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Claim Interpretation and Definiteness of Terms of Degree

In Kitsch LLC v. Deejayzoo, LLC (Case No. LA CV19-02556 JAK (RAOx)) the Central District of California interpreted claims of U.S. Patent No. 10,021,930 that included terms of degree as being sufficiently definite under 35 U.S.C. § 112. The case was initiated by Plaintiff Kitsch, who sought a judgment declaring invalidity of the ‘930 patent. The ‘930 patent is owned by Defendant Deejayzoo and is directed toward an improved shower cap that reduces volume experienced by a user of the cap. Claim 1 of the ‘930 patent recites, in relevant part: 1. A covering apparatus comprising: a unitary material; . . . wherein the unitary material comprises an outer layer and an inner layer; wherein the outer layer comprises a fabric; wherein the outer layer is water repellent; wherein the inner layer is polyurethane[;] . . . and wherein the covering apparatus is a shower cap. During claim construction, Kitsch…

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Claim Interpretation and the Enablement Requirement

Providing a reminder about how to interpret elements of a patent claim when analyzing the claim against prior art during patent prosecution, in Technical Consumer Products, Inc. v. Lighting Science Group Corp. (April 8, 2020), the Federal Circuit vacated a PTAB decision that Appellant Technical Consumer Products’ (“TCP”) failed to show that claims of U.S. Patent No. 8,201,968 were invalid based on anticipation and/or obviousness. The ‘968 patent is owned by Appellee Lighting Science Group Corp. (“LSG”). The ‘968 patent is directed toward an LED assembly this is configured to be retrofitted into an existing light fixture, such as a recessed can lighting fixture. Application of the prior art turned on interpretation of the claim recitation of a “heat sink.” Claim 1 recites: a heat spreader and a heat sink thermally coupled to the heat spreader, the heat sink being substantially ring-shaped and being disposed around and coupled to an…

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Ex Parte Jung De-Designated as Informative by PTAB

A previous post discussed Ex parte Jung, which was designated as Informative by the PTAB on July 10, 2018.  In a bulletin posted on August 7, 2018, the PTAB states that: It has come to PTAB’s attention that the decision has not been read as intended. For example, the designation was not intended to reflect new or changed policies with respect to claim construction. As a result, in order to avoid any confusion, the decision has been de-designated and removed from the list of informative decisions. The case remains a routine decision of the Board… This case nonetheless raised an interesting discussion of SuperGuide Corp. v. DirecTv Enters., Inc., 358 F.3d 870 (Fed. Cir. 2004), which interpreted language in the form of “at least one of A and B” to mean at least one of A and at least one of B, as well as the line of subsequent cases discussed in the…

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“At Least One of” Ex Parte Opinion Designated as Informative by PTAB

The PTAB interpreted claim language in the form of “at least one of A and B” to mean at least one of A and at least one of B in Ex parte Dong-Shin Jung et al. (Appeal No. 2016/008290, designated Informative on July 10, 2018).  The claim, in pertinent part, at issue reads: A method for playing back a scene using Universal Plug and Play (UPnP), comprising: [A.] sending, by a control point, a request for a scene to be played back to a media server that stores Audio/Video (AV) content; [B.] receiving, by the control point, one or more scene objects comprising the scene to be played back from the media server in response to the request, each scene object including metadata representing at least one of [i.] a precedence relation indicating the scene object’s location in a sequence of scene objects and [ii.] a connection relation indicating one…

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Patent Drafting Tip: Take Care with Open-Ended Descriptions

Be careful with the conventional wisdom that tells a patent drafter to use permissive, open-ended language when describing features of an invention.  Like me, you may have been taught to avoid “patent obscenities” like “invention,” “objects,” etc., and to use permissive helping verbs wherever possible, i.e., “the widget [could, might, can, may, etc.] be blue,” rather than “the widget is blue.”  Be careful: the conventional advice is good advice most of the time – but not, I believe, all of the time. Consider this patent drafting guideline: A patent specification should use verbs of possibility by default. However, in describing various embodiments, use limiting verbs for features that are necessarily present in every embodiment. This is guidance for lawyers, so of course it comes with many caveats. Often there is a gray area encompassing the line between features that do and do not truly limit the invention.  Thus, as the…

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