Acumed v. Stryker (Fed. Cir. 2007).
Acumed and Stryker both manufacture equipment for orthopedic surgery. Based on its patented nail technology for reconstructing humerus fractures, Acumed sued Stryker for patent infringement. A jury found the claims valid and that Stryker was a literal and willful infringer. Based on the verdict, the Oregon judge assessed enhanced damages and entered a permanent injunction against the adjudged infringer. Stryker appealed infringement and willfulness.
Claim Construction: The most-disputed aspect of the case involved the court’s interpretation of the claim term “transverse holes.” Every figure showed the holes, showed them extending “perpendicularly through the shaft.” Similarly, the description noted that the holes were “perpendicular.” Based on this intrinsic evidence and the precedential value of Phillips, Stryker argued that the claim term should be given a narrow meaning.
On appeal, the CAFC refused to limit “transverse holes” to holes that were arranged perpendicularly. In doing so, the court reestablished that the paramount rule of construction is that claims are given their plain meaning.
The plain meaning … covers more than the particular embodiment shown…. While the disclosed embodiment possesses “perpendicular” holes, the claim language covers all “transverse” holes—a word that does not necessarily imply right angles. Moreover, the patentees’ description of their preferred embodiment itself implies a difference between the words “perpendicular” and “transverse.”
In its analysis, the Court implied reasoning similar to that of claim differentiation. Here, however, the analysis compared the use of “perpendicular” in the specification with the word “transverse” as used in the claims.
The written description states that Figure 2 “illustrates a plurality of transverse holes, each of which is . . . perpendicular to the portion of the nail axis at the butt portion 14 of the nail.” ’444 patent col.2 ll.56-59. This implies that a “transverse” hole need not be “perpendicular”—if it were, the patentee would not have needed to clarify that these holes, in addition to being transverse, were perpendicular to the nail axis.
This case follows the same pattern as the en banc decision of Phillips v. AWH:
Just as in Phillips, where the asserted claim mentioned “steel baffles” and hence “strongly implie[d] that the term ‘baffles’ does not inherently mean objects made of steel,” this usage of language is strong evidence that the patentee considered “transverse” and “perpendicular” to have distinctly different meanings.
Narrowing Intrinsic Evidence: The court refused to give credence to the interpretation of the term “transverse” found in prior art that was cited on the face of the patent because the reference was not “created by the patentee in attempting to explain and obtain the patent.”
Judge Kimberly Moore dissented from this claim interpretation. Judge Moore would have held that the intrinsic evidence “fully supports” defining “transverse” as “made at right angles to the anterior-posterior axis of the body”.
The majority suggests that the use of both words “implies a difference between the words ‘perpendicular’ and ‘transverse.’” The majority contends that if transverse was meant to be construed as perpendicular, “the patentee would not have needed to clarify that these holes, in addition to being transverse, were perpendicular to the nail axis.” I disagree… [T]he patentee used the two words to clearly specify which of the definitions of transverse applied to his invention; the purpose of using the word “perpendicular” was to further describe what the inventor meant by the term “transverse,” not to distinguish it as the majority suggests.
Willfulness Affirmed:
[T]wo patent attorneys … at first strongly discouraged Stryker from marketing the infringing nail in the United States. Despite that advice, Stryker continued to push towards a United States market entry, filing its FDA application months before it received … revised [non-infringement] legal advice….The judgment of willfulness is therefore affirmed.
Permanent Injunction: Because the case was decided before eBay, the CAFC remanded for a finding on the equities.
Zoiks. They are perpendicular, however, to the nail reference axis–just not the local axis of the shaft through which they are bored. My apologies!
I have to say that I think Judge Moore’s opinion overlooked one small piece of intrinsic evidence that would tend to undercut her theory that “perpendicular” is used in the specification to clarify that the narrower definition of “transverse” is intended…
If one looks at Acumed’s patent, Col. 2, lines 61-64, discusses “three sets of transverse holes: proximal holes 44a-44d, intermediate hole 46, and distal holes 48a-48c.” If one references figures 1, 2, and 4, it is clear that holes 48a-48c are NOT perpendicular to the axis of the nail. This sentence, in combination with the figures it references, would seem to indicate that the term “transverse” is to be interpreted as including both perpendicular and non-perpendicular configurations, as per the majority’s interpretation of the term.
I am still unconvinced by Mooney that the specification supports the broader interpretation of the claims which Stryker infringes, but that is irrelevant.
This is a simple patent specification to write: short, compact, one embodiment, few figures, no lists of alternates and no broadening language. Yet, the US court interpreted the claims broadly.
This is contrary to patent drafting wisdom where the belief is that what you don’t illustrate and discuss ad nauseum is outside the scope of the claims.
I guess time will tell if the US patent system is a game of chance or whether there is enough clarity to rationally guide commercial activity.
Great discussion, for one from outside USA, asking: How would this case play out, in my jurisdiction. Like many cases in Europe, each country would follow its own line. The same party would win in most every country, but the reasoning would be different in each country. The Spannschraube case is a good example. The patentee failed in all but one country, either because his claim was held too narrow, or because it was wide enough to go down to the validity attacks. BTW, I think the Mooney view (that alone “perpendicular” means “close enough to 90 to work”) is the “right” one.
Great discussion guys. While it might be against “pith and marrow” or “essence of the invention” to rule that nearly 90 degree holes were not infringing, the intelligent and handsome (I have inside info) Erez has made some excellents comments. Especially the one about it not being easy to write claims (I add: that will be dissected years later in court). As I agree with him in that, I tend to include a lot of what I refer to as “wishy-washy” words such as “typically”, and “exemplary” or “for example”, “non-limiting”, “alternatively”, in the description. While there may be some foundation for the broader meaning of transverse in this case, the patent attorney should have written something like “transverse holes shown, by example only in this embodiment, as pependicular”.
Max:
Thank you for your detailed comments. Regarding Angiotech v Connors, Lord Jacob seems to say (paragraph 32) that in the UK a patent is given only for something that one discloses, not something that is implied by the specification. My feeling is that in ‘444 Acumed did not disclose non-perpendicular holes.
Malcolm:
You are right in principle, but I believe that in this case the facts are different.
Acumed sells a product where the holes are perpendicular.
Stryker sells a different product where the holes are not perpendicular. Even Acumed agrees the Stryker holes are not perpendicular and did not ask the court to define what angle constitutes perpendicularity. Thus your rhetorical question, though very important, is not relevant to this specific case.
What you are therefore saying is that you would find literal infringement for anything that “could be fairly inferred from an informed reading of …the patent by one willing to understand”.
I have again read ‘444 and I am sad to say that I do not agree with you that one could fairly infer the skewed holes of Stryker from the specification of ‘444. Even more so, I think that the Stryker product with the skewed holes should have been patentable in light of ‘444.
Very reasonable Malcolm. I struggle to counter your view.
But, Malcolm, even “transverse” is a word with a meaning that depends on context.
No doubt, but I think the most relevant context here is a specification which used the word “perpendicular” and “transverse” in a manner which suggests that the terms are not equivalent.
It’s also not clear to me what “perpendicular” would mean in this context. Is an 80 degree angle included? Probably that is why the applicant chose the term “transverse” in the first place: it is less plainly associated with a mathematically rigorous definition than “perpendicular” and therefore more suitable for describing the invention (which ain’t rocket science).
Post-Phillips, I think dictionaries are useful for impeaching an expert or showing that a patentee is engaging in chicanery, but I think infringers should have a very difficult time PROVING that they don’t infringe because a “favorite” dictionary has a slightly narrower definition than what could be fairly inferred from an informed reading of the four corners of the patent by one “willing to understand.”
But, Malcolm, even “transverse” is a word with a meaning that depends on context. It isn’t always wider than “perpendicular”. In web technology, isn’t the transverse direction always exactly perpendicular to the machine direction? I thought that “Dorland” was the “Bible” in prosthesis technology, and it says “perpendicular”. I have had one in my room for donkey’s years and trust it, when I want a definition of anything in the prosthesis arts. Presumably before the District Court Stryker adduced no witness evidence that, in the context of the Acumed patent, transverse would be understood to mean perpendicular.
To Erez Gur: Germany runs a DOE much like USA. England scorns a DOE but routinely finds claims wider than in Germany. Mabuchi Motor, construed in London and Munich, is a nice example. Inside the claim in UK, in Germany not literal nor even equivalent. England says “The claim has one meaning, same for infringement and validity. What comes after, and infringes, would, if coming before, take away novelty.” Germany disagrees. The English test seems to be the same as CAFC Phillips, but ain’t. It would deliver a different result in cases like Chef America (“at” 400F or “to” 400F). You have to put yourself in the mental condition of the PHOSITA reader and ask yourself “What do I think the writer of the claim was using the language of the claim to mean”. If you do that, you don’t need a DOE. Keeps things simple. Angiotech is a nice case on obviousness. England is rather hard-headed on validity issues, probably because the patents judges are all ex-barristers who have been defending infringers (and helping patent owners the rest of the time) for maybe 20 years before they took up judging. In Angiotech, the judge found that the Angiotech inventor had contributed nothing to the art that the PHOSITA would not have already found obvious after reading the closest art doc. The same claim was litigated in NL, where the first instance court had the benefit of the English first instance and appeal court judgements but still found the other way. By then, the claimed subject matter was commercially a great success. What will the NL appeal court do? We wait. It really is a 50:50 case on obviousness, but once the English Patents Court has decided a fact issue like obviousness, the appeal court is not going to reverse except when there is an error of principle. Is there an interesting claim construction point in Angiotech? Not so far as I can recall. The claim could not have been simpler. More or less a one-liner “A TAXOL-coated stent”.
“Acumed chose to write the patent as they did. Whether or not they meant to, they chose to not explicitly define “transverse” as broader than “perpendicular”.”
Tranverse means “acting, lying, or being across,” according to your own dictionary. That definition is consistent with Acumed’s specification. There is no case law requiring a patentee to expressly disclaim every other possible definition of a term, lest the patentee be bound to the narrowest definition of a claim term that can be found by the accused infringer.
That is why Moore is off the reservation on this case. It’s reasoning like Moore’s that led to the Phillips decision. Of course, that was back in the stone age, like three whole years ago.
“Stryker, not knowing which of the two definitions was correct”
LOL.
It may be that European practice is irrelevant to the discussion but I would like to point out the following (MaxDrei, I would appreciate correction if I am mistaken):
In Germany, Stryker would be found infringing as DoE is applied automatically;
In the UK, Stryker would be found non-infringing: you have only literal infringement. The court might discuss whether “transverse” is broader than “perpendicular” but in light of Angiotech v Connors it would seem the court would interpret the claims narrowly in light of the limited disclosure.
As for the issue at hand.
Acumed chose to write the patent as they did. Whether or not they meant to, they chose to not explicitly define “transverse” as broader than “perpendicular”.
Stryker wanted to market a product that did the same thing in the same way but was outside the scope of the claims. Unfortunately, the scope of the claims is unclear due to the use of the vague term “transverse”.
The Webster dictionary has two definitions for “transverse”:
1 : acting, lying, or being across : set crosswise
2 : made at right angles to the long axis of the body
Stryker, not knowing which of the two definitions was correct consulted Dorland’s Illustrated Medical Dictionary where they found that “transverse” means “situated at right angles to the long axis of a part.”
So Stryker went out and made a similar device that did not infringe the literal scope of the claims but maybe infringed the spirit of the claims.
Conclusion, despite her apparent lack of popularity amongst the readers here, Justice Moore (and MaxDrei in his first posting) was right. Stryker did not literally infringe the Acumed claims.
What do we learn? Patent drafting is a difficult. You have to write a spec knowing that it will be scrutinized in ten years. Sometimes you make what turns out to be a mistake in retrospect. Sometimes life is not fair.
“From one American to another: Get over yourself, dude. You add absolutely nothing of value when you dedicate an entire post to ranting about someone’s nationality. It’s crap like this that gives Americans a bad rep…”
Actually, no.
I called out some English oaf, and he deserved it.
But don’t mistake my dislike of English people who long for a return of “the sun don’t set on our empire” with pride in the American Empire.
What gives Americans a bad rep is the constant assault on the world for domination of corporate interests. Iraq/Iran front and center as a move to control oil – the fuel that feeds the corporate empire beast.
Have no doubt, this ties into patent law. The patent law, with the Roberts and the Moores leading the charge, is being slowly and surely moved to protect and benefit large corporations. Very simply, the U.S. military is not nearly as powerful as Coke or Microsoft.
If you want to dominate the world, you can’t do it with bombs alone – you must control the money.
So I view it all in the greater context.
The U.S. judiciary has been sliding quickly in the fewer-indivual rights / greater govt. control / greater corporation control direction for several years.
Decisions like New Haven exemplify the trend.
Decisions like Ebay exemplify the trend.
Patent law is going to be a major causualty.
The day when they nationalize the Patent for Rearden steel for “national security” is the day you know the fight is over.
But I do understand why America is not liked around the world.
It’s certainly not because an a–h–e like me is calling an English jerk a jerk – Most of the world got to experience first hand what tremendous abusers the English are. Nobody likes the English – except the English. I’d guess most former members of the old Empire would agree with me that an English guy attempting to criticize US law based no English law is bizarre.
But that’s not to say that the U.S. is any better – we just haven’t had as much time to abuse the world.
But we’re going to make up for lost time over the next few years with the economy failing and peak oil here and a govt induced chronic fear of “terror” driving the elimination of basic constitutional rights at home.
In short, people don’t like America because America has got its hands in everbodys’ shorts. And now that the Beast appears to be weakening – and reacting as all empires do with increases aggression – the complaints are beginning to mount.
So don’t lay it on me brother.
Dear Readers, my contribution above, written from continental Europe, adopted the “b-tt” word of an earlier American posting. I intended it to be light-hearted but I had not reckoned on the embarrassment, when it got readers like Mr Gideon aroused. Sorry about that. As to Malcolm Mooney’s perspicaceous contribution immediately above, and others, are we observing in the CAFC a plan, driven by Kimberly Moore and others, of Reductio ad Absurdum? If the present jurisprudence can be exposed as sufficiently chaotic, the pressure for a shiny new Statute will increase.
“I read the tea leaves as we are heading for “patent certainty” being emphasized in the future. I think the Kimberly Moore analysis will become the majority rule soon.”
Does not compute. The Moore “analysis” — reading limitations into the claim from wherever you find them — is the least certain of several possibilities. That is the way claims USED to be construed before Phillips brought the claim construction back down to earth.
“If the inventor did not contemplate holes other than perpendicular, then the dissent is correct. If the inventor contemplated transverse holes other than perpendicular, the spec should say so.”
You’re missing the point, which is the claims. If the claims, reasonably construed, are not reasonably enabled, then they are invalid.
Again, that is the framework which leads to certainty. The worst framework is one in which half-assed “doctrines” are used to rescue claims from invalidity by reading limitations into them which are plainly not there. The job of getting the “right” claims allowed is shared by the examiner and applicant. Both parties should be diligent and considerate of the consequences of omitting or including particular words.
I read the tea leaves as we are heading for “patent certainty” being emphasized in the future. I think the Kimberly Moore analysis will become the majority rule soon. While I empathize with the claim draftsman (and I share his pain since about all I do anymore is prosecution), we who write claims owe our clients a renewed dedication to proper spec and claim drafting.
§112 states that the specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. NOT WHAT THE PROSECUTING ATTORNEY OR THE LITIGATION ATTORNEY REGARDS AS THE INVENTION.
If “transverse” was intended to be broader than “perpendicular”, then the spec or drawings should have disclosed that. E.g., the holes are transverse, and in the preferred embodiment, the holes are pendicular.
If the inventor did not contemplate holes other than perpendicular, then the dissent is correct. If the inventor contemplated transverse holes other than perpendicular, the spec should say so.
I appreciate that this type of detail requires extra work in application preparation, but isn’t that why we are hired to draft the application? Especially if the scope of the “transverseness” of the holes is critical to the commercial viability of the invention.
Wow. I’m puzzled by the childishness of posters like Gideon. From one American to another: Get over yourself, dude. You add absolutely nothing of value when you dedicate an entire post to ranting about someone’s nationality. It’s crap like this that gives Americans a bad rep…
“Can we make European loud mouths, and particularly the English, identify themselves prior to posting? Maybe a small icon of an upturned nose?”
Is that all, Mr. Imus?
Can we make European loud mouths, and particularly the English, identify themselves prior to posting?
Maybe a small icon of an upturned nose?
English patent law?
Is England relevant anymore?
Hasn’t it been almost 100 years since England had anything to say about anything?
It used to crack me up in law school when very old cases would refer to English law. I’d think, “why not quote Zimbabwe law? It’s currently as relevant to the international scene.”
Where are you from:
Scott – “Scottland”
Welsh – “Wales”
Irish – “Ireland”
English – “Great Britain”
“Great Britain”! Certainly we should be amending our Patent Law to confrom to the Brits! I mean, they have the word “Great” in their name and, once upon a time, they were relevant.
Despite the invitation to butt out, I’m butting in again. Strikes me this case is a nice one for questioning the usefulness of the DOE. Of course the Acumed claim should have been held to cover embodiments where the bores are at more or less 90 degrees, but not exactly “perpendicular” or even “transverse”. Mr Mooney is right (yet again). Of course the accused embodiment exhibited that feature of the claim. Of course Stryker infringed. End of story, except that it isn’t, because we have to CHOOSE between literal and equivalent infringement, and that’s when the confusion and the squabbling begins. Why not do as the English do: construe the claim, then answer two simple questions. Is the accused embodiment inside its scope? Is anything old or obvious inside that same scope? End of story. Really. PS Alun Palmer, the case that will bring you up to date is Kirin Amgen in the House of Lords, speech of Leonard Hoffmann.
The etymology of the two words plainly shows that transverse means across and perpendicular means at right angles, and those two concepts do not always coincide.
I am not a fan of using dictionaries for legal construction, unless there is no indication of what was actually meant, as dictionaries often seem to be wrong, especially those chosen by examiners and judges! I am therefore quite grateful for Philips v AWH, although sadly it doesn’t seem to have filtered down to the examining corps yet.
In this case there is evidence of differentiation, i.e. that some difference or other between the meanings of these words was understood to exist. I agree with the majority that this should be enough.
As to Kimberley Moore’s dissent, it fails to hold water for the good reason that nobody skilled in the mechanical arts would need any clarification of transverse, and nor would they equate it to perpendicular anyway.
As for Catnic, yes I think the days of US courts looking to English precedents are all but over, at least in patent law. Anyway, Catnic’s rule of ‘purposive construction’ would lead to a similar result by a different route, as the bolt would have to be transverse to the extent that it served the purpose intended, which would certainly read far more broadly than exact right angles.
And as for the doctrine of equivalents not existing in English law, there was always the doctrine of ‘pith and marrow’, although I understand that it is superceded by later case law that I am not au fait with. Under the ‘pith and marrow’ doctrine, basically essential elements had to be literally infringed but non-essential elements could be replaced by equivalents or even omitted. What came after this I am not sure, but Catnic is not the only way to arrive at a broader than literal interpretation.
FWIW, I am a displaced Brit and only registered to practice in the US.
Regarding the claim interpretation of “transverse,” it appears that the Court followed Phillips (en banc) and looked to intrinsic evidence. I applaud the majority. Apparently, the dissent attempted to look to extrinsic evidence (another patent) to determine the meaning of the term. This, to me, means that the legacy of the pre en banc Phillips ruling will take a long time to excise.
In order to intepret “transverse” more broadly than “perpendicular”, the majority relied on the Webster dictionary while a professional dictionary used in the relevant field defined “transverse” as “perpendicular”.
The question then would remain: what is “perpendicular”? Does it mean “at a 90.0000 degree angle”? Almost certainly not, at least for the purposes of this sort of invention. The next question would be: what would one of skill in the art understand “perpendicular” to mean under the circumstances, i.e., what range of angles relative to the humerus? etc.
Majority did a fine job. Moore is out to lunch.
“I’m sure that they could have proven the existence of a not-enabled embodiment that had holes that were “transverse” but not “perpendicular” … thereby invalidating the claim because the specification does not enable the “full scope” of the claim.”
HAHAHA! That’s a great joke. Such an argument would fly if, for some reason, the patentee needed to prove that its claims were enabled for holes that were nearly parallel to the humerus. Then you’d be in the world of Liebel, i.e., the world of the greedy patentee who is trying to sue somebody who is doing something that any moron can see is outside the enabled scope of the claims.
“I disagree… [T]he patentee used the two words to clearly specify which of the definitions of transverse applied to his invention; the purpose of using the word “perpendicular” was to further describe what the inventor meant by the term “transverse,” not to distinguish it as the majority suggests.”
This is lunacy. Impeach Judge Moore.
If Acumed had tried unsuccessfully to make an embodiment in which the holes were not perpendicular, would this claim be invalid as not enabled (a la Liebel)?
If Stryker had the known about the Liebel holding, I’m sure that they could have proven the existence of a not-enabled embodiment that had holes that were “transverse” but not “perpendicular” … thereby invalidating the claim because the specification does not enable the “full scope” of the claim.
“Kimberly Moore, quickly showing that she is all about limiting the strength of patents.
I expect to see a lot more of this out of her over the next 30 years – lots and lots of decisions arguing for narrow interpretations, limited damages, and so on.”
***************************
Agreed. Hand picked by the BSA. Kimberly you don’t owe them now – you have a lifetime appiontment: If you want professional respect go sit as a trial judge on a couple of cases.
From my engineering background I wanted to see a patent written in excruciating detail describing every thing I could, the basic lesson my patent agent gave me was he wanted to use as few words as possible so no one could use them later against us! looking at this case it proves he was right.
Although the argument is interesting over perpendicular or transverse I cant help feeling from my little bit of understanding that the problem is the patent was written with a hole in it for some one to exploit.
Is that not the real issue?
I am generally inclined to support a patent holder, but after reading the decision I am sad to say that in this case the dissenting Judge convinced me.
In order to intepret “transverse” more broadly than “perpendicular”, the majority relied on the Webster dictionary while a professional dictionary used in the relevant field defined “transverse” as “perpendicular”.
Since claims are directed to one skilled in the art, it would seem unfair to use a general purpose dictionary when a professional dictionary is available, especially to support willful infringement.
As for DoE, the dissenting Judge gave a not-so-subtle hint (penultimate sentence) that Stryker infringed under the DoE.
Maybe the majority Judges believed that Stryker knowingly knocked-off the Acumed device with only a minor change and wanted to save Acumed the expense of suing Stryker under the DoE where apparently everyone believed Acumed would win.
Calling any patent attorney incompetent is over the top and speaks to how this blog, once filtered, has become infected by a few people who have a big ego and little work but to monday night quaterback – and a misplaced understanding of patent law and especially mechanical engineering.
Read the patent. I believe that any mechanical engineer would construe the term transverse as meaning “across.” Perpendicular is one of many angular orientations. Claim 1 as supported by the specification is clear. I believe the Majority decided this one absolutely correctly and issued a well reasoned opinion. I believe the same result would have been reached even if the term “transverse” was not used. In contrast, if the patent attorney used the term “perpendicular” there would be a major problem with broadening the scope under the DOE. In most mechanical cases, as here, there is no reason why claims could not have been drafted during prosecution in the manner the patentee wants to have them construed in future litigation – the contemplated interpretation was CLEARLY forseeable. See the CAFC’s decision in WHAM-O discussed on this blog (I do not have the cite. This is why drafting patent claims is so difficult. The DOE was not meant to provide relief for a patent attorney’s error. In this case, the patent attorney knew exactly what he was drafting and obviously did not want claim 1 to be limited to only holes disposed in a perpendicular orientation. In hindsight, it would have been nice to have a dependent claim saying “wherein said transverse holes are disposed perpendicular to said central axis of said butt portion.” As the CAFC pointed out, this was not essence of the invention. Too easy to Monday night quarterback. Chill out ……
Absolutely Len. But then, you see, being an Englishman, I think the DoE is yet another rubbish aspect of non-English patent law, that hinders the approach to fair protection for the patent owner and to legal certainty. Back in the 1960’s the UK had its “once in a generation” patent case at its Supreme Court. called Catnic, its point was whether 7 degrees away from the true vertical could be within the scope of “vertically extending”. It was, when tested under the English test, currently, “What was the writer of the claim using the language of the claim to mean?” As to Acumed, is it possible ever to screw in a bone screw exactly 90 degrees to the plate it is holding? So one reading Acumed would (I guess) have concluded “Oh, it means, perpendicular enough to work”. But then, it was no task of the Stryker opiner to predict the result under English law. I imagine it was perfectly reasonable for the opiner under US law to conclude “No literal infringement, so no serious risk of triple damages”. As an interested observer, I’m just trying to provoke comment, from those who do actually know something about patent law in the USA.
Kimberly Moore, quickly showing that she is all about limiting the strength of patents.
I expect to see a lot more of this out of her over the next 30 years – lots and lots of decisions arguing for narrow interpretations, limited damages, and so on.
Max — I didn’t read the opinion, but isn’t it possible that even if the court narrowly construed “transverse” to mean “perpendicular” that infringement could still be found based on the DoE? So maybe the same result would have occurred either way. This opinion appears to strongly contradict previous CAFC decisions. E.g., AKEVA L.L.C., v. ADIDAS-SALOMON AG.
Looking in from Europe, I would say that Stryker were unlucky. A competent patent attorney should know that “transverse” can be a synonym for “perpendicular”, depending on the context, and should have drafted the patent accordingly. Then the case would never have gone to trial. An appeal court should reverse only when it has to, and it didn’t have to here, even though I find unconvincing the majority finding, that, as used in the patent specification, “transverse” is wider than “perpendicular”. For me, the draftsperson was using them as synonyms. A clearing attorney, convinced that a court ought properly to hold that there is no infringement, should be able to attach to that opinion a warning of serious risk, without the consequence of triple damages. A party going down 1:2 in the CAFC ought not to have to pay triple damages
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