Boilerplate’s Impact on Meeting the Written Description Requirement

In the recent oral argument of Laube v. Rea, a panel of the Federal Circuit was trying to determine whether a patent specification had the degree of specificity required to satisfy the written description requirement for a claim that was not disclosed as a single embodiment in the specification.  The claim at issue required a “spring clip” which was illustrated in one embodiment and a “side plate” which was illustrated in a different embodiment.  The panel wanted to know what degree of specificity short of an in haec verba description would satisfy the written description standard. [Listen]

The patent owner noted that the specification included standard boilerplate language that indicated pieces could be mixed and matched.  I found it curious that the panel seemed willing to discount that boilerplate language due to the fact that such language appears in most patents: [Listen].

Having identified an interesting issue with respect to written description and having noted that the Federal Circuit’s decisions don’t necessarily provide a coherent and useful test to resolve the issue at hand, the panel promptly issued a Rule 36 judgment: [Opinion].

You can listen to the entire oral argument here: [Oral Argument].

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