Federal Split Decision Highlights Unpredictability of Claim Construction (Once Again)

Kinetic Concepts v. Blue Sky Medical Group (Fed. Cir. 2009)

Virtually every theory or defense in patent law requires claim construction before coming to a final conclusion. This case focused on obviousness and considered how the results turn on the construction of the claim term “treating a wound.” A two-member majority (Judges Prost and Bryson) narrowly construed the term to only include treatment of surface wounds (instead of internal organs) and affirmed a nonobviousness holding. The dissent (Judge Dyk) saw a broader definition leading him to a conclusion that the claims were obvious in light of the prior art.

Hal Wegner aptly notes that it would be “difficult without an intensive study of the record to determine whether the majority or the dissent has properly construed the claims under Federal Circuit precedent: Indeed, it is possible that both constructions are acceptable. Kinetic Concepts thus once again points to the continued imperative of statutory claim construction reform.”

As per usual, Judge Dyk’s dissent is sharp – finding that the majority erred first by finding that the term should be limited to the disclosed embodiments and erred again by narrowly misreading the scope of the disclosed embodiments:

“In my view, the majority improperly holds that the claim term “wound” can be limited to the disclosed embodiments in the specification, and, having done so, then misreads the specification as showing only embodiments treating harm to the surface of the body or skin wounds. Under the correct construction of this claim term, the asserted claims of U.S. Patent Nos. 5,636,643 (“’643 Patent”) and 5,645,081 (“’081 Patent”) would have been obvious.”

Notes: Read the decision 07-1340.pdf.

106 thoughts on “Federal Split Decision Highlights Unpredictability of Claim Construction (Once Again)

  1. 106

    guy with not-so-tricky question,

    Yes, there is tons of case law on this. If, as you say, “the applicant clearly expresses a narrow meaning for the claim element,” then the applicant has probably disclaimed part of the claim’s potential scope, and this will affect a court’s later construction of the claim, whether or not the narrow meaning is essential to patentability. (The “probably” arises because the applicant’s surrender of claim scope must be “unmistakable,” according to case law. Thus, the case law tends to give the applicant the benefit of the doubt.)

    However, note that this is usually referred to as “prosecution disclaimer,” and is different than “prosecution history estoppel,” which affects the scope of a claim under the doctrine of equivalents and thus is not actually a claim construction issue. See link to iptoday.com for discussion of these two distinct doctrines.

    It is apparently possible to retract statements that otherwise might give rise to prosecution disclaimer. Of course, it must be done before the patent is allowed. See Hakim
    v. Cannon Avent Group, PLC, 479 F.3d 1313 (Fed. Cir. 2007)

  2. 105

    I have a kind of tricky question about claim construction.

    What if, during prosecution the examiner wants to interpret a claim element broadly (so he can cite some p/a against it), but the applicant clearly expresses a narrow meaning for the claim element, in an effort to distinguish over the art. They never agree on that issue, but at the end of the day, the examiner grants the patent because of some other unrelated, added limitation to the claim.

    How does estoppel fit in? Do we assume that the applicant will only get the narrow scope and can’t claw back the broader scope in an effort to capture an infringer? Or would the court defer to the examiner who gave the claim element the broader construction.

    Would they throw out both the examiner’s and applicant’s statements as being inconclusive and just look to the patent specification and rely on experts to give them the claim element’s meaning?

    Is there any case law on something like this? i imagine it isn’t an isolated incident.

  3. 104

    Dead right Jonathan. I can’t say any of that stuff. I would prefer not to swap with you though. I’m 100% happy, doing what I do (working and complaining, that sort of thing) and I can see that you are just as happy, doing what you do. But back to the subject of this thread. I forget, just what was your contribution?

  4. 103

    Its easy Maxi, spend less time complaining and more time working, thats how we used to figure it in the good old daze when we worked on the continent old chap!!! Bravo!

    FYI- I am very succesful and I do not like to be talked down too. I think I am probably smarter than your paralegal Looney Mooney. I certainly am more succesful.

    I am running a law firm from my cell and out-sourcing the work to some guys in India. I do not think they even have college degrees but who cares, I am making a killing.

    My main client is researching bionic nanotechnology medical device algorithm development via blackberry, both in and outside of the US (I advised them to do part of the algoritms outside of teh use for 271(g) and (f) purposes) and anyways it was great advice because they are located in Slovenia anyways. I charged them big for that advice. Now that’s complicated stuff!!!

    Currently we are in late stage negotiations with some of the biggest players in the field. Doubt you or Mooney can say that.

  5. 102

    Now you’ve got patent law sorted, Jonathan, perhaps tomorrow you and your cellmate could quickly put the copyright world to rights. It is even more complicated than patent law, and desperately needs some clear-thinking person to explain to the practitioners, the judges, and the university professors how to get the law out of the present mess it’s in.

  6. 101

    My cellmate and I were talking about novelty today.

    We came to the conclusion that US 102 is definitely much better than European Novelty law. US 102 has many equivalents in EPO law, but just coined another way. The US 102 standards are more flexible and give an advantage to US filing. The EP system has its quirks with novelty and certainly many problems. On top of that you have each EP national court implementing novelty standards according to a different set of rules in important infringement proceedings (and even worse in countries like Germany with their silly nullity proceedings (how existential!!))

    US 102(a) and (b) I like and are better than Euro novelty law. Making the inventors file first before they publish is not really necessary and overboard.

    102(d) no biggy makes sense
    102(e) gives a good advantage to filing in the US first.
    102(f) is basic and has equivalents in EPO law.
    102(g) is a conflict resolution proceeding to add clarity to the playing field. Some complain its complex and antiquated, but its there. Probably could use an update.

  7. 99

    “maybe our paralegal Mooney…”

    Did Mooney get a promotion? I thought my french fries tasted less bitter recently.

  8. 98

    Max,

    Honestly, I don’t know why we don’t have a first-to-file system, which would greatly simplify 102. Someone seems to have conned independent inventors and small companies into thinking they are better off under first-to-invent. They appear to be under the mistaken belief that large businesses and corporations are on the ball enough to file applications faster than they can, which is so not the case from my experience.

  9. 97

    “Given the powerful search facilities Professor Crouch provides, for his “Patently-O” and “The web” which goes to “google,” with every new article he publishes on the web, I’d feel comfortable that disclosing my engineering improvement on Patently-O would be publishing for my prior art purposes against an “add-on” patent application.”

    JAOI, you can also start your own blog. It’s very free and easy … (the way it’s supposed to be …)

  10. 96

    “You have much to learn my friend and Looney-Mooney too.”

    *sigh* Another pseudonym. Same jerkoff troll.

  11. 95

    Jaoi, isn’t it like everything else: the evidence will be decisive. So, if you can prove, 10 years from now, to the satisfaction of a jury, clearly and convincingly, that you did indeed publish today, you should be OK. But, if the matter in dispute becomes one worth millions, and your proofs aren’t lawyer-proof, the other side will find it worth arguing against your position, all the way to the CAFC. So, concentrate more on having solid proof that you published, rather than worrying about the right choice of channel for your publication.

  12. 94

    Dear Leo et al.,

    Re: Can a patent’s file history be prior art?

    MANY THANKS TO ALL for the responses yesterday to my non-academic question.

    For clarification purposes, I’ll review my concern and what I take away from yesterday’s comments.

    MY CONCERN: I have a patent pending. I thought of a neat but minor engineering improvement that I did not specifically disclose. I would not like an other inventor to pick up on my application when it is published, figure out the neat engineering improvement and file an “add-on” patent application on the neat improvement and thus attempt to block my use of the neat improvement.

    Even though I invented it first, if I don’t file an application on it or publish it, and the other inventor did file a patent application for the neat improvement, all else being equal, he’d be entitled to a patent which could block my use of the neat improvement.

    My thought was that, if I filed a supplemental paper in my pending application disclosing the neat improvement, perhaps after receiving a NOA but before the patent issues, an other inventor would be blocked from claiming the improvement because I would have effectively “published” my neat improvement in my own file history.

    While I appreciate Professor Crouch’s reference, Bruckheimer v. Ground Heaters (Fed. Cir. 2006), most would say the Bruckheimer opinion sucks big time and flies in the face of other opinions. Therefore, I would not rely on Bruckheimer, although I would not be ashamed to argue Bruckheimer in litigation (but it would be hard to keep a straight face while doing so).

    I think a simple solution arose out of yesterday’s commenting.
    A solution to my concern lies in my
    “Follow up:
    Rather than file a supplemental paper in my pending proceeding, suppose I disclose my engineering improvement on Patently-O.
    Is that publishing for prior art purposes?”

    Given the powerful search facilities Professor Crouch provides, for his “Patently-O” and “The web” which goes to “google,” with every new article he publishes on the web, I’d feel comfortable that disclosing my engineering improvement on Patently-O would be publishing for my prior art purposes against an “add-on” patent application.

    * * * * *

    But what about the lack of permanency of articles published on the web?
    How does that potentially effect publishing for prior art purposes?

  13. 93

    Dennis doesn’t need to do any research Leo because their isn’t any unfairness, just prejudice against FtF. People think FtF is associated with hurried speculative filings that are not enabling, but which do give the premature filer the edge over the “real” inventor. The reverse is the case. By virtue of the 100+ year old Paris Convention, and its requirement for the “same” invention, poorly “drafted” inadequate US provisionals are liable to fail all round the world, even if they succeed in the USA.

  14. 92

    Bread, far be it from me….bearing in mind that the pre-1978 UK system didn’t publish till after the app was allowed. But at least it had a 30 month cap on submarine pendency. Fail to bring your app to an NoA within that period, and it got wiped instead. Since those olden days of my youth, the world(!) has standardised on an 18 month black hole, between 1) earliest declared priority filing date and 2) publication to all the world (that word again).

    Except for inventions of defence interest, of course. You know, the NATO Agreement on the Mutual Safeguarding….But that’s another international, level playing field story, isn’t it?

  15. 91

    “Of such a pair, which one shall get the exclusive rights? I think you haven’t yet answered my question.”

    I thought my answer was pretty clear. And it’s not pointless complexity – there is a point. Rather, it’s wasteful complexity. The best system is the one that gets the most information out to the public, at the lowest total cost. That cost includes the monopoly costs, of course, but also includes all of the resources spent on filing affidavits, fighting interference battles, and just figuring out how to apply the law to the facts of each case. I haven’t seen any empirical research (Dennis?), but I doubt very much that these latter costs are outweighed by the “unfairness” that the first-to-invent system allegedly prevents.

  16. 90

    Leo, I’m not talking about punishing those who abandon, or hide, or who lack diligence. Just two diligent inventors, who both conceive and reduce to practice and publish. Of such a pair, which one shall get the exclusive rights? I think you haven’t yet answered my question. But thanks anyway, for your remarks on pointless complexity.

  17. 89

    MaxDrei,

    I have to wonder how you feel about the US ability to request non-publication of the application.

  18. 88

    “Tell me why, in logic, the diligent person who is First to Invent, but doesn’t tell the public about it till much later, should be the one, who prevails, in preference to the even more diligent one who is second to invent, but first to donate an enabling disclosure to the public.”

    Max, there is no good reason, which is why our “simple” Section 102 actually does punish the “first” inventor who hides his invention. Notwithstanding the rhetoric, the U.S. system is effectively already a first-to-file system, with just a little fuzziness added to the edges. A formal change to first-to-file would simplify the statutes and regulations quite a bit, without much impact to diligent inventors.

    My humble opinion, anyway.

  19. 87

    Indeed I do have much still to learn, Bird. Was it not St Edmund of Abingdon, a thousand years ago, who urged us all to live every day as if it were our last, but study as if one is going to live for ever? I’m delighted to assure you that my clients are not poor, at least judging by the invoices they pay. I want you to make money too, but in proportion to your wisdom and experience. Promoting the useful arts is achieved by publication, as you say. I agree.

  20. 86

    Oh Maxi, I was not suggesting the strategy was novel, but just sought some practical advice from the otherside of the pond on how to counsel clients on novelty issues.

    I am surprised that a learned man as yourself does not appreciate the benefit of an early 102(e) date , tsk, tsk. And your poor clients…

    Once again more meanlingless dribble about raisons de etcetaras. The reason of the patent systems is to promote the useful arts (making money) not early disclosure silly boy. Patents are about business. You have much to learn my friend and Looney-Mooney too.

  21. 85

    Tell me why, in logic, the diligent person who is First to Invent, but doesn’t tell the public about it till much later, should be the one, who prevails, in preference to the even more diligent one who is second to invent, but first to donate an enabling disclosure to the public. Rank the acts, “conceiving”, “super diligence” or “publishing an enabling disclosure of what has been conceived”, in order of worth to the US economy. So, which of them should be encouraged as a matter of public policy (remembering that “conception” is a sine qua non in both FtI and FtF)?

    Doesn’t the Bible have something to say about motes in eyes. Even more true today, I clearly see.

  22. 84

    A little something for the actual person first to invent…

    Aint Over.

    No wonder you don’t understand the question – you can’t see your bias and how it affects your views.

  23. 83

    Calling Noise, Sorry, I don’t understand your question. First to File gives exclusive rights to the first who files an enabling disclosure. Filing is followed, a fixed interval later, 18 months, by A (or WO) publication, so the party who is first to file is the one who first imparts to the public the enabling disclosure that is the quid pro quo for the award of exclusive rights. Fist to Invent is always liable to give a 20 year monopoly to a party who was NOT the first to gift to the public an enabling disclosure how to practise the protected subject matter. So, FtF encourages early filing, and early disclosure, which is the raison d’etre of any patent system. Over.

  24. 82

    Now I’m more confused J-Bird. If all I’ve got is meaningless dribble, why bother asking?

    Anyway, your idea isn’t original. Loads of people already file a US provisional same day as they file at home, somewhere outside the homeland. Why I’m not sure. For the rest of the world, a priority date is a priority date is a priority date, regardless which Patent Office you use for filing first. Imagine (you have the time, it seems) what would be the state of the world for a private inventor, if every country had the same patent law as the USA? Beggar my neighbour protectionism is a very topical subject right now. Meanwhile, US law rules, OK? “File anywhere in the world you like, as long as it’s the USA”. Henry Ford comes to mind “You can have any colour you want, as long as it’s black”.

    Is that enough meaningless dribble for you for today?

  25. 81

    MaxDrei, once again you let your prefered method cloud your judgement.

    “…inherent purpose of any patent system, namely, exclusive rights in return for earliest possible enabling disclosure.”

    With the debate between first to invent versus first to file not even close to being over, wouldn’t you agree that its a premature reach to say that “first to file” is the inherent purpose when it deals with “exclusivity”?

  26. 80

    I am so let down Maxi, I thought you would be billing your clients for offering practical advice on patently-o rather than philisophical dribble about the superiority of the European system.

    Here is one for you and Mooney who both seem to bill for meaningless theories on mispercieived superiorities of systems that are “broken”:

    Would you suggest that some of your European clients file US applications (e.g., provisional patent applications) at the sametime they file their european priority document so as to take advantage of an earlier 102(e)date? I have been considering such a strategy for my imaginary clients once they let me out of the state pen.

  27. 79

    Eye, thanks. Difficult to quarrel with that. So, I won’t. But I will add two caveats. First, FtI is inherently complex, you admit. But it is also contrary to the inherent purpose of any patent system, namely, exclusive rights in return for earliest possible enabling disclosure. So, all in all, it’s not got much going for it. Second, If after 50 years, the CAFC still can’t agree what “publication” means, that speaks against your opinion that 102 is as clear as can be, even if FtI is a given.

    J-Bird, sorry, don’t understand the question but, even if I did, I have no motivation to answer it, and I ought to be billing my time here anyway. You won’t hold that against me, I hope.

  28. 78

    whoopsy daisy,

    I meant to ask ro advice regarding the difference between 102 in the US and novelty in the EPO…

  29. 77

    Max –

    I am no attorney, I anm no JFK either, just a plain old J-BIRD (state pen), so kudos to you too!

    I am interested in hearing what your general advice would be to your European clients in view of the differences between 102 in the US and novelty in the US, and how to handle filing strategies inview of this basic difference?

    Or maybe our paralegal Mooney could field that one?

  30. 76

    102 is a simple (but not too simple) statute designed to deal with the complexities of accurately determining superior absolute first-in-time rights to an invention.

    It works.

  31. 75

    Mr Hutz, look, I’m a patent attorney. 102 is not “difficult” in the sense of “I can’t understand it”. Not as well as you, sure. But I don’t have much difficulty reading and understanding its words, even without moving my lips. Rather, it is “difficult” for me in the sense that I’m used now for 30 years to the deadly simple European definition of the prior art, and so have “difficulty” to explain the logic of 102 to trainee patent attorneys. I don’t even try to explain it to lay clients. I happen to think that, inherently, patent law is beautifully simple and elegant, and universal, and that 102 does a great job of betraying patent law, by obfuscating the inherently very simple concept of “the prior art”, and so leaving everybody who is not a patent attorney thinking that patent law is so complex that only experts can understand it. But obfuscation is what American lawyers crave, no? It’s the highest expression of their calling, I am supposing, and very much in the national interest. Where will we all be, when all those foreigners think that they have grasped US law. It doesn’t bear thinking about. If the alien urges simplification, that proves it’s the wrong way to go so, lads, the opposite direction please, full bore towards complexity. Contradict me please. You would cheer me up.

  32. 73

    JAOI,

    If I understand your facts correctly, you could file a CIP, or simply a new application within 2.5 years of your first application, if you do not care about the original filing date. The only way your own art can be used against you is under 102(b) or 102(d). 102(a) and 102(e) cannot be used against you as long as the inventive entity remains unchanged. Therefore, you have up until one year from publication to file a new application covering the improvement.

    Further, given the static nature of this website, publishing your idea here on Patently-O should probably suffice, except that there is no index.

    Which brings us to Brucklemeyer, a decision I do not undertand. If there is no publicly available subject index, then my understanding has always been there is no disclosure.

    So, with regard to Patently-O, I am no longer certain.

  33. 71

    “the Canadian file wrapper was the file wrapper of an abandoned Canadian application that wasn’t indexed anywhere and could only be found if you went to the archive somewhere in the boondocks and looked at it – which you’d never have done if you didn’t already know what it contained.”

    What’s horrible about invalidating a patent based on a pre-existing, publicly disclosed document? Answer: nothing.

  34. 70

    It figures Mooney would think that Brucklemeyer was an ok decision. It was a horrible decision, because the Canadian file wrapper was the file wrapper of an abandoned Canadian application that wasn’t indexed anywhere and could only be found if you went to the archive somewhere in the boondocks and looked at it – which you’d never have done if you didn’t already know what it contained. The decision deviated from the CAFC’s own precedent regarding similarly situations like unpublished doctoral theses, which said that if they weren’t indexed somewhere they don’t count as publications. As is the case in 99% of her dissents, Judge Newman was absolutely right.

    JAOI, here’s a situation where a file wrapper could be prior art: you file a provisional that contains disclosure A +B, then file a non-provisional that discloses only B but claims priority to the provisional. When the non-prov publishes, the prov becomes publicly available, and A is now also in the public domain and available as prior art.

  35. 69

    I’m just surprised that I haven’t seen more defendants look to the file histories of relevant prior references to cite the “teachings” of the examiners in the office actions. Office Actions add all sorts of teachings that are arguably published.

  36. 68

    JAOI “Rather than file a supplemental paper in my pending proceeding, suppose I disclose my engineering improvement on Patently-O. Is that publishing for prior art purposes?”

    Yes.

    Newman: “It is undisputed that these cancelled drawings are not available in any database or any library”

    Huh. I wonder how the Canadian Patent Office works without a filing system.

  37. 67

    I was just going to say that you should make your own website and pub it there. Easy, should take less than a day.

    As to the NOA, has nobody done a google yet? Post a serial and I’ll be glad to help you out of your predicament of having this patent app issue :)

  38. 66

    Super. A second brilliant question. We know already what Malcolm Mooney will answer, but does that finally dispose of the issue? What “index, catalogue or abstract” covers for Mrs Newman the content of the Patently-O blog threads? Still, at least you don’t have to trek to Canada to read it. But is that a relevant, or decisive, factor?

  39. 65

    Follow up:
    Rather than file a supplemental paper in my pending proceeding, suppose I disclose my engineering improvement on Patently-O.

    Is that publishing for prior art purposes?

  40. 64

    Leo,

    Re: Can a patent’s file history be prior art?

    Yes, I thought my question was interesting. However, my question was by no means academic.

    I have a patent pending pro se with a little help from my friends on which I expect to receive a NOA. I thought of a neat but minor engineering improvement that I did not specifically disclose. I would not like anybody else to file a patent application on the neat improvement to block my use of the improvement.

    I could of course file a C-I-P, but that would take time, effort and more money.

    It appears there is a definitive answer to my question, “Can a patent’s file history be prior art?,” and that answer is “YES.” Therefore, I can merely file a supplemental paper in my pending proceeding disclosing the improvement and be done with it.

    Given Professor Crouch’s Bruckheimer v. Ground Heaters (Fed. Cir. 2006) reference, I feel my supplemental paper may suffice for my purpose.

    However, the denial of an en banc Bruckelmyer rehearing is pretty nauseating to me.
    Judge Newman wrote this in her Bruckelmyer dissent on June 28, 2006:

    “It is undisputed that these cancelled drawings are not available in any database or any library, and that no index, no catalog, no abstract suggests their existence or their content. It is not contested that the only way to obtain these drawings (although their existence was unknown) is to personally go to the Canadian Patent Office in Hull, Quebec, and ask to examine the file wrapper (the prosecution history) of this particular patent, which is entitled ‘Portable Construction Heating System’.”

    PS: Before I read Professor Crouch’s comment, I was about to make a comment regarding Mr. Anonymuss’ comment – I was about to point out that Public PAIR is not per se searchable. Silly me, and silly Judge Newman.

  41. 63

    Now I really am confused. Malcolm says that everything that is “publicly available” is within the state of the art. Now that’s the European standard of course. I hadn’t realised that this is also all that 102 comprehends, when it’s properly construed (except of course when Pauline Newman’s the one doing the construing). The plot thickens. More contributions please.

  42. 62

    “6, let me be the first to thank you and your friend mooney for volunteering to be a part of the proper tempering of my greed. ”

    Iirc the CAFC is the one actually doing it. We’re just humble prophets.

    But yw.

  43. 61

    Well BIRD, you see, I’m not an attorney at law, just a patent attorney. I get my kicks from the technical content of my cases, just as much as applying the law to that substance. But mainly I get my kicks from enthusing my clients with the usefulness to their business of patent law, and its elegant simplicity. Clients begin with a jaundiced view, but soon the corporate employees I deal with get round to being fans of the patent system, and wondering how they too can become patent attorneys. i couldn’t be a patent attorney in the USA. I couldn’t even start to explain 35USC102 to such a person, let alone get him/her enthusiastic about it.

    But, each to his own.

  44. 60

    “I just saw these comments regarding using a file wrapper as prior art. There is one case on point where a US court found that a Canadian file wrapper did count as prior art. Bruckelmyer v. Ground Heaters (Fed. Cir. 2006).”

    Yes. I thought JAOI was talking about using an application’s own file wrapper as prior art.

    I have no problem with Bruckelmyer. If material is publically available, it’s prior art.

  45. 58

    Thanks Leo for your candour. Does anybody in the world know the answer to this amazingly simple question, whether any single document in a USPTO file wrapper can be “prior art”? I can’t believe what I’m reading here. Seriously, does anybody in the USA advocate that the rest of the world should be adopting the provisions of 102? What’s the definition of prior art in Iraq, for example.

  46. 57

    I think what is missing here by Maxi and his paralegal Mooney is that the real world is not so clean and simple as the majestic crystalline palaces of philosophical self-serving conjecture they spout out ad nauseam. ;)

    What happens when it hails outside?

    Sometimes the bad guy has perfectly written claims. What are the courts supposed to do, just let them off the hook?

    Sometimes the good guy flubbed up his claims. What are the courts supposed to do?

    I like a system that has some flexibility in it.

    How boring it would be if everything was simple and clear, don’t you think Maxi?

  47. 56

    Max, you (helped) set me up…

    However, although you’re right that Section 102 can be quite complex, I don’t think that implies that it is uncertain. The complexity stems from the fact that there is no single definition for “prior art”; the content of the prior art depends on its application. Thus, I respectfully disagree with Anonymous’ answer, at least a little.

  48. 55

    Readers, I commend to you the Eye’s pronouncement, higher up, that 102 is elegantly simple and delivers as much legal certainty as is possible. To me, coming from the European definition of what constitutes “prior art”, there seemed nothing at all problematic about the question “Is the file wrapper part of the prior art”. Simple Y/N answer. Where’s the issue? Shows how little I know, for then the answers start to arrive: “It all depends”, or “F’ed if I know. Let’s ask Dennis.” JAOI, you knew already what the answer would be, didn’t you, you teaser. But thank you so much. From this blog I learn something new every day.

  49. 53

    “Judge Scalia will relish commenting on such things, right?”

    Who cares what the term “useful arts” meant to Jefferson or Madison or any other slave owning hypocrite.

    What’s important is what it means to us. Now. Here in 2009.

  50. 52

    Max, I think JAOI(TM)’s “chosen profession” is inventor, and I don’t think he would send a trick question to his best pal.

    The short answer to the question, however, is “I don’t know.” After a little research I could likely get to the lawyer’s standard answer: “It depends.” Completely off the top of my head, I don’t think it could qualify under 102(b) or 102(e), which are the usual suspects. 102(a)? I’d have to think about that, but I suspect that “it depends.”

  51. 51

    Interesting question, JAOI.

    Most stuff in the file history is already prior art (e.g., published references, the presumably published specification of the application).

    The remaining material (e.g., copies of previously non-public documents) should be prior art at least on the day the application and file history was made public record.

  52. 50

    JAOI, I’m wondering whether your second sentence is merely a statement of one thing that JAOI doesn’t know, or a trick question seriously directed at practising lawyer Bloom Esq. Meanwhile, it seems that your “chosen profession” is not what I thought it was.

    Mr Bloom, do reply. I’m interested too.

  53. 49

    Hi Leo,

    I am often surprised by how much I have to learn about my chosen profession, even about some very basic matters.

    For example, can a patent’s file history be prior art?

  54. 48

    “The suggestions by mooney, myself, and others about limiting patentability to what it was intended rather than seeing the law as “living” and “growing” into areas where it was most certainly not intended to go are merely a part of that proper tempering.”

    6, let me be the first to thank you and your friend mooney for volunteering to be a part of the proper tempering of my greed. I don’t know where we’d be without public-minded folks like you.

  55. 47

    Yes, and on the subject of “creep” and “pushing the envelope” and State Street, I should be interested in any commentary from readers on the Constitution’s use of the term “useful arts”, as explored in one of the Bilski dissents. It means the same in archaic language as that which artisans do, doesn’t it, and what GATT-TRIPS calls (in modern language) “all fields of technology” and not what the accountants (to call them financial “engineers” is dishonest) practise on Wall Street. Judge Scalia will relish commenting on such things, right?

  56. 46

    “Greed > opportunity: Something that we as a world are in dire need of these days.”

    As I understand it, it was corporate greed that got us into this mess, and what is still keeping us in this mess. Hopefully though that is what will get us out of this mess, when it is properly tempered. The suggestions by mooney, myself, and others about limiting patentability to what it was intended rather than seeing the law as “living” and “growing” into areas where it was most certainly not intended to go are merely a part of that proper tempering. What of it Eye?

  57. 45

    Well, Eye,I do have trouble discerning the “intent” of the Statute, no matter how much you urge on me that 102 is “elegantly simple”. I can’t help comparing it with the irreducible simplicity (and elegance) of EPC Article 52/54/56, and finding 102 (in particular) anything but elegantly simple. Relatively speaking, that is. WiseUp suggests that I can’t see the “Big Picture” but a satellite orbiting the world does see a big picture, and I’m looking in on the US landscape from thousands of miles away. It’s the fine detail I can’t see. Thank goodness. You write as if only in the USA is there a patents system to Promote the Progress. There are plenty of examples of the patent system in Europe helping the little guy to make millions, you know. Whichever country you live in, you hear that its inventors are the best: Germany, UK, USA. Thinking reasonably, what else can one expect? You think the US patent system gives US inventors an edge over all the aliens, labouring under the yoke of a patent system not like that in America. I think the opposite. But then I would, wouldn’t I?

    Tell you what. Give me one day with a dozen impartial and neutral members of the public, to explain European 52/54/56, then you take one day to explain 101/2/3 to them. After that, we’ll ask the jury questions, to see which bits of patent law they have understood. Then we can see which theory is more elegant and simple, and which one inventors perceive as offering them better chances of making money.

  58. 44

    One more thing Max, believe it or not, the U.S. patent laws, vis a vis 101, 102, and 103 are actually elegantly simple when you think about it. That is what Rader is saying in the Bilski dissent, that when things get a little crazy, fall back to the actual language and intent of the statute. In the U.S. there at least was a desire not to arbitrarily restrict the scope of patentable subject matter. That’s pretty simple.

    And simple application of the language of 101 accommodates infinite complexity for those that know what they are doing. Kind of like Mandlebrot’s fractal generating equation z(n+1) = z(n)^2 + c.

    Simple, elegant, bounded, but leading to infinite complexity.

  59. 43

    Of course guys like Mooney are too ashamed and full of self-loathing to be for the prospect of anyone actually being motivated purely by making money and anyone actually setting out to and succeeding at doing so.

    There will always be doers, like most of the inventors I’ve ever met, and there will always be naysayers like Mooney, who do nothing but sit back and say “it can’t be done.”

  60. 42

    I am all about keeping it simple Max. But not simpler. And in a perfect world, law would not be necessary. But our world will never be close to perfect, except that it is predictably and perfectly “imperfect.”

    Since substantial interests always ride on one claim construction vs. another, you will not see the disadvantaged side simply giving in to a simple minded formula for deciding a matter of law like a claim construction.

    I am not propounding the need for the patent legal system out of pure self-interest, I am propounding the need for the patent legal system as a tried and true system for determining superior rights to technological inventions based on the good old fashioned legal/adversarial manner of resolving disputes.

    It is what makes America great and gives those with superior rights but not superior market predominance a chance to open up a market changing niche and create new opportunities to make money and expand the economy. Something that we as a world are in dire need of these days.

  61. 41

    Eye, I can see that you are not in my “Let’s Keep It Simple” camp but, reassure me please, that you’re not in the pure lawyers’ self-interest camp of “For G0d’s sake chaps. Eyes on the ball please. Round here we like to keep it complicated, right?”. For other readers, the most beautiful mathematics is the elegantly simple. So too, in the law. It is possible.

  62. 40

    Thank you john.

    There is not a foolproof test, because if a test were possible, there would be no need for patent law. All claims would be self-evidently clear at the outset (as they already are in Mooney’s world).

    Fortunately, there are still some areas of professional endeavor that can’t be resolved by simple mechanical application of foolproof tests. Thank god for that.

  63. 39

    Prof. Noonan, was it not Max Planck who observed that a new scientific theory never displaces an old one by changing the minds of established scientists but only by finding favour with young scientists, who come to prefer the new theory over the old. I think the same of legal theories. That’s why this blog is interesting. Does the sun go round planet Earth, or vice versa; does your G0d orbit mine, vice versa, or do the atheists have it right? Does rest-of-the-world patent law orbit US patent law, or will it one day be vice versa, I wonder. And, John Prosecutor, you must be a politician, in that you answer the question that was never asked. Did anybody round here ever assert that any claim construction methodology was “foolproof”? I prefer Murphy’s Law (what can go wrong will go wrong). So, let’s keep things as simple as we can, no? Malcolm, of course one holds claim drafters to what they write. Else lies chaos. But not to the extent that it’s unreasonable. When construing a document, we should all adhere to the good Principle of “Synthetical Propensity”, I say. You know, the one lauded in the EPO Caselaw Digest? Tell me, are you on the chemical side, or an engineer? The skills of drafting relative to a prototype machine are somewhat more subtle than merely claiming “Molecule X”. Maybe that’s why I’m more touchy-feely than you, when it comes to judging the performance of claim drafters.

  64. 35

    Spanking, toilets, cripes here we go again…

    Next thing you know the white wine will be coming out.

    By the way despite Mooney’s “fondness” for me, I don’t like him in that way. I keep trying to tell him every time he calls, which, since Betty Crocker threw him out of her kitchen, is just about every 15 minutes.

  65. 34

    MD, I have a fondness for Chef America because Chef America stands for the proposition that patenting inventions is not some government sponsored game to be played by hacks and “ordinary” people with spare time and money to chuck around.

    It’s a professional endeavor. And in the professional world, when you screw up the fundamentals, you get the hammer, and rightfully so. Neither a district court nor the Federal Circuit has any business rewriting poorly drafted claims.

  66. 33

    …except, Malcolm, that it wasn’t “his” patent that got flushed away in Chef America, was it Malcolm? Rather, it was his client. Drafting is the most exacting task a patent attorney does. When claims get litigated, I expect some recognition that drafters try their best but in the end are only human, and not perfect, and not clairvoyant, and the punishment meted out to their clients by the court should be measured, and proportionate to the outrage perpetrated by their hired drafter. But I think you’re not serious, are you, about Chef being the best case ever?

  67. 32

    “But, if the patent has issued, and there is clear intent of a narrower definition in the description, even absent an express definition, then the narrower definition should be used.”

    For every plaintiff that argues for a narrower definition to perserve validity, there’s another asking for a broader definition because it’s improper to read features from the spec into the claims.

    If there isn’t an expression definition, there isn’t a clear intent.

  68. 30

    “Automatically applying the broadest possible definition of wound is fine during examination and possibly should have been asserted by the Examiner. But, if the patent has issued, and there is clear intent of a narrower definition in the description, even absent an express definition, then the narrower definition should be used.”

    Agreed. Though I would say the Examiner ought to apply the broadest reasonable definition instead.

  69. 29

    MaxDrei wrote:

    “Mind you, the Creator was very kind to those who are less than averagely sharp. If they did but realize their handicap, they would get depressed. So, He arranged that they never realize it. Well said, Wise [one]. You’ve given me a good laugh.”

    Well said on your part as well Max!

    Mind you though that the Creator was also very kind to those who believe themselves to be more than averagely sharp (i.e., in the upper 50%, which is 90% of us). If they did but realize their folly, they too would get severely depressed. So, He arranged that they never realize it either.
    ______________________
    Common sense is highly uncommon.

  70. 28

    Lionel: “If the patentees description was clearly focused on external wounds, then it may be a reasonable interpretation.”

    Clearly focused? There is no such test.

    “I have not read the written description, so I am not rendering judgment on that.”

    As Dyk pointed out, “the specification discloses ****increased healing of the
    abdominal wall by granulation tissue in and through Prolene mesh, and ’643 Patent
    col.19 ll.23-26 and ’643 Patent col.20 ll.25-35 describe draining fluid from interior
    infections****

    “if the patent has issued, and there is clear intent of a narrower definition in the description”

    There is no such clear “intent”. The spec uses open language and broadening boilerplate throughout.

    “Mooney has shown his stripes as a litigator who has clearly never drafted an application.”

    Again, if it was so clear to a PHOSITA what the patentee had invented, why were there no claims describing that invention? Why did the limiting definition of wound come up suddenly during litigation? Isn’t the common wisdom that a range of claims from broad to narrow is most desirable?

  71. 27

    “I think Chef America is a fun case, but I don’t think it’s incredibly important. The issue there was not determining the limits of what the claim drafter meant, but what to do when the claim drafter very precisely claims something he almost certainly didn’t mean.”

    The answer is you spank the claim drafter and flush his patent down the toilet. That’s what happened in Chef America. Best. Federal. Circuit. Case. Ever.

  72. 26

    Prof. Noonan, “This stuff is fun, but I don’t think our comments are very influential.” Such a cynical viewpoint for a legal and scientific academic! Isn’t public discourse supposed to be one of the cornerstones of democracy? A good chunk of the IP community probably reads this blog AND the comments – couldn’t Max inspire some of them to write articles or amicus briefs or lobby Congress, etc.?

  73. 25

    Mooney’s rants asides, Wegner has a point. If the patentees description was clearly focused on external wounds, then it may be a reasonable interpretation. I have not read the written description, so I am not rendering judgment on that.

    Automatically applying the broadest possible definition of wound is fine during examination and possibly should have been asserted by the Examiner. But, if the patent has issued, and there is clear intent of a narrower definition in the description, even absent an express definition, then the narrower definition should be used.

    Mooney has shown his stripes as a litigator who has clearly never drafted an application.

  74. 24

    Well, maybe no longer laughing, Wise, but smiling still. Indeed, I’m not the sharpest. I knew that already. Did you however think “less than averagely sharp” was aimed at you personally (If so, I wonder why)? Can JAOI (where is he when we need him) with his unique ability (you report) to see the big picture please tell us what thought processes he would have followed, had this case been in his court, to get to the true meaning of “wound”? I just think that, going forward, there is a need for more consistent claim construction at District Court level, so that the CAFC doesn’t have to reverse so often. It’s the CAFC’s own fault, of course. The CAFC has to instruct the lower courts, in no uncertain terms, the “correct” way to “do” claim construction.

  75. 22

    “Common sense” is one of the few things in the world of which there is an over-abundant supply. Every individual is blithely convinced that they personally enjoy more than their proportionate share of it. We each of us see a bigger, better and clearer picture than all the rest, don’t we. Mind you, the creator was very kind to those who are less than averagely sharp. If they did but realise their handicap, they would get depressed. So, he arranged that they never realise it. Well said, Wise. You’ve given me a good laugh.

  76. 21

    I sure hope JAOI’s comments influence people.
    He got more common sense than most others.
    And he appears to be the only one who sees the big picture.

  77. 20

    “This stuff is fun, but I don’t think our comments are very influential (Dennis, on the other hand, may be).”

    I hear the “Patent Docs” are pretty influential too. ;)

  78. 19

    Mr Noonan, I’m indulging myself in pure wishful thinking, I well know, as when I detect of signs of “European thinking” in the jurisprudence of the CAFC and when I harangue Justice Randall Rader when he attends conferences over here. But we know that Dennis reads his own blog, and I still harbour fond imaginings that, if I repeat my stuff often enough, some of it will penetrate.

    Besides, I live in hope that somebody will come up with arguments good enough to demolish the fond imaginings i have, that I know better. As soon as that happens, I have to think deeper. Which is salutary, and educational.

  79. 18

    Dear Max:

    As much as I enjoy (albeit disagree with) your viewpoint on this blog, if you have hopes of “influencing the course of patent law development in the US” I think you will be disappointed. This stuff is fun, but I don’t think our comments are very influential (Dennis, on the other hand, may be).

  80. 16

    Nice to have a civilised discussion. My point is that legal certainty comes when the “steering system” of the law vehicle is self-centering. One such mechanism is the “survival of the fittest legal line” mechanism, evident at the EPO, where 24 Boards hand down 1000 Decisions a year, nobody deferring to anybody else. Another is the English rule on claim construction. Had that been the line, during Chef, the court would have felt a strong obligation to reconcile the strict words of the claim with what the PHOSITA would understand. So, the court could have announced (for example) that the surface of the loaf is indeed heated “to” 400°F . That part of the loaf, at least, is at oven temperature, even if the center of the loaf is much cooler.

  81. 15

    Claim construction rests on factual findings about how one of ordinary skill in the art would understand the language of the claim.

    I never will understand how the Federal Circuit decided it would be acceptable to perform de novo appellate review of an essentially factual issue. (I mean, I’ve read the decisions and I understand the individual words and sentences. I just don’t get the overarching chutzpah.)

  82. 14

    “For my six penny-worth, if you are going to emasculate the DoE, then for justice you need robust, no-nonsense English claim construction procedures.”

    You may be right, but this case doesn’t involve the DoE. In fact, a brief review suggests to me that the issue is exactly what you suggest is the proper one, to wit, what would a PHOSITA think that the claim writer meant when he used the word “wound” in his claims. I don’t think this case provides much support for your campaign to import (again) English jurisprudence into the colonies.

    I think Chef America is a fun case, but I don’t think it’s incredibly important. The issue there was not determining the limits of what the claim drafter meant, but what to do when the claim drafter very precisely claims something he almost certainly didn’t mean. It’s one thing to construe terms in light of the spec; it’s another thing entirely to re-write the claim to say something different.

  83. 13

    Jim, his liver is severely lacerated.

    Bones, treat that wound.

    Jesus Jim, I’m a doctor, not a judge, what the hell do you mean by “treat that wound?”

  84. 12

    Ah, I see. My “exigencies” was a response to the comment of Luke Ueda-Sarson above, who surmised that the parties don’t try to interest the court in the “mantle” worn by the PHOSITA. Now you report that the court does try sincerely to don the mantle. I had in mind, in particular, the Chef America case, where the PHOSITA would surely have understood the claim to require a baking oven at 400°F,(rather than a lump of dough cooked till its centre has attained a temperature of 400°F (charcoal)). It’s a bit like the DoE. In Germany, most infringers are caught infringing under the DoE rather than literally infringing (even though the Statute provides only one kind of infringement). Nobody infringes in England under the DoE because it doesn’t exist in England. Instead, England construes the claim on the basis that it means what the PHOSITA thinks that the claim writer was using the language of the claim to mean. That (but NOT the DoE) would have delivered the right result in Chef, and would here too. For my six penny-worth, if you are going to emasculate the DoE, then for justice you need robust, no-nonsense English claim construction procedures.

  85. 11

    Max,

    You brought up exigencies, I didn’t. And yes, I was being ironic, and perhaps a bit impolite. In my opinion, the fact that an appeals court splits 2:1 on a single case does not signal the impending collapse of civilization. Although I have no opinion on this case (not having read it or the record), I agree with Malcolm that the law on claim construction is not that hard, and the Court of Appeals for the Federal Circuit usually gets it right.

    So, the question is back at you: which “exigencies of American common law effectively foreclose common sense judicial claim interpretation”? Although it’s likely that a significant number of district court judges have never actually “donned a mantle,” the law is pretty clear that the district court is supposed to interpret the claims from the perspective of a PHOSITA. So what’s the real difference between our “exigencies” and the common-sense English approach?

  86. 9

    Don’t understand your lament Big Guy. I nurture ambitions, via this blog, to influence the course of patent law development in the USA, so am reluctant to “give it a rest”. The English test minimises the likelihood that the first instance construes the claim so badly that the appeal court is obliged to reverse him. That’s very important, for legal certainty. What are these “exigencies” you speak of? Are they the ones Malcolm Mooney is drawing our attention to? You speak as if they are endemic, or inherent, but I don’t see why (or are you being ironic?). If the single judge at first instance does a competent job on matters of law, and the appeal instance reverses only when the first instance gets the law plainly wrong, well then it should never happen, that the appeal instance splits 2:1 on claim construction, because the first instance will have already got it right enough on that issue to deny the CAFC the opportunity to reverse. Or am I not understanding you right? If so, I apologize.

  87. 8

    “In England, it is also exclusively the court that construes the claim, but the judge first takes care to ‘don the mantle’ of the hypothetical PHOSITA reader of the claim in the context of the specification.”

    Bloody right. And in England, the judge never comes up with a claim construction that someone else disagrees with. Because in England the judges use common sense, but in America the judges must deal with exigencies.

    Give it a rest, Max.

  88. 7

    The medical dictionary of choice in the UK is Dorland’s. Looking in that, at “wound” and “fistula” I suspect that the PHOSITA would understand a fistula as a passage and a wound as a bodily injury caused by physical means. So, some fistulae are wounds, but others are not, right?

    And, Luke, thanks for that observation. It makes good sense. Seems a shame to me, all the same, that the exigencies of American common law effectively foreclose common sense judicial claim interpretation. English common law is not foreclosed. In England, it is also exclusively the court that construes the claim, but the judge first takes care to “don the mantle” of the hypothetical PHOSITA reader of the claim in the context of the specification.

  89. 6

    “Prost and Bryson blew it big time. ”

    I comment familiarly on federal judges all the time, its no big deal.

    I feel uniquely qualified to criticize federal judges in my characteristically glib, overly-familiar, and annoying manner because I am such as wonderful human being and know so much about patent law.

    Much more than judges or m0r0ns like the readers of PatentlyO.

  90. 5

    Another excerpt:

    “KCI responds that any error resulting from the district court’s failure to construe the “wound” phrases is harmless because Defendants’ proposed construction is incorrect as a matter of law and the jury’s verdict demonstrates that it adopted the correct construction. According to KCI, the correct construction of “wound” is “tissue
    damage to the surface of the body, including the epithelial and subcutaneous layers.” KCI argues that while the specification may refer to a “variety of wounds,” each and every example specifically described is a skin wound. Therefore, KCI alleges, the Stedman’s Medical Dictionary definition is broader than the scope of the specification and cannot be used to define “wound” as used in the claims. Further, KCI notes that
    under Defendants’ proposed construction, “wound” would include, in addition to fistulae, “conditions such as ruptured appendices and stomach ulcers” that the specification in
    no way suggests can be treated according to the claimed invention. Appellee’s Br. 53.”

    Friends, that was the winning argument. Let’s look at the phrase “in no way suggests.” According to the dissent, the specification discloses “increased healing of the
    abdominal wall by granulation tissue in and through Prolene mesh, and ’643 Patent
    col.19 ll.23-26 and ’643 Patent col.20 ll.25-35 describe draining fluid from interior
    infections”. Hmmm. “In no way suggests”?

    The big mystery here is what led the judge to “sua sponte” throw out the claim constuction of “wound” ten days into the trial, thereby allowing the plaintiffs to define the term, effectively, as a type of injury that the cited art very conveniently did not teach. Weird.

    The other mystery is where are the dependent claims reciting the surface wound embodiment that is, allegedly, what was understood to be the invention by every skilled person at the time of filng except, apparently, for the the people who prepared the application.

  91. 4

    Max, I get the impression US courts are averse to having any experts in the court opining what a PHOSITA may or may not believe – they already spend enough litigation dollars on thins like inequitable conduct and best mode analysis without having to worry about defining what the notional common general knowledge (or similar) in the art is…

    Note that in this very case neither party made any attempt to get the CAFC to take notice what the experts said on claim construction, for such an approach would have been futile (or worse).

    US attorneys: is my impression correct?

    Cheers, Luke

  92. 3

    Personally, I think it’s not helpful to have one way of doing things (claim construction) in the PTO and a different way in the courts, for then the PTO gets no guidance from on high, about how to do “broadest reasonable interpretation” (and so does claim construction badly) and the courts have no compunction about construing the claim narrower than the Office (so nobody knows pre-CAFC what is the “true” ambit of the claim). Why can’t both the PTO and the courts follow the pragmatic English line, namely: The claim means what the notional PHOSITA thinks the writer was using the language of the claim to mean. Here, when the relevant PHOSITA reads “wound” in the claim, what does s/he think the writer of the claim was using the word “wound” to mean? According to MM, the PHOSITA thinks that a fistula falls within the ambit of the generic term “wound”. End of story.

    Wasn’t there a case a few years ago about a catheter. The claim included a feature like “multi-lumen” and the CAFC interpreted it to mean “two” because the only example in the specification had just two lumens. Or was it something about the lumen being off-axis? Anyway, the point was that the claim was construed narrower than its plain meaning, and I couldn’t see why (except egregiously to preserve its validity, for some unknown reason).

  93. 1

    Prost and Bryson blew it big time. Wow. Just wow. I’ve said it before and I’ll say it again: the problem is not the law of claim construction. The problem is Judges (and Examiners) applying the law, which is as clear as it is ever going to get, even when slimy attorneys are kicking up dust and crying crocodile tears about how unfair it will be if the construction turns out to be different from what they want.

    The point at which the majority’s opinion drives off the cliff is immediately discernable:

    “To construe “wound” to include fistulae and “pus pockets” would thus expand the scope of the claims far beyond anything described in the specification. See Nystrom v. TREX Co., 424 F.3d 1136, 1145 (Fed. Cir. 2005)”

    Huh? What? Anyone remotely familiar with medicine and not paid to recite a script stating the contrary is immediately scratching their heads. Why? Because wounds include fistulas. The specification talks about treating wounds. Wound is a broad term. Unless there’s a express definition in the spec that defines wound differently, that is the end of any non-wanking analysis. But the majority then cite this passsage (of course, it’s not from Phillips):

    (“[I]n the absence of something in the written description and/or prosecution history to provide explicit or implicit notice to the public …. that the inventor intended a disputed term to cover more than the ordinary and customary meaning revealed by the context of the intrinsic record…”)

    First of all, the the “ordinary and customary meaning” is revealed by the context of the intrinsic record only to the extent that the intrinsic record CONTRADICTS the ordinary and customary meaning. Otherwise, the meaning is the ordinary and customary one. Also, the same logic certainly applies when construing the term to include LESS than its ordinary meaning. I mean, get real.

    What happened here is what never ever should be allowed to happen: a patent with a unambiguously broad term (“wound”) AND absolutely nothing in the spec or prosecution history to indicate that it should be construed more narrowly (in fact, the opposite is true) is rescued from deserved oblivion. I can not imagine any writer of a formal legal opinion finding that “wound” in these claims meant anything other than what the defendants proposed.

    Oh, and check out the “expert testimony”:

    Q: Is that wound healing?
    A: No. That’s fistula drainage.
    Q: And why isn’t that wound healing?
    A: Well, Chariker-Jeter describes that they stop this device when the fistula closes. And usually these devices take about 16 days, that’s what they describe in their article, for this nasty fluid to stop coming out. And after that, when the fistula closes, then that’s when the wound healing or the rest of the wound can start to heal.

    Anyone who can read that without feeling nauseous has a stronger stomach than mine.

    THIS is a case that deserves to be heard en banc. What a travesty.

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