Tuesday, February 4, 2014, 4:39 PM

Leveling the Culinary Field: Typographical Corrections in Markman Ruling Allow Food Service Equipment Leveling Device Patent to be Construed

Judge Batten examined the parties’ contentions in light of controlling federal law and construed patent claims as plaintiff Kason Industries, Inc. (“Kason”) contended, rejecting reliance by defendant Component Hardware Group, Inc. (“Component”) on indefiniteness and rejecting its efforts to restrict the term “projection” to mean only a “rib.”

By Order dated January 31, 2014 [Dkt#57] (the “Order”), the Court briefly recited the background of United States Patent No. 7,571,887 (the ‘887 Patent) and quoted the three claims in issue (1, 4, and 7).  A figure from the patent, which is directed to a height adjustable support for food service equipment, is reprinted below:


Judge Batten’s Order provides an excellent tutorial on the standard for claim construction and then moves through a well-written synopsis of the current state of the law when an indefiniteness argument is raised.  “A claim is indefinite only when it is ‘not amenable to construction’ or ‘insolubly ambiguous,” quoting Biosig Instruments, Inc. v. Nautilus, Inc., 715 F.3d 891, 898 (Fed. Cir. 2013), cert. granted, 82 U.S.L.W. 3195 (2014).  The Nautilus Petition for Writ of Certiorari, recently granted, seeks elimination of this standard.  (See fellow Womble Carlyle blogger Chris Hall's take on this issue at the The High-Tech Patent Agent Blog.)  The Order notes that “It is well-settled law that, in a patent infringement suit, a district court may correct an obvious error in a patent claim,” quoting CBT Flint Partners, LLC v. Return Path, Inc., 654 F.3d 1353, 1358 (Fed. Cir. 2011).  

Judge Batten noted the errors in the claims language, but held that those errors were easily corrected without broadening the claim.  The first error was clearly a scrivener’s error of substituting “that” for “than” and the second error merely required a word change to achieve the antecedent phrase reference obviously intended.  “No skilled artisan would have difficulty concluding that the ‘said insert first select external diameter’ refers to the ‘said insert having an insert first portion with a first select external diameter.’”  Reaching this decision was, in the Court’s opinion, consistent with the mandate that “Claims should be . . . construed, if possible, to sustain their validity,” quoting Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999).

With regard to the other term Component sought to have construed, the Court also agreed with Kason.  In this instance no construction was found necessary.  Nevertheless, the Court took pains to point out that short-shrift had not been given to its obligation to construe disputed claims.  Rejection of an unnecessary proposed construction fulfills the Court’s duty and resolves the dispute.  See Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010).
Accordingly, the Court construed the disputed terms of the '887 patent as follows:
The case is Kason Industries, Inc. v. Component Hardware Group, Inc., Docket no. 57, decided January 31, 2014, in 3:13-cv-00012-TCB, in the United States District Court for the Northern District of Georgia, Atlanta Division, assigned to Judge Timothy C. Batten, Sr.

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