Federal Circuits decides that 100% is different than One Hundred Percent

by Dennis Crouch

E.I. DuPont de Nemours & Co. v. Unifrax I LLC (Fed. Cir. 2019)

In 2014, DuPont sued Unifrax for infringing its patented flame-barrier that is both lightweight and thin. U.S. Patent 8,607,926 (“Composite Flame Barrier Laminate for a Thermal and Acoustic Insulation Blanket”). The jury sided with DuPont — finding the asserted claims infringed and not proven invalid.  Over a dissent from Judge O’Malley, the Federal Circuit has affirmed — finding that substantial evidence supports the verdict. (Majority authored by Judge Reyna and joined by Judge Hughes).

When 90% counts as 100%: A key issue on appeal was the meaning of the claim term “100%.”  DuPont’s claims required an “inorganic refractory layer” made of “platelets in an amount of 100% by weight.”  That particular limitation was added during prosecution to get around a prior art reference that taught a platelet concentration of less than 100%.

The accused product layer approximates 100% platelets, but has some small amount of residual dispersant that didn’t fully evaporate.  Prior to trial, the district court sided with DuPont on claim construction and ruled that “100%” be interpreted as allowing for “some residual dispersant.” This substantially foreclosed Unifrax’s non-infringement argument that it had hoped to take to the jury.

On appeal, the Federal Circuit affirmed — finding a more-relaxed construction of 100% was correct because of how the mathematical construct was used in the patent document itself.  The key phrase from the specification is as follows:

The refractory layer comprises platelets. Preferably at least 85% of the layer comprises platelets, more preferably at least 90% and most preferably at least 95%. In some embodiments, platelets comprise 100% of the layer. The refractory layer may comprise some residual dispersant arising from incomplete drying of the platelet dispersion during manufacture.

According to the court, the final sentence of this paragraph — allowing for residual dispersant in the layer — applies to all of the embodiments, including the 100% layer.  Thus, when the patent says “100%” platelets, it really meant almost-all platelets with potentially a bit of dispersant.  According to the majority the defendant is wrong that “‘100%’ means one hundred percent.”

Writing in dissent, Judge O’Malley argued that the majority’s construction “ignores the plain meaning of ‘100%’ and introduces more ambiguity than it resolves.”

There is no ambiguity in this language. The “platelets” must be present in the refractory layer “in an amount of 100% by weight.” The “100% by weight” language, coupled with the requirement that the platelets exist in an “inorganic refractory layer,” clearly contemplates that the platelets—i.e., inorganic material—constitute the entirety of the refractory layer. That leaves no room for other organic additives. There is perhaps no clearer or simpler way the patentee could have conveyed such a requirement.

Dissent.

The claim language is actually quite mess in the same clause it indicates that the refractory layer comprises “platelets in an amount of 100% by weight” but may also have a moisture content of up to 10% by weight.  110% by weight concentration is not ordinarily allowed in physics. However, we do sometimes talk about “110% effort” and Cecil Quillin has reported a USPTO’s patent grant rate as greater than 100% (by comparing original filings to all patents issued in the resulting family).

I pulled up the prosecution history and found that the 100% and 10% elements were added at the same time in the same amendment with the statement that the claim now “requires a refractory layer containing 100% platelets (and also requires  . . . a defined residual moisture content).”  In my mind, this works strongly in the patentee’s favor — that the 100% allows for residual moisture. Still, it is unfortunate that the ultimate holding is a rejection of the defendant’s argument that “‘100%’ means one hundred percent.”

= = = = = =

Product on sale before the patent filing. A unique aspect of this lawsuit is that the accused products were already on sale before DuPont filed its patent application.

Unifrax’s product was on-sale by May 2011; DuPont filed its application in December 2011.  To be clear, DuPont’s patent does claim priority to prior applications, but only as a continuation-in-part.  The prior applications apparently do not sufficiently disclose the invention at-issue here.

For DuPont, the fact that its patent was filed prior to the AIA saved its bacon.  On appeal, the Federal Circuit agreed that DuPont had presented substantial evidence to antedate Unifrax’s prior use/sale.

The critical point of law focused on proof of the prior invention.  The courts have long been suspicious of inventor’s self-serving testimony regarding prior inventorship.  Here, the duPont provided inventor testimony along with substantial documentation of the prior invention timing.  However, the company did not provide o corroborating evidence as to one particular limitation in the claims — a requirement that the refractive layer have a “dry areal weight of 15 to 50 gsm.”

On appeal, the Federal Circuit sided with duPont — reflecting on the requirement for corroboration.

[O]ur case law does not require that evidence have a source independent of the inventors on every aspect of conception and reduction to practice. . . Here, the law requires only that the corroborative evidence, including circumstantial evidence, support the credibility of the inventors’ story.

The reason for corroboration is a concern that inventors will commit perjury. Thus, the role of corroboration is help ensure inventor credibility.

38 thoughts on “Federal Circuits decides that 100% is different than One Hundred Percent

  1. 8

    >”less knowledgeable for 112 and more knowledgeable for 103.”
    >Not.
    >Possible.
    >Further, this is NOT so attributable to the CAFC (even though you would rather >focus there, and yes, they TOO are to blame, but they are simply not the root cause).
    >And that is simply part and parcel of the problem.

    anon, you have no idea what you are talking about. Go back and read what I wrote and then think more than 2 seconds and see if you can find cases that support my position. I am sure you can. You need a break. You have been battling MM too much. And your ego is out of control. You state regarding the SCOTUS and Alice that you “have addressed my arguments.” Good for you. In my evaluation your “arguments” were inadequate. You are not a judge and the fact that you have “addressed” my arguments (according to you) does not mean you have overcome my arguments or convinced anyone but yourself. You are becoming a liability for the pro-patent people. Stop your little insulting comments and conclusory statements and read what other people wrote.

    1. 8.1

      And I am not the only pro-patent person that has said this about you. Take a break and get some perspective. You have become condescending and ridiculous. Read what other people write and try to understand it. I’d suggest cutting back on your interaction with MM.

      1. 8.1.1

        The condescension for you here is well deserved, Night Writer.

        Instead of trying all these tangents, why don’t YOU actually address the points that I put to you?

        You have spent all kinds of energy doing everything except engaging on the merits.

        Try that.

        1. 8.1.1.1

          ????

          anon, I’ve addressed your points and pointed with particularity why they are wrong. You have not addressed my points.

          You seem to have this ego that if you state something it must be wrong. And let’s remember that it is you that is commenting (and demeaning ) my posts and instigating these interactions.

          Spend some time and think. You really need time off.

          1. 8.1.1.1.1

            You have done absolutely nothing of the sort Night Writer.

            ALL that you have done is whine about the fact that your “pet” Supreme Court pins something on the Constitution is worthless.

            1. 8.1.1.1.1.1

              The reality anon is that you may not like my analysis of Alice, but what is happening is you think your analysis is so superior that you may respond to my posts by jeering me.

              And then you want to engage in this endless discussion where you have this position that I have not responded to your positions. Go read the other blog. I responded to the points in detail. You have not responded to my points and some of your positions are —frankly—laughable as being so naïve.

              (What was it that Curious said that because the SCOTUS hadn’t tied the exceptions to the Constitution in cases BEFORE Alice that this somehow negated their tying the exceptions to the Constitution in Alice. This is laughably ridiculous logic. I hear this nonsense only from people that don’t do litigation.)

              Just think anon, Ned and I knew that the SCOTUS was going to have to make a finding of fact about the privy council and were discussing Lemley’s article that was clearly meant to have been published for the SCOTUS to make such a finding of fact. That is the level I work at. The level you work at is denying the SCOTUS is a fact finder. Just ridiculous to have a discussion with you.

              I think it is over and out on this topic. I am sure you are going to post silly obnoxious jeers of my posts, but there is no point in engaging in this any longer.

              1. 8.1.1.1.1.1.1

                (And the other ridiculous logic was that because the SCOTUS mentioned 101 that it was a statutory interpretation despite the Scotus saying that they had applied the exceptions consistently over the last 150 years no matter the statute.)

                This discussion is just absurd and a total waste of my time. You and your friend on the other blog have no idea what you are talking about.

              2. 8.1.1.1.1.1.2

                I jeer the fact that you continue to post your “pet” theory even after it has been shredded and you have run away from the detailed multi-prong counter position and then you have the nerve to act like you actually have the high ground.

                You don’t.

                You then throw out a lot of non-sequiturs and points that just don’t fit the topic at hand as if any of that makes up for your worthless position immediately at point.

                None of that does.

                I am STILL waiting for you to actually engage on the merits of that multi-prong counter. The ball is STILL in your court to actually join the conversation.

                Stop whining and do something substantive.

                1. anon,

                  You have shredded it only in your own mind. You are incapable of even responding to these posts with substance.

                  And I ran away from nothing. I grew tired of you repeating yourself ad nauseum with apparently zero comprehension of my argument.

                2. >>I am STILL waiting for you to actually engage on the merits of that multi-prong counter. The ball is STILL in your court to actually join the conversation.

                  I have no idea what you are talking about. I have responded in the last day to each of the arguments presented to me. You have responded to nothing and merely have proclaimed yourself the winner.

                  Over and out.

              3. 8.1.1.1.1.1.3

                And frankly I think your behavior is incredibly disrespectful to me. I have a very good record of predicting the outcome of Scotus cases related to patents. Ned and I were both knew the importance of the privy council and were both onto Lemley before the Oil States opinion.

                You may not like my views on Alice, but to hold them in contempt is disrespectful and absurd given my record and the fact that I have done litigation and to my knowledge you have not.

                1. You wanting “prediction” to somehow be on point to the immediate topic is a non-starter.

                  Anyone could predict that the Supreme Court will be anti-patent in 95% of their opinions.

                  So what?

                  And here – like the other blog – you repeat non-sequiturs as if they buttress your worthless “Constitution-pinning” position.

                  They do not.

                  And you have NOT responded to the multi-prong counter put to you in the detailed discussion on that other blog. That is, “respond to” means more than merely dismissing the points and running away. You have actually engaged not at all in any substantive manner.

                  Shall I link to or reproduce the discussion to get you to see the plain error of your ways?

  2. 7

    I smell biscuits burning…

  3. 6

    A 112b rejection should have resolved this nonsense before it issued. Just adding (inclusive of residuals) or (not inclusive of any residuals) ends this whole shebang.

  4. 5

    link to lawyersgunsmoneyblog.com

    In terms of obstruction, Mueller was clearly putting the matter in the hands of Congress. This is a full and explicit layout of impeachable, high crimes. He was not intending Barr to steamroll over this thing. Not at all. 23/

    What’s more, Barr not only lied, it appears he actively obstructed justice by misrepresenting the report in his summary. This wasn’t just a partisan structuring, it was an attempt to try and save Spraytan McDerpderp and the administration. 24

    Lots more at the link. Excellent summary of the report.

    1. 5.1

      Tards and their muh “obstruction!!!1!11!!” when there is no underlying crime. First you have to show the crime re res. Then you can talk about obstruction.

  5. 3

    Trump scolded [McGahn] for taking notes, saying, “Lawyers don’t take notes. I never had a lawyer who took notes.”

    Hahahahaha.

    In fact, lawyers keep all kinds of documents, particularly when they are working for a well-known path 0 l0gical l i @r and criminal.

  6. 2

    I’m looking forward to meeting Bill Barr someday. Among other so-called “attorneys” who disgrace the profession, I will enjoy watching his shocked face contort into an expression of extreme pain and shame. Just imagine, after his stroke, watching him twirl around in his wheelchair as he careens down the hillside to his eternal peace. I’ll put a bottle of champagne in the fridge right now, next to the one that’s set aside for Cheney’s Big Day.

    1. 2.1

      That you “feel” that these may be “bad” people does not excuse your sadism.

      This reflects your “Ends justifies the Means” views, as well as reflects the fact that you cannot see the irony in being this board’s resident Trump.

      1. 2.1.1

        This reflects your “Ends justifies the Means” views

        LOL

        Because Bill Barr has such respect for the “Rule of Law”. So implieth Bildo, the world’s most transparent hypocrite.

        your sadism

        Sadism is separating families from their children and selling the daughters to Bill Barr’s friends so they can f ck them in Florida.

        I’m not going to take my time humiliating Bill Barr when I see him next. That would be sadistic. I’m just going to humiliate him, quickly, and in a manner that has a lasting impact.

      2. 2.1.2

        you “feel” that these may be “bad” people

        ROTFLMAO

        People who behave like Bill Barr aren’t merely “bad people.” They are s0 ci0paths who will literally do and say anything to preserve the power of their cult, which happens to be the increasingly desperate and anti-democratic R e p u k k k e party, the party of greedy rich @ h0les, r @ cists, mis 0gynists and reality-denying bible-thumpers.

        If you are unwilling to speak up against these vermin, then you are part of the problem. Saying that you are not part of the problem does not mean that you aren’t. Just own it. Own you cowardice. Or own the fact that you’re a f c k ing entitled pr ck.

        1. 2.1.2.1

          Find an appropriate forum for your rants.

          A patent law forum is NOT such a forum.

          There is a reason why YOU have more posts than anyone else expunged for being inappropriate.

          More posts than anyone? Let me be more precise: you have more posts expunged than ALL OTHERS COMBINED.

          Your mindless and off-kilter ad hominem replies have zero bearing on the matter.

          1. 2.1.2.1.1

            Find an appropriate forum

            It’s called The Internet, snowflake.

            Go back to Big Jean’s place and help him grease up his thighs again. That’s what you do best, Bildo. Around here you just end up choking on that little policeman’s whistle over and over again.

            1. 2.1.2.1.1.1

              “The Internet” is not license for you to C R P anywhere you feel.

              That’s kind of the point of my reminding you just how many of your inappropriate posts have been expunged.

              So — again — your mindless ad hominem has zero bearing on the matter.

              And what is it with you and your 0bsess10n with Quinn…? No wait. stop. I really don’t want to know.

          2. 2.1.2.1.2

            mindless … ad hominem

            Nothing mindless or ad hominem about my description of the Re pu k k k e Party, Bildo. Also not a coincidence that patent maximalism leans right, nor is it a coincidence that the source of most of the worst arguments for patent maximalism is a blog that is overflowing with Rep u k k kes and is, in fact, managed by one.

            [shrugs]

            Own it.

            1. 2.1.2.1.2.1

              Nice Accuse Others meme.

              Except for the fact that I do own the actual legal discussions that I engage in, so you do not even have a glimmer of a point there.

              1. 2.1.2.1.2.1.1

                I do own the actual legal discussions that I engage in

                In other words, you own absolutely nothing except for your water-carrying for criminals like Barr and for dissembling entitled lowlifes like Big Jeans and Co.

                [shrugs]

                1. Your one-bucketing is noted.

                  Your feelings are noted.

                  Your inability to find an appropriate forum is noted.

                  I am wondering though, how long it will be until the good Prof nukes this thread and adds to your “collection” of inappropriate expungements.

  7. 1

    Re: “DuPont had presented substantial evidence to antedate Unifrax’s prior use/sale” for “proof of the prior invention.”
    So why did Unifrax not attempt to move its own invention date earlier than its on sale date?

    1. 1.1

      Moving the Unifax invention date earlier could help Unifax obtain a patent if an application was filed and is not abandoned, but I don’t see how it would provide a defense against infringement under 273. 273 requires commercial use.

      1. 1.1.1

        Not a defense under §273, agreed. If, however, Unifax could show invention before DuPont, and then show that Unifax did not abandon, suppress, or conceal the invention, they could get DuPont’s patent invalidated under §102(g)(2). The invalidation would be a defense to infringement.

        1. 1.1.1.1

          §102(g)(2) is a frequently overlooked 102 defense against pre-AIA patents, which are still most of the patents in D.C. and IPR litigation.
          E.g., see FLEMING v. ESCORT INC 12/24/14 (Fed. Cir), New Idea Farm Equip. Corp. v Sperry Corp., 916 F.2d 1561, 16 USPQ2d 1424 (Fed. Cir 1990); Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 231 USPQ 81 (Fed. Cir 1986); Apotex USA Inc. v. Merk & Co., 254 F.3d 1031, 59 USPQ2d 1139, 1143 (Fed. Cir. 2001); Dow Chem. Co. V. Astro-Valcour Inc. , 267 F.3d 1334, 60 USPQ2d 1519 (Fed. Cir. 2001); Eolas Tech. Inc. v. Microsoft Corp., 399 F.3d 1325, 73 USPQ2d 1782, 1789 (Fed. Cir. 2005); etc.

          1. 1.1.1.1.1

            Of course for IPRs there is the additional limitation of only allowing patent or publication petitioner initial citations. However, that does not necessarily answer the question of whether a prior §102(g)(2) invention date can be used merely for rebuttal of the patent owner’s “swearing behind” the publication date of such a citation?

            1. 1.1.1.1.1.1

              I.e., where the patent owner raised prior invention as its defense.

              1. 1.1.1.1.1.1.1

                Paul,

                For an IPR, is there such a “defense” of prior invention?

                Is not the point of an IPR simply focused on a different thing? Is not the point that an IPR is NOT an actual court action deciding infringement directly at point?

                1. Whether you want to call it a defense or the surrebuttal of the patent owner’s rebuttal case against petitioners cited prior art, as Dennis notes re the subject decision: “On appeal, the Federal Circuit agreed that DuPont had presented substantial evidence to antedate Unifrax’s prior use/sale. The critical point of law focused on proof of the prior invention.” So is it comfortable with due process to allow only ONE of the two parties to an IPR to move back their invention date to win?

                2. So is it comfortable with due process to allow only ONE of the two parties to an IPR to move back their invention date to win?

                  Does that not depend on WHY the IPR is allowed in the first place and WHAT the IPR does allow and does not allow (vis a vis ONLY challenges of a particular kind)?

                  You seem to want to switch up the “argument” to a type of “is it fair?” when the question at hand is more than a bit different in that — as pointed out — an IPR is NOT an actual court action deciding infringement.

                  So…. I do not think that your attempt here to “convert” the point at hand to somehow being merely a “naming convention” (changing defense to surrebuttal) answers that point at hand.

                  You have somehow “bootstrapped” the very limited basis of an IPR into any “fair” argument when such “fairness” may be an inherent weakness of what an IPR is itself structured to be.

                  To answer your question then, the very structure of the IPR statute may itself be the necessary driver of that “unfairness.”

                  Don’t like it? Take it to (a real Article III) court — if you have proper standing, that is. I am not the one that drafted the IPR structure, so asking me about “fairness” won’t change that structure. Also, I do not think that the courts have authority to rewrite the legislative laws that set the structure to be something that they would happen to “like” better.

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