{"id":480,"date":"2009-09-05T01:38:57","date_gmt":"2009-09-05T07:38:57","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=480"},"modified":"2009-09-07T13:49:18","modified_gmt":"2009-09-07T19:49:18","slug":"each-hard-cases-make-bad-law","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=480","title":{"rendered":"“Each” — Hard cases make bad law"},"content":{"rendered":"

\u00a0\u00a0\u00a0\u00a0\u00a0 At first glance, the case of In re Skvorecz<\/span>, appears to deal with how the transition word “comprising” is to be\u00a0construed.\u00a0\u00a0A closer reading reveals that the case\u00a0really turns on how the word “each” is to be construed following recitation of\u00a0multiple elements, in this case\u00a0“a plurality of\u00a0legs” or “at least two legs.”\u00a0\u00a0 The claim at issue in the\u00a0reissue proceeding\u00a0is for a table-like structure (a frame to support a chafing dish) and reads as follows:<\/p>\n

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\u00b0 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.<\/p>\n

Material in [brackets ] indicates Applicant’s proposed deletions and underlined<\/span> material indicates proposed additions.<\/span><\/p><\/blockquote>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 The Board of Appeals and Interferences decided that in construing the claim to have its broadest reasonable \u00a0interpretation that the use of the word “each” need only refer to the “two legs” of the “at least two legs.”\u00a0 The word “each” need not refer to every leg.\u00a0 Thus, the Board found that\u00a0the claim was anticipated by a reference that had offsets on two legs but not on every leg.<\/p>\n

\u00a0\u00a0\u00a0\u00a0 The panel at the Federal Circuit disagreed with the Board and found the claim\u00a0not to\u00a0be anticipated.\u00a0 Importantly, the panel reads the word “each” in this circumstance to mean “all” the legs or “every” leg.\u00a0 Listen to the panel’s discussion of this issue with the counsel for the PTO:\u00a0 <\/em>[Here<\/a>],\u00a0 [Here<\/a>], and\u00a0 [Here<\/a>].<\/p>\n

\u00a0\u00a0\u00a0\u00a0 This decision has far-reaching effects beyond this particular case.\u00a0 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.\u00a0 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.\u00a0 Given the circumstances the parties have little incentive to request rehearing — the patentee has a completely favorable\u00a0opinion from the Federal Circuit and\u00a0the PTO is not\u00a0known for\u00a0being an advocate of broadly interpreted patents.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0 It seems to me that if\u00a0 the word “each” has such a definite meaning in our language that the expression “each and every” would not exist.\u00a0 The fact that\u00a0“each and every”\u00a0is a common expression\u00a0suggests that the meaning of\u00a0“each” is not as clear as the panel implies.\u00a0\u00a0Furthermore, as counsel for the PTO remarked, if the Applicant wanted “each” to mean “all” he could have said “all.”<\/p>\n

You can listen to the entire oral argument [Here<\/a>].<\/p>\n

You can read the court’s precedential opinion [Here<\/a>].<\/p>\n

UPDATE<\/span>:<\/p>\n

I was curious if the Federal Circuit had ever construed “each” not to mean “all” or “every”\u00a0when referring to “a plurality” or “at least two” items.\u00a0 In the case of ResQNet.com v. Lansa<\/span>, 346 F.3d 1374 (Fed. Cir. 2003), the panel of Judges Newman, Rader, and Michel\u00a0stated that:<\/p>\n

Claim 1 of the \u2019608 patent recites \u201ceach of a plurality of fields,\u201d which does not carry the same meaning as \u201cevery field.\u201d\u00a0 <\/span>Rather, the recitation of \u201cplurality\u201d suggests the use of \u201cat least two.\u201d\u00a0\u00a0 <\/span>See<\/span> York Prods., Inc. v. Cent. Tractor Farm & Family Ctr.<\/span>, 99 F.3d\u00a01568, 1575 (Fed. Cir. 1996) (\u201cThe term means, simply, \u2018the state of being plural.\u2019\u201d).\u00a0 <\/span>While \u201cat least two\u201d may mean \u201cevery\u201d under some circumstances, the two terms are not synonymous.\u00a0 <\/span>In sum, \u201ceach of a plurality of fields\u201d means \u201ceach of at least two fields.\u201d<\/p><\/blockquote>\n

[Read ResQnet.com v. Lansa<\/a>]<\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0\u00a0\u00a0\u00a0\u00a0 At first glance, the case of In re Skvorecz, appears to deal with how the transition word “comprising” is to be\u00a0construed.\u00a0\u00a0A closer reading reveals that the case\u00a0really turns on how the word “each” is to be construed following recitation of\u00a0multiple elements, in this case\u00a0“a plurality of\u00a0legs” or “at least two legs.”\u00a0\u00a0 The claim at […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/480"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=480"}],"version-history":[{"count":17,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/480\/revisions"}],"predecessor-version":[{"id":521,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/480\/revisions\/521"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=480"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=480"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=480"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}