CAFC: Substantially Flattened Is Defined As Flatter Than A Cylinder

[Link to the patent drawings]

The Federal Circuit has given its ruling in a dispute over patented tampon technology.  (U.S. Patent No. 4,536,178 [pdf]).  At the district court level, the judge had awarded summary judgment of noninfringement to the alleged infringer.  However, on appeal, the CAFC reversed, finding that the lower court had improperly interpreted the term "substantially flattened" to mean "flattened."

The issue is whether the patentee properly claimed an oval as a "substantially flattened" circle, or more specifically, an elliptical cylinder as a "substantially flattened" cylinder. In construing the term "substantially flattened surfaces" as something flat in practice the district court erred in going beyond the intrinsic evidence. That evidence clearly indicated that the patent contemplated curved surfaces. Thus, we reverse the district court’s claim construction and conclude that "substantially flattened surfaces" means surfaces, including flat surfaces, materially flatter than the cylindrical front portion of the applicator.

In what may be a fore-shadowing of the upcoming Phillips opinion, the Court rejected the idea that (i) the term was ambiguous; (ii) that an expert’s testimony could be used to modify the ordinary meaning; or (iii) that the drawings limited the scope of the claimed term.

On remand, the Federal Court in Ohio must determine whether the newly interpreted claims cover the allegedly infringing product.


  • Download the Decision: Playtex v. P&G (Fed. Cir. 2005) [pdf].

3 thoughts on “CAFC: Substantially Flattened Is Defined As Flatter Than A Cylinder

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    U.S. Court of Appeals for the Federal Circuit decides tampon-related patent dispute: This opinion issued today arises from a dispute between rival brands of tampon applicators. I look forward to discussion of the ruling at “Patently-O: Patent Law Blog….

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