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Time-Dependent Claim Terms Remain Stuck in the Past
In a decision that is certain to impact both patent prosecution and patent litigation strategies, the U.S. Court of Appeals for the Federal Circuit recently ruled that the literal scope of claims reciting time-dependent claim terms is limited to the technologies existing at the time of the invention. See PC Connector Solutions LLC v. Smartdisk Corp., 406 F.3d 1359 (Fed. Cir. 2005). Further, the court stated that such claims would not be infringed by later arising technology even under the doctrine of equivalents. This case, in combination with the Federal Circuit's earlier decision in Kopykake Enterprises, Inc. v. The Lucks Company, 264 F.3d 1377 (Fed. Cir. 2001), demonstrates that patent practitioners must be extremely careful when using words such as “conventional,” “normal,” “standard” or “traditional” in the claims or in specification definitions of claim terms. On the other hand, those accused of infringement should argue for the inclusion of such terms during claim construction, particularly when the accused device comprises technology developed after the invention date of the patent-in-suit.
Kopykake Enterprises, Inc. v. The Lucks Company
In Kopykake, the plaintiff brought a declaratory judgment action against The Lucks Company, the assignee of U.S. Patent No. 5,017,394 (“the '394 patent”), and Lucks counterclaimed for infringement. The '394 patent claims a method of making a thin, flexible, edible base shape and decorating the base shape with a pictorial image. Such edible images are utilized, for example, to personalize birthday cakes. Element (d) of claim 1 described the final step of the claim as “screen printing said at least one edible pictorial image onto said edible base shape.” The accused infringer used an ink jet printing process to achieve a similar effect. At issue was the literal meaning of the term “screen printing” and whether the term encompassed ink jet printing.
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