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	CREO PRODUCTS, INC V. PRESSTEK Argued for plaintiff appellant.
	THE CHAMBERLAIN GROUP, INC., V. SKYLINK TECHNOLOGIES, INC. Argued for plaintiff appellant.аа With him on the brief were John F. Argued for defendant appellee.а With him on the brief were Andra Barmash Greene. Communications Industry Association.а With him on the brief was Matthew Schruers. а With him on the brief were Greg A. Walters.а Also on the brief was Dennis D. Argued for defendant appellant.а With him on the brief were Leigh O. Of counsel on the brief were John P. plaintiffs ) that ConAgra was liable for attempted monopolization and for tortious interference with prospective economic advantage. Properly found the 027 Patent invalid and unenforceable for reasons of both prior use and prior sale under 35 U.S.C. з 102(b).а The district court was also correct. Announced that it was making the 027 Patent and corresponding patents that may issue available for license at a royalty rate of
	OPINION/ORDER With him on the brief was Jonathan K. Of counsel was John A. With him on the brief were Kelsey I. With him on the brief were Christopher J. With him on the brief was Charles F. With him on the brief were Peter D. Of counsel on the brief were James A. With him on the brief were J. Of 2counsel was Herbert C. This is an interlocutory appeal by Cordis Corp. from a decision of the U.S. We agreed that the interlocutory appeal
	OPINION/ORDER With him on the brief were Henry J. Of counsel was Tara A. With him on the brief were Richard L. With him on the brief were George E. Also on the brief was Alan R. With him on the brief was Richard Margiano. This is a consolidated multidistrict patent infringement litigation. Metoprolol is a therapeutically active compound. Which can form salts by reaction with acids and is used in the treatment of angina. Metoprolol succinate is the salt of metoprolol with succinic acid. Characterized in that the active substance is metoprolol succinate
	MIDWEST INDUSTRIES V. KARAVAN TRAILERS, INC. With him on the brief were H. Of counsel was Curtis A. Of counsel on the brief was Don Cayen. Have joined Part II A of this opinion. BRYSON. Holding that they are barred by federal patent law. We hold that we will apply Federal Circuit law in determining whether patent law conflicts with other federal statutes or preempts state law causes of action. Those decisions in which we have held that regional circuit law governs in resolving such issues. As is typically true of watercraft trailers. Midwest also alleged that Karavan's conduct violated Midwest's rights under the Iowa common law of trademarks. Midwest is the exclusive licensee of U.S. Would interfere with
	OPINION/ORDER With him on the brief were William J. With her on the brief were James M. With him on the brief were Charles H. Of counsel was Ahmed J. With him on the brief were Marc G. Of counsel on the brief was J. With him on the brief was Matthew S. Of counsel on the brief was John D. Of counsel was Joseph B. Philips specified that the same royalty was due for each disc manufactured by the licensee using patents included in the package. Regardless of how many of the patents were used. Potential licensees who sought to license patents to the technology for manufacturing CD Rs or CD RWs were not allowed to license those patents individually and were not offered a lower royalty rate for licenses to fewer than all the patents in a package. Were violating section 337(a)(1)(B) of the Tariff Act of 1930. Were added through intervention. As a condition of licensing patents that were necessary to manufacture CD Rs or CD RWs. To take licenses to other patents that were not necessary to manufacture those products. The respondents argued that a number of the patents that Philips had included in the category of
	OPINION/ORDER With him on the brief were Milton Sherman. With him on the brief were A. The ANDA product sought to be approved by Apotex is a generic version of Pfizer's amlodipine besylate drug product. Which is commercially sold in tablet form in the United States under the trademark Norvascо. Norvascо is approved by the FDA for treating hypertension and chronic stable and vasospastic angina.
	OPINION/ORDER Were on brief. Were on brief. The common drive for financial returns now brings us a dispute over rights to the income stream of the fastest growing ophthalmic drug in history. The entire range of claims articulated by plaintiff appellant was dismissed by the district court on summary judgment. We will begin our analysis. I.
	KOLMES & PLEMMONS V. WORLD FIBERS
	FONAR CORP. V. GENERAL ELECTRIC
	OPINION/ORDER With him on the brief were Philip J. With him on the brief were Curt J. Of counsel on the brief was Joseph Kirk. That the '814 patent was invalid and unenforceable. That it failed to prove (1) that the '814 patent is unenforceable due to inequitable conduct and (2) that claims 1 5 of the '814 patent are invalid as anticipated. As far as the anticipation issue is concerned. A. Impax is a Delaware corporation with its principal place of business in Hayward. Aventis is a Delaware corporation with its principal place of business in Bridgewater. Aventis was formed in 1999 as part of a merger between 05 1313 2 Rhone Poulenc. Is a disease of the central nervous system. ALS is characterized by the death of the nerves that control motor function (also called motor neurons). Riluzole is the chemical compound 6 trifluoromethoxy 2 benzothiazolamine. The purpose of the testing was to determine whether the compounds would be effective in treating ALS. The effects of riluzole and the other compounds on the rat spinal cords were analyzed based on the following criteria: (1) number of neurons in the cells (used to screen for extraneous effects of the compound).
	INTELLECTUAL PROPERTY DEVELOPMENT V. TCI CABLEVISION OF CA Argued for plaintiff appellee.
	ANCHOR WALL SYSTEMS, INC V. ROCKWOOD Argued for plaintiff appellant.а With him on the brief was Alan G. Argued for defendants appellees.а With him on the brief were Eric H. Ulbrich.а Of counsel on the brief was Malcolm L. Because the district court concluded that there was a complete bar to application of the doctrine of equivalents pursuant to this court s ruling in Festo Corp. v. Line height:200%'>Anchor is the assignee of the six patents at issue. Which are related to one another as continuations in part. Ll. 63 65.а A course of these blocks is laid. Fig. 7.а A block in the next ascending course is placed on top of the course below so that a protrusion 26 from the lower course fits into one of the side insets 22A or 22B of two adjacent blocks in the upper course.а '363 patent. Ll. 38 41.а The upper course block is pushed forward so that the back wall of the inset abuts the back of the protrusion 26.а The abutment of protrusion 26 against one of the insets 22A or 22B resists the forward pressure of the earth.
	OPINION/ORDER With him on the brief was Bruce M. With him on the brief was Roy H. Of counsel on the brief was Alfred B. Because the language of з 156 is unambiguous and fulfills a purpose unrelated to and not in conflict with that of з 253. Inc. (
	ZENITH ELECTRONICS CORP. V. ELO TOUCHSYSTEMS, INC. With him on the brief was Michael G. The questions raised are whether a federal unfair competition claim irreconcilably conflicts with and is therefore barred by federal patent or antitrust law. That these statements were false. Elo Touch argued that its activities in support of its patent rights were governed by federal patent law and applicable antitrust rules. Thus the Lanham Act and state unfair competition laws are in effect
	RAMBUS V. INFINEON TECHNOLOGIES Argued for plaintiff appellant.а With him on the brief were William K. Of counsel on the brief were Michael J. California.а Of counsel was Craig Thomas Merritt. Argued for defendants cross appellants.а With him on the brief were Christopher Landau. Dixton.а Of counsel on the brief were John M. New York.а Of counsel was Brian C. Rambus filed numerous divisional and continuation applications based on the original 898 application at least thirty one of which have issued.а Many of these patents claim aspects of a memory technology known as Rambus DRAM (RDRAM).а In April 1991. Rambus attended a Joint Electron Devices Engineering Council (JEDEC) meeting as a guest.а Rambus officially joined JEDEC in February 1992.а JEDEC is a standard setting body associated with the Electronic Industries Association (EIA).
	KING INSTRUMENTS V. PEREGO AND TAPEMATIC
	OMEGA ENGINEERING, INC V. RAYTEK CORP Inc.а Of counsel on the brief were Peter W. With him on the brief were Robert L. Which are also called radiometers.
	LOCKWOOD V. AMERICAN AIRLINES
	BRUNING V. HIROSE
	OPINION/ORDER With him on the brief were Robert D. With him on the brief were Scott B. Of counsel were Keith D. Arguing that the `944 patent was invalid. We agree that the claims of the `944 patent are invalid and thus affirm. The `723 patent also disclosed that the product is
	OPINION/ORDER Circuit Judge: As is often true in the field of intellectual property. The question that we decide today is whether 35 U.S.C. з 261 of the Patent Act. Matsco Financial Corporation (Petitioners) have a security interest in a patent developed by Cybernetic Services. The patent is for a data recorder that is designed to capture data from a video signal regardless of the horizontal line in which the data is located. Petitioners' security interest in the patent was
	GEMSTAR-TV GUIDE INTERNATIONAL, INC., ET AL. V. INTERNATIONAL TRADE COMMISSION, ET AL. Argued for appellants.а With him on the brief was James L. III.а Of counsel on the brief were Morris Waisbrot and William F. Of counsel were Mark G. Argued for appellee.а On the brief
	MICROSOFT CORP. V. MULTI-TECH SYSTEMS, INC. Microsoft Corporation.а With him on the brief were David T. Inc.а With him on the brief were Emmett J. Inc.а With him on the brief were Richard D. Kelly and Derek Richmond.а Of counsel was Kenneth T. We will consider both appeals together.а Because we conclude that the district court did not err in its controlling claim construction. Share a common specification.а Only three patents are at issue in this appeal: the 649 patent. Which is entitled Digital Simultaneous Voice and Data Modem. is directed to methods and modules for the simultaneous transmission of voice and computer data.а Claim 1 recites a method for communication of voice and data information in which outgoing computer digital data are packetized into computer data packets having headers and outgoing voice signals are received from a local user.
	OPINION/ORDER
	OPINION/ORDER With him on the brief were Roger J. With him on the brief were Jeffrey H. BACKGROUND Ventana is the owner of several patents relating to automated methods and apparatuses for staining microscope slides. Each of these treatment steps is separated by multiple rinse steps. During which unreacted reagents are removed from the slides. The stained slides are examined by pathologists to detect the presence of diseases. At issue in this case is Ventana's '861 patent. The common specification discusses various previously known automated staining devices and asserts that such prior art devices
	OPINION/ORDER With him on the brief was Paul R.Q. Of counsel on the brief was Joseph C. With him on the brief was Meredith B. With him on the brief was Bradley S. With him on the brief was Amy E.L. With him on the brief were Jeffrey L. Of counsel on the brief was Jerome C. With him on the brief were Lorane F. With her on the brief was Jim Hood. Which is directed toward insertion of a synthetic gene consisting of a 35S cauliflower mosaic virus (
	FESTO CORP V. SHOKETSU KINZOKU KOGYO KABUSHIKI CO With him on the brief were Gerald T. Of counsel on the brief were Charles L. Also of counsel on the brief was James B. With him on the brief was Louis T. Of counsel on the brief was Joseph R. Of counsel on the brief were John G. Also of counsel on the brief were Rory J. With him on the brief were Kendrew H. Of counsel on the brief were Perry M. Also on the brief was Mark J. Of counsel on the brief were Frederick T. Also of counsel on the brief was J. Of counsel on the brief was James W. Circuit Judge.
	OPINION/ORDER With him on the brief were Fredrick M. Of counsel were John M. With her on the brief were Louis M. Of counsel on the brief were James V. AstraZeneca L.P. (collectively Astra) filed patent infringement suits against several pharmaceutical companies that were seeking permission from the Food and Drug Administration (FDA) to market generic versions of Prilosecо. Omeprazole is the generic name for Prilosecо. The pharmaceutical formulation is composed of a core that contains a proton pump inhibitor like omeprazole to decrease gastric acid secretion. Wherein the concentration of the alkaline reacting compound is about 0.1 mmol/g dry ingredients in the alkaline containing part of the core material. Wherein the alkaline reacting compound is an alkaline salt of phosphoric acid. Atomizer air flow and spraying rate are adjusted with respect to the equipment used for the process as well as the specific enteric coating polymer(s).
	OPINION/ORDER With him on the brief were Mitchell Lukin and David M. With him on the brief were Gerard G. Hydril generally sells its connections to drill pipe distributors
	IMAZIO V. GREENHOUSES
	APPLIED MATERIALS V. ADVANCED SEMICOND.
	OPINION/ORDER With him on the brief was Mark K. Of counsel on the brief was Marcus T. With him on the brief were Eric M. This was not a case of mistake or negligence the prosecuting attorney testified that he would make all the same nondisclosure decisions again if prosecuting the same applications today. The issues of materiality and intent are fact driven. The law recognizes that deceptive intent is virtually never shown or disproved by direct evidence. McKesson must demonstrate that the district court's findings of fact are clearly erroneous. This is accomplished first by providing a set of bar codes associated with a given patient such that one bar code from the set is physically attached to the 2006 1517 2 patient and the other bar codes from the set are physically attached to. Because the handheld patient terminals are portable. It is desirable to prevent one such terminal from wirelessly communicating with a base station in. The portable handheld patient terminal means including electromagnetic wave transceiver means including means for transmission of patient and item data as an electromagnetic wave which is representative of the first and second bar code identifier means scanned by the bar code reader means and including means for receipt of data as an electromagnetic wave.
	JOHNSON & JOHNSTON V. R.E. SERVICE Argued for plaintiff appellee.
	OPINION/ORDER Of counsel on the brief was Thomas J. With him on the brief were Jeffrey J. With him on the brief was Lara E. With her on the brief was Bruce Vignery. Of counsel on the brief was Michael Schuster. With him on the brief was Roy H. With him on the brief were William E. Inc. (
	AL-SITE CORP. V. VSI INT'L, INC. (3/30/1999, NO. 97-1593) With him on the brief was Stephen E. Of counsel was Oren J. With him on the brief were Robert S. Of counsel on the brief were Richard L. Of counsel was Myles G. Magnivision is the assignee of U.S. The jury further concluded that the Magnivision patents were not invalid under 35 U.S.C. з 103. Would have been literally infringed by VSI's Version 2 hanger tag. Contends that the district court's claim construction was correct but challenges the jury's determinations for lack of substantial evidence to support a verdict.
	OPINION/ORDER With him on the brief were Ted G. Of counsel on the brief were Jennifer L. Of counsel were Todd J. With him on the brief were Maria Luisa Palmese and Robert V. Abbott moved for a preliminary injunction against Teva on the grounds that Teva was infringing claims 2. We have jurisdiction to review the district court's order under 28 U.S.C. з 1292(c)(1). I. Clarithromycin is a broad spectrum antibiotic from the macrolide family of antibiotics. All of which are derived from erythromycin A. (2) immediate irreparable harm will result if the relief is not granted. (4) the public interest is best served by granting the injunctive relief. 386 but as this case is a limited appeal of the district court's grant of a preliminary injunction under 28 U.S.C. з 1292(c)(1) and that preliminary injunction did not extend to the claims of the 6. Those two patents are not before us today and will not be discussed. 05 1433 3 1 Abbott Labs. v. Teva alleged that the asserted patent claims were invalid for obviousness under 35 U.S.C. з 103.
	MENTOR V. QUICKTURN
	VIRGINIA V. MAC
	OPINION/ORDER With him on the brief was Benjamin B. Of counsel were Derek H. Callicrate is the owner of several patents on methods and apparatuses for castrating large animals (like cattle). Because the district court improperly found that the '553 and '329 patents were not entitled to priority back to the '434 patent. I. Wadsworth and Callicrate are competitors in the manufacture and sale of castration tools. The EZE No. 1 is described in U.S. As explained in the '434 patent: [T]he process of tightening the loop through successive pulls on the trigger mechanism [as disclosed in the '704 patent] is time consuming and the animal must therefore be restrained for a longer period of time. Are limited by the hand strength of the user. Relatively large frictional and abrasive forces are exerted on the band where the band is attached to the tightening rod. Thereby increasing the likelihood of damage to the elastomeric material causing breakage before the desired tension is achieved. An operator is limited in the extent a band can be tightened.
	WMS GAMING V. INTERNATIONAL GAME TECHNOLOGY Will &. With him on the brief was Paul Devinsky. Of counsel on the brief were Kimball R. Of counsel were Donna M. Will &. With him on the brief was Barry F. Also on the brief was Jay I. Of counsel on the brief were Marc D. 419 and that the patent is not invalid.
	HESTER V. STEIN
	APOTEX, INC V. TOMMY THOMPSON Argued for plaintiff appellant.а With him on the brief were Terrence P. Canade and Hugh S. Balsam.а Of counsel on the brief was Arthur Y. Et al.а With him on the brief were Eric M. DC.а On the brief for defendants appellees were Douglas N. On the brief were Bruce N. Weiswasser.а Of counsel was Stephen T. Demonstrating through the presentation of test data that the drug in question is safe and effective.а 21 U.S.C. з 355(b)(1)(A). ааааааааааа Before 1984. 98 Stat. 1585.а The Hatch Waxman Act authorized a company to obtain FDA permission to market a generic version of an approved drug by filing an Abbreviated New Drug Application ( ANDA ).а If the ANDA establishes both that the active ingredient in the proposed drug product is the same as the active ingredient in the previously approved drug and that the proposed product is bioequivalent to the approved drug.
	SOUTHWEST SOFTWARE V. HARLEQUIN INCORPORATED With him on the brief were Amber L. Of counsel on the brief were Scott R. With him on the brief was Albert A. Jr. Of counsel on the brief were John J. The judgment was entered upon a jury verdict. ) is not invalid. (2) claim 1 of the '257 patent was directly infringed by Harlequin and ECRM. 1998).
	NOBELPHARMA V. IMPLANT INNOVATIONS
	MINNESOTA MINING AND MANUFACTURING COMPANY V. BARR Argued for plaintiffs appellants.
	OPINION/ORDER The issue is whether substantial evidence supports the conclusion that the Schering Plough settlements unreasonably restrain trade in violation of Section 1 of the Sherman Antitrust Act. We have jurisdiction pursuant to 15 U.S.C. з 45(c). The Upsher Settlement Schering Plough (
	OPINION/ORDER With him on the brief was Holiday W. With him on the brief were Thomas H. Cross appeal the district court's grant of summary judgment with respect to inventorship and the district court's denial of their post trial motions pertaining to willful infringement and whether any relief should have been awarded following the jury's finding of infringement. There is no material factual dispute that the ACell VetTM product cannot infringe claims 1. The judgment of infringement is reversed. The issues raised in Cook's cross appeal pertaining to its willful infringement case and its requests for relief following the jury verdict in its favor are rendered moot. Badylak is not a co inventor of U.S. Spievack is an inventor of the '265 patent. Badylak was employed by Purdue University from 1977 until October 6. As advancements were made using these tissue compositions. The two organ tissue sources relevant to this case are UBS and UBM. The '389 patent is directed to a urinary bladder submucosa derived tissue graft composition comprising bladder submucosal tissue
	OPINION/ORDER The royalty payments provided for in this contract are the subject of the present dispute. The contract at issue is unambiguous as to the duration of the royalties. The parties agree on their intent at the time it was formed. All the evidence is thus in accord with a single interpretation that Tinnell would relinquish all rights to Zilactin. The product has been improved since it was developed in 1976 and is now sold under the brand name Zilactin. Which is the subject of a patent application.
	OPINION/ORDER
	OPINION/ORDER With him on the brief was John S. Of counsel on the brief were James F. With her on the brief were Peter D. The United States is liable for the use of a method patent only when it practices every step of the claimed method in the United States. I. Zoltek Corporation (
	OPINION/ORDER With her on the brief were Richard L. With him on the brief was Camille L. Seeking a declaratory judgment that the two patents were invalid and unenforceable. The unfair competition and antitrust counterclaims were severed from the remainder of the case. The second case was stayed pending resolution of the patent issues. Kemin Foods is the assignee of one of the two patents in suit. Kemin Foods is the exclusive licensee of that patent. The patents in suit include process and product claims pertaining to purified lutein that is extracted from plants. Lutein is a carotenoid (i.e. Was effectively precluded from doing so by a pretrial order striking a supplemental expert report proffered by Kemin. The jury found that the asserted claims were not invalid. The jury also found that the asserted claims of the '714 patent were not infringed. 06 1002 2 that claim 1 of the '564 patent was infringed under the doctrine of equivalents. The court also rejected PIVEG's claim that both patents were unenforceable because of inequitable conduct.
	JOHN HOPKINS UNIVERSITY V. CELLPRO, INC.
	OPINION/ORDER McDermott Will & Emery. With him on the brief were Charles R. Of counsel were Mary C. With him on the brief were Tracy Zurzolo Frisch. Of counsel was Charles L. 063 (the '063 patent) are invalid and. Is fat soluble. LUSTRAо is a cream that.
	OPINION/ORDER With him on the brief were Brian F. With him on the brief were Robert A. The permanent injunction was issued following the grant of Cross Medical's motions for partial summary judgment of validity and infringement. That we have jurisdiction over this appeal. We also reverse the grant of Cross Medical's motion for partial summary judgment that claim 5 is not obvious but affirm the grant of that motion as to indefiniteness and anticipation. A common problem with spinal fixation is determining how to secure the fixation device to the spine without damaging the spinal cord. Methods of fixation have developed which utilize wires that extend through the spinal canal and hold a rod against the lamina. 1 or that utilize pedicular screws which extend into the pedicle2 The
	OPINION/ORDER Line 19
	OPINION/ORDER With him on the brief was Lisa Kobialka. With him on the brief were Paul F. Of counsel on the brief was Richard M. Of counsel was Evelyn H. With him on the brief was William F. Of counsel on the brief were Guillermo E. This patent infringement action was brought by appellant PharmaStem Therapeutics. PharmaStem sued six defendants (four of which are appellees before us in this appeal). The treatment is based on the discovery that blood from a newborn infant's umbilical cord is a rich source of a type of stem cells useful for rebuilding an individual's blood and immune system after that system has been compromised by disease or a medical treatment such as chemotherapy. Stem cells are fundamental (or
	SCOSCHE V. VISOR GEAR
	OPINION/ORDER Third party payor organizations that provide medical benefits for their members which are used to purchase the drug. The plaintiffs assert that the district court erred in dismissing the complaint based on its conclusion that the settlement agreement was not a violation of antitrust law and that the plaintiffs did not suffer antitrust injury as a result of the alleged violation. Arising out of circumstances surrounding a lawsuit in which a drug manufacturer alleged that its patent for the drug tamoxifen citrate (
	OPINION/ORDER With him on the brief were John B. With him on the brief were R. Of counsel were David W. Is withdrawn. This opinion is substituted therefor. We conclude that the district court was correct in sending the question of infringement of the system and apparatus claims to the jury. An
	OPINION/ORDER Third party payor organizations that provide medical benefits for their members which are used to purchase the drug. The plaintiffs assert that the district court erred in dismissing the complaint based on its conclusion that the settlement agreement was not a violation of antitrust law and that the plaintiffs did not suffer antitrust injury as a result of the alleged violation. Arising out of circumstances surrounding a lawsuit in which a drug manufacturer alleged that its patent for the drug tamoxifen citrate (
	OPINION/ORDER With him on the brief were John B. With him on the brief were R. Of counsel were David W. An
	OPINION/ORDER With him on the brief were Jennifer A. Also on the brief were Gregory N. On the brief were Timothy S. Also on the brief was Allan M. Is the assignee of three patents. At issue in this case is the fixed price purchasing feature of eBay's website. Which allows customers to purchase items that are listed on eBay's website for a fixed. At the time this action was brought. ReturnBuy owned and operated an Internet website that was hosted by the eBay website. Where items available for sale by ReturnBuy were displayed in an eBay listing. The district court ruled that claims 1 35 and 51 52 of the '051 patent were invalid for lack of enablement. That neither the '265 patent nor the '176 patent was invalid. EBay and Half.com moved for judgment as a matter of law (
	WARNER-LAMBERT COMPANY V. APOTEX Argued for defendant appellee.а With him on the brief were Robert L. Smith.а Of counsel were Donald J. Argued for defendant appellee.а With him on the brief were Hugh L. For amicus curiae Generic Pharmaceutical Association.а With him on the brief was Melanie Black Dubis. . 2001).а Because we hold that Apotex was entitled to judgment as a matter of law. Line height:200%'>Warner Lambert is the assignee of U.S. Margin left:.75in'>wherein R₁ is hydrogen or a lower alkyl and n is 4. Corresponding to the formula in claim 1 in which R₁ is hydrogen and n is 5. Is commonly known as gabapentin. а Gabapentin is the subject of the present action.а а With him on the brief were Jonathan Singer. California.а Of counsel on the brief was Paul W. Et al.а With him on the brief was M. Lomb Incorporated.а With him on the brief was Jonathan R. For amicus curiae Washington Legal Foundation.а With him on the brief was Daniel J. (ii) the ANDA applicant seeks approval for the production of a generic version of the drug for a use that is different from the method of use of the drug that is claimed in the patent. (iii) the generic drug that is the subject of the ANDA is effective for the method of use that is claimed in the patent.а brimonidine.а
	OPINION/ORDER Circuit Judge: As is often true in the field of intellectual property. The question that we decide today is whether 35 U.S.C. з 261 of the Patent Act. Matsco Financial Corporation (Petitioners) have a security interest in a patent developed by Cybernetic Services. The patent is for a data recorder that is designed to capture data from a video signal regardless of the horizontal line in which the data is located. Petitioners' security interest in the patent was
	OPINION/ORDER With him on the brief were Robert D. With her on the brief were Hugh L. Of counsel were Paul J. Inc. (collectively Apotex) will not infringe claim 1 of U.S. Because claim 1 of the '723 patent is invalid as anticipated under 35 U.S.C. з 102(b). Curzons's test results established that the new product was the hemihydrous form of PHC (PHC hemihydrate). Ferrosan's original form was anhydrous PHC (PHC anhydrate). The only claim at issue in this case is claim 1. SmithKline alleges that Apotex's proposed drug will infringe claim 1 of the '723 patent. PHC anhydrate н the Ferrosan discovery н is prior art for the '723 patent. SmithKline asserts that Apotex will infringe by manufacturing PHC anhydrate tablets that necessarily contain. Including cross motions for summary judgment that claim 1 of the '723 patent was invalid (or valid) under 35 U.S.C. з 102(b) for an impermissible public use. Holding that the '723 patent was not invalid for public use under з 102(b). Supp. 2d at The trial record contained uncontested testimony that a PHC anhydrate hemihydrate mixture would need to possess a percentage of PHC hemihydrate in the
	OPINION/ORDER With him on the brief were Peter D. Of counsel on the brief was Michael B. This is a suit for a refund of patent fees alleged to have been unlawfully exacted. Because the statute was designed to generate revenue to fund federal programs other than the United States Patent and Trademark Office (
	GEORGIA-PACIFIC V. UNITED STATES GYPSUM With him on the brief were W. Of counsel on the brief was Jack B. With him on the brief were David K. Of counsel on the brief was Jay I. USG appeals the district court s denial of its motion for judgment as a matter of law
	LNP ENGINEERING PLASTICS, INC., ET AL. V. MILLER WASTE MILLS, INC. Argued for plaintiffs appellants.
	OPINION/ORDER With him on the brief were Robert D. With her on the brief were Hugh L. Of counsel were Paul J. Inc. (collectively Apotex) will not infringe claim 1 of U.S. Because claim 1 of the '723 patent is invalid as anticipated under 35 U.S.C. з 102(b). Curzons's test results established that the new product was the hemihydrous form of PHC (PHC hemihydrate). Ferrosan's original form was anhydrous PHC (PHC anhydrate). The only claim at issue in this case is claim 1. SmithKline alleges that Apotex's proposed drug will infringe claim 1 of the '723 patent. PHC anhydrate н the Ferrosan discovery н is prior art for the '723 patent. SmithKline asserts that Apotex will infringe by manufacturing PHC anhydrate tablets that necessarily contain. Including cross motions for summary judgment that claim 1 of the '723 patent was invalid (or valid) under 35 U.S.C. з 102(b) for an impermissible public use. Holding that the '723 patent was not invalid for public use under з 102(b). Supp. 2d at The trial record contained uncontested testimony that a PHC anhydrate hemihydrate mixture would need to possess a percentage of PHC hemihydrate in the
	SMITHKLINE BEECHAM CORP., ET AL. V. APOTEX CORP., ET AL. Argued for plaintiffs appellants.а With him on the brief were Robert D. Argued for defendants cross appellants.а With her on the brief were Hugh L. Nelson.а Of counsel were Paul J. Inc. (collectively Apotex) will not infringe claim 1 of U.S. Apotex s prod
	UNIVERSITY OF ROCHESTER V. G.D. SEARLE & CO.,INC., ET AL. [ORDER] Filed a petition for rehearing en banc for plaintiff appellant.а With him on the petition were Emily A. Filed an opposition to the petition for defendants appellees.а With him on the opposition were Richard G. Becker and Daniel L. Reisner.а Of counsel on the opposition was Robert L. Baechtold. Et al.а With him on the brief were Susan M. Spaeth and Madison C. Jellins. а With him on the brief were David I. Argued for appellee.а On the brief were Lyn M. Attorney.а Of counsel were David I. All other intervenors.а On the brief were Eugene M. Of counsel was Cecilia H. DC.а Also on the brief were Edward V. Inc.а Of counsel were David L. Etc.а Also on the brief were Douglas V. For intervenor Roysol.а Also on the brief were Ward B. Maryland for intervenor Akzenta Paneele + Profile GmbH.а Of counsel was Edward H. Claim 1 of the 410 patent are representative of the asserted claims from each patent and state (emphases added)
	OPINION/ORDER Argued for plaintiffs appellants.
	HUNTER DOUGLAS V. HARMONIC DESIGN
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. Because we conclude that serious questions have been raised concerning prudential standing and the enforceability of the '187 patent. Which was one in a series of continuations based on a divisional application of the '410 patent. The '870 application stated both that the application disclosed and claimed the same subject matter as in the prior application and that the inventors were the same. The claimed invention was
	OPINION/ORDER With him on the brief was Barry J. With him on the brief were Michael Aschen and Anthony J. Of counsel were Mark N. Because we conclude that Contour was the owner of the '747 patent when In addition to the '747 patent. MDS and Asahi ceased to participate in the action involving the '747 patent. 1 the original complaint was filed. We remand for the court to redetermine whether all necessary parties to this action were joined. BACKGROUND The primary issue in this appeal is whether the district court correctly determined that appellant Contour transferred all substantial ownership rights to the '747 patent to nonparty Chic Optic. In which case Contour was still the owner of the patent and had standing to sue. A key feature of the patented combination is the placement of magnetic studs on the traditional eyeglass frame to improve the auxiliary eyeglass frame's attachment onto the traditional eyeglass frame. Among these were (1) the exclusive right to make. CHIC shall have the option to extend the Terms for another three (3) years from March 16.
	OPINION/ORDER
	MOBA, B.V., STAALKAT, V. DIAMOND AUTOMATION Argued for plaintiffs cross appellants.аа With him on the brief were Erik N. Galli.а Of counsel on the brief were Marvin Petry and Linda R. Argued for defendant appellant.а With him on the brief were John W. Mso pagination: none'>Diamond is a Michigan corporation that manufactures and sells high speed egg processing machines to sort batches of eggs into different categories by weight and quality.а Diamond developed these machines during the early 1980s with technology that significantly increased the processing speed for eggs.а Diamond obtained various patents covering aspects of that technology. The eggs are either packaged or discarded. Margin bottom:.0001pt'>ааааааааааа receiving said eggs in the receiving means disposed at said receiving station whereby the released eggs from both said parallel spaced apart rows of eggs fall on and are received by said receiving means.
	OPINION/ORDER With him on the brief was Jon E. Et al. were J. Et al. was Kara F. This is a patent case. Inc. (
	PITNEY BOWES V. HEWLETT-PACKARD With him on the brief were Thomas L. Of counsel on the brief was Michael J. With him on the brief were Jonathan A. Of counsel was James G. Hewlett Packard counterclaimed for a declaratory judgment that the patent in suit was invalid. Because the grant of summary judgment of non infringement was derived from the erroneous claim construction. Was issued on May 31. The '272 patent is entitled
	MOORE U.S.A., INC. V. STANDARD REGISTER COMPANY On the brief was Charles L. Of counsel were Steven E. The integral return envelope is created as part of the mailer during the folding and sealing process. See id.. 464 patent are illustrative:
	OPINION/ORDER With him on the brief were Robert J. Of counsel on the brief were Kevin R. With him on the brief were Michael J. Were diligent in reducing it to practice after. On cross appeal Clontech challenges three underlying partial summary judgments in favor of Invitrogen: (1) that the claims in suit are enabled. Reverse transcriptase (
	OPINION/ORDER Inc.
	TROVAN V. SOKYMAT SA Argued for plaintiffs appellees.
	BRISTOL-MYERS SQUIBB V. RHONE-POULENC RORER, INC., RHONE-POULENC RORER, S.A. Argued for plaintiff appellee.а With him on the brief were Thomas H. Argued for defendants appellants.а With him on the brief was Doris Johnson Hines. Of counsel on the brief was Ross J. That its 277 patent is unenforceable. 2001).
	LACKS INDUSTRIES V. MCKECHNIE VEHICLE Argued for plaintiff appellant.а With him on the brief was Jeffrey S. Creamer.а Of counsel on the brief was Remy J. Inc. (doing business as Thompson International).а With him on the brief was John C. Inc.)а Of counsel on the brief was William J. Michigan.а Of counsel was Kathryn A. 24 25 of the 213 patent were not proven invalid under з 102(b) as a result of any offer to sell or public use by Hayes or McKechnie and (2) that defendants product infringed claims 11 13. 24 25 of the 213 patent were not proven invalid as a result of the pre critical date public use or sale by Hayes or McKechnie.а Because the Special Master applied an incorrect legal standard. 24 25 of the 213 patent were invalid because of Lacks' pre critical date sales promotion activities.а Because we need not reach a mere affirmative defense.
	OPINION/ORDER With him on the brief were Stephen B. With him on the brief were Aaron Stiefel and Daniel P. With him on the brief were Edward C. Arguing that the `398 patent was unenforceable due to inequitable conduct and. We affirm the district court's grant of summary judgment on the ground that the patent is unenforceable due to inequitable conduct. Amount of [the peptide] 1deamino 8 D arginine vasopressin and a pharmaceutically acceptable carrier in solid oral dosage form for absorption in the gastrointestinal tract of said humans.
	OPINION/ORDER
	SUPERIOR FIREPLACE V. MAJESTIC PRODUCTS COMPANY Argued for plaintiff appellant.
	MYLAN PHARMACEUTICALS V. THOMPSON Argued for plaintiff appellee.
	ELI LILLY AND COMPANY V. ARADIGM CORPORATION Argued for plaintiff appellant.а With him on the brief were Todd G. Argued for defendant cross appellant.а With him on the brief were Tharan Gregory Lanier of Menlo Park. To have two of its scientists recognized as joint inventors on Aradigm's U.S. Line height:200%'>I Lilly is a pharmaceutical company.
	ADT CORP V. LYDALL
	SPEEDPLAY, INC. V. BEBOP, INC. With him on the brief was Richard . The effect of such assemblies is to allow the bicyclists to increase the power transmitted to the wheels by simultaneously applying a downward. Which are specially designed to interact with the cleats. Is the inventor and primary designer of Speedplay s bicycle pedals. Bryne was issued U.S. Was also a party to the license. Is the inventor of the Bebop bicycle pedals. In which Speedplay claimed that Bebop was infringing the 778 and 009 patents by manufacturing and marketing the Bebop clip less bicycle pedals. Speedplay alleged that Bebop was infringing Speedplay s trade dress under section 43(a) of the Lanham Act. Was engaging in unfair competition under California common law. Was violating the California Business and Professions Code.
	OPINION/ORDER With him on the brief was Jeffrey I.D. With him on the brief were Joseph A. 580 (
	OPINION/ORDER Et Al.
	LAMPI CORPORATION V. AMERICAN POWER PRODUCTS, INC With him on the brief were Michael A. Of counsel on the brief were G. Which is drawn to a miniature. The district court also concluded that the claims were not invalid. 227 patent is a small. Connecting element which is shaped into a housing which supports a fluorescent lamp tube 5.". The patent further explains:
	GENERAL ELECTRIC V. NINTENDO With him on the brief were Edward R. With him on the brief were John J. Of counsel on the brief were Charles P. GE is the assignee of three patents: United States Patent No. 4. All three of these patents are directed to television control circuitry. Nintendo counterclaimed that the '899 patent was invalid as anticipated. The appeal was submitted for our decision following oral argument on October 8. The '659 patent is directed to a synchronization signal generator for use in video source equipment such as television cameras and video record players. The '125 patent is directed to devices for retrieving stored picture information from the memory of a computer and displaying that information on a standard television screen or other display device. The NES and SNES systems are video game systems that display their games on television monitors. The Gameboy is a hand held video game system with a built in screen display. Nintendo filed summary judgment motions asserting non infringement by each of its products of the three patents in suit and further asserting that Claims 12 through 14 of the '899 patent.
	BAYER AG V. SCHEIN Argued for plaintiffs/counterclaim defendants appellees.
	ILAN GOLAN (DOING BUSINESS AS GOLAN PRODUCTS) V. PINGEL Argued for plaintiff appellant.
	OPINION/ORDER With him on the brief were Bruce R. Of counsel was H. With him on the brief were Edward C. The court will collectively refer to these parties as
	OPINION/ORDER Eli Lilly and Company.
	OPINION/ORDER Claim a competing property interest in any of the land. (1) Phelps Dodge is the ultimate parent company of MEMCO. The BLM determined that nine of MEMCO's claims satisfied patent requirements. The district court held that third parties who claim no ownership interest in the land subject to a mineral patent cannot challenge the issuance or validity of the patent under the 1872 Mining Law and have no right to relief under the APA. Is a matter of first impression. The Plaintiffs' second claim (FOIA) against the BLM is still pending in the district court and is not the subject of this appeal. subject matter jurisdiction. P. 12(b)(1) or 12(b)(6) is reviewed de novo). B. Subject Matter Jurisdiction Federal Appellees It is well settled that the Plaintiffs can only sue the BLM to the extent it waived its sovereign immunity. 1331 will only confer subject matter jurisdiction where some other statute provides such a waiver. Is entitled to judicial review thereof.
	OPINION/ORDER With him on the brief were Bruce M. Of counsel was Herbert W. Inc. were Darrell L. Of counsel on the brief were David M. Nor do we conclude that the district court abused its discretion in determining that infringement is likely and that the harm and public interest favors enjoining Teva and Ranbaxy. injunction. Many ACE inhibitors including quinapril are susceptible to degradation due to cyclization. They chose excipients known to have low moisture content. Claim 1 is a composition claim: A pharmaceutical composition which contains: (a) a drug component which comprises a suitable amount of an ACE inhibitor which is susceptible to cyclization. Claim 16 is a process claim: A process for stabilizing an ACE inhibitor drug against cyclization which comprises the step of contacting the drug with: For more background on the development of ACE inhibitors. Drug and Cosmetic Act.2 Because Teva was the first company to file an ANDA for the generic version of Accuprilо. Teva was entitled to a 180 day generic market exclusivity period pursuant to 21 U.S.C. з 355(j)(5)(B)(iv).
	SEXTANT AVIONIQUE, S.A. V. ANALOG DEVICES Of counsel on the brief was Maxim H. With him on the brief were Donald R. Which are small devices capable of detecting acceleration and which find utility in avionic and automotive applications. Was issued to inventor Gerard Marcillat on March 6. The flexible blades are anchored at their
	UNIVERSITY OF ROCHESTER V. G.D. SEARLE & CO.,INC., ET AL. Argued for plaintiff appellant.а With him on the brief were Emily A. Olson.а Of counsel on the brief was Jeanine Arden Ornt. Argued for defendants appellees.а With him on the brief were Richard G. Reisner.а With him on the brief were Robert L. Et al.а With him on the brief were Susan M. For amicus curiae Eli Lilly and Company.а With him on the brief were Steven P. 850 is invalid.а Univ. of Rochester v. Naproxen are believed to function by inhibiting the activity of enzymes called cyclooxygenases.а Cyclooxygenases catalyze the production of a molecule called prostaglandin H₂. Which is a precursor for other prostaglandins that perform various functions in the human body.а Id. at 219.а
	OPINION/ORDER With him on the brief were Richard J. Of counsel on the brief were Robert L. With him on the brief were Robert S. With him on the brief was Richard S. The active ingredient in Plavixо is clopidogrel bisulfate. Which is covered by Sanofi's patent. Which will expire on November 17. It is necessary to have a generalized understanding of stereochemistry. Stereochemistry refers to the threeMolecules that dimensional spatial arrangement of a molecule's constituent atoms. have the same chemical substituents. Are referred to as stereoisomers. They exist as nonsuperimposable mirror images of each other and are referred to as enantiomers. Enantiomers are optically active because they are capable of rotating plane polarized light. Enantiomers that rotate polarized light to the right are referred to as dextrorotatory enantiomers. Enantiomers rotating polarized light to the left are referred to as levorotatory enantiomers. Or l enantiomers.1 A mixture of equal amounts of both types of enantiomers is referred to as a racemic mixture.
	AUGUSTINE MEDICAL, INC. V. GAYMAR INDUSTRIES, INC. With him on the brief were Jacob M. With him on the brief was G. This court affirms the district court's decision that those claims are invalid under 35 U.S.C. 102(b) (1994). Surgery often calls for administration of cool intravenous fluids at a time when the patient's body cavity is open. A convective thermal blanket over the patient is thus necessary to prevent or treat hypothermia during and after surgery. Self supporting structure having a generally rounded or elliptical cross sectional shape which contacts the patient only at the tubes which are immediately adjacent the keystone tube.". Air pressure from the exit ports raises these tubes slightly above the patient so that none of the tubes are in contact with the patient. Figure 2 of the '188 patent is representative. Mallinckrodt and Gaymar manufacture and sell convective warming blankets to prevent or treat hypothermia. Mallinckrodt's and Gaymar's blankets (the accused blankets) are similar to each other in construction. Which was filed within one year after the display.
	ADVANCED CARDIOVASCULAR SYSTEMS V. MEDTRONIC Argued for plaintiff appellee.
	MOVA PHARM CORP V. SHALALA DONNA Anthony Figg was on the briefs. Howard S. United States Attorney at the time the briefs were filed. Were on the briefs. Steven J. Bickart was on the briefs. Ronald L. Rubin was on the brief. John F. This section was designated 21 U.S.C. 355(j)(4)(B)(iv). Because the statutory scheme governing the ap proval of successive generic drug applications is quite com plex. We will. The FDA was barred from approving Mylan's similar application until after the end of that 180 day period. Because at the time Mylan submitted its application Mova had not yet
	CHIUMINATTA V. CARDINAL INDUS.
	NATIONAL PRESTO V. WEST BEND
	OPINION/ORDER With him on the brief was Keith H. Of counsel was Catherine L. Jackson may not collaterally challenge the district court's previous judgment that he is entitled to only $2.65 million rather than $12 million in damages for the manufacture. Which was affirmed in a previous appeal. Jackson is not entitled to a second trial as a matter of right simply because the district court stayed his counterclaims of indirect infringement. Jackson argued that the jury's damages award was reasonable based on the evidence that he adduced at trial showing the benefits Glenayre's customers enjoyed by infringing the '900 patent. Or conveying
	OPINION/ORDER Of counsel on the brief were Jeff E. Of counsel was Krista L. With him on the brief were Mary E. The patents in suit) are unenforceable for inequitable conduct.1 Digital Control. Finding that there was no genuine issue of material fact that misstatements and omissions made by the inventor. During prosecution of the patents in suit were material. The district court determined that the misstatements and omissions were made with intent to deceive the United States Patent and Trademark Office (PTO) and that the level of materiality and the inference of intent were both high. Warranting a finding that the patents were unenforceable for inequitable conduct. We find that although there are no genuine issues of material fact as to the materiality of the misstatements in Dr. There are genuine issues of material fact as to the materiality of Dr. As the district court's determination of inequitable conduct was premised on the materiality of both the misstatements in the Rule 131 declaration and the failure to disclose prior art.
	OPINION/ORDER Anthony Figg was on the briefs. United States Attorney at the time the briefs were filed. Were on the briefs. Bickart was on the briefs. Rubin was on the brief. This section was designated 21 U.S.C. s 355(j)(4)(B)(iv). Because the statutory scheme governing the ap proval of successive generic drug applications is quite com plex. We will. The FDA was barred from approving Mylan's similar application until after the end of that 180 day period. Because at the time Mylan submitted its application Mova had not yet
	OPINION/ORDER Unpublished opinions are not binding precedent in this circuit. Because Larson & Taylor's actions were not the proximate cause of injury to ConMed and Aspen. Was sued by Megadyne Medical Products. The patent was recorded as Patent No. 4. The instrument patented is an electrosurgical blade coated in fluorinated hydrocarbon material. Finding that the `807 patent was not invalid. That the infringement was willful.2 After the jury's verdict. Larson & Taylor argued that the proper construction of the patent claim was an issue for the judge and not for the jury. Supp. at 1106.3 Among relevant issues for the jury were the extent with which the electrosurgical blade was covered by fluorinated hydrocarbon material. R. 36.4 ConMed and Aspen filed a petition for rehearing and suggestion for rehearing en banc that was denied by the Federal Circuit on May 1. ConMed and Aspen further alleged that this error caused direct harm to them because the Federal Circuit would have reversed the jury's decision and decided in their favor but for Larson & Taylor's failure to make these motions properly.
	OPINION/ORDER Of counsel were James Edward Hanft. On the brief was Richard L. Of counsel were Steven J. As well as the judgment that the patent is unenforceable. Inc. and Novo Nordisk A/S are research based pharmaceutical manufacturers. Novo Nordisk A/S is the assignee of the '352 patent. Which is entitled
	OPINION/ORDER With him on the brief were Joseph Angland. Of counsel on the brief was Elliot M. With him on the brief were Christopher S. Of counsel on the brief were Roy E. Of counsel on the brief were John W. With him on the brief were Morgan Chu and Jason D. Of counsel on the brief was Gordon A. With him on the brief were Steven M. There is no
	ACROMED V. SOFAMOR DANEK GROUP Argued for plaintiff appellee.
	MICHAEL L. MCGINLEY V. FRANKLIN SPORTS, INC., Argued for defendant cross appellant.
	TRANSCLEAN CORPORATION, V. BRIDEGWOOD SERVICES Argued for plaintiffs appellants.
	OPINION/ORDER With him on the brief were Matthew D. Of counsel on the brief were Timothy E. With him on the brief were Vicki Margolis and Rebecca G. With him on the brief were Lauren A. Of counsel on the brief were Mark J. Of counsel was William J. The term electrosurgery refers to a surgical technique in which high frequency electrical current is applied to cut or ablate body tissue. There are two forms of electrosurgical devices. Electric current passes from a single exposed electrode into the body tissue that is to be ablated. Both electrodes are inserted into the body. There are disadvantages to applying high voltages within the patient's body. Including the risk that the electrical discharge will cause damage other than to the target tissue. Are owned by ArthroCare Corporation. In the United States District Court for the District of Delaware claiming that Smith & Nephew was liable for infringement of those patents based on its manufacture of certain electrosurgical probes and the use of those probes in surgery. Smith & Nephew's theory of antitrust liability was that ArthroCare and Ethicon had settled an earlier dispute in a manner designed to restrain other competitors from entering the market for electrosurgical devices and that ArthoCare had brought this action.
	PATENT OFF PROF ASSN V. FLRA
	JAZZ PHOTO CORPORATION V. DYNATEC Inc.
	OPINION/ORDER Unpublished opinions are not binding precedent in this circuit. The district court held that the '657 patent was invalid because it failed to name Dr. The court therefore concluded that the agreement between the Levins and Septodont was unenforceable for lack of consideration. A numbing cream that is used to reduce the pain caused by mouth ulcers. Harmony was unable to find a solution. Non alcoholic mouth rinse was patentable. Inc.) received an exclusive license to use the patent with an option to have the patent assigned to it free of charge at any time. The Patent Office initially rejected Eastman's patent application on the ground that the mouth rinse was obvious in light of the prior art. Non irritating solvent was a non obvious contribution to the field. Five Eastman scientists were listed as the inventors of the mouth rinse. Eastman was listed as the patent's assignee. Including a claim for a declaratory judgment that the '657 patent was invalid because it failed to list Dr. Contending that the contract was unenforceable for lack of consideration because the Levins had failed to convey valid patent rights.
	OPINION/ORDER Eagle argued the cause for appellant.
	OPINION/ORDER
	OPINION/ORDER
	NATIONAL STEEL CAR, LTD. V. CANADIAN PACIFIC RAILWAY, LTD, ET AL. Argued for plaintiff appellee.а With him on the brief were David P. Illinois.а Of counsel was Alexandra DeNeve. Argued for defendants appellants.а With him on the brief were Marc S. Addresses a particular type of railway car used to haul lumber: a depressed center beam flat car.а Figure 1 of the '575 patent shows a longitudinal section through one side of the car and is reproduced below. The car described in the '575 patent is a ". Car because the primary structure of the car is a truss like beam element that runs the length of the center of the car between the wheel assemblies. In the front and back of the car.а Center beam cars are an industry standard for hauling lumber. Which is piled onto a floor that extends laterally to each side of the car from the bottom of the center beam and then secured to the center beam.а Canadian Pacific currently operates a fleet of center beam flat cars.ааа
	BELL ATLANTIC V. COVAD COMMUNICATIONS GROUP, INC Argued for plaintiff appellant.
	BRISTOL-MYERS V. ROYCE
	FERGUSON BEAUREGARD/LOGIC CONTROLS V. MEGA SYSTEMS Argued for both plaintiffs appellants.а On the brief for plaintiff appellant Ferguson Beauregard/Logic Controls was T. Were Gerald L. (3) the district court s conclusion that Bartley was not personally liable for inducing Mega to infringe the 991 patent andа U.S. Line height:200%'>BACKGROUND Overview of the Technology The patents in this case concern control systems and related methods used in the production of petroleum products from a well.а While some wells are capable of producing (or outpouring) liquid petroleum products under naturally induced reservoir pressures. It is more common for wells to require an artificial lift mechanism to be productive.а 991 patent. Ll. 7 11.а One such artificial lift system repetitively causes pressure to build by first closing in the well while it is subject to the inflow of liquids.а Id. at ll. 14 18.а After the proper combination of pressure and liquid develops.
	OPINION/ORDER With him on the brief were Paul K. With him on the brief was Sharon A. A. The Technology and Patent BACKGROUND Acumed is the assignee of the '444 patent. Which is directed to an orthopedic nail for the treatment of fractures in the humerus (the upper arm bone which ends in the shoulder ball at top and the elbow joint at the bottom). Regarding the humeral nail Stryker was in the process of developing. I advised that the nail must not be provided with a curvature as this is a feature of independent claim 1. In which he echoed Graalfs' concerns: [T]he Stryker Trauma humeral nail would have each and every element of claim 1 . . . of the '444 patent. . . . [I]t is our opinion that there is no strong invalidity argument which could be used against all the '444 issued claims based on the prior art known at this time. . . . It is our opinion that a curved version of the Stryker Trauma humeral nail . . . should not be marketed in the United States. This opinion letter was longer and more detailed than the earlier memo to file.
	ELK CORPORATION OF DALLAS V. GAF BUILDING MATERIALS CORPORATION With him on the brief were Arthur S. Also on the brief was Larry D. With him on the brief was Brendan J. Also on the brief was Charles A. Circuit Judge. The question in this design patent case is whether U.S. 144 (the '144 patent) is unenforceable due to inequitable conduct in its prosecution. GAF counterclaimed by filing for a declaratory judgment that Elk's design patent is unenforceable due to inequitable conduct by the patent applicants and their patent attorney in the prosecution of the patent. Elk and GAF are manufacturers of roofing shingles. Composite roofing shingles which are often referred to as ". Some of whom were Elk employees. This shingle's construction is similar to the one described in Bettoli's patent No. 3. 358 which is also enclosed. A search was made and Mr. Weaver was sent a search report. One of the patents discussed in the search report was U.S. Weaver wrote a memo to a co inventor pointing out that the Giles patent was ". Weaver's memo were forwarded to a patent attorney at Baker &.
	PPG INDUSTRIES V. GUARDIAN
	OPINION/ORDER With him on the brief were Robert G. Of counsel was Pamela S. With him on the brief were Paul R.
	AJINOMOTO CO., INC. V. ARCHER-DANIELS-MIDLAND CO. With him on the brief were Arthur I. Of counsel on the brief was Catherine B. With him on the brief was Kevin C. Of counsel on the brief were Ari . Of counsel were Martin L. ADM also appeals the district court's ruling that the '765 patent is valid and enforceable. Ajinomoto cross appeals the ruling that infringement was not willful. The judgment is affirmed. With modification of the damages period.
	MERCK V. KESSLER
	OPINION/ORDER With him on the brief were Stephen P. With her on the brief were Gerald F. Of counsel on the brief were Stuart L. With him on the brief were Michael Eisenberg. Of counsel was John D. Ltd.'s (
	COLE V. KIMBERLY-CLARK
	CARDIAC PACEMAKERS, INC., ET AL. V. ST. JUDE MEDICAL, INC., ET AL. Argued for plaintiffs appellants.а With him on the brief was Jeffrey B. Of counsel on the brief was Richard R. Font family:Arial'>.а Also on the brief were J. Argued for defendants cross appellants.а With him on the brief was H. Mark Lyon.а Also on the brief was Mark A. Font family:Arial'>.а Of counsel on the brief were Jeffrey M. Font family:Arial'>This patent infringement action was brought by Cardiac Pacemakers. Or quivering fashion (fibrillation).а Arrhythmias may occur in varying degrees.а In treating such heart abnormalities it is important to determine the form and degree of arrhythmia present. Font family:Arial'>The inventions subject of this lawsuit are implantable cardiac defibrillators (ICDs) that are permanently installed under the skin.
	HOFFMANN-LA ROCHE V. PROMEGA Argued for plaintiffs appellants.а With her on the brief were Todd A. Krause.а Of counsel on the brief were Barbara A. California.а Of counsel were S. Argued for defendant appellee.а With him on the brief were Michael E. Davis.а Of counsel on the brief were Peter G. A segment of DNA is separated at high temperature into its two component strands.а Then. Small pieces of synthetic DNA called primers are annealed to specific locations on the separated strands.а Enzymes known as DNA polymerases then extend the primers by attaching a complementary nucleotide to each nucleotide in the template strand.а In this manner. Extension is then performed repeatedly. Resulting in the production of a large number of identical DNA strands. When PCR was first developed.
	OPINION/ORDER
	OPINION/ORDER With him on the brief were Shepard M. Of counsel on the brief were Allyn Z. With him on the brief were Robert L. Each of which covers and is directed to various aspects of Famvirо. The '937 patent is directed to the active ingredient in Famvirо. While the remaining Orange Book patents are directed to methods of therapeutic use (
	UNIV OF COLORADO V. AMERICAN CYNAMID CO. With him on the brief were Harold A. Of counsel on the brief were Robert N. Colorado Of counsel was Mark A. With him on the brief was Thomas . Also on the brief were Daniel J. Materna 1.60 (Materna) is a prenatal multivitamin/mineral supplement produced and sold by Lederle Laboratories. That lawsuit alleged (1) that the Doctors (who were medical researchers at the University of Colorado Health Sciences Center) invented the reformulation of Materna covered by the 634 patent claims and communicated the invention to Dr. The University also sought equitable title to the 634 patent and sought to have the Doctors named as the inventors in the 634 patent under 35 U.S.C. з 256 (1994).
	OPINION/ORDER Page 2 I This is a trademark infringement case brought by a Japanese maker of fishing tackle against American distributors of competing goods. The goods at issue are fishing line guides. Different guides have different fishing uses. Lighter guides are used on fly rods or fresh water spinning rods. While heavier guides are used on rods that require little casting or heavier bait. Strength in several dimensions is as important as flexibility. Aerodynamic when the rod is in motion. Fuji is a family run company. The President is the grandson of the founder. Four patents are here relevant and they are depicted. All of these patents teach a method of manufacture where the line guide is formed from a single piece of sheet metal. The guides at issue in this case are also made by stamping and forming. Figure 1a illustrates how Fuji's model N line guide is made from forming stamped metal. Fuji applied for and was granted seven design patents. Are illustrated in Figure 2. Examples of the allegedly infringing designs against which Fuji took action are not included in the record.
	OPINION/ORDER With him on the brief were James P. With him on the brief was Kevin K. Of counsel were Robert C. ConAgra cross appeals from the district court's judgment that the patent claims are not invalid. Oxidizing agents are used during the breadmaking process to strengthen dough. Potassium bromate was widely used as a slow acting oxidant to improve the quality of bread. There was growing concern about the carcinogenic effects of potassium bromate. Kim filed suit against ConAgra alleging that ConAgra induced the infringement of independent claims 5 and 10 of the reissued '355 patent.1 Claims 5 and 10 were newly added during prosecution of the reissue application. The accused conduct was that ConAgra required licensees of its
	PANNU V. IOLAB
	OPINION/ORDER With him on the brief was Charles J. Of counsel was Richard H. With her on the brief were Daniel J. Of counsel was Christl M.N. 548 (the `548 patent) are infringed by Ormco's
	OPINION/ORDER With him on the brief were Alexander L. With him on the brief were Robert S. Of counsel on the brief was Ronald S. The NSAID is the active ingredient for reducing eye inflammation. Neither ingredient is water soluble. These complexes will eventually cause the mixture to look cloudy or lose its antibacterial properties. The appellees are collectively referred to as
	OPINION/ORDER With him on the brief was James J. Of counsel on the brief was Michael H. With him on the brief were Frank A. (
	OPINION/ORDER With him on the brief were Becky R. With him on the brief was Katherine A. Which are made from a polymer and wood fiber mixture. The parties have classified the six asserted patents into two groups. The parties agree that the disputed claim terms
	APTIX CORP., ET AL. V. QUICKTURN DESIGN SYSTEMS, INC., ET AL. Will &. Argued for plaintiff/counterclaim defendant appellant Aptix Corporation.
	THE REGENTS V. ELI LILLY AND CO.
	HARRIS CORP. V. IXYS CORP.
	OPINION/ORDER For appellee.
	OPINION/ORDER With him on the brief were Neil P. Of counsel on the brief was Patrick Lysaught. With him on the brief were John A. Of counsel was Courtney M. Of counsel on the brief were Norman C. Reinstate the jury verdict that the patents were not invalid for obviousness. We affirm the district court's decision that it could not correct the '492 patent and that the claims of the '492 patent were invalid. We also affirm the district court's decisions that (1) the '752 patent was retroactively reinstated by the payment of overdue maintenance fees. (2) summary judgment of noninfringement regarding Modified Machine No. 7 was appropriate. We further hold that the terminal disclaimer of the '752 patent was effective. BACKGROUND I This is the third time this case has come before this court. We reversed the district court's judgment that the '492 and '752 patents were invalid due to an on sale bar. II Group One is the assignee of the '492 and '752 patents. Is the named inventor on both patents. Claim 1 of the patent is representative of the claims at issue and reads: 04 1296.
	OPINION/ORDER With him on the brief were Peter J. With him on the brief was Francis C. Of counsel on the brief were Jeffrey S. That the claims of the '712 patent are invalid and/or not infringed by the manufacture. Or sale of the products for which approval was sought. Cipla is the intended supplier of EO for Ivax and contributed information for the filing of the ANDA. Stereoisomers are compounds that contain the 1 35 U.S.C. з 271(e)(2)(A) provides: It shall be an act of infringement to submit an application under section 505(j) of the Federal Food. Cosmetic Act or described in section 505(b)(2) of such Act for a drug claimed in a patent or the use of which is claimed in a patent if the purpose of such submission is to obtain approval under such Act to engage in the commercial manufacture. Or sale of a drug or veterinary biological product claimed in a patent or the use of which is claimed in a patent before the expiration of such patent. 2007 1059 2 same constituent atoms and the same bonding between those atoms but have different spatial arrangements.
	RESQNET.COM, INC V. LANSA Argued for plaintiff appellant.а With him on the brief was Timothy X. Argued for defendant appellee.а With him on the brief was D. The dumb terminal sent all data entry ba
	OPINION/ORDER With him on the brief was Corby R. With him on the brief were Philip J. On the brief for Lecroy Corporation were Frank E. Inc. was John C. Was assigned to Canada. The inventors of the '147 patent are founding members of Sicom who developed the technology through their own research in connection with a contract with the Canadian government. Slip op. at 3 4. 05 1066 3 The court was not persuaded that the Amendment granting Sicom
	OPINION/ORDER The following sentence was inadvertently left out of the opinion: . Attached you will find a corrected copy of the opinion.
	VECTRA FITNESS V. TNWK CORP
	OPINION/ORDER With him on the brief were Marc R. MBO conceded that under the district court's claim construction there was no infringement of the patent claims. The technology The RE '885 patent is directed generally to a design for a hypodermic safety syringe. Are covered in some manner soon after removal from the patient. MBO's syringe is described in detail in the patent. It is essentially structured by having the needle or cannula mounted inside a guard sleeve. When the needle is removed from the patient. A
	FESTO CORPORATION V. SHOKETSU Argued for plaintiff appellee.а With him on the brief were Glenn T. Argued for defendants appellants.а With him on the brief were Charles L. Pous.а Of counsel on the brief was Ja
	OPINION/ORDER With him on the brief were Lewis R. Of counsel on the brief were William L. With him on the brief was Matthew J. Of counsel on the brief were Richard D. Most notably the drag forces experienced when the blade unit is moved over the skin. With the consequence that the overall performance of the blade unit [was] markedly inferior [compared to two bladed razors] despite a closer shave being obtained.
	OPINION/ORDER With him on the brief was Michael H. With him on the brief were Randall T. With him on the brief was Charles E. 119 (
	HELIFIX LIMITED V. BLOK-LOK, LTD The district court held that the 801 patent was invalid by reason of anticipation and the on sale bar under 35 U.S.C. з . That application was a divisional of Application Serial No. 08/491. Which was a continuation in part of Application Serial No. 08/204. The patent is directed to a method of securing layers of masonry (". The typical tie is described as spiral shaped. Impactingly drives the tie and (9) rotatably permits the same to rotate as a helical bed is developed in the first wythe due to penetration by the tie.
	ELECTRO SCIENTIFIC INDUSTRIES V. GENERAL SCANNING Argued for plaintiffs cross appellants in 99 1523 and 00 1141.
	HESS V. ADVANCED CARDIOVASCULAR
	CORDIS CORPORATION, V. MEDTRONIC Argued for plaintiff appellant Cordis Corporation.а With him on the brief were Eugene M. McDermott Will &. .а With him on the brief were Donna M. Blinkova.а Of counsel on the brief were D. Medinol Ltd.а With him on the brief was Charles R. An inflated balloon crushes built up plaque against the arterial wall to improve blood flow.а The balloon is withdrawn at the end of the procedure. Which allows the artery to close again over time.а A stent of the sort disclosed in the patents at issue in this case is mounted on an angioplasty balloon and is forced to expand against the arterial walls when the balloon is inflated.а When the balloon is deflated and wit
	INTEGRA LIFESCIENCES I, LTD V. MERCK Argued for defendant appellant Merck KGaA.а With him on the brief were Thomas H. Townsend.а Of counsel on the brief were M. Of counsel was Esther H. Ltd. and The Burnham Institute.а With him on the brief was David M. Beckwith.а Of counsel on the brief were Raphael V. Will &. Mso bidi font family:
	ELI LILLY & CO., V. BOARD OF REGENTS OF THE UNIVERSITY OF WASHINGTON Argued for appellant.а
	STARK V. ADV. MAGNETICS
	FLEX-FOOT, INC. V. CRP, INC. With him on the brief was Darrell L. With him on the brief were Gary A. Its holding that Springlite is collaterally estopped from presenting its patent invalidity defenses and counterclaim. We affirm.
	THE UNIVERSITY OF COLORADO FOUNDATION V. AMERICAN CYANAMID Argued for plaintiffs appellees.аа Of counsel on the brief were Harold A. Colorado.а Also of counsel on the brief were Robert N. Argued for defendant appellant.а With him on the brief were Richard W. Elliot.а Of counsel on the brief were Donald R. Mso bidi language:AR SA'>[1] as a preface to the discussion of the issues on appeal.а Our recitation of the facts is based on the findings made by the district court after trial. Prenatal supplements containing 60 65 mg of iron are widely used to ensure that pregnant women absorb the approximately 3.5 mg of supplemental iron per day they requ
	CROWN OPERATIONS INTERNATIONAL V. SOLUTIA Argued for plaintiffs appellants.
	DH TECHNOLOGY V. SYNERGYSTEX
	OPINION/ORDER With him on the brief were Jeffrey D. A view of this system is shown in Figure 7 of the '489 patent. Steelcase stipulated that it was liable for Office Details. The case was bifurcated against Office Concepts. The claims against Office Details and Office Concepts were therefore dismissed. The claim terms at issue in this appeal were construed in a Memorandum Opinion and Order of November 10. At issue in the '489 patent was a limitation related to keyboard position as highlighted in claim 1 below: 1. To prevent the keyboard from falling off when the keyboard is orientated in said backward tilted position. Such that said stop wall extends from said first side wall to said second side wall and wherein said stop wall is disposed in said rear portion of said support surface. Rosecrance was allowed to testify to his field of expertise. Was precluded from testifying as an expert regarding designs of keyboard support systems and the prior art at the time of the invention. At issue in the '231 patent was the
	OPINION/ORDER With him on the brief were Korula T. Of counsel on the brief were Joseph Lin. Of counsel was C.J. With him on the brief were James A. BACKGROUND I 02 Micro is the holder of U.S. The principal use of the circuit is to convert the direct current supplied by laptop batteries into the alternating current required for the cold cathode fluorescent lamps (
	OPINION/ORDER With him on the brief was Theodore R. With him on the brief were Frederick H. Of counsel on the brief was Gregory L. Liebel Flarsheim Company and Mallinckrodt Inc. (collectively
	ROSCO, INC V. MIRROR LITE Argued for plaintiff appellant.
	OPINION/ORDER The last U.S. patent covered by the agreement was scheduled to expire in May 1993. While the last Canadian 2 No. 01 2466 patent was not scheduled to expire until September 1995. Scheiber acceded to the suggestion and the agreement was drafted accordingly. Federal jurisdiction over the suit is based on diversity of citizenship. Patent misuse) is irrelevant to jurisdiction. Because the royalties were to be based on Dolby's sales of equipment within the scope of the patents and once a patent expires. There is no equipment within its scope. Anyway the reference to equipment within the scope of the patent was clearly meant to identify the equipment on which royalties would be based (Dolby makes equipment that does not utilize Scheiber's patents as well as equipment that does) rather than to limit the duration of the obligation to pay royalties. Dolby's principal argument is that the Supreme Court held in a decision that has never been overruled that a pat No. 01 2466 3 ent owner may not enforce a contract for the payment of patent royalties beyond the expiration date of the patent.
	DUPONT V. BRISTOL-MYERS
	CATALINA LIGHTING, INC V. HOME DEPOT That these patents have not been shown to be invalid or unenforceable. We affirm in part and reverse in part the damages award because it is contrary to law.
	DAYCO PRODUCTS, INC., V. TOTAL CONTAINMENT Argued for plaintiff appellant.а With her on the brief were Edward V. Argued for defendant appellee.а With him on the brief was John J. The district court concluded that there was no liability for infringement.а Because we conclude that summary judgment for the defendant was improper and genuine issues of material fact remain to be determined. Cir. 2001) ( Dayco I ).а Dayco is the owner of the 752. Inc. ( TCI ) is accused of infringing certain claims of those patents.а In the earlier appeal. The remaining asserted claims were:а claims 1. This time on the ground that the patents were unenforceable due to inequitable conduct during prosecution. That the asserted claims were invalid as anticipated.а
	MICRO CHEMICAL INC. V. GREAT PLAINS CHEM
	OPINION/ORDER With him on the brief were Jamie H. Of counsel were Justin M. With him on the brief were Gordon G. EEI stipulated that the patents in suit were valid and enforceable for purposes of the litigation. The court partially granted EEI's motion for summary judgment of noninfringement of the '151 patent by holding that there was no genuine issue of material fact that EEI literally infringed the '151 patent. That there was a sufficient issue of fact regarding Conoco's remaining claims for doctrine of equivalents infringement. That defendants Eaton and Grabois did not have personal liability for the infringement.1 Conoco. A. The Patents in Suit BACKGROUND The patents in suit encompass processes for making drag reducing agents (
	ROBOTIC V. VIEW ENGINEERING
	CRYSTAL SEMICONDUCTOR CORPORATION V. TRITECH MICROELECTRONICS INTERNATIONAL, INC Argued for plaintiff appellant.
	STUDIENGESELLSCHAFT V. SHELL OIL
	HEIDELBERG HARRIS, INC. V. LOEBACH
	OPINION/ORDER With him on the brief were Bruce M. With him on the brief were Francis D. With him on the brief were David M. Of counsel was Kenneth A. 450 (
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. The only portion of that case that is relevant to the present appeal is Cordis's claim that Boston Scientific Corporation infringed U.S. Which is directed to stents used in the treatment of coronary artery disease. Robert Fischell and his two sons are the named inventors. The jury found that Boston Scientific's accused stents literally infringed the '370 patent and that the patent was not invalid. That under the reverse doctrine of equivalents Boston Scientific was not liable for the infringement. Upheld the jury's verdict that the patent was not invalid. The '370 patent issued from an application that was a continuation in part of the application that issued as the '312 patent. The Hillstead reference first came to light when it was cited in a European search report in the spring of 1995. Fischell was handling the prosecution of the U.S. application himself. Was handling the prosecution of a foreign counterpart application. The European search report was therefore sent to Mr.
	CELERITAS V. ROCKWELL
	AK STEEL CORPORATION, V. SOLLAC Argued for plaintiff appellant.а With him on the brief was Ann G. Argued for defendants cross appellants.а With him on the brief were Steven E. 135 was not infringed by Sollac and Ugine (collectively. 549 are invalid.а AK Steel Corp. v. Which are directed to hot dip aluminum coated stainless steel.а The 549 patent issued from an application that was a continuation of the application from which the 135 patent issued.а As such. The two patents have different claims but share a common specification.а That specification explains that aluminum coated stainless steel has desirable resistance to corrosion and high temperature oxidation.а 135 patent. Ll. 14 23.а Those properties make such steel useful in the manufacture of components for use in automotive exhaust systems and combustion equipment.а Id.а Hot dip aluminum coated steel is produced by passing heated steel strips through molten aluminum.
	GLAXO, INC. V. NOVOPHARM, LTD.
	ABBOTT LABORATORIES V. DEY Argued for plaintiffs appellants.
	TANABE V. U.S.
	01-1003 -- DOW CHEMICAL V. ASTRO-VALCOUR Argued for plaintiff appellant.а With him on the brief were Arthur M. Rudenko.а Of counsel on the brief was Bruce M. Argued for defendant appellee.а With him on the brief were Robert F. Mettes.а Of counsel on the brief was Sheila Ann Ozalis. Connecticut.а Of counsel was Anita Pamintuan Fusco. A prior inventor must have known that he was an inventor.а We conclude that such a state of mind is not required.а Accordingly. 361 (the
	OPINION/ORDER With him on the brief was Amber Hatfield Rovner. Of counsel was Douglas A. With him on the brief were Michael A. Wherein each said element type and its associated attributes are subject to pre defined constraints providing element characteristics in conformance with said uniform and aesthetically pleasing look and feel for said interface screens. Whereby the aggregate layout of said plurality of selected elements on said interface screen under construction will be aesthetically pleasing and functionally operable for effective delivery of information to a kiosk user. At issue in this appeal is the definiteness of
	NORIAN CORP. V. STRYKER CORP. Argued for plaintiff appellant.аа With him on the brief were Daniel L. Stops.а Of counsel was Carl Bretscher. Argued for defendant cross appellant.а With him on the brief were Timothy J. 065 (the '065 patent).а Trial was held in part to a jury and in part to the bench.а The United States District Court for the Northern District of California held that the claims in suit are invalid or not infringed.
	OPINION/ORDER With him on the brief were Nancy Winkelman. With him on the brief was Jennifer A. With him on the brief was Herbert Blecker. Of counsel were Richard W. Inc. (
	MID-WEST CONVEYOR CO. V. JERVIS B. WEBB CO. Are competitors in the business of manufacturing unit handling conveyor systems for various industries. Webb argues that the License Agreement is only a grant of a license in its United States patent and. (2) Even if the geographic scope of the Agreement is ambiguous. Because we agree with the district court that the Agreement is ambiguous. Because we conclude that the district court's de termination of the parties' intent was not clearly erroneous. B A C K G R O U N D Mid West and Webb are competitors who both manufacture and sell unit handling conveyor systems. GM awarded the (1) The wide dog transfer mechanism is used to transfer objects. Which was drafted by Webb. The second recital clause of the Agreement states that
	JIM ARNOLD CORP. V. HYDROTECH SYSTEMS
	OPINION/ORDER With him on the brief was James D. With him on the brief was Timothy G. Found that the patent was valid and willfully infringed. I The basic facts are largely undisputed. Junker was an inventor and a salesman of medical devices. Galt asserted that the D'839 patent was invalid under several provisions of 35 U.S.C. з 102 because Junker was not the first to invent the claimed design. Junker contended that the scope of his D'839 patent claim was limited to a single ornamental feature of the introducer sheath. Galt also moved unsuccessfully for partial summary judgment under 35 U.S.C. з 171 on the ground that the D'839 design was functional rather than ornamental. The claim of the D'839 patent was never judicially construed. Before the case was submitted to the jury. 1271 3 contended that the claim of the D'839 patent was invalid under 35 U.S.C. з 102(e) based on the earlier filing date of the '914 patent. Do you find from clear and convincing evidence that plaintiff was not the first inventor of the design described in the '839 patent?
	GLAXO GROUP LIMITED, ET AL. V. APOTEX, INC. Argued for plaintiffs appellees.а With him on the brief were Michael F. Pennisi.а Of counsel was Thomas M. Argued for defendant appellant.а With him on the brief were Hugh L. Also affirm that the patents at issue are not invalid. Line height:200%'>Glaxo is the owner by assignment of a series of patents directed to antibiotics in the cephalosporin family.а In the 1970s. 153.а Cefuroxime required intravenous or intramuscular injection because of bioabsorption difficulties and was therefore of limited usefulness.а Glaxo then synthesized a family of cefuroxime esters that were capable of oral administration and obtained U.S. Patent disclosed CA
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. (2) that Metal Lite infringed the `760 patent and is liable for damages in the amount of $7. The district court's award of priority was based on a jury's finding that the invention of the `760 patent was reduced to practice before the invention of the `203 patent. Metal Lite's sole argument on appeal with respect to the priority issue is that the district court erred in not granting its motion in limine to bar Slip Track. Assignee estoppel is an equitable doctrine which. There are still circumstances in which the equities of the contractual 04 1070 2 relationships between the parties should deprive one party . . . of the right to bring that challenge.
	SCHERING CORP. V. ROUSSEL-UCLAF SA
	AKAMAI TECHNOLOGIES, INC. V. CABLE & WIRELESS Argued for plaintiffs appellees.а With him on the brief were Pamela B. Argued for defendant appellant.аа With him on the brief were Susan T. California.а Of counsel were Brian Siritzky. ) are valid and infringed. Are anticipated by U.S. ) and are therefore invalid u
	OPINION/ORDER
	US SURGICAL CORP. V. ETHICON INC.
	OPINION/ORDER With him on the brief were Candice C. Of counsel was Todd Stockwell. With him on the brief were Stacey A. This is a patent infringement and antitrust case dealing with a unique ice cream product. 156 (
	OPINION/ORDER Of counsel on the brief was Alan H. With him on the brief were Julian D. Of counsel were Ross R. With him on the brief were Ronald P. This invention includes both
	OPINION/ORDER With him on the brief were Michael J. Of counsel was Scott A.M. With him on the brief were Robert J. Of counsel on the brief were Kevin R. Because the evidence does not support the court's finding that the relevant tests put Invitrogen on clear notice that certain products were not covered by the patents used to mark those products. Which was filed on January 13. The '396 application was continued as U.S. The '156 application was divided. The '260 application was continued as U.S. Was again continued as U.S. 260 application was continued as U.S. The claims in all four patents are generally directed to RNase H deficient Reverse Transcriptase (
	OPINION/ORDER With him on the brief were Jonathan T. On the brief were Robert M. 094 (the '094 patent) is invalid under 35 U.S.C. з 102(b). Thus is not a party to the present appeal. Broadcast and IO Research will collectively be referred to as
	OPINION/ORDER With him on the brief was Stuart E. Of counsel on the brief were Henry J. With him on the brief was Kyle B. Of counsel on the brief was Richard A. The allegations were based on OWL's filing of an Abbreviated New Drug Application seeking approval from the Food and Drug Administration to market a generic version of the drug leuprolide. Seeking a declaration that the patents were not infringed. Were invalid. Were unenforceable. The jury found that the '721 and '228 patents were not invalid and that OWL's infringement was not willful. The district court addressed OWL's claim that the '721 patent and the '228 patent were unenforceable due to inequitable conduct. 1635 2 The parties have not appealed the jury's verdict on either of the issues resolved by the jury. From its decision that the '721 and '228 patents are not unenforceable. I OWL's appeal is limited to the '721 and '228 patents. The '721 patent is directed to certain biodegradable high molecular polymers that have good aging stability and are useful as excipients in pharmaceutical preparations.
	HONEYWELL INTERNATIONAL, INC., ET AL. V. HAMILTON SUNDSTRAND CORPORATION For plaintiffs appellants.а Wi
	OPINION/ORDER In
	OPINION/ORDER
	TEVA PHARMACEUTICALS V. FDA With them on the briefs was David M. Far quhar were on the brief for appellant Purepac Pharmaceuti cal Company. Andrew E. With him on the brief were David W. With him on the brief were Eugene M. Appellants are
	MINCO, INC. V. COMBUSTION ENGINEERING
	OPINION/ORDER With him on the brief was Christopher Landau. Of counsel on the brief was Sarah Sklover. Of counsel was John C. With him on the brief was William G.Todd. With him on the brief were Frank E. (Sandel) cross appeal the district court's final decision that other remaining claims were not barred by public uses or premature sales activity. This type of accident is called a
	OPINION/ORDER With them on the briefs was David M. Far quhar were on the brief for appellant Purepac Pharmaceuti cal Company. With him on the brief were David W. With him on the brief were Eugene M. Appellants are
	RIVERWOOD INTERNATIONAL CORPORATION V. R.A. JONES Argued for plaintiff appellant.а With him on the brief was Dennis H. Hranitzky.а Of counsel on the brief were Wellington M. Argued for defendant cross appellant.а With him on the brief was P. Andrew Blatt.а Of counsel on the brief was Bryan Cermak. Michigan.а Of counsel was Jerry B. 806 ( the 806 patent ) is prior art by admission to the two patents in suit.а We also hold on the cross appeal that the district court did not err by construing the term flight bars to include a plurality of pieces. We vacate the holding that the 806 patent is prior art by admission. Such as those used in the food and beverage industries to group cans and bottles and lo
	OPINION/ORDER With him on the brief were Mark W. With him on the brief was Mark P. Of counsel was Ward Brown. This is the second time we have heard an appeal in this case. 414 (
	ULEAD SYSTEMS, INC. (A CALIFORNIA CORPORATION), ET AL. V. LEX COMPUTER AND MANAGEMENT CORP. Argued for plaintiff cross appellant and cross defendant cross appellant.а With him on the brief were Jon E. Argued for defendant/cross claimant appellant.аа With him on the brief was Jeffrey G. 188 ( the 188 patent ) is unenforceable and expired because Lex falsely claimed status (and paid maintenance fees) as a small entity.а Lex also appeals the district court s award of attorneys fees under 35 U.S.C. з . A Taiwan corporation ( U
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. The appellee is one of a family of companies under common ownership and control. It provided that: (1) the agreement was to be effective between January 7. Was also producing the AD10 coffeemaker for Mr. Coffee that it had a design patent on the AD10 and therefore that it was entitled to sell the product to others. Coffee was infringing the '585 patent. Although Sunbeam was in bankruptcy. Sunbeam contended that Sunbeam was the exclusive owner of the '585 patent. That (1) Sunbeam was not a joint inventor of the '585 patent. (2) Wing Shing was not barred by the doctrine of equitable estoppel from pursuing its infringement claim. Sunbeam was barred by the statute of limitations from pursuing that claim. (4) Wing Shing was barred by the doctrine of laches from claiming damages for pre suit infringement. (5) Wing Shing did not give Sunbeam notice of infringement prior to filing suit and for that reason as well was barred from claiming damages for pre suit infringement.
	OPINION/ORDER With him on the brief was Danielle Janitch. With him on the brief were John F. 703 was invalid. BACKGROUND The central issue on appeal is whether the district court possessed the requisite jurisdiction for it to decide the merits of this declaratory judgment action. That determination was based on whether a case of actual controversy existed between Microchip and Chamberlain. The district court held that there was such a controversy and proceeded to decide the merits of the case. The declaratory plaintiff appellee is Microchip. A microprocessor is. A circuit that is embedded in a semiconductor chip and is capable of processing inputted electronic signals and performing electronic functions in response to those signals. Is Microchip's KEELOQо technology. The GDO user is not required to manually input into the microprocessor of the GDO the opening code contained in the remote transmitter. Is not required to program the It may choose to purchase Microchip microprocessor with the KEELOQо software. 05 1339 2 Microchip's microprocessor alone and program the microprocessor with its own or a third party's
	OPINION/ORDER With him on the brief were Calvin L. Of counsel on the brief was Kenneth C. With him on the brief were Ruffin B. Saunders alleged that the defendants are liable for infringement of U.S. A limitation that is not found in the accused devices. We hold that the district court's claim construction was erroneous. Cervical traction is a physical therapy treatment in which a device is used to generate a sustained force pulling upward on the patient's neck so as to relieve pressure on enflamed or enlarged nerves. Are directed to a portable cervical traction device. Those claims are identical. Claim 16 is identical to claim 1 except that in the fourth limitation it recites
	LORAL FAIRCHILD CORP. V. SONY With him on the brief were James H. Of counsel on the brief was R. With him on the brief were Douglas B. Of counsel was Steven M. Sony's trial proceeded first. The trial was held in January 1996 on the issues of ownership. The jury was given a detailed set of written instructions with integrated special verdicts for separate factual issues. That Sony failed to prove that any of the claims at issue were invalid. Following the verdict. That infringement of the '674 patent was precluded by prosecution history estoppel3 and that infringement of the '485 patent could not stand under a proper claim interpretation. The case was certified for appeal to this court under Fed. This technology has proven useful in devices where there is a need to store a continuously changing image such as camcorders. Is part of a semiconductor structure further housing a thin layer of nonconductive insulation and a series of gate electrodes on the top surface of the material. When voltage is applied to one of these gate electrodes it creates a
	OPINION/ORDER Circuit Judge: The question we address here is to what extent. Homedics was sued in federal district court for infringing the design patents of its competitor Nikken. We have jurisdiction under 28 U.S.C. з 1291. Nikken appears to allege that Homedics directly infringed its patent by offering to sell infringing products through advertising.1 To show Offering to sell an infringing product is. It alleged that Homedics' sale of its products was severely hurting its business. This action was based on similar activity as Nikken I. The complaint sought damages for breach of contract and a declaration that Homedics was entitled to a defense of the Nikken action by the insurance companies. The case was dismissed against all defendants except ACE on October 20. The court preliminarily found that ACE was obligated under its insurance policy to pay for the defense of Nikken I. Homedics brought a second action against ACE seeking a declaration that ACE was obligated to defend Homedics in Nikken II. Order declaring that ACE was obligated to defend Homedics in Nikken I.
	GLOBETROTTER SOFTWARE, INC., ET AL. V. ELAN COMPUTER GROUP, INC., ET AL. Argued for plaintiff cross appellant and third party defendant appellee.а With him
	MENTOR H/S INC V. MEDICAL DEVICE ALLIANCE Argued for plaintiffs appellants.
	THE REGENTS OF THE UNIVERSITY OF NEW MEXICO V. GALEN D. KNIGHT For plaintiff appellee.а With him on the brief was Stephen A. Scallen separately appeal from the decisions and orders of the United States District Court for the District of New Mexico: granting the Regents of the University of New Mexico ( UNM ) summary judgment that UNM is the owner of seven patents and patent applications relating to beta alethine compounds. Scallen was a professor of biochemistry and medicine at UNM.а Dr. Knight was hired as a faculty staff member in Scallen s laboratory.а From 1983 to 1985. 1990.а Two of those applications were directed to methods for using beta alethine compounds to treat cancer. Mso bidi language:AR SA'>[1] three were directed to vitaletheine modulators and methods for their use.
	ELMER V. ICC FABRICATING, INC.
	WU V. WANG
	BAXTER V. COBE
	SIGNTECH USA V. VUTEK With him on the brief were William D. With him on the brief was Jolynn M. Of counsel was Francis X. These claims were tried by consent before a United States magistrate judge in the United States District Court for the Western District of Texas. The '957 patent states that the prior art (specifically the '522 patent)
	OPINION/ORDER With him on the brief was Laura A. Because no rebuttal evidence was submitted by the patent holder. Inc. (
	OPINION/ORDER On the brief was Michael J. With him on the brief were Eric L. Of counsel on the brief was James M. With him on the brief were Vinent K. Of counsel was Jeffrey D. With him on the brief were David H. 1304 2 Background LGE is the owner of patents relating to personal computers. A system for ensuring that outdated data is not retrieved from memory). 379 (claiming a system and method for ensuring that outdated data is not retrieved from memory). Intel is authorized to sell these products to defendants under an agreement with LGE. Although it was licensed to sell the products to them. They were not authorized under that agreement to combine the products with non Intel products. It determined that there was no implied license to any defendant. LGE's rights in any system claims were exhausted. The court also found that LGE was contractually barred from LGE did not assert patent rights in the microprocessors or chipsets 05 1261. We have jurisdiction under 28 U.S.C. з 1295(a)(1). Summary judgment is appropriate
	OPINION/ORDER On the brief were Robert J. Of counsel on the brief were Frederick H. Of counsel was Gregory L. With him on the brief was Theodore R. Because we conclude that the defect that formed the basis for the '602 reissue patent was within the plain meaning of 35 U.S.C. з 251. There are two predecessor patents to the '602 reissue patent. Both of which were assigned to Medrad. The first predecessor patent was U.S. 648 ('648 reissue patent) and is the second predecessor patent to the '602 reissue patent. The administrative law judge (
	B.BRAUN MED. INC. V. ABBOT LAB & NP MED
	SRI V. ADVANCED TECHNOLOGY
	OPINION/ORDER With him on the brief were Herbert H. Of counsel on the brief were Conrad J. This is a patent infringement case. A jury trial subsequently was held to determine damages. American Seating now appeals all aspects of the district court's summary judgment decision that were unfavorable to it. Which are seats that have the ability to fold away in order to create more interior space in a vehicle. They are particularly useful for accommodating passengers with wheelchairs. May be used whenever more interior space is needed. The figures shown below are representative of the stowable seat claimed in the '389 patent. 1248 3 raising the seatbase to its vertically stowed position where it is locked in place.
	GENERATION II ORTHOTICS INC V. MEDICAL TECHNOLOGY Argued for plaintiff appellant.
	ADDITIVE CONTROLS V. FLOWDATA
	OPINION/ORDER With him on the brief were Daniel L. With him on the brief was Brad R. 10 of the '514 patent were anticipated by Japanese publication 51 82206 (
	ELKAY MANUFACTURING COMPANY V. EBCO MANUFACTURING COMPANY With him on the brief were Charles H. Of counsel was Ali R. With him on the brief was Donald . 855 patent) were valid and infringed by Ebco and awarding damages to Elkay. See Elkay Mfg. A bottle is inserted into a cooler. Which was filed as a continuation of application Ser. Which was filed as a separate continuation of the
	ANTON/BAUER, INC V. PAG, LTD Argued for defendant/counterclaimant/third party plaintiff appellant.а With him on the brief were J. ).а Integral to the combination claimed in the '204 patent
	GOLDENBERG, ET AL. V. CYTOGEN, INC., ET AL. Argued for plaintiffs appellants.а With him on the brief were Harold C. Best.а Of counsel was James M. Argued for defendants appellees.а With him on the brief were Harvey Kurzweil and David F. Owens.а Of counsel on the brief were Cecil E. That summary judgment of no literal infringement was I.а BACKGROUND A.а ааааа The Patents and the Prosecution History ааааааааааа The 559 patent is entitled Tumor Localization and Therapy with Labeled Antibodies Specific to Intracellular Tumor Associated Markers. а The invention is a method for detecting andааааааааа localizing tumors by targeting intracellular marker substances that are produced by or associated with tumor cells.а 559 patent.
	OPINION/ORDER With him on the brief were Kristin L. On the brief were Raymond C. Of counsel on the brief was Jeff E. Of counsel was Kathleen C. This court also holds that the district court correctly dismissed without prejudice ApplyYourself's counterclaim and affirmative defenses that the '042 patent was invalid. 2002) is a continuation of the '278 patent (issued Feb. 5. The patents are directed to an online service for reducing the amount of work required by applicants and institutions in. The data is saved in a data base and automatically populates fields in subsequent application forms. The form for each institution is created from a form description file. Each form is branded for its institution and forms for different institutions differ in appearance and content so that the presence of the third party servicer is transparent to the applicant. '042 patent. 1251 2 The '278 patent is specifically directed to the data sharing component of the invention. Independent claim 1 is representative: 1. Entering applicant information into the second form data fields into which information was not inserted from the data storage or into which the data inserted from the data storage is to be changed.
	OPINION/ORDER With him on the brief were Benjamin C. With him on the brief were Daniel L. With her on the brief were William A. This is a patent infringement action concerning the pharmaceutical compound ramipril. Which is marketed by King Pharmaceuticals. Concluded after a bench trial that the asserted claims of the '722 patent were not invalid. 1 Lupin appeals from these decisions. We conclude that the subject matter of the asserted claims of the '722 patent would have been obvious. The cross appeal and the remaining issues raised by the parties are deemed moot and are not addressed. BACKGROUND The Claimed Technology The patent at issue in this appeal is directed to the pharmaceutical compound ramipril in a formulation
	BECKSON MARINE, INC V. NFM Argued for plaintiffs appellants.
	OPINION/ORDER With him on the brief were Nicolas G. Of counsel on the brief were Paul D. With him on the brief were Maria Luisa Palmese and William G. The patent was filed on August 14. Bisphosphonates are a family of chemical compounds that are known to selectively inhibit the bone destruction process that contributes to osteoporosis and other bone diseases. '329 patent. At issue in this case are once weekly dosages of alendronate monosodium trihydrate. Teva does not challenge the district court's determination that the `329 patent is enforceable or that it would be infringed by Teva's proposed drug product. 2 04 1005 1 Bisphosphonates are not readily absorbed by the gastrointestinal (
	GENEVA V. GLAXOSMITHKLINE PLC Inc.а Of counsel was Leslie Morioka. а Of counsel were William R. Inc. аWith him on the brief were Steven J. Cerwinski.а Of counsel on the brief was C. Argued for defendant
	OPINION/ORDER With him on the brief for Pharmaceutical Research and Manufacturers of America were Randolph D. On the brief for Biotechnology Industry Organization were Daniel E. With him on the brief were Linda Singer. With him on the brief was Joshua D. With him on the brief was Matthew H. With him on the brief was Daniel J. This is a pre enforcement challenge to a statute of the District of Columbia. The legislation was adopted after the Council determined that: The excessive prices of prescription drugs in the District of Columbia is threatening the health and welfare of the residents of the District as well as the District government's ability to ensure that all residents receive the health care they need. [I]t is incumbent on the government of the District of Columbia to take action to restrain the excessive prices of prescription drugs. The Council's response to that finding was passage of the challenged legislation. The statutory term
	TELEFLEX V. FICOSA NORTH AMERICA CORP Argued for defendants appellants.
	NOVARTIS PHARMACEUTICALS CORPORATION, ET AL. V. ABBOTT LABORATORIES Argued for plaintiffs appellants.а With him on the brief were Nicholas N. Argued for defendant cross appellant.а With him on the brief were Ted G. Which is capable of dissolving cyclosporin. Is present in Abbott s accused product.а Accordingly. Which help prevent organ rejection in transplant patients.а Cyclosporin is highly hydrophobic. Ll. 32 40.а The two patents asserted by Novartis are directed to compositions that facilitate human absorption of cyclosporin by use of a microemulsion. 625 patent. as it is used in each of the asserted patents. the district court held that the term requires: at least one excipient meeting the following criteria: (1) a pharmaceutically acceptable lipophilic solvent in which cyclosporin is soluble. Which is (2) immiscible with both water and the hydrophilic phase component(s) (in the absence of a surfactant).
	TEXAS DIGITAL SYSTEMS, INC V. TELEGENIX Argued for plaintiff appellee.
	MYCOGEN PLANT SCIENCE, INC V. MONSANTO COMPANY Argued for plaintiffs appellants.
	SEMICONDUCTOR ENERGY LABORATORY CO., LTD. V. SAMSUNG ELECTRONICS With them on the brief was David S. Of counsel was Michael T. With him on the brief was Gary J. Of counsel on the brief were Richard L. Of counsel was Basil Carl Culyba. Because we are not persuaded that the district court either abused its discretion in holding the 636 patent unenforceable for inequitable conduct or improperly dismissed Samsung s federal and New Jersey RICO counterclaims. SEL is a Japanese company specializing in the research and development of semiconductor technology. Is the named inventor or co inventor on most of SEL s patents. The channel region is ". The application for the 636 patent was filed on June 7. Was fifteen pages long. The IDS was accompanied by a Form PTO 1449 listing ninety references that it wished to make of record. By submitting a concise explanation and a one page partial translation of the Canon reference that were accurate but misleadingly incomplete. SEL had intentionally misled the examiner into believing that the Tsai article was not material. See id. at 486.
	SENSONICS V. AEROSONIC
	OPINION/ORDER With him on the briefs were Peter D. Dance was on the brief for amicus curiae Blue Cross & Blue Shield Association. With her on the brief were Kate C. With him on the brief were John C. Theodore Case Whitehouse was on the brief for amicus curiae Generic Pharmaceutical Association in support of appellees. Branded drug and markets an approved generic version of that drug or prevails in litigation establishing that the patent is valid or not infringed. Thereby depriving the generic manufacturers of an opportunity to have a period of marketing exclusivity. We hold the FDA's requirement that a generic manufacturer's patent challenge give rise to litigation as a condition of retaining exclusivity when a patent is delisted is inconsistent with the Act. Which provides that the first generic manufacturer to file an approved application is entitled to exclusivity when it either begins commercially to market its generic drug or is successful in patent litigation. Including evidence the drug is safe and effective.
	ECOLOCHEM, INC. V. SOUTHERN CALIFORNIA EDISON COMPANY With him on the brief was Andrew C. With him on the brief was Gregory P. We reversed the holding by the district court that there was no genuine issue of material fact that the invention of claim 20 of the
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. Because of the enormous number of cans that are manufactured. Crown owns the '634 patent directed to a can end having a chuck wall that is inclined to an axis perpendicular to the central panel of the can end. Wherein the chuck wall is inclined to an axis perpendicular to the exterior of the central panel at an angle between 40░ to 60░. A concave cross sectional radius of the reinforcing bead is less than 0.75 mm. Are the top and side plan views of the claimed design. Owns the '987 patent and is a co plaintiff in this action. Would have an infinite number of angles and would not be described as having
	BEST LOCK V. ILCO
	OPINION/ORDER
	ECOLAB INC V. PARACLIPSE Argued for plaintiff appellant.
	JURGENS V. CBK
	SMITH INDUSTRIES MEDICAL SYSTEMS V. VITAL SIGNS With him on the brief were Allen H. Of counsel on the brief were Richard L. Of counsel were Charles Lee Thomason and R. Inc. (
	OPINION/ORDER With him on the brief were Glenn T. Of counsel on the brief was James B. This case raises the question of whether an equivalent is foreseeable within the meaning of Festo Corp. v. Inc.'s (collectively
	OAK TECHNOLOGY, INC V. INTERNATIONAL TRADE COMMISSION Argued for appellant.
	EXXON V. U.S. Argued for plaintiff appellant.
	QUANTUM CORP. V. RODIME PLC
	DOW CHEMICAL COMPANY V. U.S. It is ORDERED and ADJUDGED: . Of counsel was Kevin S. With her on the brief were Vito J. The government was licensed to use this invention as disclosed in U.S. It also proposed a royalty rate to the government of 2% (25% of a reasonable commercial royalty) of the contract price for any particular project where the invention was used. No royalty payments were due. The letter affirmed that no royalty payments would be made and concluded this was the government
	OPINION/ORDER Argued for appellant.
	KOITO MANUFACTURING CO., LTD., ET AL. V. TURN-KEY-TECH, LLC., ET AL. Argued for plaintiffs cross appellants.а With him on the brief were Frank L. Argued for defendants appellants.а With him on the brief was Patricia A. Shackelford.а Of counsel on the brief was David R. Fairbairn. 268 (the 268 patent ) are invalid as anticipated and obvious and (2) that the 268 patent is not infringed by taillights produced by Koito Manufacturing Co. The district court partially granted Turn Key s motion for a JMOL by overturning the jury s finding that all 38 claims of the 268 patent are invalid for lack of enablement. Mso bidi font family:
	WANG V. MITSUBISHI
	OPINION/ORDER
	OPINION/ORDER Okuley counterclaimed for a declaratory judgment that he was the inventor of FAD2 and to rescind his personal assignment of patent rights to DuPont. WSU and DuPont were operating under the RCA regarding the assignment of the intellectual property arising out of this project. The issue was resolved in May 1993 by DuPont agreeing that inventorship was shared between Okuley and another WSU scientist and Okuley agreeing to assign to DuPont his
	DARREL A. MAZZARI V. JAMES ROGAN For defendant appellee.а With him on the brief were Sydney O. On summary judgment in favor of the United States Patent and Trademark Office ( PTO ) that Mazzari and Sheedy s claims are unpatentable.а Because no genuine issue of material fact as to the grounds of rejection exists and the district court correctly
	EASTMAN KODAK CO. V. GOODYEAR
	SUPERGUIDE CORPORATION V. DIRECTV ENTERPRISES, INC., ET AL. Argued for plaintiff appellant Superguide Corporation.а Of counsel on the brief were A. North Carolina.а Of counsel was John A. Et al.а With him on the brief were Gregory A. California.а Of counsel were Elizabeth J. Inc.а With him on the brief were Peter J. Et al. With him on the brief were Nagendra Setty. Argued for third party defendant appellant Gemstar Development Corporation.
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. The patents generally claim an indicator device that is comprised of a chamber that is divided by a diaphragm into a first chamber and a second chamber. The first chamber contains an indicating member and is connected to the air flow between an engine's air filter and air intake. The indicating member is in turn attached to the top of the diaphragm. A transparent wall of the chamber allows an individual to see the position of the indicating member within the chamber and thereby gauge the contamination level of the air filter in order to determine whether it is in need of replacement. An important feature of the device is its
	OPINION/ORDER
	INTERACTIVE GIFT EXPRESS V. COMPUSERVE INCORPORATED With him on the brief were Daniel A. With him on the brief was David B. With him on the brief was Peter David Murray.
	OPINION/ORDER With him on the brief were Edward L. With him on the brief were David T. Of counsel on the brief was Thomas S. Of counsel was Marc A. Inc. and Baxter Healthcare Corp. (collectively
	THE BOARD OF EDUCATION V. AMERICAN BIOSCIENCE Argued for plaintiffs appellees.а With him on the brief was Mark J. Carlozzi.а Of counsel on the brief was Sidney L. Argued for defendant appellant.а With him on the brief was Robert N. Jr.а Of counsel on the brief were Joseph F. Mso bidi language:AR SA'>[1] is a natural compound found in the bark of the Pacific yew tree (Taxus brevifolia).а Over the last several decades. Scientists discovered that taxol is not only an effective chemotherapeutic agent. Especially oxygen starved ( hypoxic ) cancer cells that are ordinarily resistant to radiation.а A 1992 paper published by researchers at Columbia University disclosed the dual activities of taxol as a simultaneously cytotoxic and radiosensitizing agent.а See Roy B. Tishler et al.
	OPINION/ORDER With him on the brief was Nathaniel L. With him on the brief was Brendan E. Patent and Trademark Office (
	FINA OIL V. EWEN
	CYGNUS V. ALZA
	VEHICULAR TECHNOLOGIES V. TITAN WHEEL
	NIKE, INC. V. WAL-MART
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. The PTO issued a patent on Lacks's application after the district court decision but while this appeal was pending. (2) Lacks's subsequently issued patent is a nullity because the PTO did not have jurisdiction to issue Lacks's application as a patent while this appeal was pending. That was accorded the benefit of the filing date of an earlier application. The '658 application was filed as a division of the application that ultimately became the '906 patent (
	KEY PHARM V. HERCON
	BIO-TECHNOLOGY V. GENENTECH
	PRIMA TEK II, L.L.C. V. A-ROO COMPANY With him on the brief was Gordon D. All of whom are licensees of the patents in suit. We reverse the decision of the district court awarding attorney fees to Appellees.
	OPINION/ORDER With him on the brief were Barbara L. Of counsel on the brief was Mark Chao. With him on the brief were Edgar H. 777 was not shown to be invalid under 35 U.S.C. з 103. Because we conclude that the district court did not err in determining that the claimed compounds would not have been obvious in light of the prior art. BACKGROUND Diabetes is a disease that is characterized by the body's inability to regulate blood sugar. It is generally caused by inadequate levels of insulin a hormone produced in the pancreas. Which is derived from food. There are two types of diabetes. Their bodies are unable to effectively use the insulin that is produced. This is also referred to as insulin resistance. Glucose is unable to enter the cells. Type 2 diabetes is the most common form of diabetes affecting over 90% of diabetic individuals. A class of drugs known as thiazolidinediones (
	OPINION/ORDER With him on the brief was Douglas Sharrott. Also on the brief was Mark J. With him on the brief was Joseph A. Old Town is the assignee of the '963 patent. Which is rotated on two axes in a large oven. A successive charge is not released into the mold until the layer formed by the prior charge has reached an appropriate state. The boat hull will not be usable if a successive charge is released too soon or too late. The invention recognizes that coalescence of the particulate material will continue to completion even after the mold is removed from the oven if the mold doors are kept closed to retain the residual heat of the mold. Seeking a declaratory judgment that the patent was invalid and unenforceable. Including the limitation of opening the mold assembly
	OPINION/ORDER With him on the brief were Thomas C. Was Peter N. Of counsel on the brief were Brian A. With him on the brief were Kathleen A. Of counsel was Michael J. With him on the brief was Stanley M. With him on the brief was Raymond M. With him on the brief was Christopher R. With him on the brief were Max Ciccarelli and Richard L. Of counsel was Kelly J. Et al. was Earl J. With him on the brief was Frederick D. Of counsel was Kirk C. Will. NAC also appeals from the district court's decision granting summary judgment that reissue claims 29 42 of the '639 patent are invalid for violating the rule against recapture of previously surrendered subject matter. Plastipak cross appeals from the district court's decision granting summary judgment that the '639 patent is not invalid for anticipation by U.S. Remand for the court to determine whether the limitation is met based on our modified claim construction. The crossappeal is dismissed.
	CHOU V. UNIV. OF CHICAGO Argued for plaintiff appellant.
	JOHN M.J. MADEY V. DUKE UNIVERSITY Argued for plaintiff appellant.
	OPINION/ORDER With him on the brief was John C. Of counsel was Sally Wiggins. With him on the brief was Mark H. Of counsel on the brief was Robert B. With him on the brief was Kenneth S. 182 (
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. JumpSport also appeals from the district court's grant of ICON's motion for summary judgment that ICON was not liable for contributory infringement of the '845 and '207 patents. The district court's grant of the defendants' motion for summary judgment that claims 16 and 40 of the '207 patent were invalid because of anticipation. Because the court did not err in holding that ICON is not liable for contributory infringement of the `845 and `207 patents and that claims 16 and 40 of the `207 patent were anticipated by the Curtis enclosure. Because the court did not abuse its discretion in determining that the patents were not unenforceable and in admitting noninfringement letters received by Jumpking and ICON into evidence.
	BRISTOL-MYERS SQUIBB COMPANY, ET AL. V. PHARMACHEMIE B.V. With him on the brief were Constantine L. Was Robert L. With him on the brief was Laurie S. Circuit Judge. ааааааааааа The question in this patent case is whether the patent in suit is invalid for double patenting.а The district court held on summary judgment that an earlier patent. 2002).а Because we disagree with a key conclusion on which the district court s summary judgment was based. Is the owner of U.S. Bristol Myers Squibb Co. is the exclusive licensee under that patent.а The patent claims (1) methods for treating malignant tumors with certain platinum coordination compounds and (2) compositions containing those compounds in amounts sufficient to cause regression of those tumors.а Appellant Pharmachemie. Pharmachemie asserted that the 927 patent was invalid for obviousness type double patenting over U.S.
	GAMBRO LUNDIA V. BAXTER HEALTH CARE
	SCHERING CORPORATION V. GENEVA PHARMACEUTICALS Of counsel on the brief were David P. New York.а Of counsel were John F. Whitehall Robbins Healthcare).а With him on the brief were Barbara R. Mason.а Of counsel on the brief were David A. New Jersey.а On the brief was Julie A. Inc.а Of counsel were Peter J. Gray.а Also on the brief were Edgar H. Inc.а With him on the brief were Frederick H. Inc. and Novartis Corporation.а With him on the brief were Patricia J. Kokoski.а Of counsel on the brief was Kevin M. 716 (the 716 patent) are invalid.а Schering Corp. v. The active component of a pharmaceutical that Schering markets as CLARITIN .а Unlike conventional antihistamines w
	PANDROL USA, LP AND PANDROL LIMITED V. AIRBUSS RAILWAY Argued for plaintiffs appellees.а With him on the brief was Raymond B. Argued for defendants appellants.а Of counsel was Christopher P.
	GROUP ONE V. HALLMARK CARDS Argued for plaintiff appellant.
	TATE ACCESS FLOORS, INC V. INTERFACE ARCHITECTURAL RESOURCES Argued for plaintiffs appellees.
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. Was invalid by reason of obviousness. Claim 4 of the '565 patent relates to an adjustable pedal assembly1 for use with automobiles having engines that are controlled electronically with a device known as an electronic throttle control. The electronic control is responsive to the pedal pivot and thereby generates an electrical signal corresponding to the relative position of the gas pedal between the rest and applied positions. Claim 4 specifically provides for an assembly wherein the electronic control is mounted to the support bracket of the assembly. It was this problem that the '565 patent set out to address. The district court granted KSR's motion after determining that claim 4 was obvious in view of a combination of prior art references. We have jurisdiction pursuant to 28 U.S.C. з 1295(a)(1). Summary judgment may be granted when there are no 04 1152 3 disputed issues of material fact. The movant carries the initial burden of proving that there are no genuine issues of material fact.
	MEDICAL INSTRUMENTATION AND DIAGNOSTICS CORPORATION V. ELEKTA Argued for plaintiff appellee.а With him on the brief was Rod D. Slusher.а Of counsel was Andrea L. Argued for defendants appellants.а Of counsel on the brief were John F. ) that the '846 and '684 patents are not invalid.а Med. Limitation and noninfringement is conceded under the correct claim construction. For judgment in favor of Elekta on the infringement issue.а
	OPINION/ORDER With him on the brief were Stephen G. With him on the brief was Kevin B. Of counsel were Scott C. This is an action for patent infringement. 382 (the
	OPINION/ORDER With him on the brief were Stephen G. With him on the brief was Kevin B. Of counsel were Scott C. This is an action for patent infringement. 382 (the
	OPINION/ORDER With him on the brief were Richard S. With him on the brief was Steven E. Of counsel was Henri Frederic Hibon. 496 because these patents were licensed to Cambridge under a cross licensing agreement. All of which are assigned to Institut Pasteur. Are directed to structural components of and methods of detecting the presence of two types of Human Immunodeficiency Virus (
	OPINION/ORDER With him on the brief were Paul H. With him on the brief were Joseph A. (Tranquil) is the owner by assignment of United States Patent Nos. 5. (Howmedica) sought a declaratory judgment in the Northern District of Indiana that the claims of the '985 and '214 patents are invalid. Because it was unable to construe the term
	CHIRON CORP. V. GENENTECH, INC. Argued for plaintiff appellant.а With him on the brief were Rachel Krevans. Crotty.а Of counsel on the brief were Nancy J. Argued for defendant cross appellant.а On the brief were Roy E. Illinois.а Of counsel on the brief were John W. 561 are invalid under 35 U.S.C. з . 102 because none of the asserted claims is entitled to priority to a series of applications filed in 1984. A monoclonal antibody is a composition with a homogeneous antibody population.а An antibody is a protein generated by the immune system that is capable of recognizing and binding to a specific antigen.а Described in terms of its structure. An antibody is a Y shaped protein consisting of four amino acid chains. Is recognized by and interacts with the immune system.а A target antigen generally has numerous binding sites.
	MONSANTO COMPANY V. MCFARLING Argued for plaintiff appellee.а Also on the brief was Joseph C. The district court held that a liquidated damages provision in the Technology Agreement was valid and enforceable under Missouri law and entered a judgment in the amount of $780. ).а EPSPS is necessary for the conversion of sugars into amino acids and thus for growth in many plants and weeds.а Monsanto also markets ROUNDUP READY^о genetic modification technology.а In soybean seeds. The ROUNDUP READY^о technology operates by inserting the gene sequence for a variant of EPSPS that is not affected by the presence of glyphosate but that still performs the sugar conversion function required for cell growth.а Thus. Version of EPSPS that is rendered ineffective in the presence of the glyphosate in ROUNDUP^о herbicide.
	OPINION/ORDER With him on the brief was Timothy J. With him on the brief were Robert E. These issues are not addressed. 2 Formation. Wherein the frame sidewalls (to which the wheels are mounted) are fastened to downwardly descending flanges formed from a toe plate and a heel plate. The specification and drawings of both patents are the same. Wherein said first sidewall is configured such that said rear upper portion is received into a corresponding one of said heel plate cavities and said front upper portion is received into a corresponding one of said toe plate cavities. Wherein said second sidewall is received into the other opposing said toe and heel plate cavities. Wherein said first sidewall is configured such that said rear upper portion is received into a corresponding one of said heel plate cavities and said front upper portion is received into a corresponding one of said toe plate cavities. Wherein said second sidewall is received into the other opposing said toe and heel plate cavities. Is a question of fact.
	CAE SCREENPLATES INC V. HEINRICH FIEDLER GMBH & CO. KG With him on the brief were Elizabeth G. Each of these products is made from cellulose pulp. Pulp is fed into a paper machine and laid down in a non woven web. After the liquid is removed from the slurry. The web is dried. The result is the final board or paper product.
	PHILLIPS V. HUNTSMAN
	OPINION/ORDER With her on the brief were Richard M. Of counsel was Munir R. With him on the brief were Thomas G. Of counsel were David Rokach. The district court found that Amazon's system did not infringe the '055 patent and that all relevant claims were invalid. Finding that the case was
	ODDZON V. JUST TOYS
	EMERSON V. DAVOIL
	SOFAMOR V. DEPUY-MOTECH (REVISED)
	OPINION/ORDER With her on the brief were Bruce E. Of counsel was Edward F. Based on its determination that no damages were available. The court held that Sentry's claim for infringement of the '611 patent was moot and granted summary judgment of noninfringement of that patent. We affirm the district court's claim construction and summary judgment ruling that claims 10 and 23 of the '781 patent are invalid for anticipation. Because we conclude that claim 10 is invalid. We vacate the court's grant of summary judgment of noninfringement that was based upon the determination that no damages are available for infringement of the '611 patent and remand for further proceedings related to that patent. Sentry's motion to strike the '611 patent invalidity arguments is therefore granted. Sentry's request for us to take judicial notice of the patent examiner's comments in a related patent application is moot.
	KUMAR V. OVONIC BATTERY CO., INC., ET AL. Argued for defendants appellees.а With him on the brief was Troy E. Meaning that their molecules were arranged in a regular repeating pattern.а These prior art crystalline alloys degraded severely with the repeated cycles of hydrogen storage and release that accompanied recharging.а Kumar found that certain alloys with a less ordered molecular structure were immune to material fracture and had improved hydrogen storage capacity.а Kumar applied for a patent on this invention in 1981. Sought patents in the same field.а Ovonic is the owner of U.S. Where there is no ordering of molecules) and that Ovonic did not infringe the 686 patent because the batteries produced under its licenses did not use completely amorphous alloys.а Kumar v. 2002).а Kumar urged that the term amorphous was not limited to completely amorphous alloys.
	EKCHIAN V. HOME DEPOT
	STRYKER CORP. V. INTERMEDICS
	OPINION/ORDER With him on the brief was Michael D. Of counsel was Michael P. Inc. was issued United States Patent No. 5. The '113 patent is entitled. The processing of semiconductor wafers and substrates is very sensitive to problems of contamination. . . . [I]t is necessary to maintain a high level of cleanliness during all or nearly all stages of production. Flat panel displays and other similar low contamination wafer products are also typically processed in batches. . . . Specialized cleaning machines are needed to maintain the cleanliness of the carriers. '128 and '127 patents are one type of these specialized cleaning machines. They operate by spinning the 05 1299 2 carriers at high speeds whereby cleaning solvents are readily spun off the carriers and. Admittedly infringed the patents and so would any device that is no more than a colorable variant of the Model 300 and Model 310. Shall be used in determining whether DMS is infringing any claims of the Semitool Patents in violation of this Agreement or the Stipulated Permanent Injunction. 05 1299 3 See Semitool.
	MCNEIL-PPC, INC V. L. PERRIGO Argued for plaintiff appellant.а With him on the brief were Raymond N. Argued for defendants appellees.а With him on the brief were Steven L. Pa. 2002).а Because the d
	PSC COMPUTER PRODUCTS, INC. V. FOXCONN INTERNATIONAL, INC., ET AL. Argued for defendants appellees.а With him on the brief was Kenneth D. Line height:200%'>The United States Patent and Trademark Office ( PTO ) issued the 239 patent for a Cam Type Retainer Clip for Heat Sinks for Electronic Integrated Circuits. а The 239 patent was assigned to PSC.а The 239 patent covers a small but significant component of a complex technology product the microchip.а Like many electronic components. Line height:200%'>The 239 patent describes an invention for securing a heat sink to a chip using a cam type retainer clip.а Claim 1 of the 239 patent claims: In a heat sink assembly providing cooling to an electroni
	NYSTROM V. TREX COMPANY, INC. ET AL. With him on the brief was Troy E. Mso bidi font family:
	UNION OIL CO OF CALIFORNIA V. ATLANTIC RICHFIELD CO. 393 ( 393 patent) is invalid under 35 U.S.C. зз 102 and 112 (1994). As is often the case during the course of prosecution. An olefin content less than 4 volume percent] wherein the maximum 10% distillation point is 158║ F (70║ C.).
	THE CARBORUNDUM CO. V. MOLTEN
	BANCORP SERVICES, L.L.C., V. HARTFORD LIFE INSURANCE COMPANY, ET AL. With him on the brief was David A. Argued for defendants appellees.а With him on the brief were Peter T. Inc. and Quadmation Incorporated.а With him on the brief was Luann L. Inc.а Of coun
	OPINION/ORDER With him on the brief were Calvin P. With him on the brief were Robert A. We also conclude that district court's judgment of non infringement for the bottom loaded screw devices was proper and that it correctly determined that Medtronic was not entitled to judgment as a matter of law on the issues of non infringement or lost profit damages for the MAS polyaxial pedicle screws and correctly entered judgment of infringement as to the MAS device. BACKGROUND DePuy Spine and Biedermann Motech are the exclusive licensee and assignee. Pedicle screws are implanted into the vertebrae during surgery. The head of each pedicle screw is connected to a receiver portion. Rods are used to stabilize spinal column segments. It was difficult for surgeons to rigidly install the screws into adjacent vertebrae in the exact positions needed to properly align the receiver portions to receive the threaded rod. Improved structures were developed that used a spherical screw head and a halved receiver portion with a spherical cavity.
	OPINION/ORDER With him on the petition for writ of mandamus was James A. Seeking to establish a right to indemnification in the event Videotek was held liable to TLC. Seeking a declaration that TLC's asserted patents were invalid. Alleging that Gennum was liable for direct and contributory infringement of the four asserted patents. The district court entered an order that had the effect of significantly reducing the amount of damages TLC would be able to recover from Gennum if infringement were found. Maintained that it was still entitled to a trial by jury. Noting that Gennum was seeking to invalidate the patents. TLC argued that a declaratory judgment action to invalidate a patent is an action to which the right of trial by jury attaches. This court held that there is no right to a jury trial when the only remedy sought by the plaintiff patentee is an injunction and the defendant has asserted patent invalidity as an affirmative defense. The court noted that Tegal was not directly on point because in that case the issue of invalidity was asserted only as an affirmative defense and not as an independent claim.
	APPLIED MEDICAL V. U.S. SURGICAL CORP.
	ELI LILLY V. BARR LABORATORIES Eli Lilly and Company.
	LI SECOND FAMILY LIMITED PARTNERSHIP V. TOSHIBA CORP With him on the brief was Joseph A. Of counsel on the brief was Amy . With him on the brief was Carl E. Of counsel on the brief were Ronald L. 800 patent is unenforceable because Li and his attorney engaged in inequitable conduct before the United States Patent and Trademark Office (PTO). 800 patent is unenforceable due to inequitable conduct. Li Second Family Ltd. Which was filed in 1973 as a continuation in part (CIP) of a now abandoned 1971 application. Which was filed in 1977. 758 applications were assigned to different examiners at the PTO
	SUNTIGER, INC. V. SCIENTIFIC RESEARCH FUNDING GROUP With him on the brief were Pamela I. With him on the brief was Terrence W. Of counsel on the brief were John E. Arguing that there are genuine issues of material fact in dispute concerning the question of infringement. The case is remanded for further proceedings. BACKGROUND The '046 patent. Of which SunTiger is assignee. Is directed to optical lenses for sunglasses that screen out certain wavelengths of visible light that may cause harm to human eyes after extended exposure. Sharp cut on dye that blocks out blue light while allowing other colors of light to be transmitted. The application for the '046 patent was filed on July 25. Where said lens is a filter barrier to photons deleterious to the eyes and that is also a transmitter of visible light most useful for high visual acuity. The claimed transmission characteristics of the lens are 99% blockage at wavelengths shorter than 515 nm and 90% transmission at wavelengths longer than 636 nm. SunTiger accused BluBlocker of infringing claim 1 of the '046 patent.
	GENERAL MILLS, INC. V. HUNT-WESSON, INC.
	OPINION/ORDER Will & Emery. Precedent that is available in analogous situations. Because
	OPINION/ORDER With him on the brief were Monte M. Of counsel on the brief were N. Of counsel were Erin M. With him on the brief was Jolynn M. I. BACKGROUND Rhodia is an international chemical company that is the assignee of United States Patent Number 6. Only one of the product claims of the '234 patent and none of its process claims were asserted in the instant litigation. Micropearl silica is used as a filler to reinforce elastomeric products such as automobile tires and as a carrier in the nutraceutical industry. The initial application that led to the '234 patent was filed in April 1980.1 Conventional elastomeric fillers in use at that time. Were inherently dusty and did not flow easily. The '234 patent was designed as an improvement to granulated silica and silica powders. Was the culmination of eleven continuation applications filed between October 23. The underlined terms are disputed by the parties. The test results were designed to show ways that a person of ordinary skill could understand or comprehend the advantages of the claimed invention and differentiate it from the prior art.
	ANDRX PHARMACEUTICALS V. BIOVAIL CORPORATION INTERNATIONAL Singer were on brief.
	OPINION/ORDER Singer were on brief. Todaro were on brief. Unless an approval of an application filed pursuant to (b) or (j) of this section is effective with respect to such drug.
	MAXWELL V. BAKER, INC.
	MERCK V. TEVA Argued for plaintiff appellee.а With him on the brief were Nicolas G. Garber.а Of counsel on the brief were Paul D. Inc.а With him on the brief were Maria Luisa Palmese and William G. Inc.а With him on the brief was Stephen F. That the patent is not invalid.
	FINA RESEARCH V. BAROID
	INTERACTIVE GIFT EXPRESS, INC V. COMPUSERVE INCORPORATED Argued for plaintiff appellant.
	OPINION/ORDER With him on the brief was Joel T. Of counsel on the brief were Richard S. With him on the brief was W. Because there was no literal infringement. AquaTex is the assignee of the '977 patent entitled
	OPINION/ORDER With him on the brief were David R. Of counsel on the brief was Bruce M. With him on the brief were Jayme Partridge and Jayne Piana. Of counsel on the brief were John D. Of counsel were Laura F. The '243 patent were invalid. The two cases were consolidated for trial in Delaware. Did not account for Shell's exportation of catalysts because the district court ruled in limine that 35 U.S.C. з 271(f) damages are not available for process claims. Union Carbide cross appeals the district court's holding that 35 U.S.C. з 271(f) does not apply to process claims and the jury verdict finding that Shell's infringement was not willful. EO gas is used primarily in the industrial production of ethylene glycol. Which is used. Most of the EO produced each year is converted into monoethylene glycol (MEG). Shell is a direct competitor of Union Carbide and Dow Chemical in EO production and MEG sales. The process of claim 1 wherein said alkali metal is lithium. 1. Silver containing catalyst contains 2 to 20 weight percent silver deposited on a support which is in a form and size for use in the reactor.
	INTELLECTUAL PROPERTY DEVELOPMENT, INC. V. UA-COLUMBIA Argued for plaintiffs appellants.а With him on the brief were Richard H. Paige.а Of counsel on the brief were George Pazuniak. Argued for defendants appellees.а With him on the brief were Michael Hawes and Nellie A. Fisher.а Of counsel on the brief were Neil P. Ltd. is the owner of the 202 patent. Inc. is the exclusive licensee of the patent.а We refer to Communications Patents. Inc. collectively as IPD. а The 202 patent is directed to Broadcasting Systems with Fibre Optic Transmission Lines.
	OPINION/ORDER With him on the brief was Marc W. Of counsel on the brief were Duane H. With him on the brief were David T. Of counsel were Ellen A. Inc. (
	OPINION/ORDER Argued for defendants cross appellants.
	OPINION/ORDER On the brief was Thomas G. With him on the brief was William G. Of counsel on the brief was William F. BACKGROUND Schreiber is a producer of cheese products and is the current owner of U.S. The '860 patent was issued to Schreiber in 1995. While the case was being litigated. The assignment was apparently part of a scheme to avoid state income taxes. Schreiber Technologies was not joined as a party to the lawsuit. Kustner is the only remaining defendant.
	OPINION/ORDER With him on the brief was Troy E. Is withdrawn. This opinion is substituted therefor. Although it is not entirely clear from the record. That motion was apparently for all claims of U.S. Only the district court's grant of summary judgment of non infringement of claims 1 15 and 18 20 is before us. 2 patent and from an order denying sanctions under 28 U.S.C. з 1927. Because the district court correctly construed
	OPINION/ORDER With him on the brief was Troy E. Is withdrawn. This opinion is substituted therefor. Although it is not entirely clear from the record. That motion was apparently for all claims of U.S. Only the district court's grant of summary judgment of non infringement of claims 1 15 and 18 20 is before us. 2 patent and from an order denying sanctions under 28 U.S.C. з 1927. Because the district court correctly construed
	NOVO INDUSTRIES V. MICRO MOLDS Line height:200%'>Novo is the assignee of the 578 patent. Which is directed to a carrier assembly that holds one of a plurality of vertical slats (or blinds) that cover the interior of a window.а Figure 1 of the patent is reproduced below: а In use. A plurality of the carrier assemblies are supported on a horizontal tilt rod 18 that runs across the top of the window.а Each carrier assembly contains a gearing mechanism that causes a support finger 20 holding the slat 22 to rotate about the support finger s vertical axis when the tilt rod is rotated.а The rotation of the support finger causes the slat to rotate about its own vertical axis. Permitting more or less light to pass the slat as its angle relative to the window is changed.
	OPINION/ORDER With him on the brief were Charles Hieken and Thomas A. Of counsel were Colter Paulson. Of counsel was Stephen J. Describes a plastic cuff that is designed to preserve a space around a dental implant so that when a dental crown is placed on top of the implant.
	LOUGH V. BRUNSWICK CORP.
	OPINION/ORDER Jennings designed an aftermarket dashboard bezel that is. Gregory Day to inquire whether the bezel they were selling was on sale or publicly available be 2 No. 06 2466 fore Jennings applied for his patent. Fraudulently misled her into believing that Jennings was not in fact the inventor of the bezel. Because the defendants were engaged in
	UNIV OF WEST VIRGINIA V. KURT L. VANVOORHIES Board of Trustees and West Virginia University Research Corporation.а With him on the brief were Andrew G. VanVoorhies.
	ALLEN ENGINEERING CORPORATION V. BARTELL On the brief was Stephen D. With him on the brief was Mark J. We vacate the district court s determination that the patent is not invalid under 35 U.S.C. з 102(b).
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. After interpreting the relevant claim limitations and determining that claims 1 6 of the '913 patent were invalid by reason of anticipation. Claim 1 is an independent claim directed to a method of attaching auxiliary eyeglasses to conventional eyeglasses. [6] orienting said magnets in said sockets on said conventional eyeglass temple extensions and said magnets in said sockets on said auxiliary 05 1329 2 eyeglass appendages with the maximum magnetic attractive force approximately parallel to the plane of lenses in said conventional eyeglasses when said auxiliary eyeglasses are mounted on said conventional eyeglasses. [8] whereby said auxiliary eyeglasses are prevented from moving downward and being becoming detached when mounted on said conventional eyeglasses by a maximum attractive force between said magnets on said auxiliary eyeglasses and said conventional eyeglasses. '913 patent. Claim 4 is an independent claim directed to the apparatus.
	AFG INDUSTRIES, INC. V. CARDINAL IG COMPANY, INC. With him on the brief were Stephen G. With him on the brief was Nathanael G. Circuit Judge.
	BAYER AG & BAYER CORP. V. ELAN PHARMACEUTICAL With him on the brief were Jeffrey B. With him on the brief were Richard M. An ANDA can be filed if the generic drug manufacturer s active ingredient is the ". A manufacturer must certify one of four statements concerning the applicable listed drug: (i) the listed drug is not patented (a ". Is invalid or . . . it will not be infringed by the manufacture. If an ANDA is certified under Paragraph IV. The applicant must notify the patent s owner of the certification. See 21 U.S.C. з 355(j)(2)(B).
	SANDT TECHNOLOGY, LTD., V. RESCO METAL Argued for plaintiff appellant.
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. (Akeva) is a company which has been assigned and licenses a portfolio of footwear patents. Claims 1 32 of the '471 patent against adidas. describe a
	DOW CHEMICAL V. EXXON CORP.
	OPINION/ORDER With him on the brief were Matthew P. With him on the brief was John S. A.J. also appeals from the district court's decision denying A.J.'s motion for judgment as a matter of law (
	OPINION/ORDER Were on brief for appellant. Were on brief for appellees. Grumman's most intriguing argument presented below as both a defense and a counterclaim is that DG illegally maintained its monopoly in the market for service of DG computers by unilaterally refusing to license ADEX to Grumman and other competitors. The antitrust claims are intriguing because they present a curious conflict. Must tolerate short term harm to the competitive process when such harm is caused by the otherwise lawful exercise of an economically potent
	OPINION/ORDER With him on the brief were Jeffrey B. With him on the brief were Darrell L. Of counsel on the brief were Jay R. Which is used to reduce low density lipoprotein (LDL) cholesterol levels. Ranbaxy appeals the following rulings by the district court: (1) that claim 1 of the '893 patent was infringed. (2) that the '893 patent term extension was not proven invalid. (3) that claim 6 of the '995 patent was infringed. (4) that claim 6 was not proven invalid for failure to comply with з 112. (5) that the '995 patent was not proven unenforceable due to inequitable conduct. We also affirm the ruling that the '893 patent term extension was not invalid. I. BACKGROUND Stereochemistry is the study of the three dimensional structure of molecules. Stereoisomers have the same molecular formula or atomic composition. Enantiomers are a pair of stereoisomers that are non superimposable mirror images of each other and often have distinct physical properties.1 In organic chemistry. Enantiomeric pairs include compounds that have one or more chiral centers.
	OPINION/ORDER Of counsel on the brief were Robert J. With him on the brief was Richard T. That the patent was invalid. I A The technology at issue in this case involves what are known as
	OPINION/ORDER With him on the brief was Michael L. 914 (
	FINNIGAN CORP. V. ITC With him on the brief was James R. Of counsel on the brief were Frank P. On the brief were Lyn M. With him on the brief were Bruce J. With him on the brief was Jonathan D. 884 were not literally infringed and that claims 1 4 and 8 were anticipated under 35 U.S.C. 102(b). Because the Commission did not err in its construction of the claims and its determination that those claims were not literally infringed. Did err in its conclusion that the claims were anticipated. The Patented Technology Finnigan is the assignee of the '884 patent. The disclosed
	OPINION/ORDER With him on the brief was Ross A. With him on the brief were John M. Because the PTO's findings were supported by substantial evidence. Because the disciplinary action was not arbitrary. Sophisticated clients generally are able to determine the kinds of legal representation they need and where to find counsel with the skills. Are often unfamiliar with even the most basic principles of patent law. Are vulnerable to those who seek to take advantage of their inexperience. Commonly available sources of guidance often are of little help. Either because they are too simplistic or too generalized to be of any particular assistance or because they are too complex to be readily understood. The PTO's listing of registered patent agents and attorneys is a basic resource and an assurance of legal competence and good moral character. As sophisticated as the PTO is in regulating practitioners who appear before it and in providing information about registered practitioners on its website and in other publicly distributed materials.
	OPINION/ORDER With him on the brief was Yael Karabelnik. Of counsel was Louis Brucculeri. BACKGROUND Iron Grip is a manufacturer of weight plates used with fitness equipment such as barbells and is the assignee of the '015 patent. The other claims in the '015 patent at issue here depend from claim 1 and are not different for present purposes. A key problem with traditional single hole weight plates was that they were difficult to grasp and transport. Inc. (
	ATLAS POWDER COMPANY V. HANEX PRODUCTS, INC With him on the brief were W. Of counsel on the brief was C. 788 (the reissue patent) were invalid. The district court concluded that both the original Clay patent and the reissue patent were invalid as anticipated by either U.S. The most widely used and economical composite explosive is ammonium nitrate and fuel oil (ANFO). ANFO explosives have two primary disadvantages. ANFO is a relatively weak explosive because interstitial air occupies considerable space in the mixture. It is resistant to moisture. Also have a disadvantage. Emulsions will not detonate unless sensitized. Wherein the solid constituent comprises ammonium nitrate and in which sufficient aeration is entrapped to enhance sensitivity to a substantial degree. Wherein the emulsion component is emulsified by inclusion of 0.1 to 5% by weight. Atlas was the exclusive licensee under the Clay patent in the continental U.S. and Hawaii.

	OPINION/ORDER With him on the brief was Jared S. Of counsel on the brief was Stephen P. With him on the brief were Michael J. Also on the brief was Lawrense D. The district court determined that the '477 and '322 patents were invalid based on public use under 35 U.S.C. з 102(b). Gambaro is the sole inventor of both the '477 and the '322 patents. Claim construction is a matter of law that this court reviews without deference. The meaning of the statutory terms
	HEBERT V. LISLE CORP.
	GART V. LOGITECH Argued for plaintiff appellant.
	HYATT V. BOONE
	OPINION/ORDER With him on the brief was Anthony P. Thus those claims are not before this court. 1 construction of the claim term
	OPINION/ORDER I. This is a patent case involving a machine designed to wash wheelchairs. The idea for which was originally conceived by Walter Schinzing (Schinzing) in 1987. Which was a continuation in part of the `091 application. Schinzing maintained that he was the sole inventor of the modified washer. The subsequently amended '757 application presented an The undergraduate course was part of an engineering technology program. Honary indicated that the students in the program were trained to be
	ROWE V. DROR
	HALL V. AQUA QUEEN
	OPINION/ORDER With her on the brief was Peter B. With him on the brief was Mark W. The appeal was submitted for decision following oral argument on September 8.
	XECHEM INTERNATIONAL, INC. V. THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, ET AL. Argued for defendants appellees.а With him on the brief were Marcy Hogan Greer and Robert E. Mso bidi language:AR SA'>[1] аThe only issue on appeal is whether the University is subject to suit in federal court to obtain correction of the inventorship of United States Patents No. 5. Font family:Arial'>The University's motion to dismiss was brought under Fed. P. 12(b)(6) (dismissal for failure to state a claim upon which relief can be granted).а When dismissal is on the pleadings. The plaintiff's well pleaded factual allegations are accepted as true and all reasonable factual inferences are drawn in its favor.а See Albright v. Disputed material facts are viewed in the light most favorable to the complainant). а With her on the brief were Stephen A. Argued for appellees.а With him on the brief was Karen Mangasarian. . Johnson (deceased) (collectively Velander ) are the inventors named on the 184 application.а Ian Garner. Foster (collectively Garner ) are the inventors named on the 940 patent.а Velander appeals the decision of the United States Patent and Trademark Office. That granted Garner s preliminary motion to have all of the allowed claims of the 184 application held unpatentable as obvious over the prior art.а Garner v. 2001) ( Velander ).а Because the decision of the Board is supported by substantial evidence and is not contrary to law. Line height:200%'>I. This case relates to the production of non human mammals that have been genetically altered ( transgenic animals ) so that they produce the enzyme fibrinogen in its biologically active state.а After the enzyme is produced.
	KOPYKAKE ENTERPRISES V. THE LUCKS COMPANY 2000).
	EMI GROUP NA V. CYPRESS SEMICONDUCTOR CORPORATION Argued for plaintiff appellant.
	JUICY WHIP, INC V. ORANGE BANG Argued for plaintiff appellant.
	KAHN V. GENERAL MOTORS CORPORATION
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. Because we agree with the district court that Philips does not infringe the '749 patent and that Philips did not prove that the patent was invalid on the ground of anticipation by Japanese Patent Publication 55 47879. Conventional electric rotary razors are designed with a stationary ring of outer cutter blades and a rotating ring of inner cutter blades. An example of an inner cutter and an outer cutter is shown below in figures 2 and 3. When such razors are applied to a skin surface to be shaved. The hairs on the skin pass through openings in the outer cutter and are sheared off by the inner cutter blades. Another shortcoming of conventional electric rotary razors is that they have a relatively large area of contact between the surfaces of the outer and inner cutters. Will reduce shaving debris adhesion to the rear side surface of the inner cutter blade. Which does not have a cutout. The rear side surface (4(b)) of the inner cutter blade is parallel to the front side surface.
	OPINION/ORDER With him on the brief were Richard D. DyStar and Bann Quimica Ltda. are large chemical manufacturers that. Patrick Co. purchased prereduced BASF was the assignee of the '992 patent. This court concludes that the jury's verdict was reasonable and was supported by evidence in the record. This court will not substitute its findings for those of the jury as the jury's decision was clearly supported by the trial record and was reasonable. Because indigo pigment is insoluble in water. Leuco indigo is unstable. If it is not being used immediately for dyeing.
	OPINION/ORDER With him on the brief were William F. With him on the brief were John M. With him on the brief was Kenneth B. With her on the brief were Steven P. With him on the brief were Kathi A. This appeal was submitted after oral argument on May 3. Because we conclude that substantial evidence supports the Board's findings that the The real party in interest is Monsanto Technology LLC. Which is owned by the Monsanto Company. 1 claimed invention lacks a specific and substantial utility and that the '643 application does not enable one of ordinary skill in the art to use the invention. The claimed sequences are commonly referred to as
	OPINION/ORDER Argued for plaintiff appellant.
	WOODLAND TRUST V. FLOWERTREE NURSERY
	MULTIFORM V. MEDZAM
	OPINION/ORDER With him on the brief were Thomas H. Of counsel on the brief were Michael A. Of counsel was G. With him on the brief were Daniel S. With him on the brief was Charles H. The trial court ruled that the claims at bar did not contemplate or allow for a Flash memory system in which some EEprom memory cells are grouped into sectors that are not partitioned into user and overhead data portions. A non volatile memory retains its contents even after power is shut off. If the architecture can be designed to minimize the number of times each EEprom memory cell is erased and rewritten. Then the EEprom performance will improve. Where not all the information was to be erased. The defining feature of the
	PALL V. MICRON
	SIERRA APPLIED SCIENCES, INC. V. ADVANCED ENERGY INDUSTRIES, INC. Argued for plaintiff appellant.а The briefs were submitted by Susan E. For the appellant.а Of counsel was Bruce E. Argued for defendant appellee.а With him on the brief were Kristen M. Haney.а Of counsel on the brief was Craig A. Mso pagination:widow orphan no line numbers'>ааааааааааа The following facts are uncontested. Including power supplies designed for use in reactive sputtering.а AEI describes reactive sputtering as a process whereby the surface of an item is coated with a thin film formed through chemical reactions in the presence of a plasma of charged particles in a vacuum chamber. а Reactive sputtering is used in. The occurrence of elec
	MONSANTO CO. V. BAYER BIOSCIENCE, N.V. (FORMERLY KNOWN AS AVENTIS CROPSCIENCE N.V.) Argued for plaintiff appellee.а With him on the brief were Susan K. Connie Flores Jones.а Of counsel on the brief was Joseph P. Argued for defendant appellant.а With him on the brief were Susan M. Monsanto alleged that the four patents were unenforceable and that various claims of the patents were invalid.а Aventis counterclaimed. Line height:200%'>The bacterium Bacillus thuringiensis ( Bt ) produces a protein that is toxic to certain insects.а Plant Genetic Systems. Is directed to chimeric genes having a DNA fragment encoding a truncated insecticidal protein.а The second. Is also directed to chimeric genes as well as plant cells and plants that produce the insecticidal protein.а The third. Is directed to methods of protecting pl
	METABOLITE LABORAORIES, INC., ET AL. V. LABORATORY CORPORATION OF AMERICA HOLDINGS (DBA LABCORP) Argued for plaintiffs appellees.а With him on the brief were J. Tessar.а Also on the brief was Mark A. Argued for defendant appellant.а With him on the brief was Catherine E. Stetson.а Of counsel on the brief was John P. This court affirms. I. ааааааааааа The 658 patent claims methods for detecting cobalamin or folate deficiency.а Cobalamin and folate are both B vitamins. Sci
	ABBOTT LABORATORIES V. BAXTER PHARMACEUTICALS Argued for plaintiffs appellants.а With him on the brief were Edward L. Peggy Balesteri.а Of counsel were Blake T. Argued for defendants appellees.а With him on the brief were David T. Cass.а Of counsel on the brief was Thomas S. Its presence in an anesthetic is harmful.а HF also etches glass. Line height:200%'>Baxter filed an Abbreviated New Drug Application (ANDA) with the Food and Drug Administration (FDA) proposing to market generic sevoflurane.а Baxter s proposed product is a compositi
	STATE CONTRACTING & ENGINEERING CORPORATION V. STATE OF FLORIDA Argued for defendants appellees.
	OAKELY, INC V. SUNGLASS HUT Argued for plaintiff appellee.
	SCALTECH V. RETEC/TETRA, L.L.C., Argued for plaintiff appellant.
	BIOGEN V. BERLEX LABORATORIES, INC Argued for plaintiff cross appellant.а With him on the brief was David B. Bassett.а Of counsel on the brief were James F. Argued for defendant appellant.а With him on the brief was Roger G. The conditions of this production form the issues in this litigation.а The inventors are Francis P. Li
	NORTHERN TELECOM V. SAMSUNG ELECTRONICS With him on the briefs were Thomas H. With him on the briefs was Cathy Ann Bencivengo. Of counsel on the brief were Alan H. Of counsel was Edward C.
	OPINION/ORDER With him on the brief were Albin F. 627 are unpatentable as obvious under 35 U.S.C. з . Because the Board s factual findings relating to its obviousness analysis are supported by substantial evidence. Because the Board did not err in concluding that the claims were unpatentable as obvious as a matter of law. The Invention
	OPINION/ORDER With him on the brief were Nancy J. The device is conically shaped with a large opening that fits on a container and a smaller opening at the opposite end that allows popped popcorn to pass through when the device is attached to a popcorn container and turned upside down. An embodiment disclosed in Schreiber's patent application is depicted below. Schreiber filed a number of claims. 15 were finally rejected. Those claims are the subjects of this appeal. The taper of the top being uniform and such as to by itself jam up the popped popcorn before the end of the cone and permit the dispensing of only a few kernels at a shake of a package when the top is mounted on the container. Claim 2 is similar to claim 1 but additionally recites that the top comprises a ". Schreiber does not argue that claims 14 and 15 are patentable if claims 1 and 2 are not. We need not address claims 14 and 15. Claim 1 was rejected by the examiner under 35 U.S.C. з 102(b) as being anticipated by Swiss Patent No. 172.
	HALLCO MANUFACTURING CO., INC., V. OLOF HALLSTROM Filed a petition for panel rehearing for plaintiff/counterclaim defendant appellees.
	OPINION/ORDER Of counsel were Edward C. Of counsel was Robert J. With him on the brief were Constance S. Of counsel on the brief were Nicholas L. Of counsel on the brief was Scott A.M. This is a patent case. Determined that the patents were unenforceable due to inequitable conduct that occurred during prosecution before the United States Patent and Trademark Office (
	01-1509 -- GRANT V. PHARMACIA 7 UPJOHN CO. -- 12/23/2002 That any ambiguity in the contract is properly resolved in Defendant Upjohn's favor. The doctors were partly responsible for the discovery that minoxidil (marketed by Upjohn as Rogaine) stimulates hair growth. The terms of which are the basis of this litigation. The ISA provides: UPJOHN further agrees to pay an earned royalty of three and three quarter percent (3 3/4%) of UPJOHN's NET SALES of the INVENTION where the sale of the INVENTION would infringe any claim of the PATENT or the APPLICATION or any subsequently issued patent in which UPJOHN was assigned or could have been assigned an interest pursuant to this Agreement. UPJOHN also agrees to pay an earned royalty of two percent (2%) of UPJOHN'S NET SALES of the INVENTION where the manufacture of the INVENTION would infringe but the sale of the INVENTION would not infringe any claim of the PATENT or the APPLICATION or any subsequently issued patent in which UPJOHN was assigned or could have been assigned an interest pursuant to this Agreement. Aplt.
	ZODIAC POOL CARE INC. V. HOFFINGER INDUSTRIES INC. With her on the brief were Dean W. ) is the assignee of U.S. Zodiac further alleged that the infringement was willful. Hoffinger answered by denying infringement of both patents and alleging that both patents are invalid.
	TROY SHOCKLEY V. ARCAN Inc.
	HAZANI V. USITC
	KNORR-BREMSE SYSTEME FUER NUTZFAHRZEUGE GMBH V. DANA CORPORATION, ET AL. Argued for plaintiff cross appellant.а With him on the brief were Michael I. Cantor and Karen Canaan.а Of counsel were John C. Defendant appellant Dana Corporation.а With him on the brief for Haldex were Wesley W. Of counsel were James P. Copyright Section.а With him on the brief was Lynn E. For amicus curiae New York Intellectual Property Law Association.а With him on the brief was F. Christopher Mizzo.а Of counsel on the brief was Melvin C. Inc.а With him on the brief was Emily A. Evans.а Of counsel were Michael A. For amicus curiae American Intellectual Property Law Association.а With him on the brief was Jeffrey I.D. New York.а Also on the brief was David G.
	OPINION/ORDER With him on the brief were L.A. With him on the brief was Amanda Tessar. That the state law claims were preempted under Federal Circuit law. Because there are genuine disputes of material fact with respect to the state law claims. Is the holder of patents for a method of controlling hyperhomocysteinemia. Which is an emerging risk factor for heart and vascular disease. Three letters were sent to customers of Breckenridge in Florida: Publix Super Markets. The letters stated in relevant part: [O]ne or more small generic drug companies are offering generic equivalents to FOLTX. PamLab argues that the letters to Breckenridge's customers were sent by Metabolite alone. This argument is unavailing. Although it is true that the letters were
	TELEMAC CELLULAR V. TOPP TELECOMM Argued for plaintiff appellant.
	MOTOROLA V. INTERDIGITAL
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. The district court further determined that Transonic was estopped from asserting infringement under the doctrine of equivalents for all four claims. The normal blood flow through the shunt is impaired and the dialysis is subject to
	MITSUBISHI ELECTRIC CORP V. AMOEX CORP With him on the brief were Les J. Of counsel were Norman H. Also of counsel was Craig N. The jury verdict was that the asserted claims of both patents were invalid and that none of the asserted claims of the '612 patent was infringed either literally or under the doctrine of equivalents. That claim 1 of the '533 patent was literally infringed if valid. Is directed to a system for correcting errors that occur during the transmission. Digital information (the data to be transmitted or recorded or reproduced) is arranged in an array of bits and is encoded. The digital information is divided into a two dimensional rectangular array of bits. Error correcting codes are used to add check information to the data in each direction. An error correcting code C₂is used for data in one direction of the array. An error correcting code C₁is used for data in the second direction of the array. The system's error correction capability is enhanced. Wherein said C₁ and C₂ encoders are operative to encode in response to said timing signals of said timing generator and wherein either said C₁ encoder or said C₂ encoder provides said generalized product code.
	TORO COMPANY V. DEERE AND COMPANY Argued for plaintiff cross appellant.а With him on the brief were Alan W. Argued for defendant appellant.а With him on the brief were Thomas C. Lyons.а Of counsel on the brief were Charles T. Illinois.а Also of counsel on the brief was Michael R. Are directed at technology for lifting and fracturing soil to decrease subsurface soil density and thereby encourage turf growth.а The technology involves using an apparatus with a row of adjacent nozzles that sporadically shoot concentrated jets of pressurized water or other liquid into the turf and top soil.а а We do.
	OPINION/ORDER With him on the brief were Jan M. Of counsel was Emily M. With him on the brief were David T. Of counsel on the brief were H. Of counsel was Thomas Andrew Culbert. With him on the brief were Matthew D. With him on the brief were David A. With him on the brief was Craig M. Eolas alleged that certain aspects of Microsoft's Internet Microsoft denied infringement and Explorer (IE) product incorporate its invention. asserted that the claims were invalid and unenforceable. A reexamination of the '906 Patent was ordered by the Director and is currently pending in the United States Patent and Trademark Office. The inventors have consistently maintained that
	OPINION/ORDER With him on the brief was Russell B. Of counsel on the brief was Tom Crunk. With him on the brief was Richard McMillan. Of counsel on the brief was Dennis R. With him on the brief was M. Of counsel on the brief was Isabella E. With him on the brief was Ryan K. MIT and EFI urge that the district court's claim construction (on which the stipulated judgment of non infringement was based) was erroneous. Appellants also urge that the district court's order granting Microsoft's motion to exclude Windows as an infringing product was erroneous. We dismiss as moot the appeals insofar as they arise from orders that were granted in favor of Fry's Electronics. Inc. (
	SEAL-FLEX, INC. V. ATHLETIC TRACK AND COURT CONSTRUCTION With him on the brief were William J. Of counsel was Richard W. Inc. is the assignee of U.S. Mats constructed according to the claimed method are often used as running tracks. First applying a liquid latex binder to the previously spread rubber layer in sufficient quantity to coat substantially all rubber particles of said layer then air drying said applied mixture until substantially no liquid is visible. Air drying the binder followed by the spreading of a uniform layer of rubber over the preceding layers until the approximate desired thickness for the mat is achieved. (emphasis added). According to this method. Each of its shareholders is licensed to practice this patented process. AT&. The counterclaim sought a declaratory judgment that the patents were invalid. CC maintained that the Eaton Rapids method was not its customary track construction method. CC uses a material to perform the identical function and that the material used for performing that function was the same as or equivalent to the corresponding materials disclosed in the specification. At the conclusion of the liability trial.
	HOOVER GROUP, INC. V. METALCRAFT, INC.
	OPTICAL DISC CORPORATION V. DEL MAR AVIONICS Of counsel on the brief was Stephen J. With him on the brief were William E. ODC is the assignee of the '129 patent. The patent is directed to a method and an apparatus for improving the quality of compact optical discs.
	FILMTEC V. HYDRANAUTICS
	OPINION/ORDER With him on the brief was Lawrence C. With him on the brief was Steven E. 236 (
	ENGEL IND. V. THE LOCKFORMER CO.
	OPINION/ORDER With him on the brief were Robert C. Of counsel on the brief were Raphael V. Will & Emery. On the brief were Douglas A. Of counsel on the brief were Don O. The jury's verdict that Ericsson's infringement was willful. Both of these types of products are accused of infringing the '338 patent in the present case. This patent concerns the way wireless signals are processed. The symbols are transmitted by means of electromagnetic waves. This effect is called
	HALLCO MANUFACTURING V. RAYMOND K. FOSTER Argued for plaintiff/counterclaim defendant appellees.
	OPINION/ORDER
	OPINION/ORDER With him on the brief were Thomas R. With him on the brief was E. With him on the brief was David M. BACKGROUND Free Motion is the assignee of the '323 and '061 patents. Claim 1 of the '061 patent is representative of the claims of both patents and reads: 1. The first and second pivot points are numbered 174. While the first and second extension arms are numbered 112 and 114. Figure 7 is a close up of the proximal end of the first extension arm where it attaches to the resistance assembly. Which is located at the first end of the first extension arm. The other independent and dependent claims of the patents contain limitations that are nearly identical and need not be discussed separately. 05 1006 3 1 Cybex and Nautilus sell exercise machines that are alleged to be similar to those described in the patents. The arms of the Cybex and Nautilus machines are attached to the resistance assembly of the machine such that they pivot in two different planes. Those motions were granted by the district court on May 7.
	OPINION/ORDER With him on the brief was Marcy Hogan Greer. Of counsel was Shafeeqa Watkins Giarratani. With him on the brief was Thomas L. Of counsel was Stephen Walsh. BACKGROUND I Trans Texas is the assignee of both the '461 patent and the '673 patent. The '673 patent is a continuation of the '461 patent. Which are nearly identical. '673 patent col.2 ll.27 37 (
	DAYCO PRODUCTS, INC V. TOTAL CONTAINMENT Argued for plaintiff appellant.
	OPINION/ORDER With him on the brief was Christopher R. With him on the brief were Linda A. Solo Cup also appeals the court's pre trial evidentiary decision holding that an invention disclosure form was protected by attorney client privilege. We also reverse the court's determination that the contested disclosure form is protected by attorney client privilege. Solo Cup denied the infringement allegations and counterclaimed for declarations that the patents were invalid. Solo Cup's allegations of invalidity and unenforceability were directed at the '140 patent and grounded in Fort James's conduct during the time period in which the patented invention was developed. Commercial production studies were conducted at Fort James's plants in Fort Smith. A 1 The '496 patent was dropped from the lawsuit prior to trial. 2 04 1365 discovery that resulted in the '140 patent. While Fort James was studying its commercial production methods. Plates manufactured using die A 87 were sold to the public along with other paper plates. Solo Cup claimed that the '140 patent was invalid based on the on sale bar to patentability found in 35 U.S.C. з 102(b).
	LIGHTING WORLD, INC. V. BIRCHWOOD LIGHTING, INC. Will &. Argued for defendant cross appellant.а With him on the brief were Krista L. Appeals from the judgment against it and contends that the district court should have enter
	OPINION/ORDER With him on the briefs were Christine J. With him on the brief was William B. With him on the brief were Peter D. Were affirmed by this court in a consolidated appeal. At issue in this case is a dispute over the proper interpretation and application of the pre amended version of the 180 day generic marketing exclusivity provision of the Federal Food. Is now running and will not expire until April 2005. Because the parties in this case are the same parties who appeared in TorPharm. A final judgment was rendered against Apotex in TorPharm. There have been no material changes in the facts since the judgment in TorPharm. Because FDA's interpretation of з 355(j)(5)(B)(iv) was reasonable and thus entitled to deference. We vacate the District Court's alternative holding reaching the merits of whether FDA's interpretation of 21 U.S.C. з 355(j)(5)(B)(iv) is reasonable. 4 I. NDAs are usually lengthy. Information demonstrating that the generic version is the bioequivalent of the approved version of the drug. ANDAs must also address patents that apply or might apply to the drug for which the ANDA is submitted.
	GREAT NORTHERN V. HENRY MOLDED PRODUCTS
	OPINION/ORDER
	NEW RAILHEAD MANUFACTURING V. VERMEER Argued for defendant appellee Vermeer Manufacturing Company.
	ALPEX COMPUTER V. NINTENDO
	TRILOGY V. TIMES FIBER
	WIENER V. NEC ELECTRONICS
	STRYKER CORPORATION V. DAVOL INCORPORATED With him on the brief was Timothy J. Of counsel on the brief was Charles E. Of counsel were Sharon A. With him on the brief was Raymond C. Of counsel on the brief was Michael J. Of counsel was Peggy M. It is undisputed that. Only claims 8 and 14 are independent claims. 145 patent because the Stryke Flow did not have the present capability for ". 977 patent was similarly granted because the claimed ". Was not present. 402 patent and for judgment that claim 14 was invalid as anticipated by the United States Patent No. 5. These motions were denied and the case proceeded to trial on infringement of the
	YORK PRODUCTS V. CENTRAL TRACTOR FARM
	OPINION/ORDER Hurst argued the cause for appellant.
	ELAN PHARMACEUTICALS V. MAYO Argued for plaintiffs appellants.
	ABBOTT LAB. V. NOVOPHARM LIMITED
	ANTHONY JOHN ANTONIOUS V. FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P Argued for plaintiff and sanctioned party appellant.
	NUPLA CORP. V. IXL MANUFACTURING
	UNION PACIFIC RESOURCES COMPANY, V. CHESAPEAKE ENERGY CORPORATION AND CHESAPEAKE OPERATING, INC. With him on the brief was William J. With him on the brief were Steven R. Chesapeake contends that the trial court should have found this case to be exceptional and awarded it attorney fees under 35 U.S.C. з 285 (1994).
	OPINION/ORDER
	OPINION/ORDER
	SOLOMON, SANDRA V. KIMBERLY-CLARK Of counsel was Harry M. With him on the brief were V. Of counsel were Carter G. 381 are invalid as indefinite under 35 U.S.C. з . Sandra Southwell (now Sandra Solomon) is the named inventor on the 381 patent. Which is directed to disposable panties and panty liners for use during a woman s menstrual cycle. Which is representative of the claims at issue. Which have been modified for clarity. Panty 21 is divided into body portion 22. Body portion 22 is itself divided at division line 28 into top portion 26 and bottom portion 27. See id. at col. 5. Top portion 26 is preferably made of lightweight open mesh type material or fabric. Is composed of a highly absorbent. Oval shaped depression 43 that is bounded on both sides by thick layer 51 (specifically labeled 44 in the crotch region) and contains a relatively thin layer of absorbent material at its base. See id. at col. 7. As well as its conclusion that there was no genuine issue of material fact that the accused panties did not literally infringe. See Solomon v.
	HILGRAEVE CORPORATION V. SYMANTEC CORPORATION Argued for plaintiff appellant.
	LIEBEL-FLARSHEIM COMPANY, ET AL. V. MEDRAD, INC. Argued for plaintiffs appellants.а With h
	OPINION/ORDER With him on the brief was J. Of Counsel was Nicole M. With her on the brief was Lara C. Inc. appeals the dismissal of its appeal of the decision of the United States Patent and Trademark Office (
	OPINION/ORDER With him on the brief were William B. Of counsel was Abraham W. McDermott Will & Emery LLP. With them on the brief were Charles Rosenberg and Cynthia A. BACKGROUND Optivus and Loma Linda are the purported exclusive licensee and assignee. The '287 patent is directed to a proton beam therapy facility that The generates a proton beam and delivers it to one of multiple treatment rooms. treatment rooms are equipped with movable gantries that enable an operator to direct the beam to a patient at a specific angle. The proton beam therapy system is illustrated in figure 1 of the '287 patent. Which is reproduced below. 05 1518. 1575 2 Claim 1 of the '287 patent is the only independent claim and provides. Transporting the proton beam away from the axis of rotation and returning the proton beam on a path perpendicular to and intersecting the axis at a target isocenter within the patient whereby with rotation of the gantry the proton beam is delivered to the target isocenter from several different angles and ... a control system for the proton beam therapy system including an operator controllable means for (1) selectively switching the first switching magnet between its first and second states and (2) controlling the rotational position of the first gantry to direct the proton beam exiting the first switching magnet in its first state to the target isocenter for the first treatment station along one or more controlled angles. 05 1518.
	OPINION/ORDER Filed a petition for rehearing en banc on behalf of the plaintiff appellant.
	RODIME PLC V. SEAGATE TECHNOLOGY With her on the brief were Thomas R. Also of counsel on the brief were John C. With him on the brief were Gerald T. The patent is directed to the miniaturization of hard drive technology from 51/4 inches to 31/2 inches. Disk drives incorporate stainless steel components where strength is critical and aluminum components elsewhere to minimize overall weight. The disk itself will expand radially outward from the hub. The head will not find the correct track position to retrieve information. To solve this problem. The thermal compensation system is built into the
	OPINION/ORDER With him on the brief was Greg H. Of counsel on the brief was William D. With him on the brief were Jennifer L. Held that the claims were not invalid. The district court found that Peterson both directly and indirectly infringed the '159 patent and that infringement was willful. We have jurisdiction pursuant to 28 U.S.C. з 1295(a)(1). 1202 3 was an appealable judgment that Golden Blount did not seek to amend within ten days as required by Rule 52(a). Golden Blount counters that it need not have filed another Rule 52(b) motion with its August 31. 2004 proposed findings because its original Rule 52(b) motion was adequate and because it was complying with the district court's August 18. 2004 order was not an appealable judgment and did not start the ten day clock. Golden Blount maintains that even if this court reviews the findings very closely because they were adopted verbatim. The standard that the court must apply is that of
	STATE CONTRACTING & ENGINEERING CORPORATION V. CONDOTTE Argued for plaintiff appellant.а Of counsel on the brief was John H. Argued for defendants cross appellants.а With them on the brief was Harvey S. Charging them with patent infringement.а The State was dismissed from the case. State Contracting has appealed the district court s ruling that the contractors infringement was not willful.а For their part. The contractors have appealed from the judgment on a number of grounds. State Paving applied for and was issued two patents related to the subject matter of the VECP: U.S. An auger rotates to cut through the soil and create the hole.а Cementitious material can then be pumped through the central channel of the auger so that when a retaining means or valve in the auger is opened. L. 4.а The 455 patent contains three apparatus claims.а Claim 1 is representative:
	OPINION/ORDER With him on the brief was Philip M. With him on the brief were Scott J. Inc. (
	VULCAN ENGINEERING CO., INC V. FATA ALUMINIUM, INC Argued for defendants appellants.
	INNOVA / PURE WATER, INC. V. SAFARI WATER FILTRATION SYSTEMS, INC. Argued for defendant appellee.а On the brief were Raymond A. Is directed to a water filter assembly and a container incorporating the assembly.а In general terms. The assembly is positioned at the mouth of a container which is a bottle. The filter assembly operates to place the tube of filtering material between the water in the bottle and the valve so that water is filtered before it exits the bottle.а Various embodiments are depicted in Figures 1 12 of the '759 patent.а а With him on the brief was L. Argued for defendants appellees.а With him on the brief were Joseph M. The lack of novelty of the product does not by itself establish that the process for making it is obvious.а We therefore reverse the grant of summary judgment of invalidity and remand the case for further proceedings. This appeal concerns the validity of a patent on a process for making the drug ranitidine.а Ranitidine is an antihistamine drug that inhibits acid secretion in the stomach. Is used to treat ulcers.а Several patents covering different crystalline forms of ranitidine are owned by nonparty Glaxo. Have been the subject of extensive litigation.а Glaxo. Ll. 26 27.а Improved Form 1 ranitidine is distinguished from Form 1 ranitidine by two properties reflecting these characteristics:а bulk density and tap density.аа According to the patent.
	OPINION/ORDER With him on the brief were Richard H. With him on the brief were Edward A. Is the assignee of U.S. That those three claims were invalid. The district court subsequently denied Northpoint's motion for judgment as a matter of law (
	OPINION/ORDER With him on the brief was Jack B. With him on the brief was James R. Because we affirm the district court's conclusion that the '580 patent is unenforceable due to inequitable conduct. Financial instruments were sold using an
	LAITRAM CORP. V. NEC CORP.
	OPINION/ORDER Of counsel on the petition was Thomas J. With him on the opposition were Jeffrey J. With him on the brief was Roy H. With him on the brief were John D. ORDER A combined petition for panel rehearing and rehearing en banc was filed by the Appellant. A response thereto was invited by the court and filed by the Appellee.1 The petition for rehearing was referred first to the merits panel that heard the appeal. The amici curiae briefs were referred to the circuit judges who are authorized to request a poll whether to rehear the appeal en banc. A poll was requested. IT IS ORDERED THAT: (1) The petition for panel rehearing is denied. 1 Amicus curiae briefs were filed by: 1 The Federal Trade Commission. 2 The Generic Pharmaceutical Association. 3 Ivax Pharmaceuticals. Schumer. (2) The petition for rehearing en banc is denied. (3) The mandate of the court will issue on April 11. This is a critical issue under the Hatch Waxman Act.1 The failure of this court by en banc action to correct the Teva court's decision. The Teva court's reasonable apprehension analysis is the wrong test for a concrete.
	MODINE MANUFACTURING V. U.S. INT'L TRADE
	PLANT GENETIC S V. DELAKB Argued for plaintiff appellant.а With him on the brief were Susan J. Argued for defendant appellee.а With him on the brief were Thomas A. California.а Of counsel was Hemant H. On all counts of the complaint in this patent infringement suit.а The case was tried to the bench for thirteen days.а At the end of the trial. Were invalid for lack of enablement and that claims 8 9 and 12 15. Were not infringed.а Id. at 270.а Because as to enablement. 1996 to inventors from PGS and Biogen Corporation and is directed to transgenic plant cells. These herbicides are also called glutamine synthetase inhibitors.а Two structurally related compounds. Are such herbicides.а It has been desirable to obtain food plants that are resistant to non selective herbicides.
	PURDUE PHARMA L.P. V. FAULDING INC. With them on the brief was Todd A. With him on the brief were Paul H. Of counsel on the brief was E. Of counsel were Jack B. Which is drawn to methods of treating pain in patients by administering an opioid. 360 patent but that the claims were invalid. S sleep and subjects the patient to cycles of pain that are difficult to control.
	GENENTECH, INC. V. NOVO NORDISK
	ALFRED J. SCHUMER V. LABORATORY COMPUTER SYSTEMS Argued for defendant appellee and counterclaimant appellee.
	DAWN EQUIPMENT V. KENTUCKY FARMS
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. We affirm the court's grant of Fujitsu's motion for summary judgment that the non clamping claims of the '400 patent are invalid because of anticipation. That claims 5 11 of the '349 patent are invalid because of indefiniteness. Are both entitled
	GENZYME CORPORATION V. TRANSKARYOTIC THERAPIES Argued for plaintiffs appellants.а With her on the brief were Stephen S. Argued for defendant appellee.а With her on the brief were Patricia A. This court affirms. I. Genzyme Corporation is the exclusive licensee of U.S. Line height:200%'>The claims at issue in this appeal are independent claims 1 and 10 of the 804 patent. Mso symbol font family:Symbol'>a galactosidase A nucleotide sequence is stably overexpressed and an enzymatically active a galactosidase A enzyme is secreted by the mammalian cell. Mso symbol font family: Symbol'>a galactosidase A nucleotide sequence is stably overexpressed and an enzymatically active a galactosidase A enzyme is secreted by the mammalian cell.а а With him on the brief was William R. Argued for defendant appellant.а With him on the brief were Jerold I. Which is directed to a method for therapeutically treating damaged tissue by topically administering a composition containing Coenzyme Q₁₀ ( CoQ₁₀ ).а The sole independent claim of the 373 patent reads as follows: A method of therapeutically treating impaired or damaged tissue in humans and animals which comprises topically administering to such tissue a composition comprising as the principal active ingredient a therapeutically effective amount of Coenzyme Q₁₀ (2. The court rejected Jergens argument that Q Pharma was on notice of the patent s invalidity prior to filing suit. The court found that Jergens Rule 11 motion was untimely under Rule 11 s safe harbor provision. Because it was filed after Q Pharma had voluntarily withdrawn its claim and therefore provided Q Pharma with no opportunity to cure the challenged conduct.а Rule 11 Order.
	OPINION/ORDER With him on the brief were Barry S. With him on the brief were Jeffrey S. This is the second round of a protracted litigation to establish priority of invention between Stampa et al.'s U.S. The Patents Medichem and Rolabo are both pharmaceutical manufacturers based in Barcelona. Loratadine is the active ingredient in the allergy medication Claritinо. Is an alkene. 1248 2 difference between the processes claimed by Medichem1 and Rolabo2 is that Medichem's process requires the reaction to be carried out in the presence of a type of chemical known as a tertiary amine.3 In contrast. Is a species within the genus of the Rolabo invention. Because Rolabo was the party with the earlier effective filing date. Wherein the low valent titanium species are generated by reduction of titanium tetrachloride with zinc dust. 2 Claims 1 and 17 of Rolabo's `827 patent read: 1. D]cyclohept 11 enes comprising reacting a dibenzosuberone or an aza derivative thereof with an aliphatic ketone in the presence of low valent titanium wherein said low valent titanium is generated by zinc. 17.
	MANTECH V. HUDSON
	POWER MOSFET TECHNOLOGIES, L.L.C., ET AL V. SIEMENS AG, ET AL. Argued for plaintiffs appellants.а With him on the brief were Donald R. Dunner and Smith R. Brittingham IV.а Of counsel on the brief was Alfonso Garcia Chan. Et al.а With him on the brief were Neil P. Sirota of New York. Et al.а With him on the brief was James P. Texas.а Of counsel on the brief were Bruce S. Sostek and Jane Politz Brandt. Texas.а Of counsel was Li Chen. Et al.а Of counsel was Glenn W. Trost. 275 (the 275 patent ) was not infringed by defendants cross appellants Siemens AG. Infineon and ST conditionally cross appeal the district court s judgment that the 275 patent was not anticipated by United States Patent No. 4.
	OPINION/ORDER
	OPINION/ORDER We conclude that a non appealability clause in an arbitration agreement that forecloses judicial review of an arbitration award beyond the district court level is enforceable. What was unique about this technology is that it was designed to remove the contaminants in situ. Or while the water was still underground. Gorelick was the sole shareholder and manager of NoVOCs. Two aspects of the stock purchase agreement are particularly relevant to this appeal: First. MACTEC was unsure as to whether the use of the UBV technology would trigger the $3000 per well royalty obligation to Gorelick it had assumed in the stock purchase agreement. The parties eventually agreed in writing to reduce Gorelick's royalty payment to $1500 for each
	FIN CONTROL SYSTEMS PTY V. OAM Circuit Judge. This is a patent infringement case in which Fin Control Systems Pty. The '359 patent relates to a system for providing detachable fins to the bottom of a surfboard.
	OPINION/ORDER With him on the brief was David A. With him on the brief was Deborah M. I. BACKGROUND FECO and Highway Equipment are Iowa corporations that manufacture and sell agricultural equipment including spreaders for applying particulate material. Highway Equipment is also the owner of U.S. The agreement was governed by the Iowa Agricultural Equipment Dealer Statute. Also named as a defendant in that case was Doyle Equipment Manufacturing Company (
	;BIOVAIL CORPORATION INTERNATIONAL V. ANDRX PHARMACEUTICALS, INC. With him on the brief were A. Of counsel was Benedict P. With him on the brief were Martin P. Of counsel on the brief was Gerald J. Inc. are the exclusive licensees of the 791 patent. Which is owned by Galephar P.R. The 791 patent is directed to a once a day drug used to treat hypertension and angina. Claim 1 is the only independent claim of the 791 patent and is the only claim at issue in this case. ensuring that the solubility of the Diltiazem is unaffected by the pH of the gastrointestinal tract or other adverse conditions which the composition will meet therein. And
	GRAIN PROCESSING CORP. V. AMERICAN MAIZE-PRODUCTS CO. With him on the brief was Marc L. With him on the brief were Nicholas N. 1997) (nonprecedential) (Grain Processing VII). The district court found that American Maize proved that a noninfringing substitute was available. The court found further that this substitute was acceptable to all purchasers of the infringing product and concluded that American Maize rebutted the inference of
	GOLIGHT, INC. V. WAL-MART STORES, INC., ET AL. Argued for plaintiff appellee.а With him on the brief was Matthew S. Argued for defendant/third party plaintiff appellant.а With him on the brief was Kevin B. Text indent:0in'>BACKGROUND The 989 patent is for a wireless. Where he used hand held search lights to locate and assist calving animals in harsh blizzard conditions.а
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. I The appellants are the inventors on expired U.S. The goal of the invention of the '255 patent was to reduce the cost of making permanent magnets by decreasing the amount of cobalt required in the production process. That complex is created by a process that includes melting the constituent elements together and cooling the resulting product into a solid. The last heating step is called
	PHONOMETRICS V. NORTHERN TELE.
	OPINION/ORDER With him on the brief was Matthew C. Which is used to deposit extremely thin layers of different materials on the surface of a substrate. Are applied to the substrate by sequentially vaporizing each reactant and passing it over the substrate. Each reactant must be removed from the area of the substrate before the substrate is exposed to a new reactant. The first way is to remove the reactant gas by applying a vacuum to the area surrounding the substrate. That process is referred to as
	GENENTECH, INC. V. REGENTS OF THE UNIV.
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. It requests that its claims be reinstated and remanded for consideration if the district court's summary judgment is reversed. I IEX is the holder of the '355 patent. A telephone call center is a collection of agents. As calls are received. They are identified by an automatic call distributor (
	GAF V. ELK CORPORATION
	BERRY STERLING V. PRESCOR PLASTICS
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. Is the assignee of a design patent on a drill bit. Old Jore filed a separate action against Kouvato seeking a declaratory judgment that the '575 patent was invalid and unenforceable. Its assets and name were bought by the newly organized company. The new Jore Corporation was then joined as a plaintiff and counterclaim defendant. The cases were consolidated in the United States District Court for the District of Montana. The jury found that the '575 patent was valid and enforceable but not infringed. It denied costs to Jore because the court concluded that Jore was not a prevailing party. Jore cross appeals the ruling that the patent is valid and enforceable and also challenges the district court's finding that the corporation is not a prevailing party for purposes of awarding costs. The first piece was a high speed.
	ARLINGTON INDUSTRIES, INC V. BRIDGEPORT FITTINGS Mso bidi font family:
	OPINION/ORDER With him on the briefs was Christine J. We conclude that the case is moot and. Which relies on the FDA's previous determination that the drug is safe and effective. (III) the patent will expire on a date certain. Or (IV) the patent is invalid or will not be infringed by the drug for which the applicant seeks approval. Rel evant here is the paragraph IV certification. If a patent infringement action is timely brought. Unless this period is altered by the court or a decision of that court. The Hatch Waxman Amendments provide that the first to file a paragraph IV certification for a particular drug is eligible for a 180 day period of marketing protection (i.e. Which was patented by Imperial Chemical Industries. Which is due to expire on August 20. While Imperial's appeal to the United States Court of Appeals for the Federal Circuit was pending. Which was filed shortly before the thirty month statutory stay of Pharmachemie's ANDA was to expire and which sought enforcement of Barr's 180 day exclusivity peri od.
	OPINION/ORDER Line 4 the following attorneys are added for Genpharm:
	OPINION/ORDER With him on the brief were Theodore Stevenson. With him on the brief were Matthew C. Of counsel was Anthony A. When they are away from their normal base of operations. The claimed method operates as follows: a customer who is temporarily in a remote location uses contact and login information (i.e. The ASP provides the user with login information for a new ISP that is more suitable to the customer's remote location. Typically because it is closer to that location. Each of the defendants' practices are the same in all respects pertinent to this appeal. The result of that authentication query is then communicated to the modem bank. Where the user is allowed or denied internet access depending on whether the authentication process indicates that the customer is a valid user entitled to service. The district court found that the patent defines authentication as the process of checking whether the user ID and password are valid. Because the defendants are the ones performing the authentication check and. The defendants are the ASPs.
	PIN/NIP, INC V. PLATTE Argued for plaintiff appellant.
	OPINION/ORDER With him on the petition was George P. Because we conclude that the invention record of the 178 patent is protected by the attorney client privilege. The denial of that privilege by the district court is properly remedied by mandamus. Spalding is the assignee of the 178 patent. 1994 and is directed to a basketball with a polyurethane cover. Spalding asserted that the invention record was not discoverable because it was protected by the attorney client privilege. (2) even if the attorney client privilege were to apply. Wilson was nonetheless entitled to discovery of the invention record because it had made a prima facie showing of inequitable conduct. See id. at 5 6. The document was meant primarily as an aid in completing the patent application rendering the attorney a mere ". The magistrate judge concluded that Spalding s invention record was discoverable. Apparently based on the rationale that any attorney client privilege was abrogated by the crime fraud exception.
	INSITUFORM TECHNOLOGIES, INC., ET AL. V. CAT CONTRACTING, INC., ET AL. KG.а <
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. We further hold that the district court's grant of an injunction enforcing the protective order is moot as to claims 13. The catheter was. Considerable force was needed to insert the sheath covered catheter into the vessel. The beveled tip is indicated by the number 15 with the leading point shown as number 4 and rearmost point shown as number 3. The catheter is designed number 6 with the distal portion shown as number 5 and cylindrical section leading to the beveled tip shown as number 9. (4) a 24 French Teflon tube that fits over the 24 French dilator.1 The article explained that after the two dilators and tube are inserted percutaneously into a patient's inferior vena cava by way of the guidewire. The dilators are removed. The term
	ELAN PHARM. RESEARCH CORP. V. EMPLOYERS INS. OF WAUSAU (6/26/1998, NO. 96-9249) Plc (
	MASSEY V. DEL LABORATORIES
	OPINION/ORDER
	OPINION/ORDER With him on the brief were Seth P. Of counsel on the brief was Joseph C. Of counsel was Alan B. This is the third time this case has been before us. Holding that the liquidated damages provision in the parties' contract was an unenforceable penalty. A technique that allows for much more efficient weed control than is possible with unmodified plants. Farmers promised not to replant seeds that were produced from the purchased seeds or to supply those seeds to others for replanting. McFarling also would have had to pay a seed company between $19 and $22 for each bag of the seed that he purchased. Contending that the patent misuse defense was given new life by 05 1570. McFarling again moved to limit the damages award to what he contended was Monsanto's $6.50 per bag established royalty for use of its patented technology. 1598 5 seeds) are nearly identical copies.
	ARTHUR A. COLLINS V. NORTHERN TELECOM LIMITED With him on the brief was Joseph A. Of counsel on the brief were Amy Sanborn Owen. With him on the brief was Doris Johnson Hines.
	PARADISE CREATIONS, INC V. U V SALES Argued for defendant appellee.
	OPINION/ORDER Argued for appellant.
	ELAN PHARM. RESEARCH CORP. V. EMPLOYERS INS. OF WAUSAU (6/26/1998, NO. 96-9249) Plc (
	OPINION/ORDER On the brief were Marc R. Will & Emery. With him on the brief were Dennis J. Both parties are biotechnology companies that are engaged in gene silencing. A cell is exposed to a piece of foreign DNA that is specifically engineered to contain certain portions or copies of the target gene to be silenced. This technology is known as RNA interference (
	TORO CO. V. WHITE CONSOLIDATED INDUSTRIES With him on the brief were David . We have construed the claims de novo. Debris is sucked into the impeller where it is mulched by action of the fan and then blown through the air outlet into the collection bag. Such devices were known to the prior art.
	OPINION/ORDER Argued for plaintiff appellant.
	OPINION/ORDER Honorable Stanley Marcus was a U.S. When this appeal was argued and taken under submission. Plc (
	OPINION/ORDER The defendant cross appellant appeals the district court's decision to grant the insured's motion for summary judgment on the question of coverage under the
	OPINION/ORDER With her on the brief were Sona De and Herbert F. With him on the brief were Thomas J. Of counsel on the brief was Jules E.
	NATIONAL RECOVERY TECHNOLOGIES V. MAGNETIC SEPARATION SYSTEMS, INC. With him on the brief were George E. With him on the brief was Edward D. 576 (
	INTERNATIONAL NUTRITION V. INTERNATIONAL NUTRITION Argued for
	HELFGOTT & KARAS, P.C. V. DICKENSON, Q. TODD With him on the brief was Aaron B. With him on the brief was Albin F. Of counsel were Scott A. At issue is the refusal of the
	KRAFT FOODS V. INTERNATIONAL TRADING CO. With him on the brief were Kevin H. With him on the brief were Theodore J. Which is not drafted in the means plus function format. remand.
	OPINION/ORDER With him on the brief was Edward Jorgenson.
	SUMMIT TECHNOLOGY, INC., V. NIDEK CO., LTD., ET AL. Argued for plaintiff appellant.а With him on the brief were Lisa J. Mso bidi font family:
	OPINION/ORDER With him on the brief were Robin L. Of counsel on the brief were Juliana M. Of counsel was Charles E. That the asserted claims were invalid as anticipated because Go was not entitled to claim the priority date of an earlier application. Go argues that (1) the district court erred in granting summary judgment on the patent claim because there were factual disputes as to whether the earlier patent application met the requirements of 35 U.S.C. з 112. (2) prejudgment interest should have been awarded because the contract damages were liquidated. (3) the damages award should not have been reduced. Most of the bacteria are concentrated in the first 1.5 cm to 2 cm of the urethra. The '259 patent was issued from a 1985 continuation in part application that claimed the priority date of an application filed on September 12. 1979.1 The claims of the '259 patent recite the use of a stop member to limit the insertion of the sheath to either
	OPINION/ORDER The issue is whether Siemens's refusal to sell or license patented or copyrighted goods to the appellants is an illegal use of monopoly power in a secondary market.
	OPINION/ORDER
	AAI V. PRINCE MANUFACTURING
	CYBOR CORP. V. FAS TECHNOLOGIES 96-1286,-1287 CYBOR CORPORATION, PLAINTIFF-APPELLANT, V. FAS TECHNOLOGIES, INC., AND FASTAR LTD., DEFENDANTS/CROSS-APPELLANTS. MAYER, CHIEF JUDGE, WITH WHOM NEWMAN, CIRCUIT JUDGE, JOINS, CONCURRING IN THE JUDGMENT. I AM COMPELLED TO CONCUR IN THE JUDGMENT OF THE COURT, BUT I RESPECTFULLY DISAGREE WITH THE OPINION BECAUSE IT PROFOUNDLY MISAPPREHENDS MARKMAN V. WESTVIEW INSTRUMENTS, INC., 116 S. CT. 1384 (1996). THE SUPREME COURT CONCLUDED THERE THAT THE HISTORICAL RECORD IS INSUFFICIENTLY FIRM TO DECLARE THAT JURIES CONSTRUED PATENT CLAIMS IN ENGLAND WHEN THE SEVENTH AMENDMENT TO THE CONSTITUTION WAS ADOPTED IN 1791. SO IT DECIDED AS A MATTER OF POLICY THAT JUDGES, NOT JURIES, ARE BETTER ABLE TO PERFORM THIS TASK GIVEN THE COMPLEXITY OF EVIDENCE AND DOCUMENTATION. THIS WAS A PERILOUS DECISION OF LAST RESORT. FOR JURIES REGULARLY RENDER VERDICTS IN CIVIL CASES BASED ON COMPLEX FORENSIC AND DOCUMENTARY EVIDENCE OF EQUAL OR GREATER DIFFICULTY THAN SEEN IN PATENT CASES. AND THE IMPLICATIONS FOR CRIMINAL CASES UNDER ARTICLE III AND THE SIXTH AMENDMENT ARE EVEN MORE PROFOUND. INCREASINGLY COMPLEX CASES INVOLVING SCIENTIFIC AND COMPLICATED DOCUMENTARY EVIDENCE ARE PRESENTED TO CRIMINAL JURIES WHICH, OF COURSE, DECIDE MATTERS OF LIFE AND LIBERTY, NOT MERELY MONEY. NEVERTHELESS, HAVING SO RULED, IT SEEMS TO ME THE COURT WOULD NOT ALSO HAVE REPEALED PART OF THE FEDERAL RULES OF CIVIL PROCEDURE AND EVIDENCE WITHOUT SO MUCH AS A MENTION THAT DISTRICT COURTS NO LONGER HAVE DISCRETION TO ADMIT EXPERT EVIDENCE, SEE DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579 (1993), AND NEED NOT FIND FACTS WHEN EVIDENCE IS DISPUTED IN THESE CASES. NOR WOULD IT HAVE SO EXCUSED THIS COURT FROM THE NORMAL, HISTORICAL ROLE OF APPELLATE COURTS TO REVIEW FOR REVERSIBLE ERROR, AND INSTALLED IT AS A COLLEGIAL TRIAL COURT. I. STANDARD OF REVIEW WE REVIEW THE DENIAL OF A MOTION FOR JUDGMENT AS A MATTER OF LAW DE NOVO BY REAPPLYING THE SAME STANDARD. SEE READ CORP. V. PORTEC, INC., 970 F.2D 816, 821, 23 USPQ2D 1426, 1431 (FED. CIR. 1992). UNDER THIS STANDARD, APPELLANT MUST SHOW THAT УTHE JURYТS FACTUAL FINDINGS, PRESUMED OR EXPRESS, ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE OR, IF THEY ARE, THAT THE LEGAL CONCLUSIONS IMPLIED FROM THE JURYТS VERDICT CANNOT IN LAW BE SUPPORTED BY THOSE FINDINGS.Ф ALPEX COMPUTER CORP. V. NINTENDO CO., 102 F.3D 1214, 1221, 40 USPQ2D 1667, 1672 (FED. CIR. 1996) (QUOTING KEARNS V. CHRYSLER CORP., 32 F.3D 1541, 1547-48, 31 USPQ2D 1746, 1751 (FED. CIR. 1994)). OUR REVIEW OF CLAIM CONSTRUCTION IS CONTROLLED BY THE SUPREME COURTТS JUDGMENT IN MARKMAN, 116 S. CT. 1384, NOT THE OPINION OF THIS COURT IT REVIEWED, 52 F.3D 967, 34 USPQ2D 1321 (FED. CIR. 1995); THE SUPREME COURT DID NOT ADOPT THIS COURTТS REASONING AS ITS OWN. THOUGH IT COULD HAVE DONE SO EASILY, THE COURT CHOSE NOT TO ACCEPT OUR FORMULATION OF CLAIM CONSTRUCTION: AS A PURE QUESTION OF LAW TO BE DECIDED DE NOVO IN ALL CASES ON APPEAL.1 IF IT HAD, THERE WOULD HAVE BEEN NO NEED FOR ITS EXTENSIVE EXEGESIS ABOUT THE SEVENTH AMENDMENT AND WHETHER JURIES MUST CONSTRUE CLAIMS THAT HAVE EVIDENTIARY UNDERPINNINGS OR WHETHER THE IMPORTANCE OF UNIFORMITY IS BEST SERVED BY GIVING THESE EVIDENTIARY QUESTIONS OF MEANING TO A JUDGE. IT WOULD HAVE BEEN A SIMPLE MATTER FOR THE COURT TO GIVE SHORT SHRIFT TO THIS ARGUMENT BY PROCLAIMING CONSTRUCTION PURELY, SOLELY, AND ALWAYS A MATTER OF LAW THAT WOULD NEVER HAVE GONE TO THE JURY. THE SUPREME COURT RECOGNIZED THAT IN SOME CASES THERE WILL BE CONFLICTING EVIDENCE THAT HAS TO BE RESOLVEDЧWHERE THERE ARE FACTUAL DETERMINATIONS THAT ARE MORE THAN JUST INCIDENT TO CLAIM CONSTRUCTIONЧSUCH AS THE UNDERSTANDING OF ONE SKILLED IN THE ART AT THE TIME THE PATENT APPLICATION WAS FILED. IN THESE CASES, ALL THAT MARKMAN STANDS FOR IS THAT THE JUDGE WILL DO THE RESOLVING, NOT THE JURY. WISELY, THE SUPREME COURT STOPPED SHORT OF AUTHORIZING US TO FIND FACTS DE NOVO WHEN EVIDENTIARY DISPUTES EXIST AS PART OF THE CONSTRUCTION OF A PATENT CLAIM AND THE DISTRICT COURT HAS MADE THESE FINDINGS WITHOUT COMMITTING CLEAR ERROR. SEE FROMSON V. ANITEC PRINTING PLATES, INC., 132 F.3D 1437, 1446, 45 USPQ2D 1269, 1275 (FED. CIR. 1998) (FINDINGS OF FACT MADE BY A DISTRICT COURT TO RESOLVE DISPUTES AS TO THE MEANING OF CLAIM TERMS ARE AFFIRMED ABSENT CLEAR ERROR); EASTMAN KODAK CO. V. GOODYEAR TIRE & RUBBER CO., 114 F.3D 1547, 1555-56 42 USPQ2D 1737, 1742 (FED. CIR. 1997) (RELIANCE ON EXPERT TESTIMONY TO CLARIFY AMBIGUOUS CLAIM TERM IS ACCEPTABLE AND DEFERENCE IS GIVEN TO THE TRIAL COURTТS CREDIBILITY DETERMINATION). RATHER, WHEN THE JUDGE FINDS FACTS OR ACCEPTS THE FACTUAL DETERMINATIONS OF A JURY, THOSE FACTS ARE ENTITLED TO GREATER DEFERENCE THAN DE NOVO FACT FINDING ON APPEAL. IN FROMSON, THE TRIAL JUDGE ADMITTED EXPERT TESTIMONY TO DEVELOP THE RECORD ON THE MEANING OF THE WORD УANODIZED,Ф AS IT WAS UNDERSTOOD BY ONE SKILLED IN THE ART AT THE TIME OF THE INVENTION. FROMSON, 132 F.3D AT 1444-45, 45 USPQ2D AT 1273-74. BASED ON THAT EXTRINSIC EVIDENCE, HE FOUND УIN 1973 NO REASONABLE PRACTITIONER OF THIS PROCESS WOULD HAVE HAD THE OPINION THAT A NON-POROUS NON-ADHERENT OXIDE COATING, AS THIN AS THE NATIVE 5 NANOMETER COATING FOUND NATURALLY IN THE ENVIRONMENT, OF PHOSPHORIC OXIDE, CONSTITUTED AN ANODIZED SURFACE.Ф ID. AT 1444, 45 USPQ2D AT 1274. THIS FINDING LIMITED THE MEANING OF THE WORD ANODIZED BEYOND WHAT A STANDARD DEFINITION REQUIRED: У[T]O SUBJECT [A METAL] TO ACTION BY MAKING [IT] THE ANODE OF A CELL BEFORE COATING WITH A PROTECTIVE OR DECORATIVE FILM.Ф ID., 45 USPQ2D AT 1273 (QUOTING WEBSTERТS THIRD INTТL DICTIONARY). THIS FINDING ALSO CONFLICTED WITH THE ALLEGED INFRINGERТS DESCRIPTION OF ITS OWN OXIDE COATING PROCESS AS ANODIZATION. NEVERTHELESS, THE DISTRICT COURT CONSTRUED THE WORD ANODIZED TO MEAN: УAN ELECTROLYTICALLY FORMED, ADHERENT, POROUS ALUMINUM OXIDE COATING SUFFICIENTLY THICK (MEANING THICKER THAN NATIVE OXIDE) . . . .Ф ID. AT 1445, 45 USPQ2D AT 1274. BECAUSE THE ACCUSED PROCESS DID NOT FORM AN OXIDE COATING THICKER THAN NATIVE OXIDE, THE DISTRICT COURT ENTERED A JUDGMENT OF NONINFRINGEMENT. EVEN HAD WE DISAGREED WITH THE CONSTRUCTION GIVEN BY THE TRIAL COURT IN FROMSON, WE WERE NOT TASKED BY OUR STANDARD OF REVIEW TO REEXAMINE DE NOVO EACH OF THE DAYS OF TESTIMONY AND VOLUMES OF RECORD RELATING TO INTERPRETATION OF THE WORD ANODIZED. THIS COURT DID NOT AFFIRM THE TRIAL COURTТS JUDGMENT BECAUSE IT HAD EDUCED THE BEST CONSTRUCTION OF THE WORD ANODIZED. IT DID SO BECAUSE THE DISTRICT COURTТS CONSTRUCTION WAS PROPERLY PREDICATED ON A FACTUAL FINDING ABOUT WHAT ANODIZED MEANT TO ONE SKILLED IN THE ART IN 1973, WHICH ON THE APPELLATE RECORD PRESENTED BY THE PARTIES WAS NOT CLEARLY ERRONEOUS. THE SUPREME COURT NEVER CONTEMPLATED IN MARKMAN THAT WE FEIGN FIRST-HAND EXPERIENCE WITH THE TECHNOLOGY, OR THAT WE EMBELLISH OUR ABILITIES BY CONSTRUING A CLAIM WITHOUT THE RESPECT DUE BOTH A TRIAL COURTТS DECISION THAT A FACTUAL DISPUTE UNDERLIES THE MEANING OF A CLAIM TERM AND ITS RESOLUTION OF THAT DISPUTE. PROVIDED THAT NO FACTUAL FINDINGS ABOUT DISPUTED TERMS WERE NECESSARILY MADE IN THE COURSE OF CONSTRUING THE CLAIM, OUR MAKING A CLAIM CONSTRUCTION THAT SUPERSEDES THAT OF THE DISTRICT COURT IS NOT INCONSISTENT WITH THE COURTТS OPINION. SEE SERRANO V. TELULAR CORP., 111 F.3D 1578, 42 USPQ2D 1538 (FED. CIR. 1997) (CONSTRUCTION OF THE CLAIMS INVOLVED NO FACTUAL DISPUTED BETWEEN THE PARTIES); INTERNATIONAL COMMUNICATION MATERIALS, INC. V. RICOH CO., 108 F.3D 316, 318-19, 41 USPQ2D 1957, 1958-59 (FED. CIR. 1997); ALPEX, 102 F.3D 1214 (USING ALPEXТS EXPERT TESTIMONY AGAINST ALPEX, THERE WERE NO FACTUAL DISPUTE BETWEEN THE PARTIES); METAULLICS SYS. CO. V. COOPER, 100 F.3D 938, 939, 40 USPQ2D 1798, 1799 (FED. CIR. 1996); INSITUFORM TECHS., INC. V. CAT CONTRACTING, INC., 99 F.3D 1098, 40 USPQ2D 1602 (FED. CIR. 1996) (ATTORNEY ARGUMENT REGARDING CLAIM CONSTRUCTION PRESENTED NO FACTUAL DISPUTE ABOUT THE TECHNOLOGY); 1 S. CHILDRESS & M. DAVIS, FEDERAL STANDARDS OF REVIEW: CIVIL CASES AND GENERAL REVIEW PRINCIPLES, зз 2.13, 2.14 (2D ED. 1991). IF THIS COURT DOES NOT BELIEVE THE CLAIM CONSTRUCTION TO BE ERRONEOUS BASED ON AN INDEPENDENT REVIEW OF THE LEGAL CONCLUSIONS AND A REVIEW OF THE CONSTITUENT FACTUAL FINDINGS FOR SUBSTANTIAL EVIDENCE, IT MUST AFFIRM. SEE BOSE CORP. V. CONSUMERS UNION OF UNITED STATES, 466 U.S. 485, 514 N.31 (1984); SEE ALSO PULLMAN-STANDARD V. SWINT, 456 U.S. 273, 287-88 (1982). THIS COURT MAY NOT, HOWEVER, INDEPENDENTLY REVIEW THE CONSTITUENT FACTS OR DISREGARD THE JURYТS FINDINGS, ABSENT PROOF THAT THEY LACK SUFFICIENT EVIDENCE THAT УA REASONABLE MIND MIGHT ACCEPT AS ADEQUATE TO SUPPORTФ THEM. CONSOLIDATED EDISON CO. V. NLRB, 305 U.S. 197, 229 (1938); SEE GENENTECH, INC. V. WELLCOME FOUND. LTD., 29 F.3D 1555, 1565, 31 USPQ2D 1161, 1169 (FED. CIR. 1994). NOR MAY WE CONSTRUE A CLAIM IN A MANNER THAT IS INCONSISTENT WITH OUR FUNCTION AS A COURT OF REVIEW; WE CANNOT DIVINE NEW INTERPRETATIONS OF TERMS IN A CLAIM OR MAKE FINDINGS OF FACT FROM A RECORD THAT CANNOT SUPPORT THEM. SEE AVIA GROUP INTТL, INC. V. L.A. GEAR CALIFORNIA, INC., 853 F.2D 1557, 1561, 7 USPQ2D 1548, 1551 (FED. CIR. 1988). SOMETIMES IT MAY BE NECESSARY FOR AN APPELLATE COURT TO PRONOUNCE NEW LEGAL PRINCIPLES DURING AN APPEAL. HOWEVER, EVEN IF THIS COURT IDENTIFIES A QUESTION OF CLAIM CONSTRUCTION AS ONE OF LAWЧTHOUGH ITS RESOLUTION IS RELEVANT TO ONLY THE PARTICULAR LITIGATION OR DOCUMENTЧIT CANNOT ELEVATE THE ACTIVITY TO ONE OF DETERMINING LEGAL PRINCIPLES, AS IS FOR EXAMPLE, STATUTORY CONSTRUCTION. SEE MARKMAN, 116 S. CT. AT 1396 (У[I]SSUE PRECLUSION COULD NOT BE ASSERTED AGAINST NEW AND INDEPENDENT INFRINGEMENT DEFENDANTS EVEN WITHIN A GIVEN JURISDICTION . . . .Ф); IN RE FREEMAN, 30 F.3D 1459, 1466, 31 USPQ2D 1444, 1450 (FED. CIR. 1994); JACKSON JORDAN, INC. V. PLASSER AMERICAN CORP., 747 F.2D 1567, 1574-75, 224 USPQ 1, 5-6 (FED. CIR. 1984) (SECOND ALLEGED INFRINGER NOT BOUND BY PRIOR CLAIM CONSTRUCTION UNLESS IT HAD, INTER ALIA, A FULL AND FAIR OPPORTUNITY TO LITIGATE THE CONSTRUCTION IN THE FIRST INFRINGEMENT ACTION). THUS, REGARDLESS OF THE LABELS WE ATTACH TO THESE QUESTIONS, WITHOUT THE BENEFIT OF A FULL RECORD FROM THE TRIAL COURT, IT IS NEITHER THE FUNCTION OF THIS COURT NOR IS IT WITHIN OUR CAPACITY AS AN APPELLATE COURT TO ADOPT NEW INTERPRETATIONS, MOST ESPECIALLY NOT IF THE INTERPRETATION UNDER REVIEW IS OF TERMS INFORMED BY CONFLICTING EVIDENCE. SUCH INDISCRIMINATE AND CONCLUSIVE REVIEW DEPRIVES THE PARTIES OF IMPORTANT SUBSTANTIVE AND PROCEDURAL MECHANISMS PROVIDED IN THE TRIAL COURTS, WHERE INTERPRETATION CAN BE INFORMED BY ADDITIONAL DISCOVERY AND EXPERT TESTIMONY, AND WHERE IT CAN BE CHECKED BY APPELLATE REVIEW AS A MATTER OF RIGHT. IF CLAIM CONSTRUCTION IS ONLY A QUESTION OF LAW TO BE REVIEWED BY THIS COURT DE NOVO, THEN THE ABSENCE OF REVIEW AS A MATTER OF RIGHT OVER OUR CLAIM CONSTRUCTIONS, WHICH MAY BE NEW AND UNSUPPORTED BY LEGAL ANALYSIS, OR MAY NEVER HAVE BEEN TESTED BY THE ADVERSARIAL PROCESS, WOULD TRANSFORM THIS COURT INTO A TRIAL COURT OF FIRST AND USUALLY LAST RESORT. II. METHOD OF REVIEW TO DETERMINE WHETHER A PATENT HAS BEEN INFRINGED, A DISTRICT JUDGE MUST PARTAKE OF A TWO-STEP ANALYSIS: (1) CONSTRUCTION OF THE CLAIMS TO DETERMINE THEIR LEGAL EFFECT BY EXAMINING AND RESOLVING, INTER ALIA, FACTUAL DISPUTES OVER THE MEANING AND SCOPE OF TECHNICAL WORDS OR TERMS OF ART USED IN THE PATENT, SEE FROMSON, 132 F.3D AT 1442, 45 USPQ2D AT 1272; MARKMAN, 52 F.3D AT 999, 34 USPQ2D AT 1347 (NEWMAN, J., DISSENTING); AND (2) A COMPARISON OF THE PROPERLY CONSTRUED CLAIMS TO THE ACCUSED DEVICE, SEE CARROLL TOUCH, INC. V. ELECTRO MECHANICAL SYS., INC., 15 F.3D 1573, 1576, 27 USPQ2D 1836, 1839 (FED. CIR. 1993). THE FIRST STEP, CONSTRUCTION OF THE CLAIM, IS ULTIMATELY A QUESTION FOR THE JUDGE. SEE MARKMAN, 116 S. CT. AT 1395 (УSO IT TURNS OUT HERE, FOR JUDGES, NOT JURIES, ARE THE BETTER SUITED TO FIND THE ACQUIRED MEANING OF PATENT TERMS.Ф) IN CONSTRUING THE CLAIMS, A JUDGE LOOKS TO THE CLAIMS THEMSELVES, THE SPECIFICATION, THE PROSECUTION HISTORY OF THE PATENT, SEE MINNESOTA MINING AND MFG. CO., V. JOHNSON & JOHNSON ORTHOPAEDICS, INC., 976 F.2D 1559, 1566, 24 USPQ2D 1321, 1327 (FED. CIR. 1992), AND, IF NECESSARY, EXTRINSIC EVIDENCE FOR INFORMATION OR TO RESOLVE DISPUTES OVER THE MEANING OF TERMS, SEE TEXAS INSTRUMENTS, INC. V. UNITED STATES INTТL TRADE COMMТN, 988 F.2D 1165, 1171, 26 USPQ2D 1018, 1023 (FED. CIR. 1993). ALTHOUGH MARKMAN, 116 S. CT. 1384, REQUIRES THE JUDGE TO MAKE THE ULTIMATE DETERMINATION ABOUT THE MEANING AND LEGAL CONSEQUENCE OF A CLAIM, IT DOES NOT PROHIBIT HIM FROM SUBMITTING SUBSIDIARY FACTUAL DISPUTES TO A JURY, EVEN IF IT DOES NOT ENCOURAGE IT. THE JUDGE FOLLOWS THE SAME FIRST STEP TO CONSTRUE CLAIMS CONTAINING MEANS-PLUS-FUNCTION LIMITATIONS UNDER 35 U.S.C. з 112(6) (1994). SEE ALPEX, 102 F.3D AT 1220, 40 USPQ2D AT 1672; INTELLICALL, INC. V. PHONOMETRICS, INC., 952 F.2D 1384, 1388, 21 USPQ2D 1383, 1387 (FED. CIR. 1992). HOWEVER, TO COMPLETE THE CONSTRUCTION OF THESE MEANS-PLUS-FUNCTION TERMS, THE JUDGE MUST LOOK TO THE STRUCTURES, MATERIALS, OR ACTS DISCLOSED IN THE PATENTТS SPECIFICATIONS AND TO THEIR EQUIVALENTS. ID., 952 F.2D AT 1388, 21 USPQ2D AT 1387. TO DETERMINE THE SCOPE OF SUCH EQUIVALENTS, THE DISTRICT COURT MUST RESOLVE QUESTIONS OF FACT BY RESORTING TO THE EXPERTISE OF THE FACT FINDER. CF. MARKMAN, 52 F.3D AT 977 N.8, 34 USPQ2D AT 1337, N.8 (EXPRESSLY DECLINING TO REACH УTHE ISSUE OF WHETHER A DETERMINATION OF EQUIVALENTS UNDER з112, PARA. 6 IS A QUESTION OF LAW OR FACTФ); IN RE HAYES MICROCOMPUTER PRODS., INC., 982 F.2D 1527, 1541-43, 25 USPQ2D 1241, 1253 (FED. CIR. 1992) (УTHIS LIST [OF FACTORS THAT MAY BE CONSIDERED WHEN DETERMINING THE SCOPE OF A MEANS-PLUS-FUNCTION LIMITATION] IS NOT EXHAUSTIVE AND REASONABLE INFERENCES BY THE FACT FINDER ARE APPROPRIATE.Ф); KING INSTRUMENTS CORP. V. OTARI CORP., 767 F.2D 853, 862-63, 226 USPQ 402, 408-09 (FED. CIR. 1985); PALUMBO V. DON-JOY CO., 762 F.2D 969, 975-76, 226 USPQ 5, 8 (FED. CIR. 1985) (УWHETHER THAT ACCUSED DEVICE IS A з 112 EQUIVALENT . . . IS A QUESTION OF FACT.Ф); D.M.I., INC. V. DEERE & CO., 755 F.2D 1570, 1575, 225 USPQ 236, 239 (FED. CIR. 1985). FOR PRAGMATIC REASONS, THE RESOLUTION OF THIS FACTUAL DETERMINATION IS OFTEN MADE AT THE SAME TIME THE FACT FINDER DETERMINES INFRINGEMENT (STEP TWO, DESCRIBED BELOW). THE SECOND STEP OF THE INFRINGEMENT ANALYSIS REQUIRES A FACTUAL COMPARISON OF THE CLAIMED INVENTION TO THE ACCUSED DEVICE, WHICH IS DONE BY THE FACT FINDER. SEE WINANS V. DENMEAD, 56 U.S. (15 HOW.) 330, 338 (1853). TO PROVE LITERAL INFRINGEMENT, THE PATENTEE MUST SHOW THAT THE ACCUSED DEVICE CONTAINS EVERY LIMITATION IN THE ASSERTED CLAIMS. SEE DOLLY, INC. V. SPALDING & EVENFLO COS., 16 F.3D 394, 397, 29 USPQ2D 1767, 1769 (FED. CIR. 1994). IF TRIED TO A JURY, IT IS THE JURYТS FACTUAL FINDINGS ON INFRINGEMENT THAT ARE REVIEWED BY THIS COURT FOR LACK OF SUBSTANTIAL EVIDENCE, SEE GENENTECH, 29 F.3D AT 1565, 31 USPQ2D AT 1168-69, AS PART OF THIS COURTТS REAPPLICATION OF THE STANDARD FOR JUDGMENT AS A MATTER OF LAW. A CLAIM OF INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS MODIFIES THIS SECOND STEP BY REQUIRING THAT THE FACT FINDER DETERMINE WHETHER DIFFERENCES BETWEEN PARTICULAR ELEMENTS OF THE ACCUSED DEVICE AND THE ASSERTED CLAIMS ARE INSUBSTANTIAL. SEE WARNER-JENKINSON CO. V. HILTON DAVIS CHEM. CO., 117 S. CT. 1040, 1054 (MAR. 3, 1997). HOWEVER, BECAUSE THEY HAVE SEPARATE ORIGINS, PURPOSES, AND APPLICATIONS, DETERMINING EQUIVALENCE UNDER PARAGRAPH 112(6) REQUIRES AN ANALYSIS DIFFERENT FROM THAT USED TO DETERMINE EQUIVALENCE UNDER THE DOCTRINE OF EQUIVALENTS. SEE ALPEX, 102 F.3D AT 1222, 40 USPQ2D AT 1673 (УUNDER з 112, THE CONCERN IS WHETHER THE ACCUSED DEVICE, WHICH PERFORMS THE CLAIMED FUNCTION, HAS THE SAME OR AN EQUIVALENT STRUCTURE AS THE STRUCTURE DESCRIBED IN THE SPECIFICATION CORRESPONDING TO THE CLAIMТS MEANS. UNDER THE DOCTRINE OF EQUIVALENTS, ON THE OTHER HAND, THE QUESTION IS WHETHER THE ACCUSED DEVICE IS ONLY INSUBSTANTIALLY DIFFERENT THAN THE CLAIMED DEVICE.Ф) (INTERNAL CITATIONS OMITTED). AFTER THE JUDGE CONSTRUES THE MEANS-PLUS-FUNCTION LIMITATIONS IDENTIFYING STRUCTURES, MATERIALS, OR ACTS DESCRIBED IN THE PATENTТS SPECIFICATION, AND THEIR EQUIVALENTS AS DETERMINED BY THE FACT FINDER (STEP ONE, DESCRIBED ABOVE), THE JUDGE GIVES THE CONSTRUED CLAIMS TO THE FACT FINDER, IN THIS CASE A JURY, FOR A DETERMINATION OF INFRINGEMENT. SEE D.M.I., 755 F.2D AT 1575, 225 USPQ AT 239. FOR LITERAL INFRINGEMENT, THE FACT FINDER MUST DETERMINE WHETHER THE ACCUSED DEVICE PERFORMS AN IDENTICAL FUNCTION TO THE ONE RECITED IN THE MEANS-PLUS-FUNCTION CLAUSE. SEE PENNWALT CORP. V. DURAND-WHAYLAND, INC., 833 F.2D 931, 934, 4 USPQ2D 1737, 1739 (FED. CIR. 1987) (IF THE IDENTICAL FUNCTION IS NOT PERFORMED, LITERAL INFRINGEMENT IS NOT POSSIBLE). IF THE IDENTICAL FUNCTION IS PERFORMED, THE FACT FINDER MUST THEN DETERMINE WHETHER THE ACCUSED DEVICE UTILIZES THE SAME STRUCTURE OR MATERIALS AS DESCRIBED IN THE SPECIFICATION, OR THEIR EQUIVALENTS. JUST AS THE FACT FINDERТS INFRINGEMENT ANALYSIS DIFFERS BETWEEN EQUIVALENCE UNDER PARAGRAPH 112(6) AND THE DOCTRINE OF EQUIVALENTS, SO TOO DIFFERS THE ANALYTICAL EFFECT OF STATEMENTS MADE DURING THE PROSECUTION OF THE PATENT ON CONSTRUCTION OF THE CLAIMS. UNDER PARAGRAPH 112(6), A STATEMENT MADE DURING PROSECUTION MAY CONFINE THE RANGE OF EQUIVALENT STRUCTURES, MATERIALS, OR ACTS THAT ARE DIRECTLY CLAIMED BY THE PATENT. HOWEVER, IN THE CONTEXT OF A DOCTRINE OF EQUIVALENTS ANALYSIS, THE PATENTEE SEEKS PROTECTION BEYOND THAT CLAIMED BY THE PATENT DIRECTLY. AS SUCH, THE JUDGEТS CONSTRUCTION OF THE CLAIMSЧWHICH INCLUDES THE INTERPRETATION OF CLAIM TERMSЧMAY NOT BE SUFFICIENT TO REMOVE FROM THE JURYТS CONSIDERATION ALL SUBJECT MATTER THAT WAS DISCLAIMED DURING PROSECUTION. PROSECUTION HISTORY ESTOPPEL ADDRESSES THIS PROBLEM BY EXCLUDING EQUIVALENTS SURRENDERED DURING PROSECUTION. UNDER THIS DOCTRINE, STATEMENTS MADE TO OVERCOME REJECTIONS BASED, AS HERE, ON PRIOR ART ESTOP THE PATENTEE FROM EXTENDING ITS RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OR SELLING SUBJECT MATTER KNOWN TO BE INSUBSTANTIALLY DIFFERENT FROM, OR INTERCHANGEABLE WITH, CLAIMED ELEMENTS AT THE TIME OF THE ALLEGED INFRINGEMENT. WARNER-JENKINSON, 117 S. CT. AT 1053. ALTHOUGH BOTH FORMS OF EQUIVALENCE REQUIRE THE DISTRICT COURT TO EXAMINE THE PROSECUTION HISTORY AS PART OF ITS CONSTRUCTION OF THE CLAIMS, UNDER THE DOCTRINE OF EQUIVALENTS, THE JUDGE GIVES THE CLAIM, PROPERLY CONSTRUED TO EXCLUDE DISCLAIMED SUBJECT MATTER, TO THE JURY AND THEN, WHERE APPROPRIATE, ALSO INSTRUCTS THE JURY ON THE POSSIBLE RANGE OF EQUIVALENTS THAT IT MAY OR MAY NOT CONSIDER DUE TO PROSECUTION HISTORY ESTOPPEL. III. REVIEW AS DEPICTED IN FIGURE TWO OF THE PATENT, ANTE AT 3 [MAJ. OPN], THE Т837 PATENT DISCLOSES A DUAL-STAGE PUMP. IT CLAIMS A FIRST PUMPING MEANS THAT PUMPS FLUID THROUGH A FILTERING MEANS УTOФ A УSECOND PUMPING MEANS.Ф IT ALSO CLAIMS A УMEANS TO ENABLE SAID SECOND PUMPING MEANS TO COLLECT AND/OR DISPENSE THE FLUID, OR BOTH,Ф AT RATES OR DURING PERIODS THAT ARE INDEPENDENT OF THE OPERATION OF THE FIRST PUMPING MEANS. AS A RESULT OF THIS STRUCTURE, THE PUMP DESCRIBED IN THE Т837 PATENT IS ABLE TO ACCUMULATE FLUID FOR LATER DISPENSE, DISPENSE FLUID IMMEDIATELY, OR PARTIALLY ACCUMULATE AND PARTIALLY DISPENSE FLUID IN PRECISE MEASUREMENTS AND AT PRECISE TIMES. THE PREFERRED EMBODIMENT DESCRIBES A SECOND PUMPING MEANS WHERE THE SECOND PUMP COLLECTS AND DISPENSES THE FLUID FROM ITS OWN INTERNAL RESERVOIR. LIKE THE PUMP DISCLOSED IN THE Т837 PATENT, CYBOR CORPORATIONТS MODEL 5226 DUAL-STAGE PUMP ALSO ALLOWS USERS TO PUMP OR DISPENSE HIGHLY ACCURATE AMOUNTS OF LIQUID CHEMICALS IN INCREMENTS AS SMALL AS 0.1 MICROLITER. BOTH PUMPS ARE PRIMARILY USED FOR ACCURATELY DISPENSING CHEMICALSЧSUCH AS PHOTORESIST AND POLIMIDEЧONTO SEMICONDUCTOR WAFERS DURING THEIR FABRICATION. OF RELEVANCE TO THIS APPEAL, IN CONSTRUING THE Т837 PATENT THE DISTRICT JUDGE INTERPRETED THE DISPUTED TERM УTOФ AND SUBMITTED THE TERM TO THE JURY FOR A DETERMINATION OF INFRINGEMENT. THE JUDGE ALSO SUBMITTED THE TERMS УSECOND PUMPING MEANS,Ф УMEANS TO ENABLE SAID SECOND PUMPING MEANS,Ф AND УOR BOTHФ TO THE JURY AS MEANS-PLUS-FUNCTION TERMS, ALONG WITH STRUCTURES IN THE Т837 PATENTТS SPECIFICATION, FOR A DETERMINATION OF INFRINGEMENT. THE JUDGE LEFT THE TASK OF CONSIDERING PROSECUTION HISTORY ESTOPPEL TO THE JURY.2 THE JURY FOUND THAT CYBORТS MODEL 5226 PUMP LITERALLY INFRINGED CLAIMS 1-10, 13-15, AND 17-20, AND THAT IT INFRINGED CLAIMS 11, 12, AND 16 UNDER THE DOCTRINE OF EQUIVALENTS. IT IS UNCLEAR WHICH COMBINATION OF COMPONENTS IN CYBORТS MODEL 5226 PUMP THE JURY FOUND TO INFRINGE CLAIMS 1-10, 13-15, AND 17-20. IT MAY HAVE INTERPRETED УSECOND PUMPING MEANSФ IN SUCH A WAY THAT IT FOUND EITHER CYBORТS SECOND PUMP OR THE COMBINATION OF ITS SECOND PUMP AND ITS EXTERNAL RESERVOIR TO BE EQUIVALENT STRUCTURES TO THOSE PROVIDED IN THE SPECIFICATION OF THE Т837 PATENT CORRESPONDING TO THE УSECOND PUMPING MEANS.Ф LIKEWISE, THE JURY MAY HAVE INTERPRETED УMEANS TO ENABLE SAID SECOND PUMPING MEANSФ IN SUCH A WAY THAT IT FOUND EITHER CYBORТS EXTERNAL RESERVOIR OR THE COMBINATION OF ITS EXTERNAL RESERVOIR AND ITS SECOND PUMP TO BE EQUIVALENT STRUCTURES TO THOSE PROVIDED IN THE SPECIFICATION OF THE Т837 PATENT CORRESPONDING TO THE УMEANS TO ENABLE SAID SECOND PUMPING MEANS.Ф IN TOTAL, THERE ARE FIVE POSSIBLE COMBINATIONS OF CLAIM TERM INTERPRETATIONS AND FINDINGS OF PARAGRAPH 112(6) EQUIVALENTS THAT WOULD HAVE LED THE JURY TO ITS INFRINGEMENT VERDICT. CYBOR RENEWED ITS EARLIER MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO RULE 50(B) AND FOR A NEW TRIAL PURSUANT TO RULE 59 OF THE FEDERAL RULES OF CIVIL PROCEDURE, ON THE BASIS THAT NO REASONABLE JUROR COULD FIND THAT ITS PUMP INFRINGES THE Т837 PATENT. THE COURT DENIED THE MOTION, FINDING УTHAT THE JURYТS INFRINGEMENT VERDICT IS SUPPORTED BY THE EVIDENCE . . . THE JURY INSTRUCTIONS WERE PROPER AND THE VERDICT WAS NOT AGAINST THE CLEAR WEIGHT OF THE EVIDENCE OR CONTRARY TO THE INSTRUCTIONS.Ф CYBOR MOVED FOR RECONSIDERATION, ARGUING THAT THIS COURTТS THEN RECENTLY ISSUED MARKMAN, 52 F.3D 967, 34 USPQ2D 1321, REQUIRED THAT THE JUDGE, AND NOT THE JURY, INTERPRET ALL THE CLAIMS. THE DISTRICT COURT DENIED THE MOTION AND ENTERED FINAL JUDGMENT, FROM WHICH CYBOR APPEALED. ON APPEAL, CYBOR ARGUES THAT HAD THE DISTRICT COURT PROPERLY ANALYZED THE PROSECUTION HISTORY OF THE Т837 PATENT, IT WOULD HAVE EXCLUDED RESERVOIR STRUCTURES LIKE CYBORТS FROM CONSIDERATION AS AN EQUIVALENT UNDER PARAGRAPH 112(6). CYBOR FURTHER ARGUES THAT THE JUDGE WOULD HAVE INSTRUCTED THE JURY NOT TO CONSIDER ITS RESERVOIR WHEN DETERMINING WHETHER CYBORТS SECOND PUMP HAS THE SAME OR AN EQUIVALENT STRUCTURE AS THE STRUCTURE IN THE PORTIONS OF THE Т837 PATENTТS SPECIFICATION CORRESPONDING TO THE SECOND PUMPING MEANS. WITHOUT ITS RESERVOIR, CYBOR ARGUES THAT ITS SECOND PUMP CANNOT INFRINGE THE УSECOND PUMPING MEANSФ LIMITATION, THE УOR BOTHФ FUNCTIONAL LIMITATION, OR THE FILTER MEANS УTOФ SECOND PUMPING MEANS LIMITATION. CYBOR ALSO ARGUES THAT THE DISTRICT JUDGE ERRED IN FAILING TO IDENTIFY THE CORRESPONDING STRUCTURES IN THE SPECIFICATION, AND IN PERMITTING THE JUDGE TO CONSIDER THE EFFECT OF STATEMENTS MADE DURING PROSECUTION OF THE Т837 PATENT. FAS RESPONDS THAT THE DISTRICT COURT PROPERLY CONSIDERED AND REJECTED CYBORТS ARGUMENT ABOUT THE PROSECUTION HISTORY OF THE Т837 PATENT, THAT IT PROPERLY CONSTRUED THE NECESSARY CLAIMS, AND THAT IT PROPERLY SUBMITTED THEM ALONG WITH RELEVANT CORRESPONDING STRUCTURESЧAS DESCRIBED IN THE SPECIFICATIONЧTO THE JURY FOR A DETERMINATION OF INFRINGEMENT. FAS FURTHER ARGUES THAT THE DISTRICT COURT WAS NOT OBLIGED, EITHER BEFORE OR AFTER MARKMAN, TO SUBMIT COMPLETE CLAIM CONSTRUCTIONS TO THE JURY SO LONG AS THE JUDGEТS ULTIMATE CLAIM CONSTRUCTION IS SUPPORTED BY THE JURYТS FACTUAL FINDINGS, PRESUMED OR EXPRESSED, REGARDING DISPUTED CLAIM TERMS, AND SO LONG AS THE JUDGE LATER EVALUATES AND SUSTAINS THE JURYТS FACTUAL FINDINGS. CLAIM 1 OF THE Т837 PATENT CONTAINS THREE DISPUTED LIMITATIONS AND IS REPRESENTATIVE OF HOW THESE LIMITATIONS ARE USED, WHERE THEY APPEAR THROUGHOUT THE 20 ASSERTED CLAIMS: IN A DEVICE FOR FILTERING AND DISPENSING FLUID IN A PRECISELY CONTROLLED MANNER, THE COMBINATION OF: FIRST PUMPING MEANS; SECOND PUMPING MEANS IN FLUID COMMUNICATION WITH SAID FIRST PUMPING MEANS; AND FILTERING MEANS BETWEEN SAID FIRST AND SECOND PUMPING MEANS, WHEREBY SAID FIRST PUMPING MEANS PUMPS THE FLUID THROUGH SAID FILTERING MEANS TO SAID SECOND PUMPING MEANS; IN WHICH EACH OF SAID FIRST AND SECOND PUMPING MEANS INCLUDES SURFACES THAT CONTACT THE FLUID, SAID SURFACES BEING OF MATERIALS THAT ARE NON-CONTAMINATING TO INDUSTRIAL FLUIDS WHICH ARE VISCOUS AND/OR HIGH PURITY AND/OR SENSITIVE TO MOLECULAR SHEAR; AND COMPRISING MEANS TO ENABLE SAID SECOND PUMPING MEANS TO COLLECT AND/OR DISPENSE THE FLUID, OR BOTH, AT RATE OR DURING PERIODS OF OPERATION, OR BOTH WHICH ARE INDEPENDENT OF RATES OR PERIODS OF OPERATION, OR BOTH, RESPECTIVELY, OF SAID FIRST PUMPING MEANS. Т837 PATENT, COL. 9, LINES 45-61 (EMPHASIS AND FORMATTING ADDED). THE SPECIFICATION OF THE Т837 PATENT FURTHER DESCRIBES THE УSECOND PUMPING MEANSФ AS HAVING TUBING THAT CONNECTS THE PUMP TO THE SECOND INCREMENTAL PUMP ADVANCEMENT MEANS, COL. 5, LINES 49-52, A DIAPHRAGM INSIDE THE SECOND PUMP, COL. 6, LINES 2-3, AND A SEPARATE INLET PASSAGE AND OUTLET PASSAGE, COL. 7, LINES 10-20. DURING PROSECUTION, THE INVENTORS FURTHER LIMITED THE SCOPE BY MAKING THE FOLLOWING STATEMENTS TO OVERCOME A PRIOR ART REJECTION THAT THE CLAIMED INVENTION WAS UNPATENTABLE OVER STORKEBAUM ET AL., U.S. PATENT NO. 4,749,476. ADDITIONALLY, STORKEBAUM SPECIFICALLY PROVIDES A SEPARATE CONTAINER 12 FOR COLLECTING THE PERMEATE. OBVIOUSLY, STORKEBAUM DOES NOT TEACH THE COLLECTION OF FLUID IN A SECOND PUMPING MEANS. . . . STORKEBAUM DISCLOSES A PERMEATE COLLECTING CONTAINER 12 THAT IS SEPARATE FROM THE CONVEYING PUMP 13. NOTHING IN STORKEBAUM DISCLOSES OR MAKES OBVIOUS THE CLAIMED INVENTION, NOR THE PRECISE AND FLEXIBLE CONTROL PROVIDED BY THE SECOND PUMP MEANS OF CLAIM 1. GIVEN THE NATURE AND FUNCTION OF THE STORKEBAUM CONTAINER, THESE STATEMENTS WERE MADE TO DISTINGUISH THE INVENTION OVER THE PRIOR ART. THEY CONFINE THE POSSIBLE INTERPRETATION OF TERMS IN THE CLAIMS UNDER PARAGRAPH 112(6) AND THEY MAY PREVENT FASТS DESIRED USE OF THE DOCTRINE OF EQUIVALENTS. SEE WARNER-JENKINSON, 117 S. CT. AT 1051 N.7. HOWEVER, IN THIS CASE THE LIMITATION OF POSSIBLE EQUIVALENTS EXTENDS ONLY SO FAR AS WAS NECESSARY TO DISTINGUISH ASPECTS OF THE INVENTIONТS УSECOND PUMPING MEANSФ FROM STORKEBAUMТS EXTERNAL CONTAINER. THE STATEMENTS DO NOT REQUIRE THAT THE DISTRICT JUDGE PROVIDE THE JURY WITH MORE SPECIFIC INTERPRETATIONS OF CLAIM TERMS BECAUSE THE INVENTORS DISCLAIMED THE USE OF A SEPARATE, PHYSICALLY UNATTACHED RESERVOIR THAT CANNOT ACHIEVE DIFFERENTIAL PUMPING RATES BETWEEN THE TWO PUMPS BY ACCUMULATING FLUID IN A RESERVOIRЧTHE FUNCTION PERFORMED BY THE Т837 PATENTТS УMEANS TO ENABLE SAID SECOND PUMPING MEANS.Ф STORKEBAUMТS SEPARATE CONTAINER COLLECTS PERMEATE AND VENTS THE FLUID; IT IS DESIGNED TO FEED A CONVEYING PUMP THAT IS PART OF A BIG CIRCULATION LOOP, NOT A FLUID DISPENSING DEVICE. BECAUSE THE INVENTORS NEVER DISCLAIMED AN EXTERNAL RESERVOIR THAT ACCUMULATES FLUID TO PERMIT DIFFERENT PUMPING RATES AND BECAUSE EQUIVALENCE UNDER PARAGRAPH 112(6) IS A QUESTION OF FACT, THE DISTRICT COURT PROPERLY PERMITTED THE JURY TO CONSIDER THE STRUCTURE OF CYBORТS EXTERNAL RESERVOIR AS A POSSIBLE EQUIVALENT, UNDER PARAGRAPH 112(6), TO STRUCTURES IN THE Т837 PATENTТS SPECIFICATION THAT DEFINE THE УSECOND PUMPING MEANSФ AND THE УMEANS TO ENABLE THE SECOND PUMPING MEANS.Ф IT WAS ALSO PROPER FOR THE DISTRICT COURT TO PERMIT THE JURY TO CONSIDER CYBORТS RESERVOIR IN MEASURING THE SUBSTANTIALITY OF DIFFERENCES BETWEEN ITS DEVICE AND THE INVENTION CLAIMED BY THE Т837 PATENT, UNDER THE DOCTRINE OF EQUIVALENTS. A. УSECOND PUMPING MEANSФ УMEANS TO ENABLE SAID SECOND PUMPING MEANSФ AS TO THESE TWO DISPUTED LIMITATIONS, EACH OF THE INDEPENDENT CLAIMS, EXCEPT FOR CLAIM 16, USES THE TERM УSECOND PUMPING MEANS,Ф WHICH THE COURT INTERPRETED IN MEANS-PLUS-FUNCTION LANGUAGE AS: УA STRUCTURE IDENTICAL TO THE STRUCTURE DISCLOSED IN THE SPECIFICATION OF THE PATENT OR THE EQUIVALENT OF THAT STRUCTURE WHICH PERFORMS THE FUNCTION OF A FLUID ACCUMULATOR/DISPENSE PUMP.Ф THE DISTRICT COURT ALSO INTERPRETED THE TERM УMEANS TO ENABLE SAID SECOND PUMPING MEANS,Ф WHICH APPEARS IN EACH OF THE INDEPENDENT CLAIMS EXCEPT CLAIMS 10, 16, AND 17, IN MEANS-PLUS-FUNCTION LANGUAGE, AS: УA STRUCTURE IDENTICAL TO THE STRUCTURE DISCLOSED IN THE SPECIFICATION OF THE PATENT, OR THE EQUIVALENT THEREOF, WHICH ALLOWS THE SECOND PUMPING MEANS TO [ACCUMULATE, DISPENSE, AND PARTIALLY COLLECT AND DISPENSE FLUID AT RATES AND DURING PERIODS INDEPENDENT OF THE FIRST PUMPING MEANS].Ф CYBOR ARGUES THAT THESE MEANS-PLUS-FUNCTION ELEMENTS SHOULD BE LIMITED TO THE EXACT STRUCTURES DISCLOSED IN THE CLAIMS AND THE SPECIFICATION OF THE Т837 PATENT. HOWEVER, PARAGRAPH 112(6) PERMITS THE DISCLOSURE OF SPECIFIC STRUCTURES IN THE SPECIFICATION, WITHOUT LIMITING PROTECTION TO THE DISCLOSED STRUCTURES. SEE 35 U.S.C. 112(6) (У[S]UCH CLAIMS SHALL BE CONSTRUED TO COVER THE CORRESPONDING STRUCTURE, MATERIALS, OR ACTS DESCRIBED IN THE SPECIFICATION AND EQUIVALENTS THERETO.Ф); D.M.I., 755 F.2D AT 1574, 225 USPQ AT 238. CYBOR IS CORRECT THAT THE RESERVOIR AND THE SECOND PUMP IN ITS DUAL-STAGE PUMP ARE NOT IDENTICAL TO THE STRUCTURE DISCLOSED IN THE SPECIFICATION OF THE Т837 PATENT; THEY CONTAIN A VALVE UNLIKE THE DISCLOSED STRUCTURE, AND IF UNCOUPLED FROM THE ATTACHED RESERVOIR, THE PUMP DOES NOT PERMIT THE PARTIAL ACCUMULATION AND PARTIAL DISPENSING OF FLUID AS CONTEMPLATED BY THE TERM УFLOW THROUGHФ IN THE Т837 PATENT. HOWEVER, AS EXPLAINED ABOVE, THE PROSECUTION HISTORY DOES NOT REQUIRE THE DISTRICT COURT TO UNCOUPLE THE VALVE OR SEPARATE THE RESERVOIR FROM THE SECOND PUMP BEFORE SUBMITTING THE TERMS УSECOND PUMPING MEANSФ AND УMEANS TO ENABLE SAID SECOND PUMPING MEANSФ TO THE JURY. THE Т837 PATENTТS PREFERRED EMBODIMENT SHOWS THE RESERVOIR INSIDE THE SECOND PUMP, BUT NOTHING REQUIRES SUCH A RESTRICTION, AND LIMITATIONS IN THE SPECIFICATION SHOULD NOT BE READ INTO THE CLAIMS. SEE CONSTANT V. ADVANCED MICRO-DEVICES, INC., 848 F.2D 1560, 1570-71, 7 USPQ2D 1057, 1064 (FED. CIR. 1988). FINALLY, SUCH A RESTRICTION WOULD GO AGAINST THE CLEAR WEIGHT OF TESTIMONY SUBMITTED BY FASТS EXPERT WITNESSES, CLARK, WHO WAS QUALIFIED AS ONE SKILLED IN THE ART OF FLUID DYNAMICS, AND SNODGRASS AND GIBSON. УAS IN ALL CASES INVOLVING ASSERTIONS OF EQUIVALENCY, WHEREIN THE PATENTEE SEEKS TO APPLY ITS CLAIMS TO STRUCTURES NOT DISCLOSED BY THE PATENTEE, THE COURT IS REQUIRED TO EXERCISE JUDGMENT.Ф TEXAS INSTRUMENTS, INC. V. UNITED STATES INTТL. TRADE COMMТN, 846 F.2D 1369, 1371, 6 USPQ2D 1886, 1889 (FED. CIR. 1988). HERE, THE DISTRICT COURT EXERCISED ITS JUDGMENT, MADE A PARTIAL, THOUGH LEGALLY SUFFICIENT INTERPRETATION OF THESE LIMITATIONS, AND PRESENTED THEM TO THE JURY FOR RESOLUTION OF FACTUAL DISPUTES ON THE WAY TO DETERMINING EQUIVALENTS UNDER PARAGRAPH 112(6). BASED ON THESE INTERPRETATIONS AND THE JURYТS VERDICT, WE PRESUME3 THAT THE JURY FOUND THAT THE COMBINATION OF ONE OF CYBORТS MODEL 5016 PUMPS WITH THE EXTERNAL RESERVOIR IT USES IN ITS MODEL 5226 PUMP CREATED A STRUCTURAL EQUIVALENT TO THE УSECOND PUMPIING MEANSФ OR THE УMEANS TO ENABLE SAID SECOND PUMPING MEANSФ CLAIMED IN THE Т837 PATENT AND DESCRIBED BY THE SPECIFICATION UNDER PARAGRAPH 112(6). BECAUSE WE HAVE NOT BEEN SHOWN THAT THE JURY LACKED SUBSTANTIAL EVIDENCE TO SUPPORT THIS FINDING OF EQUIVALENTS OR INFRINGEMENT, WE MUST AFFIRM. HOWEVER, IF THE COURT IS CORRECT THAT CLAIM CONSTRUCTION IS PURELY AND SOLELY A QUESTION OF LAW TO BE REVIEWED DE NOVO ON APPEAL, IT COULD NOT AFFIRM THE JUDGMENT OF INFRINGEMENT. INFRINGEMENT WAS DETERMINED IN THIS CASE BY A JURY AT THE SAME TIME THAT IT WAS ASKED TO CONSTRUE THESE CLAIMS BY RESOLVING FACTUAL DISPUTES ABOUT THEIR MEANING AND TO DETERMINE WHETHER THE SCOPE OF THESE CLAIMS SHOULD BE LIMITED BY ARGUMENTS MADE DURING PROSECUTION OF THE PATENT. ORDINARILY, A JURYТS VERDICT OF INFRINGEMENT PERMITS US TO PRESUME THE EXISTENCE OF FACTUAL FINDINGS NECESSARY TO THAT VERDICT. BUT WE ARE IN NO WAY ENTITLED TO PRESUME FACTUAL FINDINGS OR EVEN TO RELY ON THE VERDICT OF INFRINGEMENT WHERE NEITHER THE JURY, NOR THE JUDGE ON A MOTION FOR JUDGMENT AS A MATTER OF LAW, ARTICULATED A CONSTRUCTION OF THE CLAIMS UPON WHICH THE FINDINGS ARE PREMISED. AS EXPLAINED ABOVE, THERE ARE FIVE POSSIBLE COMBINATIONS OF CLAIM TERM INTERPRETATIONS AND FINDINGS OF PARAGRAPH 112(6) EQUIVALENTS THAT COULD HAVE LED THE JURY TO ITS INFRINGEMENT VERDICT. IN LIGHT OF THE POSSIBILITIES, IT IS DIFFICULT TO IMAGINE HOW THE COURT CAN AFFIRM THE JURYТS FINDING OF INFRINGEMENT BASED UPON ITS OWN DE NOVO CLAIM CONSTRUCTION, WHICH MERELY PRESUMES A CLAIM CONSTRUCTION BY THE DISTRICT COURT AND THAT ADMITS OF NO DEFERENCE TO THE FINDINGS OF FACT. THE EFFECT OF ALLOWING SUCH A COMBINATION OF PRESUMPTIONS IN THIS CASE HAS BEEN TO DENY CYBOR MEANINGFUL REVIEW OF ANYTHING MORE THAN THE DISTRICT JUDGEТS DECISION NOT TO APPLY PROSECUTION HISTORY ESTOPPEL, SINCE IT WAS THE ONLY LEGAL DETERMINATION THAT CAN BE LOCATED OUTSIDE OF THOSE PRESUMPTIONS. NOT SURPRISINGLY, THIS IS THE DECISION CYBOR CONTESTS MOST STRENUOUSLY ON APPEAL. THE EFFECT HAS ALSO BEEN TO ALLOW THIS COURT TO PRESUME THAT IT MADE THE SAME CLAIM CONSTRUCTION AS THE JURY, WITHOUT SO MUCH AS ARTICULATING ITS OWN CONSTRUCTION OF THESE TWO CLAIM TERMS, AND THEN TO PRESUME THAT THE JURYТS INFRINGEMENT FINDING IS STILL VALID. PENULTIMATELY, CYBOR IS LEFT WITH LITTLE MORE THAN THE ABILITY TO MAKE PRESUMPTIONS AS TO OUR OWN CLAIM INTERPRETATIONS IN ANY MOTION IT MAY FILE FOR RECONSIDERATION. WORSE STILL IS THE MESSAGE THE COURT IS SENDING TO DISTRICT COURTS: WE WILL AFFIRM A FINDING OF INFRINGEMENT AS LONG AS THE DISTRICT COURT AVOIDS ARTICULATING ITS CONSTRUCTION OF THE CLAIMSЧWHICH COINCIDENTALLY LEAVES US FREE TO ARRIVE AT OUR OWN CONSTRUCTIONSЧAND AS LONG AS WE CAN PRESUME THAT THE JURY USED OUR CONSTRUCTIONS TO ARRIVE AT THAT FINDING OF INFRINGEMENT. B. УTOФ THE SECOND OF THESE THREE DISPUTED CLAIM LIMITATIONS, УPUMPS FLUID THROUGH SAID FILTERING MEANS TO SAID SECOND PUMPING MEANS,Ф IS THE ONLY ONE THAT THE DISTRICT COURT DID NOT ANALYZE AS PART OF A MEANS- PLUS-FUNCTION LIMITATION. CYBOR ARGUED THAT THE FLUID HAS TO BE PUMPED DIRECTLY TO THE SECOND PUMP. FAS MAINTAINS THAT IT IS ENOUGH THAT THE FLUID MERELY REACHES THE SECOND PUMP. THE DISTRICT COURT INTERPRETED THE TERM УTOФ AS PUMPING УTOWARDS AND WITH A DESTINATION OFФ THE SECOND PUMP AND LEFT THE DETERMINATION OF INFRINGEMENT TO THE JURY. ABSENT ITS PROSECUTION HISTORY ESTOPPEL ARGUMENT, THERE REMAINS LITTLE TO CYBORТS INTERPRETATION OF THIS CLAIM LIMITATION. FAS PRESENTED SUFFICIENT EXPERT TESTIMONY FROM GIBSON AND CLARK THAT THE FLUID MUST MERELY BE PUMPED УULTIMATELYФ TO THE УSECOND PUMPING MEANS.Ф THIS EVIDENCE IS CONSISTENT WITH THE EXPERT TESTIMONY OF SNODGRASS AND GIBSON THAT THE УTOФ LIMITATION REQUIRES ONLY A DESIGNED OR DEDICATED PATHWAY BETWEEN THE TWO PUMPING MEANS, WHICH CYBORТS DEVICE POSSESSES. BECAUSE ALL EXPERTS WERE CONSISTENT IN THEIR TESTIMONY ABOUT THE MEANING OF TERMS TO ONE SKILLED IN THE ART, THERE WAS NO OCCASION HERE FOR THE COURT TO RESOLVE A FACTUAL DISPUTE OVER THE MEANING OF A TERM EN ROUTE TO THEIR INTERPRETATION. MOREOVER, BECAUSE THE INTERPRETATION OF THIS CLAIM LIMITATION DESCRIBES CYBORТS MODEL 5226 DUAL-STAGE PUMP, REGARDLESS OF WHETHER OR NOT THE RESERVOIR IS PART OF THE SECOND PUMPING MEANS, NO REASONABLE JUROR COULD USE THIS AS A BASIS FOR FINDING NONINFRINGEMENT, AND I AGREE WE CAN AFFIRM THIS ASPECT OF THE DISTRICT COURTТS JUDGMENT. C. УOR BOTHФ THE THIRD DISPUTED LIMITATION, УOR BOTHФ IS CONTAINED WITHIN MEANS-PLUS-FUNCTION LANGUAGE, IT DESCRIBES A FUNCTION OF THE УMEANS TO ENABLE SECOND PUMPING MEANS,Ф AND IT MUST BE A FUNCTION OF CYBORТS DEVICE IF THE FACT FINDER IS TO CONSIDER EQUIVALENCE UNDER PARAGRAPH 112(6). CYBOR ARGUES SOLELY THAT THE INVENTOR OF THE Т837 PATENT DISCLAIMED EXTERNAL RESERVOIRS SUCH AS ITS OWN, BY DISTINGUISHING STORKEBAUM. THUS THE JURY SHOULD NOT CONSIDER ITS EXTERNAL RESERVOIR WHEN IT DETERMINES WHETHER THE MODEL 5226 DUAL-STAGE PUMP CONTAINS STRUCTURAL EQUIVALENTS TO EACH OF THE RELEVANT LIMITATIONS DISCLOSED IN THE С837 PATENT. GIVEN THE PROSECUTION HISTORY ANALYSIS AND THE JURYТS PRESUMED FINDING THAT CYBORТS RESERVOIR AND SECOND PUMP CONTAIN EQUIVALENTS OF ALL THE LIMITATIONS TO THE УMEANS TO ENABLE SAID SECOND PUMPING MEANS,Ф CYBORТS ARGUMENT CANNOT STAND. THE JURY HAD SUBSTANTIAL EVIDENCE UPON WHICH TO FIND THAT CYBORТS RESERVOIR AND SECOND PUMP TOGETHER CAN COLLECT, DISPENSE, AND BOTH COLLECT AND DISPENSE FLUID, SO ITS FINDING OF INFRINGEMENT IS ALSO SUFFICIENT. IV. JUDGMENT AS A MATTER OF LAW FINALLY, CYBOR ARGUES THAT MARKMAN, 52 F.3D 967, 34 USPQ2D 1321, REQUIRES THAT THE JUDGE DETERMINE THE MEANING OF THE CLAIM BEFORE SUBMITTING IT TO THE JURY. HOWEVER, THAT OPINION SAID THAT THE JUDGE MUST DETERMINE THE MEANING OF A CLAIM, BUT THAT THE MEANING NEED NOT BE ESTABLISHED BEFORE THE CLAIMS ARE SUBMITTED TO THE JURY. MARKMAN, 52 F.3D AT 981, 34 USPQ2D AT 1331 (PRONOUNCING THE MEANING OF A CLAIM УORDINARILY CAN BE ACCOMPLISHED BY THE COURT IN FRAMING ITS CHARGE TO THE JURY, BUT MAY ALSO BE DONE IN THE CONTEXT OF DISPOSITIVE MOTIONS SUCH AS THOSE SEEKING JUDGMENT AS A MATTER OF LAW.Ф) THE RISK OF WAITING, OF COURSE, IS THAT THE JURYТS DELIBERATIVE EFFORTS ON INFRINGEMENT MAY BE RENDERED USELESS IF THE INSTRUCTION WAS IMPROPER AND THE AFFECTED FACTUAL DISPUTE WAS MATERIAL TO THE VERDICT. HERE, THIS HAPPENS ONLY UNDER THE COURTТS STANDARD OF REVIEW. MOREOVER, GIVEN THE NATURE AND INTERRELATEDNESS OF THESE DISPUTED LIMITATIONS AND THE UNDERLYING FACTUAL QUESTIONSЧWHETHER THE COMBINATION OF CYBORТS SECOND PUMP AND ITS RESERVOIR IS A PARAGRAPH 112(6) EQUIVALENT TO THE УSECOND PUMPING MEANSФ OR THE УMEANS TO ENABLE SAID SECOND PUMPING MEANSФЧIT IS DIFFICULT TO SEE HOW THE DISTRICT COURT COULD HAVE BETTER INSTRUCTED THE JURY, ABSENT THE USE OF DETAILED AND ALTERNATIVE SPECIAL VERDICTS. THEREFORE, I SEE NO REVERSIBLE ERROR IN THE DISTRICT COURTТS LIMITED CLAIM INTERPRETATIONS OR ITS DENIAL OF CYBORТS MOTION FOR JUDGMENT AS A MATTER OF LAW. UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 96-1286,-1287 CYBOR CORPORATION, PLAINTIFF-APPELLANT, V. FAS TECHNOLOGIES, INC., AND FASTAR LTD., DEFENDANTS/CROSS-APPELLANTS. RADER, CIRCUIT JUDGE, DISSENTING FROM THE PRONOUNCEMENTS ON CLAIM INTERPRETATION IN THE EN BANC OPINION, CONCURRING IN THE JUDGMENT, AND JOINING PART IV OF THE EN BANC OPINION. THE EN BANC COURT CHOOSES THIS CASE, RESOLVABLE UNDER THE PROSECUTION HISTORY ESTOPPEL DOCTRINE, TO STATE THAT IT ACCORDS NO DEFERENCE TO THE DISTRICT COURTТS CENTRAL ROLE IN PATENT LITIGATION, NAMELY CLAIM INTERPRETATION. YET, BASED ON THIS COURTТS UNANIMOUS CONCURRENCE IN THE JUDGMENT, THE STANDARD OF REVIEW DOES NOT AFFECT THE OUTCOME IN THIS CASE. ACCORDINGLY, THIS CASE OBSCURES WHAT REALLY IS AT STAKE WHEN CLAIM CONSTRUCTION IS SUBJECT TO DE NOVO REVIEW AND APPELLATE REVISION. IN MARKMAN I, THIS COURT EN BANC DECLARED THAT CLAIM INTERPRETATION RESIDES SOLELY WITH THE JUDGE. THE SUPREME COURT AGREED. SEE MARKMAN V. WESTVIEW INSTRUMENTS, INC., 116 S. CT. 1384, 1387 (1996) (MARKMAN II). BY REMOVING LAY JURIES FROM COMPLEX TECHNOLOGICAL DECISIONS, THESE DECISIONS PROMISED TO IMPROVE THE PREDICTABILITY AND UNIFORMITY OF PATENT LAW. SEE MARKMAN II, 116 S. CT. AT 1396. TO EVADE THE STRICTURES OF THE SEVENTH AMENDMENT, MARKMAN I NECESSARILY REASONED THAT CLAIM CONSTRUCTION IS PURELY A MATTER OF LAW. AS A PURE QUESTION OF LAW, CLAIM CONSTRUCTION BECAME SUBJECT TO PLENARY APPELLATE REVIEW. BECAUSE JURY INVOLVEMENT REMAINED THE FOCUS OF MARKMAN I, THE SUPREME COURT DID NOT ADDRESS APPELLATE REVIEW OF CLAIM CONSTRUCTION. INSTEAD THE SUPREME COURT REPEATEDLY INTIMATED THAT CLAIM CONSTRUCTION WAS NOT A PURELY LEGAL MATTER. SEE, E.G., MARKMAN II, 116 S. CT. AT 1390 (CALLING THE CONSTRUCTION OF A TERM OF ART FOLLOWING RECEIPT OF EVIDENCE A УMONGREL PRACTICEФ); ID. AT 1395 (SUGGESTING THAT CLAIM INTERPRETATION УСFALLS SOMEWHERE BETWEEN A PRISTINE LEGAL STANDARD AND A SINGLE HISTORICAL FACTТФ (QUOTING MILLER V. FENTON, 474 U.S. 104, 114 (1985))); ID. AT 1396 (УNOTWITHSTANDING [CLAIM CONSTRUCTIONТS] EVIDENTIARY UNDERPINNINGSФ). NONETHELESS, IN THE TIME SINCE MARKMAN II, THIS COURT HAS REPEATEDLY EXTOLLED ITS OWN AUTHORITY TO УREVIEW THE ISSUE OF CLAIM INTERPRETATION INDEPENDENTLY WITHOUT DEFERENCE TO THE TRIAL JUDGE.Ф EXXON CHEM. PATENTS, INC. V. LUBRIZOL CORP., 64 F.3D 1553, 1556, 35 USPQ2D 1801, 1803 (FED. CIR. 1995) (LUBRIZOL) (EMPHASIS ADDED); SEE ALSO HOECHST CELANESE CORP. V. BP CHEM. LTD., 78 F.3D 1575, 1578, 38 USPQ2D 1126, 1128 (FED. CIR.), CERT. DENIED, 117 S. CT. 275 (1996). INDEED, AT ONE POINT, THIS COURT NOTED THAT ITS LAW REQUIRES УINDEPENDENT DETERMINATION OF THE CONSTRUCTION OF THE CLAIMS, AS A MATTER OF LAW, UNENCUMBERED BY THE TRIAL PROCESS.Ф FESTO CORP. V. SHOKETSU KINZOKU KOGYO KABUSHIKI CO., 72 F.3D 857, 863, 37 USPQ2D 1161, 1165 (FED. CIR. 1995), VACATED AND REMANDED ON OTHER GROUNDS, 117 S. CT. 1240 (1997). UNENCUMBERED BY THE TRIAL PROCESS? FAR FROM AN ENCUMBRANCE, THE SUPREME COURT SUGGESTS THAT THE TRIAL SHOULD BE THE УMAIN EVENT.Ф WAINWRIGHT V. SYKES, 433 U.S. 72, 90 (1977). BECAUSE JURY ISSUES DOMINATED MARKMAN I, THIS COURT HAS YET EVEN TO RECEIVE BRIEFING AND ORAL ARGUMENT ON THE PROPER STANDARD OF REVIEW FOR A TRIAL COURTТS CLAIM CONSTRUCTION. NONETHELESS THIS COURT RELIES ON ITS EARLIER EN BANC DECISION, MARKMAN I, 52 F.3D AT 979, TO MAKE CLAIM CONSTRUCTION PURELY A QUESTION OF LAW, SUBJECT TO INDEPENDENT APPELLATE REVIEW WITHOUT DEFERENCE TO OR ENCUMBRANCE BY THE TRIAL PROCESS. TO MY EYES, THIS REJECTION OF THE TRIAL PROCESS AS THE УMAIN EVENTФ WILL UNDERMINE, IF NOT DESTROY, THE VALUES OF CERTAINTY AND PREDICTABILITY SOUGHT BY MARKMAN I. I. THE QUESTION OF THE PROPER STANDARD OF REVIEW SEEMS AN ESOTERIC LEGAL TOPIC OF INTEREST ONLY TO LAW PROFESSORS AND APPELLATE JUDGES. IN MOST CASES, HOWEVER, THE REVIEW STANDARD INFLUENCES GREATLY BOTH THE TRIAL JUDGES WHO PRESIDE OVER THE TRIAL PROCESS AND PATENT PRACTITIONERS WHO MUST ADVISE CLIENTS TO ACCOMMODATE THEIR BUSINESS PLANS TO AN UNCERTAIN LEGAL REGIME. FROM THE VANTAGE POINT OF TRIAL JUDGES, MARKMAN I DICTATES MANY DEVIATIONS FROM THE NORMAL PROCEDURAL COURSE FOR LITIGATION. PERHAPS THE CENTRAL DEVIATION, HOWEVER, AFFECTS THE TRIAL COURTТS DISCRETION TO USE EXPERT TESTIMONY. WHEN CONFRONTED WITH SOPHISTICATED TECHNOLOGY, DISTRICT COURT JUDGES OFTEN SEEK TESTIMONY FROM EXPERTS TO HELP THEM UNDERSTAND AND INTERPRET THE CLAIM. UNDER THE GUISE OF SETTING STANDARDS FOR CLAIM CONSTRUCTION, THIS COURT INSTRUCTS EXPERIENCED TRIAL JUDGES THAT THEY MAY USE EXPERTS TO UNDERSTAND, BUT NOT TO INTERPRET, THE CLAIM TERMS. AS A MATTER OF LOGIC, THIS INSTRUCTION IS DIFFICULT TO GRASP. WHAT IS THE DISTINCTION BETWEEN A TRIAL JUDGEТS UNDERSTANDING OF THE CLAIMS AND A TRIAL JUDGEТS INTERPRETATION OF THE CLAIMS TO THE JURY? DONТT JUDGES INSTRUCT THE JURY IN ACCORDANCE WITH THEIR UNDERSTANDING OF THE CLAIMS? IN PRACTICE, HOW DOES THIS COURTТS LOFTY APPELLATE LOGIC WORK? AS THIS COURT ACKNOWLEDGES, A TRIAL COURT MUST OFTEN RESORT TO EXPERTS TO LEARN COMPLEX NEW TECHNOLOGIES. SEE, E.G., MARKMAN I, 52 F.3D AT 986. WHAT HAPPENS WHEN THAT LEARNING INFLUENCES A TRIAL JUDGEТS INTERPRETATION OF THE CLAIM TERMS? ARE TRIAL JUDGES SUPPOSED TO DISGUISE THE REAL REASONS FOR THEIR INTERPRETATION? HOW WILL THIS PERVERSE INCENTIVE TO УHIDE THE BALLФ IMPROVE APPELLATE REVIEW? AS A MATTER OF LEGAL ANALYSIS, THE EN BANC COURTТS DIRECTION TO TRIAL JUDGES IS EQUALLY HARD TO JUSTIFY. THE OBJECTIVE OF CLAIM INTERPRETATION IS TO DISCERN THE MEANING OF THE CLAIM TERMS TO ONE OF ORDINARY SKILL IN THE ART AT THE TIME OF INVENTION. SEE MULTIFORM DESICCANTS, INC. V. MEDZAM, LTD., 133 F.3D 1473, 1477, 45 USPQ2D 1429, 1432 (FED. CIR. 1998) (УIT IS THE PERSON OF ORDINARY SKILL IN THE FIELD OF THE INVENTION THROUGH WHOSE EYES THE CLAIMS ARE CONSTRUED.Ф). WHAT THEN DEFEATS THE RELEVANCE OF THE TESTIMONY OF ONE OF SKILL IN THE ART AT THE TIME OF INVENTION? OF COURSE THIS RELEVANT TESTIMONY MUST NOT CONFLICT WITH OR ATTEMPT TO TRUMP CONTEMPORANEOUS INTRINSIC EVIDENCE FROM THE PATENT DOCUMENT ITSELF, SEE VITRONICS CORP. V. CONCEPTRONIC, INC., 90 F.3D 1576, 1582-83, 39 USPQ2D 1573, 1576-77 (FED. CIR. 1996), BUT BOTH TRIAL AND APPELLATE JUDGES ARE POISED TO HALT THAT ABUSE. MOREOVER, BY ASSIGNING CLAIM INTERPRETATION TO THE JUDGE, MARKMAN II HAS ALREADY CORRECTED THE MAJOR SOURCE OF THE PROBLEM WITH EXPERTS, NAMELY THEIR ABILITY TO INFLUENCE LAY JURORS WITH THE STRENGTH OF THEIR RESUMES RATHER THAN THE STRENGTH OF THEIR REASONING. IN ANY EVENT, IT SEEMS A CONTRADICTION TO BAR THOSE OF SKILL IN THE ART AT THE TIME OF INVENTION FROM A SEARCH FOR THE MEANING OF TERMS TO ONE OF SKILL IN THE ART AT THE TIME OF THE INVENTION. IN EFFECT, THE EN BANC OPINION HAS SUB SILENTIO REDEFINED THE CLAIM CONSTRUCTION INQUIRY AS УHOW A LAWYER OR JUDGE WOULD INTERPRET THE TERM.Ф DISTRICT COURTS HAVE ALREADY EXPRESSED THEIR FRUSTRATION WITH THE STRICTURES OF MARKMAN I: WHEN TWO EXPERTS TESTIFY DIFFERENTLY AS TO THE MEANING OF A TECHNICAL TERM, AND THE COURT EMBRACES THE VIEW OF ONE, THE OTHER, OR NEITHER WHILE CONSTRUING A PATENT CLAIM AS A MATTER OF LAW, THE COURT HAS ENGAGED IN WEIGHING EVIDENCE AND MAKING CREDIBILITY DETERMINATIONS . . . . BUT WHEN THE FEDERAL CIRCUIT COURT OF APPEALS STATES THAT THE TRIAL COURT DOES NOT DO SOMETHING THAT THE TRIAL COURT DOES AND MUST DO TO PERFORM THE JUDICIAL FUNCTION, THE COURT KNOWINGLY ENTERS A LAND OF SOPHISTRY AND FICTION. LUCAS AEROSPACE, LTD. V. UNISON INDUS., LP, 890 F. SUPP. 329, 333-34 N.7, 36 USPQ2D 1235, 1239 N.7 (D. DEL. 1995); SEE ALSO ELF ATOCHEM NORTH AM., INC. V. LIBBEY-OWENS-FORD CO., 894 F. SUPP. 844, 857, 37 USPQ2D 1065, 1075 (D. DEL. 1995); IN RE MAHURKAR DOUBLE LUMEN HEMODIALYSIS CATHETER PATENT LITIGATION, 831 F. SUPP. 1354, 1359, 28 USPQ2D 1801, 1805 (N.D. ILL. 1993) (У[J]UDGES SHOULD NOT PRETEND THAT ALL NOMINALLY СLEGALТ ISSUES MAY BE RESOLVED WITHOUT REFERENCE TO FACTS. . . . WHAT SEEMS CLEAR TO A JUDGE MAY READ OTHERWISE TO [ONE SKILLED IN THE ART].Ф). II. FROM THE PATENT PRACTITIONERТS STANDPOINT, THIS COURTТS ENTHUSIASTIC ASSERTION OF ITS UNFETTERED REVIEW AUTHORITY HAS THE POTENTIAL TO UNDERCUT THE BENEFITS OF MARKMAN I. MARKMAN I POTENTIALLY PROMISED TO SUPPLY EARLY CERTAINTY ABOUT THE MEANING OF A PATENT CLAIM. THIS CERTAINTY, IN TURN, WOULD PROMPT EARLY SETTLEMENT OF MANY, IF NOT MOST, PATENT SUITS. ONCE THE PARTIES KNOW THE MEANING OF THE CLAIMS, THEY CAN PREDICT WITH SOME RELIABILITY THE LIKELIHOOD OF A FAVORABLE JUDGMENT, FACTOR IN THE ECONOMICS OF THE INFRINGEMENT, AND ARRIVE AT A SETTLEMENT TO SAVE THE COSTS OF LITIGATION. MARKMAN I PROMISED TO PROVIDE THIS BENEFIT EARLY IN THE TRIAL COURT PROCESS. TO PROVIDE FAIRNESS UNDER THE MARKMAN I REGIME, TRIAL JUDGES WOULD PROVIDE CLAIM INTERPRETATIONS BEFORE THE EXPENSE OF TRIAL. PATENT PRACTITIONERS WOULD THEN BE ARMED WITH KNOWLEDGE OF THE PROBABLE OUTCOME OF THE LITIGATION AND COULD FACILITATE SETTLEMENT. THE PROBLEM WITH THIS PLAN WAS IN ITS IMPLEMENTATION BECAUSE AS A QUESTION OF LAW, CLAIM INTERPRETATION IS SUBJECT TO FREE REVIEW BY THE APPELLATE COURT. THE FEDERAL CIRCUIT, ACCORDING TO ITS OWN OFFICIAL 1997 STATISTICS, REVERSED IN WHOLE OR IN PART 53% OF THE CASES FROM DISTRICT COURTS (27% FULLY REVERSED; 26% REVERSED-IN-PART). GRANTED THIS FIGURE DEALS WITH ALL ISSUES IN CASES WITH MANY ISSUES. NONETHELESS, ONE STUDY SHOWS THAT THE PLENARY STANDARD OF REVIEW HAS PRODUCED REVERSAL, IN WHOLE OR IN PART, OF ALMOST 40% OF ALL CLAIM CONSTRUCTIONS SINCE MARKMAN I. A REVERSAL RATE IN THIS RANGE REVERSES MORE THAN THE WORK OF NUMEROUS TRIAL COURTS; IT ALSO REVERSES THE BENEFITS OF MARKMAN I. IN FACT, THIS REVERSAL RATE, HOVERING NEAR 50%, IS THE WORST POSSIBLE. EVEN A RATE THAT WAS MUCH HIGHER WOULD PROVIDE GREATER CERTAINTY. INSTEAD, THE CURRENT MARKMAN I REGIME MEANS THAT THE TRIAL COURTТS EARLY CLAIM INTERPRETATION PROVIDES NO EARLY CERTAINTY AT ALL, BUT ONLY OPENS THE BIDDING. THE MEANING OF A CLAIM IS NOT CERTAIN (AND THE PARTIES ARE NOT PREPARED TO SETTLE) UNTIL NEARLY THE LAST STEP IN THE PROCESS Ц DECISION BY THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT. TO GET A CERTAIN CLAIM INTERPRETATION, PARTIES MUST GO PAST THE DISTRICT COURTТS MARKMAN I PROCEEDING, PAST THE ENTIRETY OF DISCOVERY, PAST THE ENTIRE TRIAL ON THE MERITS, PAST POST TRIAL MOTIONS, PAST BRIEFING AND ARGUMENT TO THE FEDERAL CIRCUIT Ц INDEED PAST EVERY STEP IN THE ENTIRE COURSE OF FEDERAL LITIGATION, EXCEPT SUPREME COURT REVIEW. IN IMPLEMENTATION, A DE NOVO REVIEW OF CLAIM INTERPRETATIONS HAS POSTPONED THE POINT OF CERTAINTY TO THE END OF THE LITIGATION PROCESS, AT WHICH POINT, OF COURSE, EVERY OUTCOME IS CERTAIN ANYWAY. IN PRACTICAL TERMS, THIS IMPLEMENTATION RECORD HAS OTHER PERVERSE EFFECTS. TRIAL ATTORNEYS MUST DEVOTE MUCH OF THEIR TRIAL STRATEGY TO POSITIONING THEMSELVES FOR THE УENDGAMEФ Ц CLAIM CONSTRUCTION ON APPEAL. AS THE FOCUS SHIFTS FROM LITIGATING FOR THE CORRECT CLAIM CONSTRUCTION TO PRESERVING WAYS TO COMPEL REVERSAL ON APPEAL, THE UNCERTAINTY, COST, AND DURATION OF PATENT LITIGATION ONLY INCREASE. THUS, THE EN BANC COURTТS DE NOVO REGIME BELIES THE PURPOSE AND PROMISE OF MARKMAN I. SEVERAL HIGH PROFILE APPEALS HAVE ILLUSTRATED THE PROBLEM CREATED BY THE FEDERAL CIRCUITТS HIGH REVERSAL RATE. IN LUBRIZOL, 64 F.3D 1553, AND J.T. EATON & CO. V. ATLANTIC PASTE & GLUE CO., 106 F.3D 1563, 41 USPQ2D 1641 (FED. CIR. 1997), THIS APPELLATE COURT REJECTED NOT ONLY THE TRIAL JUDGEТS CLAIM READING, BUT ALSO THE READINGS ADVOCATED BY BOTH PARTIES AT TRIAL AND THE READINGS ADVOCATED BY ALL EXPERTS IN THE TRIAL. IN FACT, IN EATON, THE FEDERAL CIRCUIT DID NOT BASE ITS INTERPRETATION ON THE SPECIFICATION OR THE TOTALITY OF THE PROSECUTION HISTORY, BUT INSTEAD FOUND ITS MEANING IN A BRIEF EXCERPT FROM THE AFFIDAVIT OF A SINGLE EXPERT WITNESS AT THE END OF A LENGTHY PROSECUTION. SEE 106 F.3D AT 1568, 1570. IF THE PARTIES MIGHT SUCCEED IN CONVINCING THE FEDERAL CIRCUIT TO REVERSE AN ENTIRE TRIAL RESULT WITH AN ARGUMENT NEVER PRESENTED TO THE TRIAL COURT OR WITH A BRIEF EXCERPT FROM HUNDREDS OF PAGES OF PROSECUTION (AGAIN NOT PRESENTED TO THE TRIAL COURT), WOULD THEY BE WISE TO SETTLE AFTER A TRIAL COURTТS READING OF THE CLAIMS? ONE OTHER CASE MAKES THE POINT EVEN MORE PERSUASIVELY. IN CVI/BETA VENTURES, INC. V. TURA LP, 112 F.3D 1146, 42 USPQ2D 1577 (FED. CIR. 1997) (TURA), THE FEDERAL CIRCUIT REVERSED ITS OWN EARLIER CLAIM INTERPRETATION AS A QUESTION OF LAW WHEN THE DEFENDANT AND STAGE OF THE PROCEEDINGS CHANGED. ON A MOTION FOR A PRELIMINARY INJUNCTION IN AN INFRINGEMENT ACTION, A MARYLAND DISTRICT COURT INTERPRETED THE 3% ELASTICITY LIMITATION IN A CLAIM FOR FLEXIBLE EYEGLASS FRAMES. ON APPEAL THE FEDERAL CIRCUIT REVIEWED THIS CLAIM INTERPRETATION AS A QUESTION OF LAW AND AFFIRMED IN A NONPRECEDENTIAL OPINION. SEE CVI/BETA VENTURES, INC. V. CUSTOM OPTICAL FRAMES INC., 1996 WL 338388 (FED. CIR. JUNE 19, 1996) (NONPRECEDENTIAL); SEE ALSO TURA, 112 F.3D AT 1160 N.7. UNDERSTANDING THAT THE LAW MUST NOT CHANGE FROM CASE TO CASE OR FROM CIRCUMSTANCE TO CIRCUMSTANCE, A NEW YORK DISTRICT COURT APPLIED THE FEDERAL CIRCUITТS CLAIM INTERPRETATION IN A SEPARATE INFRINGEMENT ACTION INVOLVING THE SAME PATENT. AFTER TRIAL, THE DEFENDANT APPEALED. THIS TIME THE FEDERAL CIRCUIT REVERSED THE DISTRICT COURTТS CLAIM INTERPRETATION. SEE TURA, 112 F.3D AT 1149 (УWE CONCLUDE THAT THE DISTRICT COURT DID ERR IN ITS CLAIM CONSTRUCTION.Ф) (EMPHASIS ADDED). ALTHOUGH THIS COURT REFERRED TO THE NEW YORK DISTRICT COURTТS УERROR,Ф THE FEDERAL CIRCUIT HAD IN FACT REVERSED ITSELF. ONE POTENTIAL TRIAL COURT RESPONSE TO THE CVI/BETA PROBLEM MIGHT BE THE ISSUANCE OF ФTENTATIVEФ CLAIM CONSTRUCTIONS AS A MATTER OF LAW. SEE INTERNATIONAL COMMUNICATIONS MATERIALS, INC. V. RICOH CO., LTD., 108 F.3D 316, 41 USPQ2D 1957 (FED. CIR. 1997). THIS RESPONSE, OF COURSE, WOULD FURTHER FRUSTRATE THE PARTIESТ DESIRE TO RECEIVE A CERTAIN CLAIM CONSTRUCTION AS EARLY AS POSSIBLE. REGARDLESS, IF THE FEDERAL CIRCUITТS READING OF THE VERY SAME CLAIM CAN VARY FROM ONE APPEAL TO THE NEXT, EVERY PATENT LITIGANT HAS AN INCENTIVE TO APPEAL EVERY ACTION TO THE FEDERAL CIRCUIT IN HOPES THAT THE STATISTICS WILL HOLD UP AND EVENTUALLY THE APPELLATE COURT WILL REVERSE. EVEN THE FEDERAL CIRCUITТS CLAIM INTERPRETATIONS AS QUESTIONS OF LAW ARE NOT CERTAIN. IS THIS THE УUNIFORMITYФ OUTLINED BY THE SUPREME COURT IN MARKMAN II? III. BECAUSE PATENT TRIAL PRACTITIONERS UNDERSTAND THE DISTINCT PROSPECT OF OVERTURNING TRIAL COURT RESULTS ON APPEAL, THE TRIAL ARENA LOSES SOME OF ITS LUSTER AS THE CENTER STAGE OF THE DISPUTE RESOLUTION DRAMA. INSTEAD THE TRIAL COURT BECOMES A TICKET TO THE REAL CENTER STAGE, THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT. TAKING A CUE FROM THE SUPREME COURT, THIS COURT WOULD MORE WISELY TAKE A FUNCTIONAL APPROACH TO SETTING A STANDARD OF REVIEW FOR CLAIM CONSTRUCTION. IN MARKMAN II, THE SUPREME COURT NOTED THAT NEITHER HISTORY NOR PRECEDENT PROVIDED УCLEAR ANSWERSФ ABOUT THE ROLE OF THE JURY AND THE FACTUAL OR LEGAL NATURE OF CLAIM CONSTRUCTION. 116 S. CT. AT 1395. THEREFORE, THE COURT PURSUED A FUNCTIONAL INQUIRY TO DETERMINE WHETHER THE JUDGE OR JURY COULD BEST BALANCE THE COMPLEXITIES OF CLAIM CONSTRUCTION. SEE ID. A SIMILAR FUNCTIONAL INQUIRY MIGHT BEST CLARIFY THE ROLES OF THE TRIAL AND APPELLATE BENCHES DURING CLAIM INTERPRETATION. THE SUPREME COURT HAS PROVIDED SOME GUIDELINES FOR SUCH A FUNCTIONAL APPROACH. THE COURT COUNSELS APPELLATE COURTS TO DEFER УWHEN IT APPEARS THAT THE DISTRICT COURT IS СBETTER POSITIONEDТ THAN THE APPELLATE COURT TO DECIDE THE ISSUE IN QUESTION OR THAT PROBING APPELLATE SCRUTINY WILL NOT CONTRIBUTE TO THE CLARITY OF LEGAL DOCTRINE.Ф SALVE REGINA COLLEGE V. RUSSELL, 499 U.S. 225, 233 (1991). AT ANOTHER POINT, THE COURT CAUTIONS: У[T]HE REVIEWING ATTITUDE THAT A COURT OF APPEALS TAKES TOWARD A DISTRICT COURT DECISION SHOULD DEPEND UPON СTHE RESPECTIVE INSTITUTIONAL ADVANTAGES OF TRIAL AND APPELLATE COURTS.ТФ FIRST OPTIONS OF CHICAGO, INC. V. KAPLAN, 514 U.S. 938, 948 (1995) (QUOTING SALVE REGINA, 499 U.S. AT 233). APPLYING THIS GENERAL COUNSEL, THE TRIAL JUDGE ENJOYS A POTENTIALLY SUPERIOR POSITION TO ENGAGE IN CLAIM INTERPRETATION. FOR THE COMPLEX CASE WHERE THE CLAIM LANGUAGE AND SPECIFICATION DO NOT SUMMARILY DISPOSE OF CLAIM CONSTRUCTION ISSUES, THE TRIAL COURT HAS TOOLS TO ACQUIRE AND EVALUATE EVIDENCE THAT THIS COURT LACKS. TRIAL JUDGES CAN SPEND HUNDREDS OF HOURS READING AND REREADING ALL KINDS OF SOURCE MATERIAL, RECEIVING TUTORIALS ON TECHNOLOGY FROM LEADING SCIENTISTS, FORMALLY QUESTIONING TECHNICAL EXPERTS AND TESTING THEIR UNDERSTANDING AGAINST THAT OF VARIOUS EXPERTS, EXAMINING ON SITE THE OPERATION OF THE PRINCIPLES OF THE CLAIMED INVENTION, AND DELIBERATING OVER THE MEANING OF THE CLAIM LANGUAGE. IF DISTRICT JUDGES ARE NOT SATISFIED WITH THE PROOFS PROFFERED BY THE PARTIES, THEY ARE NOT BOUND TO A PREPARED RECORD BUT MAY COMPEL ADDITIONAL PRESENTATIONS OR EVEN EMPLOY THEIR OWN COURT-APPOINTED EXPERT. AN APPELLATE COURT HAS NONE OF THESE ADVANTAGES. IT CANNOT DEPART FROM THE RECORD OF THE TRIAL PROCEEDINGS. TO PROPERLY MARSHAL ITS RESOURCES, THE APPELLATE BENCH MUST ENFORCE STRICT TIME AND PAGE LIMITS IN ORAL AND WRITTEN PRESENTATIONS. MOREOVER A STERILE WRITTEN RECORD CAN NEVER CONVEY ALL THE NUANCES AND INTANGIBLES OF THE DECISIONAL PROCESS. INDEED A CAREFUL CONSIDERATION OF THE INSTITUTIONAL ADVANTAGES OF THE DISTRICT COURT WOULD COUNSEL DEFERENCE. THIS COURTТS CATEGORICAL RESPONSE THAT CLAIM INTERPRETATION INVOLVES NO FACTUAL ASSESSMENTS DOES NOT ADVANCE A FUNCTIONAL ANALYSIS OF TRIAL AND APPELLATE ROLES IN CLAIM CONSTRUCTION. AS A MATTER OF FACT (SO TO SPEAK), CLAIM CONSTRUCTION REQUIRES ASSESSMENT OF CUSTOM AND USAGE IN THE RELEVANT ART, ASSESSMENT OF EVENTS DURING PROSECUTION, ASSESSMENT OF THE LEVEL OF ORDINARY SKILL IN THE ART, ASSESSMENT OF THE UNDERSTANDING OF SKILLED ARTISANS AT THE TIME OF INVENTION Ц TO NAME JUST A FEW FACTUAL COMPONENTS OF THE COMPLEX PROCESS OF CLAIM INTERPRETATION. A CAREFUL FUNCTIONAL ANALYSIS COUNSELS DEFERENCE FOR DISTRICT COURT CLAIM INTERPRETATIONS. IV. THE SUPREME COURT MAY HAVE OFFERED A PATH OUT OF THIS PREDICAMENT. AT LEAST THREE TIMES IN MARKMAN II, AS NOTED EARLIER, THE COURT ALLUDED TO THE FACTUAL COMPONENT OF CLAIM INTERPRETATION. AT NO POINT DID MARKMAN II ADDRESS THE APPROPRIATE STANDARD OF REVIEW. NONETHELESS THIS COURT MISSES THE OPPORTUNITY TO IMPROVE CERTAINTY IN PATENT PRACTICE BY GIVING APPROPRIATE DEFERENCE TO TRIAL COURT CLAIM INTERPRETATIONS, PARTICULARLY IN COMPLEX CASES. IF THIS COURT ACCORDS MORE DEFERENCE TO TRIAL COURT INTERPRETATIONS IN THE COMPLEX CASES, SOON THE DISTRICT COURTS WILL PROVIDE THE DESIRED CERTAINTY EARLY IN THE PROCESS. AT THAT POINT, MARKMAN I WILL FULFILL ITS PROMISE. ADMINISTRATION OF PATENT LAW WILL MOVE TOWARD LESS COSTLY DISPUTES AND EARLIER SETTLEMENTS. MARKMAN I SET OUT TO IMPROVE PATENT LAW ADMINISTRATION BY REMOVING UNCERTAINTIES FROM THE DISPUTE RESOLUTION PROCESS (THE CHIEF UNCERTAINTY, OF COURSE, BEING JURY RESULTS). INADVERTENTLY THE REASONING IN MARKMAN I HAS POSTPONED THE POINT OF CERTAINTY TO THE EXTREME END OF THE JUDICIAL PROCESS. THIS DELAY BOTH DISRUPTS THE ORDERLINESS OF TRIALS AND PRACTITIONERSТ HOPES FOR MORE EFFICIENT AND EARLIER CLAIM CONSTRUCTIONS. THE SUPREME COURT REMOVED THE JURY UNCERTAINTY WITH ITS DECISION AND, BY RECOGNIZING A FACTUAL COMPONENT IN CLAIM INTERPRETATION, PROVIDED A WAY FOR THIS COURT TO ACCOMPLISH MUCH OF ITS EARLY GOALS. BY ACCORDING SOME DEFERENCE WHERE APPROPRIATE, THIS COURT CAN RESTORE THE TRIAL COURTТS PROMINENCE IN THE CLAIM INTERPRETATION FUNCTION AND BRING AGAIN MORE CERTAINTY AT AN EARLIER STAGE OF THE JUDICIAL PROCESS. APPLYING THE SUPREME COURTТS REASONING FOR HABEAS PROCEEDINGS TO CLAIM CONSTRUCTION, УADOPTION OF [A RULE OF APPROPRIATE DEFERENCE] . . . WILL HAVE THE SALUTARY EFFECT OF MAKING THE [DISTRICT COURTТS] TRIAL ON THE MERITS THE СMAIN EVENT,Т SO TO SPEAK, RATHER THAN A СTRYOUT ON THE ROADТ FOR WHAT WILL LATER BE THE DETERMINATIVE [APPEAL TO THE FEDERAL CIRCUIT].Ф WAINWRIGHT V. SYKES, 433 U.S. AT 90. THIS CERTAINTY, IN TURN, WOULD STIMULATE MORE SETTLEMENTS AND EFFICIENT DECISION MAKING - THE PROMISE OF MARKMAN I. WITH THIS REASONING IN MIND, I RESPECTFULLY DISSENT FROM THE CLAIM INTERPRETATION PRONOUNCEMENTS OF THE EN BANC OPINION, CONCUR IN THE JUDGMENT, AND JOIN ONLY PART IV OF THE EN BANC OPINION. UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 96-1286, -1287 CYBOR CORPORATION, PLAINTIFF-APPELLANT, V. FAS TECHNOLOGIES, INC., AND FASTAR LTD., DEFENDANTS/CROSS-APPELLANTS. NEWMAN, CIRCUIT JUDGE, WITH WHOM CHIEF JUDGE MAYER JOINS; ADDITIONAL VIEWS. AS THIS CASE ILLUSTRATES, PERFECTION IS ELUSIVE IN THE AFTERMATH OF THE FEDERAL CIRCUIT'S DECISION IN MARKMAN V. WESTVIEW INSTRUMENTS, INC., 52 F.3D 967, 34 USPQ2D 1321 (FED. CIR. 1995) (EN BANC), AFF'D, 116 S. CT. 1384, 38 USPQ2D 1461 (1996). THE EXPECTATION OF GREATER STABILITY IN THE APPLICATION OF PATENT LAWЧTHUS ENHANCING CONSISTENCY IN RESULT, REDUCING THE COST OF LITIGATION, AND INDEED REDUCING LITIGATION BY DIMINISHING THE UNCERTAINTIES OF JURY TRIALSЧHAS NOT BEEN WELL ACHIEVED. MOST OF THE SHORTFALLS BETWEEN EXPECTATION AND REALITY ARISE FROM THE MANNER OF IMPLEMENTATION OF OUR DE NOVO AUTHORITY FOR CLAIM INTERPRETATION. I CITE THREE PRINCIPAL AREAS. THE FIRST AREA RELATES TO THE TREATMENT OF CERTIFIED QUESTIONS. ALTHOUGH THE DISTRICT COURTS HAVE EXTENDED THEMSELVES, AND SO-CALLED "MARKMAN HEARINGS" ARE COMMON, THIS HAS NOT BEEN ACCOMPANIED BY INTERLOCUTORY REVIEW OF THE TRIAL JUDGE'S CLAIM INTERPRETATION. THE FEDERAL CIRCUIT HAS THUS FAR DECLINED ALL SUCH CERTIFIED QUESTIONS. INDEED, THE CERTIFIED QUESTION ISSUE WAS AN EARLY WARNING OF THE DIFFICULTIES THAT COULD FLOW FROM PREMATURE CLAIM INTERPRETATION, FOR IT WAS OFTEN APPARENT FROM THE PETITION THAT THE CLAIMS COULD NOT BE FINALLY AND CORRECTLY INTERPRETED WITHOUT EVIDENCE BEYOND THE PATENT DOCUMENTS. THE ABSENCE OF EXTRINSIC EVIDENCE, OF RESOLUTION OF CONFLICTING POSITIONS, AND OF DETAILED ANALYSIS AND FINDINGS BY THE TRIAL JUDGE, INHIBITED CLAIM INTERPRETATION BY CERTIFIED QUESTION. THUS, INSTEAD OF CONDUCTING THE EXPECTED DISPOSITIVE DE NOVO REVIEW, WE SIMPLY DECLINED THE QUESTION. THE POSSIBILITY OF EARLY FINALITY TO CLAIM INTERPRETATION HAS NOT MATERIALIZED, WITH TWO UNTOWARD CONSEQUENCES; FIRST, THE DISTRICT COURT HAS HAD TO CONDUCT A PERHAPS UNNECESSARY TRIAL; AND SECOND, THE EVENTUAL ISSUANCE OF A NEW CLAIM INTERPRETATION BY THE FEDERAL CIRCUIT, ON APPEAL AFTER FINAL JUDGMENT, HAS SOMETIMES REQUIRED A SECOND TRIAL OF THE ISSUE OF INFRINGEMENT. NONE OF THESE CONSEQUENCES COMPORTS WITH OUR INSISTENCE THAT CLAIM INTERPRETATION IS PURELY A MATTER OF LAW, THAT IT NEEDS NO FINDINGS AT TRIAL, AND THAT IT WILL BE DECIDED DE NOVO BY THE FEDERAL CIRCUIT. THE SECOND AREA OF DISAPPOINTED EXPECTATIONS HAS FLOWED FROM THE UNEXPECTEDLY CREATIVE DE NOVO CLAIM INTERPRETATIONS THAT THE FEDERAL CIRCUIT HAS ISSUED IN A FEW CASES. THIS UNPREDICTABILITY IN ADMINISTRATION OF THE LAW OF PATENT CLAIMING HAS ADDED A SPORTING ELEMENT TO OUR BENCH. IT HAS NOT ONLY RELEASED APPELLANTS' IMAGINATIONS ON APPEAL, BUT IT WILL SURELY ADD COMPLEXITY TO FUTURE TRIALS, AS LAWYERS ATTEMPT TO GUARD AGAINST THE JUDICIAL IMAGINATION. A THIRD CONCERN, ALTHOUGH RARE IN OCCURRENCE, IS OF GREAT SIGNIFICANCE, FOR EVEN ONE CASE WHEREIN THE FEDERAL CIRCUIT HAS DEEMED ITSELF UNCONSTRAINED BY ITS OWN PRIOR INTERPRETATION OF THE SAME PATENT REMOVES FINALITY AND ENCOURAGES RELITIGATION OF EVERY PATENT. THE PROMISE OF UNIFORMITY AND FINALITY, FLOWING FROM DECISIONS OF NATIONAL EFFECT, IS A FAILED PROMISE IF WE ARE NOT BOUND BY STARE DECISIS IN OUR OWN CLAIM INTERPRETATION. THESE FLAWS ARE OF SERIOUS CONCERN, NO LESS BECAUSE THEY ARE OF OUR OWN MAKING. THEY ARE NOT IRREMEDIABLE, ALTHOUGH REMEDY MAY REQUIRE A LARGER VISION THAN WE POSSESS. HOWEVER, TODAY'S EN BANC OPINION ADDS ANOTHER ENCUMBRANCE TO THE PROCEDURES FOR INTERPRETATION OF CLAIMS, FURTHER INHIBITING FRUITION OF THE MARKMAN EXPECTATION. WHEN THE ISSUES IN LITIGATION INVOLVE COMPLEX QUESTIONS OF SCIENCE AND TECHNOLOGY, A SPECIAL EFFORT IS REQUIRED OF THE JUDICIAL PROCESS. IN LITIGATION OF PATENT DISPUTES THE NATURE OF THE EVIDENCE THAT IS RECEIVED AND CONSIDERED, THE BALANCE BETWEEN THE TRIAL AND APPELLATE FUNCTIONS, AND THE EVIDENTIARY RULES GOVERNING OPINION TESTIMONY AND EXPERTS, ARE OF PARTICULAR IMPORTANCE. TODAY'S DECISION FALLS SHORT IN EACH OF THESE AREAS. PROCEDURAL AND EVIDENTIARY RULES SHOULD WEIGH TOWARD FACILITATING JUDICIAL UNDERSTANDING OF THE ISSUES AND THEREBY REACHING THE CORRECT RESULT. YET THE FEDERAL CIRCUIT RULES TODAY THAT IT WILL NOT CONSIDER FACTUAL FINDINGS OF THE TRIAL COURT, EXPRESSLY DISAVOWING SUCH ACTIONS BY PRIOR PANELS. THE COURT CONTINUES TO DENY THE NEED TO MAKE FINDINGS OF DISPUTED FACTS WHEN INTERPRETING CLAIMS: "[BY] USING CERTAIN EXTRINSIC EVIDENCE THAT THE COURT FINDS HELPFUL AND REJECTING OTHER EVIDENCE AS UNHELPFUL, AND RESOLVING DISPUTES EN ROUTE TO PRONOUNCING THE MEANING OF CLAIM LANGUAGE . . . THE COURT IS NOT CREDITING CERTAIN EVIDENCE OVER OTHER EVIDENCE OR MAKING FACTUAL EVIDENTIARY FINDINGS." MAJ. OP. AT 7 (QUOTING MARKMAN, 52 F.3D AT 981, 34 USPQ2D AT 1331). THE COURT STATES THAT IT NEITHER ACCEPTS THE TRIAL JUDGE'S FINDINGS OF FACT, NOR ACCEPTS THAT THERE ARE FACTUAL ISSUES IN CLAIM INTERPRETATION. WITH THESE STRICTURES ON EVIDENCE, WITNESSES, AND FINDINGS, IT IS FAR FROM CLEAR HOW THE FEDERAL CIRCUIT PROPOSES TO REACH THE CORRECT CLAIM INTERPRETATION. BY CONTINUING THE FICTION THAT THERE ARE NO FACTS TO BE FOUND IN CLAIM INTERPRETATION, WE CONFOUND RATHER THAN EASE THE LITIGATION PROCESS. WITHOUT DOUBT, FACTUAL DISPUTES ARISE AND MUST BE RESOLVED IN ORDER TO INTERPRET THE CLAIMS. SUCH FACTS ARE NORMALLY RESOLVED AT TRIALЧYET WE NOW DENY OURSELVES THE OPPORTUNITY EVEN TO CONSIDER THE FINDINGS OF THE TRIAL COURT. SEE MAJ. OP. AT 12 (DISAVOWING THE PROCEDURE IN A FEDERAL CIRCUIT OPINION WHEREBY THE COURT RECOGNIZED THE TRIAL COURT'S "`TRAINED ABILITY TO EVALUATE [EXPERT] TESTIMONY IN RELATION TO THE OVERALL STRUCTURE OF THE PATENT' AND THE TRIAL COURT'S `BETTER POSITION TO ASCERTAIN WHETHER AN EXPERT'S PROPOSED DEFINITION FULLY COMPORTS WITH THE SPECIFICATION AND CLAIMS'"). THE COURT TODAY NOT ONLY REJECTS THE OPPORTUNITY TO GIVE NORMAL APPELLATE DEFERENCE TO THE PROCEEDINGS AND FINDINGS OF TRIAL, BUT ALSO REJECTS THE OPPORTUNITY TO CONSIDER THEM AT ALL. IN MARKMAN THE EN BANC COURT TOOK THE POSITION THAT IN PATENT CASES, UNLIKE ANY OTHER AREA OF LAW, A DISPUTED QUESTION OF THE MEANING, SCOPE, AND USAGE OF TERMS OF TECHNOLOGIC ART IS NOT A QUESTION OF FACT, OR EVEN OF LAW BASED ON UNDERLYING FACT, BUT IS PURE LAW. HOWEVER, THE SUPREME COURT HAS RELIEVED US OF ADHERENCE TO THIS FICTION, BY ITS RECOGNITION OF THE FACTUAL COMPONENT OF CLAIM INTERPRETATION. FURTHER, THE COURT'S AFFIRMATION THAT CLAIM INTERPRETATION "IS EXCLUSIVELY WITHIN THE PROVINCE OF THE COURT," 116 S. CT. AT 1387, 38 USPQ2D AT 1463, DID NOT SHUT OUT THE TRIAL JUDGE ALONG WITH THE JURY. IN DECLINING TO AFFIRM THE FEDERAL CIRCUIT'S FACT/LAW THEORY, THE COURT OPENED THE DOOR FOR RETREAT FROM THIS ARTIFICIAL CONSTRUCT. I URGE US TO DO SO, FOR EXPERIENCE SHOWS THAT UNFORESEEN AND UNDESIRED CONSEQUENCES ARE FLOWING FROM ITS RIGIDITY. NOW THAT THIS FACT/LAW RIGOR IS NO LONGER NECESSARY FOR CONSTITUTIONAL COMBAT, LET US REVIEW THESE CONSEQUENCES AND ACCEPT THIS INVITATION TO ADVANCE OUR PROCEDURES. FOR EXAMPLE, IN MARKMAN THE FEDERAL CIRCUIT STATED THAT IT IS NOT A FINDING WHEN ONE SIDE'S EVIDENCE IS ACCEPTED AND THE OTHER SIDE'S EVIDENCE IS REJECTED. 52 F.3D AT 981, 23 USPQ2D AT 1331. SINCE ACCEPTING ONE SIDE'S EVIDENCE AND REJECTING THE OTHER'S BASED ON AN ASSESSMENT OF VALIDITY WOULD BE A FINDING, SOME OTHER CRITERION MUST BE THE BASIS FOR THE CHOICE. THE COURT HAS NEVER STATED WHAT THIS CRITERION COULD BE, EXCEPT THAT ACCEPTED EVIDENCE SHOULD BE "HELPFUL," AN ANSWER THAT BEGS THE QUESTION. A FRESH VIEW OF FACT AND LAW WOULD ALSO AMELIORATE THE CONSTRAINTS WE HAVE PLACED ON THE PRESENTATION OF EXTRINSIC EVIDENCE ON THE ISSUE OF CLAIM INTERPRETATION. PATENT LITIGATION NOW OFTEN STARTS WITH A PRELIMINARY HEARING TO INTERPRET THE DISPUTED CLAIM TERMS, AND OFTEN PRODUCES AN EARLY SUMMARY JUDGMENT, A PATH PERHAPS FOSTERED BY OUR FORECLOSURE OF THE CERTIFIED QUESTION. THIS PRELIMINARY RULING CAN BE DISPOSITIVE OF THE DISPUTE, FOR THE SCOPE OF THE CLAIM OFTEN DECIDES WHETHER THERE CAN BE LITERAL INFRINGEMENT. THUS I ADD TO MY CONCERNS THE POSITION OF THE FEDERAL CIRCUIT, HERE REAFFIRMED, THAT EXTRINSIC EVIDENCE IS OF STRICTLY LIMITED AVAILABILITY IN CLAIM INTERPRETATION. SUCH EVIDENCE SHOULD BE ENCOURAGED, NOT RESTRAINED, IF SUMMARY DISPOSITION IS AT HAND. THE VALUE OF EXTRINSIC EVIDENCE IN CLAIM INTERPRETATION IS NOT SURPRISING, BECAUSE PATENT DOCUMENTS ARE WRITTEN BY AND FOR PERSONS IN THE FIELD OF THE INVENTION, NOT FOR JUDGES. JUDGES NOT ONLY NEED A LARGER UNDERSTANDING OF THE SCIENCE OR TECHNOLOGY, BUT WE ALSO NEED HELP WITH UNDERSTANDING HOW THE PARTICULAR TERMS AS USED IN THE PATENT ARE VIEWED BY PERSONS IN THE FIELD OF THE INVENTION. AS JUDGE SCHWARZER OBSERVED: THE CONTEXT IN WHICH [ISSUES OF SCIENCE AND TECHNOLOGY] ARISE VARIES WIDELY, BUT GENERALLY THEY SHARE ONE CHARACTERISTIC. THEY CHALLENGE THE ABILITY OF JUDGES AND JURIES TO COMPREHEND THE ISSUESЧAND THE EVIDENCEЧAND TO DEAL WITH THEM IN INFORMED AND EFFECTIVE WAYS. AS A RESULT, THEY TEND TO COMPLICATE THE LITIGATION, INCREASE EXPENSE AND DELAY, AND JEOPARDIZE THE QUALITY OF JUDICIAL AND JURY DECISION MAKING. FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 1 (1994). THE FEDERAL CIRCUIT'S RULING THAT EXTRINSIC EVIDENCE MUST BE RESTRICTED UNLESS THERE IS A FACIAL AMBIGUITY IN THE MEANING OF THE CLAIM IS AN UNNECESSARY RESTRAINT ON POTENTIALLY USEFUL EVIDENCE. SEE DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579, 588 (1993) ("`IF SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE WILL ASSIST THE TRIER OF FACT TO UNDERSTAND THE EVIDENCE OR TO DETERMINE A FACT IN ISSUE, A WITNESS QUALIFIED AS AN EXPERT . . . MAY TESTIFY THERETO IN THE FORM OF AN OPINION OR OTHERWISE.'") (QUOTING FED. R. EVID. 702). OF COURSE THE PRIMARY SOURCE OF INFORMATION CONCERNING THE CLAIMED INVENTION IS THE PATENT DOCUMENTS. BUT SUCH DOCUMENTS ARE DIRECTED TO PERSONS KNOWLEDGEABLE IN THE FIELD; ADDITIONAL EVIDENCE AND EXPERT TESTIMONY AS TO THEIR MEANING SHOULD BE THE RULE, NOT THE EXCEPTION. SO-CALLED "EXTRINSIC" EVIDENCEЧTHE EVIDENCE OF EXPERT WITNESSES AND OF EXPERIMENTATION, EXHIBITS, DEMONSTRATIONS, AND EXPLANATIONЧSHOULD BE TREATED LIKE ANY OTHER EVIDENCE, AND RECEIVED AND GIVEN WEIGHT AND VALUE AS APPROPRIATE. OUR BROAD CONSTRAINT ON RESORT TO SUCH EVIDENCE IS AN UNNECESSARY BAR TO ENLIGHTENMENT. IT IS ALSO AN INCURSION INTO THE AUTHORITY OF THE TRIAL COURT. SEE GENERAL ELECTRIC CO. V. JOINER, 118 S.CT. 512, 515 (1997) (DECISION OF TRIAL COURT TO ADMIT OR EXCLUDE EXPERT TESTIMONY IS REVIEWED ON ABUSE OF DISCRETION STANDARD). THE REAL ISSUE WITH RESPECT TO SUCH EVIDENCE IS NOT THE THRESHOLD QUESTION OF ADMISSIBILITY, AS THIS COURT APPEARS TO HOLD, BUT OF WEIGHT, UPON EXAMINATION OF THE EVIDENCE AND IN CONJUNCTION WITH THE OTHER EVIDENCE. THESE TOO ARE MATTERS FOR THE TRIAL JUDGE, AND WHEN THE THRESHOLD CRITERIA OF RELEVANCE AND RELIABILITY ARE MET, SEE DAUBERT, THE EVIDENCE SHOULD BE RECEIVED AND CONSIDERED AS APPROPRIATE TO ITS CREDIBILITY AND WEIGHT. IT FOLLOWS THAT THE TRIAL COURT'S FACTUAL FINDINGS WITH RESPECT TO EVIDENCE RELEVANT TO CLAIM INTERPRETATION SHOULD BE TREATED, ON APPEAL, LIKE ANY OTHER FINDING OF THE TRIAL COURT. THUS IT IS QUITE DISCOURAGING TO OBSERVE THIS EN BANC RULING WHEREIN THE FEDERAL CIRCUIT PROHIBITS ITSELF FROM CONSIDERING THE FINDINGS OF FACT MADE BY THE TRIAL COURT. THE MAJORITY OPINION DISAVOWS THIS COURT'S PRIOR STATEMENT THAT "[T]HE DISTRICT COURT'S FINDINGS OF SCIENTIFIC/TECHNOLOGICAL FACT WERE MATERIAL TO THE ISSUE OF CONSTRUCTION OF THE TERM." THIS DISAVOWAL DEPRIVES THE COURT, AND THE PARTIES, OF THE ACCUMULATED PROGRESS AND EXPERIENCE OF THE TRIAL, INCLUDING THE FINDINGS OF THE TRIAL JUDGE, AND LEAVES US ON APPEAL WITH AN EXPURGATED RECORD AND GENERALLY INFERIOR BASIS OF DECISION. RECOGNIZING THAT OUR APPELLATE ROLE IS TO DECIDE WHETHER THE CLAIMS WERE CORRECTLY INTERPRETED IN LIGHT OF ALL OF THE EVIDENCE, IT IS MYSTERIOUS WHY WE CHOOSE TO SELF-CENSOR WHAT WE WILL CONSIDER ON APPEAL. IT IS EQUALLY OBSCURE WHY THIS COURT WOULD PROHIBIT ITSELF FROM RELYING ON A TRIAL COURT'S FINDINGS, OR FROM CHOOSING BETWEEN DISPUTED EXPERT POSITIONS. I STRONGLY DISAGREE WITH THE MAJORITY'S VIEW OF THE ROLE OF EXTRINSIC EVIDENCE, AT TRIAL AND AS CONSIDERED ON APPEAL. IN CONTRAST, A RETURN TO THE TRADITIONAL TRIAL/APPELLATE RELATIONSHIP WOULD ACHIEVE SEVERAL IMPORTANT RESULTS. IT WOULD RATIONALIZE THE ADMISSIBILITY OF RELEVANT EXTRINSIC EVIDENCE, APPELLATE DEFERENCE WOULD BE RESTORED INSTEAD OF DISAVOWED, AND APPELLATE REVIEW WOULD BE IN ACCORDANCE WITH THE RULES. THE PROCESSES OF BOTH TRIAL AND APPEAL WOULD BENEFIT. THIS IS PARTICULARLY IMPORTANT BECAUSE THE EVIDENCE INVOLVED IN CLAIM INTERPRETATION, WHETHER INTRINSIC OR EXTRINSIC, IS OFTEN SCIENTIFIC OR TECHNOLOGIC. THE EVIDENCE OF WHAT THE INVENTION IS, HOW IT WORKS, WHAT THE TECHNICAL WORDS MEANT TO PERSONS IN THE FIELD AT SOME PAST TIME, CAN BE OF EXTREME COMPLEXITY. WHEN THERE IS A DISPUTE AS TO WHAT A TERM OF TECHNICAL ART OR USAGE MEANS OR ENCOMPASSES, SUCH EVIDENCE IS RELEVANT AND OFTEN IS INDISPENSABLE. WHY WOULD OUR COURT FORECLOSE, OR PLACE OBSTACLES IN THE PATH OF, ADDUCING AND CONSIDERING SUCH EVIDENCE? SURELY THE BETTER VIEW IS TO ENCOURAGE JUDICIAL ACCESS TO SCIENTIFIC EVIDENCE AND FINDINGS BASED THEREON. THE ULTIMATE BENEFICIARY WOULD BE THE PARTIES, FOR THE COURTS WOULD BE LESS RESTRICTED IN THE SEARCH FOR THE CORRECT AND JUST RESULT IN PATENT CASES. THUS I MUST, RESPECTFULLY, DISSENT FROM THE COURT'S RULINGS ON THESE ISSUES. FOOTNOTES * CHIEF JUDGE HALDANE ROBERT MAYER ASSUMED THE POSITION OF CHIEF JUDGE ON DECEMBER 25, 1997. ** SENIOR CIRCUIT JUDGE GLENN L. ARCHER, JR. VACATED THE POSITION OF CHIEF JUDGE ON DECEMBER 24, 1997. 1 THE ACTUAL PATENT CLAIM IS NOT WRITTEN IN PARAGRAPH FORM AS SHOWN HERE; WE HAVE ADDED THE BREAKS FOR EASE OF REFERENCE TO THE CLAIMТS LIMITATIONS. 2 BOTH FASTAR AND FAS TECHNOLOGIES FILED AN ANSWER TO CYBORТS COMPLAINT. FASTAR ALONE ORIGINALLY FILED THE COUNTERCLAIM, BUT FAS TECHNOLOGIES WAS JOINED AS A COUNTERCLAIMANT AFTER THE JURY TRIAL ON LIABILITY WAS COMPLETED. 3 IT IS DIFFICULT TO RECONCILE THE LANGUAGE AND REASONING IN THIS COURT'S RECENT OPINION IN FROMSON V. ANITEC PRINTING PLATES, INC., 132 F.3D 1437, 45 USPQ2D 1269 (FED. CIR. 1997), WITH MARKMAN I, ALTHOUGH THE OPINION PURPORTS TO DO SO. AS WE STATED IN MARKMAN I, "EXTRANEOUS EVIDENCE [SUCH AS THE EXPERT TESTIMONY IN FROMSON] IS TO BE USED FOR THE COURT'S UNDERSTANDING OF THE PATENT" AND IN DOING SO, THE COURT "IS NOT CREDITING CERTAIN EVIDENCE OVER OTHER EVIDENCE OR MAKING FACTUAL EVIDENTIARY FINDINGS." MARKMAN I, 52 F.3D AT 981, 34 USPQ2D AT 1331 (EMPHASIS IN ORIGINAL). RATHER, WE CONSIDERED SUCH EVIDENCE TO BE AN AID TO THE COURT IN COMING TO A CORRECT CONCLUSION AS TO THE TRUE MEANING OF THE LANGUAGE EMPLOYED IN THE PATENT. SEE ID. AT 980, 34 USPQ2D AT 1330. THE SUPREME COURT IN EFFECT CONFIRMED THIS WHEN IT STATED THAT THE CREDIBILITY DETERMINATIONS AMONG EXPERTS "WILL BE SUBSUMED WITHIN THE NECESSARILY SOPHISTICATED ANALYSIS OF THE WHOLE DOCUMENT." MARKMAN II, 116 S. CT. AT 1395. IN FROMSON, THE DISTRICT COURT "RELIED PRIMARILY ON THE '754 SPECIFICATION WHICH DESCRIBES FROMSON'S FIRST ANODIZATION STEP AS PRODUCING [A] POROUS OXIDE" BARRIER. FROMSON, 132 F.3D AT 1442, 45 USPQ2D AT 1272. ALTHOUGH THE EXTRINSIC EVIDENCE Ц EXPERT TESTIMONY, PRIOR ART, AND SCIENTIFIC TESTS Ц CONFIRMED THE DISTRICT COURT'S CLAIM CONSTRUCTION, IT WAS DIRECTED PRIMARILY TO WHETHER ANITEC'S THIN, NONPOROUS OXIDE LAYER INFRINGED THE CLAIMS. TO THIS EXTENT, THE HOLDING IN FROMSON AFFIRMING THE DISTRICT COURT'S CLAIM INTERPRETATION FOLLOWS MARKMAN I. SEE BELL & HOWELL DOCUMENT MANAGEMENT V. ALTEK SYS., 132 F.3D 701, 705-06, 45 USPQ2D 1034, 1038 (FED. CIR. 1997); VITRONICS CORP. V. CONCEPTRONIC, INC., 90 F.3D 1576, 1584, 39 USPQ2D 1573, 1578 (FED. CIR. 1996). 4 IF THIS WERE SO, SURELY THE SUPREME COURT WOULD HAVE DISCUSSED WHETHER SUBSIDIARY OR UNDERLYING FACT QUESTIONS SHOULD BE DECIDED BY THE JUDGE OR THE JURY. 5 BECAUSE CYBOR'S CLAIM CONSTRUCTION ARGUMENTS RELATE TO THE NARROWING OF CLAIM SCOPE REQUIRED BY PROSECUTION HISTORY, WE NEED NOT CONSIDER WHETHER EQUIVALENCE UNDER з 112, 6 IS A QUESTION OF LAW OR FACT. SEE MARKMAN I, 52 F.3D AT 977 N.8, 34 USPQ2D AT 1327 N.8. HERE, THE QUESTION OF EQUIVALENCE WAS GIVEN TO THE JURY AND CYBOR DOES NOT CHALLENGE THE EQUIVALENCE OF ITS ACCUSED DEVICE IF PROSECUTION HISTORY DOES NOT NARROW THE SCOPE OF THE CLAIMS AS CYBOR ARGUES. ONE CONCURRING OPINION ALSO RECOGNIZES THAT CYBOR'S CLAIM CONSTRUCTION ARGUMENTS RELATE SOLELY TO WHETHER THE PROSECUTION HISTORY REQUIRES THE EXCLUSION OF THE EXTERNAL "RESERVOIR STRUCTURES LIKE CYBOR'S FROM CONSIDERATION AS AN EQUIVALENT UNDER з 112(6)." SEE OPINION CONCURRING IN THE JUDGMENT OF CHIEF JUDGE MAYER, INFRA, AT 13-14. 6 CYBOR CONTENDS THAT THE JURY WAS NOT ADEQUATELY INSTRUCTED ON THE MEANING OF THE CLAIMS. WE NOTE, HOWEVER, THAT THIS CASE WAS TRIED BEFORE MARKMAN I AND THAT, WHILE A FULLER INSTRUCTION TO THE JURY ON THE MEANING OF THE CLAIM MIGHT BE DESIRABLE, THE INSTRUCTIONS WERE NOT ERRONEOUS. MOREOVER, THE DISTRICT COURT'S DENIAL OF THE MOTION FOR RECONSIDERATION APPROVED THE ADDITIONAL, PRESUMPTIVE CONSTRUCTION OF THE CLAIMS BY THE JURY. 7 ONE CONCURRING OPINION SUGGESTS THAT THIS COURT CANNOT AFFIRM THE DECISION BELOW UNDER A DE NOVO STANDARD OF REVIEW, ASSERTING THAT THE BASIS FOR THE JURY'S DECISION IS UNCLEAR. WE DISAGREE THAT THE JURY COULD HAVE HAD IN MIND THE SEVERAL VARIATIONS POSITED BY THE CONCURRENCE. IT IS PATENTLY IMPOSSIBLE FOR CYBOR'S PUMP, WITHOUT A RESERVOIR, TO PERFORM THE FUNCTIONS CALLED FOR BY THE PATENT. THUS, THE JURY HAD TO CONSIDER THE COMBINATION OF CYBOR'S PUMP AND THE EXTERNAL, ATTACHED RESERVOIR AS BEING A "PUMPING MEANS" EQUIVALENT TO THE STRUCTURE DISCLOSED IN THE PATENT, WHICH CONSISTED OF A PUMP WITH AN INTERNAL RESERVOIR. 1 RATHER THAN BLUNTLY FORCE THE SQUARE PEG OF CLAIM CONSTRUCTION INTO THE ROUND HOLE OF FACT OR LAW, THE COURT DESCRIBED THE QUESTIONS PRESENTED BY CLAIM CONSTRUCTION IN MORE CHARY TERMS: У[B]UT THE SOUNDER COURSE, WHEN AVAILABLE, IS TO CLASSIFY A MONGREL PRACTICE,Ф УNO CLEAR ANSWERS,Ф УIN THEORY THERE COULD BE A CASE,Ф УLEAVES US DOUBTFUL,Ф У[I]N THE MAIN,Ф У[W]E ACCORDINGLY THINK THERE IS SUFFICIENT REASON TO TREAT CONSTRUCTION OF TERMS OF ART LIKE MANY OTHER RESPONSIBILITIES THAT WE CEDED TO A JUDGE,Ф УINDEPENDENT REASON TO ALLOCATE,Ф УTREATING INTERPRETIVE ISSUES AS PURELY LEGAL WILL PROMOTE . . . .Ф MARKMAN, 116 S. CT. 1390-96 (EMPHASIS ADDED). EVEN A CURSORY READING OF THAT OPINION INDICATES THAT THE COURT MEANT TO DETERMINE WHO SHOULD INTERPRET THE CLAIMS, WITHOUT MANDATING A STANDARD OF APPELLATE REVIEW TO BE USED UNDER ALL CIRCUMSTANCES. 2 ALTHOUGH HAVING A JURY MAKE A LEGAL DETERMINATION OF THE EFFECT OF STATEMENTS MADE DURING PROSECUTION OF THE PATENT IS ERROR, ALONE THIS ERROR WAS HARMLESS BECAUSE TO FIND INFRINGEMENT, THE JURY MUST HAVE ARRIVED AT THE SAME LEGAL CONCLUSION THAT WE DID ON APPEAL: THAT THE PROSECUTION HISTORY DOES NOT EXCLUDE CYBORТS EXTERNAL RESERVOIR FROM THE JURYТS CONSIDERATION OF EQUIVALENTS UNDER PARAGRAPH 112(6). 3 FINDINGS OF FACT ARE PRESUMED WHERE THEY WOULD BE NECESSARY TO SUPPORT A JURYТS VERDICT. SEE PERKINS-ELMER CORP. V. COMPUTERVISION CORP., 732 F.2D 888, 893, 221 USPQ 669, 673 (FED. CIR. 1984) (УTO FACILITATE REVIEW ON A MOTION FOR [JUDGMENT AS A MATTER OF LAW] AND ON APPEAL, IT IS PREFERRED THAT A JURY BE PROVIDED WITH SPECIAL INTERROGATORIES DESIGNED TO REVEAL MORE CLEARLY THE FINDINGS IT MADE. ABSENT SUCH INTERROGATORIES, THE LAW PRESUMES THE EXISTENCE OF FINDINGS NECESSARY TO SUPPORT THE VERDICT THE JURY REACHED.Ф); SEE ALSO RAILROAD DYNAMICS, INC. V. A. STUCKI CO., 727 F.2D 1506, 1516, 220 USPQ 929, 939 (FED. CIR. 1984). 8 IN FACT, THE DISTRICT COURT SUBMITTED THIS CASE TO A JURY BEFORE THIS COURT DECIDED MARKMAN V. WESTVIEW INSTRUMENTS, INC., 52 F.3D 967, 979, 34 USPQ2D 1321, 1329 (FED. CIR. 1995) (MARKMAN I). THUS, THE DISTRICT COURTТS JURY INSTRUCTIONS ONLY PARTIALLY CONSTRUED THE CLAIMS, AND THE EN BANC OPINION RELIES, AS IT MUST, UPON WHAT IT PRESUMES MUST HAVE BEEN THE JURYТS CLAIM CONSTRUCTION. NOR DID THE DISTRICT COURT DELIBERATELY ACCEPT AND RELY UPON EXPERT TESTIMONY TO UNDERSTAND AND INTERPRET THE CLAIM TERMS, A CENTRAL ISSUE IN MARKMAN I. HEEDLESS OF THESE PROBLEMS, THIS COURT HAS SELECTED THIS CASE FOR EN BANC REVIEW. FROMSON V. ANITEC PRINTING PLATES, INC., 132 F.3D 1437, 45 USPQ2D 1269 (FED. CIR. 1997), MAY HAVE BEEN A MORE SUITABLE CHOICE FOR MEANINGFUL EN BANC CONSIDERATION OF THE ISSUE OF APPELLATE DEFERENCE IN CLAIM CONSTRUCTION. THE DISTRICT COURT DECIDED FROMSON BY APPLYING THE MARKMAN I REGIME. THE FROMSON DISTRICT COURT ALSO RELIED UPON EXTRINSIC EVIDENCE AND FINDINGS OF SCIENTIFIC/TECHNOLOGIC FACT TO INTERPRET THE MEANING OF CLAIM TERMS TO ONE OF ORDINARY SKILL IN THE ART AT THE TIME OF THE INVENTION (OVER TWENTY YEARS AGO). THUS, THE FACTS OF FROMSON MIGHT HAVE BETTER ILLUSTRATED HOW DIFFERENT STANDARDS OF REVIEW CAN DIRECT THE OUTCOME ON APPEAL. 9 THE FOLLOWING IS AN INCOMPLETE LIST OF PROCEDURAL DEVIATIONS REQUIRED BY MARKMAN I: 1. MULTIPLE TRIALS, PROBLEM I: IF HEARINGS ARE NECESSARY TO INTERPRET COMPLEX CLAIMS, THE TRIAL COURT MUST SET ASIDE TIME IN ITS CROWDED DOCKET FOR ONE PROCEEDING TO INTERPRET CLAIMS AND A SECOND (POTENTIALLY WITH A JURY) TO DETERMINE INFRINGEMENT AND OTHER ISSUES. 2. CLAIM INTERPRETATION, PROBLEM I: FEARING THAT IT MAY NOT RECEIVE THE OPPORTUNITY TO SUPPLEMENT EXPERT REPORTS OR REOPEN DISCOVERY AFTER THE JUDGEТS INTERPRETATION, A PARTY OFTEN ARGUES ALTERNATIVE CLAIM CONSTRUCTION THEORIES FROM THE OUTSET OF LITIGATION. THIS EXTENDS THE TIME AND EXPENSE OF THE CLAIM INTERPRETATION PROCEEDINGS. 3. BIAS TOWARD SUMMARY JUDGMENTS: IN PRACTICAL TERMS, MARKMAN I DIRECTS THE PROCEEDINGS TOWARD SUMMARY JUDGMENT ON THE CENTRAL ISSUE OF THE LITIGATION AT A POTENTIALLY PREMATURE STAGE OF ISSUE DEVELOPMENT. PREMATURELY ADDRESSING ISSUES, EVEN AT THE APPELLATE LEVEL, CAN RESULT IN EXPENSIVE REPETITION OF EFFORT. SEE CVI/BETA VENTURES, INC. V. TURA LP, 112 F.3D 1146, 1157-58, 1160 N.7, 42 USPQ2D 1577, 1585, 1587 N.7 (FED. CIR. 1997) (FINDING ERROR IN A CLAIM CONSTRUCTION THAT HAD BEEN AFFIRMED IN AN EARLIER APPEAL), CERT. DENIED, 118 S. CT. 1039 (1998). 4. CLAIM INTERPRETATION, PROBLEM II: AS SOON AS THE TRIAL COURT ISSUES A CLAIM INTERPRETATION, BOTH SIDES OFTEN SEEK TO SHIFT THEIR ORIGINAL CLAIM INTERPRETATIONS TO ACCOMMODATE THE JUDGEТS VIEWS. THUS, THE PARTIES SEEK TO REVISE EXPERT REPORTS OR REOPEN DISCOVERY TO ACCOUNT FOR THE JUDGEТS INTERPRETATION. THIS MANEUVERING LEADS TO PROCEDURAL BATTLES OVER SURPRISE AND MOTIONS FOR ADDITIONAL TIME TO PREPARE FOR TRIAL. SEE LORAL FAIRCHILD CORP. V. VICTOR CO., 906 F. SUPP. 798 (E.D.N.Y. 1995) (INTERPRETING CLAIMS); LORAL FAIRCHILD CORP. V. VICTOR CO., 911 F. SUPP 76, 80-81 (E.D.N.Y. 1996) (PREVENTING PLAINTIFF FROM CHANGING THEORY OF INFRINGEMENT IN RESPONSE TO CLAIM INTERPRETATION). 5. THE NEW EVIDENCE DILEMMA: AS A RESULT OF THE NEW AND PERHAPS SOMEWHAT UNEXPECTED INTERPRETATION, THE PARTIES SCRAMBLE TO CREATE AND ACQUIRE NEW EVIDENCE FOR THEIR INFRINGEMENT ARGUMENTS. 6. THE LEARNING CURVE PROBLEM: LIKE ALL HUMAN ENDEAVORS, CLAIM INTERPRETATION IS A LEARNING PROCESS. THE TRIAL JUDGE MAKES EVERY EFFORT TO STATE THE PRECISE SCOPE OF THE CLAIMS AT THE CLOSE OF THE INITIAL PROCEEDING, BUT OFTEN, WITH THE ADDITIONAL LEARNING DURING THE INFRINGEMENT TRIAL, REALIZES THAT THE INITIAL INTERPRETATION WAS TOO BROAD OR TOO NARROW IN SOME RESPECTS. THE JUDGE THEN FACES THE DILEMMA OF CHANGING THE RULES IN THE MIDDLE OF THE GAME. 7. THE JUDGE AS A TRIAL ISSUE: WITH THE JUDGEТS CLAIM INTERPRETATION CENTRAL TO THE ISSUES OF INFRINGEMENT, TRIAL COUNSEL WILL TRY TO EXPLOIT THE JUDGEТS STATURE WITH THE JURY TO SHOW THAT THE COURT IS ON THEIR SIDE. 8. MULTIPLE TRIALS, PROBLEM II: IN THE WORDS OF UNITED STATES DISTRICT COURT JUDGE RODERICK MCKELVIE: У[I]N SPITE OF A TRIAL JUDGEТS RULING ON THE MEANING OF DISPUTED WORDS IN A CLAIM, SHOULD A THREE-JUDGE PANEL OF THE FEDERAL CIRCUIT DISAGREE, THE ENTIRE CASE COULD BE REMANDED FOR RETRIAL ON [A] DIFFERENT [CLAIM INTERPRETATION].Ф ELF ATOCHEM NORTH AM., INC. V. LIBBEY-OWENS-FORD CO., 894 F. SUPP. 844, 857, 37 USPQ2D 1065, 1075 (D. DEL. 1995). TRIAL JUDGES CAN OFTEN ADDRESS EACH OF THE ABOVE WITH CAREFUL CASE MANAGEMENT, BUT AT THE COST OF EXPENDING SCARCE TRIAL COURT RESOURCES. 10 THREE VARIABLES AFFECT THE SETTLEMENT CALCULUS OF EACH PARTY TO LITIGATION: P, THE PROBABILITY OF THE PLAINTIFF OBTAINING DAMAGES; J, THE EXPECTED VALUE OF A JUDGMENT FOR THE PLAINTIFF; AND C, THE COST OF LITIGATION. SEE RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 89-94 (1996). IF P X J (PJ) EXCEEDS C, THEN PLAINTIFF WILL SUE. THE PLAINTIFF VALUES THE CASE AT PJ - C. IF THE DEFENDANT AGREES ON THE VALUES ASSIGNED TO THE VARIABLES, THE SUIT WILL COST HIM PJ + C. THIS ROUGH MODEL POSES AN INTERESTING QUESTION. BECAUSE THE COSTS OF LITIGATION INVARIABLY EXCEED THE COSTS OF SETTLEMENT, WHY DO NOT ALL CASES SETTLE? CHIEF JUDGE POSNER ANSWERS: У[U]NCERTAINTY AS TO OUTCOME IS THE KEY TO THE SETTLEMENT RATE . . . .Ф ID. AT 90. THIS UNCERTAINTY LEADS EACH PARTY TO OVERESTIMATE ITS CHANCE OF PREVAILING. ACCORDINGLY, EACH PARTY WILL ASSIGN DIFFERENT VALUES TO THE VARIABLES, MOST NOTABLY P, THEREBY DIMINISHING THE LIKELIHOOD OF SETTLEMENT. 11 THIS FIGURE IS BASED ON A SURVEY OF EVERY PATENT DECISION RENDERED BY THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT BETWEEN 5 APRIL 1995 (THE DATE MARKMAN I WAS DECIDED) AND 24 NOVEMBER 1997. A TOTAL OF 246 PATENT CASES, ORIGINATING IN THE BOARD OF PATENT APPEALS AND INTERFERENCES (BPAI), THE DISTRICT COURTS, AND THE COURT OF FEDERAL CLAIMS, WERE EVALUATED. OF THE 246 CASES, 141 CASES EXPRESSLY REVIEWED CLAIM CONSTRUCTION ISSUES. AMONG THESE 141 DECISIONS, THIS COURT REVERSED, IN WHOLE OR IN PART, 54 OR 38.3% OF ALL CLAIM CONSTRUCTIONS. WITH RESPECT TO THE DISTRICT COURT AND COURT OF FEDERAL CLAIMS CASES, THE RATE OF REVERSAL OF CLAIM CONSTRUCTIONS IS 47 OUT OF 126 OR 37.3%. 12 THESE NECESSARY STRICTURES CONTRIBUTE TO THE FEDERAL CIRCUITТS PERCEPTION OF CLAIM CONSTRUCTION. PRESSURED BY THESE NECESSARY RULES, PARTIES BEFORE THE FEDERAL CIRCUIT STRIVE MIGHTILY TO REDUCE THEIR CASES TO A FEW ISSUES CONTROLLED BY A FEW PASSAGES FROM THE SPECIFICATION OR THE PROSECUTION HISTORY. FOR THESE REASONS, THE APPEAL PROCESS DOES NOT PRESENT A FAIR PICTURE OF THE COMPLEX TASK OF UNTANGLING THE KNOT OF LEGAL AND FACTUAL ISSUES PRESENTED FOR TRIAL. A SEEMINGLY SIMPLE ISSUE OF CLAIM CONSTRUCTION ON APPEAL TAKES ON AN ENTIRELY DIFFERENT COMPLEXION IN ITS PROPER CONTEXT AS ONE TINY FACET OF A MASSIVE CORPUS OF LITIGATION. 13 IN 1993 THE CARNEGIE COMMISSION ON SCIENCE, TECHNOLOGY, AND GOVERNMENT WROTE: THE COURTS' ABILITY TO HANDLE COMPLEX SCIENCE-RICH CASES HAS RECENTLY BEEN CALLED INTO QUESTION, WITH WIDESPREAD ALLEGATIONS THAT THE JUDICIAL SYSTEM IS INCREASINGLY UNABLE TO MANAGE AND ADJUDICATE SCIENCE AND TECHNOLOGY ISSUES. REPORT, MARCH 1993, P. 11.
	OPINION/ORDER With him on the brief was Michael B. Patent and trademark infringement. 1 The complaint in this case is ninety five pages long. At issue here is McZeal's allegation that Sprint Nextel infringes his service mark INTERNATIONAL WALKIE TALKIEо. 2 He similarly contends that Sprint Nextel infringes U.S. The trial court conducted a hearing shortly after the complaint was filed. The remaining counts of the complaint were not addressed at the trial level. McZeal made clear that the INTERNATIONAL WALKIE TALKIEо mark was at issue. Contrary to his assertions in his Reply brief:
	INTERMATIC INCORPORATED V. THE LAMSON & SESSIONS CO., 1116 and for plaintiff appellant in 01 1128.
	OPINION/ORDER With him on the brief was Anthony A. Of counsel on the brief was Craig N. Of counsel was Kevin P.B. With him on the brief were James F. Of counsel were Stephen C. I A commonly configured pulse oximeter contains a sensor that is attached to a portion of a patient's body where there is strong blood flow. The red light and the infrared light are absorbed in different amounts. More light is detected when there is less blood in the finger and less light is detected when there is more blood in the finger. Processing the time measure collectively to determine a composite waveform having a relative maximum and minimum amplitude corresponding to a composite periodic waveform of the periodic information in the time measure so that the aperiodic information present in the time measure is attenuated and filtered from the composite. Claim 20 is an apparatus claim corresponding to the method of claim 1. The court also ruled that the minimum amplitude of the composite periodic waveform must be part of the composite and that it must be determined and used only after the composite waveform is generated.
	OPINION/ORDER With him on the brief were Bruce D. With him on the brief were Robert A. This case is the second appeal to this court in a patent litigation between Cross Medical Products. The court determined that claim 5 of the '555 patent was infringed under the doctrine of equivalents by Medtronic's redesigned screws. That claim 7 of the '555 patent was not infringed by either the original or redesigned screws. The district court did not have the benefit of this court's opinion in the First Appeal before issuing the second permanent injunction. 424 F.3d at 1299. 05 1415 2 While the first appeal was pending. The district court determined that a narrowing amendment to claim 5 during prosecution was only
	GENETIC IMPLANT V. CORE-VENT
	DOOR-MASTER CORP. V. YORKETOWN Argued for plaintiff cross appellant.
	ASYST TECHNOLOGIES, INC., V. EMPAK Argued for plaintiff appellant.
	JOHN D. WATTS V. XL SYSTEMS, INC. With him on the brief was Winstol D. ) were written in means plus function format and were not infringed by the products of XL Systems. S holding that the sealing limitation of the claims is in means plus function format. Are directed toward connecting sections of pipe together. Their primary application is in the oil well industry in which miles of pipe may need to be dropped into a hole. Which are typically forty feet long and twenty inches wide and are connected together. The joints are commonly connected together in one of two ways. The first uses an integral connection in which the joints themselves have mating threads allowing the joints to be connected directly to each other. The second uses a coupling connection in which the joints still have threads. Are connected to a coupling which is disposed between two successive joints. 411 patents disclose joints and couplings with increased sealing and strength characteristics to accommodate the large and varied forces to which oil well pipes are exposed.
	EATON CORPORATION V. ROCKWELL INTERNATIONAL Will &. With him on the brief were Donna M. Blinkova.а Of counsel on the brief were Michael H. Argued for defendants appellants.а With him on the brief were Jerold B. Jr.а Of counsel was M. Line height:200%'>BACKGROUND Eaton and Meritor are competitors in the market for heavy duty truck transmissions.а Heavy duty trucks such as eighteen wheelers often have ten or more gears. Causing the gears of the engine to rotate at a speed that will allow the driver. At which time the driver shifts. Both Eaton and Meritor have attempted to design transmissions that simplify and improve the shifting process.а Eaton has developed a transmission that uses automatic shifting in the higher gears and manual shifting in the lower gears.а Using automatic shifting in only the top gears can permit optimal highway fuel economy while preventing the costs of automating from exceeding the savings from improved fuel economy.а One disadvantage of automatic shifting is that an unexpected shift can cause the driver to lose control of the truck.
	OPINION/ORDER UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
	OPINION/ORDER With him on the brief were Frank B. This problem is particularly pronounced during down shifting because of the need to move the drive train from a smaller to a larger sprocket. Overshifting is movement of the shift actuator briefly beyond a destination position to take up all of the collective slack in the system and move the drive chain slightly beyond the destination sprocket before bringing the shift actuator back to its destination position and allowing the drive chain to move back into alignment with the destination sprocket. Most gear shifting systems of the prior art do not have any built in mechanism to accomplish an overshift so as to provide a solution to the problem of cumulative lost motion. That is. No overshifting movement of the shift actuator is required because the cumulative lost motion inherent in the system is always taken up by an internal mechanism.
	GUINN V. KOPF
	MAGNIVISION, INC. V. BONNEAU COMPANY
	OPINION/ORDER With him on the brief was Malcolm K. With him on the brief were Edward R. With her on the notice of joinder were Peter D. Of counsel was Susan L. Was pending before the PTO. Iowa filed a motion that claim 205 was not patentable to California under 35 U.S.C. з 135(b)(1). California challenges the Board's conclusion that the correct inquiry under з 135(b)(1) asks whether claims 202 204 contain material differences from claim 205 and not whether claims 202 204 are to the same invention as claims in the '646 patent. Is a question of law that this court reviews without deference. Section 135(b)(1) states: A claim which is the same as. A claim of an issued patent may not be made in any application unless such a claim is made prior to one year from the date on which the patent was granted. 35 U.S.C. з 135(b)(1) (2000). Where the
	HONEYWELL V. VICTOR COMPANY OF JAPAN Argued for defendants appellees.
	INSITUFORM TECHNOLOGIES V. CAT
	OPINION/ORDER
	GLAXO V. TORPHARM
	WINNER INTERNATIONAL ROYALTY CORP. V. CHING-RONG WANG Of counsel on the brief was Charles L. With him on the brief were Mary L. Of counsel on the brief were Charles R. ) would not have been obvious in light of the cited prior art. See Winner Int l Royalty Corp. v. The 411 application are owned by Winner International Royalty Corp. (". This case was submitted for our decision following oral argument on August 2. The commercial embodiment of which is the original steering wheel anti theft device known as ". Is named as the inventor in the 047 patent. Commercial embodiments of which are known as ". The 047 patent discloses an automobile anti theft device that is mounted across the steering wheel and is locked in place by use of a self locking ratcheting mechanism. The ratcheting mechanism is different from the dead bolt used in Johnson and so the 047 patent may be thought of as an improvement over Johnson. While Johnson s dead bolt system is more secure. It is not as convenient as the ratcheting mechanism claimed in the 047 patent because a key is required to lock the Johnson device in place while the 047 patent discloses a device that locks itself without use of a key.
	OPINION/ORDER With him on the brief was Nathan P. With him on the brief was William Reid Kincaid. The FFR Cooperative who have since been dismissed from the suit by stipulation. 05 1440 2 1 As alleged in the First Amended Complaint. Pennington alleged in the Original Complaint and First Amended Complaint that the University and all four of the University Officials
	OPINION/ORDER Argued for plaintiffs appellants.
	OPINION/ORDER With him on the brief were Norwood Robinson and Michael L. With him on the brief was Brett M. Of counsel on the brief was Peter J. That the six design patents in suit were not infringed and that four of the design patents in suit were invalid for prior public use under 35 U.S.C. з 102(b). The Parties Bernhardt is the intellectual property licensing unit of Bernhardt Furniture Co. Is disputed. Collezione is a New Jersey corporation which imports and sells furniture. Each of Bernhardt's furniture designs is assigned a six digit
	OPINION/ORDER With him on the brief were L. With him on the brief was Jeffrey D. Because we conclude that the application of the doctrine of equivalents was proper. Which are assigned to Primos. Is an embodiment of the invention: As depicted in that figure. The diaphragm mouth call is placed completely within the user's mouth. The sound produced by the call is affected by the tongue pressure applied to the membrane and the distance between the membrane and the roof of the mouth. Relevant to this appeal are claim 2 of the '578 patent and claim 21 of the '567 patent. The accused Tone Trough is a diaphragm mouth call device that. The court construed the term
	MONON CORPORATION V. STOUGHTON TRAILERS, INC. With him on the brief was Mark M. Oral argument was heard on October 3. Because we find that the patentee raised a genuine issue of material fact as to whether its sale of a tractor truck trailer prior to the critical date of its patent was primarily experimental. Thus was not a ". Because the judgment is based on a finding of lack of deceptive intent that is not clearly erroneous.
	MEDICHEM V. ROLABO Argued for plaintiff appellant.а With him on the brief were James K. Argued for defendant cross appellant.а On the brief were Jeffrey S. Appeals the decision of the United States District Court for the Southern District of New York following a bench trial that there was no interference in fact under 35 U.S.C. з 291 between the claimed inventions of U.S. 2002) ( District Court Opinion ).а Rolabo cross appeals the district court s conclusion that this was not an exceptional case under 35 U.S.C. з . Reverse its conclusion that the 827 patent was neither anticipated nor obvious in light of the 100 patent. Remand for further proceedings consistent with this opinion.а As further proceedings are necessary. 285 is at this time premature. а With him on the brief were Keith D. Nowak and Abbey Green.а Of counsel on the brief were William J. Michigan.а Also of counsel on the brief was Bruce M. Argued for defendants appellees.а With him on the brief were Stephen D. Mso bidi font family:
	AMERICAN BIOSCIENCE V. TOMMY THOMPSON With him on the briefs were Carlton A. With him on the brief were David W. With him on the brief was Richard M. 401 U.S. 402 (1971).
	OPINION/ORDER With him on the brief were Joseph S. The polarity of the magnet elements (8) are reversed along the direction of the carrying rail.
	OPINION/ORDER With him on the brief was Louis S. Of counsel on the brief was Jeffery A. With him on the brief was Martin L. Of counsel on the brief was Manotti L. The primary feature of the invention is an insert within the body of the bat that improves the bat's hitting properties. Element 26 is
	NEOMAGIC CORPORATION V. TRIDENT MICROSYSTEMS Will &. Argued for plaintiff appellant.
	ENZO V. GEAPAG
	HOME DIAGNOSTICS, INC. V. LIFESCAN, INC. Argued for plaintiff appellee.а With her on the brief were Herbert H. Argued for defendant appellant.а With her on the brief were Joseph Lucci. Without having determined the time at which the sample was initially applied to the matrix pad. а In an effort to facilitate this appeal. The district court entered a judgment of noninfringement for HDI and dismissed LifeScan s infringement counterclaim.а The district court s order was rendered final under Federal Rule of Civil Procedure 54(b). The '667 interference count involved all of the claims of Rexam's U.S. It is this section 146 proceeding. From which the certified questions that are the subject of this appeal arise. The '738 Interference After Avery and Kodak became aware that the Board would probably declare an interference between Avery's U.S. Kodak also reasserted its arguments that the claims in Rexam's patent were invalid and/or unenforceable. After the Board's decision in the '738 interference became final. Rexam also argues that the section 146 action is moot as a result of Kodak's loss in the '738 interference. Where the Board had decided the issue of priority in favor of Kwon even though it also determined that the invention of the interference count was unpatentable to Kwon under 35 U.S.C. 102(b)/103.
	APOTEX USA V. MERCK Argued for plaintiff appellant.
	OPINION/ORDER With him on the brief were Mark H. With him on the brief were Michael J. Petroleum refineries recover valuable products from the heavy residual oil that is a byproduct of the refining process. '714 patent. That recovery process is known as
	OPINION/ORDER With him on the brief was Alexandra A.E. Of counsel on the brief were Matthew B. With him on the brief were Thomas R. Is the assignee of the '178 patent. The invention described in the '178 patent is a tampon applicator designed to enhance the user's control over tampon insertion and placement. The Tampax Pearl applicator is almost identical to the applicator represented in the '178 patent. With the exception that its finger grip area is continuously curved. The curvature was added to the finger grip area of the product in an effort to design around the '178 patent. 04 1200 2 The '178 patent was issued without amendment. Claims 1 and 11 are independent. The remaining claims are dependent. Only claims 1 and 9 are at issue in this proceeding. Ll. 28 33. 04 1200 3 The district court's construction of dependent claim 9 is also challenged on appeal. The parties agree that claim 9 is a means plusfunction claim under 35 U.S.C. з 112 ╢ 6. The abstract reveals that
	OPINION/ORDER
	OPINION/ORDER With him on the brief were Daniel S. With him on the brief was Lara C. This is an appeal from an interference proceeding before the Board of Patent Appeals and Interferences of the United States Patent and Trademark Office (
	GENTEX V. DONNELLY CORP.
	GOODYEAR TIRE V. HERCULES TIRE
	OPINION/ORDER With him on the brief were Robert E. With him on the brief were Kevin R. Appeal the decision of the United States District Court for the Eastern District of Tennessee1 holding that Brooks' action for declaratory judgment that Dutailier's patent is invalid and not infringed constitutes an exceptional case and awarding attorney fees. The award is vacated. 1 Brooks Furniture Mfg. BACKGROUND Dutailier is the owner of United States Patent No. Brooks and Dutailier are both in the business of manufacturing rocking chairs. Brooks filed suit in the Eastern District of Tennessee seeking a declaratory judgment that it did not infringe the '983 patent and that the patent was invalid. Brooks alleged that the action was exceptional pursuant to 35 U.S.C. з285. Concluding that the circumstances of the case were exceptional. The 03 1379 2 district court held that Brooks had clearly prevailed on the infringement issue and was also a prevailing party to the extent that Dutailier's counterclaims had been dismissed by stipulated order.
	HOUSEY PHARMACEUTICALS, INC. V. ASTRAZENECA UK LTD, ET AL. Et. al.а With him on the brief were Denise L. Text indent:.5in'>Also on the brief were John F. Inc.а With him on the brief were Richard L. Pistorino.а Of counsel were Paul D. Text indent:.5in'>Also on the brief was William F. Inc.а With him on the brief was Lisa J. ааааааааааа Also on the brief was Robert L. New York.а With him on the brief were Scott K. Kline.а Of counsel were Jack B. If this construction were not reversed or modified on appeal. Was not erroneous. Line height:200%'>I Housey is the owner by assignment of U.S. . All of which are titled ". Text indent:.25in'>1.а A method of determining whether a substance is an inhibitor or activator of a protein whose production by a cell evokes a responsive change in a phenotypic characteristic other than the level of said protein in said cell per se.
	OPINION/ORDER With him on the briefs were Carlton A. With him on the brief were David W. With him on the brief was Richard M. Although the procedural background of the appeal is complex. Our reasons for vacating and remanding are simple: the administrative record was never filed in court and we cannot tell on what basis the Food and Drug Administration took the agency action the plaintiff seeks to enjoin. The statutory framework is as follows. If new patents claiming the drug or a method of using the drug are filed after the drug has been approved. The statute also includes patent protections when an Ab breviated New Drug Application is filed. Will expire on a particular date. Or (4) that the patent is either invalid or the generic drug will not infringe it. Is central to the case as the parties have framed it. When a generic drug applicant certifies that a patent is invalid or that its proposed generic drug will not infringe upon it. It must also certify that it will give notice to the patent holder that it has entered the Paragraph IV certifica tion.
	OPINION/ORDER With him on the brief was Keith M. With him on the brief were Frederick N. These errors were harmless. USI asserted for the first time that Kidde did not have standing to bring the patent infringement claim at all because the records of the United States Patent & Trademark Office (
	OPINION/ORDER With him on the brief were George M. With him on the brief were Stacey L. Of counsel was Mark A. Because we conclude that the district court erred in conducting a bench trial on the inventorship claim prior to a jury trial on the state law claims when there were common underlying factual issues. BACKGROUND Shum is an optical engineer who worked for many years in the field of optoelectric packaging technology. 1 Shum met Jean Marc Verdiell. Who is also an engineer experienced in the field of optoelectronics. Although Verdiell was still employed with SDL. Shum was named the sole inventor. During the Verdiell was named following months. Radiance was dissolved pursuant to a Plan of Liquidation. That patent Optoelectronic packages are devices that are
	OPINION/ORDER It also illustrates the relationship 7465 between pleading in the district court and federal appellate jurisdiction and serves as a reminder that pleading a patent claim in the complaint will. Federal court jurisdiction was premised on diversity. Because the district court's jurisdiction was based in part on з 1338. Was actually promised. Promised that Breed and his consulting firm
	00-1223, BIO-TECHNOLOGY GEN. V. GENENTECH Argued for plaintiff/counterclaim defendants cross appellants.а With him on the brief wereа Thomasа J. Argued for defendant/counterclaimant appellant.а With him on the brief was John E. Kidd.а Of counsel were Roy E. Is invalid for lack of enablement.а Bio Technology Gen. 36 USPQ2d 1169 (S.D.N.Y. 1995).а This action is affirmed.
	OPINION/ORDER It also illustrates the relationship 7465 between pleading in the district court and federal appellate jurisdiction and serves as a reminder that pleading a patent claim in the complaint will. Federal court jurisdiction was premised on diversity. Because the district court's jurisdiction was based in part on з 1338. Was actually promised. Promised that Breed and his consulting firm
	OPINION/ORDER With him on the brief were Jeffrey I.D. With him on the brief were James H. This court has jurisdiction 1 The '355 patent issued to Guittard et al. and was assigned to Alza. pursuant to 28 U.S.C. з 1295(a)(1). Oxybutynin is a drug used to treat urinary incontinence. Claim 2 of the '355 patent is representative. 2. A. Standard of review Infringement is a question of fact that. A reversal is permitted only when this court is left with a definite and firm conviction that the district court was in error. A claimed invention is unpatentable if the differences between it and the prior art are
	SPRINGS WINDOW FASHIONS LP V. NOVO Argued for plaintiffs appellants.а With him on the brief was John R. Nelson.а Of counsel was Scott E. Argued for defendant cross appellant.а With him on the brief was William P. Which was assigned to Shade O Matic and then licensed to Springs Window Fashions. There is a benefit to being able to customize the window blinds.а While a retail store could order custom sized blinds from a factory. Another approach is for the retail store to order stock sizes of blinds and cut them to the appropriate size at the time of purchase.а Manufacturers such as Springs provide retail stores with both the stock sizes of blinds and cut down machines that can trim the head rail. Bottom rail of window blinds.а The 857 patent recites a method used in connection with such a cut down machine. Independent claim 1 of the 857 patent is the only independent claim.а It provides: а With him on the brief was C. Kyle Musgrove.а Of counsel on the brief were Francis H. Which is used in an infrared spectrometer to determine the composition of gases such as emissions from industrial plants.а The spectrometer captures the gas to be tested and directs a beam of infrared light through the chamber containing the gas.а After the light has passed through the chamber. Was that over the long path created by multiple reflections of the light beam within the chamber. Primarily because o
	COMARK V. HARRIS CORP.
	ODETICS INC V. STORAGE TECHNOLOGY CORP. With him on the brief was David L. With him on the brief were Mark H. Was barred as within the scope of this court's mandate in an earlier appeal of this case. The jury's verdict is supported by substantial evidence. Which are typically used to store. These systems are highly automated and are especially useful in situations where large quantities of data must be easily and quickly retrieved from storage. A At issue are claims 9 and 14 of the '151 patent. (Although claim 8 was also asserted. Is now moot.). Wherein the rotary means is rotatable from a first position in which the opening of at least one holding bin is accessible from outside of the housing to a second position in which the opening of at least one holding bin is accessible from inside of the housing. Said storage bins and said tape transports. Claim 14 is identical in all relevant aspects. The critical
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. 977 (
	OPINION/ORDER With him on the brief was Robert M. With her on the brief was Kelley A. The two terms are similarly to be construed as referring to the same type of device. 1 torque. Wildcat is not a party to the present appeal. Drilling systems are designed to be adjustable to keep the ROP as close as possible to the optimal rate. The regulators 200 203 are connected to valves 236 239. A drilling rig operator adjusts the threshold at which override occurs to a point where only undesirable conditions will trigger intervention. The district court concluded it was consistent with a construction requiring manual operation of the valve selectors 232 235 and manual calibration of regulators 200 203 in the selecting step. The district court concluded that Varco was unlikely to prove infringement of this claim element because Pason did not use pneumatically operated valves.
	OPINION/ORDER With her on the brief were John M. Both of the parties to a patent interference proceeding have appealed the decision of the Board of Patent Appeals and Interferences of the United States Patent and Trademark Office. The decision is vacated and the case is remanded to the Board for further proceedings. Gideon Gross (collectively
	OPINION/ORDER With him on the brief for Anthony O'Rourke was Darren M. Was Richard S. Inc. (
	OPINION/ORDER With him on the brief was Christopher J. BACKGROUND Versa and Ag Bag are competitors in the agricultural bagging machine market. Versa is the assignee of the '744. The patents are directed to various features of the bagging machines. Two such structures are disclosed in the three patents: (1) one or more perforated pipes that extend through the compost material and (2) a multiplicity of V shaped flutes on the walls of the tunnel against which the compost is compacted. Is representative of the claims at issue. This claim is identical in pertinent part to claim 3 of the '910 patent. That the clause referring to a
	OVERHEAD DOOR CORPORATION V. THE CHAMBERLAIN GROUP, INC. With him on the brief were Michael Lowenberg. With him on the brief were Robert J. Claims 1 4 were part of the original patent.
	BAYER AG V. BIOVAIL CORPORATION Argued for plaintiffs appellants.
	OPINION/ORDER I. BACKGROUND Waterloo is a manufacturer of articulated keyboard support devices with its principal place of business in Ontario. Haworth is an office furniture systems manufacturer with its principal place of business in Michigan. Which was for an adjustable support for a computer keyboard. Unless this Agreement is earlier terminated pursuant to the provisions hereof.
	PALL CORPORATION V. PTI TECHNOLOGIES INC Argued for plaintiff cross appellant.
	OPINION/ORDER
	ROBOTIC VISION SYSTEMS V. VIEW ENGINEERING Of counsel on the brief were Edward J. With him on the brief was Frank A. The patent is directed to a
	BURKE, INC V. BRUNO INDEPENDENT LIVING AIDS, INC With him on the brief were Andrew S. With him on the brief was Lawrence M. We vacate the judgment and remand for further proceedings. BACKGROUND Burke is the assignee of the '739 patent which is directed to a personal mobility vehicle. The scooter is a small. The case now on appeal is one of a number of suits for infringement of the '739 patent filed by Burke in different district courts. It also held that the frame connection means of claim 1 for connecting the front and rear modular units was not infringed by an identical or equivalent connection in the accused devices. We reversed both of these holdings of the California district court in a non precedential opinion. We concluded that claim 1 of the '739 patent was not narrowed in the reexamination proceedings. We construed the term
	PRIMA TEK II, L.L.C V. POLYPAP Inc. is the patent owner and Prima Tek II. L.L.C. is a licensee of the '856 patent. Entitled Method of Making a Decorative Assembly for a Floral Grouping. а These patents describe a decorative assembly for flowers comprising a floral holding material and a decorative sheet of material.а The floral holding material is constructed of a material capable of receiving a portion of the flowers and supporting them.
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. Inc. and Guidant Sales Corp. (collectively
	BRASSELER, U.S.A. I, L.P V. STRYKER SALES CORPORATION Argued for defendants appellees.
	AMERICAN PERMAHEDGE, INC. V. BARCANA
	TEGAL CORPORATION V. TOKYO ELECTRON AMERICA, INC Argued for plaintiff appellee.
	OPINION/ORDER We will. Will order the reinstatement of Broadcom's state and common law claims. Mobile Wireless Telephony and the UMTS Standard Mobile wireless telephony is the general term for describing the technology and equipment used in the operation of cellular telephones. It is essential that all components involved in this transmission of information be able to communicate seamlessly with one another. Industry wide standards are necessary to ensure their interoperability. Standards are determined privately by industry groups known as standards determining organizations (
	OPINION/ORDER With them on the brief was Mark R. Of counsel was Cheryl A. With him on the brief was Andrew B. Of counsel was Lisa M. 3) concluding that neither party was prevailing for the purpose of awarding costs under Fed. Is probative in the obviousness analysis.
	LOCKHEED MARTIN CORPORATION V. SPACE SYSTEMS/LORAL For plaintiff appellant.а With him on the brief were Robert B. For defendant appellee.а With him on the brief were Gregory R. Ct. 2349 (2002).а We have carefully reviewed the Festo decision and have considered its imp
	VOICE TECHNOLOGIES GROUP, INC. V. VC SYSTEMS, INC. Because Voice Technologies has not established that it is entitled to judgment of noninfringement. The adjunct processor is a voice mail system. Once a message is taken. Line card 11 of a PBX system is connected to the PBX communications device 20 by a lead 12 consisting of two pairs of wires. A data pair 13 and a voice pair 14: [FIGURE 2] The text accompanying Figure 2 explains:
	OPINION/ORDER
	OPINION/ORDER On the brief with him were W. 2001) (
	OPINION/ORDER This disposition is not citable as precedent. It is a public record. 814 (
	OPINION/ORDER With him on the brief were David A. Of counsel was Mary B. On the brief were Robert E. (SeaChange) to have willfully infringed.
	U. S. TEST, INC. V. N D E ENVIRONMENTAL CORP. That the patents were invalid and unenforceable. See id. at ╢╢ . Test was liable for contributory infringement of the '453 patent. See Am. UCIC was obligated to defend U.S. We will pay those sums that the insured becomes legally obligated to pay as damages because of
	WANLASS V. FEDDERS
	NORTHROP GRUMMAN CORPORATION V. INTEL Northrop Grumman Corporation.а With him on the brief were Samara L. Inc.а Of counsel was Jeffrey C.P. Argued for defendant cross appellant 3COM Corporation.а With him on the brief were Leif R. Margin bottom:.0001pt'>ааааааааааа Northrop Grumman Corporation ( Northrop ) is the owner of U.S. Now advises us that the cross appeal is moot in light of the district court s entry of judgment under Rule 54(b). GED is the assignee of U.S. Locking corner keys) are elements of the apparatus patent combination claims but are not claimed independently. Locking corner keys. GED is also the assignee of the '582 method patent in suit. GED is a competitor of Besten in the sale of linear extruding machines.
	CANON COMPUTER V. NU-KOTE
	OPINION/ORDER With him on the brief was Raymond B. 046 (the '046 patent) is invalid. The district court determined that no reasonable juror could find that the '046 patent fails to satisfy the written description requirement of 35 U.S.C. з 112. determinations were correct. As follows: The improvement of this invention is to provide an abrasion plate 10 between the pad 4 and the tie 1. The plate 10 is smooth edged and incorporates recesses 11 to fit around the clamp supports or shoulder 5. The plate 10 may be bonded by layer 12 of adhesive (epoxy resin adhesives are preferred) to the tie 1 or an HDPE closed cell foam of 1.5 mm thickness of the same size and shape as plate 10 fitted between plate 10 and tie 1. Ll. 33 41. 04 1069 2 The district court determined on summary judgment that there was no genuine issue regarding whether the '046 patent's original specification satisfies the written description requirement of 35 U.S.C. з 112. Both of which were added by amendment during prosecution. Claim 1 recites: An abrasion resistant rail seat for securing a rail to a concrete rail tie of the type in which the rail has a flange and is secured to a concrete rail tie by elastic rail clamps and an elastomeric rail pad insulates the rail from the rail tie.
	TEXTILE PRODUCTIONS V. MEAD CORP.
	OPINION/ORDER Margin bottom:.0001pt'>аon the brief were John M. Inc.а With him on the brief was Charles C. Circuit Judge. This is an appeal from a decision of the United States Patent and Trademark Office s Board of Patent Appeals and Interferences in a reexamination proceeding. It was common for a multiple user computer system to be arranged so that each user would interface with a mainframe computer by using a so called dumb terminal. Which would run the user applications.а The mainframe computer would receive input from and provide output to users through the dumb terminals.а The user applications run by the mainframe computer would access data that was stored in a database residing on the mainframe. а In the 989 patent system.
	OPINION/ORDER With him on the brief was Matthew R. These
	BIOTEC BIOLOGISCHE NATURVERPACKUNGEN V. BIOCORP INC. Argued for plaintiff cross appellant.
	UTAH MEDICAL V. GRAPHIC CONTROLS Argued for plaintiff appellee.а With him on the brief were Stephen B. Argued for defendant appellant.а With him on the brief were Mary E. Zaug and Christopher R. Liro. . The district court determined that the 822 patent was not invalid for indefiniteness.а Because the district court did not err in its determinations and substantial evidence supports the jury s verdicts. Intrauterine pressure was typically measured using fluid filled intrauterine pressure catheters. Or IUPCs.а A rigid guide tube was necessary to insert flimsy fluid filled IUPCs into the uterus.а After insertion. Ll. 18 42 (emphasis added).а The structure in the 822 specification corresponding to the function of the stiffener means is a steel stylet within the electrical cable means. During prosecution of the 822 patent.
	OPINION/ORDER
	DEERING PRECISION INSTRUMENTS, L.L.C., V. VECTOR Argued for plaintiff appellant.а With her on the brief was R. David Donoghue.а Of counsel was Laura K. Is directed to a compact. 5 are at issue in the present action.а Representative claim 1 recites as follows:

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