{"id":10440,"date":"2019-04-03T14:54:48","date_gmt":"2019-04-03T20:54:48","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=10440"},"modified":"2019-04-03T15:31:15","modified_gmt":"2019-04-03T21:31:15","slug":"blue-or-otherwise-yellow","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=10440","title":{"rendered":"Blue or otherwise Yellow"},"content":{"rendered":"\n

The oral argument of the day comes from BLACKBIRD TECH LLC v. LULULEMON ATHLETICA, INC.<\/em>, No. 2017-2350 (Fed. Cir. Sept. 6, 2018). One of the issues on appeal was how the following statement in the specification should be interpreted:<\/p>\n\n\n\n

“Typically the sports bra will be constructed of two or more plies of material sewn or otherwise laminated together to provide sufficient tensile strength”<\/p><\/blockquote>\n\n\n\n

Should it be interpreted as the patent drafter being a lexicographer and redefining “laminated” to include “sewn”? The oral argument suggests that Judges Dyk, Wallach, and Hughes did not agree that such a statement was enough to make “sewn” a species of the genus “laminated.” However, the Rule 36 Judgment is rather brief on that topic.<\/p>\n\n\n\n

There is an interesting similarity in the Blackbird<\/em> language to the language that was in dispute in the Helsinn v. Teva<\/em> case:<\/p>\n\n\n\n

“invention [that] was patented, described in a printed publication, or in public use, on sale,<\/em> or otherwise available to the public before the effective filing date of the claimed invention”<\/p><\/blockquote>\n\n\n\n

and whether the use of “otherwise” put a gloss on the “on sale” language.<\/p>\n\n\n\n

You can listen to the oral argument here:<\/p>\n\n\n\n