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The Fondues and Don’ts of Certification Marks

by | Mar 16, 2023 |

The US Court of Appeals for the Fourth Circuit affirmed a summary judgment grant in favor of the opposers of a certification mark application for the trademark GRUYERE to designate cheese that originates in the Gruyère region of Switzerland and France. The Court found that the term “gruyere” is generic because consumers of cheese understand the term to refer to a category of cheese that can come “from anywhere.” Interprofession du Gruyere; Syndicat Interprofessionnel du Gruyere. v. U.S. Dairy Export Council; Atalanta Corporation; Intercibus, Inc., Case No. 22-1041 (4th Cir. March 3, 2023) (Gregory, Thacker, Rushing, JJ.)

In the United States, a certification mark is a type of trademark used to show consumers that particular goods or services, or their providers, have met certain standards. Unlike a typical trademark, a certification mark is not used by the owner of the mark (the certifier) but instead controls how others use the mark.

In an approach similar to the preceding certifiers of ROQUEFORT® and REGGIANO®, the Swiss Consortium Interprofession du Gruyère (IDG) and French consortium Syndicat Interprofessionnel du Gruyère believed that the term “gruyere” should only be used to label cheese produced in the Gruyère region of Switzerland and France. In 2010, IDG applied to the US Patent & Trademark Office (PTO) to register LE GRUYERE as a certification mark but was refused registration on grounds that “gruyere is a generic designation for cheese.” In 2013, the PTO granted IDG a certification mark registration for LE GRUYERE in a specific design form, paired with the word “Switzerland,” the letters “AOC” and a stylized Swiss cross. IDG undertook efforts to enforce the mark and sent letters to several US cheese retailers and manufacturers demanding that they cease labeling their non-Swiss cheeses as gruyere.

In 2015, IDG again attempted to register the term GRUYERE on its own as a certification mark. The U.S. Dairy Export Council, Atalanta Corporation and Intercibus melted together to throw a wedge in the process, opposing the application for the mark on grounds that “gruyere” was generic for cheese and, therefore, ineligible for protection as a certification mark. The Trademark Trial & Appeal Board (Board) found that the term “gruyere” was generic because cheese consumers understand it to be a designation for “a category within the genus of cheese that can come from anywhere.” IDG filed a complaint in the US District Court for the Eastern District of Virginia challenging the Board’s decision. Ultimately, the district court granted the opposers’ motion, finding that the factual record demonstrated that “gruyere” refers to a generic type of cheese without reference to the geographic region where the cheese is produced. IDG appealed.

The Fourth Circuit began by explaining that certification marks, like typical trademarks, include a bar on the registration of terms that are generic for the applied-for product or service category. The Court framed the genericness inquiry as whether “members of the relevant public primarily use or understand the term sought to be protected to refer to the genus of goods . [...]

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Charter Schools Aren’t Immune from Trademark Suits

by | Mar 16, 2023 |

The US Court of Appeals for the Fifth Circuit affirmed a district court’s dismissal of a trademark suit against a charter school operator and public school district in Texas but explained that the charter school was not automatically immune from lawsuits based on sovereign immunity. Springboards to Education, Inc. v. McAllen Indep. School District, Case Nos. 21-40333; -40334 (5th Cir. Mar. 8, 2023) (Smith, Duncan, JJ.) (Oldham, J., concurring).

Springboards sells products to school districts in connection with its Read a Million Words Campaign. The campaign incentivizes school children to read books through promises of induction into the Millionaires’ Reading Club and access to rewards such as t-shirts, backpacks and fake money. Springboards’s goods typically bear any combination of trademarks that the company registered with the US Patent & Trademark Office, including “Read a Million Words,” “Million Dollar Reader,” “Millionaire Reader” and “Millionaires’ Reading Club.”

Springboards filed a complaint for trademark infringement, trademark counterfeiting and false designation of origin against McAllen Independent School District (MISD), a public school district in Texas, and IDEA Public Schools, a nonprofit organization operating charter schools in Texas. Both MISD an IDEA moved to dismiss for lack of subject matter jurisdiction, arguing that they were arms of the state and thus entitled to sovereign immunity. They also moved for summary judgment for lack of infringement. The district court ruled that only IDEA enjoyed sovereign immunity and accordingly granted IDEA’s motion to dismiss but denied MISD’s. The district court granted MISD’s motion for summary judgment after concluding that Springboards could not establish that MISD’s program was likely to cause confusion with Springboards’s trademarks. Springboards appealed.

The Fifth Circuit began with the jurisdictional issue of whether IDEA and MISD enjoyed sovereign immunity. The Court explained that determining whether an entity is an arm of the state is governed by the Clark factors, which were set forth in the Fifth Circuit’s 1986 decision in Clark v. Tarrant County. Those factors are as follows:

  1. Whether state statutes and case law view the entity as an arm of the state
  2. The source of the entity’s funding
  3. The entity’s degree of local autonomy
  4. Whether the entity is concerned primarily with local, as opposed to statewide, problems
  5. Whether the entity has the authority to sue and be sued in its own name
  6. Whether the entity has the right to hold and use property.

The Fifth Circuit analyzed each of the factors and concluded that IDEA was not an arm of the state. The Court found that factors 1 and 3 favored sovereign immunity while factors 2, 4, 5 and 6 did not. The Court’s decision focused heavily on factor 2, explaining that the inquiry under factor 2 has two parts: the state’s liability in the event there is a judgment against the defendant, and the state’s liability for the defendant’s general debts and obligations. The district court had concluded that factor 2 weighed in favor of immunity because 94% of IDEA’s funding came from the state and federal sources. The [...]

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Little Weight Given to Conclusory Expert Declaration That Repeats IPR Petition Verbatim

by | Mar 2, 2023 |

The US Patent & Trademark Office Director affirmed and designated as precedential a Patent Trial & Appeal Board (Board) decision denying institution of an inter partes review (IPR) petition where the expert declaration presented conclusory assertions without underlying factual support and repeated verbatim the petitioner’s argument. Xerox Corp. v. Bytemark, Inc., IPR2022-00624 (PTAB Aug. 24, 2022) (Wood, Grossman, Tartal, APJs); Xerox Corp. v. Bytemark, Inc., IPR2022-00624 (Feb 10, 2023) (Vidal, Dir.)

Bytemark owns a patent directed to a method and system for distributing electronic tickets. According to the patent, a user can procure and store an electronic ticket on a device such as a mobile phone, and when the user presents the ticket, the ticket taker can verify the ticket by inspecting a visual object that a human can perceive without a machine scan. In addition to using a validating visual object, the patent teaches data integrity checking to ensure that the ticket data and the software managing that ticket data on the user’s device has not been altered improperly. As to the data integrity concept, the claims of the patent recite a server that is configured to “store in a data record associated with the user account a data value indicating the fraudulent activity” (fraud limitation).

Xerox filed an IPR petition challenging certain claims of the patent as obvious over the Terrell prior art reference in combination with various secondary references. Xerox argued that Terrell disclosed that after fraudulent activity is detected, “the purchaser of the ticket could be blocked from further use of the system or pursued in respect of their potential fraud.” Xerox asserted that a skilled artisan would understand that such blocking would require recording the blocking in a data record associated with that user’s account, and would find it obvious that blocking the account of the purchaser from further use of the system would include storing a data value indicating the fraudulent activity in a data record associated with the user account.

Bytemark responded that Terrell, at most, taught blocking a ticket purchaser from further use of the Terrell system based on potential fraud, but nowhere indicated that this would be achieved by using a data value indicating fraudulent activity, as opposed to some other manner of blocking a user, such as deleting the user’s account or reporting the user for fraud. Bytemark further argued that Xerox’s argument that a skilled artisan would find the fraud limitation obvious was conclusory and an improper attempt to use a skilled artisan’s common knowledge to supply a wholly missing claim limitation without evidentiary support.

The Board agreed with Bytemark, finding that Xerox did not provide sufficient evidence or persuasive reasoning to support either of Xerox’s arguments. The Board explained that Terrell taught blocking the purchaser rather than the account of the purchaser and that it was far from clear that blocking the purchaser would “require” recording the blocking in a record in the purchaser’s account, as opposed to deleting the purchaser’s account altogether. The Board noted that the [...]

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When It Comes to Claim Construction, Prosecution History and Specification Rule

by | Feb 23, 2023 |

Addressing claim constructions across two patents that ultimately led to noninfringement findings by a district court, the US Court of Appeals for the Federal Circuit affirmed one construction because it was supported by the prosecution history but reversed another because it was unsupported by the specification. SSI Techs., LLC v. Dongguan Zhengyang Elec. Mech. Ltd., Case Nos. 21-2345, 22-1039 (Fed. Cir. Feb. 13, 2023) (Reyna, Bryson, Cunningham, JJ.)

SSI owns two patents directed to sensors for determining the characteristics of fluid in a container such as a fuel tank. One patent, referred to as the transducer patent, describes an exemplary sensor system containing a “level” transducer and a “quality” transducer. The two transducers use ultrasonic sound waves and time of flight to determine both a level of fluid in a given tank and a quality (i.e., concentration of diesel exhaust fluid). The other patent, referred to as the filter patent, describes a similar system but attempts to address the problem of erratic measurement results that may occur because of air bubbles embedded in the fluid. This patent claims a “filter” covering the sensing area that substantially prohibits gas bubbles from entering the sensing area.

Dongguan Zhengyang Electronic Mechanical (DZEM) produces systems that determine the quality and volume of diesel exhaust fluid that are used in emission-reduction systems for diesel truck engines. SSI accused DZEM of infringing both patents. In the district court action, DZEM brought a motion for summary judgment of noninfringement based on the court’s construction of certain terms that appear in the asserted claims. With reference to the transducer patent, the claims recite the need to “determine whether a contaminant exists in the fluid based on . . . a dilution of the fluid [] detected while the measured volume of the fluid decreases.” The district court determined that this claim element required that the contaminant determination actually consider the measured volume of the fluid. The district court predicated its determination on the prosecution history, having found that this term was amended to include the disputed term and that the applicant’s intention was to incorporate the specific error-detection capability recited in the specification. The parties had previously agreed that the DZEM products did not base the contamination determination on any consideration of the measured volume. As a result, the district court granted DZEM’s motion for summary judgment of noninfringement on the transducer patent.

Regarding the filter patent, the district court adopted DZEM’s construction of the term “filter,” which was “a porous structure defining openings, and configured to remove impurities larger than said openings from a liquid or gas passing through the structure.” DZEM’s accused sensors includes a rubber cover with four apertures. The district court found that the rubber cover was not “porous” because the apertures were “relatively large” when compared with the disclosed embodiments in the specification. As a result, the court granted DZEM’s motion for summary judgment of noninfringement on the filter patent. SSI appealed.

SSI challenged both constructions. Regarding the transducer patent, SSI argued that [...]

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Things May Be Bigger in Texas, but Not Necessarily More Convenient

by | Feb 16, 2023 |

The US Court of Appeals for the Federal Circuit granted a mandamus petition after analyzing the Fifth Circuit’s public and private interest factors for transfer motions and ordered the US District Court for the Western District of Texas to transfer a case to the petitioner’s venue. In re Google LLC, Case No. 23-101 (Fed. Cir. Feb. 1, 2023) (Lourie, Taranto, Stark, JJ.).

Jawbone Innovations, LLC, had an eventful 2021:

  • February: Incorporated in Texas
  • May: Obtained ownership of nine patents (all directed to technologies behind the eponymous product line that liquidated in July 2017)
  • August: Rented office space in Waco, Texas
  • September: Asserted the nine patents it just acquired against Google in the Western District of Texas–Waco Division.

Google moved to transfer the dispute to the US District Court for the Northern District of California. That district was where (1) the accused products (earbuds, smartphones, speakers, displays and software) were researched, designed and developed; (2) the asserted technology was developed, and the asserted patents were prosecuted; and (3) the witnesses and sources of proof were primarily located. In contrast, no witnesses or sources of proof were located in the Western District of Texas. Moreover, Jawbone Innovations had no personnel in Waco nor activities related to the accused technology in the whole of Texas.

Judge Albright nevertheless denied Google’s transfer motion, weighing the Fifth Circuit’s four public interest factors and four private interest factors and finding that the transferee venue failed to meet the Fifth Circuit’s “clearly more convenient” standard. With the district court finding half of the eight factors not favoring either the transferee or the transferor, its holding boiled down to a ruling that considerations of “court congestion” and “judicial economy” (found to favor the transferor) outweighed considerations of “unwilling witness compulsion” and the “cost of attendance for willing witnesses” (found to favor the transferee).

Google petitioned the Federal Circuit for a writ of mandamus. The Court, applying the Fifth Circuit’s eight factor test, identified clear error in the district court’s analysis of five of the factors.

First: Addressing the “cost of attendance for willing witnesses” factor, the Federal Circuit found error in the district court’s conclusion that this factor only slightly favored transfer. Rather, the Court explained that this factor “weigh[ed] heavily in favor of transfer” because the transferee venue was clearly more convenient for potential witnesses, especially Google employees with technical, marketing and financial knowledge of the accused products. The error was localized to how the district court considered a Google declaration identifying at least 11 potential employee witnesses (all of whom were located in the transferee venue) and Jawbone Innovations’ assertions that the declaration omitted three potentially relevant Texas-based employees. The Court noted that while this 11 to three imbalance alone was sufficient to settle this factor, the district court’s error went further, finding Google’s declaration unreliable and less worthy of consideration because of the alleged omissions. The Federal Circuit determined this was error on error because the district court improperly ignored that the depositions [...]

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PTO Introduces Intellectual Property Identifier Tool

by | Jan 26, 2023 |

On January 18, 2023, the US Patent & Trademark Office announced the launch of its new Intellectual Property (IP) Identifier tool. This tool is designed for those who are less familiar with IP and assists users in determining whether they have IP and identifies what IP protections are available to support their business, invention or brand. The tool also briefly explains patents, trademarks, copyrights and trade secrets.

The IP Identifier tool comprises two modules: The Basic IP Identifier and the Advanced IP Identifier. The Basic IP Identifier module consists of six questions that allow users to quickly identify the type of IP they should protect. The Advanced IP Identifier module explains the specific types of IP and includes links to additional resources, including how to file an application for protection. A third module, Managing Your IP Assets, is currently under development.



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That Stings: Consent to Jurisdiction Must Be Effective at Filing to Invoke Fed. R. Civ. P. 4(k)(2)

by | Jan 19, 2023 |

The US Court of Appeals for the Federal Circuit, on petition for writ of mandamus, vacated the district court’s transfer order and remanded the transfer to be considered under the clarified parameters of Fed. R. Civ. P. 4(k)(2) and 28 U.S.C. § 1404. In re: Stingray IP Solutions, LLC, Case No. 2023-102 (Fed. Cir. Jan. 9, 2023) (Lourie, Taranto, Stark, JJ.)

Stingray filed patent infringement suits in the US District Court for the Eastern District of Texas against TP-Link, a company headquartered and organized in China. TP-Link moved to transfer to the Central District of California (CDCA) under 28 U.S.C. § 1406 citing an alleged lack of personal jurisdiction that Rule 4(k)(2) did not cure because TP-Link would be amenable to suit in the CDCA. TP-Link also moved for transfer under 28 U.S.C. § 1404(a). The district court granted the motion to transfer under § 1406 based on the rationale that TP-Link was amenable to suit in the CDCA and relying on affirmative reservations made by TP-Link that the CDCA had proper jurisdiction and venue. The district court denied TP-Link’s § 1404(a) motion as moot following the transfer. Stingray filed a mandamus petition asking the Federal Circuit to determine whether TP-Link’s unilateral, post-suit consent to personal jurisdiction in another state defeated application of Rule (4)(k)(2).

The Federal Circuit first determined that mandamus review was appropriate in this case in order to resolve the question of whether a defendant can defeat personal jurisdiction under Rule 4(k)(2) by unilaterally consenting to suit in a different district, a jurisdictional question that has divided district courts. Some district courts have held that personal jurisdiction cannot be established under Rule 4(k)(2) if a defendant states that it is amenable to suit in another state, while others have concluded that defendants must do more than simply designate an alternative forum in order to avoid application of Rule 4(k)(2).

Rule 4(k)(2) was originally introduced to close a loophole where non-resident defendants without minimum contact with any individual state suitable to support jurisdiction, but with sufficient contacts with the United States as a whole, were able to escape jurisdiction in all 50 states. The rule essentially provided that under federal claims, serving a summons or filing a waiver of service could establish personal jurisdiction if the defendant was not subject to a state’s general jurisdiction and exercising jurisdiction would be consistent with the US Constitution and laws.

Here, the case focused on the “negation requirement” of Rule 4(k)(2) where the defendant is not subject to any jurisdiction of a state court. This case addressed the question of whether a defendant’s post-suit, unilateral consent to suit in another state prevents the requirement that a defendant is not subject to a state’s general jurisdiction from being satisfied.

The Federal Circuit determined that the “negation requirement” requires defendants to identify a forum where jurisdiction would have been proper at the time of filing, regardless of consent. The Court determined that therefore a defendant cannot use a “unilateral statement of consent” to [...]

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Dictionaries Don’t Know Best: The Intrinsic Record Prevails (Again)

by | Jan 19, 2023 |

The US Court of Appeals for the Federal Circuit addressed the tension between the intrinsic and extrinsic record in claim construction, holding that the intrinsic record should be relied on first. The Court therefore reversed a district court finding of indefiniteness based on dictionary definitions and expert testimony. Grace Instrument Industries, LLC v. Chandler Instruments Company, LLC, Case Nos. 21-2370; -2370 (Fed. Cir. Jan. 12, 2023) (Chen, Cunningham, Stark, JJ.)

Grace owns a patent for a liquid pressurized viscometer used commonly to test the viscosity of drilling fluid that is used to drill oil wells. Grace’s viscometer uses an “enlarged chamber” between a lower chamber and a pressurization fluid inlet. According to the patent specification, this enlarged chamber was designed to reduce the measurement error in prior viscometer models that was caused by the mixing of sample fluid and pressurization fluid or by friction emanating from a seal in the viscometer. Within the lower chamber of the patented viscometer, there is a rotor having a “means for driving said rotor to rotate.”

Grace sued Chandler, claiming that Chandler infringed Grace’s viscometer patent. During claim construction, the district court found that the term “enlarged chamber” was indefinite, and that because it was a “term of degree,” it must be compared against something objective. The district court entered its final judgment in favor of Chandler. Grace appealed.

The Federal Circuit reversed, explaining that the “enlarged chamber[’s]” size did not need to be compared against any baseline object, but rather needed to be “large enough to accomplish a particular function.” The Court relied on the specification, which explained that the viscometer described in the patent reduced the mixing of sample fluid and pressurization fluid that was common in older viscometer models by using an “enlarged chamber.” The Court also cited the prosecution history, where the applicant explained that the invention solved a “long lasting problem” by reducing the measurement error caused by the friction of the seal or mixing of the fluids in older viscometer designs. Thus, the Court reasoned that a person of ordinary skill in the art would understand that the “enlarged chamber” must be large enough to prevent the mixing of the pressurization fluid and sample fluid to avoid the measurement errors associated with prior art viscometers.

Chandler argued that the term “enlarged chamber” was not a term of art. The Federal Circuit agreed but explained that “the intrinsic record sufficiently guides a skilled artisan as to the meaning of the term” as used in the patent. The Federal Circuit found that the district court erred in relying on a dictionary definition (extrinsic evidence) to contradict the meaning of the term found within the intrinsic record. The specification’s instructions for the meaning of a claim term should prevail over extrinsic evidence. Rebuffing Chandler’s argument, the Court explained that the specification does not need to explicitly define the claim term to govern the interpretation of that term.

The Federal Circuit remanded the case to the district court to reconsider indefiniteness in [...]

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More Delays: Appeal Dismissed under Collateral Order Doctrine

by | Jan 12, 2023 |

The US Court of Appeals for the Federal Circuit dismissed a patent holder’s interlocutory appeal for lack of jurisdiction under the collateral order doctrine. Modern Font Applications LLC v. Alaska Airlines, Inc., Case No. 21-1838 (Fed. Cir. Dec. 29, 2022) (Reyna, Cunningham, JJ.) (Newman, J., dissenting).

Modern Font Applications (MFA) is a nonpracticing entity that holds the exclusive license to a patent disclosing a method for operating systems to read and display nonstandard fonts. In 2019, MFA sued Alaska Airlines in district court for patent infringement. During the proceeding, Alaska Airlines designated portions of its source code files as confidential information for attorneys’ eyes only under the district court’s standing protective order. MFA moved to allow its in-house counsel to access the source code, and Alaska Airlines moved to keep it protected. The district court denied MFA’s motion and granted Alaska Airlines’ motion, finding that the source code amounted to a trade secret and MFA’s in-house attorney was properly excluded as a “competitive decisionmaker.” MFA sought interlocutory appeal of the order.

The Federal Circuit found that it lacked jurisdiction to review the discovery order. The Court explained that US Congress holds appellate courts to the final judgment rule, which states that decisions are only appealable if they end disputes on the merits, leaving nothing but execution of the judgment. A “practical construction” of this rule is the collateral order doctrine, which allows appellate review of a “small class” of attendant rulings. To qualify for review under this doctrine, a decision must be “conclusive”; address an important question, separate from the case’s merits; and be such that an appeal of the final judgment would not encompass a review of the decision at issue. The Federal Circuit stressed that the Supreme Court of the United States “has repeatedly emphasized the limited scope” of this doctrine.

The Federal Circuit found that MFA’s appeal failed the third prong of the collateral order doctrine. The Court noted that across appellate jurisdictions, pretrial discovery orders almost always fail this prong because review of final judgments can usually adequately address discovery issues. MFA argued that dismissing its appeal would prejudice MFA both financially and by eliminating its key litigation strategists and that the district court’s error would not be sufficient to overturn a final adverse judgment. The Court was not persuaded, noting that any financial harm was speculative, and that MFA could hire outside counsel or experts instead of relying on its in-house attorney. The Court also reiterated that to merit review under the collateral order doctrine, the issue must be “effectively unreviewable” on appeal, and the likelihood of an appellant’s success is irrelevant. The Court also found that MFA’s appeal failed the second prong because the exclusion of MFA’s attorney was too entangled with the ultimate outcome of the case to be considered an issue “separate” from the case. Because MFA failed two of three collateral order doctrine prongs, the Court did not address the first prong and dismissed the appeal for lack of jurisdiction.

In [...]

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Challenging Inventorship on Summary Judgment? Put a Cap on It

by | Jan 5, 2023 |

The US Court of Appeals for the Federal Circuit, citing a dispute as to material facts, held that a factfinder could reasonably conclude that an alleged joint inventor failed to sufficiently contribute to inventing the claimed technologies and thus reversed a district court order granting summary judgment of invalidity based on failure to join an inventor. Plastipak Packaging, Inc. v. Premium Waters, Inc., Case No. 21-2244 (Fed. Cir. Dec. 19, 2022) (Newman, Stoll, Stark, JJ.)

Plastipak sued Premium Waters, asserting 12 patents directed in part to the neck portions of lightweight plastic containers and preforms. These neck portions include a dispensing opening, a tamper-evident formation (TEF) that indicates if the container has been opened and a support flange/ring to facilitate manufacturing handling:

The patents list Richard Darr and Edward Morgan as inventors. Premium Waters countered that the patents should have included a third co-inventor, Alessandro Falzoni, an employee of another company with whom Darr and Morgan had collaborated on a project involving a design that included a neck portion, a specialty closure and a discontinuous TEF. Premium Waters moved for summary judgment of invalidity on the theory that the failure to include Falzoni as a joint inventor rendered the patent invalid, contending that Falzoni contributed the following to the invention:

  • A discontinuous (as opposed to continuous) TEF that is claimed by five of the asserted patents
  • A neck portion with only 0.580 inches or less separating its dispensing opening from its support flange/ring’s lower surface (the X dimension, as shown in the diagram above) that is claimed by the other asserted patents.

Plastipak contended that the asserted inventors were the sole inventors and that discontinuous TEFs (Falzoni’s alleged contribution) were merely state-of-the-art.

In granting the motion for summary judgment, the district court observed that Falzoni was “at least” a joint inventor because he had disclosed to one of the named inventors a neck finish measuring less than 0.580 inches with a discontinuous TEF in the form of an image of a 3D model that “constituted clear and convincing evidence of Falzoni’s disclosure, leaving ‘no doubt’ that the image ‘contributed significantly to the conception of a complete neck finish.’”

That model’s support ring lacked a lower surface, however, and Plastipak argued that without a lower surface the 3D model’s X dimension was undeterminable.

Plastipak also argued that Falzoni’s email circulating the 3D model stated that “[t]he area below the neck support ring has been left undefined” and seemingly invited the named inventor (Darr) to finalize it. Darr did so and, on the same day, emailed Falzoni a schematic depicting a support ring with a lower surface and a 0.591-inch X dimension.

Falzoni testified that while he calculated that the model had a ~0.563-inch X dimension, that calculation was based on “a reasonable indication” of where the support ring’s lower surface should be, and that the absence of an [...]

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