Judge Dyk acknowledged the role of Liebel Flarsheim v. Medrad when construing patent claims. Judge Dyk’s dissenting opinion today in Intervet, Inc. v. Merial Ltd., 2009-1568 (Fed. Cir. Aug. 4, 2010) stated in-part:
I write separately primarily to make clear that in construing the claims, we are not deciding that the claims as construed are limited to patentable subject matter. As we noted in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc), we do not take validity into account in construing claims, unless “the court concludes, after applying all the available tools of claim construction, that the claim is still ambiguous.” Id. at 1327 (quoting Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 911 (Fed. Cir. 2004) (quotation marks omitted)). That is not the case here.
The majority opinion responded to this part of Judge Dyk’s dissent with a footnote:
4 We do not address the issues of validity and non-patentable subject matter discussed by the dissent because these issues were not addressed by the district court or raised on appeal.
It would seem that Judge Dyk was taking the opportunity to reassure the patent bar that Liebel-Flarsheim is to be followed despite the recent failure to adhere to it in Becton Dickinson and Co. v. Tyco Healthcare Group, LP, 2009-1053 (July 29, 2010).
You can read the court’s opinion here: [Read].