May 29, 2007

I will periodically post case citations from the Federal Circuit along with the date of the opinion/order and a brief list of the legal topics discussed therein (specifically those with additional embedded case law citations). My goal is to post new cases on a weekly basis. This posting covers the first three patent cases that were appealed from the district court level and decided by the Federal Circuit during the 21st calendar week of 2007. All opinions are precedential unless otherwise indicated.

Byrne v. The Black & Decker Corporation, et al. (05/21/2007, non-precedential): appeal of grant of summary judgment of noninfringement (affirmed); discussion of patent related to a guide and a guard for a string trimmer (U.S. Patent No. RE 34,815, entitled “Flexible flail trimmer with combined guide and guard”); claim meaning “is determined by using intrinsic evidence, which includes the claims, the specification, and the prosecution history and by using extrinsic evidence, which includes dictionaries,” but “[h]owever, extrinsic evidence in determining the meaning of a claim may be less reliable than intrinsic evidence”; discussion of phrase “generally planar surface” as being defined within the claims and the specification; error at district court level because “it gave too much preliminary weight to dictionary definitions without relying on intrinsic evidence, as cautioned against in Phillips”; waiver of doctrine of equivalents infringement argument by not raising it in appellant’s opening brief; accused device has a “surface” but it does not have a “generally planar surface,” so summary judgment of noninfringement is appropriate here (affirmed)

Pfizer, Inc. v. Apotex, Inc. (formerly known as TorPharm, Inc.) (05/21/2007) (order): Appellee (Pfizer) filed petition for panel rehearing and rehearing en banc and Appellant (Apotex) filed response; poll requested (whether or not to rehear the appeal en banc), taken, and denied, and Appellant moved for expedited denial of rehearing and rehearing en banc and for expedited issuance of mandate; petition for rehearing and rehearing en banc denied, and motion for expedited denial of rehearing and rehearing en banc denied as moot; motion for expedited issuance of mandate granted; three separate dissents provided

Furnace Brook, LLC v., Inc. (05/23/2007, non-precedential): appeal of review of final judgment granting summary judgment of noninfringement (affirmed); discussion of patent related to an improved method and apparatus for an interactive, computerized electronic catalog system (U.S. Patent No. 5,721,832, entitled “Method and apparatus for an interactive computerized catalog system”); district court held that the terms “telephone terminal” and “customer terminal means” limitations of the claims of the patent-in-suit do not read on the accused structures, namely personal computers and internet-enabled cellular telephones that may access Appellee’s (’s) website over the Internet; the specification of the patent-in-suit requires that a telephone terminal “dial a predetermined assigned telephone number” and that the telephone terminal establish a “communication link” over a telephone network by dialing the computer system directly; no evidence in the record that the accused devices place such calls when accessing the website; infringement under the doctrine of equivalents argument rejected because no evidence was introduced sufficient to create a genuine issue of material fact as to that factual question; scope of means-plus-function limitation “is . . . limited to the structures disclosed in the specification, and their equivalents” and that equivalence of communication with a server over the Internet and communication with a server by dialing the server over telephone networks was not addressed by the deposition testimony in the case


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Mark Reichel
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I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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