elements

of what it calls linear actuators, namely the “actuator 91.” As Ross-Hime acknowledges, the

actuators 91 are the “power sources” that drive or create the (actuation) motion. (See Pl.’s Resp.

at 6 (quoting Robonaut 1 Infringement Claim Chart)); see also Ross-Hime Designs, 126 Fed. Cl.

at 321 (construing “linear actuator” to mean “a device, with ends defined by a base piece and an

extending piece, that converts some kind of power into linear motion . . .”). The lead screw

assembly is part of the linear actuator by Ross-Hime’s own admission, and is the portion that

converts the rotational motion from the motor—i.e., actuator 91—and flexible shaft into linear

motion. Yet, despite listing “actuators 91” as a component of the “linear actuator,” and the

United States repeatedly stating that the actuators are located in and fixed to the forearm, (see

Def.’s Mot. at 18–20), Ross-Hime ignores this component altogether.

Instead, Ross-Hime and Mr. Neils note that the tubular sleeve structure of the lead screw

assembly is affixed to the palm housing and argue that the rotation of the lead screw inside the

lead screw assembly constitutes the rotatable connection between the linear actuator and first

frame extension. (Pl.’s Resp. at 4–5, 6–7). In other words, Ross-Hime argues that the lead screw

assembly constitutes a linear actuator and that the rotation of the lead screw, which creates the

linear “actuation” movement, is the rotatable connection taught by Claim 5. Logically, a

“rotatable connection” within the linear actuator structure itself cannot constitute a rotatable

connection between the linear actuator and first frame extension, as Claim 5 requires. Moreover,

by arguing that the lead screw assembly is the base piece of the linear actuator, Ross-Hime

disregards the actuator 91 and flexible shaft 92 structures that it identifies as components of the

linear actuators. (See Pl.’s Resp. at 6–7 (identifying the Robonaut 1 “linear actuators” as being

comprised of “actuators 91 as power sources, flexible shafts 92, lead screw assemblies 54 and

cables 60.”)). Consequently, Ross-Hime has failed to identify the rotatable connection between

the base end of a Robonaut 1 linear actuator and first frame extension required by Claim 5. Ross-

Hime fails to present any argument concerning its theory of infringement under the doctrine of

equivalents. As the United States has carried its initial burden by stating that Ross-Hime has no

evidence of infringement and pointing to the specific ways in which Robonaut 1 does not meet

the claim limitations of Claim 5, see Celotex Corp., 477 U.S. 317, 325–26 (1986), and Ross-

Hime has pointed to no facts showing a genuine issue of fact for trial, summary judgment of non-

infringement by Robonaut 1 is appropriate. See Mas-Hamilton, 156 F.3d at 1211 (“If even one

limitation is missing or not met as claimed, there is no literal infringement”).

Although it is not necessary to reach this issue given the holding above, Ross-Hime

likewise fails to show that the other “extending” end of Robonaut 1’s actuators are “rotatably

connected” to a first effector base. Ross-Hime identifies the flexible cable 60, which is attached

to the extending piece, or “body,” of the lead screw assembly and is secured in a groove in the

finger half shells, as this connection. (Pl.’s Resp. at 6–9). However, in construing the term

“linear actuator,” the Court was explicit that the term does not include “‘specialized’ or

‘converted end’ linear actuators because these ‘specialized’ features are also separate structures,

such as the flexible tape in Figure 10 of the ’580 Patent attached to the linear actuator ends.”

Ross-Hime Designs, 126 Fed. Cl. at 321; see also id. at 317 (“By ‘converted end linear actuator,’

16

Plaintiff means a linear actuator that has an additional structure attached, such as the flexible tape

82 in Figure 10 of the ’580 Patent.”). In its response, Ross-Hime ignores this clear statement and

identifies a separate structure, the flexible cable, as part of Robonaut 1’s linear actuators. (Pl.’s

Resp. at 6). Given the Court’s claim construction opinion, Ross-Hime cannot demonstrate that

Robonaut 1 has linear actuators with one end thereof rotatably connected to a first effector base

as required by Claim 5 of the ’580 Patent.

To the extent Ross-Hime relies on Mr. Neils’ opinion that “only the straight line motion

end of a cable 60 is included as being in the distributed linear actuator . . .,” this does not save

Ross-Hime’s position. In construing the term “linear actuator,” the Court referenced the “flexible

tape” in Figure 10 of the ’580 Patent, which connects the linear actuators to joint extensions.

Ross-Hime Designs, 126 Fed. Cl. at 317–18. As explained in the ’580 Patent, “movement of

linear actuator 80 in Fig. 10, thereby forcing the upward end of the tape 82 connected to it, will

lead to clockwise motion of joint extension 88, and downward motion of linear actuator 80 will

lead to counterclockwise motion of joint extension 88.” ’580 10:32–10:36. Clearly, the upward

or downward motion of the linear actuator causes the flexible tape to move, at least partially, in a

straight-line motion. As such, the Court is unable to discern any distinction between the flexible

tape in the ’580 Patent and the flexible cable in Robonaut 1. Ross-Hime is simply advancing the

same argument that was rejected by the Court during claim construction. See Ross-Hime

Designs, 126 Fed. Cl. at 315–21 (rejecting Ross-Hime’s argument that “[r]elative to its base, the

linear actuator manipuable [sic] member will move in a straight line” and “the controlled

movable output structure end of a linear actuator assembled in the hand moves in a straight line

only relative to the base structure of the linear actuator.”) (emphasis in original). Because the

Court construed the term “linear actuator” as excluding “specialized” or “converted ends,” id. at

321, the flexible cable in Robonaut 1 cannot be considered part of the linear actuator.

Mr. Neils’ argument that “cable 60 can be considered in its entirety as a rotatable

connection thereby omitting any part of it being a part of a linear actuator” likewise fails to

establish a rotatable connection between a linear actuator and effector base. (See Pl.’s Resp. at

6). In construing the term linear actuator as excluding “specialized” or “converted end[s],” the

Court rejected a version of Mr. Neils’ argument, explaining “[t]he capability of the linear

actuator to turn in arcing movements in space . . . is expressed in the claims by the rotatable

connections on either end of the linear actuator not the linear actuator itself.” Ross-Hime

Designs, 126 Fed. Cl. at 321. If the cable is not part of the linear actuator, then the linear actuator

is connected to the cable, not to the first effector base as Claim 5 requires. Cf. id. at 318 (“The

linear actuator in Figure 10 is depicted as structure 80, and the flexible tape is considered a

separate structure 82. Accordingly, what Plaintiff calls a ‘converted end linear actuator’ is

comprised of two separate structures—the actuator and the tape, not one integrated structure.”).

Accordingly, Mr. Neils’ opinion that “cable 60 can be considered in its entirety as a rotatable

connection thereby omitting any part of it being a part of a linear actuator” does not comport

with the Court’s construction of “linear actuator.” Thus, Ross-Hime has failed to show that

Robonaut 1 contains a linear actuator with its extending end attached to a first effector base as

required by Claim 5 of the ’580 Patent.

In sum, the United States has carried its burden of showing the absence of proof as to

infringement of Claim 5 of the ’580 Patent by Robonaut 1, specifically that Robonaut 1 contains

“a first pair of base linear actuators each having an end thereof rotatabl[y] connected to said first

frame extension at corresponding extension connection locations thereon, and each having that

17

opposite end thereof rotatably connected to said first effector base at corresponding effector

connection locations thereon.” Ross-Hime has failed to point to evidence of such infringement

and thus failed to point to specific facts showing that there is a genuine issue of fact for trial. See

Mas-Hamilton, 156 F.3d at 1211 (“If even one limitation is missing or not met as claimed, there

is no literal infringement”). Furthermore, Ross-Hime failed to present any argument concerning

its theory of infringement under the doctrine of equivalents. Therefore, summary judgment of

non-infringement is appropriate.

B. Infringement of the ’580 Patent by Robonaut 2

Ross-Hime asserts that Robonaut 2 infringes on Claims 1, 5, 14, and 15 of the ’580

Patent. Independent Claims 1 and 5 both require a “first pair of base linear actuators each having

an end thereof rotatabl[y] connected to said first frame extension at corresponding extension

connection locations thereon, and each having that opposite end thereof rotatably connected to

said first effector base . . ..” ’580 Patent 27:57–27:61, 29:1–29:5. Claim 14 depends from Claim

1 and thus includes all of the limitations of Claim 1, as well as additional limitations. 35 U.S.C. §

112 ¶ 4. 8 Claim 15 depends from Claim 14, and thus contains all the limitations of Claims 14 and

1, as well as additional limitations. § 112. Therefore, all of the asserted claims as to Robonaut 2

include the limitations of “first pair of base linear actuators each having an end thereof

rotatabl[y] connected to said first frame extension at corresponding extension connection

locations thereon, and each having that opposite end thereof rotatably connected to said first

effector base.” Because the asserted claims all contain the same limitations, and Ross-Hime

addresses these claims together, (see Pl.’s Resp. at 11–14), the Court will not discuss each claim

separately.

The United States contends that Robonaut 2 does not infringe on any asserted claim of

the ’580 Patent for the same reasons that it alleges Robonaut 1 does not infringe on the ’580

Patent, which is: (1) the linear actuators are located in and fixedly connected to, the forearm,

rather than a “first frame extension”; and (2) the extending portion of the linear actuators are

connected to tendons—a separate structure under the Court’s claim construction—rather than to

a “first effector base.” (Def.’s Mot. at 22–27). According to the United States, Ross-Hime’s

infringement claim charts identifies a tension sensor as the base piece of the linear actuator, and

a tendon terminator as the opposing end of the linear actuator, both of which are separate

structures under the Court’s claim construction and thus not part of the linear actuators. (Id.).

In response, Ross-Hime claims that the United States’ position is incorrect because it

“avoided using Plaintiff’s claim chart evidence,” then curiously, relies only on Mr. Neils’ reply

infringement report as evidence that there exists a genuine dispute of material fact. (See Pl.’s

Resp. at 11–14). 9 Mr. Neils opined that Robonaut 2 “literally does have linear actuators as

8

The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011) (AIA),

became effective on September 16, 2012. The AIA amended Section 112 and re-designated its

subsections. As the applications resulting in the ’580 Patent and the ’962 Patent were filed before

that date, the pre-AIA version of § 112 applies.

9

Ross-Hime cites to what it labeled as Mr. Neils’ Expert Report: ’580 Patent Robonaut 2

Infringement Claim Chart for this statement (Pl.’s Resp., Ex. 2-1). However, in a disturbing

admission, Mr. Neils testified at his deposition held January 16–17, 2020, that he did not

18

described in Claims 1, 5, 14, and 15 of the ’580 Patent.” 10 (Pl.’s Mot. at 11). As stated in the

March 14, 2017 Infringement Claim Chart, Ross-Hime identifies the linear actuators in Robonaut

2, which is described in the ’941 thumb and ’049 finger Patents, as being comprised of “finger

actuator assemblies 26, actuator housing 38, end cap 68, splitter 72, motors 34, gear drives 36,

ball screws 50, conduits 46, tension sensors, [base piece], ball nuts 52, tendon housings 62

[extending piece].” 11 (Pl.’s Resp., Ex. 2-1 at 4 (brackets in original) (citing the ’903 Patent)). Mr.

Neils opines that “the motors and connected drive mechanisms are commonly termed a ‘linear

actuator’ and that they meet the Court’s linear actuator definition through having ‘the linear

motion driving parts thereof forming the extending piece and leaving the remaining parts of the

arrangement forming the base piece.’” (Pl.’s Resp. at 12). Mr. Neils states repeatedly that the

tendons in Robonaut 2 are not part of the actuators and offers several opinions as to how

Robonaut 2 infringes on the ’580 Patent. (Pl.’s Resp., Ex. 4 at 20–21 (“the actuators 26 are

motors operatively connected to tendons by drive mechanisms – there is no wording therein that

includes the tendons in the actuators”) (“The operation of ‘driving the tendons’ does not make

the tendons part of that which drives them”) (“there is no requirement that the flexible tendon be

a part of the linear actuator extending piece”)).

As discussed in detail below, Mr. Neils’ opinions as to infringement of ’580 Patent

Claims 1, 5, 14, and 15 are flawed. Moreover, despite the United States’ repeated arguments that

Robonaut 2 does not meet the limitation of a “first pair of base linear actuators rotatably

connected to a first frame extension,” (see Def.’s Mot. at 25–27), Ross-Hime does not address

this claim limitation. Ross-Hime presents no argument regarding its theory of infringement under

the doctrine of equivalents. Consequently, the United States has carried its burden of “pointing to

the specific ways in which the accused systems [do] not meet the claim limitations,” Exigent

Tech., 442 F.3d at 1309, and Ross-Hime has failed to come forward with “specific facts showing

that there is a genuine issue for trial.” Matsushita Elec. Indus., 475 U.S. at 586–87; Mas-

Hamilton, 156 F.3d at 1211 (“If even one limitation is missing or not met as claimed, there is no

literal infringement”).

The cited portions of Mr. Neils’ expert reply report concern the limitation requiring a

“first pair of base linear actuators . . . each having that opposite end thereof rotatably connected

consider or prepare the new infringement charts and that those charts were appended to his

completed reports before being exchanged. (See Def.’s Mot. in Lim., at 13–14 (quoting Neils’

Deposition Testimony)). Consequently, the United States filed a separate motion in limine to

exclude Mr. Neils’ testimony and expert reports. (See ECF Nos. 318, 319). Aside from that

dispute, it is unclear which claim charts Ross-Hime’s statement refers to, as the United States

cited to portions of Ross-Hime’s claim charts that were not changed in its second amended claim

charts. (See e.g., Def.’s Mot. at 21–22, 25–31). Moreover, Ross-Hime’s second amended claim

charts only amended its infringement contentions as Robonaut 1, and did not amend any

contentions as to Robonaut 2. (See Def.’s Mot., Ex. F at 1).

10

Mr. Neils also opined on infringement by Robonaut 2 under the doctrine of equivalents.

Although Ross-Hime claims infringement under the doctrine of equivalents in its complaint, it

does not mention or reference the doctrine of equivalents anywhere in its response brief.

11

Ross-Hime does not mention or refer to this characterization anywhere in its response brief.

19

to said first effector base at corresponding effector connection locations.” (See Pl.’s Resp. at 11–

14). Mr. Neils first opines, in an apparent contradiction of his repeated statements that the

tendons are not a part of the actuators, that the “straight line moving portion” of the tendon is

“part of a connected linear actuator,” and the “bendable, or rotatable portion” is the “rotatable

connection of the extending piece to a moveable component.” (Id. at 12 (quoting Ex. 4 at 20)).

This argument contains the same fatal flaws that plagued Ross-Hime’s Robonaut 1 analysis,

namely that it ignores the Court’s explicit statement that the term “linear actuator” does not

include separate structures that are attached to the ends of the actuator. See Ross-Hime Designs,

126 Fed. Cl. at 317–18, 321. Despite an apparent recognition of that clear statement, Mr. Neils

breaks apart the separate structure of the tendon into two sub-structures, and claims that the

“straight line moving portion” is part of the linear actuator. As this assertion is not in accordance

with the Court’s construction of the term “linear actuator,” it fails to rebut the United States’

non-infringement contentions. See id.

Next, Mr. Neils opines that, alternatively, the entire tendon itself can be considered the

“rotatable connection between the linear actuator and finger segment being moved because the

entire tendon is bendable” and “its overall bendability, or rotatability, still allows angular

positional changes between the connected bodies.” (Pl.’s Resp. at 12, Ex. 4 at 20). In making this

argument, Mr. Neils identifies the “rotatable connection” as the tendon itself, the “first effector

base” as the finger segments, and the “corresponding effector connection locations” as the

tendon terminators, which connect the tendons to the finger segments. (See Pl.’s Resp., Ex. 2-1 at

7). The parties stipulated that “rotatable connect[ion]” has a plain and ordinary meaning. Ross-

Hime Designs, 126 Fed. Cl. at 311. The parties also agreed that “effector connection locations

thereon” should be construed to mean “locations on the first effector base.” Id. Under a plain

reading, “rotatable” modifies the word “connection” in that it specifies the type of connection.

Thus, the asserted claims in the ’580 Patent require the extending ends of the linear actuators to

be connected to “locations on the first effector base” and that the connection be “rotatable.” As

the United States correctly observes, Mr. Neils’ argument reads out this claim limitation. Indeed,

the introduction of two separate connections between the actuators and effector bases—one

between the extending end of the actuator and the tendon, the other between the tendon and

tendon terminator—belies any notion that the actuators are rotatably connected to a first effector

base as the ’580 Patent requires. Cf. id. at 318 (“The linear actuator in Figure 10 is depicted as

structure 80, and the flexible tape is considered a separate structure 82. Accordingly, what

Plaintiff calls a ‘converted end linear actuator’ is comprised of two separate structures—the

actuator and the tape, not one integrated structure.”).

Moreover, Ross-Hime does not explain Mr. Neils’ substitution of the word “bendable”

for “rotatable.” In his reply report, Mr. Neils reasons that “[a]ll the claims require is that the

rotation joints used permit the attached members to change their angular relationships to one

another.” (Pl.’s Resp., Ex. 4 at 17). This opinion does not conform to the Court’s claim

construction, where it was determined that “[t]he ’580 Patent only includes language to suggest

that structures ‘rotatably connected’ to the ends of the linear actuator are capable of rotating

around the end of the linear actuator.” Ross-Hime Designs, 126 Fed. Cl. at 317. The Court

rejected Ross-Hime’s invitation to construe the term linear actuator as including “circular

movement of the structures rotatably attached to the actuator,” reasoning that the additional

language would render the “rotatably connected” and “capable of rotating” language redundant.

Id. Mr. Neils’ opinion that the tendons can be considered the “rotatable connection” because they

20

are capable of “bending,” contravenes the Court’s claim construction by equating the circular

“bending” motion of the tendon with a “rotatable connection.” Id.; see also Phonometrics, Inc. v.

N. Telecom Inc., 133 F.3d 1459, 1465 (Fed. Cir. 1998) (“A word or phrase used consistently

throughout a claim should be interpreted consistently.”). Thus, Ross-Hime’s assertion that the

tendon itself can be considered the rotatable connection between the linear actuator and finger

segment is without merit.

Finally, Mr. Neils argues that there must be a rotatable connection between the linear

actuator and finger segment because, if such a connection was absent, “neither the finger

segments nor the hand could change their angular positions with respect to the straight line

motions direction of the linear actuators.” (Pl.’s Resp. at 13, Ex. 4 at 21). Mr. Neils admits that

“[t]he linear actuators in [Robonaut 2] are indeed fixedly attached to lower arm 24,” but

proclaims this “immaterial to the operation of the finger segments.” (Pl.’s Resp. at 13, Ex. 4 at

21). Mr. Neils reasons this is so “because the reaction forces to the pulling of the tendons are

carried back from the hand by the conduits surrounding the tendons through [several structures]

to the base pieces of the corresponding linear actuators, and to which these conduits are rotatably

connected by being bendable.” (Pl.’s Resp. at 13, Ex. 4 at 21).

This argument fails for the same reasons as the last, namely because Mr. Neils reads out

of the claim the limitation that the extending end of the actuator be “rotatably connected to said

first effector base at corresponding effector locations thereon.” It is certainly true that the linear

actuators force the fingers and thumb structures to move—in fact, the primary function of an

actuator is converting some kind of power into motion—but Robonaut 2 does not infringe on

Ross-Hime’s patents simply because it contains linear actuators and these actuators cause the

fingers to move. Rather, the linear actuators must be positioned and connected in the manner the

’580 Patent requires; that is, positioned between, and rotatably connected to, a first frame

extension on one end and a first effector base on the opposite end. Mr. Neils’ opinion fails to

identify where and how Robonaut 2 meets this limitation.

In its infringement claim chart, Ross-Hime identifies the base end of the linear actuators

as simply “[base piece],” the “rotatabl[e] connection” as the “conduits” or tubes that protect the

tendons, the “first frame extension” as the base members, which are the base structures of the

fingers or “effectors,” and the “corresponding extension connection locations thereon” as tension

sensors. (Pl.’s Resp., Ex. 2-1 at 4). Ross-Hime relies on Mr. Neils’ opinion that “the motors and

connected drive mechanisms are commonly termed a ‘linear actuator,’” with “the linear motion

driving parts thereof forming the extending piece [and] the remaining parts of the arrangement

forming the base piece.” (Pl.’s Resp. at 12). Mr. Neils further states that “the actuators 26 are

motors operatively connected to tendons.” (Id.). Based on these statements, it would seem that

Mr. Neils and Ross-Hime agree that the actuators 26 in Robonaut 2 form part of the “base piece”

of the linear actuators. In fact, Mr. Neils and Ross-Hime concede that “[t]he linear actuators in

[Robonaut 2] are indeed fixedly attached to lower arm 24.” (Id. at 13). However, Ross-Hime

points to no evidence showing that the base pieces of the linear actuators are rotatably connected

to a “first frame extension” as Claims 1, 5, 14, and 15 require. (See id. at 11–14).

The structures Ross-Hime identifies as the “rotatable connection,” “first frame

extension,” and “corresponding effector locations,” are all located beyond the distal end—i.e.,

extending end—of the actuators. Logically, the linear actuators cannot be positioned between a

first frame extension on one end and a first effector base on the extending end, as the ’580 Patent

21

requires, if both the first frame extension and first effector base are located beyond the distal end

of the actuators. Although Ross-Hime apparently agrees that Robonaut 2’s linear actuators are

wholly contained in and affixed to, the forearm structure, 12 it does not attempt to explain this

disconnect. As such, Ross-Hime has failed to demonstrate a genuine dispute of material fact that

would preclude summary judgment of non-infringement in favor of the United States as to the

’580 Patent.

In sum, the United States carried its burden by stating Ross-Hime has no evidence of

infringement of the ’580 Patent by Robonaut 2 and pointing to the specific ways in which

Robonaut 2 does not meet the claim limitations. See Exigent Tech., 442 F.3d at 1309. In

response, Ross-Hime has failed to come forward with “specific facts showing that there is a

genuine issue for trial.” Matsushita Elec. Indus. Co., 475 U.S. at 586–87. The expert reports

Ross-Hime relies on are flawed in that they contravene the Court’s construction of the term

“linear actuator,” and Ross-Hime advances no argument about how Robonaut 2 meets the

limitation requiring a “first pair of base linear actuators rotatably connected to a first frame

extension at corresponding connection locations.” See Mas-Hamilton, 156 F.3d at 1211 (“If even

one limitation is missing or not met as claimed, there is no literal infringement”). Likewise,

Ross-Hime presents no argument regarding its theory of infringement under the doctrine of

equivalents. Therefore, summary judgment of non-infringement as to Claims 1, 5, 14, and 15 of

the ’580 Patent by Robonaut 2 is appropriate.

C. Infringement of the ’962 Patent by Robonaut 2

Ross-Hime alleges that Robonaut 2 infringes on Independent Claims 11 and 14 of the

’962 Patent. However, for the same reasons that Ross-Hime’s contentions as to infringement of

the ’580 Patent failed, so too do its contentions as to infringement of ’962 Patent Claims 11 and

14. The Court will address each claim in turn.

1. ’962 Patent Claim 11

Independent Claim 11 recites a hand-like structure and teaches:

11. An articulated manipulating system for mounting on a base in a robotic

manipulator and capable of engaging selected objects, said system

comprising:

a subbase rotatably mounted on said base to have a single subbase rotation

axis therethrough;

a first linear actuator coupled at one end thereof to said base and coupled at

an opposite end thereof to said subbase to be capable of rotating said subbase

about said subbase rotation axis;

a first effector base rotatably connected to said subbase to have a first effector

rotation axis;

12

As explained above, Ross-Hime does not advance any argument other than what it alleges is

contained in its infringement claim charts and Mr. Neils’ expert reports.

22

a second linear actuator coupled at one end thereof to said subbase and

coupled at an opposite end thereof to said first effector base to be capable of

rotating said first effector base about said first effector rotation axis.

’962 Patent 27:9–27:23.

The United States argues that Robonaut 2 does not infringe on Claim 11 because

Robonaut 2 does not contain “a first linear actuator coupled at one end thereof to said base and

coupled at an opposite end thereof to said subbase . . .” or “a second linear actuator coupled at

one end thereof to said subbase and coupled at an opposite end thereof to said first effector base .

. ..” (Def.’s Mot. at 15, 27–30). According to the United States, “because the entirety of each

linear actuator is located in the forearm of [Robonaut 2], and fixedly connected to the forearm

structure,” “Plaintiff cannot show any ‘coupling’ between a linear actuator used in [Robonaut 2]

and a finger or thumb segment.” (Id. at 28). Further, the United States contends that Ross-Hime’s

infringement chart is flawed in that it identifies a structure that is separate from the linear

actuator, the tension sensor, as the base piece of the linear actuator, in contravention of the

Court’s claim construction. (Id. at 29). In the alternative, the United States argues that the Wauer

Patent, U.S. Patent No. 4,367,891, anticipates Claim 11 of the ’962 Patent. 13

In response, Ross-Hime again relies exclusively on Mr. Neils’ expert reports and its

infringement claim charts, and raises identical arguments to those raised concerning the ’580

Patent. In particular, Ross-Hime relies on Mr. Neils’ expert reports in which, after repeatedly

stating that the tendons in Robonaut 2 are not part of the linear actuators, he opines that: (1) the

straight line moving portion of the tendon is part of the linear actuator and the portion that is

“bendable” is the rotatable connection; (2) the tendon itself can be considered the rotatable

connection; and (3) that there must be a rotatable connection between these structures or else the

finger segments could not move. (See Pl.’s Resp. at 14–17). Ross-Hime also relies on Mr. Neils’

opinion that:

There is no wording in claim 11 about linear actuators being connected to any

of the base, subbase or first effector base. Rather, the linear actuators in claim

11 are only required to be coupled to these different bases. The Term

‘coupled’ has no limit on the number or kind of coupling elements in the

coupling made.

(Pl.’s Resp. at 16 (quoting Ex. 4 at 29, ¶ 65) (internal citations omitted)).

These arguments fail to establish a genuine dispute of material fact as to infringement of

the ’962 Patent. To the extent Ross-Hime relies on Mr. Neils’ expert reports, his opinions as to

the infringement of ’962 Patent Claim 11 by Robonaut 2 are flawed for the reasons explained

supra in section III(B) of this opinion. In addition to the reasons explained above, Mr. Neils’

opinion addresses whether the tendons in Robonaut 2 can be considered the rotatable connection

between the linear actuators and first frame extension or first effector base. (See Pl.’s Resp. at

15) (“Considering a tendon with a straight line moving portion as part of a connected linear

actuator and a bendable, or rotatable, portion as part of the apparatus of the rotatable connection

of the extending piece to a moveable component fits fine with the Court’s definition.”). But

13

As explained below, this argument is mooted by the Court’s holding that Ross-Hime has failed

to present evidence of infringement showing a genuine dispute of material fact for trial.

23

Claim 11 does not contain this limitation. See ’962 Patent 27:9–27:23. Instead, Claim 11 requires

the linear actuator to be coupled between a base and subbase and “capable of rotating said

subbase about said subbase rotation axis.” Thus, Mr. Neils’ opinion in this regard fails to

establish infringement of Claim 11 by Robonaut 2. Mr. Neils’ semantics regarding a distinction

between “connected” and “coupled,” is equally unpersuasive. Even if this distinction were

material, Mr. Neils and Ross-Hime still fail to identify where in Robonaut 2 a first linear actuator

is coupled to a base and subbase on opposing ends, and where a second linear actuator is

attached to a subbase and first effector base on opposing ends, as Claim 11 requires.

In its Infringement Claim Chart, Ross-Hime again identifies a multitude of structures as

comprising the “first linear actuator.” (See Pl.’s Resp., Ex. 3-1 at 2 (identifying: finger actuator

assemblies 26, actuator housing 38, end cap 68, splitter 72, motors 34, gear drives 36, ball screws

50, conduits 46, tension sensors 48, [base piece], ball nuts 52, and tendon housings 62 [extending

piece] as comprising the linear actuators)). In its brief, however, Ross-Hime states that Robonaut

2 “[has] linear actuators as designated by number 26 in the ‘941 Patent.” (Pl.’s Resp. at 14).

Ross-Hime concedes that “[t]he linear actuators in [Robonaut 2] are indeed fixedly attached to

lower arm 24.” (Id. at 16). It then identifies the tension sensor as the “coupling” between the

“base piece” end of the linear actuator and “base,” and the tendon terminator as the “coupling”

between the “extending piece” end of the linear actuator and subbase. (Pl.’s Resp., Ex. 3-1 at 2–

6). These arguments do not comport with the Court’s construction of “linear actuator.”

As explained above, the Court excluded separate structures, such as the tension sensor

and tendon terminator, from the construction of the term “linear actuator.” Ross-Hime Designs,

126 Fed. Cl. at 321. Moreover, the tension sensor and tendon terminator are both positioned

beyond the distal end of the extending piece of Robonaut 2’s linear actuators. Ross-Hime

acknowledges that Robonaut 2’s linear actuators are wholly contained in and affixed to, the

forearm structure. Thus, the actuators cannot possibly be said to be coupled between the “base”

on one end, and subbase on the opposing end, as Claim 11 requires. Ross-Hime does not attempt

to explain this non sequitur. Moreover, Ross-Hime fails to advance any argument regarding its

theory of infringement by Robonaut 2 under the doctrine of equivalents. As such, Ross-Hime has

failed to point to evidence of infringement of Claim 11 by Robonaut 2 sufficient to withstand the

United States’ motion.

Although it is not necessary to discuss Robonaut 2’s alleged infringement of Claim 11

any further, see Mas-Hamilton, 156 F.3d at 1211 (“[i]f even one limitation is missing or not met

as claimed, there is no literal infringement”), Ross-Hime faces the same problem with respect to

the last limitation in Claim 11 requiring “a second linear actuator coupled at one end thereof to

said subbase and coupled at an opposite end thereof to said first effector base.” The structures

Ross-Hime identifies as the subbase and first effector base are also positioned beyond the distal

end of the extending piece of Robonaut 2’s linear actuators, which Ross-Hime agrees are located

within the forearm. Consequently, Ross-Hime has failed to present evidence of infringement as

to Claim 11 of the ’962 Patent by Robonaut 2 that would preclude summary judgment.

In short, Ross-Hime cannot prove that at least one limitation of ’962 Patent Claim 11 is

met by Robonaut 2. As such, the United States is entitled to summary judgment of non-

infringement as to this claim. RCFC 56(a); see Mas-Hamilton, 156 F.3d at 1211 (“If even one

limitation is missing or not met as claimed, there is no literal infringement.”). In light of this

24

holding, the United States’ alternative argument that the Wauer Patent anticipates each and every

element of Claim 11 of the ’962 Patent, is moot.

2. ’962 Patent Claim 14

Independent Claim 14 recites a human thumb-like structure and teaches:

14. An articulated manipulating system for mounting on a base in a robotic

manipulator and capable of engaging selected objects, said system

comprising:

a plurality of shackles each having a pair of arms spaced apart by a recess

space with said arms being joined in a joining structure on one side of said

recess space;

a plurality of effector bases each rotatably mounted at a pivot location thereof

to and between said separate arms of a corresponding shackle so as to leave

a recess space between an end of that said effector base rotatably mounted to

said shackle and said joining structure thereof;

a fixed pedestal affixed to said base and having said joining structure of a

corresponding one of said plurality of shackles rotatably coupled thereto;

a moveable pedestal rotatably connected to said base and having said joining

structure of a corresponding one of said plurality of shackles rotatably

coupled thereto;

a pedestal linear actuator coupled at one end thereof to said base and coupled

at an opposite end thereof to said moveable pedestal to be capable of rotating

said moveable pedestal with respect to said base.

’962 Patent 27:56–28:10.

Focusing predominantly on the last limitation in Claim 14, the United States argues that

Robonaut 2 does not have “a pedestal linear actuator coupled at one end thereof to said base and

coupled at an opposite end thereof to said moveable pedestal to be capable of rotating said

moveable pedestal with respect to said base.” (Def.’s Mot. at 30). The United States repeats that

the entirety of each linear actuator in Robonaut 2 is located within and connected to the forearm

structure, and that the extending piece of each actuator is connected to tendons, which are

separate structures under the Court’s claim construction. (Id.). As such, it contends that Ross-

Hime cannot show any coupling between a pedestal linear actuator and a finger or thumb

segment. Furthermore, because the “base piece” of each actuator, as described in the Court’s

claim construction, is located in and affixed to the Robonaut 2 forearm, the United States argues

that “there is no ‘coupling’ of the ‘base piece’ of the finger and thumb linear actuators in

[Robonaut 2] to a ‘base’ that, in turn, is rotatably connected to a ‘moveable pedestal,’ as is

required in ’962 Claim 14.” (Def.’s Mot. at 31). Finally, the United States maintains that Ross-

Hime’s infringement claim chart as to Claim 14 is flawed for the same reasons that its claim

chart as to Claim 11 was flawed: it “identifies the tension sensor—a structure that is separate

from the linear actuator—as the base piece of the linear actuator and fails to show how the

identified linear actuator ‘extending piece’ is coupled to what it identifies as the moveable

pedestal.” (Id.).

25

Ross-Hime, again relying solely on Mr. Neils’ expert reports and, apparently, its

infringement claim charts, 14 notes that Mr. Neils “specifically opined [that Robonaut 2] does

literally have linear actuators as described in Claim 14.” (Pl.’s Resp. at 18). Based on this

reference, the Court understands Ross-Hime to be arguing literal infringement only, and not

infringement under the doctrine of equivalents. 15 According to Ross-Hime’s brief, Robonaut 2’s

linear actuators are “designated by number 26 in the ’941 Patent,” 16 and “base structure 34, or

the palm, of hand 18 as the claim base, and phalange 38A, or the thumb segment, as the movable

pedestal of the claim.” (Pl.’s Resp. at 18). Ross-Hime argues that, according to Mr. Neils,

because the ’941 Patent shows a tendon 90E connected to phalange 38A, and is used to open

pitch joint 42B, Robonaut 2 contains “a pedestal linear actuator coupled at one end thereof to

said base and coupled at an opposite end thereof to said moveable pedestal,” as Claim 14

requires.

In its Reply, the United States explains that Mr. Neils’ understanding of the ’941 Patent is

incorrect. (Def.’s Reply at 11). The Court agrees. The ’941 Patent provides: “Joint 42B rotatably

mounts phalange 38B to phalange 38A such that phalange 38B is selectively rotatable with

respect to phalange 38A about axis A2.” ’941 Patent 4:41–42. Figures 11 and 12 clearly show

that tendon 90E is connected to phalange 38B rather than phalange 38A:

14

Despite stating that “The Government’s position is incorrect, because the Government has

avoided using Plaintiff’s claim chart evidence, which establishes infringement, and for the

reasons that follow,” Ross-Hime proceeds to rely exclusively on Mr. Neils’ expert reply report,

which is copied verbatim and without quotation marks or other indication of where Mr. Neils’

opinions end and Ross-Hime’s arguments begin. Ross-Hime does not include a single citation or

reference to its infringement claim charts.

15

As explained above, Ross-Hime does not mention the doctrine of equivalents anywhere in its

brief.

16

The identification of Robonaut 2’s linear actuators in Ross-Hime’s brief is different than what

is stated in its infringement claim chart. (See Pl.’s Resp., Ex. 3-1 at 17 (citing the ’903 Patent and

identifying the linear actuators as being comprised of: finger actuator assemblies 26, actuator

housing 38, end cap 68, splitter 72, motors 34, gear drives 36, ball screws 50, conduits 46,

tension sensors 48, [base piece], ball nuts 52, and tendon housings 62 [extending piece])).

26

’941 Patent, Figs. 11, 12 (Def.’s Mot., Ex. P).

In fact, contrary to Mr. Neils’ arguments, Figures 11 and 12 do not show any tendon

connected to phalange 38A. The specification explains that tendon 90E is connected to phalange

38B, while the other four tendons, 90A–90D are connected to phalanges 38C and 38D. ’941

Patent 6:17–7:5. Thus, the ’941 Patent does not describe any tendon as being connected to

phalange 38A, as Mr. Neils claims. Consequently, Mr. Neils’ opinion in this regard is flawed and

provides no support for Ross-Hime’s contentions. As Ross-Hime relies solely on this opinion in

response to the United States’ motion, Ross-Hime has pointed to no evidence that establishes a

genuine dispute of material fact exists for trial.

To the extent that Mr. Neils impliedly advances an argument under the doctrine of

equivalents by opining the thumb links “must be rotatably connected to [the] actuator extending

piece ends” because “those links can have their angular relationships changed with respect to the

27

linear actuator extending piece straight line moving direction,” (Pl.’s Reply at 18), 17 the Court is

unpersuaded. The Court has explained that structures connected to the ends of linear actuators

are not part of the linear actuator. There is no dispute that the linear actuators in Robonaut 2

cause the finger segments to move. Actuators convert power into motion. Ross-Hime Designs,

126 Fed. Cl. at 315. Thus, if the existence of a linear actuator and moveable parts in a device

were sufficient to prove infringement of Ross-Hime’s patents, every device that contained a

linear actuator and had moveable parts would infringe. See Perkin–Elmer Corp., 822 F.2d at

1532 (“a court may not, under the guise of applying the doctrine of equivalents, erase a plethora

of meaningful structural and functional limitations of the claim on which the public is entitled to

rely in avoiding infringement.”).

Therefore, as the United States has carried its burden of pointing to specific ways in

which the accused device does not meet the claim limitations, and Ross-Hime has failed to

establish a genuine dispute of material fact as to infringement of Claim 14 by Robonaut 2,

summary judgment in favor of the United States must be granted.

C. Ancillary Issues

Several other issues were raised in the parties’ briefs that should be addressed. First is the

issue of the timing and sufficiency of Ross-Hime’s infringement claim charts and the United

States’ failure to provide Ross-Hime with a non-infringement claim chart. (See Def.’s Mot. at 6–

8; Pl.’s Resp. at 6 n.1; Def.’s Reply at 15). The United States argues that Ross-Hime’s updated

“final” infringement claim chart should be excluded because it was served nearly two months

after the March 14, 2017 deadline for Ross-Hime to provide its “[f]inal disclosure of asserted

claims and claim charts,” established in the Court’s Third Amended Scheduling Order, (ECF No.

229). In response, Ross-Hime blames the United States for this, explaining “Defendant’s counsel

in submitting revised scheduling orders to the Court, mistakenly dropped the deadline for

Plaintiff submitting its amended claim chart.” (Pl.’s Resp. at 6 n.1). However, the United States

did not base any arguments in its motion for summary judgment on “amended” portions of Ross-

Hime’s claim charts. For this reason, and given the Court’s holding above, the issue is moot.

Second, Ross-Hime alleges that the United States’ position in its motion for summary

judgment is contradicted by its discovery admissions. (Pl.’s Resp. at 10, 19–20). Ross-Hime

claims that the United States cannot rely on Defendant’s Exhibits I and L as evidence of the

operation of Robonauts 1 and 2 because, in its discovery responses, the United States denied that

the descriptions in Exhibits I and L accurately reflected the finger actuation systems in the

Robonauts. (Pl.’s Resp. at 10, 19–20). In response, the United States notes its numerous,

recurring objections to Ross-Hime’s request for admissions regarding these exhibits. (Def.’s

Reply at 14–15). As the United States correctly observes, Ross-Hime provides “no authority to

support its assertion that the responses to improper requests should cause Exhibits I and L to be

excluded from evidence.” (Id. at 15). Ross-Hime was free, as it did, to point out any perceived

17

Such a characterization is generous considering Mr. Neils’ reply report contains an entire

subsection dedicated to infringement of Robonaut 2 under the doctrine of equivalents, (See Pl.’s

Resp., Ex. 4 at 23–25), but the quoted language does not appear in that section of his reply

report. And, as far as the Court can discern, Ross-Hime does not cite to this section to support its

arguments. It does not appear that Mr. Neils addressed the doctrine of equivalents as to Robonaut

1 in his reply report.

28

contradiction in the United States’ argument but this does not mean the contradictory statements

or evidence must be excluded. Ross-Hime cites no authority for this contention and it is not the

role of the Court to find support where none is provided.

Third, Ross-Hime argues the United States’ motion for summary judgment must be

denied because “[t]he Government has submitted no sworn testimony by its engineers or expert

to describe the operation of the [Robonaut 2] finger and thumb linear actuators.” (Pl.’s Resp. at

10, 19–20). Ross-Hime quotes from RCFC 56(c)(1)(A) to argue that the United States was

required to support its motion with “depositions, documents, [ESI], affidavits, stipulations,

admissions, interrogatory answers, or other materials.” (Id.). However, if Ross-Hime had read all

of RCFC 56(c)(1), it would have discovered that subsections (A) and (B) are separated by an

“or.” The entire provision reads:

A party asserting that a fact cannot be or is genuinely disputed must support

the assertion by:

(A) citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence

of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact.

RCFC 56(c)(1) (emphasis added).

As explained in detail above, the United States’ motion was properly supported under

RCFC 56(c)(1)(B) because it pointed to the absence of evidence to support Ross-Hime’s

infringement contentions and pointed to the specific ways in which the Robonauts did not meet

the claim limitations. (See Def.’s Mot. at 4–6 (setting forth applicable legal standards and

quoting numerous cases interpreting the summary judgment standard)). Thus, Ross-Hime’s

argument in this regard is meritless.

Finally, in addition to its motion for summary judgment, the United States also filed a

motion in limine to exclude the testimony and reports of Ross-Hime’s expert, Mr. Theodore

Neils, at trial. (Def.’s Mot. in Lim., ECF No. 318). However, based on the Court’s holdings

above, this issue is moot.

IV. Conclusion

The United States has carried its burden under RCFC 56 of showing the absence of proof

concerning the alleged infringement of ’580 Patent Claims 1, 5, 14, and 15 and ’962 Patent

Claims 11 and 14 by Robonaut 1 and Robonaut 2. In response, Ross-Hime has failed to point to

specific facts showing a genuine dispute of material fact for trial. As such, the United States’

motion for summary judgment of non-infringement as to all disputed claims is hereby

GRANTED. In light of this holding, the United States’ alternative argument regarding invalidity

of ’962 Patent Claim 11 is DENIED AS MOOT. Specifically, the United States’ motion is:

• GRANTED as to alleged infringement of ’580 Patent Claim 5 by Robonaut 1;

29

• GRANTED as to alleged infringement of ’580 Patent Claims 1, 5, 14, and 15 by

Robonaut 2;

• GRANTED as to alleged infringement of ’962 Patent Claim 11 by Robonaut 2;

• GRANTED as to alleged infringement of ’962 Patent Claim 14 by Robonaut 2; and

• DENIED AS MOOT as to the United States’ invalidity argument of ’962 Patent Claim

11.

Finally, in light of these holdings, the United States’ Motion in Limine, (ECF No. 318), is

DENIED AS MOOT.

The parties are directed to file proposed redactions to this opinion within 14 days of the

date of this decision. 18 The Clerk is directed to enter judgment accordingly. Each side shall bear

its own costs.

IT IS SO ORDERED.

s/ David A. Tapp

DAVID A. TAPP, Judge

18

The parties did not propose any redactions to this opinion. Therefore, the Court has reissued

the opinion in its entirety.

30