“Each” — Hard cases make bad law

      At first glance, the case of In re Skvorecz, appears to deal with how the transition word “comprising” is to be construed.  A closer reading reveals that the case really turns on how the word “each” is to be construed following recitation of multiple elements, in this case “a plurality of legs” or “at least two legs.”   The claim at issue in the reissue proceeding is for a table-like structure (a frame to support a chafing dish) and reads as follows:

1. A wire chafing stand comprising a first [an upper] rim of wire steel which forms a closed geometrical configuration circumscribing a first surface area, [a lower rim of wire steel forming a closed geometrical configuration circumscribing a second surface area with said first surface area being larger than said second surface area] and having at least two [a plurality of] wire legs with each wire leg having two upright sections interconnected to one another [at a location below the lower rim] in a configuration forming a base support for the stand to rest upon with each upright section extending upwardly from said base support to from an angle equal to or greater than 90° with respect to a horizontal plane through said base support and being affixed to the first [upper] rim adjacent one end thereof [and to said lower rim at a relatively equal distance below the point of attachment to said upper rim] and further comprising a plurality of offsets located either in said upright sections of said wire legs or in said first [upper] rim for laterally displacing each wire leg relative to said first [upper] rim to facilitate the nesting of a multiplicity of stands into one another without significant wedging.

Material in [brackets ] indicates Applicant’s proposed deletions and underlined material indicates proposed additions.

      The Board of Appeals and Interferences decided that in construing the claim to have its broadest reasonable  interpretation that the use of the word “each” need only refer to the “two legs” of the “at least two legs.”  The word “each” need not refer to every leg.  Thus, the Board found that the claim was anticipated by a reference that had offsets on two legs but not on every leg.

     The panel at the Federal Circuit disagreed with the Board and found the claim not to be anticipated.  Importantly, the panel reads the word “each” in this circumstance to mean “all” the legs or “every” leg.  Listen to the panel’s discussion of this issue with the counsel for the PTO:  [Here],  [Here], and  [Here].

     This decision has far-reaching effects beyond this particular case.  Moreover, while it is pro-patentee in the context of a reissue proceeding, the precedent it sets is actually anti-patentee in an infringement context.  Given the limited treatment in the opinion of why “each” must necessarily be understood to mean “all” or “every,” I think this case is ripe for en banc review.  Given the circumstances the parties have little incentive to request rehearing — the patentee has a completely favorable opinion from the Federal Circuit and the PTO is not known for being an advocate of broadly interpreted patents. 

     It seems to me that if  the word “each” has such a definite meaning in our language that the expression “each and every” would not exist.  The fact that “each and every” is a common expression suggests that the meaning of “each” is not as clear as the panel implies.  Furthermore, as counsel for the PTO remarked, if the Applicant wanted “each” to mean “all” he could have said “all.”

You can listen to the entire oral argument [Here].

You can read the court’s precedential opinion [Here].

UPDATE:

I was curious if the Federal Circuit had ever construed “each” not to mean “all” or “every” when referring to “a plurality” or “at least two” items.  In the case of ResQNet.com v. Lansa, 346 F.3d 1374 (Fed. Cir. 2003), the panel of Judges Newman, Rader, and Michel stated that:

Claim 1 of the ’608 patent recites “each of a plurality of fields,” which does not carry the same meaning as “every field.”  Rather, the recitation of “plurality” suggests the use of “at least two.”   See York Prods., Inc. v. Cent. Tractor Farm & Family Ctr., 99 F.3d 1568, 1575 (Fed. Cir. 1996) (“The term means, simply, ‘the state of being plural.’”).  While “at least two” may mean “every” under some circumstances, the two terms are not synonymous.  In sum, “each of a plurality of fields” means “each of at least two fields.”

[Read ResQnet.com v. Lansa]

4 Responses to ““Each” — Hard cases make bad law”

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