Claim Language Requires Order for Recited Steps
November 20, 2003
Last Month at the Federal Circuit - December 2003
Judges: Michel (author), Mayer, and Bryson
In Combined Systems, Inc. v. Defense Technology Corp. of America, No. 03-1251 (Fed. Cir. Nov. 20, 2003), the Federal Circuit affirmed the district court's SJ of noninfringement that Defense Technology Corporation of America and Federal Laboratories, Inc. (collectively "DTCA") did not infringe U.S. Patent No. 6,202,562 ("the '562 patent") assigned to Combined Systems, Inc. ("CSI") after finding no error in the district court's claim construction.
The '562 patent relates to a "tubular socklike" shotgun projectile full of lead shot designed to incapacitate individuals without causing serious injury. The only limitations at issue in claim 1 were "forming folds in said tubular sock-like projectile body immediately forward of said rear opening" and "inserting said formed folds . . . into said projectile compartment front opening." The district court reasoned that the dictionary definition of "fold," namely, "to bend over or double up so that one part lies on another part," when combined with the gerund "forming," requires the "deliberate" and "systematic" creation of folds. The deliberate creation of folds excluded incidental gathers in the material that occur when a string is pulled to close the projectile body or when the shot is secured in the projectile compartment. Additionally, the district court held that the folds must be formed prior to, not during, insertion of the projectile into the projectile compartment.
On appeal, CSI argued that "forming folds" should be construed to mean forming any folds by closing the sock-like projectile body, including forming folds in the tail before, during, or after insertion of the projectile body into the projectile compartment. Examining the claim language first, the Federal Circuit agreed with the district court that the affirmative recitation of "forming folds" requires the "deliberate" forming of folds. The Federal Circuit also determined that as a matter of grammar, the recitation of "inserting said formed folds . . . into said projectile compartment" forecloses, in the absence of compelling intrinsic evidence to the contrary, a construction permitting the folds to be formed after or during insertion of the projectile into the projectile compartment.
The Federal Circuit then looked to the written description and drawings to determine if the presumption of ordinary and customary meaning was rebutted and to aid it in the claim-construction analysis. The written description and drawings, the Federal Circuit noted, are consistent with requiring the deliberate forming of folds and do not provide any description of incidental folds, bends, or creases. Thus, after considering the intrinsic evidence, the Federal Circuit agreed with the district court's construction requiring the deliberate forming of folds in the tail of the projectile.
CSI did not challenge the district court's conclusion that, as a matter of law, DTCA did not infringe claim 1 as construed literally or under the DOE. As a result, the Federal Circuit affirmed the district court's SJ of noninfringement.