In Multilayer Stretch Cling Film Holdings, Inc., v. Berry Plastics Corp., [2015-1420, 2015-1477] (August 4, 2016) the Federal Circuit reversed the claim construction, and thus vacated summary judgment of non-infringement that was predicated on that claim construction.<\/p>\n
At issue was\u00a0U.S.\u00a0Patent No. 6,265,055, related to\u00a0multi-layer stretch
\ncling films having at least seven individual layers, which claimed:<\/p>\n
each layer\u00a0being selected from the group consisting of linear\u00a0low density polyethylene, very low density polyethylene,\u00a0ultra low density polyethylene, and metallocene-catalyzed linear low density\u00a0polyethylene resins;<\/p><\/blockquote>\n
The district court construed this language as requiring each layer\u00a0must contain only one class of the listed\u00a0resins, and no other resins, thereby excluding blends of\u00a0more than one type of listed resin and all unlisted resins.<\/p>\n
The parties agreed that the claim language was an Markush group. \u00a0The Federal Circuit agreed with the district court that the group is closed to resins other than those listed in the group. \u00a0The Federal Circuit said that what was critical the transitional phrase\u00a0\u201cconsisting of,\u201d a term of\u00a0art in patent law with a distinct and well-established\u00a0meaning that creates a very strong presumption\u00a0that that claim element is \u201cclosed.\u201d<\/p>\n
The Federal Circuit rejected the patent owners argument that dependent claims expanded the scope of the Markush group, noting that while other claims can be\u00a0valuable sources of enlightenment as to the\u00a0meaning of a claim term,\u00a0the language\u00a0of a dependent claim cannot change the scope of an\u00a0independent claim whose meaning is clear on its face, observing:<\/p>\n
The dependent claim tail cannot wag\u00a0the independent claim dog.<\/p><\/blockquote>\n
However the Federal Circuit disagreed\u00a0with the district court over whether the claims permitted mixtures of the four plastics set forth in the Markush group. \u00a0The Federal Circuit noted that\u00a0under Abbott<\/em>, the Markush group is therefore presumed closed to blends. The\u00a0question is whether that presumption is overcome by\u00a0a combination of other claim language and the specification\u00a0itself. \u00a0The Federal Circuit found that\u00a0the intrinsic evidence of the patent is unequivocal\u00a0that the inner layers described in\u00a0claims 1 and 28 are open, not closed, to blends of the\u00a0recited resins. \u00a0The Federal Circuit noted that\u00a0the resins listed do not constitute four\u00a0entirely different species but instead overlap to some
\nextent. \u00a0Moreover, claim 24\u00a0recites\u00a0that\u00a0at least one layer comprises a blend of at least two of said\u00a0resins. \u00a0Finally, the Federal Circuit observed that the\u00a0specification similarly supports construing the\u00a0element as open to blends, as it repeatedly and\u00a0consistently references blends in describing any and all\u00a0resins, including the four resins of the claim.<\/p>\nIn the light of this strong intrinsic evidence, the Federal Circuit held that the\u00a0Markush group must be read as open to\u00a0blends of the four listed resins.<\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
In Multilayer Stretch Cling Film Holdings, Inc., v. Berry Plastics Corp., [2015-1420, 2015-1477] (August 4, 2016) the Federal Circuit reversed the claim construction, and thus vacated summary judgment of non-infringement that was predicated on that claim construction. At issue was\u00a0U.S.\u00a0Patent … Continue reading