Bass Pro owns a patent covering a vest with an attached seat. In April 2003, Bass Pro sued its arch-rival Cabela’s for patent infringement and the parties quickly settled with Cabela’s agreeing to stop infringing under a consent decree signed by the judge. A year later, Cabela’s introduced a new product — a backpack with an attached seat. Bass Pro brought a contempt proceeding.
Modified Product Contempt Rule: When an enjoined party produces a modified device, a contempt order can issue only after a showing that the modified device infringes the patent.
It appears that Cabela’s accused backpack exhibits every element in the body of Bass Pro’s claim 1. The only difference is the preamble — Bass Pro’s preamble is directed to a vest and seat combo — not a backpack.
The district court, seeing the evidence, decided that the vest preamble should not be limiting — thus finding that the ‘vest’ claim covers the backpack product.
Amended Preamble: Ordinarily, a preamble does not create a cause for limiting the claim scope. In this case, however, the prosecution history led-us out of the ordinary. During prosecution, Bass Pro had amended the preamble to add the vest term (replacing the original ‘garment’). In addition, throughout prosecution Bass Pro had discussed its “vest” in contrast to prior art backpack-chair combos.
It is clear that this patentee procured the patent based on the “unique combination of vest and pivotable seat member” stressed in the prosecution history, where the applicant placed these limitations in the claims. The district court erred in holding that the “vest” of claim 1 was not a material limitation to the claim.
On the correct claim construction the vest is a material element, and the claim cannot reasonably be found to be literally infringed.
- I’m a big Bass Pro fan. We make an annual late-December journey to the store in search of fabulous Christmas presents. Let me suggest one in particular: This stove-top popcorn popper works amazingly well.