Blue or otherwise Yellow

The oral argument of the day comes from BLACKBIRD TECH LLC v. LULULEMON ATHLETICA, INC., No. 2017-2350 (Fed. Cir. Sept. 6, 2018). One of the issues on appeal was how the following statement in the specification should be interpreted:

“Typically the sports bra will be constructed of two or more plies of material sewn or otherwise laminated together to provide sufficient tensile strength”

Should it be interpreted as the patent drafter being a lexicographer and redefining “laminated” to include “sewn”? The oral argument suggests that Judges Dyk, Wallach, and Hughes did not agree that such a statement was enough to make “sewn” a species of the genus “laminated.” However, the Rule 36 Judgment is rather brief on that topic.

There is an interesting similarity in the Blackbird language to the language that was in dispute in the Helsinn v. Teva case:

“invention [that] was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention”

and whether the use of “otherwise” put a gloss on the “on sale” language.

You can listen to the oral argument here:

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