Case: 20-1035    Document: 53      Page: 1   Filed: 09/24/2020




         NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

   JOHN BEAN TECHNOLOGIES CORPORATION,
               Plaintiff-Appellant

                              v.

            MORRIS & ASSOCIATES, INC.,
              Defendant-Cross-Appellant
               ______________________

                   2020-1035, 2020-1081
                  ______________________

    Appeals from the United States District Court for the
 Western District of Arkansas in No. 2:15-cv-02211-PKH,
 Judge P. K. Holmes III.
                 ______________________

                Decided: September 24, 2020
                  ______________________

     GARY D. MARTS, JR., Wright, Lindsey & Jennings LLP,
 Little Rock, AR, argued for plaintiff-appellant. Also repre-
 sented by RICHARD BLAKELY GLASGOW.

     NORMAN ANDREW CRAIN, Thomas Horstemeyer LLP,
 Atlanta, GA, argued for defendant-cross-appellant. Also
 represented by DAN GRESHAM.
                 ______________________
Case: 20-1035     Document: 53     Page: 2    Filed: 09/24/2020




 2     JOHN BEAN TECHNOLOGIES CORP.   v. MORRIS & ASSOCIATES,
                                                         INC.


     Before PROST, Chief Judge, LINN and TARANTO, Circuit
                           Judges.
 TARANTO, Circuit Judge.
      John Bean Technologies Corp. brought this action
 against Morris & Associates, a rival in the business of sup-
 plying equipment to poultry processors. John Bean asserts
 that Morris engaged in false patent marking, false adver-
 tising, deceptive trade practices, and unfair competition
 with respect to Morris’s IntraGrill auger chiller and Mor-
 ris’s COPE (Continuous Online Pathogen Eliminator) de-
 contamination tanks. The key allegation of the complaint
 is the asserted falsity of Morris’s representations, in prod-
 uct markings or advertisements, that the Morris products
 at issue are covered by three Morris patents, U.S. Patent
 Nos. 6,308,529, 7,470,173, and 7,588,489.
     The district court granted summary judgment to Mor-
 ris on John Bean’s claims involving Morris’s auger chiller
 on the ground that there was insufficient evidence to allow
 a reasonable factfinder to find that John Bean had been
 competitively injured by the challenged conduct. We affirm
 that ruling. The district court also granted summary judg-
 ment rejecting John Bean’s claims involving Morris’s de-
 contamination tanks. We affirm that ruling as well.
                               I
     John Bean and Morris manufacture and distribute
 poultry-processing equipment. Morris sells auger chillers
 named “IntraGrill” and decontamination tanks named
 “COPE.” Morris marks its IntraGrill auger chiller as pa-
 tented under the ’529 patent. Morris marks its COPE prod-
 ucts as patented under the ’173 and ’489 patents.
     John Bean sells auger chillers named “FATCAT.” John
 Bean’s predecessor, Cooling & Applied Technology, Inc.
 (CAT), formerly sold decontamination tanks named “Kill-
 CAT,” but those sales ceased after CAT agreed to an injunc-
 tion, entered on December 19, 2011, that resolved a case
Case: 20-1035      Document: 53         Page: 3    Filed: 09/24/2020




 JOHN BEAN TECHNOLOGIES CORP.         v. MORRIS & ASSOCIATES,      3
 INC.


 brought by Morris against CAT alleging infringement of
 the ’173 patent. See Morris & Assocs., Inc. v. Cooling &
 Applied Tech., Inc., No. 5:09-CV-00023-BR, ECF Nos. 135,
 136 (E.D.N.C. June 29, 2011). 1 The 2011 injunction pro-
 hibits CAT, and now John Bean, “from making, using, of-
 fering to sell, selling, or importing into the United States
 its KillCAT pathogen reduction product” or “another prod-
 uct that infringes claims 1, 2, 5–10, 12, and 17 of the ’173
 patent.”

’529 patent, which is titled “Poultry Chiller with
 Open Auger,” describes certain equipment for use in
 chilling poultry carcasses during processing for packaging
 for the retail market. ’529 patent, col. 1, lines 8–13. The
 equipment at issue is an “auger chiller,” which is an open-
 top, trough-like tank filled with cold water moving in one
 direction and a horizontally positioned auger—helix-
 shaped, with blades (also called “flights”)—that moves car-
 casses through the water in the opposite direction.

13–16;

52–57;

also J.A.
 1162; J.A. 1165. The auger’s blades may contain openings
 (called water passages) to ease the water flow. ’529 patent,
 Abstract;

24–31; see J.A. 1162–66.
     Morris advertises its IntraGrill auger chiller as pa-
 tented. For example, Morris’s website states: “The pa-
 tented IntraGrill flights in Morris & Associates auger
 chillers significantly enhance[] water flow . . . . This pa-
 tented design provides a path for cold water to flow through
 the auger flights and into the bird pack.” J.A. 1165; see also


     1    John Bean acquired CAT after CAT filed the pre-
 sent case, and John Bean was then substituted as the
 plaintiff. We hereafter refer to CAT as John Bean.
Case: 20-1035    Document: 53     Page: 4    Filed: 09/24/2020




 4    JOHN BEAN TECHNOLOGIES CORP.   v. MORRIS & ASSOCIATES,
                                                        INC.


 J.A. 1162. Morris’s website also says: “In other systems,
 water circulates only around the shaft and through a nar-
 row gap between the auger flights and the tank wall . . . ,
 which causes water to back up, reduces flow rates and al-
 lows cold water to channel through the chiller without cir-
 culating around the individual birds.” J.A. 1166.
                              2
     The ’173 and ’489 patents, which are titled “Post Chill
 Decontamination Tank,” share a specification. They de-
 scribe a decontamination tank that cleans poultry during
 processing. ’173 patent, col. 2, lines 22–25. The tank uses
 antimicrobial liquid and a paddle system—which may re-
 semble a Ferris wheel—to move the birds through the an-
 timicrobial liquid in the tank.

9–36.
     The parties agree that, for purposes of this appeal,
 claim 7 of the ’173 patent and claim 10 of the ’489 patent
 are representative. Claim 7 of the ’173 patent recites:
        A post chill decontamination tank assembly for
     treating and reducing microbial contamination of
     poultry carcasses received from a poultry chiller,
     the poultry chiller having a liquid capacity for
     chilling poultry carcasses and for containing a liq-
     uid solution of water and chemicals in a chemical
     concentration for reducing the contamination of the
     poultry carcasses in which the poultry carcasses
     were immersed as the poultry carcasses pass
     through the chiller, said post chill decontamination
     tank assembly comprising:
           a tank having a smaller liquid capacity
        than the liquid capacity of the poultry
        chiller for holding an antimicrobial bearing
        liquid of different content than the liquid
        solution in the poultry chiller, for further
        reducing the microbial contamination on
        the surfaces of the poultry carcasses, said
Case: 20-1035    Document: 53      Page: 5    Filed: 09/24/2020




 JOHN BEAN TECHNOLOGIES CORP.    v. MORRIS & ASSOCIATES,    5
 INC.


         tank including upper opening means for re-
         ceiving the poultry carcasses in said tank
         and for discharging the poultry carcasses
         from said tank,
           a plurality of paddles mounted in said
         tank about a central axis within said tank
         and extending at different angles about the
         central axis,
            power means connected to said plurality
         of paddles for revolving said plurality of
         paddles about the central axis in said tank
         and in sequence past the opening means of
         said tank for urging poultry carcasses in se-
         quence about said tank and toward the
         opening means, and
            said paddles each being sloped toward
         the opening means when reaching the
         opening means for urging the carcasses out
         of said tank.
     For present purposes, claim 10 of the ’489 patent is ma-
 terially identical to claim 7 of the ’173 patent except that
 claim 10 has an additional limitation: “means connected to
 said tank for supplying to said tank an antimicrobial-bear-
 ing liquid of different antimicrobial content than the liquid
 in the poultry chiller.”
     Morris sells three COPE products (or groups of prod-
 ucts) that it marks as patented under the ’173 and ’489 pa-
 tents: (1) Pre-COPE; (2) COPE FC (or COPE Final); and (3)
 Parts COPE. J.A. 1262–63; J.A. 1265–66; J.A. 1268–69.
 Morris markets the several COPE products somewhat dif-
 ferently, advertising its Pre-COPE tanks for use before
 chilling, its COPE FC tanks for use after chilling, and its
 Parts COPE tanks for use with bird “parts,” such as wings
 and breasts.

in marketing, how-
 ever, the record evidence leaves no genuine dispute that all
Case: 20-1035     Document: 53      Page: 6     Filed: 09/24/2020




 6    JOHN BEAN TECHNOLOGIES CORP.     v. MORRIS & ASSOCIATES,
                                                          INC.


 the products can be used the same ways relevant to this
 case—most particularly, can be located just after the
 chiller in the processing line. See, e.g., J.A. 3231; J.A. 3248;
 J.A. 3260.
     Morris also advertises its COPE products as patented.
 For example, its website says: “The patented COPE deliv-
 ers effective pathogen control for boneless and bone-in
 parts and products destined for mechanical separation.”
 J.A. 1175. The website also states that the product is an
 “[e]xclusive, patented pathogen control innovation from
 Morris[.]” J.A. 1176.
                                B
     About four years after the 2011 injunction was issued
 in the earlier action, John Bean sued Morris for false mark-
 ing under 35 U.S.C. § 292(b), false advertising under 15
 U.S.C. § 1125, unfair and deceptive trade practices under
 N.C. Gen. Stat. Ann. § 75-16 and Ark. Code Ann. §§ 4-88-
 107, 4-88-113(f)(2), and unfair competition under Arkansas
 common law. Each of the asserted claims involves both
 Morris’s IntraGrill auger chiller and its COPE decontami-
 nation tanks.
     About a month later, Morris moved to dismiss all of
 John Bean’s causes of action for failure to state a claim.
 The district court denied the motion. See Cooling & Ap-
 plied Tech., Inc. v. Morris & Assocs., Inc., No. 2:15-CV-
 02211, 

(W.D. Ark. Dec. 21, 2016). It
 ruled, in particular, that John Bean had adequately
 pleaded competitive injury from false marking.

The district court also ruled that the Patent Act’s false-
 marking statute neither precluded John Bean’s false-ad-
 vertising cause of action nor preempted John Bean’s state-
 law causes of action.

     On March 1, 2017, with the case name changed (be-
 cause of John Bean’s substitution for CAT), the district
 court entered an “Interim Scheduling Order” setting the
Case: 20-1035     Document: 53      Page: 7     Filed: 09/24/2020




 JOHN BEAN TECHNOLOGIES CORP.     v. MORRIS & ASSOCIATES,      7
 INC.


 close of discovery for 81 days after it ruled on claim con-
 struction. John Bean Techs. Corp. v. Morris & Assocs., Inc.,
 No. 2:15-CV-02211, ECF No. 46 at 2 (W.D. Ark. Mar. 1,
 2017). About seven months later, but before the court’s
 claim-construction decision, Morris moved for a protective
 order to stop John Bean’s discovery requests, directed at
 Morris itself, for sales and financial information involving
 Morris’s IntraGrill auger chiller “until [John Bean] pro-
 vides a factual basis . . . that at least one sale of Morris In-
 traGrill auger chiller proximately caused an injury to”
 John Bean.

at 1 (Oct. 26, 2017). Soon after,
 the district court granted Morris a protective order because
 John Bean’s requests were “disproportionate,” given that
 John Bean had been “well aware” that it had “to produce
 evidence that it was proximately harmed by the alleged
 false marking.” John Bean Techs. Corp. v. Morris & As-
 socs., Inc., No. 2:15-CV-02211, 

, at *1
 (W.D. Ark. Dec. 13, 2017). The district court “further or-
 dered that Morris file a motion for partial summary judg-
 ment on John Bean’s false marking claims with respect to
 the IntraGrill auger chiller.”

     In early 2018, Morris moved for summary judgment
 against John Bean’s claims concerning the IntraGrill for
 lack of evidence of competitive injury caused by the alleg-
 edly false representations that the IntraGrill comes within
 the ’529 patent. In response, John Bean filed declarations
 asserting that Morris’s “advertising of its competing prod-
 uct—the IntraGrill—as being patented” had caused Perdue
 Farms to impose certain costs on John Bean and arguing
 that further third-party discovery was needed before con-
 sidering summary judgment. J.A. 2764, ¶ 11; see also J.A.
 2740–43; J.A. 2745–48. In ruling on the summary-judg-
 ment request, however, the district court rejected John
 Bean’s declarations and postponement argument. John
 Bean Techs. Corp. v. Morris & Assocs., Inc., No. 2:15-CV-
 02211, 

, at *5, *6 (W.D. Ark. June 19,
 2018). Because John Bean lacked evidence of the required
Case: 20-1035    Document: 53      Page: 8   Filed: 09/24/2020




 8    JOHN BEAN TECHNOLOGIES CORP.   v. MORRIS & ASSOCIATES,
                                                        INC.


 injury caused by the alleged wrong, the district court
 granted Morris summary judgment on all causes of action
 involving its auger chiller.

      Litigation proceeded on the decontamination-tank part
 of the case. In December 2018, the district court construed
 various terms in claim 7 of the ’173 patent and claim 10 of
 the ’489 patent. It adopted an agreed-upon construction for
 the “upper opening-means” limitation, and it rejected con-
 structions proposed by John Bean for several terms rele-
 vant here. See John Bean Techs. Corp. v. Morris & Assocs.,
 Inc., No. 2:15-CV-02211, 

(W.D. Ark. Dec.
 11, 2018).
     After claim construction but before expert discovery,
 Morris moved for summary judgment on the claims involv-
 ing the COPE decontamination tanks, arguing that the rec-
 ord required the finding that the Morris products fall
 within the representative claims, thus defeating John
 Bean’s essential contention that Morris’s representations
 were false. The district court granted the motion. John
 Bean Techs. Corp. v. Morris & Assocs., Inc., No. 2:15-CV-
 02211, 

(W.D. Ark. Sept. 6, 2019). Among
 other rulings, the district court determined that the inlet
 and outlet chutes in Morris’s COPE products meet the “up-
 per opening means” limitation as structural equivalents.

The district court also concluded that Morris’s
 COPE products could be placed after a chiller, meeting the
 functional claim limitations at issue.

The court
 dismissed all causes of action with prejudice and entered
 final judgment.
     John Bean timely appealed. Morris filed a conditional
 cross-appeal on preclusion and preemption. We have juris-
 diction under 28 U.S.C. § 1295(a)(1).
                              II
    We apply the regional circuit’s law for procedural is-
 sues not unique to patent law and apply our law for issues
Case: 20-1035    Document: 53       Page: 9   Filed: 09/24/2020




 JOHN BEAN TECHNOLOGIES CORP.     v. MORRIS & ASSOCIATES,   9
 INC.


 involving substantive patent law. In re ZTE (USA) Inc.,
 

, 1012 (Fed. Cir. 2018). We review the dis-
 trict court’s grant of summary judgment de novo and its
 admissibility and exclusion rulings for abuse of discretion.
 Jain v. CVS Pharmacy, Inc., 

, 758, 759 (8th
 Cir. 2015); Vanderberg v. Petco Animal Supplies Stores,
 Inc., 

, 702 (8th Cir. 2018).
                              A
      We start with John Bean’s arguments about Morris’s
 IntraGrill auger chiller. For all five causes of action as-
 serted by John Bean—false patent marking, false advertis-
 ing, and three state-law wrongs—liability regarding the
 IntraGrill would require that Morris’s patent representa-
 tions about its IntraGrill chiller caused injury to John Bean
 as a competitor. See 35 U.S.C. § 292(b) (only “a competitive
 injury as a result of a violation”); Lexmark Int’l, Inc. v.
 Static Control Components, Inc., 

, 133 (2014)
 (for false advertising, “economic or reputational injury
 flowing directly from the deception”); N.C. Gen. Stat. Ann.
 § 75-16 (“injured by reason of any act or thing done by any
 other person, firm or corporation”); Ark. Code Ann. § 4-88-
 113(f)(2) (“suffered an actual financial loss proximately
 caused by his or her reliance on the use of a practice”);
 Esskay Art Galleries v. Gibbs, 

(1943) (unfair
 competition involves “the simulation by one person for the
 purpose of deceiving the public, of the name, symbols, or
 devices employed by a business rival, . . . thus falsely in-
 ducing the purchase of his” product over “his competitor”).
 The district court held that, even if there were a presump-
 tion of caused injury in what is asserted to be a two-firm
 market, the record contained insufficient evidence to allow
 a reasonable factfinder to find the injury required for lia-
 bility. John Bean, No. 2:15-CV-02211, 

,
 at *7–8 & *5 n.6.
Case: 20-1035    Document: 53     Page: 10    Filed: 09/24/2020




 10   JOHN BEAN TECHNOLOGIES CORP.    v. MORRIS & ASSOCIATES,
                                                         INC.


      We agree with the district court’s conclusion, which
 suffices to affirm summary judgment on all the causes of
 action involving the IntraGrill auger chiller. We need not
 and do not decide whether, for any of the causes of action
 at issue, a presumption applies in the circumstances of this
 case. We have considered all of John Bean’s arguments.
 Only one issue warrants discussion.
      John Bean’s evidence of the injury caused by the al-
 leged wrong is limited to a single incident—which involved
 John Bean’s sale of a chiller system to Perdue Farms. In
 that incident, John Bean asserts, it incurred costs or losses
 in competition with Morris’s IntraGrill auger chiller be-
 cause Morris falsely marked or advertised the IntraGrill as
 covered by the ’529 patent. Opening Br. 48–53; Reply Br.
 37–46. But the only evidence offered in support of the cau-
 sation assertion was a declaration from a past John Bean
 employee stating that a Perdue employee mentioned Mor-
 ris’s patent marking as a reason that Perdue initially de-
 clined to buy John Bean’s auger chiller with “water flow
 reliefs” that might infringe the ’529 patent, only to later
 accept the feature as a no-charge modification—a process
 that John Bean says subjected it to some injury. J.A. 2741–
 43.
     The district court, however, excluded the crucial state-
 ment on why Perdue first declined the feature as inadmis-
 sible hearsay and, under Fed. R. Civ. P. 37(c)(1), as coming
 too late in the litigation process given that John Bean had
 long been well aware that Morris disputed injury and yet
 never secured evidence from Perdue. See John Bean, No.
 2:15-CV-02211, 

, at *5–6. We see no
 abuse of discretion in that ruling. See 

(“The disclosure mandates in Rule 26 are given
 teeth by the threat of sanctions in Rule 37.”); Scosche In-
 dus., Inc. v. Visor Gear Inc., 

, 682 (Fed. Cir.
 1997) (refusing to “second-guess the district court’s judg-
 ment that” a period was “adequate time for discovery,” and
Case: 20-1035    Document: 53      Page: 11    Filed: 09/24/2020




 JOHN BEAN TECHNOLOGIES CORP.     v. MORRIS & ASSOCIATES,   11
 INC.


 emphasizing that “[a] party cannot forestall summary
 judgment by arguing that it has not had an opportunity to
 complete its discovery when it has not pursued its discov-
 ery rights with vigor”); Exigent Tech., Inc. v. Atrana Sols.,
 Inc., 

, 1311 (Fed. Cir. 2006) (collecting
 sources saying the same). 2
     Having considered all of John Bean’s arguments in-
 volving Morris’s IntraGrill auger chiller and found them
 unpersuasive, we affirm the district court’s grant of sum-
 mary judgment as to the IntraGrill and the ’529 patent.
                              B
     We turn to John Bean’s arguments about Morris’s
 COPE decontamination tanks and claim 7 of the ’173 pa-
 tent and claim 10 of the ’489 patent. If Morris’s COPE
 products meet one claim of each patent, the challenged
 Morris representations are not false, eliminating a neces-
 sary premise of every cause of action. See Clontech Labs.,
 Inc. v. Invitrogen Corp., 

, 1352 (Fed. Cir.
 2005). Following claim construction, the district court
 granted summary judgment to Morris, concluding that the
 evidence would not allow a reasonable factfinder to find the
 required falsity. We affirm that judgment without adopt-
 ing all of the district court’s reasoning.




     2   For the part of the case involving the COPE prod-
 ucts marked as patented under the ’173 and ’489 patents,
 Morris has raised no issue about injury to John Bean, even
 injury in fact fairly traceable to the alleged marking-based
 wrong. At oral argument, Morris agreed that the pleadings
 contained allegations and the record contained evidence of
 such injury to John Bean involving the COPE products.
 Oral. Arg. at 24:32–25:28, http://oralarguments.cafc.
 uscourts.gov/default.aspx?fl=20-1035_09012020.mp3.
Case: 20-1035    Document: 53     Page: 12    Filed: 09/24/2020




 12   JOHN BEAN TECHNOLOGIES CORP.   v. MORRIS & ASSOCIATES,
                                                        INC.


                              1
     In its main argument, John Bean argues that Morris
 markets some of the COPE products at issue for use other
 than after a chiller, removing them from the reach of the
 two representative claims. John Bean frames this argu-
 ment in various forms as an attack on the district court’s
 claim construction, asserting that the claims require that
 the claimed tank be next to the discharge end of the poultry
 chiller (i.e., that they be post-chill) and directly receive
 whole birds. We reject this assertion.
     In so arguing, John Bean relies on aspects of the claim
 language that speak of what the tank is “for” doing in rela-
 tion to a pre-decontamination chiller. But for us to resolve
 this case, it is enough to observe that the cited “for” lan-
 guage—in what are product claims to the “tank assembly”
 itself, not claims to methods of use—is language of capabil-
 ity. See Finjan, Inc. v. Secure Computing Corp., 

, 1204 (Fed. Cir. 2010). And we have long held that
 “an accused device may be found to infringe if it is reason-
 ably capable of satisfying the claim limitations, even
 though it may also be capable of non-infringing modes of
 operation.” Hilgraeve Corp. v. Symantec Corp., 

, 1343 (Fed. Cir. 2001); see Ericsson, Inc. v. D-Link
 Sys., Inc., 

, 1216–17 (Fed. Cir. 2014) (“[W]hen
 the asserted claims recite capability, our case law supports
 finding infringement by a ‘reasonably capable’ accused de-
 vice on a case-by-case basis . . . .”); 

.
     The summary-judgment record establishes that each
 Morris COPE product is reasonably capable of being used
 post chill and directly receiving whole birds. E.g., J.A.
 3231, Tr. 35:2–36:1 (Deposition of John Shell, Morris’s
 Chief of Design) (“[T]here’s no difference between a COPE
 FC and Pre-COPE. In fact, they have the same part num-
 ber in our part system.”); J.A. 3248, Tr. 104:14–16 (“Pre-
 COPE is located at the inlet end, although the exact same
Case: 20-1035    Document: 53      Page: 13    Filed: 09/24/2020




 JOHN BEAN TECHNOLOGIES CORP.     v. MORRIS & ASSOCIATES,   13
 INC.


 piece of equipment can be located at the outlet end.”); J.A.
 3260, Tr. 152:10–153:3. John Bean identifies no contrary
 evidence.
      John Bean points only to evidence that Morris’s prod-
 ucts vary in size and that Morris advertises the products
 differently. Reply Br. 34. That is not enough to create a
 triable issue of fact. A smaller decontamination tank can
 still receive and discharge whole birds rather than bird
 parts, though it may do fewer at a time. And the advertise-
 ments address only the intended use rather than the prod-
 ucts’ capabilities.
     Accordingly, all the COPE products are reasonably ca-
 pable of performing the functional language in the relevant
 claims, and so John Bean cannot point to that language to
 establish that the COPE products are outside those claims.
                              2
     John Bean challenges the district court’s determina-
 tion, on summary judgment, that Morris’s COPE products
 meet the claim requirement of having “upper opening
 means for receiving the poultry carcasses in said tank and
 for discharging the poultry carcasses from said tank.” We
 reject this challenge.
      To literally meet a means-plus-function limitation, the
 product’s structure must “perform the identical function re-
 cited in the claim and be identical or equivalent to the cor-
 responding structure in the specification.” Odetics, Inc. v.
 Storage Tech. Corp., 

, 1267 (Fed. Cir. 1999)
 (emphasis added). The district court determined that Mor-
 ris’s COPE products literally meet the “upper opening
 means” limitation because they perform the identical func-
 tion and have an equivalent structure. See John Bean, No.
 2:15-CV-02211, 

, at *5–6. John Bean ar-
 gues that the district court improperly decided a factual
 question of structural equivalence at summary judgment.
Case: 20-1035    Document: 53      Page: 14    Filed: 09/24/2020




 14   JOHN BEAN TECHNOLOGIES CORP.    v. MORRIS & ASSOCIATES,
                                                         INC.


     We need not reach that issue. John Bean’s argument
 depends on the premise that, under the claim language and
 claim construction, there must be a single opening means
 that performs both receiving and discharging. Only on that
 premise does John Bean argue that Morris’s COPE prod-
 ucts are outside the limitation (because, John Bean asserts,
 those products have two different openings, one for receipt,
 another for discharge). We agree with Morris that John
 Bean’s premise is incorrect.
      The claim language “upper opening means for receiv-
 ing the poultry carcasses in said tank and for discharging
 the poultry carcasses from said tank” does not limit the
 means performing the first function to also performing the
 second. Notably, it does not require “a means”; it requires
 only “means.” The first formulation, we have said, would
 “potentially be ambiguous” about covering two means, one
 for each function; but the latter formulation we have spe-
 cifically contrasted as not being so limited. See Cardiac
 Pacemakers, Inc. v. St. Jude Med., Inc., 

, 1115
 (Fed. Cir. 2002) (“The language of the limitation at issue
 does not refer to ‘a means for doing x and y.’ In such a case,
 the claim could potentially be ambiguous about whether
 the limitation required one means for performing both
 functions x and y, or simply one means for performing func-
 tion x and one (potentially different) means for performing
 function y.” (emphasis added)). The formulation used in
 this claim is not limited to a single two-function means.
     The agreed-upon construction does not reflect a con-
 trary concession by Morris. The district court said: “The
 agreed function is ‘receiving the poultry carcasses in the
 tank and discharging the poultry carcasses from the tank’
 and the corresponding structure is ‘an opening in an upper
 portion of the tank or an upwardly positioned opening
 formed in the upper perimeter of the tank and equivalents
 thereof.’”  John Bean, No. 2:15-CV-02211, 

, at *10. Although the district court used the
Case: 20-1035    Document: 53      Page: 15     Filed: 09/24/2020




 JOHN BEAN TECHNOLOGIES CORP.     v. MORRIS & ASSOCIATES,    15
 INC.


 singular “function” to refer to two functions and the singu-
 lar “structure,” Morris itself stated in its claim construction
 brief that it was agreeing with John Bean only that “the
 functions associated with this means-plus-function phrase
 are ‘receiving the poultry carcasses in said tank’ and ‘dis-
 charging the poultry carcasses from said tank,’” John Bean,
 No. 2:15-CV-02211, ECF No. 60 at 13 (June 23, 2017) (em-
 phases added), and Morris explained to the district court
 that “you could conceivably have structure for each of those
 functions,” J.A. 1456; John Bean, No. 2:15-CV-02211, ECF
 No. 66 at 111–12 (July 19, 2017).
     Indeed, the construction’s use of “or” for the corre-
 sponding structure reflects the specification’s multiple em-
 bodiments, including one with “a partition . . . separat[ing]
 the tank into two sections.” ’173 patent, col. 3, lines 34–37;
 see also, e.g.

46–52 (“an upright entrance
 wall 26” and “an opposing upright exit wall 28” “define a
 paddle chamber 33 with an upper opening means or up-
 wardly positioned opening 32 that is formed in the upper
 perimeter of the tank”);

28–38 & fig. 7
 (showing “a partition 66 that divides the tank in halves,
 with a paddle chamber 68 and a bird entrance chamber
 70”). Thus, a relevant artisan would understand the claim
 language given the specification to allow one upper opening
 means for receiving and another for discharging.
     John Bean disagrees, relying on Applied Medical Re-
 sources Corp. v. U.S. Surgical Corp., 

, 1333
 (Fed. Cir. 2006), to assert a categorical rule that whenever
 a means-plus-function limitation “has two functions” one
 means “must perform both claimed functions” for the prod-
 uct’s structure to be identical to the corresponding struc-
 ture. See Reply Br. 22–23. But that position conflicts with
 the explanation of Cardiac Pacemakers, which reflects a
 straightforward difference in the meaning of “a means” and
 “means.” It also is not supported by Applied Medical,
 which involved particular claim language that required a
Case: 20-1035      Document: 53     Page: 16     Filed: 09/24/2020




 16       JOHN BEAN TECHNOLOGIES CORP.   v. MORRIS & ASSOCIATES,
                                                            INC.


 single structure for two functions. The claim language at
 issue—“means disposed circumferentially outwardly of the
 valve portions [1] for supporting the valve portions within
 the seal housing, the supporting means being movable rel-
 ative to the housing [2] to permit the valve portions to float
 relative to the axis of the 

(em-
 phases added)—established that the structure performing
 the first function (supporting) also performed the second
 (permitting). The same is not true here.
     Because the claim allows separate openings for the sep-
 arate functions, John Bean is wrong in the essential prem-
 ise underlying its contention that Morris’s COPE products,
 with their inlet and outlet chutes, do not meet the “opening
 means” limitation in the two claims at issue. 3 We have also
 considered John Bean’s arguments contesting the district
 court’s conclusion that Morris’s products identically meet
 the limitation’s function, which we find unpersuasive.
                                3
      John Bean makes one challenge limited to claim 10 of
 the ’489 patent. Specifically, it disputes the claim construc-
 tion for “means connected to said tank for supplying to said
 tank an antimicrobial-bearing liquid of different antimicro-
 bial content than the liquid in the poultry chiller.” The dis-
 trict court concluded that the corresponding structure for
 this limitation does not require a control valve, only the
 conduit structures through which liquid enter the tank.
 John Bean, No. 2:15-CV-02211, 

, at *9–
 10. John Bean argues that a control valve is required—and
 that Morris’s COPE products, lacking such a valve on the




      3  This conclusion makes immaterial whether, as
 John Bean argues, summary judgment was premature be-
 cause it needed expert discovery on structural equivalence.
Case: 20-1035    Document: 53       Page: 17    Filed: 09/24/2020




 JOHN BEAN TECHNOLOGIES CORP.      v. MORRIS & ASSOCIATES,   17
 INC.


 tanks, therefore cannot come within claim 10 of the ’489
 patent.
     We reject this challenge, which accepts as a premise
 that Morris’s COPE products do come within claim 7 of the
 ’173 patent and so were properly marked with that patent.
 When a product is “properly marked with other patents,”
 as here, the competitor “must show that the falsely marked
 patent[]” caused its injury and “that—for some reason—the
 properly marked patent[] did not.” Sukumar v. Nautilus,
 Inc., 

, 1402 (Fed. Cir. 2015). The record lacks
 evidence that John Bean would have made or sold a decon-
 tamination tank had there been no marking of the COPE
 products with the ’489 patent, even though the marking
 with the ’173 patent remained.
                             III
     Morris filed a conditional cross-appeal arguing that the
 Patent Act’s false-marking statute, 35 U.S.C. § 292, pre-
 cluded John Bean’s federal false-advertising cause of action
 under the Lanham Act and preempted John Bean’s state-
 law causes of action. Presentation of those arguments in
 this court did not require the filing of a cross-appeal, and
 therefore Morris should have presented them simply as al-
 ternative grounds for affirming the judgment in Morris’s
 favor. See TypeRight Keyboard Corp. v. Microsoft Corp.,
 

, 1157 (Fed. Cir. 2004). On the merits, be-
 cause we affirm the district court for the reasons above, we
 need not reach those arguments.
                             IV
     We affirm the judgment of the district court.
     No costs.
                        AFFIRMED