In the spirit of the holidays, I thought it might be fun to revisit a 2007 decision that involved spiral sliced ham. The claim at issue in this case read:
A boneless sliced meat having its meat arranged in the form of a continuous spiral cut about an axis of the meat, the axis being created by temporary insertion of a support member in the meat, wherein the depth of said cut is limited to leave an uncut core of meat, said core being of sufficient cross-section to cause the boneless sliced meat to retain its shape when the support member is removed.
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One of the issues addressed in the oral argument was whether the support member had to be inserted the entire length of the meat in order to support it. While the court did not address the patent’s use of “the present invention” language in its written opinion, Judge Moore did inquire about this language with defendant-appellee’s counsel [Listen] and during rebuttal with plaintiff-appellant’s counsel [Listen].
As you will note there is an interesting exchange between Judge Lourie and plaintiff-appellant’s counsel about the overuse of the expression “preferred embodiment.” Judge Lourie remarks that the term “preferred embodiment” is the most over-used expression in the patent world and is inapplicable when only a single embodiment is disclosed.
You can listen to the entire oral argument here: [Listen].
You can read the court’s opinion here: [Read].