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Post Hoc, Litigation-Driven Claim Construction Defeats Public Notice Function of Patents

February 20, 2001

Decision icon Decision

Last Month at the Federal Circuit - March 2001

Judges: Bryson (author), Michel, and Lourie

In Kimberly-Clark Corp. v. Tyco International (US), Inc., No. 00-1080 (Fed. Cir. Feb. 20, 2001) (nonprecedential decision), the Federal Circuit affirmed a judgment of noninfringement concerning three of Kimberly-Clark Corporation’s (“Kimberly-Clark”) U.S. patents directed to disposable diapers.

The three patents at issue, U.S. Patent Nos. 4,704,116 (“Enloe I”); 5,415,644 (“Enloe II”); and 5,599,338 (“Enloe III”), concern diapers with elasticized side pockets. The new diaper design contains interflaps on a body-side liner to collect and contain waste. The dispute concerns the material of the interflaps.

Enloe’s original patent application defined the flap material as soft, comfortable, and vapor and/or fluid permeable. In response to a rejection, Enloe abandoned his original application and filed a CIP. In the CIP, Enloe distinguished the prior art on the ground that its flaps were fluid impervious or waterproof. This CIP became Enloe I and specifically claimed fluid-pervious flaps.

On appeal, Kimberly-Clark did not dispute that the claims of Enloe I are limited to fluid-pervious flaps. It contended, rather, that the claims of Enloe I and III are not subject to that limitation. The Federal Circuit disagreed, concluding that the specification clearly disclaims fluid-impervious flaps, and therefore the asserted claims of Enloe II and III must be read to give effect to that disclaimer. The Court also rejected Kimberly-Clark’s argument that the interflaps are pervious under pressure as being unsupported and litigation driven.

Given Kimberly-Clark’s admissions that the accused diapers do not infringe if the fluid-pervious limitation applies to the Enloe II and III patents and if fluid pervious means pervious without pressure, the Federal Circuit upheld the district court’s judgment of noninfringement.