“Feature of the present invention”

In Lexion Medical, LLC v. Northgate Technologies, Inc. et al., 2009-1494 (Fed. Cir. April 22, 2011), the Federal Circuit addressed the construction of a phrase in a claim that included the word “within.”   The court addressed whether a time limitation, such as “always within,” should be included in the claim construction of “within.” 

What interested me most about the oral argument was something that does not appear in the court’s opinion.  Namely, there was a discussion of the weight that should be given to the language from the specification that referred to “an important feature of the present invention.”  Judge Prost had the following exchanges with the counsel for the appellee: [Listen] and [Listen]. 

It is arguable whether the word “feature” is any different from the word “aspect.”  See this Keflex 500mg for a recent discussion of the phrase “aspect of the invention.”

On an unrelated note, you often hear the admonishment of no new issues should be argued on appeal.  In this case, the appellee argued that construction of the word “within” was a new argument on appeal: [Listen].  Nevertheless, the court addressed the argument in its opinion.

You can read the court’s opinion here: [Read].

You can listen to the oral argument here: [Listen].

(The other interesting thing about this case is that it was an affirmance by the Federal Circuit of a summary judgment of infringement of a means plus function claim.)

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