The Federal Circuit heard oral argument in Laryngeal Mask Co. Ltd. v. Ambu earlier this month. The court has not yet issued its opinion in the case. The case concerns US patents 7,156,100 and 5,303,697.
This was an interesting oral argument. It is one of those arguments that is good for new prosecutors to listen to so that they are aware of the arguments that will be brought against their work product. The oral argument included a host of arguments that go toward the preparation and prosecution of an application.
“The Present Invention”
Usually, “the present invention” argument is raised by an accused infringer who wants to narrow claim language to what was described as “the present invention” or “the invention” in the specification or prosecution history. This case was a little different in that the patentee (rather than the accused infringer) argued that the language describing “the present invention” did not include the element that the accused infringer was trying to read into the claim. Therefore, the patentee argued that the claim should be construed broadly based upon “the present invention” language.
Detailed Description of the Invention vs. Detailed Description of the Preferred Embodiments
Similar to the above, use of “the invention” as part of the Detailed Description heading was this time argued by the accused infringer to limit the claims to the disclosed embodiment.
Disclosure of a Single Embodiment
Judge Lourie asked about the disclosure of a single embodiment described as the preferred embodiment. He queried whether disclosure of a single embodiment described as “the preferred embodiment” might require “preferred” to be read as “only.” You can listen to his comment here: [Listen].
Broad Summary language
The patentee argued for a broad claim construction based on a broad Summary section of the patent.
Language from the Brief Description of the Drawings
The accused infringer argued that the claims should be limited based on use of the phrase “the present invention” to describe Fig. 1 of the patent.
You can listen to the entire oral argument here: [Listen].